Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency)

Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency)
Court (s) Database
Federal Court Decisions
Date
2004-04-01
Neutral citation
2004 FC 507
File numbers
T-598-00
Decision Content
Date: 20040401
Docket: T-598-00
Citation: 2004 FC 507
Ottawa, Ontario, this 1st day of April, 2004
Present: The Honourable Justice James Russell
BETWEEN:
THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
and
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
NATURE OF APPLICATION
[1] This is an application for judicial review brought by the Professional Institute of the Public Service of Canada ("Applicant"). The Applicant represents over 9000 auditors employed by the Respondent, the Canada Customs and Revenue Agency ("Agency").
[2] The Agency is required by statute to develop a program for staffing, including "recourse" for employees affected by staffing decisions. When it was created in 1999, the Agency implemented a staffing program ("Program"). The Program deals with the appointment and transfer of employees to and within the Agency. The Applicant submits that the recourse procedures developed and implemented as part of the Program do not comply with the minimum procedural attributes that are required by the principle of fairness. By developing and implementing such deficient procedures, the Applicant says the Agency failed to act reasonably and failed to develop a Program that complies with its statutory obligations.
[3] The Applicant submits that the recourse system implemented by the Agency as part of the Program is so unreasonable that it does not constitute a true system of recourse. The following principal reasons are advanced for this conclusion:
a. it does not require an unbiased, third-party decision maker to rule on all issues related to the selection process;
b. the Independent Third Party Reviewer available to review limited portions of the selection process lacks independence because he or she is financially dependent upon, and administratively controlled by, the Agency;
c. the Independent Third Party Reviewer does not have the authority to require adequate disclosure of relevant information to complainants;
d. the decision-maker at the Assessment stage may request information from "experts" without allowing a complainant to respond to the claims of those experts;
e. the decision-makers at all stages are prohibited from examining all relevant considerations to ensure that candidates are treated consistently; and
f. the Independent Third Party Reviewer does not have adequate remedial power to correct errors that he or she identifies.
[4] The Applicant seeks a declaration by this Court that, because of the unreasonable errors and procedural inadequacies referred to above, the Agency has not implemented a staffing recourse mechanism as required by its governing statute.
BACKGROUND
History
[5] The Agency came into existence on November 1, 1999 when the Canada Customs and Revenue Agency Act ("CCRAA") came into force. Prior to that date, the auditors employed by the Agency were part of the Department of National Revenue and were employed by the Treasury Board Secretariat.
[6] Subsection 4(1) of the CCRAA establishes a body corporate called the Canada Customs and Revenue Agency. The Agency carries out the mandate of the former Department of National Revenue and is responsible for supporting the administration and enforcement of federal legislation dealing with tax, trade and customs.
[7] The Agency is a separate employer under the Public Service Staff Relations Act ("PSSRA"). It may determine its own requirements with respect to human resources.
[8] Parliament has conferred on the Agency the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.
[9] When they were Treasury Board employees, the auditors were covered by the staffing recourse mechanism set out in the Public Service Employment Act ("PSEA").
[10] Once the CCRAA came into force, the PSEA no longer applied to those auditors transferred to the Agency. Staffing recourse for employees of the Agency is now governed by the CCRAA.
[11] In exercising its authority, the Agency is not subject to the provisions of the PSEA. Instead, Parliament has provided in the CCRAA that the Agency must develop its own staffing program:
54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
(2) No collective agreement may deal with matters governed by the staffing program.
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés.
(2) Sont exclues du champ des conventions collectives toutes les matières régies par le programme de dotation en personnel.
[12] Section 8 of the PSEA provides as follows:
Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
Sauf disposition contraire de la présente loi, la Commission a compétence exclusive pour nommer à des postes de la fonction publique des personnes, en faisant partie ou non, don't la nomination n'est régie par aucune autre loi fédérale.
[13] In particular, the CCRAA requires that the Agency develop a staffing program, including a method of recourse, for its employees as per ss. 54(1) of the CCRAA. Subsection 54(2) of the CCRAA prohibits the parties to a collective agreement from negotiating staffing provisions governed by the Agency's staffing program.
[14] The statutory grievance procedure set out in s. 91 of the PSSRA is unavailable to those employees of the Agency who feel aggrieved over staffing matters. Subsection 91(1) of the PSSRA prohibits grievances where there is an "administrative procedure for redress ... provided in or under an Act of Parliament." The Agency has taken the position that its staffing policy, developed pursuant to ss. 54(1) of the CCRAA, amounts to "an administrative procedure for redress," thereby preventing its employees from accessing any other grievance procedure concerning staffing matters.
The Agency's Staffing Program
[15] On 1 November 1999, the Agency implemented the Program it had developed in accordance with ss. 54(1) of the CCRAA.
[16] The Program describes the processes used by the Agency to fill positions within the Agency and the recourse available to employees affected by those processes. It consists of program components, approved by the Agency's Board of Management, which deal with specific topics such as delegation of authority, staffing processes and recourse for staffing; it also contains staffing directives approved by the Public Service Commissioner on related topics that are attached as annexes to the Program.
[17] Parliament has also authorized the Agency to establish staffing principles in its corporate business plan to govern the Program. The Agency's staffing principles are as follows:
Non-partisanship: The workforce must conduct itself in a manner that is free from political and bureaucratic influence. Staffing decisions must be free from political and bureaucratic influence.
Representativeness: The composition of our workforce reflects the available labour market.
Competency: The workforce possesses the attributes required for effective job performance.
Fairness: Staffing decisions are equitable, just and objective.
Transparency: Communications about staffing are open, honest, respectful, timely and clearly understood.
Efficiency: Staffing processes are planned and conducted having regard to time and cost, and linked to business requirements.
Adaptability: Staffing processes are flexible and responsive to the changing circumstances and to the unique or special needs of the organization.
Productiveness: Results in appointment of the necessary number of competent people for the proper conduct of business.
[18] The PSEA does not apply to staffing in the Agency and the Public Service Commission ("Commission") has no authority over the appointment process. However, under ss. 56(2) of the CCRAA, the Commission may periodically review the compatibility of the Agency's staffing principles with those governing staffing under the PSEA.
[19] Under the Program, there are three stages in the selection process ("Selection Process") for candidates for any particular job.
[20] The Selection Process is one of the principal mechanisms used by the Agency for the promotion and appointment of its staff. The term "Selection Process" means the procedure whereby individuals may express interest in a job opportunity and be considered for assessment and selection for appointment.
[21] The first stage involves a "Review of Pre-requisites," under which employees complete an expression of interest or request pre-qualification. Pre-qualification is a process whereby individuals identify career interests and can be assessed for pre-qualification for specific positions.
[22] At the Pre-requisite stage, the hiring manager, or his or her delegate (for example, a selection board), reviews every applicant's expression of interest against the pre­requisites listed in a Statement of Staffing Requirements. This statement is included in every Notice of Job Opportunity. Applicants are responsible for providing the information necessary to demonstrate that they meet the pre­requisites.
[23] Only candidates who the Agency has determined meet the prerequisites for the job competition are considered for "Assessment," which is the next stage in the Selection Process. Assessments are conducted using standardized tests, written examinations, interview, and reference checks.
[24] During the Assessment stage, the hiring manager or selection board assesses those candidates who meet the pre-requisites against the qualifications for the relevant position. Assessment is a comparison of a candidate's competencies or qualifications against established assessment criteria, not a comparison (or a ranking) of the candidates against one another.
[25] Candidates who are found to be qualified enter a pool of qualified candidates from which the Agency may select persons for Placement. They are informed of their Assessment results in writing and of the period for which they can be considered for Placement.
[26] "Placement" is the final stage of the Selection Process. At the Placement stage, a selection is made from amongst qualified candidates based on established specific job requirements linked to business needs. Placement does not result from a ranking of applicants according to merit.
[27] When a manager decides to staff a position, he or she will choose from among the qualified candidates in the pool based upon pre-established, job-specific requirements linked to the business needs of the Agency. Placement criteria could include, for instance, the level of competency or qualification, the nature and extent of work experience, and considerations of employment equity.
[28] The manager will select the appropriate placement criteria from among those listed in the Statement of Staffing Requirements and evaluate/consider the candidates against them. Placement, like Assessment, involves the comparison of candidates against specified criteria, not a comparison or ranking of candidates.
[29] Those who are qualified but not placed are advised of who is placed, the criteria for Placement and their recourse rights.
The Agency's Staffing Recourse
[30] Candidates who are dissatisfied with decisions made at any stage of the Selection Process may seek recourse in accordance with the Program. Recourse provides an opportunity for individuals to raise their concerns so that they can be addressed in a timely manner. The focus of recourse is on the treatment of the individual in the Selection Process and not the evaluation of other candidates.
[31] The Agency has developed three levels of staffing recourse: Individual Feedback, Decision Review, and Independent Third Party Review. Individual Feedback is available at any stage of the Selection Process and must be completed before any other recourse is attempted. Decision Review is available only if a candidate is screened out at the Assessment or Placement stages. Independent Third Party Review is available only to those candidates who make it to the Placement stage and who opt not to engage in Decision Review.
[32] At each stage of the staffing recourse, the only ground for consideration is whether the employee was treated arbitrarily. At no point in the staffing recourse may a decision maker engage in a comparative examination of the treatment of one candidate with another. The term "arbitrary" is defined as follows in the directives for the Program:
In an unreasonable manner, done capriciously; not done or acting according to reason or judgement; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e. difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion or union affiliation).
[33] The kind of recourse available to employees under the Program is intended to be commensurate with the nature and significance of the staffing decision at issue. An outline of the recourse available at each stage is contained in the Directive on Staffing Recourse, which is Annex L to the Program.
[34] Recourse under the Program is intended to be flexible, timely, effective and non-adversarial. The guiding principles include quick and early resolution of concerns, the promotion of a workplace culture of respect, open communication and an appropriate level of management accountability. By way of example, a candidate improperly excluded at the Pre-requisite phase can be admitted to the Assessment phase without having to wait for the end of the Selection Process.
1) Individual Feedback
[35] Individual Feedback is conducted by the person ("Authorized Person") first responsible for the staffing action.
[36] Individual Feedback is available to candidates screened out at the Pre-requisite stage. Candidates challenging Assessment and Placement decisions must seek Individual Feedback before pursuing additional recourse under the Program.
[37] Individual Feedback allows employees to express any concerns they may have about a staffing decision, to receive further information about that decision, to obtain assistance in their career development plans and, where appropriate, to benefit from corrective action.
[38] During Individual Feedback, the Authorized Person or his or her delegate will consider the employee's concerns, provide the employee with information respecting the decision at issue, respond to any questions the employee may have, review the decision in light of the employee's concerns and, where appropriate, take corrective measures. Those measures may include permitting an employee to continue as a candidate in a Selection Process.
[39] The Program provides that Individual Feedback must be focussed on the treatment of the individual excluded from the Selection Process, and not on the evaluation of other candidates or employees. Individual Feedback is described as both a recourse mechanism and as a key element in the career management process that allows employees to receive input on development needs.
[40] The hiring manager providing Individual Feedback is not entitled to divulge information about other candidates without their express written permission.
[41] Individual Feedback may be provided verbally or in writing. Since the feedback session is intended to be both a recourse mechanism and a key element in the career management process, participation is limited to the employee concerned and the hiring manager. However, an employee may obtain assistance from others in organizing his or her case prior to the session.
[42] Employees excluded from a job competition on the basis of a perceived failure to meet the prerequisites of the position are not entitled to have representation, and cannot have a person accompany them during the Individual Feedback session.
2) Decision Review
[43] Employees who are dissatisfied with the result of Individual Feedback in relation to the Assessment or Placement stages of the Selection Process may seek further recourse by way of Decision Review. This is conducted by the supervisor of the Authorized Person.
[44] The reviewing supervisor has discretion regarding the manner of conducting the review. He or she will review the information provided by the parties (including the results of the Individual Feedback) and may make such additional inquiries and obtain such additional information as may be necessary to reach a decision. The reviewer must ensure that each party has a full opportunity to present his or her views. The Program does not specifically prohibit parties from calling witnesses during Decision Review.
[45] Decision Review is conducted by the supervisor of the person responsible for the staffing action. Although the supervisor may conduct the review by paper, teleconference or in person, a preference is stated in favour of paper reviews. After reviewing the relevant documents, the reviewing supervisor may make additional inquiries as necessary, including asking questions of internal subject matter experts, or an expert from the Resourcing and Career Support Division, Human Resources Branch.
[46] The employee is not specifically provided with an opportunity to review or comment on any additional information gathered by the supervisor, although there appears to be nothing in the Program to prevent this from occurring in practice.
