Date: 20010207
Dockets: T-1-00
T-42-00
Citation: 2001 FCT 39
BETWEEN:
MYER HERZIG AND DAVID MARTIN
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY INDUSTRY CANADA
and
THE DIRECTOR GENERAL - HUMAN RESOURCES BRANCH
OF INDUSTRY CANADA IN HIS CAPACITY AS THE
DEPUTY HEAD'S NOMINEE IN RESPECT OF A
CLASSIFICATION GRIEVANCE PROCEDURE
PURSUANT TO S.91 OF THE PUBLIC SERVICE
STAFF RELATIONS ACT
Respondents
APPLICATION UNDER FEDERAL COURT ACT, R.S., c.10 (2nd Supp),
Sections 18(1) and 18.1
REASONS FOR ORDER
McKEOWN J.
[1] The Applicants seek a writ of mandamus ordering the Respondents to reclassify the Applicants' positions as members of the Trade-marks Opposition Board from PM-06 positions to LA-02 positions. They also sought a writ of certiorari quashing the January 11, 2000 decision of the Deputy Head's Nominee to reject the Classification Grievance Committee's unanimous recommendation, which held that the Applicants' positions should be reclassified as LA positions. The Respondents have agreed to withdraw the decision of the Deputy Head's Nominee, and accordingly the writ of certiorari is no longer in issue.
[2] The issue in question is whether the Nominee actually made a decision with respect to whether the Applicants' positions should be reclassified as LA positions. If so, then it would be appropriate for this Court to issue a write of mandamus compelling the Nominee to officially render such decision.
FACTS
[3] The Applicants filed a grievance pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA"). Under section 91, if there is an administrative procedure for redress provided for under an Act of Parliament, then the employees concerned are required to follow the administrative procedure set out therein. In this case, the Treasury Board, pursuant to the Classification Grievances Policy, prepared a Classification Grievance Procedure which was last revised June 1, 1994, and both parties agreed that this was the procedure to be followed in the instant grievance.
[4] Earlier, the Applicants had sought to proceed by way of challenging certain management decisions and had failed to have their positions reclassified. Accordingly, the grievance that is the subject of the present application for a writ of mandamus commenced. Pursuant to the Classification Grievance Procedure, a Classification Grievance Committee (the "Grievance Committee") was set up on January 11, 1999 and hearings were held on April 30, 1999 and June 3, 1999. The Grievance Committee reported August 23, 1999 and their conclusions were as follows:
| 1. The positions of the grievors are unique, and the Committee was not referred to any other similar positions where Treasury Board is the employer. There is no "perfect fit" in any of the existing classification standards. However, the LA Group, in the Scientific and Professional Category, in the unanimous opinion of the committee, is certainly the "best fit" and is a better fit than the PM Group in which the positions are currently classified. |
| 2. The classification grievance committee is however precluded from classifying LA positions and it must render its conclusions to the Departmental Deputy Head Nominee for classification grievances for the proper procedure to follow in cases of creation or classification of legal positions in the Federal Government, ie Bulletin PMM 48-87, dated 16 December 1987. |
[5] This report was approved by the Deputy Minister's Nominee on August 24, 1999. Previously, on July 6, 1999, the Nominee had written to the Applicant, Mr. Herzig, to indicate the following:
| The Classification Grievance Committee has completed its review of your position and has forwarded its recommendation to me for my consideration. |
| The Classification Grievance Committee has recommended that your position be considered for classification in the LA (Law) Group. I have advised the Deputy Minister of Industry Canada that the following process must be followed. |
| Under normal circumstances, my decision on the recommendation of a classification grievance committee is final and binding. However, to establish or classify positions in the LA group, Departments are required [to] consult with the Department of Justice (Treasury Board Policy Bulletin No. 48-87: copy attached). In the event that consultation fails to result in an agreement to proceed, the matter is referred, with representations from both parties, to the Treasury Board Secretariat for a decision. If either party is not satisfied with the decision made by the Treasury Board Secretariat, an interdepartmental committee is convened to make a final decision. |
| I appreciate that this process will cause further delays in a final decision on your grievance, however there is no alternative but to follow the consultative process. We will proceed as quickly as possible with the Department of Justice and you will be notified of the results as soon as they are available. |
[6] Both parties are agreed that at one time any classification of an LA position was subject to approval by the Department of Justice. However, both parties also agree that this is no longer the case. Furthermore, Treasury Board Policy Bulletin PMM 48-87 dated 16 December 1987, which maintained and modified a process for consultation with the Department of Justice regarding the classification of public service positions as LA positions, expired in 1988.
[7] The Classification Grievance Procedure also provides for how the Deputy Head or Nominee should respond to the Grievance Committee's recommendation.
| VI. A. 1. The deputy head or nominee will either confirm the committee's recommendation or make a decision in cases of minority and majority reports. In cases of minority or majority reports, if the minority report is accepted the nominee must so advise the deputy head. If the unanimous recommendation of the grievance committee is rejected by the nominee, the new decision must be personally approved by the deputy head. In such circumstances, the deputy head must report to TBS the reasons for non-acceptance, tied directly to the justification used by the grievance committee in arriving at its recommendation. |
The procedure then goes on to provide for how the decision of the Deputy Head or Nominee is relayed to the grievor.
| C. 1. The grievor must be advised in writing of the grievance decision rendered by the deputy head or nominee. The response to the grievor must be signed by the deputy head or nominee and must state the group, sub-group and level, factor ratings, if applicable, and the effective date of the decision. It must also state that the decision is final and binding. |
[8] In my view, the foregoing facts are the ones that are essential to the decision. There are some other facts which I will include since the Applicant relies on them to some extent to support their submissions. On July 26, 1996, the position of the Trade-marks Opposition Board Members' classification was considered by the Human Resources Branch of the Canadian Intellectual Property Office and at that time it was decided that the positions were appropriately classified within the PM Group and not in the LA Group, as requested by the Applicants. The matter was reviewed again by the Classification Committee which was convened at Industry Canada/Canadian Intellectual Property Office headquarters on December 2, 1998. One of the members of the Committee was the Senior General Counsel, Department of Justice, who had been a party to the July 26, 1996 decision. The Committee's January 11, 1999 decision again confirmed that the PM classification was seen as the best fit under the current system. The Applicants concede that they cannot grieve the two management decisions.
[9] On December 6, 1999, the Director-General, Human Resources Directorate of the Department of Justice wrote the Acting Director-General Human Resources, Industry Canada to indicate that the Department of Justice still supported the position of the Classification Committee on January 11, 1999 that the position of Member of the Trade-marks Opposition Board should be classified as a PM-6 position. There is an e-mail from an employee in the Human Resources Branch to the Acting Director-General dated December 22, 1999, wherein it was stated that Industry Canada would defer to the Department of Justice expertise in this matter, accept the Department's opinion, and deny the grievance. There had been an earlier e-mail on December 14, 1999, between a supervisor at Treasury Board and someone who works with the Nominee. This e-mail contained a suggested draft letter to the two Applicants for the Acting Director-General to sign. This draft letter stated that, "the Department of Justice is the authority on the application and interpretation of LA standards."
[10] The Acting Director-General, Human Resources Branch, Industry Canada sent the Applicant, Mr. Martin, a letter dated January 11, 2000 wherein he pointed out that the Department of Justice had concluded that, "it does not support the decision of the Classification Grievance Committee but rather the findings and conclusions reached in the January 1999 report." He then goes on to state that the Applicant's grievance is denied and that his position will remain in the PM group. The letter also confirmed that the writer believed that the Department of Justice was the authority on the application and interpretation of the LA standard.
[11] As stated earlier, the government originally had submitted that the January 11, 2000 letter constituted the decision of the Nominee, but later rescinded the decision, realizing that this decision may not have been in accordance with the Classification Grievance Procedure. On March 21, 2000 the Respondents notified the Applicant that the Nominee's decision had been rescinded and asked the Applicant to make additional representations in writing with respect to the Department of Justice opinion. This letter indicated that if the Grievance Committee recommendation is not accepted as set out in the Classification Grievance Procedure Manual, the matter should be decided by the Deputy Minister. The Respondents agreed to a postponement of the Deputy Minister's process until this Court had rendered its decision on the question of whether mandamus should be granted.
ANALYSIS
[12] The Applicants submit that the Nominee became functus by signing the Grievance Committee report as "approved" on August 24, 2000. They argue that the Nominee's action approved the Committee's recommendation to reclassify the position of Trade-marks Opposition Board Member from PM-06 to LA-02. In actual fact, the Grievance Committee made two findings. It stated that the positions should be reclassified. However, it also mistakenly stated that this reclassification could not be done until the Department of Justice had been consulted with respect to the matter. I do not think that the two findings can be severed. When the Nominee "approved" the recommendation, that approval applied to both recommendations. Since the second recommendation requires further consultation, it cannot be established that the Nominee would have "approved" of the first recommendation had it stood alone.
[13] In my view the letter of July 6, 1999 makes it clear that the Director-General, Human Resources Branch appreciated that there was no decision on this matter until such time as the Department of Justice had been consulted. She makes it clear that normally she would make a decision on the Classification Grievance Committee's Report, however in this case she would not do so until the consultation requirements of Treasury Board Policy Bulletin No. 48-87 were complied with. She is clearly in error in following an expired policy bulletin, but this is not an error which can be ignored. It is clear in the fourth paragraph that she will not make a decision until the consultations with Justice are completed. Accordingly, she did not make herself functus since she did not make a decision at this time. Instead, she approved the recommendation to forward the matter to the Department of Justice for consultation.
[14] We know that at one time the Department of Justice had authority to make the decision on LA positions. Both parties now agree that this is no longer the case. However, the Nominee proceeded on the assumption that she did have to consult with the Department of Justice. Subsequently, it turns out that her replacement thought that he required the approval of the Department of Justice before he could issue a decision to classify new LA positions. At one time this was correct, but this has not been correct since 1988, at the latest. As such, this policy process did not apply when the Nominee wrote to Mr. Herzig on July 6, 1999 to notify him of the conclusions of the Committee and to state that no final decision had been made.
[15] In my view, the Applicants have not established the necessary grounds for the granting of a mandamus order which they seek. In Karavos v. Toronto and Gillies, [1948] 3 D.L.R. 294 (O.S.C.C.A.) at 297, Laidlaw, J.A. set out the fundamental criteria for mandamus, as described in High's Extraordinary Legal Remedies, 3rd ed.:
| Before the remedy [of mandamus] can be given, the applicant for it must show |
| (1) "a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced" ... (2) "The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform" ... (3) That duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers" ... (4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy ... |
[16] Under the Classification Grievance Procedure, the Nominee has the discretion to accept or reject a unanimous recommendation of the Grievance Committee. However, if the Nominee decided to reject the matter, the new decision must be personally approved by the Deputy Head. At VI.A.1 it states:
| In such circumstances, the deputy head must report to TBS the reasons for non-acceptance, tied directly to the justification used by the grievance committee in arriving at its recommendation. |
The Applicants, therefore, have not clearly established the right to have the decision sought by them issued and issued in the manner and by the person sought to be coerced. The Nominee has made no decision on the Grievance Committee's decision. The decision was to both reclassify and to follow Treasury Board Bulletin 48-87. As far as the Grievance Committee was concerned, this was what the Nominee was in the process of doing until such time as the January 11, 2000 letter indicated the rejection of the Grievance Committee Report.
[17] However, the procedures followed were not in accordance with those outlined in the Classification Grievance Procedure, because the latter state that the Deputy Head, "must report the reasons for non-acceptance, tied directly to the justification used by the Grievance Committee." However, this is irrelevant as far as the mandamus argument is concerned. Since the Nominee had not exercised her discretion, she did not have to proceed to reclassify the two Applicants as LA-2's. She made it very clear that before she could reclassify she needed to follow the consultation process as referred to in the letter of July 6, 1999. Again, because she had not exercised her discretion, there was no duty of a "purely ministerial nature" to be followed by the Nominee. If the Nominee had exercised her powers, then she would have had a duty to reclassify the two Applicants as LA-2's. However, this is not the case here.
[18] The application for mandamus is dismissed. No costs.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
February 7, 2001