Date: 20081203
Docket: T-2036-07
Citation: 2008 FC 1344
Ottawa, Ontario, December 3,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
BARRY
GERUS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Barry
Gerus brought an application for judicial review of the decision of Gloria
Kuffner, Assistant Commissioner, Canada Revenue Agency (CRA), rejecting his
application for “Preferred Status” with the CRA in Prince Edward Island in order to
provide parental care for his ailing mother.
Decision
Under Review
[2]
Ms.
Kuffner’s decision was made in relation to the Preferred Status Directive
which allows a CRA employee, who relocates on a temporary or permanent basis
for, among other things, the purpose of providing care for parents, to apply
for priority in employment postings in the relocation area. The Preferred
Status Directive was implemented by the CRA pursuant to its authority as a
separate government agency to establish its staffing policy.
[3]
Mr.
Gerus had applied for Preferred Status in 2007 under the Preferred Status
Directive. When his application was rejected, he applied for “Individual
Feedback”, essentially a review of the decision, to Donna May, Director
General, Client Relations and Business Management Directorate, who denied his
application. Mr. Gerus then applied for a second level review, termed a
“Decision Review”, to Gloria Kuffner, Assistant Commissioner.
[4]
Ms.
Kuffner reviewed Mr. Gerus’ request and issued her decision. She did not
accept any submissions from Mr. Gerus who had requested the opportunity to make
a submission. Ms. Kuffner upheld the decision to deny Preferred Status
stating:
I have reviewed your request for Decision
Review, the Individual Feedback response provided by Donna May, Director
General, Client Relations and Business management Directorate, and the
Directive on Preferred Status. The decision by Donna May was based on the
Preferred Status Directive, which included the requirement that the employee
relocate on a temporary or permanent basis for the purposes of parent care. In
your situation, you were already residing in Prince Edward Island and your parent relocated
afterwards. My findings are that you were not treated in an arbitrary way and
I am upholding the decision to deny preferred status for the purpose of parent
care.
Background
[5]
Mr.
Gerus began working with the Department of National Revenue in 1998, he remained
with the organization during successive restructuring, and continued his employment
with the successor organization, the CRA, in Ottawa in 2006.
[6]
In
January 2003, his mother suffered a stroke. She required constant care and
entered a nursing home that year. Mr. Gerus eventually became aware she was
unhappy in the nursing home and considered having her move in with his family. His
home in Vars, approximately 30 kilometers outside Ottawa, was too
small to accommodate his mother in addition to his family. He decided they
were not able to afford a larger house in the Ottawa area that
was within a 45 minute commuting distance to work.
[7]
He
investigated moving elsewhere in Canada to find affordable
housing of sufficient size close enough to a CRA office so he could continue
working. He purchased a larger house in PEI in January
of 2006. The family moved in July 2006, and undertook renovations to make the
house wheelchair accessible. Mr. Gerus went on leave without pay for
family-related needs on August 8, 2006. Mr. Gerus’ mother moved to the Gerus
residence, in PEI, in April
2007. Mr. Gerus states his intention all along was to find a house so he could
care for his mother.
[8]
Mr.
Gerus applied for Preferred Status under the CRA’s Staffing Program on
June 19, 2007. His application was rejected by the Director General,
Donna May.
[9]
He
applied for Individual Feedback, which is the first stage of recourse on the
decision not to grant Preferred Status. On September 12, 2007, Ms. May
conducted the Individual Feedback session with Mr. Gerus by telephone. The
following day she rejected Mr. Gerus’s application.
[10]
Mr.
Gerus applied for a Decision Review, which is the final recourse under the CRA’s
Staffing Program for a Preferred Status decision. He requested an
opportunity to provide evidence and make submissions to Ms. Kuffner, Assistant
Commissioner, in the Decision Review. It does not appear from a review of the
record that Mr. Gerus was informed that his request to make submissions was not
accepted.
[11]
Ms.
Kuffner denied Mr. Gerus’ Decision Review appeal on October 10, 2007; that
decision was transmitted to Mr. Gerus by mail on October 29, 2007.
[12]
Mr.
Gerus applied for judicial review of the Decision Review on November 21, 2007.
One of his grounds for judicial review was that he was denied an opportunity to
make submissions. After Mr. Gerus’ application for judicial review commenced,
the Respondent proposed, on or about February 11, 2008, that he discontinue his
application for judicial review in exchange for the opportunity to make
submissions to Ms. Kuffner. Mr. Gerus declined the offer.
Issues
[13]
The
issues in this judicial review are as follows:
1. Was
the Applicant denied procedural fairness? If there was a breach of procedural
fairness, is the Applicant estopped from arguing a breach of procedural
fairness because he declined the Respondent’s offer to make submissions to the
decision maker?
i.
Is
the decision to deny the Applicant Preferred Status is unreasonable?
Standard of Review
[14]
The
first issue involves procedural fairness. If the conduct challenged involves a
breach of procedural fairness, then no assessment of an appropriate standard or
review is required (Morneau-Bérubé v. Nouveau Brunswick (Judicial Council),
2002 SCC 11, at para. 74). A breach of procedural fairness will result in
setting aside of a tribunal’s decision.
[15]
Both
Applicant and Respondent applied the pragmatic and functional approach to
determine that the standard of review of the Review Decision by Ms. Kuffner
should be reasonableness.
[16]
I
agree with the Applicant and Respondent. In Dunsmuir v. New Brunswick, 2008
SCC 9, at paragraphs 52-56, the Supreme Court of Canada discusses the standard
of review for questions of mixed fact and law, questions of fact, and questions
of policy or discretion. As this application involves questions of fact and
policy, I conclude the standard of review is reasonableness.
Law
[17]
The
CRA is granted exclusive authority by Parliament to staff its organization
pursuant to Section 53(1) of the Canada Revenue Agency Act (CRAA)
|
Appointment of employees
53. (1) The Agency has the exclusive right and authority
to appoint any employees that it considers necessary for the proper conduct
of its business.
|
Pouvoir d’embauche de l’Agence
53. (1)
L’Agence a compétence exclusive pour nommer le personnel qu’elle estime
nécessaire à l’exercice de ses activités.
|
[18]
Justice
Russell in Professional
Institute of the Public Service of Canada v. Canada (Customs and
Revenue Agency), 2004 FC 507, at para. 34, found that the staffing regime
under the CRAA was “intended to be flexible, timely, effective and
non-adversarial. The guiding principles include quick and early resolution of
concerns, the promotion of a workplace culture of respect, open communication
and an appropriate level of management accountability.”
[19]
Section
54(1) and (2) of the CRAA gives the CRA the authority and the obligation to
establish a program to govern staffing.
|
Staffing program
54. (1) The Agency must develop a
program governing staffing, including the appointment of, and recourse
for, employees. (underlining added)
Collective agreements
(2)
No collective agreement may deal with matters governed by the staffing
program.
|
Programme de dotation
54. (1)
L’Agence élabore un programme de dotation en personnel régissant notamment
les nominations et les recours offerts aux employés.
Exclusion
(2)
Sont exclues du champ des conventions collectives toutes les matières régies
par le programme de dotation en personnel.
|
That program must include recourse for
employees. Recourse is not defined in the CRAA or in the CRA Staffing
Program or its directives. However, the word ‘recourse’ connotes something
other than a simple appeal of a decision.
[20]
The
CRA Staffing Program provides for recourse. The Program Statements set
out that individuals have access to recourse mechanisms including Individual
Feedback, Decision Review Process, and Independent Party Review, depending on
the nature of the staffing activity and the Directive on Recourse for
Staffing provisions.
[21]
The
CRA Staffing Program also provides that Preferred Status may be
available for employees that wish to relocate for the purpose of parental care.
The Directive on Preferred Status states:
Staffing
Program – Directive on Preferred Status
1.
Granting
Preferred Status
1.3
Preferred
Status may apply to the following situations:
(d) Employee who wishes to relocate on a
temporary or permanent basis for purposes of parent care;
3.4
Employee
who wishes to relocate on a temporary or permanent basis for the purposes of
parent care
An employee with a parent who needs care
and support on a temporary or permanent basis (due to convalescence, for
example) may take an unpaid leave of absence in order to care for the parent on
a full-time basis, as outlined in governing collective agreements… Where the
employee is still available to work during regular working hours, Preferred
Status could still be approved to facilitate the relocation of the employee to
allow the employee to continue to work without requiring a leave of absence.
The same conditions would still apply as noted below.
3.4.1
Permanent
relocation
a. Requirement for Preferred
Status:
On presentation of medical certification
that the parent requires permanent assistance, the employee will be granted
Preferred Status for a permanent appointment.
[22]
The
Directive on Preferred Status provides for recourse on denial or
rescission of a Preferred Status first by Individual Review, and then by
Decision Review. It specifies that recourse will take into account “whether
the individual was treated in an arbitrary way” as defined in the Directive
on Recourse for Staffing.
Analysis
Was the Applicant denied procedural
fairness? If there was a breach of procedural fairness, is the Applicant
estopped from arguing a breach of procedural fairness because he declined the
Respondent’s offer to make submissions to the decision maker?
[23]
The
Respondent admits Mr. Gerus did not have the opportunity to make submissions to
Ms. Kuffner in the Decision Review process. However, the Respondent contends
that he had full opportunity and did make submissions during the Individual
Feedback review, and that those submissions were before Ms. Kuffner.
[24]
Jurisprudence
has held that the rules of natural justice and procedural fairness apply to the
CRA’s recourse mechanism. Professional Institute, at paras. 88 – 92.
In Anderson v. Canada (Customs and Revenue
Agency),
2003 FCT 667, at para. 46, Justice Dawson stated:
46 Procedural
fairness requires a meaningful opportunity to present relevant facts and to
have one's position fully and fairly considered by the decision-maker. As noted
by Madam Justice L'Heureux-Dubé in Baker, supra, at page 837, the purpose of
the participatory rights contained within the duty of fairness "is to
ensure that administrative decisions are made using a fair and open procedure,
appropriate to the decision being made and its statutory, institutional and
social context, with an opportunity for those affected by the decision to put forward
their views and evidence fully and have them considered by the
decision-maker".
[25]
The
Respondent does not offer any Program Staffing rules or other authority for the
proposition that an employee’s submissions at the Individual Feedback suffice
for a subsequent Decision Review. I think it does not suffice because the Directive
on Recourse for Staffing expressly refers to an opportunity for the
employee to participate at both the Individual Feedback and Decision Review
stages.
[26]
At
the Individual Feedback stage the directive states in part:
The employee:
i.Shall
clearly articulate the nature of his or her questions or concerns.
ii.Is
encouraged to actively participate in the Individual Feedback session in order
to further the management of his or her career.
And at the Decision Review stage the
directive states in part:
The
Authorized Person responsible for the staffing action:
iii.Will
forward a copy of the written request for Decision Review to his or her
supervisor, or designate, who will conduct the review, along with a summary of
facts and the results of the Individual Feedback.
The reviewer (supervisor of the
Authorized Person responsible for the staffing action or selection process or
his/her designate):
iv.Will
have the discretion as to how to proceed with the review. This could include
conducting a review by paper, teleconference or in-person. First consideration
should be given to conducting the review by paper, whenever possible.
v.Must
ensure that the review is conducted in an impartial manner and that the
Authorized Person and the employee exercising recourse have the opportunity to
present their views.
The employee:
vi.Should
ensure that the concerns are sufficiently detailed to allow the Authorized
Person’s supervisor to respond to them. Incomplete requests for Decision
Review, as deemed by the hiring manager’s supervisor will not be accepted.
vii.May
choose to be accompanied by an individual of their choice.
[27]
There
would be no need to repeat the requirement for an opportunity to make
submissions at the Decision Review stage if initial submissions at the
Individual Feedback stage were all that were to be contemplated. An individual
may choose to waive the opportunity to make further submissions and rely on the
initial submission but that is not the situation here.
[28]
Although
the above Decision Review procedure requires the employee to ensure that the
concerns are sufficiently detailed to allow the Authorized Person’s supervisor
to respond to them and the decision Review Request Form specifies that requests
must be sufficiently detailed, they do not obviate the duty required of the
decision reviewer to allow the employee the opportunity to express his views. Again,
an individual may choose to rely solely on the information provided in the
request form; Mr. Gerus did not.
[29]
The
CRA Staffing Program rules for the Decision Review process do not
necessarily provide for a hearing but they do make mandatory the provision of
an opportunity for the employee exercising recourse to present his views in
whatever manner in the Decision Review.
[30]
The
Respondent relies mainly on its contention that the Mr. Gerus was offered the
opportunity to make further submissions if he discontinued his application.
Since Mr. Gerus declined this offer, the Respondent submits that he is estopped
from raising this argument based on McConnell v. Canadian Human Rights
Commission and CRA, 2005 FCA 389. However, in McConnell, the fact
situation was different. There the applicant was informed of the opportunity
to review and reply to the respondent’s defence before, not after, the decision
was made. Here, the Decision Review was made on October 10, 2007 and
transmitted to Mr. Gerus on October 29, 2007. He commenced his application for
judicial review on November 21, 2007. The Respondent’s offer to Mr. Gerus was
made approximately three months after the Review Decision was made.
[31]
The
Respondent offers another analogous situation: the hypothetical failure of the individual
to file a Notice of Appearance or Defence after being served with an
originating document under the Federal Court Rules. The individual
cannot subsequently complain of not receiving notice of the proceedings.
Again, the Rules contemplate an individual first receiving notice of the
originating document.
[32]
The
third analogy offered by the Respondent was that of individuals who withdrew
from a plan, and then complained about not receiving additional benefits. Hembruff
v. Ontario Municipal Employees Retirement Board, [2005] OJ No. 4667, paras.
123-4. I do not consider this analogy to be persuasive since Mr. Gerus had
not withdrawn from the process and was expressly seeking an opportunity to
present his views.
[33]
The
requirement for an opportunity to make submissions in the Decision Review
arises from the CRA Staffing Program. The CRA must be presumed to know
its own rules from the onset. Further, the Respondent does not offer any
explanation why it waited two and a half months after an application for
judicial review was commenced to extend the offer to make submissions in the
Decision Review process.
[34]
The
CRA’s subsequent offer to Mr. Gerus was an opportunity to make submissions to
Ms. Kuffner, the very person who had denied his request in the Decision
Review. An administrative request may be referred to the same decision-maker
on reconsideration. I take this view having regard to the decision of Justice
Dawson in Anderson, where she
stated:
48 Procedural fairness also
requires that decision be made free from a reasonable apprehension of bias by
an impartial decision-maker. It is not, in my view, axiomatic that a person
responsible for a selection board will by virtue of that position not be
inclined to change the decision of the selection board if it is shown an error
was made. As matter of law, in
the absence of statutory restriction, non-adjudicative decisions may be
reconsidered and varied.
(See Brown & Evans, Judicial Review of Administrative Action in Canada,
looseleaf (Canvasback Publishing: Toronto 1998) at 12:6100.) Given the
apparent absence of any pecuniary or material interest on the part of the
manager providing Individual Feedback in the mater under review, and the nature
of the decision under review, it seems to me that a less demanding standard of
impartiality is required then that applied to decisions of a judicial nature.
The evidence does not establish that the persons providing the Individual
Feedback will by virtue of that fact alone have an impermissibly closed mind.
(underlining added)
[35]
In
a recourse process, reconsideration must involve a willingness or direction to
consider anew the subject of the previous decision. It is not clear whether
the Respondent’s offer to Mr. Gerus was that he may make submissions in a
fulsome reconsideration of his request, or if the offer was restricted in that he
was only being allowed to make submissions in the more difficult context of
having to overcome a decision already made.
[36]
Given
the Respondent’s offer to allow Mr. Gerus an opportunity to make submissions was
equivocal about a reconsideration of the Decision Review, I do not see that his
refusal estops him from continuing with his application for judicial review.
[37]
Justice
Russel stated at para. 88 of Professional Institute that:
88 The rules of natural justice
have not been ousted by necessary implication in the wording of the CCRAA.
Accordingly, in the absence of express statutory language to the contrary,
Parliament must have intended that the Agency would create a method of staffing
recourse that adheres to the rules of natural justice and procedural fairness.
The CRA is required to adhere to the procedural
fairness rules in its recourse process as Parliament intended it must. The CRA
has failed to adhere to its own recourse procedural fairness rules.
[38]
I
conclude that Mr. Gerus’ right to procedural fairness was breached. He was not
given the right to an opportunity to express his view as required by the Directives
on Recourse for Staffing.
Was the decision reasonable?
[39]
Finding
as I have that there was a breach of procedural fairness; I need not address
the question of the reasonableness of the decision.
Conclusion
[40]
The
application for judicial review is granted.
[41]
I
am left with one further question: whether to refer the matter back to the
same decision-reviewer or some other alternate as the Preferred Staffing
Directive provides. In the Respondent’s record before me is an email by Ms.
May dated September 13, 2007, where she forwarded a draft response to Mr. Gerus
on the Individual Feedback exercise to corporate CRA for feedback and advice.
That email contains the following paragraph:
I advised you that a request for decision
review should be sent to me, which I would forward to Gloria Kuffner. I
also advised you that Gloria had been briefed on this file and would also
support corporate HR’s position. (underlining added)
[42]
In
the letter sent to Mr. Gerus, the second sentence is deleted. I pause to
observe that the deleted sentence in the draft letter cannot be taken as
evidence that Ms. Kuffner had already decided the Decision Review. Nevertheless,
given the foregoing, I consider the better approach would be to refer the
Decision Review back to an alternate decision reviewer for re-determination.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is granted.
2. The
matter will be referred back to an alternate decision reviewer for re-determination.
3. I
make no order on costs.
“Leonard
S. Mandamin”
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