[47] At this stage, the employee affected may be accompanied by an individual of their choice. However, the individual accompanying the employee is prohibited from participating in any discussions that occur.
[48] Where the supervising reviewer determines that there was an error in the Selection Process, the reviewer is accountable for ensuring that corrective action is taken in a timely manner.
3) Independent Third Party Review
[49] Independent Third Party Review ("ITPR") is available only to those employees who are screened out at the final phase of the Selection Process and who do not opt for Decision Review.
[50] When an employee files a request for ITPR, the CCRA Office of Dispute Management ("ODM") decides, in its sole discretion, whether the matter may be sent to ITPR. Thus disputes over the jurisdiction of the Independent Third Party Reviewer ("ITPR Reviewer") are not handled by the ITPR Reviewer, but by the ODM without a hearing.
[51] The ITPR Reviewer is chosen by ODM from a roster of reviewers who are engaged by the Agency under contract.
[52] ITPR is conducted by independent parties outside the Agency. ITPR Reviewers are not employees, agents or directors of the Agency.
[53] The procedures governing ITPR are set out in Guidelines developed by the Agency.
[54] The dissatisfied employee must submit a written request for ITPR to the manager who made the Placement decision under review and to the ODM. The manager is encouraged to resolve the complaint informally. If the manager is unsuccessful, the ODM will assign the complaint to a ITPR Reviewer on the pre-established roster of reviewers. Ordinarily, the next ITPR Reviewer "in line" will be chosen, having regard for geographical location, language, availability and accessibility.
[55] The ITPR Reviewer must excuse himself or herself if a conflict of interest or any other condition arises that might affect his or her impartiality.
[56] ITPR may take many forms, ranging from a simple paper review to a full hearing. The ITPR Reviewer has discretion to determine the review procedure, taking into account the complexity of the case, the evidence the parties expect to call and the principles of fairness. Parties may be represented by an agent or by counsel and may call witnesses to give evidence before the ITPR Reviewer.
[57] After considering the evidence and submissions of the employee and the hiring manager, the ITPR Reviewer must issue a final decision which is binding on the parties.
[58] The ITPR Reviewer does not have the power to subpoena witnesses. The ITPR Reviewer's remedial power with respect to the Selection Process is also circumscribed. He or she may: order correction of an "error" in the process of Placement; recommend revocation of an appointed employee; or recommend involving another manager in the Placement decision. The ITPR Reviewer may not consider or make any orders concerning events taking place in the Review of Pre-requisites stage or the Assessment stage.
[59] Managers are accountable for taking the corrective measures ordered by the ITPR Reviewer.
History of Proceedings
[60] On March 27, 2000, the Applicant brought an application for a declaration that, contrary to s. 54(1) of the CCRAA, the Agency has failed to develop a program for staffing recourse. The Applicant also sought an order of mandamus requiring the Agency to implement a staffing recourse system in accordance with the requirements of the CCRAA.
[61] On June 23, 2000, the Respondent brought a motion for an Order striking out the March 27, 2000, Notice of Application on the grounds that the Agency had already implemented its Program and had fully met its obligations under s. 54(1) of the CCRAA.
[62] By Order dated January 29, 2001, Madam Prothonotary Aronovitch dismissed the motion to strike. Upon appeal of that order, O'Keefe J. allowed the appeal in part, concluding that the application for mandamus was bereft of any possibility of success because the Applicant had not made a prior demand of the Agency to adopt a proper staffing program. O'Keefe J. concluded that the application for a declaration could continue. A further appeal by the Respondent to the Federal Court of Appeal was dismissed.
PERTINENT LEGISLATION
[63] The relevant sections of the Canada Customs and Revenue Agency Act, 1999 c. 17 are as follows:
50. The Agency is a separate employer under the Public Service Staff Relations Act.
51. (1) Notwithstanding subsections 11(2) and (3) and section 12 of the Financial Administration Act, the Agency may, in the exercise of its responsibilities in relation to personnel management,
(a) determine its requirements with respect to human resources and provide for the allocation and effective utilization of human resources;
(b) determine requirements for the training and development of its personnel and fix the terms and conditions on which that training and development may be carried out;(c) provide for the classification of Agency positions and employees;
(d) determine and regulate the pay to which persons employed by the Agency are entitled for services rendered, the hours of work and leave of those persons and any related matters;
(e) provide for the awards that may be made to persons employed by the Agency for outstanding performance of their duties, for other meritorious achievement in relation to those duties and for inventions or practical suggestions for improvements;
(f) establish standards of discipline for its employees and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied or may be varied or rescinded in whole or in part;
(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
(h) determine and regulate the payments that may be made to Agency employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and
(I) provide for any other matters that the Agency considers necessary for effective personnel management, including terms and conditions of employment not otherwise specifically provided for in this subsection.
(2) The Commissioner must apply the penalties, including termination of employment and suspension, under paragraph (1)(f) and provide for termination or demotion under paragraph (1)(g) on behalf of the Agency.
52. (1) The Agency may establish or enter into a contract to acquire group insurance or benefit programs for its employees and may set any terms and conditions in respect of those programs, including those relating to premiums, contributions, benefits, management and control and expenditures to be made from those contributions and premiums, and may audit and make contributions and pay premiums in respect of those programs.
(2) The Financial Administration Act does not apply to any contributions made or premiums paid by the Agency or the members in respect of any program established under subsection (1) or any benefits received by the members of such a program.
53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.
(2) The Commissioner must exercise the appointment authority under subsection (1) on behalf of the Agency.
54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
(2) No collective agreement may deal with matters governed by the staffing program.
55. (1) For the purpose of deployments or appointments made, or closed competitions held, under the Public Service Employment Act, employees of the Agency must be treated as if they were employees within the meaning of the Public Service Employment Act and had the rights of recourse provided by that Act.
(2) The Public Service Commission may, in consultation with the Treasury Board, set terms and conditions for the deployment of Agency employees to departments and agencies under the Public Service Employment Act if, in the opinion of the Commission, the principles governing the Agency's staffing program are incompatible with those governing staffing under the Public Service Employment Act.
(3) When the Agency considers employees within the meaning of the Public Service Employment Act for employment within the Agency, it must treat them as if they were employees of the Agency and had the rights of recourse of Agency employees.
56. (1) The Public Service Commission may prepare, or have prepared on its behalf, a report to the Agency on the consistency of the Agency's staffing program with the principles set out in the summary of its corporate business plan and must send a copy of the report to the Auditor General and the Treasury Board.
(2) The Public Service Commission may periodically review the compatibility of the principles governing the Agency's staffing program with those governing staffing under the Public Service Employment Act and may report its findings in its annual report.
57. Sections 32 to 34 of the Public Service Employment Act apply to the Commissioner, Deputy Commissioner and employees of the Agency. For the purposes of those sections, the Commissioner and Deputy Commissioner are deemed to be deputy heads and the employees of the Agency are deemed to be employees as defined in section 2 of that Act.
58. (1) Notwithstanding section 56 of the Public Service Staff Relations Act, the Agency has sole authority to enter into a collective agreement with the bargaining agent for a bargaining unit composed of Agency employees, applicable to employees in that bargaining unit.
(2) Before entering into collective bargaining, the Agency must consult with the Treasury Board on its human resource plan, including the total increases in employee salaries or benefits.
59. Following its third full year of operations and periodically after that, the Agency must have prepared, by a person or body other than the Agency, a director or an employee of the Agency, an assessment of the recourse that the Agency provides or administers in its management of human resources. The Agency must publish a summary of the assessment in its next annual report.
50. L'Agence est un employeur distinct au sens de la Loi sur les relations de travail dans la fonction publique.
51. (1) Par dérogation aux paragraphes 11(2) et (3) et à l'article 12 de la Loi sur la gestion des finances publiques, l'Agence peut, dans l'exercice de ses attributions en matière de gestion du personnel_:
a) déterminer les effectifs qui lui sont nécessaires et assurer leur répartition et leur bonne utilisation;
b) déterminer les besoins en matière de formation et perfectionnement de son personnel et en fixer les conditions de mise en oeuvre;
c) assurer la classification des postes et des employés;
d) déterminer et réglementer les traitements auxquels ont droit ses employés, leurs horaires et leurs congés, ainsi que les questions connexes;
e) prévoir les primes susceptibles d'être accordées aux employés pour résultats exceptionnels ou réalisations méritoires dans l'exercice de leurs fonctions, ainsi que pour des inventions ou des idées pratiques d'amélioration;
f) établir des normes de discipline et fixer les sanctions pécuniaires et autres, y compris le licenciement et la suspension, susceptibles d'être infligées pour manquement à la discipline ou inconduite et préciser dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces sanctions peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
g) prévoir, pour des motifs autres qu'un manquement à la discipline ou une inconduite, le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur et préciser dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces mesures peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
h) déterminer et réglementer les indemnités à verser aux employés soit pour des frais de déplacement ou autres, soit pour des dépenses ou en raison de circonstances liées à leur emploi;
I) prendre les autres mesures qu'elle juge nécessaires à la bonne gestion de son personnel, notamment en ce qui touche les conditions de travail non prévues de façon expresse par le présent paragraphe.
(2) Le commissaire, pour le compte de l'Agence, inflige les sanctions, y compris le licenciement et la suspension, visées à l'alinéa (1)f) et procède au licenciement ou à la rétrogradation visés à l'alinéa (1)g).
52. (1) L'Agence peut établir des programmes d'assurances collectives ou d'autres avantages pour ses employés, fixer les conditions qui leur sont applicables, notamment en ce qui concerne les primes et cotisations à verser, les prestations et les dépenses à effectuer sur celles-ci ainsi que la gestion, le contrôle et la vérification des programmes, conclure des contrats à cette fin et verser les primes et cotisations.
(2) La Loi sur la gestion des finances publiques ne s'applique pas aux primes ou cotisations versées par l'Agence ou perçues auprès des cotisants aux programmes visés au paragraphe (1) ni aux prestations qui sont versées à ceux-ci.
53. (1) L'Agence a compétence exclusive pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses activités.
(2) Les attributions prévues au paragraphe (1) sont exercées par le commissaire pour le compte de l'Agence.
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés.
(2) Sont exclues du champ des conventions collectives toutes les matières régies par le programme de dotation en personnel.
55. (1) En ce qui a trait aux concours internes, aux mutations et aux nominations effectués sous le régime de la Loi sur l'emploi dans la fonction publique, les employés de l'Agence sont traités comme s'ils étaient des fonctionnaires au sens de cette loi et peuvent se prévaloir à cet égard des recours qui y sont prévus.
(2) La Commission de la fonction publique, après consultation du Conseil du Trésor, peut assortir de modalités la mutation d'employés de l'Agence à des ministères ou organismes sous le régime de la Loi sur l'emploi dans la fonction publique si elle estime que les principes du programme de dotation de l'Agence sont incompatibles avec les principes régissant la dotation sous le régime de cette loi.
(3) Lorsqu'elle les admet à postuler un emploi en son sein, l'Agence traite les fonctionnaires, au sens de la Loi sur l'emploi dans la fonction publique, comme s'ils étaient ses employés et avaient les mêmes recours que ceux-ci.
56. (1) La Commission de la fonction publique peut préparer - ou faire préparer - à l'intention de l'Agence un rapport sur la conformité du programme de dotation avec les principes énoncés dans le résumé du plan d'entreprise; elle envoie une copie du rapport au vérificateur général et au Conseil du Trésor.
(2) La Commission de la fonction publique peut vérifier périodiquement la compatibilité des principes du programme de dotation de l'Agence avec les principes régissant la dotation sous le régime de la Loi sur l'emploi dans la fonction publique et faire état de ses conclusions dans son rapport d'activités.
57. Les articles 32 à 34 de la Loi sur l'emploi dans la fonction publique s'appliquent aux commissaire, commissaire adjoint et employés de l'Agence. À ces fins, les commissaire et commissaire adjoint sont réputés être des administrateurs généraux, et les employés, des fonctionnaires, au sens de l'article 2 de cette loi.
58. (1) Par dérogation à l'article 56 de la Loi sur les relations de travail dans la fonction publique, l'Agence est la seule autorité habilitée à conclure, avec l'agent négociateur d'une unité de négociation composée d'employés de l'Agence, une convention collective applicable aux employés de cette unité.
(2) L'Agence doit préalablement consulter le Conseil du Trésor relativement à son plan de ressources humaines, notamment en ce qui a trait au total des augmentations des salaires et des avantages des employés.
59. Après sa troisième année complète de fonctionnement, et périodiquement par la suite, l'Agence fait préparer par une personne ou un organisme, sauf elle-même ou ses administrateurs ou employés, une évaluation des recours qu'elle offre ou administre dans le cadre de la gestion de ses ressources humaines. Elle inclut un résumé de l'évaluation dans son rapport d'activités.
ISSUES
[64] The Applicant raises the following issues:
What is the standard of review concerning the decision of the Agency to create the staffing recourse procedure?
Must the Agency's staffing recourse mechanism adhere to the rules of natural justice in order to be reasonable?
Does the Agency's staffing recourse mechanism violate the rules of natural justice?
Is the Agency's staffing recourse mechanism unreasonable because it does not allow the decision maker to address all relevant considerations?
Is the Agency's staffing recourse mechanism unreasonable because of the absence of sufficient remedial power?
ANALYSIS
Availability of Judicial Review
[65] In this application, the Court does not have before it an adjudicative decision or order in the sense of a set of reasons that can be subjected to review. There is only the Program itself, the product of a non-adjudicative decision that was made in consequence of the powers delegated to the Agency under s. 54(1) of the CCRAA.
[66] This fact immediately raises two fundamental issues: whether the Program and, in particular, its recourse mechanism as implemented by the Agency are reviewable by this Court and, if they are, what standard of review is appropriate.
[67] It has often been pointed out that, while all statutory grants of power are, in theory, legally limited and subject to review, there may well be practical considerations that dissuade a review court from interfering.
[68] The somewhat heterogenous case law on this issue shows the Court adopting political, policy and legislative reasons as grounds for not interfering, but a general, guiding principle is hard to glean.
[69] Gibson J., for instance, wrestled with this issue in Alberta v. Canada (Wheat Board), [1998] 2 F.C. 156 with particular reference to the meaning of "matter" under ss. 18.1(1) of the Federal Court Act and related Federal Court Rules, 1998. In that case, Gibson J. was confronted, inter alia, with an application for judicial review of the Canadian Wheat Board's grain delivery program and there was a concern as to whether that program was a "matter" in respect of which judicial review should lie.
[70] After a thorough review of the relevant authorities and competing arguments, Gibson J. concluded that the grain delivery program in that case was beyond the reach of judicial review. When the case came before the Federal Court of Appeal, the Court considered and denied the appeal on the merits. However, the Court of Appeal also found it understandable "that the motions judge who dealt with the originating notice of motion, found that the appellants lengthy propositions lacked specificity and could not be the object of judicial scrutiny." See Alberta v. Canada (Canadian Wheat Board) (1998), 234 N.R. 74 at p. 78.
[71] In the case at bar, of course, the Program is the staffing and recourse program created by the Agency pursuant to s. 54(1) of the CCRAA. The Program and its recourse provisions are somewhat complex but their impact is focussed on the auditors employed by the Agency. The Program is directed at the complementary needs of the Agency and its employees, so that it is not concerned with policy implementation in the same sense as was the grain delivery program in Alberta, supra. The scope of the Program, and the fact that it remains relatively untested, however, make it difficult to review in the absence of specific facts and decisions, and the way the Program has been put together through pre-adoption study and consultation means that it is not easily amenable to some forms of judicial review relief.
[72] In my opinion, however, the most troubling consideration in this case is the provision for on-going review of the Program that is contained in the CCRAA itself.
[73] Under ss. 56(1) of the CCRAA the Commission can report to the Agency on consistency issues and copy any report prepared to the Auditor General and the Treasury Board. Under ss. 56(2), the Commission may periodically review the compatibility of the principles governing the Program with those governing staffing under the PSEA and may report its findings in its annual report. Moreover, under s. 59, following its third full year of operations, and periodically after that, the Agency "must" have prepared, by a person or body other than the Agency, or a director or an employee of the Agency, an assessment of the recourse that the Agency provides or administers in its management of human resources, and the Agency "must" publish a summary of the assessment in its next annual report.
[74] In total, these provisions provide an on-going and fairly comprehensive means of reviewing the whole Program from the perspective of both the Agency's business objectives and the interests of employees who need effective recourse.
[75] My first concern is that Parliament has already provided a means for reviewing the Program per se, and its responsiveness to the interests of both employer and employee. This, in my opinion, seriously calls into question the appropriateness of this Court reviewing the Program at a fixed point in time for declaratory relief of the kind contemplated by the present application; an application that involves speculative consideration of issues rat