Date: 20060918
Docket: T-2202-05
Citation: 2006 FC 1117
Ottawa, Ontario, September 18, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
PROFESSIONAL ASSOCIATION OF
FOREIGN SERVICE OFFICERS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision made by the Deputy Minister of Foreign Affairs Canada (the Deputy
Minister) to conduct a deployment exercise into the FS-2 and FS-3 job
classifications. The decision, dated December 8, 2005, announced to all
employees of the Department of Foreign Affairs Canada (FAC), explained that FAC
was proceeding with a deployment exercise that would permanently transfer or
deploy employees from other job groups into the Foreign Service Group (the FS
Group).
BACKGROUND
PSEA,
1985 and PSEA, 2003
[2]
The PSEA is the statute that governs staffing
decisions within the federal Public Service. It establishes the authority,
procedures and criteria by which the federal government can staff particular
positions in the public service.
[3]
Prior to December 31, 2005, appointments to
positions with the federal Public Service were governed by the PSEA, 1985. The Public
Service Modernization Act, 2003, c. 22 revised the PSEA, effective December
31, 2005 (PSEA, 2003).
PAFSO
[4]
The applicant, the Professional Association of
Foreign Service Officers (PAFSO), is a professional association that represents
approximately 1200 active Foreign Service (FS) employees. PAFSO is also the
certified bargaining agent for the FS Group pursuant to the Public Service
Labour Relations Act, 2003, c. 22 and has been the legal
bargaining agent for Foreign Service officers since 1968.
The FS Group
[5]
The FS Group is an occupational classification
within the federal Public Service of Canada. Employees in the FS Group are
primarily involved in the planning, development, delivery and promotion of Canada’s diplomatic, commercial, human
rights, cultural, immigration, and international development policies and interests
in foreign countries and in international organizations.
FS Group Classification
[6]
The FS Group classification standard was first
introduced in the late 1960s or the early 1970s to coincide with the
introduction of collective bargaining. At one time there were many levels of FS
officers, but by the mid-1980s they were compressed into two: FS-1 and FS-2.
All candidates would enter at the FS-1 level with opportunities for promotion
to FS-2 being dependent upon the number of vacancies at that level.
[7]
During collective bargaining in 1998, the
applicant and the Treasury Board Secretariat (the Treasury Board) discussed and
agreed to the introduction of the Foreign Service Development Program (the
FSDP). The FSDP was designed as an occupational training program that would
allow entry level recruits to move automatically to the working only level
(FS-2) after successful completion of the five-year program. As the remaining
FS-1 employees were promoted, the FS-1 level was to be phased out, leaving only
the FSDP and FS-2 level positions.
[8]
Following a major review in 2004, the federal
government introduced two more
FS classifications. The new FS classification structure
now provided for four levels: FSDP, FS-2, FS-3, and FS-4. At this time,
the federal government also reduced the length of level one, the probationary
FSDP, from the existing five years to three years.
[9]
As part of the conversion process to the new
classifications, the Treasury Board decided that FS-2 employees under the old
standard would be converted to FS-3 in the new standard. The new FS-4 level was
created without any employees in it, with the view that it would be filled by
competition.
[10]
Under the new classification plan, employees who
successfully complete the FSDP are promoted automatically to the FS-2 level.
Promotion to the FS-3 level requires a vacancy at that level. Given that all
employees under the old FS-2 classification standard were converted to the new
FS-3 level, it is unlikely there will be vacancies at this level for some
time. FAC has estimated that it will take at least seven years to regularize
this situation. Employees are filling the positions classified as FS-4 on an ongoing
basis.
Proposed Lateral Entry Exercise
[11]
For the last several years, the competitive
process for entry into the Foreign Service has not yielded enough candidates to
fill the increasing number of vacant positions that require staffing.
