Date: 20030529
Docket: T-1163-01
Neutral citation: 2003 FCT 667
Ottawa, Ontario, Thursday, the 29th day of May 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GEORGE ANDERSON
Applicant
- and -
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
[1] In May of 2001, the applicant George Anderson, a long-term employee of the Canada Customs and Revenue Agency ("CCRA") and its predecessor Revenue Canada, applied for the position of Team Leader, Collections. Subsequently, Mr. Anderson was informed that he did not meet one of the pre-requisites for the position. In consequence, he was not considered further in the selection process. Mr. Anderson did not agree with that decision and, pursuant to the CCRA staff recourse procedure, unsuccessfully sought recourse in respect of the decision.
[2] In this application for judicial review of the negative decision rendered pursuant to the recourse procedure, Mr. Anderson seeks, among other things, an order setting aside the decision, and an order declaring that the staffing recourse procedure established by the CCRA is contrary to the requirements of subsection 54(1) of the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 ("Act").
BACKGROUND FACTS
[3] As a long-term employee of the CCRA, Mr. Anderson has worked in the Accounts Receivable program at the PM-02 level or higher for 27 years. In the course of his career Mr. Anderson has worked as a Collections Officer, a Collections Investigation Officer, a Collections Recourse Officer, and was a Team Leader in the Collections division for over 10 years.
[4] At the request of Revenue Canada management, Mr. Anderson left the Collections division temporarily in 1997 to perform duties related to the transformation of Revenue Canada into the CCRA. While he was involved in that transformation, the Accounts Receivable (Collections) division continued to pay his salary. Mr. Anderson returned to the Collections division in April of 2000.
[5] On May 10, 2001, a Notice of Job Opportunity was posted for the position of Team Leader, Collections (PM-04). It stated:
Job description and duties:
Managing a team in the Revenue Collections Division responsible for the collection and enforcement of account[s] receivable and the provision of information and advisory services. The incumbent provides guidance and innovation to the team by demonstrating leadership through the application and delivery of the Agency's Manager's Charter.
Experience:
Recent and significant experience within Revenue Collections in a senior officer level in the Accounts Receivable Program.
Recent is defined as approximately within the last 3 years.
Significant: Full time performance of duties for approximately 2 consecutive years.
The above noted experience would normally be attained at the PM 02 level or higher.
[6] Mr. Anderson submitted an application for the position of Team Leader, Collections via the intranet on May 10, 2001. He provided information about his qualifications as well as contact information for his current supervisor.
[7] A letter was sent to Mr. Anderson on May 29, 2001, advising that he did not meet the experience pre-requisite for the position and therefore would not be considered further in the selection process. It appears that Mr. Anderson learned of this decision on May 29, 2001 prior to receipt of the letter. Mr. Anderson was advised that he could exercise recourse, in the form of Individual Feedback, by contacting the chair of the Selection Board, Mr. Charles.
[8] Mr. Anderson met with Mr. Charles later on May 29, 2001. Mr. Anderson says that at that time Mr. Charles advised Mr. Anderson that he was screened out of the selection process on the basis that he did not meet the experience criteria. Mr. Charles explained that Mr. Anderson's experience in Collections had not been "recent and significant" because Mr. Anderson had not been performing full-time duties in the Accounts Receivable program for approximately two consecutive years within the last three years. Mr. Anderson advised Mr. Charles that he did meet the experience criterion. Mr. Anderson pointed to his 26 years of experience, and further advised that he also had recent experience within the definition found in the Notice of Job Opportunity.
[9] Mr. Charles did not agree that Mr. Anderson's experience qualified as "recent and significant" with respect to the Accounts Receivable program. Mr. Charles advised Mr. Anderson that the experience qualification meant that the qualified candidate should have two years of full-time experience in the last three years of employment with Revenue Collections. According to Mr. Anderson, it was Mr. Charles' position that the description of experience pre-requisites was "clear and unambiguous". It was also Mr. Anderson's recollection that Mr. Charles advised that he could "write the poster any way [he wanted]" and that he could change the poster to reflect what he had said in the meeting. Mr. Charles denies making that statement.
[10] The Individual Feedback session did not result in any change to the decision of the Selection Board. Mr. Anderson was not added to the pre-qualified pool of candidates.
[11] Mr. Anderson subsequently requested Decision Review, a further step in the recourse process, but he was advised that neither this option nor Independent Third Party Review is available to candidates who are unsuccessful at the pre-requisite stage under the CCRA Staffing Program.
[12] Mr. Anderson tried to grieve the Individual Feedback session, but was told that such a grievance is precluded by section 54 of the Act and section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.
[13] As a result, Mr. Anderson brought this application for judicial review of the decision rendered as a result of Individual Feedback session, and the process by which it occurred.
OVERVIEW OF THE CCRA STAFFING PROGRAM
[14] As noted above, the predecessor to the CCRA was Revenue Canada. Revenue Canada was a department in the federal public service. Its employees were appointed by the Public Service Commission ("PSC"). Employees therefore had the right to pursue recourse and appeal mechanisms under the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA").
[15] The CCRA was established in 1999. Subsection 53(1) of the Act vests in the CCRA the exclusive right and authority to appoint its employees, and subsection 54(1) of the Act requires the CCRA to "develop a program governing staffing, including the appointment of, and recourse for, employees". Sections 53 and 54 of the Act are set out in Appendix A to these reasons.
[16] The CCRA did adopt a staffing program entitled the "Canada Customs and Revenue Agency Staffing Program" ("Staffing Program"). The Staffing Program provides that the "Selection Process" is one of the principal mechanisms used by the CCRA for the promotion and appointment of staff. The term "Selection Process" means the procedure whereby individuals may express interest in a job opportunity and subsequently be considered and selected for appointment.
[17] The Selection Process comprises three principal stages. The first stage is a review of an applicant against the pre-requisites for the position. The second stage involves an assessment of those who meet the pre-requisites against the qualifications for the position. The third stage deals with the placement of one or more qualified persons. The selection process is described in detail in a directive entitled "Directive on the Selection Process/Pre-qualified Pool" which is Annex E to the Staffing Program.
[18] At the pre-requisite stage, a selection board reviews each application for the pre-requisites listed in the statement of staffing requirements, and reiterated in the Notice of Job Opportunity. The selection board must decide whether the applicant meets the pre-requisites. Only applicants who meet the pre-requisites will be considered for assessment, which is the second stage of the selection process.
[19] This case involves only the pre-requisite stage of the selection process.
[20] The recourse available under the Staffing Program is described in section 5 of the program, and in Annex L, which is entitled "Directives on Recourse for Staffing". Recourse mechanisms include Individual Feedback, Decision Review Process, and Independent Third Party Review, depending upon the nature of the staffing activity.
[21] An employee who is affected by the decision of a selection board at the pre-requisite stage may ask for "Individual Feedback" from the person responsible for the selection process. Individual feedback is described to be both a recourse mechanism and a key element in the career management process, allowing employees to receive input on development needs.
[22] The Staffing Program states that during Individual Feedback, the person responsible for the relevant stage of the selection process: may conduct the Individual Feedback session verbally or in writing; will provide information respecting the decision at issue; should respond to any questions the employee may have; should review the decision in light of the employee's concerns; and, where appropriate, take corrective measures. Corrective measures include allowing the employee to continue as a candidate in the selection process.
ISSUES
[23] Three issues are raised on this application for judicial review. They are:
1. Is the CCRA Staffing Program, as it was applied to Mr. Anderson, consistent with the requirements of the Act? More particularly, did the Individual Feedback session provided to Mr. Anderson meet the requirements of the Act and the principles of procedural fairness?
2. What is the standard of review to be applied to the decision which resulted from the Individual Feedback session?
3. Can the decision respecting Mr. Anderson's qualifications withstand scrutiny pursuant to the applicable standard of review?
ANALYSIS
(i) Did the Individual Feedback session provided to Mr. Anderson meet the requirements of the Act and the principles of procedural fairness?
(a) Did the Individual Feedback session meet the requirements of the Act?
[24] The nub of the submission advanced on Mr. Anderson's behalf is that the recourse provided for employees under the Staffing Program must be modelled upon the recourse available under the PSEA. In support of this submission Mr. Anderson points to several sections of the Act which refer to recourse, and to debates in the House of Commons where the proposed CCRA staffing system was reviewed. Mr. Anderson also argues that this interpretation is supported by the fact that, where Parliament has employed the word "recourse" in a statute, it refers to a right to obtain real relief. Finally, Mr. Anderson argues that the dictionary definition of recourse, together with the nature of the rights affected by decisions of this kind, are such that a relatively high standard of justice must be met by the recourse provisions.
[25] For the reasons which follow, I have concluded that the recourse available to employees under the Act need not conform with, or be modelled upon, the recourse available under the PSEA.
[26] Turning first to the relevant provisions of the Act, while subsection 54(1) of the Act requires the CCRA to develop a staffing program which includes "recourse for employees", the nature of the recourse which is required is not specifically defined. The sections relied upon by Mr. Anderson are sections 55, 56, 59 and subsection 100(2) of the Act. For ease of reference, they are as follows:
| 55. (1) For the purpose of deployments or appointments made, or closed competitions held, under the Public Service Employment Act, employees of the Agency must be treated as if they were employees within the meaning of the Public Service Employment Act and had the rights of recourse provided by that Act.
55(2) The Public Service Commission may, in consultation with the Treasury Board, set terms and conditions for the deployment of Agency employees to departments and agencies under the Public Service Employment Act if, in the opinion of the Commission, the principles governing the Agency's staffing program are incompatible with those governing staffing under the Public Service Employment Act.
55(3) When the Agency considers employees within the meaning of the Public Service Employment Act for employment within the Agency, it must treat them as if they were employees of the Agency and had the rights of recourse of Agency employees.
56. (1) The Public Service Commission may prepare, or have prepared on its behalf, a report to the Agency on the consistency of the Agency's staffing program with the principles set out in the summary of its corporate business plan and must send a copy of the report to the Auditor General and the Treasury Board.
56(2) The Public Service Commission may periodically review the compatibility of the principles governing the Agency's staffing program with those governing staffing under the Public Service Employment Act and may report its findings in its annual report.
[...]
59. Following its third full year of operations and periodically after that, the Agency must have prepared, by a person or body other than the Agency, a director or an employee of the Agency, an assessment of the recourse that the Agency provides or administers in its management of human resources. The Agency must publish a summary of the assessment in its next annual report.
[...]
100(2) Any recourse commenced under the Public Service Employment Act that has not been finally dealt with on the coming into force of section 53 must be dealt with and disposed of in accordance with that Act as if section 53 had not come into force.
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55. (1) En ce qui a trait aux concours internes, aux mutations et aux nominations effectués sous le régime de la Loi sur l'emploi dans la fonction publique, les employés de l'Agence sont traités comme s'ils étaient des fonctionnaires au sens de cette loi et peuvent se prévaloir à cet égard des recours qui y sont prévus.
55(2) La Commission de la fonction publique, après consultation du Conseil du Trésor, peut assortir de modalités la mutation d'employés de l'Agence à des ministères ou organismes sous le régime de la Loi sur l'emploi dans la fonction publique si elle estime que les principes du programme de dotation de l'Agence sont incompatibles avec les principes régissant la dotation sous le régime de cette loi.
55(3) Lorsqu'elle les admet à postuler un emploi en son sein, l'Agence traite les fonctionnaires, au sens de la Loi sur l'emploi dans la fonction publique, comme s'ils étaient ses employés et avaient les mêmes recours que ceux-ci.
56. (1) La Commission de la fonction publique peut préparer - ou faire préparer - à l'intention de l'Agence un rapport sur la conformité du programme de dotation avec les principes énoncés dans le résumé du plan d'entreprise; elle envoie une copie du rapport au vérificateur général et au Conseil du Trésor.
56(2) La Commission de la fonction publique peut vérifier périodiquement la compatibilité des principes du programme de dotation de l'Agence avec les principes régissant la dotation sous le régime de la Loi sur l'emploi dans la fonction publique et faire état de ses conclusions dans son rapport d'activités.
[...]
59. Après sa troisième année complète de fonctionnement, et périodiquement par la suite, l'Agence fait préparer par une personne ou un organisme, sauf elle-même ou ses administrateurs ou employés, une évaluation des recours qu'elle offre ou administre dans le cadre de la gestion de ses ressources humaines. Elle inclut un résumé de l'évaluation dans son rapport d'activités.
[...]
100(2) Il en est de même pour les recours intentés sous le régime de la Loi sur l'emploi dans la fonction publique et en instance à la date d'entrée en vigueur de l'article 53. |
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[27] Mr. Anderson argues that it is particularly significant that in subsections 55(1) and 100(2) of the Act, Parliament refers to appeal or review mechanisms under the PSEA as "recourse", and that Parliament must be presumed to have intended that the word "recourse" be given a consistent meaning throughout the Act. This interpretation is said to be supported by the fact that sections 55 and 56 of the Act authorize the PSC to review the CCRA Staffing Program. In total, this is said to provide for a regime of checks and balances consistent with principles established under the PSEA.
[28] To properly consider this argument, I begin from the observation that the modern approach to statutory interpretation requires the words of an Act "to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". See: E. A. Driedger, Construction of Statutes, 2nd Ed. (Toronto: Butterworth's, 1983) at page 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21 by Mr. Justice Iacobucci.
[29] Applying that approach I conclude that:
i) Subsection 55(1) of the Act requires that for the purpose of deployments, appointments or closed competitions under the PSEA, employees of the CCRA must be treated as if they were employees within the meaning of the PSEA. In my view, this provision is only necessary if CCRA employees do not have similar or equivalent rights of recourse to those provided under the PSEA.
ii) Subsection 55(2) of the Act confers discretion on the PSC to set terms and conditions for deployments of CCRA employees to departments and agencies under the PSEA where, in its opinion, the principles governing the CCRA's staffing program are incompatible with those governing staffing under the PSEA. This provision, in my view, reflects the specific contemplation of Parliament that the CCRA's staffing principles may be different from, or even incompatible with, those under the PSEA.
iii) Subsection 56(1) of the Act authorizes the PSC to prepare or have prepared a report on the consistency of the CCRA's staffing program with the principles set out in the summary of its business plan, and subsection 56(2) allows the PSC to review the compatibility of CCRA staffing principles with those governing staffing under the PSEA. It is important to note that what is to be reviewed are staffing principles, not actual program provisions. Further, such comparison contemplates that there may be differences between the principles, and nothing in the legislation states that PSEA principles are to be preferred or applied to the CCRA.
iv) Section 59 of the Act requires the CCRA to have an assessment made following its third year of operation of the recourse that it provides or administers. There is no requirement that such review must compare the CCRA's recourse with that available under the PSEA.
v) The transitional provision in subsection 100(2) of the Act continues recourse that was commenced under the PSEA but not completed when the Act came into force. This is further recognition, in my view, that differences in recourse provisions were contemplated. Otherwise, there would be no need for such a transition provision.
[30] On the basis of this analysis, I find that the words used in these provisions, read in context, in their ordinary sense, and harmoniously with the scheme of the Act, do not support the conclusion that recourse under the Act must be modelled upon or be consistent with recourse under the PSEA.
[31] As for the Parliamentary debates relied upon, Hansard evidence can only play a limited role in the interpretation of legislation. Hansard cannot establish the intent of Parliament, but it may provide relevant evidence as to the background and purpose of legislation. See: Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299 at paragraph 20; Rizzo & Rizzo Shoes Ltd. (Re), supra, at paragraph 35.
[32] In any event, the Parliamentary debates relied upon fall short of establishing that recourse under the Act was intended to equate to recourse under the PSEA. For example, in Hansard, House of Commons Debates No. 143 (October 27, 1998) at 1630 (Hon. Sophia Leung), the following is recorded:
The agency would no longer be subject to the Public Service Employment Act. Therefore staffing and related matters would be subject to policies approved by its own board of management. This is an important change since for example recruitment that can now take anywhere from thee to six months under the government's one system fits all approach could be reduced to less than four weeks in most cases.
The agency would develop its own staffing program in accordance with certain stated principles. The Public Service Commission would report to the agency on whether its staffing program was consistent with these principles which would be set out in the summary of the corporate business plan.
[33] Finally, as to the meaning of the word "recourse" as found in other legislation or as defined in dictionaries, the word "recourse" by itself does not require an oral hearing before an independent tribunal, as sought by Mr. Anderson. Dictionary definitions provided by Mr. Anderson include "a turning to someone or something for help or protection" (online: http://www.yourdictionary.com/cgi-bin/mw.cgi) and "refuge, resort" "act of turning to for assistance" (Word Net 1.7 Vocabulary Helper, online: http://poets.notredame.ac.jp/cgi-bin/wn). Recourse does not equate to redress. Bringing a decision back to the original decision-maker for review provides a form of recourse where, as here, the Staffing Program provides the opportunity for corrective measures to be taken.
[34] Moreover, the best indication as to the intent of Parliament is found not in other legislation or dictionaries, but in the language used in the Act.
(b) Does Individual Feedback meet the requirements of procedural fairness?
[35] On Mr. Anderson's behalf it is argued that, given that professional, financial and personal interests may be affected by the failure to appoint someone to a position, a relatively high standard of justice is required. This is particularly so, it is argued, when one considers what was previously available to CCRA employees by way of redress under the PSEA.
[36] The recourse available under the Staffing Program to those in Mr. Anderson's position is the provision of Individual Feedback by the person in charge of the selection board. There is no further recourse from the decision of the person providing Individual Feedback. This process is said by Mr. Anderson to be neither procedurally fair nor in keeping with the principles of natural justice.
[37] The process is argued to be further flawed, and not procedurally fair, because:
i) only the manager and employee are entitled to participate in the Individual Feedback session. Thus, an employee can neither be represented nor bring in witnesses; and
ii) at an Individual Feedback session provided in respect of the pre-requisite stage, the sole issue is the affected employee's qualifications. The employee cannot raise how other employees were treated, and no assessment information regarding other candidates is provided.
[38] Consideration of these arguments must begin from the well-settled premise that the concept of fairness is variable and contextual, not abstract or absolute. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at page 837 and following, the Supreme Court confirmed that the factors which are to be used in determining what procedural rights the duty of fairness requires in any given set of circumstances are:
i) the nature of the decision being made and the process followed in making it;
ii) the nature of the statutory scheme, and the terms of the legislation pursuant to which the decision-maker operates;
iii) the importance of the decision to the affected individual;
iv) the legitimate expectations of the person challenging the decision; and
v) the choice of procedure made by the decision-maker, particularly where the legislation leaves to the decision-maker the ability to choose its own procedures.
