Larose v. Canada (Attorney General), 2002 FCT 1106

Date: 20021022

Docket: T-1007-01

Neutral citation: 2002 FCT 1106

Ottawa, Ontario, October 22, 2002

Before: Danièle Tremblay-Lamer J.

BETWEEN:

GILBERT LAROSE, FRANCINE LAPOINTE, MARTINE LANNEVILLE,

DORIS MATHIEU, SOPHIE HOULE, LUCILLE LAMBERT,

FRANÇOISE SILLS, RAYNALD ROUETTE, LOUISE FRENETTE,

CAROLLE HAMELIN, MARTIN LEFEBVRE, DENISE BEAULIEU,

JEAN MIREAULT, GERMAINE NORMANDIN, CLAIRE BRUNELLE,

HÉLÈNE LORD, MANON PLANTE, MONA MARTEL, REINE ÉMOND,

JEAN MONTMINY, GUY VEILLETTE, JOHANNE GÉLINAS,

ROBERT LABBÉ, JEAN-GUY VINCENT, LINE PATRY,

ROBERT DURAND, DORIS GUILBERT, GINETTE SAMSON,

SERGE TOUPIN

Plaintiffs

and

THE ATTORNEY GENERAL OF CANADA and

JANINE COZIOL and FRANÇOIS CATELLIER

Defendants

AND BETWEEN:

GEMMA LAHAIE, LUCIE GAGNON, FRANCINE DIONNE, LISE FAUCHER,

JEAN MAURICE BOUCHER, FRANCINE BREAULT, RÉGEAN CONNOLLY,

GINETTE BOUCHER, MARYSE BIRON, JEAN-MARIE PAQUETTE,

ANDRÉ BÉLIVEAU, ALINE POIRIER, MARIE PAQUIN,

CHRISTIANE JUNEAU, MONIQUE BERNIER, LIETTE FLEURY,

JEAN-GUY LIZOTTE, DIANE DESGAGNÉ, CLAUDE SIMOND,

MONIQUE BROUSSEAU, LUCIE CARON, SUSIE ROBERGE,

CLAUDE LACHARITÉ, JOHANNE MICHEL, NICOLE DARVEAU,

RENÉ VERRIER, GINETTE LAUZON, MARCEL LORD,

LYNE BLANCHETTE, KAREEN McKENZIE, DIANE LAMOTHE,

DIANE HURTEAU, JULIE ARPIN, GERMAINE MARTEL,

FRANCINE FORTIER, CHANTAL RHÉAULT, NICOLE DUMONT,

HÉLÈNE LEBLANC, K. CHANDLER and JEAN L. BLANCHETTE

Plaintiffs

and

                                       THE ATTORNEY GENERAL OF CANADA and

                                           FRANCE HOULD and MICHEL RICHARD

Defendants

REASONS FOR ORDER AND ORDER

[1]        This is an application for judicial review of the interlocutory decision rendered on April 30, 2001, by Pierre Baillie, president of the appeal board created by the Public Service Commission of Canada under s. 21(1.1) of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA), in which he concluded that the employing department had not created new positions. The consequence of that decision was to allow a merit selection of candidates pursuant to s. 10(2) of the PSEA.

FACTS

[2]        The plaintiffs are employed in the federal Public Service. They were potential candidates for a selection by comparative merit, since they were in the selection area for the positions in question.

[3]        For organizational reasons the departmental authorities in the Quebec region decided to alert the administrative organization of management positions in all Canada Human Resources Centres (CHRC) in Quebec, abolishing one level of management. Each branch of the CHRC formerly had a director in group EX-06, or PM-06 for small offices, an associate director at group and level PM-05, and four or five service directors at group and level PM-04.

[4]        With the reorganization, the position of associate director (PM-05) was abolished. The duties associated with the position of associate director (PM-05) were transferred to the service directors (PM-04).

[5]        The employer proceeded to reclassification of the PM-04 employees into PM-05 positions in accordance with s. 10(2) of the PSEA, after an assessment of their individual merit in accordance with established standards of competence.

[6]        Before deciding the question as to the validity of the candidate selection, the appeal board had to consider preliminary points.

[7]        First, before the appeal board the appellants raised the question of whether the appointments actually resulted from reclassification of the same position or whether this was a new position subject to the provisions of s. 10(1) of the PSEA.

[8]        Second, the Department made a preliminary objection alleging that the appeal board had no jurisdiction to decide on the validity of a classification decision.

[9]        In his interlocutory decision the president of the appeal board dismissed the Department's objection regarding the jurisdiction of the appeal board. He maintained that the question of whether these were new or existing positions is a question which can and should be decided by an appeal board.

