BETWEEN:
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
[1] In May 2004, Pierre Girard, an employee of the Canada Customs and Revenue Agency (CCRA), received an internal e-mail announcing a position to be filled. The “Notice of Interest” stated the following:
[translation]
An AU-2 level position is vacant in the real property appraisal division . . . In addition, as the expertise of a property appraiser requires a significant amount of training time, the successful candidate will have to be willing to devote several years of his or her career to it.
[2] Mr. Girard and some of his fellow employees responded to the “Notice of Interest”. His application was accepted with that of three other employees.
[3] Accordingly, Mr. Girard took part in a competition process which included the submission of a portfolio and a written test. However, he did not obtain the desired position, which was offered to one of his fellow employees, and decided to seek the recourses made available by the staffing program. However, he was not allowed to seek an independent third party review (ITPR) on account of the fact that the position to be filled had been designated as a temporary lateral transfer, not a permanent position. It is this decision by the adviser not to allow him to seek an ITPR that Mr. Girard is now challenging with his application for judicial review in this Court.
Facts
[4] The CCRA was created by subsection 4(1) of the Canada Customs and Revenue Agency Act. Section 54 of the Act provided that the Agency could create its own staffing program. That program determined not only how employee appointments would be made, but also the recourses available to them.
[5] The directive on Recourse for Staffing provides that an employee who is not satisfied with a decision made in a staffing process or who does not successfully go through the staffing process may exercise one of three available recourses, depending on the nature of the employment, namely individual feedback, internal review of the decision or the ITPR.
[6] When Mr. Girard learned that he had not been given the position, he applied for an individual feedback. After the feedback session, the CCRA allows employees not satisfied with the latter to initiate an ITPR application. This remedy provides that an employee wishing to have an ITPR must make an application in writing to the CCRA Office of Dispute Management and the manager who made the decision on the position. The Office of Dispute Management must then check the application to see that it meets all the prior requirements for an ITPR. One of those conditions is that the position be permanent. If the relevant requirements are met, the application is forwarded for an independent third party review.
[7] When Mr. Girard sought an ITR, the adviser refused to refer his complaint for the ITR under the CCRA Directives providing that that remedy is only available for permanent positions. Accordingly, the adviser argued that she did not have jurisdiction to refer the complaint for an ITR, since the position was temporary and not permanent.
[8] It should be noted that Mr. Girard had no opportunity to make formal submissions, either in person or in writing, in an effort to explain why, in his opinion, the position for which he had applied was an internal selection process for a permanent position.
[9] Despite Mr. Girard’s efforts, he was informed in writing on October 1, 2004, that his participation in the competition was for a temporary, not a permanent, position and that his application for an ITR was accordingly rejected.
[10] When Mr. Girard received the “Notice of Interest”, he interpreted it as relating to a permanent position, while the CCRA manager maintained that the notice by implication advertised a temporal lateral transfer. The Court does not have to make a decision on the merits of the competition or the manager’s decision to award the position to an employer other than Mr. Girard. The Court is not called to determine whether the position is permanent or temporary either. Quite simply, Mr. Girard is entitled to challenge the manager’s decision and to allege that the adviser made a decision and that Mr. Girard was thereby deprived of a fair process.
Issues
[11] There are thus two issues submitted to this Court: first, did Mr. Girard benefit from a fair proceeding? – second, what standard of review is applicable in the case at bar?
Analysis
[12] In the case at bar, the Court must examine the process that the adviser followed in arriving at her decision. If I find that it was not fair, I do not have to rule on the applicable standard of review.
[13] The fact that the CCRA controls its own staffing program does not mean that it can apply whatever directives it likes. In Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 127, Binnie J. cited the remarks of Le Dain J. in Cardinal v. Director Kent Institution, [1985] 2 S.C.R. 643, at p.653:
14. . . . This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual . . .
[14] First, the adviser never initiated any proceeding, in writing or by a hearing, to determine the nature of the position in issue. As seen in Cardinal, supra, at paragraph 20:
[15] The fact that the Act allows the Program to give effect to these Directives creates a legitimate expectation that there will be procedural fairness. The CCRA is nevertheless subject to the rules of natural justice and must ensure that the remedial process available to employees pursuant to the Directives will be observed.
[16] If the adviser had doubts or concerns about whether the position was a permanent or temporary one, she never told Mr. Girard about them so that he could respond. This necessarily entails a breach of natural justice, since she should have expressed her concerns and then given him a chance to address them. The parties acted on the assumption that, if the adviser did have concerns, she was supposed not only to mention them but to give Mr. Girard a chance to respond. The CCRA suggested that the adviser advised Mr. Girard orally on August 10, 2004 that this was not a permanent position and that he was therefore not entitled to an ITPR. However, Mr. Girard had no opportunity to respond to that statement. Accordingly, the question whether the dispute could be heard by an independent third party was never discussed. In Maurice v. Canada (Treasury Board) 2004 FC 941, [2004] F.C.J. No. 1165 (QL), Gauthier J. stated at paragraph 32:
. . . it has already been shown that the Committee must give an employee or his or her representative an opportunity to make submissions on additional or contradictory information obtained from the employer or on new facts that may influence the Committee’s decision.
[17] Mr. Girard could not automatically seek the ITPR remedy. For Mr. Girard’s application to be referred to an independent third party, the adviser had to decide that his application was admissible. Although the proceeding before the adviser was not of an adversary nature, the adviser’s decision significantly affected Mr. Girard’s rights. As Décary J.A. noted in Chong v. Canada (Treasury Board) (1999), 170 D.L.R. (4th) 641, [1999] F.C.J. No. 176 (QL), at paragraph 12:
In our view, nothing turns on whether the process is defined as being adversarial or non-adversarial. There is clearly a dispute between parties which the grievance process seeks to resolve and the duty of fairness clearly applies to that process. The content of the duty of fairness will be more or less comprehensive depending upon the nature of the interests affected by the decision and the nature of the process involved.
[18] Secondly, Mr. Girard believed that the position was a permanent position entitling him to an ITR. This fundamental belief gave rise to a reasonable expectation that should have been addressed fairly by the adviser. If, based on the information at her disposal, the adviser was unable to make a decision, she at the very least had a duty to allow Mr. Girard to defend his case regarding the nature of the position and then assess the situation. See Wire Rope Industries of Canada (1966) Ltd. v. British Columbia Marine Shipbuilders Ltd., [1981] 1 S.C.R. 363, where McIntyre J. said, at paragraph 16:
. . . during argument the Court raised the question of jurisdiction of the Federal Court Trial Division to entertain Yorke’s action for indemnity against Wire Rope. This point had not been raised before. Counsel were referred to the judgment of this Court in R. v. Thomas Fuller Construction Co. (1958) Limited and Foundation Company of Canada Limited, [1980] 1 S.C.R. 695. The hearing was adjourned to give time for counsel to consider the position in the light of the Fuller case and to submit new factums on the question of jurisdiction so that it could be argued in full.
[19] In the view of this Court, it is clear that procedural fairness is in issue. Then, as explained before, no analysis of the applicable standard of review is necessary. However, in the case at bar even if the issue of procedural fairness is put aside, the adviser’s decision is patently unreasonable.
[20] To begin with, this Court is unable to analyse the adviser’s reasoning, since she gave no explanation of her decision. As was stated in R. v. Sheppard, [2002] 1 S.C.R. 869 (QL) , at paragraph 15:
It is thus impossible for Mr. Girard or this Court to see how she concluded that the position was temporary. It is true that offering reasons in writing is not a requirement: however, in this context, how can the Court be expected to decide that the adviser made the right decision, or even a reasonable one?
[21] The failure to give an explanation in support of her reasoning is risky for the adviser as, even if her decision may not appear reasonable a priori, there is a guideline which the Court can follow to determine how she reached her decision. As noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL) at paragraph 39:
In the case at bar, there is no guideline to follow. To determine whether the decision was reasonable, therefore, the Court must rely on the evidence presented by the parties. If the evidence points to a result different from that arrived at by the adviser, it will then be difficult for the Court to support the latter’s reasoning.
[22] It is also important not to overlook the fact that she exercised no independent judgment in coming to the conclusion that the position was temporary and not permanent. The manager claimed that, despite what Mr. Girard believed, this changed nothing about the temporary nature of the position and the fact that, under the Directives, a temporary lateral move is not subject to an ITR. The adviser’s function is to determine what can be redressed by way of an ITR, and one of the determining factors is whether the position can be classified as temporary or permanent. To do this, the adviser did no independent research, examined no evidence and consulted no individuals affected by the matter. She relied solely on the claim made by the manager that the position was temporary, and moreover did not tell Mr. Girard of this. By refusing to exercise independent judgment so as to make this distinction, she failed to carry out her duties, which ultimately is a question of ability.
[23] This Court has already said that its role is not to decide whether a position is temporary or permanent or to determine the criteria of the competition. However, without some explanation of the adviser’s reasoning, the Court must rely on the evidence presented by the parties in determining whether the decision was patently unreasonable. The Court has great difficulty with the respondent’s contention that the position was temporary. One cannot rely simply on the statement that the position is temporary and classify it as such. The actual nature of the position has to be determined. On account of the fact that the candidate must devote several years of his career, namely five years, and that the position had existed long before the posting of the “Notice of Interest”, the Court is of the view that the position was permanent.
[24] Further, an analysis of the wording of the staffing program Directives reveals an ambiguity between the French and English versions, which may be resolved in Mr. Girard’s favour. Where the English version of the directives states that one of the conditions of the availability of an ITR is that the position be a “permanent appointment”, the French version refers to a “promotion à un poste permanent”. This Court is not inclined to enter into a semantic debate but it will simply note the fact that, in such contexts, if there is ambiguity in the Directives, the employer should not be in a position to base its argument on one version of the wording so as to adversely affect the rights conferred by the Directives. When this case came before this Court, it became clear there was an ambiguity between the French and English versions. This then is additional factor which should be considered in the redetermination.
[25] Based on the facts presented by the parties, and without having had the advantage of understanding the adviser’s reasoning, this Court is of the view that the latter’s decision was patently unreasonable.
[26] There is an additional issue: is the affidavit of Julie Skinner admissible in this Court? Under Rule 81(1) of the Federal Court Rules, the affidavit is not admissible since Ms. Skinner had no personal knowledge of the facts set out in it. Further, as the salary of the employee who obtained the desired position has no bearing in the case at bar, the affidavit will not be admitted. However, the Court should like to point out that, once again, this kind of evidence could have been heard as part of the arguments pertaining to the nature of the position.
[27] Mr. Girard also incorporated in his file sociological studies in support of his argument that the position was permanent, and not temporary. Although those studies have some value with respect to Mr. Girard’s argument, they are inadmissible in this Court precisely because they were never submitted to the adviser and they are an attachment to the affidavit of Christopher Rootham, the applicant’s assistant counsel. They are thus hearsay and in violation of Rule 81(1) of the Federal Court Rules. However, this documentation is a good example of what could have been submitted to the adviser so as to determine whether the position was permanent or temporary: see Jacques Rice v. Attorney General of Canada, [2005] F.C.J. No. 1439, at paragraph 24.
[28] For information, there are certain other submissions made by the applicant and respondent and that this Court deems worthy. Mr. Girard cited a great number of cases, such as Doré v. Canada, [1987] 2 S.C.R. 503, and Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, to illustrate the distinction between temporary and permanent positions and between appointments and assignments. The respondent raised the fact that this case law is irrelevant as all the cases relate to section 21 of the Public Service Employment Act. As mentioned above, this Court does not have to rule on that point. However, analogies may be drawn from those cases as to how a temporary or permanent position should be defined, and in particular as to how courts tend to assess the duration of a position and the duties thereof.
[29] Moreover, it would be strange to think that an employee, such as a temporary summer employee, working for the CCRA, cannot follow the process required by the Department but can directly initiate an application for judicial review in the Federal Court. In other words, the respondent’s evidence appears to indicate that a permanent employee must use the remedies required by the CCRA Directives and cannot then have a right of appeal to the Federal Court, whereas a temporary employee has a direct right of appeal to the Federal Court. There is no logic in that theory.
[30] Finally, the fact remains that Mr. Girard should have had an opportunity to make submissions about the nature of the position. Despite the fact that the review in question is made by an independent third party who interprets directives specific to a department such as the CCRA, it is still necessary to ensure procedural fairness to the individuals concerned. It is clear Mr. Girard was deprived of procedural fairness.
[31] Accordingly, for all the aforementioned reasons, the application for judicial review is allowed with costs. The adviser’s decision is set aside and the matter referred back to another adviser for redetermination.
“Sean Harrington”
Judge
Ottawa, Ontario
September 30, 2005
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1844-04
STYLE OF CAUSE: PIERRE GIRARD v. CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 7, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Harrington
APPEARANCES:
Sean T. McGee FOR THE APPLICANT
Richard Casanova FOR THE RESPONDENT
SOLICITORS OF RECORD:
NELLIGAN, O'BRIEN, PAYNE FOR THE APPLICANT
Ottawa, Ont.
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada