Vancouver, British Columbia, November 7, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JOHN GLOFCHESKIE, VORSHAL HANDA
and DON HORNING
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] John Glofcheskie seeks judicial review of the decision of an Independent Third Party Reviewer which found that the Canada Customs and Revenue Agency had not acted arbitrarily in taking “budget considerations related to geographic location” into account in staffing certain senior auditor positions in the Agency’s Toronto West Tax Service Office.
Background
[2] Mr. Glofcheskie is employed as a tax auditor at the AU-3 level in the Agency’s Toronto East Tax Service Office.
[3] On December 1, 2000, a Notice of Employment Opportunity was posted for Team Leader positions at the AU-4 level in the Agency’s Toronto West Tax Service Office. The Notice advised that the staffing process was open to Agency employees occupying positions in the Agency’s Southern Ontario Region.
[4] This process was intended to identify a pool of qualified candidates which could be drawn on in order to fill specific AU-4 positions, as the need arose.
[5] Insofar as placement criteria were concerned, the Notice indicated that individual placement decisions would be based upon one or more of a number of identified criteria, one of which was “budget considerations related to geographic location” (“BCRGL”).
[5]
[6] Other potential placement criteria included candidates’ ability to communicate orally and to make presentations, candidates’ knowledge of Agency initiatives, interpersonal skills, judgment and client service orientation, and candidates’ abilities as team players.
[7] Mr. Glofcheskie participated in the staffing process, and was found to meet the basic pre-requisites for participation in the process, including the geographic requirement that he be working in the Agency’s Southern Ontario Region.
[8] Mr. Glofcheskie was then invited to participate in the assessment phase of the process. After succeeding in the assessment phase, he became part of the pool of successful candidates awaiting placement in AU-4 positions at the Agency’s Toronto West Tax Service Office.
[9] In 2001, a number of candidates in the pool were selected for placement in positions at the Toronto West Tax Service Office. Mr. Glofcheskie was not one of them. Although the Toronto West Tax Service Office was evidently operating at a deficit at this time, budget considerations related to geographic location were not considered in relation to these placements, and not all of the successful candidates had been employed by the Toronto West Tax Service Office prior to being awarded an AU-4 position.
[10] Later in 2001, another group of candidates from the pool were selected for acting placements. This time, the BCRGL criterion was applied, and only candidates already working in the Toronto West Tax Service Office were placed in AU-4 positions. In May of 2003, these placements were made permanent.
[11] In the meantime, in April of 2003, Mr. Glofcheskie sought clarification with respect to the BCRGL criterion, and was advised that the Toronto West Tax Service Office could not add staff from outside the Office until its deficit had been eliminated. As a consequence, the BCRGL criterion was being applied, with the result that only candidates currently employed in the Toronto West Tax Service Office would be considered for placement.
[12] Mr. Glofcheskie then sought “individual feedback” with respect to the process, in accordance with the Agency’s staffing policies. At this time, he was advised that he had not succeeded in obtaining an AU-4 position as a result of the application of the BCRGL criterion.
[13] Mr. Glofcheskie then sought an Independent Third Party Review with respect to the Agency’s use of the BCRGL criterion, asserting that the Area of Selection for the AU-4 positions was Regional, that Agency budgets were allocated and administered on a regional basis, and that appointing him to an AU-4 position would not affect the Regional salary pool. Moreover, he would not have been entitled to any relocation expenses, as he already lived in the area.
[14] The review did not proceed right away, as the parties were awaiting the outcome of another case involving similar issues (the “Guinard” case). It was only after the decision in Guinard was handed down, and after the Agency’s application for judicial review of that decision was withdrawn, that Mr. Glofcheskie’s review went ahead, culminating in an October, 2005 decision by the Independent Third Party Reviewer.
The Independent Third Party Reviewer’s Decision
[15] The review of Mr. Glofcheskie’s case was carried out by an Independent Third Party Reviewer (“ITPR”), appointed in accordance with the Agency’s staffing policies.
[16] The ITPR accepted Mr. Glofcheskie’s submission that she was required to determine whether the Agency’s staffing decision to apply the BCRGL criterion was arbitrary, and not simply whether the decision was made in good faith.
[17] In this regard, the ITPR found that the Toronto West Tax Service Office faced significant budgetary constraints, that it was precluded from adding any salary monies to its budget until its deficit was eliminated, and that it was these budgetary concerns that led to the use of the BCRGL criterion. Moreover, the ITPR found that the Agency had been transparent in its use of this criterion.
[18] Furthermore, the ITPR determined that the AU-4 appointments had been made on the basis of other established job specific requirements, including ability to communicate orally, effective interpersonal skills, judgment, and ability to function as a team player.
[19] The ITPR also found that there had been no narrowing of the area of selection. In this regard, the ITPR found that while policies of general application should be followed, where a rationale for deviating from the policy is apparent, the failure to follow the policy is not arbitrary.
[20] The ITPR rejected Mr. Glofcheskie’s submission that the BCRGL criterion had been used arbitrarily as a screening tool. In the view of the ITPR, the Agency had to be allowed to respond to changing circumstances by applying appropriate criteria when the need to do so became apparent.
[21] The fact that a temporary regional reallocation of funds might have been possible would not have solved the Toronto West Tax Service Office’s budgetary crisis, given that these monies would eventually have had to be returned. While other options may have been available to the Toronto West Tax Service Office to address its budgetary deficit, the ITPR noted that her authority was limited to determining whether the procedure chosen was arbitrary.
[22] The ITPR refused to examine other AU-4 placements made by the Agency in 2001, 2002 and 2005, as they were separate processes that were not before her. Moreover, without the necessary background budgetary evidence, the ITPR found that consideration of these placements would be of limited assistance.
[23] Finally, the ITPR refused to consider whether Mr. Glofcheskie had been discriminated against on the basis of the office in which he worked, as this was not one of the enumerated grounds set out in the definition of “arbitrary”.
The Agency's Staffing Policy and Procedures
[24] In order to situate the issues raised by Mr. Glofcheskie’s application, it is first necessary to have some understanding of the Agency’s staffing policy and procedures, as they relate to the issues raised by this case.
[25] The Agency was established in 1999 and was originally known as the Canada Customs and Revenue Agency. Subsection 53(1) of the Canada Customs and Revenue Agency Act (CCRA), S.C. 1999, c. 17 (“CCRA”) vests in the Agency the exclusive right and authority to appoint its employees. Subsection 54(1) of the Act requires the Agency to "develop a program governing staffing, including the appointment of, and recourse for, employees".
[26] Staffing in the Agency is carried out in accordance with a Staffing Program established in accordance with section 54 of the CCRA. This program contemplates a three-stage process, when staffing is done through a pre-qualified process such as the one at issue in this case.
[27] The first of these stages is the Review of Pre-requisites, akin to a ‘screening-in’ process, involving the evaluation of candidates against a pre-determined list of pre-requisites which have been identified in the Notice of Job Opportunity.
[28] The Agency’s Staffing Program includes a Directive on Area of Selection which prescribes minimum areas of selection for certain senior-level positions. It is common ground that for a Tax Auditor position at the AU-4 level, this Directive mandates that positions be available to individuals employed in the Agency Region in issue.
[29] The Directive does provide management with some flexibility in this regard, specifying that “under exceptional circumstances”, “Authorized Persons may restrict the prescribed areas of selection”.
[30] There is no suggestion in this case that “Authorized Persons” were involved in limiting the prescribed area of selection to the Toronto West Tax Service Office based upon the existence of “exceptional circumstances”.
[31] Once candidates have satisfied the pre-requisites, they then proceed to the assessment stage, which involves the comparison of the candidates’ competencies and qualifications against established assessment criteria. Those candidates determined to be qualified then become part of the pool from which placements can ultimately be made.
[32] The final stage in the process is the placement phase, which is the point at which selection is made from among the qualified candidates in the pool “based upon established job requirements linked to business needs”.
