Date:
20121116
Docket:
T-1158-11
Citation:
2012 FC 1325
Ottawa, Ontario,
November 16, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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JOHNATHON BRITTON
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Applicant
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and
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ROYAL CANADIAN MOUNTED POLICE
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
In
this application for judicial review, the applicant seeks to have certain
documents about his conduct removed from his Royal Canadian Mounted Police
[RCMP] training file.
[2]
Until
he resigned, the applicant was a cadet, training to become a member of the
RCMP. He first joined the RCMP training program in July of 2010. Towards the
end of the program, he received two “unacceptable” ratings, and his first
training contract was terminated on January 4, 2011. However, the RCMP offered
him the opportunity to rejoin the program to complete the portions of the
training he failed so he could graduate with the next group of cadets (a
process known as being “back-trooped”). The applicant accepted the offer and
signed a second Cadet Training Agreement on January 6, 2011.
[3]
The
Cadet Training Agreement provided, amongst other things, that the applicant was
not an employee of the RCMP and that the RCMP could terminate the applicant’s
training “at any time” if it determined he did not meet established performance
criteria, failed to abide by the policy and procedures set out in the Cadet
Training Handbook, or became involved in “any activity which may bring
discredit to the Cadet Training Program or the RCMP, including … harassment”.
[4]
During
the course of his training, the applicant became romantically involved with a
civilian employee of the RCMP, whom he alleges is the niece of a former RCMP
Commissioner. On January 25, 2011, that employee’s supervisor contacted the
facilitators of the cadet training program to lodge a complaint regarding the
applicant’s behaviour towards the female employee.
[5]
Facilitators
of the training program interviewed the employee and the applicant on January
25, 2011: Corporal Folk and Constable Clark interviewed the employee, while
Corporals Folk and Morrison interviewed the applicant. From these interviews,
it was determined that the applicant had pursued a relationship with the
employee, after she had indicated she did not want one, and had sent inappropriate
text messages to her, in which he used profanity and called her “a weak
female”. They also learned that the applicant made further inappropriate
comments to the complainant employee over the telephone. The applicant admitted
to much of this conduct during his interview.
[6]
On
January 27, 2011, following the interviews and receipt of favourable reports
from others who had been involved in the applicant’s training, Corporal Folk
made a recommendation to her superiors to cease the applicant’s training for failure
to meet the RCMP’s Core Values. These Values include integrity, professionalism
and respect. In accordance with standard procedure applicable to such
recommendations, the RCMP provided a detailed summary of Corporal Folk’s
factual findings to the applicant, along with a copy of a flow chart, outlining
the decision-making process for release of a cadet from training. The flow
chart clearly indicated that several more levels of approval were required
before a decision to terminate the applicant’s training could be made. The
applicant was invited to provide a rebuttal to the recommendation within the
standard 24-hour time frame contemplated in the RCMP’s policies (contained in
the cadet training materials).
[7]
Rather
than doing so, the applicant submitted his resignation in writing early in the
morning on January 28, 2011 and left the RCMP’s training facility that day. Since
that time, he has not attempted to withdraw his resignation.
[8]
The
applicant did not make the present application for judicial review until July
11, 2011.
[9]
In
his application, he alleges that his resignation was forced and is therefore
equivalent to a decision to terminate his training. He also argues that the
RCMP’s decision to cease his training should be set aside as it was procedurally
unfair and because the decision-makers were allegedly biased. He further
asserts that the recommendation to cease his training was unreasonable and
should be set aside for this reason as well. While the applicant originally
sought reinstatement, the only remedy he now seeks is an order that the reports
and recommendations made regarding his behaviour with the female employee be
removed from his file. In support of this remedial request, the applicant
relies on Gayler v Canada (Director Personnel Careers Administration Other
Ranks, National Defence Headquarters), [1995] 1 FC 801, 88 FTR 241, in
which a similar remedial order was issued (along with other remedies) in
circumstances where the RCMP was found to have denied the applicant procedural
fairness in not disclosing the basis for a termination recommendation.
[10]
The
RCMP, for its part, alleges that this application should be dismissed as
untimely because the applicant has not provided a satisfactory explanation of
why he delayed nearly six months before making his application for judicial
review. In the alternative, the RCMP asserts that it made no reviewable
decision within the meaning of section 18.1 of the Federal Courts Act,
RSC, 1985, c F-7 [FCA] and accordingly that this application should be dismissed
on a preliminary basis for this reason as well. In the further alternative, the
RCMP argues that it did not commit any breach of procedural fairness in its
treatment of the applicant, that there is no evidence of actual bias on the
part of those involved in making the recommendation to terminate the
applicant’s training and no basis upon which to conclude that there was a
reasonable apprehension of bias. Finally, the RCMP submits that if the
termination recommendation is reviewable, it was reasonable and entirely
appropriate given the behaviour of the applicant and the high standards the
RCMP rightly requires of its members.
[11]
Both
parties concur that costs should follow the event in this matter and should be
awarded in a lump sum fashion, but are not agreed as to quantum.
[12]
The
following issues therefore arise in this matter:
1.
Should
the time for making this application be extended;
2.
Did
the RCMP make a reviewable decision that may be the subject of a judicial
review application;
3.
Did
the RCMP commit a breach of the applicant’s rights to procedural fairness;
4.
Were
those involved in making the recommendation actually biased or is there a
reasonable apprehension of bias on the part of the RCMP in this matter;
5.
Was
the recommendation to cease the applicant’s training reasonable; and
6.
What
quantum of costs should be awarded?
[13]
For
the reasons set out below, I have determined that this application is untimely,
that an extension of time is not warranted and accordingly that the application
will be dismissed. I have also found that, even if this were not the case, the
RCMP did not make any reviewable decision that could be the subject of a
judicial review application, did not violate the applicant’s rights to
procedural fairness, that the claim of actual or apprehended bias is without
merit and that the recommendation to cease the applicant’s training was
reasonable. Therefore, even if this application had been made in a timely
fashion, it would nonetheless have been dismissed. Finally, in terms of costs,
I have determined that a lump sum award in the amount of $2000.00 is
appropriate. Each of these matters is more fully discussed below.
Should the time for making this
application be extended?
[14]
Subsection
18.1(2) of the FCA establishes a time limit of 30 days within which to bring an
application for judicial review. The 30 days run from the date an applicant
becomes aware of the decision giving rise to the application. Subsection
18.1(2) of the FCA provides the Court discretion to extend the time period for
making an application. The case law establishes that the criteria normally
considered by the Court in the exercise of such discretion include: the
presence of an intention to initiate a judicial review application formulated
within the 30 days following the decision, which continues until the date the
application is made; a reasonable explanation for the delay, which involves
consideration both of the length and cause of the delay; the absence of
prejudice to the respondent; and demonstration that the application has some merit
(see e.g. Canada (Attorney General) v Hennelly, [1999] FCJ No 846 (CA); Muckenheim
v Canada (Employment Insurance Commission), 2008 FCA 249). The Federal
Court of Appeal has commented that the short time frame to commence a judicial
review application is in the public interest as it ensures the finality of
administrative decisions (Berhad v Canada, 2005 FCA 267 at para 60,
leave to appeal to SCC refused, [2005] SCCA No 457).
[15]
Here,
the events giving rise to this application occurred over the time period from
January 25 to January 28, 2011. There is no evidence that the applicant
formulated an intention to seek judicial review during the 30 days following
January 28. Indeed, the first indication in the record that the applicant
sought redress was a letter from his counsel dated March 9, 2011 which asked
for information as to the internal appeal or review options open to the
applicant (see Certified Copy of Cadet Training File and Staffing File of
Johnathon Britton [Certified File] at p 261).
