Date: 20060622
Docket: T-885-05
Citation: 2006 FC 796
Ottawa, Ontario, the 22nd day of June 2006
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
SERGE DUBÉ AND JUDITH GERMAIN
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The case at bar concerns an application for judicial review filed pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. The applicants, Serge Dubé and Judith Germain, are seeking an order quashing the decision by Linda Gobeil, Assistant Deputy Minister, Human Resources, Financial and Administrative Services, in the federal Department of Human Resources and Skills Development, rendered on April 8, 2005. By that decision Ms. Gobeil dismissed the grievances filed by the applicants whereby they alleged that their employer had failed to carry out its commitment to give them recall priority in off seasons.
2. Facts
[2] At all relevant times, the applicants were employed by the federal Department of Human Resources and Skills Development (the Department) and each held the position of customer service officer. Since May 2000, Ms. Germain has obtained several term contracts in seasonal positions at the PM-01 group and level. Mr. Dubé has held an acting customer service officer position since February 2001.
[3] In March 2002, the Department offered the applicants permanent seasonal positions at the PM-01 group and level in the Department’s regional office in Donnaconna. The parties did not provide the Court with the employment offer letter signed by the applicants respecting these positions. According to the affidavit of Claire Harvey, the applicants’ manager at the time, these appointments took effect on March 25, 2002 and the agreed periods of employment were from mid-June to mid-September 2002 and from early November 2002 to the end of January 2003.
[4] When they were hired, the Department gave the applicants a letter of employment and a copy of the document entitled [translation] “Seasonal Employment Guidelines” (the “Guidelines” document). This document stated that seasonal employment is a flexible measure used to meet operational requirements when the workload variation occurs in repetitive cycles. In addition, the “Guidelines” document stated that seasonal employees were appointed for periods totalling less than 12 months in a year and seasonal employees held permanent employment status, subject to the collective agreement and the terms and conditions of employment in the same way as all other employees whose status is permanent.
[5] Regarding employment in off periods, point 6 of the “Guidelines” document reads as follows:
[translation]
During the off season a permanent seasonal employee may be hired in a different position with a different status. Such employee is then subject for that period of employment to the terms and conditions of employment and the relevant collective agreement for the position during the said period. The employer’s policy in relation to the second employment applies. (Reference omitted)
When a seasonal employee is unemployed, he or she may be hired for a different position with a different status. In order to hold employment other than the position to which he or she is appointed as a permanent seasonal employee, the employee shall have all the necessary skills and be able to do his duties forthwith.
Local management undertakes to give priority to seasonal permanent employees before proceeding with temporary staffing provided they meet the requirements of the position as described in the preceding point.
[6] Both applicants submitted that the “Guidelines” document was part of their terms and conditions of employment. In addition, the applicants submitted that the document and the statements of Ms. Harvey showed that the Department had undertaken to give the applicants employment priority during off periods. The applicants argued that, despite its commitment, the Department had hired other persons before them in violation of their right to be recalled. The applicants subsequently filed several grievances alleging that the Department had broken its commitment to give them recall priority.
3. Grievances
[7] The applicants argued that, in the fall of 2002, the Department filled its operational requirements with interim hirings, transfers and assignments from higher levels. Mr. Dubé filed his first grievance on November 1, 2002 and two other grievances on November 5, 2002. Ms. Germain filed her first grievance on November 21, 2002. In these reasons for order, the grievances will be referred to as “the 2002 grievances”. In their grievances, the applicants submitted that the Department had not observed its commitment to consider them for recall during off periods. The applicants further objected to the requirement that they take part in selection competitions in order to qualify for PM-01 group and level positions, despite the fact that they had already qualified for those positions. The applicants argued that the Department was bound by Ms. Harvey’s oral commitment, by the “Guidelines” document and by the Public Service Commission’s values and ethics code (the values and ethics code). Therefore, the Department should have offered the available work to the applicants.
[8] In the 2002 grievances the applicants sought inter alia the following relief:
[translation]
(1) that the Department give the applicants priority consideration for any recall to work during their time without a contract for the Department in respect of PM‑01 positions and any other positions in the organization;
(2) that the Department give the applicants priority consideration for any permanent appointment to a PM-01 position; and
(3) that the Department give the applicants confirmation that it is not necessary to participate in level PM-01 selection competitions in order to be placed on an eligibility list. The applicants also filed further grievances on November 20, 2003.
[9] After having learned in 2003 that the Department had hired part-time PM-01 staff during the off periods of their seasonal employment contracts, the applicants filed two further grievances (“the 2003 grievances”). In the latter grievances they sought the following relief: that the Department pay them lost salary and adjust their retirement fund, salary level, vacation and sick leave accordingly.
[10] Finally, Mr. Dubé filed a grievance in 2004 after the Department hired students to meet its operational requirements in several offices despite the fact that Mr. Dubé was not working. No copy of this last grievance or the details of the grievance or the relief sought was given to the Court.
4. Legislation
[11] The applicants filed their grievances pursuant to subsection 91(1) of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). That provision reads as follows:
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91. (1) Where any employee feels aggrieved |
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 : |
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(a) by the interpretation or application, in respect of the employee, of |
a) par l’interprétation ou l’application à son égard : |
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(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 |
(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, |
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(ii) a provision of a collective agreement or an arbitral award, or |
(ii) soit d’une disposition d’une convention collective ou d’une décision arbitrale; |
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(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.
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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.
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[12] Under section 100 of the PSSRA, the Public Service Staff Relations Board may make regulations in relation to the procedure applicable to grievances. Under those regulations, an employer may establish an internal grievance procedure, but the procedure must include a first level and a final level and may not have more than four levels. In addition, subsection 100(4) of the PSSRA provides that an employer may designate the person whose decision on a grievance constitutes the final or any level in the grievance process.
[13] The internal procedure established by the Department for processing grievances by its employees consists of three levels, namely the first level of management, followed by an intermediary level and finally the last level, involving the Assistant Deputy Minister.
4. Impugned decision
[14] The applicants’ grievances were heard at the three levels of the Department’s internal procedure and at each level the responsible decision-maker dismissed their grievances. The decision impugned by the instant application for judicial review is that by the Assistant Deputy Minister Ms. Gobeil, which was made at the final level of the Department’s internal procedure. Ms. Gobeil made one decision disposing of all of Mr. Dubé’s grievances and a second decision disposing of all of Ms. Germain’s grievances.
[15] Firstly, Ms. Gobeil found that, under subsection 91(1) of the PSSRA, she did not have jurisdiction to hear the applicants’ grievances as their grievances [translation] “did not relate to the interpretation of a clause in the collective agreement or working conditions”. Nevertheless, she addressed the grievances on the merits. Ms. Gobeil held that the “Guidelines” document provided that local management undertook only to give priority to employees who were qualified on the eligibility list and that this practice was consistent with the Public Service Commission’s values and ethics code. As the applicants did not take part in the selection competitions, management could not assume that their candidacy met the requirements of the position.
[16] Although in her decision Ms. Gobeil did not expressly approve the decisions rendered at the lower levels of the internal grievance resolution procedure, the decisions at all levels are interrelated and cannot be dealt with in isolation. Moreover, in this application for judicial review the applicants are challenging the holding to the effect that the Department was under no commitment to give the applicants recall priority. That was the holding of the decision‑makers at the lower levels, not of Ms. Gobeil. In such circumstances, therefore, it is necessary to consider the decisions made at all levels. For the purposes of the following analysis, the application for judicial review will deal with the Minister’s decision, including the findings and holdings made at all levels.
[17] In response to the 2002 grievances at the first level, Ms. Harvey, the Department’s Service Delivery Manager in Québec, found that local management had made no commitment to give appointment priority to the applicants during off seasons. In her decision of February 6, 2003, Ms. Harvey also added that the “Guidelines” document did not constitute terms or conditions of employment, but was only intended to provide information on the differences between seasonal and full-time employment with regard to benefits and the application of the collective agreement. The only commitment that the Department had made to the applicants, Ms. Harvey found, was in the employment offer letter. Further, Ms. Harvey said that [translation] “. . . giving appointment priority to employees with a seasonal status would be contrary to the legislation and regulations applicable in the Federal Public Service”.
[18] On January 12, 2004, Lucie Tremblay, the Department’s Service Delivery Manager in Québec, rendered a decision at the first level on the 2003 grievances. She agreed with Ms. Harvey that local management had never given any commitment to the applicants to give them hiring priority in their off season and that the only commitment the Department had made to the applicants related to their seasonal positions in the Department’s regional office in Donnaconna of a duration of six months a year. Ms. Tremblay also said that the “Guidelines” document was a local policy on priority only in the Department’s regional office in Saguenay‑Lac St. Jean.
[19] At the second level of the internal grievance resolution procedure Danielle Vincent, the Assistant Deputy Minister, considered all the grievances of each applicant as a whole. She confirmed that the “Guidelines” document did not constitute a commitment to give the applicants priority and the only commitment made was to be found in the terms specified in the letter of employment. Further, Ms. Vincent concluded that local management was justified in using selection methods with a competition and that a seasonal employee held no employment priority status for any other position.
5. Issues
[20] Although several issues were raised by the applicants, I would state the relevant issues as follows:
(1) Were the grievances admissible under section 91 of the Public Service Staff Relations Act?
(2) Was the Minister required to give the applicants recall priority?
6. Standard of review
[21] Under the case law of the Supreme Court of Canada, it is the pragmatic and functional analysis which applies when decisions of administrative agencies are reviewed: see for example Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; and New Brunswick Law Society v. Ryan, [2003] 1 S.C.R. 247. The pragmatic and functional approach requires analysis of the following four background factors:
1. the presence or absence in the legislation of a privative clause or right of appeal;
2. the expertise of the administrative agency as compared with the reviewing court on the point at issue;
3. the purpose of the Act as a whole and the provision in particular; and
4. the nature of the problem – law, fact or mixed law and fact.
[22] The interaction between these four factors determines the degree of deference that should be accorded to the administrative decision itself. That deference should also be related to three standards of review, correctness, reasonableness simpliciter and patently unreasonableness decision: Ryan, supra, at paragraph 24. I will now proceed to analyse these four factors.
[23] In this case, the impugned decision concerns two findings: (a) the Minister’s authority to hear the applicants’ grievances; and (b) whether the Department undertook to give the applicants priority. The appropriate standard of review must be determined for each of these questions.
1. Nature of appeal or review procedure
[24] First, under subsection 96(3) of the PSSRA the decision at the final level of a grievance is subject to a privative clause:
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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. |
Subsection 96(3) of the PSSRA provides that, except for grievances that under section 92 may be referred to adjudication, a decision on a grievance taken at the final level in the grievance process is final and binding for all purposes of the Act and no action specified in the Act may be of assistance to the parties. Under subsection 92(1), a grievance may be referred to an adjudicator only when the grievance concerns the interpretation or application of a collective agreement or disciplinary action resulting in the suspension of an employee or a financial penalty. It is clear that the grievances at issue here do not fall within the category covered by subsection 92(1) of the PSSRA and, therefore, an adjudicator would have no authority to consider such grievances.
[25] In view of the presence of a privative clause in subsection 96(3) of the PSSRA, the Minister must be accorded a high degree of judicial deference.
