Date: 19991126
Docket: T-1842-98
OTTAWA, ONTARIO, THIS 26th DAY OF NOVEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
JEANNE PAGNAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
UPON the applicant"s application for judicial review of the decision of investigator A. Preto dated October 29, 1997;
UPON the parties" written submissions and the hearing of November 3, 1999 in Ottawa, Ontario;
IT IS HEREBY ORDERED THAT:
1. This application for judicial review is dismissed.
2. The applicant shall pay to the respondent costs in the amount of $500.
"Allan Lutfy"
J.F.C.C.
Date: 19991126
Docket: T-1842-98
BETWEEN:
JEANNE PAGNAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] This application for judicial review seeks to set aside the decision of an investigator, appointed pursuant to section 7.1 of the Public Service Employment Act, R.S.C. 1985, c. P-33, to investigate the applicant"s complaint concerning her status as a member of the public service.
BACKGROUND
[2] From November 1991, the applicant was employed as a program officer with the Canadian Wildlife Service in Environment Canada.
[3] In October 1993, as the result of winning an international competition, the applicant accepted, with the consent of her superiors, an assignment as program coordinator with the secretariat of the Conservation of Arctic Flora and Fauna, a working group organized by eight Arctic countries, including Canada.
| A) On October 20, 1994, the applicant was advised that due to the discontinuance of her function with the Canadian Wildlife Service, her services would become surplus to departmental requirements. Pursuant to Work Force Adjustment Directive, she was granted status as a surplus employee for six months. The applicant"s surplus status was extended through March 31, 1996 according to the terms of the Directive and new provisions introduced after the 1995 budget. As the result of a grievance process, her deputy head further extended her surplus period to June 9, 1996. |
| B) In the meantime, the applicant worked continuously with the CAFF secretariat through March 31, 1996, upon extensions of her initial mandate. The last extension, for a twelve-month period beginning April 1, 1995, was signed by the applicant and her departmental supervisor and included the following stipulation: |
| This employee who is presently declared surplus will continue to be referred to positions within the public service and will benefit from the same treatment and entitlements in accordance with the Workforce Adjustment Directive during the period of assignment. The employee will be made aware in writing of any changes to the existing Workforce Adjustment Directive as soon as it is available. |
The applicant noted "not possible" when signing this addendum.
| C) On May 1, 1996, the applicant retired from the federal public service. |
| D) On April 11, 1997, the applicant filed a request for investigation with the Public Service Commission, pursuant to section 7.1 of the Public Service Employment Act, in which she sought the following corrective action: "Regularize employment status as program coordinator (CAFF) for period 1993-96 through classification/staffing action." As I understand this request, the applicant was seeking to "regularize" her CAFF functions as a position within the federal public service. |
| E) In her case report of October 29, 1997, the investigator concluded that the allegations raised in the applicant"s request for investigation were not founded and that no further intervention by the Public Service Commission was warranted. The applicant now seeks judicial review of the investigator"s decision. |
THE ISSUES BEFORE THE INVESTIGATOR
| F) This application for judicial review can only be properly determined if one understands the issues that were placed before the investigator and the manner in which she disposed of them. There are three documents which delineate the issues submitted by the applicant to the investigator: (a) her request for investigation which included an eight-page statement of allegations; (b) the disclosure meeting report which summarized the applicant"s allegations and the department"s response; and (c ) the applicant"s twenty-nine-page written submissions filed with the investigator. The record also includes the investigator"s summary notes of her fact-finding meeting during which the parties made oral submissions and, of course, the investigator"s case report or decision. I have carefully reviewed these five documents. |
| G) The applicant"s statement of allegations before the investigator was summarized in the disclosure meeting report: |
| Ms. Pagnan agreed that her allegations could be summarized as follows: |
| Unfair treatment, contrary to the rules and regulations governing appointments and Workforce Adjustment in the Public Service because: |
| a) the department did not regularize her employment status during the period from 1993 to 1996 when the complainant performed duties relating to the provision of secretariat services to the Conservation of Arctic Flora and Fauna (CAFF) program of the Arctic Environmental Protection Strategy; and |
| b) she was kept on continuous surplus status from mid 1994 to May 1, 1996 (the date the complainant opted for the Early Retirement Incentive). |
| H) This summary of the applicant"s allegations was reformulated somewhat during the oral presentation before the investigator. In her report, the investigator identified three allegations, as she noted them during the hearing: |
| a) the applicant alleged that she had been improperly declared surplus, as her contractual agreement with respect to the CAFF secretariat had led her to believe that she would be employed to the end of her term; |
| b) the applicant alleged that the department had no legal right to declare her surplus when she was working full-time as a BI-03 doing CAFF secretariat work, and that she should have been declared surplus only after completing her CAFF responsibilities; and |
| c) the applicant alleged that the department failed to properly market her in the federal public service. |
Nothing of substance turns on this different statement of the issues.
