Date: 20090616
Docket: T-2168-07
Citation: 2009 FC 634
Montréal,
Quebec, June 16, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
diane bEgin, lucie bergeron, serge bernier,
joanne
bilodeau, France bonneville-hebert,
ginette
brasseur, carmelo fortunato, pierre hurtubise,
diane
ogleman, France riendeau, christiane saulnier,
francine
saumure, françois sauvageau
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicants are seeking judicial review of the decision by the Deputy Head’s
Nominee for Classification Grievances (DHNCG), accepting the recommendation of
a Classification Grievance Committee (Committee) to deny the applicants’
grievances and maintain the classification of their positions at the PM-04 group
and level.
II. Facts
[2]
In
February and March 2004, the applicants grieved the classification of their
position at the PM-04 level.
[3]
A
Committee heard their arguments on September 10, 2007, and on November 8, 2007,
recommended the maintenance of the classification of their positions at the PM-04
group and level. The applicants are contesting the DHNCG’s decision accepting
the Committee’s recommendation.
[4]
During the
hearing of the grievances, the Chair of the Committee informed the applicants [translation] “that
following their presentation, the Committee may consider it appropriate to
consult with management in order to clarify certain points and, in the event
that it provides information that contradicts the facts put in evidence, the
information will be forwarded to them for reply”.
[5]
All of the
documents produced by the applicants before the Committee were examined by it; it
even accepted that the applicants produced, after the hearing, five additional
job descriptions, which were also taken into account in its recommendation.
[6]
The
Committee subsequently saw fit to verify with management the effective date of
the job descriptions and certain information that was already part of the applicants’
job descriptions; however, the information obtained from management did not
contradict that of the applicants; that is why the Committee did not think it
was advisable to forward it to them.
[7]
The
applicants maintain that the Committee should have forwarded them the information
obtained from management and that in not doing so, despite its undertaking, the
Committee thus breached the principle of procedural fairness because they were
not able to make their arguments with respect to elements that, according
to them, are a bar to their claims. Moreover, they maintain that they did not
have the opportunity to fully present their case, given the refusal of the
Committee to receive all documentary evidence and to hear their arguments as a
result of time constraints and the conduct of the Chair of the Committee.
III. Issues
a. Was the DHNCG’s
decision made in breach of the principles of procedural fairness and natural
justice?
b. Was it
reasonable to maintain the applicants’ positions at the PM-04 level?
IV. Analysis
Standard of
review
[8]
The
Classification Grievance Committee assumes highly specialized roles and has expertise
in matters of classification that the Court has recognized in several decisions.
Given the nature of the issues, the Court must show the Committee’s decision a
high degree of deference (Trépanier v. Canada (Attorney
General),
[2004] F.C.J. No. 1601, paragraph 22; Beauchemin v. Canada (Agence
canadienne d’inspection des aliments), [2008] A.C.F. No. 238,
paragraph 20; Adamidis v. Canada (Treasury
Board),
[2006] F.C.J. No. 305, paragraph 24) and apply the standard of review of reasonableness
(Dunsmuir v. New Brunswick, 2008 SCC 9). Of
course, this is on condition that there was no breach of procedural fairness as
the applicants claim.
Procedural
fairness
[9]
The
case law recognizes the administrative nature of the process followed before a
Classification Grievance Committee; this process does not necessarily involve an
adversarial context. “. . . [T]he case before me involves an administrative
decision as opposed to a judicial or quasi-judicial decision and, therefore,
the applicants are only entitled to a minimum level of fairness” (Chong v.
Canada (Attorney General), [1995] F.C.J. No. 1600, paragraph 40).
The process was in accordance with procedural fairness if the complainants had
the opportunity to make their arguments relating to the classification of their
positions and to be heard, and if there was no restriction on their participation.
[10]
While
they had the opportunity to appear before the Committee, the applicants
maintain that they were not given full and ample opportunity to make all of
their arguments on the classification of their position because of the manner
in which the hearing was conducted.
[11]
In
fact, the applicants maintain that the Committee refused to receive documents during
their presentation, and used the pretext of time constraints; in addition, the
Chair of the Committee had a hostile attitude towards them.
