Docket: T-1533-04
Ottawa, Ontario, this 25th day of May, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicants
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicants, Stan Eksal and Chuck Lovallo, are both employees with the Canada Revenue Agency ("CRA"). Within the CRA scheme of employee classification, their jobs were classified at level 5 within the MG Group. They grieved this classification to the Classification Grievance Committee of Canada Revenue Agency, ("the Committee"), arguing that they should be classified higher - to the MG-06 level. In its report dated July 30, 2004, the Committee concluded that the grieved positions should be classified at the MG-05 level. The Applicants seek judicial review of this decision.
[2] As a preliminary comment, I note that the language of classification is sometimes obtuse and difficult to understand. I have attempted to use the terms - as confusing as they might be to an outside reader - utilized by the parties.
Issues
[3] This application raises two issues:
1. What is the appropriate standard of review?
2. Did the Committee err by ignoring certain of the positions within job number MG-305
that do not manage through more than one supervisor?
Issue #1: What is the appropriate standard of review?
[4] The Applicants and the Respondent provided me with a detailed pragmatic and functional analysis of the standard of review to be applied to the decisions of the Committee. The Applicants argue that the standard should be one of reasonableness simpliciter and the Respondent that it should be patent unreasonableness. In my view, the applicable standard does not need to be established because I am satisfied that, on either standard, the decision should not be overturned.
Issue #2: Did the Committee err?
[5] The Applicants hold positions within the CRA as regional zone managers in the Information Technology Branch ("ITB") of the CRA. Their positions are described as Information Technology Support Managers, MG-606. Persons within the MG-606 positions each manage between 11 and 15 employees directly and operate through one subordinate supervisor. Within the CRA, each job has a descriptive title and number as well as a classification. In the case before me, I am dealing with jobs described as MG-606 (MG-0606 is also used to render this exercise even more confusing) which carry a classification of MG-05, or level 5 within the general heading of Management Group (MG).
[6] It will be useful to describe how the classification is carried out. The positions in question were examined and given ratings for each of a number of "factors and elements". The ratings translate to points which are added up, with the position classified within the CRA on the basis of the total number of points.
[7] In the original classification exercise, the MG-606 position earned 660 points - 20 points shy of the MG-06 level. They grieved to the Committee in respect of two elements in their classifications - Contextual Knowledge and Leadership of Human Resources. The Committee, in its decision, agreed with part of the Applicants' submissions reassessing their point, from 29 to 40 on the Contextual Knowledge element, and so raising the evaluation from a rating of A4 to A5. However, the Committee refused to raise the rating for the Leadership element from 5 to 6 as requested by the Applicants. Ratings within the Leadership element are assessed in "Degrees".
A rating of Degree 5 for this element translates to 125 points and a rating of Degree 6 earns 140 points. The result is that the Applicants remain short of the 680 points for the MG-06 classification by a mere 9 points. A successful grievance to the Committee on the Leadership element would have seen the Applicants win 15 more points (140 instead of 125) and an upward classification to the MG-06 level.
[8] The Applicants' submission to the Committee with respect to Leadership was as follows:
Stan Eksal manages 16 employees through one subordinate supervisor. Charles Lovallo manages 17 employees through one subordinate supervisor. They are both the first step in the grievance process, are excluded and have staffing and budget authorities. They both manage employees who are working in different geographic locations. They meet two Special Considerations. Their counterparts in Pacific region have the same Leadership Responsibilities and manage through subordinate supervisors with 2 Special Considerations. There is no significant difference in the Leadership responsibilities of MG-607, 305 and 606. The proper evaluation of this element is Degree 6.
[9] The Committee's analysis and conclusion on the critical element of Leadership is as follows:
The criteria for Degree 5 includes responsibility for recommending human resources levels; approving work plans; initiating and co-ordinating the work of multi-disciplinary project teams or work groups involving several subordinate supervisors; developing broad priorities and work plans; initiating the creation of alternate ways to accomplish objectives, such as partnerships or teamwork; contributing to new skill development by providing functional direction.
The criteria for Degree 6 includes responsibility for organizing work to achieve multiple results; authorizing human resource levels; setting and approving broad objectives and priorities; approving the creation of alternate ways to accomplish objectives, including partnerships and teamwork; promoting a fair and equitable work environment; promoting a work environment that supports continuous skill development.
Furthermore the Management Reference Tool indicates that the definition for degree 6 is "managing through subordinate supervisors with a special consideration (see p. 20 Respondent's Record) ". The grieved job is responsible for the management of employees directly or through one subordinate supervisor and the Committee recommends at Degree 5.
. . .
As evidenced by a comparison of the job description and the criteria, the grieved job only meets two of the criteria of Degree 6: promoting a fair and equitable work environment; and promoting a work environment that supports continuous development.
Accordingly, the Classification Grievance Committee recommends that the subject job was appropriately assigned Degree 5 with a rating of 125 points and agrees with the existing CRA classification rating.
[10] The basis of the Applicants' argument before me is job 305. They point to evidence that was presented to the Committee showing that seven of the MG-305 positions only have 0 or 1 subordinate supervisors. In the Applicants' view, their positions should be compared to those positions within MG-305 that do not manage through several subordinate supervisors rather than to the job description that requires management through several subordinate supervisors. In other words, once a position was put forward at the MG-06 level that shows 0 or 1 subordinate supervisors, the Committee could not conclude that a criteria for the MG-06 level is "several subordinate supervisors". The Committee did not, in their view, honour the "polar star" principle of job comparability in classification. They submit that the Committee erred just as the Deputy Head's Nominee for Classification Grievances erred in Chong v. Canada (Attorney General) [1995] F.C.J. No. 1600 (F.C.T.D.). I do not agree.
[11] From a review of the organizational chart of the CRA, it can be seen that there are some individuals who hold positions within MG-305 who do not manage through more than one supervisor. However, the Applicants do not disagree that the leadership requirement as set out in the job description for MG-305 is that the incumbents manage through more than one subordinate supervisor. The question is whether the existence of those individuals who do not meet this criterion in job MG-305 means that the Committee must conclude that the stated criterion of managing through more than one supervisor is not a requirement for the position. This is what the Applicants argue should be done. I cannot agree. The anomalies in a large and complex classification structure cannot be the driving force to a fair classification system; this would be akin to classifying to the lowest common denominator rather than to an objective set of criteria set out in established job descriptions.
[12] As noted, the job description for MG-305 requires management through several subordinate supervisors. Those positions within the MG-305 group that do not manage through more than one supervisor should not be given the same level of classification. Bluntly stated, if those individual positions within MG-305 do not manage through more than one subordinate supervisor, they are incorrectly classified at a higher level. The existence of errors within the system should not be relied upon by employees wishing to "ratchet up" their own levels. Should I accept the position of the Applicants, the evident errors within the CRA classification will be compounded and, ultimately, will lead to a complete breakdown of the system. The appropriate comparison, if there is one, should be to the job description for the MG-305 position.
[13] How did the Committee handle the arguments of the Applicants? The Committee did not ignore the arguments of the Applicants. The Committee states as follows:
The union also evidenced job MG-0305, which was responsible for managing through several subordinate supervisors. In point of fact, organization charts presented by the union indicated that many of the positions created against job MG-0305 did not clearly meet the criteria of several subordinate supervisors. Again, these arguments were outside the mandate of the Classification Grievance Committee and need to be addressed through the monitoring activities. It is not within the mandate of the Classification Grievance Committee to "correct" actions not forming part of the immediate grievance action.
[14] The first sentence of this passage indicates that the Committee did review the MG-305 position. It correctly states that the MG-305 position is "responsible for managing through several subordinate positions". That is enough of a difference to establish that the MG-305 position is not comparable to the positions held by the Applicants who acknowledge that they do not manage through more than one subordinate supervisor.
[15] The rest of the paragraph addresses the anomalous positions. In effect, the Committee, as have I, concludes that the classification of these positions is incorrect. The Committee also describes this situation as one of "mandate", stating that it is not within their mandate to correct these erroneous classifications. I would rather that the Committee have worded this thought as a statement that the anomalous positions are irrelevant, given the clear MG-305 job requirement for the Leadership element. Nevertheless, the result is the same; the proper comparison is to the job as set out in the job description and not to those individuals who have somehow managed to obtain a higher classification with lower qualifications.
[16] The Applicants submit that the anomalous positions within MG-305 must be deemed to be correct. They argue that the classification of these positions at MG-06 level is "final and binding" and that the Committee must assume that they are correctly classified. In effect, the Applicants are arguing that the Committee must compound any misclassification within the CRA. This, in my view, is precisely why the comparison must be done to the job description rather than to the anomalies.
[17] The Applicants rely heavily on Chong. In that case, Justice McKeown overturned a classification grievance decision. The decision in question related to the classification of a B.C./Yukon job. The applicants in that case had submitted to the committee an Ontario job description and point rating which they argued was almost identical to the B.C./Yukon job. The committee refused to consider the Ontario job on the basis that it was not within their mandate to judge the value of other positions which were not the subject of a classification grievance. The Court held that "principles of equality and consistency require the two jobs whose job descriptions appear to be the same be classified equally unless there are reasons for treating the two differently". The matter was "referred back to the committee to review the differences between the Ontario position and the B.C./Yukon position".
[18] Unlike in Chong, the Committee, in the case before me, did address the MG-305 job and rejected it as a direct comparison because it requires that the incumbents manage more that one subordinate supervisor. In this case, the Committee did not refuse to consider the MG-305 job. What they declined to do - properly in my view - was to include the positions that did not meet the Leadership standard into that comparison.
[19] In summary, I am satisfied that the decision is not unreasonable. Specifically, the Committee did not reach its conclusion without regard to the evidence. Since this was the sole basis upon which the Applicants founded this application, the application will be dismissed.
ORDER
This Court orders that:
1. The application is dismissed with costs to the Respondent.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: T-1533-04
STYLE OF CAUSE: STAN EKSAL et al v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 10, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: May 25, 2005
APPEARANCES:
Mr. Christopher Rootham FOR APPLICANTS
Mr. Stéphane Hould FOR RESPONDENT
SOLICITORS OF RECORD:
Nelligan O=Brien Payne S.R.L. FOR APPLICANTS
Barristers and Solicitors
Ottawa, Ontario
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario