Maurice v. Canada (Treasury Board), 2004 FC 941

Date: 20040630

Docket: T-905-02

Citation: 2004 FC 941

Ottawa, Ontario, the 30th day of June 2004

PRESENT:      THE HONOURABLE MADAM JUSTICE GAUTHIER

BETWEEN:

                                                              ANNIE MAURICE

                                                                                                                                            Applicant

                                                                           and

                                                    HER MAJESTY THE QUEEN

AS REPRESENTED BY THE TREASURY BOARD

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Ms. Maurice is asking the Court to review a decision by the nominee of the Deputy Minister, Human Resources Development, on May 15, 2002, approving the recommendation of the Classification Grievance Committee (the Committee) that her position of mail supervisor and regional petty cash supervisor (position 28846) be reclassified at the AS-02 group and level as of April 1, 2000. Before that decision, Ms. Maurice's position was classified AS-01, and she had made submissions to the Committee asking it to recommend that she be reclassified in the AS-04 group and level.

[2]                There is no dispute between the parties^[1] regarding the description of duties in position 28846 held by the applicant in April 2000, although quite significant changes had been made to that position between October 1998 and the time it was finally abolished, and at the meeting with the Committee Ms. Maurice's essential duties had already been transferred to Réjean Lafortune (level FI-04) for management of the regional petty cash, to Marie Josée Boutin (FI-02, with an AS-04/AS-05 salary level) for the operational and functional aspects and to Liette St-Martin (level AS-04) for the principal duties of Ms. Maurice as mail supervisor.

[3]                Accordingly, in April 2000 position 28846 was a management position in the administrative services group, administrative and foreign service category. During the relevant period, Ms. Maurice supervised about 15 employees and was responsible for a budget of about $209,000 for photocopying services at the regional office and Quebec collections office, postal charges, telephone, purchase of services, repairs and maintenance. In addition to coordinating employees, seeing to the petty cash activities and mail, Ms. Maurice had to act as a consulting member on the LSSS committee and on the FAITD management committee at expanded meetings.

[4]                Before the Committee the applicant, represented by two officers of her union, Messrs. Guérin and Simard, filed written arguments and certain exhibits in support of her contentions. These included a written justification for position 99999 signed by Louise Ducharme, a classification consultant, and dated May 4, 2001. Essentially, the applicant argued that her position should be compared to that of Liette St-Martin, who occupied position 99999 (AS-04)^[2] and to other management positions within the Department of Human Resources Development in Quebec (Quebec HRDC), which in her submission all began at the PM-04 or AS-04 level. In particular, position 28846 was comparable to that of the supervisor of an appeals centre, except that in that position the incumbent did not control or undertake budgetary planning and did not negotiate service contracts with external agencies, activities included in the 28846 position description.

[5]                In his affidavit, Mr. Guérin indicated that Ms. Maurice and her representatives had clearly compared Ms. Maurice's position description with that of the employees to whom her duties were transferred.

[6]                Ms. Maurice submitted that the Committee ignored the arguments she made, thereby infringing the rules of procedural fairness, and it drew patently unreasonable conclusions of fact. In particular, she argued, the Committee did not compare her position with position 99999, nor with the other surrounding positions which she mentioned, such as that of the supervisor of the appeals centre. She further argued that the Committee should have told her it was not taking position 99999 into account for essentially formal points, namely that the justification was not dated and signed by a certified officer of the Department and in the Committee's view did not contain an acceptable description of duties.

[7]                According to Ms. Maurice, this argument was fundamental to her submission and the Committee should have asked her to provide, or have itself obtained, more details on position 99999, so it could be in a position to assess the substance of her argument. In her submission, the Committee did its work too quickly, without trying to compare position 28846 with current comparable positions, rather than benchmark positions which had not been updated since the 1980s and the activities which had little to do with those of Ms. Maurice, such as hospital administrator, administrator, positions abroad (The Hague, Tokyo), Canadian Pension Commission administrative officer, administrative officer, research station, and so on.

[8]                The respondent replied that the Committee had not ignored the applicant's arguments and evidence but had decided, as it was entitled to do, to attach little weight to them, or less weight than to other points that it considered. The respondent submitted this was not a case of an infringement of procedural fairness, since the respondent had the burden of persuading the Committee and could not be unaware that her evidence would be judged according to its proper evidentiary value. In the circumstances, therefore, the Court did not have to intervene in determining the evidentiary value, unless the decision in this regard was capricious or clearly wrongful, which in the respondent's submission was not the case.

[9]                Relying on the affidavit of Line Morin-Smith, one of the members of the Committee, the respondent argued that the Committee observed the classification standard, which provided that the description of duties of the position for classification should be compared with that of benchmark positions classified in the same group, and that higher and lower positions in the organization should be considered. Here, according to the Committee, Ms. Maurice's immediate supervisor was classified at the AS-04 level, while the employees she supervised were at the AS-01 level and the benchmark positions used were appropriate.

[10]            Regarding the transfer of duties to other employees whose positions were classified at higher levels, such as that of Ms. St-Martin, Ms. Morin-Smith indicated that this was not relevant as such, since it was a unilateral decision by the employer which did not necessarily warrant reclassification. It was for the applicant to make a clear comparison with the new descriptions of positions to which her duties were transferred and indicate the impact of that transfer, if any, on those positions in classification terms (paragraph 17 of affidavit of Line Morin-Smith).

ANALYSIS

[11]            The parties were agreed that a breach of procedural fairness or the rules of natural justice by the Committee in arriving at its recommendation would vitiate the decision which is the subject of the application for judicial review.

[12]            Firstly, therefore, the Court must determine whether the question for resolution is one of applying the rules of natural justice, which does not involve analysis in accordance with a standard of review, or is instead a question of evidentiary value, as suggested by the respondent, review of which is subject to the standard of the patently unreasonable decision.

[13]            At paragraph 12, Line Morin-Smith said in her affidavit:

[TRANSLATION]

It was impossible for the Committee to assess position 99999 without a description of duties. Chapter 1 of the Treasury Board Manual says in this regard that "The first step in the job evaluation process is the examination of the job description and its allocation to an occupational category, group and sub-group . . ."

[14]       At paragraph 13 of that affidavit, she went on to say that the rationale could not be considered valid because it was not signed by a certified classification officer and the name of the external consultant appearing on the document was not a signature.

[15]            In support of the respondent's argument that the Committee did assess the argument and evidence submitted, Line Morin-Smith then indicated that position 99999, as described in the rationale, bore no resemblance to the duties of the position at issue and that the word [TRANSLATION] "mail" did not appear in it (paragraph 14).^[3] She concluded as follows, at paragraph 19:

[TRANSLATION]

The Classification Grievance Committee considered the comparison between the AS-01 job description and the rationale allegedly dealing with an AS-04 position [position 99999], finding on analysis that the content of these two documents was different. This was mentioned in the Classification Grievance Committee's report, at page 3, paragraph 3. [Emphasis added.]

[16]            However, in its report the Committee said at paragraph 3, page 3:

[TRANSLATION]

As to the comparison made by Mr. Guérin between the position which is the subject of the grievance and the written rationale for position 99999 (Exhibit 12), the members of the Committee agreed that it was impossible to make a judgment on a rationale that was not dated or signed by a classification officer and not accompanied by a job description. Consequently, they also agreed that the description of duties which was the subject of the grievance should be assessed by applying an appropriate classification standard. [Emphasis added.]

[17]            The respondent cannot contradict nor add to the reasons contained in the report through Ms. Morin-Smith's affidavit, nor can she change the content of that report. In the paragraph cited above, the Committee clearly indicated that it was impossible to make a judgment based on the document submitted. In the view of this Court, that means that the Committee did not make a comparison between position 99999 and that of the applicant.

[18]            The Court accordingly attaches no weight to the allegations contained in paragraphs 14 and 19 of Ms. Morin-Smith's affidavit, and does not accept the argument that the Committee actually disregarded the argument dealing with position 99999 because it found few similarities between the activities in that position and those in the position which is at issue.

[19]            Moreover, it is on this basis that the Court must distinguish the case at bar from that before Blanchard J. in Argyracoupoulou v. Canada (Treasury Board), 2003 FC 1304, [2003] F.C.J. No. 1641 (QL).

[20]            In that case, the Court had to decide whether the Committee had failed in its duty of procedural fairness by ignoring the comparison with the Revenue Canada PM-02 position, which in the applicants' submission entailed duties almost identical to that of the position to be classified.

[21]            In its report, the Committee clearly stated that when examining the description of duties which was the subject of the grievance, the members of the Committee noted that there were in fact similarities between the principal activities in the position and those of a Revenue Canada collections officer. However, the Committee further noted, proceeding with its analysis, that the principal activities in those two positions had just as obvious resemblances with the duties of the PR-25 in the PM group classification standard.

[22]            Just from reading the report, therefore, Blanchard J. was able to conclude that the Committee did not unilaterally undermine the employees' essential argument and that in fact it had made a decision based on evaluation of the evidentiary value of all the position descriptions at its disposal.

[23]            Here, as I said, the Committee did not analyse the substance of the proposed argument regarding position 99999. The Committee's report did not deal in any way with other "surrounding" positions, namely Quebec HRDC management positions at the AS-04 and PM-04 levels, including that of supervisor, appeals centres. In her affidavit, Line Morin-Smith did not discuss these either. It appears that this argument was completely ignored, or at the very least that, contrary to the rules set out by the Treasury Board regarding the format of its report, the Committee did not analyse the argument in its report (see paragraph 28 below).

[24]            The Financial Administration Act, R.S.C. 1985, c. F-11, as amended, in sections 5(4), 7(1)(a), (b) and (e) and 11(2)(c), gives the Treasury Board responsibility for classifying employees in the Public Service.

[25]            As these classification grievances cannot be dealt with under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (sections 91, 92(1)(a) and (b) and 96(3)), the Treasury Board has adopted Chapter 4 of the Treasury Board Manual, titled "Personnel Management, Classification, Classification Grievances", which defines its policies and rules on this matter. It appeared that the primary objective of the Treasury Board policy is:

To ensure that the relative value of all jobs in the Public Service is established in an equitable, consistent and effective manner and provides a basis for the compensation of public servants. [Emphasis added.]

[26]            In 1994, the Treasury Board also adopted a supplement to Chapter 4, mentioned above, which describes the general outline of the methods and procedures to be used in submitting and disposing of classification grievances.

[27]            The Committee's mandate is described in section V(a) as follows:

The Classification Grievance Committee is responsible for establishing the appropriate classification and evaluating the grieved position based on the duties assigned by management and performed by the employee and additional information provided by management and by the grievor and/or his or her representative. It must review and analyze all information presented in a gender neutral way. The classification recommended to the deputy head or nominee must be fair, equitable and consistent with the classification principles. [Emphasis added.]

[28]            In Schedule I of the Procedure, the Treasury Board even set out the format which the Committee's report must observe. It states at paragraph 7, titled:

COMMITTEE DELIBERATIONS

7.    This section is the heart of the report and must clearly indicate how the Committee arrived at its recommendation. It should analyze the grievor's work in relation to the classification standard(s), the arguments made by or on behalf of the grievor and management's information, and provide a detailed explanation for the Committee's evaluation. It should state why the Committee evaluated the position in the specific category and occupational group and level, what, if any, other categories or groups were considered and the reasons why these were considered inappropriate. If the existing category, group, level and rating are being confirmed, a complete rationale must, nevertheless, be developed. Statements such as "No change to present rating" are not acceptable. [Emphasis added.]

[29]            On the Committee's procedure, it is indicated at paragraph 5 that the classification grievance process was not intended to be an adversarial system, but one providing for a meeting to be convened during which information would be presented and sought, allowing Committee members to make a recommendation to the deputy head or his nominee.

[30]            It appears there are no guidelines on the documentation that a grievor should submit so that a position he or she regards as comparable will be considered by the Committee in its analysis.^[4] Moreover, the Court sought in vain to obtain from the parties documents or precedents that would support the conclusion that the applicant should have known that the Committee could not take her arguments into account because there was insufficient detail in the official descriptions of duties for the positions to which she referred at the meeting.

