Date:
20130618
Docket:
T-787-10
Citation:
2013 FC 685
Ottawa, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
|
|
PATRICK MCEVOY AND
CLAUDIO PELLICORE
|
|
|
|
Applicants
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application by Mr. Patrick McEvoy and Mr. Claudio Pellicore (the
Applicants) for judicial review of a decision dated April 16, 2010, by Ms. Camille
Therriault-Power, Vice President of the Human Resources Branch of the Canadian
Border Services Agency (CBSA), rendered in her capacity as the Deputy Head’s
Nominee (the Nominee).
[2]
The
Applicants are Inland Enforcement Officers (IEOs) with the CBSA. They filed grievances
concerning the job description and classification of the position of Inland
Enforcement Officer, PMC003 (PM-03), position #30153666 and position #30154307.
They contended that their jobs should be classified at the PM-04 level.
[3]
The
Applicants’ grievance resulted in a mediated job description which then went
before the Classification Grievance Committee (the Committee) established to
consider the classification of that job description. The Committee heard presentations
by the Applicants and by their union representative. Both submitted the IEO position
should be classified as PM-04 because the IEO’s were given new work responsibilities
under the Immigration and Refugee Protection Act, SC 2001 c. 27 (the IRPA).
Later the Committee put questions to management about the IEO position and
provided the management responses to the Applicants who then responded with
further evidence and submissions.
[4]
The
Committee concluded the IEO’s job warranted a classification at the PM-03 group
and level and recommended the grieved job be classified at the PM-03 level. The
Nominee accepted the recommendation of the Committee that the grieved job of
the Inland Enforcement Officer be classified at the PM-03 level, effective
August 11, 2002.
[5]
The
Applicants filed for judicial review. They argue that the Nominee breached the
principles of procedural fairness and natural justice by relying on the
Committee’s decision which had been decided before receiving the Applicants’
submissions made in response to the information provided by management. They also
argue that the Committee both failed to give sufficient reasons and failed to
consider all evidence and submissions made before it. Finally, the Applicants
also argue that the Nominee owed the Applicants an opportunity to respond to
additional matters she raised in a letter to the President of the CBSA advising
him of her decision.
[6]
For
reasons that follow, I conclude the application must be dismissed.
Background
[7]
Under
paragraphs 5(4) and 11.1(1)(b) of the Financial Administration Act, RSC
1985, c F-11, as amended, Treasury Board has the power to administer the
organization of the federal public service, in particular, the responsibility
for classifying positions within the public service. Pursuant to this
authority, classification grievances are to be dealt with by a Classification
Grievance Committee in accordance with the rules and procedures set out in a
series of Treasury Board policies, namely the Policy on Classification
Grievance, the Classification Grievance Procedure, and the
supplementary Clarification to the Classification Grievance Procedure and
Reminder – Classification Grievance Resolution Process.
[8]
The
roles of the Committee and the Deputy Head’s Nominee are outlined in the Classification
Grievance Procedure. The Committee’s mandate is:
The Classification Grievance Committee is
responsible for establishing the appropriate classification and evaluating the
grieved position based on the duties assigned by management and performed by
the employee and the additional information provided by management and by the
grievor and/or his or her representative. It must review and analyze all
information presented in a gender neutral way. The classification
recommendation to the deputy head or nominee must be fair, equitable and
consistent with the classification principles.
[9]
The
Nominee’s mandate described in the Classification Grievance Procedure
states:
The deputy head or nominee will either confirm the
committee’s recommendation or make a decision in cases of minority and majority
reports. In cases of minority or majority reports, if the minority report is
accepted the nominee must so advise the deputy head. If the unanimous
recommendation of the grievance committee is rejected by the nominee, the new
decision must be personally approved by the deputy head. In such circumstances,
the deputy head must report to TBS the reasons for non-acceptance, tied
directly to the justification used by the grievance committee in arriving at
its recommendation.
[10]
The
Applicants grieved that the job classification PM-03, for the Inland
Enforcement Officer position should be reclassified upward to the appropriate
level, PM-04, effective from August 11, 2002. The job description for IEOs in
the grievance was adopted by operation of a Memorandum of Understanding dated
March 17, 2008.
[11]
A
Classification Grievance Committee was established to hear the Applicants’
grievance on the classification. The Committee was composed of a Chairperson,
Mr. Robert Martin, Classification Consultant, Treasury Board Member, James
Myles and the Director General Trade Programs Directorate – CBSA, Mr. Mike
Jordan.
[12]
The
Committee heard the Applicants’ grievance on November 26, 2009. During the
grievance hearing, the Applicants made oral and written representations to the
Committee. The Applicants’ bargaining agent representative from the Public
Service Alliance of Canada (PSAC) also made oral and written representations to
the Committee.
[13]
Following
the grievance hearing on November 26, 2009, and prior to a second hearing on
December 14, 2009, the Committee requested additional documents from the departmental
Human Resources representative in order to assess the relativity study
presented by the Applicants during the hearing of November 26, 2009.These
documents were received by the Chairperson of the Committee on December 3, 2009
and were provided to the Applicants via their union representative on the same
day.
[14]
At
the hearing on December 14, 2009, the Committee heard from Mr. Robert
Johnston, the Director responsible for the Inland Enforcement Program in the
British Columbia region, and from Ms. Susan Kramer, Acting Director General,
Operations Programs regarding the duties performed by IEOs.
[15]
After
the December 14, 2009 grievance hearing and before deliberation, the Committee
requested clarification from management pertaining to the work performed by the
IEOs. A copy of the Committee’s questions and the responses from CBSA management
was provided to the Applicants via their union representative on January 29,
2010.
[16]
On
February 11, 2010, the Applicants provided the Committee with written
submissions and exhibits in response to the CBSA management’s responses. On
February 26, 2010, the Committee reconvened to deliberate.
[17]
The
Committee members prepared a report that was completed on March 14, 2010 and signed
off on April 16, 2010 with the recommendation that the grieved job be
classified at the PM-03 group and level. The Committee’s report was sent to the
Nominee for her approval and signature. The Nominee agreed with the Committee’s
recommendation and signed approval on April 17, 2010. The Nominee’s decision
was sent to the Applicants on April 19, 2010.
[18]
The
Applicants filed an application for judicial review of the Nominee’s decision
on May 18, 2010. However, previous to the Applicants’ application filing, an
access to information request relating to this classification process had been filed
on April 26, 2010 by Mr. Mike Matuzic, a co-worker of the Applicants, who was
also affected by the Nominee’s decision.
[19]
By
way of a letter dated May 11, 2010, CBSA acknowledged receipt of this request.
A further letter from CBSA dated June 8, 2010 advised that an extension of up
to 150 days past the 30-day statutory time limit would be required to process
the access to information request.
[20]
On
November 5, 2010, CBSA released a package of records in response to the access
to information request. Upon review of the documents and by Order of the Court
dated March 10, 2011, the Applicants filed a Supplementary Memorandum addressing
additional evidence obtained through the access to information request.
Decision
Under Review
[21]
There
are three components to the decision under review. The first component is two
decision letters from the Nominee to the grievors dated April 19, 2010. The
second is the Committee’s report (Report), including the Committee’s
recommendation, dated April 16, 2010, which was agreed with and signed by the
Nominee on April 17, 2010. The third component of the decision is a letter from
the Nominee to the President (presumably the President of the CBSA) also dated
April 19, 2010, in which the Nominee provides the President with notice of the
outcome of the classification grievance. This last letter is one of the
documents obtained by the Applicants through the access to information request.
Nominee’s
Decision Letters to the Grievors
[22]
These
two letters, the first in English and the other in French, provide essentially
the same information. The Nominee states that the Committee was convened on
November 26, 2009 and December 14, 2009 to examine the above grievance. The
Nominee states the Committee recommended that the job be classified at the
PM-03 group and level and provided the Committee evaluation report. The letters
conclude with the Nominee stating that she has approved the recommendation of
the Committee and that the decision, which is final and binding, is effective
August 11, 2002. The letters advises that a copy of the Report is attached.
[23]
As
noted, the Nominee approved the recommendation of the Committee as presented in
their Report.
The Committee Report
[24]
The
Committee was made up of one accredited officer from CBSA, one representative
from the Treasury Board Secretariat, and one CBSA management representative
trained in the use of the PM classification standard. The Committee, on
consensus, recommended that the grieved job of Inland Enforcement Officer be
classified at PM-03 level, effective August 11, 2002.
[25]
The
introductory portion of the Report sets out information about the grievance,
the committee members, the date and place of the grievance hearings, the nature
of the grievance and opening remarks.
[26]
The
first substantive section of the Report addresses the presentations made by or
on behalf of the grievors. The Report first sets out a summary of the
presentation made by Ms. Mary Ann Wight of the PSAC in support of the grievors
on the reasons for the mediated job description and the proposed evaluation of
the IEO’s job description. The Report then summarizes the grievors’
presentation with respect to: (1) background information, (2) history of the
position, and (3) an evaluation of the IEO position.
[27]
The
second section of the Report addresses the information provided by the
management representatives, Ms. Kramer and Mr. Johnston. The Committee only
provided brief summaries of the information provided by these two individuals
as both of their responses were previously shared with the Applicants.
[28]
The
third section of the Report sets out the Committee’s deliberations. The Report
states that the Committee was tasked with establishing:
the appropriate group and level, and to evaluate the
grieved position based on the duties and responsibilities assigned by
management and performed by the employees, taking into account the information
and recommendations made by the union and the employees representatives on
behalf of the grievors and the information and explanation provided by the
management representatives.
[29]
The
Committee Report sets out the evaluation submitted by PSAC on a factor by
factor basis and states where and why the Committee disagrees with the
submission made. The Committee’s deliberations then address the submissions
made by the grievors, in particular the grievors’ evaluation of the grieved job
and exhibits consisting of evaluations made by two external consultants. The
Report goes through these submissions and again sets out where and why the
Committee disagrees with the submissions made by the grievors.
[30]
In
the final section of the Report, the Committee sets out its own evaluation of
the grieved job followed by a summary showing the degree and total points
awarded for each evaluation factor as determined by the Committee.
[31]
The
Report concludes with the Committee recommendation:
It is the consensus to the Classification Grievance
Committee members that the grieved job (Inland Enforcement Officer) warrants a
classification at the PM-03 group and level. Therefore, it is the
recommendation of the committee that the grieved job be classified at PM-03
level, effective August 11, 2002.
The Report is dated and signed by all three
Committee members.
[32]
The
decision of the Nominee is found at the end of the Report:
I agree with the recommendation of the
Classification Grievance Committee that the grieved job of Inland Enforcement
Officer be classified at the PM-03 level, effective August 11, 2002. This
decision is final and binding and cannot be altered until a significant change
is made to the duties of the job.
This decision was signed and dated by the Nominee on
April 17, 2010.
Nominee’s Letter to the President
[33]
By
letter dated April 19, 2010,
the Nominee informed the President of the recommendation of the Committee and
her agreement with that recommendation. In the letter, the Nominee stated her
reasons for accepting the Committee’s recommendations:
I feel that the recommendation of the report is
sound for the following reasons:
•
At
each juncture, both originally at CIC, and in more recent decisions from CBSA,
this job has been rated at the PM-03 group and level.
•
At
the request of the CIU [Customs and Immigration Union] and to reassure the
employees that the file would be analyzed with an unbiased view, an accredited
consultant chaired the most recent hearings and wrote the Classification
Grievance Committee report.
•
The
decision was made by a Classification Grievance Committee made up of one
accredited officer from CBSA, one representative from the Treasury Board
Secretariat, and one CBSA management representative who is trained in the use
of the PM classification standard.
•
The
point rating in the latest report situates the job at 440 points, which is at a
safe midpoint in the PM-03 scale of 401-500 points.
[34]
The
Nominee also downplayed the two consultants’ evaluations of the job that were
submitted by the grievors. The Nominee comments that neither could be
considered authoritative. The Nominee states the first consultant was hired by
the CIU union and therefore could not be considered unbiased. The Nominee went
on to state that the second consultant was not accredited to provided point
ratings, nor had the CBAS request that he do so.
Legislation
[35]
The
Financial
Administration Act,
RSC 1985, c F-11 provides:
|
5. […]
(4) Subject to this Act and any
directions of the Governor in Council, the Treasury Board
may determine its own rules and
procedures.
…
11.1 (1) In the exercise of its
human resources management responsibilities under paragraph 7(1)(e), the
Treasury Board may
…
(b) provide for the
classification of positions and persons employed in the public service;
|
5. […]
(4)
Le Conseil du Trésor établit son règlement intérieur sous réserve des autres
dispositions
de
la présente loi et des instructions du gouverneur en conseil.
…
11.1
(1) Le Conseil du Trésor peut, dans l’exercice des attributions en matière de
gestion des ressources humaines que lui confère l’alinéa
7(1)e)
:
…
b)
pourvoir à la classification des postes et des personnes employées dans la
fonction publique;
|
Issues
[36]
The
Applicants raise the following issues:
a)
Did
the Nominee breach the principles of procedural fairness and natural justice by
relying on a recommendation by the Committee that was decided before hearing
all of the Applicants’ submissions or was otherwise predisposed?
b)
Did
the Committee fail to give sufficient reasons to justify its analysis of the
arguments and the evidence and to comply with the requirements of procedural
fairness?
c)
Did
the Committee fail to have proper regard to all the arguments and evidence that
was tendered by the Applicants?
[37]
A
further issue raised is the role of the Nominee in accepting or rejecting the
recommendation of the Committee and whether the Nominee in this case owed the
Applicants the opportunity to respond to concerns raised in the letter from the
Nominee to the President.
Standard of
Review
[38]
There
are only two standards of review: correctness and reasonableness. Dunsmuir v
New Brunswick, 2008 SCC 9 at para 45 (Dunsmuir) Where the standard
of review has been previously determined, a standard of review analysis need
not be repeated. Dunsmuir, at para 62.
[39]
Classification
Grievance Committees perform highly specialized functions and possess expertise
in matters of classification; decisions made by the Committee are to be
afforded a high degree of deference. The appropriate standard of review is
reasonableness. Beauchemin c Canada (Canadian Food Inspection Agency), 2008
FC 186 at para 20 (Beauchemin).
[40]
It
is well established that the standard of review applicable to issues of natural
justice and procedural fairness is that of correctness. Groulx v Canada (Veterans Affairs), 2007 FC 293 at para 14 (Groulx).
Analysis
[41]
To begin, it is
important to keep in mind that the decision being challenged in this case is
the decision of the Nominee to accept the recommendation of the Committee.
However, in cases where a classification grievance committee is formed, it is
essentially the committee which provides the reasons relied upon. It is the
committee who hears the evidence and which is required to afford the parties
with the appropriate level of procedural fairness; the Nominee’s role in these
processes is very limited.
[42]
The
role of a classification grievance committee as the de facto
decision-maker in cases such as this has been reviewed in the jurisprudence.
For example, in Bulat v Canada (Treasury Board), [2000] FCJ No
148. (Bulat) at paragraph 10, the Federal Court of Appeal stated:
An elementary incident of the duty of fairness is
that the individual adversely affected should have an adequate opportunity to
address an issue that the Committee regarded as central to the
disposition of the grievance, but which the grievor did not realise was in
dispute and therefore could not have been reasonably expected to anticipate,
and to address.
[Emphasis added]
[43]
The
Committee’s role of de facto decision-maker was also noted by Justice
Blais (then with the Federal Court) in Groulx:
[23] In short, the applicant had the right to a
hearing before an impartial and expert decision-maker, who rendered a
detailed decision based on his arguments and on the official work description
which he was familiar with and accepted. Therefore, the Committee rejected
the applicant’s allegations about his supervisory responsibilities on the basis
of information of which he was aware.
[24] Accordingly, I must conclude that the
applicant’s right to procedural fairness was respected by the Grievance
Classification Committee.
[Emphasis added]
[44]
It is clear from the above
that it is the Committee which owed the Applicants the appropriate level of
procedural fairness and whose decision and recommendation that must be
reasonable.
Did
the Nominee breach the principles of procedural fairness and natural justice by
relying on a recommendation by the Committee that was decided before hearing
all of the Applicants’ submissions or was otherwise predisposed?
[45]
Appeal
Court Justice Pelletier, concurring, stated the maxim of audi alteram partem
“requires a decision-maker to ensure that the person affected by a decision has
a chance to be heard before the decision is made.” Canada (Attorney
General) v Khawaja, 2007 FCA 388 at para 114 (Khawaja). Justice
Pelletier cites with approval the following passage of Marceau JA in Gallant
v Canada (Deputy Commissioner, Correctional Service), [1989] 3 FC 329 (Gallant):
The rationale behind the audi alteram partem
principle, which simply requires the participation, in the making of a decision,
of the individual whose rights or interests may be affected, is of course that
the individual may always be in a position to bring forth information, in the
form of facts or arguments, that could help the decision-maker reach a fair and
prudent conclusion. It has long been recognized to be only rational as well as
practical that the extent and character of such a participation should depend
on the circumstances of the case and the nature of the decision to be made.
This view of the manner in which the principle must be given effect in practice
ought to be the same whether it comes into play through the jurisprudential
duty to act fairly or the common law requirements of natural justice, or as one
of the prime constituents of the concept of fundamental justice referred to in
s. 7 of the Canadian Charter of Rights and Freedoms. The principle is
obviously the same everywhere it applies.
[46]
If
the Applicants were deprived of an opportunity to be heard on an important
question before the Committee made its decision, the Committee may breach the
principles of procedural fairness. In other words, if the Committee had made
its decision before the Applicants’ submissions had been received or considered
by the Committee, the application should succeed.
[47]
The Applicants rely on
CUPE v Ontario (Minister of Labour), 2003 SCC 29 (CUPE) to the
effect that questions of natural justice and procedural fairness relate to the
procedural framework of a delegate’s decision and fall to the Court to
determine the content of the duty of fairness as a question of law using a
standard of correctness.
[48]
The
Applicants acknowledge that the scope of procedural fairness obligations tend
to fall on the lower end of the spectrum in the context of the classification
grievance process due to its administrative nature. However, the Applicants
submit that certain essential requirements of procedural fairness remain
regardless of where one falls on the spectrum.
[49]
The
Applicants also rely on Chong v Canada (Attorney General), [1999] FCJ
no. 176 (FCA) (Chong), where the Federal Court of Appeal held that
grievors must be afforded an opportunity to address an issue that the committee
regarded as central to the disposition of the grievance but which the grievor
did not realise was in dispute. Chong at paras 12-13 The Applicants
submit that, notwithstanding the administrative nature of the classification
grievance process, the particular issues raised in this application are
fundamental aspects of the principles of procedural fairness and are to be assessed
on the standard of correctness.
[50]
The
Applicants submit that the issue of prejudgement goes to the core of procedural
fairness and, as such, is an essential requirement of fairness that warrant the
intervention of a reviewing court regardless of where the decision-maker falls
on the spectrum of procedural fairness entitlements.
[51]
The
Applicants submit that in this case, the evidence clearly indicates that the
Committee had made its decision before parts of the Applicants’ submissions had
been received or considered by the Committee. The Applicants point to the
Report which discloses the Committee had already reached a decision on the
merits of the grievance before receiving or considering the Applicants’ reply
to the information provided by CBSA management. The specific passage relied on
by the Applicants states:
Further to the union’s response of February 11,
2010, the Committee reconvened on February 26 to review the union response.
After giving careful consideration to the evidence submitted the Committee
reached consensus that the new information would not change their decision
on the grieved position.
[Emphasis added by Applicants].
[52]
The
Applicants also point to notes taken at the December 14, 2009 hearing where the
Committee heard from the CBSA management representatives. The notes state under
the heading “Evaluation” that the Committee members discussed the rating and
that all agreed with the ratings. The discussion focused around the “decision
making” factor.
[53]
The
Applicants submit that notwithstanding that the Committee expressly
acknowledged its obligation to provide the Applicants with copies of Management’s
responses and to consider any submissions made in reply, the language of the
Committee’s report makes it clear that the Committee had already held
deliberations on the merits of the grievance before it received the Applicants’
reply submissions and that it had already reached a decision.
[54]
The
Applicants argue that in these circumstances, the Committee violated its
procedural fairness obligations by inappropriately pre-judging the merits of
the grievance before all of the Applicants’ submissions were heard. This
failure, the Applicants submit, is a reviewable error.
[55]
The
Respondent begins by submitting that the procedure before the Committee is
non-adversarial. It is an “administrative proceeding which does not engage the
rights or privileges characteristic of quasi-judicial proceedings.” Utovac v
Canada (Treasury Board), [2006] FCJ No 833 at para 16 (Utovac). The
Respondent relies on this Court’s ruling in Groulx at paragraph 19 where
Justice Blais (then with the Federal Court) stated:
[19] Therefore, the respondent is right in stating
that there is well established case law to the effect that the nature of the
process before the Committee tends to indicate a lower level of procedural
guarantees. These guarantees are limited to the applicant’s right to have his
main arguments considered by the Committee and to be advised of information
crucial to the case and of which he could not reasonably have knowledge.
[56]
The
Respondent also submits that, in this case, the Committee did not prejudge the
merits of the grievance as submitted by the Applicants. The Respondent submits
that the Committee considered all the information presented by the Applicants and
considered all the submissions made by the Applicants before it reached its
recommendation.
[57]
The
Respondent argues that after the Committee received the requested clarification
from CBSA management representatives pertaining to the work done by IEO’s, the
Committee provided the Applicants with that information in order to provide
them an opportunity to respond. The Respondent points out that the Committee
then reconvened to deliberate on February 26, 2010, two weeks after it had
received the Applicants’ written representations.
[58]
The
Respondent further submits that the onus to establish a “prejudgement of a
matter”, as set out by the Supreme Court of Canada in Old St. Boniface
Residents Assn. Inc. v Winnipeg (City), [1990] 3 S.C.R. 1170 (Old St.
Boniface Residents Assn. Inc.), rests on the party alleging the
disqualifying bias to “establish that there is a prejudgement of the matter, in
fact, to the extent that any representations at variance with the view, which
has been adopted, would be futile.” Old St. Boniface Residents Assn. Inc. at
para 57
[59]
The
Respondent submits that, while
the Committee conducted an evaluation of the grieved job before the Applicants’
responses to the information provided by management was received; the
evaluation could be characterized as a tentative conclusion. This is supported
by an affidavit by one of the Committee members, Mr. Myles. This
characterization of the evaluation as a tentative conclusion is also supported
in the paragraph relied on by the Applicants above. The Respondent notes that
the Committee’s tentative conclusion came after the initial hearing where the
Applicants and their union representatives were able to provide extensive
evidence.
[60]
Mr.
Myles was a member of the Committee whose decision is challenged in this
judicial review. I find no issue with his affidavits where they recount events,
actions and dates. However, where a decision maker’s affidavit enters the fray
over the decision, an issue arises. In his supplementary affidavit, Mr. Myles
states:
11. The Committee’s evaluation (see Exhibit
“E”, attached to Patrick McEvoy’s Supplementary Affidavit page 50) was a
tentative evaluation rather then a definitive evaluation. The final
evaluation and recommendation was made by the Committee only after it had considered
the Applicants’ written representations that they submitted to the Committee on
February 11, 2010 (see Affidavit of James Myles previously filed in response to
this Application for Judicial Review, Applicants’ Application Record Vol. V.
paras 14, 16 and 17, page 1871.
[Emphasis added]
[61]
The
Respondent relies on this affidavit by Committee member James Myles, stressing
the initial evaluation was tentative and going on to quote Mr. Myles: as
stating: “The final evaluation and recommendation was made by the Committee
only after it had considered the Applicants’ written representations that they
submitted to the Committee on February 11, 2010.”
[62]
In
Stemijon
Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, the Federal Court
of Appeal stated:
[40] During argument of this appeal, the respondent
referred us to an affidavit that was filed with the Federal Court. The
affidavit is from the delegate of the Minister who made the decision that is
the subject of judicial review in these proceedings. In that affidavit, and
also in cross-examination on that affidavit, the delegate testified that he
relied on other matters when he made his decision, including “the relevant
sections of the Income Tax Act.” The respondent points to this affidavit as
evidence that the Minister had regard to the full extent of his discretion
under subsection 220(3.1) of the Act and drew upon that section as the source
of his authority.
[63]
I
conclude I should not give any weight to Mr. Myles’ assertion since he ventures
into the issue as to whether the Committee predetermined the classification
decision before the Applicants’ response.
[64]
Notwithstanding
the forgoing, the question of prejudgment remains. This is an administrative
decision for which the standard for procedural fairness affords the decision
maker greater flexibility in its procedures. In my view, it would be surprising
if the Committee did not engage in some ongoing assessment of the
classification factors as it received evidence and submissions. The question is
whether the Committee prejudged the matter before all submissions were in.
[65]
The
Supreme Court of Canada stated that the onus rests on the party alleging the
disqualifying bias to “establish that there is a prejudgement of the matter, in
fact, to the extent that any representations at variance with the view, which
has been adopted, would be futile.” Old St. Boniface Residents Assn. Inc.
[66]
On
the face of the Report, the Committee states it gave careful consideration to
the Applicants’ new information. Further, the Committee evaluation of the
position and examination of the four factors follows the Committee’s reference
to the Applicants’ response to the management submissions. Some credence must
be given to the Committee Report and its choice of words.
[67]
Finally,
the Applicants’ further information emphasizes a challenge to Ms. Kramer and
goes into a detailed rebuttal of her evidence which the Applicants submit was
without detail and inconsistent. However, what the Applicants do not do is
demonstrate that the Committee closed its mind to the merits of the case before
them before receiving the Applicants’ additional submissions.
[68]
I
conclude the Applicants have failed to show the Committee made a final decision
before hearing all of the Applicants’ evidence or submissions.
Did the Committee fail to give
sufficient reasons to justify its analysis of the arguments and the evidence
and to comply with the requirements of procedural fairness?
[69]
The
Applicants submit that the duty to provide reasons is another well-established
aspect of procedural fairness. The Applicants argue that reasons must not only
be provided, but they must also be sufficiently adequate. Via Rail Canada
Inc. v National Transportation Agency, [2001] 2 FC 25 (FCA) at para 22
[70]
The
Applicants submit that, in the present case, the Committee failed to meet its
obligation to provide adequate reasons. The Applicants argue that the Committee
adopted Ms. Kramer’s comparison with the Border Service Officer position
notwithstanding the numerous differences identified by the Applicants, and
rejected the comparisons the Applicants identified with certain other
positions. The Applicants submit that the Committee appears to have done so
without undertaking a detailed analysis that sets out the salient differences
between the positions.
[71]
The
Applicants also point to several instances throughout the Report where the
Committee simply asserts that it cannot accept the Applicants’ proposed changes
to the ratings for the IEO position. As an example, the Applicants note that
the Report states, “‘the Committee Members could not agree’ with the knowledge
rating proposed by the Applicants,” and that, “[s]imilarly, the report states
only that ‘the Committee could not justify a rating greater than C3’ and that
it ‘could not agree’ with the benchmarks proposed by the Applicants for the
decision-making rating.”
[72]
The
Applicants submit that in several instances throughout its Report, the
Committee asserts that it cannot accept the Applicants’ proposed changes to the
ratings for the IEO position. For example, the Applicants point to the example
that the Report states that “the Committee Members could not agree” with the
knowledge rating proposed by the Applicants. While this is correct, the
Applicants fail to take into account the following sentence which states, “(See
Committee’s rationale for this element in PSAC rebuttal for this degree in
their evaluation).” The reference contains the Committee’s rationale for
evaluating the knowledge rating as it did.
[73]
The
Applicants submit that given the lengthy and detailed nature of the submissions
provided by the Applicants and by their union representative, the analysis
provided by the Committee in the Report simply does not do justice to the
Applicants’ arguments. The reasons that are provided are inadequate.
[74]
The
Respondent submits that the Committee set out in the Report its reasoning
process, its finding, the principle evidence upon which these findings were
based and the major points in issue.
[75]
The
Respondent also submits that the Committee was not required to provide an
analysis of each and every piece of evidence produced by the Applicants. The
Respondent relies on Ozdemir v Canada (Minister of Citizenship and
Immigration), 2001 FCA 331 (Ozdemir) where the Federal Court of
Appeal noted that:
[9] … Decision-makers are not bound to explain why
they did not accept every item of evidence before them. Much depends on the
significance of that evidence when it is considered in light of the other
material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35. at para 9
[76]
The
Respondent argues that the Report reveals that the members of the Committee
considered a) the information received by the Applicants, b) the information
received by the management representatives, c) the presentations made by and on
behalf of the Applicants, and d) the principal evidence upon which its
recommendation was based.
[77]
The
Respondent submits that the Committee was only required to address the major
points in issue and the fact that Ms. Kramer participated in the grievance
hearing was not a major point in issue deserving particular attention or
analysis by the Committee.
[78]
The
Respondent submits that the reasons provided by the Committee in the Report are
adequate, sufficient and are in compliance with the requirements of procedural
fairness.
[79]
Decision-makers
are not bound to explain why they did not accept every item of evidence before
them. It is not necessary for the reasons to list every conceivable factor
which may have influenced the decision. In Kindler v Canada (Minister of Justice), [1987] 2 FC 145 at paragraph 23 (Kindler) the
Court stated:
A duty to give reasons means that adequate reasons
must be given but leaves open the question of how one measures the adequacy of
a decision-maker’s reasons. If the decision involved is one which requires the
exercise of discretion, the reasons given should demonstrate two things: first,
that the decision-maker recognized that it had a power to make a choice and
second, the factors that it considered in exercising its discretion. Balanced
against these requirements, however, is the consideration that to require
elaborate and overly scrupulous reasons places an unjustifiable burden on the
decision-maker. A requirement to give reasons should not be interpreted in
such a way as to cause the court to construe the reasons with technical
particularity.
[Emphasis added]
[80]
What
is required, however, is that the decision maker set out its findings of fact
and the principal evidence upon which those findings were based. The reasons
must address the major points in issue and the reasoning process followed by
the decision maker must be set out and must reflect consideration of the main
relevant factors.
[81]
In
this case the Report provides a summary of all the evidence provided. The
Report specifically summarizes the presentations made by or on behalf of the
grievors. The Committee also reviewed and addressed each of the submissions
made by the PSAC and the grievors before conducting its own evaluation process
and the Committee was tasked to do.
[82]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 (Newfoundland and Labrador Nurses’ Union) the
Supreme Court of Canada held that inadequacy of reasons could not be the sole
basis for judicial review of a decision. Rather, reasons were to be read
together with the conclusion to see if the decision falls within a range of
possible outcomes.
[83]
I
conclude that the reasons of the Committee, as contained in the Report, are
adequate. The Report clearly illustrates the decision-making process taken by
the Committee. The Report summarizes the evidence and addresses the submissions
of the parties; this includes the evaluations done by the consultants that were
forwarded by the grievors as exhibits. The Report addresses the major points in
issue and the reasoning process is set out and reflects the main relevant
factors. The Report concludes with a detailed analysis of the Committee’s
evaluation of the classification for the grieved job description.
[84]
The
reasons in the Committee’s Report are rationally directed to its conclusion on
the classification level of the grieved job description. The decision of the
Committee falls within the range of possible outcomes having regard to the
information before it, the submissions the Committee heard and the reasons it
gives in its Report.
Did the Committee fail to have
proper regard to all the arguments and evidence that was tendered by the
Applicants?
[85]
The
Applicants submit that given the scant reasons provided by the Committee in its
report, it must be concluded that the Committee failed to consider all of the
arguments and evidence that was put before it.
[86]
The
Applicants argue that the Committee’s failure to consider the evidence before
it amounts to a breach of procedural fairness that warrants the intervention of
this Court on judicial review. The Applicants provide specific
evidence they feel the Committee failed to properly consider. Some of the
examples provided by the Applicants include the four jobs in the “Relativity
Study” to the PM-03 position and the lengthy and detailed package of written
submissions and documentary evidence in response to Ms. Kramer’s testimony. The
Applicants argue that much of this material was neither adopted nor rejected by
the Committee, but rather, in the absence of any reasons explaining its
dismissal, it seems the Committee simply ignored this material entirely.
[87]
One
area that the Committee did not address was the Applicants’ submissions as to
bias on the part of Ms. Kramer having had prior involvement in 2007 with the
controversy surrounding the grieved job description. However, I note one of the
consultants whose report was submitted by the Applicants was also involved in the
matter for management around 2007. In my view, the Committee properly confined
its reasons to the subject matter before it, namely, the question of
classification for the grieved work positions.
[88]
The
Applicants submit that one cannot conclude that the Committee paid any
meaningful attention to the arguments and evidence advanced by the Applicants
in light of the inadequacy of the Committee’s reasons and in the face of the
detailed submissions and voluminous documentary record tendered by the
Applicants.
[89]
The
Applicants submit that the Court must conclude that the Committee breached the
principles of procedural fairness by failing to consider all of the evidence
that was placed before it in this matter.
[90]
The
Respondent submits that the Committee explained in its twenty-one page Report
why it recommended that the grieved positions warrant a classification at the
PM-03 group and level. The Respondent argues that the Applicants’
characterization of the Committee’s reasons as “scant” is inaccurate and that
the Committee was not required to provide an analysis of each and every piece
of evidence produced by the Applicants.
[91]
The Applicants submit
that given the reasons provided by the Committee in its report, it must be
concluded that the Committee failed to consider all of the arguments and
evidence that was put before it. The Applicants argue that the Committee’s
failure to consider the evidence before it amounts to a breach of procedural
fairness that warrants the intervention of this Court on judicial review.
[92]
The
Applicants’ submission on this issue is based on an assumption that the
Committee’s reasons are inadequate. However, as I have concluded that the
Report provides adequate reasons, I must disagree with the Applicants’
submission on this issue. In contrast, I find that the Report clearly evidences
that the Committee did take into account all of the evidence and submissions of
the Applicants. As stated above, the Report sets out a summary of the
presentations made by the grievors and those that made presentations on their
behalf. It is clear that the Committee took this evidence into account. While
the Committee was not required to list off every piece of evidence it accepted
or rejected, I am satisfied the Committee did address the evidence that went to
the main points in issue.
The Nominee made the decision
based on issues that were not put to the Applicants for response.
[93]
As noted above, the
Applicants are seeking to judicially review the decision of the Nominee. However,
the Applicants are, in substance, challenging the decision of the Committee to
recommend that grieved job be classified at the PM-03 level.
[94]
What
makes this case different is the existence of the briefing note written by the
Nominee dated April 19, 2010. This letter was an internal letter, directed to
the President, providing the President with advance notice of the Nominee’s
decision to accept the Committee’s recommendation. This letter was not intended
to be sent to the grievors and only made it into the grievors’ possession through
an access to information request.
[95]
This
letter raises the issue of who the decision maker really is and what is the
proper role of both the Committee and the Nominee. I have not been referred to any
case law where the Nominee’s reasons for accepting a recommendation from a
classification grievance committee are raised or challenged.
[96]
I
find it useful to look at what the respective roles of the Committee and the
Nominee are. The roles and duties of both the Committee and Nominee are found
in the Treasury Board’s Classification Grievance Procedure.
[97]
The
Classification Grievance Procedure provides the Committee’s mandate:
1. The Classification Grievance Committee is
responsible for establishing the appropriate classification and evaluating the
grieved position based on the duties assigned by management and performed by
the employee and the additional information provided by management and by the
grievor and/or his or her representative. It must review and analyze all
information presented in a gender neutral way. The classification
recommendation to the deputy head or nominee must be fair, equitable and
consistent with the classification principles.
[98]
The
procedure set in the Classification Grievance Procedure clearly sets out
that it is the Committee which is tasked with receiving evidence and
submissions, establishing the appropriate classification and evaluating the
grieved position. All procedural fairness requirements owed to the grievors are
owed by the Committee. It is the Committee that is the de facto decision-maker.
[99]
In
this case, the Committee provided a recommendation that met all of the
procedural fairness requirements owed to the grievors. The grievors were
provided with the opportunity to present their case, to respond to the
information provided by the CBSA management representatives, and were provided
with adequate reasons by the Committee as to why the Committee made the
recommendation it did.
[100] The role set out in
the Classification Grievance Procedure for the Nominee states:
1. The deputy head or nominee will either confirm
the committee’s recommendation or make a decision in cases of minority and
majority reports. In cases of minority or majority reports, if the minority
report is accepted the nominee must so advise the deputy head. If the unanimous
recommendation of the grievance committee is rejected by the nominee, the new
decision must be personally approved by the deputy head. In such circumstances,
the deputy head must report to TBS the reasons for non-acceptance, tied
directly to the justification used by the grievance committee in arriving at
its recommendation.
[101] It is clear that where
the recommendation of the Committee is unanimous, the role of the Nominee is limited.
The Nominee must either confirm the recommendation or reject it which would
then require the new decision to be personally approved by the Deputy Head.
[102] Since there is no
express requirement that the Nominee provide reasons for the decision to either
confirm or reject the Committee’s recommendation, there cannot be a legitimate
expectation for a nominee’s reasons to be forwarded to grievors.
[103] The Nominee’s briefing
note set out four reasons why the Nominee felt the Committee’s recommendation
was sound. These reasons neither follow nor contradict the Committee reasons. The
Nominee’s briefing note goes on to state that the two consultants’ evaluations
could not be considered authoritative.
[104] The Nominee considered
the two consultant’s evaluations of the position to not be authoritative
because one consultant was considered biased and the second unqualified. This
assessment by the Nominee is contrary to the Committee’s acceptance of the two
consultant reports as meriting consideration but found wanting on analysis.
The question arises whether the Nominee is saying the Committee was wrong to
consider the consultant evaluations.
[105] I note where a
unanimous committee report is rejected; the Deputy Head must personally make
the new decision and provide a report to Treasury Board with the reasons for
non-acceptance tied directly to the justification used by the grievance
committee in arriving at its recommendation.
[106] It
seems to me Classification Grievance Procedure requires the Nominee to confirm
or reject the report. The Nominee is not required to give reasons on
confirmation but if the Nominee ventures to do so, those reasons must also relate
to the Committee’s justification. Where the Nominee gives reasons contrary to
the Committee’s analysis; casts doubt on the Committee decision and otherwise
fails to relate to the Committee’s justification, then the Nominee’s decision
may be subject to challenge.
[107] In
this case, having regard to the level of defence to be given to a specialized
tribunal such as the Committee, the limited scope for the Nominee on
confirmation, and the fact the confirmation was signed by the Nominee on April
17th, and the fact that the briefing note to the President was
signed two days later on April 19th, 2010, I conclude, on the
facts of this case, the Nominee has not undermined the Committee decision by
her contrary reference to the two consultant evaluations. I would hold the
Nominee’s briefing note departure from the Committee justification superfluous
to her confirmation of the Committee recommendation two days earlier.
[108] In result, I disagree
with the Applicants that the briefing letter raises issues that the grievors should
have had the opportunity to address.
[109] It is worth repeating
what Justice Blais (then with the Federal Court) stated in Groulx regarding
the appropriate level of procedural fairness:
[19] Therefore, the respondent is right in stating
that there is well established case law to the effect that the nature of the
process before the Committee tends to indicate a lower level of procedural
guarantees. These guarantees are limited to the applicant’s right to have his
main arguments considered by the Committee and to be advised of information
crucial to the case and of which he could not reasonably have knowledge.
[110] The Applicants had
full opportunity to have their main arguments considered by the Committee. The
Nominee’s comments in the briefing note cannot be considered crucial to the
case. The procedural guarantees owed to the grievors in this case were more
than met by the Committee. As such, the Applicants’ application for judicial
review fails on all points.
Conclusion
[111] The
application for judicial review does not succeed.
[112] Costs
in favour of the Respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
- The
application is dismissed.
- Costs in
favour of the Respondent.
“Leonard S. Mandamin”
Email this Content