Docket: T-1599-14
Citation:
2015 FC 542
Ottawa, Ontario, April 29, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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PETER TATICEK
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Applicant
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and
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CANADA BORDER
SERVICES AGENCY
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Peter Taticek (the Applicant) has brought an
application for judicial review of a final-level grievance decision made on
June 18, 2014 by Louis-Paul Normand, Acting Vice President of the Canada Border
Services Agency (CBSA) Information, Science and Technology Branch. Mr. Normand
denied the Applicant’s grievance on the basis that the Respondent had acted
reasonably and in accordance with the Terms of
Settlement agreed between the Applicant and the Respondent on April 1,
2009.
[2]
For the reasons that follow, the application for
judicial review is allowed and the matter is remitted to the Respondent to craft
the appropriate remedy.
II.
Facts
[3]
This is the second time that the underlying
dispute has reached this Court. In Taticek v Canada (Border Services Agency),
2014 FC 281 (the first proceeding), Justice Strickland explained the
circumstances as follows:
2. [O]n December 30, 2008, [the
Applicant] filed a complaint with the Public Service Staffing Tribunal (PSST)
regarding an internally advertised appointment process, conducted under the Public
Service Employment Act, SC 2003, c 22, ss 12, 13 (the PSEA), for a Team
Leader position at the CS-03 group and level. The Applicant alleged that the
President of the CBSA abused his authority by extending an acting appointment
for the CS-03 Team Leader position thereby providing the incumbent actor with
an unfair advantage in gaining experience in the position.
3. The parties participated in
mediation with respect to the complaint which resulted in the execution of a
document entitled “Terms of Settlement” (settlement agreement) dated April 1,
2009, which stated that it constituted a “full and final settlement of the
specific issues and conditions associated with the complaint of the
Complainant.” Further, that the parties acknowledged that all aspects of the
matter had been resolved to their satisfaction in accordance with its terms.
The second article of the settlement agreement is at issue and reads as
follows:
2. to staff any current
vacant acting PL [sic] positions using the upcoming acting CS-03
selection process and then from the upcoming indeterminate CS-03 selection
process based on the essential and asset qualifications for each of the
positions. [Article 2]
4. The crossing out by hand of the
world “acting” was initialled by each party. The Applicant withdrew his
complaint subsequent to the signing of the settlement agreement.
5. Some time thereafter, CBSA
deployed an employee from the Canada Revenue Agency into a vacant CS-03
position and filled two other vacant CS-03 positions by way of internal
deployments. In response, the Applicant filed two grievances, later
consolidated, alleging that the deployments were in breach of the settlement
agreement. The Applicant sought to have CBSA comply with the settlement
agreement, correct the contraventions and take any other measures necessary to
remedy the situation.
[4]
The decision under review in the first
proceeding was described by Justice Strickland as follows:
7. On March 29, 2012, a final level
grievance consultation was held by Ms. Rachel Stanford, a senior labour
relations advisor of CBSA, which resulted in Ms. Stanford preparing a “Final
Level Grievance Précis” (Précis) containing her analysis of the grievance. Her
analysis is summarized below:
The settlement agreement dealt with a
staffing issue regarding a pool of candidates that no longer exist[s] as it
expired in fall of 2010;
There was a misunderstanding as to
the interpretation of the settlement agreement. Management believed the subject
term only applied to promotional appointments or acting positions of over four
months. The Applicant and the union believed that “any” vacant positions were
to be staffed by using the existing pools and that this included all acting,
short or long term, as well as indeterminate appointments;
The PSST would not review the
situation because the complaint had been withdrawn and the file closed.
Further, there was no provision under the PSEA to file a new complaint on the
basis of a mediation or settlement not being respected as outlined in the Howarth
decision;
As the settlement was not clear on
what type of appointments or staffing actions were to be used for these
positions, “it would appear that it was an unfortunate misunderstanding”
between the Applicant and management.
8.
Ms. Stanford recommended that the grievances be
denied.
9.
On June 29, 2012, Ms. Therriault-Power, Vice
President of the Human Resources Branch of CBSA, issued a “Reply to Grievance”
which denied the grievances on the basis of the following:
It is my understanding that the
memorandum of settlement was interpreted by management to apply only to
indeterminate promotional appointments. As the settlement was unclear on what
type of appointments or staffing actions were to be used for these positions, I
am of the opinion that it was an unfortunate misunderstanding between yourself
and management. As such your grievances are denied.
In addition, the remedy you are seeking
cannot be implemented, as such, no further corrective action will be
forthcoming.
[5]
Justice Strickland found in favour of the
Applicant in the previous proceeding based on the following analysis:
55. In my view, “any current vacant acting
PL [sic] position”, is worded broadly and on its face, and in the absence of
any applicable policy or guidelines to the contrary, could be read to include
deployments.
[…]
58. Thus,
while management and the Applicant were entitled to their respective subjective
beliefs as to what was intended to be achieved by the settlement agreement,
evidence of a party’s subjective intention is not relevant. The Supreme Court
of Canada stated the following in Eli Lilly, above:
The
contractual intent of the parties is to be determined by reference to the words
they used in drafting the document, possibly read in light of the surrounding
circumstances which were prevalent at the time. Evidence of one party's
subjective intention has no independent place in this determination.
[…]
60. [R]ather, the decision-maker
should have based her determination on an interpretation of the terms of the
settlement agreement and the context in which it was made. Even if the wording
was not clear, and for that reason some reliance on extrinsic evidence were
permissible, in the absence of any reasons for accepting one party’s
interpretation over the other, there is no reasonable basis for merely adopting
management’s interpretation.
61. Given the foregoing, in my view,
this matter should be remitted back on the basis that the decision-maker erred
in basing her its [sic] decision solely on management’s interpretation
of the settlement agreement which was not reasonably supported by the record. […]
(Dunsmuir, above, at para 48; NLNU v Newfoundland & Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (SCC) at para 14).
[6]
The reconsideration of the Applicant’s grievance
was undertaken by Mr. Normand. He concluded that management’s actions were
consistent with Article 2:
Upon review, I find that management’s action
were reasonable and consistent with the wording of Article 2 in the TOS. I note
that management met with you, and your union representative, and shared their
understanding that the purpose of the TOS was to provide you with a fair
opportunity for promotion. This included adding language to the settlement
agreement regarding the upcoming CS-03 processes, to allow you to be considered
for all promotional appointments that could be staffed through those impending
processes.
I also note that upon learning of your
position that management has failed to comply with the terms of the settlement
agreement, management met with you, and your union representative, to discuss
your concerns. Management noted your concerns and endeavoured to explain and
share with you, and your union representative, the reasons for their actions.
While it is regrettable that you disagree
with management’s position, I am satisfied that management has respected the
meaning and spirit of the TOS. I see no reason to intervene and must deny your
grievances.
[7]
Mr. Normand’s decision was supported by an
internal memorandum, or précis, prepared by a CBSA senior labour relations
advisor. In the previous proceeding, Justice Strickland concluded that an
internal memorandum of this nature may be considered a part of the reasons:
44. [A] précis or an internal
memorandum with recommendations to the decision-maker may serve as reasons (Wanis
v Canadian Food Inspection Agency, 2013 FC 963 at para 21; Miller v
Canada (Solicitor General), 2006 FC 912, [2007] 3 FCR 438 at para 62). In
this case, the Précis was relied on by the decision-maker in coming to her
decision and, accordingly, its contents should be considered as part of the
reasons for the final Decision.
[8]
The internal memorandum prepared for Mr. Normand
in the present proceeding included the following observations:
In management’s view, Ms. Billey’s December
2009 emails provide a clear illustration of their understanding of the TOS and
Article 2. They saw the document as an avenue to provide Mr. Taticek with a
fair opportunity for promotion, not as a vehicle to limit their flexibility to
staff positions. In their view, the agreement only applied to promotional
appointments and acting over four months, short-term acting and deployments did
not apply […].
Mr. Taticek’s reasoning, although passionate
and in his point of view, principled, is unreasonable and his view of the implications
of Article 2 is self-serving. While self-interest alone does not translate into
unreasonableness, his position needs to be viewed through the lens of
mediation, the purpose of which was to achieve a mutually acceptable resolution
between the parties […] concerning his PSST complaint. On a balance of
probabilities, it is more likely than not, that had Ms. Billey, participating
in mediation with the assistance of a staffing representative, been aware of
Mr. Taticek’s position, she would not have signed the TOS.
With the assistance of a resourcing
representative, it is, more likely than not, that she signed with the TOS with
the view of maximizing the avenues for Mr. Taticek (along) to receive a fair
opportunity for promotion. […].
[9]
According to the internal memorandum provided to
Mr. Normand in the present proceeding:
Management’s
view is more reasonable and should be afforded greater deference because it is
more aligned with the PSEA and Regulations. Under the PSEA, short-term acting
(acting assignments under 4 months) and deployments are not promotions. They
are another form of staffing available to management.
III.
Issues
[10]
The issues raised in this application for
judicial review are similar to those considered by Justice Strickland in the
previous proceeding:
A.
What is the appropriate standard of review?
B.
Did Mr. Normand commit a reviewable error
warranting the intervention of this Court in deciding not to allow the
grievances?
C.
If the application for judicial review is
allowed, what is the appropriate remedy?
IV.
Analysis
A.
What is the appropriate standard of review?
[11]
Justice Strickland held in the previous proceeding
that management’s interpretation of the Terms of Settlement was subject to
review by this Court against a standard of reasonableness:
33. In my view, while there are
factors that would support a correctness standard such as the informal nature
of the grievance process in the present case and the fact that it is not
independent of the employer, weighing these factors and applying a contextual
analysis points to reasonableness as the appropriate standard of review […].
[12]
I agree with this conclusion. I note that neither
party in this proceeding takes issue with the standard of review applied by
Justice Strickland in the previous proceeding.
B.
Did Mr. Normand commit a reviewable error
warranting the intervention of this Court in deciding not to allow the
grievances?
[13]
In the previous proceeding, Justice Strickland stated
as follows:
37. [T]he golden rule of contract
interpretation is that the “literal meaning must be given to the language of
the contract, unless this would result in absurdity.” Context can be admitted
to show the purpose for which the contractual provision at issue was included,
not to vary the meaning of the words of a written contract (Gerald H. L.
Fridman, The Law of Contract in Canada at 437-438). Evidence of one
party's subjective intention is not relevant and extrinsic evidence should not
be considered when the contract is clear and unambiguous (Eli Lilly & Co
v Novopharm Ltd, [1998] 2 S.C.R. 129 (SCC) at paras 54-59 [Eli Lilly]).
[14]
In the present proceeding, the Respondent relies
upon the affidavit of the Applicant’s manager Diane Billey, who maintains that “my intent in agreeing to paragraph 2 of the Settlement
Agreement was that it would apply only to acting appointments of four months of
longer and to promotional appointments”. Ms. Billey does not say that
her intention was communicated to the Applicant or his representative before
the Terms of Settlement were concluded. Rather, she says that her understanding
of Article 2 was confirmed “in an email dated December
16, 2009,” i.e., approximately eight months after the Terms of
Settlement were concluded on April 1, 2009.
[15]
The Applicant has filed the Affidavit of Philip
Wang, who attended the mediation on behalf of the Professional Institute of the
Public Service of Canada (PIPSC) in its capacity as the Applicant’s bargaining
agent. Mr. Wang deposes as follows:
7. I can confirm that at no point
during the settlement discussions leading up to the signing of the Settlement
Agreement did either employer representative suggest that the terms of
settlement were limited to providing Mr. Taticek with a fair opportunity for
promotion. I can also confirm that neither employer representative suggested
that the terms of settlement were restricted to promotional appointments.
8. In my view, the Settlement
Agreement is clear on its face. It applies to all staffing of CS-03 positions,
including by way of acting appointments and deployments. At no time were Mr.
Taticek and I led to believe any differently during the settlement negotiations
leading up to the signing of the Settlement Agreement.
[16]
Neither of these affidavits was before Mr.
Normand when he reconsidered the Applicant’s grievance, but they merely confirm
what the record already demonstrates: to the extent that the Respondent
intended Article 2 of the Terms of Settlement to convey anything beyond the
plain meaning of its words, this was never communicated to the Applicant.
[17]
In the previous proceeding, Justice Strickland found
that the words “any current vacant acting PL [sic]
position” are sufficiently broad on their face to
include deployments. The Respondent does not dispute that the positions
ultimately staffed by deployment were vacant positions within the scope of
Article 2. Pursuant to the Terms of Settlement, the Respondent agreed to staff
these positions “using the upcoming acting CS-03
selection process and then from the upcoming indeterminate CS-03 selection
process based on the essential and asset qualifications for each of the
positions.” Simply put, the Respondent did not abide by this commitment.
[18]
In granting the previous application for
judicial review, Justice Strickland acknowledged the possibility that the plain
language of the Terms of Settlement might be tempered by “any applicable policy or guidelines to the contrary”. The provisions of the PSEA referred to by the Respondent do not
contradict the Terms of Settlement. It is true that the PSEA affords the
Respondent a high degree of flexibility in its choice of staffing actions.
However, in this case, the Respondent voluntarily restricted its flexibility by
agreeing to the Terms of Settlement. The Respondent does not say that the PSEA
precludes any limitation of discretion by voluntary agreement; indeed, the
Respondent’s own interpretation of the Terms of Settlement entails some
restriction on management’s flexibility in staffing the vacant positions. Counsel
for the Respondent described the choice of words in Article 2 as “unfortunate”, but that does not alter their meaning.
[19]
Ultimately, the present application for judicial
review must be allowed on substantially the same grounds as the previous
application. The Respondent’s reconsideration of the Applicant’s grievance did
not follow the direction provided by Justice Strickland. There was no real attempt
to interpret the Terms of Settlement and the context in which they were agreed.
No reasonable basis was offered for adopting management’s interpretation beyond
an acceptance of management’s subjective intention. This was a reviewable error
warranting the intervention of this Court.
C.
What is the appropriate remedy?
[20]
I do not think it is appropriate to refer this
matter to the CBSA to permit another opportunity to interpret and apply the
Terms of Settlement in a reasonable manner. The standard of review applied by
this Court is that of reasonableness. However, subject to Justice Strickland’s
caveat regarding policies or guidelines to the contrary (which do not arise
here), there is no reasonable interpretation of Article 2 of the Terms of
Settlement that would permit the Respondent to disregard its plain meaning and
staff the vacant positions by deployment instead of by the specified selection
processes. By staffing the vacant positions by deployment, the Respondent has clearly
breached the Terms of Settlement.
[21]
In the previous proceeding, Justice Strickland
said the following about the remedies that may be available to the Applicant in
the event of a successful application for judicial review:
67. While it is impossible to know if
the Applicant would have been the successful candidate, the final-level
decision maker has the ability to award damages for the “loss opportunity” to
obtain one of the three positions sought (OPSEU v Ontario (Ministry of
Community, Family & Children's Services), [2004] OGSBA No 192 (Ont
Grievance SB) (Crown Employees Grievance Settlement Board) at paras 14-21; Alberta
Health Services v AUPE, [2011] AGAA No 43 (Alta Arb) (Sims, QC) at paras
37-47; OPSEU v Ontario (St Lawrence Parks Commission), [2010] OGSBA No
113 (Ont Grievance SB) (Herlich) at paras 14-27; Grande Yellowhead Regional
Division No 35 v CUPE, Local 1357, [2010] AGAA No 47 (Alta Arb) (Tettensor)
at paras 16-21). Arbitral jurisprudence has awarded damages for lost
opportunity to obtain a promotion in accordance with the common law damages for
lost opportunity (Chaplin v Hicks, [1911] 2 KB 786 (Eng CA) and the law
of damages for lost opportunity has been applied in Canadian courts (Eastwalsh
Homes Ltd v Anatal Development Ltd, [1993] OJ No 676 (Ont CA) at para 42).
[…]
76. [G]iven that I have found that
this matter should be remitted back for reconsideration, it is up to the
decision-maker, if necessary, at that time, to craft an appropriate remedy (Backx,
above, at para 25).
[22]
The Respondent is best placed to determine how
to remedy its breach of the Terms of Settlement. This could be through an award
of damages or the provision of opportunities that are comparable to those
contemplated by the Terms of Settlement. The parties may choose to agree to
something else. That is their prerogative.
[23]
This litigation might not have been necessary if
the Respondent had adhered more closely to the decision of Justice Strickland
in the previous proceeding. The Applicant is entitled to his costs in
accordance with Column IV of Tariff B.
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