Date: 20050301
Ottawa, Ontario, this 1st day March, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
Docket: T-413-04
SEAN WINSTANLEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-414-04
TARA JENKINS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BACKGROUND
[1] The Applicants, Tara Jenkins and Sean Winstanley, have brought this application for judicial review of a decision by the Public Service Commission (the "Commission") declining jurisdiction to investigate a complaint filed by the Applicants pursuant to section 7.1 of the Public Service Employment Act ("PSEA").
[2] The applications for judicial review were consolidated into one common proceeding by Prothonotary Mireille Tabib on April 29, 2004.
[3] The Applicants are employed as Fishery Officers with the Department of Fisheries and Oceans ("DFO") in the Atlantic Region. Both individuals filed complaints maintaining that they were not appointed to the position of Fishery Officer ("FO") at the GT-03 group and level in a timely manner, in violation of the Fishery Officer Career Progression Program ("FOCPP"). The FOCPP is a career progression program wherein Officer recruits follow a multi-level training program. The FOCPP into which the Applicants were recruited involved a 6 month cadet and 18 month recruit training program during which recruits are on probation for the duration of the program. Recruits began at a GT-01 level and finished the program with an appointment to a position as a working level FO at the GT-03 level.
[4] A revised FOCPP was introduced effective October 23, 2003. DFO implemented transitional measures to integrate the requirements of the original FOCPP with the new FOCPP. Under the new program, the training period was increased from 24 months to 54 months with the starting level for an employee FO being at the GT-02 level and ending with an appointment to a GT-04 working level FO. At the final level, recruits became subject to a 30 month, instead of a 12 month, probationary period.
[5] The following is a summary of the steps involved in the original program:
- First 6 months - individuals are paid as cadets in a classroom program but are not considered to be a Public Service Employee
- Next 6 months - individuals are now recruits and are engaged in field training and considered a Public Service Employee and are formally appointed to the GT-01 level
- Next 12 months - the recruit is promoted / appointed to the GT-02 level and undergoes further field training
- The recruit is appointed to an FO position at the GT-03 level (the working level for a full FO) and is no longer in the FOCPP or on probation.
[6] The following is a summary of the steps involved in the new program:
- First 6 months - individuals are paid as cadets in a classroom program but are not considered to be a Public Service Employee
- Next 18 months at the GT-02 level
- Next 30 months at the GT-03 level
- The recruit is appointed to an FO position at the GT-04 level (now considered the working level of an FO) and is no longer in the FOCPP or on probation.
[7] The key point in contention is the probation period and the length of time an applicant has to spend at the FO working level minus 1 (GT-02 under the old program, GT-03 under the new program).
[8] The Applicants challenged the failure to appoint them to the GT-03 working level FO position in a timely manner after they had completed their final 12 month training period under the old program. The Applicants maintain that they were entitled to be appointed to the GT-03 level as of October 1, 2003.
CRITICAL DATES
[9] The following dates are central to this case:
- July 14, 2003 was the date the new FOCPP was adopted, which was therefore used as the day for the determination of conversions from the old program to the new
- October 1, 2003 was the date on which promotions from the GT-02 to GT-03 traditionally took place for GT-02 officers who had successfully completed the program
- October 31, 2003 was the date on which the new FOCPP was adopted (the "implementation date")
DECISION IN ISSUE
[10] On January 16, 2004, the Applicants requested an investigation under section 7.1 of the PSEA. In a decision dated January 22, 2004, the PSC declared that it did not have jurisdiction over the exercise of managerial power, and that such a matter was subject to the staff relations grievance process. The key part of the decision reads as follows:
From my analysis of your request, I regret to inform you that the Recourse Branch will not investigate your request because the situation you are raising does not pertain to a possible breach of the application of the Public Service Employment Act or Regulations. The Public Service Commission does not have jurisdiction or authority to review decisions made with respect to an effective date of a reclassification. This is not a staffing matter but rather a management's decision which is subject to a staff relations grievance process. I understand that this statement is the opposite from what you were provided in the department's first level grievance reply. You may want to discuss this matter with your union representative. (Underlining added)
ISSUE
[11] Does the Commission have jurisdiction to conduct an investigation pursuant to section 7.1 of the PSEA?
STANDARD OF REVIEW
[12] As we are dealing with a question of jurisdiction, the appropriate standard of review is that of correctness. (See Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 and Oriji v. Canada (Attorney General) [2004] F.C.J. No. 815).
STATUTORY PROVISIONS
[13] Sections 6, 7.1, 8 and 10 of the Public Service Employment Act, R.S. 1985, c-P-33 state:
6. (1) The Commission may authorize a deputy head to exercise and perform, in such manner and subject to such terms and conditions as the Commission directs, any of the powers, functions and duties of the Commission under this Act, other than the powers, functions and duties of the Commission under sections 7.1, 21, 34, 34.4 and 34.5.
7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction.
8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.(underlining added)
Section 91 of the Public Service Staff Relations Act R.S. 1985 c. P-35 provides:
91. (1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.
(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.
(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance. (Underlining added)
ANALYSIS
[14] This case addresses the application of transitional provisions to employees who are employed under a training program which has been amended. The Applicants claim they should have been appointed to the GT-03 level in accordance with the old FOCPP. They claim that as of October 1, 2003 they would have met all the requirements under the old program and should have been appointed to GT-O3 under the old program. This would effectively have made them GT-04 on October 23, 2003, the date of implementation of the new program. As a result of using July 14, 2003 as the date for assessing status and conversion and by not appointing them to GT-03 on October 1, 2003, the Applicants had to undergo an additional 30 months at the new GT-03 level before becoming GT-04 (the new working level). This means they are on probation for an additional 30 months.
[15] The Applicants grieved their lack of appointment on November 17, 2003. The grievance was denied on January 6, 2004 for the following reasons:
I have carefully considered the details surrounding this case, including the information presented by yourself and your union representative at the hearing on January 6, 2004. According to clause 18.02 in the Technical Services collective agreement:
"Subject to and as provided in Section 91 of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 18.05 except that,
(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed, ..."
In this case, the application of the effective dates for reclassification within the Fishery Officer Career Progression Program is a staffing decision and, as such, not a grievable issue. I wish to refer you to the Public Service Commission to which you may submit a complaint in accordance with the Public Service Employment Act. In addition, I wish to refer you to the Circular Letter dated November 21, 2003 that was sent to Local Presidents and Secretaries in DFO from Mr. William Pynn, National President of the Environment Component of the Public Service Alliance of Canada. Within this circular, Mr. Pynn outlined the recourse available to Fishery Officers with less than the required amount of experience established for reclassification under the Fishery Officer Career Progression Program.
[16] The circular from the union dated Nov 21, 2003 states:
We have received several inquires from Locals regarding the recourse(s) available to those GT-03 Fishery Officers with less than the 30 months' experience who will be deemed as not meeting the requirement for appointment to the reclassified GT-04 positions. The recourse available to those affected GT-03 Fishery Officers consists of filing a staffing complaint under sections 7.1 and 12.1 of the PSEA to the Registrar's Office of the Public Service Commission's Recourse Branch. It is imperative that members who wish to file a complaint write to the PSC Recourse Branch and request a review of the qualifications pursuant to Section 12.1 of the PSEA before the selection process is completed. Members should complete and return the PSC's form Request for Investigation at the address noted below by either mail or facsimile with a detailed covering letter outlining their reasons for filing their complaint.
[17] Thus we have a perfect catch 22 situation. The DFO and the union say this is not a grievable issue. The Commission says it is a grievable issue and therefore it does not have jurisdiction.
[18] The issue really comes down to this: is the failure to appoint the Applicants on October 1, 2003 (when the old FOCPP was still in force) a staffing issue and thus under the purview of the Commission or is it a question of determining whether the Applicants have met the requirements for a position in the public service which would fall under s. 91 of thePSSRA.
[19] By virtue of section 10(1) of the PSEA, appointments are made by the Commission. Thus, they have the power under s. 7.1 to conduct investigations into appointments.
[20] On the other hand, the case law is quite clear that determining whether requirements have been met is not a matter for the Commission. In Canada (Attorney General) v. Viola (C.A.), [1991] 1 F.C. 373, Decary J.A. stated at paragraph 9:
This Court has consistently held, [See Note 2 below] and I adopt the wording of Thurlow C.J. in Ricketts:
... that the determination of the essential and other requirements for a position in the public service is not a function of the Public Service Commission under the Public Service Employment Act, that it is a function of management falling within the authority of a minister to manage his department under the statute establishing the department, that the function of the Commission under s. 10 of the Public Service Employment Act is to select from among candidates who have the qualifications required by the department the candidate who is best qualified for the position and to appoint him to it and that the function of an appeal board established under s. 21 of the Public Service Employment Act is to enquire not into the qualifications established by the department for a position but into the question whether the merit principle prescribed by s. 10 has been observed in the selection and appointment of a candidate who has the qualifications determined by the department for the position.
Note 2: Bauer v. Public Service Appeal Board, [1973] F.C. 626 (C.A.); Demers v. Attorney General of Canada, [1974] 1 F.C. 270 (C.A.); Brown v. Public Service Commission, [1975] F.C. 345 (C.A.); Irwin v. Appeal Board of the Public Service Commission, [1979] 1 F.C. 356 (C.A.); Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A.); Guy v. Public Service Commission Appeal Board, [1984] 2 F.C. 369 (C.A.).
[21] The power to appoint can and usually is delegated to deputy ministers under section 6 of the PSEA. It however remains an authority of the Commission exercised under the PSEA.
[22] No argument has been made that the Applicants did not meet the requirements for the GT-O3 level under the old program as of October 1, 2003; accordingly, I will proceed on the assumption that they did.
[23] The issue in contention arose solely form the fact that DFO used different dates for the conversion (July 14, 2003) and the implementation (October 31, 2003).
[24] As a result, the new FOCPP program effectively has retrospective effect. The Applicants are caught by the provisions of the new FOCPP, notwithstanding that it was not in place on the date when they would have been appointed to GT-03 under the old FOCPP program.
[25] Whether the DFO had the power to make the new FOCPP program effectively retrospective or not is not before me and I will not express an opinion on it. It is however a matter of concern to the Commission. As a result of this retrospective feature, appointments under the old FOCPP did not take place when they should have. Since appointments are carried out by the Deputy Minister on behalf of the Commission, this is clearly a matter that falls under its jurisdiction and can be investigated by the Commission. Similarly, it might be a matter of concern for the Commission whether the Applicants can advance an argument based on legitimate expectation.
[26] Furthermore, the non-appointment to FOCPP status under the old program affects the Applicant's probationary period. Probationary periods are governed by s.10(2) of the PSEA and paragraph 5(2) of the Public Service Employment Regulations SOR/2000-80. This aspect also falls under the jurisdiction of the Commission.
[27] The Respondent maintains this is a matter that should be grieved under section 91(b) of the PSSRA which provides:
Where any employee feels aggrieved..
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii)
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
[28] Given the specific provision in the tail end of s. 91 of the PSSRA which states "in respect of which no administrative procedure for redress is provided in or under an Act of Parliament", I find it difficult to accede to this argument. This qualification takes the issue out of the ambit of the PSSRA, as it is provided for under the PSEA.
[29] The circumstances and timing of an appointment to a position in the Public Service and the treatment of individuals in the context of that appointment and promotional process are matters that fit squarely within the jurisdiction of the Commission.
[30] As Mosley J. stated in Oriji, supra, at paragraph 21:
First, the "dominant objective" of the PSEA is to ensure that selection and appointment to the Public Service of Canada takes place according to merit: see Bambrough v. Public Service Commision Appeal Board, [1976] 2 F.C. 109 (C.A.) at 115 and Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (C.A.)(QL). The purpose of an investigation conducted pursuant to s. 7.1 of the PSEA is to provide a recommendation to the PSC so that the PSC may take any corrective action that it considers appropriate (see section 7.5 of the PSEA). The power to provide such recommendation is discretionary, rather than mandatory.
[31] While there are several types of recourse provided under the PSEA at sections 21 , 34, 34.3 and 42, these deal with violations of the merit principle, political activities, deployments, and fraud, respectively, and are not applicable in this case. However, s. 7.1 of the PSEA vests in the Commission residual authority to investigate any matter within its jurisdiction which is applicable to the issues raised in this application.
[32] Accordingly, I find that the Commission erred in stating this was not a staffing matter. This is an issue where the appointment of the Applicants was negatively affected by the retrospective aspect of the new FOCPP. The Commission has authority to investigate the issue.
ORDER
THIS COURT ORDERS that:
1. This application be allowed;
2. The decision of the PSC dated January 22, 2004 is quashed and the matter is referred back to the PSC for consideration by a different officer in light of the reasons accompanying this Order; and
3. The Applicants shall have their cost in this matter.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-413-04, T-414-04
STYLE OF CAUSE: SEAN WINSTANLEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
TARA JENKINS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 8, 2004
REASONS FOR ORDER :THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
DATED: MARCH 1, 2005
APPEARANCES:
JAMES G. CAMERON FOR THE APPLICANTS
RICHARD CASANOVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
RAVEN, ALLEN, CAMERON,
BALLANTYNE & YAZBECK LLP
OTTAWA, ONTARIO FOR THE APPLICANTS
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA