Date: 20090925
Docket: A-25-09
Citation: 2009 FCA 276
CORAM: NOËL
J.A.
NADON
J.A.
EVANS
J.A.
BETWEEN:
HARJINDER JOHAL and
THOMAS STASIEWSKI
Appellants
and
CANADA REVENUE AGENCY and
CHRISTINA MAO
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
Harjinder
Johal and Thomas Stasiewski, employees of Canada Revenue Agency (“CRA”), are
appealing from a decision of the Federal Court, in which Deputy Judge Frenette
denied their applications for judicial review. The appellants had asked the
Court to set aside a final level decision by Lysanne M. Gauvin, Assistant
Commissioner, Human Resources, CRA, dismissing their grievance against the CRA.
The Federal Court’s decision is reported as Johal v. Canada (Revenue Agency), 2008 FC 1397.
[2]
The
question to be decided in this appeal is whether the appellants are barred from
presenting individual grievances under the Public Service Labour Relations
Act, S.C. 2003, c. 22 (“PSLRA”), because the CRA’s Staffing Program
deals with the subject matter of their grievance.
[3]
The appellants
had grieved the CRA’s appointment of one of its employees, Christina Mao, to an
MG-05 position without a competition, after her return to work from an unpaid
leave of absence granted for “family-related needs”. The appellants said that
her appointment was contrary to the CRA’s Staffing Program because, while on
leave, Ms Mao had worked full-time for another employer, a fact which precluded
the CRA from granting her preferred status for an appointment to a position on
her return.
[4]
The Applications
Judge held that Ms Gauvin correctly concluded that she had no jurisdiction
under subsection 208(1) of the PSLRA to determine the appellants’
grievance, because the CRA’s Staffing Program provides recourse for grievances
of this type. Subsection 208(2) states that an employee may not present a
grievance under subsection 208(1) “in respect of which an administrative
procedure for redress is provided under any Act of Parliament”.
[5]
The
appellants say that Ms Gauvin committed a reviewable error when she failed to
consider whether the recourse provided by the Staffing Program adequately
addresses their grievance. They submit that the Staffing Program does not provide
a meaningful remedy for them because the Directive on Preferred Status excludes
employees without preferred status, such as the appellants, from seeking
recourse under the Staffing Program with respect to decisions concerning
preferred status. Furthermore, they argue, it was unreasonable for Ms Gauvin to
conclude on the basis of the material before her that the CRA was not obliged
to deny Ms Mao preferred status when it learned that she had breached the terms
of her leave of absence.
[6]
I agree
with the appellants that Ms Gauvin committed a reviewable error in deciding
that subsection 208(2) bars the appellants from presenting a grievance under
subsection 208(1), even though they have no recourse under the Staffing Program
because they do not have preferred status. Section 54 of Canada Revenue
Agency Act, S.C. 1999, c. 17 (“CRAA”), does not automatically exclude
a grievance from subsection 208(1) when the Staffing Program deals with the subject
matter of the grievance. Consequently, I would allow the appeal and remit the final
level grievance to be dealt with on its merits by a different CRA officer.
B. FACTUAL BACKGROUND
[7]
In May
2000, Ms Mao started a one-year “personal needs” unpaid leave of absence from
her position with the CRA as a Team Leader (AU-03), in order to take employment
with the Investment Dealers Association (“IDA”). This leave was granted in
accordance with Article 17.11 of the collective agreement, which permits the CRA
to grant a “Leave Without Pay for Personal Needs” of no more than one year.
[8]
In March
2001, Ms Mao requested a five-year leave of absence for “family-related needs”;
she was due to give birth in September. The CRA granted her request. Article
17.14 of the collective agreement permits the CRA to grant an unpaid leave of
absence of no more than five years “for the personal long-term care of the
employee’s family”.
[9]
In March
2002, the AU-03 position at the CRA that Ms Mao had occupied before taking her
leaves of absence was converted to an MG-05 Team Leader position. In September
2006, she advised the CRA that she was ready to return to work. However,
because her position had been “backfilled” (that is, permanently filled) during
her absence she was granted a one-year leave of absence without pay and preferred
status under the CRA’s Preferred Status Directive, a part of its Staffing Program
which it developed pursuant to the CRAA, subsection 54(1). Preferred
status facilitates a returning employee’s appointment to a permanent position
at the same or equivalent level by giving them preference over other employees.
Pending such an appointment, Ms Mao was assigned to a temporary AU-03 position.
[10]
In May 11,
2007, Ms Mao was appointed without competition to an MG-05 Team Leader position
on the basis of her preferred status. As a result, the three-month appointment
of the acting incumbent of this position, the appellant Mr Johal, was cancelled.
[11]
On her
return to work, the CRA learned that Ms Mao had continued full-time employment
with the IDA during her five-year leave of absence for family-related needs. An
informal investigation by local CRA management determined that, although she
had “pushed the envelope” in the use of her leave, she had not misused it. It
is agreed by counsel that nothing turns on whether the CRA learned before or after
she was granted preferred status how Ms Mao had used her leave.
[12]
The
appellants grieved the CRA’s appointment of Ms Mao to the MG-05 position.
Specifically, they alleged that granting preferred status to Ms Mao was an
abuse of process and/or of authority on the part of local CRA management, which
had not explained the basis of its decision. The grievance did not explicitly
allege that the CRA should have rescinded, or refused to grant, Ms Mao’s
preferred status when it discovered that she had worked full-time during her leave
for family-related needs.
[13]
As already
noted, the appellant Mr Johal had occupied this MG-05 position in an acting
capacity, which was cancelled when Ms Mao was appointed to it. The other
appellant, Mr Stasiewski, is also an employee of the CRA and would like to be
considered for an MG-05 position. He is also the co-chair of the appellants’
bargaining agent, a sub-group of the Professional Institute of the Pubic
Service of Canada.
C. DECISION OF THE TRIBUNAL
[14]
In the
Final Level Grievance Reply, the decision under review, Ms Gauvin concluded
that the substance of the appellants’ grievance in respect of the appointment
of Ms Mao was a staffing matter, and that recourse for staffing matters is specifically
provided by the CRA’s statutory Staffing Program. Accordingly, she held, the
appellants were barred by subsection 208(2) of the PSLRA from presenting
this grievance under subsection 208(1). The question of jurisdiction had not
been raised in the first three levels at which the grievance had been
considered.
[15]
Ms Gauvin
went on to state that some of the matters raised by the appellants did not
concern them directly and that it would be a breach of the Privacy Act,
R.S.C. 1985, c. P-21, for the CRA to give details “with respect to the outcome
of decisions made”. This is presumably a reference to the circumstances in
which the CRA decided not to cancel Ms Mao’s preferred status. Finally, Ms
Gauvin concluded that she had found no “abuse of process on the part of local
management in its application of the Canada Revenue Agency’s policies and
guidelines” and that there was therefore no reason to intervene.
D. DECISION OF THE FEDERAL COURT
[16]
The
Applications Judge decided on the basis of Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”), that whether Ms Gauvin had
jurisdiction to hear and determine the appellants’ grievance was reviewable on
a standard of correctness, and her decision that there had been no abuse of
process and/or authority by the CRA was reviewable for unreasonableness as a
question of mixed fact and law.
[17]
He
accepted the argument that subsection 208(2) precluded the appellants from
presenting a grievance under subsection 208(1), on the ground that the Staffing
Program issued under subsection 54(1) of the CRAA “is the complete code
that governs recourses for the Agency’s employees” (at para. 33). However, he
also acknowledged that, because the appellants were precluded by Directive ‘S’
from pursuing recourse under the Staffing Program with respect to decisions
concerning preferred status, the Staffing Program “has its remedial limitations
on the applicants in this case”.
[18]
In the
opinion of the Applications Judge, the appellants should have applied to the
Federal Court for a judicial review of the appointment of Ms Mao. Noting the
consent of the CRA, he granted the appellants’ request for an extension of time
by giving them leave to file their application in the Federal Court no later
than 30 days from the date of his Order.
E. LEGISLATIVE FRAMEWORK
[19]
Subsection
208(1) of the PSLRA defines the broad scope of the right of employees to
present individual grievances with respect to decisions or actions by the
employer. Counsel for the CRA concedes for the purpose of this appeal that, were
it not for the limits imposed by subsection 208(2) on the right to grieve under
subsection 208(1), the appellants’ grievance falls under paragraph 208(1)(b).
Section 214 provides that decisions at the final level in the grievance process
are final and binding.
208.
(1) Subject to subsections (2)
to (7), an employee is entitled to present an individual grievance if he
or she feels aggrieved
(a)
by the interpretation or application, in respect of the employee, of
(i) a provision of a
statute or regulation, or of a direction or other instrument made or issued
by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a
collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment
(2) An
employee may not present an individual grievance in respect of which an
administrative procedure for redress is provided under any Act of Parliament,
other than the Canadian Human Rights Act.
|
208. (1) Sous
réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter
un grief individuel lorsqu’il s’estime lésé :
a) par
l’interprétation ou l’application à son égard :
(i) soit de
toute disposition d’une loi ou d’un règlement, ou de toute directive ou de
tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de
toute disposition d’une convention collective ou d’une décision arbitrale;
b) par
suite de tout fait portant atteinte à ses conditions d’emploi
(2) Le
fonctionnaire ne peut présenter de grief individuel si un recours administratif
de réparation lui est ouvert sous le régime d’une autre loi fédérale, à
l’exception de la Loi canadienne sur les droits de la personne.
|
214. If an
individual grievance has been presented up to and including the final level
in the grievance process and it is not one that under section 209 may be
referred to adjudication, the decision on the grievance taken at the final
level in the grievance process is final and binding for all purposes of this
Act and no further action under this Act may be taken on it.
|
214. Sauf dans
le cas du grief individuel qui peut être renvoyé à l’arbitrage au titre de
l’article 209, la décision rendue au dernier palier de la procédure
applicable en la matière est définitive et obligatoire et aucune autre mesure
ne peut être prise sous le régime de la présente loi à l’égard du grief en
cause.
|
[20]
Further
details of the process for presenting individual and other grievances are
contained in Part 2 of the Public Service Labour Relations Board Regulations,
SOR/2005-79 (“Regulations”), issued by the Board under subsection 237(1) of the
PSLRA. However, since these are not directly material to the present
appeal, I have not included them here.
[21]
The CRAA
confers exclusive authority on the CRA to appoint employees and requires it to
develop a program governing, among other things, the appointment of staff and
recourse for employees. It also provides that matters governed by the Staffing Program
may not be included in a collective agreement.
53. (1) The
Agency has the exclusive right and authority to appoint any employees that it
considers necessary for the proper conduct of its business.
(2) The
Commissioner must exercise the appointment authority under subsection (1) on
behalf of the Agency.
54. (1) The Agency
must develop a program governing staffing, including the appointment of, and
recourse for, employees.
(2) No
collective agreement may deal with matters governed by the staffing program.
56. (1) The Public
Service Commission may prepare, or have prepared on its behalf, a report to
the Agency on the consistency of the Agency’s staffing program with the
principles set out in the summary of its corporate business plan and must
send a copy of the report to the Auditor General and the Treasury Board.
(2) The Public
Service Commission may periodically review the compatibility of the
principles governing the Agency’s staffing program with those governing
staffing under the Public Service Employment Act and may report its
findings in its annual report.
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53. (1)
L’Agence a compétence exclusive pour nommer le personnel qu’elle estime
nécessaire à l’exercice de ses activités.
(2) Les
attributions prévues au paragraphe (1) sont exercées par le commissaire pour
le compte de l’Agence.
54. (1) L’Agence
élabore un programme de dotation en personnel régissant notamment les
nominations et les recours offerts aux employés.
(2) Sont
exclues du champ des conventions collectives toutes les matières régies par
le programme de dotation en personnel.
56. (1) La Commission
de la fonction publique peut préparer — ou faire préparer — à l’intention de
l’Agence un rapport sur la conformité du programme de dotation avec les
principes énoncés dans le résumé du plan d’entreprise; elle envoie une copie
du rapport au vérificateur général et au Conseil du Trésor.
(2) La
Commission de la fonction publique peut vérifier périodiquement la
compatibilité des principes du programme de dotation de l’Agence avec les
principes régissant la dotation sous le régime de la Loi sur l’emploi dans
la fonction publique et faire état de ses conclusions dans son rapport
d’activités.
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[22]
The CRA
issued the Staffing Program pursuant to subsection 54(1) of the CRAA. The
Directive on Preferred Status was adopted as Annex ‘S’ of the Program. The
following provisions of that Directive are relevant to the appellants’
grievance.
1.1
The
purpose of granting Preferred Status is to endeavour to provide continued
employment to permanent employees of the Canada Revenue Agency (CRA), where
feasible, in accordance with CRA’s business needs. This Directive does not
apply to CRA’s Executive Cadre.
1.3
Preferred
Status may apply to the following situations:
a) Authorized
leave of absence without pay, including permanent and temporary relocation of
spouse;
…
1.4 Preferred
Status may be denied in special circumstances. Reasons for denial of
Preferred Status may include:
…
c) Other
valid and justified reasons.
2.6.1
Employees
on leave may occupy another position temporarily within the Agency on the
condition that it is not inconsistent with the type of leave granted (dual
employment). For example, an employee who is taking leave for the care and
nurturing of children should not occupy another position. If that employee
chooses to occupy another position, the leave should be terminated.
…
5.2.3 Employees
without Preferred Status are not entitled to any recourse when an individual
with Preferred Status is appointed except as part of the recourse normally
applicable to a selection process (see article 2.3.2).
[23]
The specific
internal recourse mechanisms provided for disputes arising under the Staffing
Program, including Annex ‘S’, are contained in Annex ‘L’ to the Staffing
Program. However, the details are not directly material to the present appeal
because Annex ‘S’ excluded the appellants from them.
F. ISSUES AND ANALYSIS
[24]
In my
opinion, this appeal raises two issues. First, does the CRA’s Staffing Program,
including Annex ‘S’, constitute a statutory procedure for redress for the
purpose of subsection 208(2) and thus preclude the appellants from presenting
their grievance under subsection 208(1)? Second, if it does not, did Ms Gauvin
commit a reviewable error when she held that there had been no abuse of process
and/or of authority by the CRA as alleged by the appellants in their
grievances?
Issue 1: Did the
final level decision-maker commit a reviewable error when she decided that she
had no jurisdiction to determine the appellants’ grievance by virtue of
subsection 208(2)?
[25]
In order
to answer this question, the Court must first determine the applicable standard
of review. The Applications Judge held that whether the Staffing Program
provides the appellants with recourse for their complaint is a jurisdictional question
and is therefore reviewable on a standard of correctness.
(i) Standard of review
[26]
There are
two questions of law to be decided in this appeal. The first concerns the
interpretation of subsection 208(2) of the PSLRA: does the Staffing
Program provide “an administrative procedure for redress” for the appellants
when it deals with the subject-matter of their grievance, but is not available
to them because they do not have preferred status? The second question concerns
the interpretation of section 54 of the CRAA: does a “program governing
staffing” developed by the CRA automatically constitute “an administrative
procedure for redress” for the purpose of subsection 208(2) if the program is
intended to be comprehensive?
[27]
The first
step in a post-Dunsmuir standard of review analysis is to consider
whether previous cases have already determined, in a satisfactory manner, the
applicable standard of review: see Dunsmuir at para. 62.
[28]
There is
no case precisely on point. However, in similar contexts this Court has held that
determining whether employees come within statutory exclusion clauses analogous
to subsection 208(2) is a jurisdictional question, and therefore reviewable on
a standard of correctness: see, for example, Canada Post Corp. v. Pollard,
[1994] 1 F.C. 652 (F.C.A.) (“Pollard”) and Byers Transport Ltd. v.
Kosanovich, [1995] 3 F.C. 354 at 371 and 373 (“Byers”) (Canada
Labour Code), and Canada (Attorney General) v. Boutilier, [2000] 3
F.C. 27 (“Boutilier”) (Public Service Staff Relations Act, the
predecessor of the PSLRA).
