Date: 19990209
Docket: A-453-97
CORAM: DÉCARY J.A.
ROBERTSON J.A.
NOËL J.A.
BETWEEN:
MICK CHONG, RAY BOWES and
GUDRUN GOSEN
Appellants
(Applicants)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as
represented by TREASURY BOARD, THE ATTORNEY
GENERAL FOR CANADA and THE DEPARTMENT OF
CITIZENSHIP AND IMMIGRATION
Respondents
(Respondents)
Heard at Ottawa (Ontario) on Tuesday, February 9, 1999.
Judgment delivered from the Bench on February 9, 1999.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 19990209
Docket: A-453-97
CORAM: DÉCARY J.A.
ROBERTSON J.A.
NOËL J.A.
BETWEEN:
MICK CHONG, RAY BOWES and
GUDRUN GOSEN
Appellants
(Applicants)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as
represented by TREASURY BOARD, THE ATTORNEY
GENERAL FOR CANADA and THE DEPARTMENT OF
CITIZENSHIP AND IMMIGRATION
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Tuesday, February 9, 1999)
DÉCARY J.A.
[1] This appeal arises from classification grievances presented by the appellants in 1994 pursuant to the Treasury Board Manual and Treasury Board's classification grievance procedure. The appellants were all employed as Intelligence Analysts with the Department of Employment and Immigration ("the Department")1 in the B.C./Yukon Region. Their position was classified as PM-03. They claimed that their job classification was in error and requested that their jobs be reclassified as PM-04.
[2] On July 27, 1994, a hearing was held in accordance with the classification grievance procedure. The appellants' main argument was to the effect that their colleagues in the Ontario Region employed in the same position were classified as PM-04. The Classification Grievance Committee ("the Committee") recommended to the Deputy Head's Nominee of the Department for Classification Grievances that the position of the grievers remain classified at the PM-03 level. The Deputy Head's Nominee agreed with the recommendation.
[3] The appellants applied for judicial review. On November 30, 1995, McKeown J. allowed the application2. He found that the decision was an administrative one deserving only a minimal level of fairness in its procedure, but he was of the view that in the circumstances the process was sufficiently flawed to justify intervention. He returned the matter to the Committee "to review the differences between the Ontario position and the B.C./Yukon position" and in preparing its reasons to "review the evidence of Mr. John Kent".3
[4] As a result of McKeown J.'s Order and "[i]n order to properly review the differences between the Ontario position [...] and the B.C./Yukon position [...], the Committee requested that the Ontario classification office of the Department of Citizenship and Immigration undertake an independent review of the Ontario position and report back to the Committee".4
[5] In response, the Ontario classification office conducted an audit of the Ontario Region position. The appellants were not asked to, nor did they participate in the audit. On January 10, 1996, an interdepartmental classification committee decided to downgrade the Ontario Region position from the PM-04 level to PM-03 effective January 10, 1996.
[6] The Classification Grievance Committee for the B.C./Yukon Region position reconvened on February 27, 1996. The Committee recommended that the position be classified at the PM-03 level, effective August 10, 1993, on the basis, essentially, that the B.C./Yukon Region positions "were sufficiently similar [to the Ontario Region positions] to be considered equivalent"5. The Deputy Head's Nominee approved the recommendation on March 12, 1996.
[7] The appellants applied again for judicial review in April 1996. They claimed in an affidavit filed by the appellant Gosen that the principles of procedural fairness had been breached:6
| 7. The other Applicants and myself were never advised that the Classification Grievance Committee or the Deputy Head's Nominee would make a decision on our grievances on the basis of the reclassification of the Ontario positions. Had we been advised that the Classification Grievance Committee intended to use the results of the reclassification of the Ontario positions, we would have presented further information or evidence to the Classification Grievance Committee or the Deputy Head's Nominee that, since 1992, significant changes have occurred in respect of the B.C. positions which were relevant to their classification. |
| 8. For example, since 1992, legislative changes have resulted in additional responsibilities for the B.C. Intelligence Analyst positions. Furthermore, due to a change in management structure in B.C., Intelligence Analysts no longer report to a PM-05 Chief but, instead, report directly to a PM-06 Program Manager. |
They also alleged that contrary to the Order of McKeown J., no report on Mr. Kent's comments had been provided.
[8] The Committee, having omitted to deal with that part of McKeown J.'s Order which related to Mr. Kent's evidence, met again on May 1, 1996 and filed an Addendum Report which reviewed Mr. Kent's evidence. The Deputy Head's Nominee approved the Addendum Report on May 8, 1996.
[9] The cross-examination of Mrs. Linda Clement, a member of the Committee, indicates that the Committee, when it reconvened on February 27, 1996, only considered the Ontario Position downgrading evidence in order to reach its decision and was not aware of the evidence referred to in paragraph 8 of Mr. Gosen's affidavit.
[10] On June 16, 1997, Joyal J. dismissed the application, essentially on the basis that the requirements of fairness were minimal and that absent "some demonstrable error or prejudice" the Court should not intervene "in a purely administrative process".7
[11] Counsel for the appellants invites the Court to determine that the classification grievance process is an adversarial process to which more than the minimum level of fairness applies. Counsel for the respondents argues, on the other hand, that the process is non-adversarial and that the minimum level of fairness applies.
[12] In our view, nothing turns on whether the process is defined as being adversarial or non-adversarial. There is clearly a dispute between parties which the grievance process seeks to resolve and the duty of fairness clearly applies to that process. The content of the duty of fairness will be more or less comprehensive depending upon the nature of the interests affected by the decision and the nature of the process involved. In the case at bar, the level of fairness is somewhere in the lower zone of the spectrum rather than in the upper zone and we do not read Madam Justice Reed's reasons in Hale v. Canada (Treasury Board)8 as saying otherwise. While Reed J. in Hale, and McKeown J. in Chong 1, have adopted a different approach, we do not see any significant difference into the conclusion they reach with respect to the content of the duty of fairness as it applies to grievances governed by the Classification Grievance Procedure of the Treasury Board.
[13] Wherever one finds oneself on the spectrum, there are essential requirements and one of those requirements is that expressed by Justice Reed at para. 20 of her reasons:
| [...] when the committee decides to review an aspect of the classification assessment, which the employee did not think was in dispute, and decides to elicit and rely on evidence with respect thereto about which the employee had no notice or information, fairness requires that that information be disclosed to the employee and he be given an opportunity to comment thereon [...] |
| [our emphasis] |
[14] In the case at bar, the very essence of the appellants' grievances was that their position was equivalent to the similar, yet higher ranking Ontario Region position, and was therefore deserving of the higher PM-04 classification. The file had been sent back to the Committee by McKeown J. "to review the differences between the Ontario position [...] and the B.C./Yukon position", not to review the classification of the Ontario Region position. While grievers are aware that a classification grievance may lead to a downgrading of their position9, they could rightly assume that if they succeed in establishing the equivalence of their PM-03 position with a PM-04 position, the classification of which is not properly an issue in the proceedings, their position would normally be elevated to the PM-04 level. The grievers were not involved, and properly so, in the classification review of the Ontario Region position. To the extent that the downgrading of the Ontario Region position was triggered by the appellants' grievance procedures and resulted for all practical purposes in the dismissal of their grievances, they should have been informed that the basis of the comparison they were seeking to establish had been dramatically altered and they should have been offered the opportunity to pursue the other arguments available to them. There can be no fair play in circumstances such as the present ones when a fundamental assumption is unilaterally made to disappear without giving the party adversely affected the opportunity to advance alternative grounds.
[15] The trial judge erred in law in failing to appreciate that what was in issue is a breach of one of the essential requirements of the duty of fairness.
[16] Since we reach the conclusion that the appeal should be allowed on that basis alone, we need not address the other points raised by the appellants.
[17] The appeal will be allowed with costs, the decision of the Trial Division will be set aside, the decision of the Deputy Head's Nominee and the recommendation of the Classification Grievance Committee will be quashed and the appellants' grievances will be referred back to a reconstituted Classification Grievance Committee.
"Robert Décary"
J.A.
__________________
1 Now the Department of Citizenship and Immigration.
2 See Chong et al. v. Canada (Attorney General) et al. (1995), 104 F.T.R. 253, hereinafter Chong 1).
3 Ibid. at 266.
4 A.B. at 54, affidavit of Linda Clément, a member of the Committee.
5 A.B. at 14.
6 A.B. at 9-10.
7 Chong et al. v. Canada (Treasury Board) et al. (1997), 133 F.T.R. 302 at 307.
8 [1996] 3 F.C. 3 at 16 (T.D).
9 See. s. II,B,3 of the Classification Grievance Procedure.