Date:
20130610
Docket:
T-1851-08
Citation:
2013FC622
Ottawa, Ontario, June 10, 2013
PRESENT: Madam Prothonotary Mireille Tabib
BETWEEN:
|
|
ALI TAHMOURPOUR
|
|
|
|
Complainant
|
|
and
|
|
|
CANADIAN HUMAN RIGHTS
COMMISSION
|
|
|
|
Commission
|
|
|
and
|
|
|
|
ROYAL CANADIAN MOUNTED POLICE
|
|
|
|
|
Respondent
|
REASONS FOR
ORDER AND ORDER
Background:
[1]
The
moving party on this motion, Ali Tahmourpour, is a Canadian citizen of Iranian
origin and of Muslim faith. In 1999, while enrolled as a cadet at the RCMP Training Academy, he was the victim of systemic discrimination. His training contract
was terminated in October 1999, and he was subsequently denied re-enrolment.
Mr. Tahmourpour filed a complaint against the RCMP with the Canadian Human
Rights Commission, alleging violation of sections 7 and 14 of the Canadian
Human Rights Act. After a lengthy investigation and hearing, the Canadian
Human Rights Tribunal (the “Tribunal”) concluded, in April 2008, that
Mr. Tahmourpour had indeed been the victim of systemic discrimination,
contrary to section 7 of the Canadian Human Rights Act, and that this
discrimination had been a factor in the termination of his contract and denial
of re-enrolment.
[2]
The
Tribunal ordered several remedies to stop the discrimination from continuing,
to prevent future discrimination and to compensate Mr. Tahmourpour for past
discrimination. Among the remedies ordered by the Tribunal were the following
orders:
“(i) Unless otherwise
agreed upon, the Respondent [RCMP] shall offer Mr. Tahmourpour an opportunity
to re-enroll in the next available RCMP Cadet Training Program at Depot;
(ii) If Mr. Tahmourpour
accepts the offer of re-enrollment, the Respondent shall undertake a fair
assessment of his skills at the outset of the training program to determine the
areas in which training is needed;”
[3]
From
the very beginning, issues arose between the parties as to whether the RCMP
could impose any requirements or conditions for Mr. Tahmourpour’s
re-enrolment. The RCMP insisted that an offer to re-enrol in the RCMP training
program could only be proffered once Mr. Tahmourpour has completed the
numerous forms, evaluations and examinations required as part of the
recruitment process; Mr. Tahmourpour was adamant that he should be treated as
an already qualified recruit and presented with an offer of re-enrolment in the
form of a Cadet Training Agreement without further prerequisites. In the
meantime, the RCMP had sought judicial review of the Tribunal’s decision. As
discussions dragged on, the Federal Court, on October 6, 2009, granted the
RCMP’s judicial review application and quashed the Tribunal’s decision. The
parties’ dispute over the implementation of the Tribunal’s order came to a
halt. Mr. Tahmourpour successfully appealed the Federal Court’s order of
October 2009, and in July 2010, the Federal Court of Appeal reinstated the
Tribunal’s decision. The parties resumed their discussions as to the
implementation of the Tribunal’s order, again foundering on the same point of
contention.
[4]
Mr.
Tahmourpour filed, in May 2011, a first motion seeking to have then RCMP
Commissioner William Elliott appear before the Court to show cause why he
should not be found in contempt of Court for failing to comply with the
Tribunal’s order. At the Court’s urging in the course of the hearing of the
motion, the parties began a new round of discussions, arriving at a resolution
of the issues on the motion for contempt in the summer and fall of 2011. The
motion was discontinued in January 2012.
[5]
Difficulties
between the parties arose again in the course of the implementation of the
agreement reached, prompting Mr. Tahmourpour to file the present motion. This
motion seeks an order compelling Bob Paulson, Commissioner of the RCMP, and
Inspector Monique Beauchamp to appear before the Court to show cause why they
should not be found guilty of contempt of Court for disobeying the Tribunal’s
order.
Procedural
framework:
[6]
The
order which Mr. Tahmourpour seeks to enforce is the order of the Tribunal,
which became an order of this Court pursuant to section 57 of the Canadian
Human Rights Act. Section 57 provides that orders of the Tribunal may be
made orders of the Federal Court for the purpose of enforcement by filing a
certified copy of the order with the Court’s Registry.
[7]
The
Tribunal’s order, as excerpted above, is directed against the RCMP, and not
against a particular individual. Indeed, only the RCMP is named as a
Respondent in the Tribunal’s order and in the registration proceedings in this
Court. Mr. Tahmourpour’s motion seeks an order against Commissioner Paulson
and Inspector Beauchamp, and not against the RCMP or the Crown, on the basis
that these two individuals were ultimately responsible for, or specifically
tasked with, the obligation to carry out the terms of the order.
[8]
The
Respondents have argued that the Applicant has failed to make out a prima
facie case that a breach of the Tribunal’s order occurred – indeed, they
submit that they have complied with the order – and that the terms of the order
are in any event ambiguous, and as such, unenforceable.
[9]
The
Respondents also submit, as a preliminary issue of law, that contempt is not a
remedy available against the Crown, and that the Crown cannot indirectly be
held in contempt vicariously through its servants. I will consider this latter
argument first.
Liability of the
Crown or its servants for contempt:
[10]
Mr.
Tahmourpour does not dispute that the RCMP does not have an independent
existence and is, in fact, the Crown. The Royal Canadian Mounted Police Act,
RSC, 1985, c. R-10 (the “RCMP Act”) does not constitute the RCMP as a
corporation, agency or body distinct from the Crown. Section 3 of the RCMP
Act merely provides that the RCMP is to “consist of officers or other
members”.
[11]
Nor
does Mr. Tahmourpour dispute that contempt is not and has never been available
against the Crown. Authority for this principle can be found in Peter Hogg, Liability
of the Crown, 4th ed., (Toronto, Carswell, 2011), at page 82:
“Contempt has never been available against the Crown
itself. Indeed, in origin, disobedience of a court order was punishable on the
ground that it was contemptuous of the King’s (or Queen’s) authority. It was
therefore impossible for the King (or Queen) to be in contempt. It was also
unthinkable that the courts could imprison or fine the King (or Queen).”
[12]
Section
29 of the Crown Liability and Proceedings Act, RSC 1985, c. C-50 (“CLPA”)
also prohibits any execution proceedings being taken against the Crown:
|
“29. No execution
shall issue on a judgment against the Crown.”
|
« 29. Les jugements
rendus contre l’État ne sont pas susceptibles d’exécution forcée. »
|
[13]
Given
that the Crown cannot be found in contempt for allegedly breaching the order of
the Tribunal, could its servants, in the person of the Commissioner of the RCMP
and/or Inspector Beauchamp, be found in contempt under the same principles as
apply to responsible officers of corporations? Mr. Tahmourpour argues that
they can.
[14]
To
make this argument, Mr. Tahmourpour refers to the case law establishing that,
where a corporation is found to be in contempt for breaching an order of the
Court, the responsible officers of the corporation who aided and abetted in the
breach may also be found in contempt (Manufactures Life Insurance Co. v
Guaranteed Estate Bond Corp., 2000 FCJ No 172, at para 15, and Telus
Mobility v Telecommunications Workers Union, 2002 FCT 656, at
para 14).
[15]
These
cases do not stand for the proposition that officers of corporations who have
certain responsibilities to act on behalf of the corporation can, be mere
virtue of their position, be found
in contempt for the corporation’s
breach. Indeed, contempt proceedings are criminal in nature, and the concept
of vicarious liability is unknown to the criminal law: Bhatnager v Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217, at para 25. The Federal
Court, in Telus Mobility, further makes it clear that the individual
charged with contempt must have personally taken steps, or failed to take steps
that he or she was personally mandated to take, in an manner that was causative
of the breach (at para 16 and 33).
Commissioner
Paulson:
[16]
The
allegations against Commissioner Paulson in this case rest merely on his
position as Commissioner of the RCMP, on s. 5 of the RCMP Act, which
gives him responsibility for “the control and management of the Force”, and on
the Respondent’s admission that he had knowledge of the Tribunal’s order as of
early September 2012. Beyond this, there is no evidence or allegation that
Commissioner Paulson personally had any role in the day-to-day management of
the enrolment of cadets in the training program or in the implementation of the
Tribunal’s order. Nor can it be said that the terms of the Tribunal’s order
implicitly or explicitly mandated the Commissioner to personally see to the
implementation of the relevant part of the order, that the Commissioner alone
would have had the necessary authority to direct its implementation, or that a
statutory duty was imposed on him, as Commissioner, to carry out the order of the
Tribunal.
[17]
It
is clear that Mr. Tahmourpour’s motion, as concerns Commissioner Paulson,
seeks to fix the RCMP’s alleged contempt on him by sole virtue of his position
as Commissioner.
[18]
In
the circumstances, a show cause order against the Commissioner could only be
based on vicarious liability. Not only would this go against the general
principles applicable to liability for contempt of directors and officers or
corporations, but it would further enable a party to indirectly hold the Crown
in contempt when it clearly cannot do so directly.
[19]
Mr. Tahmourpour
sought to bolster his position by relying on the case of Ayangma v Canada,
2002 FCT 79 and on a discussion at pages 84 to 86 of Professor Hogg’s book, Liability
of the Crown, above.
[20]
The
Federal Court in Ayangma dismissed a motion for a show cause order
against three individual employees of the government, citing “other procedural
issues” which it summarized as follows (at para 18):
“18 (3) The individuals named in the notice of motion could only be subject
to a show cause order where it is established that they have been personally
served with the Notice of Motion and there is prima facie evidence that they
are aware of the order of this Court which it is alleged that they have
violated, and there is some evidence that they, as individuals, have violated
the order. In my view, these matters are not established by the evidence
offered in support of the motion for show cause orders.”
[21]
Mr. Tahmourpour
seems to take from this, a contrario, that individual servants of the
Crown may vicariously be found in contempt for the Crown’s failure to comply
with an order of specific performance, even when they are not named in the
order, so long as they are personally identified in and served with the motion,
and are shown to have been aware of the order alleged to have been violated.
This case is not of assistance to Mr. Tahmourpour. I note that, brief as
they are, the Court’s reasons reiterate that contempt against individuals
requires evidence that “they, as individuals, have violated the order”,
negating the notion that Crown servants could be found in contempt merely by
virtue of the position they occupy. The Court in Ayangma does not
discuss the circumstances in which an individual Crown servant might be said to
have personally violated an order that is not directly, or at least implicitly,
directed against him or her.
[22]
As
regards the discussion in Professor Hogg’s work, it is clear that the authors
merely propose that contempt proceedings should be available against the
Crown, having acknowledged that the existing state of the law in Canada is to the contrary.
[23]
Accordingly,
I find that Commissioner Paulson cannot be found liable for contempt on the
record before me.
Inspector
Beauchamp:
[24]
Mr. Tahmourpour’s
case against Inspector Beauchamp is based on the fact that she is the RCMP
Officer in Charge, Recruiting Central Division, that she was designated by the
RCMP as the person responsible for assisting him through the re-enrolment
process from March 13, 2012 and that she was the person who advised him, in
September 2012, that the results of his medical assessment prevented the RCMP
from continuing with his re-enrolment. While the evidence establishes, and
Inspector Beauchamp herself admits, that she was actively involved in the
re-enrolment process, the evidence is entirely silent as to how Inspector
Beauchamp might, by her individual actions, have personally breached the order
of the Tribunal. The evidence does not indicate in what way Inspector
Beauchamp’s actions prevented compliance with the order, what authority she
exercised to prevent compliance or, conversely, what authority she possessed
that she could or should have exercised, but failed to exercise, to ensure
compliance with the Tribunal’s order.
[25]
In
contrast to Mr. Tahmourpour’s case against Commissioner Paulson, which
demonstrates a theoretical authority but no actual involvement, the case
against Inspector Beauchamp merely shows a personal involvement in the events
surrounding the alleged breach, but no concomitant authority to affect the
outcome of the implementation process.
[26]
Mr. Tahmourpour
has therefore not shown grounds for holding Inspector Beauchamp personally
liable for contempt.
[27]
It
may be felt that the above analysis sets the standard for holding Crown
servants in contempt impossibly high, allowin4g breaches of Court orders by the
Crown to go unpunished and leaving citizens without any means of enforcing
compliance by the Crown. It must be remembered, however, that as Canadian law
currently stands, execution proceedings, whether by contempt or otherwise,
simply do not lie against the Crown (see s. 29 of the CLPA, above). There
is no justification for relaxing the rules of criminal liability in respect of
persons who hold employment or positions in the public service or in the
government for the sake of creating a remedy where Parliament did not intend
one to exist.
Breach of the
Tribunal’s order:
[28]
For
the sake of completeness, and in the event I have erred in respect of the
circumstances in which a Crown servant may face contempt proceedings, I have
also not been persuaded that Mr. Tahmourpour has made out a prima facie
case that the Crown was in breach of paragraphs (i) and (ii) of the Tribunal’s
order at any time following the settlement of Mr. Tahmourpour’s first
motion for a contempt order. To the extent it is alleged that the Crown was in
breach of the Tribunal’s order prior to January 2012, a matter which I do not
determine, Mr. Tahmourpour confirmed through his counsel’s letter to the
Respondent’s counsel dated December 19, 2011, and through a letter to the Court
and the notice of discontinuance dated January 31, 2012, that the matter was
formally settled to his satisfaction. While the Court accepts that
Mr. Tahmourpour can refer to the events that predate the settlement as
evidence demonstrating a state of mind that continued after the settlement, the
settlement has the effect of precluding Mr. Tahmourpour from seeking
remedy in contempt for any alleged breach predating the settlement. In any
event, the record does not indicate that either Commissioner Paulson or
Inspector Beauchamp were even in their current positions at the time.
Paragraph (i) of
the Tribunal’s order:
[29]
Paragraph
(i) of the Tribunal’s order provides that:
“Unless otherwise agreed upon, the Respondent shall
offer Mr. Tahmourpour an opportunity to re-enrol in the next available
RCMP Cadet Training Program at Depot;”
[30]
As
mentioned earlier in these reasons, the parties had been at odds over the
implementation of this same paragraph, more particularly, as to whether the
RCMP could impose for Mr. Tahmourpour’s re-enrolment certain of the usual
conditions and requirements applicable to new recruits. This disagreement was
specifically raised in Mr. Tahmourpour’s first motion for contempt.
[31]
Following
discussions, the parties reached an agreement as to which forms and agreements
Mr. Tahmourpour would be required to complete. By letter dated October 17,
2011, counsel for Mr. Tahmourpour wrote to counsel for the RCMP that Mr.
Tahmourpour “is now satisfied that the proposed offer and terms of re-enrolment
are consistent with the Tribunal’s order”, and requested that the approved
draft letter of offer, a Cadet Training Agreement and the agreed upon forms be
finalized and forwarded. The formal letter of offer, dated November 15, 2011,
together with a signed Cadet Training Agreement and forms were subsequently
sent to Mr. Tahmourpour, and executed by him.
