Docket: A-304-16
Citation:
2017 FCA 109
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CORAM:
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DAWSON J.A.
DE MONTIGNY J.A.
GLEASON J.A.
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BETWEEN:
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BRAD GLADMAN
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
Dr. Gladman appeals from the judgment of the
Federal Court in Gladman v. Attorney General of Canada, 2016 FC 917
(available on CanLII), dismissing his application for judicial review of the September 3,
2015 decision of the Deputy Minister of National Defence. In that decision, the
Deputy Minister denied Dr. Gladman’s application for a promotion to a more
senior classification level.
[2]
For the reasons that follow, I would dismiss
this appeal with costs in the all-inclusive amount proposed by the parties.
I.
Background
[3]
Dr. Gladman works as a Defence Scientist (DS) at
the Department of National Defence (DND). At the times relevant to this appeal,
he was classified at the DS-04 level. According to the DS Salary
Administration System, Part IV – DS Promotion and Salary Advancement Guidelines
(DS Salary Administration System), which embodies the DS classification
standard and the rules governing promotions for incumbents who are so classified,
the DS-04 level is the working level classification for experienced DND
scientists who “demonstrated the ability to work
independently under general supervision or direction” (DS Salary
Administration System, para. 49, Appeal Book, Vol. 1, p. 123).
[4]
In January 2015, Dr. Gladman submitted an
application to be promoted to the DS-05 level, the senior working level for DND
scientists who had “established a reputation, mastery
and leadership in a complex field of [Defence Scientific Research Development
and Analysis]” (DS Salary Administration System, para. 57, Appeal Book,
Vol. 1, p. 128). To qualify for this level, an incumbent’s abilities must have
been “consistently demonstrated” (DS Salary
Administration System, para. 57, Appeal Book, Vol. 1, p. 128).
[5]
The DS Salary Administration System provides for
a level determinant standard that describes the characteristics of each classification
level as opposed to setting out a points-based system for evaluation.
Competencies for each level against which incumbents’ abilities and performance
are measured are listed in the DS Salary Administration System and include “knowledge and expertise”, “personal
interactions and communication”, “creativity”,
“productivity”, “impact”,
“recognition” and “responsibilities”.
The DS Salary Administration System sets out descriptions for each of these
competencies that pertain to the various DS classification levels.
[6]
Of particular relevance to this appeal is the descriptor
for the “impact” competency for the DS-05 level.
It requires that an incumbent demonstrate that he or she “[h]as made superior impacts on client policy, equipment,
engineering, or operational issues, by exploiting the application of technology
and/or defence scientific analyses” (DS Salary Administration System, para.
58, Appeal Book, Vol. 1, p. 132). The “rationale”
and “notes” for this descriptor require that an incumbent
“has provided solutions to clients that have had
impacts resulting in improved military capabilities or resource savings. These
activities are expected to be complex, influential and non-routine” (DS
Salary Administration System, para. 58, Appeal Book, Vol. 1, p. 132). As is
discussed in more detail below, Dr. Gladman’s application for promotion to the
DS-05 level was refused in part because he did not demonstrate that he met this
competency.
[7]
The promotion process for employees in the DS
classification at DND was developed following discussion with the applicable
bargaining agent and is incumbent-based, providing for employees’ career
progression as they gain expertise. Thus, contrary to the situation with many
public servants, employees in the DS classification at DND are classified based
on their state of professional development and move from one classification to
the next when and if they have demonstrated the competencies of the higher
classification.
[8]
In order to obtain a promotion, employees in the
DS classification are required to submit a Performance Evaluation Report (PER)
to the DS Career Progression Committee. The PER is completed by the employee
and his or her managers, with management having the final say as to the
contents of the PER. However, if they wish, employees may provide additional
comments in the PER if they disagree with or want to add to the text of the PER
finalized by their managers.
[9]
The Career Progression Committee is chaired by
DND’s Assistant Deputy Minister (Science and Technology) and is comprised of a
number of members of senior management and scientists, with a human resources
professional acting as the secretary. In 2015, in addition to the Chairperson
and the HR professional, there were twelve more members on the Committee, one
of whom was Dr. Gladman’s manager.
[10]
The Committee reaches results through discussion
aimed at building consensus or, if necessary, by majority vote. Employees are
informed of the Committee’s decisions on promotion requests by way of a Minute
Sheet, detailing the result reached and the rationale for the result. The
Committee may, where relevant, consider incumbents’ past Minute Sheets in
reaching decisions on advancement requests.
[11]
DS employees who are dissatisfied with a
Committee determination may seek to have it reviewed through an Independent
Recourse Mechanism (IRM), which is not meant to re-do the evaluation but,
rather, to ensure that it was conducted in conformity with the requirements of the
DS Salary Administration System. Grounds for review are provided in section 2.2
of The Independent Recourse Mechanism (IRM): Addendum to the DS Salary
Administration System (IRM Addendum) (Appeal Book, Vol. 1, p. 214) and
include:
a) The applicant did not have access to guidance material
pertaining to the career progression process, and would have presented her/his
case differently if she/he had had access to this information. This different
presentation could potentially have changed the decision of the [Committee];
b) The [Committee], in making its decision, took into
consideration additional information not originally included in the applicant’s
submission to the [Committee], and this additional information proved
inaccurate;
c) The [Committee] did not possess sufficient proficiency in the official
language of the applicant’s submission or failed to assess the dossier in the
official language of the applicant’s choice;
d) The decision of the [Committee] was based on grounds other than
the career progression criteria; and
e) Abuse of authority.
[12]
Dr. Gladman, who has a doctorate degree in
military history, has worked as a researcher and analyst at DND since 2003. In
2009 he wrote a book entitled Intelligence and Anglo-American Air Support in
World War Two: The Western Desert and Tunisia, 1940-43. In 2014, his
application for promotion from the DS-04 to the DS-05 level was denied. The
Minute Sheet refusing his promotion noted that Dr. Gladman was “progressing very well” towards the DS-05 level and
that, to attain that level, Dr. Gladman should “continue
[his] contributions to achieve a consistent multi-year history of creativity
and superior impacts” (Appeal Book, Vol. 2, p. 410).
[13]
Dr. Gladman determined that he wished to again
apply for the same promotion in 2015. He submitted a draft PER to his managers
in which he requested the promotion and described what he considered to be his
consistent multi-year record of creativity and impact. In support of this
assertion he relied in significant part on his 2009 book.
[14]
Dr. Gladman’s managers were initially reluctant
to support his 2015 promotion request, believing that not enough time had
passed since his unsuccessful application of a year earlier and that he
accordingly would have difficulty demonstrating a sufficient multi-year record
of creativity and impact to ensure that his application would be successful. However,
following the intervention of Dr. Gladman’s bargaining agent, his managers were
persuaded to support his 2015 promotion request. They finalized the PER initially
prepared by Dr. Gladman by shortening it somewhat. Despite having the
opportunity to do so, Dr. Gladman did not provide any additional comments in
the final PER.
[15]
In early 2015, the Committee considered Dr.
Gladman’s promotion request – along with those of several others – and denied Dr.
Gladman’s 2015 application as well as those of four other employees. In its
April 2015 Minute Sheet summarizing the decision on Dr. Gladman’s application,
the Committee noted that only incremental evidence relating to the previous
year’s recommendations had been provided and that Dr. Gladman had thus not
succeeded in establishing the sustained degree of creativity and impacts
required to support the requested promotion to the DS-05 level.
[16]
Dr. Gladman sought to have the Committee’s
decision reviewed via the Independent Recourse Mechanism, and DND appointed a senior
scientist from Natural Resources Canada to conduct the review. In his
application for review, Dr. Gladman raised the following grounds: first, that
the career progression process was not applied correctly; second, that the
decision of the Committee was based on grounds other than the career
progression criteria; and finally, that there had been an abuse of authority by
the Committee.
[17]
Dr. Gladman provided detailed submissions in
support of his application, including his contention that the DS Salary
Administration System does not require a sustained multi-year demonstration of
the impact competency at the DS-05 level, pointing in this regard to the
absence of such wording in the descriptor for this competency at the DS-05
level as compared to the specific mention of a multi-year demonstration for
other competencies at the DS-05 level and in the descriptor for the impact competency
at the DS-06 level. Dr. Gladman also claimed that he had been unfairly
disadvantaged in the process as management “ha[d] ‘the
pen’” in drafting his PER (Appeal Book, Vol. 2, p. 341); he thus
submitted his original, longer draft PER for the Reviewer to consider.
[18]
In accordance with the requirements enshrined in
subsection 3.4.2 of the IRM Addendum, the Reviewer required both Dr. Gladman
and DND management to submit and exchange all the written material they wished
the Reviewer to consider. The Reviewer also conducted interviews with Dr.
Gladman and three members of the Committee. The Reviewer tendered a draft
report to DND management in early July and then filed his final report on
July 23, 2015. The final version was amended somewhat from the earlier
draft version, largely for clarity.
II.
The Report of the Reviewer – the Decision under
Review
[19]
In his report, the Reviewer concluded that the
Committee’s process was fully satisfactory. He thus recommended that the
decision of the Committee, denying Dr. Gladman’s requested promotion, should
remain in effect. The Reviewer also recommended that management should hold an
informal discussion with Dr. Gladman to fully explain the reasons for the
denial and that Dr. Gladman and management should collaborate to develop a plan
for Dr. Gladman’s career advancement.
[20]
In arriving at this conclusion, the Reviewer
considered and rejected Dr. Gladman’s position that it was contrary to the DS
Salary Administration System to require an incumbent to have demonstrated a
sustained multi-year impact at the DS-05 level. In his report, the Reviewer
also noted that his interviews with Committee members revealed that during
Committee deliberations Dr. Gladman’s manager had altered his position from
initially supporting the requested promotion to sharing the consensus view that
Dr. Gladman’s application should be rejected.
[21]
The Reviewer’s report was submitted to the
Deputy Minister, who approved its conclusions and recommendations in a letter
to Dr. Gladman dated September 3, 2015. As the letter contains no analysis of
the issues, the parties concurred that the reasons set out in the Reviewer’s report
should be considered to be those of the Deputy Minister. Such agreement is consistent
with the case law of this Court and of the Federal Court, which establishes
that where a decision-maker endorses a conclusion in a report without providing
its own reasons, the decision-maker’s reasons are to be taken to be those set
out in the report: see, for example, Canada (Public Safety and Emergency
Preparedness) v. Khalil, 2014 FCA 213 at para. 29, 464 N.R. 98; Sketchley
v. Canada (Attorney General), 2005 FCA 404 at para. 37, [2006] 3 F.C.R.
392; Tan v. Canada (Attorney General), 2015 FC 907 at para. 48
(available on CanLII).
III.
The Decision of the Federal Court on the Points
in Issue in this Appeal
[22]
As Dr. Gladman raises before us only two of the
several arguments he made before the Federal Court, it is only necessary to
review the portions of the Federal Court’s reasons that relate to these grounds.
To put these portions of the Federal Court’s reasons into context, it is
helpful to first outline the arguments that Dr. Gladman makes on appeal.
[23]
Dr. Gladman first submits that the Federal Court
erred in concluding that there had been no denial of procedural fairness by the
Reviewer. While recognizing that his rights to procedural fairness before the
Reviewer may well have fallen toward the lower end of the spectrum, Dr. Gladman
maintains that these rights were nonetheless infringed as he was entitled at a
minimum to be provided with a summary of the information obtained by the
Reviewer in his interviews of Committee members and to have been afforded the
opportunity to reply to such disclosure. The only particulars Dr. Gladman
provides as to what he might have submitted to the Reviewer – had such
disclosure been made – are set out in paragraph 13 of his affidavit
(Appeal Book, Vol. 1, p. 54). He there explains that, had he been told
that his manager had changed his mind during the Committee deliberations, he
would have stated the following to the Reviewer:
[…] [researchers]
are entirely dependent upon [their] managers to explain what [they] have
accomplished as researchers. In my case, I gave [my manager] some notes; he
asked me to cut those notes down to a single page, and so I did so. I would
have explained that [my manager’s] actions were prejudicial to my application
for a promotion and inconsistent with my reasonable expectations of the conduct
of the [Committee] meeting.
[24]
Dr. Gladman secondly submits that the Federal
Court erred in finding that the Reviewer’s treatment of the merits of his application
was reasonable. He says more specifically that the Reviewer failed to grapple
with the essence of the argument he made to the effect that it constituted an
impermissible addition to the DS Salary Administration System to require demonstration
of sustained, multi-year impacts in his case. He asserts that it is an
unreasonable interpretation of the DS Salary Administration System to insert
such a requirement at the DS-05 level in the absence of wording so providing,
especially when such wording is present in respect of other factors at the
DS-05 level and for the impact competency at the DS-06 level.
[25]
The Federal Court dismissed both of these
arguments. It applied the correctness standard of review to the procedural
fairness issue and the reasonableness standard to the Reviewer’s treatment of the
impact competency at the DS-05 level.
[26]
On the procedural fairness point, relying on Potvin
v. Canada (Attorney General), 2005 FC 391, 280 F.T.R. 93, the Federal
Court held that the provisions of the IRM Addendum codified the extent of
procedural fairness owed to Dr. Gladman. The Court further held that all
disclosure requirements were fully enshrined in subsection 3.4.2 of the IRM
Addendum, which does not require disclosure of the information obtained during
interviews conducted by a reviewer. The Federal Court thus concluded that Dr.
Gladman was not entitled to disclosure of the material facts gathered by the Reviewer
in his discussions with Committee members.
[27]
The Court also considered and rejected the
argument that Dr. Gladman was entitled to the disclosure in question under a
common law duty of procedural fairness. Relying on the judgments of this Court
in Canada (Attorney General) v. Boogaard, 2015 FCA 150, 474 N.R. 121
[Boogaard] and Agnaou v. Canada (Attorney General), 2015 FCA 29, 478 N.R. 118
[Agnaou] and the decisions of the Federal Court in Hale v. Canada
(Treasury Board) (1996), 112 F.T.R. 216, [1996] 3 F.C. 3 and Begin v.
Canada (Attorney General), 2009 FC 634 (available on CanLII), the
Federal Court held that the level of procedural fairness owed to Dr. Gladman
was at the low end of the spectrum because there is no inherent right to a
promotion and the process adopted by the Committee and the Reviewer was
non-adversarial in nature. The Federal Court concluded that all that was
required by this low level of procedural fairness was the right to make
submissions to the Reviewer and thus included neither an entitlement to
summaries of the interviews conducted by the Reviewer nor the right to make
submissions about them.
[28]
As concerns the assertion that it was
unreasonable to conclude that a demonstration of sustained multi-year impacts
was required at the DS-05 level, the Federal Court held that it was a
permissible interpretation of the DS Salary Administration System to require such
a demonstration as a reasonable elaboration of the impact requirement for the promotion,
as contemplated in Ollevier v. Canada (Attorney General), 2008 FC 199,
323 F.T.R. 207. The Federal Court concluded that this was a reasonable
elaboration on several bases, as set out in paragraphs 47, 49, 54 and 56 of the
Federal Court’s Reasons, namely:
- the DS-05 level “is meant for mature, experienced officers who have
established a recognized reputation and professional competency and
leadership in a complex area of science and defence technology”;
•
the description of the DS-05 classification
provides that an incumbent’s abilities must have been “consistently
demonstrated”;
•
“[t]he description under
the ‘Impact’ criterion [for the DS-05 level requires] ‘superior impacts on
client policy, equipment, engineering or operational issue[s], by exploiting
the application of technology and/or defence scientific analyses’”;
•
the DS Salary Administration System contemplates
in several places that salary increases (within a classification range) would
normally require evidence spanning more than one year;
•
the multi-year criterion for the impact competency
was applied to Dr. Gladman’s 2014 promotion request;
•
Dr. Gladman himself, in his 2015 PER, made
reference to this requirement and alleged he met it; and
•
there was no suggestion that the requirement for
demonstration of sustained multi-year impacts at the DS-05 level had been
applied inconsistently by the Committee.
IV.
Analysis
[29]
The standard of review applicable in this appeal
has been prescribed by the Supreme Court of Canada in Agraira v. Canada (Minister
of Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47,
[2013] 2 S.C.R. 559. That standard requires an appellate court to step into the
shoes of the trial court, determine whether that court selected the appropriate
standard of review and, if so, assess whether it applied that standard
correctly. Thus, this Court is in effect called upon to re-conduct the required
judicial review analysis.
[30]
I concur with the Federal Court that the
procedural fairness issue is reviewable for correctness, or, to put the matter
another way, it is for this Court to determine whether Dr. Gladman’s
procedural fairness rights were respected: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker];
Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 at
para. 43, [2009] 1 S.C.R. 339; Pierre v. Canada (Border Services Agency),
2016 FCA 124 at para. 8, 488 N.R. 176. I also agree that the reasonableness
standard applies to the Reviewer’s treatment of the impact competency at the
DS-05 level, it being well-settled that decisions that concern labour and
employment issues that are heavily factually-infused are entitled to significant
deference: Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 53-54, [2008]
1 S.C.R. 190 [Dunsmuir]; Bergey v. Canada (Attorney General), 2017
FCA 30 at para. 74 (available on CanLII); Boogaard at para. 33.
A.
Was the decision regarding the requirement of a
multi-year demonstration of sustained impacts reasonable?
[31]
Essentially for the reasons given by the Federal
Court, I would conclude that the result reached and the reasons offered by the
Reviewer are reasonable. A fair reading of the Reviewer’s reasons demonstrates
that, contrary to what Dr. Gladman claims, the Reviewer did consider Dr. Gladman’s
arguments regarding the scope of the impact criterion at the DS-05 level and
concluded that it was a reasonable elaboration of this competency to require that
an incumbent demonstrate sustained multi-year impacts for promotion to the
DS-05 level. This is evident from a review of the Reviewer’s reasons in their
entirety and in particular from the third full paragraph on page 9 of the Reviewer’s
reasons (Appeal Book, Vol. 2, p. 432), which states:
An issue raised
by Dr. Gladman refers to the question of multi-year demonstration of high
impact. Quoting the DS [Salary Administration System], he points out that the
expression “multi-year” does not appear in the performance indicator for impact
at the DS 5 level. However, he also emphasizes that he has demonstrated high
creativity and impact for many years at DND. In the opinion of the reviewer,
the statements in the 2015 Minute Sheet regarding “sustained creativity and
impacts need to be shown within the context of current client requirements” and
“such high impact activities need to be demonstrated in a sustained, multi-year
fashion” describe reasonable expectations for a DS 5 scientist.
[32]
I also believe that it is a reasonable
elaboration of the impact competency to require an incumbent to demonstrate
sustained multi-year impacts for promotion to the DS-05 level due to the
various factors noted by the Federal Court as listed in paragraph 28, above. In
short, it is not impermissible to require a demonstration of sustained
multi-year impacts for promotion to the DS-05 level merely because the words “multi-year impacts” are not used in the rubric in the
DS Salary Administration System for this competency, but appear elsewhere in
the document. Given the nature of the work at this level, the overall
requirements of the DS-05 level and the importance accorded to the consistent demonstration
of an incumbent’s abilities in the DS Salary Administration System for
promotion to the DS-05 level, it cannot be said that the Reviewer’s endorsement
of the Committee’s interpretation of the impact criterion was unreasonable.
Thus, in my view, the challenge to the reasonableness of the decision and of
the Reviewer’s reasons fails.
B.
Were Dr. Gladman’s procedural fairness rights
violated?
[33]
As for the procedural fairness issue, like the
Federal Court, I would conclude that there was no violation of Dr. Gladman’s
procedural fairness rights. However, I reach that conclusion for different reasons.
[34]
Contrary to what the Federal Court held, it is
not a complete answer to Dr. Gladman’s procedural fairness assertions to point
to the lack of provision for the disclosure Dr. Gladman seeks in the text of
the IRM Addendum. The IRM Addendum is not a complete codification of his
procedural fairness rights. Rather, as Dr. Gladman submits, he has rights to
procedural fairness at common law as indeed section 2.1 of the IRM Addendum recognizes
(Appeal Book, Vol. 1, p. 214). In outlining the key principles applicable to
the IRM, section 2.1 of the IRM Addendum states:
The principles
of natural justice should apply to the process used for all applications for
recourse submitted by researchers. These principles include, among others, the
right to procedural fairness, including: the right to be heard, the right to
representation, and the right to ask questions and contradict evidence.
[35]
Thus, it is necessary to ascertain the scope of
Dr. Gladman’s common law procedural fairness rights. These are not settled by Boogaard
nor by Agnaou, which dealt with different regimes.
[36]
In the absence of binding authority on the
point, one must consider the factors listed in Baker to determine the
scope of Dr. Gladman’s procedural fairness rights in the IRM process. These
factors include: the nature of the decision and of the procedures followed by
the decision-maker in making it or the “closeness of
the administrative process to the judicial process”; the requirements
(if any) of the statute under which the decision is made and the role of the
particular decision within the statutory scheme; the importance of the decision
to the individual affected; the legitimate expectations of the affected
individual regarding what procedures would be followed; and the choices made by
the decision-maker regarding procedure, especially where the decision-maker is
afforded the right to establish its own procedures: Baker at paras.
23-28.
[37]
Here, several of these factors point to Dr.
Gladman’s procedural fairness rights being towards the lower end of the
spectrum. The process for the IRM is not adversarial but, rather, inquisitorial
or investigative, indicating that a lower degree of procedural fairness is required.
There is no statute that deals with the extent of disclosure required and the IRM
Addendum does not make specific provision for disclosure of the contents of the
Reviewer’s interviews – again pointing to a lower degree of procedural
fairness. The issue is doubtless one of importance to Dr. Gladman, but is
not as vital as might be the case if his employment were in jeopardy and, as
noted in Boogaard, employees have no right to a promotion. Thus, this
factor also points towards Dr. Gladman’s participatory rights being towards the
lower end of the spectrum.
[38]
The last two factors mentioned in Baker are
largely irrelevant to the present case. There is no indication of the nature of
Dr. Gladman’s expectations or any basis for him to have developed any particular
expectations as to what he would be told about whatever interviews the Reviewer
might have chosen to conduct. Finally, the last factor from Baker is
inapplicable as it points to procedural choices made for a particular class of
cases or types of situations by decision-makers of a more institutional nature
than a reviewer conducting a single review under a policy like the IRM Addendum.
Although the list of factors provided in Baker is non-exhaustive, Dr.
Gladman has not pointed to any additional elements for consideration.
[39]
Thus, the relevant factors point to Dr.
Gladman’s procedural fairness rights being at the lower end of the spectrum. However,
this does not mean that such rights are non-existent. As both parties concurred
during the hearing, Dr. Gladman’s procedural fairness rights must be found to include
the right to be informed of any prejudicial material facts that might have been
discovered by the Reviewer during the interview process and the right to make
submissions about such facts.
[40]
Unless the legislator provides otherwise, the
right to be informed of undisclosed adverse material facts being considered by
a decision-maker and to make submissions about them (in some form) is the
minimum level of fairness owed to anyone whose rights, privileges or interests
are being impacted by a public decision-maker. As noted by the Supreme Court of
Canada and this Court, such disclosure and a corresponding opportunity for
submissions prevent an impacted individual like Dr. Gladman from being kept in
the dark about a process that will ultimately decide for or against his or her interests
and ensure that the impacted individual is in a position to meaningfully challenge
a decision using the recourse that is available: I.W.A., Local 2-69 v.
Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 at pp. 338-339,
68 D.L.R. (4th) 524; Shephard v. Fortin, 2004 FCA 254 at para. 27, 242
D.L.R. (4th) 529; Bulat v. Canada (Treasury Board), [2000] F.C.J. No.
148 at para. 10, 252 N.R. 182 (F.C.A.); Danakas v. Canada (War Veteran’s
Allowance Board) (1985), 59 N.R. 309 at pp. 310-311, 10 Admin. L.R. 110 (F.C.A.).
In the public sector employment re-classification context – which is somewhat
akin to a case for a promotion – this Court has noted that claimants’ procedural
entitlements fall on the low end of the spectrum, but nonetheless include a
right to be informed of new adverse facts that arise and to respond to such
disclosure: McEvoy v. Canada (Attorney General), 2014 FCA 164 at paras. 20-21,
465 N.R. 384; Chong v. Canada (Attorney General) (1999), 170 D.L.R.
(4th) 641 at paras. 12-14, 236 N.R. 371 (F.C.A.).
[41]
Thus, the issue for determination is whether the
Reviewer discovered during his interviews of Committee members any material
fact that was prejudicial to Dr. Gladman. Dr. Gladman points to the fact
that his manager changed his mind about the merits of Dr. Gladman’s
promotion during the Committee deliberations as being a key prejudicial fact
that the Reviewer should have disclosed to Dr. Gladman.
[42]
I disagree. The fact that a single member of the
Committee changed his mind is not a relevant consideration to the review
undertaken by the Reviewer and thus need not have been disclosed to Dr. Gladman.
[43]
The fact that a Committee member changed his or
her views on Dr. Gladman’s promotion request was not a relevant issue for
consideration by the Reviewer for three reasons. First, and most importantly,
the DS Salary Administration System Committee process contemplates that Committee
members may change their minds – how else could a consensus decision short of a
vote be reached? Thus, the fact of a Committee member’s changing his or her
mind about the merits of a candidacy cannot be an abuse of authority or an
abuse of process as the very nature of the evaluation system implemented by the
employer – following consultation with the employees’ bargaining agent – contemplates
that such changes may occur. Secondly, the Reviewer is not charged with
re-conducting the evaluation of the merits of a promotion request but, rather,
with ensuring that the Committee’s evaluation was conducted in conformity with
the requirements of the DS Salary Administration System. The views of a single
member of the Committee are irrelevant to this issue. Finally Dr. Gladman’s
manager was but one member of a Committee that included eleven additional
regular members as well as the Chairperson and an HR professional. In addition,
Dr. Gladman’s manager was only one of two Committee members who appear to have
initially supported Dr. Gladman’s promotion. Thus, his changing his opinion had
minimal impact on the outcome of the Committee’s determination.
[44]
The lack of materiality of the change of heart by
Dr. Gladman’s manager during the Committee deliberations is demonstrated by
what Dr. Gladman says he would have submitted to the Reviewer had he known of his
manager’s changed views.
[45]
Dr. Gladman says that he would have first told
the Reviewer that he was dependent on his managers to explain his position and that
they drafted the PER. However, the former point was self-evident to the
Reviewer from the role assigned to employees’ managers in the promotion process
under the DS Salary Administration System and the latter point was fully
addressed by Dr. Gladman’s submission to the Reviewer of his own, longer draft
version of the PER.
[46]
Dr. Gladman secondly says that he would have
told the Reviewer that his manager’s actions were prejudicial to his promotion
application and inconsistent with what Dr. Gladman claims were his reasonable expectations
for the conduct of the Committee meeting. The former assertion is self-evident
and irrelevant to the inquiry that the Reviewer was conducting. As for Dr.
Gladman’s expectations, I disagree that it was reasonable for him to assume
that his manager would not alter his views during the Committee deliberations,
where it was open to Committee members to do so and the initial managerial
endorsement of his request for promotion was only obtained after the
intervention of the bargaining agent. In any event, whatever Dr. Gladman’s
expectations might have been as to his manager’s likely conduct, these are
simply irrelevant to the issues the Reviewer was tasked with examining.
[47]
Thus, while I appreciate that Dr. Gladman might
well have been upset and disappointed by his manager’s alteration of position
during the Committee deliberations, the failure of the Reviewer to disclose
this to Dr. Gladman before his report was completed does not constitute a
violation of Dr. Gladman’s procedural fairness rights.
V.
Proposed Disposition
[48]
I would accordingly dismiss this appeal with
costs. The parties submitted that, regardless of who succeeded on the appeal,
costs should be fixed in the all-inclusive amount of $2,500.00. I concur that
this is appropriate and would accordingly fix the costs of this appeal in that
amount.
“Mary J.L. Gleason”
“I agree.
Eleanor R. Dawson J.A.”
“I agree.
Yves de Montigny J.A.”
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