Ottawa, Ontario, June 14, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review wherein the Attorney General of Canada seeks to set aside a decision dated April 19, 2006 of an Independent Third Party Reviewer (the Reviewer) established pursuant to the Canada Revenue Agency’s staffing program which ordered the respondent’s permanent appointment as a compensation service agent with an AS-01 classification. The issue is whether the Reviewer had the jurisdiction to appoint the respondent to a permanent position under the staffing program “Directives on Recourse for Staffing”.
Facts
The selection process
[2] In December 2004, the Agency announced that it intended to open and staff a new Compensation Client Service Centre in Winnipeg (the Service Centre) in May 2005. A Notice of Opportunity was issued detailing the job description and duties and requisite experience, education and security status.
[3] The selection board received 177 applications. After the assessment phase, there were 58 candidates in the pool including the respondent. For the first round of staffing, 30 candidates were required. Based on the candidates’ combined score for skills including analytical thinking and ability to use specified software, the Agency issued acting and term job offers until the Service Centre had 30 candidates to undergo a seven week training program beginning in May 2005. The respondent was part of the cohort of employees scheduled to start work on June 27, 2005. In September 2005, the acting director of the Service Centre advised that permanent positions could be staffed from among this first round of trainees.
[4] On September 9, 2005, the respondent was informed by her team leader that she would probably not be receiving an appointment to an indeterminate position with the rest of the group of trainees. The respondent’s team leader expressed concern about her inconsistent use of family and sick leave. As a result, the respondent was informed that her performance could not be assessed as meeting the requisite standard unless her attendance improved. After the meeting with her team leader, the respondent sent an e-mail message requesting a summary of the conditions she was required to meet and the timeframe for meeting them in order to obtain permanent employment status within the Service Centre. She did not receive a reply.
[5] On September 15, 2005, the respondent met with the acting assistant director and presented a written summary of her leave taken so far that year. The respondent stated that, by the end of this meeting, she felt “cautiously optimistic that nothing was cast in stone.”
[6] The acting assistant director requested that the team leaders review the trainees’ current job performance as required by the staffing bulletin for proposed placements. The respondent’s performance check was completed by her team leader during the last week of September. A selection board consisting of both team leaders and the acting assistant director reviewed the documentation. All employees who met current job performance requirements were then considered for placement, while those who did not—including the respondent—were not considered further. These individuals were advised by letter that they were not considered at that time for appointment. Consideration for permanent appointment was to be revisited when performance improved and raised to the requisite level. A total of 28 employees were proposed for appointment on October 6, 2005. The respondent was not one of them.
[7] On October 7, 2005, the respondent was informed by her team leader that she would not be receiving a permanent placement. The respondent’s attempts to persuade her team leader to reconsider the decision were unsuccessful.
Recourse
[8] On October 13, 2005, the respondent requested individual feedback under the Agency’s staffing program. She and a union representative met with the acting assistant director on October 19, 2005. The respondent was provided with a blank copy of the form used to assess candidates’ performance in the selection process. The respondent requested a copy of her own performance check but was denied access because the acting assistant director believed the respondent had already reviewed the form with her team leader. In fact, the respondent did not see her performance check until February 14, 2006, when she obtained a copy following a request made under the Privacy Act.
[9] On October 26, 2005, the respondent filed a request for an independent third party review under the Agency’s staffing program.
Decision under review
[10] In a decision dated April 19, 2006, the Reviewer concluded that the respondent was treated in an arbitrary manner during the placement stage of the selection process, based on the following:
i. the assessment of the respondent’s medical and family-related leaves was unreasonable and arbitrary;
ii. the assessment that the respondent was unable to accept constructive criticism was unreasonable;
iii. the team leader’s failure to observe the action plan agreement entered into with the respondent was unreasonable and arbitrary; and
iv. the assessment of the respondent’s job performance was arbitrary and unfair.
[11] The Reviewer ordered the following corrective measures at page 23 of his decision:
I order the following corrective measures:
(a) The Agency’s error made on 6 October 2005 will be corrected. The [respondent] will be appointed, effective 6 October 2005, to an indeterminate position as a AS-01 in [the Service Centre].
(b) A manager other than [the respondent’s team leader] should be involved in the evaluation of the [respondent’s] future performance.
(c) If possible, the [respondent] should be assigned to a team leader other than [her existing team leader.]
Relevant Legislation and Directive
[12] The legislation relevant to this application is the Canada Revenue Agency Act, S.C. 1999, c. 17 (the Act) and, in particular, sections 53 and 54 which read as follows:
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Appointment of employees 53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business. (2) The Commissioner must exercise the appointment authority under subsection (1) on behalf of the Agency. 54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
(2) No collective agreement may deal with matters governed by the staffing program.
[Emphasis added] |
Pouvoir d’embauche de l’Agence 53. (1) L’Agence a compétence exclusive pour nommer le personnel qu’elle estime nécessaire à l’exercice de ses activités. Nominations par le commissaire (2) Les attributions prévues au paragraphe (1) sont exercées par le commissaire pour le compte de l’Agence.
Programme de dotation 54. (1) L’Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés.
Exclusion (2) Sont exclues du champ des conventions collectives toutes les matières régies par le programme de dotation en personnel. [je souligne] |
[13] Also relevant to this application is Annex L of the Agency’s staffing program, "Directives on Recourse for Staffing", which provides in part:
Program Statements:
- Recourse provides the opportunity for individuals to raise concerns related to staffing and to have these addressed in a timely manner.
- Individuals have access to recourse mechanisms including Individual Feedback, Decision Review Process and Independent Third Party Review, depending on the nature of the staffing activity and as per the Directive on Recourse for Staffing.
- Individual Feedback is provided upon request by the person(s) responsible for that particular staffing process or stage of the selection process.
- Individual Feedback applies to such circumstances as:
· Term extensions;
· Rehire of term employees
· Temporary lateral moves; and
· At the pre-requisite stage of the selection process.
- Individual feedback is also a mandatory step before proceeding to other forms of staffing recourse.
[…]
- Independent Third Party Review (ITPR) is the review of an individual’s concern by a person external to the Agency, resulting in a binding and non-precedent-setting decision.
- Independent Third Party Review applies to:
· Permanent promotions without a Selection Process;
· Selection Process/Pre-qualified Pool placement decisions for permanent promotions; and
· Entry (from within the Agency) into an Apprenticeship program.
[…]
Grounds for Recourse
- In all cases, the grounds for recourse for Individual Feedback, Decision Review Process and Independent Third Party Review is whether the employee exercising recourse was treated in an arbitrary way. The focus should be on the treatment of the individual in the process and not on the evaluation of other candidates or employees.
- For each of the three recourse processes, the review shall be limited to the circumstances directly related to that phase of the Selection Process or Staffing Process. For example, Independent Third Party Review would be limited to the placement phase of the selection process.
- Arbitrary is defined as follows:
“In an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e., difference of treatment or denial of normal privileges to persons because of their race, ace, sex, nationality, religion or union affiliation.”
[…]
Corrective Measures
- Authorized Persons are accountable for taking appropriate corrective measures, in a timely manner. During the Selection process, these corrective measures must be taken immediately so that the process is not unnecessarily delayed.
- For staffing, the range of possible corrective measures includes:
· Order correction of the error in the process;
· Recommend revocation of appointed employee, if required;
· Recommend having another manager involved in the decision.
Issue
[14] The applicant does not take issue with the Reviewer’s factual findings or his two recommendations relating to the assignment of the respondent to a different manager. Accordingly, the only issue to be decided is whether the Reviewer exceeded his jurisdiction in ordering the appointment of the respondent to an indeterminate position.
Standard of review
[15] The Act does not contain a privative clause or a right of appeal from a Reviewer’s decision. The Agency’s staffing program and Independent Third Party Review Guidelines are also silent. The scope of the Reviewer’s jurisdiction is a pure question of law and turns on the proper interpretation of the Act and the terms of reference for the independent third party review. The Reviewer’s expertise in employment matters and familiarity with the Agency’s staffing practices does not attract curial deference in the context of this jurisdictional question. Accordingly, I conclude that the appropriate standard of review is one of correctness.
Analysis
[16]
The Court has previously undertaken judicial
review of decisions by an “Independent Third Party Reviewer” established under
the CCRA internal staffing program. In Canada (Customs and Revenue Agency) v. Kapadia, 2005 FC 1568, I undertook a
judicial review of such a decision and held at paragraph 4:
Recourse
4. The CCRA staffing program provides unsuccessful candidates the opportunity to seek recourse. Ms. Kapadia sought “individual feedback” as required before requesting an ITPR on May 27, 2003. The ITPR provides for timely and informal staffing dispute resolution by rostered reviewers who are independent of the CCRA and satisfy specific education and experience criteria.
[17] The legal framework governing the independent third party review was succinctly described by Justice Sean Harrington in Canada (Attorney General) v. Gagnon, 2006 FC 216 at paragraphs 6 to 11:
¶6 The Act establishes the CCRA as a body corporate. Among other tasks, the CCRA is also responsible for the administration and enforcement of fiscal legislation including the Customs Act, the Excise Act and the Income Tax Act.
¶7 As for human resources, the Public Service Labour Relations Act stipulates that the CCRA is a separate agency. It can therefore set its own requirements with regard to its own needs as well as the allotment and efficient use of its human resources, pursuant to subsections 53(1) and 54(1) of the Act.
50. The Agency is a separate agency under the Public Service Labour Relations Act.
53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.
54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
¶8 In order to meet its legal responsibilities, human resources have developed a detailed program which includes the: "Directive on the Selection Process/Pre-Qualified Pool", "Directives on Recourse for Staffing" and "Guidelines for Submitting and Processing a Request for an Independent Third Party Review". In the context of this overall process, three stages must be completed, namely: (1) "Review of pre-requisite stage"; (2) "Assessment stage"; and (3) "Placement stage". Ms. Gagnon was at the third stage. Since she had not been chosen for the position, she had the right to initiate the "individual feedback" process, which she did. Since this process was not satisfactory, she was therefore entitled to proceed to "either Decision Review or Independent Third Party Review". Ms. Gagnon chose to initiate an independent third party review.
¶9 The "grounds for recourse" in the context of an independent third party review must be based on the fact that the employee "was treated in an arbitrary way". […]
¶10 With respect to the "recourse", the "Directives" stipulate as follows:
For staffing, the range of possible corrective measures includes:
- order correction of the error in the process;
- recommend revocation of appointed employee, if required;
- recommend having another manager involved in the decision.
¶11 The "Guidelines" on processing requests for independent third party reviews include an appendix establishing the range of corrective measures for staffing in the case of termination of employment or non-disciplinary demotion as well as dismissal. It should be noted that in the last two cases, the independent third party may order that the employee be reinstated. However, the only order allowed in the case of a staff appointment is the correction of the error in the process.
[Emphasis added]
[18] The Agency’s Staffing Program limits the power of the Reviewer to ordering that an “error in the process” be corrected. Since the Reviewer found that the Agency’s assessment process was tainted by errors in, among other things, the evaluation of the respondent’s authorized use of sick and family leave, he had reason to order, as in Gagnon, above, that an error had to be corrected. In Gagnon, Justice Harrington held at paragraph 21:
¶21 The Regulation limits the power of the independent third party to ordering that an error in the process be corrected. Since the independent third party found that in effect the hiring process had begun with a notice dated February 25, 2002, inviting employees to apply and that the employer had acted arbitrarily, he had reason to order that an error had to be corrected. He had the power to make recommendations in this regard, but he had no authority to order the CCRA as to how it should correct the error.
[Emphasis added]
I agree with the applicant that the Reviewer exceeded his jurisdiction under the Agency’s Staffing Program in ordering the appointment of the respondent to an indeterminate position. However, I would state somewhat differently from Justice Harrington the basis on which this excess of jurisdiction arises.
[19] In my view, the phrase “error in the process” yields the operative constraint on the scope of the corrective measures which the Reviewer may order. The respondent notes that, unlike the latter two corrective measures identified in the Agency’s Staffing Program which refer to recommendations, the first corrective measure refers to an “order”. This distinction, the respondent argues, suggests that the Reviewer is given authority to compel the provision of a specific remedy to correct a staffing error rather than merely recommend changes to be implemented at the discretion of the Agency. I agree that the distinctive phrasing used in respect of the first corrective measure authorizes the Reviewer to issue final corrective orders. However, the scope of the Reviewer’s orders is not unlimited. In my view, the range of possible corrective measures described in the Agency’s Staffing Program must be interpreted so as to limit orders to those that address and correct procedural defects giving rise to the arbitrary treatment experienced by the respondent. In a case where arbitrary treatment results from the consideration of irrelevant factors during a selection process, for example, the Reviewer may order that the process be re-administered without regard to the irrelevant factors. The Reviewer is not authorized, however, to issue final orders that dictate the substantive result of a process found to be deficient.
[20] The alternative reading suggested by the respondent would permit the Reviewer to substitute his own conclusion as to the appropriate final outcome of the Agency’s staffing process. This alternative interpretation is inconsistent with the overall scheme of the Act and the Agency’s Staffing Program, which provide the Agency with the autonomy to conduct its own staffing processes subject, in certain cases, to independent review in respect of procedural issues.
Conclusion
[21] At the hearing of this application, I adjourned this matter pending the outcome of an appeal of Justice Harrington’s judgment in Gagnon, above. On April 25, 2007, the Federal Court of Appeal dismissed the appeal from the bench and held that the Reviewer in Gagnon exceeded his jurisdiction and could not nominate the complainant to a position: Gagnon v. Canada (Attorney General), 2007 FCA 164. The parties were invited to provide submissions regarding the effect of the Federal Court of Appeal’s judgment and did so in writing. I am satisfied that nothing in that decision impacts the analysis above, and I accordingly conclude that the Reviewer exceeded his jurisdiction in ordering the retroactive appointment of the respondent. The Reviewer’s power to order corrections to errors in the selection process does not include the power to dictate the substantive result of a process tainted by a procedural defect. Therefore, this application for judicial review is allowed in part, and the decision under review will be remitted to the same Reviewer for the determination of appropriate corrective measures authorized under the Agency’s Staffing Program. Each party will bear its own costs of this application.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT:
1. the application for judicial review is allowed in part;
2. the Reviewer’s corrective measure to appoint the respondent to an indeterminate position is declared unlawful and inconsistent with the Agency’s Staffing Program;
3. this matter is remitted to the same Reviewer for reconsideration of appropriate corrective measures authorized by the Agency’s Staffing Program and the Canada Revenue Agency Act; and
4. each party shall bear its own costs of this application.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-937-06
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
and
ELSIE BEALL
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 19, 2007
APPEARANCES:
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Mr. Alexander M. Gay
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Mr. David Yazbeck
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Canada
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Raven, Cameron Ballantyne & Yazbeck, LLP Barristers & Solicitors Ottawa, Ontario |