[32]
The
letter of offer reads in part as follows:
“Pursuant to the decision of Karen Jensen of the
Canadian Human Rights Tribunal dated, April 16, 2008, we are pleased to advise
you that this is your offer of re-enrollment in the Cadet Training Program
at Depot. To that end I have enclosed an executed Cadet Training Agreement
(CTA).
We ask that you sign and return the CTA at
your earliest opportunity to complete your re-enrollment. However, you will
not commence RCMP training at Depot Division, Regina, Saskatchewan until
we have received a signed copy of this letter acknowledging agreement and you
have completed all of the following conditions successfully within the time
frames indicated in the re-enrollment package. Specifically, you must have
both the medical and security clearances, which includes
successfully completing the PARE. As such, the forms that need to be completed
at the beginning of the process are listed and included. There may however
be additional forms that may need to be completed as the clearances are being
processed ie, for medical clearance there will be forms the doctor completing
the evaluation will ask to be completed.”
(emphasis mine)
[33]
This
letter of offer is exactly in the form approved by Mr. Tahmourpour’s counsel on
his behalf, and which he confirmed was consistent with the Tribunal’s order.
That order did not require that Mr. Tahmourpour be re-enrolled in the
Cadet Training Program, but that he be offered an opportunity to
re-enrol. That opportunity was, in fact, offered, and the conditions for Mr.
Tahmourpour to translate this opportunity into actual training were clearly
agreed to between the parties. In my view, the Crown’s compliance with
paragraph (i) of the Tribunal’s order was completed as soon as the agreed upon
offer was submitted to Mr. Tahmourpour.
[34]
Mr.
Tahmourpour’s complaint is not, in reality, that the terms of the offer
breached paragraph (i) of the order, but that the manner in which the RCMP
subsequently interpreted and applied the conditions set out in the offer showed
an intention to not carry through with the offer or with paragraph (ii) of the
order.
[35]
Mr. Tahmourpour
submits that as a returning cadet, rather than a new applicant, the only
medical clearance he was required to successfully complete was the PARE
(Physical Abilities Requirement Evaluation), and not a full medical examination
or psychological assessment. Notwithstanding that interpretation of the
re-enrolment offer, Mr. Tahmourpour did recognize in correspondence to the
RCMP that his Cadet Training Agreement required him to submit to periodic
health assessments, which include a psychological assessment, and to continue
to meet the medical standard profile (Exhibit “DD” to Mr. Tahmourpour’s
affidavit). He also recognized that part of this psychological health
assessment pertains to illness or conditions that would render him unfit to
work, or to carry out the tasks and requirements of a General Duty Constable
(Exhibit “EE” to Mr. Tahmourpour’s affidavit).
[36]
On
that basis, Mr. Tahmourpour submitted to the psychological evaluation.
However, he believes, based on the comments made and questions asked by the
psychologists he met, that he was being screened for suitability or
desirability for recruitment rather than for fitness for duty. On September
24, 2012, Mr. Tahmourpour was formally notified that the Health Services
Officers of the RCMP, based on his medical evaluation, concluded that he would
not be able to perform the duties expected of a constable in the RCMP. As a
result, the RCMP discontinued the re-enrolment process before
Mr. Tahmourpour was even assigned to a training course at Depot.
[37]
Mr. Tahmourpour
submits that the RCMP, in bad faith and in breach of its obligations under the
Tribunal’s order, used the psychological assessment as a screening tool to deny
him an opportunity to re-enrol, and to keep him from even arriving at the
training program for a “fair assessment of his skills”, as required by
paragraph (ii) of the Tribunal’s order.
[38]
As
mentioned, I have concluded that the RCMP fully complied with paragraph (i) of
the Tribunal’s order by making the agreed-upon offer. Mr. Tahmourpour’s
allegation that the RCMP misused the psychological assessment, even if it were
substantiated, would constitute a breach of the offer of re-enrolment, and not
a breach of the Tribunal’s order. Accordingly, I find that no breach of paragraph
(i) of the Tribunal’s order occurred.
Paragraph (ii)
of the Tribunal’s order:
[39]
Paragraph
(ii) of the Tribunal’s order reads as follows:
“(ii) If Mr. Tahmourpour
accepts the offer of re-enrollment, the Respondent shall undertake a fair
assessment of his skills at the outset of the training program to determine the
areas in which training is needed;”
[40]
Mr.
Tahmourpour accepted the offer of re-enrolment, and submits that the RCMP
breached its obligation to provide him with a fair assessment of his skills by
preventing him from even arriving at the training program, through misuse of
the psychological evaluation as a suitability screening tool.
[41]
The
Tribunal’s order does not require the RCMP to invite Mr. Tahmourpour at Depot
for an assessment of his skills outside of the context or purpose of the
completion of the training program. To that end, that part of the order
assumes Mr. Tahmourpour’s presence at Depot as a participant in the program.
Breach of paragraph (ii) of the order cannot be established merely by showing
that Mr. Tahmourpour did not attend as a participant at the training program.
To do so would import into the Tribunal’s order a strict obligation for the
RCMP to ensure Mr. Tahmourpour’s presence and participation in the
training program, triggered solely by Mr. Tahmourpour’s acceptance of an
offer of re-enrolment, and without regard for any external circumstance. Such
an interpretation simply cannot be made on the basis of the Tribunal’s order or
reasons for order. In my view, in order to establish that the RCMP breached
paragraph (ii) of the order, Mr. Tahmourpour would have to show either that,
being present at the outset of the training program, the RCMP failed to provide
the required assessment, or that he was prevented from attending the program by
reason of the unjustified conduct of the RCMP.
[42]
The
Cadet Training Agreement signed by Mr. Tahmourpour as part of his acceptance of
the offer of re-enrolment provides, in part, as follows:
“In particular, the Royal Canadian Mounted Police
reserves the right at its discretion and at any time to revoke this
offer or terminate your training including, without limitation:
(…)
−
If
the RCMP becomes aware,
whether as a result of its ongoing investigations concerning your application
or by other means, that you may not receive Top Secret security
clearance or meet other conditions of engagement;
−
If
your behaviour or performance brings to light a mental or emotional
(psychological) condition that would interfere with your carrying out the tasks
and requirements of a General Duty Constable.
(emphasis mine)
[43]
Mr.
Tahmourpour, as mentioned above, admitted that under the terms of that
agreement, he was required to meet the medical standard profile and that
psychological health assessments could be required to assess his fitness to
carry out the tasks and requirements of a General Duty Constable. On the face
of the record, Mr. Tahmourpour submitted to such a psychological health
assessment, and the RCMP’s Health Services Officers determined that he did not
meet the medical standards and would not be able to perform the duties expected
of a constable in the RCMP (Exhibit “II” to Mr. Tahmourpour’s affidavit).
[44]
On
the basis of the above, the RCMP was justified in terminating Mr. Tahmourpour’s
re-enrolment process and did not breach paragraph (ii) of the Tribunal’s order.
[45]
Mr.
Tahmourpour disputes the conclusion that the RCMP was justified in terminating
his enrolment. He submits that he does not believe that there is any true
medical or psychological issue affecting his ability to work as an RCMP
constable, but instead, that the psychological assessment was used as an
arbitrary screening tool to prevent his re-enrolment. The only evidence
offered to support that contention is the fact that Inspector Beauchamp’s
letter does not identify a specific medical condition or illness, and Mr.
Tahmourpour’s belief that the questions put to him by the two assessing
psychologists about the discrimination he experienced at Depot can only be
explained by the fact that they were screening him for suitability rather than for
fitness to work as a constable. Mr. Tahmourpour also relies generally on
the history of the RCMP’s reluctance and delay in implementing the order, and
on the vocabulary used by RCMP officials in their dealings with him, which he
says showed they viewed him as an applicant rather than a returning cadet.
[46]
Mr.
Tahmourpour’s subjective belief is insufficient to establish a prima facie
case that the RCMP’s Health Services Officers did not justifiably or reasonably
reach the conclusion that he was not medically fit for employment as an RCMP
constable, or that the psychologists were assessing him on the wrong standard.
[47]
As
regards Inspector Beauchamp’s failure to identify a specific medical condition,
I note that the information Inspector Beauchamp herself received from the
Health Services Officers did not mention a specific condition or illness, but
only their conclusions (the Medical Profile form in fact does not provide a
space for such specification). Inspector Beauchamp’s formal letter to
Mr. Tahmourpour further advises that Mr. Tahmourpour could consent to his
medical file being released to his doctor.
[48]
Mr.
Tahmourpour could have asked that his file be communicated to or discussed with
his own doctor, or be provided to him. This would have allowed him to put his
medical file before the Court to substantiate his claim that he does not have a
medical impediment or that his psychological assessment was made incorrectly.
Mr. Tahmourpour apparently chose not to do so. As a result, the medical
file, as constituted by the RCMP and ostensibly relied upon to conclude that he
is unfit for service, is not before the Court. There is no basis upon which
the Court can find, on a prima facie basis, that a breach of paragraph
(ii) of the Tribunal’s order occurred.
[49]
Counsel
for Mr. Tahmourpour also argued at the hearing that the offer of
re-enrolment did not contemplate the completion of the “Medical Profile”, form
2158, as a condition of the offer, and that to the extent medical clearance by
way of that Medical Profile could be required at all, it could only be required
once Mr. Tahmourpour reached Depot and began his training. It was argued that,
simply by insisting that Mr. Tahmourpour have a valid Medical Profile before
being assigned to a specific training program, the RCMP unjustifiably prevented
his attendance at the outset of training.
[50]
There
is no merit to this argument. The letter of offer to re-enrol, even if it does
not mention form 2158 specifically, does specify that Mr. Tahmourpour
“must have both the medical and security clearances”, of which the PARE is but
one element. The letter further contemplates that “There may however be
additional forms that may need to be completed […] i.e., for medical clearance there
will be forms the doctors completing the evaluation will ask to be completed”.
There is, further, no evidence that the Medical Profile is not a requirement to
be met by any other cadet prior to their arrival at the training facility.
Counsel’s position at the hearing also appears contradictory to the position he
expressed to the RCMP’s counsel in his letter of October 21, 2010, (Exhibit “J”
to the affidavit of Mr. Tahmourpour) in which he wrote “Upon signing the
Cadet Training agreement, the RCMP will be at liberty to subject Mr.
Tahmourpour as an enrolled cadet to its standards, inclusive of fitness, medical
and security, as they pertain to enrolled cadets”. Counsel’s position at the
hearing also conflicts with Mr. Tahmourpour’s own understanding that all cadets
must at all times have a valid Medical Profile on record. Finally, counsel’s
argument puts form over substance: If one takes the Health Services Officers’
assessment of Mr. Tahmourpour’s fitness for employment to be a fair and
justifiable assessment (which I must do in the absence of evidence to the
contrary), then whether it was completed prior to or after Mr. Tahmourpour’s
arrival at Depot would not have made any difference to Mr. Tahmourpour’s
prospects of continuing his training. It would make no sense for the Tribunal,
Mr. Tahmourpour or the RCMP to have intended Mr. Tahmourpour to undergo an
evaluation of the skills requiring further training where his medical condition
would in any event preclude that training.
[51]
For
all those reasons, I am not satisfied that Mr. Tahmourpour has made out a prima
facie case that paragraph (ii) of the Tribunal’s order was breached.
ORDER
THIS COURT ORDERS
that:
1.
The
Applicant’s motion is dismissed, with costs.
“Mireille
Tabib”
Email this Content