Date: 20111123
Docket: T-463-11
Citation: 2011 FC 1348
Ottawa, Ontario, November 23,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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SERGEANT BRIAN REHILL
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA AND THE
QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE HONORABLE MINISTER OF PUBLIC
SAFETY CANADA (ROYAL CANADIAN MOUNTED POLICE)
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, Sergeant Brian Rehill, joined the Royal Canadian Mounted Police
(RCMP) in November 1990 and served in a variety of increasingly senior
positions. In February 2009, he applied for the position of District Commander,
Staff Sergeant in the Antigonish detachment of the RCMP. Superintendent Ted
Upshaw acted as the Selecting Line Officer (SLO) for the competition process.
Three candidates, including the applicant, applied for the position.
[2]
On
May 15, 2009, another candidate, Sergeant Anthony Arthur Perry ("Sgt.
Perry" or "the successful candidate"), was chosen as the
successful candidate. The SLO’s recommendation reads
as follows:
After carefully and
thoroughly reviewing all information contained in the Applications, Cover
Letters and Competency Resumes of all candidates for the position of District
Commander for Antigonish I made my recommendation based on the fact that the
successful candidate has demonstrated the experience, skills and knowledge that
makes him the right person for the advertised position.
In his examples, the
recommended candidate has demonstrated that his roles have allowed him to
provide stronger examples of skills and abilities which outline his strengths
in the many competencies. The examples, along with the supporting documentation
has in my opinion shown that he is the best fit to fill the Detachment
Commander for the Antigonish Position at this time.
[3]
On
June 15, 2009, the applicant contested the SLO’s decision by filing a Request
for Intervention (RFI), which was part of the RCMP’s internal dispute
resolution process at the relevant time.
[4]
On
February 4, 2011, the RFI adjudicator (the adjudicator) dismissed the
applicant’s RFI. It is this decision that is being challenged in this judicial
review proceeding.
I. Decision under review
[5]
The applicant challenged the SLO’s decision on several
grounds. The adjudicator examined each one of them. However, it will be sufficient,
for the purpose of this proceeding, to discuss the SLO’s findings that are
relevant to the issues raised in this application.
[6]
The
applicant took issue with the fact that the SLO failed to sign the
Confidentiality Agreement (Form 5182), which is an attestation that he will perform
his role in an impartial manner. The adjudicator agreed with the applicant in
saying that there was no excuse for neglecting to sign this form. However, he
found that there was also no evidence to show that the SLO failed to act fairly.
Further, there was no policy in place at the time the promotion was given
requiring the SLO to sign the form.
[7]
The
applicant took issue with the fact that the successful candidate did not
provide the names of references who could attest to the information provided in
his covering letter, as was required in the job advertisement and in the Career
Management Manual, Bulletin No CMM-783 (CMM). The adjudicator attached significant
weight to this argument. However, he pointed out that neither the applicant nor
the respondent presented any evidence to suggest that the information and the examples
included in Sgt. Perry’s covering letter were inaccurate, false or misleading. The
successful candidate’s supervisor signed the covering letter and, in so doing,
attested that the information contained in the letter was verified and accurate.
Hence, the supervisor’s signature cured the absence of references.
[8]
The
applicant took issue with a letter submitted by the Town Council of Antigonish
in support of Sgt. Perry’s candidacy. He contended that this letter caused the
SLO to be biased and that he should have either convened an interview panel or
withdrawn from the selection process. The adjudicator found that there was
nothing untoward in the letter or the SLO’s response. He was of the view that Sgt.
Perry did not solicit support from the Town Council by announcing his intention
to apply for the Staff Sergeant position and that the SLO’s response to the
Town Council’s letter did not reveal any bias. Further, the adjudicator found
that the applicant’s own words spoke to the contrary. The applicant was offered
the opportunity to object to the choice of the SLO but did not, even though he
knew about the letter.
[9]
The
applicant took issue with the fact that the SLO did not make any notes or produce
“working papers” during his deliberation. The adjudicator noted that there was
no duty to produce this type of document. Further, there is no evidence that
the absence of “working papers” prejudiced the applicant.
[10] The applicant took issue with
the time that it took the SLO to make his decision. The adjudicator found that
it was reasonable to believe that the candidates’ packages were carefully and
thoroughly reviewed, and a decision was made over the three-day period, which
was in accordance with the RCMP policy: a decision has to be made within seven
days.
II. Issues
[11]
This
application raises the following two issues:
A.
Did the adjudicator err in finding that the appointment of the successful
candidate was valid despite the fact that his application package was
incomplete?
B. Did the adjudicator err by failing to
find an apprehension of bias on the part of the SLO?
III. Standard
of review
[12]
The
applicant contended that the first issue should be reviewed under the standard
of correctness. He argued that the issue raises a question of law and he
distinguished this case from Dunsmuir v Canada, 2008 SCC 9, [2008] 1 SCR
190 [Dunsmuir], where the Supreme Court ruled that decisions made by labour
arbitrators are entitled to a high degree of deference. In support of his position,
he invoked the lack of expertise of the adjudicator. The adjudicator’s usual
duties relate to his responsibilities as a police Superintendent and not as a labour
relations adjudicator. He added that it is unlikely that the adjudicator possessed
the necessary experience or background in dealing with promotion processes or in
sitting on labour boards or tribunals.
[13]
The respondent
argued that the adjudicator’s decision raises questions of fact and questions
of mixed fact and law. Accordingly, the first issue should attract a standard
of reasonableness. The respondent underscored the fact that this Court has
previously determined that the adjudicator’s decisions are entitled to a high
degree of deference (Schamborzki v Canada (Royal Canadian Mounted Police),
2010 FC 586, 269 FTR 261 [Schamborzki]; Smith v Canada (Attorney General),
2004 FC 320 at paras. 12-13, 129 ACWS (3d) 1020 [Smith]; Iwanowich v
Royal Canadian Mounted Police, 2007 FC 254 at paras 23 and 30, 310 FTR 91).
[14]
In
addition, the respondent argued that there are other indicators calling for a
high degree of deference to RFI decisions: There is a strong privative clause
at Section 25 of the Commissioner’s Standing Orders (Dispute Resolution
Process for Promotions and Job Requirements, SOR/2000-141 [CSO]; the RFI
disputes involve technical provisions regarding the RCMP promotions process; the
relevant documents are, by and large, administrative in nature and not legal
instruments; RCMP adjudicators are senior officers or managers who have
guidance on how to use their discretion and a relative expertise of internal
administration and adjudication. In addition, the respondent added that the purpose
of the RFI process is to provide a fair, inexpensive and expeditious
disposition of conflicts (Canada (Attorney General) v Gillis, 2007 FCA 112, 156 ACWS
(3d) 229).
[15]
According
to Dunsmuir, above, at para 62, it is not necessary to undertake a standard
of review analysis if the case law is settled as to the appropriate standard.
[16]
This Court
has, on several occasions, ruled that the appropriate standard of judicial
review for decisions by RCMP adjudicators is that of reasonableness (Schamborzki,
above, at para 50, Smith, above, at para 7). I am in agreement with
the authorities cited by the respondent and, therefore, the first issue will be
reviewed under that standard.
[17]
Both
parties submitted that the second question attracts the correctness standard: whether
there was a reasonable apprehension of bias is, according to them, an issue of
procedural fairness. With respect, I am rather of the view that the applicable
standard of review is that of reasonableness. In this case, the procedural
fairness that is at issue concerns an alleged apprehension of bias on the part
of the SLO, not the procedural fairness of the RFI process. The adjudicator’s
mandate was to determine if, in the light of the evidence, there were
sufficient grounds to conclude that there was a reasonable apprehension of bias
on the part of the SLO. This determination involved a question of mixed fact
and law which attracts the reasonableness standard of review (Cheney v Canada (Attorney
General),
2005 FC 1590 at paras 14-15, 144 ACWS (3d) 193.
[18]
Therefore,
both issues will be reviewed under the reasonableness standard. The Court’s
role is explained in Dunsmuir, above, at para 47:
.
. . A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
IV. Discussion
A. Did the adjudicator err in finding
that the appointment of the successful candidate was valid despite the fact
that his application package was incomplete?
[19]
It
is useful to outline the administrative framework of the promotion process
which was governed by the CMM, issued on June 16, 2006.
[20]
Subsection
2.4 of the CMM sets out the five stages of a promotion process:
2.4.1 qualifying list based on the Job
Simulation Exercises (JSE),
2.4.2 supervisor/line officer support,
2.4.3 advertisement,
2.4.4 competency validation, and
2.4.5 selection.
[21]
Under
subsection 2.5 it is only if a candidate meets all the requirements of the
first four stages that it may be proceeded to stage 5.
[22]
A
member must have his/her supervisor’s support before responding to a job
advertisement (Subsection 10.0).
[23]
Candidates
must submit a competency resume and a covering letter. Subsection 11.9 of the
CMM provides that “An incomplete application package will not be considered.”
[24]
The
purpose of the covering letter is set forth in subsections 1.1 and 1.2 of the
Appendix “C” “Covering Letter for the NOC Promotion Process”:
1.1
The
purpose of the covering letter (form 5147) is to provide a candidate with an
opportunity to provide recent information about the competency requirements,
desirables, information about why he/she feels to be the best candidate for the
position, and other information for consideration by the line officer/delegate
at the selection stage.
1.2
The
information contained in the covering letter is very important and will be
considered by the line officer/delegate at the selection stage.
[25]
Section
2 of Appendix “C” provides instructions to the member in preparing his or her
covering letter. It provides as follows:
2.1. You are responsible for the
completion of the covering letter. Use of, or assistance from, any outside
agencies to complete promotion process documents is not permitted, and will be
deemed as cheating.
2.2. Enter the information in the space
provided. Do not use type-font characters less than 10 pt. size.
CAUTION: Any alterations to
the font size or the number of lines will result in disqualification.
2.3. Attachments will not be considered.
2.4. Include information that can be
verified, and provide the name of references.
2.5. You and your supervisor must both
sign the covering letter. Your signature will be your verification that the
examples provided are true and accurately describe your behaviour.
[26]
Section
3 of Appendix “C” provides directions to the supervisors who must verify and certify
the information provided by the candidates in their covering letter:
3.1. Read these instructions, the
instructions on the covering letter, and all other information provided to you.
3.2. Verify, based on your knowledge or
by contacting the references, the behavioural examples provided by the
candidate.
3.3. If you are unable to verify an example
or if the accuracy of the description is in question, meet with the candidate
and attempt to resolve any concerns and disagreements. An example that cannot
be verified cannot be used.
[27]
The
selection (step 5 of the promotion process) is made by an SLO. The name of the SLO
is provided to the candidates in advance (subsection 13.6). Paragraph 13.6.1 of
the CMM provides that the candidates are afforded an opportunity to object to the
participation of the identified SLO, in which case they must submit, in writing,
the reasons for their opposition (paragraph 13.6.1); the ultimate decision is
made by a Human Resources Officer (paragraph 13.6.2).
[28]
The
SLO selects the recommended candidate on the basis of the factor set forth in subsection
13.8:
The line officer will identify the
recommended candidate whom he/she has determined as being the right person
after considering all of the information, including any operational needs that
may exist within the team where the position is located.
[Emphasis
added]
[29]
Subsection
13.5 specifies that the SLO will consider the information contained in the
candidates’ application, their competency resume, their covering letter and any
other relevant information.
[30]
Subsection
13.9 provides that the SLO will normally make his or her recommendation within
seven days of receiving the selection package.
[31]
The
RCMP posted the Job Opportunity Bulletin AR-141 (the JOB) for the position of
District Commander, Staff Sergeant of the Antigonish detachment of the RCMP on
January 21, 2009.
[32]
The
JOB contained, in part, the following information and instructions to potential
candidates:
Members must submit a complete
application package before the closing date of the 28 day JOB which includes:
an Application (Form 5145)
. . .
a Competency Resume (Form 5144)
. . .
a Covering Letter (Form 5147)
. . .
and any additional information as
required (CMM 783…)
. . .
You are required to submit a CR [Competency
Resume] Form 5144 (ICS) The CR is pre-formatted. Do not change this setting.
In your CR you are to provide two
verifiable examples illustrating how you have best demonstrated each competency
required by the competency profile for the position as outlined below (also
refer to Chapter 12 of the Career Management Manual). You must provide the name
and telephone number of a reference who can confirm the information, and your
CR must be verified and signed by your immediate supervisor.
The information you provide on this form
is not intended to summarize your entire career. Rather, it is intended to draw
attention to specific examples which you believe best show how you have
demonstrated each competency in carrying out your duties. There is no time
limit on your examples; however, recency of examples can be weighted when each
component of the competencies are evaluated by the selecting manager during the
selection stage.
