Date: 20040218
Docket: T-700-03
Citation: 2004 FC 244
Ottawa, Ontario, this 18th day of February, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
DENISE LAPOINTE, PIERRE TURMEL, SUZANNE LAJEUNESSE,
MARIE-HÉLÈNE GIROUX, MICHEL BEAUCHAMP, ROLLAND LADOUCEUR,
DIANNE TORDORI, IRÈNE DICAIRE, PAUL KYBA, MARC ALAN TESSIER,
LEEANN I. KING, DAPHNE SHAW DYCK, OTTO NUPPONEN,
CARMEN DECARLO, ILIZE DECARLO, FREDERICA DOUGLAS,
MARILOU FUNSTON, SILVANA GRATTON, OKSANA KOWALYK,
ALNA MARTENS, ROBERT MURRANT, DENIS PAXTON, CATHIE SIMMIE,
WILLIAM WILLOUGHBY, KEN THOMSON, LIZ LASOWSKI,
and ANGELA MAILHIOT
Applicants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of Linda Brouillette, Deputy Head, Grievance Nominee, Immigration and Refugee Board (the "Deputy Head's Nominee"), dated April 2, 2003. In that decision, the Deputy Head's Nominee rejected the applicants' grievance and approved the recommendation of the Classification Grievance Committee (the "Committee"). The applicants seek an order setting aside the Deputy Head's Nominee's decision, with a direction that the applicants' classification grievance be remitted to a newly-appointed Committee for reconsideration. The applicants also seek costs.
BACKGROUND
[2] The applicants are 27 members of the Immigration Division of the Immigration and Refugee Board ("IRB") and are located in different geographical areas across Canada. They were formerly called adjudicators. They presented a grievance to their employer, the Treasury Board, related to their job classification in January 2002. They claimed that their job classification was in error and requested that their positions be reclassified upwards from PM-05 to the PM-06 group and level. The grievance was dealt with as a group, as all the applicants have the same position and are classified at the same group and level, and they are members of the Canadian Employment and Immigration Union ("CEIU"), a division of the Public Service Alliance of Canada.
[3] The applicants are independent and autonomous decision-makers with the powers of a Commissioner appointed under the Inquiries Act, R.S.C. 1985, c. I-13. They preside at detention reviews and inquiries in a quasi-judicial and adversarial setting, responsible for making decisions on immigration and refugee matters in accordance with the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The applicants spend approximately 40% of their time conducting inquiries to determine whether persons seeking to enter or remain in Canada may be admitted to or have the right to remain in Canada, and spend approximately 60% of their time conducting detention reviews with respect to the release or continued detention of those persons. The applicants make approximately 10,000 to 12,000 decisions, affecting approximately five to six thousand individuals annually.
[4] On February 26, 2003, a Committee hearing was held in respect of the applicants' grievance in Ottawa, Ontario. The Committee consisted of a Chairperson and two Committee members. Two observers were also present, a classification advisor from the IRB and a classification advisor from Citizenship and Immigration Canada. The applicants submitted written representations to the Committee, as well as presenting their case orally.
[5] The mandate of the Committee was to examine all aspects of the work performed by the applicants and to assign point assessments based on rating factors set out in the PM classification standard. On or about March 18, 2003, the Committee finalized its report and recommendation. The Committee recommended that the applicants' position remain at the PM-05 group and level, assigning 719 points to their position, two points below the 721 required to be classified at the PM-06 group and level.
[6] By letter dated April 2, 2003, the Deputy Head's Nominee advised the applicants that she accepted the Committee's recommendation and decided that their position would remain at the PM-05 group and level.
The Committee Hearing
[7] At the hearing, the applicants were represented by Jacques Lambert and Maurice Simard, vice-presidents of the CEIU. Eight of the applicants, including Liz Lasowski who has filed an affidavit in this proceeding, attended the hearing. Ms. Lasowski, as well as the other grievors present, made representations on behalf of all the applicants at the hearing. A large portion of Ms. Lasowski's argument addressed an alleged "unwritten classification principle" that a subordinate should not be classified at the same level as their superior, and how such principle should not be applied in the applicants' situation, even though their immediate supervisors, the Regional Directors, are classified at the PM-06 group and level.
[8] Ms. Lasowski attests that the Committee Report does not contain accurate information with regards to the nature of the hearing. She attests that the Committee Report fails to mention certain time constraints placed upon the applicants in presenting their case at the hearing.
[9] The applicant Lasowski sets out the time constraints that were placed upon the applicants in presenting their case to the Committee:
- the hearing did not commence at 9:00 am, as stated in the Committee Report, but rather commenced at some point between 9:45 and 10:00 am;
- the applicants were told on the morning of the hearing, for the first time, that their presentation had to be concluded by 2:00 pm;
- the Committee chose to break for one hour between 12:00 and 1:00 pm.
[10] The applicants claim that they intended on making in-depth submissions and since the grievance involved complex issues and assessments, they were not able to present the full and complete arguments that they believed their grievance required. The applicants also claim that they were left with the impression that the Chairperson of the Committee was hurrying to complete the hearing.
[11] The hearing was held in both French and English, without simultaneous translation. The applicant Lasowski attests that no effort was made to translate submissions and questions from one official language to the other. Ms. Lasowski attests that there were several instances where she was unable to understand the proceedings. The applicants had requested simultaneous translation prior to the hearing, but such request had been denied.
[12] The applicant Lasowski attests that the applicants had requested that they be able to participate via teleconference or video conference, since they are located in different offices across the country. This request was refused, despite the fact that the applicants had offered to bear the costs of such arrangement. Ms. Lasowksi also attests that the hearing was initially intended to go forward in July 2002, with the provision of some sort of conference medium, however, the hearing had to be rescheduled to February 26, 2003, and no explanation was offered regarding the refusal of the conferencing request for the rescheduled hearing.
[13] At 2:00 pm, the Committee retired to consider representations on behalf of management. The applicants were not present for these submissions. The applicants were not made aware that management had submitted to the Committee that the applicants' Regional Directors also conducted hearings, and that this consumes about 25% of their time.
The Committee's Report
[14] As is apparent from the Committee's report, a comparison of the applicants' position to that of their supervisors was integral to the Committee's final recommendation. At page 9 of the Committee's report, the Committee concluded:
The Committee Members finally concluded that the following point rating assigned to each factor represents a fair and equitable evaluation of the grieved positions:
Knowledge Degree E1 301 points
Decision Making Degree D3 268 points
Operational Responsibility Degree C 40 points
Contacts Degree 3 110 points
TOTAL 719 points
This point rating is identical to the one assigned to the Regional Director, Adjudication for Program and Specialized Technical Knowledge (degree E), Decision Making (Degree D3) and Contacts (Degree 3) and which recognizes the complexity of the work, the scope and impact of decisions and the magnitude of the contacts pertaining to both positions.
The Regional Director, Adjudication is however rated at degree 2 for General Administration Knowledge and degree D1 for Operational Responsibility to properly acknowledge the managerial and supervisory functions associated with the work as described in the work description identified under job no. 116 (Appendix "C").
A more detailed rational to substantiate the evaluation of each factor can be found in part 8 of this report.
In reviewing the information tabled by the grievors for the purpose of internal and external relativity comparison, the Committee Members noted that although certain functions and duties described in the grieved work description may be similar to the duties and functions contained in the work descriptions belonging to other organizations, there are substantial differences in the mandate, targeted clientele, organization structure and work engineering of each organization all of which had a bearing on the evaluation of those positions. The Committee Members therefore concluded that their evaluation of the grieved positions using the job classification process and parameters which they had discussed and established at the outset of their deliberations represented a fair assessment of the relative value of the work assigned to the grieved positions taking into consideration their reporting relationship in the IRB.
[15] The applicants received 719 points, two points shy of the necessary 721 points to be reclassified at the PM-06 group and level. The Committee also stated at page 5 of its report that the "reporting relationship" within the organization of each bench-mark position, that is other positions in the public service used for comparison in the classification process, was important and that "...the organizational context within which a position is established is an integral part of the PM occupational group classification process and that it therefore cannot be ignored in establishing the relative value of a position in a specific organization."
APPLICANTS' SUBMISSIONS
[16] The applicants submit that the Deputy Head's Nominee and the Committee violated the principles of procedural fairness in several areas. First, procedural fairness was breached by not allowing the applicants a reasonable amount of time at the February 26, 2003, hearing to advance submissions in support of their grievance, given the nature and complexity of the work being analysed and the subject matter of their grievance. The applicants were denied the opportunity for full and meaningful participation in their classification grievance. The applicants refer to the Treasury Board Manual, Chapter 4, Classification Grievances Policy (the "Treasury Board Manual") and argue that the hearing was not conducted in the manner outlined in that document.
[17] Second, the applicants argue that they were denied procedural fairness by the Committee's failure to provide simultaneous translation of the hearing in both official languages, despite being requested to do so, and the denial of teleconference or video-conference arrangements at the hearing. The applicants requested both items prior to the hearing, offering to bear the costs of such accommodation. These requests were denied and the applicants submit that such denial prevented them from meaningful participation in the hearing, contrary to the principles of procedural fairness.
[18] Third, the applicants submit that procedural fairness was violated by the Committee's reliance on evidence and submissions that were not disclosed to the applicants, therefore denying them a reasonable opportunity to reply to such information. Such evidence was the information provided by management, namely that the applicants' supervisors, the Regional Directors, spend 25% of their time conducting hearings. The applicants made a specific request to the Committee that they be advised of management's submissions and given a chance to respond to them, however, they were not afforded this opportunity.
[19] The applicants maintain that the duties and the amount of time apportioned therefor of their immediate supervisors was relied on by the Committee in determining that the Regional Supervisors' classification at the PM-06 group and level was justified and different from the applicants' work description. The applicants dispute the figure of 25% of time devoted to conducting hearings and would have presented the Committee with a different view had they been given an opportunity to respond to this information.
[20] The applicants submit that, pursuant to Hale v. Canada (Treasury Board), [1996] 3 F.C. 3 (T.D.) and Chong v. Canada (Attorney General), [1995] F.C.J. No. 1600 (T.D.)(QL) ("Chong I") the process of considering classification grievances by an appointed Classification Grievance Committee must take place in accordance with the rules of procedural fairness, the content of which will vary depending on the nature of the decision at issue. The applicants also refer to Chong v. Canada (Treasury Board) (1999), 236 N.R. 371 (F.C.A.) ("Chong II"), where the Federal Court of Appeal emphasized that certain basic procedural requirements must apply in all cases. The applicants also submit that procedural fairness is in issue when a hearing is conducted in a "rush", thus denying a party a meaningful opportunity to test evidence which may have an impact upon them. In support, they rely on Haydon v. Canada (Attorney General), [2003] F.C.J. No. 957 (T.D.)(QL).
[21] At the hearing of this matter, the applicants also stressed that section 7 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA") excludes the classification level system from collective bargaining, reserving to the employer the right to classify positions. The applicants argued, therefore, that since classification grievances do not involve the application of a collective agreement, there is no access to an independent third party adjudicator, such as the Public Service Staff Relations Board, and that this factor should be taken into account in determining the scope of fairness that is required in the classification grievance process.
[22] The applicants further argue that the Deputy Head's nominee's decision was unfair as there existed "organizational bias" on the part of the Committee. Such bias, according to the applicants, originates from the Committee's apparent belief that if their grievances were allowed, they would be classified at the same group and level as their superiors, and that such classification cannot occur. The applicants point to the fact that the organization chart of the IRB Adjudication Section was brought to their attention by the Chair of the Committee during the course of their presentation as demonstrating the importance of this "unwritten principle" for the Committee. The applicants argue that this is an irrelevant consideration and that the Committee erred in relying on it.
RESPONDENT'S SUBMISSIONS
[23] The respondent submits that having regard to the relevant jurisprudence, the applicants in the present case were only entitled to a minimum level of fairness. They were entitled to know the case against them and have an opportunity to make representations in response and to be informed of the decision: Chong I, supra, and Chong II, supra. Further, the respondent argues that administrative bodies have the authority to make their own procedures, and are "masters in their own house": Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560.
[24] The respondent argues that procedural fairness was not denied to the applicants and the Committee in this case followed its own procedural guidelines, as set out in Chapter 4 of the Treasury Board Manual, which were in line with the scope of fairness required in this administrative setting.
[25] The respondent also submits that the information the Committee obtained from management, related to the fact that the Regional Directors spend 25% of their time conducting adjudications, was irrelevant to the decision of the Committee and was not a basis for the decision. The respondent, therefore, argues that the Committee was under no obligation to inform the applicants of this information and allow them an opportunity to respond to it: Hale, supra. Further, the organizational chart of the IRB was not a new issue and the introduction of the chart, or the manner in which it was raised by the Committee, is not relevant, as this evidence was well known to the applicants and addressed by them at the hearing and in writing.
[26] The respondent submits that the applicants' interests were well represented at the Committee hearing. Two union representatives, as well as 8 of the 27 grievors were present. The respondent describes the applicants' argument regarding the lack of simultaneous translation of the hearing or video conferencing of the hearing as "nothing more than a bald allegation of unfairness". The respondent submits that the Committee members were bilingual, understood all the submissions being made to them and could converse with the party making submissions. The respondent points out that since this was not an adversarial hearing, such as a trial or adjudication, the grievors were simply entitled to make submissions and answer any questions that the Committee posed. The process did not call for the testing of evidence on cross examination and then presenting reply evidence.
[27] The respondent argues that there is no affidavit evidence from those grievors who did not attend the hearing, stating that there were important issues that were not raised by those who attended, and therefore it is reasonable to assume that they chose not to participate at the hearing because they were satisfied with representation from their two union representatives and eight colleagues who attended the hearing.
ISSUES
[28] 1. Did the Committee breach any principle of procedural fairness by denying the applicants full and meaningful participation at the hearing?
2. Did the Committee demonstrate "organizational bias" in its decision?
ANALYSIS
[29] The legal and institutional framework from which the current situation arises can be explained as follows. The Financial Administration Act, R.S.C. 1985, c. F-11, grants the Treasury Board jurisdiction concerning personnel management in the Public Service of Canada, including the classification of job positions of employees in the public service (see: subsections 7(1) and 11(2)(c) of that Act). Pursuant to subsection 5(4) of this Act, the Treasury Board has the authority to determine its own rules and procedures:
| 5 (4) Subject to this Act and any directions of the Governor in Council, the Treasury Board may determine its own rules and procedures.
|
|
5 (4) Le Conseil du Trésor établit son règlement intérieur sous réserve des autres dispositions de la présente loi et des instructions du gouverneur en conseil.
|
Pursuant to this power, the Treasury Board created the Treasury Board Manual in effect as of
June 1, 1994, Chapter 4 of which is entitled "Classification Grievance Procedure".
[30] In addition to the provisions of the Financial Administration Act that provide for the Treasury Board's powers, section 91 of the PSSRA gives employees in the public service the right to present grievances dealing with matters that affect the terms and conditions of their employment. The Treasury Board Manual, Chapter 4 outlines the procedures to be followed in initiating and determining a classification grievance. Employees cannot take their classification grievances to third party adjudication pursuant to section 92 of the PSSRA, as the classification level of their positions is not a matter arising out of the interpretation or application of a collective agreement. The Deputy Head's Nominee's decision on a classification grievance is final and binding for all purposes under the PSSRA, pursuant to subsection 96(3) of that Act.
[31] It is well-established that the duty of fairness applies to the classification grievance process and that the decision of the Deputy Head's nominee, adopting a recommendation of the
Committee, may be set aside by the court because the Committee failed to provide the grievor with a fair hearing: Chong II, supra, Hale, supra, and Bulat v. Canada (Treasury Board), [2000] F.C.J. No. 148 (C.A.)(QL). It has also been established that the content of the duty of fairness, given the nature of the classification grievance process and the nature of the interests involved, is located "somewhere in the lower zone of the spectrum": Chong II, supra, at paragraph 12.
[32] Furthermore, pursuant to Bulat, supra, and Chong II, a grievor should have an adequate opportunity to respond to information or an issue which the Committee regards as central to the disposition of the grievance, where the issue is one that the grievor did not realize or could not reasonably have been expected to anticipate would be in dispute.
[33] The respondent has emphasized that a classification grievance procedure is an administrative proceeding, as opposed to judicial or quasi-judicial one. The respondent argues that the proceeding is non-adversarial, in that the rights or interests of the grievors are not in jeopardy, as they do not have the right to be paid more for their work than the employer deems it to be worth: Chong I, supra. These factors, according to the respondent, point to a lower level of fairness than is required in the Committee hearing process.
[34] The Treasury Board Manual states the following guidelines applicable to the areas of contention in the present case in regards to Committee hearings:
II. THE EMPLOYEE'S RESPONSIBILITY
...
B. CHOICE OF REPRESENTATION
1. The employee, his or her representative, or both, have the right to be heard; that is, the right to state their views on the classification of the position being grieved.
...
C. PLACE WHERE A GRIEVANCE IS HEARD
1. Classification grievance committee meetings will normally be held at the departmental headquarters. The employer will not assume any liability for expenses incurred by a grievor unless specifically provided for in a collective agreement. An employee who wishes to be present at the grievance hearing is responsible for his or her expenses and must make arrangements for leave from his or her place of work.
...
V. CLASSIFICATION GRIEVANCE COMMITTEE
A. MANDATE
1. 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. It must review and analyze all information presented in a gender neutral way. The classification recommended to the deputy head or nominee must be fair, equitable and consistent with the classification principles.
...
F. COMMITTEE PROCEDURE
1. The classification grievance process is not intended to be an adversarial system; it provides for a meeting to be convened during which information will be presented and sought, allowing committee members to make a recommendation to the deputy head or nominee.
...
3. The chairperson must clearly understand the substance and all the details of the grievance including details of the position being grieved to provide precise and first hand explanations and information to the committee members with respect to departmental relativities. The chairperson is responsible for controlling the conduct of the meeting.
G. PRESENTATION BY THE GRIEVOR AND/OR HIS OR HER REPRESENTATIVE
1. The grievor, his or her representative, or both, shall be given the opportunity to make a presentation (in person or in writing) to the grievance committee before a recommendation is made with respect to classifying the grieved position. Once that presentation is completed, they must withdraw from the meeting.
H. MANAGEMENT INFORMATION
1. A management representative familiar with the work of the grieved position should be available to respond to questions the committee members may have with respect to the position. The management representative is not permitted to argue for or against the decision which led to the grievance, attempt to influence the committee members, participate in the committee deliberations or be present when the grievor, his or her representative or both, make a presentation to the committee.
...
[35] In Hale, supra, Justice Reed stated the following regarding the declaration in the Treasury Board Manual, that the classification grievance process is "non-adversarial", at paragraph 18:
Counsel for the applicant argues that whether or not the Treasury Board Manual describes the grievance procedure as "non-adversarial" is not significant. The process does, in fact, involve the resolution of a dispute concerning certain facts and the conclusions to be drawn therefrom. It is a situation in which the employee is taking one position and "management" or the "employer" is taking another. The employee's union representative comes before the committee, in much the same role he or she fulfils in other grievance procedures, to argue on behalf of the employee. I note that the Treasury Board Manual, itself describes the objective of the grievance procedure as being to provide "a redress process for employees who are dissatisfied with the classification of the duties they perform as assigned by the Employer" (emphasis added). I cannot accept that Treasury Board's characterization of the process as non-adversarial can be used as a ground for justifying the Committee's non-disclosure to the applicant. It is important to look at the substance of the dispute and the process, not at how one party, or those who established that process characterize it. There is nothing in the procedure established by Treasury Board that prevents the grievance committees from according employees the type of disclosure that the applicant seeks and from allowing him an opportunity to respond.
[36] Moreover, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada confirmed that the duty of procedural fairness is flexible and depends on an appreciation of the context of the particular statute and the rights or interests affected by the decision. As for the participation of an individual affected by a decision, the Supreme Court held that an individual must have a meaningful opportunity to fully and fairly present his or her case. This is the central question in determining whether the duty of fairness was met in a given set of circumstances.
[37] In order to assist in determining the content of the duty of fairness in a particular administrative setting, Baker, supra, set out a non-exhaustive list of five factors to consider, namely:
(1) the nature of the decision being made and the process followed in making it, how closely it resembles the judicial process should indicate how much of those governing principles should be imported into the administrative process;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
[38] In Prassad, supra, Justice Sopinka for the Supreme Court of Canada emphasized that administrative tribunals must, as a general rule, be viewed as "masters" of their own procedure. He stated as follows at pages 568-9:
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.
[39] In my opinion, the applicants have raised persuasive arguments that the Committee hearing was not conducted in a manner that afforded them a full and fair opportunity to present their case. While the scope of the duty of fairness in this particular administrative setting is on the "lower end of the spectrum", given that the Committee procedure is not intended to be quasi-judicial in nature, but rather in the nature of information gathering, and that a classification grievance involves a dispute over a requested privilege, that is, a request for greater compensation rather than a proceeding involving the revocation of a right or interest, I am persuaded that certain elements of the hearing were not conducted pursuant to the principles of procedural fairness. Justice Reed in Hale, supra, emphasized that it is important to look at the substance of the dispute and the process involved, rather than focus on how one party characterizes it. Having in mind all five "Baker" factors, I turn now to each alleged breach of procedural fairness.
Lack of Simultaneous Translation
[40] The Treasury Board Manual is silent as to any specific procedure that should be followed in respect to translation of the Committee hearing into either official language. In light of the legislative scheme which is meant to provide for an effective and fair redress mechanism, the nature of the decision being made, as one requiring in-depth knowledge of the position being grieved and other benchmark positions to which it is compared, the process followed by the agency itself, in that the choice of Committee procedure contains no guidance as to the use of official languages and that the Committee's classification decision involves a medium level of impact on the applicants' interests, in that this decision affects the applicants' livelihoods, but does not entail a loss of their employment positions, I find that the Committee erred in not ensuring that some form of translation services were provided in the proceeding.
[41] The rules of procedural fairness exist to ensure, inter alia, that individuals have a chance for meaningful participation in an administrative process that affects their rights, privileges or interests. The refusal to provide translation services in the circumstances of this case diminished the ability of the applicants, and in particular the applicant, Ms. Lasowski, to fully participate in the hearing. I note, as did the applicants' counsel throughout the hearing of this matter, that the applicants' evidence in regards to the hearing is uncontradicted, as the respondent has not filed any affidavits in this proceeding.
[42] The applicants were aware that some of the participants to the hearing, including one of their union representatives, were not bilingual. Ms. Lasowski describes the situation as follows at paragraphs 16-17 of her affidavit:
16. Only some of the Applicants herein are fully bilingual. Many of the Applicants from Ontario speak no French and one of the union representatives who participated in the hearing, Maurice Simard, does not speak English. Prior to the hearing, the Applicants requested simultaneous translation of the discussions which took place in the course of the hearing. This request was denied. Because of this denial, the Applicants were prohibited from participating fully and fairly in the hearing.
17. Further, during the hearing, the Committee members spoke interchangeably in French and English as did the participants. However, the Committee members did not translate what was being said into the other language. Nor did the Committee members even inquire into whether all the participants fully understood the proceedings. There were several instances where I was personally unable to understand questions and answers which arose during the course of the presentation because the communication was in French.
[43] While it is true that pursuant to the Treasury Board Manual, the applicants had the choice of having a representative speak for them, or of speaking on their own behalf, or both, and that the applicants must have known prior to the hearing that one of their union representatives would only make representations in the French language, in my view, such considerations do not override the Committee's duty to provide a fair hearing, so that the grievors who chose to participate could do so in a meaningful manner. Applicants who present a group grievance for several individuals, some of whom speak only one of the official languages, should not be prejudiced by this factor, and any individual grievor should not be dissuaded from attending the hearing, due to the possibility that there will not be translation from one official language to another.
[44] Part V, section F of the Treasury Board Manual provides that the Chairperson of the Committee is responsible for controlling the meeting, and in my view, a reasonable exercise of that control is to ensure that translation services are available to grievors who present a group grievance and request such accommodation. I leave open the question of who would bear the costs of translation services. As the Treasury Board Manual stipulates that grievors are to bear their own costs of attending the hearing, I do not think it unreasonable for those involved in a group grievance to bear the costs of simultaneous translation. I should note that in the situation of an individual grievance, it would be expected that a grievor and/or his representative would present their case in either one of the official languages and therefore translation services would not be required in such a situation, given that the grievor and/or her representative would have a full and fair opportunity to participate in the hearing in the official language of their choice.
Time Constraints Placed on Hearing
[45] The respondent has not filed any evidence to contradict the applicants' evidence of certain time constraints that were placed upon their presentation before the Committee. The respondent also has not cross-examined Ms. Lasowski on her affidavit filed in this proceeding. Therefore, I am satisfied that the affidavit of Ms. Lasowski represents an accurate account of what occurred at the hearing. In fact, since there is no transcript of the hearing, it is the only account. From this account, it appears that she and the other grievors present were caught by surprise by the time limits imposed by the Committee and that the presentation of their materials had to be altered and cut short.
[46] While generally, in matters such as adjournments and the conduct of the hearing, an administrative tribunal will be the "master" of its own procedure, and this will not be interfered with by the court, I find that the time constraints cited by Ms. Lasowski in her affidavit, on a cumulative basis, appear to have impeded the applicants' ability to fairly and fully present their case.
[47] Ms. Lasowski states as follows at paragraphs 14 and 15 of her affidavit:
14. Because we only became aware on the day of the hearing that it would not commence immediately at 9:30 a.m. and that it would stop at 2:00 p.m., the Applicants were not provided with an opportunity to adjust their arguments accordingly or even present the full arguments which they believed their grievances warranted. In fact, I received the impression from the Chairperson, Mr. Chapman, that he was hurrying to complete the process. For example, at one point in my presentation, I was specifically asked how much longer I would be.
15. Because of these factors, I rushed through the latter portion of my oral presentation, and was only able to highlight certain of the arguments I wished to advance. Other arguments were simply not made.
[48] In my view, the Haydon, supra, decision relied on by the applicants is not directly applicable, as that case dealt with a different administrative setting where relevant, important evidence had been withheld from one party and then an adjournment refused. However, that case does demonstrate, generally, that procedural fairness may require, depending on the circumstances, the nature of the process and decision to be made, that a hearing not be held in a rushed manner.
Failure to Provide Video or Teleconferencing of Committee Hearing
[49] The respondent has not filed any evidence to explain why it had agreed to provide teleconferencing, at the costs of the applicants, when the hearing was first scheduled to proceed in July 2002, and then denied it for the rescheduled date. This lack of explanation is troubling.
[50] The Treasury Board Manual, Part II, section C "Where a Grievance is Heard" reproduced above, sets out that the Committee hearing is normally to be held at National Headquarters and that attendance at a hearing is at an employee's own expense, unless otherwise provided in the collective agreement. The applicants have not referred to any provision in their collective agreement that modifies this general practice. As stated in the Treasury Board Manual:
...An employee responsible for his or her expenses and must make arrangements for leave from his or her place of work.
[51] In this case, the applicants offered to pay for the cost of a teleconference or video-conference to allow for the participation of those among their number who would be unable otherwise to participate. That offer was apparently accepted, when the applicants' hearing was scheduled for July 2002. An administrative decision-maker, such as the Committee in this case, does not operate in a vacuum, and the applicants deserved some sort of explanation as to why a conferencing medium was not provided at this rescheduled date. Although the provision of such services would not normally be required for hearings of this nature, in these circumstances, particularly the prior acceptance, I conclude that procedural fairness was denied in this realm as well.
Management's Evidence Not Provided to Applicants
[52] In my opinion, the Committee should have given the applicants an opportunity to review and respond to the information provided by management. The description and nature of the Regional Director position was central to the Committee's final decision to recommend that the applicants' position not be reclassified.
[53] Part V: Classification Grievance Procedure, section H "Management Information" sets out that a representative of management is to provide responses to questions of the committee regarding the grieved position. Management is precluded from advocating for a particular interpretation of the grieved position and may not attempt to persuade Committee members. Management's role is restricted to only providing information.
[54] Pursuant to Bulat, supra, and Chong II, a grievor in the classification grievance process should have an adequate opportunity to respond to information or an issue which the Committee regards as fundamental to the disposition of the grievance, where the issue is one that the grievor did not realize or could not reasonably have been expected to anticipate would be in dispute.
[55] Was the information provided by management, in regards to the applicants' supervisors, the Regional Directors, spending approximately 25% of their time conducting hearings, fundamental to the disposition of the grievance? In my view, in light of the uncontradicted evidence in this case, it was. The applicant Lasowski attests that the applicants dispute this fact, and that the Regional Directors do not spend 25% of their time conducting hearings. The nature of the work completed by the Regional Directors was clearly very important to the Committee's ultimate recommendation.
Committee's Recommendation failed to address Organizational Bias
[56] At the hearing of this matter, the applicants emphasized that the reasons for the decision under review, namely the Committee's report, fail to provide any analysis or comment on their submissions related to the alleged unwritten classification principle that a subordinate and superior can never be classified at the same group and level.
[57] The Committee did not address the applicants representations on this issue other than to state that the organizational context of positions had always been an "integral part" of the PM occupational group classification process and could not be ignored. This in no way provides an answer to the heart of the applicants' grievance, namely, that the notion that two positions within an organization that are subordinate and superior to each other, from an organizational standpoint, cannot be classified at the same level, should not be applied as a binding rule within the classification grievance process, and particularly, should not apply to their situation. While the Committee contrasted the applicants' position with the Regional Directors' position, it did not address the applicants' challenge to the analytical framework underpinning such contrast.
[58] Furthermore, the Committee also concluded, after reviewing the applicants' information concerning the functions and duties contained in work descriptions belonging to other organizations, that there were "substantial differences" in the mandate, targeted clientele, organizational structure and "work engineering" of each organization that contributed to the evaluation of such other positions. There is no further elaboration as to what exactly the "substantial differences" were with the bench-mark positions put forth by the applicants, as compared to their own job description. In my view, the Committee's report should have included an analysis setting out the differences between the grieved position and the suggested bench-mark positions. In this sense, the reasons for the decision under review are inadequate, and another component of procedural fairness was breached.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the decision of the Deputy Head's Nominee, dated April 2, 2003 is set aside and the applicants' grievance is remitted to a different Classification Grievance Committee for a new hearing and recommendation, in accordance with the reasons of this Court. Costs to the applicants.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-700-03
STYLE OF CAUSE: DENISE LAPOINTE ET AL AND
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
as represented by TREASURY BOARD
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 12, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: February 18, 2004
APPEARANCES:
Andrew Raven FOR THE APPLICANTS
John Jaworski FOR THE RESPONDENT
SOLICITORS OF RECORD:
ANDREW RAVEN FOR THE APPLICANTS
Raven, Allen, Cameron & Ballantyne
Barristers & Solicitors
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario