Date: 20121102
Docket: T-1979-11
Citation: 2012 FC 1285
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 2, 2012
PRESENT: The Honourable Madam
Justice Tremblay-Lamer
BETWEEN:
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CHRISTIANE MOUSSEAU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 32(1) of the Royal
Canadian Mounted Police Act, RSC 1985, c R-10 [the Act], of the
negative decision of an officer of the Royal Canadian Mounted Police [RCMP]
designated as Level II adjudicator [the adjudicator] on behalf of the
Commissioner of the RCMP in the matter of the applicant’s grievance.
[2]
In
that decision dated November 3, 2011, the adjudicator found that the
applicant’s lateral transfer was not contrary to clauses 1.D.1 and 3.D.3 of
Chapter 6 of the Career Management Manual [CMM] on work force adjustment. Moreover,
she found that the Work Force Adjustment Directive [WFAD] did not apply
in her case.
FACTS
[3]
The
applicant, who is now retired, was a regular member of the RCMP from
October 1977 to June 2007. From 1994 to 2004, she worked as an investigator
at the Joliette Detachment in Quebec.
[4]
On
September 22, 2004, following an announcement that RCMP resources in
Quebec would be restructured, the assistant commissioner and commanding officer
of “C” Division–Quebec sent a notice to employees, informing them that nine
detachments, including Joliette, would be closed. The notice also stated that
the affected employees would be reassigned to RCMP offices elsewhere in Quebec.
[5]
In
October 2004, a representative of the Career Development and Resourcing
Office [the representative] came to the Joliette Detachment on two occasions. He
informed the RCMP members of their imminent transfers and told them that their
positions would be transferred to St-Jérôme. The members were also advised that
they could follow their positions should they wish to do so, but that their
respective preferred assignment requests would be considered and granted where
possible. The representative explained to the members that the transfers resulting
from the closing of the Joliette Detachment were regular transfers and that the
situation was no different from other situations in which lateral transfers occur
since the work force would not be adjusted.
[6]
On
November 10, 2004, the applicant received by fax a transfer authorization,
informing her that she would be transferred to the St-Jérôme Detachment as of
December 1, 2004. On the same day, the applicant filed a grievance,
namely, Form No. 3081, with the Office for the Coordination of Grievances
of the Central Region.
[7]
In the
context of this grievance, three Level I decisions were issued. The first,
issued on November 2, 2005, allowed in part a request to disclose written
or documentary information relevant to the grievance under section 31.4 of
the Act. The second, dated April 24, 2006, recognized that the applicant
had standing, but dismissed the grievance because of the limitation period
provided at paragraph 32(2)(a) of the Act. This decision was
reversed on March 22, 2007, by a Level II adjudicator, and the grievance
was referred back to Level I for a decision on the merits. In the third
Level I decision, dated December 12, 2007, the Level I adjudicator dismissed
the grievance on its merits.
[8]
The
applicant received a copy of this last decision on December 18, 2007, and
filed her Level II grievance on December 21, 2007. On November 3, 2011,
the Level II adjudicator dismissed this grievance on its merits.
[9]
In
the context of the present judicial review, the applicant challenges the
lateral transfer on the ground that the work force adjustment provisions in Chapter 6
of the CMM should have been followed. Moreover, it is her opinion that
the WFAD should have applied to her case given that the public service employees
benefitted from it following the closure of the Joliette Detachment. She is
therefore asking this Court to set aside the decision dated December 3,
2011, and to order the RCMP to apply the WFAD.
THE ADJUDICATOR’S DECISION
[10]
Even
though the adjudicator recognized the inconvenience caused by a lateral
transfer and a move, she noted that the applicant had two options: following
her position to St-Jérôme or proposing an assignment elsewhere. According to
the representative’s notes based on a personal interview, an assignment
elsewhere was not possible, and the applicant had stipulated that she wished to
follow her position to St-Jérôme. Consequently, the adjudicator found that the
RCMP had considered the applicant’s personal circumstances and aspirations,
where possible, in compliance with clauses 1.D.1 and 3.D.3 of the Career Management
Manual, which stipulate as follows: “[m]obility is a condition of service” and “[i]n
the lateral transfer planning process, although the member’s personal
circumstances and aspirations will be considered, the organizational needs of
the RCMP take precedence”.
[11]
As
to the work force adjustment, she explained that, according to Tab C.2 of
Chapter 6 of the CMM, entitled , [translation]
RCMP Work Force Adjustment, [translation]
“Work Force Adjustment is carried out only when the services of a member are no
longer required because of a Work Force Adjustment situation”. Work Force
Adjustment situations are defined in paragraphs (a) to (e)
of Tab D.2 as, among other things, the abolition of a funded position or a
change in category or classification. She relies on the finding of the Level I
adjudicator, according to whom the applicant’s personal circumstances met
neither of these provisions. She bases her conclusion on the following
evidence: the applicant’s position was not abolished, but redeployed under
another collator code at the same rank and in the same category; her services
were still required; she was not withdrawn from the work force; she was not
surplus; and, lastly, she remained associated to her position. Moreover,
neither the Commissioner nor the human resources manager authorized work force
adjustment measures during the alignment process in question.
[12]
She
conceded that, while it was true that the applicant’s position no longer
existed (and had therefore, in a sense, been abolished), this argument in no
way supported the claim that her position had been withdrawn from the RCMP work
force. Even though the applicant would have preferred severance pay under the work
force adjustment policies referred to in Chapter 6 of the CMM, the
enforcement of these policies is justified by organizational needs and not the
personal circumstances of an employee who wishes to take early retirement. Work
force adjustment was never an issue in her case; it was an alignment process
the goal of which was to properly allocate RCMP resources in Quebec.
[13]
The
adjudicator adopted the Level I adjudicator’s view that the evidence
clearly demonstrated that [translation]
“[the process] involved a large number of RCMP members, a transfer of positions
and their incumbents, and was not a financial exercise to save money through
staff cuts, a change in employee categories, a work shortage and demotion”.
[14]
Lastly,
she found that the fact that some public service employees benefitted from the WFAD
was irrelevant and that it did not establish that the applicant was entitled to
benefit from it. The adjudicator noted that RCMP members cannot avail themselves
of the laws, collective agreements and rules governing the activities of
employees of the public service, and vice versa. For these reasons, she
dismissed the grievance on its merits.
Standard of review
[15]
In
the case of a judicial review of a decision of an RCMP adjudicator, given the
adjudicator’s specialized expertise and broad powers with regard to the
questions before him or her, “great deference should be given to the
Adjudicator in this matter” (Sansfaçon v Canada (Attorney General), 2008
FC 110 citing Shephard v Canada (Royal Canadian Mounted Police), 2003 FC
1296 at paras 35-36; Smith v Canada (Attorney General), 2005 FC 868
at para 13; Gillis v Canada (Attorney General), 2006 FC 568 at para
27), especially when it involves an internal grievance process and internal
policies at the RCMP. Therefore, the applicable standard of review is
reasonableness. Consequently, this Court must determine whether the findings
are justified, transparent and intelligible, and fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
Was the Level II adjudicator’s
decision reasonable?
[16]
The
applicant submits that the WFAD had to apply in the present matter given that
the Joliette Detachment had been closed, in that it had been [translation] “wiped off the map”, the
two [translation] “collator codes”
used to designate the employees there no longer existed, the same services were
no longer available to the Lanaudière population, and new positions had been
added in St-Jérôme, 50 km away from the Joliette Detachment.
[17]
She
also points out that the WFAD was applied in the case of public service
employees who were working at detachments that were closed and that it was
unfair that this policy could not apply to RCMP members in the same situation. This
was a [translation] “double
standard”. Regardless of any [translation]
“possible play on words”, it remains that the position she held at the Joliette
Detachment was abolished. She therefore should have been able to avail herself
of the WFAD.
[18]
Lastly,
the applicant argues that the seven-year delay between her first grievance and
the adjudicator’s decision is [translation
“questionable, unreasonable even”. An earlier reply might have changed her
situation in that she could have obtained some money to retain counsel under
the legal aid program available to members. She points out that two grievances
filed by her colleagues were disposed of within two and three years,
respectively.
[19]
In
turn, the respondent submits that the adjudicator rightly found that the RCMP’s
provisions on work force adjustment within the RCMP that appear in Chapter 6 of
the CMM did not apply to the circumstances of the case. The provisions apply
only when a member’s services are no longer required, which was not the
applicant’s case. When the Joliette Detachment closed, the applicant’s services
were still required, and the constable position she held was not abolished. Her
position remained at the same level, and she kept the same work description. She
was therefore the subject of a simple lateral transfer under clauses 1.D.1 and
3.D.3 of the CMM. In fact, each of the positions of the Joliette Detachment was
transferred laterally. All services provided by members continued to be
required, and management was able to offer a position to all members. The goal
of the restructuring was not to abolish the existing positions but to align the
RCMP’s services with those of its provincial partners. I share this opinion.
[20]
It
was reasonable for the adjudicator to find that the applicant’s position was
not abolished and that she could therefore not avail herself of the RCMP work
force adjustment provisions set out in Chapter 6 of the CMM. It is my
opinion that the evidence also shows that the applicant was redeployed under
another collator code but kept her rank and employment category. Her services
continued to be required, especially as no other RCMP member who was
transferred following the closing of the Joliette Detachment was able to avail
him- or herself of work force adjustment measures.
[21]
The
adjudicator was correct in concluding that the WFAD did not apply to the
applicant. Care must be taken not to confuse the various concepts in the
present matter. The RCMP work force adjustment policies in Chapter 6 of
the CMM apply exclusively to RCMP officers and were dealt with in the previous two
paragraphs. The WFAD, however, was developed by the Treasury Board (and is
currently managed by the National Joint Council). Appendix B of the WFAD
contains the list of bargaining agents subject to this directive. The union of
employees of the RCMP (namely, the MPPAC) does not appear on this list.
[22]
I
recognize that being employed as a regular member of the RCMP is different from
any other position in the public service. The RCMP has its own enabling
statute, internal regulations, policies and reference manuals that do not apply
to employees of the public service. Conversely, the WFAD is a policy that
applies only to public servants. It is therefore reasonable for the applicant
to have been dealt with differently than employees of the public service.
[23]
As
for the [translation] “seven-year
delay” referred to by the applicant, it is useful to put this claim into
perspective. A range of decisions were made in her case, on November 2,
2005, April 26, 2006, March 22, 2007, and December 12, 2007. The
applicant consequently filed her Level II grievance on December 21,
2007; the decision on the merits of this grievance was issued on November 3,
2011. The delay was therefore justified given the many remedies the applicant
sought.
[24]
For
these reasons, this application for judicial review is dismissed with costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial review is dismissed with costs.
“Danièle Tremblay-Lamer”
Certified true translation
Johanna Kratz, Translator
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