Date: 19980708
Docket: T-1191-97
BETWEEN:
TED BULAT
Applicant
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
as represented by TREASURY BOARD
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The able and forceful presentation by counsel for the applicant has not convinced me that the Classification Grievance Committee failed to meet the required duty of procedural fairness in the circumstances of this case. In reaching this conclusion, I adopt generally the analysis of my colleague McKeown J. in Chong et al. v. Canada (Attorney General) et al.1 concerning the standard of fairness required in this type of grievance procedure.
[2] The grievance procedure is a dispute resolution mechanism between the employee and management concerning a job classification. In that sense, the relationship between the two parties may be said to be "adversarial". The reference by McKeown J. in Chong (1995)2 to the classification grievance process not being an adversarial one merely reflects, in my view, the statement by the Treasury Board Secretariat that the process "... is not intended to be an adversarial system".3 It is not inappropriate to describe the grievance procedure itself as "non-adversarial" where the decision maker receives information from one party in the absence of the other. I do not accept the applicant"s submission that this reference by McKeown J. detrimentally affects his analysis of the standard of fairness applicable to this grievance process.
[3] Similarly, McKeown J."s comment in Chong (1995) that "[t]he individual interests of the grievors are not in jeopardy"4 does not detract from his analysis as suggested by the applicant. Even if the record in this case had disclosed the salary levels of the applicant"s actual classification and the higher one he seeks,5 Parliament determined, as McKeown J. noted, that the classification grievance would not be subject to adjudication pursuant to the Public Service Staff Relations Act.6 Parliament"s determination and the alternative creation by the Treasury Board Secretariat of the Classification Grievance Procedure were made with the knowledge of the impact job classification has for the employee. The standard of fairness defined by McKeown J. is, in the circumstances, consistent with the griever"s interests.
[4] Counsel for the applicant does not challenge the Classification Grievance Procedure for not requiring an oral hearing or for not providing the right of cross-examination or even the right to attend when the Committee seeks out additional information from management or other persons.7 Rather, the judicial review is limited to the Committee"s failure to disclose, prior to making its decision, management"s position that the applicant"s activities concerning contacts were developmental and performed on a voluntary basis.
[5] In Chong (1995), McKeown J. concluded that the griever had the burden of establishing the classification grievance: "The onus is on the applicants to make the case that the classification was wrong."8 I agree. In this Court, the union representative deposed that if management"s position had been disclosed, the applicant"s performance appraisals would have been presented and his duties, responsibilities and activities concerning land appraisal contracts would have been emphasized. Furthermore:
... I would have provided evidence that Mr. Bulat is named as the Departmental Representative and that, in this capacity, he sits on the opening bids for land appraisal contracts and recommends various actions during the course of the contract. Mr. Bulat contacts the Indian Band during the appraisal work to explain the process. He reviews the completed report to ensure it meets standards and recommends payments. During the appraisal process, he ensures procedures are adhered to and provides assistance and direction to the contractor. He also negotiates changes in price due to circumstances that develop during the contract.9
It seems to me that this is precisely the information the applicant would have wanted to provide the Classification Grievance Committee prior to and regardless of the position subsequently taken by management. The Committee noted that the only rating questioned by the union representative was the Responsibility for Contacts factor. It also suggested that the applicant himself addressed the developmental issue.10 It is difficult to understand why the griever, the party with the onus of proof, would not have provided this information fully in the first instance in view of the importance of the Responsibility for Contacts issue.
[6] There exists an important factual distinction, in my view, between the expert report not disclosed to the griever in Hale and the management"s characterization of the nature of the applicant"s external contact duties in this case. My view in this regard is reinforced by the information which, it is said, would have been disclosed if the management position had been known. To repeat, that information could well have been disclosed and likely should have been disclosed by the applicant initially. It is the same kind of information originally made available to the Committee and which is summarized in its reasons under Union Presentation.
[7] The applicant identified and focussed on the Responsibility for Contacts issue. As the party with the burden, it was incumbent on him to make a full presentation on the one occasion afforded to him by the Classification Grievance Procedure. In wanting to respond to the management position concerning the "voluntary" and "developmental" nature of his activities, the applicant relies on information previously available to him and directly related to the Responsibility for Contacts issue.11 More of the same kind of information is not "new" information. It is the applicant"s own description of the additional information he would now present that convinces me that this Court"s intervention is not justified. I am satisfied, on the record of this case, that the applicant had sufficient knowledge of the issues and no further disclosure was necessary to assure his "meaningful participation" in this Classification Grievance Procedure.
[8] In Mercier v. Canada (Human Rights Commission),12 the Court of Appeal set aside the Commission"s decision which was based on submissions received from the complainant"s employer but not disclosed to her. It was on the basis of these submissions that the Commission concluded that no further action was warranted when its investigator had previously upheld her allegations and made a number of recommendations including conciliation. Counsel for the applicant relies on the following statement of Décary J.A.:
Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto.13
[9] In Mercier, the Canadian Human Rights Commission used new representations to modify drastically the report of the investigator. In this case, the decision of the deputy-head"s nominee for classification grievances confirmed the recommendation of the Classification Grievance Committee. A more significant distinction between the two cases relates directly to the employer"s new representations which attacked not only the findings and conclusions of the investigator"s report but also the complainant"s credibility on basis of some information not included in the report. In the present case, there does not exist the same gulf between what the applicant characterizes as the undisclosed position of the management and the information he would have put before the Committee which, as I have stated earlier, should more prudently have been presented to the Committee to meet his onus of proof. In the words of Décary J.A. in Mercier :
I am not saying that the rules of procedural fairness require that the Commission systematically disclose to one party the comments it receives from the other; I am saying that they require this when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the stage of the investigation, properly speaking.14 [Emphasis added.]
[10] The applicant"s other argument is that the Committee erred in disregarding certain of his duties that were "voluntary" or "developmental". The applicant"s memorandum relies on the following extract from the mandate of the Classification Grievance Committee:
The Classification Grievance Committee is responsible for establishing the appropriate classification and evaluating the grieved position based on the duties assigned by management and performed by the employee and the additional information provided by management and by the grievor and/or his or her representative.15 [Emphasis added.]
For reasons not unrelated to those concerning the fairness issue, this argument must also fail. The onus was on the applicant to establish that his contact activities were duties assigned to and performed by him. In the view of the Committee, he failed to do so. The Committee concluded that it "... could not find any contact in the official duties and responsibilities that would justify ..." a higher rating for the Responsibility for Contacts factor. The Committee added:
As described by the griever and confirmed by the manager, the developmental assignments carried out by Mr. Bulat may include more involved contacts with external resources, but this cannot be taken into consideration when evaluating the position, as it is not an official requirement of the grieved position.16 [Emphasis added.]
It was open to the Committee to reach this conclusion on the basis of the information presented on behalf of the applicant and the management.
[11] In summary, the applicant has failed to establish a violation of the principle of fairness in the circumstances of this case. In Mancia v. Canada (Minister of Citizenship and Immigration), Décary J.A. sated:
The objective in any given case is to ensure that at the end of the process an applicant has been treated fairly considering the circumstances of the case, the nature of the proceeding, the rules under which the decision-maker is acting, the subject-matter which is being dealt with, and so forth.17
In the end, upon my review of the record, I am satisfied that the Committee"s recommendations were reached fairly and in a manner consistent with the grievance procedure. I have no sense that justice was not done in the resolution of the applicant"s grievance.
[12] For these reasons, this application for judicial review is dismissed.
Judge
Ottawa, (Ontario)
July 8, 1998
__________________1 (1995), 104 F.T.R. 253, especially at pp. 255-62 and 263-4. This decision was followed by Joyal J. in Chong et al. v. Canada (Treasury Board) (1997), 133 F.T.R. 302, now before the Court of Appeal under court file no. A-453-97, and by Pinard J. in Tanack et al. v. Canada (Treasury Board) (1996), 112 F.T.R. 282. In Hale v. Canada (Treasury Board) (1996), 112 F.T.R. 216, Reed J. distinguished Chong (1995) and concluded that the failure by the Classification Grievance Committee to disclose information it obtained from a technical expert fell short of allowing the griever "to participate meaningfully" in the grievance.
3 Applicant"s Application Record, p. 184.
5 In Hale, supra, note 1 at 219, Reed J. was able to make a finding of fact concerning the specific salary impact on the griever but a similar conclusion would be speculative in this case.
7 A similar position was taken in Hale , supra, note 1 as described at p. 223, paragraph 20.
9 Applicant"s Application Record, pp. 10-11.
11 Applicant"s Application Record, pp. 8-9.
14 Ibid., p. 14. See also Chong (1997), supra, note 1 at p. 307 where Joyal J. also cautions against the "systematic" application of the rules of procedural fairness without regard to the circumstances of each case.
15 Applicant"s Application Record, p. 181.
16 Applicant"s Application Record, pp. 14-15.
17 [1998] F.C.J. No. 565 (QL) (C.A.), (1 May 1998), A-75-97, at paragraph 14.