2. Tribunal’s expertise as compared with the Court
[26] As McLachlin C.J. of the Supreme Court of Canada noted at paragraph 28 in Dr Q, supra, legislatures will sometimes remit an issue to a decision-making body that has particular topical expertise or is adept in the determination of particular issues. Comparing the relative expertise of the administrative decision-maker with that of the Court requires considering three points. The Court must:
(a) characterize the expertise of the administrative decision-maker;
(b) compare the administrative decision-maker’s expertise with its own expertise;
(c) identify the nature of the specific issue before the administrative decision-maker relative to this expertise.
When the administrative decision-maker in some way has greater expertise than the Court and the issue falls within that expertise, therefore, a higher degree of deference is required.
[27] The first issue in this case concerns the Minister’s authority to hear the applicants’ grievances. That issue essentially raises a question of statutory interpretation, which does not fall within the Minister’s expertise. Therefore, a lower degree of judicial restraint would be warranted.
[28] As to the second issue, in my view such a determination falls within the Minister’s powers. The Minister has a thorough knowledge of the policies, procedures and rules of the Department in question for filling positions during the off season. The question of what terms and conditions are part of the applicants’ employment is thus clearly a matter for the Minister’s expertise. Therefore, the Minister’s degree of expertise compared with that of the Federal Court leads this Court to exercise some restraint.
3. Purpose of the Act
[29] In the third part of the pragmatic and functional analysis, the Court must consider the purpose of the system created by the Act as a whole as well as the particular provisions involved in this review application. In Dr Q, supra, at paragraphs 31 and 32, McLachlin C.J. commented on the difference between a “polycentric” purpose and a “jurisdictional” purpose regarding judicial restraint.
31 A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court . . .
32 In contrast, a piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference. The more the legislation approximates a conventional judicial paradigm involving a pure lis inter partes determined largely by the facts before the tribunal, the less deference the reviewing court will tend to show.
[30] The object of the PSSRA is to create a complete system for dispute resolution in labour relations, including the working conditions of Public Service employees: Scheuneman v. Canada (Attorney General) (T.D.), [2000] 2 F.C. 365. The object of subsection 91(1) of the PSSRA is to resolve grievances through an internal procedure of the employer, and if applicable, an outside adjudicator. Essentially, this section of the Act reflects classic judicial considerations. Taken together, the object of the PSSRA as a whole and of subsection 91(1) suggest a lower degree of deference to decisions by the Minister on grievance resolutions.
4. Nature of the question
[31] Finally, in this case there are two different types of issue. First, the Minister held that the applicants’ grievances were not admissible under the PSSRA. This decision turns on a point of law and consequently no judicial restraint should be shown.
[32] The subject-matter of the second question is a mixed question of fact and law, namely whether the doctrine of promissory estoppel is applicable in the circumstances of the case at bar. However, the “fact” component is more important than the “law” component, since the Minister’s decision was based on assessment of the evidence in the record. This requires great deference from the Court.
[33] Having considered these factors, I hold that the standard applicable to the first issue is that of correctness. On the issue of whether the Minister observed the commitment to give the applicants recall priority, I am of the view that the standard of review is that of reasonableness simpliciter.
7. Analysis
A. Were grievances admissible under section 91 of Public Service Staff Relations Act?
[34] In her decision, the Assistant Deputy Minister Ms. Gobeil held that the applicants’ grievances were not admissible under subsection 91(1) of the PSSRA since they did not have to do with [translation] “interpretation of a clause in the collective agreement or working conditions”. The respondent argued that the grievances were inadmissible because they related to a question for which an administrative procedure for redress was provided by another Act of Parliament. In the respondent’s submission, this other administrative remedy was to be found in the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA).
[35] Reference must be made to Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27, a judgment of the Federal Court of Appeal. In that case, Mr. Justice Allen Linden reiterated that, in the light of the wording of subsection 91(1), Parliament’s intention was to remove from the ordinary grievance resolution procedure under the PSSRA some specialized areas that it felt should be dealt with by the administrative process created by legislation on those matters. At paragraph 3, Mr. Justice Linden wrote:
As early as in 1974 in In re Cooper, Mr. Justice Pratte stated:
Under section 90 a grievance may not be presented if it relates to a matter in respect of which an “administrative procedure for redress is provided in or under an Act of Parliament”. Where a procedure is so provided under which an employee’s grievance may be redressed, the aggrieved employee cannot resort to the grievance procedure under sections 90 and 91 of the Public Service Staff Relations Act but must submit his complaint to the authority which has, under the appropriate statute, the power to deal with it. An employee who is dissatisfied with the decision of that authority may not file a grievance under sections 90 or 91 in respect of that decision.
Therefore, in this case, if there was an adequate alternative remedy under other legislation for resolving the dispute between the applicants and the Department, the Minister did not have the authority to hear it under subsection 91(1) of the PSSRA.
[36] In order to determine whether the applicants may file their grievances under subsection 91(1) of the PSSRA, the nature of the grievances must be considered. The respondent submitted that the applicants were essentially seeking recall priority if a position became available. As the question was one of staffing, the respondent argued that the proper remedy for such grievances was to be found in section 21 of the PSEA. The respondent contended that the PSEA is a self‑contained system of administrative procedures of redress with respect to Public Service appointments. In that case, the respondent submitted, it is the Public Service Commission (the Commission) that had jurisdiction to hear the applicants’ grievances under section 21 of the PSEA, not the Minister under the PSSRA.
[37] Section 21 reads as follows:
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21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. |
21. (1) Dans le cas d’une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l’appelant et l’administrateur général en cause, ou leurs représentants, ont l’occasion de se faire entendre. |
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(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than by competition, any person who, at the time of the selection meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. |
(1.1) Dans le cas d’une nomination, effective ou imminente, consécutive à un concours interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l’appelant et l’administrateur général en cause, ou leurs représentants, ont l’occasion de se faire entendre.
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[38] The applicants argued at the hearing that it was patently unfair for the Minister to advise them nearly three years later that their grievances were not admissible under the PSSRA. In any event, the applicants contended that their grievances pertained to the Minister’s jurisdiction under the PSSRA. Contrary to the respondent’s arguments, the applicants described their grievances as questions involving the terms and conditions of their employment, not the appointment.
[39] It would have been better if the question of admissibility had been raised before the case reached the final level of the internal grievance resolution procedure. Despite that, an employee cannot make use of the grievance procedure established under subsection 91(1) when other administrative procedures of redress exist. Nevertheless, in this case I consider that the Minister has the jurisdiction to hear the applicants’ grievances under subsection 91(1) of the PSSRA. My reasons are as follows.
[40] In my opinion, the nature of the applicants’ grievances did not relate to the appointment. Rather, their grievances challenged the actions taken by the Department to fill positions when the applicants were without work. The applicants asked that the Department observe the terms and conditions of their offer of employment letter, which the applicants allege contained a commitment to offer positions during the off seasons to them first. The question on which the applicant’s grievances turns is whether the Department did make such a commitment.
[41] In this case, I am of the view that the appeal procedure provided by section 21 of the PSEA is not an administrative remedy preventing the applicants from filing their grievances under subsection 91(1) of the PSSRA. In my view, section 21 does not in any way deal with the determination of a question having to do with terms and conditions of employment. Subsection 21(1) deals with the procedure by which an unsuccessful candidate may appeal from an appointment following a competition. Subsection 21(2) deals with the procedure by which any person who meets the criteria established pursuant to a process of personnel selection other than a competition appeals from an appointment. It follows that, since the applicants’ grievances were based on a failure to observe a commitment made in the “Guidelines” document and the statements by Ms. Harvey, those grievances could not be dealt with by the Commission. As a result, no administrative procedure for redress exists under the PSEA.
[42] Therefore, I am of the opinion that the Minister must consider the applicants’ grievances under subsection 91(1) of the PSSRA. I will accordingly review the Minister’s decision on the merits.
B. Was the Minister required to give the applicants recall priority?
[43] The applicants submitted that the Minister made a reviewable error in finding that the Minister did not undertake to give the applicants recall priority. As a result of the alleged commitment, the applicants submitted that the rule of promissory estoppel applied and that the Minister was barred from hiring other individuals before having offered the positions to the applicants.
[44] The respondent submitted that the applicants had not discharged their burden of proof regarding the doctrine of promissory estoppel. The respondent contended that there had been no promise and that the “Guidelines” document had never altered the applicants’ terms and conditions of employment. Moreover, the respondent said that the Department could not make a promise with respect to hiring as that would contravene the merit principle.
[45] The doctrine of promissory estoppel was set out in Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50. At page 57, Sopinka J. said the following:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John Burrows Ltd. v. Subsurface Surveys Ltd., [1968] S.C.R. 607, Ritchie J. stated, at p. 615:
It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as a result of the negotiations.
This passage was cited with approval by McIntyre J. in Engineered Homes Ltd. v. Mason, [1983] 1 S.C.R. 641, at p. 647. McIntyre J. stated that the promise must be unambiguous but could be inferred from circumstances.
[46] In short, according to the case law, such a promissory estoppel cannot exist unless there is an express or implied promise the effects of which are clear and precise. It is also well settled that the doctrine of promissory estoppel requires that the promise led the person to whom promise was addressed to act in some other way than he or she would have acted in other circumstances: see The Queen v. Canadian Air Traffic Control Association, [1984] 1 F.C. 1081 (F.C.A.), at page 1085.
[47] In order to meet the requirements of the doctrine of promissory estoppel, the applicants must offer evidence showing that:
(1) by its words or actions the Department made a promise to give the applicants priority designed to alter their legal relations and encourage the performance of certain acts;
(2) on account of that commitment, the applicants took some action or in some way changed their positions.
[48] For the reasons that follow, I am of the view that the evidence does not support a finding of a promissory estoppel in this case.
[49] The applicants argued that their employer was bound by the statements made by Ms. Harvey, the “Guidelines” document and the Commission’s code of values and so had to offer work that was available to the applicants. As proof of that commitment, each applicant filed an affidavit.
[50] On the representations of their employer, Ms. Germain maintained that Ms. Harvey had given an assurance that the Department undertook to give her priority of employment in slow periods. Mr. Dubé, for his part, contended that [translation] “when I was hired, I was clearly told and given assurances that the employer would give me priority during slow periods”. The applicants also stated that they had been told when they accepted the seasonal positions that they would be given priority if a position became available.
[51] On the “Guidelines” document, the applicants simply argued that they had received a copy of the document and it had been confirmed that the document was part of their terms and conditions of employment. Finally, the applicants referred in their respective affidavits to a letter written by Jocelyne Tanguay, director of the Department’s regional office in Saguenay‑Lac St. Jean, in February 2004. The applicants stated that, in her letter, that was attached to their affidavits, Ms. Tanguay confirmed that the Department had agreed to give seasonal employees priority when replacements were made during their slow periods.
[52] Having read the applicants’ statements, I am of the view that the evidence does not support the existence of an unambiguous promise, the effects of which are clear and precise. Firstly, I note that in their respective affidavits the applicants are vague about the details of the alleged commitment. For example, Mr. Dubé did not name the manager who gave him the assurance of priority. Also, the applicants did not name the departmental representative who is said to have confirmed for them the purpose or effect of the “Guidelines” document. In addition, the applicants did not mention the dates on which the Department allegedly made these statements and gave these assurances.
[53] Moreover, in her affidavit Ms. Harvey denied having made an oral promise to the applicants that they would have employment priority during their off seasons. Ms. Harvey claimed that the only document officially given to Mr. Dubé and Ms. Germain was their employment offer letter and that such offer letters set out the sole commitment made to the applicants, namely the periods during which their services would be required from year to year.
[54] As earlier mentioned, the applicants did not give the Court copies of their employment “contract”. Based on the evidence before the Court, I cannot find that the “Guidelines” document or Ms. Tanguay’s letter altered the terms and conditions of the applicants’ employment contained in the offer letter. In my opinion, the wording of the “Guidelines” document and of Ms. Tanguay’s letter suggests a line of conduct adopted by local management to fill its operating requirements: they do not represent an unambiguous commitment to give recall priority to seasonal employees in general or to the applicants in particular. Indeed, I note that neither the “Guidelines” document nor Ms. Tanguay’s letter were addressed to the applicants.
[55] Evidence of a commitment is critical in establishing the validity of an allegation based on the principle of promissory estoppel. In short, I consider that the conclusions drawn by the applicants from certain passages in the “Guidelines” document and Ms. Tanguay’s letter to the effect that such a commitment existed are not sufficient evidence to support an application of the doctrine of promissory estoppel.
[56] The above finding is sufficient to dispose of this case. That being said, even if the applicants had been able to persuade the Court of the existence of such a promise, I am of the view that they failed to show that they took any action or in any way altered their positions on account of that promise. Accordingly, the second requirement of the doctrine of promissory estoppel has not been met in this case.
[57] In their memorandum of fact and law, the applicants argued that they acted on the basis of the Department’s commitment when they signed their respective contracts of employment and failed to apply for positions in a competition. However, nothing in their own affidavits indicates that the reason the applicants accepted the seasonal positions was the alleged promise or that the applicants relied on that promise when choosing not to participate in the staffing competitions.
[58] In view of the gaps in the evidence in the record, the applicants did not establish the existence of the alleged commitment. Accordingly, the doctrine of promissory estoppel cannot be applied. I am of the view that the impugned decision by the Minister contains no error which could support a conclusion of unreasonableness. The decision is clearly based on the facts in the record and there is no basis for altering it.
[59] Two other points made by the applicants deserve to be addressed. Firstly, the applicants alleged that the Department changed its staffing policies and did not inform the applicants of the consequences of failing to apply for competitions. The applicants submitted that this was a breach of the code of values and ethics and that they suffered damage therefrom. The code of equity and values requires that candidates be informed of their rights before staffing is undertaken. I do not accept the applicants’ argument that the Department breached the code of equity and values. In fact, the evidence on the record was that Ms. Harvey informed the applicants in 2002, before the end of the period of employment stipulated in their letter of employment, that they would have to apply for customer service officer competitions if they wished to be hired when the off seasons arrived. Ms. Germain did not apply and Mr. Dubé failed in the course of the process and so did not appear on an eligibility list. Further, the applicants themselves admitted that they were told of the need to apply for competitions. Moreover, in their 2002 grievances the applicants objected to the requirement that they had to participate in level PM‑01 selection processes.
[60] Secondly, as to Ms. Gobeil’s finding that the Department could not assume that the applicants met the requirements of the position, the applicants argued that there was no basis for finding that they were not qualified. In my view, Ms. Gobeil did not find that the applicants lacked the necessary qualifications: rather, she found that the applicants had not qualified on an eligibility list as they had not participated in the selection competitions.
8. Conclusion
[61] For the foregoing reasons, the application for judicial review is dismissed with costs. Based on the evidence on the record, I cannot conclude that the Minister made any reviewable error.
ORDER
THE COURT ORDERS:
1. the application for judicial review be dismissed;
2. The whole with costs.
“Edmond P. Blanchard”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: Serge Dubé and Judith Germain v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 8, 2006
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Blanchard
APPEARANCES:
Sean T. Magee FOR THE APPLICANTS
Neil McGraw FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nelligan, O’Brien, Payne FOR THE APPLICANTS
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Attorney General of Canada