Burstyn v. Canada (Canada Customs and Revenue Agency)

Burstyn v. Canada (Canada Customs and Revenue Agency)
Court (s) Database
Federal Court Decisions
Date
2006-06-13
Neutral citation
2006 FC 744
File numbers
T-1500-05
Notes
Digest
Decision Content
Date: 20060613
Docket: T-1500-05
Citation: 2006 FC 744
BETWEEN:
BARRY BURSTYN
Applicant
and
CANADACUSTOMS AND REVENUE AGENCY,
JOHN JRAIGE and RON GALBRAITH
Respondents
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.
[1] Can the respondent agency, having failed to seek judicial review of an Independent Third Party Review (ITPR) decision, achieve that objective in this proceeding, where the agency's refusal to implement the ITPR decision is being challenged? I have determined that, on the facts and circumstances of this particular matter, the answer is no.
I. Background
[2] Mr. Burstyn is an employee of the Canada Customs and Revenue Agency, now the Canada Revenue Agency (the agency). When a competition opened to establish a pool for permanent "Large File Case Auditor" positions in the agency's Windsor office, he applied. The competition closed July 31, 2002 and the results were released on October 28, 2002. Placements were not made right away. Rather, acting positions were filled on April 24, 2003 and permanent placements were made on December 1, 2003. Had Mr. Burstyn been successful, his employment classification would have changed from AU03 to AU04. The agency determined that Mr. Burstyn did not meet the minimum requirements to be placed in the position.
[3] Mr. Burstyn complained that the agency's placement of the two successful candidates (the incumbents) was arbitrary and inconsistent with the agency's staffing principles of fairness and transparency. He maintained that he should not have been passed over for the position. Under the agency's Staffing Program and Directives on Recourse for Staffing, he attended individual feedback sessions in March and April of 2004. Ultimately, his complaint made its way to the ITPR.
[4] In accordance with Mr. Burstyn's request, and the consent of the agency, the individual assigned to conduct the ITPR (the reviewer) decided to proceed by way of an oral hearing. A date was scheduled. Subsequently, the agency's manager of Human Resources, Southwest Sector (the manager) informed the reviewer that only a paper review, complemented by a telephone conference, was necessary. After hearing from the parties, the reviewer concluded that, in view of the issues involved (including credibility), an in-person hearing was preferable and she so advised the parties. The agency, through the manager, informed the reviewer that it would not participate in the oral process and that the reviewer could make a decision on the basis of the information that it (the agency) had already provided. The reviewer responded by acknowledging that there was no requirement to attend and reiterating her concern that, for a "balanced and complete view of the matter", it was preferable if all parties were present. The agency refused and asserted that it had included a response to Mr. Burstyn's list of allegations and "the [r]eviewer may make her decision on the information already communicated to the parties as well as the additional information contained herein".
[5] The hearing was held on February 4, 2005. The agency did not appear. The reviewer heard evidence (from Mr. Burstyn, the incumbents, and a retired auditor) as well as submissions (from the incumbents and an employment relations officer on behalf of Mr. Burstyn). By decision dated March 10, 2005, the reviewer concluded that the process was seriously flawed; the decisions leading to the exclusion of Mr. Burstyn from placement in a permanent AU04 position treated him in an arbitrary manner; and the agency's process offended the staffing principles of fairness and transparency. Relevant information was not taken into account and irrelevant information was used to put Mr. Burstyn in an inequitable position compared to the other candidates. The placements were not made in accordance with the established policy of the Staffing Program.
[6] The reviewer then reviewed the range of possible corrective measures available to her and concluded, in the unusual circumstances of the case, that the only effective way to correct the error in the process was "to recommend that [Mr. Burstyn] be given a permanent AU04 position in the Windsor office". The reviewer left it to the agency to determine whether to implement the recommendation through revocation of one of the placements in question. The reviewer concluded that, to complete the correction of the errors (found to be cumulative), Mr. Burstyn should be compensated for any losses arising from the errors, including the difference between AU03 and AU04 salary from the period of the original placements to the date of Mr. Burstyn's assignment to a permanent AU04 position.
[7] On May 3, 2005, the manager forwarded an email to Mr. Burstyn's employment relations officer indicating that the agency was not prepared to implement the ITPR decision. The manager further indicated that the agency was prepared to act according to the "process described in the memo and will commence this action shortly". The memo, attached to the email and authored by the manager, stated that the reviewer had gone beyond the Guidelines in her recommendation; the matter had been discussed with the Office of Dispute Management; and "another manager will be solicited to review the file and make the decision regarding the placement". The memo concluded with a comment that the agency "will proceed with whatever decision is made by the second manager".
[8] On the same day, the employment relations officer emailed the reviewer and enclosed the manager's message. The employment relations officer requested that the reviewer "clarify her decision and corrective action". The reviewer informed the manager regarding the request and advised that she was prepared to provide clarification. She invited further comments (beyond the memo) from the agency. Although it is not altogether clear, it appears from the record that the manager then forwarded the reviewer's message to the Office of Dispute Management. The latter office responded to the reviewer by referring to a provision from the ITPR Guidelines dealing with clarification.
[9] On August 8, 2005, the reviewer provided clarification. In doing so, the reviewer stated that she chose not to "recommend having another manager involved in the decision" because of the lack of evidence from the agency sufficient to answer the applicant's case, which was consistent with actual bias. After referring to the Guidelines, the reviewer commented that, where the errors are cumulative, correction may require more detailed direction than otherwise, particularly in circumstances where there was no evidence from the employer with respect to its perception of the cause of the errors. The reviewer reiterated her recommendations.
[10] On August 11, 2005, the employment relations officer forwarded correspondence to the Large File Case Manager demanding that the employer implement the decision of the ITPR. By correspondence, dated August 25, 2005, the Director of the Windsor Tax Services Office acknowledged receipt of the August 11th letter and stated:
I have given careful consideration to the document [the reviewer] issued on August 8, 2005 clarifying her ITPR decision of March 10, 2005. After consultation with Human Resources, the Agency maintains the position that the reviewer has the authority to request corrective measures within a range of options clearly specified in the ITPR Guidelines:
· Order correction of the error in process
· Recommend revocation of the appointed employee
· Recommend having another manager involved in the decision
The Agency will not implement the corrective measures recommended by [the reviewer] as they are not within the above parameters. The Agency privileges this approach until the Federal Court of Canada renders a decision on this issue. The Agency has currently two cases before the said Court to review the reviewer's authority.
[11] On September 1, 2005, Mr. Burstyn filed an application for judicial review of the agency's refusal to implement the decision of the ITPR. The supporting affidavit of the employment relations officer details the chronology of events. Exhibited to the affidavit are: Exhibit "A", copies of the Staffing Program; Exhibit "B", the Staffing Program Directives on Recourse for Staffing (Annex L); Exhibit "C", the Agency Conflict Management System Guidelines for Submitting and Processing a Request for an Independent Third Party Review (ITPR); Exhibit "D", the Canada Revenue Agency (CRA) Independent Third Party Review (ITPR) Processing Directive; Exhibit "E", the ITPR decision dated March 10, 2005; Exhibit "F", the team leader's email of May 3, 2005, with memo attached; Exhibit "G", the emails of May 3rd and 4th regarding clarification; Exhibit "H", the ITPR clarification dated August 8, 2005; Exhibit "I", the August 11th correspondence of the employment relations officer; and Exhibit "J", the August 25th refusal letter.
[12] The affidavit of the team leader in the Human Resources Division of the agency is filed in response. Objection is taken to Exhibit "D" to the supporting affidavit on the basis that it was not in existence in March 2005 when the ITPR decision was rendered. The team leader deposes that on May 3, 2005, he advised [the reviewer] that the corrective measures adopted by her were "outside her jurisdiction and that the [a]gency would direct the file to another [m]anager for a decision". He further deposes that he now realizes (the affidavit was sworn on October 7, 2005) that the corrective measures that he proposed "were not possible in the face of the [r]eviewer's seriously flawed decision". I note, for the record, that the "team leader" who swore the responding affidavit and the "manager" referred to previously are one and the same person.
II. The Arguments
[13] The arguments of both Mr. Burstyn and the agency, while contained in their written memoranda of fact and law, were focussed more narrowly at the hearing due to the intervening decision of this court in Attorney General of Canada v. Andrée Gagnon, 2006 FC 216 (Gagnon). The respective positions can be succinctly stated.
[14] Mr. Burstyn asserts that it is not open to the agency to disregard the ITPR decision. He claims that it is the court's duty to insist that organizations respect the decisions of tribunals unless those decisions are appropriately challenged. The agency's position on this application amounts to a collateral attack. Because the agency took the position that the reviewer's order for correction in the process was in excess of jurisdiction, it was incumbent on the agency to initiate an application for judicial review in relation to the ITPR decision. Having failed to do so, it cannot now, on this application, seek to attack the decision.
[15] Mr. Burstyn bolsters his argument by reference to article P5.0-14 of the Staffing Program, which provides that recourse for staffing will be governed by the Directive on Recourse for Staffing. Article 6(c) of the Directive states that the agency will be bound by the decision of the ITPR. To the extent that a Guideline may differ from a Directive, the Directive must govern.
[16] Relying on Sherman v. Canada(Customs and Revenue Agency)(2005), 269 F.T.R. 294 (F.C.) (Sherman) and Nanjee v. Canada(Attorney General)(2005), 144 A.C.W.S. (3d) 667 (F.C.) (Nanjee), Mr. Burstyn says, absent an application for judicial review, the agency is bound by the ITPR decision. Mr. Burstyn observes, by analogy to contempt proceedings, that a belief that an order is illegal, even if well-founded, does not provide a defence to contempt. The agency, according to Mr. Burstyn, had a choice: bring a judicial review application or live with the decision. Gagnon does not assist the agency because, there, it sought judicial review.
[17] The agency views matters differently. It maintains that the doctrine of collateral attack is invoked only in those instances where a party is attempting to challenge the validity of a binding order in the wrong forum. The validity of the order comes into question in separate proceedings when the party has not used the direct attack procedures that were open to it. Aside from a passing reference in the Sherman case, the Federal Court jurisprudence is silent regarding collateral attack. Insofar as the Nanjee decision is concerned, it was guided by different legislation and cannot be relied upon in this matter.
[18] The agency takes no issue with the underlying reasons of the reviewer. It emphasizes that the only problem is that the reviewer's order exceeds her jurisdiction. The Policy, Directives, and Guidelines all stem from sections 53 and 54 of the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 (the Act). Relying on Gagnon, the agency says that the Policy, Directives and Guidelines are tantamount to regulatory instruments. The reviewer does not have jurisdiction under the Policy or Directives to issue a specific remedy. The agency contends that it would be most unfortunate if the court were to give effect to the ITPR order where "the agency simply dropped the ball".
[19] Further, the agency contends that there are two avenues available to it to obtain judicial review of the ITPR decision. First, the agency can apply for judicial review. Second, the agency can defend any application instituted by Mr. Burstyn by demonstrating that the ITPR decision is wrong. It is said that once the door is unlatched under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, anything is possible under subsection 18.1(3). To adopt a "surgical" approach and find that it is the agency's "refusal to implement" that is the subject of the judicial review application, without examining the merits of the ITPR decision, would work an injustice. According to the agency, it is not open to the court to ignore the ITPR decision without examining the well-foundedness of it on the merits.
III. The Concessions
[20] As noted, the agency has no quarrel with the underlying reasons of the reviewer. Its only issue is with the recommendation for correction of the error in the process. Although not expressed in these terms, I take that concession to mean that the agency does not dispute that the reviewer had jurisdiction to conduct the inquiry and to order a remedy. The agency also concedes that it should have applied for judicial review and declined to do so because it was awaiting the outcome in Gagnon. In retrospect, the agency considers its chosen course of action to have been taken in error. It does not suggest that its decision not to seek judicial review in this matter was anything other than deliberative.
IV. The Legislation and the Staffing Program
[21] The agency is established as a body corporate under subsection 4(1) of the Act and pursuant to subsection 4(2) is, for all purposes, an agent of Her Majesty in Right of Canada. It is responsible for supporting the administration and enforcement of the program legislation (paragraph 5(1)(a) of the Act). The agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business (subsection 53(1) of the Act) and it must develop a program governing staffing, including the appointment of, and recourse for, employees (subsection 54(1) of the Act).
[22] For completeness, the pertinent provisions of the Staffing Program, the Directives, and the Guidelines are attached to these reasons as Schedule "A". The Guidelines exhibited as "D" to the affidavit in support of the application, while in effect on August 25, 2005 (the date of the refusal to implement), relate to process (of the review procedure) and were not in effect at the time of the ITPR. While the document labelled Exhibit "D" does, in some respects, alter the content of the previous Guidelines (I will refer to them later in these reasons), in large part, the revised edition is a refinement of the earlier version. The revised Guidelines are not included in Schedule "A".
V. Analysis
[23] Although there is no authority directly on point, the nature and effect of the decisions of administrative agencies have been the subject of judicial comment.
[24] Mr. Justice Létourneau, writing for the Federal Court of Appeal in Grenier v. Canada (2005), 344 N.R. 102 (F.C.A.) (Grenier) stated unequivocally, at paragraph 19, that a decision of a federal agency retains its legal force and authority and remains juridically operative and legally effective as long as it has not been invalidated.
[25] In Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (Danyluk), Mr. Justice Binnie, writing for a unanimous court, discussed the principles of issue estoppel and collateral attack and their relevance to the decisions of administrative tribunals. He commented that "an aspect of the judicial policy favouring a finality to litigation is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it". Justice Binnie went on to explain that the rules were initially developed in the context of prior court proceedings, but have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals.
[26] Speaking in terms of jurisdiction (in relation to administrative decision makers), Justice Binnie stated that once it is determined that the decision maker was capable of receiving and exercising adjudicative authority and that the particular decision was one that was required to be made in a judicial manner, the decision does not cease to have that character ("judicial") because the decision maker erred in carrying out his or her functions. If the conditions precedent to the exercise of a judicial jurisdiction are satisfied, subsequent errors in its exercise, render the decision voidable, not void. These remarks constitute an affirmation of earlier comments made by Mr. Justice Beetz, in Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at p. 585 where Justice Beetz stated:
In the case at bar, it cannot be doubted that the committee of the council had jurisdiction to hear and decide upon appellant's application or memorial. There was no want of jurisdiction. In the exercise of this jurisdiction, the committee of the council erred in failing to observe the rules of natural justice. While it can be said in a manner of speaking that such an error is "akin" to a jurisdictional error, it does not in my view entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply renders the decision of the committee voidable at the instance of the aggrieved party and the decision remains appealable until quashed by a superior court or set aside by the senate.
[27] There is no issue taken with the jurisdiction of the reviewer to hear and decide Mr. Burstyn's recourse complaint. Nor is there any dispute that the reviewer was exercising adjudicative authority to determine the matter. Article P5.09 of the Staffing Program defines the ITPR as "the review of an individual's concern by a person external to the [agency] resulting in a binding and non-precedent-setting decision". The definition is repeated, verbatim, in the Annex L Directives. With the exception of the reviewer's incapacity to subpoena witnesses or documents, the ITPR process has all of the trappings associated with a judicial or quasi-judicial process. I entertain no doubt that the ITPR process culminates in a decision of a "judicial" character.
[28] In Danyluk, the "complaint" in issue fell under the Ontario Employment Standards Act, R.S.O. 1990, c. E.14, in relation to unpaid wages, including commissions. Danyluk, in precise terms at paragraph 50, states that employees and employers should be able to rely on the determinations of the employment standards officer unless steps are taken promptly to set them aside. In discussing the question of whether an administrative decision can provide the basis for an estoppel, the passage at paragraph 51 reads:
In summary, it is clear that an administrative decision which is made without jurisdiction from the outset cannot form the basis of an estoppel. The conditions precedent to the adjudicative jurisdiction must be satisfied. Where arguments can be made that an administrative officer or tribunal initially possessed the jurisdiction to make a decision in a judicial manner but erred in the exercise of that jurisdiction, the resulting decision is nevertheless capable of forming the basis of an estoppel. Alleged errors in carrying out the mandate are matters to be considered by the court in the exercise of its discretion. This result makes the principle governing estoppel consistent with the law governing judicial review in Harelkin, supra, and collateral attack in Maybrun, supra.
[29] In Grenier, Justice Létourneau explained, in detail, the rationale underlying the legislated time limit within which an application for judicial review must be commenced. He also explained that the limitation exists in the public interest, specifically with respect to the finality of decisions. At paragraph 31 of Grenier, Justice Létourneau stated that the principle of the finality of decisions likewise requires that, in the public interest, the possibilities for indirect challenges of an administrative decision be limited and circumscribed, especially when Parliament has opted for a procedure for direct challenge of the decision within defined parameters. His comments were made in the context of collateral attack in another forum. He refers to Budisukma Puncak Sendirian Berhad v. Canada (2005), 338 N.R. 75 (F.C.A.) (Berhad), a case where the owners of a vessel were suing the Crown following an administrative decision by two inspectors to order the seizure of their vessel, and specifically to paragraphs 61, 62, 65 and 66 of that authority.
[30] At paragraph 62 of Berhad, there is reference to R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 (Maybrun), an authority also referred to by Mr. Justice Binnie in Danyluk. The Federal Court of Appeal states in paragraph 62:
...Although the circumstances of that case differ slightly from those in the case at bar, the conclusions reached by the Supreme Court are nevertheless relevant to the present issue. If an accused, who has a right to full answer and defence, is not permitted in a penal proceeding to use as a shield a collateral challenge to the administrative order that is the basis for the charge that he faces, it seems to me that, in similar circumstances, a party should be discouraged from employing a collateral attack as a sword in a civil proceeding of the kind that the respondents initiated.
[31] The noted authorities, as I have previously acknowledged, do not deal directly with the situation that is before me. The discussions to which I have referred regarding collateral attack relate to circumstances where the attack arose in a forum other than that in which the impugned decision originated. Nonetheless, in my view, many of the propositions, extrapolated, are relevant to this matter.
[32] To ascertain the intent of the recourse package, regard must be had to its contents. The Staffing Program addresses Recourse for Staffing. Recourse is to provide the opportunity for individuals to raise concerns related to staffing and to have these concerns addressed in a timely matter. The Staffing Principles state, among other things, that staffing decisions are to be free from political and bureaucratic influence and are to be equitable, just, objective and transparent. Communication should be open, honest, respectful, timely and clearly understood. Recourse mechanisms include individual feedback, decision review and ITPR, depending on the nature of the staffing activity.
[33] Individual feedback is mandatory before proceeding to other forms of recourse. It is not merely a recourse mechanism; it is a key element in the career management process of the agency, allowing employees to receive input on development needs. The Staffing Program provides that Recourse for staffing will be governed by the "Directive on Recourse for Staffing".
[34] The Annex L "Directives on Recourse for Staffing" begin with a listing of program statements that, in the main, repeat those contained in the recourse section of the Staffing Program. In Annex L, a definition is provided for each level of recourse. As noted earlier in these reasons, the definition for ITPR is "the review of an individual's concern by a person external to the [a]gency, resulting in a binding and non-precedent-setting decision".
[35] ITPR applies to: permanent promotions without a selection process; selection process/pre-qualified pool placement decisions for permanent promotions; and entry (from within the agency) into an apprenticeship program.
[36] Recourse, at all levels, is available on grounds of arbitrary treatment of the employee. Arbitrary is defined as: "[i]n an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e. the difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion, or union affiliation)".
[37] Authorized persons are accountable for taking appropriate corrective measures in a timely manner. An employee seeking ITPR must submit a written request on the prescribed form within seven days of receiving individual feedback.
[38] The Guidelines with respect to ITPR appear to be an extract from a larger document entitled "Agency Conflict Management System". The Guidelines are concerned primarily with process and time limits. The reviewer is selected from a pre-established roster by the Office of Dispute Management. The reviewer must issue an "all-inclusive final and binding decision in writing within ten (10) calendar days after the final exchange of information between the participants and the reviewer".
[39] When applicable, the reviewer is to "specify corrective measure as per the range of possible measures detailed in Appendix II". The range of corrective measures in Appendix II in relation to staffing are: order correction of error in process; recommend revocation of appointed employee; recommend involving another manager in the decision. The revised Guidelines (not in effect at the time of the ITPR) do not contain this provision. Rather, they state that the reviewer specifies "which of the following corrective measures apply" and in relation to staffing say: "According to Agency Staffing Policy".
[40] The Guidelines also contain a section entitled "post-review", which provides that: "[t]he appropriate level of management is responsible to implement the corrective measures issued by the reviewer, in as much as these are contained within the authority given to the reviewer in this area, in a reasonable time frame, and to provide timely feedback to the ODM (Office of Dispute Management) on actions taken". The manager is required to provide a written rationale to the Resourcing and Career Management Division within the Human Resources Branch, in the event the corrective measures are not implemented in whole or in part. This provision, too, is missing from the revised Guidelines.
[41] It is evident that the intent behind the recourse process is to provide for a timely resolution of staffing issues. It is significant that the reviewer who conducts the ITPR is a person external to the agency. There is no provision for an appeal of the ITPR decision.
[42] Here, there is no debate regarding the reviewer's jurisdiction to decide Mr. Burstyn's complaint. In accordance with the reasoning in Danyluk, if the reviewer stepped outside of that role, along the way or near the end, she did not lose jurisdiction for all purposes (paragraphs 48 and 51). However, there being no appeal provision, the decision would be subject to impeachment on judicial review. Consequently, when the ITPR decision is adverse to the employee, the only recourse is an application for judicial review of the decision. Should it be otherwise for the agency? For a variety of reasons, I think not.
[43] Whether the reviewer exceeded her jurisdiction in making an order is a pure question of law. The agency applied for judicial review in two other cases involving the issue of what it considered to be an "excess of jurisdiction". It deliberately chose not to seek judicial review in this case, preferring instead to await the outcome of the other matters. Meanwhile, Mr. Burstyn, having requested recourse in March of 2004 and being the beneficiary of a positive decision from an objective third party reviewer, is left to his own resources while the agency, despite taking issue with the reviewer's order, does nothing.
[44] The Gagnon matter was not heard until January 30, 2006 and the decision was released on February 17, 2006. The "refusal" decision in this matter was rendered on August 25, 2005, following the ITPR clarification of August 11th. Arguably, this matter, had it proceeded to judicial review, could have come on for hearing very close to the time when Gagnon was heard. More importantly, the result in Gagnon was not available to the agency when its decision in relation to this matter was made.
[45] Further, the result in Gagnon does not necessarily guarantee a similar result in every case where "excess of jurisdiction" is argued. The facts and the impugned remedy in Gagnon are not the same as those that exist here. The reviewer described this situation as "unusual". The ITPR decision was highly critical of the agency. If ever there was a situation where the agency ought to have sought judicial review to address a legal error, rather than unilaterally make its own determination in that regard, this was such a case. As noted earlier, the agency, now, recognizes and acknowledges its error in this respect.
[46] In my view, the unilateral action of the agency (without the benefit of any jurisprudence on the issue) in the circumstances of this matter does nothing to enhance the credibility of its staffing program. On the contrary, it undermines it.
[47] To suggest, on this application, that I should now review the merits of the ITPR decision exacerbates the problem. The agency claims that to fail to do so would give credence to an unlawful decision. I do not see it that way. To repeat the proposition from Danyluk: if the conditions precedent to the exercise of a judicial jurisdiction are satisfied (as here) subsequent errors in its exercise render the decision voidable not void (paragraph 47). The only method, of which I am aware, of discrediting the ITPR decision is to apply for judicial review of it. This, the agency chose not to do.
[48] Mr. Burstyn's analogy of contempt proceedings is not totally inappropriate. At the hearing, I suggested to the agency's counsel that had an extension of time within which to commence an application for judicial review been sought, it would have been incumbent upon the agency to satisfy the criteria articulated in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.). Failure to satisfy the criteria would result in a dismissal of the motion thereby leaving a decision (that the agency viewed as "unlawful") as it stood, without ever having been subject to judicial review. I asked if such a scenario could give rise to an allegation that the court would be giving credence to an unlawful decision, but received no response. In my view, the agency misplaces the responsibility.
[49] In summary, the agency cannot use the back door to accomplish what it should have done through the front door. It ought to have applied for judicial review of the ITPR decision and it did not. It concedes this point. It cannot, now, on this application, obtain judicial review of the ITPR decision, on the merits. Rule 302 of the Federal Courts Rules, SOR/98-106 provides that unless the court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. No such order was requested or granted in this matter. The decision that is before me, and that is the subject of this application, is the decision refusing to implement the ITPR order.
[50] Judicial review of the "refusal" decision requires that I conduct a pragmatic and functional analysis to determine the applicable standard of review. I should mention that it is not at all clear to me who, in this case, determined that the ITPR recommendation was allegedly made in excess of jurisdiction. The Guidelines, in effect at the relevant time, appear to provide for a manager of a staffing unit to submit a written rationale to the Resourcing and Career Management Division within the Human Resources Branch where corrective measures are not implemented in whole or in part. I cannot ascertain, with certainty, if that happened. The email and memo from the manager (of Human Resources) does indicate that "we have reviewed the decision of [the reviewer]" and "the manager cannot implement the corrective measures". Further references to the "manager" in the memo appear to relate to a manager of a staffing unit.
[51] The responsive affidavit of the team leader (who is one and the same as the manager of Human Resources) indicates that he advised the reviewer that the corrective measures adopted by her were outside of her jurisdiction. He does not say that he was the person who made that decision.
[52] The correspondence of the director of the Windsor office, dated August 25, 2005, states that the director has given careful consideration to the August 8th clarification with respect to the ITPR decision of March 10, 2005. The author then refers to consultation with Human Resources and states that the agency maintains its position and will not implement the recommended measures because they are not within the parameters of the Guidelines.
[53] Since the refusal letter emanated from the director of the Windsor Tax Services Office, I will proceed on the basis that the director is the decision maker. I should also note that the decision under review is not whether the reviewer exceeded her jurisdiction, but whether the refusal to implement the ITPR recommendation is sustainable on the applicable standard of review.
[54] The submissions on the standard of review are scant. The agency considered this issue only in the context of the ITPR decision and it is not, as I have stated, the decision under review. There are four factors to be considered in the pragmatic and functional analysis.
[55] The first factor is the presence or absence of a privative clause or a statutory right of appeal. In this case, there is neither a privative clause nor a statutory right of appeal. In such circumstances, this is normally considered to be a neutral factor.
[56] The second factor is the expertise of the tribunal relative to that of the reviewing court on the issue in question. I do not know the director's area of expertise, if any, for I have not been provided any information in that regard. I am prepared to assume, from his title, that he has expertise in tax services and perhaps in relation to staffing practices. The issue in question - the propriety of the implementation of the ITPR recommendation - turns on a question of pure law. The director has no expertise (of which I am aware) relative to that of the court. Accordingly, this factor results in no deference owing to the director.
[57] The third factor is the purpose of the legislation and the provision in particular. In this case, it is the Staffing Program, the Directives and the Guidelines that relate to the staff recourse procedure. This package is designed to provide efficient and timely recourse to staff claiming to be aggrieved. The particular provision in question relates to a review, of the agency's process, by an independent, external third party. The recourse procedure is still in its infancy. There is nothing before me to suggest deference is owing to the director's perception, interpretation, or application of the recourse package generally or the ITPR specifically. This factor militates against deference.
[58] The nature of the question, as I see it, is whether it was open to the director to substitute his opinion for that of the ITPR and refuse to implement the reviewer's recommendation without the benefit of judicial guidance. No deference is owed on this factor.
[59] A balancing of the factors leads me to conclude that no deference is owed to the director in relation to this decision. The director's purported attempt to adjudicate and pronounce on the reviewer's exercise of jurisdiction, without expertise in such matters and without the benefit of jurisprudence in relation to this, or any, matter regarding the recourse procedure, renders his decision incorrect.
[60] If I am wrong in my conclusion with respect to the applicable standard of review and some deference is owed to the director, I nonetheless conclude that the decision is unreasonable for want of a proper analysis to support it. The director refers to one extract from the Guidelines, fails to refer to any other extracts that could potentially yield a different result, fails to consider whether there is ambiguity and fails to address the reasoning of the reviewer. In the absence of an analysis leading to the conclusion, the conclusion does not withstand a somewhat probing examination and consequently is unreasonable.
[61] In the result, the application for judicial review will be allowed and the decision of the director dated August 25, 2005 will be quashed. The applicant has requested costs and is entitled to them. Judgment will issue accordingly.
[62] At the outset, I stated that my determination is based on the facts and circumstances of this particular matter. I reiterate that comment here. The decision under review was made without the benefit of Gagnon and it has been judicially reviewed on that basis.
"Carolyn Layden-Stevenson"
Judge
Ottawa, Ontario
June 13, 2006
SCHEDULE "A" T-1500-05
CanadaCustoms and Revenue Agency Staffing Program
1.0 introduction
The purpose of the Staffing Program is to set the overall directions for staffing decisions in the Canada Customs and Revenue Agency (CCRA), for both EX' and non-EX positions.
1.1 Legal Authorities
1.1-1 The CCRA authority to develop its Staffing Program is set out in the CCRA Act (s.c. 1999, ch.17, s54) hereafter referred to as CCRAA.
1.1-2 The CCRA is subject to other legislation, including the Official Languages Act, Employment Equity Act, Canadian Human Rights Act, Access to Information Act,_Privacy Act and Public Service Staff Relations Act.
1.1-3 The CCRA Act (CCRAA s53) provides the Commissioner with authority to make appointments and to delegate this authority to managers or other appropriate persons (CCRAA s37).
1.1-4 The Board of Management may amend the Staffing Program as appropriate. However, the Board of Management authorizes the Commissioner to establish and amend directives as part of the Staffing Program.
1.2 Scope of the Staffing Program
1.2-1 Part I of the Staffing Program applies to staffing activities for all non-EX positions and is comprised of the following:
1. Program Components (Delegation and Accountability; Staffing Plan; Staffing Processes; Recourse for Staffing; Special Considerations; Official Languages Requirements; Post-appointment Situations; Fraudulent Practices; Monitoring and Evaluation)
CanadaCustoms and Revenue Agency Staffing Program
2. Any staffing Directi