Date: 20051208
Docket: T-512-05
Citation: 2005 FC 1672
Ottawa, Ontario, December 8, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
ZUL NANJEE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the President of the Canadian Food Inspection Agency refusing to implement the decision of an Independent Third Party Reviewer appointed under the CFIA's Staffing Recourse Policy with respect to a complaint filed by Dr. Zul Nanjee. The reason given by the President for refusing to implement the decision was that the Third Party Reviewer "exceeded her jurisdiction by reviewing staffing actions that occurred after the selection process under review".
[2] The CFIA's Staffing Recourse Policy deems the decisions of Third Party Reviewers to be final, except in cases where the decision is based upon "errors of fact or omission". Dr. Nanjee seeks judicial review of the President's decision, asserting that there were no errors of fact or omission in the Third Party Reviewer's decision, and that, as a consequence, the President of the CFIA should have implemented the decision.
[3] For the reasons that follow, I am satisfied that there were no errors of fact or omission in the Third Party Reviewer's decision, and that the President therefore erred in refusing to implement her decision. As a consequence, the decision of the President will be set aside.
Background
[4] Dr. Nanjee is a veterinarian employed by the CFIA. He entered simultaneous competitions for four newly created Regional Veterinary Officer positions. Dr. Nanjee did not make it onto the eligibility list, nor did he seek to challenge the competitive process.
[5] Only two of the five people on the eligibility list accepted Regional Veterinary Officer positions, with the three others refusing the offers. The eligibility list expired on March 31, 2003, leaving two positions unfilled. The CFIA identified several options available to it in order to fill the remaining positions, ultimately deciding to run a new competition for one of the positions, and transferring an employee to fill the other. Dr. Nanjee was not eligible to participate in the competition because of geographic restrictions.
[6] Dr. Nanjee challenged these staffing decisions on six grounds. Only the first ground of complaint is in issue in this case. This allegation reads:
Senior CFIA management communicated to employees that these positions would be filled by competition only. The initial reason given for cutting off the eligibility list at 5 persons was "We are confident we can staff positions from the list". Other candidates met all the requirements of the position, however, after the list was exhausted, it was not extended. Other methods of staffing, i.e. transfer from the Toronto region and use of other eligibility lists were used to staff these positions. This is in violation of the openness, competency, fairness and non-partisanship staffing values.
[7] The Third Party Reviewer found in Dr. Nanjee's favour in relation to this ground of complaint. She found against him in relation to two other grounds, and either did not deal with, or only partially addressed, the remaining grounds.
[8] In relation to the allegations in issue in this application, the Third Party Reviewer found that the CFIA's actions in filling the two Regional Veterinary Officer positions did not respect the CFIA's statutory obligations, staffing policies or staffing values. In this regard, the Reviewer found that the effect of the CFIA's action was to deny Dr. Nanjee any recourse rights.
[9] In coming to this conclusion, the Third Party Reviewer considered a number of facts. These facts were not in dispute between the parties. Where the parties differed was in relation to the relevance of these facts. Specifically, it was the position of the CFIA that the staffing actions in question took place after the selection process in which Dr. Nanjee participated, and that, as a result, the Third Party Reviewer had no jurisdiction to consider them.
[10] At the hearing, this issue was characterized as whether Dr. Nanjee had the necessary standing to complain about a staffing action in which he was not involved.
[11] Neither party sought judicial review of the Third Party Reviewer's decision.
CFIA's Staffing Recourse Policy
[12] The relevant portion of the CFIA's Staffing Recourse Policy provides that:
The [Third Party Reviewer or Independent Third Party] findings will be deemed to be the final staffing recourse decision except in cases where the Level 3 manager considers the ITP findings to be based on errors of fact or omission.
In such cases, the Level 3 Manager may, within 10 days of the presentation of the ITP findings, make recommendations to the President to review the ITP findings. The Level 3 manager will notify the complainant, in writing, within 10 days of the presentation of the ITP findings, that the ITP findings have been referred to the President for review. The President will review the ITP findings and present the final staffing recourse decision, in writing, to the complainant and the Level 3 manager.
Events After the Receipt of the Third Party Reviewer's Decision by the CFIA
[13] Following the decision of the Third Party Reviewer, a memorandum was prepared for the CFIA's Vice-President, Operations by the CFIA's Executive Director. This memorandum recommended that the President of the CFIA review the findings of the Third Party Reviewer as they were allegedly based upon an error of fact or omission.
[14] Under the heading "Issues", the Executive Director's memo states that "The other staffing options (subsequent to the disputed selection process) exercised by management were not the subject of this complaint, and provided for recourse separately within themselves." In reviewing various potential options available to the President of the CFIA, the fourth option identified by the Executive Director was that "The President could set aside the [Third Party Reviewer's] findings in regard to Complainant Allegation #1, since it was outside of the [Third Party Reviewer's] jurisdiction." [emphasis added]
[15] As part of Option #4, the Executive Director went on to suggest that a second Third Party Reviewer be appointed to deal with Allegations 4, 5 and 6 - that is, the allegations that were not clearly dealt with by the original Third Party Reviewer. The Executive Director recommended that "the President should select Option #4 above and rule on whether the Third Party Reviewer exceeded her jurisdiction." [emphasis added]
[16] The CFIA's Vice President, Operations then prepared a memorandum to the President, which indicates that the findings of the Third Party Reviewer and the memo of the Executive Director had been reviewed by the Corporate Staffing Unit, and that the CSU agreed that the Third Party Reviewer had exceeded her jurisdiction with respect to the allegation that forms the subject matter of this application.
[17] The Vice-President's memorandum concluded with the recommendation that the President should sign a letter advising Dr. Nanjee that he would not be implementing the decision of the Independent Third Party Reviewer as she "exceeded her jurisdiction by reviewing staffing actions that occurred after the staffing process under review".
[18] The President of the CFIA accepted this recommendation, and by letter dated February 11, 2005, Dr. Nanjee was advised that the President had determined that the Third Party Reviewer had exceeded her jurisdiction by reviewing staffing actions that occurred after the staffing process under review.
[19] The President went on to advise Dr. Nanjee that as his Allegations 4, 5 and 6 were not fully addressed by the Third Party Reviewer, he had engaged a second Third Party Reviewer to review these allegations.
[20] The President concludes by stating that after he received the recommendations of the second Third Party Reviewer "I will advise you of my final decision on the outstanding allegations". [emphasis added]
[21] I am advised by the parties that as a consequence of the commencement of this application for judicial review, this second review has been suspended, so as to avoid the possibility of conflicting decisions regarding the same matter. I have also been advised by the parties that, subsequent to the decision of the President, the CFIA offered to appoint a new Third Party Reviewer to review Dr. Nanjee's entire complaint, including Allegation #1, and that this offer was refused by Dr. Nanjee.
Issues
[22] There are three issues on this application. They are:
1. Is Dr. Nanjee's application for judicial review premature?
2. If the answer to the first question is "no", what is the appropriate standard of review to be applied to the decision of the President of the CFIA? and
3. Did the President of the CFIA commit a reviewable error in refusing to implement the decision of the Independent Third Party Reviewer?
Is the Application for Judicial Review Premature?
[23] The CFIA argues that Dr. Nanjee's application for judicial review is premature, submitting that he should be required to wait until the second Third Party Reviewer has completed his review of the matter before commencing proceedings in this Court. According to the CFIA, to do otherwise would result in a 'fragmented approach', with the potential for there being two different Third Party Reviewers both considering the same complaint, and potentially inconsistent results.
[24] Moreover, the CFIA says that unless the second Third Party Reviewer is allowed to go ahead and complete his task in relation to Dr. Nanjee's allegations 4, 5 and 6, the CFIA would be put in the position of having to implement the decision of the first Third Party Reviewer in relation to Dr. Nanjee's first allegation, without having the benefit of knowing whether there were any others problems with the process as was suggested by Dr. Nanjee's other allegations.
[25] I do not agree that this application is premature. A review of the President's February 11, 2005 letter makes it clear that the President finally determined the matter as it related to Dr. Nanjee's first allegation. There was no suggestion in the President's letter that Allegation #1 would be considered any further by the second Third Party Reviewer, and thus there is no potential for inconsistency in the results.
[26] Indeed, the President's letter makes it clear that the second Third Party Reviewer would only be dealing with Allegations 4, 5 and 6. In this regard it bears repeating that the letter concludes with the President advising Dr. Nanjee that once the President received the report of the second Third Party Reviewer, he would advise Dr. Nanjee of his final decision in relation to "the outstanding allegations".
[27] It should also be noted that if Dr. Nanjee were required to wait until the report of the second Third Party Reviewer was considered by the President of the CFIA, and a decision rendered in this regard before commencing judicial review proceedings in this Court, he would then run afoul of Rule 302 of the Federal Courts Rules, which limits an application for judicial review to the review of a single decision.
[28] Finally, while the CFIA has attempted to rely on what transpired in the course of settlement discussions after the President rendered his February 11, 2005 decision, these discussions are of no assistance, in my view, in determining whether this application for judicial review is premature, nor are they of any assistance in determining the legality of the President's decision at the time that it was made.
[29] As a consequence, I am satisfied that it is appropriate to entertain Dr. Nanjee's application for judicial review at this time.
What is the Appropriate Standard of Review to Be Applied to the President's Decision?
[30] A review of the four factors outlined by the Supreme Court of Canada in cases such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19">2003 SCC 19, discloses that:
i) The Canadian Food Inspection Agency Act does not contain a privative clause. This is ordinarily a neutral factor, insofar as the determination of the standard of review is concerned. While it bears noting that the Staffing Recourse Policy clearly contemplates that the decision of the President be final, thus suggesting that the decisions of the President be accorded some deference, the Policy also contemplates that the decisions of Third Party Reviewers are also to be final, except in limited situations. In these circumstances, I am of the view that this factor does not weigh in favour of or against deference;
ii) As the Chief Executive Officer of the CFIA, the President is clearly knowledgeable with respect to the operational needs of and the environment within the agency, as well as with respect to the workings of the Staffing Recourse Policy. However, the President of the CFIA has no special expertise with respect to the issue in this case: that is, the determination of whether the legal preconditions of the Staffing Recourse Policy have been satisfied, so as to give him jurisdiction to interfere with the recommendations of a Third Party Reviewer. In this regard, the expertise of the Court is clearly superior to that of the President;
iii) Insofar as the purpose of the legislation is concerned, section 13 of the Canadian Food Inspection Agency Act grants the agency control over the appointment of its employees and the way in which it deals with staffing complaints. This suggests some deference should be accorded to the decisions of the President.
iv) Finally, the parties agree that the question under review is whether the president of the CFIA was wrong in law in finding that he had jurisdiction to refuse to implement the decision of the Third Party Reviewer. This question is jurisdictional in nature, suggesting little deference.
[31] After consideration of these factors, I am of the view that while it is at least arguable that having regard to the nature of the issue, and the matter of relative expertise, the decision of the President should be reviewed against a standard of correctness, at a minimum the decision must be reasonable.
[32] With this understanding of the standard of review, I turn now to consider the merits of Dr. Nanjee's application.
Did the President of the CFIA Commit a Reviewable Error in Refusing to Implement the Decision of the Independent Third Party Reviewer?
[33] The President of the CFIA only has the power to refuse to implement the findings of a Third Party Reviewer where those findings are based upon "errors of fact or omission". While the CFIA's characterization of the factual error allegedly made by the Third Party Reviewer has evolved somewhat over time, in essence, what the CFIA takes issue with is the ability of a Third Party Reviewer to consider the propriety of a staffing action where the complaining employee did not participate in the process in question.
[34] A review of the Third Party Reviewer's decision discloses that the Reviewer did not misunderstand or misconstrue the facts of this case. She clearly understood that there were several selection processes in issue, and that Dr. Nanjee did not participate in the subsequent processes. Indeed, the Reviewer properly understood that it is the fact that he was precluded from participation in those processes that forms the very heart of Dr. Nanjee's complaint.
[35] There may well be a legitimate question as to whether an employee does indeed have standing to file a complaint under the CFIA's Staffing Recourse Policy in such circumstances. However, that is a legal question and not a factual one. If the CFIA had concerns in this regard, it would have been open to it to seek judicial review of the decision of the Third Party Reviewer on the basis that she had committed a jurisdictional error. Having failed to do so, it was unreasonable for the President of the CFIA to simply disregard the findings of the Third Party Reviewer by characterizing what was a legal question as a factual one.
Conclusion
[36] For these reasons, the application for judicial review is allowed, with costs.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, with costs.
To the extent that the decision of the President of the CFIA dated February 11, 2005 relates to Allegation #1 of Dr. Nanjee's complaint, that decision is set aside. The matter is remitted to the President to implement the decision of the Third Party Reviewer as it relates to Allegation #1 of Dr. Nanjee's complaint.
"Anne Mactavish"
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