[31]            The parties were agreed that the Committee had a duty to act fairly. Case law has clearly established that the degree of fairness applicable in the circumstances tends toward a lesser requirement rather than a more limiting standard (Chong v. Canada (Treasury Board), [1999] F.C.J. No. 176 (F.C.A.) (QL) (Décary J.A., para. 12); Chong v. Canada (Attorney General), [1995] F.C.J. No. 1600 (McKeown J.) (F.C.T.D.) (QL); Bulat v. Canada (Treasury Board), [2000] F.C.J. No. 148, para. 9)).

[32]            In these circumstances, it has already been shown that the Committee must give an employee or his or her representative an opportunity to make submissions on additional or contradictory information obtained from the employer or on new facts that may influence the Committee's decision. In Chong, supra, at paragraph 45, McKeown J. also held that the Committee should take current comparable positions into account in its assessment, even if these were positions in other regions. Further in Argyracoupoulou, supra, Blanchard J. clearly indicated that in view of the union's submissions the Committee had a duty to consider the Revenue Canada PM-02 position.^[5]

[33]            In view of these decisions it appears _ and moreover the respondent did not argue the contrary _ that the Committee had a duty to consider the current positions suggested by the applicant and to determine whether, taking the departmental situation into account, position 28846 was classified fairly in view of all aspects of the policy, including the appropriate classification principles and classification standard.

[34]            Naturally, in undertaking this exercise the Committee had complete discretion to decide on the weight to be given to certain comparable items, and in this the Court accepts the position put forward by the respondent. However, as I said earlier the problem here is that the Committee did not assess the substance of the argument or arguments made by the applicant.

[35]            In the particular circumstances of this case, and taking into account inter alia:

(i)         the absence of any guideline on the form or content of the description of duties to be submitted so that a current position may be considered by the Committee;

(ii)         the fact that in the absence of evidence in this regard, the Court may infer that at the meeting the Committee raised no problem of form or lack of clarity in the comparison of positions put forward by the applicant, and that as indicated in Mr. Guérin's affidavit she remained under the impression that she had clearly compared her description of duties with that of other employees to whom her duties were transferred, including Ms. Martin:^[6] accordingly, she expected that the substance of her argument would be analysed;

(iii)        the Committee should have the best possible information to ensure that its decision is fair and equitable;

(iv)        giving notice or a short deadline to the applicant for providing additional information is not an excessively burdensome requirement: it should not unduly compromise or delay resolution of the grievance;

the Court concludes that the Committee should have informed the applicant that it could not consider her arguments because the evidence submitted was not in an acceptable form and given her a short period of time to provide additional information.

[36]            Consequently, aside from the fact that it appears to have completely ignored the comparison with other surrounding positions (Quebec HRDC management positions, including supervisor, appeals centres), the Committee erred by not giving the notice mentioned above, and the decision of May 15, 2002, approving the Committee's recommendation must be quashed.

[37]            The applicant should accordingly have an opportunity to submit her views to a new Committee of different members.

                                               ORDER

THE COURT ORDERS THAT:

1.         the decision by the deputy head's nominee, dated May 15, 2002, is quashed; the applicant's grievance is referred back to the deputy head's nominee to be reconsidered by a new Classification Grievance Committee.

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                                   T-905-02

STYLE OF CAUSE:                                       Annie Maurice v. Her Majesty the Queen, as represented by the Treasury Board

PLACE OF HEARING:                                             Ottawa, Ontario

DATE OF HEARING:                                               December 16 and 18, 2003

REASONS [FOR ORDER OR JUDGMENT] BY: The Honourable Madam Justice Johanne Gauthier

DATED:                                                                      June 30, 2004

APPEARANCES:

James G. Cameron                                                        FOR THE APPLICANT

Karl Chemsi                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne                 FOR THE APPLICANT

1600-220 Laurier West

Ottawa, Ont. K1P 5Z9

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario