Canada (Attorney General) v. Gillis

Canada (Attorney General) v. Gillis Court (s) Database Federal Court of Appeal Decisions Date 2007-03-16 Neutral citation 2007 FCA 112 File numbers A-260-06 Notes Digest Decision Content Date: 20070316 Docket: A-260-06 Citation: 2007 FCA 112 CORAM: LÉTOURNEAU J.A. SEXTON J.A. EVANS J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Appellant and BRENDA GILLIS Respondent Heard at Toronto, Ontario, on February 13, 2007. Judgment delivered at Ottawa, Ontario, on March 16, 2007. REASONS FOR JUDGMENT BY: EVANS J.A. CONCURRED IN BY: LÉTOURNEAU J.A. SEXTON J.A. Date: 20070316 Docket: A-260-06 Citation: 2007 FCA 112 CORAM: LÉTOURNEAU J.A. SEXTON J.A. EVANS J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Appellant and BRENDA GILLIS Respondent REASONS FOR JUDGMENT EVANS J.A. A. INTRODUCTION [1] The issue to be decided in this case is whether an adjudicator committed a reviewable error when he dismissed a complaint by a member of the Royal Canadian Mounted Police that she had been wrongly deprived of a promotion because the promotion process was not complete when it was cancelled. [2] Brenda Gillis is a civilian employee of the RCMP. On September 9, 2003, she was told that her transfer to a supervisory position at the TO-03 level had been authorized on the basis of her success in a job competition, and that her promotion would be effective as of September 29, 2003. She was congratulated by colleagues to whom copies of the transfer authorization had been circulated. Early in September, Ms Gillis started to receive communications relating to her new responsibilities. [3] However, on September 18, she was advised that the posted qualifications for the job had been wrongly described and that, since she did not meet the correct qualifications, her promotion to this position would be an error. An e-mail, dated September 25, was sent to Ms Gillis and others stating that, because of an error in the staffing process, Ms Gillis would not be assuming the TO-03 position on September 29. On November 3, the authorization of Ms Gillis’ transfer was formally cancelled. [4] On October 15, 2003, Ms Gillis submitted a grievance alleging that the refusal to permit her to assume the supervisory TO-03 position was arbitrary. She claimed to have suffered prejudice by being deprived of the promotion, which resulted in loss of salary, pension and time in position, as well as in considerable personal embarrassment. She rejected a compromise that was offered to her and chose to pursue her grievance. [5] In a decision dated July 4, 2005, an adjudicator, Inspector T.A. Hart, dismissed the grievance, finding that the cancellation of the promotion was not in error, since the promotion had not taken effect when it was cancelled on the ground that Ms Gillis did not have the experience required by the correct job description. [6] She applied for judicial review to the Federal Court to set aside the adjudicator’s decision. The Applications Judge granted the application and ordered the RCMP to install Ms Gillis in the TO-03 position. His decision is reported as Gillis v. Canada (Attorney General), 2006 FC 568. [7] This is an appeal from that decision by the Attorney General, and is based on two grounds. First, having selected reasonableness simpliciter as the appropriate standard of review, the Judge erred by, in fact, reviewing the adjudicator’s decision on a correctness standard. Second, in ordering that Ms Gillis be installed in the TO-03 position the Judge not only exercised the adjudicator’s discretion by fashioning a remedy himself, but also selected relief which the adjudicator could not have awarded if he had found in favour of Ms Gillis. [8] In my opinion, the appeal should be allowed, on the ground that the adjudicator’s application of the relevant policies to the facts was not patently unreasonable. Since I have concluded that the adjudicator made no reviewable error in dismissing the grievance, I need not opine on the propriety of the remedy awarded by the Judge. B. THE DECISIONS BELOW [9] The adjudicator found that the promotion process was under way when the mistake in the job description was discovered and the decision to promote Ms Gillis was reversed. However, since the process was not complete, the cancellation of her promotion was not erroneous. The key passage of his reasons is as follows: Having reviewed policy on transfer, promotions and authorities, I am satisfied that the respondent was within his authority to take the actions that he did once the error was called to his attention. Although the transfer notice had been published which would facilitate the promotion, the staffing action was not complete at that stage, the complainant had not moved onto the position and no promotion notice had been issued. … The member is not promoted on the strength of a transfer notice. They are promoted at the end of a transfer/promotion process that includes the selection process, recommendations to the appropriate officer, acceptance of the Board's recommendations, authorization to issue the transfer notice which starts the process of moving the candidate from one position to another, departure from the old post and arrival at the new post as indicated through the submission of form A-22A and then the promotion notice published in the usual fashion indicating the member has been transferred and promoted into a specific position with an effective date, as established in CMM.F.1. [10] The adjudicator held that, when Ms Gillis’ promotion was cancelled, the process had only gone as far as the issue of the transfer authorization. The A-22A form, which is signed when the person promoted starts the new job, had not been submitted, and a promotion notice had not been issued. [11] The adjudicator’s reasons also explain the importance of posting proper job descriptions and the negative effects that mistakes can have on the efficiency of the promotion system and on the confidence that employees have in its fairness. In this case, the job posting had erroneously called only for “documented experience” in a TO-02 position, which Ms Gillis had, not “extensive experience” at that level (defined as five years or more), which she did not. [12] The Judge took the view that the adjudicator had wrongly found that Ms Gillis was not entitled to the promotion, a matter which is not within the jurisdiction of adjudicators to decide. Relying on section F.1.b. of an internal Career Management Manual, the Judge held that a promotion takes effect in the RCMP when “the member departs the old position”. [13] The Judge held (at para. 38) that Ms Gillis was promoted when the transfer authorization notice was circulated, because she had then “to the fullest extent possible, departed her old position.” It was irrelevant that her departure was not “as indicated on form A-22A” in accordance with F.1.b., since the completion of this form was not a condition precedent to a promotion, and there was no evidence before him “as to what form A-22A is” (para. 37). [14] Having found that the cancellation of the promotion was in error and that Ms Gillis had thereby suffered prejudice, he ordered (at para. 45) that she be “forthwith be installed in the TO-03 position to which she is entitled” as corrective action. C. LEGISLATIVE FRAMEWORK [15] Commissioner’s Standing Orders (Dispute Resolution Process for Promotions and Job Requirements, SOR/2000-141, enacted pursuant to subsections 21(2) and 31(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, governs the procedures for the making and adjudication of grievances or “requests for intervention”, as they are called in the arcane language of the RCMP promotion grievance process. [16] Section 1 of the Standing Orders explains who adjudicators are. “adjudicator” means an officer or senior manager designated as an adjudicator by the Commissioner. «arbitre» Officier ou cadre supérieur désigné arbitre par le commissaire. [17] The mode of appointment and the qualifications of adjudicators are set out in an RCMP Administration Manual (Appeal Book, vol. 1 at p. 67). D. 2. Pursuant to subsection 5(2), RCMP Act and C.1, a senior officer designated by the Commissioner will designate officers or senior managers as adjudicators. D. 3. The members responsible for human resources for the regions, in consultation with other interested parties and the SRRs, will recommend the designation of adjudicators based on the following general criteria: D. 3. a. ideally, a candidate should be mutually agreed upon by management and the SRRs; D. 3. b. a candidate should be legally trained, trained internally as an adjudicator, or have experience in the adjudication process; and D. 3. c. a candidate should not be directly involved in the RCMP promotional processes. [Emphasis added] [18] Subsection 22(1) of the Standing Orders defines the jurisdiction of the adjudicator as follows. 22(1) If a request for intervention is not rejected under subsection 21(2), the adjudicator (a) shall dismiss the request for intervention; or (b) shall, if the adjudicator determines that a decision, act or omission is erroneous and has prejudiced the complainant, order appropriate corrective action. 22(1) Si la demande d’intervention n’est pas rejetée aux termes du paragraphe 21(2), l’arbitre : a) soit, rejette la demande; b) soit, s’il conclut que la décision, l’acte ou l’omission donnant lieu au différend est erroné et que le demandeur en a subi un préjudice, ordonne la prise des mesures correctives indiquées. [19] Section 23 imposes a specific limitation on these powers. 23. The decision of the adjudicator to grant a request for intervention shall not extend to a determination of whether or not the complainant is entitled to be promoted. 23. Dans sa décision, l’arbitre ne peut se prononcer sur le droit du demandeur à la promotion. [20] Section 25 contains a preclusive clause. 25. The decision of the adjudicator that disposes of a request for intervention is not subject to appeal or further review. 25. La décision que l’arbitre rend à la suite d’une demande d’intervention n’est pas susceptible d’appel ou de révision ultérieure. [21] Chapter 5, “Job Descriptions and Job Requirements”, of the RCMP Career Management Manual includes provisions dealing with the date of a promotion: Appeal Book, p. 263. F.1. The effective date of a promotion will be: F.1.a. the effective date of a classification upgrading provided the member occupies the position on a permanent basis and is authorized by the transfer/promotion process to remain in that position; F.1.b. the date the member departs the old position as indicated on form A-22A. The promotion date cannot precede the authorized date of transfer or fulfillment of all conditions for promotion; … D. ISSUES AND ANALYSIS 1. Standard of review [22] I do not agree with the Applications Judge’s conclusion that reasonableness simpliciter is the standard of review appropriate for the adjudicator’s decision in this case. In my view, a pragmatic and functional analysis indicates that patent unreasonableness is the appropriate standard: see Shephard v. Fortin, 2003 FC 1296, 242 F.T.R. 42 at paras. 35-36, rev’d. on another ground 2004 FCA 254; Smith v. Canada (Attorney General), 2004 FC 320, 13 Admin. L.R. (4th) 250 at para. 7. [23] First, section 25 of the Standing Orders precludes any appeal or review of an adjudicator’s decision. This is in the nature of a finality clause and is a legislative indication of deference. [24] Second, the questions in dispute involve the application to the facts of technical provisions respecting the RCMP promotion and grievance process. For the most part, the relevant documents in this case are administrative manuals, not legal instruments. There is also a strong factual element in the questions decided by the adjudicator concerning the RCMP promotions process. To the extent that the questions are of mixed fact and law, fact predominates. This factor favours considerable deference. [25] Third, adjudicators are RCMP officers or senior managers. In my respectful opinion, the Applications Judge erred when, in assessing expertise, he appeared to regard as relevant the experience of the particular adjudicator whose decision he was reviewing: para. 22. [26] For standard of review purposes, the expertise of the administrative decision-maker under review must be assessed by reference to the office or institution, not the curriculum vitae of the decision-maker under review: see, for example, A.I. v. Ontario (Director, Child and Family Services Act) (2005), 75 O.R. (3d) 663 (S.C.J. Div. Ct.) at paras. 81-82. [27] More relevant are the qualifications for adjudicators set out in the D.3.b. of the Administration Manual quoted above, which provides that persons appointed as adjudicators should have legal training, or training or experience as an adjudicator. Even though these provisions are not contained in a statutory order, they were developed to guide the exercise of discretion by the senior officer whom the Commissioner designated under subsection 5(2) of the RCMP Act to appoint adjudicators. [28] The fact that adjudicators are members of the RCMP, and should have legal or directly relevant training or experience in adjudication, indicates that they have knowledge of the internal administration of the RCMP and of the process of adjudication. [29] The crucial question is whether the administrative decision-maker is better equipped than the reviewing court to decide the issues in dispute. Even though adjudicators are senior managers or officers of the RCMP, not independent external arbitrators, the relative expertise factor favours considerable deference in this case. [30] Fourth, the purpose of the grievance process is to provide a fair, informed, inexpensive and expeditious disposition of grievances, a factor which also favours considerable deference. [31] The question to be addressed now is whether the adjudicator’s reasons indicate that his decision to dismiss Ms Gillis’ grievance was patently unreasonable. 2. Was it patently unreasonable for the adjudicator to conclude that Ms Gillis had not been promoted? [32] Judicial review for unreasonableness, whether patent or simple, must be conducted largely on the basis of the reasons given by the administrative decision-maker: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 49. It is never for the court reviewing for unreasonableness to consider whether it would have come to the same conclusion as the tribunal whose decision is under review. [33] In my opinion, a review of the adjudicator’s reasons establishes that his decision is not patently unreasonable; it is not “so flawed that no amount of curial deference can justify letting it stand”: Law Society of New Brunswick at para. 52. Indeed, the reasons of the adjudicator would also stand up to the “somewhat probing examination” to which decisions reviewable on the reasonableness simpliciter standard are subjected: Canada (Director of Investigations and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56. [34] In particular, it was not patently unreasonable for the adjudicator to conclude on the basis of the material before him that the transfer authorization document did not effect the promotion. The authorization stated that it was not a notice of promotion and that the promotion would not take effect for 30 days. [35] Nor was it patently unreasonable for the adjudicator to find, in light of the provision in F.1.b. of the Career Development Manual, that a promotion is complete only when the individual starts in the job, as indicated by a signed form A-22A. On this point, the Applications Judge stated that there was no evidence before him explaining what form A-22A was. This is incorrect. [36] During cross-examination on his affidavit, Sergeant McCann, an RCMP officer employed in the Career Development and Resourcing branch, explained that “the full promotion is not complete” until the officer in charge of Career Development signs the promotion telex facsimile sheet, “indicating, in effect, that the person has arrived and is in, so to speak, the chair doing the duties.” He continued (Appeal Book, p 206): There’s another form which is referred to as the A-22A in which the incoming manager would sign off that the person has basically affected the transfer into the position and is doing those duties. Later, he added (Appeal Book, pp. 212-13): The promotion does not take place until they physically start engaging in the duties of the new position. At that time, incoming manager will acknowledge that on a form A-22A that this person is now the incumbent and that the officer in charge of Career Development Resourcing is given this notification the person is there, and it’s at that time once again the OIC at Human Resources reviews the entire situation and authorizes the promotion at that time. Once that facsimile is signed, that is the official document that the person has been promoted … The evidence of Sergeant McCann was uncontradicted. Ms Gillis does not assert that an A-22A form was signed or that she had started to perform the duties of a TO-03. [37] The Applications Judge also stated that the adjudicator erred in law by making a finding, contrary to section 23 of the Standing Orders, as to whether Ms Gillis was “entitled to be promoted”. I do not agree, even if this is a question on which no curial deference is owed to the adjudicator. [38] In my respectful opinion, the adjudicator merely answered the question put to him by concluding that the cancellation of Ms Gillis’ promotion was not in error, because the promotion process was not complete when the mistake in the job description was discovered. E. CONCLUSIONS [39] For these reasons, I would allow the appeal, set aside the decision of the Federal Court, and dismiss the application for judicial review, with costs in this Court and below. “John M. Evans” J.A. “I agree. Gilles Létourneau J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-260-06 (APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE HUGHES, FEDERAL COURT, DATED MAY 5, 2006, T-1505-05) STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. BRENDA GILLIS PLACE OF HEARING: Toronto, ON DATE OF HEARING: February 13, 2007 REASONS FOR JUDGMENT BY: Evans J.A. CONCURRED IN BY: Létourneau and Sexton JJ.A. DATED: March 16, 2007 APPEARANCES: Sadian Campbell For the Appellant Lorriane J. Por For the Respondent SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada For the Appellant HARRISON PENSA LLP Barristers and Solicitors London, ON For the Respondent