Ottawa, Ontario, the 17th day of February 2006
Present: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
REASONS FOR ORDER AND ORDER
[1] The respondent, Andrée Gagnon, was disappointed when she did not receive the promotion for which she had applied at the Canada Customs and Revenue Agency (CCRA). Although she had more experience than the other candidate, she was told, at the individual feedback session, that she had obtained 538 points while the other candidate had obtained 539. The respondent therefore pointed out that there seemed to be an error on the scorecard since the "experience" factor was not indicated on it and that factor had been clearly stated in the offer of employment notice. Moreover, the competition rules clearly stipulated that selected candidates had to obtain a passing mark of 60% in each category but the assessment showed that the other candidate had obtained less than 60% in one category. Ms. Gagnon, however, in accordance with the rules, had obtained the required marks.
[2] In response to her complaints, Ms. Gagnon was told that an administrative error had been made. Two different positions had been offered simultaneously but in the context of two different competitions. And the requirements stated in the offer of employment notice for the position for which Ms. Gagnon had applied were actually those of the other position.
[3] She therefore initiated proceedings before an "independent third party" who concluded that the employer had acted arbitrarily and deprived Ms. Gagnon of the position to which she was entitled. The independent third party therefore ordered that she be appointed retroactively to June 9, 2003.
[4] The CCRA is seeking a judicial review of the decision by the independent third party
Jean-Claude Demers, Q.C. The CCRA, while recognizing that it acted arbitrarily, claims that Mr. Demers erred in law and exceeded his powers in ordering that the respondent be appointed to the position. According to the CCRA and I quote:
[TRANSLATION]
16. The independent third party's mandate is solely to review the decision made at the placement stage. He is to determine whether or not the employee was treated arbitrarily.
17. If the independent third party concludes that a placement was made arbitrarily, he can order the correction of errors made in the placement process, recommend the revocation of the appointed employee or recommend that another manager be involved in the placement decision.
Determination
[5] Considering the Canada Customs and Revenue Agency Act, 1999, c-17 (the Act), the Staffing Program, the facts and the oral and written submissions of the parties, I find that the Attorney General of Canada, on behalf of the CCRA, is correct in challenging the independent third party's order.
Analysis
[6] The Act establishes the CCRA as a body corporate. Among other tasks, the CCRA is also responsible for the administration and enforcement of fiscal legislation including the Customs Act, the Excise Act and the Income Tax Act.
[7] As for human resources, the Public Service Labour Relations Act stipulates that the CCRA is a separate agency. It can therefore set its own requirements with regard to its own needs as well as the allotment and efficient use of its human resources, pursuant to subsections 53(1) and 54(1) of the Act.
| 50. The Agency is a separate agency under the Public Service Labour Relations Act. |
50.L'Agence est un organisme distinct au sens de la Loi sur les relations de travail dans la fonction publique. |
| 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. |
53. (1) L'Agence a compétence exclusive pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses activités. |
| 54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees. |
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés. |
[8] In order to meet its legal responsibilities, human resources have developed a detailed program which includes the: "Directive on the Selection Process/Pre-Qualified Pool", "Directives on Recourse for Staffing" and "Guidelines for Submitting and Processing a Request for an Independent Third Party Review". In the context of this overall process, three stages must be completed, namely: (1) "Review of pre-requisite stage"; (2) "Assessment stage"; and (3) "Placement stage". Ms. Gagnon was at the third stage. Since she had not been chosen for the position, she had the right to initiate the "individual feedback" process, which she did. Since this process was not satisfactory, she was therefore entitled to proceed to "either Decision Review or Independent Third Party Review". Ms. Gagnon chose to initiate an independent third party review.
[9] The "grounds for recourse" in the context of an independent third party review must be based on the fact that the employee "was treated in an arbitrary way". As mentioned above, it is clear that Ms. Gagnon was indeed treated in an arbitrary way since the employer amended the hiring criteria for the position after circulating the original offer of employment.
[10] With respect to the "recourse", the "Directives" stipulate as follows:
For staffing, the range of possible corrective measures includes:
· order correction of the error in the process;
· recommend revocation of appointed employee, if required;
· recommend having another manager involved in the decision.
[11] The "Guidelines" on processing requests for independent third party reviews include an appendix establishing the range of corrective measures for staffing in the case of termination of employment or non-disciplinary demotion as well as dismissal. It should be noted that in the last two cases, the independent third party may order that the employee be reinstated. However, the only order allowed in the case of a staff appointment is the correction of the error in the process.
The standard of review
[12] The analysis of the standard of review as stated in the judgment Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, in relation to the scheme of the Act was thoroughly reviewed by Dawson J. in the judgment Anderson v. Canada (Customs and Revenue Agency) 2003 FCT 667, [2003] F.C.J. No. 924 (QL). However, it must be pointed out that that case dealt specifically with the stage preceding the selection process while this case involves the third stage of the process, namely the placement stage. The decision in that case was primarily influenced by the facts of the case while in this case, the CCRA raises a question of jurisdiction as well as of the judicial interpretation of the guidelines.
[13] Ms. Gagnon contends that the standard of review that this Court must apply is that of reasonableness simpliciter. In addition, she stresses that even if the standard of review is that of correctness, the independent third party's decision was correct. The CCRA claims that the standard of review to be applied in this case is that of correctness.
[14] According to the pragmatic and functional analysis stated in the judgment Dr. Q, supra, at paragraph 26, the standard of review is determined on the basis of four contextual factors:
[T]he presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular, and, the nature of the question - law, fact, or mixed law and fact.
[15] In this case, there is neither a privative clause nor a statutory right of appeal. Therefore this Court can exercise its jurisdiction under sections 18 and 18.1 of the Federal Courts Act to review the decisions of federal tribunals and other administrative tribunals.
[16] It is probable that the independent third party has more expertise than this Court as regards the question of recruitment of staff at the CCRA. This Court must show considerable deference towards the independent third party with regard to the determination that the CCRA might have acted arbitrarily. In truth, the CCRA does not contest this fact. However, in this case, this Court must review the legislation as well as the directives developed in the context of this Act as authorized by Parliament. I do not believe that this situation is similar to the one described by the Supreme Court of Canada in the judgment Voice Construction Ltd. v. Construction & General Worker's Union, Local 92, [2004] 1 S.C.R. 609, where the Supreme Court confirmed that the review of an arbitral decision based on the interpretation of a collective agreement calls for the standard of review of reasonableness even when there is a question of law. However, the Court need not show deference when it is a matter of interpreting the meaning of the legislation.
[17] Concerning the object of the Act and of the directives, the modern interpretative approach cannot be challenged. The Supreme Court reviewed this principle in the judgment Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533. This judgment dealt with the Regulations under the Patents Act. Binnie J. based his discussion on the judgment Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, where the Court chose to follow the principle stated by Elmer Driedger in his work titled Construction of Statutes (2nd ed. 1983) :
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
That being said, Binnie J. stressed at paragraph 38 that "the scope of the regulation is constrained by its enabling legislation." He also quoted Driedger at paragraph 38:
It is not enough to ascertain the meaning of a regulation when read in light of its own object and the facts surrounding its making; it is also necessary to read the words conferring the power in the whole context of the authorizing statute. The intent of the statute transcends and governs the intent of the regulation.
[18] Given that Parliament specifically delegated the development of directives to the CCRA, I characterize them as quasi-legislation limited only by the context and the meaning of the Act.
[19] The fourth criteria stated in the judgment Dr.Q, supra, is the nature of the question. In this case, the question is not to determine the applicability of the remedy, but rather to determine whether the independent third party had the power to order the remedy that he did. This is a question of law which therefore calls for the standard of review of correctness.
Conclusion
[20] Section 53 of the Act gives the CCRA the exclusive right and the authority to choose its employees. The independent third party presumed to promote Ms. Gagnon without demoting the other candidate. So in effect, there are two employees occupying the same position in spite of paragraph 51(a) of the Act which provides that the CCRA has the authority to decide the allotment and effective use of human resources. In other words, the CCRA must now find sufficient work as well as pay two individuals rather than one, and do so at a higher salary.
[21] The Regulation limits the power of the independent third party to ordering that an error in the process be corrected. Since the independent third party found that in effect the hiring process had begun with a notice dated February 25, 2002, inviting employees to apply and that the employer had acted arbitrarily, he had reason to order that an error had to be corrected. He had the power to make recommendations in this regard, but he had no authority to order the CCRA as to how it should correct the error.
[22] One of the reasons for which Ms. Gagnon suggested that the appropriate standard of review is reasonableness simpliciter is the fact that an independent third party's decisions have no binding effect and no value as jurisprudence. The Court should therefore give more weight to the ideas stated in the judgment Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 and show greater deference to the independent third party's decision. In spite of the scope of these ideas, this does not give the independent third party the authority to act beyond the limits imposed by law.
[23] If I am wrong to apply the standard of review of correctness, I must add that the order made by the independent third party is unreasonable since it only took into consideration Ms. Gagnon and the other candidate, when the offer of employment notice was sent to all the employees of the Canada Customs and Revenue Agency in Chicoutimi and Jonquière. One of the requirements stated in this offer of employment notice was "significant experience of interaction with the public". In the offer notice, significant meant "an experience of more than 6 months". Moreover, a passing mark of 60% was required for "basic knowledge in accounting", which was the test that the other candidate failed. If other employees had known that they would have been evaluated on the basis of different criteria, it is quite possible that they might have tried to apply for this position as well.
ORDER
PURSUANT to the application for judicial review of the decision of the independent third party Jean-Claude Demers dated November 15, 2004;
THE COURT ORDERS THAT:
- The application for judicial review is allowed.
- The corrective measure ordered by the independent third party is declared illegal and inconsistent with the Guidelines for Submitting and Processing a Request for an Independent Third Party Review (ITPR).
- The matter is referred to the independent third party for determination of the appropriate remedy consistent with the Guidelines for Submitting and Processing a Request for an Independent Third Party Review (ITPR) and the Canada Customs and Revenue Agency.
"Sean Harrington"
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2207-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ANDRÉE GAGNON
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 30, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Harrington
APPEARANCES:
| Alexander Guay
|
FOR THE APPLICANT |
| James Cameron
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE APPLICANT |
| Raven, Allen, Cameron, Ballantyne & Yazbeck, LLP Ottawa, Ontario
|
FOR THE RESPONDENT |