Shephard v. Fortin, 2003 FC 1296

Date: 20031106

Docket: T-892-02

                                                                           Citation: 2003 FC 1296

OTTAWA, ONTARIO, THURSDAY, THIS 6^TH DAY OF NOVEMBER, 2003

PRESENT:    THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:                                                             

                              PAUL VINCENT SHEPHARD

                                                                                                   Applicant

                                                    - and -

                                            J.C.G. FORTIN

                                                                                     First Respondent

                                                    - and -

                  G. ZACCARDELLI, COMMISSIONER OF

             THE ROYAL CANADIAN MOUNTED POLICE

                                                                                 Second Respondent

      HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

                                    AS REPRESENTED BY

             THE ROYAL CANADIAN MOUNTED POLICE

                                                                                    Third Respondent

                                                    - and -

ATTORNEY GENERAL OF CANADA

                                                                                  Fourth Respondent

                     REASONS FOR ORDER AND ORDER

SNIDER J.

[1]    Paul Vincent Shephard (the "Applicant" or Cst. Shephard) is a constable with the Royal Canadian Mounted Police who wishes to be promoted to the rank of corporal. In 2000, the RCMP implemented a three-step process in determining a candidate's eligibility for promotion to the rank of corporal. The first of these steps is the writing of a multiple choice written examination, the Corporal Job Simulation Exercise (the "JSE"), intended to assess the member's ability to handle the sorts of situations that the member might expect to face on the job. Cst. Shephard wrote the JSE on April 8, 2000 and obtained a score of 39 out of a possible 48 marks.

[2] The results from this first step are used to rank candidates for promotion. Candidates are considered for promotion to vacant positions, based on their interest, during the second phase of the process. As a result of his JSE score, Cst. Shephard did not receive a preferred ranking on the eligibility list.

[3]         On August 1, 2000, Cst. Shephard, believing that his JSE score should have been higher, submitted a request for intervention ("RFI") pursuant to the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141 ("Promotions CSO"). As discussed below, the Promotions CSO, which are orders made under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, as amended (the "Act"), came into force on April 6, 2000 and provide a grievance process for members of the Force in promotional matters. As part of his RFI, Cst. Shephard requested detailed disclosure of the marking for his examination paper. Specifically, he wanted to know which of his answers the marker believed were incorrect, rationale(s) for all questions marked incorrect on his exam, and a copy of the regional promotional eligibility list. Inspector Pat McCloskey (the "Adjudicator"), one of several adjudicators in the Atlantic region, was appointed to consider Cst. Shephard's RFI, and those of twelve other members. In a decision dated April 15, 2002, the Adjudicator dismissed all thirteen of the RFIs, stating, "I am satisfied there was no decision, act or omission that resulted in an error and therefore I dismiss all thirteen cases". The Adjudicator's decision was consistent with Policy D.7 of the Commissioner of the RCMP, which provides that a member shall not have access to the JSE examination material.

[4]         Cst. Shephard seeks judicial review of this decision; he believes that he should have been given access to the his JSE results and the rationale for each question marked incorrect.

Issues

[5]         The following issues are raised in this application:

1.          Are (a) those portions of the Promotions CSO that eliminate the right of appeal set out in Part III of the Act and that eliminate the rights of a member to access his examination results and information, and (b) that portion of Policy D.7 that withholds access to the examination results, ultra vires the powers of the Commissioner under the Act?

2.          If the response to the first issue is "no", did the Adjudicator err in making his decision on the basis that:

a.          the decision was made in a manner that was perverse or capricious or without regard to the evidence before him?

b.          the Adjudicator unduly fettered his discretion and failed to exercise his jurisdiction by considering himself to be bound by Policy D.7?

c.          the Adjudicator denied the Applicant his rights under principles of procedural fairness and natural justice by denying him access to relevant information and documentation necessary for him to know the case to be met?

d.          the actions of the Adjudicator in consulting with the other adjudicators and requesting and considering information from the Commissioner's office gave rise to a reasonable apprehension of bias?

Issue #1: Are portions of the Promotions CSO and Policy D.7 ultra vires the powers of the Commissioner under the Act?

[6]         The application of Part III of the Act to the Promotions CSO and to Policy D.7 is central to the submissions of the Applicant. To satisfactorily deal with this issue, it is necessary to examine the legislative scheme under which promotions and grievances related to those promotions are determined.

Legislative Scheme related to promotions within the Force

(a) Powers of the Commissioner

[7]         The Commissioner of the RCMP has broad and unfettered authority to make promotions within the Force (other than for an officer rank) pursuant to paragraph 7(1) (a) of the Act, as follows:

7. (1) The Commissioner may

(a) appoint members of the Force other than

officers

7. (1) Le commissaire peut:

(a) nommer les membres qui no sont pas

officiers;

[8]         The Act provides no statutory guidance on how this authority is to be exercised.

[9]         Subsection 21(2) of the Act gives the Commissioner the authority to make rules:

[10]       According to subsection 2(2) of the Act, these rules are known as Commissioner's standing orders ("CSO"). No regulations have been enacted that would restrict the authority of the Commissioner to make rules.

(b) Role of Part III

[11]       Part III of the Act deals with grievances. The first provision in Part III is subsection 31(1) of the Act, which describes the rights of a member under Part III (emphasis added):

[12]       Pursuant to subsection 31(4) of the Act, a member shall be granted access to information as follows:

(4) Subject to any limitations prescribed pursuant to paragraph 36(b), any member presenting a grievance shall be granted access to such written or documentary information under the control of the Force and relevant to the grievance as the member reasonably requires to properly present it.                                             

(4) Sous réserve des restrictions prescrites conformément à l'alinéa 36b), le membre qui présente un grief peut consulter la documentation pertinente placée sous la responsabilité de la Gendarmerie et don't il a besoin pour bien présenter son grief.

c)    The Grievances CSO

[13]       Until 2000, grievances concerning promotions were governed by Commissioner's Standing Orders (Grievances), 1990, SOR/90-117, as amended ("Grievances CSO"). These CSO applied to many other forms of grievances as well as to promotion-related grievances; for example, the Grievances CSO govern disputes related to stoppage of pay, dismissal of a member from the Force and a member's performance evaluations. The Grievances CSO were silent with respect to the ability of an aggrieved member to access information relevant to his grievance. As these Grievance CSO did not purport to apply instead of Part III, it appears that access to information by the member was governed by subsection 31(4) the Act, subject to the limits of paragraph 36(b) of the Act. The Grievances CSO are no longer in force, effective May 26, 2003, by the coming into force of the Commissioner's Standing Orders (Grievances), SOR/2003-181.

(d) The Promotions CSO

[14]       On April 6, 2000, the Promotions CSO came into force. They were made pursuant to subsections 21(2) and 31(1) of the Act and are stated to apply as follows (emphasis added):

[15]       There is no provision in the Promotions CSO that allows a member access to information, although section 19 of the CSO provides that the adjudicator of a dispute may "order the complainant or the respondent to provide further particulars regarding any matter contained in a submission".

(e) Policy Direction

[16]       The Commissioner, from time to time, also issues policy directions with respect to promotions and other matters related to RCMP administration. Collectively, these policies form a general administrative manual, Policy in Administration Manual II.30. The current policy with respect to promotions, Policy D, was put into place at the same time as the Promotions CSO. Of particular interest in this case is Policy D.7 which provides as follows:

D.7.     In attempting to resolve a dispute informally, or to enable a complainant to present a request for intervention, a respondent or an adjudicator will grant access to a complainant to that information only which is relevant to the dispute and under the control of the RCMP, except for:

D.7.     a. promotional examination questions, scoring keys and rationales for the best and less effective answer options;

D.7.      b. structured interview questions, scoring keys and audiotapes of interviews;

D.7.      c. statistics relating to promotional examinations and structured interview questions; and

D.7.      d. materials used in the development of promotional examinations and structured interviews, including but not necessarily limited to, work examples, draft questions and answer options.

Standard of Review

[17]       In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18 (QL) at para. 21, McLachlin C.J., for the Court, explained that the pragmatic and functional approach must be undertaken in every case where a statute delegates power to an administrative decision-maker. In this case, that means undertaking an analysis for each of the major issues since they each involve different decision-makers. The first issue relates to decisions by the Commissioner and the second to the decision of the Adjudicator.

[18]       The first question then is what standard of review to apply to the following decisions of the Commissioner:

            ·            In the Promotions CSO, to eliminate the right of appeal set out in Part III of the Act

·          To apply the Promotions CSO instead of Part III of the Act to the presentation and resolution of all grievances of members in respect of "a decision, act or omission made in the course of the selection processes for the promotion of members"

·            To put in place that portion of Policy D.7 that withholds access to the examination results.

These three decisions involve issues of statutory interpretation of the Act. As such, Cst. Shephard urges me to apply a standard of review of correctness.

[19]       In undertaking the necessary analysis, I note that there is no privative clause in the Act that would apply to decisions of this nature. While the expertise of the Commissioner to respond to policy issues is without question superior to the Court's, the Commissioner is not more expert than the Court in determining jurisdictional questions which involve interpreting the Act. The purpose of the Act as a whole suggests a more deferential view. I note that the Commissioner has a broad mandate to make Standing Orders, which are similar to regulations, and to otherwise administer the Act. This is particularly true with respect to promotions within the ranks of the RCMP. The nature of the problem as one of statutory interpretation is not a technical or management-related question. It is a question of law - a matter that is traditionally the province of the Court.

[20]       Balancing all of these factors, I determine that the correctness standard of review should be applied to the decisions of the Commissioner. As discussed later in these reasons, a similar analysis for the second main issue leads to a different standard of review.

Analysis

(a) Position of the Applicant

[21]       Cst. Shephard submits that the Promotions CSO are ultra vires the powers of the Commissioner under the Act, for these reasons:

·           Part III of the Act sets up a regime for the presentation of grievances by members of the RCMP, consisting of several levels, and specifically provides that a member presenting a grievance shall be granted access to written or documentary evidence related to the grievance reasonably required by the member to properly present that grievance.

·            The Promotions CSO and the Policy D.7, since they are in conflict with Part III of the Act and take away rights granted in the provisions of this Part, would defeat the purpose of Part III of the Act and, therefore, cannot be allowed to stand.

·           Had it been the Commissioner's intention to restrict members' right of access to information in the manner which has been done under the Promotions CSO and related policy, wording appropriate to that purpose could easily have been used in Part III of the Act. Instead, the wording of Part III expresses an intention to ensure access to relevant information, subject only to very narrow restrictions (Act, s. 36(b)). As a result, the Promotions CSO and its attendant policy cannot stand together with Part III of the Act.

·            Any rules made by the Commissioner are subject to the Act and its regulations, and any inconsistency of such rules with the Act or its regulations would render the rules in question null and void (Act, s. 21(2); Jesso v. Workers Compensation Commission of Newfoundland (2001), 206 Nfld. & P.E.I.R. 275 (Nfld. and Labrador C.A.). In particular, section 25 of the Promotions CSO and Policy D.7 would be affected.

(b) Interpretation of the Promotions CSO

[22]       The application of Part III to the Promotions CSO is central to the submissions of Cst. Shephard. If the Commissioner correctly enacted the Promotional CSO and Part III of the Act does not apply to the Promotional CSO, all of his arguments fail. For the reasons that follow, I have concluded that Part III of the Act does not apply.

[23]       As described above, subsection 31(1) of the Act specifically states that Part III of the Act only applies to situations where no other process for redress has been provided in the Act, its regulations or the Commissioner's standing orders. Parliament must have contemplated the situation, as here, where Part III would not be an appropriate tool for resolving conflicts and permitted the Commissioner to assess when that would be the case.

[24]       The Promotions CSO at issue in this case are Commissioner's standing orders, within the meaning of the Act. According to the preamble, the Promotions CSO was made pursuant to subsections 21(2) and 31(1) of the Act. These particular orders provide a process for the presentation and resolution of all grievances of members related to job requirements and to the selection processes for promotion. The purpose of the Promotions CSO can be determined by examining the Regulatory Impact Analysis Statement (the "RIAS"), which states as follows:

The Part III grievance process, for the purposes of dealing with issues of promotion, has become extremely cumbersome and ineffectual, and it is for this reason that a more streamlined and effective process, as a another "process for redress", is being embodied in these Commissioner's Standing Orders. These Commissioner's Standing Orders (CSOs) will establish an alternate "process for redress" in relation to promotional issues that will involve a one-level review process, without the necessity of holding a Grievance Advisory Board. The rights of members will be respected, while at the same time, issues arising in relation to promotional matters will be resolved more expediently, and this, in turn, should impact positively on the general morale of the membership.

[25]       Although the RIAS is not part of the Promotions CSO, it serves as a guide as to the purpose and effect of the CSO (Pfizer Canada v. Apotex Inc., [2002] F.C.J. No. 1078 at para. 63 (T.D.) (QL)). The Promotions CSO and the RIAS indicate that the rules in the CSO were made for the efficiency and administration of the Force. As a result, the Commissioner was entitled to make these rules by virtue of paragraph 21(2)(b) of the Act. In my view, the Promotions CSO were properly made as they are within the scope of paragraph 21(2)(b) of the Act.

[26]       In addition, it is apparent from the Act, the Promotions CSO and the RIAS that the CSO were established as an alternative process for redress within the meaning of subsection 31(1) of the Act. Subsection 2(1) of the Promotions CSO, which describes the application of the CSO, clearly states that these orders apply instead of Part III of the Act.

[27]       Therefore, the Promotions CSO are intra vires the powers of the Commissioner under the Act. The Promotions CSO were designed to apply instead of Part III of the Act to certain grievances related to the promotion process and job requirements (CSO, s. 2(1)). The Commissioner had the authority to make the CSO by virtue of paragraph 21(2)(b) of the Act.

[28]       Having determined that it was within the jurisdiction of the Commissioner to make the Promotions CSO and that these orders provide another process for redress as contemplated by subsection 31(1), it follows that Part III no longer applies to any dispute that comes within the boundaries of the Promotions CSO. In my view, that directly covers the dispute in this case; that dispute being whether access to examination materials should be allowed.

[29]      The fact that the Promotions CSO differ from Part III of the Act with respect to disclosure and appeal rights is not, in my view, significant. The Act itself, in subsection 31(1), envisions the creation of an alternative grievance process that, presumably, has different rights than those set out in Part III of the Act. As a result, the Promotions CSO are not subject to the provisions of Part III based on the exception contained in subsection 31(1) of the Act. Finally, since the CSO were duly made pursuant to the Act, the Promotions CSO themselves determine the extent of procedural rights and relief available to complainants/grievors (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781; Armstrong v. Canada (Commissioner of the RCMP), [1998] 2 F.C. 666 (C.A.)).

[30]       Further, contrary to the submission of Cst. Shephard, this interpretation of the Promotions CSO does not effectively circumvent or nullify the provisions of Part III. Part III continues to apply to more serious matters affecting members of the Force. Many disputes such as those related to stoppage of pay, dismissal of a member from the Force and a member's performance evaluations continue to be subject to Part III of the Act.

[31]       There may be an argument that the establishment of examinations is an integral part of the promotional system and, accordingly, does not even fall within the grievance procedure that is described in the Promotions CSO. Subsection 2(3) of the Promotions CSO explicitly provides that the Promotions CSO do not apply to grievances "with respect to the promotional system in the Force". This, in my mind, raises the question of whether the JSE is part of the promotional system. If the response to this question is "yes", the dispute before me would not be covered by these orders and this application would fail on that basis. However, as no arguments were made to me on this question, I have assumed that subsection 2(3) does not apply to this dispute.

c)          Interpretation of Policy D.7

[32]       Authority to make Policy D.7 is not explicitly granted to the Commissioner in the Act. Policy D.7 is not a statutory instrument. Policies of this nature are a well-established and helpful way for decision-makers to communicate to those affected by their decisions how statutory provisions may be interpreted. However, it is a fundamental principle of administrative law that decision-makers cannot do by policy what they cannot do by the enabling legislation.

[33]       Cst. Shephard asserts that, in this case, the Commissioner, in Policy D.7, does exactly what he cannot do under the Act. Specifically, Cst. Shephard argues that the Commissioner provides in the policy that examination information cannot be disclosed in the context of a grievance, a matter that is in direct conflict with subsection 31(4) of the Act. I do not agree with Cst. Shephard's view of Policy D.7.

[34]       Under subsection 7(1) of the Act, the Commissioner has very broad-reaching authority with respect to the promotion of non-commissioned members of the RCMP. Parliament chose to give the Commissioner great discretion in this subject area with no direct restrictions or guiding provisions in the Act that diminish this authority. Accordingly, the making of Policy D.7 is not prohibited by the enabling legislation. I agree with the Applicant that, to the extent that it conflicts with other provisions of the Act or the Promotions CSO, Policy D.7 cannot be applied. However, I see no conflict. Policy D.7 relates solely to and arises out of the Promotions CSO. As discussed above, the effect of the Promotions CSO is to remove grievances in respect of promotions out of Part III. If Part III does not apply to the matters that are dealt with in Policy D.7, there can be no conflict.

Issue #2: Did the Adjudicator err in a reviewable manner?

Standard of Review

[35]       To determine the standard of review to be applied to the Adjudicator's decision denying Cst. Shephard's request a second pragmatic and functional analysis is required. For purposes of this analysis, the Promotions CSO is the scheme under review. The errors alleged by Cst. Forsyth are best described as an attack on the Adjudicator's application of the provisions of the Promotions CSO to the facts of this case. The elements of the pragmatic and functional analysis are as follows:

1.         The Promotions CSO contain a privative clause in section 25 that states that the "decision of the adjudicator that disposes of a request for intervention is not subject to appeal or further review". This suggests deference.

2.          Appointment of adjudicators is within the mandate of the Commissioner. While there is no specific "job description" for adjudicators set out in the Act or the Promotions CSO, I note that Policies D.2 and D.3 set out the criteria for choosing adjudicators. Adjudicators are to be officers or senior managers with the Force (Policy D.2) and "should be legally trained, trained internally as an adjudicator, or have experience in the adjudication process"(Policy D.3.b). I conclude that, because of their seniority within the ranks of the RCMP and the particular skills they bring to the grievance process, that they have special expertise in addressing the issues before them. This would, in my view, include procedural as well as substantive matters. While it was acknowledged that the Adjudicator's expertise did not extend to the area of examination design, the question of whether the JSE information should be provided to Cst. Shephard did not require an ability to assess the design or appropriateness of the examination questions. On this factor and in respect of this issue, it is my view that the Adjudicator is in a much better position than this Court and should be accorded significant deference.

3.          The questions in dispute arise pursuant to a statutory instrument whose purpose is to provide a streamlined and effective process for resolution of disputes in the selection processes for promotions within the RCMP. By enacting the Promotions CSO, the Commissioner was giving to adjudicators a broad responsibility to resolve these disputes. This also suggests a more deferential approach.

4.          The particular question of whether the JSE information should be disclosed is one that involves a review of the Policy and the reasons for it and of any special reasons that would negate its application in the particular circumstances of this case. This falls squarely within the Adjudicator's expertise. It is not a question of law where the Court would be in a better position to determine the matter than the Adjudicator.

[36]       In sum, all of the factors in a pragmatic and functional analysis lead to the conclusion that great deference should be given to the Adjudicator in this matter. I conclude that the standard of review in this particular issue is patent unreasonableness. That is, the decision ought only to be overturned if the Adjudicator based his determination on an application of the Promotions CSO that was patently unreasonable or on findings of fact for which there was no evidence. Another way of expressing the standard is as described in paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985,

c.F-7, as amended that is, the decision can be overturned if it made in a manner that was "perverse or capricious or without regard for the material before it".

[37]       Cst. Shephard suggests that the decision of the Adjudicator was jurisdictional in nature and that, therefore, a standard of correctness should apply. However, implicit in this submission is the presumption that Part III of the Act still applies to the actions of the Adjudicator. However, as discussed under Issue 1, this is not the situation. Part III does not apply.

Was the decision patently unreasonable?

[38]      The Adjudicator determined that Cst. Shephard's request should be denied. Obviously, Policy D.7 was an important part of his deliberation.

[39]      A review of the record shows that, in the past, examination questions and answers were routinely disclosed and consequently could not be re-used. As a result, new examinations had to be developed for each exam cycle, with an average annual cost of $408,540.00. In the current system, examination questions and answers are not disclosed, permitting them to be reused and continually refined in order to improve testing accuracy and exam integrity. Re-using examination questions is also cost-effective. The RCMP projects that it will need to fill approximately 750 to 850 job vacancies each year due to an increased retirement rate of senior members in the upcoming years. The need for a reliable, efficient and cost-effective system to fill these positions and to deal with disputes arising out of the process led to the creation of the current system. Policy D.7 and the reasons behind it present a strong case to support disallowing access to the JSE materials.

