Docket: T-1697-13
Citation:
2015 FC 10
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 6, 2015
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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MARCELLE LUSSIER
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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JUDGMENT AND REASONS
I.
Preliminary
[55] Effective decision-making by
administrative agencies often involves striking a balance between general rules
and the exercise of ad hoc discretion or, to put it another way, between the
benefits of certainty and consistency on the one hand, and of flexibility and
fact-specific solutions on the other. Legislative instruments (including such
non-legally binding “soft law” documents as policy statements, guidelines,
manuals, and handbooks) can assist members of the public to predict how an
agency is likely to exercise its statutory discretion and to arrange their
affairs accordingly, and enable an agency to deal with a problem
comprehensively and proactively, rather than incrementally and reactively on a
case by case basis.
(Thamotharem v Canada (Minister of Citizenship
and Immigration), 2007 FCA 198, para 55 (Thamotharem))
II.
Introduction
[1]
This is an application for judicial review under
paragraphs 18.1(4)(c) and (d) of the Federal Courts Act, RSC
(1985), c F-7, of a decision of the Acting Director of the National Conflict
Resolution Office (NCRO) of the Canada Revenue Agency (the CRA or the
respondent), in which the applicant’s application for an Independent Third
Party Review (ITPR) was dismissed on the ground that it was time-barred.
III.
Facts
[2]
The applicant has been employed at the CRA since
1988. In 2010, the applicant was appointed to the position of auditor, classified
at the AU‑01 level. Following a performance evaluation, the applicant was
assigned to a position of compliance programs officer, at a lower level (SP‑04).
Not meeting the requirements of this position, the applicant was demoted to the
position of office clerk, classified at the lower level SP‑02.
[3]
On August 23, 2013, the applicant’s grievance
regarding her demotion was rejected, while the applicant was on annual leave.
[4]
Following this rejection, after being informed
by a labour relations officer from the Professional Institute of the Public
Service of Canada (the applicant’s representative) of the possibility of her ITPR
remedy, the applicant presented to the respondent, on her return to work on
September 10, 2013, an ITPR application.
[5]
On September 19, 2013, the respondent dismissed
the applicant’s ITPR application on the ground that it had been presented nine
days after the expiration of the time limit provided in Form RC117, Independent
Third Party Review Application (form RC117).
[6]
On September 20, 2013, the applicant’s
representative sent an e-mail to the respondent to dispute the dismissal and to
describe the applicant’s particular circumstances, showing that it was impossible
for her to act before September 9, 2013. In this e-mail, the representative stated,
among other things, that:
•
The applicant received the reply to her
grievance while she was on annual leave and that it was impossible to reach her
during this period;
•
The applicant does not have long-distance access
to the CRA’s computer network and, therefore, did not have access to the
employer’s policies and forms;
•
The employer’s policy on ITPR is ambiguous and
does not mention any time limit for filing the ITPR application; only the form contains
this information. As for the reply to the applicant’s grievance, she was silent
as to the possibility of filing an ITPR application and the applicable time
limit;
•
When she returned to work on September 9,
2013, the applicant met with her union representative so as to fill out an ITPR
application;
•
It was impossible for the applicant to act
before September 9 and the fact that the applicant submitted her
application on September 10 shows that she acted diligently.
(Applicant’s
Record, at p 9).
[7]
On September 24, 2013, the respondent rejected
the dispute of the applicant’s representative and upheld its decision of
September 19, 2013.
IV.
Impugned decision
[8]
The decision subject to this judicial review is
the dismissal of the applicant’s ITPR application by reason of lateness, dated
September 19 and 24, 2013.
[9]
The letter dismissing the ITPR application of
September 19, 2013, is reproduced below:
[translation]
Following your application for Independent
Third Party Review (ITPR) regarding your demotion, which does not result from a
disciplinary action, the National Conflict Resolution Office regrets to inform
you that your application cannot be processed for the following reason:
According to Form RC117, Independent
Third Party Review (ITPR) Application, this form must be completed by the
applicant and received at the National Conflict Resolution Office within nine calendar
days following the date of notification or event engaging the applicant’s right
to access the ITPR recourse mechanism.
As indicated on the reply form of your fourth
level grievance (final level), you signed this form on August 23, 2013. Your
application was received at the National Conflict Resolution Office on
September 10, 2013, i.e. 18 calendar days after the date of signing the reply
form to your final level grievance. For this reason your ITPR application is
ineligible.
(Applicant’s Record, at p 8)
[Emphasis added.]
[10]
Following the e-mail sent by the applicant’s
representative, explaining the reasons for which it was impossible for the
applicant to act before September 9, 2013, the respondent replied on
September 24, 2013:
[translation]
We regret that our decision relating to Ms. Lussier’s
application was not what you had hoped for.
The role of the National Conflict Resolution
Office (NCRO) is to administer the recourse mechanism of the Independent Third
Party Review (ITPR). The NCRO determines the eligibility of applications received
and ensures that all parties involved respect the roles and responsibilities
described in the directives and the ITPR form. Although we acknowledge the
difficulties that Ms. Lussier encountered in the process, we cannot do
anything other than respect the time limit stated on the form. [Emphasis
added.]
The NCRO, as the administrator in the ITPR process,
must apply the directive as it exists and the time limits resulting from it; these
time limits are identified on the ITPR form included in the directive. The application
was received after the time limit of nine (9) days, and is thus ineligible
for the ITPR process. Unfortunately, we cannot change our decision regarding
this case. [Emphasis in the original.]
(Applicant’s Record, at p 11)
V.
Issue
[11]
The application raises the following issue: Is the
respondent’s decision to dismiss the applicant’s ITPR application on the ground
that it was time-barred reasonable?
VI.
Parties’ position
a)
The applicant’ position
[12]
First, the applicant argues that the
respondent’s categorical dismissal of her ITPR application was decided without
regard for the applicant’s particular circumstances and is thus unreasonable (Haymour
v Canada (Revenue Agency), 2013 FC 1072, at para 20 (Haymour)).
[13]
Then, the applicant alleges that the respondent unduly
restricted its discretion by strictly applying the not mandatory time limit referred
to by the CRA’s ITPR Processing Directive (the Directive) (Harnum v
Canada (Attorney General), 2009 FC 1184, at paras 38 and 39; Gandy v
Canada (Canada Customs and Revenue Agency), 2006 FC 862, at para 19).
[14]
Further, the applicant argues that by refusing
to consider the applicant’s individual circumstances surrounding the time-barred
filing of her ITPR application, the respondent violated the principles of
natural justice and procedural fairness (Ching-Chu v Canada (Minister of Citizenship
and Immigration), 2007 FC 855 (Ching-Chu); Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, at paras 21 and 22 (Newfoundland and Labrador Nurses’ Union); Dunsmuir
v New Brunswick, 2008 SCC 9, at paras 126 and 129 (Dunsmuir).
b)
The respondent’s position
[15]
Furthermore, the respondent argued that the
dismissal of the applicant’s late ITPR application is reasonable. In support of
its claim, the respondent argued that there was no reason explaining the delay accompanying
the applicant’s original ITPR application dated September 10, 2013. The
respondent alleged that the reasons of its decision suggest that the respondent
read the explanations communicated by the applicant’s representative, by indicating
that it recognized [translation] “the difficulties encountered by Ms. Lussier in processing her ITPR
application” (Applicant’s Record, at p 11).
[16]
Moreover, the respondent alleged that the
adequacy of reasons cannot, in itself, justify the Court’s setting aside of an
administrative body’s decision (Newfoundland and Labrador Nurses’ Union,
above, at para 12).
VII.
Standard of review
[17]
The respondent’s decision to dismiss the ITPR
application for being time-barred raises a question of mixed fact and law that
must be reviewed on the reasonableness standard (Haymour, above at para
10).
[18]
So as to determine whether the decision falls
within the parameters of reasonableness, the Court must analyze the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir, above at para 47). Furthermore, the Court
cannot substitute its own reasons for those of the respondent, but may, if it
considers it necessary, examine the file to assess the reasonableness of the decision
under review (Newfoundland and Labrador Nurses’ Union, above at para 15;
Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at para 54).
[19]
Finally, the Court must also examine the context
in which the decision was made (Haymour, above at para 18; Canada (Attorney
General) v Abraham, 2012 FCA 266 at para 42 to 45).
VIII.
Analysis
[20]
The applicant’s ITPR application was dismissed
for the reason that it was filed beyond the time limit of nine days provided in
form RC117.
[21]
At the outset, it is timely to give an overview
of the ITPR application procedure so as to analyze the reasonableness of the
respondent’s exercise of discretion, in light of its mandate.
[22]
The ITPR procedure, which was initiated by
filing form RC117 with the NCRO, is a dispute resolution mechanism established
by the CRA for employees who wish to dispute the rejection of a grievance and
who do not have access to arbitration provided by the Public Service Labour
Relations Act, SC 2003, c 22, s. 2 (PSLRA).
[23]
The ITPR procedure was established under
paragraph 51(1)(g) of the Canada Revenue Agency Act, SC 1999, c
17 (CRAA), below, which gives a wide grant of authorities to the CRA with
respect to the development of the ITPR’s parameters, including the question of applicable
time limits. It should be noted that neither the CRAA nor the PSLRA imposes a limitation
period with respect to the ITPR procedure.
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51. (1) The Agency may, in the exercise of its responsibilities in
relation to human resources management,
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51. (1) L’Agence peut, dans l’exercice de ses
attributions en matière de gestion des ressources humaines :
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[…]
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[…]
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(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;
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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;
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[24]
Case law suggests that the directives and soft
law from administrative agencies are used to define the policies that in turn
help structure the decision-makers’ exercise of discretion and to guide the
interpretation of their enabling legislation (Thamotharem, above, at
para 56; Ainsley Financial Corp. v Ontario Securities Commission, [1994]
OJ 2966). However, without minimizing the importance of the directives and soft
law, which ensure some consistency and efficiency in the decision-making
process, the administrative decision-makers must examine the circumstances and
particular facts in each case (Ha v Canada (Minister of Citizenship and
Immigration), 2004 FCA 49 at para 71). The Federal Court of Appeal set out
in Thamotharem, above at para 62:
[62] Nonetheless, while agencies may
issue guidelines or policy statements to structure the exercise of statutory
discretion in order to enhance consistency, administrative decision makers may
not apply them as if they were law. Thus, a decision made solely by reference
to the mandatory prescription of a guideline, despite a request to deviate from
it in the light of the particular facts, may be set aside, on the ground that
the decision maker's exercise of discretion was unlawfully fettered: see, for
example, Maple Lodge Farms, at page 7. ...
[25]
In the context of a request for an extension of
time to a visa officer, the Court set out the importance of administrative decision-makers
showing flexibility and discernment in the exercise of their discretion, as
appropriate (Ching-Chu, above):
[25] The visa officer fettered his
discretion by categorically stating he never grants extensions of time to file
additional information. If the officer had considered the request for an
extension, exercised his discretion, and then concluded that no extension will
be granted for the following reason, then this decision would be legal. But by
fettering his discretion, the visa officer is refusing to consider exercising
his discretion, which is illegal. See Yhap v. Canada (Minister of
Employment and Immigration), [1990] 1 F.C. 722 (T.D.) per Jerome A.C.J. at
page 739:
The importance of flexibility in the
adoption of policy or guidelines as a means of structuring discretion is highlighted by D.P. Jones and A.S. de Villars in Principles
of Administrative Law, where the difference between “general” and
“inflexible” policy is described at page 137:
... the existence of discretion
implies the absence of a rule dictating the result in each case; the essence of
discretion is that it can be exercised differently in different cases. Each
case must be looked at individually, on its own merits. Anything, therefore,
which requires a delegate to exercise his discretion in a particular way may
illegally limit the ambit of his power. A delegate who thus fetters his
discretion commits a jurisdictional error which is capable of judicial review.
[Emphasis added.]
[26]
It follows from this logic that in the absence of
a mandatory limitation period provided by law, the respondent had the discretion
to relieve the applicant of the application of the time limit it had created, based
on the particular circumstances of the ITPR application. However, in articulating
its decision, the respondent interpreted the time limit provided in form RC117 as
mandatory, without weighing the explanations and particular circumstances of the
applicant, as provided by her representative.
[27]
Specifically, the respondent narrowly assessed
the scope of its discretion, by concluding that it could not [translation] “do
otherwise but to respect the time limit indicated on the form” despite
the fact that its mandate does not pose a risk to its discretion in accepting a
late application, as appropriate. The respondent also stated in its reasons
that [translation] “the NCRO, as administrator of the ITPR process, must apply the
directive as it exists and the time limits that result from it” (Applicant’s
Record, at p 11). [Emphasis added.]
[28]
Furthermore, the harm caused to the applicant and
the absence of harm caused to the respondent are factors that must be considered
in assessing the reasonableness of the respondent’s decision (Haymour, above
at para 20). In this view, it is important to point out that in this case, the
strict application of the short time limit of nine days provided by form RC117 deprives
the applicant of the only remedy granted to her in relation to her grievance.
[29]
The Court considers that the respondent erred by
neglecting to interpret the limitation period provided in form RC117 in a manner
that allows it to reach its objective and by neglecting to consider the explanations
provided by the applicant regarding her particular circumstances (Haymour,
above at para 18).
IX.
Conclusion
[30]
Given the reasons above, the respondent’s
decision is unreasonable.
[31]
Costs are awarded on a party-and-party basis, under
subsection 400(4) of the Federal Courts Rules, SOR/98-106 (Girard
v Canada (Attorney General), 2007 FC 1333 at para 52; Reed v Canada
(Attorney General), 2007 FC 1237).
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