[16]
With
respect to the reasons for the delay, counsel for the applicant argued that the
applicant did not commence this judicial review application within a timely
fashion because he feared that doing so would lead to the initiation of
criminal charges against him by the RCMP. Counsel thus asserted that the
applicant waited until the expiry of the six month limitation period for the
laying of a charge for a summary conviction offence before bringing this
application. Counsel argued that his client’s alleged fear was reasonable given
the fact that the RCMP read the applicant a caution before conducting his
interview.
[17]
There
are two problems with this argument. First, there is precious little in the way
of evidence from the applicant to support it. All he states in his affidavits
before the Court is that he was “was and still [is] weary [sic] of Court
action against the RCMP given that it was intimated that criminal charges might
be pressed” and that he was confused about the legal avenues that might be open
to him when he signed the letter of resignation (Applicant’s Record at p 37).
This falls well short of explaining why the applicant waited nearly six months
to commence this application. Secondly, and perhaps more importantly, the
proffered reason for the delay does not accord with the facts because the
applicant did not actually wait until the six month limitation period expired
before commencing this application. The applicant sent the text messages and
made the phone call during which he made the comments to the employee that gave
rise to her complaints on January 23, 2011, yet this application was instituted
on July 11, 2011, which is less than six months from the events in question. It
is thus apparent that the explanation offered by counsel for the delay in
instituting this application does not bear weight.
[18]
In
the absence of a reasonable explanation for the delay, the length of the delay,
which is significant when compared to the 30 day time limit provided in the
FCA, and the absence of proof of any continuing intention to institute this
application, there is no reason why the time limit for commencing this
application should be extended. In addition, as is discussed below, this
application is without merit, and this represents a further reason why it is
not appropriate to extend the time limit for bringing this application.
Accordingly, in the exercise of my discretion under subsection 18.1(2) of the
FCA, I have determined that I will not extend the time limit for commencing
this application and that it will thus be dismissed. However, as previously
mentioned, the arguments raised by the applicant on the merits are without
merit, and, thus, the application would be have been dismissed even if it had
been made in a timely fashion.
Did
the RCMP make a reviewable decision that may be the subject of a judicial
review application?
[19]
Turning,
then, to the other arguments made by the applicant, as noted, he first asserts
that his resignation should be considered to be the equivalent of a decision by
the RCMP to terminate his training because he alleges that his decision to
resign was not voluntarily. In support of this contention he alleges that he
was informed by representatives of the RCMP that there was a strong case
against him, that resignation was an option, that his termination was imminent
and that criminal charges were being considered. From these facts he argues
that the RCMP’s conduct should be considered to be the equivalent of a decision
to terminate his training, which is reviewable under section 18.1 of the FCA.
[20]
There
is case law from this Court suggesting that a decision of the RCMP to cease the
training of a cadet is a decision which may be the subject of a judicial review
application under section 18.1 of the FCA (Kuntz v Canada (Attorney
General), 2006 FC 815, [2006] FCJ No 1038 [Kuntz]; see also Linnell v
Canada (Attorney General) (1996), 119 FTR 265, [1996] FCJ No 1168). There is likewise
authority in the employment context, which arguably might be applied to the
situation of RCMP cadet trainees, which indicates that forced resignations are
the equivalent of terminations.
[21]
The
applicant argues in this regard that resignations tendered in response to
material adverse changes unilaterally imposed by the employer are considered
the equivalent to an employer-initiated termination in constructive dismissal
cases (citing Farber v Royal Trust Co, [1997] 1 S.C.R. 846) and argues that
the constructive dismissal cases are analogous to his situation. I disagree. The
present case is not analogous to a constructive dismissal because the RCMP did
not impose changes to the applicant’s terms and conditions of engagement as a
trainee. More relevant is the line of authority which holds that a resignation
is equivalent to a termination if it is tendered in circumstances where the
employee is told he or she will be fired if the resignation is not tendered
(see e.g. Deters v Prince Albert Fraser House Inc, [1991] SJ No 409, 93
Sask R 205 (Sask CA).
[22]
The
applicant’s case, however, is distinguishable from those where employees are faced
with the stark choice of being fired or resigning. Contrary to what the
applicant asserts, there is no evidence to indicate that the RCMP told the
applicant that criminal charges were being considered: rather, all that
occurred is that he was read a caution before he was interviewed. This falls
far short of a threat of prosecution. Nor was the applicant told that the
termination of his training was imminent; rather, the interviewers merely told
him that they would be recommending termination of his training. As already
discussed, the flow chart the applicant was given detailing the termination
process indicated that the recommendation was but the first step in a
multi-step process, where the concurrence of several others would have been
required to effect a termination. As counsel for the respondent correctly
notes, the applicant was familiar with the processes applicable to terminations
of cadets’ training as he had been through the process just a few weeks previously
under his first Training Agreement. There, the decision-makers at the initial
level had recommended termination but this recommendation was ultimately not
followed as he was back-trooped (see Certified File at pp 128-138). The
evidence also demonstrates that the applicant was informed of the details of
the conduct with which he was reproached, was given adequate time to seek legal
advice and was afforded the standard 24 hours within which to respond to the termination
recommendation but chose not to do so.
[23]
In the circumstances, the termination of the applicant’s
training was not a forgone conclusion at the point the applicant tendered his
resignation as the concurrence of several others in the RCMP hierarchy was
required before the termination could have been effected. The circumstances of this
case are similar to those in Thompson v Sawyer, [1986] AWLD
727, 68 AR 311 (Ab QB), where a probationary officer with a poor employment
record was given the option to resign or to have his dismissal recommended to
superiors. The officer chose to resign and the resignation was found to be
voluntary because, despite the alternative that had been presented, it was
found to be free from duress, threats or coercion.
[24]
Similarly, in Head v Ontario Provincial Police
Commissioner (1981), 40 OR (2d) 84, 127 DLR (3d) 366 (Ont CA), aff’d [1985]
1 SCR 566, the Ontario Court of Appeal found the resignation of a
police officer to be voluntary, notwithstanding that it came after an extended
interrogation during which he was told that he was under arrest for gross
indecency and would be suspended from the force. While recognizing that the
police force was likely eager to have the officer resign, the Court of Appeal
reasoned that “[b]efore the resignation in this case can be said to be ‘no
resignation’ the respondent must demonstrate that he was the subject of such
duress or coercion that the resignation was truly not voluntary, that is, not
the act of his own free will. The facts in this case fall far short of this
measure.” (at para 6).
[25]
Here, when confronted with the recommendation and being
advised of the option of resigning, after having been afforded some time to
think the issue through, the applicant chose to resign. On these facts, and in
keeping with the jurisprudence just cited, his resignation is not the equivalent
of a termination but rather is voluntary. The situation is also somewhat
analogous to that considered in Bouchard v Canada (Minister of National
Defence) (1998), 18 Admin LR (3d) 7, 158 FTR 232 (TD), affirmed on appeal
on different grounds at [1999] FCJ No 1807, relied on by the RCMP, where this Court held that a
refusal to allow an employee to withdraw her resignation did not give rise to a
reviewable decision within the meaning of section 18.1 of the FCA.
[26]
Thus,
because the applicant’s decision to resign was made voluntarily, the RCMP made
no decision which may be the subject of a judicial review application under
section 18.1 of the FCA in this case.
Did the RCMP commit a breach of
the applicant’s rights to procedural fairness?
[27]
Turning,
next, to the applicant’s allegations regarding procedural fairness, he claims
that the RCMP violated its obligation to accord him “an average degree” of
procedural fairness in:
1.
Providing
him no notice of the hearing that the applicant alleges occurred during his
exit interview;
2.
Not
allowing him to have counsel present during the alleged hearing;
3.
Not
providing full disclosure of the evidence against him; and
4.
Not
providing him an opportunity to challenge the evidence that was used against
him.
[28]
None
of these allegations has any foundation and as such they may be disposed of
quickly.
