Date: 20070124
Docket: T-2053-05
Citation: 2007
FC 72
Halifax, Nova Scotia, January 24, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ANDREW
D. AMOS
Applicant
and
THE DEPARTMENT OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
and the ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by which a grievance decision of the
Assistant Deputy Minister of Public Works for Canada is
challenged by Andrew Amos. These are my reasons given orally at Halifax on January
23, 2007. I am dismissing this application.
[2]
Mr.
Amos is a Public Works employee and the underlying dispute with his employer
arises out of a grievance filed at the 4th level on September 8,
2005. That grievance was dismissed by letter dated October 17, 2005 from the
Assistant Deputy Minister. A portion of that letter reads as follows:
I find that the Department
did handle this situation properly. You received a pecuniary award as part of
a group. Treasure Board’s Recognition Policy states that the award should not
exceed $10,000 for groups. It in no way states that the group shall receive
$10,000. The policy also states that partners from other governments or
sectors, who are members of eligible teams, may be granted a departmental award
that is non-monetary.
I have therefore concluded
that I cannot grant the corrective action you have requested and therefore must
deny your grievance.
[3]
Mr.
Amos’ grievance concerned the amount payable to him for a workplace Award of
Excellence that he and a group of six other employees had received in
recognition for their contributions to the construction of the Cumberland County RCMP detachment
building.
[4]
It
was on Mr. Amos’s initiative that the nomination of a seven member project team
for this award was submitted. When the award was initially confirmed it was in
the amount of $10,000 intended to be divided equally among the seven nominees.
However, it was later determined that three of the team members were not
eligible for an award. In the result each of the remaining four award
recipients was given a prize of $1,428.57. That figure represented the original
proportionate amount that was to be given to each of the original seven
nominees.
[5]
Mr.
Amos brought a grievance claiming that the proposed $10,000 cash award ought to
have been divided four ways and he claimed to be owed $1,071.43. His grievance
was dismissed on the basis that the employer had discretion under its
recognition policy to award up to $10,000 to an eligible group. According to
Public Works, when the composition of this group was changed from seven to four
there was no compelling reason and no obligation to increase the intended
individual allotments or to ensure that the $10,000 was fully disbursed.
[6]
Mr.
Amos now says that this decision is legally untenable because the Assistant
Deputy Minister failed to consider all of the evidence and failed to adequately
explain the rationale for rejecting the grievance.
[7]
Mr.
Amos is also concerned with the fairness of the decision-making process and
says that he was entitled to a more cogent explanation in the face of his
employer’s unfulfilled promise to pay $10,000 to his group.
[8]
With
respect to Mr. Amos’ substantive complaints it is clear that the decision-maker
is entitled to some deference. I do not need to decide what that standard of
review is for this case because by any standard the decision stands up to
scrutiny.
[9]
The
employer had no legal obligation to Mr. Amos. This award was discretionary and
gratuitous. The e-mail relied upon by Mr. Amos, insofar as it may represent a
promise, also creates no substantive legal rights favouring Mr. Amos. This
point is made in the Baker case (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817) in its discussion about
the doctrine of reasonable expectations. This is, therefore, not a promise that
Mr. Amos can legally enforce and no error of law arises with respect to the
employer’s treatment of this issue.
[10]
Mr.
Amos gave no consideration for the intended payment or for the promise of
$10,000 and he has identified no cause of action supporting any legal
entitlement to the additional money he now seeks. No theory of contract or
alternative theory such as unjust enrichment or estoppel arises on the evidence
put forward. The employer’s recognition policy creates no legal obligation to
pay any particular amount when it makes such an award. Here the employer
decided to award $10,000 to what it thought was a group of seven recipients.
When the group of eligible recipients was reduced to four, there was nothing
unreasonable about maintaining the size of the original individual shares at
$1,428.57. That point was made in the memorandum prepared for the Assistant
Deputy Minister where the following was stated:
A cash prize up to $10,000 was determined
to be appropriate for the group of seven (7) people. However, the group
ultimately consisted of four (4) people. This does not mean that each is now
entitled to receive ¼ of $10,000.
I think that the above
statement does represent a correct interpretation of the employer’s recognition
policy.
[11]
This
decision evinces no failure to consider evidence. Here, I accept the
Respondent’s position that there is a presumption that a decision-maker has
considered all of the evidence placed before it whether it refers to all of
that evidence or not in the decision. For this point I rely on Townsend
v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 516, 2003 FCT 371 at
paragraph 26. That point is particularly true for administrative decisions of
this type which attract the fewest procedural rights. This was also a very
simple grievance and it was fully and briefly articulated by Mr. Amos in his
written submissions to the employer. I do not believe that the failure to mention
the supposed promise of $10,000 in the decision letter indicates that this
point was overlooked. Furthermore, I am not convinced that the e-mail from Mr.
Claveau gives rise to an unequivocal promise or undertaking on behalf of the
employer. There is no evidence of the number or composition of any other groups
receiving a similar award from which I could conclude that the failure to pay
Mr. Amos’ group the $10,000 was arbitrary, capricious or unfair. Absent clear
and convincing evidence on this issue, which might have been developed on
cross-examination, I am of the view that the employer was entitled to change its
position when the circumstances affecting Mr. Amos’ group changed.
[12]
This
decision does not violate the employer’s recognition policy nor does it detract
from Mr. Amos’ view that the award was intended to recognize hard work. His
work and that of his colleagues was recognized. He received a cash award. He
and his team were appropriately complimented for their efforts. The grievance
decision is a reasonable application of the employer’s policy to the evidence
and cannot be criticized.
[13]
Having
heard the submissions of counsel with respect to costs I award $500.00 payable
to the Respondent inclusive of disbursements.
JUDGMENT
[14]
This
application is dismissed with costs payable to the Respondent in the amount of
$500.00 inclusive of disbursements.
"R.L.
Barnes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2053-05
STYLE OF CAUSE: ANDREW D. AMOS v. THE DEPARTMENT OF PUBLIC WORKS and GOVERNMENT SERVICES CANADA and the ATTORNEY GENERAL OF CANADA
PLACE OF
HEARING: Halifax, Nova Scotia
DATE OF
HEARING: January
23, 2007
REASONS FOR
JUDGMENT: Barnes J.
DATED: January
24, 2007
APPEARANCES:
|
James D.
MacNeil
|
FOR THE APPLICANT
|
|
Susan Inglis
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Boyne Clarke
Halifax, NS
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Department of Justice
Halifax, Nova Scotia
|
FOR THE RESPONDENTS
|
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