[10]      In this connection, the appeal board said the following, at p. 13 of its decision:

[TRANSLATION]

I said that I had jurisdiction to decide the appellants' proposition, and I will explain. Contrary to the Department's position, I feel that taking into account all the more or less recent changes to the Act and Regulations, the appeal board still has jurisdiction over such a matter. It is true that a definition of the word "reclassification" was quite recently added to the Regulations, and it was probably the Commission's intention to clarify the situation as to what constitutes reclassification. It is now clearly mentioned that this is a classification decision. In my humble opinion, this adds little to the discussion as reclassification always was a classification decision, which fell under the responsibility of the Treasury Board, not a staffing decision as such which could result from implementation of the Public Service Employment Act. I have no intention of questioning the reclassification itself of the positions in question from level PM-04 to level PM-05, as I have no expertise in classification. After analyzing the duties and responsibilities described by management and applying the appropriate standards, the Department's classification officers determined, it would appear, that these were positions which should now be classified at the PM-05 group and level. That decision is in no way in question through my intervention. The question of whether these were new positions or the same positions, which were the subject of this reclassification, is a question which according to the Court may and must be decided by an appeal board.

[11]      Further, the president of the appeal board dismissed the plaintiffs' argument that the reclassification created new positions which required candidate selection by a competition under s. 10(1) of the PSEA. He concluded that the positions in question had not substantially altered, since most of the principal duties of the positions in question had remained essentially the same.

Legislative background

[12]      Section 10 of the PSEA sets out two methods of merit selection for appointing candidates to a position. The first is appointment by competition, based on a comparative review of the skills of candidates under s. 10(1) ("relative merit"). The second is appointment other than by competition, based on an assessment of each candidate's individual merit, possible in certain circumstances laid down by the Regulations and the Commission ("individual merit"). Section 10(1) and (2) of the PSEA provides:

[13]      Section 5(2) of the Public Service Employment Regulations, SOR/2000-80, describes the circumstances in which selection on the principle of individual merit is possible instead of selection by relative merit:

[14]      Finally, section 21 of the PSEA allows any person who meets certain criteria to appeal an effective or imminent appointment to the Public Service. An appointment made as the result of a competition may be appealed by any "unsuccessful candidate" (s. 21(1)). At the same time, an appointment made under s. 10(2) may be appealed pursuant to s. 21(1.1), which provides:

Did the appeal board err in law in concluding that it had the necessary jurisdiction to determine whether the positions in question were reclassified or new positions?

Parties' positions

[15]      The defendant argued that there was nothing in the PSEA which suggested that the appeal board had the necessary jurisdiction to rule on questions other than that of whether a selection was made according to merit, which is entrenched in s. 10 of the PSEA. Decisions made by an employing department in the exercise of a management function are in no way a matter for an appeal board.

16]       It is s. 11(2)(c) of the Financial Administration Act, R.S.C. 1985, c. F-11, which gives the Treasury Board the power to classify Public Service positions:

[17]      Additionally, the Treasury Board may delegate its powers to deputy heads of departments who may in their turn subdelegate their powers to members of their staff, in accordance with s. 12(1) and (3) of the Financial Administration Act:

[18]      Under that provision, departmental classification officers certified by the Treasury Board may classify positions in their own departments.

[19]      According to the defendant, when the classification officers in the Department of Human Resources Development decided to reclassify the positions in question, the appeal board had no jurisdiction to determine whether the positions constituted a reclassification or were new positions (Beaudry v. Canada (Attorney General) (2000), 180 F.T.R. 279, affirmed by the Federal Court of Appeal, [2000] F.C.J. No. 1876 (QL)).

[20]      The decision to classify the positions and reclassify them is not a decision which is taken by a selection board as part of an assessment on the merits, but is a decision of management taken by an employing department pursuant to the Financial Administration Act.

[21]      The defendant noted that it was the Federal Court Trial Division which should rule on judicial review on the legality of management decisions taken by an employing department, not the appeal board (Canada (Attorney General) v. Viola, [1991] 1 F.C. 373).

[22]      The plaintiffs argued that the appeal board correctly decided that it had jurisdiction to determine whether a position was new. An appeal board must intervene to determine whether the merit principle was correctly applied both at the individual merit level and at the relative merit level.

[23]      In the plaintiffs' submission, it is clear from the Federal Court of Appeal's judgment in Canada (Attorney General) v. Laidlaw, [1998] F.C.J. No. 615 (QL), that the appeal board has that jurisdiction.

ANALYSIS

[24]      First, it is worth recalling that the Federal Court of Appeal's judgments have several times indicated that the appeal board's only function is to determine whether an appointment proposed by a selection board was made on the merit principle (Ratelle v. Canada (Public Service Commission, Appeal Division), [1975] F.C.J. No. 910 (Q.L.); Canada v. Ricketts (F.C.A.), [1983] F.C.J. No. 944 (Q.L.); Canada v. Henri (F.C.A.), [1986] F.C.J. No. 153 (Q.L.). In my opinion, any ancillary jurisdiction which it may have should be related to this single function.

[25]      Accordingly, in all logic, if it has to rule on the validity of selection methods set out in s. 10(1) and (2), it should at least come to the conclusion that the merit principle was better served if the appointments were made on the basis of relative merit mentioned in s. 10(1) of the PSEA rather than on the basis of individual merit mentioned in s. 10(2) of the PSEA.

[26]      For this to be the case, one of the selection methods should still be better than the other. In such a case, the appeal board's concern with the choice of one or another selection method is understandable.

[27]      In Laidlaw, supra, the Federal Court of Appeal held that there is no hierarchy in selection methods.

[28]      It said the following:

Subsection 10(2) is not, properly speaking, an exception, for by its very introductory words, it is enacted "for the purposes of subsection (1)", which establishes the principle that selection is to be made according to merit. Subsection 10(2) provides for alternative means to achieve the result prescribed by subsection 10(1) and the fact that these means are alternative to those defined in subsection 10(1) does not mean that they are inferior to them.

Laidlaw, ibid., at para. 12.

[29]      It thus becomes impossible for the appeal board to allow an appeal on the ground that the individual merit principle infringes the merit principle, since that selection method is not inferior to the other.

[30]      Consequently, I do not see how it is possible to connect the analysis made by the appeal board of its jurisdiction alone to s. 21 of the PSEA. I conclude that the appeal board did not have the necessary jurisdiction to decide whether the positions were reclassified or new.

[31]      Moreover, this is the conclusion to which Sharlow J. came in Beaudry, supra.

[32]      In that case, the appellants were challenging the validity of appointments made under s. 10(2) of the PSEA on the ground that the position in question was not part of a reclassification process but was an entirely new position. This question was important, since the selection area and the appeal area would be different if the position had not been reclassified.

[33]      Sharlow J. clearly held that the question of whether the position was a reclassification or a new position was not within the jurisdiction of the appeal board.

[34]      I refer to the relevant passage of his decision, which was upheld by the Federal Court of Appeal:

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 s. 10(2) appointment has been validly established. However, as I read s. 21(1.1), Parliament has chosen not to permit those questions to be put to the Appeal Board in the context of s. 10(2) appointments.

Beaudry, ibid., at para. 24.

[35]      I admit that this decision appears to run contrary to the Federal Court of Appeal's judgment in Laidlaw, supra. However, I note that 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.

[36]      In any event, Beaudry, supra, is more recent and the Federal Court of Appeal has directly answered the question.

[37]      Moreover, it is worth looking at the procedure the appeal board had to follow in determining whether these were new positions.

[38]      Its 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.

[39]      Following that analysis, the appeal board concluded as follows:

[TRANSLATION]

On the evidence, the positions in question were not substantially altered, since the great majority of the principal duties remained the same. Ms. Aumond's testimony added a very interesting viewpoint on the new responsibilities now devolving on directors of the service branch, and her explanations are very credible, as the witness was able to distinguish between the majority of the duties which such persons would continue to perform and the new responsibilities which, as it were, enriched the pre-existing responsibilities. In this case what struck me was that the result of management's decision was that certain duties formally reserved for the assistant director, PM-05, would now be performed by a much larger number of persons, although they would retain their own responsibilities. For example, instead of only one person making partnership agreements with external organizations, there would now be five or six, depending on the region, since formerly there was an assistant director and four or five directors. Further, in the oral evidence, I have to take into account the opinion of the classification officer who testified and who stated that these were the same positions, not new positions, after making a comparative analysis of several important documents relating to current personnel actions. In my view, he showed that changes had been made to the positions in question but those changes did not alter the nature of the positions. The appellants, for their part, did not persuade me to the contrary. [My emphasis.]

Appeal board's decision, p. 16.

[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 (Ratelle, supra).

[41]      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), the appeal board had no choice but to affirm the classification officer's decision, which it did in the case at bar.

[42]      The plaintiffs relied on Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, in which the Supreme Court of Canada held that any change in a position's responsibilities requiring new classifications would be a bar to any reclassification of the position, since such a change really involved creating a new position, and this should be done according to selection by merit under the terms of the PSEA.

[43]      It should be noted that this decision was made before s. 10(2) of the PSEA came into effect. In Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437, the Federal Court of Appeal warned tribunals about using precedents which were established before the subsection came into effect:

Jurisprudence relating to pre-1993 appointments often contains general statements made in the context of an appointment after a competition. Care must be taken in applying those cases to appointments made under subsection 10(2), because of the change in context.

Buttar, ibid., at para. 4.

[44]      In Brault, supra, the employing department had made no appointment by merit, arguing that assignment of a customs officer to the dog-handler position did not constitute an "appointment" within the meaning of the PSEA. The Supreme Court held that when a position's duties changed substantially, merit selection should be undertaken.

[45]      In the case at bar, whether the position was reclassified or new, the selection will be made according to merit. In these circumstances, it seems to me that Brault, supra, cannot support the plaintiffs' arguments.

[46]      I also dismiss the plaintiffs' argument that individual selection under s. 10(2) should be used with great caution, since it is an exception to the general rule.

[47]      In this connection it will suffice to recall that the Federal Court of Appeal decided this point in Buttar, supra, noting that the appointment made under s. 10(2) was a subsidiary application of the merit principle, not an exception to it.

[48]      For these reasons, I conclude that the appeal board did not have the necessary jurisdiction to deal with the validity of the decision made by a reclassification officer to reclassify the positions at issue pursuant to s. 11(2)(c) of the Financial Administration Act, supra.

[49]      The application for judicial review is dismissed, with costs to the defendant the Attorney General of Canada.

ORDER

THE COURT ORDERS THAT:

           The application for judicial review is dismissed, with costs to the defendant the Attorney General of Canada.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                             T-1007-01

STYLE OF CAUSE:                   GILBERT LAROSE, FRANCINE LAPOINTE, MARTINE LANNEVILLE, DORIS MATHIEU, SOPHIE HOULE, LUCILLE LAMBERT, FRANÇOISE SILLS, RAYNALD ROUETTE, LOUISE FRENETTE, CAROLLE HAMELIN, MARTIN LEFEBVRE, DENISE BEAULIEU, JEAN MIREAULT, GERMAINE NORMANDIN, CLAIRE BRUNELLE, HÉLÈNE LORD, MANON PLANTE, MONA MARTEL, REINE ÉMOND, JEAN MONTMINY, GUY VEILLETTE, JOHANNE GÉLINAS, ROBERT LABBÉ, JEAN-GUY VINCENT, LINE PATRY, ROBERT DURAND, DORIS GUILBERT, GINETTE SAMSON, SERGE TOUPIN

Plaintiffs

and

THE ATTORNEY GENERAL OF CANADA and

JANINE COZIOL and FRANÇOIS CATELLIER

Defendants

AND BETWEEN:

GEMMA LAHAIE, LUCIE GAGNON, FRANCINE DIONNE, LISE FAUCHER, JEAN MAURICE BOUCHER, FRANCINE BREAULT, RÉGEAN CONNOLLY, GINETTE BOUCHER, MARYSE BIRON, JEAN-MARIE PAQUETTE, ANDRÉ BÉLIVEAU, ALINE POIRIER, MARIE PAQUIN, CHRISTIANE JUNEAU, MONIQUE BERNIER, LIETTE FLEURY, JEAN-GUY LIZOTTE, DIANE DESGAGNÉ, CLAUDE SIMOND, MONIQUE BROUSSEAU, LUCIE CARON, SUSIE ROBERGE, CLAUDE LACHARITÉ, JOHANNE MICHEL, NICOLE DARVEAU, RENÉ VERRIER, GINETTE LAUZON, MARCEL LORD, LYNE BLANCHETTE, KAREEN McKENZIE, DIANE LAMOTHE, DIANE HURTEAU, JULIE ARPIN, GERMAINE MARTEL, FRANCINE FORTIER, CHANTAL RHÉAULT, NICOLE DUMONT, HÉLÈNE LEBLANC, K. CHANDLER and JEAN L. BLANCHETTE

Plaintiffs

and

THE ATTORNEY GENERAL OF CANADA and

FRANCE HOULD and MICHEL RICHARD

Defendants

PLACE OF HEARING:                                                Ottawa, Ontario

DATE OF HEARING:                                                  September 23, 2002

REASONS FOR ORDER AND ORDER BY:         Danièle Tremblay-Lamer J.

DATE OF REASONS:                                                  October 23, 2002

APPEARANCES:

James G. Cameron                                                            for the plaintiff

Raymond Piché                                                                 for the defendant

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne                               for the plaintiff

220 Laurier Avenue West

Bureau 1600

Ottawa, Ontario

Department of Justice                                                        for the defendant

Quebec Regional Office

Guy-Favreau Complex

200 René-Lévesque West Blvd.

East Tower, 9th floor

Montréal, Quebec