PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for leave and judicial review, under s. 18.1 of the Federal Courts Act, R.S.C 1985 c. F-7, challenging a decision dated October 5, 2004 in which an Operational and Management Services Advisor ("Advisor") with the Office of Dispute Management ("ODM") of the Canada Customs and Revenue Agency ("CCRA") determined that her application for Independent Third Party Review ("ITPR") requested a review of only one of the decisions arising from the competition. It was determined that, absent a more specific request for review of each staffing selection, the review must be limited to the single enumerated selection submitted by the applicant.
[2] The applicant, Debbie Sutton, is an employee with the CCRA. On January 30, 2002, positions of Co-ordinator, Testing Team (AS-03) were posted. The applicant applied and qualified for the position along with 18 other candidates on the eligibility list.
[3] On May 12, 2004, a placement decision was made. Six candidates were chosen by four hiring managers. All six selections were for the same AS-03 position. All positions were selected based on the same criteria and each was located at the Ottawa Technology Centre. The applicant was not selected.
[4] The Posting Notice only contains one competition number and confirms that only one placement decision was to be made for the AS-03 positions. The Posting Notice also confirms that the criteria were the same for all.
[5] The applicant contested the placement decisions. As required by the ITPR Guidelines, she sought Individual Feedback ("IF") with respect to the placement phase. However, the applicant only sought feedback from two of the four placement managers, William Gutknecht and William Buse. The applicant met with Mr. Gutknecht on May 26, 2004, and with Mr. Buse on May 27, 2004.
[6] CCRA published and circulated Guidelines for submitting and processing a request for an Independent Third Party Review (Reviewers are not employees, agents or directors of CCRA). Among the Guidelines, are the following:
"Filing a request
The requestor should submit a request to the Office of Dispute Management (ODM) using the "Request for an Independent Third Party Review" form (form number RC117 available from the local resources office or on Infozone http://inforzone.rc.gd.ca/english/r2732472/conflict/dispute_independent.asp
A Copy must also be forwarded to the manager who made the decision under review (hereafter referred to as the manager) or the local Human Resources (HR) office.
The request must be received by the ODM within 7 calendar days from the date of receiving a response regarding the mandatory rights-based grievance / complaint process that precedes the right of the requestor to access ITPR, e.g. individual feedback (IF) at the placement phase of a selection process.
A request given to the manager or the local human resources office within the 7-day timeline, and subsequently forwarded to the ODM, will be considered to have met the timing requirement."
[7] On June 2, 2004, the applicant filed an online complaint form in which she alleged a breach of staffing policy and requested ITPR. She only listed Mr. Gutknecht by name on the request. She did not list Mr. Buse, nor the other two hiring managers. Pursuant to the Guidelines, the request must include information on the decision making manager.
[8] After receiving her complaint, the applicant was contacted by the Advisor to confirm the information on her request form and an enquiry was made as to whether or not the only decision upon which she was seeking review was that of the placement decision of Mr. Gutknecht. The applicant replied she was not certain about the procedure that had to be followed and she was advised to contact her union representative.
[9] On June 8 and 22, 2004, as well as July 7, 2004, the Advisor left telephone messages and on July 7th the applicant returned her calls. During this conversation the information on the applicant's request for ITPR was confirmed, the name of the manager's decision being contested and, as well, the applicant advised of the name of her union representative.
[10] It was concluded that the applicant had properly submitted a request for ITPR against Mr. Gutknecht's decision and the matter was referred to one William Neville for an independent review.
[11] On September 28, 2005, Mr. Neville informed the Advisor that the applicant wished to challenge the placement decisions of Mr. Buse and of Mr. Rutz (a third placement manager), in addition to the decision of Mr. Gutknecht.
[12] On October 5, 2004, the Advisor informed Mr. Neville, the Reviewer, that the ODM had only reviewed Mr. Gutknecht's placement decision, in accordance with the request filed by the applicant. The Advisor stated that, under the Guidelines, the applicant must specifically request ITPR for each manager whose decision is to be challenged and from whom she would have sought feedback.
[13] Mr. Neville proceeded with the ITPR for Mr. Gutknecht's decision and dismissed the applicant's complaint. She now applies for judicial review of the Advisor's decision not to include the decisions of Mr. Buse and Mr. Rutz, in her ITPR process.
[14] Despite the Reviewer's suggestion that the process should include each of the managers' decisions, the Advisor concluded that the decision to include or exclude a managers' decision falls within his or her domain, while the subjective analysis of each specific decision falls to the Reviewer.
[15] The applicant's main contention is that the Advisor's conclusion that only the decision of Mr. Gutknecht would be reviewed is unreasonable and submits that she did not waive her rights to a review of each of the managers' decisions by failing to include each of their names on the ITPR request form.
[16] I am satisfied that the role of this court is to review the decision and determine if it was reasonable (see for example Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23). The issue is clearly a mixed question of fact and law and shall be determined on a reasonableness standard.
[17] The applicant's argument can be summarized as follows: the applicant alleges that the Advisor erred in concluding that only Mr. Gutknecht's decision was to be reviewed. She divides her argument into two parts. First, she submits that, once a matter is submitted to a Reviewer, the Reviewer is solely responsible for managing the review process. In the present case, the applicant argues that, once the Reviewer was given the file, the choice to include or exclude managers should fall within the purview of the Reviewer. Secondly, the applicant argues that she has not voided her rights to review, even though she only expressly included one name (Mr. Gutknecht) on her ITPR form. She argues that the Advisor's decision to exclude the placement decisions, other than that of Mr. Gutknecht, represents a narrow and limited interpretation of the ITPR Guidelines.
[18] Before going into the applicant's substantive argument, I will make a preliminary finding that the applicant is estopped from filing a review of the decisions of the managers Mr. Rutz and Ms. Willey, as she never requested, nor received, individual feedback from Mr. Rutz or Ms. Willey.
[19] As my colleague Justice Dawson found in Sargeant v. Canada, 2002 FCT 1043, at para. 8, a candidate who does not seek individual feedback from a manager cannot challenge the decision of that manager. Justice Dawson found as follows:
The Recourse provided at the placement stage for candidates who qualify and are not selected for placement begins by a candidate requesting an "Individual Feedback" meeting with the manager who made the placement decision.
[20] In the present matter, the applicant only received individual feedback from Mr. Gutknecht and Mr. Buse.
[21] Since the applicant's request for ITPR of Mr. Gutknecht's decision has already been considered and dismissed the only decision that merits consideration in the present application for judicial review is the refusal to include Mr. Buse's decision to be entertained by the Reviewer since the applicant has sought and received individual feedback from Mr. Buse but did not expressly include his name on the ITPR form. I must therefore consider whether the Advisor's decision to expressly exclude Mr. Buse from the ITPR form is reasonable.
[22] Before I assess the reasonableness of the Advisor's decision, I will address the applicant's argument that the Reviewer, and not the Advisor, should have made the decision on whether or not to include Mr. Buse's decision in the ITPR. The Reviewer was of the opinion that the applicant was challenging all four of the managers' decisions and found that the present matter was analogous to another matter over which he had recently presided as Reviewer. After conducting a pre-hearing conference, the Reviewer sent a status report to the Advisor. The Advisor replied to the Reviewer by email, as follows:
As per the Agency Staffing Policy, the opportunity to request ITPR is provided each time a placement decision is made. The application for ITPR received from Ms. Sutton referred to one placement decision and as such the mandate given to you as the reviewer is for this decision only.
[23] The crux of the applicant's argument is that, once a decision is given to a Reviewer, he alone is responsible for making a decision on the parameters of the ITPR; the Reviewer alone should have been allowed to include or exclude the managers' decisions, including that of Mr. Buse, from the ITPR. I do not find the applicant's argument persuasive.
[24] I agree with the applicant that, once a decision is referred to a Reviewer, the substantive aspects of the decision fall within the mandate of the Reviewer. However, the scope of the decision in the present matter was limited by the applicant's failure to expressly refer to Mr. Buse on the ITPR form. Accordingly, the prima facie mandate of the Reviewer was limited to the decision of Mr. Gutknecht, whose name was expressly on the ITPR form. In sending the Status Report to the Advisor, the Reviewer effectively inquired about the scope of the review. The Reviewer did put forth the opinion that the applicant was challenging the global competition (the six positions available under the four managers), but the Advisor clarified the scope of the ITPR and, as a result, limited the Reviewer's enquiry. He was still able to conduct a substantive review of Mr. Gutknecht's decision and the limitation of the Reviewer's mandate was not outside the discretion of the Advisor.
[25] The Advisor is responsible for referring ITPRs to third parties for review and the third party Reviewer is responsible for reviewing the ITPR request. The scope of the review should thus be set by the Advisor. In the present case, the Advisor determined that the scope was limited to the decision of Mr. Gutknecht, which the applicant referred to on her ITPR form.
[26] Considering that the Advisor had the discretion to limit the review, the only remaining question is whether the Advisor acted reasonably in doing so. A reasonable decision is one that is open to the Advisor on the facts of the case (see Law Society of New Brunswick v. Ryan [2003] 1 S.C.R 247 at para.48). In the present matter, the ITPR Guidelines set out the requirements for filing an ITPR request. The request form must include, inter alia, the name and phone number of the decision making manager. In the present case, the applicant's form only included the name of Mr. Gutknecht, for whom an ITPR was requested. There is no evidence that any ITPR request form contained the name of Mr. Buse (the only other manager for whom the applicant had sought Individual Feedback). I am of the opinion that the Advisor acted reasonably in limiting the review to the decision of Mr. Gutknecht and the Advisor's decision should not be disturbed by this court.
[27] Counsel for the applicant suggests that the Guidelines are merely directives and should not be strictly adhered to. If the court should accept this reasoning, it would only lead to chaos and uncertainty.
[28] The applicant is estopped from filing ITPR requests with respect to the decisions of Mr. Rutz and Ms. Willey, as she did not request or receive Individual feedback from either Mr. Rutz or Ms. Willey. The applicant has not persuaded me that issues relating to the scope of the review (not the substance) are outside the purview of the Advisor, nor has she successfully convinced me that the Advisor's decision to limit the review to that of Mr. Gutknecht's decision was unreasonable.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-159-05
STYLE OF CAUSE: Debbie Sutton v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 13, 2006
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. David Yazbeck
|
|
| Mr. Alexandre Kaufman
|
SOLICITORS OF RECORD:
| Raven, Allen, Cameron & Ballantyne Ottawa, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|