Federal Court Decisions

 

 

 

 

Date: 20060918

Docket: T-2202-05

Citation: 2006 FC 1117

Ottawa, Ontario, September 18, 2006

PRESENT:     The Honourable Madam Justice Tremblay-Lamer

 

 

BETWEEN:

PROFESSIONAL ASSOCIATION OF

FOREIGN SERVICE OFFICERS

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

[1]               This is an application for judicial review of a decision made by the Deputy Minister of Foreign Affairs Canada (the Deputy Minister) to conduct a deployment exercise into the FS-2 and FS-3 job classifications. The decision, dated December 8, 2005, announced to all employees of the Department of Foreign Affairs Canada (FAC), explained that FAC was proceeding with a deployment exercise that would permanently transfer or deploy employees from other job groups into the Foreign Service Group (the FS Group).

 

BACKGROUND

 

            PSEA, 1985 and PSEA, 2003

 

[2]               The PSEA is the statute that governs staffing decisions within the federal Public Service. It establishes the authority, procedures and criteria by which the federal government can staff particular positions in the public service.

 

[3]               Prior to December 31, 2005, appointments to positions with the federal Public Service were governed by the PSEA, 1985. The Public Service Modernization Act, 2003, c. 22 revised the PSEA, effective December 31, 2005 (PSEA, 2003).

 

PAFSO

 

[4]               The applicant, the Professional Association of Foreign Service Officers (PAFSO), is a professional association that represents approximately 1200 active Foreign Service (FS) employees. PAFSO is also the certified bargaining agent for the FS Group pursuant to the Public Service Labour Relations Act, 2003, c. 22 and has been the legal bargaining agent for Foreign Service officers since 1968.

 

 

 

 

The FS Group

 

[5]               The FS Group is an occupational classification within the federal Public Service of Canada. Employees in the FS Group are primarily involved in the planning, development, delivery and promotion of Canada’s diplomatic, commercial, human rights, cultural, immigration, and international development policies and interests in foreign countries and in international organizations.

 

FS Group Classification

 

[6]               The FS Group classification standard was first introduced in the late 1960s or the early 1970s to coincide with the introduction of collective bargaining. At one time there were many levels of FS officers, but by the mid-1980s they were compressed into two: FS-1 and FS-2. All candidates would enter at the FS-1 level with opportunities for promotion to FS-2 being dependent upon the number of vacancies at that level.

 

[7]               During collective bargaining in 1998, the applicant and the Treasury Board Secretariat (the Treasury Board) discussed and agreed to the introduction of the Foreign Service Development Program (the FSDP). The FSDP was designed as an occupational training program that would allow entry level recruits to move automatically to the working only level (FS-2) after successful completion of the five-year program. As the remaining FS-1 employees were promoted, the FS-1 level was to be phased out, leaving only the FSDP and FS-2 level positions.

 

[8]               Following a major review in 2004, the federal government introduced two more FS classifications. The new FS classification structure now provided for four levels: FSDP, FS-2, FS-3, and FS-4. At this time, the federal government also reduced the length of level one, the probationary FSDP, from the existing five years to three years.

 

[9]               As part of the conversion process to the new classifications, the Treasury Board decided that FS-2 employees under the old standard would be converted to FS-3 in the new standard. The new FS-4 level was created without any employees in it, with the view that it would be filled by competition.

 

[10]           Under the new classification plan, employees who successfully complete the FSDP are promoted automatically to the FS-2 level. Promotion to the FS-3 level requires a vacancy at that level. Given that all employees under the old FS-2 classification standard were converted to the new FS-3 level, it is unlikely there will be vacancies at this level for some time. FAC has estimated that it will take at least seven years to regularize this situation. Employees are filling the positions classified as FS-4 on an ongoing basis.

 

Proposed Lateral Entry Exercise

 

[11]           For the last several years, the competitive process for entry into the Foreign Service has not yielded enough candidates to fill the increasing number of vacant positions that require staffing.

 

[12]           Between 2001 and the fall of 2003, discussions took place between the applicant and FAC, then-called the Department of Foreign Affairs and International Trade (DFAIT), to address the high level of vacancies in the FS Group. Ultimately, DFAIT explained that it planned to conduct a single competition process that would be open to both FS and non-FS employees. This would potentially result in “lateral entry” that would give public service employees in other occupational groups the opportunity to join the FS Group at a classification higher than entry level. Historically, the only way to enter the FS Group, even for existing public service employees, was through a rigorous and fiercely competitive entry level recruitment process.

 

[13]           During their final meeting, DFAIT officials acknowledged that appointing non-FS employees to FS-2 level positions would create salary inequities. Pay regulations would normally require that employees appointed to new positions in different classifications should receive a salary increment level comparable to their previous position. Consequently, DFAIT’s proposal could have resulted in FS employees with several years of experience being paid less than newly appointed FS employees in the same FS classification level.

 

[14]           The applicant advised DFAIT that it recognized the need for a lateral entry exercise, but could only endorse a process that treated existing FS employees fairly and protected the integrity of the entry level recruitment process. The applicant explained that two measures were needed:

i.          a priority for appointment be given to qualified FSDP and FS-1 candidates in the competitive selection process; and

ii.          accelerated pay increments for existing FS-2 level employees in order to address salary inequities.

 

[15]           Although DFAIT representatives were not prepared to give FS employees priority in the competitive selection process, indicated they would give favourable consideration to accelerated pay increments. The applicant was subsequently advised that DFAIT would not entertain pay increments after all.

 

[16]           The applicant informed its members about DFAIT’s proposed “lateral entry” exercise and explained the concerns it had regarding the implications for those in the FS Group. For unknown reasons, DFAIT subsequently decided not to proceed with the lateral entry exercise.

 

Announcement of Deployment Exercise

 

[17]           On December 8, 2005, the Deputy Minister announced the launch of a deployment exercise for entry into the FS Group at the FS-2 and FS-3 levels. It read in part,

The purpose of this exercise is to meet immediate operational requirements for experienced, highly skilled officers at the more senior levels of the FS group. It will also provide non-FS employees with the opportunity to deploy into the FS group.

 

[18]           The applicant had heard of this plan for the first time only a few days before it was announced. In a telephone call, FAC had advised the applicant’s representative that it would shortly proceed with a “deployment” exercise, as opposed to a lateral entry promotional exercise, to fill positions at the FS-2 and FS-3 levels. During the discussion, the applicant’s representative expressed serious concern with the plan because it meant 60-80 positions would be filled without allowing current FS-1 and FS-2 employees the opportunity to compete. The applicant’s representative also reminded FAC of the concerns raised in 2003, but was informed that these points would not be considered because the decision had already been made and was final. The telephone conversation was the first and only discussion the applicant had with FAC on the issue of deployment prior to it being announced on December 8, 2005.

 

Treasury Board Deployment Policy (TBDP)

 

[19]           FAC contends that it is carrying out this deployment pursuant to the Treasury Board Deployment Policy (the TBDP), which took effect on June 1, 2000, as it decided to adopt this policy rather than create its own. The TBDP sets forth general objectives and requirements and, in two appendices, stipulates a number of directives and guidelines with respect to deployment. The TBDP defines “deployment” as follows:

A deployment is the move of an employee from one position to another within the same occupational group or, where authorized by regulations of the Public Service Commission of Canada (PSC), to another occupational group. A deployment may be made for an indeterminate or a specified period and, unlike assignments or secondments, an employee gains incumbency in the positions to which he or she is deployed and therefore assumes the classification level and any terms and conditions of employment of the new position. A deployment cannot result in a promotion or a change of tenure. A deployment requires the consent of the employee concerned except in those situations where a willingness to be deployed is a condition of employment of his or her current position.

 

 

 

 

[20]           The parts of the TBDP relevant to the case at bar are as follows:

Policy requirements

 

Deployments are to be made in a fair, reasonable, and transparent manner, taking into account the needs of the organization and the legitimate career interests and aspirations of employees.

 

Departments must establish deployment policies and procedures that respect the directives made by the Treasury Board pursuant to sections 34.2(1), 34.3(1) and 34.3(3) of the Public Service Employment Act (see Appendix A) or any regulations made under section 37.1(1) of that Act and that:

 

-         take into consideration the needs and rights of employees subject to workforce adjustment;

 

[…]

 

Departments must consult with their bargaining agents on the establishment of their deployment policies and procedures.

 

ISSUES

1.         What is the applicable standard of review?

2.         Does the deployment exercise violate subsection 34.2(1) of the PSEA, 1985 and the Treasury Board Deployment Policy (TBDP)?

 

ANALYSIS

 

[21]           I note at the outset that the new PSEA, 2003 came into force on December 31, 2005, after the decision to conduct a deployment exercise was made on December 8, 2005. The former PSEA governs the case at bar because the deployment exercise itself was decided prior to the effective date of the new PSEA, 2003. However, the issue is academic considering that the mandatory requirement to observe the Treasury Board’s directives is continued in the new Act.

 

1.         Standard of Review

 

[22]           As is the case in any judicial review, the Court must determine the appropriate standard of review using the pragmatic and functional approach. This analysis requires the Court to consider four factors: the presence or absence of a privative clause; the relative expertise of the tribunal; the purpose of the statute and the provision in question; and the nature of the problem (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).

 

[23]           Turning to the first factor, the PSEA, 1985 does not contain a privative clause. Regarding the second factor, there is no question that the deputy head of a department has greater expertise than the Courts in making staffing decisions under the PSEA, 1985. However, the Courts generally have greater expertise in legislative interpretation. This second factor is closely related to the fourth factor, the nature of the question. The applicant contests the process not the merits over which the Court has greater expertise on such an issue. Accordingly, this factor favours less deference.

 

[24]           In Davies v. Canada (Attorney General), 2005 FCA 41, [2005] F.C.J. No. 188 (F.C.A.) (QL), the Federal Court of Appeal stated that the primary purpose of the PSEA, 1985, was to safeguard the public interest by ensuring that appointments to the public service were based on merit and were free of discrimination and partisanship. As for the purpose of the particular deployment provisions in question, I draw upon the words in the TBDP which, in the preamble, provide a number of purposes of deployment generally, such as providing an environment that encourages the movement of employees in order for them to develop and meet organizational needs that can result in benefits to organizations, including improving operational efficiency and addressing individual career interest. Accordingly, the statute and provision are both polycentric in nature as they balance the interests of the government with those of individual public service employees. This calls for greater deference.

 

[25]           The parties dispute the final factor, the nature of the problem. The respondent submits that the nature of the problem is discretionary and that administrative law has traditionally approached the review of discretionary decisions separately from those seen as the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds, such as bad faith, improper purpose, and irrelevant considerations. In my view, while the decision made by the Deputy Minister was indeed a discretionary one, the issue before this Court is whether the Deputy Minister’s decision was in accordance with the requirements of the PSEA, 1985 and the TMDP. Therefore, this factor also calls for less deference.

 

[26]           In light of the foregoing, I believe that the appropriate standard of review is correctness.

 

 

 

 

2.         Does the deployment exercise violate subsection 34.2(1) of the PSEA, 1985 and the Treasury Board Deployment Policy?

 

[27]           Prior to 1993, staffing of the public service could only be accomplished by way of a merit-based selection process culminating in an appointment to a particular position. For a time, the government had attempted to circumvent the appointment process in some cases by using lateral transfers between positions until the Federal Court ruled in Alliance of Canada v. Canada (Attorney General), [1992] 2 F.C. 181 (T.D.) that this was not authorized by the PSEA. The PSEA was subsequently amended to allow for the “deployment” of an employee from one position to another without a competitive selection process. Both the former PSEA, 1985 and the newly enacted PSEA, 2003 provide for an administrative process with respect to deployments: PSEA, 1985, Part III.1; PSEA, 2003, Part III.

 

[28]           According to section 34.2, deployments under Part III.1 of the PSEA, 1985 are required to meet three statutory conditions: (i) the deployment cannot result in a promotion or change of tenure; (ii) the employee must consent to the action; and (iii) the deployment has to be conducted in a manner approved by the Treasury Board.

 

[29]           With respect to the last condition, which is reflected in subsection 34.2(1) of the PSEA, the Treasury Board has provided direction in the form of the TBDP.

 

[30]           Before considering whether the deployment exercise itself violates the TBDP, the Court must turn itself to the question of whether or not that policy is binding. In Vavrecka v. Canada (Public Works and Government Services), (1996), 110 F.T.R. 115 (T.D.), the Court held that there is an implied direction that departments comply with Treasury Board policies in making deployments. Justice Strayer states at paragraph 12:

Both of these cases involved the application of the Deployment Policy and Deployment Guidelines of Treasury Board. In both cases legal effect was given to these documents. However there was clear statutory authority for that Policy and Guidelines: section 34.2(1) of the Public Service Employment Act R.S.C. 1985, c. P-33 specifically required departments to establish deployment policies and procedures in accordance with the directives made by the Treasury Board, and Treasury Board had issued such directives.

 

[31]           In Nieboer v. Canada (1996) 121 F.T.R. 29, the Court cited Vavrecka and held: “Given the express language used by Parliament in subsection 34.2(1) of the Act, it is clear that departments are required to conduct deployment actions in accordance with the Treasury Board guidelines (at para. 17).”

 

[32]           While these two cases dealt with a different issue, namely, the advance notice of upcoming deployment opportunities, the general principle arising from each could not be clearer. The TBDP is a binding policy and, thus, departments are required to follow it.

 

[33]           The TBDP clearly mandates that all departments must establish their own deployment policies and procedures which respect the Treasury Board’s directives. FAC did not establish a deployment policy. Accordingly, it cannot be said that FAC conducted its deployment exercise “in such a manner as Treasury Board may direct”. The TBDP further states, in mandatory language, that:

Departments must consult with their bargaining agents on the establishment of their deployment policies. [Emphasis added]

 

[34]           According to the applicant, the certified bargaining agent, it was never consulted at any time “on the establishment” of a departmental deployment policy. This includes consultation on whether or not the establishment of a separate departmental policy was necessary or advisable.

 

[35]           The respondent contends that FAC adopted the TBDP and did not create its own policy. In my view, however, this does not change the fact that the applicant was never consulted regarding such an adoption or on the applicant’s views of whether the establishment of a policy specific to FAC was necessary or advisable. Moreover, I do not accept the respondent’s submission that the discussions which took place more than two years prior to the decision regarding lateral entry met the duty imposed by the TBDP to discuss the issue of deployment. Given that the TBDP has force of law, the obligation to consult the bargaining agent is a statutory condition precedent for the exercise of the deployment power. This failure vitiates the decision of the Minister and is sufficient to dispose of this application.

 

[36]           The judicial review is allowed. The decision of the Deputy Minister of Foreign Affairs Canada dated December 8, 2005 is set aside. The matter is referred back to the Deputy Minister to be determined in accordance with these reasons. The whole with costs.

 

JUDGMENT

 

The judicial review is allowed.

 

The decision of the Deputy Minister of Foreign Affairs Canada dated December 8, 2005 is set aside. The matter is referred back to the Deputy Minister to be determined in accordance with these reasons.

 

The whole with costs.

 

 

 

“Danièle Tremblay-Lamer”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-2202-05

 

STYLE OF CAUSE:                          Professional Association of Foreign Service Officers

 

                                                            and

 

                                                            Attorney General of Canada

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      September 7, 2006

 

REASONS FOR JUDGMENT:       TREMBLAY-LAMER J.

 

DATED:                                             September 18, 2006

 

 

APPEARANCES:

 

Mr. Andrew Raven Mr. Paul Champ	FOR THE APPLICANT
Mr. John Jaworski	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Raven, Cameron, Ballantyne & Yazbeck LLP 1600-220 Laurier Avenue West Ottawa, Ontario K1P 5Z9	FOR THE APPLICANT
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT

 

Annex A

 

 

 

LEGISLATIVE PROVISIONS

 

 

The following are the relevant provisions of the PSEA, 1985: