Digests

Lapointe v. Canada (Treasury Board)

T-700-03

2004 FC 244, Mosley J.

18/2/04

26 pp.

Judicial review of Deputy Head, Grievance Nominee, Immigration and Refugee Board's (DHGN) decision rejecting applicant's grievance and approving recommendation of Classification Grievance Committee (Committee)--Applicants 27 members of Immigration Division of Immigration and Refugee Board and located in different areas across Canada-- Applicants formerly called adjudicators--Applicants presented grievance to employer, Treasury Board, related to their job classification in January 2002--Applicants claimed job classification in error and requested positions be reclassified upward from PM-05 to PM-06 group and level-- Grievance dealt with as group, as all applicants have same position and classified at same group and level, and applicants members of Canadian Employment and Immigration Union, a division of Public Service Alliance of Canada--Committee awarded 719 points to applicants, two points shy of necessary 721 points to be reclassified at PM-06 group and level--Duty of fairness applies to classification grievance process and DHGN's decision, adopting recommendation of Committee, may be set aside by Court because Committee failed to provide grievor with fair hearing--Content of duty of fairness, given nature of classification grievance process and nature of interests involved, located in lower zone of spectrum--As for participation of individual affected by decision, Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, individual must have meaningful opportunity to fully and fairly present case--In order to assist in determining content of duty of fairness in particular administrative setting, Baker set out non-exhaustive list of five factors to consider--Applicants raised persuasive arguments hearing not conducted in manner affording full and fair opportunity to present case--Bearing in mind all five Baker factors, each alleged breach of procedural fairness considered--(1) As to lack of simultaneous translation, Committee erred in not ensuring some form of translation services provided in proceeding--Refusal to provide translation services in circumstances diminished ability of applicants to fully participate in hearing--While applicants had choice of having representative speak for them and must have known prior to hearing one of union representatives would only make representations in French language, such considerations not overriding Committee's duty to provide fair hearing, so that grievors choosing to participate could do so in meaningful manner--(2) Time constraints placed on hearing also appear to have impeded applicants' ability to fairly and fully present their case--(3) Respondent not filing any evidence explaining why agreed to provide teleconferencing, at applicants' costs, when hearing first scheduled to proceed in July 2002, and then denied it for rescheduled date--Lack of explanation troubling--Administrative decision-maker, such as Committee, not operating in vacuum, and applicants deserved some sort of explanation as to why conferencing medium not provided at rescheduled date--(4) Committee should have given applicants opportunity to review and respond to information provided by management--Grievor in classification grievance process should have adequate opportunity to respond to information or issue which Committee regards as fundamental to disposition of grievance, where issue one grievor did not realize or could not reasonably be expected to anticipate would be in dispute--In light of uncontradicted evidence, information provided by management fundamental to disposition of grievance--(5) Finally, applicants emphasized Committee's report not providing any analysis or comment on submissions related to alleged unwritten classification principle that subordinate and superior can never be classified at same group and level-- Committee did not address applicants' representations on this issue other than to state organizational context of positions had always been integral part of PM occupational group classification process and could not be ignored--Not answering heart of applicants' grievance, namely, that notion subordinate, superior positions within organization cannot be classified at same level, should not be applied as binding rule within classification grievance process, and particularly, should not apply to their situation--Committee's report should have included analysis setting out differences between grieved position and suggested bench mark positions-- Reasons for decision under review inadequate, thus procedural fairness breached--Application allowed.