Date: 20070124
Docket: T-2082-05
Citation: 2007 FC 29
BETWEEN:
WALTER
B. SMILEY
Applicant
and
THE ROYAL CANADIAN MOUNTED
POLICE
Respondent
REASONS FOR
JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision of a Royal Canadian Mounted
Police (RCMP) adjudicator under the Commissioner’s Standing Orders (Dispute
Resolution Process for Promotions and Job Requirements) (the CSO) which dismissed
the applicant’s grievance that the promotion process he was involved with was
prejudiced.
[2]
Walter
Smiley, the applicant, has been a police officer since 1979 with the Hantsport
Municipal Police Force. In 1994, he was promoted to the rank of sergeant.
[3]
of
2001, the Hantsport Municipal Police Force was absorbed into the RCMP. The
document entitled Protocol for the Amalgamation of Other Police Forces into
the RCMP (the Amalgamation Protocol) states that an officer who previously
held a non-commissioned officer (NCO) rank will, after one year of satisfactory
service, be allowed to participate in the promotional process up to and
including the sergeant rank. The Amalgamation Protocol also states that if the
officer does not succeed in getting a promotion the officer will be required to
compete in future promotional cycles at the corporal rank.
[4]
According
to the applicant, the afternoon before he was to write the sergeant’s exam he
received a call at home from a secretary with staffing advising him not to
write the exam as a management decision had been made that the offer to allow
him to keep the rank of sergeant upon successful completion of the exam was not
going to be honoured. The applicant claims that he found out that a few
officers had brought forth complaints that an absorbed officer was allowed to
write the sergeant’s exam. Upon learning about this, the applicant called the
RCMP regional head office in Halifax. The head office
informed him that no absorbed officer would be allowed to write a ranked RCMP
exam.
[5]
After
the applicant submitted a grievance on this matter, he was allowed to write the
sergeant’s exam on the condition that his grievance be withdrawn. The applicant
decided to withdraw his grievance and he wrote and passed the sergeant’s exam
in February 2003. Passing the sergeant exam does not automatically mean that
the member is promoted to the rank of sergeant; the member must successfully
compete for a position with sergeant rank in order to obtain the rank of sergeant.
[6]
The
applicant felt that despite his successful completion of the sergeant exam that
he was not being considered for all the available sergeant positions for which
he was eligible. He submitted a grievance on this matter.
[7]
In
late June 2004, the applicant was informed that he was being considered
retroactively for promotional opportunity 2001 HRM 068, NCO i/c Springdale
Detachment, “B” Division – Sergeant (the Springdale position).
The promotion selection process in the RCMP involves comparing candidates and
ranking them against each other in order to determine which candidate is the
strongest. There were only two candidates competing for the Springdale position,
the applicant and the incumbent, Sgt. MacKay. On September 27, 2004, a
three-person selection committee (the Selection Committee) determined that the
incumbent, Sgt. P. J. MacKay would receive the promotion.
[8]
The
applicant filed a request for intervention dated October 19, 2004. A request
for intervention is an internal administrative process whereby an RCMP member
grieves a decision made during the selection process concerning that member’s
possible promotion.
[9]
On
May 17, 2005, the applicant’s request for intervention was presented to
Inspector D. G. Wojcik (the “Adjudicator”). He determined that the
applicant had not proven that he had been “prejudiced by a decision, act or
omission in selection process”. It is this decision which is under review.
[10]
The
applicant essentially submits:
1) that the Selection Committee
was biased as evidenced from the fact that it took only 12 minutes to conduct
the promotion competition and evidenced by the facts surrounding the applicant’s
absorption into the RCMP, including his difficulties in getting permission to
write the sergeant exam; and
2) that the Career Development
and Resourcing Department (CDR) did not consider him for all the promotional
opportunities for which he was eligible.
[11]
The
applicant implies that the bias arose in both cases because of resentment among
some members of the RCMP towards absorbed officers who were to be given the
opportunity to be promoted to the rank of sergeant after only having served in
the RCMP for a short time. Although not framed as such by the applicant, these
allegations include submissions of breaches of procedural fairness.
[12]
In his submissions, the applicant only challenged
the Adjudicator’s findings on bias. For example, he did not challenge the Adjudicator’s
finding that some of the issues he raised were time barred.
Bias on the part of the
Selection Committee in favour of the incumbent
[13]
In
that regard, the relevant portion of the Adjudicator’s decision reads:
Process biased in favour of the incumbent – I have reviewed the process
which was used by the CD&R and the Selection Committee to have the files of
the two candidates assessed, compared and ranked. I found nothing in my review
to persuade me that there was any evidence of a procedure which was biased in
favour of the incumbent. The current promotion process used by the Force is
premised on the fact that candidates are compared, assessed and ranked in
relation to each other. This comparison process is not carried out in a void,
as seems to be suggested by the complainant. I find no merit to this argument.
[14]
The
Supreme Court of Canada in Committee for Justice and Liberty et al. v.
National Energy Board et al., [1978] 1 S.C.R. 369, held that the test in
such a matter is whether an informed person, viewing the matter realistically
and practically and having thought the matter through would conclude that the
decision-maker would decide fairly or not. Therefore, the test is whether such an
informed person would conclude that the Selection Committee was going to decide
unfairly against the applicant.
[15]
I
am not persuaded that the decision should be sent back for reconsideration as
there is simply no evidence in front of the Court to support a finding of bias.
[16]
The
applicant submits a reasonable person reviewing the circumstances leading up to
the Selection Committee decision and the circumstances under which the decision
was made would conclude that the Selection Committee was biased. These
circumstances are:
1) the fact that the absorption
agreement was not honoured (i.e. the applicant was told that if he wrote
the sergeant test that he would not be permitted to apply for sergeant rank
positions);
2) the fact that the Division
Staff Relations representative advised the applicant that no absorbed municipal
officer would be permitted to write a ranked exam; and
3) the fact that the Selection
Committee took only 12 minutes to review, compare and decide between the
applications of the applicant and Sgt. MacKay.
[17]
The
respondent submits that the first of these facts is not properly before the Court
because the agreement was not before the Adjudicator. I agree. As for the
second of these facts, namely the alleged comment from the Division Staff
Relations representative, it is hearsay evidence which is given very little
weight. Concerning the third of these facts, the respondent notes that the
applicant was informed that he had been placed on a qualifying list and that he
indicated that he would forward his Performance Report for Promotion (PRP) and his
Structured Résumé (SR) by July 28, 2004. The Selection Committee convened
on September 27, 2004. The respondent also notes that there were two months
between the date the applicant submitted his PRP and SR and the date the
Selection Committee met and that it is possible the members of the Selection
Committee reviewed the documents during that time.
[18]
The
applicant correctly stated in his submission that the transcript from the
meeting of the Selection Committee indicates that the Selection Committee met
for a total of 12 minutes including the time spent discussing the files
off-record. Since there is nothing of substance in the transcript of the
Selection Committee meeting, one can only assume that the substantive
discussion happened in the off-record portion of the meeting. It is not clear
why the process in place includes taping the formalities of the meeting, such
as the names of the Selection Committee members and their decision, but leaves
off-the record the substance of the decision. So again the evidence before the Court
is unsatisfactory. Certainly, 12 minutes does not seem to be a very long time,
but as the respondent points out it is not unreasonable to infer that the
Selection Committee members came to the meeting well prepared, having read in
advance all the materials.
[19]
The
applicant has provided basically no evidence to support his allegation of bias.
He does not submit evidence of any inappropriate behaviour or comments by the
members of the Selection Committee nor does he provide any evidence that
members of the Selection Committee had relationship with the incumbent.
Bias or unfairness preventing the
applicant from being considered for all available promotional opportunities
[20]
The
applicant has not submitted any evidence on which to make a bias finding. Even
if the Court were to accept the evidence that the Division Staff Relations representative
told him that absorbed officers would never be allowed to write a ranked RCMP
exam, there is still no evidence that this representative had any relationship
with the CDR staff or that the CDR staff shared the same views about absorbed
officers.
[21]
Similarly,
there is no evidence to support the notion that the process used by the staff
at CDR to determine which promotional opportunities the applicant was eligible
was unfair.
[22]
It
appears that CDR followed the procedures in Chapter 4 of the RCMP Career
Manual.
[23]
The
only evidence before the Court is that after the applicant filed a grievance
about the lack of promotional opportunities offered to him, a review of the
applicant’s file was initiated to determine his eligibility in a number of sergeant
promotional opportunities. On June 28, 2004, a memo was written by CDR that
identified four promotional opportunities which the applicant could have
competed for, except that the memo also indicated that three of the four
positions had requirements that the applicant could not meet. The remaining
position was the Springdale position that the applicant ultimately competed
for. Based on the evidence before the Court, it is impossible to determine
whether other promotional opportunities arose in the relevant promotional year
which the applicant should have been considered for.
[24]
As
there is no indication that the CDR was unfairly narrowing the list or any
evidence that staff members at CDR made negative comments about the applicant
or absorbed officers generally, I cannot see how it can be found that there was
bias or a reasonable apprehension of bias or any unfairness.
[25]
While
I am sympathetic to the difficulties that the applicant has faced in
re-establishing his career after the absorption of his municipal police force
into the RCMP, there is no evidence indicating that the process followed by the
CDR to determine which promotional opportunities the applicant was eligible for
or the process followed by the Selection Committee was tainted by bias or the
reasonable apprehension of bias. The Adjudicator’s decision, therefore, ought
to be upheld.
[26]
Consequently,
the application for judicial review is dismissed. As no costs were requested, none
should be awarded.
“Yvon
Pinard”
Ottawa, Ontario
January
24, 2007
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