| I) It would be inappropriate, in my view, to raise an issue in this application for judicial review which was not placed before the investigator for her consideration. I also note that the applicant did not pursue, in this proceeding, the argument advanced by her former counsel before the investigator concerning section 34 of the Public Service Employment Regulations, SOR/93-286. |
APPLICANT"S POSITION
| J) The oral submissions advanced on behalf of the applicant were cast somewhat differently from her factum. The applicant"s position appears to be threefold. |
| K) First, her substantive position with the Canadian Wildlife Service could not be declared surplus until the department ceased to support her CAFF functions upon her retirement on May 1, 1996. |
| L) Second, because of the department"s failure to formalize the applicant"s CAFF functions within the federal public service, she executed those functions as part of her substantive position with the Canadian Wildlife Service. |
| M) Third, the investigator failed to address properly the applicant"s complaint concerning the circumstances under which her mandate with the CAFF secretariat was extended until March 31, 1996. |
| N) In summary, the applicant urges that the investigator"s report be set aside because of her failure to consider these issues on the basis of the material and information available to her. |
RESPONDENT"S POSITION
| O) Counsel for the respondent suggested that the issues raised by the applicant could be properly subsumed in one general question: did the investigator err in concluding that the Canadian Wildlife Service could properly declare the applicant"s substantive position to be surplus or discontinued while she was still on assignment with the CAFF secretariat? |
| P) According to the respondent, the investigator did not err in finding that: (a) the applicant continued in her CAFF assignment voluntarily; (b) her functions with the CAFF secretariat were unrelated to her substantive position and did not constitute an established position in the federal public service; (c) her substantive position was properly discontinued; and (d) the department did not act improperly in not regularizing the applicant"s CAFF functions within the federal public service. |
ANALYSIS
| Q) It is useful to understand the legislative framework under which the investigator conducted her report. This is set out in sections 7.1 and 7.2 of the Public Service Employment Act: |
| 7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction. 7.2 In connection with and for the purposes of any investigation or report, other than an audit, by the Commission under this Act, the Commission has all the powers of a commissioner under Part II of the Inquiries Act. |
7.1 La Commission peut effectuer les enquêtes et vérifications qu'elle juge indiquées sur toute question relevant de sa compétence. 7.2 Pour les besoins de tout rapport ou enquête qu'elle effectue sous le régime de la présente loi, sauf dans le cas des vérifications, la Commission dispose des pouvoirs d'un commissaire nommé au titre de la partie II de la Loi sur les enquêtes. |
| R) Orders-in-council establish the terms of reference of investigations under the Inquiries Act, R.S.C. 1985, c. I-11. In an investigation under section 7.1 of the Public Service Employment Act, however, the investigator"s mandate is triggered by the complainant"s request for investigation. |
| S) In her first finding of fact, the investigator concluded that the applicant"s CAFF functions did not constitute an established position within the federal public service. The investigator found that the applicant"s substantive position was "that of International Program Officer (intermediate BI-03) in the external relations branch of the [Canadian Wildlife Service], ... an established position in the [federal public service]". She concluded her finding of fact in these terms: |
| The work that the Complainant voluntarily entered into on the basis of the Assignment Agreement between CWS and the International Working Group for the CAFF, was clearly not an established position in the FPS. In fact, it was quite clearly work that was being done outside of the FPS, that is, for and with the international community of the AEPS participating countries, namely, Denmark, Finland, Iceland, Norway, the former Soviet Union, Sweden, the United States of America, and Canada. |
| T) As I understood counsel"s reply argument, he urged that because the department did not create a new public service position for the applicant"s CAFF functions, she must have been carrying out those functions from her BI-03 substantive position. However, this is not the position the applicant presented to the investigator and cannot be the basis of a successful challenge of the investigator"s report. |
| U) The applicant did not argue before the investigator that her CAFF assignment was a disguised appointment. Indeed, the applicant noted on a number of occasions in her submissions that the CAFF work was different from her substantive position with the Canadian Wildlife Service. |
| V) For example, in her statement of allegations, the applicant wrote: "On paper I performed the duties of International Program Officer (BI-03) in the Canadian Wildlife Service ... but in reality ... I performed the duties of Program Coordinator/Executive Secretary to CAFF." The applicant repeated this assertion in her written submissions to the investigator, in which she also stated: |
| "I am not contesting the fact that the position of International Program Officer was declared surplus. I am contesting the timing of that decision and the manner in which it was carried out and the way in which my assignment as CAFF Executive Secretary was handled by the Department." |
In other words, the applicant was only contesting the timing of the discontinuance of her substantive position. She did not argue before the investigator that her substantive position could not be discontinued because it incorporated her CAFF functions. To repeat, she acknowledged, properly in my view, that her substantive position was separate from her CAFF functions.
| W) I am satisfied that the investigator could properly find, on the basis of the record placed before her, that the applicant"s functions with CAFF did not constitute an established position in the federal public service. The applicant continued to work in her Ottawa office and she was remunerated by the federal government who in turn invoiced the international group. However, it is clear that functionally she worked for the CAFF secretariat, yet could from time to time be asked to carry out specific tasks related to her substantive position. This was consistent with the position adopted by the applicant, at least before the investigator, that her CAFF work was different from her substantive departmental position. CAFF was an international organization which Canada supported, but which was separate and independent from the federal government. I attach no relevance to the applicant"s submission that CAFF was not "a legal entity". |
| X) The investigator also dealt with the applicant"s allegation that the department should have regularized her CAFF work in a new departmental position. Her finding on this issue was expressed as follows: |
| While it is understandable, from the Complainant"s perspective, that it was highly desirable for her that the Department formalize her work with the CAFF Secretariat (which she had agreed to do on an assignment basis) into a FPS position, no evidence has been presented which would lead me to conclude that the Department was remiss in not doing so, or mislead the Complainant in any way in connection with that matter. |
| Y) This finding does not indicate, as suggested by the applicant in this proceeding, that the investigator ignored the information that was presented to her. Her conclusion was that, on the basis of the evidence before her, she did not find that the department was obliged to create a new position for the applicant"s CAFF functions. Again, in my opinion, it was open for the investigator to make this finding on the basis of the information she received. In my own review of the record in this proceeding, I have found no information to suggest that the department was obliged to formalize a public service position for the applicant"s functions with the CAFF secretariat. |
| Z) The investigator clearly distinguished between the applicant"s substantive position with the Canadian Wildlife Service and her position with the CAFF secretariat. In her view, one was within the federal public service and the other was not. She also found that the department did not undertake to create a separate position further to the public service for the applicant"s CAFF functions and that it was not required to do so. In my opinion, these findings are reasonable, disclose no reviewable error and constitute a complete response to the applicant"s mistaken view that the department"s failure to formalize her CAFF functions within the public service meant that she carried out those functions as part of her substantive position, which could therefore not be declared surplus until May 1996. |
| AA) The applicant"s written submissions to the investigator also complained of the department"s alleged unilateral actions in extending her CAFF assignment and its failure to assist her in finding alternate employment during her surplus period. The investigator"s finding on these issues is stated as follows: |
| ... I am not persuaded that the Complainant was denied the opportunity to seek alternate employment, as alleged. Rather, I find that the Complainant could have insisted to be excused from her CAFF responsibilities, but chose not to, and, regrettably for her, consequently severely restricted her opportunities to seek alternate employment in the FPS. I note that the Assignment Agreement which she signed on October 1, 1993, was subject to the renegotiation of clauses by any of the signatories, including the Complainant. Otherwise put, there was nothing impeding the Complainant from calling for a renegotiation of the clauses, in order to build in some time for herself to seek alternate employment or, for that matter, to terminate the Assignment Agreement altogether. |
Again, I find no reviewable error in the investigator"s conclusion.
| BB) As indicated earlier, it is my understanding that the applicant did not challenge, before the investigator, the department"s right to discontinue her substantive position. Her principal complaints were that her CAFF functions ought to have been regularized as a separate public service position and that her substantive position could not be discontinued until her work with CAFF ended. She also suggested that a departmental supervisor assured her in 1993 that her substantive position would not be discontinued while she was with CAFF. |
| CC) I cannot accept the applicant"s argument that the department"s consent, and perhaps encouragement concerning the extension to March 31, 1996, that her CAFF functions be continued is inconsistent with the decision to lay off the employee from her substantive position. The applicant herself, at least in the submissions she made before the investigator, noted that her CAFF position was different from her substantive position. Even if the department may have had an interest in prolonging the applicant"s surplus status so as to facilitate her work with CAFF, this in no way affected the deputy head"s ability to declare her substantive position discontinued, pursuant to subsection 29(1) of the Public Service Employment Act . |
| DD) During the hearing in this proceeding, the applicant withdrew her argument concerning procedural fairness. |
| EE) In summary, I find no reviewable error in the investigator"s case report of October 29, 1997. Accordingly, this application for judicial review will be dismissed with costs which I fix at $500. |
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
November 26, 1999
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