Date: 20070306
Docket: T-310-06
Citation: 2007 FC 254
Ottawa, Ontario, March 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CORPORAL
NINA IWANOWICH
Applicant
and
COMMISSIONER GIULIAN
ZACCADELLIE,
ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 32(1) of the Royal Canadian Mounted
Police Act, R.S.C. 1985, c. R-10 (the RCMP Act) for judicial review of the
decision of the Commissioner, rendered by Inspector J. F. Michel Bachand (the
adjudicator). The decision, dated January 13, 2006, denied the applicant’s
request for intervention. The applicant had filed a request for intervention on
the basis that a promotion had been awarded to a candidate who lacked the
necessary qualifications.
[2]
The
applicant requested the following in her notice of application:
1. A determination that
Corporal Ryerse lied with respect to his documented experience in conducting
major fraud investigations and misled personnel with respect to this
experience.
2. An order for a new
review of the original request for intervention to determine Corporal Ryerse’s
contribution to Project Oxlip, Corporal Ryerse’s notebook with respect to his
contribution to the investigation, and an interview of the investigator in
charge of the project from the commercial crime unit regarding any assistance
he received with respect to the investigation.
[3]
The
applicant’s request may be restated as follows:
The applicant requests that the
adjudicator’s decision be set aside, and that the request for intervention be
referred for redetermination.
Background
[4]
The
applicant, Nina Iwanowich, is a member of the Royal Canadian Mounted Police
(RCMP). In August 2004, the RCMP posted an employment opportunity for a promotion
to the position of sergeant. One of the qualifications for the position was
documented experience in conducting major fraud investigations. The applicant
applied for the position on August 28, 2004. On March 15, 2005, Corporal Ryerse
was awarded the position. The applicant filed a request for intervention (RFI)
on April 12, 2005, claiming to be aggrieved as a result of the selection of
Corporal Ryerse for the position. The applicant was of the opinion that
Corporal Ryerse did not have the necessary qualifications for the position and
misled the promotion board with respect to his major fraud experience.
[5]
In
her RFI submissions, the applicant indicated that she had spoken to Sergeant
Gairy and Sergeant McQueen, who were involved in the fraud aspect of the
investigation in which Corporal Ryerse claimed to have obtained experience. Both
members told the applicant that they did not recall Corporal Ryerse’s participation
in the investigation. The applicant also claimed that Corporal Ryerse was
required to show documented experience in the form of 1624s, C237s, or members’
notes, in order to establish that he was qualified for the position. The
applicant stated that she had suffered from the loss of a promotional
opportunity since Corporal Ryerse was not qualified for the position. She
therefore sought to have a new promotion board formed in order to reconsider
the original candidates for the position, with the exception of Corporal
Ryerse.
[6]
An
administrative review of the matter was undertaken in order to investigate the
applicant’s allegations of misconduct. A memorandum prepared by Sergeant
McCann, dated October 25, 2005, outlined the results of the administrative
review. The memorandum noted that there was no indication that Corporal Ryerse
sought or intended to mislead the promotion board. Corporal Ryerse’s comments
on form 4052 were reviewed, and it was determined that he met the requirement
of major fraud experience. The response also discussed the two manners in which
the term “documented” was applied in the staffing section: (1) in reference to
pre-existing documents (such as annual assessments, letters, and personnel
interview reports); and (2) through information provided by the candidate on a
form 4052, which was then validated by an identified reference who confirmed
the information.
[7]
The
memorandum indicated that Corporal Ryerse did provide information regarding his
documented experience conducting major fraud investigations in a form 4052, and
that this information was confirmed with the individual named as his identified
reference. As a result, he had met the test for documented experience, and was
qualified for the position. In addition, the reason for which Sergeant Gairy
and Sergeant McQueen did not recall Corporal Ryerse’s involvement in the
investigation was that his involvement predated the transfer of the investigation
to their department.
[8]
On
November 20, 2005, the applicant responded to the results of the review by
advising that she had personally reviewed the fraud investigation file in
question, and had found no evidence of Corporal Ryerse’s involvement. She also
noted that neither Sergeant Gairy nor Sergeant McQueen had been contacted
during the review. Although they had not been involved in the investigation
when Corporal Ryerse allegedly had, the applicant submitted that it was common
sense for them to be aware of his participation on the file. The applicant reiterated
her position that Corporal Ryerse was obligated to show documented evidence in
the form of 1624s, C237s or members’ notes, in order to show that he was
qualified for the position. In a response dated December 15, 2005, the
applicant was advised that there was nothing to add to the memorandum of
October 25, 2005, and that the matter would be referred to an adjudicator.
[9]
Given
the lack of supporting evidence provided by the applicant, the adjudicator
denied the RFI by decision dated January 13, 2006. This is the judicial review
of the adjudicator’s decision.
Adjudicator’s Reasons
[10]
The
adjudicator first noted that the applicant had filed an RFI on the basis that
the candidate selected for the sergeant’s position did not meet the job
requirement of documented experience conducting major fraud investigations, and
had misled the promotions board with respect to his fraud experience. Her
reasons for making the allegations included: (1) her knowledge of the selected
candidate’s background; (2) a conversation held with the selected candidate in
which he indicated that he did not understand why fraud examples were required
for the position; and (3) her understanding that two members involved in
project Oxlip did not recall the selected candidate’s involvement in the fraud
aspect of the project.
[11]
The
adjudicator noted the applicant’s submission that the selected candidate could
not claim to have major fraud experience on a file which was outsourced to a
CCS investigator. The applicant also believed that the selected candidate and
his fellow team members concentrated solely on the drug aspect of the project. The
applicant requested that the promotion board attempt to confirm the selected
candidate’s documented experience in major fraud investigations via 1624s,
C237s, or members’ notes. The applicant requested that a new board consider
the original candidates, with the exception of the selected candidate.
[12]
The
adjudicator proceeded to consider the memorandum of October 25, 2005, the
applicant’s rebuttal, and the further response of December 15, 2005. There were
no other submissions made to the adjudicator. The adjudicator noted his examination
of all the materials forwarded by the office for the coordination of grievances
on January 10, 2006.
[13]
The
adjudicator indicated that the applicant had demonstrated that she had standing
and that the RFI was presented within the prescribed time. The adjudicator
concluded as follows:
In matters of this nature, the burden of
proof rests with the member who files a claim. In other words, the member must
demonstrate that his/her claim is valid. It is not on the other party to
disprove.
In this instance, the complainant has
given her opinion and feelings about Cpl. Ryerse’s experience however has not
provided any evidence supporting her arguments.
The respondent for his part has provided
the findings of an administrative review, which “provided additional support
and confirmation that Cpl. Ryerse’s [sic] did in fact meet the
requirement for major fraud experience.”
As an Adjudicator, I must base my
findings on the material presented before me. In this matter therefore, given
the lack of supporting evidence provided by the complainant, I must deny the
Request for Intervention.
Issue
[14]
Did
the adjudicator err in denying the applicant’s request for intervention?
Applicant’s Submissions
[15]
The
applicant submitted that the adjudicator committed a factual error in finding
that she had only offered opinion and feelings about Corporal Ryerse’s
experience, and had not provided any evidence in support of her arguments. The
applicant submitted that she had offered the following evidence which was
ignored by the adjudicator:
-
Her
review of the project Oxlip file revealed no mention of Corporal Ryerse’s
involvement in the fraud aspect of the investigation.
-
Her
conversation with Sergeant Gairy and Sergeant McQueen, who were responsible for
the fraud aspect of the project, revealed that they could not recall Corporal
Ryerse’s involvement. The applicant stated that they would have been made aware
of Corporal Ryerse’s major involvement in the project through meetings and
reports.
-
Sergeant
Gairy’s affidavit, sworn March 3, 2006, confirmed that Corporal Ryerse had no
involvement with the project. The affidavit also stated that Corporal Ryerse’s
name did not appear on the witness list upon which other police witnesses were
named.
-
Her
conversation with Corporal Ryerse, in which he stated that he did not
understand why they needed fraud examples for the position.
[16]
The
applicant submitted that the adjudicator erred in accepting Sergeant McCann’s
statement that an administrative review had been undertaken which: (1)
revealed that there was no indication that Corporal Ryerse sought or intended
to mislead; and (2) confirmed that Corporal Ryerse met the requirement of major
fraud experience, without having seen the report or confirming its existence. The
applicant submitted that the adjudicator erred in failing to apply the same
standard to her arguments as he did to those of the RCMP. It was submitted that
the applicant’s evidence was dismissed as “opinion”, while Sergeant McCann’s
opinion was accepted.
Respondent’s Submissions
[17]
The
respondent applied the pragmatic and functional approach to the determination
of the appropriate standard of review, and concluded that the adjudicator’s
decision was subject to review on the standard of patent unreasonableness. It
was submitted that the Federal Court has held that in cases dealing with the
review of RCMP promotions policy, the appropriate standard of review is patent
unreasonableness (see Shephard v. Canada (Royal Canadian Mounted
Police) (2003), 242 F.T.R. 42, 2003 FC 1296, reversed on other grounds,
(2004), 242 D.L.R. (4th) 529, 2004 FCA 254). It was submitted that the Court
has applied the standard of review of patent unreasonableness to decisions made
by RCMP adjudicators regarding promotion and job requirement issues (see Smith
v. Canada (Attorney
General),
(2005), 140 A.C.W.S. (3d) 560, 2005 FC 868; Brennan v. Royal Canadian
Mounted Police) (1998), 154 F.T.R. 309, 83 A.c.W.S. (3d) 895).
[18]
The
respondent submitted that the issue before the adjudicator was whether there
was any evidence to substantiate the applicant’s assertion that the promotion
process for the sergeant’s position was not carried out correctly, in that the
selected candidate did not meet the job requirement of documented experience
conducting major fraud investigations.
[19]
The
respondent noted the applicant’s submission that she provided evidence that
Corporal Ryerse’s name was not mentioned in the fraud aspect of the project
Oxlip file which she reviewed. The respondent submitted that while this
alleged evidence was merely opinion and supposition, there was an explanation
provided regarding the manner in which Corporal Ryerse met the requirement of
documented experience in the selection process. The respondent referred to
Sergeant McCann’s memorandum, dated October 25, 2005, in which it was explained
that candidates can fulfill the requirement for documented experience by
providing a reference who can confirm their experience. The memorandum
indicated that Corporal Ryerse had provided such a reference, who confirmed the
information on his form 4052.
[20]
The
respondent noted the applicant’s submission that she spoke with Sergeant Gairy
and Sergeant McQueen, and that neither could recall Corporal Ryerse’s involvement
in the investigation. The respondent submitted that while the alleged evidence
of the conversation was not substantiated, it was not determinative of the
issue before the adjudicator, since Corporal Ryerse met the requirement for
documented experience by providing a reference. In addition, Sergeant McCann’s
memorandum explained that the investigators could not recall Corporal Ryerse’s
involvement in the project since his investigation of the fraud offence
pre-dated the transfer of the investigation to their department. It was
submitted that the applicant’s alleged evidence regarding the RCMP’s record
keeping methods constituted mere opinion. The respondent submitted that the
applicant’s submissions regarding her conversation with Corporal Ryerse
constituted mere opinion and were not determinative of the issue before the
adjudicator.
[21]
The
respondent submitted that Sergeant Gairy’s affidavit constituted new evidence
which was not tendered before the adjudicator when he rendered his decision. It
was submitted that there were no exceptional circumstances that would warrant
the inclusion of this new evidence in this application for judicial review,
since the applicant could have tendered it as evidence before the adjudicator
(see Han v. Canada (Minister of Citizenship and Immigration) (2006),
147 A.C.W.S. (3d) 1029, 2006 FC 432). The respondent submitted that the
affidavit should not be considered in this application for judicial review.
[22]
The
respondent noted the applicant’s submission that the adjudicator blindly
accepted the RCMP’s evidence with respect to the administrative review. It was
submitted that the adjudicator did not make findings of fact as to the validity
of the review, nor did he rely upon the findings in the review in rendering his
decision. The adjudicator set out all of the information provided to him by the
parties, but clearly stated that his decision to deny the RFI was based upon
the lack of supporting evidence proffered by the applicant.
Analysis and Decision
Standard of Review
[23]
The issue in this
case is factual in nature. It involves a determination as to whether the adjudicator
erred in finding that there was insufficient evidence to support the
applicant’s claim. In Smith above, this Court discussed the appropriate
standard of review to be applied in cases involving an adjudicator’s decision to
deny a request for intervention. Justice Dawson stated at paragraphs 12 and 13:
In Shephard v. Canada
(Royal Canadian Mounted Police) (2003), 242 F.T.R. 42 (T.D.) (reversed on
other grounds (2004), 242 D.L.R. (4th) 529 (F.C.A.)) a pragmatic and functional
analysis was conducted by this Court in order to determine the appropriate
standard of review of a decision of an adjudicator to deny a request for
intervention. The Court noted: the privative clause contained in section 25 of
the Commissioner's Standing Orders; the fact that adjudicators have special
expertise in addressing the issues before them; the broad responsibility given
to adjudicators to resolve these disputes; and the issue in that case was a
question of fact and not a question of law. In the result, the Court concluded,
at paragraph 36, that "all of the factors in a pragmatic and functional
analysis lead to the conclusion that great deference should be given to the
Adjudicator in this matter" so that the standard of review was patent
unreasonableness.
Similarly, in the present case:
the same privative provision applies, the adjudicator is required by the same
RCMP policy to be an officer or senior manager, so as to have expertise with
respect to job requirements and the RCMP promotion process; the purpose of the
grievance provision and the Act are the same; and the problem before the
adjudicator was a question of fact. I conclude, therefore, that the applicable
standard of review to be applied to the adjudicator's decision that Corporal
Smith did not meet all of the requirements of Job Code 575 is patent
unreasonableness.
I would adopt the analysis of Justice
Dawson and accordingly, the appropriate standard of review is patent
unreasonableness.
[24]
Issue
Did the adjudicator err in
denying the applicant’s request for intervention?
Preliminary Point – Use of
Affidavit of Sergeant Gairy
The applicant submitted the
affidavit of Sergeant Gairy sworn on March 3, 2006, which post-dated the date
of the adjudicator’s decision which was January 13, 2006. The respondent
submitted that this affidavit should not be considered as it was new evidence
that was not before the adjudicator, and that it could have been put before the
adjudicator. It is only in exceptional circumstances that the Court will allow
new evidence to be considered upon judicial review that could have been put
before the adjudicator but was not. I can see no such exceptional circumstances
in this case. The affidavit of Sergeant Gairy to the extent that it contains
new evidence, will not be considered on this application.
[25]
A
review of the adjudicator’s decision shows that the adjudicator reviewed the
following materials in considering the applicant’s RFI:
-
the
applicant’s RFI submissions;
-
Sergeant
McCann’s memorandum, dated October 25, 2005;
-
the
applicant’s response, dated November 20, 2005;
-
Inspector
Brine’s response, dated December 15, 2005.
[26]
The
adjudicator correctly noted that members who file a request for intervention
bears the onus of proving the validity of their claims. As a result, the
applicant was required to provide the adjudicator with evidence to support her
claim that Corporal Ryerse did not meet the requirement of documented
experience conducting major fraud investigations, and had misled the board with
respect to the experience he claimed to have.
[27]
The
applicant’s submissions mention: (1) a conversation held with Corporal Ryerse in which he allegedly
indicated that he did not understand why the position required fraud examples; (2)
a conversation held with Sergeant Gairy and Sergeant McQueen, in which neither
could recall Corporal Ryerse’s involvement with project Oxlip; and (3) that
Corporal Ryerse’s experience must be documented via 1624s, C237s or members
notes. The applicant’s response to Sergeant McCann’s memorandum stated that:
(1) she had personally reviewed the project Oxlip file and was unable to find
any mention of Corporal Ryerse’s involvement in the fraud aspect of the
investigation; and (2) Sergeant Gairy and Sergeant McQueen would have been
aware of Corporal Ryerse’s involvement in the project even though they began
working on it after his departure.
[28]
The
record before me shows that all of the above arguments that were relevant to
the case were explained. For example, Sergeant Gairy and Sergeant McQueen
became involved with the file after Corporal Ryerse’s involvement in the fraud
aspect of the file, and Corporal Ryerse could document his fraud experience
either by documented evidence (notebook entries, 1624s, C237s, etc.), or by
validating information provided by the candidate through a form 4052. The
validation process takes the form of contacting the identified references given
by the applicant and having them confirm the information provided by the
applicant. This method is used for experience a member has but which is not
documented.
[29]
In
the present case, the applicant submitted a form 4052 with references. The
references were contacted and verified the experience the applicant claimed to
have.
[30]
In
order to set aside the adjudicator’s decision, I must find the decision to be
patently unreasonable. A patently unreasonable decision is a decision that is
clearly irrational. In this case, the adjudicator denied the request for
intervention due to the lack of supporting evidence provided by the applicant.
He also noted that the respondent provided the findings of an administrative
review which “provided additional support and confirmation that Corporal Ryerse
did in fact meet the requirement of major fraud experience”. Based on the
record before me, I cannot conclude that the adjudicator’s decision was
patently unreasonable. The application for judicial review must therefore be
dismissed.
JUDGMENT
[31]
IT
IS ORDERED that:
1. The applicant’s
application for judicial review is dismissed.
2. There shall be no
order as to costs.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The
relevant statutory provisions are set out in this section.
The Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10.:
|
31.(1)
Subject to subsections (2) and (3), where any member is aggrieved by any
decision, act or omission in the administration of the affairs of the Force
in respect of which no other process for redress is provided by this Act, the
regulations or the Commissioner’s standing orders, the member is entitled to
present the grievance in writing at each of the levels, up to and including
the final level, in the grievance process provided for by this Part.
. . .
32.(1) The
Commissioner constitutes the final level in the grievance process and the
Commissioner’s decision in respect of any grievance is final and binding and,
except for judicial review under the Federal Courts Act, is not subject to
appeal to or review by any court.
|
31.(1)
Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un
acte ou une omission liés à la gestion des affaires de la Gendarmerie causent
un préjudice peut présenter son grief par écrit à chacun des niveaux que
prévoit la procédure applicable aux griefs prévue à la présente partie dans
le cas où la présente loi, ses règlements ou les consignes du commissaire ne
prévoient aucune autre procédure pour corriger ce préjudice.
. .
.
32.(1) Le commissaire constitue
le dernier niveau de la procédure applicable aux griefs; sa décision est
définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la
Loi sur les Cours fédérales, n’est pas susceptible d’appel ou de révision en
justice.
|
The Commissioner’s
Standing Orders (Dispute Resolution Process for Promotions and Job
Requirements), S.O.R./2000-141.:
|
2.(1)
These Standing Orders apply instead of Part III of the Act to the
presentation and resolution of all grievances of members in respect of
(a) a
decision, act or omission made in the course of the selection processes for
the promotion of members, by which decision, act or omission a member has
been aggrieved; or
(b) job
requirements, other than official languages requirements, established for a
position through a decision, act or omission, by which decision, act or
omission a member has been aggrieved.
|
2.(1)
Les présentes consignes s’appliquent, à la place de la partie III de la Loi,
à la présentation et au règlement des griefs suivants:
a)
ceux ayant trait à une décision, un acte ou une omission liés aux processus
de sélection en vue de la promotion des membres et causant un préjudice à un
membre;
b)
ceux ayant trait aux exigences de postes — à l’exception des exigences en
matières de langues officielles — qui sont arrêtées à la suite d’une
décision, d’un acte ou d’une omission, lesquels causent un préjudice à un
membre.
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