Date: 20000131
Docket: A-454-98
CORAM: STONE J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
TED BULAT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
Respondent
Heard at Ottawa, Ontario, Tuesday, January 18, 2000.
Judgment delivered at Ottawa, Ontario, on January 31, 2000.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
LÉTOURNEAU J.A.
Date: 20000131
Docket: A-454-98
(T-1191-97)
CORAM: STONE J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
TED BULAT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
In September 1994 Ted Bulat, who was then an Administrative Officer with Indian and Northern Affairs Canada, complained to the Classification Grievance Committee that the classification of his position in the federal public service should be raised from an AS-02 to an AS-O3.
The grievance was heard by the Committee on April 8, 1997. In its report to the Deputy Head"s nominee for classification grievances the Committee recommended that the classification not be changed. In a letter dated May 6, 1997 the Deputy Head"s nominee communicated to Mr. Bulat his acceptance of the Committee"s recommendation.
The principal issue in this appeal is whether the appellant was afforded an opportunity that was reasonable in all the circumstances to present his case to the Classification Grievance Committee. In particular, did the Committee breach the duty of fairness when it based its negative recommendation on information from a management representative, which was not disclosed to the appellant for comment, that some of the appellant"s duties should be disregarded for classification purposes because the appellant had undertaken them voluntarily?
In an order dated July 8, 1998 the learned Motions Judge dismissed Mr. Bulat"s application for judicial review. The Motions Judge found that there had been no breach of the duty of fairness. The information received by the Committee was not of the kind that called for Mr Bulat to respond by submitting material that he could not have put before the Committee when representations were made on his behalf, especially since a grievor before the Committee has the burden of establishing that her or his job has been wrongly classified.
Mr. Bulat had grieved the classification of his job on the ground that he had been assigned too low a numerical rating for the factor, "responsibility for outside contacts". The appellant was represented before the Committee by Ms. Mary Ann Wight, a classification and equal pay officer from the Public Service Alliance of Canada.
At the hearing she detailed the duties performed by the appellant and submitted that they were sufficiently extensive as to warrant a higher rating on the "outside contacts" factor which, if accepted, would probably have resulted in the upward reclassification of Mr. Bulat"s work. At the end of her presentation she asked the Committee for an opportunity to meet with it again to address any "contradictions with the information provided by management."
In accordance with the procedures established by the Classification Grievance Procedure, a document approved in 1994 by the Treasury Board, Ms. Wight and the appellant withdrew at the end of their presentation to the Committee. The management representative, Mr. Dhir, then informed the Committee in the absence of Mr. Bulat and Ms. Wight that Mr. Bulat had voluntarily undertaken aspects of the "outside contact responsibilities" that he had described to the Committee. They were considered to be performed on a "developmental" basis to enhance Mr. Bulat"s career opportunities in the public service, were not integral to his job and should be disregarded for classification purposes.
In an affidavit sworn by Ms. Boileau, a member of the Classification Grievance Committee that heard this matter, she stated that the Committee decided to recommend no change to Mr. Bulat"s classification "as a result of management"s information."
It is not disputed that the duty of fairness applies to the classification grievance process, and that a decision by the Deputy Head, or his or her nominee, adopting a recommendation of the Committee may be set aside by the Court on the ground that the Committee failed to afford the grievor a fair hearing. Further, it has been established in this Court that, given the nature of the process, the content of the duty of fairness is located "somewhere in the lower zone of the spectrum": Chong v. Canada (Attorney General ) (1999), 236 N.R. 371, 374 (per Décary JA).
However, in my opinion this case does not turn on the precise location on the procedural spectrum of the content of the duty that the Committee owed to the appellant. 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.
In Chong, supra, the Court approved (at para 12) a statement of principle to this effect by Reed J. in the context of a classification grievance proceeding in Hale v. Canada (Treasury Board), [1996] 2 F.C. 3, paragraph 20.
Ms. Wight stated in her affidavit that she had not been advised prior to the hearing that management was of the view that Mr. Bulat performed a number of the duties involving outside contacts on a voluntary or developmental basis and that they therefore could not be considered a part of his job for classification purposes.
Mr. Raven submitted that if Mr. Bulat had understood management"s position he could have responded by relying on evidence, particularly Mr. Bulat"s performance appraisal reports, to show that the duties assigned by his supervisor and performed by the employee were not "voluntary". In addition, he could have argued that the Classification Grievance Procedure draws no distinction between voluntary and non-voluntary duties. The only question is whether they were assigned by management and performed by the employee, provided that they were not inconsistent with the work description.
The learned Motions Judge rightly observed that the material on which Mr. Bulat now says that he would have relied was available to him at the time of the hearing and he could have relied on it. However, in my view this gives insufficient weight to the particular use that Mr. Bulat would have made of it if he had anticipated management"s response. That is, he would have relied on it, not just to inform the Committee of the scope and frequency of his outside contacts but, more particularly, to demonstrate that what he did was not "voluntary", but had been assigned by management, become part of his job and was subject to regular performance appraisals by his supervisor.
Given Ms. Wight"s affidavit that she was unaware of the position that management subsequently took, and the rather unusual nature of it, I have concluded that as a matter of fairness Mr. Bulat ought to have been given an opportunity to respond with evidence and argument to the point that was decisive in the Committee"s mind.
The fact that the particular duties were not included in the "key activities" set out in the job description was not enough to put Mr. Bulat on notice that their relevance to the classification exercise might be challenged by management. Further, the submissions that would have been made on his behalf, if he had been given the opportunity, were not so weak that they could not possibly have made a difference to the result.
It would not have been onerous for the Committee to disclose to Mr. Bulat management"s position and to allow him to respond to it, particularly since Ms. Wight asked for such an opportunity as soon as she was advised of the decision. Nor would it have turned the classification grievance process into a formal adjudication.
This is sufficient to allow the appeal. Needless to say, this disposition of this appeal in no way indicates that the appellant should receive a positive recommendation from the Committee.
We need not address the second issue, namely whether it was an error of law for the Committee to take the view that it should disregard duties assigned by an employee"s supervisor and performed by the employee that were not inconsistent with the work description.
A. CONCLUSIONS
[18] For these reasons the appeal should be allowed with costs, the order of the Trial Judge and the decision of the Deputy Head"s nominee set aside, and the matter remitted to the Classification Grievance Committee differently constituted for redetermination of its recommendation to the Deputy Head or nominee with respect to the position being grieved by the appellant, in a manner consistent with these reasons.
"John M. Evans"
J.A.
"I agree.
A.J. Stone J.A."
"I agree.
Gilles Létourneau J.A."
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