Ottawa, Ontario, February 23, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
HARRY ADAMIDIS, EDITH BARAGAR,
DONALD COOPER, THOMAS HORBAY,
STÉPHANE MORIN, NORMAN MURRAY,
RABINDRANATH TIWARI and HARRY ADAMIDIS
ON BEHALF OF THE REMAINING GRIEVORS
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review deals with a decision on classification of a position within the federal public service, specifically the classification of Refugee Protection Officers (RPOs) employed with the Immigration and Refugee Board (IRB).
[2] The Applicants represent groups of RPOs who object to the classification of this position at the PM-04 level. The two sets of Applicants are firstly, Harry Adamidis et al and Harry Adamidis on behalf of the remaining grievors (Adamidis) and secondly, a sole grievor on his own, Thomas Horbay (Horbay).
[3] The decision under review is that of the Deputy Head, Grievance Nominee, IRB dated January 13, 2005, wherein the Deputy Head approved the decision of the Classification Grievance Committee (Committee) which recommended that the RPO's position maintain its classification at the PM-04 level.
[4] Adamidis asks this Court to quash the decision and direct the decision-maker to classify the RPO position at the PM-05 level or alternatively, submitting the grievance to a new committee.
Horbay seeks similar relief except that the RPO position be classified at the PM-06 level or if the matter is remitted back, the Court direct that a committee consider as a comparator the Law Group. He also wants costs on a substantial indemnity basis.
II. Facts
[5] The Applicants grieved the classification for the RPO position which was heard by the Committee. The IRB sent a notice to all Applicants including Horbay. There is an issue as to whether Horbay received the notice or otherwise knew about the hearing. The specifics of the classification process, in this case, is set out in the following paragraphs - a description on which there is general agreement among the parties.
[6] Classification in the federal public service is determined according to a Classification Standard. Once a position is identified as belonging to a particular classification group, it is assessed against a number of criteria and given an alpha-numeric code for each criteria. Each alpha-numeric code translates to a certain number of "points". The classification level of a position is then calculated according to the number of points earned under this system.
[7] The classification level in the Program Administration (or "PM" group) is assessed according to the factors below. Where the factor has sub-factors, the first sub-factor is given an alphabetical designation, and the second factor is given a numerical designation. For example, the Knowledge factor could be scored from A to E for "Program/Technical", and from 1 to 4 for "General Administration".
| Factors |
Factor Weights |
Min. Value |
Max. Value |
| Knowledge · Program/Technical · General Administration |
400 |
81 |
400 |
| Decision Making · Scope · Impact |
300 |
69 |
300 |
| Operational Responsibility · Nature of Responsibility · Complexity & size of subordinate organization |
150 |
10 |
150 |
| Contacts |
150 |
30 |
150 |
[8] The point levels required for each level in the PM group are as follows:
Level 1: 190-300 points
Level 2: 301-400 points
Level 3: 401-500 points
Level 4: 501-610 points
Level 5: 611-720 points
Level 6: 721-1000 points
[9] Each factor or sub-factor has a number of different levels within it. These levels are defined in the Classification Standard. Those definitions are then assessed against the work description of the position at issue to determine what level the position should be at for each sub-factor. Also, there are a number of "Benchmark" positions identified in the Classification Standard. These "Benchmark" positions are helpful guides to determining a position's classification: if the position at issue is similar to the Benchmark position for a particular sub-factor, then it will be scored the same as the Benchmark position. Positions are also compared to other non-Benchmark positions within the public service, to ensure that all positions are classified fairly.
[10] On February 9, 2004 the employer established a Classification Committee to evaluate the RPO position. This Classification Committee prepared its report in camera and without submissions from any RPOs. The Classification Committee determined that the RPO should be classified at the PM-04 group and level. The Classification Committee decided upon the following points for each criteria:
Knowledge: D1 246 points
Decision Making: C2 191 points
Operational Responsibility: B 20 points
Contacts: 3 110 points
Total: 567 points
[11] The Applicants grieved that classification decision. A Classification Grievance Committee was established, and that Committee heard the grievance on September 14, 2004. The Applicants argued that they should be given more points for Knowledge, Decision Making, and Operational Responsibility. Had the Committee accepted the Applicants' position, the classification would have been at the PM-05 group and level. Instead, the Committee rejected the Applicants' submissions, and came to the same conclusion as the original Classification Committee. The Deputy Head, Grievance Nominee, IRB, accepted the Committee's decision and classified the RPO position at the PM-04 group and level.
[12] Adamidis attacks the Committee's recommendation and the Deputy Head's decision on two principal grounds - 1) the rating conclusions with respect to "knowledge" required for the RPO position; and 2) the rating conclusion with regard to the Decision Making and Organizational Responsibility. Horbay argues further that the Committee did not consider his submission that RPO classification should have fallen under the Law Group (which would include Crown prosecutors) rather than the Program Administrator Group - there is an issue as to whether his submissions were even received by the Committee.
[13] It is important to consider the nature of the Committee's decision and the type of findings it made to which the Applicants object, either allegedly because the finding is not supportable or because there are insufficient reasons:
(a) The Committee concluded that the RPO position met Degree "D" (comprehensive knowledge) rather than "E" (thorough knowledge) of the applicable standard. The Applicants say that since RPOs require extensive, detailed and exhaustive knowledge, the Committee should have rated them at Degree "E".
(b) The Committee found BM 27 (benchmark position, Senior Entitlement Officer under the Employment Insurance Act, Degree "D") comparable to the RPO's required knowledge under its relevant Act. The Applicants challenge this selection of this "comparable".
(c) The Committee also considered the RPO's knowledge requirement against that of a Member of the IRB. The Applicants say that the Committee undervalued the RPO's knowledge requirement because, in uncontested matters, the RPO makes the same type of decision as a Member. They also argue with the Committee's conclusions as to the complexity of RPO decision-making function.
(d) Under the Decision Making and Organization Responsibility aspect of the Committee's findings, the Committee had to determine both the scope of the RPO function and the impact that RPO decisions and actions had. The Applicants quarrel with the level assigned to this factor (a "2" vs. a "3") as well as the Committee's determination that evaluation of operational efficiency is not a primary part of the RPO's function - they claim that it is at least a part of their function.
III. Issues
[14] The issues in this judicial review are:
1. What is the appropriate standard of review?
2. Were the decision/reasons of the Committee in breach of the applicable standard of review?
3. Did the Committee satisfy the requirements of procedural fairness by giving sufficient reasons?
4. Was Horbay denied procedural fairness?
IV. Analysis
A. Standard of Review
[15] In summary, it is my view that the standard of review in respect to the merits of the classification decision is patent unreasonableness. The standard of review in respect of the issues of procedural fairness is correctness.
[16] In respect of Horbay, if the Committee did receive Horbay's submission, then its failure to analyse or consider the alternate comparator group proposed by Horbay must also be assessed against the standard of patent unreasonableness.
[17] Even though the parties are in agreement that the standard of review applicable to the merits of the classification decision is patent unreasonableness, the Court is still required to perform the pragmatic and functional analysis.
[18] In large measure, I adopt Justice Blanchard's analysis of the applicable standard of review of decisions of a classification committee in Trépanier v. Canada(Attorney General), [2004] F.C.J. No. 1601; 2004 FC 1326. In that case, Justice Blanchard found the standard of review to be patent unreasonableness in respect of the calculation of a deadline to be met.
[19] With respect to the existence and nature of a private clause, s. 96(3) of the Public Service Staff Relations Act (Act) provides:
| 96. (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 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 thereon. |
96. (3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché. |
[20] While this may not be the strongest privative clause, it does indicate an intention to curtail further review to some extent and to ensure that a grievance decision is final and binding.
[21] Of greater importance in this case are the other three factors in the pragmatic and functional analysis - expertise, purpose of legislation and its relevant provision, and nature of the question.
[22] If the calculation of a deadline is a purely factual matter requiring expertise, as found in Trépanier, then the actual application of the classification system is even more a matter of expertise. It required expertise in classification, and a thorough knowledge of the policies, procedures and organization of government employees and their functions.
[23] The purpose of the legislation is polycentric "as it is intended to resolve questions involving contradictory policy objectives or interests of different groups, and its purpose is not just to oppose the government to the individual".
[24] As to the fourth factor, the nature of the question is somewhat less factual than the calculation of a deadline but in this case it actively engages factors two and four together. The weighting of job functions includes knowledge of the facts of each function. More importantly, the selection of comparators is an area of expertise (much as would occur in a commercial appraisal case) and one based on expert evidence which established matters of fact. The question being asked by the Applicants is whether the Committee carried out its selection, weighting and analysis properly. This is a matter deserving of considerable deference at the patent unreasonable level of review. (See Laplante v. Canada(Canadian Food Inspection Agency), [2004] F.C.J. No. 1640; [2004] FC 1345.)
[25] A similar detailed analysis of the standard of review for procedural fairness is not necessary. The nature of the attack - failure to give adequate reasons, notice, bias - are areas in which the Court has the expertise and the obligation to ensure that the legal norms were met.
B. Application of Standard of Review to the Decision
[26] The areas of the decision being challenged are described in paragraphs 12 and 14 above. The decision must be looked at as a whole. The Applicants must establish that the reasons of the Committee are patently unreasonable. The comment of Justice McKeown in Chong v. Canada(Attorney General), [1995] F.C.J. No. 1600 are helpful in considering what types of matters would reach that high threshold of patent unreasonableness:
In my view the Classification Standard is not limited to comparing the grievors' positions with bench-mark positions. The Classification Standard states that the "ultimate objective of job evaluation is to determine the relative value of positions in each occupational group. The relation of the position being rated to positions above and below it in the organization is also studied."
[27] I cannot see anything unreasonable in the Committee's conclusion as to the Knowledge Factor - the distinction between "thorough" and "comprehensive". The selection of the comparators used has not been shown to be patently unreasonable. That there may be other and arguably better comparators which should have been used does not lift the decision to the level of patent unreasonableness.
[28] To the same effect, the Committee's decision based on the Decision Making and Operational Responsibility Factors shows no overarching unreasonableness. Again, the choice of comparators and the focus on the primary roles of comparator positions is not shown to be unreasonable. There is the necessary rational connection between the facts and the Committee's conclusions.
[29] In essence, the Applicants have a simple disagreement with the Committee's analysis and conclusions. There is no basis for concluding that the Committee misapprehended positions or relevant evidence. This disagreement is insufficient grounds to warrant Court review of the decision. Further, there is nothing which would give additional or other grounds to attack the Deputy Head's decision to adopt the Committee's conclusions.
[30] However, with respect to Horbay's position, if the submissions were received, the failure to analyse and/or even mention the submission that the Law Group was a better comparator than others, would amount to ignoring relevant evidence. For reasons referred to later, I find that the best evidence is that the submissions were not received and therefore the Committee's decision cannot be attacked as patently unreasonable on these grounds.
C. Procedural Fairness - Reasons
[31] In considering the Applicants' argument that the Committee's reasons were inadequate, the Court must consider the degree of fairness appropriate to the circumstances. This involves a consideration of the non-exhaustive factors set out in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, affirmed in Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.
[32] While the importance of the decision to the individuals is significant as it relates to their economic well-being and a raise of $10,000 per year, the very nature of the process is administrative rather than adjudicative. Indeed adjudication is precluded under the Act in respect of classification grievances. These factors suggest that the level of fairness is somewhere in the lower zone of the spectrum of fairness (Chong, above.)
[33] The adequacy of the reasons must be examined against all the circumstances. While the Applicants are critical that certain findings are conclusionary without adequate explanation, there is no suggestion that (except for Horbay) the Committee did not consider the important issues raised nor that the Applicants could not understand the basis for the decision. Therefore, I cannot agree that there were inadequate reasons.
D. Procedural Fairness - Horbay
[34] In addition to the issue of filing his submissions, Horbay raised a number of issues of procedural fairness including failure to receive notice, bias, failure to record proceedings, failure to comply with Treasury Board language policies, and failure to post notice of proceedings.
[35] Horbay was dissatisfied with the union's representation in this matter. He wished to make his own submissions in the grievance proceedings.
[36] Horbay complains that he did not receive notice of the Committee's hearings. However, the evidence is that the notice was sent by mail on July 22, 2004. The evidence of sending and receipt of the notice is found in Horbay's July 28, 2004 e-mail in which his knowledge of the grievance hearing is evident - specifically, his question in the e-mail to his union "By what date will RPO nominees from Toronto, Montreal and Vancouver be determined as parties to the September 14 hearings?".
[37] Horbay says that his submissions were received by the Committee but not considered. His evidence of receipt is, at best, hearsay. What is evident in the record is that his submissions were sent by Purolator to the union's offices. The Respondent submitted two affidavits from affiants who have direct knowledge of what the Committee received, both of whom confirm that the submissions were not received. Applying the best evidence rule, I conclude that the submissions were not, in fact, received. Therefore, the Committee's failure to address the points he raised cannot be a ground for judicial review.
[38] Having concluded that Horbay did have notice of the Committee's hearings, his absence from the hearing substantially undermines his fairness arguments about the conduct of the hearing. For example, he can hardly complain that Treasury Board policy on the availability of translation services impaired his rights to a fair hearing, which hearing he did not attend.
[39] While these procedural complaints were not addressed in the Notice of Application, they were raised in the affidavit materials and Memorandum. Therefore, they should be dealt with by the Court.
[40] The Respondent Horbay did not argue strenuously about the failure to post, at his workplace, information about submissions to the Committee and I can find no proper basis for this attack. He himself had adequate notice of the proceedings.
[41] Horbay has also alleged bias. Firstly, that a Committee member who sat on another grievance committee whose decision was under review in a separate proceeding, is not a proper basis for a bias allegation. Secondly, that a Committee member had a role in the original classification decision for RPOs, might have been a valid complaint, except for the absence of any relevant evidence that the member had such a role.
V. Conclusion
[42] For these reasons, this application shall be dismissed with costs to the Respondent separately in respect of each Applicant.
JUDGMENT
IT IS ORDERED THATthis application is dismissed with costs to the Respondent separately in respect of each Applicant.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-250-05
STYLE OF CAUSE: Harry Adamidis, Edith Baragar, Donald Cooper, Thomas Horbay, Stéphane Morin, Norman Murray, Rabindranath Tiwari and Harry Adamidis on behalf of the Remaining Grievors
v.
Her Majesty the Queen in Right of Canada as represented by Treasury Board
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 19, 2005
REASONS FOR JUDGMENT: Phelan, J.
APPEARANCES:
| Mr. Christopher Rootham
|
OTHER THAN THOMAS HORBAY
|
| Mr. Selwyn Pieters |
FOR THE APPLICANT, THOMAS HORBAY
|
| Mr. Stéphane Hould
|
SOLICITORS OF RECORD:
| Nelligan O'Brien Payne LLP Barristers & Solicitors Ottawa, Ontario
|
OTHER THAN THOMAS HORBAY |
| Mr. Selwyn Pieters Barrister & Solicitor Toronto, Ontario
|
FOR THE APPLICANT, THOMAS HORBAY
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
|