Date: 19990426
Docket: T-1107-98
OTTAWA, ONTARIO, THIS 26TH DAY OF APRIL 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
JAMES LAIDLAW, GERRIE IRWIN, JEAN MAITLAND,
BETTY MATHESON and DEBBIE TOWER
Applicants
- and -
ATTORNEY GENERAL OF CANADA and
CHERYL MACLELLAN
Respondents
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an application for judicial review of the decision of a Deployment Investigator rendered April 29, 1998 in which the Deployment Investigator dismissed the complaints of the Applicants with respect to the deployment of Cheryl MacLellan.
[1] The events giving rise to these proceedings took place in the Halifax office of Revenue Canada. Ms MacLellan was an indeterminate employee of Revenue Canada who completed the Management Trainee Program in early 1997. Prior to that date, the staffing arrangements for graduates of the program changed so that upon graduation, Ms MacLellan was faced with the prospect locating employment consistent with her indeterminate status, failing which she could find herself in the position of being subject to surplus/layoff.
[1] Ms MacLellan was marketed for placement within the Halifax Tax Services Organization (HTSO) for positions at the PM-04 group and level. Ms MacLellan"s salary as a management trainee (MM) was equivalent to the top step of the PM-04 salary grid. Mr. Lee, the official at Revenue Canada who was the decision maker with respect to this matter, was mindful of the fact that the Department had an obligation to serve the public in both official languages. He was aware that Ms MacLellan was fully bilingual and that there were no acting or substantive Team Leaders who met the bilingual requirements. Mr. Lee determined that it would be prudent and a complement to his organization to employ Ms MacLellan..
[1] Mr. Lee was also aware that Ms MacLellan was potentially a surplus employee. If she were not placed, she would become surplus and steps would then have to be taken to offer her another suitable job. Rather than allow things to develop along those lines, Mr. Lee thought it more appropriate to deploy her.
[1] As a result, Mr. Lee made Ms MacLellan an offer of deployment to the position of PM-04 Team Leader, Collection (Bilingual Imperative). The offer was made by letter dated November 7, 1997 addressed to Ms MacLellan from Mr. Lee. Ms MacLellan accepted the offer on November 15, 1997. However, on November 7, 1997 Ms MacLellan was also presented with an Assignment Agreement according to which she was to be assigned to the position Team Leader, Underground Economy (PM-04) effective November 7, 1997 to September 30, 1999. Her salary continued at the same level as before. The previous occupant of the position was paid on the PM-06 grid. Ms MacLellan signed the Assignment Agreement on December 4, 1997. It is common ground that Ms MacLellan went directly into the Team Leader, Underground Economy position and has not, to the date of the hearing, worked in the Team Leader, Collection position.
[1] Deployments are governed by Part III.1 of the Public Service Employment Act. R.S.C. 1985 c. P-33 ("the Act"). S. 34.2(1) provides that deployments shall be made in such manner as the Treasury Board may direct. The Treasury Board has a published policy which governs deployments, which requires Departments to establish deployment policies consistent with the Treasury Board policy:
| Departments must establish deployment policies and procedures that respect the directives made by the Treasury Board under Sections 34.2(1), 34.3(1) and 34.3(3) of the Public Service Employment Act ... or any regulations made under Section 37.1(1) of that Act and that: |
....
| -provide for advance notice of upcoming deployment opportunities in the work unit to which the deployments will be made... |
The Revenue Canada Deployment Policy provides that:
| Delegated Managers shall ensure that: |
| 9. All employees in the work unit are notified in advance of any upcoming deployment opportunities, using such notice as the manager deems appropriate; (For example, this may include memos, e-mail, announcements at staff meetings and notices on bulletin boards.) |
| 10. Not later than ten (10) working days following the effective date of the deployment, they [Delegated Managers] inform employees in the work unit, and the employee being deployed of their right to recourse. This will include informing the employees: |
...
- of the name of the individual and his/her group and level
[1] In order to comply with the advance notice requirement, an announcement was made at a Team Leaders meeting on October 31, 1997 that Cheryl MacLellan was being deployed as a PM-04 Team Leader in Collections. The minutes of that meeting were provided to the Court by consent of both parties. With respect to this item, they read as follows:
| 7. Deployment/Assignment - Jack Lee |
| Cheryl MacLellan is being deployed to Collections as a PM-4 Team Leader. Cheryl will be on assignment in the Underground Economy unit for approximately 2 years. |
[1] Subsequent to Ms MacLellan"s deployment, written notice of the deployment was given.. The Notice read as follows:
November 12, 19997
NOTICE OF DEPLOYMENT
| TO: Revenue Canada |
Revenue Collections Division
Halifax Tax Services
Halifax, NS
| This is to advise that Cheryl MacLellan will be deployed to the position of PM-04, Team Leader, Collections, Revenue Collections Division, Halifax Tax Services effective November 7, 1997. |
| Recourse rights concerning this process are available to the employee being deployed and/or the employee(s) in the work unit to which a deployment is being made. Complaints must be made in writing within 14 days from the date of this notice and sent directly to: |
D.B. Gibson
Director, Halifax Tax Services
Revenue Canada
P.O. Box 638
1256 Barrington Street
Halifax, NS B3J 2T5
| Grounds for complaint must be either that: |
| - the deployment was not authorized by, or made in accordance with the Public Service Employment Act, or |
| - the deployment constituted an abuse of authority. Abuse of authority includes harassment, coercion, intimidation, nepotism or favoritism. |
| If you wish further information concerning the complaint process, please contact Heather Nicks, Human Resources Consultant at (902) 426-6889. |
[1] A supplementary notice was published later the same day to correct an oversight with respect to the language designation of the position. That notice was as follows:
November 12, 1998
NOTICE OF DEPLOYMENT
ADDITIONAL INFORMATION*
| TO: Revenue Canada |
Revenue Collections Division
Halifax Tax Services
Halifax, NS
| This is to advise that Cheryl MacLellan will be deployed to the position of PM-04, Team Leader, Collections, Revenue Collections Division, Halifax Tax Services effective November 7, 1997. *The language profile of the position is bilingual imperative (BBB/BBB). |
| If you wish further information please contact Heather Nicks, Human Resources Consultant at (902) 426-6889. |
It will be noted that neither notice specified Ms MacLellan"s pre-deployment group and level.
[1] Section 34.3 of the Act provides that employees who wish to do so may complain to the deputy head concerned that the deployment was not authorized by or made in accordance with the Act or constituted an abuse of authority. The Applicant Laidlaw and 4 other co-workers complained about Ms MacLellan"s deployment. Their complaint was addressed by Mr. D.B. Gibson as the delegate of the deputy head of Revenue Canada. Mr. Gibson responded by means of a Deployment Complaint Disposition Report which was enclosed with a letter dated February 20, 1998. Mr. Gibson responded to the Applicants" complaint that the deployment constituted an abuse of authority including harassment and favouritism by advising, in his report, that "this deployment did not constitute an abuse of authority on the part of the delegated manager and it is in accordance with the Public Service Employment Act. There has been no evidence adduced in support of these allegations."
[1] The Applicants were not satisfied with this response and exercised their right under s. 34.4 to refer the matter to the Public Service Commission. Each of them completed a Deployment Investigation Request form with respect to Ms MacLellan"s deployment. The form asks the complainant to identify the nature of the irregularity complained of. It has two boxes, one or both of which can be checked:
The deployment was irregular because:
__
| /_/ it was not authorized by, or made in accordance with, the PSEA |
__
| /_/ it constituted an abuse of authority as provided for in subsection 34.3(1) of the PSEA. |
[1] Each of the applicants checked the second box and did not check the first.
[1] The Commission appointed Mr. Robert Vaison to investigate the deployment and prepare a report. Mr. Vaison held a hearing on April 15, 1998 and on April 29, 1998 he signed a report in which he concluded that the Applicants" complaints were without merit.
[1] Before the investigator, the Applicants argued that the deployment notice issued after Ms MacLellan"s deployment was deficient in that it did not include Ms MacLellan"s group and level as required by the Revenue Canada Deployment Policy. Mr. Vaison rejected the Applicants argument on this point. He thought the policy requirement ambiguous but, in any event, he found that the omission of the information in this case had not prejudiced anyone as all concerned were very much aware of Ms MacLellan"s group and level.