[29]
The
applicant alleges that the exit interview was in fact a termination hearing,
during which his fate was decided. This allegation, however, is not supported
by the evidence. Sergeant Christopher Short conducted the exit interview on
behalf of the RCMP, which was also attended by Corporal Curtis Davis, and both
provided affidavits as to what occurred. Their affidavits confirm that the
interview was not a hearing to determine whether or not the applicant would be
terminated but, rather, merely an exit interview, conducted to assist the RCMP
in identifying and addressing any outstanding issues that might flow from the
applicant’s resignation. While the applicant indicated in one of his affidavits
that he was told at the end of this interview that he was being terminated,
Sergeant Short and Corporal Davis indicated otherwise in their affidavits. None
of the deponents was cross-examined.
[30]
I
prefer the version of events offered by Sergeant Short and Corporal Davis over
that of the applicant on this point for three reasons. First, they, unlike the
applicant, have no personal interest in the outcome of this application and are
less likely to have been upset during the exit interview: their evidence is therefore
more likely to be reliable. Second, each of their affidavits corroborates the
other, whereas the applicant’s assertion is uncorroborated. Third, and perhaps
most importantly, the objective documentary evidence supports Sergeant Short
and Corporal Davis’ version of events. In this regard, the applicant signed a
resignation letter prior to the interview (contained in the Respondent’s Record
at Tab 1K) and did not withdraw his resignation. The fact of having tendered a
resignation letter is inconsistent with a hearing of the type the applicant
alleges occurred. In addition, the typewritten notes of the interview, which
are appended as Exhibit B to Sergeant Short’s affidavit, corroborate his and
Corporal Davis’ version of events. The notes document that the interview in
fact was an exit interview, during which the applicant’s reasons for
resignation were probed. The notes were later signed off on by more senior
members of the RCMP, and their comments likewise demonstrate that the meeting
was an exit interview and not a hearing. I therefore find that no hearing was
conducted by the RCMP.
[31]
Moreover,
there is no evidence whatsoever that the applicant requested the presence of
counsel at the exit interview. Thus, the first two of the alleged breaches of
procedural fairness have absolutely no merit.
[32]
The
same is true of the allegations regarding lack of disclosure. The evidence
demonstrates that the applicant was provided with a detailed summary of the
allegations made against him and was provided with 24 hours to provide a
rebuttal (see Applicant’s Record at Tab 2A). While the timeframe for responding
to the termination recommendation might seem short, the evidence establishes
that this is the standard reply timeframe contemplated in the RCMP’s training
materials, which provide that “the cadet may submit the written response
(rebuttal) by 12:00 noon on the day following the cadet being served a
memorandum recommending termination of their Cadet Training Agreement”
(Respondent’s Record at Tab 2D). Indeed, the applicant complied with this short
timeframe following the previous recommendation for his termination by
submitting a rebuttal letter within the 24 hour period (see Certified File at
pp 126-127). Moreover, at no time did the applicant seek an extension of time
to reply to the termination recommendation.
[33]
The
evidence therefore demonstrates that the RCMP made appropriate disclosure and
the applicant was afforded an adequate opportunity to respond to the case
against him. The applicant’s allegations regarding lack of disclosure and lack
of opportunity to challenge the evidence against him are accordingly without
foundation.
[34]
Thus,
for these reasons, there is no merit to the claim that the RCMP denied the
applicant procedural fairness.
Were
those involved in making the recommendation actually biased or is there a
reasonable apprehension of bias on the part of the RCMP in this matter?
[35]
The
applicant next asserts that there was both actual and apprehended bias, which
entitles him to the relief sought. In terms of actual bias, he alleges that
Corporal Folk had prejudged his situation because she was aware of his having
been “back-trooped” (and of another “Needs Improvement” rating he had received
during his second round of training) and because she indicated at the end of
her interview of him that she would be recommending that his training be
terminated. In terms of apprehended bias, the applicant alleges that there is a
reasonable apprehension of same because the complainant employee was the niece
of the then RCMP Commissioner. Corporals Folk and Davis and Sergeant Short have
all stated in their affidavits, however, that they were unaware of this family
connection (if it indeed exists). The only proof of the alleged familial
relationship is the applicant’s bald assertion to that effect, made in one of
his affidavits. These allegations fall woefully short of establishing bias.
[36]
Indeed,
given the presumption of impartiality applicable to administrative
decision-makers (Zündel
v Citron, [2000]
4 FC 225, [2000] FCJ No 679 at paras 36-37 (CA); Beno v Canada (Somalia
Inquiry Commission), [1997] 2 FC 527, [1997] FCJ No 509 at para 29 (CA)), a high standard of
proof applies to an assertion of bias (R v S (RD), [1997] 3 S.C.R. 484 [R v S]
at para 113). The
test to be applied when assessing whether there is a reasonable apprehension of
bias is well-established and involves determining whether an informed person
would conclude that it is more likely than not that the decision-maker would
not decide fairly, either consciously or unconsciously (Committee
for Justice & Liberty v Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369; and R v S at para 111). It is not necessary to establish
that the decision-maker was actually biased, but rather simply that a
reasonable and informed person, who had knowledge of the circumstances and
viewed the situation realistically and practically, would conclude that the
conduct of the decision-maker gives rise to a reasonable apprehension of bias (R
v S at para 111).
[37]
In
this case, there is simply no basis for believing that the officers prejudged
the applicant’s case. Given this lack of evidence, the claim of bias amounts to
nothing more than a sensational allegation. The recommendations made were
completely predictable on the facts, which were largely undisputed by the applicant,
and in no way give rise to the appearance that the decision-makers would be
unable or unwilling to make fair recommendations with respect to the
applicant’s case.
Was the recommendation to cease
the applicant’s training reasonable?
[38]
Turning,
finally, to the reasonableness of the recommendation to terminate the
applicant’s training, the applicant asserts that the recommendation failed to
take adequate account of the positive feedback received from some of the
applicant’s trainers and thus is unreasonable. There is no merit in this
submission because the evidence shows that this feedback was considered by
Corporal Folk before she made her termination recommendation. Moreover, in
light of the applicant’s conduct, there was more than ample basis for her
recommendation.
[39]
In
this regard, this Court should afford considerable leeway to the RCMP in its
assessments of the suitability of candidates (as was noted by Justice Shore of this Court in Kuntz, cited above at para 20, at paras 38-39). Indeed, RCMP
officers are often placed in highly stressful situations and the stability of
candidates is an appropriate basis for screening. Here, the applicant displayed
difficulty controlling his emotions and engaged in conduct that was disrespectful
of women. The offensive comments he made occurred in the context of a very
short dating relationship. The applicant’s behavior, in my view, afforded the
RCMP ample basis for concern as to the applicant’s suitability as an officer
and thus, if the RCMP made any decision in this matter, it was a reasonable
one.
Costs
[40]
It
is well-established that, when appropriate, costs may be fixed by way of lump
sum (Federal Courts Rules, Rule 400(4); Dimplex North America Ltd v
CFM Corp, 2006 FC 1403 at para 3). Indeed, counsel for both parties concur
as to the propriety of a lump sum award which should follow the event but
differ as to quantum. The applicant suggests an all-inclusive amount of
$1000.00 but the respondent takes no position on quantum. In light of the
complexity of the case, the number of issues raised by the applicant, the
length of the hearing and the amounts I have awarded in somewhat similar cases
(see e.g. Timson v Canada (Treasury Board - Correctional Service),
2012 FC 719 and Slaeman v Canada (Attorney General), 2012 FC 641), I
have determined that the appropriate figure is $2000.00 and accordingly fix
costs, inclusive of fees and disbursements, in this amount.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application for judicial review is dismissed: and
2.
The
applicant shall pay costs to the respondent in the lump sum amount of $2000.00.
"Mary J.L.
Gleason"
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