[39] Turning to the first factor, the nature of the decision and the process followed to make it, in substance the issue to be considered is the extent to which the impugned decision and the process followed to reach it resemble an adjudication. The more closely they resemble an adjudication the greater the content of the duty of fairness.
[40] Here, the decision is to be based on reasonably objective criteria and not upon an open-ended discretion, on facts concerning an applicant, and the decision applies only to that applicant. Those factors point to a relatively high content of the duty of fairness. However, Annex L of the Staffing Program is express that "[t]he provision of Individual Feedback is not merely a recourse mechanism for unsatisfied employees. Individual Feedback is a key element in the career management process of the Agency, allowing employees to receive input on development needs." This plus the fact that the onus is upon an applicant to demonstrate that he or she meets the pre-requisites moves the administrative process somewhat away from any adjudicative process and lowers the duty of fairness owed.
[41] The second factor is the nature of the statutory scheme. The Act confers considerable discretion upon the CCRA to establish a staffing program. To the extent that, as a matter of law, greater procedural protections are required when no appeal procedure is provided within the legislation it is relevant that decisions on Individual Feedback are not immune from challenge, but may be reviewed by this Court on judicial review.
[42] Turning to the third factor, the importance of a decision of this type to an individual is significant on a personal level. However, a decision as to whether one meets the pre-requisites for a position does not impact upon a person to the same extent as a decision where the right to continue in employment is at stake. An applicant generally has no right to fill a new position, and may apply for the same or a different position in the future. When one is found not to meet the relevant pre-requisites what is lost is the right to be assessed against the qualifications for the position, along with all others who meet the pre-requisites for the position.
[43] The fourth factor concerns legitimate expectation. There is no evidence of any act or omission which might support a legitimate expectation that Mr. Anderson, or any other affected employee, had that some other procedure would be followed when he or she wishes to challenge a decision that he or she does not meet the pre-requisites for a position.
[44] Finally with respect to the choice of procedure, as previously noted, the Act leaves great discretion to the decision-maker to choose its own procedures.
[45] Considering the statutory, institutional and social context in which a decision is to be made concerning an applicant's complaint about a decision that he or she does not have the pre-requisite qualifications for a position, and balancing the above factors I have not been satisfied that procedural fairness requires a need for review by an independent third party. Put positively, I find that the recourse available by way of Individual Feedback is consistent with, and meets, the requirements of procedural fairness.
[46] Procedural fairness requires a meaningful opportunity to present relevant facts and to have one's position fully and fairly considered by the decision-maker. As noted by Madam Justice L'Heureux-Dubé in Baker, supra, at page 837, the purpose of the participatory rights contained within the duty of fairness "is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker".
[47] The recourse provided by Individual Feedback requires that an employee have meaningful information regarding his or her assessment. An employee is well aware from the Notice of Job Opportunity and the statement of staffing requirements as to what the pre-requisites are for a position. Similarly, an employee is well aware of his or her ability to meet those pre-requisites. It has not been shown that an employee requires representation to explain where an assessment of qualification fell into error, or how an employee has established that he or she possesses the pre-requisites. Prior to the Individual Feedback session, an employee is free to obtain information from any source to help explain or make their case at the Individual Feedback session. This provides a fair opportunity for an employee to present his or her case.
[48] Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. It is not, in my view, axiomatic that a person responsible for a selection board will by virtue of that position not be inclined to change the decision of the selection board if shown that an error was made. As a matter of law, in the absence of statutory restriction, non-adjudicative decisions may be reconsidered and varied. (See: Brown & Evans, Judicial Review of Administrative Action in Canada, looseleaf (Canvasback Publishing: Toronto, 1998) at 12:6100.) Given the apparent absence of any pecuniary or material interest on the part of the manager providing Individual Feedback in the matter under review, and the nature of the decision under review, it seems to me that a less demanding standard of impartiality is required then that applied to decisions of a judicial nature. The evidence does not establish that the persons providing Individual Feedback will by virtue of that fact alone have an impermissibly closed mind.
[49] It is to be noted that there is a public interest in expeditious decision-making. The manager who conducts the Individual Feedback is well placed to explain fully, accurately, and expeditiously the rationale for screening a candidate out of the competition. This manager is also well-qualified to advise with respect to the candidate's developmental needs.
[50] As for the limitation that at the Individual Feedback stage an employee cannot raise how other employees were treated, and cannot obtain assessment information regarding other candidates, the sole issue at this first stage of the selection process is a review of the applicant's qualifications against the pre-requisites for the position. The decision made is objective in nature, in the sense that an individual either meets the pre-requisites or does not. How others are judged is not relevant to the objective question of whether a particular individual possesses the pre-requisites. The duty of fairness does not, therefore, require access to information that is irrelevant at this stage of the selection process.
[51] To reiterate, I conclude that the recourse available by way of Individual Feedback to a person found not to possess the pre-requisites for a position is consistent with requirements of procedural fairness.
(ii) What is the standard of review to be applied to the decision which results from the Individual Feedback session?
[52] On Mr. Anderson's behalf, it is asserted that the standard of review to be applied to the decision at issue is correctness, because:
(a) The issue in the present case is very much like the questions of law which may be raised under the Public Service Employment Act concerning the interpretation and application of the merit principle. The Federal Court of Appeal has held that those questions are subject to review on a correctness standard. There is no reason why a similar standard should not be applied here;
(b) The central issue raised by the Application is whether the staffing program established by the CCRA, and the decision of the Manager respecting Individual Feedback, were consistent with the requirements of the CCRA Act. It therefore calls for expertise in the interpretation and application of statutes - an expertise that the particular decision-maker does not have but which this Court does. Indeed, this is precisely a generalized issue of law that this Court is better equipped to consider;
(c) As the position of the Applicant is that the Individual Feedback provided to him is inconsistent with the requirements of the CCRA Act, ultimately he maintains that the decision-maker was either without jurisdiction to render this decision or exceeded his jurisdiction as it was inconsistent with the CCRA Act. As such, the question is jurisdictional in nature which also calls for a correctness standard;
(d) The decision under attack was rendered by a CCRA Manager without any of the benefits of a hearing or quasi-judicial process. In fact, because the decision was rendered by a CCRA Manager and concerned his own application of the Act, and because the decision concerns whether the CCRA itself has complied with the CCRA Act, the decision-maker would not, by any standard, be considered neutral. It is therefore appropriate for the Court to closely scrutinize this decision; and
(e) The decision-maker is not protected by any form of privative clause; indeed, there is nothing in the statute which indicates Parliament's intent that such a decision should be insulated from review.
[53] In Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at paragraph 20, the Supreme Court again affirmed the primacy of the pragmatic and functional approach to reveal the standard of review to be applied to an administrative decision. The pragmatic and functional approach requires consideration of the following four contextual factors:
i) the presence or absence of a privative clause or statutory right of appeal;
ii) the expertise of the administrative decision-maker relative to that of the reviewing Court on the issue in question;
iii) the purpose of the legislation and the provision in particular; and
iv) the nature of the question.
[54] The decision here under review is that of the manager who was asked to reconsider the decision of the Selection Board to exclude Mr. Anderson from the selection process because he did not meet the pre-requisites for the position. Specifically, under review was the conclusion that Mr. Anderson lacked the requisite experience.
[55] Considering each contextual factor in turn, the Act is silent as to the question of any review of recourse decisions. Silence is said to be a neutral factor. See: Dr. Q, supra at paragraph 27.
[56] As for relative expertise, here the decision is whether the Selection Board erred in finding that Mr. Anderson did not have the requisite experience for the position of Team Leader, Collections. The selection process mandates that the staffing requirements of the CCRA are to be linked to present and future business requirements and are to be established having regard to the nature of the duties of the positions to be filled.
[57] Relative expertise can arise in a number of ways. Here, the question is one of fact as to whether an experience requirement is met. The requirement was established by CCRA managers, and managers must regularly be called upon to make findings with respect to experience. Therefore they gain a measure of relative institutional expertise. This means managers conducting Individual Feedback at the initial stage of the selection process may have a relatively superior capacity to reach conclusions about whether an applicant possesses the appropriate experience. It follows that such decision-makers will generally be entitled to some degree of curial deference.
[58] The third factor requires consideration of the purpose of the legislation, and the purpose of the particular provision in question. The general purpose of the Act is to transform Revenue Canada from a government department into a body corporate agent of the Crown. The Act confers discretion upon the CCRA with respect to development of a program governing staffing, including the provision of recourse. That discretion counsels deference. However, the specific administrative decision at issue in this case does not engage policy issues, or require the balancing of multiple sets of interests and considerations. Rather, in providing Individual Feedback, the decision-maker is seeking to resolve a dispute as to whether certain pre-requisites were met. This purpose of the decision does not counsel deference. I conclude, therefore, that the assessment of the purpose of the statute and the provision in particular leads to an ambivalent result when considering the appropriate standard of review.
[59] The final factor to be considered is the nature of the problem. The finding here being reviewed is one of fact, which indicates more deference should be shown by the reviewing Court.
[60] Balancing these factors as best as I am able to, I conclude that the appropriate standard of review is patent unreasonableness.
(iii) Was the decision of the manager at the Individual Feedback stage that Mr. Anderson did not have the pre-requisite experience patently unreasonable or reached in breach of the duty of fairness?
