Flood v. Attorney General of Canada, 2001 FCT 878

Date: 20010813

Docket: T-1115-00

Neutral Citation: 2001 FCT 878

Ottawa, Ontario, Monday the 13^th day of August 2001

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                      CORPORAL KEVIN DAVID FLOOD

ROYAL CANADIAN MOUNTED POLICE

                                                                                              Applicant

                                                 - and -

                 THE ATTORNEY GENERAL OF CANADA

                                                                                          Respondent

                    REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    At issue in this application for judicial review is whether the applicant, Corporal Flood, is a person "aggrieved" by the Performance Report for Promotion process so as to have standing under subsection 31(1) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 ("Act") to present a grievance.

THE FACTS

[2]    In December of 1997 a new promotion process, applicable to non-commissioned officer ranks, was implemented by the RCMP ("Force"). Central to that process was the requirement that members seeking promotion complete a Performance Report for Promotion ("PRP") based on eight areas of core competencies which were said to be common to all positions in the Force (for example, leadership). Members were required in the PRP to provide up to two verifiable examples of their performance for each of the eight core competencies.

[3]    A booklet distributed by the Force to explain the process advised that once the PRP was completed and submitted by a member to his or her supervisor, the supervisor would insert a recommended rating in each of the competency areas. All supervisors were to be trained in how to use the PRP to assess performance.

[4]    Once the supervisor completed the recommended rating section he or she was to meet with the member to discuss the ratings. After the recommended ratings were signed by both the supervisor and the candidate, the PRP was forwarded for review by a divisional or regional Performance Review Board ("PRB").

[5]                The PRB's job was to ensure a standardized approach to rating performance and to assign the final rating to candidates. The PRB was to either confirm or revise the supervisor's recommended rating.

[6]                A candidate's performance rating on the PRP was then converted to a numeric value. Candidates were also marked on a separate job simulation exercise. The PRP score and the mark received on the job simulation exercise were then combined, each counting one half towards the promotional score. Members were then ranked in the order of their total score results.

[7]                Corporal Flood participated in this process. At the time Corporal Flood initiated the process he was stationed in the Depot Division in Regina, Saskatchewan. However, during the promotion cycle Corporal Flood was transferred to the Calgary Commercial Crime Unit which is in Division K.

[8]                After the completion of the promotion process, Corporal Flood filed a grievance in July of 1998. In his written grievance Corporal Flood asserted that:

PRP scores submitted by corporals at Depot Division on average were the lowest out of the 15 Divisions completing in the process. The next Division with the lowest PRP score average was HQ. Each division across the country used their own respective PRP Boards supposedly all trained to function within the same set of parameters.

I am aggrieved by systemic error(s)which occurred as a result of the process used in the development of the Performance Report for Promotion (PRP) and/or the application of the Performance Review Boards (PRB). These are both serious flaws with the consequences being the same, that they have negatively affected my chances for promotion in the current promotion cycle.

[9]                Corporal Flood complained of two specific errors in the PRP process. First, that there was a systemic error in the system's capacity to accommodate itself to a variety of work environments. Corporal Flood asserted that non-operational PRP examples used by members were not afforded the same weight as were operational examples used by members in operational duties.

[10]            Second, Corporal Flood complained that the Force further erred by not allowing for deviation between PRBs by omitting to standardize PRP scores across the Force by Division.

[11]            In consequence, Corporal Flood asserted that those errors resulted in his inability to compete on a fair basis with other participants outside Depot Division. This was said by Corporal Flood to have greatly disadvantaged his chances for promotion.

[12]            The response to the grievance was to refer it to a Level I adjudicator for a ruling on the issue of Corporal Flood's standing to grieve. This step was taken prior to providing Corporal Flood with any material relevant to his grievance, as evidenced by the memorandum of March 18, 1999 from the grievance respondent requesting a ruling on standing.

[13]            The Level I adjudicator denied the grievance on grounds that the grievance did not meet the requirements of subsection 31(1) of the Act and that Corporal Flood's grievance application was brought out of time.

[14]            Corporal Flood then requested that the decision be forwarded to a Level II adjudicator for review.

[15]            The Level II adjudicator denied Corporal Flood's grievance for lack of standing. The Level II adjudicator did not consider it necessary to rule on the issue of whether or not the grievance was brought out of time.

[16]            Corporal Flood brings this application for judicial review of the Level II adjudicator's decision.

PRELIMINARY EVIDENTIARY ISSUE

[17]            The respondent objected that Corporal Flood had put evidence before the Court on this application for judicial review which was not before the tribunal. Preliminary argument was heard on this point.

[18]            During that argument, the respondent submitted that the Court should not have regard to Exhibits A, B, and I to Corporal Flood's affidavit, or to any part of the body of the affidavit which dealt with those exhibits. Corporal Flood did not contest the respondent's position with respect to Exhibits A and B, but did contest its position with respect to Exhibit I. Corporal Flood argued that this information was before the adjudicator.

[19]            Exhibit I was an update as to how Division E was dealing with members in that division whose PRP scores were changed by more than a certain percentage, and contained information purporting to be from the individual who designed the PRP process. That this information was before the Level II adjudicator was shown, Corporal Flood said, by the fact that his response to the Level I grievance referenced the treatment of "E" Division toward the issue of standing, and by the Level II adjudicator's comment in his decision that a division cannot waive standing.

[20]            At the conclusion of the argument of the preliminary issue, I ruled that the contents of Exhibits A and B could not be relied upon. Because I was satisfied that the Level II adjudicator had some knowledge or information before him of what was transpiring in Division E, I ruled that those facts could be referenced at the oral hearing. However, I reserved my decision as to the extent to which reference to the Division E treatment of grievance was relevant and admissible and the extent to which the information from the designer of the PRP process was admissible.

[21]            Having heard the arguments of the parties, I remain satisfied that the Level II adjudicator knew and considered that in Division E standing to present a grievance was acknowledged where a PRP mark was significantly altered by a supervisor. It follows that evidence to this effect was properly before the Court. However, I find that evidence to be of little value. I agree with the Level II adjudicator that standing is a statutory requirement which cannot be waived by a division. The treatment of grievances by one division is not relevant to the question of whether this member of the Force has met the requirements of section 31 of the Act. I have not been satisfied that the information from the designer of the process was before the Level II adjudicator and have ignored it. It should not have formed part of the record before the Court.

APPLICABLE LEGISLATION

[22]            The requirement of standing in order to advance a grievance is found in subsection 31(1) of the Act which provides:

THE LEVEL II ADJUDICATOR'S DECISION

[23]            In applicable part, the reasons of the Level II adjudicator were as follows:

The Grievor identified two sources of aggrievement. The first one is the "systemic error in the system's capacity to accommodate itself to a variety of work environments, that is non-operational PRP examples used by members were not afforded the same weight as were operational examples used by members in operational duties." The Grievor contends that the lower PRP average score of Depot, the NCR and HQ Divisions support this statement. Thus a systemic bias against non-operational members. The second source of aggrievement is the lack of standardization. The Grievor suggest[s] that scores ought to be standardized across divisions. The redress sought was two-fold: the PRP ratings at Depot be correctly rated, and standardization of the numbers between the rating Boards across the Force (or at least by division).

[...]

The Grievor is very much in the same situation as the member who wishes to grieve a language requirement because of disagreement. The Grievor did not show how the stated systemic bias against non-operational members or lack of standardization affected the member personally. I have no evidence of personal aggrievement before me. I take notice of the fact that Depot Division is a small division. The GR states that fifteen Depot Corporals scored in the top 25% on the Sergeant National promotion list, four of them being in the top 10%. I have no indication of whether this Grievor scored high or low, of whether this member gave only administrative examples (which can also be done by operational members) or on whether the Grievor's PRP was demonstrably poorly rated because of the member's present duties. Said otherwise, the Grievor alleges a systemic bias and his disagreement but does not relate this alleged error to a personal prejudice.

On the issue of standardization, the Grievor's lack of standing is even more apparent. The Grievor clearly disagrees with the actual policy on standardization. In no way did the Grievor show the personal prejudice. Broadly applied, standardization puts everyone on equal footing, including members with very low scores, even if they deserved it. It may also bring members with high scores down, even if the high score is deserved. In the instant grievance, the Grievor has not shown in any way how he was affected.

This is sufficient to decide that the Grievor does not have standing.

[...]

The Grievor did not discuss his personal score and did not show how he was personally affected in an unfair manner. The Grievor did not present any arguments as to why the PRB's scoring in any of the competencies was erroneous with respect to the Grievor's PRP. [underlined in original]

THE ISSUES

[24]            In this application for judicial review Corporal Flood raised three issues:

1.          Did the Level II adjudicator err in law in deciding that the applicant had not been personally aggrieved within the meaning of subsection 31(1) of the Act?

2.          Did the Level II adjudicator err in law in not addressing the issue of whether or not the applicant filed his grievance within the limitation period mandated by subsection 31(2) of the Act?

3.          If the Level II adjudicator erred in law in not addressing the limitation issue, should an order in the nature of mandamus issue to compel the RCMP to deal with the applicant's grievance on the merits?

STANDARD OF REVIEW

[25]            The parties disputed the applicable standard of review. Corporal Flood contended that the standard of review of correctness must be applied because the adjudicator's decision goes to jurisdiction.

[26]            The respondent argued, on the basis of the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 that the applicable standard of review is reasonableness simpliciter. In the alternative it was submitted that the appropriate standard of review should be correctness.

[27]            The pragmatic and functional analysis resorted to for determining the standard of review requires consideration of the following factors: the existence of a privative provision, the expertise of the decision-maker, the purpose of the Act as a whole and the specific provision in particular, and the nature of the problem.

[28]            Applying these factors in turn, some deference is suggested in this case by subsection 32(1) of the Act which limits recourse to judicial review of a decision made at the final level of the grievance process.

[29]            The relative expertise of the decision-maker is the most important factor to consider. I cannot conclude that the determination of standing involves any specialized knowledge on the part of the Level II adjudicator relative to the expertise of a Court. Expertise is closely related to the nature of the problem. Here, while the question of standing is a question of mixed law and fact it is more a question of law than one involving findings of fact, and resolution of the question may have precedential impact upon future decisions. The lack of relative expertise and the precedential value both counsel less deference.

[30]            Finally, as to the purpose of the Act as a whole and section 31 in particular, the Act regulates, in part, the rights of members of the Force, and confers the right to grieve on members of the Force. The issue of standing is not polycentric. This factor again counsels less deference.

[31]            The result of the exercise of applying these factors to determine the appropriate standard of review is not always perfectly clear or manifest. However, applying these factors to the decision under review leads me to conclude that the applicable standard of review is one of correctness.

ANALYSIS

[32]            There is little dispute between the parties as to what, as a matter of law, is entailed in the requirement that a member be aggrieved. The parties are agreed that what is required is that the decision, act or omission complained of must have a negative, personal impact on the member. The parties are also agreed that the standing requirement is not onerous.

[33]            The RCMP External Review Committee ("ERC") which under the Act has jurisdiction with respect to certain kinds of grievances has developed a body of authority which has interpreted the requirement of standing. Both parties referred the Court to decisions of the ERC, and the Level II adjudicator also relied on prior ERC decisions.

[34]            In decision 2800-92-001, the ERC considered the issue of standing in the context of a grievance in relation to the linguistic requirements for the staffing of a particular position. The ERC wrote, redacting its reasons in order to preserve confidentiality:

This onus, in the relatively informal atmosphere of grievance resolution under the Act, is not to be interpreted in an overly formal or legalistic manner such that it becomes difficult for grievors to meet; in the current case, the Grievor might have demonstrated standing merely by indicating:

-                he applied for the position, but was rejected because he did not meet the language requirements;

-                he wished to apply for the position, but felt barred from doing so because he did not meet the language requirements.

I emphasize that the above are only examples of what might constitute evidence that the Grievor was aggrieved. The record before me, however, does not contain any sign at all of these minimal indications of standing; nor does the Grievor demonstrate in any other way that he was aggrieved.

I am aware, of course, that the Grievor is a _______ and the NCO in charge of the Detachment and that the position which he grieves - a _____________'_ _______ __ __ ___ ________ - could be viewed as a natural promotion for him. In my view, however, this provides insufficient grounds to find standing: to infer that the Grievor is promotable, interested in the position, and did not meet the language requirements from the mere fact that the ______'_ position might be viewed as a natural promotion for him would be to stretch an inference. [reproduced as in original]

[35]            In decision 3300-93-014, the ERC wrote:

While standing does require that a member's rights be at issue, it should be emphasized that the question of standing is not a question of the merits of the grievance. Whether a member's particular right actually exists in a given situation, and should be upheld, is a question of the merits, not a preliminary question of standing.

[...]

A member is not prevented from being aggrieved just because the Force asserts that it is applying Force policy. The "aggrieved" requirement does not prevent a member from challenging the validity and/or interpretation of Force policy; it only requires that the member have a personal interest in the matter in order to do so. Further, whether the Grievor can successfully challenge Force policy in maintaining the rights he asserts is a question of the merits, not of standing. I thus find that the Grievor has standing. [underlining in original]

[36]            I take from these decisions the following principles. The grievor must demonstrate standing. If there are insufficient grounds to demonstrate standing then standing should not be inferred, and where a member challenges what is a policy of the Force the member must also show that the policy has a negative personal impact on the member.

[37]            Having regard to those principles, which in my view correctly embody the concept behind the requirement of aggrievement, I have concluded that the Level II adjudicator did not err in concluding that Corporal Flood lacked standing to pursue his grievance.

[38]            In so concluding, I have considered the following.

[39]            The adjudicator reviewed at the outset the two grounds of complaint and correctly noted that they went, first, to a systemic bias against non-operational members and, second, to a lack of standardization. The adjudicator then looked at the redress sought by Corporal Flood in his grievance. That redress was as follows:

That the PRP ratings at Depot be correctly rated without prejudice and/or that there be a standardization of the numbers between the rating boards across the Force. If standardization is not done by individual PRB's then at least by Divisions.

[40]            There is nothing in that relief specific to Corporal Flood and no assertion that his situation would be ameliorated if the redress sought was granted.

[41]            The adjudicator went on to note that the member provided no evidence of personal aggrievement and failed to relate the alleged errors to the member's prejudice. I have carefully considered the adjudicator's use of the word "evidence". I conclude that the adjudicator was not testing the merits of the grievance, but was looking for allegations particularizing the impact on the member.

[42]            In that regard, Corporal Flood did not assert that he had given non-operational examples which, if properly evaluated, would deserve a higher score. Corporal Flood simply posited that since Depot Division had the lowest statistical PRP scores on average there had to be an error in the process. It was left to be inferred that any error or errors negatively impacted on Corporal Flood. However, a statistical analysis by itself does not demonstrate a particular error with respect to Corporal Flood's PRP and no errors specific to his PRP were alleged in the grievance. No issue was taken with any rating assigned to Corporal Flood by the PRB. The grievance was silent as to whether the PRB raised, lowered or left unchanged Corporal Flood's supervisor's recommended rating.

[43]            With respect to the issue of standardization Corporal Flood merely asserted that it was "unconscionable to think that all of these PRB's would evaluate some 1,825 Cpl. PRP's using the same level of cognizance in coming to their conclusions and that all PRB's were operating and applying the rules identically" and relied upon the fact that he had changed divisions to establish standing. However, the adjudicator correctly found that no personal prejudice was shown (or even asserted) by that bare allegation.

[44]            Having noted those deficiencies, the adjudicator concluded, in my view correctly, that the grievance did not meet the requirements of subsection 31(1) of the Act.

[45]            Once the adjudicator correctly found that Corporal Flood had failed to establish standing to pursue his grievance, the adjudicator was not, I find, obliged to consider whether the grievance had been filed out of time. The adjudicator did not err in failing to address that issue.

[46]            For these reasons, the application for judicial review will be dismissed.

[47]            The respondent did not seek costs and so none are awarded.

ORDER

[48]            IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed without costs to either party.

"Eleanor R. Dawson"

                                                                                                                     Judge