Docket: T-1263-16
Citation:
2017 FC 345
Ottawa, Ontario, April 05, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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STEVE MORRISEY,
THOMAS KINGSTON, GILLES LACHANCE, ROBERT MILLAIRE AND RANDELL LATTER
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicants, who are employed in the
Information Technology [IT] field as Customer Service Team representatives with
the Department of National Defence [DND] in Halifax, Nova Scotia, seek judicial
review of a job classification grievance. They filed grievances contending that
their positions at the CS-01 level should be classified upward to the CS-02
level to match that of their colleague in Shearwater, NS. They claim the
positions share identical duties and responsibilities. They argue that the
Classification Grievance Committee’s [the Committee] findings, which were
relied upon by the Deputy Minister’s delegate in his decision to maintain the
classification at the CS-01 level, failed to consider the principle of internal
relatively concerning the comparator position in Shearwater. The Applicants
argue that the refusal to have their positions re-classified at a CS-02 level
was unreasonable.
[2]
For the reasons that follow, I find that the
Deputy Minister’s delegate decision, which approved the findings made by the
Committee, to be reasonable. Therefore, this judicial review is dismissed.
I.
Background Facts
[3]
In 2002, five new CS-01group and level positions
were created within the same section of DND with the job title: “Client Service Team Representative”. These five
positions had the same work description and functions. Four of the positions
were in Halifax, one position was in Shearwater.
[4]
In 2008, the Shearwater position received a new
work description and an updated classification to a CS-02 level.
[5]
In 2009, the Applicants in the Halifax
positions requested a complete statement of duties and responsibilities of
their positions. In 2010, they requested an updated work description. Despite
this, the classification for the Applicants’ positions came back at the CS-01
level.
[6]
In 2011, as a result of a job content
grievance, the Applicants received a revised work description. The work
description had the positions classified at the CS-01 level. The classification
evaluation officers evaluated the position against the Treasury Board Computer
System Administration Group [CS] Classification Standard and the bench-mark
positions contained in that Standard.
[7]
Following an agreement on a new work
description, the Applicants each sought to have their position as Client
Service Team Representative reclassified from a CS-01 to a CS-02 group and
level through the classification review process.
[8]
The Applicants and their manager each completed
a joint questionnaire, as required by the classification review process. In the
joint questionnaire submitted by Steve Morrissey, he argued that in order to
respect internal relativity, his position should be classified at the same
group and level as the CS-02 Shearwater position. His argument was based on the
fact that all five original Client Service work descriptions entailed the same
duties and the fact that the employees assigned to these positions were
eventually assigned more responsibility following the original 2002 work
description.
[9]
In the July 12, 2012 Classification Consensus
Report, the classification evaluation officers concluded that the Applicants’
positions should remain classified at a CS-01 level. Following this
determination, the Applicants filed classification grievances.
II.
Decision under review
[10]
The Committee was convened on June 8, 2016. The
Applicants, with the exception of Mr. LaChance, participated in a teleconference
hearing with the Committee. Mr. Morrissey was the spokesperson for all of the
Applicants. He argued that the Applicants’ duties and responsibilities in their
current positions are materially identical to the duties and responsibilities
of the comparator position in Shearwater. He therefore submitted that in order
to maintain internal relatively, the Applicants’ positions should also be
classified at a CS-02 group and level.
[11]
The Committee considered the submissions and
examined the duties and responsibilities of the Applicants positions within
their organizational context. The Committee unanimously found that the duties
of the Applicants met the definition and inclusions of the CS Occupational
Group within the Federal public sector. The Committee recommended that the
classification of the Applicants’ positions be maintained at a CS-01 group and
level.
[12]
This recommendation was accepted by the Deputy
Minister’s delegate, Gilles Moreau, by letter dated July 6, 2016.
[13]
The Applicants seek judicial review of Mr.
Moreau’s decision to approve the Committee’s recommendations. While the
judicial review is of the Moreau decision, in reality, it is the decision of
the Committee which Mr. Moreau endorses, which is under review as the Committee
is the “de facto” decision maker (McEvoy
v. Canada (Attorney General), 2013 FC 685 at para 41).
III.
Issues
[14]
The Applicants raise the following issues:
- Did the
Committee err by failing to address internal relativity?
- Did the
Committee provide adequate reasons?
A.
Standard of Review
[15]
The parties are in agreement that reasonableness
is the appropriate standard of review (Boucher v Canada (Attorney General), 2016
FC 546 [Boucher] at paras 13 and14).
[16]
Classification grievance committee decisions are
afforded a high degree of deference in recognition of their specialized
function (Boucher at para 13).
[17]
On judicial review, against the reasonableness
standard, the Court is tasked with determining whether the decision is
defensible in respect to the facts and the law (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses] at paras 15 and16; Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
B.
Analysis
I.
Did the Committee err by failing to address
internal relativity?
[18]
The Applicants argue that the Committee failed
to consider their argument that their work is materially identical to the
Shearwater position which was re-classified upward to the CS-02 level. They
argue that the Committee failed to adhere to the principle of internal
relativity between the Halifax and Shearwater positions.
[19]
The Applicants further argue that the Committee
failed to undertake the required analysis set out in Appendix B of the
Directive on Classification Grievances [Grievance Directive]
which states as follows:
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3.8.1 The
Classification Grievance Committee report summarizes the recommendation of
the committee, responds to the arguments and relativity put forward by the
grievor and the grievor’s representative, and provides the analysis used by
the committee to arrive at its recommendation.
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3.8.1 Le rapport du comité de règlement des griefs de
classification résume la recommandation du comité, répond aux arguments et
aux points concernant la relativité avancés par le plaignant et son
représentant et présente l'analyse dont s'est servi le comité pour formuler
sa recommandation.
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[20]
The Applicants argue that, apart from stating
that it could not discern a significant difference between the duties and
responsibilities of the Applicants and those of the Shearwater comparator
position, no other mention of the comparator position or the relativity
analysis is contained in the Committee’s findings.
[21]
In undertaking its work, the Committee is guided
by the relevant policy and directives which outline the factors it must take
into consideration.
[22]
The Policy on Classification provides as
follows:
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5.1 Objective
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5.1 Objectif
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This policy:
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La présente politique:
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5.1.1 Supports
the equitable, consistent and effective establishment of the relative value
of work in the CPA and ensure that jobs are classified appropriately, in
accordance with the relevant occupational group definition and job evaluation
standards (classification standards);
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5.1.1 Appuie l’établissement équitable, uniforme et efficace de la
valeur relative du travail au sein de l’APC et s’assure que les postes soient
classifiés correctement et conformément aux définitions des groupes
professionnels et aux normes d’évaluation des emplois pertinentes (normes de
classification);
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…
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…
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5.2 Expected
Results
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5.2 Résultats attendus
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…
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…
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5.2.6.
Classification relativity is sound and maintained, i.e. identical work is
classified at the same occupational group, sub group (if applicable) and
level across the CPA and within organizations.
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5.2.6 La relativité de la classification est saine et maintenue, à
savoir le travail identique est classifié au sein du même groupe
professionnel, sous-groupe (le cas échéant) et niveau dans l’ensemble de
l’APC et au sein des organismes.
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[23]
The Grievance Directive states as follows
at section 6.4:
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6.4.1
Establishing the appropriate classification of the grieved position based on
the work assigned by the responsible manager, as described in the job
description, the organizational context and the information received in the
context of the grievance hearing; and
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6.4.1 Déterminer la classification appropriée du poste faisant
l’objet du grief en fonction du travail attribué par le gestionnaire
responsable, tel que décrit dans la description d’emploi, ainsi que du
contexte organisationnel et de l’information reçue dans le contexte de
l’audience sur le grief.
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6.4.2 Submitting
to the deputy head or delegate a Classification Grievance Committee report
and a recommendation on the classification of the grieved position, which is
equitable and consistent with Treasury Board classification policy
instruments, including the relevant job evaluation standard.
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6.4.2 Présenter, à l’administrateur général ou à son délégué, un
rapport du comité de règlement des griefs de classification et une
recommandation sur la classification du poste faisant l’objet du grief qui
soit équitable et conforme aux instruments de politique de classification du
Conseil du Trésor, y compris à la norme d’évaluation des emplois pertinente.
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[24]
Also contained in Appendix B of the Grievance
Directive is the Committee’s mandate as follows:
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3.1 Mandate
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3.1 Mandat
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The
Classification Grievance Committee is responsible for establishing the
appropriate classification of the grieved position based on the work assigned
by the responsible manager and described in the job description, and the
additional information provided by management and the grievor or the
grievor’s representative. The classification that is recommended to the
deputy head or delegate must be equitable and consistent with the Treasury
Board classification policy instruments, including the relevant job
evaluation standard.
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Le comité de règlement des griefs de classification doit
déterminer la classification appropriée pour le poste faisant l'objet d'un
grief en tenant compte du travail attribué par le gestionnaire responsable et
décrit dans la description d'emploi ainsi que de l'information supplémentaire
présentée par la direction et par le plaignant ou son représentant. La
classification recommandée à l'administrateur général ou à son délégué doit
être équitable et conforme aux instruments de politique de classification du
Conseil du Trésor, y compris à la norme d'évaluation des emplois pertinente.
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[25]
Further, the Respondent highlights Appendix E of
the Directive on Classification [Classification Directive] which
states:
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Classification
Relativity
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Relativité de la classification
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[…]
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[…]
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Although the
application of occupational group definitions, inclusion and exclusion
statements, job evaluation standards and related benchmarks take precedence
over a relativity analysis, this analysis is valuable in ensuring that
similar jobs, in similar organizational contexts and environments produce
consistent classification evaluation results.
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Bien que l'application des définitions de groupes professionnels,
des énoncés d'inclusion et exclusion, des normes d'évaluation et postes
repères ont préséance sur l'analyse de la relativité, cette analyse est
importante car elle contribue à ce que l'évaluation d'emplois similaires,
dans des contextes et des environnements organisationnels similaires, donne
des résultats constants.
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[26]
It is clear from the Grievance Directive’s mandate
and from the Classification Directive that the Committee was not limited
to only considering the Applicants’ positions in relation to the Shearwater
position. Rather, when the Committee undertakes its work, the mandate requires
it to consider the wider institutional classification context.
[27]
Furthermore, internal relativity is only one
factor the Committee is to consider. The Applicants only identified one
position for the Committee’s reference, which is in a different location and
within a different organizational context to the Applicants’ positions. Therefore,
it was not only reasonable, but it was necessary for the Committee to take a
broader view of the matter, and ultimately rely upon benchmarking to properly
categorize the Applicants’ positions within the full context. It was also
reasonable for the Committee to consider positions both above and below the
Applicants’ positions.
[28]
The Committee appropriately assessed the Halifax
positions within the overall institutional context and not uniquely by
reference to the one comparator position identified by the Applicants. In fact,
the relativity between the Applicants’ positions and the Shearwater position
was assessed in the 2012 Classification Consensus Report which stated that the
organizational context is different between the two positions.
[29]
The Committee provided a detailed analysis on
how they evaluated the Applicants’ positions with the comparator’s positions in
the CS Occupational Group within the Federal public sector. As this Court
stated in Maurice v Canada (Treasury Board), 2004 FC 941at para 34, “in undertaking this exercise the Committee had complete
discretion to decide on the weight to be given to certain comparable items”.
[30]
On judicial review, it is not the role of this
Court to reweigh evidence or to decide how much weight the evidence before the
Committee should have been given in relation to the internal relativity or
benchmarking analysis.
[31]
While further elaboration by the Committee on
the relativity analysis may have been desirable in light of the Committee’s
statement that it “could not discern a significant
difference between the duties and responsibilities” between the
Applicants position and that of the Shearwater position, the failure of the
Committee to do so is not in itself a reviewable error upon which this Court
can intervene.
[32]
The Committee’s recommendations, accepted by the
Deputy Minister’s delegate, that the classification of the Applicants’
positions be maintained at a CS-01 group and level, is reasonable and within
the range of possible acceptable outcomes. It therefore deserves deference from
this Court.
II.
Did the Committee provide adequate reasons?
[33]
The Applicants argue that the Committee failed
to provide its analysis or an explanation as to how it arrived at its
recommendation, contrary to the requirements in section 3.8.1 of the Grievance
Directive.
[34]
While the Applicants formulate this as an “adequacy of reasons” issue, in effect they are essentially
re-arguing the points argued with respect to the reasonableness of the decision
as addressed above.
[35]
Further, I would reiterate what Justice Mandamin
states in McEvoy v Canada (Attorney General), 2013 FC 685 in discussing
the requirement of a classification grievance committee to review evidence it
its reasons:
[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. […]
[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.
[36]
Here, the Committee provided a summary of the
Applicants’ positions and the evidence submitted. The Committee made it clear,
by referring to specific examples, why it did not increase the ratings of the
elements of the jobs it assessed (i.e. experience requirements, continuing
study requirements, scope of the decision-making and the maintenance of
contacts).
[37]
Therefore, the Committee’s Classification
Grievance Report indicates why the Applicants’ positions were appropriately
classified at the CS-01 group and level.
[38]
In Newfoundland Nurses, the Supreme Court
of Canada held that “the reasons must be read together
with the outcome and serve the purpose of showing whether the result falls
within a range of possible outcomes” (see para 14).
[39]
Here, the reasons of the Committee fall within
the range of possible outcomes and are therefore adequate. The Committee’s
Classification Grievance Report contains the information which the Grievance
Directive requires it to provide. The reasons of the Committee are
therefore reasonable.
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