Date: 20001201
Docket: A-54-00
CORAM: THE CHIEF JUSTICE
LINDEN J.A.
EVANS J.A.
BETWEEN:
DAVID ELMORE
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on November 29, 2000.
Judgment delivered at Ottawa, Ontario, on December 1, 2000.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED BY: THE CHIEF JUSTICE
LINDEN J.A.
Date: 20001201
Docket: A-54-00
CORAM: THE CHIEF JUSTICE
LINDEN J.A.
EVANS J.A.
BETWEEN:
DAVID ELMORE
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] Despite the able arguments of counsel, I am not persuaded that Motions Judge ([2000] F.C.J. No. 119 (F.C.T.D.) (QL)) erred in dismissing the application for judicial review of the decision by a deployment investigator that he had no jurisdiction to hear and determine the appellant's complaint.
[2] The question raised by this case is whether the assignment of different responsibilities to the appellant, with his consent for a period but subsequently extended unilaterally by the employer, constituted a "deployment" as defined in subsection 2(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, which provides that
| "deployment" means the transfer of an employee from one position to another; |
"mutation" Transfert d'un fonctionnaire à un autre poste. |
| An employee in the federal public service may only be deployed with his or her consent, or if an agreement to be deployed was a term and condition of the employee's employment (subsection 34.2(3)) which, in this case, it was not. |
| [3] In concluding that the investigator had not erred in finding that Mr. Elmore's assignment was not a deployment, the Motions Judge stated (at paragraph 16) that the secondment agreement |
| ... bore all of the indicia of an assignment insofar as: |
| (a) the transfer was for an eighteen month period and therefore temporary; |
| (b) the agreement contemplated that at the end of the period of secondment, the applicant would return to his substantive position; |
| (c) the applicant retained his substantive position, continued to receive all pay, benefits and conditions applicable to that group and level, and did not acquire tenure in the position to which he was assigned; and, |
| (d) the applicant performed duties for INAC at the same group and level as his substantive position. |
[4] These indicia were derived from Roberts and Volpe v. Canada (Attorney General) (1999), 238 N.R. 67 at 69-70 (F.C.A.), where, in contrasting an assignment with a deployment, Décary J.A. said (at page 70, paragraph 5):
| "where an employee is merely assigned ... he is moved temporarily from one position to another, does not gain incumbency in the position to which he is assigned, does not assume the classification level of that other position and is expected to return to the original position. |
[5] The issue in that case was whether an assignment or a deployment was an "appointment" that could give rise to appeal rights by unsuccessful candidates. Nonetheless, in my view the same indicia are equally applicable to the instant case, where the underlying issue is the scope of management's power to require an employee to undertake other work on a temporary basis.
[6] Whether an assignment is also "a transfer from one position to another position" calls for a weighing of the relevant factors which, as the Motions Judge stated, all pointed to the conclusion that there was no deployment in this case. That Mr. Elmore's consent was obtained to the original period of the assignment, as would have been required if there was a deployment, does not in itself indicate that he was being deployed.
[7] I do not agree with counsel's contention that the basis of the deployment investigator's reasons was that the appellant was not being deployed because the two jobs called for similar "skills, knowledge and abilities". When considered in the context of the arguments put to the investigator, his statement that Mr. Elmore's assignment, albeit that it was continued beyond the agreed period, was not "an indeterminate appointment to a new position" is, in my view, consistent with the criteria elaborated by the Motions Judge, and by this Court in Roberts and Volpe, supra, for distinguishing a mere assignment from a deployment.
[8] For these reasons, I would dismiss the appeal with costs.
"John M. Evans"
J.A.
"I agree
J. Richard C.J."
"I agree
A.M. Linden J.A."