Date: 20050524
Docket: T-1413-04
Citation: 2005 FC 733
BETWEEN:
GLENN CURRIE, DOUGLAS FILLMORE,
ANDREW MCAULEY AND VINCENT O'NEILL
Applicants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
STRAYER D.J.
INTRODUCTION
[1] This is an application for judicial review of a decision of a part-time member of the Public Service Staff Relations Board (PSSRB) acting as an adjudicator under section 92 of the Public Service Staff Relations Act R.S.C. c. P-35 (PSSRA). The decision, dated June 29, 2004 dismissed a reference to adjudication brought by the applicants herein concerning an unsuccessful grievance against the refusal by Canada Customs and Revenue Agency (CCRA), their employer, to comply with their request for a "complete and current statement of the duties and responsibilities" of their positions.
FACTS
[2] The applicants are each employed by CCRA as an investigator/auditor at a classification of PM-03. The essence of their complaint is that they are performing work more difficult or complex than as described in their job description which at the time in question was numbered PM-0286. It was later revised as PM-0286-20004171.
[3] The Collective Agreement provides in article 56.01 as follows:
56.01 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.
The applicants filed grievances maintaining that their rights under article 56.01 had been breached because their job descriptions were not truly descriptive of their duties and responsibilities. Grievances were commenced in April, 2000. Final level decisions were issued in January, 2003 rejecting their grievances and these decisions were referred to adjudication under section 92 of the PSSRA.
[4] The adjudicator in a somewhat lengthy and discursive decision concluded by finding that the work description of PM-0286 did constitute a complete and current statement of their duties and responsibilities. In spite of evidence which was given by the applicants to the contrary he was not persuaded that the terms employed in the job description were insufficient to cover the work being done by them.
[5] In this application for judicial review the applicants have sought to establish that the adjudicator erred in law in his interpretation of the Collective Agreement as well as of section 7 of the PSSRA which provides as follows:
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7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein. |
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7. La présente loi n'a pas pour effet de porter atteinte au droit ou à l'autorité de l'employeur quant à l'organisation de la fonction publique, à l'attribution des fonctions aux postes et à la classification de ces derniers.
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[6] With respect to the first point the applicants pointed in particular to the following passage in the adjudicator's decision:
. . . . For the evidence heard here before me is referable solely to the particular positions occupied by the grievors; they can speak only of the duties and responsibilities they each perform. Without agreement on the part of the employer that their testimony is to be considered representative of each PM-03 investigator/auditor position across its entire enterprise, the effect of any relief granted could only be the development of a position-specific Work Description which comprises "a complete and current statement of the duties and responsibilities" of each individual grievor's position; in short, balkanization of the employer's generic work descriptions. . . .
The applicants regard this as an indication that the adjudicator misconstrued article 56.01 of the Collective Agreement by introducing an irrelevant consideration as to the effect that an updated and correct description of their jobs would have on the employer's classification system across the country. This , it is said, amounted to an error of law in the interpretation of the Collective Agreement.
[7] With respect to the significance of section 7 of the PSSRA, the applicants point to various references in the adjudicator's decision to section 7 and the right of management to manage, giving the impression that he was prevented by section 7 from acceding to the applicants' request for an accurate and current description of their jobs.
[8] On the merits of the case, involving the question of whether in fact the existing job descriptions accurately described the duties and responsibilities of the applicants, they contend that the adjudicator answered that question in the affirmative without regard to the material before him: in other words this finding was patently unreasonable.
ANALYSIS
Standard of Review
[9] The applicants contend that the interpretation of the Collective Agreement and of section 7 of the PSSRA involve matters of jurisdiction and those decisions should be reviewed on the standard of correctness. With respect to the merits, the implication is that even if the standard of review is patent unreasonability the decision on the merits should be set aside.
[10] The respondent argues that, in accordance with the substantial line of jurisprudence in this Court and in the Federal Court of Appeal, in the interpretation of a collective agreement which is what is involved here the standard of review of a decision of a PSSRA adjudicator is that of patent unreasonability. The respondent argues that there is no such patent unreasonability in this decision.
