Date: 19991014
Docket: T-1315-98
Ottawa, Ontario, October 14, 1999
| PRESENT : THE HONOURABLE MR. JUSTICE DENAULT |
Between:
DANIEL RICCIO,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER
The application for judicial review is dismissed.
| Pierre Denault Judge |
Certified true translation
Bernard Olivier, LL. B.
Date: 19991014
Docket: T-1315-98
Between:
DANIEL RICCIO,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a report on a transfer submitted on May 25, 1998 by an investigator to the Public Service Commission. The report dismissed the plaintiff"s complaint, alleging that he was transferred without his consent and contrary to the provisions of the Public Service Employment Act .1
[2] Since 1985 the plaintiff has been a public servant, forming part of the civilian personnel of the Canadian Armed Forces. He is responsible for implementing the government"s quality assurance program in technical assessment of businesses which supply, manufacture or repair products for use by the Department of National Defence.
[3] On July 23, 1992 the plaintiff accepted the offer of a position as quality control representative in group and level T1-4 (Plaintiff"s record - "P.R." - p. 49). He was then required to do his job at the Lockheed Martin company. On February 8, 1996 the plaintiff was informed by mail that his position had been abolished and he had been given a lateral transfer to another position in group and level T1-4: his workplace then became Canadian Aviation Electronics Ltd. ("CAE" - P.R. p. 48).
[4] On February 11, 1998 the National Defence Headquarters informed the plaintiff that because of changes in operational requirements his workplace would henceforth be at Allied Signal Aérospatiale ("ASA") in Ville St-Laurent (P.R. p. 41). The plaintiff was not satisfied with this transfer and complained at once to his commanding officer (P.R. p. 39); a few days later he filed a complaint against this transfer from CAE to ASA with the Executive Director of the Department of National Defence (P.R. p. 38). The Associate Assistant Deputy Minister for National Defence shortly thereafter confirmed the decision to assign the plaintiff to a new workplace (P.R. p. 35). The plaintiff then filed a transfer investigation request with the Public Service Commission (P.R. p. 21). In her report submitted on May 25, 1998 (P.R. pp. 10-15), the investigator decided that inasmuch as there had not been any transfer she lacked jurisdictional authority to act and did not recommend that further action be taken on the plaintiff"s complaint.
[5] The plaintiff is claiming judicial review of this report in which the investigator [found] that according to his job description (P.R. pp. 24-25) the plaintiff was required to visit various establishments in the course of his normal duties and so had not been transferred from one position to another. She concluded that the fact of moving from one company to another did not cause the plaintiff to lose his employment link to his substantive position, a position which in no way depended on the physical location where he was required to work. The investigator therefore concluded that she did not have the jurisdictional authority to act and took no further action on the plaintiff"s complaint.
[6] In support of the application for judicial review counsel for the plaintiff essentially argued that the investigator"s decision was wrong as it was not based on the evidence at the hearing. He argued that the plaintiff was transferred from his substantive position at the CAE company to ASA in February 1998 without his consent and contrary to the provisions of the Act. In particular, he noted that the notice assigned him a new workplace under the supervision of a new manager and that he accordingly changed groups, passing from the quality control representative group in residence to that of the roving group. Finally, he argued that when he changed his workplace in 1996 from his position with Lockheed Martin to his new substantive position with CAE he was transferred formally, after consenting to the transfer: he maintained that management should have followed this procedure in 1998.
[7] The defendant, for his part, maintained that in the circumstances the change in the workplace cannot be regarded as a change of position and as the position number and description of the duties of the position remain the same the plaintiff"s consent was not required and the report therefore contained no error reviewable by this Court.
[8] In the case at bar it was established, and the parties agreed, that the standard of judicial review was correctness.2
[9] Under s. 10 of the Public Service [Employment] Act, "appointment to or from within the Public Service shall be based on selection according to merit". However, an amendment to this general rule in 19923 gave managers the right to transfer an employee without his consent "unless acceptance of a transfer is part of the terms of employment of his present position" (s. 34.2(3)). Although the Act does not define what a position is, it does define (s. 2(1)) what a "transfer" is: "assignment of a public servant to another position".
[10] In order to show that the investigator erred in assessing the evidence submitted at the hearing the plaintiff painstakingly reviewed several points which he said showed that in fact his assignment to ASA was a transfer within the meaning of the Act. First, he argued that in going from CAE to ASA the nature of his position changed: at CAE he dealt regularly with the same employer, where he had an office on the premises and worked under the direction of a supervisor, Mr. Bélanger. He argued that when he had to carry out his duties at ASA not only did his workplace change, but his supervisor as well (Mr. Jurkovic), and he was now assigned to a roving group of representatives rather than a group in residence.
[11] I feel that none of the points noted by the plaintiff stand up to analysis when taken in context. This can be seen simply by referring to, first, the position to which he was assigned in 1992 and the description of the work, and then the circumstances which surrounded the position transfer involving him in 1996. On July 17, 1992 he was assigned to position No. ND-93030-08511 and his workplace was in Montréal. He duly accepted this offer (P.R. p. 49). However, this position was abolished in 1996. The plaintiff kept his status as a permanent employee and his position No. became 73251-02411 by lateral transfer. He accepted this transfer, which was made in accordance with the initial terms of employment (P.R. p. 46). The job description of a group and level T1-4 quality control representative provides under working conditions that [TRANSLATION] "the incumbent will have regular contacts with contractors in various manufacturing and R & R facilities. He will therefore be required to travel frequently" (P.R. p. 26). Additionally, contrary to what the plaintiff argued, there is nothing in the job description providing that employees assigned to such a position form two separate groups, those in residence, to which he said he belonged when he was performing his duties at CAE, and the roving group, to which he said he now belongs.
[12] It thus appeared from analysis of the evidence that when the plaintiff was transferred to CAE in 1996 this was because his position had been abolished: he thus had to be assigned to a new position, which was done with his consent. This was not the case with his 1998 assignment: when he was told that he would henceforth be performing his duties at ASA, this was because of operational requirements, and his position had not been abolished. There was no need to assign him to a new position at that time as his work would be the same, except that it had to be done at a different place. His new assignment was consistent with the description of the work to which he was first assigned in 1992, and then reassigned in 1996, in the Montréal area.
[13] I therefore consider that in the case at bar the plaintiff was not assigned to another position and that accordingly there was no transfer within the meaning of s. 2(1) of the Act. Although the plaintiff spent two years performing his duties with CAA, in my view this did not suffice to show that there was a link between that business and the position on account of which it could be concluded that the change of workplace represented an assignment to another position. As the plaintiff"s position number and description of duties remain the same, I feel that there was no transfer in the case at bar.
[14] For these reasons, the application for judicial review must be dismissed.
| Pierre Denault Judge |
Ottawa, Ontario
October 14, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-1315-98 |
| STYLE OF CAUSE: Daniel Riccio v. |
Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
| DATE OF HEARING: September 20, 1999 |
REASONS FOR ORDER BY: Denault J.
DATED: October 14, 1999
APPEARANCES:
| James G. Cameron for the plaintiff |
| Lysanne Lafond for the defendant |
SOLICITORS OF RECORD:
| Raven, Allen, Cameron, Ballantyne for the plaintiff |
Ottawa, Ontario
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
__________________2 Pezin v. B. C. (Superintendent of Brokers), [1994] 2 S.C.R. 557; Maslanko v. Attorney General of Canada, 132 F.T.R. 14.