Kohlenberg v. Canada (Attorney General)

Kohlenberg v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-04-27
Neutral citation
2017 FC 414
File numbers
T-1072-15
Decision Content
Date: 20170427
Docket: T-1072-15
Citation: 2017 FC 414
Ottawa, Ontario, April 27, 2017
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
DALE KOHLENBERG
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter [1] This is an application for judicial review by Dale Kohlenberg [the Applicant] pursuant to s. 18.1 of the Federal Courts Act, RSC, 1985, c F-7, of a third-level grievance decision dated December 10, 2014 and June 2, 2015, in which the Applicant’s assigned work description was found to be accurate. The Applicant, a Department of Justice lawyer himself, was gowned and argued his own case before the Court.
II. Facts [2] The Applicant is a lawyer at the Department of Justice Canada [DOJ]. As part of an effort to reclassify all lawyers in its practitioners (LA) group, the DOJ issued new, generic work descriptions to those employees in that group. Accordingly, as a result of the re-classification, the Applicant received a Legal Advisor – Regions – LA-2A work description in November 2011. This generic work description could not be changed; however, with management’s agreement, it could be replaced with a different generic work description.
[3] The DOJ directed those who disagreed with the work description (or classification) assigned in 2011 to discuss their situation with management. The Applicant, as one such person, requested that he be assigned what he believed to be a more appropriate work description and classification. As a result of this request, he met with two more senior lawyers in management at the DOJ: Daryl Schatz [Mr. Schatz] and Michael Brannen [Mr. Brannen]. Mr. Schatz is the Regional Director of the Business and Regulatory Law Portfolio. Mr. Brannen is the Deputy Regional Director of the Saskatoon Office in the Prairie Region. The Work Description meeting took place in December 2011.
[4] Some six months later, the Applicant received a Review & Update of Work Description [Work Description]. This Work Description, dated June 18, 2012, advised the Applicant that his “work description has been reviewed and updated and has been confirmed at the LAAAA02 [sic] occupational group and level, effective October 17, 2011.” This confirmed the Applicant’s classification at the LA-2A position.
[5] The Work Description document was signed by the “PRO OD&C Team, Human Resources, Prairie Region, Department of Justice Canada” in Edmonton, Alberta [Prairie Region]. The Work Description and classification was the same as that provided to the Applicant in November 2011. Although the actual details of the Work Description were provided to the Applicant by way of a separate document, I will refer collectively to both the LA-2A Work Description and the Review & Update document as the Work Description. It is the appropriateness of this Work Description that was being grieved by the Applicant.
[6] The Applicant had the right under the Public Service Labour Relations Act, SC 2003, c 22, s 2 [PSLRA] to file two different grievances: a Work Description grievance and a Classification grievance. The Applicant filed both; however the Classification grievance has been held in abeyance pending the resolution of the Work Description grievance.
[7] The Applicant filed his Work Description grievance on July 9, 2012. He stated that the job description did not accurately reflect the work he does or is expected to do. He argued that there were three higher-level generic work descriptions that more accurately described his work – two at the LA-2B level and one at the LA-3B level.
[8] The differences between what he received and what the Applicant seeks in his Work Description grievance are material; his sought-after work description provides both higher salary and higher pension entitlements.
[9] The Applicant is excluded from the DOJ lawyers’ bargaining agent, the Association of Justice Counsel [AJC], by virtue of having provided labour relations advice to DOJ; he had at one time been in a more senior management position. He was therefore not covered by the collective agreement between the ACJ and DOJ. Significantly, the matters he sought to grieve fell within the purview of the ACJ-DOJ collective agreement at the relevant time.
[10] That said, the Applicant was entitled to the same three-level grievance procedure afforded to ACJ union members. Should he be unsuccessful at the third level however, the Applicant would be required to request and receive approval and representation by the ACJ in order to proceed to adjudication before the Public Service Labour Relations Board [PSLRB]: PSLRA s. 209(2).
[11] The Applicant’s grievance was dismissed at all three levels. After the third-level decision, as a formality, he applied to the PSLRB to proceed to adjudication, but did so without the approval of the ACJ. Therefore, the PSLRB declined to accept jurisdiction. The Applicant seeks judicial review of the decision dismissing his third-level grievance.
[12] The determinative issue in this case is procedural fairness. The Applicant alleges that he was denied procedural fairness at all three levels of the grievance procedure. I will therefore set out the governing law concerning procedural fairness within the labour grievance context and then apply it to the facts of this case.
[13] Also at issue is the reasonableness of the decision made by the third-level officer, Assistant Deputy Minister of the Management Sector and Chief Financial Officer Marie-Josée Thivierge [ADM], who dismissed the Applicant’s third level grievance.
[14] As part of this analysis, I will assess the reasonableness of each of the three decisions. However, it must be noted that the procedural flaws in the second and third level grievance decision-making process (the flaws in the second level decision flow through to the third) render the third level decision unsustainable on judicial review; it must be set aside. Had the third level decision not been flawed by procedural unfairness (including those at the second level which flowed to the third), I would have upheld the third-level grievance decision as reasonable.
III. Standards of Review [15] Questions of procedural fairness are reviewed on the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 50, the Supreme Court of Canada explained what is required when conducting a review on the correctness standard:
When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
[16] This Court has accepted, and I agree, that the duty of fairness owed by an employer such as the DOJ to a grievor such as the Applicant is at the low end of the spectrum: Begin v Canada (Attorney General), 2009 FC 634 at para 9; Majdan v Canada (Attorney General), 2011 FC 146 at para 305 [Majdan]; Fischer v Canada (Attorney General), 2012 FC 720 at para 25; Tamborriello v Canada (Attorney General), 2014 FC 607 at paras 21-22; Chong v Canada (Treasury Board) (1999), 170 DLR (4th) 641 (FCA)at paras 12-13; and Gladman v Canada (Attorney General), 2016 FC 917 at para 32.
[17] However, as will be seen, being entitled to fairness at the low end of the spectrum does not sanction a decision that, when considered in its factual context, is not essentially fair.
[18] In Dunsmuir above at paras 57, 62, the Supreme Court of Canada held that a reasonableness standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” In this connection, a final-level grievance decision under s. 208(1) of the PSLRA is reviewed on the standard of reasonableness: Girard v Canada (Attorney General), 2013 FC 489 at para 16; Tibilla v Canada (Attorney General), 2011 FC 163 at paras 17-18; Boucher v Canada (Attorney General), 2016 FC 546 at para 13.
[19] In Dunsmuir above at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[20] The Supreme Court of Canada also instructs that judicial review on the reasonableness standard is not a line-by-line treasure hunt for errors; the decision should be approached as an organic whole: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. Further, a reviewing court must determine whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
IV. Relevant Provisions [21] At the time of the Applicant’s grievance in June 2012, he was an excluded member pursuant to s. 59(1)(c) of the PSLRA and therefore not covered by the collective agreement for unionized DOJ lawyers. It is common ground that his status as an excluded member was confirmed by order of the PSLRB to that effect.
Managerial or Confidential Positions
Application
Postes de direction ou de confiance
Demande
59 (1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that
59 (1) Après notification d’une demande d’accréditation faite en conformité avec la présente partie, l’employeur peut présenter une demande à la Commission pour qu’elle déclare, par ordonnance, que l’un ou l’autre des postes visés par la demande d’accréditation est un poste de direction ou de confiance pour le motif qu’il correspond à l’un des postes suivants :
…
…
(c) the occupant of the position provides advice on labour relations, staffing or classification;
c) poste dont le titulaire dispense des avis sur les relations de travail, la dotation en personnel ou la classification;
…
…
[22] Despite his excluded status, the Applicant still qualified as an “employee” under the PSLRA for the purposes of the grievance process:
Definitions
Définitions
2 (1) The following definitions apply in this Act.
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
…
…
employee, except in Part 2, means a person employed in the public service, other than
fonctionnaire Sauf à la partie 2, personne employée dans la fonction publique, à l’exclusion de toute personne :
…
…
(i) a person who occupies a managerial or confidential position; or…
i) occupant un poste de direction ou de confiance; …
[emphasis added]
[soulignements ajoutés]
[23] Under s. 208 of the PSLRA (found in Part 2 of that Act dealing with grievances), an employee such as the Applicant is entitled to present an individual grievance in situations such as this. This is not in dispute.
[24] However, as an excluded employee not covered by a collective agreement, the Applicant was not able to access adjudication under the PSLRA without the approval of the applicable bargaining agent – in this case, the AJC:
Reference to Adjudication
Renvoi d’un grief à l’arbitrage
209 (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to
209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur :
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
a) soit l’interprétation ou l’application, à son égard, de toute disposition d’une convention collective ou d’une décision arbitrale;
(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;
b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire;
(c) in the case of an employee in the core public administration,
c) soit, s’il est un fonctionnaire de l’administration publique centrale :
(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
(i) la rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre que l’insuffisance du rendement, un manquement à la discipline ou une inconduite,
(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or
(ii) la mutation sous le régime de la Loi sur l’emploi dans la fonction publique sans son consentement alors que celui-ci était nécessaire;
(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.
d) soit la rétrogradation ou le licenciement imposé pour toute raison autre qu’un manquement à la discipline ou une inconduite, s’il est un fonctionnaire d’un organisme distinct désigné au titre du paragraphe (3).
Application of paragraph (1)(a)
Application de l’alinéa (1)a)
(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.
(2) Pour que le fonctionnaire puisse renvoyer à l’arbitrage un grief individuel du type visé à l’alinéa (1)a), il faut que son agent négociateur accepte de le représenter dans la procédure d’arbitrage.
[emphasis added]
[soulignements ajoutés]
[25] Final level grievance decisions are final and binding where the individual grievance is not one that may be referred to adjudication under s. 209 of the PSLRA, as here:
Binding Effect
Décision définitive et obligatoire
214 If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.
214 Sauf dans le cas du grief individuel qui peut être renvoyé à l’arbitrage au titre de l’article 209, la décision rendue au dernier palier de la procédure applicable en la matière est définitive et obligatoire et aucune autre mesure ne peut être prise sous le régime de la présente loi à l’égard du grief en cause.
[26] A work description grievance follows the standard labour relations grievance process. Excluded employees who are not covered by a collective agreement must follow the grievance procedures referred to in the Public Safety Labour Relations Regulations, SOR/2005-79 [Regulations].
[27] Under s. 64 of the Regulations, the individual grievance process may consist of a maximum of three levels (also referred to as “steps”). At each level or step, the decision-maker is a representative of management. The following table, provided by the Respondent, summarizes which individual(s) may act as step officer at each stage of the grievance process. I have added in brackets the name and title of the individual concerned in this case:
Level
Step Officer
First
Employee’s manager or manager’s supervisor
[Mr. Schatz, Regional Director, Business and Regulatory Law Portfolio]
Second (and third)
Progressively higher levels of management
[Mr. Shenher, Acting Regional Director, Prairie Region]
Final
Deputy Minister (may be delegated)
[Ms.Thivierge, Assistant Deputy Minister, Management Sector and Chief Financial Officer]
V. Outline and analysis of the three steps in this grievance process A. First-level grievance before Mr. Schatz and general approach [28] The three step grievance process at issue involved each level’s step officer being cognizant of the decision(s) below. I will therefore look at each of the three steps and assess each on the grounds of procedural fairness and reasonableness. That said I do this for analytical and contextual purposes only, because only the third-level decision is the subject of this judicial review. I also do this because the Applicant raises issues with all three decisions, and because procedural unfairness or unreasonableness in grievance levels one or two may flow through to and impact the third level grievance decision.
[29] The first-level grievance was heard by the Applicant’s manager, Mr. Schatz. On July 9, 2012, the Applicant in fact submitted his grievance to Mr. Brannen. In November 2012, the Applicant submitted a memorandum to Mr. Schatz, as first-level step officer, which outlined his submissions regarding his Work Description grievance. I should note that the Applicant agreed in cross-examination that the grievance structure is such that the first-level step officer is always the manager of the employee in question.
[30] In his November 2012 memorandum, the Applicant set out his objections to the Work Description provided to him. He also requested that Mr. Schatz voluntarily remove himself as first-level step officer on the grounds of bias. The Applicant alleged that, as Mr. Schatz had confirmed the Work Description that formed the basis of the Applicant’s grievance, Mr. Schatz would be unable to act impartially as step officer. This, the Applicant submitted, would result in a reasonable apprehension of bias and deny the Applicant his right to a fair hearing.
The First-Level Grievance [31] The first-level hearing occurred on November 9, 2012. The Applicant attended the grievance hearing and repeated the recusal request he made in his memorandum to Mr. Schatz; once again, however, Mr. Schatz refused to remove himself from the proceedings. The Applicant left the hearing, and did so he said, so as to avoid giving the appearance of having consented to Mr. Schatz acting as first-level step officer. On this point, I note parenthetically that the Applicant could have stayed “under protest”, although nothing turns on it.
[32] On November 28, 2012, the Applicant’s grievance was dismissed [First Level Decision]. Mr. Schatz reviewed the Applicant’s submissions in making his decision and concluded that there was no issue of bias for which he was required to remove himself as first-level step officer:
As the manager delegated and responsible for the assignment of work and responsibilities, I believe I am well placed to review this matter and make a determination, based on representations made, as to whether or not your current work description accurately describes the work and responsibilities that are assigned to you.
[33] In my view, that finding is well justified.
[34] Mr. Schatz noted the Applicant’s submissions that the Work Description failed to properly describe his provision of specialized legal services, the complexity of his workload and his leadership role within the advisory group. However, Mr. Schatz concluded:
Having had the opportunity to review the written material that you have provided as well as the work assigned to you, I am satisfied that your current work description accurately describes your core duties and responsibilities. In particular, I have noted the following description contained under the heading of “Client Service Results” of your work description, which reads:
“Provides a broad range of legal services and legal advice in assigned areas of law/client departments or agencies, typically on matters of considerable complexity, breadth, scope, risk and/or impact, often involving multiple client department interests, horizontal issues, the leadership and coordination of teams and resources, and having implications on multiple client department and/or agency policy, process, and business operations, as well as potentially on governing legislation.”
[35] Despite the Applicant’s arguments to the contrary, it is my respectful view that there was neither procedural unfairness nor unreasonableness in the First-Level Decision.
[36] There was no procedural unfairness because, despite being pressed on this at the hearing before this Court, the Applicant was unable to provide any evidence that Mr. Schatz made the decision that classified the Applicant at the LA-2A level, or that he had determined the contents of the generic Work Description being grieved. In fact, the evidence was that work description (and classification) decision was made by the Prairie Region of the DOJ in Edmonton. In addition, the allegation of bias is difficult to square with the Applicant’s admission in cross-examination that the grievance structure is such that, the first-level grievance officer is always the manager of the employee in question. In this case, that manager was Mr. Schatz.
[37] For completeness, I reject as without any merit the Applicant’s allegation, advanced in his affidavit and repeated in oral argument, that the First-Level Decision was improperly motivated in the sense that Mr. Schatz denied the Applicant a higher work description to hold the line on or maintain actual costs and thereby obtain annual performance pay bonuses for himself. There is not a shred of evidence to support that assertion.
Reasonableness of First-Level Decision [38] In terms of reasonableness, I am also unable to agree with the Applicant. The decision is intelligible and transparent. It recites the evidence filed by the Applicant. Mr. Schatz reviewed the Applicant’s concerns as he had summarized them and answered them directly. He concluded that the Applicant’s “current work description accurately describes your core duties and responsibilities.” He pointed to the specific provision in the contested Work Description and, in my respectful opinion, reasonably found a match between what the Applicant did and the contents of the Work Description. Given the deference afforded, I am satisfied that the decision of Mr. Schatz is defensible on the facts and law and, as already noted, not flawed by procedural unfairness.
B. The Second-Level Grievance Decision before Mr. Shenher [39] The Applicant’s grievance was then transmitted to the second-level step officer, the Acting Regional Director for the Prairie Region, Mr. Shenher. In addition to challenging the Work Description on the merits, the Applicant also raised the issue of bias at the first level. No bias allegation was directed against Mr. Shenher.
[40] The Applicant’s second-level grievance was dismissed on October 4, 2013 [Second-Level Decision]. Mr. Shenher concluded that the Applicant’s “core functions fall within the skills of a LA 2A counsel”; he held that the work the Applicant described himself as doing “is within the generic work description” being grieved. In denying the Applicant’s grievance, Mr. Shenher stated that he “support[ed] the decision at the first level”.
[41] The Second-Level Decision made no reference to the Applicant’s allegations of bias against Mr. Schatz. I am unable to fault Mr. Shenher on this point; as I found above, there was no procedural unfairness in the First Level Decision.
Procedural Fairness of the Second-Level Grievance Decision [42] In my respectful view, the decision at the second-level was tainted by procedural unfairness. I make this finding for several reasons.
[43] First, in making his decision on the Applicant’s allegations, Mr. Shenher had before him a negative memorandum written by Mr. Schatz and Mr. Brannen [Schatz/Brannen Memo]. This memo formed part of the record before Mr. Shenher as the second level grievance officer. This memorandum, material and relevant to the decision, was not disclosed to the Applicant: in my respectful view, it should have been. In addition, the Schatz/Brannen Memo is objectionable because it contains errors which the Applicant would have corrected had he been afforded that opportunity. As a final point the Schatz/Brannen Memo is objectionable because of its nature and the fact that it was written by or at least co-authored by the first-level grievance officer, Mr. Schatz.
[44] I will consider these points in detail.
The Schatz/Brannen Memo [45] Mr. Shenher, the second level grievance officer requested a report on the Applicant from Mr. Schatz. Mr. Schatz was the Applicant’s manager and he was also the first-level grievance officer. Mr. Shenher made this request almost nine months after the Applicant filed his grievance memorandum. Mr. Shenher asked Mr. Schatz to answer the following questions:
What duties were assigned/not assigned and what was the time period in which these duties were assigned? Are these duties within the scope of the LA2A work description? If not, where do these duties fall and was acting pay provided to the employee if the duties were at a higher classification group and level? If acting pay was not provided, what was the reason?
If Dale should not have been doing these duties, was Dale made aware by management that he should not be doing these duties? If yes, when was Dale informed, what were the duties that he should not be doing and has Dale been working within the scope of his work description since the classification took place?
[46] Notwithstanding the very long time it took to ask for these answers, the 8-page Schatz/Brannen Memo dated September 27, 2013 was prepared and returned in a matter of three or four days. It was co-authored by Mr. Schatz and Mr. Brannen. As may be recalled, Mr. Brannen was a DOJ lawyer and manager who reported to Mr. Schatz. Mr. Brannen had met with both the Applicant and Mr. Schatz to discuss the Applicant’s Work Description back in December 2011.
[47] The Schatz/Brannen Memo, after setting out a lengthy “history and context” reported that:
…no management or team leader duties have been assigned to Dale Kohlenberg.
To the extent that he has directly received legal services requests and either acted upon the requests or assigned the requests unilaterally, it has been contrary to the protocol that has been in place for several years, as outlined above.
…
CONCLUSION
The materials reviewed above do not support the claim that the core expectations and the core duties performed by Dale fall outside the LA-2A Work Description. The duties generally require sound knowledge, and his activities routinely fall into the categories of the Key Activities, Critical Thinking and Analysis, Communication and Interaction, Leadership, Physical and Sensory Effort, and Work Environment of the LA-2A Work Description.
The above does not mean that he has never been asked to perform duties demanding higher competencies, which he may well possess. Similarly, particularly given the difficulties in attracting junior counsel to advisory positions, Dale has been required to perform legal services calling for competencies below the level of the Work Description.
[48] In support of his grievance, the Applicant had supplied many examples of his work product. Mr. Shenher attached examples in his request for information to Mr. Schatz. The Schatz/Brannen Memo analysed and commented on these various work products, which included opinions authored by the Applicant, power point presentations, a factum, an agreement, various emails and memos, memoranda and Memorandum of Understanding, a License to Use and Occupy Crown Lands, and other documents.
[49] The Applicant was not informed of the Schatz/Brannen Memo, nor given any opportunity to respond to it. I was given no reason why this document was not provided to the Applicant for his comments; the position of the DOJ is that there was no obligation to do so. Because the Applicant was not told of its existence, he was also unaware that the memo was co-authoried by Mr. Schatz. While the Schatz/Brannen Memo is marked “Protected B”, it was filed and given to the Applicant in the Certified Tribunal Record [CTR] in this Court docket, where the Applicant saw it for the first time. The Schatz/Brannen Memo was part of the record before Mr. Schenher; it is now part of the public record.
[50] While the duty of procedural fairness at each level of the grievance process lies at the low end of the spectrum in these types of cases, in my respectful view, the duty still exists; it may not be said that the duty of procedural fairness is non-existent.
[51] The general principles regarding the content of the duty of fairness in this connection are set out in in Re:Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 54 [Re:Sound], still apply. In Re:Sound, the Federal Court of Appeal stated:
[54] However, agencies must ensure that, if they obtain information from third parties, they do not thereby jeopardize parties’ participatory rights: to know and to comment on material relevant to the decision; to have notice of the grounds on which the decision may be based; and to have an opportunity to make representations accordingly. The ultimate question for a reviewing court in every case is whether, in all the circumstances (including respect for administrative procedural choices), the tribunal’s decision-making procedure was essentially fair. This involves a contextual and fact-specific inquiry.
[52] This duty of fairness was breached in several respects.
[53] First, withholding the Schatz/Brannen Memo from the Applicant offended a most basic rule of procedural fairness; namely, that an applicant is entitled to know the case against her or him. Here, the Schatz/Brannen Memo provided a detailed and somewhat negative critique of the Applicant’s various work products, in addition to providing responses to the questions asked by Mr. Shenher.
[54] The memo was undeniably relevant. And it was material. In my respectful view, this memo in many respects constituted the case against the Applicant. It set out material upon which the second-level grievance officer made his decision. In my view, the Schatz/Brannen Memo was factored into the final decision to dismiss the second level grievance. Therefore the Applicant was entitled to have it provided to him, and to respond to it, even given that the duty of fairness in this respect is at the low end.
[55] I was pointed to no statutory basis on which the Court might conclude that the duty to disclose is non-existent in a case such as this. Nor, given the delay in asking for it, am I able to conclude that considerations of urgency or delay justified keeping it from the Applicant. Nor may I conclude that the Applicant, in effect, knew what was in the memo such that he could or should have anticipated and addressed its comments without seeing it. Little, indeed almost none of the information contained in the Schatz/Brannen Memo was already on the record.
[56] There is a second objection to this memo, namely, that the second-level grievance officer should not have asked the first-level grievance officer for such comprehensive input into the second-level decision. By attaching the Applicant’s examples of work materials to his request for information, it appears that comments were invited on essentially all of the Applicant’s submissions. The questions themselves are quite broad. Overall, in my respectful view, this created the appearance that the officer wanted answers not only to the wide questions posed, but a substantial briefing on the Applicant and his work for the DOJ.
[57] It was therefore not unexpected that Mr. Schatz commented extensively on the Applicant’s work, in addition to answering the questions. The memo paints what I consider a somewhat negative picture of the Applicant.
[58] I do not doubt that, particularly in smaller offices, it may be necessary for a second-level grievance officer to request specific information from a first-level grievance officer where that information is necessary to complete his or her investigation. In this case, however, not only was the request made by the second officer quite comprehensive, but so was the response. This is all the more reason why the Applicant should have had a chance to respond to it.
[59] In this respect, the case at bar recalls the discussion in Majdan, above, where this Court concluded:
[40] I find that the Committee also breached its duty of fairness by not providing the applicant with an opportunity to respond to the information obtained from Mr. Vaillancourt. The respondent acknowledges that the Committee sought information from Mr. Vaillancourt to clarify the applicant’s duties while she worked in the GP. However, the respondent submits, he did not provide the Committee with any useful information and therefore the Committee did not need to inform the applicant of this information and provide her with an opportunity to respond.
…
[42] Thus, contrary to the respondent’s submission, Mr. Vaillancourt’s information was not completely duplicative of the information presented by the applicant. In the final sentence, Mr. Vaillancourt characterized the GP as involving the provision of expert advice, as opposed to a leadership or management role. This was not benign or neutral information – Mr. Vaillancourt characterized the GP in a way that would clearly merit a lower classification than that proposed by the applicant.
[43] Thus, I do not accept the respondent’s argument that Mr. Vaillancourt’s information had no effect whatsoever to the Committee’s determination. Rather, I find that this is similar to the undisclosed information in Bulat, above – the manager in that case provided information that supported a lower classification than the grievor sought. Similarly in this case, Mr. Vaillancourt’s information was clearly detrimental to the applicant’s grievance (which is particularly problematic given the fact that he was not her supervisor, and apparently had an animus towards her).
…
[47] Even if there is a low standard of fairness in classification grievances, this is one of those cases where the Committee simply gave lip service to its duty.
[60] Here, even lip service was not given.
[61] A further point must be factored into this analysis. In my respectful view, the manner in which the request and the response were passed between the second- and first-level grievance officers, coupled with the nature of the request and reply, transformed what was supposed to be a multi-step grievance procedure into what in its appearance was a closed loop; on the record, it appears that the second grievance officer, who dismissed the grievance before him, relied excessively on the first level grievance officer who had done the same.
[62] In my respectful view, this breached the fundamental rule that justice must not only be done, but it must be seen to be done: R v Sheppard, 2002 SCC 26 at para 15; Société des Acadiens v Association of Parents, [1986] 1 SCR 549 at para 153; Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259 at para 67 [Wewaykum]; Heron Bay Investments Ltd v Canada, 2010 FCA 203 at para 41 citing James v Canada (Minister of National Revenue), [2000] FCJ No 2135 (QL), 2000 CanLII 16700 at paras 51-52 (FCA) [James]; NCJ Educational Services Limited v Canada (National Revenue), 2009 FCA 131 at para 39 citing James.
[63] My view on this point is reinforced by the fact that the second level grievance officer, with one exception, did not consult any of the persons identified by the Applicant as references. This fact is not in dispute. The only exception was Mr. Brannen who co-authored the report with Mr. Schatz. While I do not say generally that all or any of an applicant’s proffered sources of support must be consulted, the fact that virtually none were consulted detracts from the appearance of fairness in this case.
[64] These are not my only concerns. I am left to wonder why Mr. Shenher’s request for additional information was not sent to Mr. Brannen instead of Mr. Schatz, given that Mr. Brannen was not the first-level grievance officer, and had managerial responsibilities. In addition, he had expertise regarding the Applicant’s work description, as evidenced both by his co-authorship of the memo sent to Mr. Shenher and by his attendance with Mr. Schatz at the work description interview with the Applicant in December 2011.
[65] In my respectful view, there is also merit in the Applicant’s assertion that the Schatz/Brannen Memo contained errors relating to his role as “advisory team leader”. A review of the material supports my conclusion that the Applicant was indeed an “advisory team leader”. Indeed, this was not disputed. While the Respondent argued that the Applicant’s role as advisory team leader did not qualify him to be considered a “team leader” within the higher level work descriptions, in my respectful view as a consequence of his role as “advisory team leader”, he was still a “team leader”.
[66] In my respectful view however, there is no merit to the Applicant’s further submission that the second level grievance officer should not have had or reviewed the decision of the first level grievance officer. In my view, a second-level grievance officer does not act with procedural unfairness if she or he considers a decision made at the first level; while a de novo hearing in the grievance process requires that the decision be made afresh, I do not agree with the Applicant’s position that a decision at an earlier level as a legal matter must be ignored: MacPhail v Canada (Attorney General), 2016 FC 153 at para 18, James v Canada (Attorney General), 2015 FC 965 at paras 98-99.
Reasonableness of the second-level grievance decision (alternative finding) [67] If the Second-Level Decision was not tainted by procedural unfairness issues, I would have found that it meets the test of reasonableness set out in Dunsmuir. As with the First-level Decision, the Second-Level Decision assesses the allegations of the Applicant against the Work Description at issue and concludes that the work described by the Applicant “is within the generic work description.” While, as the Applicant stresses, it does conclude that the Applicant’s work is “adequately” reflected in his work description, and while I agree that the word “adequately” is not the best word to use, the decision read as a whole, without engaging in a treasure hunt for errors, is reasonable in that is it defensible on the facts and law.
C. Third-Level Grievance before the ADM [68] The Applicant pursued his grievance to the ADM as the third-level grievance officer. In this connection, and in addition to the submissions of the Applicant, the ADM received a report dated September 9, 2014 from Maximilian Baier [Mr. Baier], a Senior Labour Relations Advisor. Mr. Baier’s report recommended that the Applicant’s grievance be dismissed. As with the Schatz/Brannen Memo, Mr. Baier’s memo was not disclosed to the Applicant, nor was