Horton v. Canada (Attorney General), 2004 FC 793

Date: 20040531

Docket: T-1519-03

Citation: 2004 FC 793

BETWEEN:

                                                    ROBERT CURTIS HORTON,

                                                                                                                                           Applicant,

                                                                         - and -

                                        THE ATTORNEY GENERAL OF CANADA,

                                                                                                                                       Respondent.

                                                        REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                Royal Canadian Mounted Police (RCMP) Corporal Robert Curtis Horton was the only member of the Police Dog Service (PDS) Unit in Victoria, British Columbia during the period relative to his grievance. He seeks judicial review of the Level II adjudicator's decision dated April 15, 2003.

FACTS

[2]                Corporal Horton has been a member of the RCMP for more than 23 years. It appears that he has served as a dog-handler with PDS since 1980. He considered himself to be on-call at all times. In 1992, the RCMP began a two-year trial period with respect to a voluntary on-call program that permitted compensation for members being on-call outside regular hours. In general terms, Bulletin AM-1885 provided for one hour of on-call regular time off, for each eight-hour period of on-call outside regular hours accumulated, to a maximum of two days per month. Corporal Horton participated in this program.

[3]                On August 30, 1995, Bulletin AM-2104 cancelled Bulletin AM-1885. The new policy in AM-2104 related to a classification labelled "Standby Level II" (SL-II) and provided for certain RCMP members to be compensated for being on-call outside regular hours by way of time off, cash payment, or a combination thereof. Related administrative documents apparently indicated that General Duty Units would be authorized to be placed on SL-II. There was no such reference with respect to the PDS Unit.

[4]                Corporal Horton claimed that he first saw a copy of AM-2104 on October 6, 1995, and that he immediately drafted a memorandum outlining the reasons why, as the only dog-handler in the PDS Unit, he should qualify for placement in SL-II and requesting a response as to whether he so qualified. He hand-delivered the memorandum to his officer-in-command (OIC), Inspector Cheney. He claimed that, within 15 minutes, Inspector Cheney met with him and informed him that he would not be paid for being on-call outside regular hours because there were not sufficient monies. Inspector Cheney did not, however, have a problem with his continuing to take the two additional days off each month. Corporal Horton advised that he was not entitled to the days off under the new policy and that he would be keeping a record of his accumulated on-call hours. Corporal Horton stated that Inspector Cheney returned the memo to him and left.

[5]                Other than keeping track of his time, Corporal Horton did nothing further until December 19, 1997. On that day, he submitted a formal written request to the new OIC, Inspector Betker, for standby compensation. The time records indicated 7, 439.5 on-call outside regular hours worked. The result was 929.9 standby hours claimed from September 1995 to December 31, 1997. Inspector Betker denied the request.

[6]                On January 14, 1998, Corporal Horton filed a grievance with respect to Inspector Betker's decision. He grieved that from September 1995 to December 1997 he voluntarily made himself and his dog available during "quiet hours" for emergency call out service. This availability was frequently taken advantage of by the RCMP as well as other local police departments. It was, Corporal Horton said, in November of 1997 that Inspector Betker requested that the municipality of Victoria provide a police dog team to assist him, yet when he requested compensation for standby duty he was denied.

[7]                Inspector Betker, in response, claimed that the PDS Unit did not meet the criteria set out in the policy. Neither the detachment nor the PDS Unit were authorized by Division to employ SL-II. Consultation with his predecessor, Inspector Cheney, revealed that he (Cheney) had never authorized SL-II for Corporal Horton nor had Horton ever requested payment of SL-II. Inspector Betker maintained that, under the budget, SL-II for Corporal Horton could neither be justified nor afforded.

[8]                The grievance of January 14, 1998, was filed pursuant to section 31 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act). On November 27, 2000, a Grievance Advisory Board (GAB) recommended that the grievance be denied. The three-member board determined that although the matter was not resolved in October 1995, when Corporal Horton met with his OIC, it was clear to him that he was not approved to claim SL-II. The appropriate action was for Corporal Horton to have advanced his position through his PDS supervisor to the CO for direction. Based on the evidence, the GAB determined that there was nothing to indicate that Corporal Horton "had received appropriate authorization to place himself on SL-II other than by his own initiative". It recommended that the grievance be denied.

[9]                On June 26, 2001, Corporal Horton requested further review. He alleged that the GAB failed to address and to properly examine and consider a number of issues in recommending that the grievance be denied. The Level I adjudicator identified her mandate as determining whether "(a) force policies and procedures had been followed; (b) all relevant and applicable information had been considered; and, (c) the member had been equitably treated". She determined that the listed communities covered by the SL-II policy did not include Western Communities Detachment PDS Unit. The Level I adjudicator agreed with the GAB recommendation, found that Inspector Betker had correctly interpreted the policy, and determined that the three considerations of her mandate had been met. She denied the grievance on January 23, 2002.

[10]            On February 19, 2002, Corporal Horton requested review by a Level II adjudicator and, among other things, alleged that local authorities could place him on standby even if the unit is not one named in the appendix. The Level II adjudicator approached the matter on the basis of the "timeliness of the grievance". He examined, first, the question of standing and satisfied himself that Corporal Horton had the requisite standing to present a grievance. He then turned his attention to paragraph 31(2)(a) of the Act. That provision reads:

A grievance under this Part must be presented

(a) at the initial level in the grievance process, within thirty days after the day on which the aggrieved member knew or reasonably ought to have known of the decision, act or omission giving rise to the grievance ...

[11]            The Level II adjudicator then asked: "When did Corporal Horton first become aware, or ought to have become aware, that his request for payment of his standby hours would be refused?" He indicated that in relation to Inspector Betker's denial of the claim on December 19, 1997, Corporal Horton would be within the limitation period. However, based on an examination of the documentation and particularly Corporal Horton's statements, the Level II adjudicator found that Corporal Horton ought to have known, when he met and discussed the matter with Inspector Cheney on October 6, 1995, that any claim for his standby hours would not be accepted.

[12]            He determined that, during that meeting, Corporal Horton "was told, in no uncertain terms, that he would not be receiving payment for on-call... [and] there is no doubt that he saw Insp. Cheney as the person having the delegated authority to authorize standby". The Level II adjudicator concluded that Inspector Betker's response, in December 1997, should not have surprised Corporal Horton since "he had already been told over two years earlier that he would not be paid". The Level II grievance was denied on the basis that it was "presented outside of the statutory time frame as outlined in the RCMP Act".

ISSUES

[13]            Corporal Horton identifies three issues:

(a)        What is the appropriate standard of review?

(b)         Did the Level II adjudicator err in law in deciding that the grievance was barred by the limitation period?

(c)         Has the RCMP failed to observe a principle of natural justice by delaying the grievance process?

THE STANDARD OF REVIEW

[14]            Corporal Horton argues that the applicable standard of review in circumstances where the decision is based upon a statutory limitation period is different than that applicable to the grievance itself. The standard of review should be correctness because the Level II adjudicator is no better positioned than the court to determine questions relative to a limitation period. He submits that there was no interpretation of policy or any decision on the merits by the Level II adjudicator and an erroneous interpretation could set a precedent for future grievances.

[15]            The respondent counters that, based on a pragmatic and functional analysis, the standard of reasonableness should apply. Some deference is suggested by subsection 32(1) of the Act. The nature of the question, says the respondent, is important for determining relative expertise. The question, "when did Corporal Horton first become aware, or ought to have been aware, that his request for payment of his standby hours would be refused", is one of fact. The respondent, relying on Canada (Director of Investigation & Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, says that the court should be reluctant to re-examine this conclusion. The respondent maintains that the purpose of the Act is polycentric, but the particular provision in question is not and therefore this is a neutral factor. The nature of the problem points to a high degree of deference.

[16]            In my view, the Level II adjudicator had to determine, as a matter of law, whether the grievance was filed within the limitation period. In making that determination, he had to decide first, as a matter of fact, when Corporal Horton knew or reasonably ought to have known of the decision, act or omission giving rise to the grievance: paragraph 31(2)(a) of the Act. The determination of the first question follows irresistibly from the determination of the second. A pragmatic and functional analysis with respect to the second question supports the position of the respondent that, in these circumstances, the applicable standard of review is reasonableness.

[17]            The first factor, the statutory mechanism of review, militates in favour of some deference because the decision is final and binding and except for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, is not subject to appeal or review by any court: Millard v.

Canada (Attorney General) (2000), 253 N.R. 187 (F.C.A.).

[18]            The second factor is that of expertise. Here, the decision-maker can be presumed to have a certain level of expertise in relation to the grievance process. More importantly and overlapping with the nature of the question, the Level II adjudicator is charged with the responsibility of determining the factual basis upon which the ultimate determination will rest. This factor also militates in favour of deference.

[19]            The third factor, the purpose of the legislation and the provision in particular, points to less deference. The purpose of the grievance provisions of the Act is to resolve labour disputes or matters affecting the terms and conditions of RCMP members. The issue, here, deals with the individual rights of the member and cannot be said to be polycentric in nature.

[20]            The final factor involves the nature of the problem. The question, as previously noted, is one of fact, i.e., when did Corporal Horton know or reasonably ought to have known of the decision, act or omission? If I am wrong in this respect, at its highest, it is a question of mixed fact and law that is more fact-intensive. Either way, the factor favours deference.

[21]            Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness.

THE APPLICATION OF THE REASONABLENESS STANDARD OF REVIEW

[22]            Corporal Horton argues that paragraph 31(2)(a) of the Act incorporates the "discoverability" rule, the purpose of which has been to mitigate the harshness of the strict enforcement of limitation periods. He submits that the Level II adjudicator used the provision to shorten the applicable limitation period, which could lead to absurd results. For instance, if an individual anticipated a dismissal more than 30 days before it happened, the member could not grieve the dismissal. The adjudicator, says Corporal Horton, confused the merits of the grievance with the limitation period and the grievance ought not to have been dismissed without consideration of the arguments.

[23]            The respondent maintains that the discoverability principle was not violated for three reasons. First, Corporal Horton was not under a disability or lacking knowledge regarding the decision. Second, he received a decision in 1995, but ignored it. Third, he discovered, in 1995, that he would not be paid for standby.

[24]            The discoverability principle was developed in the context of tort law and has been legislated in most Canadian jurisdictions in relation to limitation periods. Normally, it applies to tort victims who are incapacitated (legally or personally) during a portion of the limitation period, or who suffer harm that is not immediately apparent at the time of the tort: K.E.G. v. G.R. (1992), 64 B.C.L.R. (2d) 275 (S.C.). Its effect may be to extend a limitation period, but its purpose is to prevent a person, who did not or could not have known of his or her injury, from being deprived of a cause of action. Put another way, it is to temper the effect of harsh limitation periods for those who would otherwise have a legitimate cause of action.

[25]            In the RCMP Act, the discoverability principle has been legislated into an administrative law context. I note Corporal Horton's expressed concern that the Level II adjudicator's application of the principle could shorten limitation periods, but in my view, that concern fails to withstand scrutiny. The anticipation of a decision does not affect the time of actual decision-making. The Level II adjudicator did not find that Corporal Horton anticipated a negative decision in October, 1995. Rather, he determined that Corporal Horton had actual knowledge of a prior negative decision so that the second decision "should have come as no surprise". The issue, on this application, is whether that determination was reasonable.

[26]            In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Mr. Justice Iacobucci, for a unanimous court, stated at paragraphs 46, 47 and 55:

46. Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did.    [...]

47. ... The standard of reasonableness basically involves asking "after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" ... Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter. [...]

55. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.

[27]            A somewhat probing examination of the documents before the Level II adjudicator leads me to conclude that the adjudicator's conclusion that Corporal Horton "ought to have known that any claim for his standby hours would not be accepted when he met and discussed the matter with Insp. Cheney on 95-10-06" was open to him. The record discloses a number of statements by Corporal Horton that could reasonably lead the adjudicator to his conclusion. Specifically, I note the following from Corporal Horton's submissions:

-          When I first saw a copy of the AM Bulletin 2104, on October 6, 1995, I immediately drafted a memo, to the then OIC Western Communities Det., Insp. P.N. Cheney and delivered it to his office by hand in the afternoon of that day.

-          Insp. Cheney stated that he felt Division would not be prepared to pay me as they did not have sufficient monies.

-          On 1995-10-06, since (sic) it was obvious on that day he [Cheney] was not prepared to support me by forwarding my original memo through channels, as per the policy directive under AM Bulletin 2104.

-          I found it rather demoralizing when Insp. Cheney's response was not to support me in my efforts to receive fair and equitable compensation but to only announce that Division did not have the funds and would not compensate me financially.

-          Clearly he [Cheney] had the delegated authority to authorize standby level II.

-          [In submitting his grievance to the Level I adjudicator, Corporal Horton noted] that Insp. P.N. Cheney, OIC WCD failed to approve my Standby Level II, even though he clearly had authority...

-          At one point, upon his refusal to forward my formal request for standby level II, Inspector Cheney offered to reimburse my on call time by way of time off, however, when pressed to place this in writing, he declined.

-          [In his submission to the Level II adjudicator] For "Voluntary On Call" line authority is not necessary. If in deliberation one disagrees with that position, then I believe I have adequately proved that the approval existed and continues to exist despite the denial by both OIC's.

[28]            Applying the deferential self-discipline mandated by Ryan, supra, I am unable to conclude that the Level II adjudicator's decision - that Corporal Horton knew in October 1995, that he would not be compensated for Standby Level II - was not reasonably open to him. Thus, after concluding as he did, the adjudicator correctly determined that the limitation period set out in paragraph 32(2)(a) of the Act began to run in October 1995, and Corporal Horton's grievance was "presented outside of the statutory time frame as outlined in the RCMP Act".

DELAY AND NATURAL JUSTICE

[29]            The only request Corporal Horton makes in this respect is that, in addition to quashing the decision, I direct that the matter be decided, on its merits, in a timely manner. Since Corporal Horton has not been successful in having the Level II adjudicator's decision quashed, I need not deal with this submission. The issue of the timeliness in which the RCMP deals with grievances is best left to a day when the issue may have an impact on the result.

[30]            The application for judicial review will be dismissed and an order will so provide. The respondent did not request costs and none are awarded.

__________________________________

    Judge

Ottawa,Ontario

May 31, 2004

                                     FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                             T-1519-03

STYLE OF CAUSE:                          ROBERT CURTIS HORTON

                                                                                     APPLICANT,

- and -

THE ATTORNEY GENERAL OF CANADA

                                                                                RESPONDENT.

PLACE OF HEARING:                      CALGARY, ALBERTA

DATE OF HEARING:                        MAY 19, 2004

REASONS FOR ORDER BY:          MADAM JUSTICE LAYDEN-STEVENSON

DATED:                                              MAY 31, 2004

APPEARANCES:

MR. D. ROBB BEEMAN FOR THE APPLICANT

MR. BARRY BENKENDORF FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MR. D. ROBB BEEMAN FOR THE APPLICANT

CALGARY, ALBERTA

MR. MORRIS ROSENBERGFOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA

OTTAWA, ONTARIO