Date: 19980320
Docket: T-337-97
| IN THE MATTER OF an application to review and set aside, pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, the Decision of Investigator Rachel Dionne rendered January 27, 1997, by which Investigator Dionne dismissed the Applicant's complaint respecting a deployment (P.S.C. File No.: 96-HDR-068) |
BETWEEN:
DAN LABRÈCHE
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MCGILLIS, J.
FACTS
[1] The applicant has challenged by way of judicial review a decision of an Investigator, appointed to consider a complaint regarding a deployment made by Human Resources Development Canada ("Department") under the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended ("Act"). In her decision, the Investigator dismissed the applicant's complaint, and recommended that the deployment be allowed to stand.
[2] In the spring of 1996, authority was granted to create an additional Senior Communications Advisor (IS-05) position in the Department. For a variety of reasons, the Department decided to staff the new position through a deployment. In October 1996, an employee from Revenue Canada accepted a deployment to the position. By letter dated October 28, 1996, the applicant filed a complaint against the deployment under the provisions of the Act. In particular, the applicant alleged that the deployment was not made in accordance with the Act, on the basis that the Department failed to provide advance notice of the deployment opportunity.
[3] In response to the complaint, the Department took the position that it had provided advance notice of the deployment in a memorandum dated August 23, 1995, entitled "Preferences for IS-04 positions in the new organization". The memorandum provided, among other things, as follows:
| Preferences for IS-04 positions in the new organization |
| Following the last all staff meeting, this is to request that you indicate your first, second and third choices of the following positions in the new organization. I have included a summary of the position descriptions for your reference. |
| Please rank your choices by indicating numbers one, two and three in the boxes on the left and please sign your name at the bottom of the memo. You must choose and rank three different boxes on this list. The results of this process will be reviewed by the Workforce Adjustment Committee and will be used for placement in the new organization. |
[4] The memorandum also listed several positions in relation to which an employee could indicate a preference. That list did not include, however, the position of Senior Communications Advisor (IS-05), which was the subject of the applicant's deployment complaint.
[5] With respect to the applicant's position that advance notice of the deployment opportunity for the Senior Communications Advisor (IS-05) position was not given, the Investigator concluded in her decision as follows:
| The documentary evidence submitted by the Department is to the effect that employees were provided advance notice. And there was evidence that managers kept the employees informed of their staffing issues through the labour/management committee. |
| It is also true that employees should be pro-active in informing managers of their interest in deployment opportunities. Management have stated clearly they are perfectly aware that Mr. Labrèche is interested in an IS-05 position. |
| The burden of proof does not rest on the Department to establish it acted according to law. Complainant must establish that the deployment was illegal or abusive. |
ISSUE
[6] The principal issue to be determined is whether the Act required the Department to provide advance notice of the IS-05 deployment opportunity, and if so, whether such notice was provided.
ANALYSIS
[7] The question of whether advance notice must be provided in relation to a deployment opportunity was considered in Nieboer et al. v. Canada (Attorney General) (1996), 121 F.T.R. 21 (T.D.). In that decision, the Associate Chief Justice outlined the framework governing deployments in the following terms, at pages 32-33:
| [11] Subsection 34.2(1) of the Act states: |
| "34.2(1) Deployments shall be made in such manner as the Treasury Board may direct." |
| [12] The Treasury Board has issued Directives for Deployment and Deployment Recourse. It has also established a Deployment Policy and Deployment Guidelines, which explains deployments and describes how they are to be made: |
| "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, to another occupational group. Unlike assignments or secondments, an employee gains incumbency in the position to which he or she is deployed and therefore assumes the classification level of the new position. A deployment cannot result in a promotion or a change of tenure and it may be made for an indeterminate or a specified period. 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. |
| "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." |
| [13] Treasury Board's Policy also requires that individual departments establish deployment policies and sets out the requirements of those policies: |
| "POLICY REQUIREMENTS" |
| 1. The Departments must establish deployment policies and procedures that respect the Directives made by the Treasury Board under ss. 34.2(1), 34.3(1) and 34.3(3) of the Public Service Act (see Appendix A), or any regulations made under Section 37.1(1) of that Act and that: |
| 1.3 provide for advance notice of upcoming deployment opportunities to employees in the work unit to which the deployments will be made;" |
[See also Vavrecka v. Canada (Attorney General) (1996), 110 F.T.R. 115, 117-118 (T.D.)].
[8] Following his review of the procedure to be followed in order to effect a deployment, the Associate Chief Justice confirmed the necessity of providing advance notice to the employees in the work unit. In that regard, he stated as follows, at pages 33-34:
| ... it is clear that departments are required to conduct deployment actions in accordance with the Treasury Board guidelines. Those guidelines in turn explicitly require advance notice of deployment opportunities be given to the employees in the work unit to which the deployment is to be made. |
[9] In his decision, the Associate Chief Justice also rejected the argument advanced by the respondent that the failure to provide advance notice did not deprive any eligible employees of the opportunity to apply for the deployment.
[10] In my opinion, the principles enunciated by the Associate Chief Justice in Nieboer et al. v. Canada (Attorney General), supra are directly applicable in the case at bar. I have therefore concluded that the Department was required to provide advance notice of the upcoming deployment opportunity to the employees in the work unit to which the deployment was to be made. I also note that, in its Human Resources Policy Manual issued in April of 1996, the Department confirmed its commitment to providing "...advance notice of upcoming deployment opportunities to, at a minimum, employees in the work unit to which the deployment will be made."
[11] The question remaining to be determined is whether the Department provided advance notice in the present case.
[12] Counsel for the respondent submitted that the memorandum dated August 25, 1995 provided the requisite advance notice. I cannot accept that submission. The memorandum relied upon by the respondent as constituting "advance notice" was issued approximately fourteen months before the relevant time period and made no reference whatsoever to any upcoming deployment opportunity, let alone the opportunity in question. There is simply nothing at all in the memorandum relied upon by the respondent that could even remotely be viewed as constituting notice of the upcoming deployment opportunity in the applicant's work unit. In the circumstances, I have concluded that the Department failed to provide the requisite advance notice to the employees in the affected work unit.
DECISION
[13] The application for judicial review is allowed. The decision of the Investigator is quashed, and the matter is remitted to the Public Service Commission for redetermination.
[14] Counsel for the applicant submitted that costs should be awarded on the basis that the respondent should not have contested the case, given the inevitable result. Although I am sympathetic to that request, I have not been persuaded that special circumstances exist, within the meaning of Rule 1618 of the Federal Court Rules, to justify an award of costs.
| D. McGillis |
| OTTAWA __________________________ |
| March 20, 1998 Judge |