Date: 20080512
Docket: T-1113-07
Citation: 2008 FC 596
Ottawa, Ontario, May 12,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
CHARLENE
COX
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Charlene Cox, the Applicant, applies for judicial review pursuant to Section
18.1 of the Federal Courts Act R.S.C. 1985, c. F-7, of a decision, dated
May 9, 2007, of Mr. William McDowell, Associate Deputy Minister (“ADM”) at the
Department of Justice.
BACKGROUND
[2]
The
Applicant is a paralegal employed by the Department of Justice in the
Aboriginal Law Section in British Columbia. She was dissatisfied
with her Performance Review Employee Appraisal Report (“PREA Report”) dated
July 6, 2006, for the period of April 1, 2005 to March 31, 2006 and filed a
grievance pursuant to section 208 of the Public Service Labour Relations Act,
S.C. 2002, c.22. She was successful at the second level of the grievance
procedure. The Senior Regional Director allowed the grievance in part noting
that firstly, the interim PREA Report was not provided to the Applicant in a
timely manner, and secondly the report did not contain narrative comments about
the Applicant’s performance for the entire year. As a result, these first
interim and final PREA Reports were removed from her personnel file.
[3]
A
second PREA Report was conducted and completed on December 13, 2006. The
Applicant received, as in her previous PREA Report, an overall global rating of
2 on a 4 point scale, with 2 being an unsatisfactory rating.
[4]
The
Applicant took issue with the second PREA Report at a mediation session conducted
on December 15, 2006 which had been convened to attempt to resolve workplace
issues. As a result of the mediation, a Memorandum of Understanding (“MOU”)
was signed between the parties. Article 5 of that MOU provides that the
parties are to:
review and amend the most recent draft
review and global rating so that it objectively, fairly and accurately reflects
her work performance review period.
The performance review was subsequently revised
to incorporate a more positive tone in reference to the Applicant, together
with some additional commentary, but the global rating remained at 2.
[5]
The
Applicant reactivated her grievance which was brought before the ADM. After
receiving written and oral submissions, the ADM denied the grievance.
DECISION UNDER REVIEW
[6]
The
ADM considered the Applicant’s submissions on the MOU agreement. He stated
(Applicant’s Record at 169):
I have found no information in the
document you provided that prevents the employer from assessing performance
against work objectives that are mutually established by a supervisor, in this
case Mr. Christoff and yourself at the outset of the review period.
[7]
The
ADM went on to hold that he found no evidence that the outcome of the PREA
process was a result of malice harboured against the Applicant. The ADM was
satisfied that the Applicant’s supervisor provided appropriate feedback and
support throughout the review period. He concluded by noting that he was not
in a position to evaluate the Applicant’s work and would not substitute his own
opinion for that of her supervisor. In result, the grievance was denied.
STANDARD OF REVIEW
[8]
Counsel
for the Applicant thoroughly addressed the issue of the standard of review in light
of the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9. She indicated that the Supreme Court of Canada in Dunsmuir
held that there were only two standards of review, correctness and reasonableness;
and that, in determining a standard of review, the Court should consider
whether prior jurisprudence had determined the appropriate standard of review
for a particular question. If not, then an analysis was to be undertaken to
determine the standard of review.
[9]
Counsel
for the Applicant submitted that prior jurisprudence on the standard of review
had come to varied conclusions. In Canada (Attorney
General) v. Assh (2006), 274 D.L.R. (4th) 633 (F.C.A.), a case which
involved a conflict of interest issue, the standard of review was held to be
correctness. In Desloges v. Canada (Attorney General), 2007 FC 60, a
case involving the judicial review of an Associate Deputy Minister’s decision
to dismiss a grievance for the reason of timeliness, the standard of review was
held to be patently unreasonable and the decision to dismiss the grievance on
its merits was held to be reasonableness simpliciter. In Dubé v. Canada (Attorney
General),
2006 FC 796, the applicants’ grievance that the Associate Deputy Minister
failed to give them recall priority was also reviewed on the standard of
reasonableness simpliciter.
[10]
Counsel
continued with a standard of review analysis to determine the standard of
review concluding, after considering the factors of a weak privative clause (Assh,
above at para. 35; Vaughan v. Canada, 2003 FCA 76 at paras. 125-130;
aff’d 2005 SCC 11); the low level of deference to be afforded to the ADM with
respect to the interpretation of contracts (Assh, above at paras. 42,
44); the purpose of the governing legislation and the grievance process (Dubé,
above, at para. 30); and the nature of the question being one of mixed fact and
law, that the standard of review in the case at bar is reasonableness.
[11]
Counsel
for the Respondent agreed. I also agree that the standard of review is
reasonableness.
ANALYSIS
[12]
The
Applicant submits that the ADM’s decision was made without regard to the
material before him in two respects. First, the plain language of Article 5 of
the MOU provides that:
[The Applicant and the Acting Director
agree to] review and amend the most recent draft performance review and global
rating so that it objectively, fairly and accurately reflects a work
performance review (emphasis by Applicant).
[13]
The
Applicant submits that the plain language of Article 5 requires an amendment to
the global rating which the ADM ignored.
[14]
Second,
the Applicant also argues that the ADM ignored evidence that the Applicant’s
final PREA Report did not “objectively, fairly and accurately reflect her work
performance over the period”. The Applicant submits that Article 5 of the MOU
implies a mutual acknowledgement by the parties that the Applicant’s PREA Report
and global rating was not an objective, fair or accurate reflection of her work
performance during the period in question.
[15]
The
Applicant submits that the ADM’s decision to ignore the plain language of the
MOU and the evidence was unreasonable.
[16]
The
Respondent submits that the ADM did consider the MOU agreement, contending that
the language of the MOU is clear that the parties agreed to review the
Applicant’s performance in an objective, fair and accurate way, but that there
was no agreement to a particular rating or an agreement to predetermine the
results of the review.
[17]
In
my view, the PREA Report and global rating was to be revisited so that it
objectively, fairly and accurately reflected the work of the Applicant. The
MOU is an agreement to a process and not an agreement to an outcome. If, as a
result of the review, changes were required, those changes would be made. If
the changes were such that the global rating should be changed then it could
be, but always subject to the requirement that the PREA Report objectively,
fairly and accurately reflected the Applicant’s work performance.
[18]
I
find the evidence discloses that the ADM did consider the plain language of the
MOU with specific reference to Article 5. The ADM’s interpretation of the MOU
and his conclusion that the PREA process was properly undertaken with respect
to the Applicant is within the range of reasonable outcomes. The evidence
before the ADM supported the PREA performance review and the global rating. I
do not find the ADM’s decision to be unreasonable.
Conclusion
[19]
The
application is to be dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
There
are no costs to be awarded.
“Leonard
S. Mandamin”
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