Chong v. Canada ( Treasury Board )
A-453-97
Décary J.A.
9/2/99
6 pp.
Classification grievance-Appeal from classification grievances presented by appellants in 1994 under Treasury Board Manual, Treasury Board's classification grievance procedure-Appellants all employed as Intelligence Analysts with Department of Employment and Immigration in B.C./Yukon Region-Position classified as PM-03-Main argument colleagues in Ontario Region employed in same position classified as PM-04-Classification Grievance Committee recommending position of grievers remain classified at PM-03 level-Application for judicial review allowed by McKeown J. (Chong et al. v. Canada (1995), 104 F.T.R. 253 (F.C.T.D.)-Ontario classification office conducting audit of Ontario Region position-Downgrading Ontario Region position from PM-04 level to PM-03-Appellants applying again for judicial review on basis of breach of principles of procedural fairness-Application dismissed-Nothing turning on whether process defined as adversarial or non-adversarial-Instant case dispute between parties which grievance process seeks to resolve-Duty of fairness clearly applying to process-Content of duty of fairness more or less comprehensive depending upon nature of interests affected by decision, nature of process involved-Level of fairness herein in lower zone of spectrum rather than in upper zone, as expressed by Reed J. in Hale v. Canada (Treasury Board), [1996] 3 F.C. 3 (T.D.)-Grievers not involved, and properly so, in classification review of Ontario region position-To extent that downgrading of Ontario Region position triggered by appellants' grievance procedures, resulted in dismissal of grievances, they should have been informed basis of comparison to be established dramatically altered, should have been offered opportunity to pursue other arguments available to them-No fair play when fundamental assumption unilaterally made to disappear without giving party adversely affected opportunity to advance alternative grounds-Trial Judge erred in law in failing to appreciate what was in issue breach of one of essential requirements of duty of fairness-Appeal allowed.