Date: 20090616
Docket: T-791-08
Citation: 2009 FC 635
Montréal, Quebec, June
16, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
RENÉ LAMY AND FRANCIS PICHON
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicants are seeking judicial review of a decision dated
April 14, 2008, by an adjudicator under section 92 of the
Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (Act), dismissing
their grievances on the ground that they did not substantially perform the duties
included in their new work description before June 21, 2002, and that
consequently their pay could therefore not be adjusted retroactively to an
earlier date.
II. Facts
Overview
[2]
At the
time they filed their grievances, on December 23, 2003, the applicant René Lamy
held a project manager position (AR-05) at the Department of Public Works and
Government Services (DPWGS), while the applicant Francis Pichon held a technical
capital-asset advisor position (EN‑ENG-04) in the DPWGS. The grievances
contested the relevant date of retroactivity to which the applicants were
entitled following the reclassification of their positions to a higher level.
[3]
This reclassification
was a direct result of the new duties and responsibilities that the employer
added to the new work description approved in August 2003. The applicants
maintain that retroactivity should go back to 1995, whereas the employer agreed
to grant it only as of their request for reclassifying their positions, that
is, as of June 21, 2002.
[4]
Despite
the applicants’ submissions, it seems, according to the evidence accepted by
the adjudicator, that the applicants had not been performing the new duties or
responsibilities included in their new work description before June 21, 2002.
Background
[5]
Starting
in 1998, at the initiative of the Treasury Board Secretariat (TBS), the
employer put a lot of effort into implementing the Universal Classification
Standard (UCS) in order to standardize positions across the country. During
this process, the applicants could not file a grievance in order to have their
jobs reclassified to a higher level.
[6]
It was
after having distributed the draft of a new UCS work description that the TBS
finally announced, in May 2002, that it was abandoning it; however, it subsequently
consented, at the request of the employees, to re-evaluate their work classification
on the basis of generic work description 0212105A developed in the context of
the UCS.
[7]
The August
22, 2003 decision on the reclassification of the applicants’ positions was based
as much on generic work description 0212105A as it was on data from the questionnaire
completed by the applicants and the analysis done by the classification officer.
[8]
The goal
of the new work description developed in the context of the UCS was to
standardize work descriptions in the various regions of the country. Employees
were assigned new responsibilities; at the same time, they were given increased
mobility. The generic aspect of this work description made it possible to
include a number of activities. This description was more varied than previous
descriptions. It was intended for project management professionals and clearly
indicated the duties as a whole that were assigned to them.
[9]
According
to the evidence produced before the adjudicator, who had to confirm, on
August 22, 2003, the reclassification of the applicants’ positions, the
reclassification included new work assignments and responsibilities that were
additional to generic work description 0212105A.
III. Impugned decision
[10]
The adjudicator’s
dismissal of the grievances relied on the following reasons:
a. The facts of the case did not
justify the modification of the effective date of the reclassification of the
positions in dispute;
b. The applicants waited too long
to request a reclassification and file their grievances; in fact, if they
really felt aggrieved, instead of remaining inactive, they should have acted
eight years before the date chosen to file their grievances;
c. Contrary to their submissions,
the applicants had not been performing the duties of their positions as
reclassified in August 2003 since October 1, 1995, and had not been
substantially exercising the duties of work description 0212105A before June 21, 2002;
d. With respect to continuous grievances,
in any event, acting pay would not exceed the period of 25 days preceding the
date of the filing of the grievances; in this case, the employer had already
granted 14 months of retroactivity.
IV. Issues
[11]
Was
the adjudicator unreasonable in his assessment of the facts and reasons, which
resulted in the dismissal of the grievances?
V. Analysis
A.
Standard of review
[12]
The
parties agree that, in light of the adjudicator’s expertise and the nature of
the issues, a high degree of deference must be granted to his decision; the
standard of review is therefore that of reasonableness (Dunsmuir v. New Brunswick,
2008 SCC 9; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12).
B. Duties and
responsibilities of the applicants
[13]
The
applicants maintained that the new work description did not bring fundamental
changes to their duties; however, the evidence produced before the adjudicator
did not convince him that, in concrete terms, the new work description did not
impose new duties and more responsibility on them and that the very nature of
some of their duties remained substantially unchanged.
[14]
Mr.
Lamy maintained that his duties only changed inasmuch as, in 1995, the DPWGS decided to transfer his
responsibilities to the band councils so that Aboriginal communities could play
a more active role; however, since then, his duties have stayed completely
unchanged.
[15]
For
his part, Mr. Pichon also maintained that his duties have stayed the same since
October 1, 1995, and that the new work description did not add anything significant
to his duties.
[16]
However,
the adjudicator noted in his decision that generic work description 0212105A differs
significantly from previous work descriptions. He pointed out that, in order to
standardize the applicants’ work description with that of their colleagues in
other regions, the Department not only added duties, but also increased the
level of responsibility of their duties. In truth, it was apparent even in the arguments
relating to their grievances before the adjudicator that the applicants were still
not performing all of the duties set out in their new work description; this
fact was obvious to the adjudicator and he noted the discrepancies between the
new work description and previous work descriptions.
[17]
In
short, it was up to the adjudicator to assess the facts and the applicants did
not succeed in persuading the Court that, in light of his analysis of the facts,
it was unreasonable on his part to find, for the reasons stated in his decision,
that, as of 1995, the applicants had not substantially performed the new duties
of the positions included in the new work description at the basis of the 2003 reclassification.
[18]
Even
though the applicants contested the view that their new work description resulted
in fundamental changes to their duties, given the evidence produced before the adjudicator,
he was at liberty to find that the new work description at the basis of their reclassification
included not only new duties, but also an increased level of responsibility.
[19]
All
of these modifications of duties were developed in 2002 and approved in 2003. Even supposing that the duties
that they performed did not really change with the new work description, this
does not in any way mean that they must be reclassified retroactively to October 1, 1995 (Cairns v. Treasury
Board (Minister of Citizenship and Immigration), [2006] C.P.S.L.R.B.
No. 131).
[20]
With
respect to the retroactive pay claimed on the basis of a higher salary scale
for a higher level of work performed since 1995, the applicants had to
demonstrate that, since then, they had substantially performed the new
responsibilities stemming from the reclassification of their positions. Given
the evidence produced, the adjudicator was able to state, unequivocally, that
the applicants had never, before this reclassification, assumed certain duties
that it added to their positions in August 2003, for example: fund management,
project delivery, results-oriented management and contract management.
[21]
In
short, the applicants were performing, before the new reclassification of their
positions, the duties stated in their former work description. Even though
these duties can be found in their new work description, it is well to recall
the fact that it added new responsibilities, hence the reclassification of
their positions to a higher level.
[22]
Therefore,
it follows that it was not unreasonable for the adjudicator to find that the
applicants were not performing, from 1995, the duties stated in the 2003 description
and for which they sought retroactive pay.
C. Acting
pay
[23]
Alternatively,
the applicants maintain that the adjudicator committed an error of law in his interpretation
of the case law concerning acting pay. They claim that the adjudicator incorrectly
found that the applicants could not claim acting pay for a period prior to that
of the period set for filing the grievance.
[24]
It
should be recalled that, regardless of whether their grievances had merit, the
employer nonetheless granted the applicants retroactivity starting from June 21,
2002, that is, the date when they actually requested the reclassification of
their positions. Do they have the right to more? The answer is certainly no if
they did not perform, as the adjudicator concluded, the new duties stemming
from the reclassification of the positions.
[25]
Since the Court finds that the arbitral award
concerning the substance of the applicants’ duties and responsibilities before
the reclassification of their positions in 2003 was reasonable, this argument is
completely moot because there was no violation of their rights, and thus they
have no right to acting pay. If there had been such a violation, given its
continuous nature, the Court does not see how the applicants would have been
able to claim acting pay for the period preceding that provided for in the Regulations
for the filing of grievances; and, in this case, subsection 71(3) of the Regulations
limits this period to 25 days (P.S.S.R.B. Regulations and Rules of Procedure
(1993), SOR/93-348).
VI. Conclusion
[26]
For all of these reasons, the Court finds that
the applicants did not establish that the impugned arbitral award was
unreasonable. Their application for judicial review will therefore be dismissed
with costs.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review, with costs.
“Maurice E. Lagacé”
Certified
true translation
Janine
Anderson, Translator
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