[11] The standard of review applicable here is directly connected with the interpretation of what the adjudicator actually decided and why he decided it. Unfortunately he did discuss section 7 as if it were relevant. He also discussed the implications for the employer's classification system of any forced revision of what is a nationwide generic job description, for purposes of making it a more accurate description of the work of these particular applicants. He mentioned several times that what was ultimately involved here was a move by the applicants to have their jobs reclassified, the implication being that he could not consider the application of article 56.01 of the Collective Agreement without having in mind the consequence of a revised and accurate statement of duties and responsibilities would have for the classification of these positions. If I concluded that as a result the adjudicator failed to interpret and apply section 56.01 on its own terms, a matter possibly involving questions of law or jurisdiction, I might well have to consider applying a less deferential standard of review. I am not, however, satisfied that these considerations really governed the outcome of the adjudicator's decision. Notwithstanding several references to, and quotations from, classification grievances, the adjudicator did expressly recognize at paragraph 17 of his decision that these were not classification grievances, matters which the Board would be without jurisdiction to entertain. For the same reason he found section 7 to be inapplicable (see also the quotation from his "Oral Ruling", in paragraph 2 of his decision). He confirms that in a proceeding such as the one before him
. . . one focuses upon the job description of the classification in which the grievor works, to determine whether it is sufficiently capacious to encompass the particular duties and responsibilities which the grievor seeks to have there included. . . .(Para. 19).
He makes a similar statement in paragraph 20 of his reasons and, apart from the somewhat questionable statement concerning "balkanization" quoted above he sets out, in paragraphs 21 to 25 his analysis of the evidence and his reasons for concluding that work description PM-0286 comprises "a complete and current statement of the duties and responsibilities" of the grievors.
[12] I therefore believe that the substance of his decision was an interpretation of article 56.01 of the Collective Agreement as applied to the facts of these particular grievances. There is a considerable body of jurisprudence in this Court and the Federal Court of Appeal to the effect that the standard of review for such decisions is that of patent unreasonability: see, e.g. Barry v. Canada, [1997] F.C.J. No. 1404 (C.A.); Connors v. Canada, [2000] F.C.J. No. 477 (C.A.); Canada v. King, [2003] 4 F.C. 543 (T.D.); White v. Canada, [2004] F.C.J. No. 1231 (T.D.); and Ryan v. Canada, [2005] F.C.J. No. 110 (T.D.). The applicants argued that this jurisprudence had been overtaken by the decisions of the Supreme Court in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 SCR 609; and Alberta Union Provincial Employees v. Lethbridge Community College, [2004] 1 SCR 727. In both these cases the Court applied the standard of reasonableness. I believe these cases are distinguishable. It must first be noted that neither one involved federal employees and the PSSRA. In Voice the Court was reviewing a decision of an arbitrator under a collective agreement in the private sector. The Court noted that the proceedings before an arbitrator do not require the consideration of broad policy issues. It found that the interpretation of the collective agreement involved a question of law which might have suggested a standard of correctness but, having regard to the expertise of the arbitrator, the more deferential standard of reasonableness was thought appropriate. The Lethbridge case also involved a private sector collective agreement but one of the issues concerned the arbitration board's interpretation of a section of the Alberta Labour Relations Code. With respect to the interpretation of this section by the Board, the Court considered that aspect of the decision to involve a "heightened precedential value" which pointed towards less deference. While it involved a question of law which would suggest more deference it was a mixed question of fact and law and given the precedential implications the Court concluded the proper standard of review was reasonableness.
[13] In the present case the decision under review is that of a member of the PSSRB, a permanent body concerned with federal public service employment. The decision of the adjudicator here, as I interpret it, was essentially one of applying the Collective Agreement to the facts. It was predominantly a factual conclusion with limited precedential value. I respectfully agree with Von Finckenstein J. in the recent decision in Ryan v. Canada, supra that the Voice case "does not mandate a reasonableness standard, it merely reaffirms a long line of cases requiring that in each case a pragmatic and functional analysis should be undertaken."
[14] The other factors in the pragmatic and functional analysis, such as the absence of a privative clause, the expertise of the tribunal, the purpose of the Act and the nature of the question have been considered at length in the above-named cases concerning adjudication under the PSSRA and I need not repeat them.
[15] I therefore conclude that the standard of review for the decision as I interpret it is that of patent unreasonability. Major J. said in the Voice case, supra, at paragraph 18:
. . . . A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd. . . .
I am unable to say that the decision of the adjudicator here borders on the absurd. Instead, what I regard as the operative paragraphs of the decision cogently address the evidence and demonstrate a rational basis for the decision.
DISPOSITION
[16] The application will therefore be dismissed with costs.
(s) "B.L. Strayer"
Deputy Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1413-04
STYLE OF CAUSE: GLENN CURRIE, DOUGLAS FILLMORE, ANDREW MCAULEY AND VINCENT O'NEILL v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 5, 2005
REASONS FOR ORDER: Strayer D.J.
DATED: May 24, 2005
APPEARANCES:
Mr. Andrew Raven FOR THE APPLICANTS
Mr. Neil McGraw FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron, Ballantyne & Yazbeck
Ottawa, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT