Date: 20000606
Docket: T-1215-99
BETWEEN:
JEFFREY ZILBERMAN
Applicant
- and -
ATTORNEY GENERAL (CANADA)
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision by the Public Service Commission Appeal Board, dated June 2, 1999. That decision dismissed the applicant's appeal of the selections made for appointment to the position of Team Coordinator, Collections (PM-04) by Revenue Canada, in Vancouver and Burnaby. The appointments were made pursuant to the results of what is referred to as a closed "relative merit" competition, a competition wherein candidates are assessed on the basis of common tests given to all.
[2] Mr. Zilberman's argument is that Revenue Canada was required by the relevant legislation and policy to fill the Team Coordinator, Collections positions on the basis of "individual merit" and appoint him, without competition, to one of them.
[3] On February 8, 1992, Mr. Zilberman was appointed to the position of District Collection Manager, a PM-03 position with Revenue Canada. On June 1, 1994, a consolidation of two branches of Revenue Canada (the "Tax Branch" and the "Excise/GST Branch") was effected. Mr. Zilberman worked in the Excise\GST Branch. As a result of that consolidation his position as District Collection Manager was declared obsolete. On January 19, 1997, he was given a PM-03 position, Collections Resource Complex Case Officer. On July 7, 1997, he was declared surplus and offered another PM-03 position as a Collections Resource Complex Case Officer.
[4] As a result of the consolidation, Revenue Canada staffed a number of Team Coordinator, Collections positions. These were PM-04 positions. Mr. Zilberman has appealed the selections for appointment that were made on three occasions. One appeal was heard by the Appeal Board in November 1997 and a decision rendered in December 1997. Part of his argument on appeal was that his job as District Collection Manager was substantially the same job as that performed by someone in a Team Coordinator, Collections position. The Appeal Board found that there were differences between the two positions (Respondent's Record, pages 39 - 40):
| The Team Coordinator, Collections, in Taxation does not conduct collection activities directly, but through staff. The District Collections Manager in Excise conducts certain collection activities directly. |
| Both positions supervise staff, however the Team Coordinator, Collections, supervises a larger number of employees than the District Collections Manager. |
| The Team Coordinator, Collections, in Taxation has greater managerial responsibilities than the District Collections Manager in Excise. The former position is responsible for financial and human resources (including budgeting), workload planning and scheduling activities. The latter position has no financial responsibility and more limited responsibility for human resources as it is primarily concerned with day-to-day operations. |
Mr. Zilberman did not seek judicial review of this Appeal Board decision.
[5] The second appeal by the applicant was of the appointment of a Mr. McCliggott, which appeal was heard in Victoria on January 13 and February 5, 1999, with a decision being rendered on March 9, 1999. Mr. McCliggott had been appointed pursuant to the individual merit process because the position he held at the time of the appointment, Team Coordinator, Identification and Compliance (PM-03), had been determined to be substantially similar to the Team Leader, Non-Filer/Registrant (PM-04) position that was being filled. Mr. Zilberman argued that a review of the position he held, District Collection Manager, had not been done to ascertain whether it was substantially similar to the Team Leader, Non-Filer/Registrant position. His argument was summarized by the Appeal Board:
| The appellant alleged that without the Department having performed a review of his position of District Collection Manager, Excise GST, Pacific Region, subsequent to administrative consolidation, the Committee did not have all of the information required to properly identify all the incumbents for the position of Team Leader. In support of the contention that the Department had not performed a post-consolidation review, the appellant submitted a response to an access to information request, dated August 25, 1998. That response indicated that the Department did not conduct a review of the appellant's former position, or any other position, for the purposes of administrative consolidation. Had a review of his position been completed, the Committee should have identified significant links between it and the Team Leader position. By reviewing the positions without the benefit of a post administrative consolidation review of the appellant's position, the Committee did not discharge its duty correctly or legitimately, for the purposes of administrative consolidation. |
[6] The Appeal Board described Revenue Canada's response to the appeal of the co-appellant, Mr. Miller, who held a District Collection Manager position:
| The Department replied to the allegation that the appellant Miller's position as District Collections Manager had significant links to the Team Leader position by reviewing the job descriptions of both positions. Mr. Boyer argued that the District Collections Manager position was a tax collector position, involving the collection of unpaid GST taxes. All duties performed by the District Collections Manager were performed in the context of collections and all staff working under that position were collections staff. The Team Leader managed a team of officers engaged in the detection, investigation and enforcement of the filing and registration requirements of the various statutes administered by the Department. The only collection duties performed by the Team Leader related to one time requests for payment, once it had been identified that taxes were owed. If the amount owed was not paid, the file was sent to collections for action. Upon reviewing the job descriptions of the Team Leader and District Collections Manager positions, Mr. Boyer identified a number of duties ... |
| While there were a [sic] numerous similar management duties for both positions, Mr. Boyer argued that the same could be said of many management positions in the Department. Similar management duties and responsibilities should not be the determining factor in concluding that two positions are substantially the same. With respect to knowledge, a District Collections Manager primarily utilized the Excise Tax Act, while a Team Leader only did so 7% of the time and worked primarily with the more complicated Income Tax Act. Knowledge of intermediate accounting was also required for the position of Team Leader, while it was not required of a District Collections Manager. Lastly, a District Collections Manager did not have sole authority over collections, while the Team Leader had sole authority over non-filer/registrants. |
[7] The Appeal Board dismissed Mr. Zilberman's appeal of the MCliggott appointment on the ground that Mr. Zilberman had not presented evidence to support the allegation that Mr. McCliggott's appointment had not been made in accordance with the statutory and regulatory provisions as well as the merit principle:
| ... The burden of proof lies with the appellant to demonstrate that his position is one of a group of similar occupied positions of the same occupational group and level in the same part of the organization. The appellant Zilberman did not present any evidence upon which that finding could be made. |
Mr. Zilberman did not seek judicial review of that decision.
[8] The present judicial review application, as noted, relates to an Appeal Board decision dated June 2, 1999. It relates to two appointments made in selection processes 98-NAR-CC-PAC-VAN-027 and 98-NAR-CC-PAC-BBY-028, on the basis of results received in a competitive testing process. The Appeal Board took the position that it did not need to assess the applicant's argument that the District Collection Manager position, which Mr. Zilberman had held prior to the consolidation, was substantially the same as Team Coordinator, Collections position that was being staffed, because the department had the discretion to choose to staff the latter position using either the competitive process or the individual merit process. The Appeal Board decision reads:
| The appellants alleged that the District Collections Manager position which they had both held prior to administrative consolidation was essentially the same position as the position being staffed in this competitive process. Therefore, the Department should have proceeded in staffing the Team Leader/Coordinator, Collections position on the basis of individual merit, rather than relative merit. In making my decision, I need not determine whether or not significant links exist between the two positions compared by the appellants. The Department may choose to staff a position by way of a competition. In this case, it chose to do so. In the absence of evidence that the Department exercised its discretion in an unreasonable manner, it is not within my authority to impugn such a decision. Had the Department staffed the position in this case based on individual merit, the similarity between the District Collections Manager position and the Team Leader\Coordinator, Collections position would be relevant. However, that was not the case and any similarity between these positions is of no consequence. What must be determined is whether the selections made as a result of the selection process were done so according to relative merit. I find that they were. |
[9] I find no error in the Board's reasoning. The relevant legislative provisions are:
Public Service Employment Act, R.S.C. 1985, c. P-33
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Loi sur l'emploi dans la fonction publique, L.R.C. 1985, ch. P-33
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
Idem
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons. [Underlining and bold added.]
Idem
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats. [C'est moi qui souligne.]
Public Service Employment Regulations
4. (2) A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances, namely,
...
Règlement sur l'emploi dans la fonction publique
4. (2) La sélection visée au paragraphe 10(2) de la Loi peut se faire dans l'une ou l'autre des circonstances suivantes :
...
(b) where an employee is to be appointed to the employee's reclassified position and
...
| (ii) the position is one of a group of similar occupied positions of the same occupational group and level in the same part of an organization that have all been reclassified ... [Underlining and bold added.] |
b) la nomination d'un fonctionnaire à son poste après reclassification lorsque, selon le cas :
| ... |
| (ii) le poste fait partie d'un groupe de postes occupés semblables, des mêmes groupe et niveau professionnels, au sein du même secteur de l'organisation qui ont tous été reclassifiés ... [C'est moi qui souligne.] |
[10] The legislation provides that a person may be appointed without competition in certain circumstances, that is when the position is a reclassification of the person's existing position. The legislation does not say that appointment by individual merit shall (i.e., must) be used in those circumstances.
[11] The decision in Canada (Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.) does not stand for the proposition that "may" means "shall" in the legislative provisions that have been quoted. The Court wrote:
| We need not ... decide this issue one way or another, because there exists in our view another avenue that permits us to dispose of the appeal. [The other avenue was the determination that the position in question was not a reclassification but a "new" position.] |
[12] At the trial level, Mr. Justice Rothstein had held that subsection 10(2) was permissive, not mandatory:
| [25] The object of the Act is to ensure that the best person be placed in every available position. Subsection 10(2) gives the government the opportunity to staff a position through a procedure which does not require holding competitions in certain specified circumstances which are deemed not to warrant a competition. In light of the overall purpose of the Act, I must conclude that Parliament and the Governor-in-Council merely intended that, in the circumstances of subparagraph 4(2)(b)(ii) of the Regulations, the government has the option of not holding competitions. |
| [26] Therefore, the appeal board erred in holding that where subparagraph 4(2)(b)(ii) of the Regulations applies, subsection 10(2) of the Act is construed as mandatory. |
| [27] Revenue Canada therefore has the discretion to choose to staff positions by competition under subsection 10(1) even where positions might be staffed on the basis of competency pursuant to subsection 10(2) of the Act and subsection 4(2) of the Regulations. However, it is important to emphasize in this case that Revenue Canada's discretion is not unfettered. As was made clear by the Supreme Court of Canada, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, per McIntyre J. at page 7, such a statutory discretion must be exercised in good faith and in accordance with the principles of natural justice. |
[13] The evidence does not establish that Revenue Canada's decision to proceed by way of a competitive selection process was arbitrary, or contrary to a policy that had been adopted with respect to the filling of the positions in question.
[14] While the applicant alleged in his written submissions that errors in the Appeal Board's decision arose because the competition poster had referred to Team Leader rather than Team Coordinator, this argument was abandoned at the hearing.
[15] Subsection 4(1) of the Act to Amend the Department of National Revenue Act and to Amend Certain Other Acts in Consequence Thereof, S.C. 1994, c. 13, does not assist the applicant. It preserves the status quo for employees at the date of consolidation. It does not prevent the department reorganizing for all time thereafter. That subsection reads:
4. (1) Nothing in this Act shall be construed to affect the status of an employee who, immediately before the coming into force of this Act, occupied a position under the authority of the Deputy Minister of National Revenue for Taxation or the Deputy Minister of National Revenue for Customs and Excise except that each of those persons shall, on the coming into force of this Act, occupy their position under the authority of the Deputy Minister of National Revenue.
4. (1) La présente loi ne change rien à la situation des fonctionnaires qui, à l'entrée en vigueur de la présente loi, occupaient un poste placé sous l'autorité du sous-ministre du Revenu national (Impôts) ou du sous-ministre du Revenu national (Douanes et accise), à la différence que, à compter de cette date, ils l'occupent sous l'autorité du sous-ministre du Revenue national.
[16] Lastly, the respondent's argument that the applicant is, in any event, precluded from appealing this Appeal Board decision by way of judicial review because issue estoppel exists, is a valid argument. In order to proceed to appoint on the basis of "individual merit", the position that is being staffed must be "the employee's reclassified position". The applicant's position was declared obsolete as a result of the consolidation. The Team Coordinator position was not a reclassification of the District Collection Manager position as a result of the consolidation. The Appeal Board has on at least two occasions determined that the District Collection Manager (Excise Tax Branch) position is not substantially similar to the Team Coordinator, Collections position. The latter has been determined to be a "new" job not a reclassification of the former. In addition, the applicant did not hold the position of District Collection Manager at the date of the staffing process that is the subject of this appeal. Mr. Zilberman's District Collection Manager position ceased to exist as of January 19, 1997.
[17] For the reasons given, this application will be dismissed and the respondent is entitled to recover her costs of the application from the applicant.
Judge
OTTAWA, ONTARIO
June 6, 2000