[61] On Mr. Anderson's behalf it is alleged that the decision is unreasonable because:
i) Mr. Anderson's substantial experience was not properly considered. No consideration was given to Mr. Anderson's experience at levels higher than PM-02 (referred to in the Notice of Job Opportunity), his experience regarding the creation of the CCRA, and the sheer length of his tenure.
ii) By screening him out because he had only been performing the duties of a senior officer for approximately one year within the last three years, the employer took a very narrow approach to the statement of qualifications. This was unreasonable.
iii) The employer required candidates to have thorough familiarity with CCRA policies and procedures. This was not a requirement set out in the Notice of Job Opportunity.
[62] Further, Mr. Anderson says that the decision was reached in violation of the rules of procedural fairness because:
i) Mr. Anderson was not given a full opportunity to present his case.
ii) Mr. Charles failed to:
- take time to review relevant documents, questions or discussion points prior to providing the Individual Feedback;
- provide Mr. Anderson with meaningful information regarding his own assessment;
- review the nature of the decision relevant to Mr. Anderson's concerns and respond to any questions that he had regarding this phase of the selection process;
- provide Mr. Anderson with access to his own evaluation documents and failed to provide information regarding other candidates; and
- take advantage of the Individual Feedback session as an opportunity to provide Mr. Anderson with information that would assist him in the management of his career.
[63] For ease of reference, I repeat the experience pre-requisites as set out in the Notice of Job Opportunity:
Job description and duties:
Managing a team in the Revenue Collections Division responsible for the collection and enforcement of account[s] receivable and the provision of information and advisory services. The incumbent provides guidance and innovation to the team by demonstrating leadership through the application and delivery of the Agency's Manager's Charter.
Experience:
Recent and significant experience within Revenue Collections in a senior officer level in the Accounts Receivable Program.
Recent is defined as approximately within the last 3 years.
Significant: Full time performance of duties for approximately 2 consecutive years.
The above noted experience would normally be attained at the PM 02 level or higher.
[64] The Notice of Job Opportunity specified that "[o]nly candidates who demonstrate that they meet the pre-requisites will be considered". In response, Mr. Anderson simply described in his application his experiences as "Collections recourse officer" from August 15, 1996 to May 10, 2001 (being the date of the application). Nothing further was added to demonstrate that he met the pre-requisites.
[65] Mr. Anderson's evidence of the matters he raised at the Individual Feedback session is as follows:
9. Mr. Charles told me that he had heard I wished feedback on the competition. He advised me that I was screened out on the basis of not meeting the experience criteria. I pointed out to Mr. Charles that I met the definition of "recent" and that I had 26 years' experience at a PM-02 level or higher.
10. Mr. Charles replied that the poster actually meant that the candidate should have spent the last two years performing the duties of a PM-02 or PM-03 in the Collections section. I repeated that I clearly met the requirements of the poster as written. Mr. Charles then stated, "don't play word games with me, I am telling you what the poster meant." He said that performance of duties meant performing the duties of the job description, not duties assigned by management. Mr. Charles stated that he could change the poster to reflect what he was saying, but that would just be a waste of time. He said, "I could write the poster any way I want."
[66] Thus, to the extent that he now argues that at the Individual Feedback session no consideration was given to his substantial experience even if he did not strictly fall within the specified pre-requisites, there is no evidence that Mr. Anderson asked for consideration on the basis that he otherwise met the pre-requisites by virtue of the length of his service, the fact he had worked at a level higher than PM-02, and by his work on the CCRA transition team. As set out above, Mr. Anderson advanced the position that he did fall within the requirements of "recent and significant experience" because of his length of service and the fact that he had some recent experience. In my view, no reviewable error exists in failing to consider submissions and matters not raised at the Individual Feedback session to the effect that Mr. Anderson had equivalent experience so as to otherwise be qualified for the position.
[67] Turning to the wording used to describe the experience pre-requisite, in my view, Mr. Charles did not err in interpreting the requirement as written to mean that a candidate was required to have performed full-time duties in accounts receivable for approximately two consecutive years within the previous three years. Mr. Charles swore that at the Individual Feedback session:
14. I told the Applicant that he did not meet the experience pre-requisite because his experience in Revenue Collections was not recent and significant, as he had not been performing full-time duties in the Accounts Receivable Program for approximately 2 consecutive years within the last three years. As stated above, the Applicant was on a voluntary assignment outside of the Revenue Collections division for the period January 1997 to April 2000.
[68] As to Mr. Anderson's ability to meet that requirement, there is no dispute that from January 1997 to April 2000 Mr. Anderson was on assignment outside the Collections division, working on matters relating to the creation of the CCRA.
[69] While the term "approximately" used in the job posting provides the decision-maker with some discretion to include persons whose experience may have taken place just outside the specified time boundaries, it does not allow the decision-maker to ignore the requirement for recent and significant experience. The decision-maker is not allowed to look instead at candidate's total years of service, or to see how a candidate could otherwise compensate for the lack of full-time performance of collections duties for approximately two consecutive years within approximately the last three years.
[70] Further, while in some cases it may be unclear as to where the boundaries of the discretion of a selection board lie, I am satisfied that it was not unreasonable for Mr. Charles to conclude at the Individual Feedback session that the discretion of the selection board did not extend to reducing by half the recent experience requirement. The selection board would, in effect, have done this if it accepted as recent collections experience Mr. Anderson's experience obtained in the 13 months from April 2000 to May 2001.
[71] I have not been satisfied that new criteria were imported into the competition by requiring knowledge of policies and legislation that affects revenue collections. Knowledge of legislation and policies was explained by the respondent as the reason for the requirement of recent experience. It was not a requirement in and of itself.
[72] For these reasons, I find Mr. Charles' decision not to be patently unreasonable. Further, even if the standard of review is reasonableness simpliciter, I would not find the decision to be clearly wrong.
[73] Turning to whether the rules of procedural fairness were breached in the circumstances of this case, as previously noted the duty of fairness requires that those whose interests are affected have a meaningful opportunity to present their case fully and fairly. There is no evidence that Mr. Anderson protested to Mr. Charles or anyone else the lack of representation, or indicated any need for representation at the Individual Feedback session, or was otherwise not afforded the opportunity to make his case.
[74] Before considering the complaints made as to the content of the Individual Feedback session it is necessary to consider more fully the events that led to the session. After he learned that he had been screened out of the competition Mr. Anderson was told by his manager that he should seek Individual Feedback under the CCRA Staffing Policy from Mr. Charles. Mr. Anderson then went to Mr. Charles' office, but Mr. Charles was not there. Mr. Anderson then returned approximately one hour later. At that time Mr. Charles was in his office. Mr. Charles told Mr. Anderson that he had heard that Mr. Anderson wished feedback. The feedback session then ensued.
[75] It does not appear that Mr. Charles took time before the session to review relevant documents. Nor did he take advantage of the session as an opportunity to provide Mr. Anderson with information that would assist in the management of his career as contemplated in the directive on recourse for staffing. However, in my view, the responsibilities on those who conduct an Individual Feedback session must reflect the specific factual context before them. For example, the need an employee may have for assistance in the management of his or her career will likely vary between candidates, and an Individual Feedback session should not be vitiated by a failure to provide unnecessary, or unwanted, information.
[76] In the present case, the evidence persuades me that the Individual Feedback session provided Mr. Anderson with a full opportunity to address his concerns. There was no evidence that meaningful information regarding Mr. Anderson's assessment was not provided to him or that any questions he had went unanswered. The nature of the decision relevant to his concerns was reviewed. That concern was whether his experience was sufficiently recent and significant to meet the pre-requisites. The timing of the session reflected Mr. Anderson's desire to see the supervisor immediately. The content of the session reflected that what Mr. Anderson wanted was a chance to explain his view that he met the definition of recent experience.
[77] I have considered Mr. Anderson's evidence that during the Individual Feedback session Mr. Charles told him that the criteria applied by the selection board were inconsistent with the Notice of Job Opportunity, and that Mr. Charles could re-write the notice to reflect the real requirements of the selection board. I see no such inconsistency and Mr. Charles denied saying this. Neither deponent was cross-examined on their evidence. I am not prepared to find a breach of the duty of fairness based on this unresolved conflict in the evidence.
[78] In sum, on the facts before me I am satisfied that Mr. Anderson was dealt with in a fashion that met the duty of fairness. Mr. Anderson exercised his opportunity for redress in the manner he felt was appropriate and received a fair response.
CONCLUSION
[79] For these reasons, the application for judicial review will be dismissed.
[80] Both parties sought costs in the event they were successful. I see no reason why costs should not follow the event. Therefore, the respondent is entitled to its costs to be assessed in accordance with column III of the table to Tariff B of the Federal Court Rules, 1998.
ORDER
[81] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. The applicant shall pay to the respondent its costs, to be assessed in accordance with column III of the table to Tariff B of the Federal Court Rules, 1998.
"Eleanor R. Dawson"
Judge
APPENDIX A
Canada Customs and Revenue Agency Act, sections 53 and 54:
| 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.
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53. (1) L'Agence a compétence exclusive pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses activités.
(2) Les attributions prévues au paragraphe (1) sont exercées par le commissaire pour le compte de l'Agence.
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés.
(2) Sont exclues du champ des conventions collectives toutes les matières régies par le programme de dotation en personnel.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1163-01
STYLE OF CAUSE: George Anderson v. Canada Customs and Revenue Agency
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 7, 2003
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 29, 2003
APPEARANCES:
David Yazbeck APPLICANT
Sanderson Graham RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne APPLICANT
Barristers & Solicitors
Morris Rosenberg
Deputy Attorney General of Canada RESPONDENT
Barristers & Solicitors