[33] The Placement Stage provisions contained in Annex E1 of the Agency’s Staffing Program Guidelines provides that placement criteria can include, amongst others things, the geographic location of the candidates. That is, in deciding who to hire from the pool, Agency management may base their selection on a “local preference linked to budgetary constraints”.
[34] With this understanding of the Agency’s staffing policies and procedures, I turn now to consider the issues raised by Mr. Glofcheskie on this application.
Issues
[35] Mr. Glofcheskie says that the ITPR’s decision is flawed because:
1. The ITPR failed to make the findings necessary to support the conclusion that the Agency’s use of the BCRGL criterion complied with the Agency’s own policies on Area of Selection and Transparency;
2. The ITPR failed to consider Mr. Glofcheskie’s allegation that the BCRGL was applied in a manner that arbitrarily distinguished amongst candidates;
3. The ITPR made an erroneous finding of fact without regard for the material before her when she concluded that the use of the BCRGL criterion was necessitated by the Toronto West Office’s budgetary problems; and
4. The ITPR erred in failing to follow her mandate by ignoring the ITPR’s decision in the Guinard case – a case involving virtually identical facts, where the ITPR reached the opposite conclusion to that reached by the ITPR in this case.
Standard of Review
[36] The parties are in agreement that the decision of the ITPR as to whether the Agency had acted arbitrarily in applying the BCRGL criterion is one that is reviewable against the standard of reasonableness.
[37] In Canada (Customs and Revenue Agency) v. Kapadia, [2005] F.C.J. No. 2086, 2005 FC 1568, Justice Kelen undertook a pragmatic and functional analysis in relation to a decision of an Independent Third Party Reviewer dealing with a question of arbitrary treatment at the placement stage. Justice Kelen concluded that such a decision should be reviewed against the standard of reasonableness.
[38] I am in agreement with this conclusion, and adopt Justice Kelen’s pragmatic and functional analysis as my own.
Analysis
[39] I do not intend to address the first three issues raised by Mr. Glofcheskie, as I am satisfied that in the particular circumstances of this case, the failure of the ITPR to make any specific reference to the Guinard decision in her reasons amounts to a reviewable error, with the result that the decision must be set aside.
[40] In coming to this conclusion, I note that the Agency’s ITPR Guidelines provide that each case is to be considered on its own merit, and that previous ITPR decisions do not have any precedential value. That said, the ITPR Guidelines also provide that ITPRs are required to “review relevant decisions that are relevant to the case”.
[41] This only makes sense, as it would be difficult to maintain the equal and fair treatment in the staffing process promised by the Agency if each ITPR was able to simply take his or her own idiosyncratic approach to issues, without any consideration of decisions of other ITPRs dealing with similar questions.
[42] That is not to say that an ITPR is bound by earlier relevant decisions, but rather, that the ITPR must at least review those decisions prior to reaching his or her own decision on the point.
[43] The first question, then, is whether the decision in Guinard was relevant to Mr. Glofcheskie’s case.
[44] Like Mr. Glofcheskie’s case, Guinard also involved the application of a more restrictive geographical criterion at the placement stage than was specified at the Pre-requisite stage.
[45] That is, like Mr. Glofcheskie’s case, the pre-requisites for the position in question in Guinard stipulated that the process was open to anyone working in a specific Agency region, and like Mr. Glofcheskie’s case, a narrower geographic limitation was applied at the placement stage, for budgetary reasons.
[46] It is true that unlike the situation in Mr. Glofcheskie’s case, in Guinard, the Notice of Employment Opportunity did not specify that the BCRGL criteria could be used as a criterion at the placement stage.
[47] However, a close review of the Guinard decision discloses that the decision did not turn on the Agency’s failure to include such a criterion in the Notice of Employment Opportunity. Rather, the ITPR in Guinard was of the view that given the mandatory minimum area of selection specified in the Directive on Area of Selection, in the absence of “exceptional circumstances”, it was simply not open to the Agency to reduce the area of selection to an area smaller than that set out in the Notice of Employment Opportunity at the placement stage of the process. As such, the decision was clearly relevant to the issues before the ITPR in this case.
[48] It is also clear from the conduct of the parties in this case that Guinard was clearly recognized by both sides as being highly relevant to Mr. Glofcheskie’s case, notwithstanding the factual difference identified above.
[49] That is, although the Agency now tries to distinguish the facts in Guinard from those in Mr. Glofcheski’s case, both the Agency and Mr. Glofcheskie clearly understood and accepted that the ITPR’s decision in Guinard would be highly relevant to Mr. Glofcheskie’s case, as is evidenced by their agreement that Mr. Glofcheskie’s case be held in abeyance pending a final decision in Guinard.
[50] Moreover, it is not now open to the Agency to argue the Guinard case ceased to be relevant to Mr. Glofcheskie’s case, given the reasoning of the ITPR in that case. Not only did the Agency never suggest that Guinard was no longer relevant to Mr. Glofcheskie’s case in light of the ITPR’s reasoning, indeed the ongoing relevance of the case was clearly recognized and acknowledged by the parties, resulting in their agreement to continue holding Mr. Glofcheskie’s case in abeyance, pending the final resolution of the Guinard case by the Federal Court.
[51] Indeed, it was only when the Agency withdrew its application for judicial review of the ITPR’s decision in Guinard that Mr. Glofcheskie’s case proceeded.
[52] Having thus determined that the Guinard decision was relevant to Mr. Glofcheskie’s case, the next question is whether the failure of the ITPR to make any reference to the Guinard decision in her reasons means that the decision was not reviewed by the ITPR, as is directed by the Agency’s ITPR Guidelines.
[53] The Agency points to the fact that a copy of the Guinard decision was in the Certified Tribunal Record, and that, as a result, it must have been before the ITPR when she made her decision. According to the Agency, it cannot be inferred from the failure of the ITPR to specifically mention Guinard in her decision that it was not considered by her in her deliberations.
[54] It is true that adjudicators are generally presumed to have considered all of the evidence before them, and I accept that this general presumption should extend to jurisprudence contained in a tribunal record.
[55] While such a presumption does exist, where the evidence in question is of central importance to the issues at hand, the failure of an adjudicator to refer to such may lead to the inference that the evidence has been ignored: see, for example, Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at ¶ 14 – 17.
[56] It was open to the ITPR to try to distinguish the findings of the ITPR in Guinard, or to simply disagree with them. However, based upon the particular facts of this case, I find that the Guinard decision was of central importance to the issues in Mr. Glofcheskie’s case, and to the parties themselves. In these circumstances, the failure of the ITPR to even mention it in her decision was unreasonable.
[57] Moreover, the failure of the ITPR to discuss the Guinard decision in her reasons raises a real question as to whether the decision was indeed reviewed by her at all. This in turn raises a concern as to whether she properly discharged the mandate conferred on her by the ITPR Guidelines to review all relevant decisions.
[58] As the ITPR’s decision cannot withstand a somewhat probing analysis, it must be set aside.
[59] My conclusion in this matter does not mean that an ITPR will have to make at least passing reference in his or her reasons to every decision of arguable relevance to the situation before him or her, failing which the decision could be set aside on judicial review.
[60] However, where, as here, there is a decision that is clearly relevant to the issues raised by the case in question, a relevance which has clearly been recognized and acknowledged by the parties, the failure of the ITPR to even mention the decision in her reasons was unreasonable, and amounts to a reviewable error.
Conclusion
[61] For these reasons, the application is allowed, with costs. The decision of the ITPR is set aside, and the matter is remitted to another ITPR for re-determination, with the direction that the new ITPR review and consider the decision of ITPR Marszewski in Guinard in his or her deliberations.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this application is allowed, with costs. The decision of the ITPR is set aside, and the matter is remitted to another ITPR for re-determination, with the direction that the new ITPR review and consider the decision of ITPR Marszewski in Guinard in his or her deliberations.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2037-05
STYLE OF CAUSE: JOHN GLOFCHESKIE ET AL. v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 31, 2006
APPEARANCES:
Charlene Wiseman FOR THE APPLICANT
Lyle Kanee
Alexander Gay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sack Goldblatt Mitchell LLP
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada