Taticek v. Canada Border Services Agency, (2014) 451 F.T.R. 78 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: Tuesday October 01, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 451 F.T.R. 78 (FC);2014 FC 281

Taticek v. Can. Border Services (2014), 451 F.T.R. 78 (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: [2014] F.T.R. TBEd. AP.005

Peter Taticek (applicant) v. Canada Border Services Agency (respondent)

(T-1934-12; 2014 FC 281; 2014 CF 281)

Indexed As: Taticek v. Canada Border Services Agency

Federal Court

Strickland, J.

March 21, 2014.

Summary:

Taticek was an employee of the Canada Border Services Agency (CBSA). He filed a complaint, asserting that the CBSA abused its authority by extending an acting appointment for the CS-03 Team Leader position thereby providing the incumbent actor with an unfair advantage in gaining experience in the position. The parties participated in mediation and a settlement agreement was entered into which provided how "any current vacant positions" were to be staffed. Thereafter, the CBSA deployed an employee from the Canada Revenue Agency into a vacant CS-03 position and filled two other vacant CS-03 positions by way of internal deployments. Taticek filed two grievances (subsequently consolidated), alleging that the deployments were in breach of the settlement agreement. The CBSA asserted that the settlement agreement applied to promotional appointments but not short term acting positions and deployments. The Final Level Grievance Précis recommended that the grievance be dismissed. The Vice President of the Human Resources Branch of the CBSA accepted the CBSA's interpretation and dismissed the grievance. Taticek applied for judicial review.

The Federal Court allowed the application and remitted the matter to a different decision maker for redetermination.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Taticek was an employee of the Canada Border Services Agency (CBSA) - He filed a complaint, asserting that the CBSA abused its authority by extending an acting appointment for the CS-03 Team Leader position thereby providing the incumbent actor with an unfair advantage in gaining experience in the position - The parties participated in mediation and a settlement agreement was entered into which provided how "any current vacant positions" were to be staffed - Thereafter, the CBSA deployed an employee from the Canada Revenue Agency into a vacant CS-03 position and filled two other vacant CS-03 positions by way of internal deployments - Taticek grieved, alleging that the deployments were in breach of the settlement agreement - The CBSA asserted that the settlement agreement applied to promotional appointments, not short term acting positions and deployments - The Final Level Grievance Précis stated that there was no provision under the Public Service Employment Act to file a new complaint on the basis of a mediation or settlement not being respected - The Précis recommended that the grievance be dismissed - The Vice President of the Human Resources Branch adopted the CBSA's interpretation of the settlement without explanation and dismissed the grievance - The Federal Court allowed Taticek's judicial review application - Taticek was not looking to continue or revive the original complaint which had been withdrawn - Rather, he filed new grievances grounded in s. 208(1) of the Act which were based on alleged contraventions of the settlement and which had not been withdrawn - The Vice President did not refuse to address the new grievances nor did she clearly reject them as being outside the scope of s. 208 and her jurisdiction - She alluded to it but did not squarely address the issue - Regardless of that issue, Taticek's concern was the alleged breach of the settlement which, if it were to be addressed, required the interpretation of the agreement in resolving the dispute - The parties' after the fact submissions on their subjective intentions had little relevance and should not have been the sole basis for the decision - The Vice President should have based her determination on an interpretation of the terms of the settlement and the context in which it was made - Even if the wording was unclear and permitted some reliance on extrinsic evidence, absent any reasons for accepting one party's interpretation over the other, there was no reasonable basis for merely adopting the CBSA's interpretation - Further, as to the Vice President's jurisdiction to consider the issue, her reasons did not provide justification, transparency and intelligibility as to the decision making process and did not permit the court to determine if the decision was within the range of acceptable outcomes defensible in respect of the facts and the law - See paragraphs 44 to 61.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Taticek was an employee of the Canada Border Services Agency (CBSA) - He filed a complaint, asserting that the CBSA abused its authority by extending an acting appointment for the CS-03 Team Leader position thereby providing the incumbent actor with an unfair advantage in gaining experience in the position - The parties participated in mediation and a settlement agreement was entered into which provided how "any current vacant positions" were to be staffed - Thereafter, the CBSA deployed an employee from the Canada Revenue Agency into a vacant CS-03 position and filled two other vacant CS-03 positions by way of internal deployments - Taticek grieved, alleging that the deployments were in breach of the settlement agreement - Taticek sought the following relief: to have the CBSA comply with the settlement; to have the CBSA correct the contraventions and take any other measures to remedy the situation; to have the settlement adhered to "when it comes to the present temporary replacement" positions; and "to be made whole" - The Vice President of the Human Resources Branch, in dismissing the grievance, concluded that the requested remedy could not be implemented - The Federal Court stated that, without any reasons as to why the remedy could not be implemented, it would be speculative to attempt to assess the basis for the decision and whether it was a reasonable finding - In any event, as the court had found that the matter should be remitted for reconsideration, it was up to the Vice President, if necessary, at that time, to craft an appropriate remedy - See paragraphs 72 to 76.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - [See first Administrative Law - Topic 549].

Labour Law - Topic 9129

Public service labour relations - Adjudication of grievances - Duties of adjudicators or boards - [See first Administrative Law - Topic 549].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review - Standard - Taticek was an employee of the Canada Border Services Agency (CBSA) - He filed a complaint, asserting that the CBSA abused its authority by extending an acting appointment for the CS-03 Team Leader position thereby providing the incumbent actor with an unfair advantage in gaining experience in the position - The parties participated in mediation and a settlement agreement was entered into which provided how "any current vacant positions" were to be staffed - Thereafter, the CBSA deployed an employee from the Canada Revenue Agency into a vacant CS-03 position and filled two other vacant CS-03 positions by way of internal deployments - Taticek grieved, alleging that the deployments were in breach of the settlement agreement - The CBSA asserted that the settlement agreement applied to promotional appointments, not short term acting positions and deployments - The Vice President of the Human Resources Branch of the CBSA accepted the Final Level Grievance Précis' recommendation to dismiss the grievance - Taticek applied for judicial review - At issue was whether the Vice President committed a reviewable error in (1) dismissing the arbitration, and (2) concluding that the requested corrective action could not be implemented - The Federal Court concluded that while there were factors that supported the first issue being reviewed on the correctness standard (e.g., the informal nature of the grievance process and the fact that it was not independent of the CBSA), weighing those factors and applying the contextual analysis pointed to reasonableness as the appropriate standard of review - With respect to the second issue, the Vice President did not dismiss the requested remedies because she found that she lacked the authority to order them, but because she found that they could not be implemented, albeit without offering any supporting rationale for that determination - Therefore, for the same reasons applicable to the first issue, the reasonableness standard applied - See paragraphs 22 to 34.

Labour Law - Topic 9354

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Unreasonable decisions - [See both Administrative Law - Topic 549].

Cases Noticed:

Assh v. Canada (Attorney General) (2006), 356 N.R. 263; 2006 FCA 358, refd to. [para. 12].

Johal et al. v. Canada Revenue Agency et al. (2009), 394 N.R. 114; 2009 FCA 276, refd to. [para. 12].

Appleby-Ostroff v. Canada (Attorney General) (2011), 417 N.R. 250; 2011 FCA 84, refd to. [para. 12].

Blais v. Canada (Attorney General) (2004), 263 F.T.R. 151 (F.C.), refd to. [para. 13].

Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220 (F.C.), refd to. [para. 13].

Hagel et al. v. Canada (Attorney General) (2009), 352 F.T.R. 22; 2009 FC 329, affd. (2009), 402 N.R. 104; 2009 FCA 364, refd to. [para. 14].

Spencer v. Canada (Attorney General) (2010), 360 F.T.R. 251; 2010 FC 33, refd to. [para. 16].

Insch v. Canada Revenue Agency, [2009] F.T.R. Uned. 749 (F.C.), refd to. [para. 16].

Peck v. Parks Canada (2009), 359 F.T.R. 136; 2009 FC 686, refd to. [para. 16].

Backx v. Canadian Food Inspection Agency et al. (2013), 427 F.T.R. 148; 2013 FC 139, refd to. [para. 16].

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. 17].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al. (2009), 392 N.R. 128; 2009 FCA 223, refd to. [para. 18].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 18].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 21].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Backx v. Canadian Food Inspection Agency et al. (2010), 368 F.T.R. 247; 2010 FC 480, affd. (2011), 415 N.R. 37; 2011 FCA 36, refd to. [para. 26].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 29].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 37].

Canada (Attorney General) v. Amos, [2012] 4 F.C.R. 67; 417 N.R. 74; 2011 FCA 38, dist. [para. 40].

Wanis v. Canadian Food Inspection Agency et al. (2013), 439 F.T.R. 196; 2013 FC 963, refd to. [para. 44].

Miller v. Canada (Solicitor General) et al., [2007] 3 F.C.R. 438; 297 F.T.R. 203; 2006 FC 912, refd to. [para. 44].

Howarth v. Canada (Minister of Indian Affairs and Northern Development) et al., 2009 PSST 1, dist. [para. 45].

Canada (Procureur général) v. Lebreux (1994), 178 N.R. 1 (F.C.A.), refd to. [para. 47].

Maiangowi v. Department of Health, [2008] CPSLRB No. 6, dist. [para. 48].

Castonguay v. Canada Border Services Agency, 2005 PSLRB 73, refd to. [para. 57].

Exepertech Network Installation Inc. v. Communications Energy and Paperworkers Union of Canada, 2010 CanLII 69131 (Arb.), refd to. [para. 59].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 61].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 63].

Abbotsford Police Department v. Teamsters Local Union No. 31 (2008), 179 L.A.C.(4th) 305, refd to. [para. 64].

Sudbury Regional Hospital v. Ontario Public Service Employees Union, Local 659, [2002] O.L.A.A. No. 1035, refd to. [para. 64].

Macklai v. Canada Revenue Agency (2011), 415 N.R. 44; 2011 FCA 49, refd to. [para. 66].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 66].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 66].

Ontario (Minister of Community, Family and Children's Services) v. Ontario Public Service Employees Union, [2004] OGSBA No. 192, refd to. [para. 67].

Alberta Health Services v. Alberta Union of Provincial Employees, [2011] AGAA No. 42, refd to. [para. 67].

Ontario Public Service Employees Union v. St. Lawrence Parks Commission, [2010] OGSBA No. 113, refd to. [para. 67].

Grande Yellowhead Regional Division No. 35 v. Canadian Union on Public Employees, Local 1357, [2010] AGAA No. 47, refd to. [para. 67].

Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), refd to. [para. 67].

Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 62 O.A.C. 20 (C.A.), refd to. [para. 67].

Graybriar Industries Ltd. v. Davis & Co. and Schwegler, [1990] B.C.T.C. Uned. 567; 46 B.C.L.R.(2d) 164 (S.C.), refd to. [para. 71].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada, pp. 437 to 438 [para. 37].

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), pp. 238 to 240 [para. 57].

Pitch, Harvin D., and Snyder, Ronald M., Damages for Breach of Contract (2nd Ed. 1989), pp. 3-1 to 3-18 [para. 71].

Counsel:

Steven Welchner, for the applicant;

Lesa Brown, for the respondent.

Solicitors of Record:

Law Firm, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on October 1, 2013, by Strickland, J., of the Federal Court, who delivered the following reasons for judgment on March 21, 2014.