[1] The Applicants questioned the good faith of the deployment to the Team Leader position, given that Ms MacLellan has not worked a day in that position since her deployment. The Applicants also pointed to the creation of a Team Leader position as further evidence of bad faith, given the uncertainty in the employee ranks as a result of another departmental initiative which was currently under way. The failure to give advance notice of the deployment pointed to as evidence of the lack of good faith on that issue. The Applicants also questioned whether the assignment did not amount to a promotion, given that the previous incumbent was paid at the PM-06 level.
[1] Mr. Vaison found nothing untoward in the deployment and subsequent assignment. He found that the deployment and assignment were consistent with the Department"s needs. He also found that since Ms MacLellan continued to be paid at the top step of the PM-04 range, no promotion had occurred..
[1] Mr. Vaison found that, in the context of the ongoing review of all these positions, the final number and classifications of the Team Leader positions would be determined. He accepted Mr. Lee"s explanation as to the linguistic requirements of the Halifax office and concluded that the creation of the bilingual Team Leader position would not affect the ongoing review.
[1] In the end result, Mr. Vaison found nothing irregular in the deployment and was therefore not in a position to make a recommendation to the Commission adverse to the deployment.
[1] An application for judicial review of Mr. Vaison"s findings was launched by Notice of Application dated June 1, 1998 in which the Applicants seek to have Mr. Vaison"s report set aside and to have the matter remitted to the Deployment Investigator to be dealt with according to law. The grounds of the Application are the following:
| (a) the deployment investigator erred in law and failed to exercise his jurisdiction when he concluded that the deployment of Cheryl MacLellan was not unlawful even though advance notice of the upcoming deployment opportunity had not been provided by the Department; |
| (b) the Deployment Investigator erred in law and failed to exercise his jurisdiction when he concluded that the failure to specify the group and level of Cheryl MacLellan on the Notice of Deployment was not a flaw which rendered the deployment unlawful; |
| (c) the Deployment Investigator erred in law and failed to exercise his jurisdiction when he concluded that the deployment in issue was not an abuse of authority or otherwise unlawful; |
| (d) the Deployment Investigator based his decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the evidence before him; and |
| (e) such further and other grounds as the [sic] counsel may advise and this Honourable Court may permit. |
[1] With respect to the first ground, the failure to give advance notice of the deployment, the Applicant"s position is that notice that a person will be deployed to a given position at a date some time in the future does not constitute advance notice as required by the applicable policies. The Respondent says that such notice as was given here complies with the Treasury Board policy as well as the Revenue Canada policy. The Respondent also says that the Applicants cannot raise this issue now because the only grounds of review which they specified in their Deployment Investigation Request form was abuse of authority. The applicants are not free to raise a different ground before this Court.
[1] In A.G.T. Ltd. v. Graham [1997] F.C.J. No. 1679 (F.C.T.D.), Associate Chief Justice Jerome held that while a new argument could not be heard on judicial review unless the argument concerned the jurisdiction of the administrative tribunal, it was still open to the Court to deal with submissions arising from a tribunal"s decision as to the applicability of a statutory provision. In that case, the respondent employees filed a complaint against the applicant employer alleging that the applicant had failed to pay overtime as required by the Canada Labour Code. An inspector found that the exception set out at Section 7(a) of the Regulations applied and that as a result, no overtime was payable. The respondents appealed this finding to the referee who found that Section 7(a) of the Regulations did not apply. While the referee framed the issue before him as "the interpretation of the phrase "changing shifts" in section 7(a) of the Regulations", in the course of his reasons he referred to Sections 170 and 172 of the Labour Code:
| "Sections 170 and 172 of the Code were touched on by both counsel in argument but in my view, they are not relevant as their provisions would only apply if there were an agreement in writing between the employer and the trade union to establish a work schedule in which the hours exceed the standard hours of work. That appears not to have been done in this case." |
[1] The applicant employer then attempted to raise the applicability of s. 170 on judicial review. The respondents objected on the ground that it was a new ground which had not been referred to in the originating document and that the Court was therefore without jurisdiction to entertain the argument. The Associate Chief Justice found that the section 170 argument was not a new ground in that it had been raised before the referee who had found that it was not relevant. He held that he would allow the argument to be made, and that if necessary he would allow the applicant employer to amend its originating document as required.
[1] In this case, the question of the validity of the advance notice was raised before the Deployment Investigator, albeit in the context of the issue of the abuse of authority. It was said that the failure to give notice in accordance with the Act was further proof that the deployment was made for invalid reasons. The Deployment Investigator did not specifically address the validity of the advance notice. The fact that the Deployment Investigator did not choose to specifically resolve the issue cannot leave the Applicants in a worse position than if he had dealt with it and held against them, as was the case in A.G.T. Ltd., supra. In addition, the issue of the adequacy of the advance notice was clearly raised in the grounds for this Application. In the result, I find that the issue was sufficiently raised before the Deployment Investigator to allow the Applicants to make the argument before me. I point out that the Respondent had considered the possibility of an untoward finding on this issue, and was prepared to argue the merits of the claim.
[1] The necessity of advance notice of deployment opportunity has been raised in a number of cases, all of which hold that advance notice must be given. See Nieboer et al. v. Canada (1996), 121 F.T.R. 29 (T.D.); Vavrecka v. Canada (1996), 110 F.T.R. 115 (T.D.). In those cases, no advance notice of the deployment opportunity was given. In this case, advance notice was given that a particular candidate would be deployed to a particular position. The question is whether this complies with the requirements of the Treasury Board policy and the Revenue Canada policy.
[1] Both the Treasury Board policy and the Revenue Canada policy require that advance notice be given of "deployment opportunities". The use of the word "opportunities" suggests that the deployments in question are potential placements for employees in the work unit. The advance notice allows those who wish to be considered to bring their interest to the attention of the decision maker who, nonetheless, remains free to select the person he/she prefers for the position. But the fact that the employer is not limited by these expressions of interest does not mean that the requirement of advance notice is satisfied by giving the employees in the work unit notice of the deployment of a particular person to a particular position in advance of the start date of the deployment. Such a notice is not notice of an opportunity. It is notice of a fait accompli. It is unrealistic to argue that, in such a case, the employee has the opportunity to persuade the decision maker to change his/her mind in favour of the employee expressing interest in the position. I find that the requirement of advance notice of deployment opportunities is not met by advance notice of a decision to deploy a particular person to a particular position. In the result, I find that the Deployment Investigator either failed to exercise his jurisdiction in not dealing with the issue of the validity of the advance notice or, in the alternative, made an error of law in deciding, implicitly, that the advance notice given here complied with the requirements of the Treasury Board and Revenue Canada policies dealing with deployment.
[1] The next ground advanced by the Applicants is that the post deployment notice was not lawful in that it did not contain the employee"s group and level. The two notices reproduced above both make reference to the fact that Cheryl MacLellan was being deployed to a PM-04 Team Leader position. Presumably, the argument is that Ms MacLellan"s group and level was MM and the policy requirement was not satisfied by identifying the group and level of the position to which she was being deployed, PM-04. The Deployment Investigator thought that the policy might be ambiguous but in any event decided that the breach of this requirement would not give rise to any remedy since all concerned were well acquainted with Ms MacLellan"s group and level in any event. The requirement to give notice of the deployed employee"s group and level is intended to allow employees in the work unit to assess whether the deployment in question amounts to a promotion or a change in tenure. This, in turn, is intended to give employees the information necessary to decide whether to exercise the remedies provided for them in the Act. In this case, the Applicants have argued that the procedural requirements have not been met, i.e. the notice requirements, as well as making the substantive argument, i.e. that the subsequent assignment constituted a promotion because the previous incumbent was paid at the PM-06 level. To that extent, the objectives of the notice requirement have been met. I find that there has been a breach of the requirements of the Revenue Canada policy but, like the Deployment Investigator, I would not set aside the Deployment Investigator"s Report on this ground alone.
[1] The next ground advanced by the Applicants is that the deployment is an abuse of authority. Much was made before the Deployment Investigator and, to a lesser extent, before me about the relationship of this deployment to the proceedings which are pending between the parties with respect to the status of the Team Leader positions and their incumbents, a question which has already been to the Federal Court of Appeal. I do not find it necessary to deal with this because I believe that the deployment of Ms MacLellan fails for a simpler reason.
[1] Abuse of authority is a ground of review which goes to the legitimacy of a particular deployment as opposed to its compliance with the enabling legislation. But what makes a deployment an abuse of authority? For purposes of this application, the following proposition commends itself: since the authority to make deployments is not subject to the checks which apply to other staffing arrangements within the public service [for example, the application of the merit principle (s. 10 Public Service Employment Act R.S.C. 1985 c. P-33) or the right of appeal (s. 21)], the use of deployment to circumvent those checks and safeguards is an abuse of authority. Deployment should not be used to do indirectly that which the delegated manager could not do directly. This is perhaps best characterized by the notion of transparency as required by the Treasury Board policy on deployment:
| "Deployments are to be made in a fair, reasonable, and transparent manner, taking into account the needs of the organization and the legitimate career interests and aspirations of employees." |
[1] Transparency means that the rationale given for the deployment and the state of affairs which exists at the conclusion of the deployment transaction are consistent. In this context, the comments of Deployment Investigator Lee in Smith et al in Re Deployment of Francis Pimentel [1993] unpublished, are very much to the point:
| "Throughout, the PSEA [Public Service Employment Act] uses words such as merit, position, duties to be performed, qualified. It states that a deployment must be made to a position in the same occupational group, or between groups as authorized by the Commission. |
| The provisions of the PSEA - and words such as those used above - can have a positive purpose only if they are taken as requiring a judgement about the suitability of persons to perform certain duties and work; and as requiring that they be engaged to perform such duties and work. I think it a reasonable inference from the above that the purpose of a deployment is to enable a person who is deployed to a "position" to carry out the work, duties, functions of that position. No more, no less." |
[1] In the case before Deployment Investigator Lee, an employee was deployed from Ottawa to the Vancouver District Taxation office on compassionate grounds. He was to be deployed to a PM-03 position (Office Examination Unit Head) but upon arrival, the employee was seconded to an AS-03 or AS-04 position in the Internal Audit section. It would appear from the Deployment Investigator"s decision that the employee never did work in the Office Examination Unit Head position. In the circumstance, Deployment Investigator found that the deployment was an abuse of authority.
[1] The deployment which occurred here was not transparent. Notwithstanding the explanations offered, it is not apparent why a Team Leader (Bilingual Imperative) position was required in the Halifax Taxation Services Organization if the person deployed to fill the position never served in it. If the need existed, then the position ought to have been occupied. If it did not exist, then it is not obvious why the position was created. If the organizational need was for a person in the Underground Economy Unit, it is not obvious why the deployment was made to the Team Leader - Collections (Bilingual Imperative) position. I make no finding as to whether a deployment of Ms MacLellan to the Team Leader - Underground Economy Unit constituted a promotion or a change in tenure. If the deployment to the Team Leader - Collections (Bilingual Imperative) position was intended to avoid arguments about both of these issues by creating the appearance of compliance with Section 34.2(2) (which prohibits deployments which result in promotions or changes in tenure), then it was not made for the reasons offered in its defence. If the rationale for the deployment is the acquisition of the ability to provide collections services in both official languages, then the ultimate placement of Ms MacLellan in the Underground Economy unit is inconsistent with that rationale.
[1] The use of a deployment to create the appearance of compliance with the Act so that an employee can then be placed into another position by means of assignment or secondment, free of the constraints imposed by the Act and other limiting conditions, is an abuse of the right of deployment and is, to that extent, an abuse of authority. In this case the Deployment Investigator, failed to address this question and to that extent declined to exercise his jurisdiction or, in the alternative, erred in law in finding that the deployment of Ms MacLellan was not an abuse of authority.
[1] Given the conclusion which I have reached, it is not necessary to consider the last two grounds advanced by the Applicants as it is clear that the report of the Deployment Investigator must be set aside.
[1] It is therefore ordered that the report of Deployment Investigator Vaison is set aside and the matter is referred back to the Public Service Commission for redetermination in accordance with these reasons.
"J.D. Denis Pelletier"
Judge