PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Deputy Head's Nominee for Classification Grievances in the Department of Human Resources Development Canada (Nominee) dated September 14, 2004 (Decision) which adopted the recommendation of the Classification Grievance Committee (Committee) that the Applicant's employment position remain classified at the SI-03 group and level. The Applicant, self-represented before the Court, seeks an order setting aside the Decision and remitting it to a different Committee to determine the correct classification of his previous position.
BACKGROUND
Relevant Work History
[2] The Applicant (Mr. Utovac) was a Statistics Officer at the Income Security Programs Branch of Human Resources Development Canada (HRDC) from January, 1981 until his retirement on December 24, 2002. Effective June 15, 1995, his position was classified in the Social Science Support (SI) group at level SI-03. The work description for the position varied with departmental reorganization, but at all material times included the establishment and escalation of benefit rates for income security programs such as Old Age Security (OAS) and the Canada Pension Plan (CPP), which affected in excess of 4.5 million recipients nation-wide at a value approximating 40 billion dollars annually.
Classification Dispute
[3] The Applicant says that, from August 1995 to March 1997, he performed duties that place his position in the Economics, Society and Statistics (ES) group classification. Specifically, he points out that, as part of his functions he developed and maintained statistical databases and mathematical models to produce new rate structures for OAS and CPP. He believes these functions require that his position be classified in the ES group.
Jurisdiction Over Job Classification
[4] By enacting the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA), Parliament granted jurisdiction to the Treasury Board over personnel management in the public service of Canada, including the classification of positions and employees under paragraph 11.1(1)(b). Subsection 5(4) of the FAA grants the Treasury Board authority to determine its own rules and procedures, pursuant to which it established the Treasury Board Manual, to ensure that "the relative value of all jobs in the public service is established in an equitable, consistent and effective manner and provides a basis for the compensation of public servants."
Classification Grievances
[5] Section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [repealed by S.C. 2003, c. 22, s. 285] (PSSRA) provides an internal grievance scheme for work-related disputes between the employee and the public service employer. Chapter Four of the Treasury Board Manual, the "Classification Grievances Policy" (Policy), sets out the grievance procedure for employees who are dissatisfied with the classification of the duties they perform as assigned by the employer. Such grievances must be conducted in accordance with "Appendix B, Classification Grievance Process."
Applicant's Grievance
[6] On March 31, 1998 the Applicant grieved both the job description and classification of his position under section 91 of the PSSRA. The grievance was denied at the third and final level on October 18, 1999, after which the Applicant and HRDC entered into a mediation agreement on February 16, 2000. While the dispute concerning the position's job description was resolved, the classification was further grieved by the Applicant to the Committee. The Committee convened on November 20, 2003 and, on February 18, 2004, recommended reclassifying the Applicant's position to SI-04.
First Classification Grievance Decision
[7] On March 10, 2004 the Nominee approved the first Committee's recommendation to reclassify the Applicant's position to SI-04. Dissatisfied with this decision, the Applicant commenced an application for judicial review in the Federal Court, in response to which the Nominee cancelled the first grievance decision on May 25, 2004 and directed that a second Committee decide the grievance.
Second Classification Grievance Decision
[8] The second Committee convened the Applicant's hearing on 30 June 2004, at which time he represented himself in oral submissions supported by twenty-eight documents. The Committee reconvened on July 6, 2004 to review the Applicant's evidence and to ask questions of a management representative who was the Applicant's direct supervisor at the time his position was classified in June 1995. On July 12, 2004 the Committee requested that the Applicant provide in writing, prior to July 30, 2004, his assessment of which benchmarks in the ES Standard would support his proposed classification. On July 19, 2004 the Applicant requested a copy of the ES Standard and the job description of the employee then performing his former position functions. These materials were provided to the Applicant. On August 3, 2004 the Committee again contacted the Applicant, who advised that he would make no further submissions because he had already provided the evidence to support his proposed rating. In its Classification Grievance Report, dated late August 2004, the Committee recommended that the Applicant's position remain classified as SI-03.
Decision Under Review
[9] By letter dated September 14, 2004 the Nominee informed the Applicant of her Decision to adopt the recommendation of the Committee that his position remain classified at the SI-03 group and level. In its entirety, the Decision reads as follows:
Mr. Utovac:
The above noted grievance was examined by a Classification Committee established in conformance with the requirements of Chapter 4, of the Treasury Board Manual.
The Classification Grievance Committee members consider that the grieved position REH-01276 is properly classified at the SI-03 group and level with an effective date of June 15, 1995. The different factors have been rated as follows:
Skill and Knowledge: Degree Z3 166 points
Problem Solving: B2 187
Responsibility for contacts: B1 052
Supervision: Z0 0
Total: 405 SI-03 (336-435)
I have approved the recommendation of the Committee as indicated above. Please be advised that this decision is final and binding and not subject to any further review.
A copy of the Classification Grievance Committee report is enclosed for your information.
[10] The Applicant initiated judicial review of the Decision by Notice of Application filed October 12, 2004.
RELEVANT LEGISLATION
[11] The legislation relevant to this proceeding is the Financial Administration Act, R.S.C. 1985, c. F-11 and Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [repealed by S.C. 2003, c. 22, s. 285], relevant excerpts of which are set out following these reasons in Appendix "A".
ISSUES
[12] Three issues are raised by this application:
1. What is the appropriate standard of review?
2. Did the Committee breach its duty of procedural fairness by receiving and relying on evidence not disclosed to the Applicant and to which he had no opportunity to reply? and
3. Was the SI-03 classification patently unreasonable?
ANALYSIS
1. What is the appropriate standard of review
Procedural Fairness
[13] The decision of the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 is authority for the proposition that where an enabling statute delegates authority to an administrative decision-maker, the reviewing judge must determine the appropriate standard of review on the pragmatic and functional approach. However, in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100, the Supreme Court clarified that questions of natural justice and procedural fairness relate to the procedural framework of a delegate's decision and do not require the reviewing judge to engage in a standard of review inquiry. It falls for the Court to determine the content of the duty of fairness as a question of law using a standard of correctness.
Classification Grievance Decision
[14] In Adamidis v. Canada(Treasury Board) (2006), 146 A.C.W.S. (3d) 278 (F.C.), Justice Phelan determined on a pragmatic and functional approach that the standard to review a decision of a classification grievance committee on its merits is patent unreasonableness. I am persuaded to adopt the reasoning of Justice Phelan in material part, where he states at paragraphs 18 to 24 of Adamidis:
18. In large measure, I adopt Justice Blanchard's analysis of the applicable standard of review of decisions of a classification committee in Trépanier v. Canada (Attorney General), [2004] F.C.J. No. 1601; 2004 FC 1326. In that case, Justice Blanchard found the standard of review to be patent unreasonableness in respect of the calculation of a deadline to be met.
19. With respect to the existence and nature of a private clause, s. 96(3) of the Public Service Staff Relations Act (Act) provides:
96. (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
96. (3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché.
20. While this may not be the strongest privative clause, it does indicate an intention to curtail further review to some extent and to ensure that a grievance decision is final and binding.
21. Of greater importance in this case are the other three factors in the pragmatic and functional analysis -- expertise, purpose of legislation and its relevant provision, and nature of the question.
22. If the calculation of a deadline is a purely factual matter requiring expertise, as found in Trépanier, then the actual application of the classification system is even more a matter of expertise. It required expertise in classification, and a thorough knowledge of the policies, procedures and organization of government employees and their functions.
23. The purpose of the legislation is polycentric "as it is intended to resolve questions involving contradictory policy objectives or interests of different groups, and its purpose is not just to oppose the government to the individual".
24. As to the fourth factor, the nature of the question is somewhat less factual than the calculation of a deadline but in this case it actively engages factors two and four together. The weighting of job functions includes knowledge of the facts of each function. More importantly, the selection of comparators is an area of expertise (much as would occur in a commercial appraisal case) and one based on expert evidence which established matters of fact. The question being asked by the Applicants is whether the Committee carried out its selection, weighting and analysis properly. This is a matter deserving of considerable deference at the patent unreasonable level of review. (See Laplante v. Canada(Canadian Food Inspection Agency), [2004] F.C.J. No. 1640; 2004 FC 1345.)
[15] In the application before me, the Committee decided the classification of the Applicant's position which involved the weighting of job functions and the selection of comparators. This is the same kind of question and assessment that was at issue in Adamidis. For these reasons, I believe the appropriate standard of review of the merits of the Decision in this case is patent unreasonableness.
2. Did the Committee breach its duty of procedural fairness by receiving and relying on evidence not disclosed to the Applicant and to which he had no opportunity to reply?
[16] The parties agree that the duty of fairness applies to the classification grievance process. The process is a non-adversarial, administrative proceeding which does not engage rights or privileges characteristic of quasi-judicial proceedings (see Chong v. Canada (Attorney General) (1995), 104 F.T.R. 253 (T.D.) at paragraph 39). The Federal Court of Appeal held in Chong v. Canada (Treasury Board) (1999), 236 N.R. 371 (F.C.A.) per Justice Décary that the content of the duty of fairness owed by classification grievance committees lies at the lower zone of the spectrum, and decided in Bulat v. Canada (Treasury Board) (2000), 252 N.R. 182 (F.C.A.) that a griever must be granted an adequate opportunity to address those issues that are central to a committee's classification decision. Writing for the Court of Appeal in Bulat, Justice Evans provided the following guidance at paragraphs 9 and 10:
9. It is not disputed that the duty of fairness applies to the classification grievance process, and that a decision by the Deputy Head, or his or her nominee, adopting a recommendation of the Committee may be set aside by the Court on the ground that the Committee failed to afford the grievor a fair hearing. Further, it has been established in this Court that, given the nature of the process, the content of the duty of fairness is located "somewhere in the lower zone of the spectrum": Chong v. Canada(Attorney General ) (1999), 236 N.R. 371, 374 (per Décary JA).
10. However, in my opinion this case does not turn on the precise location on the procedural spectrum of the content of the duty that the Committee owed to the appellant. An elementary incident of the duty of fairness is that the individual adversely affected should have an adequate opportunity to address an issue that the Committee regarded as central to the disposition of the grievance, but which the grievor did not realise was in dispute and therefore could not have been reasonably expected to anticipate, and to address.
[17] In the present review, the Applicant submits that the Committee breached its duty of fairness by failing to grant him an opportunity to respond to management's answers to questions that deal with the relationship of his work to the overall management of the OAS and CPP programs. At the hearing, he explained to the Court that his concern was management's indication that his work was reviewed and approved by management before it went out. He says the fact that management's signature does not appear on the relevant documentation supports his position. But my review of the approval sheets produced by the Applicant suggests that at least some of them were signed by a director or team leader. So the only hard evidence I have on this issue does not support the Applicant. More importantly, however, there is no evidence that this issue was material to the Decision.
[18] There is nothing in the record to suggest that management's answers gave rise to a new consideration central to the Decision that the Applicant was not given the opportunity to speak to. The Decision reveals that management indicated:
[...] that the outputs (benefit rate tables) were reviewed and approved by both himself and the Director prior to their being released for use within the program or to other interested parties, including other Federal Ministers.
There is no evidence before the Court that the approval of benefit rate tables was central to the Decision that the Applicant's position remain classified in the SI group. Nor is there evidence that the Applicant was denied an opportunity to make submissions to the Committee regarding his output rates.
[19] The classification grievance process is not an adversarial process, and in my view neither griever nor employer has a vested right to respond to the other's submissions to the Committee. Appendix B to the Policy states 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. Representations by the complainant or his or her representative may also be submitted in writing. All aspects of the decision being grieved, i.e., group and sub-group allocation, level and ratings (where applicable) accorded to all factors, must be examined even though, in some instances, not all are being challenged.
If invited to appear before the classification grievance committee to provide information on the assigned duties and responsibilities, management must withdraw once the committee has completed its questioning.
The Policy does not grant the griever the right to respond to management's answers.
[20] Neither is the Court persuaded that the Committee omitted to grant the Applicant an opportunity to address a central issue to its classification grievance decision, namely the comparison of the Applicant's position to the proposed ES group. After hearing from both the Applicant and the employer, the Committee invited the Applicant to make further submissions regarding which benchmarks of the ES Standard he believed would justify the classification of his position in the ES group. The affidavit sworn by Richard Joyal on behalf of the Respondent discloses that the Applicant declined to make further representations because "he had already provided evidence to support the rating he has assigned to the job description." In these circumstances, it cannot be said that the Committee breached its duty of fairness to the Applicant.
3. Was the Decision patently unreasonable?
[21] In a classification grievance, the onus lies on the griever to demonstrate that the classification decision was wrong (see Chong v. Canada (Attorney General) (1995), 104 F.T.R. 253 (T.D.) at para. 40). The Applicant submits that the Committee's decision was patently unreasonable because it failed to consider or give proper weight to all key elements of the job description.
Failure To Consider Key Elements Of Work Description
[22] In its classification grievance decision, the Committee rated the four factors specified in the Social Science Support group rating plan: Skill and Knowledge; Problem Solving; Responsibility for Contacts; and Supervision. While these factors do not cover all aspects of the job description, the Committee did not err by failing to award points to other unlisted factors. In respect of the factors to be awarded credit, the rating plan states in material part as follows:
[...] The combined factors do not describe all aspects of jobs. They deal only with those characteristics that can be defined and distinguished and that are useful in determining the relative values of jobs.
Four factors are used in this plan, two of which have more than one dimension and are defined in terms of two elements, and two of which are single-element factors.
The four factors cited above are the only factors that had to be evaluated as part of the Committee's classification decision.
Developing Mathematical Models
[23] The Applicant submits that, in particular, the Board failed to award him credit for his work description function of developing and maintaining mathematical models to establish OAS and CPP benefit rates. I cannot agree. In its recommendation report, the Committee's evaluation included the following:
SKILL AND KNOWLEDGE degree 3 166 points
The subject position (SP) requires knowledge of the theories and principles of mathematical and statistical analysis; [...] as well as a thorough understanding of income security programs in order to develop and maintain statistical databases and mathematical models. ...[Emphasis added.]
[24] It is clear that the Committee awarded points for the Applicant's development of mathematical models, and the Applicant has not persuaded the Court that the credit given was patently unreasonable.
[25] It is common ground that after the Applicant's retirement the function of developing and maintaining mathematical models to establish OAS and CPP benefit rates was reassigned to an ES position. Nor does the Respondent take issue with the Applicant's evidence that a previous decision of a Classification Officer effective December 13, 2000 amended his work description to replace responsibility for developing mathematical models with maintaining spreadsheet applications. The Applicant submits that the Committee awarded his position the same points for Skill and Knowledge and Problem Solving (166 and 187, respectively) as were awarded to his position by the Classification Officer on December 13, 2000, at which time the development of mathematical models was no longer included in the work description.
[26] The uncontested evidence before the Court is that two job descriptions and classifications governed the Applicant's position at HRDC between 1995 and 2000. The Court has examined the work descriptions effective June 15,1995 and December 13, 2000 and is satisfied that they are the same in substance, except for the replacement of mathematic model development with the calculation of OAS and CPP rates by means of spreadsheet applications, effective December, 2000.
[27] Notwithstanding this distinction, the Applicant's argument fails for two reasons. First, while it is difficult for the Court to rationalize how different factors could be given the same number of points, given the replacement and reassignment of one job function for one ostensibly dissimilar, it is not for the Court to reweigh evidence before the Committee. In other words, there is no evidence before the Court to establish that mathematical model development should be awarded greater credit than the calculation of rates by spreadsheet application; nor is there evidence to show that the credit awarded was unreasonable. Second, there is no evidence before the Court to establish that the Applicant's own position work description was a comparator assessed by the Committee. It is clear that the Applicant submitted to the Committee that his position should have been classified in the ES group; it is not clear that the Applicant submitted in the alternative that his level in the SI group should be compared to the SI-03 classification dated December 13, 2000. Before the Committee, the griever bears the onus of establishing that the classification was wrong. The Committee's recommendation is not patently unreasonable for having failed to evaluate a comparator group which it did not raise, and which was not raised as a material issue by the Applicant.
[28] The Applicant's basic argument is that some of the things he did (i.e. the development and application of mathematical models) overlap with functions that occur in ES groups. But this does not mean that the Committee's recommendation not to place him in an ES group was patently unreasonable. He was asked to provide the benchmarks that would give him an ES designation, but he declined to do this. He left it to the Committee. There is nothing before me to suggest that the Committee got it wrong when it gave him an SI ranking. They merely went to the benchmarks and followed the process.
[29] The onus lies on the Applicant to demonstrate to this Court that the classification grievance decision recommended by the Committee and adopted by the Nominee is patently unreasonable. He has not done that.
CONCLUSION
[30] For the reasons given, the Court concludes that the Applicant was not denied procedural fairness and the Decision was not patently unreasonable. The application for judicial review must be dismissed.
JUDGMENT
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed with costs to the Respondent.
"James Russell"
 |
Judge
APPENDIX "A"
1. Financial Administration Act, R.S.C. 1985, c. F-11
| PART I ORGANIZATION [...]
5. [...]
Rules and procedures
(4) Subject to this Act and any directions of the Governor in Council, the Treasury Board may determine its own rules and procedures.
[...]
Powers of the Treasury Board
11.1 (1) In the exercise of its human resources management responsibilities under paragraph 7(1)(e), the Treasury Board may [...]
(b) provide for the classification of positions and persons employed in the public service; |
PARTIE I ORGANISATION [...]
5. [...]
Règlement intérieur
(4) Le Conseil du Trésor établit son règlement intérieur sous réserve des autres dispositions de la présente loi et des instructions du gouverneur en conseil.
[...]
Pouvoirs du Conseil du Trésor
11.1 (1) Le Conseil du Trésor peut, dans l'exercice des attributions en matière de gestion des ressources humaines que lui confère l'alinéa 7(1)e) : [...]
b) pourvoir à la classification des postes et des personnes employées dans la fonction publique;
|
2. Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [repealed by S.C. 2003, c. 22, s. 285]
| PART IV GRIEVANCES
Right to Present Grievances
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. [...] |
PARTIE IV GRIEFS
Droit de déposer des griefs
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé:
a) par l'interprétation ou l'application à son égard:
(i) soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1831-04
STYLE OF CAUSE: ANTUN UTOVAC
Applicant
v.
HER MAJESTY THE QUEEN IN RIGHT OF
CANADA as represented by TREASURY BOARD
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
APPEARANCES: Antun Utovac
John Jaworski
SOLICITORS OF RECORD: Antun Utovac
3 Springdale Crescent
Ottawa, Ontario
K2H 5T7
John Sims
Deputy Attorney General