Date: 20081218
Docket: T-540-08
Citation: 2008 FC 1397
Ottawa, Ontario, this
18th day of December 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
Harjinder JOHAL and
Thomas STASIEWSKI
Applicants
and
CANADA REVENUE AGENCY and
Christina MAO
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under section 18.1 of the Federal Courts Act, R.S.C.
1985, c. F-7, in the matter of a final level decision by Lysanne M. Gauvin,
Assistant Commissioner, Human Resources Branch of the respondent, the Canada
Revenue Agency, dated February 6, 2008, wherein she denied the applicants’
grievances that challenged the appointment without competition of Christina Mao
as a Team Leader (MG-05) at the Burnaby-Fraser Tax Services Office.
[2]
The
respondent Christina Mao was employed by the respondent Canada Revenue Agency
(the “Agency”), as a Team Leader (AU-03), before commencing a one year leave
without pay for personal needs in May 2000. Following this one year leave, she
took a five year “leave without pay for family-related needs”, purportedly to
care for her family. She gave birth to a child in September 2001.
[3]
However,
unknown to the Agency, during that five year leave, she worked full-time for
the Investment Dealers Association for that period.
[4]
In
September 2006, Ms. Mao advised the Agency that she was ready to return to
work. During her absence, the position was backfilled by another incumbent.
[5]
Since
Ms. Mao’s position had been backfilled, she was granted Preferred Status to
facilitate her placement to a permanent position based upon the Directive on
Preferred Status. She was given a temporary AU-03 position in Vancouver until a
permanent position was available for her in Burnaby.
[6]
On
May 11, 2007, without competition, she was given preferential treatment and
placed to a MG-05 Team Leader position in Burnaby, effective
May 22, 2007.
[7]
In
order to accommodate Ms. Mao’s appointment, the Agency cancelled the applicant
Harjinder Johal’s acting three-month assignment in the same position. He
had been selected from a qualified pool of candidates for this acting
appointment.
[8]
It
was only after Ms. Mao’s return to work in 2007 that management and the
applicants discovered she had worked full time while she was on leave for
family-related needs.
[9]
The
applicants, in their grievances, allege that Ms. Mao abused and violated the
terms of her leave without pay by occupying outside remunerated employment. She
should not have been granted Preferred Status and awarded the position granted
without a competition to which the applicants could have applied.
[10]
The
applicants allege that this illegal and unfair process prevented them from
obtaining the position and prejudiced their advancement opportunities in the
Agency.
[11]
Their
grievances passed three levels in the process and culminated in a decision at
the final level, which forms the object of this judicial review.
[12]
The
decision by Lysanne M. Gauvin, Assistant Commissioner, Human Resources Branch,
Canada Revenue Agency, denied the applicants’ corrective action for two reasons:
1. Subsection
208(2) of the Public Service Labour Relations Act, S.C. 2003, c. 22,
states that an employee cannot file an individual grievance in relation to a
matter for which another type of redress is provided for under any Act of
Parliament (in this case, Annex S of the Agency’s Staffing Program “Directive
on Preferred Status”, developed under the authority of subsection 54(1) of the Canada
Revenue Agency Act, S.C. 1999, c. 17; and
2. The
grievances do not concern the applicants.
[13]
This
application for judicial review raises the following issues:
1. Did the
Agency err in concluding that subsection 208(2) of the Public Service Labour
Relations Act precludes the applicants from presenting their grievances in
this matter? More particularly, do the Canada Revenue Agency Act and the
Agency’s Staffing Program provide recourse for staffing matters?
2. Can the
applicants file a grievance in respect of matters not related to their own
employment?
The Standard of Review
[14]
Questions
of fact and questions of mixed fact and law are reviewable on the standard of
reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
[15]
Questions
of law and jurisdictional questions are reviewable on a standard of
correctness. In Dunsmuir, supra, the Supreme Court of Canada stated
at paragraph 59:
. . . In other words, true jurisdiction
questions arise where the tribunal must explicitly determine whether its
statutory grant of power gives it the authority to decide a particular matter.
The tribunal must interpret the grant of authority correctly or its action will
be found to be ultra vires or to constitute a wrongful decline of
jurisdiction . . .
[16]
In
the present case, the decision-maker rendered a three fold decision:
A.
She found that the grievors did not have the right to challenge the
appointment of Ms. Mao;
B. She
found that there had been no abuse of process and/or abuse of authority;
C.
She did not possess the jurisdiction to entertain the grievances under
subsection 208(2) of the Public Service Labour Relations Act.
[17]
In
my view, the standard of review in A and C is correctness and is reasonableness
in B.
Pertinent Legislation
[18]
Subsections
208 (1) and (2) of the Public Service Labour Relations Act read as
follows:
|
208. (1) Subject to subsections
(2) to (7), an employee is entitled to present an individual grievance if he
or she feels aggrieved
(a) by the interpretation or application, in respect of
the employee, of
(i) a provision of a statute or regulation, or of a direction or
other instrument made or issued by the employer, that deals with terms and
conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award;
or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment.
(2)
An employee may not present an individual grievance in respect of which an
administrative procedure for redress is provided under any Act of Parliament,
other than the Canadian Human Rights Act.
|
208. (1) Sous réserve
des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief
individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application à son égard :
(i) soit de toute disposition d’une loi ou d’un règlement, ou de
toute directive ou de tout autre document de l’employeur concernant les conditions
d’emploi,
(ii) soit de toute disposition d’une convention collective ou
d’une décision arbitrale;
b) par suite de tout fait portant atteinte à ses conditions
d’emploi.
(2) Le fonctionnaire ne peut présenter de grief
individuel si un recours administratif de réparation lui est ouvert sous le
régime d’une autre loi fédérale, à l’exception de la Loi canadienne sur
les droits de la personne.
|
[19]
Section
53 and subsections 54(1) and 56(2) of the Canada Revenue Agency Act
read:
|
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.
(2)
The Commissioner must exercise the appointment authority under subsection (1)
on behalf of the Agency.
|
53. (1) L’Agence a compétence
exclusive pour nommer le personnel qu’elle estime nécessaire à l’exercice de
ses activités.
(2)
Les attributions prévues au paragraphe (1) sont exercées par le commissaire
pour le compte de l’Agence.
|
|
54. (1) The Agency must develop
a program governing staffing, including the appointment of, and recourse for,
employees.
|
54. (1) L’Agence élabore un
programme de dotation en personnel régissant notamment les nominations et les
recours offerts aux employés.
|
|
56. (2) The Public Service
Commission may periodically review the compatibility of the principles
governing the Agency’s staffing program with those governing staffing under
the Public Service Employment Act and may report its findings in its
annual report.
|
56.
(2) La Commission de la fonction publique peut vérifier périodiquement la
compatibilité des principes du programme de dotation de l’Agence avec les
principes régissant la dotation sous le régime de la Loi sur l’emploi dans
la fonction publique et faire état de ses conclusions
dans son rapport d’activités.
|
[20]
The
Agency is a corporate entity created under subsection 4(1) of the Canada
Revenue Agency Act:
|
4.
(1) The Canada Customs and Revenue Agency
is continued as a body corporate under the name of the Canada Revenue Agency.
(2)
The Agency is for all purposes an agent of Her Majesty in right of Canada.
(3)
The headquarters of the Agency must be at such place in Canada as may be designated by the
Governor in Council.
|
4. (1) L’Agence des douanes et
du revenu du Canada, dotée de la personnalité morale, est prorogée sous le
nom d’Agence du revenue du Canada.
(2)
L’Agence ne peut exercer ses pouvoirs qu’à titre de mandataire de Sa Majesté
du chef du Canada.
(3)
L’Agence a son siège au lieu au Canada fixé par le gouverneur en conseil.
|
[21]
Pursuant
to subsection 54(1), the Agency has implemented a Staffing Program and related
directives that provide recourse to its employees. Amongst the directives, the
Agency adopted Annex S – Directive on Preferred Status. This directive states
that “the purpose of granting Preferred Status is to endeavour to provide
continued employment to permanent employees of the Canada Revenue Agency […]”.
[22]
The
Staffing Program, at P6.2, mandates that the Agency place employees with Preferred
Status:
As part of the Staffing Program,
Authorized Persons are responsible for ensuring the placement of persons with
Preferred Status, as per the Directive on Preferred Status.
[23]
The
applicants in this case did not have Preferred Status. The Directive on
Preferred Status provides that employees without Preferred Status have no
recourse when an employee with Preferred Status is placed. At 5.2.3 it states:
Employees without Preferred Status are
not entitled to any recourse when an individual with Preferred Status is
appointed except as part of the recourse normally applicable to a selection
process (see article 2.3.2).
[24]
The
applicants rely upon paragraph 208(1)(b) of the Public Service Labour
Relations Act. However, this paragraph is limited by subsection 208(2).
[25]
The
applicants refer to the decision of the Federal Court of Appeal in Canada (Treasury
Board) v. Boutilier, [2000] 3 F.C. 27, leave to appeal to the
S.C.C. denied, [2000] S.C.C.A. No. 12.
[26]
In
this decision, the Court of Appeal concluded that an aggrieved employee will
only be disentitled from presenting a grievance because another redress is
provided if a “real remedy” is not available to the grievors. At paragraph 23,
the Court of Appeal states that there must be a remedy that can deal “meaningfully
and effectively with the substance of the employee’s grievance.”
[27]
In
an earlier decision, Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C.
354, at paragraph 20, the Court of Appeal reasoned that an administrative
procedure in redress “must be capable of producing some real redress which
could be of personal benefit to the same complainant.”
[28]
The
applicants plead that, based on the Federal Court of Appeal’s reasoning, they
have no recourse at all under the Canada Revenue Agency Act permitting
them to challenge Ms. Mao’s Preferred Status and her resulting appointment
pursuant to that Status.
[29]
The
respondents invoke the Directive on Preferred Status denying the applicants any
recourse on the attribution of the Preferred Status. They also submit that the
applicants could have challenged Ms. Mao’s appointment by an application for
judicial review to the Federal Court. (Respondent’s counsel for the Canada
Revenue Agency stated in open Court that she would not object to the
presentation of such an application even beyond the prescribed delays).
[30]
The
Canada Revenue Agency further submits that Parliament intended to provide the
Agency with the authority to create an exclusive regime to deal with all
staffing matters. There was no intention to subject staffing matters to the Public
Service Labour Relations Act and collective agreement grievance procedure.
Furthermore, section 34.04 of the collective agreement between the Agency and
the Professional Institute of the Public Service of Canada indicates that a
grievance cannot be presented if there is another administrative process which
addresses the recourse. Section 34.04 reads:
Subject to and as provided in Section 91
of the Public Service Staff Relations Act, an employee who feels that he
has been treated unjustly or considers himself aggrieved by an action or lack
of action by the Employer in matters other than those arising from the
classification process is entitled to present a grievance in the manner
prescribed in clause 34.02, except that:
(a)
where
there is another administrative procedure provided by or under any Act of
Parliament to deal with his specific complaint such procedure must be followed,
(b)
where the
grievance relates to the interpretation or application of this Collective
Agreement or an Arbitral Award, the employee is not entitled to present the
grievance unless the employee has the approval of and is represented by the
Institute.
[31]
The
respondent also submits that the applicants are trying to jump to the Public
Service Labour Relations Act and invoke the grievance process to circumvent
a redress mechanism provided for under subsection 54(1) of the Canada
Revenue Agency Act.
[32]
I
have to agree with the respondent’s position on this point. It would subvert
the Agency’s Staffing Program to permit the applicants to have recourse to a
grievance process for staffing matters that are addressed and governed by the Canada
Revenue Agency Act.
[33]
The
Staffing Program is an administrative process for recourse, even though it has
its remedial limitations on the applicants in this case; it is the complete
code that governs recourses for the Agency’s employees.
[34]
I
believe my position is supported by Justice James Russell’s decision in the
case The Professional Institute of the Public Service of Canada v. Canada Customs and
Revenue Agency, 2004 FC 507. In that case, the Staffing Program of the
respondent, the Canada Customs and Revenue Agency, was challenged on the basis
it provided an inadequate recourse procedure which did not respect the
principle of procedural fairness.
[35]
Justice
Russell dismissed the application as “speculative, premature” and because the Canada
Customs and Revenue Agency Act did not support the conclusion that it
provided an “unreasonable” recourse mechanism.
[36]
In
another case, Anderson v. Canada Customs and Revenue Agency, 2003 FCT
667, Justice Eleanor Dawson had to deal with an application from an
employee of the Canada Customs and Revenue Agency who was unsuccessful in
obtaining a position of Team Leader and who challenged the Agency’s staff
recourse procedure. The applicant invoked the process provided for by the Public
Service Employment Act and its interpretation and application of the
merit principle. Justice Dawson found that the then recourse mechanism by means
of an “Individual Feedback”, complied with the requirements of procedural
fairness. The point she made about “staffing practices” and the word
“recourse”, is useful here. Justice Dawson found that the Agency respected the
letter and the intent and the objective of the Act. It was therefore not
necessary or useful to consider other legislation, such as the Public
Service Employment Act which formerly regulated such matters, to determine
the interpretation of the new legislation or to equate employee recourse as
under the Public Service Employment Act (at paragraphs 30 to 33 of her
decision).
[37]
An analysis of the submissions of the parties on
the question of “recourses”, and differences between the Public Service
Labour Relations Act, the Canada Customs and Revenue Agency Act and
the Canada Revenue Agency Act legislations on this point, leads to the
conclusion that the applicants’ point of view cannot be accepted.
[38]
In essence, in creating the Canada Revenue
Agency Act, Parliament intended to provide this Agency with exclusive
authority to create a complete regime to deal with all staffing matters.
Recourse relating to staffing matters is provided to every Canada Revenue
Agency’s employee in every foreseeable situation relating to the full spectrum
of employer-employee relationship.
[39]
Concerning the second issue in this case: “Can
the applicants file a grievance in respect of matters not related to their
employment?”, the short answer to this question, in my opinion, is “no”.
However, particularly in the case of the applicant Harjinder Johal, the grievance
did directly affect his employment, since he acted in the sought-after position
for a period of three months and he was interested in occupying it on a more
permanent basis. Ms. Mao’s appointment prevented the applicant Johal from
achieving this goal.
[40]
Notwithstanding this conclusion, it remains that
the applicants had to file an application for judicial review after being
notified that Ms. Mao had been placed at the MG-05 Team Leader position in May
2007, to challenge this appointment.
[41]
Considering the above reasons, the applicants’
basis for a judicial review relying on the grievance process and their
recourse, must fail.
[42]
However, the applicants have obtained the
respondent’s consent to present an application for judicial review of the
decision appointing Ms. Mao to the above described position, after the
expiry of the time limit.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES THAT:
This
application for judicial review is dismissed with costs.
The
applicants are authorized to present an application for judicial review of the
decision to appoint Christina Mao to the Canada Revenue Agency’s position MG-05
– Team Leader, in May 2007, beyond the time limit, provided it is filed
within thirty (30) days of the present Judgment.
“Orville
Frenette”
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