[40]      Further, Cst. Shephard was well-informed of the new policy and its consequences. Members of the RCMP were advised of the three-step process through a number of informational bulletins. Between July 1999 and July 2000, there were no fewer than 4 separate communications that stated clearly that material from the JSE would not be released. In addition, in February 2000, an explanation of the examination process was released. This document was intended to provide guidance to the candidates in preparing for and approaching the examination. In particular, it stated as follows:

Be cautious about comparing the scenarios with situations you may have faced. . . . Remember the best response for each item was developed by committees of regular members in consideration of the specific details presented in the item scenarios.

[41]      In a system such as this it is more than reasonable to conclude that disclosure of the requested material should only be made on an exceptional basis. The Adjudicator concluded, in this case, that Cst. Shephard had not established such extraordinary circumstances.

[42]      A balancing of interests must be undertaken in order to determine whether the benefits of disclosure outweigh the cost and added administrative burden associated with it (Brown & Evans, supra; Gallant v. Canada (Deputy Commissioner, Correctional Services of Canada), [1989] 3 F.C. 329 (C.A.)). The intent of the Promotions CSO as a separate grievance procedure is to establish an efficient and separate process for dealing with promotions within the RCMP; if this process becomes overlaid with elaborate procedural requirements, this intent will be frustrated. In addition, disclosure of the materials would not provide any real benefit to Cst. Shephard. The answer sheet consists only of multiple choice bubbles with shading of the answers selected by the Applicant. The Adjudicator is not qualified to determine whether an answer is right or wrong and whether a change in the examination score is required. In order to challenge the answer to a question, other expert evidence would be required by the Adjudicator, turning the RFI into a review of the deliberations and conclusions of the exam development committee and not the marking, a process not contemplated by the Promotions CSO. Therefore, a balancing of the interests at stake demonstrates that there are distinct advantages to all parties under the current non-disclosure system.

[43]       In my view, the decision of the Adjudicator indicates that he put his mind to the disclosure of the information and documentation requested by the Applicant. At page 3 of his decision, the Adjudicator states that he considered the brief submissions of the Complainants, the submissions of the Respondent regarding disclosure, RCMP policy, the Commissioner's Broadcast and Career Management Bulletins, and the pamphlet included in the February 2000 Pony Express which explained how the exams were developed. The Adjudicator concluded that "[a]lthough a few members may disagree with some of the "best" responses, clearly in an exercise such as this that is subjective in nature, you have to at some point accept the advice provided by the regular member exam development teams and professionals hired by the RCMP to complete this task." He ultimately concluded that, based on all of the information provided to him, the Complainants were dealt with fairly and in accordance with the Promotions CSO and relevant policy.

[44]      Cst. Shephard submits that the Adjudicator failed to put his mind to the question of disclosure of relevant information, stating only that he was precluded from ordering the disclosure by policy. I do not agree. The words of the decision indicate that the Adjudicator was aware that he could request the information from the Respondent pursuant to section 19 of the Promotions CSO and put his mind to the question of whether he should grant the request.

[45]       Cst. Shephard also submits that, since the Adjudicator apparently believed that the requested information was relevant, by denying the Applicant access to this information, the Adjudicator failed to carry out his mandate under the Promotions CSO. The problem with this submission is that the question of relevance is not the only question before the Adjudicator. The JSE information is, of course, relevant to the score of Cst. Shephard on the JSE. The Adjudicator's task was, not only to determine whether the information was relevant but, to determine whether it should be disclosed in spite of its relevance. In that consideration, there was compelling evidence in the form of the Policy D.7 and the underlying rationale for the policy to allow the Adjudicator to conclude that the information ought not to be requested by the Adjudicator or provided to Cst. Shephard.

[46]       For these reasons, I am satisfied that the decision of the Adjudicator was not patently unreasonable or made in a perverse or capricious manner.

Did the Adjudicator unduly fetter his discretion?

[47]       In Cst. Shephard's submission, the Adjudicator unduly fettered his discretion by automatically following Policy D.7 (Fedoriuk v. Royal Canadian Mounted Police Commissioner, [1988] F.C.J. No. 924 (C.A.) (QL); Jesso, supra). I do not agree.

[48]       According to D.J.M Brown & J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto, Ontario: Canvasback Publishing, 1998) ("Brown & Evans"), a decision-maker will fetter his discretion by automatically following policies, notwithstanding that the existence of those policies is proper. Decision-makers cannot confine the exercise of their discretion by refusing to consider other factors that are legally relevant, including whether a particular policy applies to the case before them. However, valid guidelines and policies can be considered in the exercise of discretion, provided that the decision-maker puts his mind to the specific circumstances of the case.

[49]       In this case, Policy D.7.a provides that an adjudicator will grant a complainant access to all information relevant to the dispute and under the control of the RCMP except for promotional examination questions, scoring keys and rationales for the best and least effective answer options. Since the Applicant requested disclosure of this particular information, it is clear that Policy D.7.a is directly relevant to this case.

[50]       In my view, the Adjudicator did not fetter his discretion by denying the Applicant access to this information. On my reading of his decision, the Adjudicator did not automatically apply Policy D.7.a. Rather, he considered the submissions of both parties on the issues of disclosure and the application of the policy, as well as the rationale behind the policy.

[51]       Further, I agree with the Adjudicator that it was not his role to determine the appropriateness of the Promotions CSO, policy or promotion process (CSO, s. 2(3)). It is clear from the provisions of the CSO that the role of the Adjudicator is to decide all matters related to a RFI and to order that the erroneous decision, act or omission be corrected. If, in spite of Policy D.7, the Adjudicator concluded that the JSE materials should be compelled, he could have so ordered. This would not have been a determination that the Policy or promotions process are inappropriate but that, in the circumstances of the case, he should request the materials.

Was there a denial of procedural fairness and natural justice?

[52]       Even where a decision-maker's decision cannot be said to be patently unreasonable, it may still be quashed if the procedures invoked by the decision-maker did not comply with the rules of natural justice.

[53]       In the Applicant's submission, his right to justice and fairness has been abrogated by policy contained in the RCMP Administrative Manual. Further, Cst. Shephard submits that this Court has recognized, in the context of job competitions under the provisions of the Public Service Employment Act, R.S.C. 1985, c. P-33, that examination questions and scoring material is subject to disclosure under the rules of natural justice and procedural fairness (Barton v. Canada (A.G.), [1993] F.C.J. No. 746 (T.D.) (QL); Kaczmar v. Canada (Revenue), [1999] F.C.J. No. 1189 (T.D.) (QL)). Moreover, Cst. Shephard argues that the information requested was vital in order for the Adjudicator to make a decision on the merits of the case (see Jain v. Canada (Revenue), [1999] F.C.J. No. 1201 (T.D.) (QL); Magnasonic Canada Ltd. v. Canada (Anti-Dumping Tribunal), [1972] F.C. 1239 (C.A.)).

[54]       The questions to be addressed are whether procedural fairness would require the Adjudicator in this case to disclose the examination questions, answers and rationales and, further, whether the Adjudicator denied Cst. Shephard procedural fairness in the course of reaching his decision. A helpful starting point is the criteria set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. L'Heureux-Dubé J., writing for the majority of the Court at paragraphs 22 through 27, stated that the content of the duty of fairness is affected by the nature of the decision being made, the process followed in making that decision, the nature of the statutory scheme and the terms under which the decision-maker operates, the importance of the decision to the individual affected, the legitimate expectation that a certain procedure will be followed and the agency's own choice of procedure and expertise in determining the appropriate procedure. According to L'Heureux-Dubé J., at paragraph 22 of Baker, supra:

Underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [emphasis added]

[55] Applying this to the decision under review in this case results in the following:

(a)    Nature of Decision and Statutory Scheme

In the present case, the nature of the decision and the statutory scheme is determined by reference to the Promotions CSO and the Act. The nature of the process in this case is not closely related to the judicial process. The CSO provide for written submissions only (s. 18), and the only type of relief available to the Applicant is an order of corrective action by the Adjudicator (s. 22, 23). The CSO permit the Adjudicator to order further particulars or request information or documentation (ss. 19, 20), but does not provide for the type of rights usually found in the judicial disclosure process, such as cross-examination on affidavits. The role of the Adjudicator is to determine whether the Applicant was treated fairly during the examination process and to correct any prejudicial erroneous acts, omissions or decisions in that process. This suggests a lower level of procedural protection.

(b)    Importance of the Decision to the Individual

Although there is no appeal from the decision of the Adjudicator (CSO, s. 25), the decision being reviewed in this case was only one link in a three-stage promotion process and does not represent a decision on a particular job or promotion. While it is true that a member must pass the JSE to be promoted, it is also true that a successful result in the JSE does not guarantee promotion. The examination score is only one factor among many in determining how quickly a candidate is considered for promotion. The Applicant is also permitted to re-write the Corporal JSE annually in order to improve his score. As a result, although the lack of an appeal suggests greater procedural protections will be required (Baker, supra), there are a number of factors suggesting otherwise. These factors also suggest that the decision, which does not represent the denial of a job application or affect the Applicant's current employment status, duties or the terms and conditions of his employment, is not of critical importance to the Applicant. Consequently, a lower standard of procedural protection will be required (Baker, supra).

c)          Legitimate Expectation

In cases of long-standing policies or practices, a sudden, unexpected departure from those processes could result in a breach of procedural fairness. However, in this case, the Promotions CSO created a new procedure that has not been in existence long enough to develop established practices. It also appears that the RCMP made efforts to advise the members of this new non-disclosure policy in advance of its implementation. Any legitimate expectations Cst. Shephard may have had in relation to the Part III procedure would not apply to the specific mandate of the Adjudicator in this case.

(d)    Adjudicator's choice of procedure and expertise

As discussed above, the adjudicators bring years of RCMP expertise and knowledge to their positions. The establishment of a process for determining grievances should, therefore, be left to them and not imposed by this Court.

[56]       Having undertaken this analysis, I conclude that the content of the duty of fairness in this case was not high and, upon reviewing the manner in which the Adjudicator reached his decision, I am satisfied that the Adjudicator met this duty. More specifically, I am satisfied that Cst. Shephard knew the case to be met and was given a reasonable opportunity to respond.

[57]       Cst. Shephard refers to a number of cases involving job competitions under the provisions of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"). He submits that these cases are authority for the position that examination questions and scoring material is subject to disclosure under the rules of natural justice and procedural fairness and that this information is vital to the grievance process. In my view, each of these cases is readily distinguishable.

[58]       The first case was a decision of this Court in Barton v. Canada (A.G.), [1993] F.C.J. No. 746 (T.D.) (QL) where the Appeal Board established under the PSEA ruled that it would permit disclosure of examination material only to a qualified expert in the field of testing. The Court held that the Appeal Board had erred in denying disclosure of the information to the appellant's representative. The decision was quashed and the matter referred back to the Appeal Board for reconsideration. This case shows is not, as submitted by Cst. Shephard, authority for the position that examination materials are subject to disclosure. Given that the Appeal Board had already allowed disclosure of the material to a registered psychologist, the only question before the Court in that case was whether the representative of the applicants should also have been entitled to disclosure of the information. Indeed, I note that Rothstein J. (as he then was) left the door open to the Appeal Board to refuse to disclose the confidential information to the applicants' representative. The Barton case cannot be relied upon to support the contentions of Cst. Shephard in this case.

[59]       Two other cases relied on by Cst. Shephard are Kaczmar v. Canada (Revenue), [1999] F.C.J. No. 1189 (T.D.) (QL) and Jain v. Canada (Revenue), [1999] F.C.J. No. 1201 (T.D.) (QL), decisions involving the proper interpretation and application of particular provisions under the Public Service Employment Regulations, 1993, SOR/93-286 as amended by SOR/96-482. Section 24 of those Regulations establishes a detailed regulatory regime for disclosure of information related to a job competition within the federal public service. Subsection 24(1) of the Regulations states that an appellant (usually an unsuccessful candidate for a job posting) shall be provided with information that pertains to the appellant or a successful candidate. Both cases revolved around the obligations arising from the regulatory provisions. In this case, there is no equivalent to s. 24 in the CSO. Accordingly, these cases are not relevant to my determinations.

[60]       Finally, having reviewed the record, I am satisfied that there was no information contained in any submissions to the Adjudicator that was not within the knowledge of Cst. Shephard. He was, accordingly, not prevented from knowing the case to be met. In particular, I have carefully reviewed the e-mail from Mr. Gilbert Groulx dated March 22, 2001, and the detailed submission of Supt. J.C.G. Fortin, which may not have been formally presented to Cst. Shephard. I accept that this may have been an error on the part of the Adjudicator. However neither document contained anything that was not reasonably within the knowledge of Cst. Shephard. Given the lower standard of procedural fairness required in this case and the content of these documents, I am satisfied that, even if these documents were not directly presented to Cst. Shephard, such an error cannot form the basis of a successful judicial review. Cst. Shephard was not prevented from knowing the case to be met.

Did the actions of the Adjudicator give rise to a reasonable apprehension of bias?

[61]            The Applicant questions the impartiality of the Adjudicator's decision given the close relationship between the adjudicators, who are members of the RCMP's management, and the Respondent. In this regard, he submits that this case is analogous to 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919 where the central concern was prohibiting the prosecuting counsel's participation in the adjudication process. Further, Cst. Shephard points to the participation of the legal counsel for the Respondent, as "prosecuting counsel", in the adjudication process, as demonstrated by legal advice received from Mr. Gilbert Groulx, counsel, RCMP Legal Services and to the apparent consultation that took place among the adjudicators.

[62]     Impartiality encompasses the idea that not only must justice be done, but that it must also be seen to be done (Mullan, David J., Administrative Law (Toronto: Irwin Law, 2001) at 322). Real or perceived bias can impugn the impartiality of a tribunal (Bell Canada v. Canadian Telephone Employees Assn., [2003] S.C.J. No. 36 (QL) at 18, citing Gonthier J. in Régie, supra, citing Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673 at 685).

[63]            The Supreme Court of Canada in [1978] 1 S.C.R. 369">Comm. for Justice v. National Energy Board, [1978] 1 S.C.R. 369 at 394, expressed the proper test to be applied when considering whether a reasonable apprehension of bias exists:

. . . What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it more likely than not that [the tribunal], whether consciously or unconsciously, would not decide fairly.

[64]            Cst. Shephard analogizes this case to the situation in Régie, supra. In Régie, supra, the Court determined that a reasonable apprehension of institutional bias existed. This is because the governing statute authorized employees of the Régie to participate at every stage of the process, from investigation to adjudication. For example, Régie's lawyers were called upon to advise the Régie on legal actions to be taken, to draft notices of summons, to present arguments to the adjudicators and draft opinions. No measures existed to ensure that the same lawyer did not act as "prosecuting counsel" for the Régie and draft opinions for the adjudicators in the same matter. In the present case, Mr. Groul made every effort to extricate himself from the adjudication process. He declined from participating in a video-conference that the adjudicators held. Further, it appears that the advice sought and received by the adjudicators was provided to the parties and that extensive consultations on the ramifications of this decision took place openly and with all parties. Thus, I do not see a situation, in this case, analogous to that in Régie, supra.

[65]            This is also not a situation where the Adjudicator blindly followed policy and had no clear operational boundaries. Rather, the opposite occurred. There was a huge debate about the relationship of the Promotions CSO to Policy D.7. The Adjudicator's decision to apply the non-disclosure policy and rule in a manner that was consistent with Mr. Gilbert Groulx' legal advice does not inexorably lead to a finding of apprehension of bias. Rather, to determine whether the Adjudicator might be perceived as lacking independence of thought, his decision must be considered, not only in light of Mr. Groulx' legal advice but, in the context of the entire debate that took place.

[66]            The Adjudicator benefitted from a wide-ranging debate on the Promotions CSO and the disclosure issue. The record shows that the Adjudicator was provided with the views of many sectors within the RCMP, including: the Applicant, the Respondent to the original complaint, the DSRRs (advocates within the RCMP for the complainants, (including the Applicant), the National Staffing Policy Branch, the Legal Services Unit, Grievance Reviewers and other adjudicators. All of this formed part of a legitimate consultation with a large number of parties within the limits established by International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221).

[67]            In Consolidated-Bathurst, supra and Ellis-Don, supra, panel members of the Labour Relations Board ("Board") who heard the cases participated in full Board meetings where the law and policy affecting their decisions was discussed extensively. The Supreme Court condoned these practices because they were legitimate consultations that were held in the interests of ensuring consistency in the Boards' jurisprudence and because no facts particular to the cases before the panels were debated. The decision-makers were the panel members who heard the case and no new facts arose to which the parties did not have a chance to respond. Thus, the two principles of natural justice, the right to respond to the case against you and the right to be heard by an unbiased decision-maker were not breached.

[68]            Although the consultation in this case went beyond the adjudicators themselves to involve other parties, there is no reason not to follow the logic of these two cases. The adjudicators were simply trying their best to cope with a new procedure. At all times, the consultations concerned the application of the CSO and Policy D.7 and not the particular facts of any one complainant. Rather than trying to determine this amongst themselves, they reached out to all those representative groups affected by the decision in a collaborative process. They should be lauded for this initiative. I would certainly determine otherwise if there was evidence that they received and relied on advice from only one party in the dispute. That was not the case.

[69]            It is also to be remembered that we are dealing with an internal adjudication process. As discussed above, the requirements of procedural fairness are somewhat lower than for a quasi-judicial administrative body, such as the [1978] 1 S.C.R. 369">National Energy Board, the Board whose decision was at issue in Committee for Justice and Liberty, supra. To establish harsh and unwarranted rules on the grievance procedures would not achieve desirable outcomes. That is not to say that those affected by the decisions of the adjudicators under the Promotions CSO may be treated unfairly or capriciously. However, as discussed above, I see no evidence of such treatment in this case.

[70]            For these reasons, I believe that an informed person, viewing the matter realistically and practically would conclude that the Adjudicator would decide the issue before him fairly. Therefore, there is no reason to conclude that there was a reasonable apprehension of bias or impartiality of the decision-maker.

Conclusion

[71]            For the foregoing reasons, this application will be dismissed on the basis that:

1.     Those portions of the Promotions CSO that (a) eliminate the right of appeal set out in Part III of the Act and that eliminate the rights of a member to access his examination results and information, and (b) that portion of Policy D.7 that withholds access to the examination results are not ultra vires the powers of the Commissioner under the Act.

2.     The Adjudicator did not err in making his decision in that:

a.        the decision was not made in a manner that was perverse or capricious or without regard to the evidence before him;

b.       the Adjudicator did not unduly fetter his discretion or fail to exercise his jurisdiction by considering himself to be bound by Policy D.7;

c.        the Adjudicator complied with the requirements of fairness owed to Cst. Shephard; and

d.       the actions of the Adjudicator in consulting with the other adjudicators and requesting and taking into consideration information from the Commissioner's office did not give rise to a reasonable apprehension of bias?

Costs

[72]            Upon consent, this Court ordered on October 29, 2003 that parties may make submissions to the Court seeking directions with respect to the Order for costs, dated September 23, 2003, along with submissions on costs arising from this proceeding generally, following the issuance of this decision. Accordingly, parties will have until November 21, 2003 to serve and file submissions on costs in this matter and until November 28, 2003 to serve and file reply if any.

                                                  ORDER

THIS COURT ORDERS THAT:

1.    The Application for Judicial Review is dismissed;

2. Parties will have until November 21, 2003 to serve and file submissions with respect to costs and until November 28, 2002 to serve and file reply, if any.

    "Judith A. Snider"

Judge

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                       T-892-02

STYLE OF CAUSE:                      PAUL VINCENT SHEPHARD v.

J.C.G. FORTIN ET AL

PLACE OF HEARING:              ST. JOHN'S, NFLD.

DATE OF HEARING:                  MONDAY, OCTOBER 20, 2003

REASONS FOR ORDER

   AND ORDER:                          SNIDER J.

DATED:                                        THURSDAY, NOVEMBER 6, 2003

APPEARANCES:

MR. AUGUSTINE F. BRUCE AND                      FOR APPLICANT

MS. SHEILA OSBORNE-BROWN

MR. JAMES GUNVALDSEN-KLAASSEN     FOR RESPONDENT

SOLICITORS OF RECORD:

BENSON, MYLES                                                   FOR APPLICANT

ST. JOHN'S, NFLD.

MORRIS ROSENBERG                                      FOR RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA