Bizier v. Canada (Attorney General), 2005 FC 8

Date: 20050106

Docket: T-1017-03

Citation: 2005 FC 8

Ottawa , Ontario, the 6th day of January 2005

Present :THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                          DONAT BIZIER, BENOÎT PATENAUDE, PAUL BOUCHER

JEAN-MARC COMEAU, DANIEL MORIN, GAÉTAN LOISEAU

                                                                                                                                           Applicants

                                                                           and

                                          ATTORNEY GENERAL OF CANADA and

                                                             MARCEL HACHEZ

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]         This is an application for judicial review under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the Act), of a decision by Janine Kean, Chairperson (the Chairperson), Public Service Commission (the Commission) Appeal Board (Appeal Board), dated May 20, 2003, dismissing the applicants' appeal of the appointment of Marcel Hachez (Mr. Hachez) to the position of "project manager" at the EG-06 group and level on the grounds that it was consistent with the merit principle. The applicants are seeking the following:

-            that the Chairperson's decision be set aside and the matter referred to the Chairperson with a direction to allow the appeal and order that a competition be held;

-            alternatively, that the matter be referred to the Chairperson with a direction to consider whether the position at issue is a new position or a reclassified position; and

-            that the Court make any other order it deems appropriate.

ISSUES

[2]         There are two issues here:

-            Did the Chairperson err in law or in fact in determining that she lacked jurisdiction to decide whether the case involved a new position or a reclassified position?

-            Did the Chairperson err in law or in fact in determining that the appointment of Mr. Hachez to the position of project manager was consistent with the merit principle?

CONCLUSION

[3]         For the reasons given below, I would answer both questions in the negative.

THE FACTS

[4]         From 1995 to 1998, the Department of National Defence (the Department) undertook many organizational changes with a view to reducing its staff. The objective of the operation was to examine closing the military base in St-Jean-sur-le-Richelieu. In the context of this operation, "designer" positions were likely to be cut.

[5]         In the spring of 1996, Mr. Hachez, then a "chief Estimator/designer" (EG-05), was assigned new duties while holding a "project manager" position at the EG-05 group and level. Before Mr. Hachez's appointment to the project manager position, a similar position had been briefly mentioned in a memorandum to all the designers in the region. Mr. Hachez was appointed without a competition being held.

[6]         On April 1, 1997, all of the applicants, as well as Mr. Hachez, had EG-05 positions, even though their titles varied: "preventive maintenance coordinator", "designer" or "project manager". On June 1, 1998, as a result of the classification audit procedure by the Department, the "designer" position was changed to "project manager", without in any way altering the group and level of the positions, which remained EG-05.

[7]         On December 23, 1999, Mr. Hachez filed a grievance contesting the EG-05 classification of his "project manager" position. He withdrew the grievance, however, since the Department had promised him that his position would be reclassified. On October 16, 2000, his position was reclassified to EG-06, retroactive to April 1, 1997.

[8]         On November 14, 2002, a notice of right of appeal was issued, indicating that the proposed appointment was based on subsection 10(1) of the Act; the notice was then amended on November 22, 2002, to state subsection 10(2). Following this notice, the applicants appealed the appointment of Mr. Hachez. The hearing was held on April 10, 2003.

IMPUGNED DECISION

[9]         The Chairperson made two determinations:

-           That she did not have to decide whether Mr. Hachez's position was a reclassified position or a new position; and

-            That the merit principle had been respected during the selection process, even though the Department had not assessed Mr. Hachez's qualifications at the time of his appointment.

[10]       On the first issue in dispute, the Chairperson relied on the decision of Tremblay-Lamer J. in Larose v. Canada (Attorney General) F.C.J. No. 1467 (F.C.T.D.)(QL):

In that case, Madam Justice Tremblay-Lamer analyzes various decisions rendered by the Federal Court and, at paragraph 41, reaches the following conclusion:

The result is that unless the legality of the decision made by the classification officer is questioned (a point which is exclusively a matter for the Federal Court Trial Division on review: Viola, supra) [Canada (Attorney General) v. Viola, [1991] 1 F.C. 373], the ' had no choice but to affirm the classification officer's decision, which it did in the case at bar.

Therefore, there are no grounds for me to make a decision regarding the part of the allegations that question the validity of the reclassification decision and submit that this case involves a new position.

[11]       On the second issue in dispute, in the opinion of the Chairperson there was a problem in light of the fact that the project managers appeared to be performing the same duties as Mr. Hachez, despite the fact that the positions were classified at a lower level. She also expressed the hope that the Department would take the necessary steps to straighten out this situation. However, the Chairperson indicated that even if there were irregularities in the procedure followed by the Department in appointing Mr. Hachez and the subsequent reclassification of his position, there was nothing to indicate that the candidate did not meet all of the requirements of the reclassified position, and accordingly there was no reason to allow the appeal.

RELEVANT LEGISLATION

[12]       This decision involves the process through which an employee may be appointed to a position without a competition, as well as the right to appeal such an appointment. The relevant provisions are: section 10, subsections 21(1.1) and 13(1) of the Act and paragraph 4(2)(b) of the Public Service Employment Regulations, 2000, SOR/2000-80 (the Regulations). These provisions provide as follows:

ALLEGATIONS OF THE PARTIES

The Applicants

[13]       The applicants' first allegation is that the Chairperson erred in law in determining that she lacked jurisdiction to decide whether the position now held by Mr. Hachez was a new position or a reclassified position.

[14]       The applicants submit that in order to determine whether the merit principle was respected, it would first be necessary to determine whether the position in question was a new position or an existing position that had been reclassified. In other words, an appointment under subsection 10(2) of the Act would only be justified if the actions of the employer satisfy the criteria of paragraph 5(2)(b) of the Regulations. The applicants contend that they do not understand Tremblay-Lamer J.'s decision in Larose, supra - the decision on which the Chairperson based her finding that she lacked jurisdiction - since Larose is itself based on Canada (Attorney General) v. Laidlaw [1998] F.C.J. No. 615 (F.C.A.)(QL), and Beaudry v. Canada (Attorney General), [2000] F.C.J. No. 37 (F.C.T.D.)(QL), aff'd [2000] F.C.J. No. 1876 (F.C.A.)(QL), which (according to the applicants) state that the Appeal Board does have the authority to make such a determination:

It is trite law¼that in order to determine whether the merit principle has been properly applied, "and the individual merit principle is as much the merit principle as the relative merit principle", an appeal board must consider what "[a] department has objectively done as a matter of fact and not what it may have intended or understood it was doing as a matter of law" . . . (Doré, supra [Doré v. Canada, [1987] 2 S.C.R. 503], page 510, LeDain J.). [Laidlaw, supra, at paragraph 16.]

***

In both of these cases [Canada (Attorney General) v. Landriault, [1983] 1 F.C. 636 (FCA) and Laidlaw, supra], a person was held to be entitled to appeal an appointment under section 21 to challenge the method of appointment chosen, rather than the appointment itself. In Landriault, the applicant challenged the area of selection determination. In Laidlaw, the applicant challenged the determination that a position was not a reclassification. It is clear that these determinations, as questions of fact or mixed fact and law, were within the jurisdiction of the Appeal Board. [Beaudry, supra, at paragraph 18.]

[15]       The applicants submit that without this jurisdiction it would be very easy to circumvent the merit principle by describing a change in an employee's duties as a "reclassification". They also cite the Supreme Court of Canada in Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489 at page 501 :

Having regard to the importance of the principle of selection according to merit and the right of appeal under s. 21 of the Public Service Employment Act, I am unable, with great respect, to agree with the premise underlying the judgment of the majority of the Federal Court of Appeal, which I understand to be that a new position in the Public Service calling for an appointment within the meaning of section 21 cannot be created by a change in the functions of an existing position unless the administration chooses to regard such a change as creating a new position within the meaning of the Act. Such a view would permit the circumvention of the merit principle and the right of appeal.

[16]       Second, the applicants allege that even if the Chairperson was correct in determining that she lacked jurisdiction to decide whether the position was new or reclassified, she erred in dismissing their appeal, because the merit principle had not been respected in the selection of Mr. Hachez. Their argument has two parts: (1) the assessment of Mr. Hachez's qualifications and suitability was not made until after his appointment in the context of the appeal process; and (2) in administering the appointment process, the Department was negligent, lacked transparency and was unfair.

[17]       The applicants claim that the case law is clear: a candidate's skills and abilities must be assessed prior to the appointment. They cite Sharlow J. in Beaudry, supra, at paragraph 6, where she writes: "An appointment made after a competition under subsection 10(1) is based on a comparison of the qualifications of the candidates". They submit that the Department has the burden of proving that Mr. Hachez had been assessed before his appointment on the basis of the qualifications required for the position: see Field v. Canada (Attorney General), [1995] F.C.J. No. 458 (F.C.T.D.)(QL), where the Court held, at paragraph 5, that "In the absence of an appropriate evidentiary framework, the Appeal Board could not have properly determined that the merit principle was respected in the assessment of the candidates".

[18]       In addition to their contention that the merit principle was not respected at the time of Mr. Hachez's appointment, the applicants allege that the process followed by the Department was entirely vitiated by the unjust and unfair manner in which the Department administered that process. No right of appeal was posted in the spring of 1996, after Mr. Hachez's appointment, although two of the applicants had earlier expressed interest in the position. Subsequently, only Mr. Hachez's position was reclassified following the departmental audit, even though the "project manager" position was very similar to the position occupied by Mr. Hachez. A right of appeal was not issued until November 2002, two years after the reclassification. Finally, Mr. Hachez's qualifications were not assessed until the summer of 2003, more than five years after his appointment. In the circumstances, the applicants argue that the merit principle was clearly not respected. However, in spite of the Chairperson's comments about the unfairness of the situation, the applicants' circumstances remain unchanged.

The Respondents

[19]       The Attorney General of Canada, the principal respondent (the respondent), submits that under subsection 21(1.1) of the Act and in view of recent Federal Court decisions, the Appeal Board lacks jurisdiction to decide whether the position now held by Mr. Hachez is a new position rather than a reclassified position. According to the respondent, the reclassification decision was made by a manager under the Financial Administration Act, R.S.C. 1985, c. F-11, as amended (the FAA). Consequently, that decision is not contemplated and therefore cannot be the subject of an appeal under section 21 of the Act. The respondent submits that the Appeal Board's jurisdiction extends only to determining whether Mr. Hachez satisfied the requirements of the position and whether his appointment respected the merit principle. The respondent alleges that the Chairperson's decision was correct since she had undisputed evidence on which to base her finding that Mr. Hachez satisfied the criteria and that the merit principle had been respected.

[20]       The respondent cites numerous Federal Court of Appeal decisions that the Appeal Board cannot say anything about a decision on the classification of a position; it can only consider whether the appointment was consistent with the merit principle: Ratelle v. Canada (Public Service Commission, Appeals Branch), [1975] F.C.J. No. 910 (FCA)(QL); Canada v. Ricketts, [1983] F.C.J. No. 944 (FCA)(QL); Canada v. Henri, [1986] F.C.J. No. 153 (FCA)(QL). At the hearing, counsel for the respondent explained that it was the Department's decision to reclassify an existing position or to create a new position, as part of exercising the management function pursuant to the FAA. The decision to reclassify a position is not made by a selection committee in the context of assessing merit but by a representative of the Department. Accordingly, it is not possible to refer to the Appeal Board and require this issue to be reviewed.

[21]       The respondent alleges that in Laidlaw, supra, cited by the applicants in support of their position that the Chairperson had the jurisdiction to determine whether the position was new or reclassified, the Court simply observed that the Appeal Board had ruled that the positions were new, not that the Appeal Board had jurisdiction to make a determination on the issue. The respondent claims that the Court should lend more weight to the decision in Beaudry, supra. The respondent observes that it is important to distinguish matters which are secondary to the powers of the Appeal Board and the exercise of management authority given exclusively to managers. The only issue the Appeal Board had to decide was whether the appointment to the position (new or reclassified) was consistent with the merit principle. In the respondent's view, then, the only way to appeal the Department's decision to reclassify a position was by way of judicial review in the Federal Court, but that was not done in the case at bar.

[22]       As for the issue of merit, the respondent notes that the Chairperson relied on the explanations furnished by Major Jean. His testimony was not contradicted in the hearing and was based on observations made during the period between 1987 and 1997. Moreover, after the audit of the classification of Mr. Hachez's position, the Department was aware that Mr. Hachez was performing the duties of an EG-06 position; this was corroborated by Major Jean.

