Date: 20020128
Docket: A-94-01
Neutral citation: 2002 FCA 36
CORAM: STONE J.A.
BETWEEN:
MYER HERZIG and DAVID MARTIN
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY TREASURY BOARD
Respondent
Heard at Ottawa, Ontario, on January 15, 2002.
Judgment delivered at Ottawa, Ontario, on January 28th, 2002.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: STONE J.A.
EVANS J.A.
Date: 20020128
Docket: A-94-01
Neutral citation: 2002 FCA 36
CORAM: STONE J.A.
BETWEEN:
MYER HERZIG and DAVID MARTIN
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY TREASURY BOARD
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal under section 27 of the Federal Court Act to set aside the order of McKeown J. ("the Motions Judge") dated February 7, 2001. By that order the learned Motions Judge refused to grant the appellants' application for an order in the nature of mandamus pursuant to paragraph 18(1)(b) of that Act: 2001 FCT 39, [2001] F.C.J. No. 180.
ISSUES
[2] The Motions Judge characterized the issue in this case as whether the Deputy Head's Nominee ("the Nominee") made a decision reclassifying the appellants' position within the Law Group. It was argued by the appellants that in approving the Classification Grievance Committee's report of August 24, 1999 ("the Report"), the Nominee exercised her discretion in the appellants' favour. Consequently, the Nominee was rendered functus and mandamus should lie to order the Nominee to formally implement the Committee's recommendation.
[3] In addition, the appellants requested certiorari to quash a decision rendered by the Nominee dated January 11, 2000, which was unfavourable to them.
FACTS
[4] The appellants are employed at the Trademarks Opposition Board within the Canadian Intellectual Property Office of Industry Canada. Their positions are classified at the PM-06 (Programme Administration) group and level. The appellants sought to be classified within the Law ("LA") group and requested a formal review of their classification. A Classification Committee was convened in December of 1998, which unanimously decided that the appellants' positions could not be classified in the LA Group because the work performed did not meet the definition of the Group contained in the LA Classification Standard.
[5] The appellants filed a grievance pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA"), which provides that employees such as the appellants must follow any applicable administrative procedure for redress set out under an Act of Parliament. Pursuant to the Classification Grievance Policy, Treasury Board prepared a Classification Grievance Procedure which was last revised June 1, 1994, and which both parties agreed was applicable to the instant grievance.
[6] Pursuant to this policy and procedure, the appellants' classification grievances were referred to a Classification Grievance Committee ("the Committee") for consideration and recommendation to the Deputy Head or his Nominee. The Committee held hearings and issued a Report on August 23, 1999, which concluded as follows:
1. The positions of the grievors are unique, and the Committee was not referred to any other similar positions where Treasury Board is the employer. There is no "perfect fit" in any of the existing classification standards. However, the LA Group, in the Scientific and Professional Category, in the unanimous opinion of the committee, is certainly the "best fit" and is a better fit than the PM Group in which the positions are currently classified.
2. The classification grievance committee is however precluded from classifying LA positions and it must render its conclusions to the Deputy Department Head Nominee for classification grievances for the proper procedure to follow in cases of creation or classification of legal positions in the Federal Government, i.e. Bulletin PMM 48-87, dated 16 December 1987.
[7] Article VI.A.1 of the Classification Grievance Procedure states that the Nominee may either confirm a recommendation of the Committee, make a decision in cases of majority and minority reports or, in the case of a unanimous recommendation, advise the Deputy Head that he disagrees with the Committee's unanimous recommendation. If the unanimous decision of the Committee is rejected by the Nominee, the new decision must be approved personally by the Deputy Head. The procedure contained in Article VI.A.1 further provides:
In such circumstances the Deputy Head must report to the Treasury Board Secretariat the reasons for non-acceptance, tied directly to the justification used by the grievance committee in arriving at its recommendation.
[8] On July 6, 1999, the Nominee notified the appellants that a final decision on their grievances would be delayed pending the consultative process with the Department of Justice set out in Bulletin No. 48-87 ("the Bulletin"). Specifically, that letter stated that:
The Classification Grievance Committee has completed its review of your position and has forwarded its recommendation to me for my consideration.
The Classification Grievance Committee has recommended that your position be considered for classification in the LA (Law) Group. I have advised the Deputy Minister of Industry Canada that the following process must be followed.
Under normal circumstances, my decision on the recommendation of a classification grievance committee is final and binding. However, to establish or classify positions in the LA group, Departments are required [to] consult with the Department of Justice (Treasury Board Policy Bulletin No. 48-87: copy attached). ...
I appreciate that this process will cause further delays in a final decision on your grievance, however there is no alternative but to follow the consultative process. We will proceed as quickly as possible with the Department of Justice and you will be notified of the results as soon as they are available.
[9] At one time, classification of an LA position was subject to approval by the Department of Justice. Bulletin PMM 48-87 changed this ‘approval' process to a process of consultation with the Department of Justice with respect to the classification of LA positions. However, it is agreed by the parties that the Committee and the Nominee were in error believing that the Bulletin applied to the appellants' grievances.
[10] As a result of the consultative process, on December 6, 1999, the Department of Justice sent a letter to the Nominee stating that it did not agree with the report of the Committee issued in August of 1999 and outlined its considerations in forming this opinion.
[11] On January 5, 2000, the appellants filed the first of two applications for judicial review. The first application requested an order in the nature of mandamus requiring the Nominee to implement the previous decision to confirm the unanimous recommendation of the Committee and to advise the appellants that their positions had been reclassified in the LA group.
[12] By letters dated January 11, 2000, the appellants were advised by the Nominee that their postions would not be reclassified into the LA group. Specifically, the Nominee stated:
After reviewing the Classification Grievance Committee Report and considering the opinion of the Department of Justice dated December 6, 1999, copy attached, I wish to advise you that your grievance is denied and that your position will remain in the PM group.
[13] On January 13, 2000, the appellants commenced their second application for judicial review in which they requested certiorari to quash the decision of January 11, 2000.
[14] By letters dated March 21, 2000, the respondent informed the appellants that the employer had rescinded the decision of January 11, 2000, which had denied their grievances. Specifically, the appellants were advised:
Having reviewed your applications, it has been determined that Industry Canada may not have fully adhered to the procedure requiring the Deputy Minister to take the decision and report to the Treasury Board when the Classification Grievance Procedure recommendation is not accepted, as is set out in the Classification Grievance Procedure Manual. Accordingly, the employer has decided to rescind the decision denying your grievance and will remit the matter to the new Deputy Minister of Industry, Mr. Peter Harder.
These letters also invited the appellants to make additional representations in writing with respect to the Department of Justice opinion. The appellants were advised that these representations would be considered by the Deputy Minister before he rendered a decision on the matter.
[15] At the request of the appellants, the respondent agreed that the Deputy Minister would refrain from rendering a decision on the appellants' classification grievances until the appellants had exhausted their appeal rights before the Federal Court.
ANALYSIS
[16] The principle of functus officio holds that, as a general rule, where a final decision has been rendered by an administrative tribunal acting in an adjudicative capacity, the matter is concluded and no amendment can be made to the decision in the absence of a right of appeal. The only exceptions are where the tribunal or decision-maker is authorized by statute to reconsider its decision, or where there has been a slip in drawing up the decision or error in expressing the manifest intention of the decision maker, or when the decision is void (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 (S.C.C.) at 861).
[17] However, it is also clearly established by the authorities that the Courts will not issue mandamus to compel a tribunal or decision maker to make a particular decision, when no decision has been made or when the decision-making power is discretionary in nature (Karavos v. Toronto and Gillies, [1948], 3 D.L.R. 294 at 297 (Ont. C.A.); Re O'Grady and Whyte, [1983] 1 F.C. 719; 138 D.L.R. (3d) 167 at 169 (FCA)).
[18] In my view, based on the foregoing authorities, McKeown J. was correct in determining that the Nominee never reached a final decision on the appellants' grievances; a fact that can be verified in three ways. First, in her letter of July 6, 1999, the Nominee wrote to the appellants indicating that in normal circumstances she would make a decision on the Report, but in this case, could not do so until the consultative process in Treasury Board Policy Bulletin #48-87 was completed. Second, while it is true that the Nominee was in error and the consultative process was not necessary under the Classification Grievance Procedure, the evidence also established that the Nominee's consultative process was not complete until early January of 2000. This is well after her approval of the Report which strongly suggests that the August 24, 1999, "approval" was merely a matter of form and not in the nature of a decision. Finally, the Nominee's actual decision of January 11, 2000, is evidence that the Nominee continued to follow the decision making procedure as set out in the letter of July 6, 1999.
[19] It was argued by the appellants that by approving the Report the Nominee must have exercised her discretion in support of the Committee's recommendation to reclassify the subject positions; otherwise, there would have been no point in carrying out the consultative process. In my view, it may well be that the Nominee did not wish to dismiss summarily the Committee's recommendation, or it may have been an honest procedural error by the Nominee, or it may have been both, but this Court is not entitled to speculate.
[20] Counsel for the respondent in oral argument also submitted that the Report does not contain a "recommendation" as such but merely an "opinion" and accordingly, the Court ought to refer the matter back to the Committee for a new hearing. I am not persuaded by this argument. Although the word "opinion" rather than "recommendation" was used in the Report, it is evident from the record that the Committee, in the exercise of its responsibility, intended its decision to be treated as a recommendation and to be acted upon accordingly. Indeed, it is also evident that those involved in considering the Report approached it on the basis that it contained a recommendation that could not be implemented without prior consultation with the Department of Justice.
[21] The appellants also contended that the Nominee is disqualified from making a decision in this matter because she had stated that she would adopt whatever view the Department of Justice took on the classification of the appellants' position. Accordingly, even if the Court decided that the Nominee was not functus as a result of her approval of the Committee's recommendation, the appellants argued that the matter should not be remitted to the Nominee, because of the conduct of the Nominee and of other management personnel involved in this matter. Such conduct, including the impugned or rescinded decision of January 11, 2000, is said to give rise to a reasonable apprehension of bias.
[22] In my opinion, however, the error committed by the Nominee and others in permitting the Department of Justice to determine the correct classification of the appellants' positions, is better characterised as an improper fettering or unauthorized sub-delegation of discretion.
[23] In my view, pursuant to Article VI.A.1, the Nominee must decide finally whether or not to approve the Committee's recommendation. Of course, the Nominee is free to consult with others, including officials of the Department of Justice, provided any decision is truly that of the Nominee. In addition, any views received by the Nominee are to be disclosed to the appellants who are to be given a reasonable opportunity to respond. The fact that the Nominee may decide to reject the Committee's recommendation after following the appropriate procedure and making up her own mind is not sufficient to establish procedural unfairness, bias or any other improper conduct.
[24] The appellants also maintained that the decision of January 11, 2000, had not been rescinded and should be quashed by the Court. However, since counsel for the Attorney General acknowledged that it was made in breach of the duty of fairness and is of no force and effect, it is not necessary for the Court to exercise its discretion to issue a formal order setting it aside.
[25] The Classification Grievance Procedure sets out in Article VI.A.1 the procedure that ought to have been followed by the Nominee upon her receipt of the Report. That Article reads:
The deputy head or nominee will either confirm the committee's recommendation or make a decision in cases of minority and majority reports. In cases of minority or majority reports, if the minority report is accepted, the nominee must so advise the deputy head. If the unanimous recommendation of the grievance committee is rejected by the nominee, the new decision must be personally approved by the deputy head. In such circumstances, the deputy head must report to the [Treasury Board Secretariat] the reasons for non-acceptance, tied directly to the justification used by the grievance committee in arriving at its recommendation.
[26] In my opinion, a duty rests on the Nominee to comply with the requirements of Article VI.A.1, either by confirming or rejecting the recommendation of August 23, 1999. It seems to me that all that remains to be done is for the Nominee to make a decision under Article VI.A.1, a step which the Nominee has indicated will be taken following the disposition of this appeal. In view of the length of time this matter has been outstanding, it is hoped that the Article VI.A.1 decision will be made as soon as possible.
[27] As the respondent does not ask for costs, I would dismiss the appeal without costs.
"B. Malone"
J.A.
I agree
"A.J. Stone"
J.A.
I agree
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
APPEAL FROM THE ORDER DELIVERED BY THE TRIAL DIVISION OF THE FEDERAL COURT OF CANADA DATED FEBRUARY 7, 2001 (T-1-00 AND T-42-00)
DOCKET: A-94-01
STYLE OF CAUSE: Myer Herzig and David Martin v. Her Majesty the Queen in Right of Canada as represented by Treasury Board
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 15, 2002 REASONS FOR JUDGMENT BY: Malone J.A.AUTHOR]
CONCURRED IN BY: Stone J.A. Evans J.A.
DATED: January 28, 2002
APPEARANCES:
Mr. Myer Herzig ON HIS OWN BEHALF
Mr. David Martin ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
Ottawa, Ontario
Mr. Harvey A. Newman FOR THE RESPONDENT Ms. Asha Kurian
Mr. Myer Herzig ON HIS OWN BEHALF Mr. David Martin ON HIS OWN BEHALF Ottawa, Ontario