Docket: T-1674-13
Citation:
2014 FC 999
Ottawa, Ontario, October 21,
2014
PRESENT: The
Honourable Mr. Justice Locke
|
BETWEEN:
|
|
CAMILLE-ALAIN RABBATH
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
against the decision of the Deputy Minister of National Defence (the Deputy
Minister) dated July 30, 2013, denying a request for recourse under the
Independent Recourse Mechanism for Defence Scientists (IRMDS). The IRMDS sets
out a method of recourse for disputes about promotions for research scientists
within the Department of National Defence (DND).
[2]
For the reasons set out below, I dismiss the
application.
II.
Context and Facts
A.
The Staffing System for Research Scientists in
the Defence Scientist Occupational Group
[3]
Pursuant to both subsection 34(1) of the Public
Service Employment Act and section 2 of the Public Service Employment
Regulations (the Regulations), the internal appointment process for the Defence Scientist (DS)
group is an incumbent-based process. This process includes both a “career
progression framework” and an “independent recourse mechanism”.
[4]
The Deputy Minister has established a career
progression framework for the DS group entitled the Defence Scientific
Service Group Salary Administration System. The Deputy Minister has
delegated authority pertaining to the career progression framework to the
Assistant Deputy Minister, Science and Technology, who considers the input of
the Human Resources Management Committee (the Committee) to make decisions
pertaining to the career progression of the members of the DS group.
[5]
The career progression framework provides
that each DS is both paid and classified proportionally to his or her state of
professional development. In other words, the DSs are promoted as their
research work progresses. An effort to obtain a promotion for a DS begins with
a Performance Evaluation Report prepared with input from the DS’s immediate
supervisor and immediate line manager. This report includes a professional
development recommendation by the Professional Development Manager as to
whether a promotion should be granted. If the DS is not satisfied with the
recommendation, he or she may have it considered by the Committee. Based on the
state of the DS’s professional development, the Committee determines whether
the employee should receive a promotion. Such promotion typically includes an
increase in salary.
[6]
The IRMDS allows an employee who disagrees with
the Committee’s decision pertaining to, among other things, non-disciplinary
denial of promotions and variation of salary increases, to have the decision
analysed by an independent reviewer.
[7]
Within 15 days following reception of the Committee’s
decision the DS may submit a written request for recourse to the IRMDS. The
Deputy Minister appoints the independent reviewer(s) within 15 calendar days
from the date of the receipt of the DS’s request. Within 70 calendar days from
the day that the IRMDS was initiated, the independent reviewer makes
recommendation(s) to the Deputy Minister. The independent reviewer may either
confirm the appropriateness of the process used by the Committee or identify
the issue(s) that may have negatively affected the decision of the Committee.
The reviewer may recommend to the Deputy Minister that the Committee re-examine
the case. However, the reviewer may not recommend that a promotion or salary
increase be granted, or that the normal rate of progression of the DS be resumed.
[8]
Based on the independent reviewer’s recommendation(s),
the Deputy Minister makes the final decision. This final decision is
communicated to the DS within 30 days after the recommendation(s) of the
reviewer has been made to the Deputy Minister.
B.
Facts
[9]
The Applicant, Dr. Camille-Alain Rabbath, is a
scientist working for the Government of Canada within the DND. The Applicant
joined this department on February 4, 2002. He is a DS.
[10]
On January 17, 2012, the Applicant received his
Performance Evaluation Report indicating that he was not recommended to
be promoted from the DS-04 level to the DS-05 level.
[11]
On February 7, 2012, the Applicant met with his
immediate supervisor and immediate line manager to discuss the recommendation
and to hand-write his disagreement in section 6.1 of the report under “Employee
comments”.
[12]
On April 23, 2012, the Applicant received a
March 27, 2012 letter formally denying his request for promotion.
[13]
By a letter dated April 25, 2012, the Applicant
initiated the IRMDS. DND initially appointed Mr. Rand Jackson as the reviewer
for the case. This appointment occurred on May 30, 2012, 20 days late. This
delay, which was not explained, began a series of missed deadlines by DND that
effectively denied the Applicant the benefit of the IRMDS.
[14]
The 70-day deadline for the reviewer’s recommendation(s)
was also not respected. Without any authority to do so and without the
Applicant’s agreement, DND granted an extension of this deadline. On October 4,
2012, Mr. Jackson informed DND that he was unable to complete the review, due
to personal commitments. The Applicant was only informed of this development on
November 5, 2012.
[15]
In the absence of an appointment of a new
reviewer within a reasonable period thereafter, the Applicant wrote on December
12, 2012, requesting that the review recommence. In the absence of a response
to this request, the Applicant commenced an application in Federal Court on
January 14, 2013, for an order of mandamus requiring the appointment of
a new reviewer. DND eventually appointed Mr. Pierre Lessard (the Reviewer) as
the reviewer on March 6, 2013, without the need for an order.
[16]
On May 13, 2012, Mr. Lessard completed his
review and issued his recommendations. In his report, Mr. Lessard, mentioned,
among other things:
1. D’un point de vue
« mécanistique » il apparaît que les étapes to processus d’évaluation
dans la préparation du RAR ont été respectées.
2. La « Note » du Comité devrait être
révélatrice, dans ces propos, à ce sujet or elle l’est très peu […] Cette
dernière maintient en effet un flou certain, en particulier par la référence à
la notion de rendement « supérieur » qui demande à être mieux défini.
[…] Ce faisant, on prive le demandeur de la seule rétroaction directe du
Comité qu’il est en droit d’espérer (une représentation personnelle étant
exclue).
3. J’estime que la Comité se doit d’assumer
l’entière responsabilité de son rôle de palier supérieur dans le processus,
ceci incluant une rétroaction effective au demandeur aussi bien qu’à la
gestion locale. Pour arriver à ceci, la « Note » du Comité doit
fournir par écrit au demandeur avec suffisamment de détails sa
décision, la justification et les motifs invoqués […].
4. Il est donc recommandé que le Comité de gestion
des ressources humaines revoie le dossier du demandeur (incluant les
commentaires du demandeur si nécessaire) et les minutes de ses délibérations de
la revue d’avril 2012 concernant le cas du plaignant. Le Comité doit trouver
dans ses délibérations (passées ou à venir) la matière à fournir au demandeur
le fondement de sa décision de même qu’une rétroaction adéquate afin de
contribuer à la fixation d’objectifs réalistes et d’éviter d’entretenir une
situation d’échec, d’épuisement professionnel et de critiques systématique.
[Emphasis in
original]
III.
Decision
[17]
By a letter dated July 30, 2013 (48 days late),
the Applicant was informed of the decision of the Deputy Minister to deny the
Applicant’s request to have the Committee review his file for the 2011-2012
period and provide feedback.
[18]
The letter noted that the Reviewer’s report
confirmed the appropriateness of the process followed by the Committee. The
letter also stated that the Reviewer’s report confirmed that the Committee
adequately assessed all of the relevant documentation and that it had followed
the Salary Administration System. The Deputy Minister did not follow the
Reviewer’s recommendation to have the Committee review the Applicant’s file for
the 2011-2012 period. The Deputy Minister noted that the Applicant had been
promoted earlier in 2013 to the DS-05 level that he sought. The Deputy Minister
apparently saw no reason for the Committee to provide feedback regarding the denial
of a promotion that the Applicant had since obtained. The Deputy Minister did
state that the Reviewer’s recommendation to provide more detailed feedback had
been discussed with the Assistant Deputy Minister, Science and Technology, and would
be taken into account in future Committee deliberations.
IV.
Issue
[19]
This matter raises the following issue:
1.
Did the Deputy Minister err in denying the Applicant’s request to have
his file sent back to the Committee for reconsideration?
V.
Submissions of the Parties
A.
Applicant’s Submissions
[20]
The Applicant concedes that the standard of
review is reasonableness.
[21]
The Applicant submits that the decision has an
important negative impact on him. First, the effect of the decision is to
render the recourse process ineffective because it forces the DS to go through
an administrative process for more than a year “to have the Deputy
Minister agree with the reviewer that there were problems but refuse to take
any steps”. Second, if the Applicant had been
promoted in April 2012, he would be earning approximately $2,888 more each year
until he reaches the top pay rate for the DS-05 level.
[22]
The Applicant argues that the decision should be
responsive to the Reviewer’s conclusions and recommendations and should provide
a meaningful remedy. The Deputy Minister’s decision did not follow this
principle. The Applicant submits, among other things, that the Deputy
Minister’s engagement that the Reviewer’s recommendation to provide more
detailed feedback would be taken into account in future Committee deliberations
does not constitute a real remedy for the Applicant in the present case.
[23]
The Applicant argues that his subsequent promotion does not justify the
absence of a remedy. First, the Applicant submits that the Reviewer himself
considered whether the subsequent promotion could be considered in reviewing
this case and concluded that it could not. Second, the Applicant submits that
the review has an important purpose in that it allows the Committee both to
provide input to the Applicant’s professional development (Tran v Canada
(Attorney General), 2013 FC 455, at para 11) and to reconsider its
decision. In such reconsideration, the Committee could possibly grant the
Applicant a retroactive promotion, which would have financial consequences for
the Applicant.
[24]
Furthermore, the Applicant argues that the words “independent recourse
mechanism” in section 2 of the Regulations indicate that
the mechanism established must be capable of providing some real recourse that
could be of personal benefit to the complainant.
[25]
Finally, the Applicant underlines that the Reviewer did not conclude that the Committee’s decision was correct, but only that it
followed the correct procedural mechanics. Though the
Deputy Minister’s decision states that the Reviewer’s recommendation confirmed
that the Committee considered all of the relevant information, the Applicant
argues that the Reviewer merely indicated that the required mechanical steps of
the Committee’s process were followed and never stated that the Committee’s conclusions
were appropriate.
B.
Respondent’s Submissions
[26]
The Respondent agrees with the Applicant that
the standard of review is reasonableness. The Respondent also agrees with the
principle that a remedy provided under the IRMDS should have a logical
connection to the breach and should address to the Applicant’s individual
circumstances.
[27]
The Respondent argues that, in considering the
decision of the Deputy Minister, the Court must be mindful of the role of the
Reviewer in the IRMDS, which is to either confirm the appropriateness of the
Committee’s process or identify any issue(s) that may have negatively affected
its decision.
[28]
The Respondent argues that the issues identified
in the Reviewer’s report focus on the Applicant’s ability to understand the
Committee’s decision rather than with the decision itself or the
decision-making process.
[29]
The Respondent submits that the Reviewer’s
intention in recommending that the file be sent back to the Committee was to
help the Applicant to understand why he was denied the promotion in order to
assist him in obtaining it in the future. Given the intent of the
recommendation and the fact that the Applicant had already been promoted to the
DS-05 level when the Deputy Minister’s decision was rendered, it was unnecessary
to send the file back as recommended by the Reviewer. It was reasonable for the
Deputy Minister to decide that additional feedback on how to obtain a promotion
was unnecessary for an employee who had already obtained the promotion he
sought.
[30]
Finally, the Respondent submits that the Deputy
Minister’s decision is responsive in that the Reviewer’s recommendation will be
considered in the Committee’s future reviews.
VI.
Standard of review
[31]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, at paras 57-58, held that an exhaustive review is not
required when the standard of review has already been determined by the
jurisprudence. While the present case appears to be the first application for
judicial review of a remedial decision taken under the IRMDS, this Court has
applied the standard of reasonableness to similar recourse mechanisms (Backx
v Canadian Food Inspection Agency, 2013 FC 139, at para 19 [Backx]; Spencer
v Canda (Attorney General), 2010 FC 33, at paras 29-32; Peck v Parks
Canada, 2009 FC 686, at paras 17-23). Moreover, the question before the
Deputy Minister was one of mixed fact and law because it involves the
application of the internal policies and administrative procedures of the DND to
a factual situation. This indicates that the standard of reasonableness should
apply. Therefore, I agree with the parties that the standard of review in this
case is reasonableness.
VII.
Analysis
[32]
I agree with the Applicant’s submission that the
Deputy Minister’s decision should be responsive to the Reviewer’s
recommendation. Section 2 of the Regulations provides for a “recourse
mechanism”. An employee who disagrees with the decision of the Committee must
have access to a real and effective recourse mechanism.
It must provide an employee with a meaningful
remedy when the circumstances permit such remedy (Backx, at para 24).
[33]
I also agree with the Applicant that the
Reviewer’s report did not explicitly confirm that the Committee considered all
of the relevant documentation or that it followed the Salary Administration
System, as suggested in the July 30, 2013 letter communicating the Deputy
Minister’s decision. However, the absence of negative comments on these points
suggests that the Reviewer saw no problem with the decision itself. The
Reviewer’s recommendation to have the Committee review the Applicant’s file for
the 2011-2012 period was based on the importance of providing him with the
basis for its decision as well as adequate feedback to both establish realistic
objectives and avoid any feeling of failure:
[…] à fournir au
demandeur le fondement de sa décision de même qu’une rétroaction adéquate afin
de contribuer à la fixation d’objectifs réalistes et d’éviter d’entretenir une
situation d’échec, d’épuisement professionnel et de critiques systématiques.
[34]
The ultimate purpose of the Reviewer’s recommendation was to help
the Applicant to obtain a promotion in the next cycle, the
2012-2013 period. The Reviewer did not question the validity of the Committee’s
initial decision; he simply concluded that the justification for the decision
and the feedback provided to Applicant were insufficient.
[35]
However, by the time of the Deputy Minister’s decision,
the Applicant had already received the promotion to the DS-05 level. If the
Deputy Minister had decided to follow the Reviewer’s recommendation, the only
effect would have been to provide the Applicant with feedback to obtain a
promotion that he had already obtained. In my opinion, it was reasonable for
the Deputy Minister to make the decision communicated on July 30, 2013.
[36]
By the time the Deputy Minister’s decision was
made, there was no remedy that could be given to the Applicant that would give
him more that the promotion he had already received. Based on the Reviewer’s
recommendation a retroactive granting of the promotion was not contemplated. The
Committee’s decision to deny the promotion in 2012 was not put in doubt. I
agree with the Respondent that if the Reviewer had felt that the substance of
the Committee’s decision was problematic, he could have said so. Though the
Reviewer was constrained from recommending that a promotion be given, he was
free to note problems with the Committee’s decision. In fact, that was his
mandate.
[37]
I disagree with the Respondent’s argument that
the Deputy Minister addressed the Reviewer’s recommendation by discussing the
Reviewer’s comments with the Assistant Deputy Minister, Science and Technology
and undertaking to consider them in the Committee’s future work. This response
does not address the Applicant’s individual circumstances. Based on the
jurisprudence cited by the Applicant (including Backx), this response is
inadequate. If it was not clear to me that the Applicant had already received
the only remedy he could expect (based on the Reviewer’s recommendation), I
would have reached a different decision in this matter.
[38]
I conclude with a comment about the multiple
occasions in which prescribed deadlines were not respected in this matter,
without excuse or explanation. As detailed above, deadlines were missed for (i)
the appointment of the first reviewer; (ii) the report from the first reviewer;
(iii) the appointment of the second reviewer after the withdrawal of the first;
and (iv) the communication of the Deputy Minister’s decision to the Applicant following
the Reviewer’s recommendation. I have no evidence as to whether the situation
in this case is unusual or typical, but there was certainly a systematic
problem concerning the respect for deadlines in this case, for which the
Respondent offered virtually no explanation. DND cannot reasonably claim to
have a functioning IRMDS if the requirements thereof are routinely
disrespected. In this case, the recourse mechanism was of no use to the
Applicant. He did obtain the promotion he sought, but certainly without any
credit to the recourse mechanism that was supposed to help him.
[39]
Because the Applicant already has his remedy, he
has not been prejudiced by the repeated delays. But again, if it was not clear
to me that the Applicant was not entitled to any further remedies, I would have
reached a different decision.
VIII.
Conclusion
[40]
In my opinion, the application for judicial
review should be dismissed.
[41]
The parties have made a joint recommendation as
to the appropriate amount of costs in this application. If I were to follow
that recommendation, I would award costs to the Respondent. However, because of
the repeated delays by the Respondent in the Applicant’s IRMDS case, I have
decided that no costs should be awarded in this application.
Email this Content