[23]       The respondent seems to concede that Mr. Hachez's qualifications ought to have been assessed before his appointment, but in light of all the facts, the mere fact that the assessment took place after the appointment is inconsequential, since Mr. Hachez satisfies all the requirements of the position. The applicants have not been successful in reversing their burden of proof.

[24]       The principal respondent has asked the Federal Court to dismiss the application for judicial review, with costs.

[25]       The individual respondent, Mr. Hachez, filed a factum purporting to show that the merit principle had been respected. He maintains that his qualifications were properly assessed in accordance with procedure. He further maintains that any change by this Court will cause him serious injustices.

ANALYSIS

Standard of review

[26]       The applicants submit that the appropriate standard of review of the Appeal Board's decision on questions of law is that of correctness. This view takes into account the language used in section 21 of the Act: the fact that appeal boards are appointed on an ad hoc basis, the provision in the Act that an application for judicial review of an Appeal Board decision may be referred directly to the Federal Court of Appeal (section 21.1) as well as the case law of the Federal Court and the Federal Court of Appeal: see Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (C.A.)(QL) at paragraph 7; Mathuik v. Canada (Attorney General), [2001] F.C.J. No. 4 (F.C.T.D.)(QL) at paragraph 11; Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 at pages 1003-1012.

[27]       The respondent agrees that the issue of the Appeal Board's jurisdiction is a question of law and that the applicable standard of review is correctness. That said, the respondent observes that the reviewing court must show some deference, given that the Board has expertise as an administrative tribunal with regard to findings of fact: Pushpanathan, supra.

[28]       Since the first issue involves the Appeal Board's competence to decide an issue of jurisdiction - i.e. whether the Appeal Board has jurisdiction to determine whether the position should have been a new position instead of a reclassified position - I agree that this is a question of law and that the applicable standard of review must be correctness. But the second issue - whether Mr. Hachez's appointment was consistent with the merit principle - is a mixed question of fact and law, for which the applicable standard of review is reasonableness simpliciter: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at pages 256 et seq.

Did the Chairperson err in law or in fact in determining that she lacked jurisdiction to decide whether the case involved a new position or a reclassified position?

[29]       The case law seems to clearly indicate that the Appeal Board does not have jurisdiction to rule on this question. Contrary to the applicants' contentions, Madam Justice Sharlow writes, in Beaudry, that the Appeal Board cannot rule on such questions:

I acknowledge that judicial review may not be the best possible method to challenge the validity of the appointment process chosen in this case. The Appeal Board may well be the most appropriate forum for determining whether a position is in fact a new position or a reclassification, or whether an area of selection for a subsection 10(2) appointment has been validly established. However, as I read subsection 21(1.1), Parliament has chosen not to permit those questions to be put to the Appeal Board in the context of subsection 10(2) appointments. [Emphasis added.]

[30]       Finally, in my own view, the Chairperson correctly applied the principles articulated in Larose. In that decision, Madam Justice Tremblay-Lamer analyzed the body of case law on the issue of an Appeal Board's jurisdiction to settle the question of whether a position is a new position or a reclassified position before concluding, correctly, that the Appeal Board lacked jurisdiction to make that determination. At paragraphs 38 and 40 of Larose, Tremblay-Lamer J. highlights the problem with the approach used by the Appeal Board in analyzing the situation:

[38] [The appeal board's] analysis was based essentially on the search for a substantial change to the nature of the duties: the appeal board accordingly undertook to compare the responsibilities of incumbents of PM-04 positions with the new responsibilities, an undertaking which in my opinion was essentially a matter for a certified classification officer.

. . .

[40] I note that the appeal board took into account the opinion of the classification officer who testified that these were the same positions, not new ones. In my opinion it would be surprising for it to substitute its opinion for that of the classification officer, since the appeal board did not have that right in the case of the selection board. . . .

[31]       An Appeal Board does not have jurisdiction to determine whether a reclassified position is actually a new position, or vice versa. It can only determine whether the process of making an appointment to a position (new or reclassified) is consistent with the merit principle. Moreover, as Tremblay-Lamer suggests in Larose, caution must be exercised in relying on Brault and Laidlaw, supra, in a situation such as this. In Laidlaw, the Federal Court of Appeal did not elaborate on the source of the Appeal Board's jurisdiction to decide whether it was a reclassification or a new position, but simply stated that the Appeal Board had decided that the positions were new. As for Brault, that decision was made before subsection 10(2) of the Act came into effect and therefore the selection process employed by the Department was not the same: also see Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (FCA) (QL).

Did the Chairperson err in law or in fact in determining that the appointment of Mr. Hachez to the position of project manager was consistent with the merit principle?

[32]       The respondent does not dispute that Mr. Hachez's qualifications were formally assessed only five years after his appointment to the project manager position. Nevertheless, the respondent (as well as Mr. Hachez) submits that Mr. Hachez was qualified for the position at the time of his appointment, despite the fact that a formal assessment was only carried out afterwards. The Chairperson could have held that the appointment was vitiated by the failure to conduct an assessment, but she rightly made no such determination.

[33]       The Chairperson accepted Major Jean's testimony that as of April 1, 1997, the candidate met all the requirements of the project manager position, although no formal assessment had been completed. This testimony was not challenged at the Appeal Board hearing. Moreover, not only did the respondents fail to prove that Mr. Hachez did not meet the requirements of the position; they even admitted that Mr. Hachez would have been the best qualified candidate and would have been the successful candidate had a competition been held. The Chairperson had sufficient evidence to be persuaded that, even if the assessment process was not followed, the best qualified candidate was selected for the position. This was an unusual situation, a test case that necessitated a special application considering the circumstances, and in my view the Chairperson's decision was reasonable and I see no reason to intervene.

[34]       I would, however, like to emphasize the importance of the merit principle. It is a core principle of employment in Public Service. In competitions and in the selection process, it is important to follow the established procedures, to ensure the integrity of the process. That being said, in the case at bar there is consistent and undisputed evidence that Mr. Hachez was amply qualified for the position. Thus, the merit principle was respected even if the process that was followed left something to be desired. The Department should not make a habit of it.

CONCLUSIONS

[35]       As the respondent observes at paragraph 49 of his factum, I note that there are appropriate remedies that the applicants may seek if they believe they were aggrieved by the Department. If, for example, they believe that their positions are similar to the one held by Mr. Hachez, they can always file a grievance with the managers of their Department, subject to any restrictions in respect of grievances. The intent of section 21 is to ensure that appointments are made in accordance with the merit principle; it is entirely unrelated to the process of reclassifying an existing position. In view of the unusual circumstances of this case, the application for judicial review is dismissed, but the parties must pay their own costs.

                                               ORDER

THE COURT ORDERS THAT:

-            This application for judicial review be dismissed without costs.

                                                                                      "Simon Noël"             

                                                                                                   Judge                   

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                     T-1017-03

STYLE OF CAUSE:                                     DONAT BIZIER, BENOÎT PATENAUDE, PAUL BOUCHER

JEAN-MARC COMEAU, DANIEL MORIN,

GAÉTAN LOISEAU

v.

ATTORNEY GENERAL OF CANADA

AND MARCEL HACHEZ

PLACE OF HEARING:                               OTTAWA, ONTARIO

DATE OF HEARING:                                 DECEMBER 15, 2004

REASONS FOR ORDER AND ORDER:

THE HONOURABLE

MR. JUSTICE SIMON NOËL

DATED:                                                        January 6, 2005

APPEARANCES:

JAMES CAMERON                                      FOR THE APPLICANTS

MARIE CROWLEY                                      FOR THE RESPONDENT

ATTORNEY GENERAL OF CANADA

MARCEL HACHEZ                                      FOR THE RESPONDENT

MARCEL HACHEZ

SOLICITORS OF RECORD:

RAVEN, ALLEN, CAMERON & BALLANTYNE                 FOR THE APPLICANTS

& YAZBECK LLP/s.r.l.

OTTAWA, ONTARIO

MORRIS ROSENBERG                                                          FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA                  ATTORNEY GENERAL

OF CANADA

MARCEL HACHEZ                                                                 FOR THE RESPONDENT

ST-JEAN-SUR-RICHELIEU, QUEBEC                                  MARCEL HACHEZ