[12]
Committee
members were entitled to inquire about the time required by the applicants to
complete their presentation without fearing being reproached today for having inappropriately
restricted the time allocated to them to complete their presentation. Committee
members have the right to manage the hearing process, including inquiring about
the time required for presentations and deciding when to suspend, adjourn or
proceed with the hearing.
[13]
If
it is true in this case that a Committee member indicated that it was
impossible to extend the morning hearing past a certain hour, the applicants
were nevertheless informed at the same time that, if necessary, their
presentation could continue that same afternoon. If the applicants did not accept
the proposal made to them by the Committee, they have only themselves to blame.
[14]
As
the hearing before the Committee was not recorded and no transcript is
available, the Court must rely on the contradictory affidavits of the parties
with respect to their submissions on the conduct of the hearing, the process that
was followed, and the remarks by Committee members. The Court cannot, on the
basis of only the affidavits produced by the parties, agree with the applicants
or find that they were inappropriately interrupted or hurried during their
presentation. The Committee’s version is just as valid as that of the
applicants on this point. The applicants had the burden of persuading the Court
as to their submissions but it cannot accept their claims.
[15]
Certainly,
the applicants were able to make all of their arguments in support of their
submissions. They even sent extra information to the Committee, after the
hearing, which received and examined it.
[16]
In
short, the applicants were unable to demonstrate to the Court how the Committee
could have breached procedural fairness or any other rule of procedure that it
was legally required to comply with.
Right of
reply
[17]
The
applicants maintain that, contrary to what is stated in the report, the
information provided by management to the Committee, after the hearing,
contradicts their arguments, and thus the Committee should have granted them a
right of reply.
[18]
The
applicants had every opportunity to make their arguments. The Committee heard
them and took note of them. Consequently, we may wonder: what would have been
the use of a reply? They would have merely been able to reiterate before the
Committee the arguments already made. The Court does not see how the refusal of
the Committee to grant a right of reply to the applicants can constitute in
this case a breach of the principle of procedural fairness. Not accepting the
applicants’ arguments or not allowing them to reiterate the same arguments does
not constitute a breach of the principle of natural justice and even less so a breach
of the principle of procedural fairness.
[19]
This
finding is all the more relevant because the subsequent information provided by
management was not new and the applicants had every opportunity to make their submissions
on this during their presentation. In fact, the management representative merely
confirmed after the hearing certain information already produced by the
applicants and appearing in their job descriptions; it consisted of the
following elements: confirmation of the effective date of their job description;
their obligation to stay in contact with various stakeholders, such as the media,
which was already part of their job description; the fact that the applicants
were always responsible for the proper progression of their files from start to
finish; the fact that the nature of the decisions made by the applicants was
consistent with their presentation before the Committee.
[20]
In
short, management did not provide any information to the Committee that the
applicants did not know about or could not anticipate. Furthermore, for
analysis purposes, the Committee had to rely on the content of the job description
and could not take into account contradictory or divergent external elements.
[21]
The
grievance process relating to the classification of positions does not
necessarily involve an adversarial context (Utovac v. Canada (Treasury Board),
2006 FC 643, paragraph 16), even if the Committee is required to act with
fairness and give the grievor full opportunity to express
himself or herself on central issues. However, even supposing that the
applicants had the right to an adversarial context, their right of reply
would be limited to new facts raised by the opposing party. In this case, there
was no information that the applicants did not know about or could not have anticipated and that could warrant a right of reply.
[22]
The
applicants did not establish to the satisfaction of the Court that the
procedure followed by the Committee constituted a breach of the principle of
procedural fairness. The Committee, consequently, exercised its discretionary
authority correctly.
Reasonableness
of the decision
[23]
The
applicants did not make any submission that could potentially persuade the
Court that the decision to maintain their positions at the PM-04 level
was unreasonable; they opted to contest the procedure that was followed rather
than the substance of the decision. There is therefore no cause for
intervention.
V. Conclusion
[24]
For
all of these reasons, the Court finds that the applicants did not demonstrate
that the decision being contested 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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