Docket: A-126-17
Citation:
2018 FCA 26
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CORAM:
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BOIVIN J.A.
RENNIE J.A.
LASKIN J.A.
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BETWEEN:
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STEVE MORRISEY,
THOMAS KINGSTON, GILLES LACHANCE, ROBERT MILLAIRE AND RANDELL LATTER
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Appellants
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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
BOIVIN J.A.
[1]
Messrs. Steve Morrisey, Thomas Kingston, Gilles
Lachance, Robert Millaire and Randell Latter (the Appellants) appeal from a judgment
of McDonald J. of the Federal Court (the Federal Court Judge) dated April 5, 2017
(2017 FC 345). The Federal Court Judge dismissed their application for judicial
review.
[2]
In their application for judicial review before
the Federal Court, the Appellants challenged the decision rendered in 2016 by a
Classification Grievance Committee (the Committee) which refused to reclassify
their positions within the Department of National Defence (DND) from a CS-01 to
a CS-02 level.
[3]
For the reasons that follow, I would allow the
appeal, set aside the judgment of the Federal Court, allow the application for
judicial review, quash the decision of the Committee, and remit the matter to
the Committee for a re-determination in accordance with these reasons.
I.
Background
[4]
In 2002, the DND created four new positions in
Halifax, Nova Scotia, with the job title “Client
Service Team Representative” (the Halifax positions). These positions
were classified at the CS-01 level. Another position for Shearwater,
Nova Scotia, with the same work description and the same job title, was
created at the same time and also classified at the CS-01 level (the Shearwater
position). The five Appellants, at one time or another, each held one of the
four Halifax positions (Appeal Book, Tab 5-E, p. 92).
[5]
In 2008, the Shearwater position was given a new
work description and was reclassified from CS-01 to CS-02. Following the
upgraded classification of the Shearwater position, the Appellants took various
steps to enquire whether their positions in Halifax could also be reclassified at
the CS-02 level.
[6]
In 2011, following a job content grievance filed
by the Appellants in 2010, their work description was amended but their
positions remained classified at the CS-01 level. The Appellants, therefore,
sought to have their positions reclassified from CS-01 to CS-02. As part of the
review process to reclassify the Halifax positions, the Classification Evaluation
Officers proceeded to review the classification of the Appellants’ positions
based on the new work description. The Appellants submitted the Shearwater
position as a “comparator position”. They argued
that the duties and responsibilities of the Halifax positions were materially
identical to the Shearwater position which had benefited from a reclassification
at the CS-02 level. In order to respect internal relativity with the Shearwater
comparator position, they submitted, the Halifax positions should also be
classified at the CS-02 level. However, the Classification Evaluation Officers determined,
by way of a Classification Consensus Report produced on July 12, 2012 (the
2012 Decision), that the amended Halifax positions should remain
classified at the CS-01 level (Appeal Book, Tab 5-B).
[7]
Following the 2012 Decision, the Appellants
filed a grievance. The Committee convened on June 8, 2016. Before the
Committee, the Appellants also emphasized the issue of internal relativity, once
again using the Shearwater position as the comparator position, in order to
persuade the Committee that the Halifax positions ought also to be reclassified
to the CS-02 level.
[8]
The Committee issued its decision on
July 13, 2016 (the 2016 Decision) and maintained the classification
of the Halifax positions at the CS-01 level. The Committee’s recommendation was
accepted by the Deputy Minister’s Delegate.
[9]
The Appellants sought judicial review of the Deputy
Minister’s Delegate’s decision. In fact, as noted by the Federal Court Judge, it
was the 2016 Decision, endorsed by the Deputy Minister’s Delegate, which was
under review, since the “de facto” decision-maker is the Committee (Federal
Court Judge’s reasons at para. 13; see Bulat v. Canada (Treasury Board),
252 N.R. 182 (F.C.A.), [2000] F.C.J. No. 148 (QL) at paras. 9-10; McEvoy
v. Canada (Attorney General), 2014 FCA 164, [2014] F.C.J. No. 762 (QL) at
para. 11; aff’ing McEvoy v. Canada (Attorney General), 2013 FC 685,
[2013] F.C.J. No. 756 (QL) at para. 42). The Appellants submitted before
the Federal Court that the Committee in its 2016 Decision failed to adequately
respond to their arguments with respect to internal relativity (Appellants’
Notice of Application for Judicial Review at para. 4; Appeal Book,
Tab 3, p. 26). Although the Federal Court Judge was of the view that
it would have been desirable for the Committee to further elaborate on the internal
relativity issue in its analysis, she concluded that its failure to do so was
not a reviewable error (Federal Court Judge’s reasons at para. 31). The Appellants
now appeal the Federal Court Judge’s decision to this Court.
II.
Issue
[10]
The only issue in this appeal is whether the
Committee’s 2016 Decision, as it relates to its analysis on internal
relativity, is reasonable.
III.
Analysis
A.
Standard of Review
[11]
When seized of an appeal from a judicial review
application disposed of by the Federal Court, this Court must step into the
shoes of the Federal Court and concentrate its analysis on the administrative
decision in question (Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 46 [Agraira]).
It must thus determine whether the Federal Court identified the proper standard
of review and applied it correctly (Agraira at para. 47).
[12]
In my view, the Federal Court Judge was correct
when she held that the standard of review was reasonableness (Federal Court
Judge’s reasons at paras. 15-17). However, I disagree with the Federal Court
Judge that the Committee’s 2016 Decision was reasonable.
B.
The Committee’s 2016 Decision
[13]
In order to meet the requirements of
reasonableness review, the Committee’s reasons, like any other administrative
decision, must demonstrate justification, transparency and intelligibility (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). While
adequacy of reasons should not be treated as a stand-alone basis for review,
the Committee’s reasons, when read as a whole, should allow this Court to
determine why it reached the conclusion that it did and whether that decision
falls within the range of reasonable outcomes (Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at paras. 14 and 16 [Newfoundland Nurses];
Rogers Communications Canada Inc. v. Maintenance and Service Employees’ Association,
2017 FCA 127, [2017] F.C.J. No. 635 (QL) at para. 23).
[14]
Moreover, in this case, there are requirements
imposed on the Committee by the Treasury Board’s Directive on Classification
Grievances, which came into effect on July 1, 2015 (Appeal Book, Tab 5-I,
p. 275). Specifically, section 3.8.1 of Appendix B of the Directive on
Classification Grievances entitled “Classification
Grievance Procedure” states that the Committee “responds
to the arguments and relativity put forward by the grievor and the grievor’s
representative”. In subsection (e), the Directive states that the
Committee’s analysis “should summarize the salient
points made in support of the grievance, including relativity put forward”.
Significantly, at subsection (g), the Directive further states that the
Committee has to “clearly indicate how the committee
arrived at its recommendation”, including by analyzing the arguments
made by the grievor, “in particular, the proposed
ratings, benchmark positions and relativity” (Directive, Appeal Book, Tab
5-I, pp. 287-288).
[15]
It is recalled that the Committee was seized of
a grievance filed by the Appellants following the 2012 Decision that maintained
the classification of the Halifax positions at the CS‑01 level. In that
respect, the 2012 Decision was the decision the Appellants were
challenging before the Committee. Given that the Appellants began taking action
when the Shearwater comparator position was upgraded to a CS-02, one of their
central claims before the Committee, both in their written representations and
in oral argument, was that a failure to upgrade the Halifax positions from a
CS-01 to a CS-02 would contravene the general principle that internal
relativity should be maintained.
[16]
In its 2016 Decision, the Committee
undertook an in-depth and detailed analysis with respect to various factors and
assessed the Appellants’ positions against various benchmark positions in order
to determine point ratings. As for the relativity issue, the Committee’s reasons
stated that it would discuss relativity in the Committee Deliberations section
of its analysis (2016 Decision, p. 4; Appeal Book, Tab 5-E,
p. 94). In the Committee Deliberations section, the Committee made the
following observations with respect to relativity:
With respect to the information provided for relativity, the
Committee could not discern a significant difference between the duties and
responsibilities of the GPs [Grieved Positions] and those of the comparator
position, 257840, IT Client Service Representative [the Shearwater Position].
(Appeal Book, Tab 5-E, p. 98)
[17]
The Committee thereafter concluded that the
Appellants’ job classification should be maintained at the CS-01 level.
[18]
In my view, the Committee’s reasons, when read as
a whole, do not permit a reviewing court to understand why the Committee
reached the conclusion it did. In stating that it “could
not discern a significant difference between the duties and responsibilities”
between the Halifax positions and the Shearwater comparator position, the
Committee appears to accept the Appellants’ argument with respect to internal
relativity, namely that there is no reason for the Halifax and Shearwater
positions to be classified differently. However, the Committee’s conclusion denies
the Appellants’ grievance without any further analysis and thus appears to
contradict its statement that there is no significant difference between the
positions.
[19]
The Attorney General of Canada (the Respondent)
submits that the Committee is not required to respond to every argument made by
the Appellants and that it is sufficient for it to address the major points in
issue. Yet, in light of the Appellants’ submissions and the factual background
to the initial classification grievance, internal relativity was not an
argument made in passing but was at the crux of the Appellants’ argumentation
(Presentation to Classification Grievance Committee, Appeal Book, Tab 5-D,
p. 83).
[20]
The Federal Court Judge expressed some
reservation with respect to the Committee’s reasoning on internal relativity
and observed that more on that issue might have been desirable (Federal Court
Judge’s reasons at para. 31). The Federal Court Judge then considered the
2012 Decision to seek justification not apparent in the 2016 Decision
regarding internal relativity. In my view, this attempt to supplement deficiencies
in the 2016 Decision by reference to the 2012 Decision was a bridge too far. Indeed,
although the 2012 Decision was before the Committee, and was in effect the
decision being grieved, the 2016 Decision makes no reference to it and
there is no indication of whether it was even considered. But more importantly,
if this Court were to assume that the Committee considered the
2012 Decision, as the Respondent effectively urges the Court to do, a
reading of the 2012 Decision does not clarify the apparent contradiction
in the Committee’s reasons. To the contrary, it reinforces it. In fact, the
Respondent is asking this Court to supplant, as oppose to supplement, the
Committee’s analysis (Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018]
S.C.J. No. 2 (QL) at para 24 [Lukács]). Indeed, the 2012 Decision
concludes that there are significant differences between the Halifax and the
Shearwater positions (Appeal Book, Tab 5-B, pp. 62-63) whereas the
2016 Decision concludes the opposite – i.e. it could not discern a
significant difference between the duties and responsibilities of the Halifax
and Shearwater positions. Hence, the Committee’s reasons on internal relativity
points in one direction and its conclusion points in the other. It leaves this
Court unable to “connect the dots” (Lloyd v.
Canada (Attorney General), 2016 FCA 115, 2016 D.T.C. 5051 at para. 24).
[21]
In my view, the Committee’s limited analysis on
internal relativity, compounded with its contradictory result, demonstrates
that it failed to grapple with this substantive live issue put forth by the
Appellants and which was necessary to dispose of the matter. Despite an organic
reading of the Committee’s 2016 Decision (Newfoundland Nurses at
para. 14) and the Respondent’s invitation to engage in speculation, I believe
that the Committee’s failure to address its contradiction with respect to
internal relativity was not within the range of options for the Committee under
the reasonableness standard given that the reasons for its decision are not
rendered in an intelligible, justified and transparent way (Lukács at
para. 27).
[22]
Finally, although the Respondent admits that the
Committee’s 2016 Decision with respect to internal relativity could have been
more detailed and that the Committee could have made a more explicit finding in
respect of internal relativity, she argues that, in any case, the benchmark
analysis must take precedence over relativity. I agree with the Respondent that
pursuant to the classification framework and more particularly the Directive on
Classification (Appeal Book, Tab 6, p. 312), the benchmark analysis should take
precedence over relativity. However, I also note that the Directive on
Classification indicates that the relativity analysis is a “valuable” one (Ibid). Not only was the Committee not
relieved of its duty to respond to the Appellants’ central argument – internal
relativity – but it also had to provide an analysis weighing, inter alia, the
proposed ratings, the benchmark positions and relativity as set forth at
section 3.8.1(g) of Appendix B of the Directive on Classification
Grievances (Appeal Book, Tab 5-I, p. 288). That is so because there would be no
point in ever considering that the benchmark analysis takes precedence over a “valuable” relativity analysis absent any relativity analysis
performed by the Committee.
IV.
Disposition
[23]
I would accordingly allow the appeal, set aside
the judgment of the Federal Court, allow the application for judicial review,
quash the decision of the Committee, and remit the matter to the Committee for
a re-determination in accordance with these reasons. I would grant costs fixed
in the agreed amount of $3,000 all-inclusive.
“Richard Boivin”
“I agree
Donald J.
Rennie J.A.”
“I agree
J.B. Laskin J.A.”
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