Date: 20031107
Docket: T-620-02
Citation: 2003 FC 1304
Ottawa, Ontario, November 7, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MARY ARGYRACOUPOULOU, DANYELLE ARSENAULT, JOANNE AUGER BOUDREAU, LYNE BÉDARD, PAULINE BERNARD, LOUISELLE BERGERON, CHRISTIANE BERNIER, GÉRALD BIBEAULT, MONIQUE BOITEAU, SYLVAIN BORDUAS, JOSÉE BOUCHARD, JOHANNE BOUCHER, MARTINE BOULANGER, MARTIN BOULARD, CHRISTIANE BRIEN, LYNE BRISSON, MYCHEL BRODEUR, JOHANNE CARLOS, LOUISE CHIASSON, JOVETTE COTÉ, HUGUETTE COULOMBE, SYLVIE COURNOYER, MONIQUE COUTU, JOCELYNE DAIGLE, MAURICE DEMERS, CLAUDE DUFRESNE, ROGER FERGUSON, SUZANNE FRAPPIER, VALÉRIE GINGRAS, JOHANNE GOBEIL, ISABELLE GODIN, MONIQUE GOSSELIN, CHANTAL HAMEL, DIANE JACQUES, LORRAINE JOBIN, ANDRÉ JULIEN, FRANCINE LACOSTE, YOLANDE LAFRENIÈRE, NICOLE LANDRY, NATHALIE LAPOINTE, CAROLE LAROUCHE, CAROLLE LAVOIE, MARC-ANDRÉ LAVOIE, MARCEL LAVOIE, HÉLÈNE LEMIEUX, LUCIE LEMIEUX, DENYSE LEPAGE, DIANE LESIEUR, LARRY LEWIS, LUCETTE MARCOUILLER, PIERRE MARCOUX, DANIELLE MATTE, LISE MÉNARD, YOLANDE MINCHILLO, MAURICE MORIN, MARIE MYETTE, LOUISE PHILIPPON, DORIS RANCOURT, SYLVIE RANGER, LUC ROULEAU, CLAIRE ROY, JEAN-CLAUDE ROY, ANDRÉE SANTERRE, GILLES SÉVIGNY, RUSSELL TURCOTTE
Applicants
- and -
HER MAJESTY THE QUEEN,
AS REPRESENTED BY THE TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by the deputy head's nominee responsible for classification grievances in the Department of Human Resources Development Canada ("the nominee") on March 20, 2002. By her decision the nominee approved the recommendation of the Classification Grievance Committee that the position of Collection Officer be classified at the PM-01 group and level.
[2] The applicants argued that the Classification Grievance Committee ("the Committee") infringed the rules of procedural fairness and ignored the evidence brought to its attention regarding the direct comparison between the position description of the Collection Officer position (PM-02) at Revenue Canada ("the Revenue Canada PM-02 position") with the Collection Officer position (PM-01) at the Department of Human Resources Development Canada ("the HRDC PM-01 position"). The applicants maintained that by ignoring this evidence the Committee based its recommendation on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Facts
[3] The respondent is generally in agreement with the facts in the case at bar as presented in paragraphs 10 to 13 of the applicants' memorandum of fact and law. I reproduce those paragraphs in full:
[TRANSLATION]
10. The applicants' grievance concerns the position of Collection Officer (PM-01). Following a position review by the Department, the applicants filed grievances between March 26 and June 15, 1999, challenging the evaluation and asking that the position be reclassified upward.
Affidavit by Pierre Marleau, paragraph 2, applicants' record, tab 3, p. 72.
Initial grievance, affidavit of Pierre Marleau, Exhibit A, applicants' record, tab 3a, pp. 75 and 76.
11. The Classification Grievance Committee initially met to hear the grievance on January 22, 2002.
12. On or about March 22, 2002, the report of the Classification Grievance Committee was approved by Gina Rallis, nominee of the deputy head responsible for classification grievances.
Affidavit of Pierre Marleau, paragraph 5, applicants' record, tab 3, p. 73.
13. On April 18, 2002, the applicants filed an application for judicial review to quash the report of the Classification Grievance Committee on the ground that the Classification Grievance Committee had erred in not addressing the question of a direct comparison between the position description for the Collection Officer position (HRDC) PM-01 and the position of Collection Officer (Revenue Canada) PM-02.
Affidavit of Pierre Marleau, paragraph 7, applicants' record, tab 3, p. 73.
Notice of application (Docket No. T-620-02), affidavit of Pierre Marleau, Exhibit F, applicants' record, tab 3, pp. 57 to 243.
Affidavit of Pierre Marleau, paragraph 6, applicants' record, tab 3, p. 73.
[4] That is where the agreement between the parties on the statement of facts ends. In the applicants' opinion, the Committee refused to consider the comparison between the two positions, preferring to make comparisons with benchmark positions such as auditor, source deductions, supervisor, reception, and collection contact officer. The respondent, for its part, maintained that the Committee considered inter alia the comparison with the Revenue Canada PM-02 position and made a decision based on an evaluation of the evidentiary value of all position descriptions at its disposal, including the Revenue Canada PM-02 position.
Act and procedures related to processing of classification grievance
[5] The parties also expressed their agreement that the Financial Administration Act, R.S.C. 1985, c. F-11 (the "Act") applies to the case at bar, and to the procedures for classification grievance processing set out in chapter 4 of the Treasury Board Manual. The prescribed procedures are set out in paragraphs 4 to 9 of the applicants' memorandum of fact and law. In my opinion, those paragraphs, which I reproduce in full, accurately reflect the sections of the Act and procedures applicable to the case at bar.
[TRANSLATION]
4. Under the Financial Administration Act, R.S.C. 1985, c. F-11, as amended, the Treasury Board has the power to administer the organization of the federal Public Service, including responsibility for classifying positions within the Public Service.
Financial Administration Act, R.S.C. 1985, c. F-11, as amended, ss. 5(4), 7(1) and 11(2)(c).
5. The procedures dealing with processing a classification grievance are set out in chapter 4 of the Treasury Board Manual. This Manual is prepared by the Treasury Board and represents its policies, rules and procedures relating to administration of the Public Service, including the classification of positions and employees in the Public Service. Additionally, the Treasury Board has prepared a document entitled Classification Grievance Procedure which accompanies the Treasury Board Manual.
Treasury Board Manual, chapter 4, Exhibit 2, respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
Classification Grievance Procedure, Treasury Board, Exhibit 1 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
6. According to the Manual, once a grievance is filed the case is referred to a committee of three persons. After a hearing the committee submits to the deputy head or a nominee a recommendation on classification of the position which is the subject of the grievance.
7. At the hearing the employee in question may be represented by his or her bargaining agent or someone else. The Treasury Board Manual describes the part the employee and/or his or her representative must play as follows:
Employees and/or their representative must be given the opportunity to appear before the committee and state their views on the classification of the position. They must withdraw from the meeting once their presentation is complete.
Treasury Board Manual, chapter 4, p. 4, Exhibit 2 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002
8. The Classification Grievance Committee may also ask the management representative to provide information on the duties and responsibilities assigned to the position. Additionally, the Classification Grievance Committee may call on other persons to obtain further information and/or it may visit the work site.
Treasury Board Manual, chapter 4, p. 4, Exhibit 2 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
Classification Grievance Settlement Procedures, Treasury Board, p. 13, Exhibit 1 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
9. The Committee must consider all the information provided and then submit to the deputy head or a nominee a recommendation on classification of the position which is the subject of the grievance. A report is submitted to the deputy head or a nominee indicating the recommendation of the Classification Grievances Committee. The deputy head and/or the nominee then confirms the recommendation of the Classification Grievances Committee or makes a new decision. The decision of the deputy head and/or the nominee is final and binding.
Treasury Board Manual, chapter 4, p. 7, Exhibit 2 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
Treasury Board Procedures on Grievances and Classification, Treasury Board, p. 13, Exhibit 1 of respondent's affidavit (affidavit of Line Morin-Smith), sworn to on June 19, 2002.
[6] Points at issue
1. Was the decision of the Classification Grievance Committee made contrary to the rules of procedural fairness?
2. Was the decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Committee?
Analysis
[7] In the applicants' submission, the Committee failed in its duty of procedural fairness since it did not inform the applicants of its intention to ignore the comparison with the Revenue Canada PM-02 position, which entails duties almost identical with the HRDC PM-01 position. The applicants submitted that this comparison formed an essential part of their argument.
[8] Before dealing with this argument made by the applicants, it is worth considering the procedural fairness rule that applies to the Committee. This question was discussed by Décary J.A. in Chong v. Canada, [1999] F.C.J. No. 176, on line: QL, docket No. A-453-97 (F.C.A.). The duty to act fairly varies with the nature of the disputed decision. After considering the following factors, in particular (i) the effect of the decision; (ii) the nature of the decision; (iii) the panel's mandate; (iv) the possibility that errors could be corrected by a subsequent remedy; and (v) the fact that the procedure followed is subject to rules laid down by law, Décary J.A. indicated that the standard of procedural fairness that applied to the Grievance Committee was somewhere in the lower zone of the spectrum. The learned judge also held that, regardless of the level of procedural fairness that applied, there were essential requirements in the duty of procedural fairness. One such requirement was that the Committee had a duty to give the employee information which he was never given, so he could have an opportunity to make his arguments.
[9] In the applicants' submission, the Committee's refusal to inform them that it was not going to take the comparison into account had the effect that the applicants had no opportunity to present other arguments which they were in a position to put forward. The applicants argued that in the case at bar the circumstances were the same as in Chong, supra. Accordingly, the Committee unilaterally undermined the applicants' essential argument without giving them an opportunity to present another argument or to counter the reasons the Committee had for not taking the comparison into account. By acting in this way, the applicants maintained, the Committee infringed an essential requirement of the duty of procedural fairness. Consequently, the nominee's decision, based on the Committee's recommendation, was made in contravention of the rules governing procedural fairness.
[10] First, the circumstances in the case at bar are not the same as in Chong, supra. In Chong, the employer unilaterally downgraded the position which was the subject of the comparison and did so without informing the applicant. At paragraph 14 of his reasons, Décary J.A. wrote:
... To the extent that the downgrading of the Ontario Region position was triggered by the appellants' grievance procedures and resulted for all practical purposes in the dismissal of their grievances, they should have been informed that the basis of the comparison they were seeking to establish had been dramatically altered and they should have been offered the opportunity to pursue the other arguments available to them.
Clearly the Court is not dealing with the same circumstances in the case at bar.
[11] It is wrong to say that the Committee did not consider the comparison between the position description of the HRDC PM-01 position and the Revenue Canada PM-02 position. The Committee even specified that similarities existed between the two positions. In its report, the Committee indicated the following:
[TRANSLATION]
When examining the position description which is the subject of the grievance, the members of the Committee noted that there are in fact similarities between the principal activities in the position and those of a Revenue Canada Collection Officer. Proceeding with their analysis, they also noted that the principal activities in these two positions have just as obvious resemblances with the duties of P.R. No. 25, Collection Contact Officers (PM group classification standard), which are as follows . . .
[12] I am essentially in agreement with the respondent's arguments. The Committee never unilaterally undermined the employees' essential argument. The Committee took into account inter alia the comparison with the Revenue Canada PM-02 position and made a decision based on an evaluation of the evidentiary value of all the position descriptions at its disposal.
[13] As the respondent noted, the "Classification Grievance Procedure", revised on June 1, 1994, provides the following:
This standard describes the plans to be used in classifying and evaluating positions in the Programme Administration Group.
. . . . .
The position description is studied to ensure understanding of the position as a whole and of each factor. The relation of the position being rated to positions above and below it in the organization is also studied.
. . . . .
The ultimate objective of job evaluation is to determine the relative value of positions in each occupational group so that employees in the positions may be paid at rates consistent with the relationship indicated. Positions that fall within a designated range of point values will be regarded as of equal difficulty and value and will be allocated to the same level.
[14] The Treasury Board Secretariat Canada Classification Grievance Procedure states the following regarding deliberations of the Committee:
The members will examine all information presented; taking into account the information provided, they will discuss and evaluate the position in question against the appropriate classification standard(s), review all aspects of the classification decision being grieved and attempt to reach a consensus when evaluating the position.
[15] In my opinion, the Committee was entitled to consider benchmark positions in its evaluation. I would even say that it had a duty to do so, as indeed it had a duty to evaluate the Revenue Canada PM-02 position submitted by the applicants, in accordance with the standards and procedures mentioned above.
[16] I do not accept the applicants' argument that the result of the Committee's refusal to inform them that it was not going to take the comparison into account was that the applicants did not have an opportunity to present other arguments which they might have put forward. To begin with, as indicated earlier, it is wrong to say that the Committee did not take the said comparison into account. Secondly, they should have known that in addition to their representations their position would also be evaluated with the classification standard. The applicants had an opportunity to present arguments: they chose not to do so.
[17] The Revenue Canada PM-02 position was not ignored by the Committee. On the contrary, it was considered as well as the benchmark positions discussed in the Committee's decision, and in particular benchmark position No. 25, Collection Contact Officers (PM group classification standard - "benchmark 25"). The Committee evaluated the various comparisons with all the similar positions, including the Revenue Canada PM-02 position, and attached greater evidentiary value to the comparison with benchmark 25 in the classification standard. The Committee was entitled to do this. In my opinion, the Committee observed its duty of procedural fairness in all respects.
[18] Having found that the Committee complied with procedural fairness, I will now consider the second point at issue, namely, was the decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Committee?
[19] It was up to the applicant to prove that the classification was erroneous. I note that no evidence or oral submission was presented to the Committee to the effect that it should or could qualify or exclude certain aspects of the benchmark 25 description.
[20] The applicants submitted that the Committee had clear and unambiguous evidence that the Revenue Canada PM-02 officer position was almost identical with the position in question.
[21] It seems to the Court that the applicants are essentially challenging the evidentiary value the Committee attached to the Revenue Canada PM-02 officer position. In my view, the Committee made a decision based on evaluation of the evidentiary value of all the position descriptions at its disposal, including the Revenue Canada PM-02 position. The finding of fact that the position at issue should have the same classification as benchmark 25 is reasonable and consistent with classification rules in all respects, since the two positions are similar.
[22] I conclude that the decision was not based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Committee.
[23] For these reasons, this application for judicial review will be dismissed.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
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"Edmond P. Blanchard"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT
Docket: T-620-02
BETWEEN:
MARY ARGYRACOUPOULOU et al.
Applicants
- and -
HER MAJESTY THE QUEEN, AS REPRESENTED BY THE TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-620-02
STYLE OF CAUSE: Mary Argyracoupoulou et al. v. Her Majesty the Queen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 8, 2003
REASONS [for order or judgment]: Blanchard J.
DATE OF REASONS: November 7, 2003
APPEARANCES:
James Cameron FOR THE APPLICANTS
Karl Chemsi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne FOR THE APPLICANTS
220 Laurier Avenue West
Ottawa, Ontario K1P 5Z9
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario K1A 0R5