McEvoy et al. v. Canada (Attorney General), (2013) 435 F.T.R. 69 (FC)

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: Wednesday October 12, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2013), 435 F.T.R. 69 (FC);2013 FC 685

McEvoy v. Can. (A.G.) (2013), 435 F.T.R. 69 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JN.054

Patrick McEvoy and Claudio Pellicore (applicants) v. Attorney General of Canada (respondent)

(T-787-10; 2013 FC 685; 2013 CF 685)

Indexed As: McEvoy et al. v. Canada (Attorney General)

Federal Court

Mandamin, J.

June 18, 2013.

Summary:

The applicants were Inland Enforcement Officers (IEOs) with the Canada Border Services Agency (CBSA). They felt that their jobs should be reclassified from the PM-03 level to the PM-04 level, and filed grievances in that regard. A Classification Grievance Committee recommended that IEOs remain classified at the PM-03 level. The Committee's recommendation was accepted by the Deputy Head's Nominee. The applicants applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See second Administrative Law - Topic 2266].

Administrative Law - Topic 2142.1

Natural justice - Administrative decisions or findings - Ruling in advance of submissions - [See first Administrative Law - Topic 2266].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicants were Inland Enforcement Officers (IEOs) with the Canada Border Services Agency (CBSA) - They felt that their jobs should be reclassified from the PM-03 level to the PM-04 level, and filed grievances in that regard - A Classification Grievance Committee heard submissions from the applicants and CBSA management at hearings held on November 26 and December 14, 2009 - The Committee's notes from December 14 stated under the heading "Evaluation" that the Committee had discussed the rating and that all agreed with the rating - After the December 14 hearing, the Committee requested clarification from CBSA management - A copy of the Committee's questions and management's responses was given to the applicants - On February 11, 2010, the applicants gave the Committee written submissions in response to management's responses - The Committee reconvened to deliberate on February 26, 2010 - In their March 2010 report, which recommended that IEOs remain classified at the PM-03 level, the Committee stated that it had reconvened on February 26 to review the applicants' February 11 response, and "reached the consensus that the new information would not change their decision on the grieved position" - The Committee's recommendation was accepted by the Deputy Head's Nominee - The applicants applied for judicial review, arguing that the Committee's report made it clear that it had already deliberated on the merits of the grievance and reached a decision before receiving the applicants' reply submissions, and that this constituted a breach of procedural fairness - The Federal Court dismissed the application - It would be surprising if the Committee did not engage in some ongoing assessment of the classification factors as it received evidence and submissions - The Committee's report gave careful consideration to the applicants' new information, and their evaluation of the relevant factors referenced the applicants' response to management's submissions - The applicants failed to show that the Committee closed its mind to the merits of the case before hearing all of the applicants' evidence or submissions - See paragraphs 45 to 68.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicants were Inland Enforcement Officers (IEOs) with the Canada Border Services Agency - They felt that their jobs should be reclassified from the PM-03 level to the PM-04 level, and filed grievances in that regard - A Classification Grievance Committee issued a report which recommended that IEOs remain classified at the PM-03 level - The Committee's recommendation was accepted by the Deputy Head's Nominee - The applicants applied for judicial review, arguing that the Committee breached procedural fairness by failing to provide adequate reasons - The applicants submitted that given the Committee's scant reasons, it had to be concluded that the Committee failed to consider all of the arguments and evidence that was put before it - The Federal Court dismissed the application - The reasons of the Committee, as contained in the report, were adequate - The report clearly illustrated the Committee's decision-making process - The report summarized the evidence, addressed the parties' submissions and addressed the major points in issue - The reasoning process was set out and reflected the main relevant factors - The report concluded with a detailed analysis of the Committee's evaluation of the classification for IEOs - The reasons were rationally directed to the conclusion - While the Committee was not required to list off every piece of evidence that it accepted or rejected, it did address the evidence that went to the main points in issue - See paragraphs 69 to 92.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicants were Inland Enforcement Officers (IEOs) with the Canada Border Services Agency (CBSA) - They felt that their jobs should be reclassified from the PM-03 level to the PM-04 level, and filed grievances in that regard - A Classification Grievance Committee issued a report which recommended that IEOs remain classified at the PM-03 level - In making their decision, the Committee found that two consultants' evaluations merited consideration but were wanting on analysis - The Committee's recommendation was accepted by the Deputy Head's Nominee on April 17, 2010 - On April 19, 2010, the Nominee sent the CBSA President a letter, informing him of the Committee's recommendation and her reasons for accepting the recommendation - The letter also stated that the two consultants' evaluations that the Committee considered were not authoritative because one consultant was biased and the other was unqualified - The applicants later came into possession of the letter through an access to information request - The applicants applied for judicial review, arguing that the Nominee owed them an opportunity to respond to additional matters that she raised in her letter to the President - The Federal Court dismissed the application - The Committee was the de facto decision-maker - It was tasked with receiving evidence and submissions, establishing the appropriate classification, and evaluating the grieved position - All procedural fairness requirements owed to the applicants were owed by the Committee and were more than met in this case - Having regard to the level of deference owed to the Committee, the Nominee's limited role on confirmation, and the fact that the letter to the President was signed two days after signing the recommendation, the court concluded that the Nominee had not undermined the Committee's decision by her contrary reference to the consultants' evaluations - The portion of the Nominee's letter that departed from the Committee's justification was superfluous to her confirmation of the Committee's recommendation two days earlier - See paragraphs 93 to 110.

Labour Law - Topic 9805

Public service labour relations - Job classification - Appeals or grievances - [See first and third Administrative Law - Topic 2266].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 38].

Beauchemin v. Canadian Food Inspection Agency (2008), 364 F.T.R. 159; 2008 FC 186, refd to. [para. 39].

Groulx v. Cormier et al. (2007), 325 F.T.R. 69; 2007 FC 293, refd to. [para. 40].

Bulat v. Canada (Treasury Board) (2000), 252 N.R. 182 (F.C.A.), refd to. [para. 42].

Canada (Attorney General) v. Khawaja (2008), 371 N.R. 88; 2007 FCA 388, refd to. [para. 45].

Gallant v. Correctional Service Canada (Pacific Region), [1989] 3 F.C. 329; 92 N.R. 292 (F.C.A.), refd to. [para. 45].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 47].

Chong et al. v. Canada (Attorney General) et al. (1999), 236 N.R. 371 (F.C.A.), refd to. [para. 49].

Utovac v. Canada (Treasury Board) (2006), 293 F.T.R. 296; 2006 FC 643, refd to. [para. 55].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 58].

Stemijon Investments Ltd. v. Canada (Attorney General) (2011), 425 N.R. 341; 2011 FCA 299, refd to. [para. 62].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184; 193 D.L.R.(4th) 357 (F.C.A.), refd to. [para. 69].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 75].

Kindler v. Canada (Minister of Justice), [1987] 2 F.C. 145; 8 F.T.R. 222 (T.D.), refd to. [para. 79].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 82].

Counsel:

David Yazbeck, for the applicants;

Neil McGraw, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the applicants;

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

This application for judicial review was heard at Ottawa, Ontario, on October 12, 2011, before Mandamin, J., of the Federal Court, who delivered the following judgment and reasons for judgment on June 18, 2013.