[29]
After those
cases were decided, Dunsmuir (at para 54) expanded the scope of judicial
deference to specialized tribunals’ interpretation of their “home” legislation,
and legislation closely related to it, emphasizing (at para. 59) that only the
interpretation of those statutory provisions which raise “true” questions of
jurisdiction or vires is reviewable on a standard of correctness.
Further, writing for the Court in Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Justice
Rothstein inferred from Dunsmuir that reviewing courts must exercise
caution in characterizing an issue as jurisdictional, and (at para. 34)
… will only
exceptionally apply a correctness of [sic] standard when interpretation
of [the tribunal’s home statute] raises a broad question of the tribunal’s
authority.
[30]
In my
opinion, correctness is the applicable standard of review in the present case
because subsection 208(2) of the PSLRA and section 54 of the CRAA
demarcate the jurisdiction of competing administrative processes, namely, that
created under subsection 208(1) and that provided by the CRA’s Staffing Program.
According to Dunsmuir (at para. 61), correctness is normally the
standard of review for such questions. I see no reason not to apply that
principle here, even though final level decisions are subject to the “final and
binding” provision in section 214 of the PSLRA.
[31]
Admittedly,
the same CRA employees may entertain individual grievances under both subsection
208(1) and the Staffing Program. However, the grievance processes are not
necessarily the same. For instance, the Staffing Program provides for two
internal levels of recourse for grievances respecting the appointment of an
individual with preferred status: individual feedback by the employee who made
the impugned decision, and a decision review by the supervisor of that
employee. On the other hand, employees presenting individual grievances under subsection
208(1) have a maximum of three levels of internal grievance process culminating
in a final level decision by a senior member of the CRA’s staff, unless the
collective agreement provides otherwise: subsection 237(2) of the PSLRA.
In the present case, there are four levels.
[32]
I would also
note that the decision-maker is not an independent tribunal, but comprises
members of the management of the employer whose actions are the subject of the
grievance. Further, it is not clear from the statutory scheme whether final
level decision-makers have the field experience, either as decision-makers or in
the performance of their other employment-related duties, to equip them well to
interpret the statutory provisions in question. Neither of these considerations
favours deference.
(ii) Interpreting PSLRA, subsection
208(2)
[33]
The
English version of the statutory text is ambiguous and could have one of two
meanings: either that the procedure for redress referred to in subsection
208(2) must be available to the employee who has presented a grievance under
subsection 208(1), or that it must deal with the substance of the grievance,
regardless of whether the particular employee grieving under subsection 208(1)
has access to it.
[34]
The French
text, however, resolves the ambiguity by providing:
Le
fonctionnaire ne peut présenter de grief individuel si un recours administratif
de réparation lui a ouvert sous le régime d’une autre loi fédérale …
The pronoun “lui” makes it clear that a
specific administrative recourse only bars an employee from presenting a
grievance under subsection 208(1) if it is available to the employee presenting
the grievance. However, the appellants have no recourse under the Staffing
Program with respect to Ms Mao’s appointment because Directive ‘S’ provides
that, on the facts of the present case, only employees with preferred status
may seek recourse when a person with preferred status is appointed.
[35]
Accordingly,
the appellants are not barred by the text of subsection 208(2) from presenting
their grievance under subsection 208(1). As Justice Strayer stated in Byers
(at para. 39), for a remedy provided under another statute to exclude a person
from presenting a grievance under subsection 208(1) “the procedure must be
capable of producing some real redress which could be of personal benefit to
the complainant” (emphasis added).
[36]
This
interpretation of the text of subsection 208(2) is supported by its purpose,
which is to ensure that employees resort to the recourse specifically provided
to them for dealing with their employment grievance, and not to the general and
residual recourse under subsection 208(1): Boutilier at paras. 3-4. This
purpose would not be served by interpreting subsection 208(2) as providing that
the existence of a specific recourse, to which an employee has no access,
precludes that employee from presenting a grievance under subsection 208(1).
[37]
The scheme
of the PSLRA favours the internal, expeditious, and informal administrative
resolution of workplace grievances. It would be inconsistent with this statutory
objective to interpret subsection 208(2) as providing that an application for
judicial review is the only recourse open to the appellants for dealing with
their allegation that Ms Mao should not have been appointed to the MG-05
position by virtue of a preferred status to which she was not entitled.
(iii) Interpreting CRAA, section
54
[38]
Counsel
argues that section 54 of the CRAA authorizes the CRA to develop a
comprehensive program for staffing matters and thereby impliedly precludes a
CRA employee from presenting a grievance under subsection 208(1) with respect
to a matter dealt with by the Staffing Program. Hence, she says, even though
the Staffing Program provides no recourse for the appellants’ grievance
respecting Ms Mao’s appointment by virtue of her preferred status, subsection
208(2) bars their right to proceed under subsection 208(1).
[39]
I do not
agree. Whether the CRA intended the Staffing Program to deal comprehensively
with staffing matters is not the issue. The question is whether in enacting section
54 of the CRAA, Parliament intended that, once the CRA had developed a
staffing program, an employee could no longer present an individual grievance
under subsection 208(1) with respect to a staffing matter.
[40]
There is
nothing in the language of section 54 to indicate that Parliament intended to
modify section 208 in the manner suggested by counsel. Further, subsection
54(2) expressly provides that no collective agreement may deal with a matter
governed by the Staffing Program. Counsel is in effect arguing that we should
interpret this provision as if it read, “No individual grievance presented
under subsection 208(1) or collective agreement may deal with matters
governed by the staffing program.” If this is what Parliament had intended, it
could easily have said so. The express removal from collective agreements of
matters covered by a staffing program militates against implying the removal of
individual grievances respecting such matters from section 208 as well: expressio
unius est exclusio alterius.
[41]
Consequently,
in my opinion, the decision-maker exceeded her jurisdiction, or erred in law, when
she concluded that subsection 208(2) bars the appellants from presenting their
grievance about Ms Mao’s appointment. However, unless this error is material,
it is not necessarily dispositive of the appeal.
Issue 2: Did the
decision-maker commit a reviewable error when she found that the employer had
not abused its process and/or authority in appointing Ms Mao on the basis of
her preferred status?
[42]
Despite
the decision-maker’s conclusion that subsection 208(2) deprived her of
jurisdiction to entertain the appellants’ grievance, Ms Gauvin nonetheless
addressed the merits of the grievance. I agree with the Applications Judge that
unreasonableness is the standard of review applicable to the questions of mixed
fact and law raised by this issue. Nonetheless, in my opinion the “merits”
aspect of the final level decision does not meet this standard.
[43]
The
decision-maker’s reasons are almost wholly conclusionary. They do not explain why
the CRA was entitled to treat Ms Mao as having preferred status when, in an
apparently flagrant breach of the terms of her leave, she had worked full-time
for another employer during the five-year leave that she had been granted for
family-related needs. There may be an explanation for CRA’s granting Ms Mao
preferred status in these circumstances, but it is not to be found in Ms
Gauvin’s reasons, which do not demonstrate that the decision-making process had
the degree of “justification, transparency, and intelligibility” required for a
decision to meet the standard of reasonableness: Dunsmuir at para. 47.
The paucity of the decision-maker’s reasons on the merits of the appellants’
grievance may be because she had already decided that she had no jurisdiction
to entertain it under subsection 208(1).
[44]
Given the
limited nature of the material in the record, the brevity of the reasons, and
the agreed facts, I cannot tell whether the decision itself is reasonable as
falling within the range of “possible, acceptable outcomes which are defensible
in respect of the facts and law”: Dunsmuir at para. 47.
[45]
In these
circumstances, I would refer the matter to a different decision-maker to
resolve the appellants’ grievance on its merits.
G. CONCLUSIONS
[46]
For these
reasons, I would allow the appeal with costs here and below, set aside the
order of the Applications Judge, allow the appellants’ application for judicial
review to set aside the decision at the final level of the grievance process,
and remit the grievance to be determined on its merits by a different
decision-maker under section 208(1) of the PSLRA.
“John M. Evans”
“I
agree
Marc
Noël J.A.”
“I
agree
M.
Nadon J.A.”