Birks v. Canada (Attorney General), (2010) 375 F.T.R. 83 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: October 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 375 F.T.R. 83 (FC);2010 FC 1018

Birks v. Can. (A.G.) (2010), 375 F.T.R. 83 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. OC.014

John Henry Birks, Chief Petty Officer Second Class (applicant) v. Attorney General of Canada (respondent)

(T-600-10; 2010 FC 1018)

Indexed As: Birks v. Canada (Attorney General)

Federal Court

Shore, J.

October 19, 2010.

Summary:

Birks, a reserve member of the Canadian Forces, held the rank of Chief Petty Officer Second Class. He was employed as the Coxswain on board the HMCS Summerside. His position was designated as Class C. Upon accepting a position as Chief Boatswain Mate at Sea Training Atlantic (ST(A)), he was paid at the Class B rate of pay (lower than Class C rate). Reserve positions were designated at ST(A) as Class B, except when members were employed at sea, at which time the positions reverted to Class C. Birks grieved through his chain of command. The Canadian Forces Grievance Board upheld the grievance. The Chief of the Defence Staff (CDS), acting as a final authority, denied the grievance. Birks applied for judicial review.

The Federal Court dismissed the application. The CDS reasonably denied the grievance.

Armed Forces - Topic 2

General - Nature of employment - [See first and second Armed Forces - Topic 7504 ].

Armed Forces - Topic 7504

Civilian personnel - General - Classification of personnel - The applicant was a reserve member of the Canadian Forces - He held the rank of Chief Petty Officer Second Class and was employed as the Coxswain on board the HMCS Summerside - His position was designated as Class C - Upon accepting a position as Chief Boatswain Mate at Sea Training Atlantic (ST(A)), he was paid at the Class B rate of pay (lower than Class C rate) - Reserve positions were designated at ST(A) as Class B, except when members were employed at sea, at which time the positions reverted to Class C - The Reserve Force Employment Policy limited Class C and the accompanying Regular Force rates of pay to reservists on operations - The Chief of the Defence Staff (CDS), as final authority, denied the grievance - The Federal Court held that it was reasonable for the CDS to consider and evaluate each of the applicant's duties and the objectives of the ST(A) as a unit - The decision was in the purview of the CDS to make - The CDS could reasonably have reached the conclusion that the applicant's duties were, in fact, not "operational" - The standard of review called for a "strong degree of deference" - See paragraphs 43 to 49.

Armed Forces - Topic 7504

Civilian personnel - General - Classification of personnel - The applicant disputed the classification of his position as that of Class B Reserve Service - He alleged inequity between Class B and Class C classifications, and questioned why the current policy (the Reserve Employment Framework) set Class B rates of pay at 85% of the Regular Forces pay - The decision of the Chief of the Defence Staff, on that point, specified that "There remain differences between certain occupational qualifications, promotion standards and the degree of liability between Regular and Reserve Forces" - The Federal Court considered that the CDS' evaluation of the Reserve Employment Framework was reasonable - In considering the evidence, it was reasonable for the CDS, as final authority, to give more weight to arguments which he considered constituted the basis for the proper administration of and within the Forces - See paragraphs 50 to 52.

Armed Forces - Topic 7504

Civilian personnel - General - Classification of personnel - Reserve positions were designated at Sea Training Atlantic (ST(A)) as Class B, except when members were employed at sea, at which time the positions reverted to Class C (higher rate of pay than the Class B rate) - The applicant requested to be classified as a part of Class C because the ST(A) reservists were alternating between classes of service, which constituted an allegedly administrative burden - The Federal Court found that the Chief of the Defence Staff (CDS), as the final authority, reasonably denied the grievance - The CDS reasonably addressed the administrative procedural matter in his decision by specifying that he would direct the Chief of the Maritime Staff to examine the administrative issue of Reserve pay - "It seems reasonable to the Court that the CDS, in this regard, is also attempting to find a solution by which to simplify administrative procedures within the Canadian Forces" - See paragraphs 53 to 55.

Armed Forces - Topic 8544

Grievances - Procedure - Findings or recommendations of Canadian Forces Grievance Board (incl. reasons for not following) - The applicant disputed the classification of his position as that of Class B Reserve Service and submitted a redress of grievance through his chain of command - The Canadian Forces Grievance Board upheld the grievance - The Chief of the Defence Staff (CDS), acting as a final authority, denied the grievance - The applicant sought judicial review - The Federal Court stated that the CDS was within the limits of his authority in making a decision which differed from that of the Board - As per s. 29.13(1) of the National Defence Act (NDA), the CDS was not bound by any recommendations of the Board or of any other grievance authority - According to the NDA legislation, the CDS had full discretion to decide on classifications of service for any given position - The court found that the exercise of that discretion was reasonable in the circumstances - See paragraphs 34 to 42.

Armed Forces - Topic 8562

Grievances - Judicial review - Standard of review - The applicant sought judicial review of a decision of the Chief of the Defence Staff (CDS) determining that the classification of service of the applicant's service was of a Class B category rather than that of Class C - The Federal Court, in discussing the standard of review, noted the specialized background of the CDS acting within the National Defence Act, and "the inherent authority in his position to act as a final authority to the Armed Forces. His expertise stems from the basis of his overall knowledge of the Forces and from which he derives information of the factual issues; his understanding of the needs of the Armed Forces and of its military resources is thus recognized. From his vantage point, the CDS has a global perspective on the management of the military" - Thus, judicial review could only be granted by the court if it was determined that the decision of the CDS to refuse redress was unreasonable - See paragraphs 4 and 5, 25 to 27.

Cases Noticed:

Armstrong v. Canada (Attorney General) (2006), 291 F.T.R. 49; 2006 FC 505, appld. [para. 2].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 4].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 5].

Hudon v. Canada (Attorney General) (2009), 364 F.T.R. 49; 2009 FC 1092, appld. [para. 26].

Statutes Noticed:

National Defence Act, R.S.C. 1985, c. N-5, sect. 29.13 [para. 40].

National Defence Act Regulations (Can.), Queen's Regulations and Orders for the Canadian Armed Forces, sect. 9.07, sect. 9.075, sect. 9.08 [para. 33].

Queen's Regulations and Orders for the Canadian Armed Forces - see National Defence Act Regulations (Can.).

Counsel:

John Henry Birks, on his own behalf;

Corinne Bedford, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Halifax, Nova Scotia, on October 13, 2010, before Shore, J., of the Federal Court, who delivered the following reasons for judgment and judgment, at Ottawa, Ontario, dated October 19, 2010.