[12]
Between 2001 and the fall of 2003, discussions
took place between the applicant and FAC, then-called the Department of Foreign
Affairs and International Trade (DFAIT), to address the high level of vacancies
in the FS Group. Ultimately, DFAIT explained that it planned to conduct a
single competition process that would be open to both FS and non-FS employees.
This would potentially result in “lateral entry” that would give public service
employees in other occupational groups the opportunity to join the FS Group at
a classification higher than entry level. Historically, the only way to enter
the FS Group, even for existing public service employees, was through a
rigorous and fiercely competitive entry level recruitment process.
[13]
During their final meeting, DFAIT officials
acknowledged that appointing non-FS employees to FS-2 level positions would
create salary inequities. Pay regulations would normally require that employees
appointed to new positions in different classifications should receive a salary
increment level comparable to their previous position. Consequently, DFAIT’s
proposal could have resulted in FS employees with several years of experience
being paid less than newly appointed FS employees in the same FS classification
level.
[14]
The applicant advised DFAIT that it recognized
the need for a lateral entry exercise, but could only endorse a process that treated
existing FS employees fairly and protected the integrity of the entry level
recruitment process. The applicant explained that two measures were needed:
i. a priority for appointment be given to
qualified FSDP and FS-1 candidates in the competitive selection process; and
ii. accelerated pay increments for existing
FS-2 level employees in order to address salary inequities.
[15]
Although DFAIT representatives were not prepared
to give FS employees priority in the competitive selection process, indicated they
would give favourable consideration to accelerated pay increments. The
applicant was subsequently advised that DFAIT would not entertain pay
increments after all.
[16]
The applicant informed its members about DFAIT’s
proposed “lateral entry” exercise and explained the concerns it had regarding
the implications for those in the FS Group. For unknown reasons, DFAIT
subsequently decided not to proceed with the lateral entry exercise.
Announcement of Deployment Exercise
[17]
On December 8, 2005, the Deputy Minister
announced the launch of a deployment exercise for entry into the FS Group at
the FS-2 and FS-3 levels. It read in part,
The purpose of
this exercise is to meet immediate operational requirements for experienced,
highly skilled officers at the more senior levels of the FS group. It will also
provide non-FS employees with the opportunity to deploy into the FS group.
[18]
The applicant had heard of this plan for the
first time only a few days before it was announced. In a telephone call, FAC had
advised the applicant’s representative that it would shortly proceed with a
“deployment” exercise, as opposed to a lateral entry promotional exercise, to
fill positions at the FS-2 and FS-3 levels. During the discussion, the
applicant’s representative expressed serious concern with the plan because it
meant 60-80 positions would be filled without allowing current FS-1 and FS-2
employees the opportunity to compete. The applicant’s representative also
reminded FAC of the concerns raised in 2003, but was informed that these points
would not be considered because the decision had already been made and was
final. The telephone conversation was the first and only discussion the
applicant had with FAC on the issue of deployment prior to it being announced
on December 8, 2005.
Treasury
Board Deployment Policy (TBDP)
[19]
FAC contends that it is carrying out this
deployment pursuant to the Treasury Board Deployment Policy (the TBDP), which
took effect on June 1, 2000, as it decided to adopt this policy rather than
create its own. The TBDP sets forth general objectives and requirements and, in
two appendices, stipulates a number of directives and guidelines with respect
to deployment. The TBDP defines “deployment” as follows:
A deployment is the
move of an employee from one position to another within the same occupational
group or, where authorized by regulations of the Public Service Commission of
Canada (PSC), to another occupational group. A deployment may be made for an
indeterminate or a specified period and, unlike assignments or secondments, an
employee gains incumbency in the positions to which he or she is deployed and
therefore assumes the classification level and any terms and conditions of
employment of the new position. A deployment cannot result in a promotion or a
change of tenure. A deployment requires the consent of the employee concerned
except in those situations where a willingness to be deployed is a condition of
employment of his or her current position.
[20]
The parts of the TBDP relevant to the case at
bar are as follows:
Policy
requirements
Deployments are
to be made in a fair, reasonable, and transparent manner, taking into account
the needs of the organization and the legitimate career interests and
aspirations of employees.
Departments must
establish deployment policies and procedures that respect the directives made
by the Treasury Board pursuant to sections 34.2(1), 34.3(1) and 34.3(3) of the Public
Service Employment Act (see Appendix A) or any regulations made under
section 37.1(1) of that Act and that:
-
take into consideration the needs and rights of
employees subject to workforce adjustment;
[…]
Departments must
consult with their bargaining agents on the establishment of their deployment
policies and procedures.
ISSUES
1. What is the applicable standard of review?
2. Does the deployment exercise violate
subsection 34.2(1) of the PSEA, 1985 and the Treasury Board Deployment Policy
(TBDP)?
ANALYSIS
[21]
I note at the outset that the new PSEA, 2003
came into force on December 31, 2005, after the decision to conduct a
deployment exercise was made on December 8, 2005. The former PSEA governs the
case at bar because the deployment exercise itself was decided prior to
the effective date of the new PSEA, 2003. However, the issue is academic
considering that the mandatory requirement to observe the Treasury Board’s
directives is continued in the new Act.
1. Standard of Review
[22]
As is the case in any judicial review, the Court
must determine the appropriate standard of review using the pragmatic and
functional approach. This analysis requires the Court to consider four factors:
the presence or absence of a privative clause; the relative expertise of the
tribunal; the purpose of the statute and the provision in question; and the
nature of the problem (Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982).
[23]
Turning to the first factor, the PSEA, 1985 does
not contain a privative clause. Regarding the second factor, there is no
question that the deputy head of a department has greater expertise than the
Courts in making staffing decisions under the PSEA, 1985. However, the Courts
generally have greater expertise in legislative interpretation. This second
factor is closely related to the fourth factor, the nature of the question. The
applicant contests the process not the merits over which the Court has
greater expertise on such an
issue. Accordingly, this factor favours less deference.
[24]
In Davies v. Canada (Attorney General), 2005
FCA 41, [2005] F.C.J. No. 188 (F.C.A.) (QL), the Federal Court of Appeal stated
that the primary purpose of the PSEA, 1985, was to safeguard the public
interest by ensuring that appointments to the public service were based on
merit and were free of discrimination and partisanship. As for the purpose of
the particular deployment provisions in question, I draw upon the words in the
TBDP which, in the preamble, provide a number of purposes of deployment
generally, such as providing an environment that encourages the movement of
employees in order for them to develop and meet organizational needs that can
result in benefits to organizations, including improving operational efficiency
and addressing individual career interest. Accordingly, the statute and
provision are both polycentric in nature as they balance the interests of the
government with those of individual public service employees. This calls for
greater deference.
[25]
The parties dispute the final factor, the nature
of the problem. The respondent submits that the nature of the problem is
discretionary and that administrative law has traditionally approached the
review of discretionary decisions separately from those seen as the
interpretation of rules of law. The rule has been that decisions classified as
discretionary may only be reviewed on limited grounds, such as bad faith, improper
purpose, and irrelevant considerations. In my view, while the decision made by
the Deputy Minister was indeed a discretionary one, the issue before this
Court is whether the Deputy Minister’s decision was in accordance with the
requirements of the PSEA, 1985 and the TMDP. Therefore, this factor also calls
for less deference.
[26]
In light of the foregoing, I believe that the
appropriate standard of review is correctness.
2. Does the deployment exercise violate
subsection 34.2(1) of the PSEA, 1985 and the Treasury Board Deployment Policy?
[27]
Prior to 1993, staffing of the public service
could only be accomplished by way of a merit-based selection process
culminating in an appointment to a particular position. For a time, the government had
attempted to circumvent the appointment process in some cases by using lateral
transfers between positions until the Federal Court ruled in Alliance of
Canada v. Canada (Attorney General), [1992] 2 F.C. 181 (T.D.) that this was
not authorized by the PSEA. The PSEA was subsequently amended to allow for the
“deployment” of an employee from one position to another without a competitive
selection process. Both the former PSEA, 1985 and the newly enacted PSEA, 2003
provide for an administrative process with respect to deployments: PSEA, 1985,
Part III.1; PSEA, 2003, Part III.
[28]
According to section 34.2, deployments under
Part III.1 of the PSEA, 1985 are required to meet three statutory conditions:
(i) the deployment cannot result in a promotion or change of tenure; (ii) the
employee must consent to the action; and (iii) the deployment has to be
conducted in a manner approved by the Treasury Board.
[29]
With respect to the last condition, which is
reflected in subsection 34.2(1) of the PSEA, the Treasury Board has provided
direction in the form of the TBDP.
[30]
Before considering whether the deployment
exercise itself violates the TBDP, the Court must turn itself to the question
of whether or not that policy is binding. In Vavrecka v. Canada (Public Works and Government
Services), (1996), 110 F.T.R. 115 (T.D.), the Court
held that there is an implied direction that departments comply with Treasury
Board policies in making deployments. Justice Strayer states at paragraph 12:
Both of these
cases involved the application of the Deployment Policy and Deployment
Guidelines of Treasury Board. In both cases legal effect was given to these
documents. However there was clear statutory authority for that Policy and
Guidelines: section 34.2(1) of the Public Service Employment Act R.S.C. 1985,
c. P-33 specifically required departments to establish deployment policies and
procedures in accordance with the directives made by the Treasury Board, and
Treasury Board had issued such directives.
[31]
In Nieboer v. Canada (1996) 121 F.T.R. 29,
the Court cited Vavrecka and held: “Given the express language used by
Parliament in subsection 34.2(1) of the Act, it is clear that departments are
required to conduct deployment actions in accordance with the Treasury Board
guidelines (at para. 17).”
[32]
While these two cases dealt with a different
issue, namely, the advance notice of upcoming deployment opportunities, the
general principle arising from each could not be clearer. The TBDP is a
binding policy and, thus, departments are required to follow it.
[33]
The TBDP clearly mandates that all departments
must establish their own deployment policies and procedures which respect the
Treasury Board’s directives. FAC did not establish a deployment policy. Accordingly,
it cannot be said that FAC conducted its deployment exercise “in such a manner
as Treasury Board may direct”. The TBDP further states, in mandatory language,
that:
Departments must
consult with their bargaining agents on the establishment of their deployment
policies. [Emphasis added]
[34]
According to the applicant, the certified bargaining
agent, it was never consulted at any time “on the establishment” of a
departmental deployment policy. This includes consultation on whether or not
the establishment of a separate departmental policy was necessary or advisable.
[35]
The respondent contends that FAC adopted the
TBDP and did not create its own policy. In my view, however, this does not
change the fact that the applicant was never consulted regarding such an
adoption or on the applicant’s views of whether the establishment of a policy
specific to FAC was necessary or advisable. Moreover, I do not accept the
respondent’s submission that the discussions which took place more than two
years prior to the decision regarding lateral entry met the duty imposed by the
TBDP to discuss the issue of deployment. Given that the TBDP has force of law,
the obligation to consult the bargaining agent is a statutory condition
precedent for the exercise of the deployment power. This failure vitiates the
decision of the Minister and is sufficient to dispose of this application.
[36]
The
judicial review is allowed. The decision of the Deputy Minister of Foreign
Affairs Canada dated December 8, 2005 is set aside. The matter is referred back
to the Deputy Minister to be determined in accordance with these reasons. The whole
with costs.
JUDGMENT
The judicial review is allowed.
The decision of the Deputy Minister of
Foreign Affairs Canada dated December 8, 2005 is set aside. The matter is
referred back to the Deputy Minister to be determined in accordance with these
reasons.
The whole with costs.
“Danièle
Tremblay-Lamer”
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