You are required to submit a Cover Letter
(CL) Form 5147 (ICS). The Cover Letter is pre-formatted. Do not change this
setting.
The CL is an opportunity for you to
provide updated information about; how you meet the requirements for this
position; additional competency information; information concerning any
priorities identified by the selecting manager; essentially why you feel you
are the best person for this position; or any other relevant information you
would like to have considered during the selection process. You must provide
the name and telephone number of a reference who can confirm the information,
and your CL must be verified and signed by your immediate supervisor.
[33]
The
pre-formatted covering letter contained instructions, including the following: “The
information must be verifiable, references are required.” The covering letter that
the member signs includes the following statement:
I certify that the information provided
herein is accurate and true to the best of my knowledge. I understand that
misrepresentation of information provided may disqualify me from the promotion
process. I also understand that the Covering Letter must only be developed,
prepared, written and completed by me and that proof to the contrary will be
deemed as cheating.
[34]
The
space for the supervisor’s signature is preceded by the following
certification: “I certify that I have taken the necessary steps to establish
the accuracy of the information by the above mentioned member and that the
information provided by the candidate is accurate and true to the best of my
knowledge.”
[35]
The
applicant alleged that the successful candidate did not comply with the CMM and
the JOB in that he failed to provide references in his covering letter to confirm
the information contained in it.
[36]
The
adjudicator’s mandate is defined at paragraph 22(1)(b) of the CSO, which
provides that the adjudicator shall order appropriate corrective action if he
determines that a decision, act or omission has prejudiced the complainant.
[37]
The adjudicator
acknowledged that Sgt. Perry’s covering letter did not comply with the
requirements, but he found that this irregularity was not fatal and that the
applicant had failed to show in what manner he had been prejudiced:
The Complainant has made his case in that
the names of references did not appear on the Covering Letter however he has
not shown any prejudice that might have resulted in the presentation of
unverifiable/unverified information that could be false or misleading. The
Respondent has argued that the examples are verifiable and were verified for
had they not been verifiable/verified S/Sgt Shermerhorn either would have not
permitted their inclusion in the Covering Letter and/or would not have signed
the document. While I find there is no excuse for failing to identify
references and contact information within the Covering Letter I do find there
is a remedy in policy which addresses that shortcoming and the Respondent has
clearly articulated that. The presence of S/Sgt Shermerhorn’s signature on the
Covering Letter attests to the fact that the examples tendered were verified.
In the absence of any real evidence the Complainant has not demonstrated how he
was prejudiced.
[38]
The
applicant contended that the adjudicator erred by not concluding that Sgt.
Perry’s application should have been rejected at the outset of the process.
[39]
First, he
contended that there was no doubt that, by failing to provide references, Sgt.
Perry’s covering letter did not satisfy the CMM and the JOB requirements. He
pointed to the following instruction to candidates set forth in the JOB and
emphasized the words “must” and “and”: “You must provide the name and telephone
number of a reference who can confirm the information, and your CL must be
verified and signed by your immediate supervisor.” He argued that, in view of those
clear words, both requirements were mandatory. He insisted that if the RCMP had
intended that a candidate be given the choice of providing one or the other, they
would have used the expression “and/or” instead of the word “and”; both elements
were required.
[40]
Second, the
applicant contended that, according to the plain language of the instructions
set out by the CMM and the JOB, if a requirement of the JOB that “must” be
included in the application is missing, the application is incomplete. The
applicant added that this omission was fatal and cited subsection 11.9 of the
CMM, which provides that “[a]n incomplete application package will not be
considered.” He insisted on the fact that the requirements with respect to the
application package are very technical and detailed. He referenced, as an
example, subsection 2.2 of Appendix “C” of the CMM, which provides that using
the wrong type-font characters in the covering letter will result in
disqualification. If using the wrong font disqualifies a candidate, then a
failure to provide references, which is a more serious flaw, should a
fortiori result in automatic disqualification.
[41]
Third, the
applicant argued that the adjudicator erred by finding that he was not
prejudiced by the RCMP’s failure to reject Sgt. Perry’s application. He contended
that, as a result of that error, he had to compete with two other candidates
instead of just one. He added that all candidates were prejudiced by the fact
that the candidate whose application should have been rejected became the
successful candidate. If Sgt. Perry’s application had been rejected, the outcome
of the competition would have been different. The applicant argued that when an
erroneous decision in a recruitment competition prejudices the other
candidates, the outcome must be nullified. In support of his position, he cited
Stout v Canada (Public Service Commission) (1983), 24 ACWS (2d) 74, 51
NR 68 (FCA) [Stout] and Mackintosh v Canada (Public Service Commission Appeal Board), [1990] FCJ No. 834 (QL) [Mackintosh].
[42]
The
respondent contended that the RFI adjudicator’s findings were reasonable.
[43]
First, the
respondent argued that Sgt. Perry’s package was not “incomplete.” Subsection 11.7
of the CMM provides that, to be complete, an application must include: an
application (Form 5145), a competency resume (Form 5144), and a covering letter
(Form 5147). Sgt. Perry did provide those documents and, therefore, he did submit
a complete application package.
[44]
Second, the
respondent contended that, assuming that Sgt. Perry’s application was incomplete,
the omission to provide references in the covering letter was immaterial since
his superior attested to the accuracy of the information provided in the
covering letter and therefore his application ought not to have been rejected. The
respondent argued that the purpose of the requirements relating to the references
and to the signature of the candidate’s supervisor is to ensure that the
information provided by the candidate in his covering letter is accurate. The
CMM requires that the candidates provide only verifiable examples. Each candidate
attests to the accuracy of the information that he has provided when he signs
his covering letter. The candidate’s supervisor is asked to verify the accuracy
of the information provided in the covering letter. To do this, the superior
can rely on his personal knowledge of the information presented or on
information provided by the persons identified as references. There is no
requirement that the supervisor contact each of the references. In this case, one
can only infer that Sgt. Perry’s supervisor was able to verify the accuracy of
the information contained in the covering letter on the basis of his personal knowledge.
The respondent submitted that the supervisor’s signature constitutes another
safeguard, in addition to the signature of the candidate. The SLO may assume
that, as long as the supervisor has signed the covering letter, the examples have
been verified.
[45]
The
respondent further submitted that prejudice cannot result from the omission to
provide references since there was no evidence that the information provided by
Sgt. Perry in his covering letter was inaccurate, false or misleading or that
his supervisor was unable to verify the information.
[46]
The
respondent distinguished this case from Stout and Mackintosh on
the basis that the absence of references had no impact on the assessment of the
relative merits of the successful candidate: the outcome would have been the
same if the references had been included.
[47]
I am of
view that the RFI adjudicator’s decision was reasonable and is not to be
disturbed.
[48]
There is
no doubt that Sgt. Perry’s covering letter did not meet the requirements set
forth in the CMM and the JOB. However, I consider that it was reasonable for
the adjudicator to conclude that this omission was not fatal and that the
applicant failed to show that he was prejudiced by it.
[49]
I am of
the view that not any and all omissions in a candidate’s application package should
automatically render the application incomplete within the meaning of subsection
11.9 of the CMM. The seriousness of an omission and its impact on the integrity
and the fairness of the promotion process must be assessed in the light of the
circumstances of each individual case.
[50]
In this
case, the failure to provide references in the covering letter must be examined
in the context of the goals of the promotion process guidelines and
requirements. The CMM provides guidelines that are aimed at ensuring a rigorous
and fair competition process. I agree with the applicant that the requirements
are very technical and detailed; that being said, their main purposes are to
ensure that the process is fair, that no candidate is favoured at the expense
of others, that candidates provide complete and accurate information, and that
the SLO makes a decision on the basis of relevant, complete and accurate
information.
[51]
In order
to achieve these objectives, the process comprises different steps and requires
that the candidates provide different documents. The competency resume and the covering
letter are important because they enable the candidates to describe their
profile, their experience and to provide information as to why they should be
selected. The competency resume is much more detailed than the covering letter
which constitutes a complement to the competency resume. It is worth noting that
Sgt. Perry’s competency resume did contain references for all of the examples
that he submitted.
[52]
There is
no doubt that the CMM and the JOB required the candidates to provide references
both in their competency resume and their covering letter; that being said, I
agree with the respondent that the references are requested for verification
purposes. The CMM requests that both the competency resume and the covering letter
contain information that is verifiable. The accuracy of the information provided
by the candidates is essential to the integrity and the fairness of the competition
process. In order to ensure the accuracy of the information provided by the
candidates, the CMM has established the following safeguards: first, the
applicant must attest that the information he provides is complete and accurate;
second, the candidate’s supervisor must verify the information and certify its
accuracy. In order to do this, the supervisor can rely on his personal knowledge
of the information presented or, in the absence of such knowledge, on the
knowledge of the individual whose names have been provided as references. The references
are a tool that the supervisor can use to verify the accuracy of the
information provided by the candidate when he or she cannot rely on his or her personal
knowledge to certify its accuracy.
[53]
I am of
the view that, in this case, the failure to provide references did not impact
the supervisor’s ability to certify the accuracy of the information provided in
the covering letter; hence, that failure is not fatal. Therefore, Sgt. Perry’s
application cannot be said to have been incomplete within the meaning of subsection
11.9 of the CMM. If the irregularity in Sgt Perry’s application package had
left his supervisor in a position where he could not have verified the
information contained in the covering letter, I would then have concluded that the
application was incomplete and ought to have been rejected under subsection
11.9 of the CMM. Such is not the situation in this case. Consequently, I find that
it was reasonable for the adjudicator to conclude that the omission to provide
references was cured by Sgt. Perry’s signature.
[54]
In
addition, I am of the view that the adjudicator’s finding that the applicant was
not prejudiced was also reasonable. The adjudicator examined the issue of prejudice
in relation to the integrity of the process. He found that there was no
prejudice stemming from Sgt. Perry’s failure to provide references because his
supervisor was able to verify the accuracy of the information contained in the
covering letter and because there was no evidence that the information provided
in the covering letter was inaccurate, false or misleading. The adjudicator was
satisfied that the integrity of the process had not been jeopardized by the absence
of references. I conclude that the RFI adjudicator adopted the correct test and
that his assessment of the evidence was reasonable.
[55]
The
applicant argued that the prejudice should be assessed from a different
perspective. He contended that Sgt. Perry’s application should have been
rejected; since Sgt. Perry was the successful candidate, the promotion process
was tainted and all the other candidates were prejudiced. In my view, the
applicant’s argument would have been persuasive if the omission in Sgt. Perry’s
application and the failure to reject it had had an impact on the integrity and
the fairness of the process. For example, I am of the view that a covering
letter containing unverifiable or unverified information should be considered incomplete
and should be rejected under subsection 11.9 of the CMM. In such a case, the
failure to reject the candidate’s application would have an impact on the
integrity and fairness of the process and would possibly prejudice the other
candidates.
[56]
I wish to
add that this case is distinguishable from Stout and Mackintosh.
[57]
In Stout,
the job competition at issue was flawed because no statement of qualifications
was prepared before the job competition began, in violation of the Public
Service Regulations in force at the time. This went to the very integrity of
the process. The selection board simply inferred qualifications from the job
description. In that case, the Federal Court of Appeal unambiguously ruled that
irregularities vitiate the results of a job competition when they directly
affect its outcome (Stout, above, at para 3).
[58]
In Mackintosh,
the manager in charge of the recruitment process disqualified questions from a
test after it was held, thereby allowing three candidates to pass rather than
just one. As those questions were directly relevant to the merits of the
candidates, there was a direct impact on the outcome of the competition.
[59]
In this
case, because the information provided in Sgt. Perry’s covering letter was
verified and accurate, his failure to provide references had no impact on the
outcome of the competition. For all of these reasons, I conclude that it was
reasonable for the adjudicator to find that the applicant had not shown “any
prejudice that might have resulted in the presentation of
unverifiable/unverified information that could be false or misleading.”
B. Did the adjudicator err by failing to
find an apprehension of bias on the part of the SLO?
[60]
The
applicant contended that the adjudicator erred in finding that there was no
reasonable apprehension of bias. The applicant argued that the adjudicator
erred in assessing in isolation the elements that he raised and that the following
four elements, taken together, should have led him to conclude that there was a
reasonable apprehension of bias:
a. The letter sent by the Town
Council recommending Sgt. Perry’s promotion;
b. The SLO’s failure to sign the
Confidentiality Agreement;
c. The speed at which the SLO
made his recommendation;
d. The omission from the SLO to
create “working papers” during his deliberations.
[61]
I
will commence with the letter sent by the Town Council.
[62]
Prior
to winning the competition for the position of Staff Commander, Sgt. Perry
occupied the position of Operational NCO in Antigonish. As part of his duties,
he sat on the Antigonish Town Police & Licensing Committee. At the February
5, 2009 meeting of the Committee, Sgt. Perry announced his intention to apply
for the Staff Sergeant position. He also informed the Committee that he would
apply for another position as well. After he announced his intentions, the
Committee moved to write a letter in support of Sgt. Perry’s promotion within
the Antigonish Detachment.
[63]
On
February 16, 2009, a motion was passed at a Town Meeting stating that the Chief
Administrative Officer of the Town of Antigonish would write a letter to
Superintendent Upshaw, the SLO for the job competition, in support of Sgt.
Perry’s promotion. That letter, which is dated February 24, 2009, reads as
follows:
Dear Superintendent Upshaw,
I am writing on behalf of the Town of Antigonish. At their duly called
February meeting, Council made a motion to forward this letter in support of
Sgt. T. Perry being promoted from within the Antigonish RCMP Detachment to the
position of Staff Sergeant. Council feels that Sgt. Perry would bring a wealth
of knowledge to the position and be able to draw upon his experience in the
Antigonish area (both Town and County) and be able to continue initiatives and
work that he currently involved in. . . .
[64]
The
SLO responded to that letter on March 3, 2009:
Thank you for your letter dated
2009-02-24. I also want to thank you for taking the time to acknowledge the
great work Sgt. Perry has been doing for the Town and County of Antigonish.
I would suggest that when it becomes time
to fill the Commander’s position in Antigonish there will be many who show
interest. Sgt. Perry will be given due consideration.
[65]
On May 4, 2009, the name of the SLO was communicated to the
candidates. At this point, all of the candidates were given the opportunity to
object to the choice of the SLO. No objections were raised. At that time, the
applicant was aware of the letter that had been sent to the SLO.
[66]
The
applicant argued that the successful candidate caused a letter on his own
behalf to be sent directly to the SLO from the Town Council of Antigonish and
that the SLO’s response to the letter shows that he was aware of the Town’s
preference for the position. The applicant contended that the Town Council hold
a significant degree of influence over RCMP matters in Antigonish because they are
free to opt for the RCMP or their own municipal police force (Municipal
Government Act, SNS 1988, c 18, s 54). In this regard, the Town Council are
the RCMP’s main customer in Antigonish and the surrounding area. The applicant submitted
that the letter, in conjunction with the other elements, pointed to a reasonable
apprehension of bias.
[67]
The
applicant contended that the SLO’s failure to sign the Confidentiality
Agreement (Form 5182), a declaration that he would make his decision in an
impartial manner, constitutes additional evidence of partiality on his part. As
the SLO was directly in charge of both the applicant and the successful
candidate, it was vital for him to sign the form.
[68]
The
applicant also alleged that the decision to promote the successful candidate
rather than the applicant was made in haste as it took the SLO only two and a
half working days to make his decision, whereas, according to subsection 13.9
of the CMM, the SLO is only required to make his or her recommendation within
seven days. Further, the appointment of a Staff Sergeant within the RCMP is
taken very seriously. As a decision of this type can take up to seven days, the
applicant alleged that the fact that this decision was made in haste further
substantiates that there was a bias on the SLO’s part.
[69]
Finally,
the applicant disagrees with the adjudicator’s findings that it was not
necessary for the SLO to create any “working papers”, or notes during his
deliberations. He submitted that some notes would have been required to sort
through all the details in the candidates’ packages. He contended that, from the
absence of notes, it may be inferred that the applications merely received a
cursory inspection. On the basis of that factor, taken in conjunction with the
other indications of bias, the applicant submitted that the duty of fairness
owed to him was violated.
[70]
The
respondent argued that there was no evidence that the SLO was biased or in any
way partial. The respondent further contended that the applicant neglected to
object to the appointment of the SLO when presented with the opportunity to do
so.
[71]
The
respondent alleged that the applicant relied on opinion and speculation to
ground his claim of apprehension of bias.
[72]
Regarding
the letter sent by the Town Council of Antigonish to the SLO, the respondent contended
that Sgt. Perry did not cause the letter to be written on his behalf and that
the SLO’s response to the letter did not indicate partiality.
[73]
The
respondent alleged that the signing of the Confidentiality Agreement was not
mandatory. Moreover, the respondent argues that there is no evidence that, by
failing to swear that he was impartial, the SLO was, in fact, partial.
[74]
Regarding
the applicant’s argument that the decision was made in haste, the respondent cited
Smiley v The Royal Canadian Mounted Police, 2007 FC 29, 155 ACWS (3d)
202 [Smiley]. In that case, the promotion decision was made in twelve
minutes. Yet, Justice Pinard decided that it was not unreasonable to conclude
that the committee members came to the meeting well prepared, having read all
the materials in advance. In this case, the SLO took much longer than twelve
minutes and his decision was made according to the CMM guidelines, which
limited deliberation to seven days. Further, the respondent argued that there was
no evidence showing that the SLO did not take all the time necessary to make an
appropriate decision.
[75]
Finally,
the respondent contended that it was unreasonable to infer from the SLO’s
omission to prepare working papers that his examination of documents was merely
cursory, that his decision had been already made or that he was biased.
[76]
There is
no doubt, and this is not disputed by the respondent, that a duty of procedural
fairness and impartiality was owed to the candidates in the promotion process.
[77]
As
to bias, the applicable test is propounded in Committee for Justice and Liberty v Canada (National
Energy Board), [1978] 1 S.C.R. 369 at 394 (available on CanLII) (SCC):
…the apprehension of
bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information… [The] test is “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through –
conclude. Would he think that it is more likely than not that [the decision
maker], whether consciously or unconsciously, would not decide fairly.
[78]
In
R v R.D.S., [1997] 3 S.C.R. 484, 151 DLR (4th) 193, the Supreme Court reiterated
the test and made the following comment, at paragraph 36, with respect to the
objective aspect of the test:
The presence or absence of an
apprehension of bias is evaluated through the eyes of the reasonable, informed,
practical and realistic person who considers the matter in some detail (Committee
for Justice and Liberty, supra.) The person postulated is not a "very
sensitive or scrupulous" person, but rather a right-minded person familiar
with the circumstances of the case.
[79]
While
actual bias need not be proven (Cheney, above, at para 18), the test is
an objective one and, as stated by the Court in Armstrong v Canada (Attorney
General),
2006 FC 505 at para 75, 291 FTR 49, “the threshold for establishing a claim is
high and substantial grounds are necessary to support a claim.”
[80]
In this
case, I consider that the RFI adjudicator’s decision was reasonable.
[81]
First, I am
of the view that it was inappropriate for the Town of Antigonish to interfere in the promotion process.
However, the evidence does not support the proposition that Sgt. Perry
initiated the sending of the supporting letter. Furthermore, the SLO had
nothing to do with the sending of this letter. When he received it, he acted
appropriately, stating that he expected that many members would show interest
and that Sgt. Perry would be given due consideration. I fail to see any indicia
of partiality in his response. Moreover, the applicant failed to oppose to Superintendent
Upshaw being the SLO when offered the opportunity to do so, despite the fact
that he knew about the letter from the Town Council. One can only conclude that
the situation did not raise an apprehension of bias in the applicant’s mind.
[82]
With
respect to the time that the SLO took to reach his decision, I fail to understand
how taking two and a half days to assess the candidates’ applications can ground
a claim of reasonable apprehension of bias. I find this allegation to be highly
speculative.
[83]
Furthermore,
I consider that the failure of the SLO to sign the Confidentiality Agreement
and his failure to create working papers do raise concerns as to his rigour.
However, I find that these elements are too speculative to create a reasonable
apprehension of bias on his part.
[84]
The
process was not perfect. It would have been preferable if the Town of Antigonish had not sent a letter in support
of Sgt. Perry’s application. It would also have been preferable if the SLO had
signed the Confidentiality Agreement and if he had created working papers.
[85]
However, in
the light of the evidence viewed as a whole, these elements were not sufficient
to support a conclusion of a reasonable apprehension of bias. The evidence
cannot reasonably lead to a conclusion that the “right-minded person familiar
with the circumstances of the case” test is met. Therefore, I find that it was
not unreasonable for the adjudicator to conclude that there was no bias.
[86]
For all of
the above mentioned reasons and despite the able submissions of counsel for the
applicant, this application for judicial review is dismissed. The respondent
did not ask for costs and no costs will be awarded.
JUDGMENT
The application for judicial review is dismissed, without
costs.
“Marie-Josée Bédard”
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