Date: 20040227
Docket: T-1659-01
Citation: 2004 FC 300
OTTAWA, ONTARIO, FEBRUARY 27, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
GRAHAM F. JARVIS, MICHEL J.M.E. BROUILLETTE,
JEAN-PIERRE BRUNELLE, ROBERT DELISLE,
RAYMOND DIOTTE, FRANÇOIS T. DUFRESNE,
RÉJEAN DUPUIS, CLAUDE FOISY,
MARCEL FOURNIER, ANDRÉ GAGNÉ,
ROGER GASPÉ, BENOÎT MONTPETIT,
JEAN-PIERRE NAUD, BERNARD PAGÉ,
DANIEL SIMON, NORMAN TATLOCK,
LOUISE TREMBLAY
Applicants
- and -
HER MAJESTY THE QUEEN, REPRESENTED BY
THE TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants work at Industry Canada as compliance officers (weights and measures division) or facilities officers (electricity and gas division). The applicants filed grievances claiming inter alia that amendments or additions to their current job descriptions should be made by the employer. Clause M-32.01 of the collective agreement provides:
M-32.01 Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his or her position, including the classification level and, where applicable, the point rating allotted by factor to his or her position, and an organization chart depicting the position's place in the organization.
[2] In accordance with section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the Act), the applicants' grievances were eventually referred to adjudication. The case was heard by Jean-Pierre Tessier, a member of the Public Service Staff Relations Board (the adjudicator). He allowed the grievances in part and inter alia ruled that additions should be made to the job descriptions to cover physical effort, health and safety, as well as occasional or close collaboration, as the case might be, with other employees (laboratory). Consequently, the adjudicator directed the employer to give the employees in question a complete description (to include wording similar to that which he specified in his decision), and he reserved jurisdiction to determine the exact wording in the event of disagreement.
[3] By the application for judicial review at bar, the applicants are now asking the Court to quash the aforementioned decision and refer the matter to adjudication in accordance with the directions of the Court. The applicants complain that certain duties which they say they perform (such as calibration and certification of test cars, legal training and on-the-spot training, the function of expert witnesses and re-inspection) were not added to the job descriptions or were improperly described. Without going over each of the arguments made by the applicants here, they essentially alleged that the adjudicator did not take into account various admissions by the employer's witnesses (including André Lauzon and Robert Martineau), confused the evidence (Graham Jarvis' grievance), incorrectly reported or altered testimony (in particular that of Michel Brouillette and Benoît Montpetit) or ignored relevant evidence (such as the testimony of André Gagné and Jean-Pierre Naud) or that the decision was in some other way contrary to the documentary evidence (Exhibits F-12, S-12 and S-13).
[4] For the reasons that follow, the Court has decided to dismiss this application.
[5] First, I do not think that a mere failure to mention certain evidence in the decision constitutes a breach of the rules of natural justice or procedural fairness. To begin with, the decision allows both the parties and the Court to see clearly what principal points in the evidence were considered and accepted by the adjudicator. Second, there is no legal obligation to set out in a tribunal's decision every point of evidence, all the questions mentioned by the parties or all the conclusions which led to the decision (Scheuneman v. Canada (Attorney General), [1999] F.C.J. No. 1759, at paragraph 22 (F.C.T.D.) (QL); (1999), 176 F.T.R. 59). Having said that, although the analysis of the evidence and the parties' arguments to be found in the decision is very brief - which is certainly open to criticism, considering that there were eight days of hearing here - the adjudicator's reasoning is clearly expressed. Finally, his decision is in all respects consistent with section 83 of the Regulations and Rules of Procedure of the P.S.S.R.B. (1993), SOR/93-348, which reads as follows:
83. The decision of an adjudicator or a board of adjudication shall contain
(a) a summary of the grievance;
(b) a summary of the representations of the parties; and
(c) the reasons for the decision.
[6] Secondly, it was admitted by the parties that determining whether the applicants' current job descriptions are complete or incomplete is a decision of a factual nature that will be governed exclusively by the adjudicator's assessment of all the evidence in the record. Paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, indicates the circumstances in which this Court should intervene regarding findings of fact:
| (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal |
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(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : |
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| (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it . . .
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d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose . . .
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[7] It is well settled that once there is evidence supporting the conclusions of fact drawn by the adjudicator, this Court does not have to rule on the assessment of the evidence, despite the fact that it might perhaps have come to a different conclusion. In the case at bar, if we look at the decision, both in terms of the evidence itself and in the context of the provisions of clause M-32.01 of the collective agreement, I feel that the adjudicator made a decision which is reasonably supported overall by the evidence presented, so that the conditions set out in paragraph 18.1(4)(d) of the Federal Courts Act have not been met in the case at bar.
[8] Third, the parties admitted that the applicable standard of review is that of the patently unreasonable decision. I agree with this proposition. The process of assessment undertaken by the adjudicator is highly technical and requires the greatest degree of judicial deference here (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, at 235-36 (S.C.C.); Barry v. Canada (Treasury Board), [1997] F.C.J. No. 1404 (F.C.A.) (QL), (1997), 221 N.R. 237; Piotrowski v. Canada (Canadian Food Inspection Agency), [2003] F.C.J. No. 990, at paragraphs 17-19 (F.C.T.D.) (QL); and Canada (Attorney General) v. King, [2003] F.C.J. No. 777, at paragraph 13 (F.C.T.D.) (QL)).
[9] The employer in fact provided the applicants' job descriptions (Exhibits F-2 and S-1) and the adjudicator proceeded to examine them in accordance with the changes sought by the applicants (exhibits F-8 and S-3). The descriptions provided by the employer consisted of ten or more pages and contained a significant amount of general or specialized information dealing with a host of aspects grouped under the headings of responsibility, skills, effort and working conditions. It is thus unreasonable to require that such a document be exhaustive in nature and have the rigour of a mathematical formula. There is always an element of subjectivity in the choice of information and the listing of current duties described in such a document. In this regard, the adjudicator expressly recognized in his decision that the job description could not fail to mention a duty or particular responsibility which the employee had to perform, but at the same time that did not mean that all possible variations or combinations of duties had to be specified down to the smallest detail. I agree with the adjudicator's general approach. The adjudicator had exclusive responsibility for determining the evidentiary force that should be given to each point in the evidence. Accordingly, it cannot be said here that the adjudicator's findings of fact, even if incorrect, can be described as frivolous or irrational.
[10] Finally, even admitting that the adjudicator may have ignored or confused some points in the evidence, this is not a case in which, even taken as a whole, the isolated errors he may have made create any doubt as to the correctness of his general conclusions (Haji v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1266, at paragraphs 10-14 (F.C.T.D.) (QL). Having said that, the Court should not undertake a microscopic examination of the adjudicator's reasons for a decision (Cole v. Canada (Treasury Board), [1996] F.C.J. No. 364 (F.C.T.D.) (QL)). In the case at bar, the reservations which the Court may have regarding certain secondary aspects of the adjudicator's reasoning do not in this case justify the quashing of all or part of the decision and the reference of the matter back to the adjudicator or to some other adjudicator.
ORDER
THE COURT ORDERS that the applicants' application for judicial review be dismissed with costs.
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1659-01
STYLE OF CAUSE: GRAHAM F. JARVIS ET AL. v. HER MAJESTY THE QUEEN
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER AND ORDER: MARTINEAU J.A.
DATE OF REASONS: FEBRUARY 27, 2004
APPEARANCES:
JAMES CAMERON FOR THE APPLICANTS
JENNIFER CHAMPAGNE FOR THE RESPONDENT
SOLICITORS OF RECORD:
JAMES CAMERON FOR THE APPLICANTS
RAVEN, ALLEN, CAMERON & BALLANTYNE
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA