BETWEEN:
THERESA GILCHRIST, LUCIE BOUCHARD and
DENISE LEBLANC
and
HER MAJESTY THE QUEEN AS REPRESENTED BY THE TREASURY BOARD AND THE CANADIAN FOOD INSPECTION AGENCY
REASONS FOR ORDER
[1] This is an application for judicial review of what is described as a decision of the Classification Grievance Committee of the Canadian Food Inspection Agency dated November 9, 2004, wherein it was stated that the existing Committee was unable to reach a final conclusion due to "conflicting information" and stating that a de novo Committee would be established. The Applicants request that this decision be set aside, preferably with directions that the previous committee complete its work, with such further direction as the Court may provide.
[2] The Applicants are employees of the Canadian Food Inspection Agency who filed individual grievances that their positions within that Agency were improperly classified, and sought reclassification. The Respondent, Canadian Food Inspection Agency, is classified as a "separate employer" under Part II of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, such that the treatment of classification grievances rests with the Agency itself. Section 91(1) of that Act states:
91. (1) Where any employee feels aggrieved
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by the interpretation or application, in respect of the employee, of |
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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 |
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a provision of a collective agreement or an arbitral award, or |
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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.
[3] The Agency has set out an administrative procedure of its own to deal with classification grievances, entitled Classification Grievance Process, the relevant version of which is effective July 1, 2003. In the Foreword it is stated:
Approval for deviation from this process must be obtained from Corporate Classification and Organization Design, Human Resources Branch.
[4] Essentially, once a grievance as to classification is made, the Process provides that a Classification Grievance Committee is to receive information, deliberate and make a Report which is submitted to the Manager, CCOD who makes recommendations as to the Report to the VP, Human Resources who makes a final determination as to the grievance.
[5] In general, the Process states in section I D, 1 and 2:
1. Each grievance is examined on its merit and a recommendation is made by a Classification Grievance Committee on the position's classification through the Manager, Corporate Classification and Organization Design to the VP, Human Resources.
2. The decision resulting from the classification grievance process is final and binding.
[6] As to the Committee, the Process states in section VII A 2:
The Classification Grievance Process is an administrative redress mechanism which is not intended to be adversarial; it provides for a meeting where information is presented, sought and discussed, in order to allow the Committee to make appropriate recommendations.
And in section VII D, 1 to 4:
1. The Committee deliberations occur "in camera" and remain confidential at all times.
2. The Committee recommendations may not be discussed with any other parties, until the final and binding decision has been issued.
3. The Committee will review and analyze all information in a fair and equitable manner, in accordance with the relevant classification standards, techniques and principles.
4. The Committee may recommend the following:
a. that the current occupational group & level be confirmed, with the same rating; or
b. that the current occupational group & level be confirmed, but with a different rating; or
c. that the current occupational group & level be changed, representing an upward reclassification; or
d. that the current occupational group & level be changed, representing a downward reclassification.
[7] The Report of the Committee is to be reviewed by the Manager, CCOD who makes a further report to the VP, Human Resources. Section V of the Process states:
1. The Manager, CCOD administers the Classification Grievance Process and assigns responsibility for the grievance to an accredited CCOD Advisor.
2. The Manager, CCOD provides advice to the VP, Human Resources on the acceptance or rejection of the signed Classification Grievance Committee report.
3. The Manager, CCOD writes a report to the VP, Human Resources when advising that the Classification Grievance Committee report be rejected or that a new Classification Grievance Committee be convened, and notifies accordingly all parties involved in the initial process.
4. The Manager, CCOD briefs the VP, Human Resources on the content of grievance decisions which have major impact on the classification of other Agency positions.
[8] The VP, Human Resources can accept the Committee's recommendations or take other steps as set out in the Process, section VIII A:
1. The VP, Human Resources, as the President's Nominee, reviews the Classification Grievance Report and either:
a. confirms the Committee's recommendation; or
b. makes a decision in cases of minority and majority reports; or
c. renders a separate decision.
2. If the unanimous recommendation of the Committee is rejected by the VP, Human Resources, the latter will brief the President and render a new decision, stating the reasons for non-acceptance of the Classification Grievance Committee report.
[9] What actually happened in this case appears to be something different. The Committee prepared a Report which recommended that the Applicants be reclassified, however that Report was not signed by the Committee. Instead, the Manager appears to have reviewed a copy of the Report in draft and refused to pass it along to the VP in that form, believing that it was based on erroneous or incomplete information. To put it in the Manager's own words, quoting from her Affidavit filed in this application:
4 The Manager, CCOD provides advice to the Vice-President of Human Resources on the acceptance or rejection of the Committee's recommendation.
Classification Grievance Process, attached to this Affidavit and marked as Exhibit "A", para. V (2).
5 It is only when I, as the recommending authority to the Vice-President of Human Resources, am satisfied that the Committee's recommendation is well-founded that it is submitted to her for decision.
6 In the present case, after reviewing the Committee's recommendation and supporting argumentation, I concluded that the recommendation could not be supported for a number of reasons.
Classification Grievance Process, attached to this Affidavit and marked as exhibit "A", section D.
7 The Committee's rationale could not be defended, as it had no supporting job facts and relied on misleading information.
8 It is to be noted that a classification grievance will only be heard and decided upon when the content of the work description has been agreed upon by all parties.
[10] Apparently, as a result of the refusal of the Manager to support the Board's proposed Report, the Chairman of the Board wrote to the Applicants a letter dated November 9, 2004, the full text of which is:
This letter is intended to bring you up to date on the status of the grievances which the incumbents of the subject position (Theresa Gilchrist, Lucie Bouchard and Denise Leblanc) filed against the classification level of their positions.
During the committee deliberations, conflicting information prevented the committee from reaching a final conclusion. Therefore, no recommendation could be put forward on the group and level to the Vice President, Human Resources.
In the interests of fairness for all concerned, we intend to establish a de novo Classification Grievance Committee without delay. Could you advise me of your availability over the next couple of weeks?
Whereupon the Applicants commenced the judicial review.
[11] The Applicants' position is that the Respondent erred in law, acted in bad faith and violated their rights to natural justice and procedural fairness in that:
a) There was a breach of confidentiality when the Board submitted draft Reasons to the Manager;
b) There was a breach of jurisdiction in that the Board could not refuse to make a report and, instead, constituted a new Board;
c) There was a failure by the Board to decide on conflicting information; and
d) There was a failure to act in good faith.
[12] The Respondent argues that:
a) The letter of November 9, 2004, was not a decision and until there was a final decision this Court cannot interfere in the process;
b) The conduct of the Manager was, in any event, permissible as part of the administrative duties set out in the Process, Section V (1) supra; and
c) This Court does not have the power, in these circumstances, to issue an order in the nature of mandamus.
[13] The first step is to determine the effect of the Classification Grievance Process established by the Canadian Food Inspection Agency. This Process is neither part of a statute nor of a regulation, instead, it is guidelines established for lack of other administrative procedure as contemplated by section 91(1) of the Public Service Staff Relations Act. While not required to do so, once such a Process has been established, the Agency should be expected to abide by that process. The Supreme Court of Canada in Baker v. Canada (MCI), [1999] 2 S.C.R. 817 per L'Heureux-Dubé J. for the majority said at paragraph 26:
If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness...
[14] Particularly with respect to the Canadian Food Inspection Agency (albeit in respect of a different policy, the Staffing Complaint Policy) Mosley J. of this Court said in Forsch v. Canada (CFTA), 2004 FC 513 at paragraph 26:
However, while the CFIA was not required by legislation to establish this tribunal, or even the Policy for that matter, it nonetheless has done so and it should be expected to abide by its own, established guidelines.
[15] In the instance at hand, the Process in respect of Classification was not followed. The Manager incorrectly saw it as her role to review a draft Report of the Committee and refuse to allow it to be signed if she did not agree with its recommendations. The Process is clear:
1. The Committee is to do its work in camera until the Report is completed and signed.
2. Then the Manager is to review the Report and prepare a further Report for the VP, Human Resources advising that:
· the Report be accepted
· the Report be rejected
· that a new Committee be convened.
3. The VP, Human Resources receives the Committee's Report and the Manager's Report and:
· accepts the Committee's Report, or
· if the Committee's Report has a majority and minority decision, accepts one of them, or
· renders a separate decision in which case the President is to be briefed, and
· presumably, a new Committee could be struck to re-review the matter.
[16] It is clear that the Process at no time provides for the Manager either to see a draft Report or to require the Committee to retire and have a new Committee formed. The Manager was wrong to do what she did. The Respondent argues that the provisions of Section V(1) of the Process stipulating that the Manager "administers" the Process is sufficiently broad so as to enable her to act outside the boundaries of the express provisions of the Process. It is not; deviations from the Process are expressly provided for in the Foreword and require approval from Corporate Classification Resources Branch. There is no evidence here that such approval was sought or obtained.
[17] The next step is to determine whether the letter of November 9, 2004, is an activity (a deliberately neutral word) in respect of which this Court may exercise its powers of judicial review. The Respondent says that the review process is not yet complete and until a final decision as to classification is made, no review by this Court is possible.
[18] The Federal Court of Appeal in Krause v. Canada, [1999] 2 F.C. 476 has made it clear that the exercise of jurisdiction under section 18 of the Federal Court Act does not depend on the existence of a "decision or order". As stated by Stone J.A. for the Court at paragraph 24:
I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order." In AlbertaWilderness Assn. v. Canada(Minister of Fisheries & Oceans), [See Note 17 below] Hugessen J. was of the view that a remedy envisaged by that section "does not require that there be a decision or order actually in existence as a prerequisite to its exercise." In the present case, the existence of the general decision to proceed in accordance with the recommendations of the Canadian Institute of Chartered Accountants does not, in my view, render the subsection 18.1(2) time limit applicable so as to bar the appellants from seeking relief by way of mandamus, prohibition and declaration. Otherwise, a person in the position of the appellants would be barred from the possibility of ever obtaining relief under section 18 solely because the alleged invalid or unlawful act stemmed from a decision to take the alleged unlawful step. That decision did not of itself result in a breach of any statutory duties. If such a breach occurred it is because of the actions taken by the responsible Minister in contravention of the relevant statutory provisions.
Note 17: (1997), 26 C.E.L.R. (N.S.) 238 (F.C.T.D.), at pp. 241-242; revd on other grounds; Alberta Wilderness Assn. v. Canada(Minister of Fisheries and Oceans), [1999] 1 F.C. 483 (C.A.)
[19] Here the improper review of the draft Report by the Manager and the Manager's refusal to deal with the matter other than having a new Committee struck which step the Committee purported to take, were steps not provided for and in contravention of the Process. This was a Process which the Applicants had a legitimate expectation would be followed. This was a breach of natural fairness. This Court can, under sections 18 and 18.1 Federal Courts Act, intervene.
[20] Having determined that the appellants' case involved violations of procedural fairness in the grievance procedure, and that this Court has jurisdiction to exercise its powers in this regard we must determine the standard of review to be applied. Once a breach of duty is found, the decision below must be set aside. (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 at paragraph 30). The standard to be applied is that of correctness. There is no room for deference in procedural fairness violations.
[21] The last consideration is to consider what remedy can the Court provide? Section 18(1)(a) and (b) of the Federal Court Act, R.S.C. 1985, c. F-7 provide that the Federal Court has jurisdiction, inter alia, to issue a writ of certiorari, or mandamus, or an application for relief "in the nature of" certiorari or mandamus. The powers of the Federal Court to grant relief upon such an application are set out in section 18.1 (3):
(3) Powers of Federal Court- On an application for judicial review, the Federal Court may
(a)order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
[22] Section 18(1) provides for jurisdiction in the Federal Court, while section 18.1(3) provides for the nature of the relief. That relief is expressly provided for by the use of the word "may" which therefore implies that all relief normally associated with certiorari or mandamus, or proceedings "in the nature of" thereof may be given whether in addition to, or overlapping with, the relief provided for in section 18.1(3). Thus if, at common law, there is some constraint on relief by way of certiorari or mandamus, that constraint is lifted to the extent that section 18.1(3) provides for that relief.
[23] Thus this Court has the power to grant and will grant the following relief:
1. The decision communicated by letter of November 9, 2004 to establish a new Committee, is set aside;
2. The matter is referred back to the Committee as originally constituted for further determination in camera and for the production of a signed Report;
3. The Manager is restrained from reviewing the Report or draft thereof, until it is signed and delivered;
4. The Manager is restrained from endeavouring to influence the Committee in the preparation of its Report before it is signed and delivered.
[24] An Order will issue accordingly. As to costs the parties, by letter from their counsel, have agreed that they should be fixed in the sum of $2,500.00 which I award to the successful party, the Applicants.
"Roger T. Hughes"
Toronto, Ontario
September 27, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2173-04
STYLE OF CAUSE: THERESA GILCHRIST, LUCIE BOUCHARD and
DENISE LEBLANC
Applicants
and
HER MAJESTY THE QUEEN AS REPRESENTED BY THE TREASURY BOARD AND THE CANADIAN FOOD INSPECTION AGENCY
Respondents
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: SEPTEMBER 20, 2005
APPEARANCES:
James Cameron FOR THE APPLICANTS
Stéphane Hould FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Raven, Allen, Cameron, Ballantyne & Yazbeck LLP FOR THE APPLICANTS
Ottawa, Ontario
John H. Sims Q.C.
Deputy Attorney General of Canada