Date: 20040519
Docket: T-1937-02
Ottawa, Ontario, this 19th day of May, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
THERESA JOHNSON and ADRIENNE BERNACCI
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1] In the summer of 1999, competitions were held for the position of Team Leader, Technical Interpretation Services, with the Department of Finance in Hamilton (AU-03 positions). As a result of the competition, the applicants were appointed to indeterminate AU-03 positions on August 16th, 1999.
[2] On August 29th, 1999, two unsuccessful candidates commenced an appeal before the Appeal Board, alleging that the competition had occurred in a manner contrary to the merit principle. In December 2001, the Appeal Board granted the appeal.
[3] Corrective measures were undertaken by the Public Service Commission (Commission). In July 2002, these measures were also successfully appealed to the Appeal Board. In response, the Commission decided to abandon the competition and to revoke the applicants' AU-03 appointments. By letter dated October 4th, 2002, from the Commission, the applicants were informed that their appointments to the AU-03 positions had been revoked, effective October 21st, 2002.
[4] In the interim, on November 1st, 1999, the Department of National Revenue was replaced by the Canada Customs and Revenue Agency (CCRA), now called the Canada Revenue Agency. The CCRA adopted a new classification system for managerial employees, and informed the applicants in a letter dated October 2001 that their AU-03 positions were being "converted" to MG-05 positions with the newly created Management Group of the CCRA, effective March 31st, 2002.
[5] However, as a consequence of the Commission's October 4th, 2002 decision, the CCRA, by letter from John Kent, Assistant Director GST/HST Rulings, Hamilton, dated October 17th, 2002, informed the applicants that
It is our opinion that the MG5 group and level established by the conversion exercise is directly linked to the original AU3 position since the change was a classification action and not a staffing action. As the appointment to the AU03 position has been revoked, all benefits that accrued through that position, including the conversion to the MG5 group and level, are also revoked.
[6] As result of the Kent decision and the Commission's decision of October 4th, 2002, the applicants find that they occupy the position of PM-03 instead of MG-05. They now seek judicial review of Mr. Kent's decision.
Standard of Review
[7] Pursuant to the Supreme Court's judgement in Dr. Q. v. College of Physicians and Surgeons of British Colombia, [2003] S.C.J. No. 18, there are four factors that must be considered when determining the appropriate standard of review: the presence or absence of a privative clause, the relative expertise of the decision maker and the court, the purposes of the provision in question and the legislation in general and the nature of the legal question.
[8] While a moderate level of deference is suggested by the mixed fact and law nature of the issues in this case, the three remaining factors suggest that a low level of deference should be accorded to Mr. Kent's decision. First, there is no privative clause in the CCRA Act. Second, the general purpose of the legislation and the provisions in question are to resolve disputes between the department and specific individuals. Finally, the department has no greater expertise than the Court with regards to the types of employment issues raised in these proceedings. Therefore, weighing the four factors, the appropriate standard of review is correctness.
Issue
[9] Was the CCRA correct in concluding that the applicants' MG-05 positions should be revoked as a result of the Commission's decision to abandon the AU-03 competition?
Analysis
[10] The CCRA is a statutory creature which has no authority unless assigned it by statute.
The general powers of the agency are set out in sections 30, 53 and 54 of the CCRA Act which provide as follows:
30. (1) The Agency has authority over all matters relating to
(a) general administrative policy in the Agency;
(b) the organization of the Agency;
(c) Agency real property and Agency immovables as defined in section 73; and
(d) personnel management, including the determination of the terms and conditions of employment of persons employed by the Agency
53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.
(2) The Commissioner must exercise the appointment authority under subsection (1) on behalf of the Agency.
54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
(2) No collective agreement may deal with matters governed by the staffing program.
[11] By virtue of these sections, CCRA has been given full authority for its own staffing matters. However, section 100 of the CCRA Act provides that employment appeals commenced before the Act came into force are to be resolved under the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA).
[12] Pursuant to these powers under section 54, the CCRA adopted a Staffing Program. This program does not provide for 'conversions' but it does provide for reclassifications. Section 4.9 provides as follows:
4.9 Promotions Without Selection Process
4.9.1 Promotions following Reclassifications
P4.9.1-1 Promotion following reclassification is the appointment of an employee to their reclassified position.
P4.9.1-2 Authorized Persons may promote employees to their reclassified position without a selection process under certain conditions:
a) The employee meets the staffing requirements/selection criteria; and
b) All identical positions within the same part of the organization are being reclassified; or
c) The position has been reclassified following a classification grievance.
P4.9.1-3 Notwithstanding these conditions, Authorized Persons may choose to run a selection process.
P4.9.1-4 Recourse for promotions following reclassifications is Individual Feedback followed by Decision Review and is available upon request to individuals within the work unit.
[13] Nothing prevented the CCRA from adopting provisions regarding conversion in its Staffing Program, however, it chose not to do so. By contrast, the Treasury Board in Canada (Attorney General) v. Jones, [1978] 2 F.C. 39 (Jones), to which this Court was referred, had enacted regulations which gave it the power to undertake job conversions, namely the Conversion and Post Conversion Pay Regulations, T.B. 669255, dated May 25th, 1967.
[14] What happened to the applicants in this case is best described in the affidavit of April Hoyt dated March 23, 2003 at paras. 10 and 11:
As a result of the creation of the new Agency, the CCRA decided to create and implement a new occupational classification for managerial employees (the "MG Group"). Employees who occupied positions that had been identified for conversion to the MG Group were given Advance Personal Notice of the change.
Both Bernacci and Johnson received Advance Personal Notice. As such, they were advised of the following: that their positions were included in the MG group; the classification level designated for their positions; and the classification ratings for their position. The Advance Personal Notice made clear that the process was a classification action.
...
[15] Not all AU-03 postions were converted to MG-05 positions, but only those that had supervisory duties. In addition, the new MG-05s were given new duties, the most significant being the authority to issue rulings and a new title. They also received a significant pay increase.
[16] While reclassification is not defined in the CCRA Act, it is defined in section 1 of the Public Service Employment Regulations, 2000, S.O.R./2000-80 which states:
"reclassified", in respect of a position, means a change in either or both the occupational group and level of the position as a result of a classification decision other than a classification decision that affects an entire occupational group. (underlining added)
As is obvious from this definition, only a reclassification that involves an entire occupational group and no change in duties could it be considered a conversion. Although CCRA employees no longer fall under the jurisdiction of the PSEA, there is no reason why this definition is not generally applicable to all reclassifications within the public service, including those undertaken by the CCRA.
[17] On the basis of the facts above stated, I find that the applicants in this case did not have their positions 'converted'. The CCRA had no power to convert, but more significantly, the action that took place actually amounts to a reclassification not a conversion. The CCRA used its powers of reclassification under section 4.9 of its Staffing Program, although it chose not to so characterize it. It is well established that a reclassification constitutes an appointment. See: Jones, supra.
[18] The true nature of a staffing action is determined by its effect, not the name that an agency attaches to it. As stated by Le Dain J. in Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489 at paragraphs 12 and 13:
Having regard to the importance of the principle of selection according to merit and the right of appeal under s. 21 of the Public Service Employment Act, I am unable, with great respect, to agree with the premise underlying the judgment of the majority of the Federal Court of Appeal, which I understand to be that a new position in the Public Service calling for an appointment within the meaning of s. 21 cannot be created by a change in the functions of an existing position unless the administration chooses to regard such a change as creating a new position within the meaning of the Act. Such a view would permit the circumvention of the merit principle and the right of appeal.
13 Obviously the administration must have reasonable flexibility to make minor changes in the functions of an existing position in the Public Service which the occupant of the position may be called on to perform, without thereby creating a new position for which an appointment based on selection according to merit must be made. Where, [page502] however, as in the present case, the change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a new selection for the position, a new position within the meaning of the Act is created.
[19] Given that the applicants had been appointed to the MG-05 positions by the time that the Commission decided to abandon the AU-03 competition, the revocation of the AU-03 positions had no effect upon the applicants' employment status. Having appointed the applicants to the MG-05 positions and as a result of it having acquired control over its own staffing matters, the CCRA was no longer bound by the Commission's decision. The decision by the Commission to revoke the AU-03 competition had no effect upon the applicants. The CCRA erred in concluding that it had to give effect to the Commission's revocation by in turn revoking the MG-05 appointments.
[20] Accordingly, this application is accepted. The decision of the CCRA of October 17th, 2002 is set aside. As a result, the applicants retain their positions within the CCRA as MG 05s.
ORDER
THIS COURT ORDERS that:
1. The application is accepted. The decision of the CCRA of October 17th, 2002, signed by John Kent, is set aside.
2. The CCRA is enjoined from taking any follow up action in respect of the applicants as a result of Public Service Commission of Canada Record of Decision 02-10-SRP-87 dated October 1, 2002.
3. CCRA shall take all necessary administrative steps to reinstate the applicants in their MG-05 positions as of March 31, 2002.
4. The applicants shall have their costs in this matter.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1937-02
STYLE OF CAUSE: THERESA JOHNSON and ADRIENNE BERNACCI v.
CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 28, 2004
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
APPEARANCES:
Mr. Christopher Rootham FOR APPLICANTS
Ms. Catherine Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP
Ottawa, Ontario FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT