Date:
20130705
Docket:
T-40-13
Citation:
2013 FC 755
Ottawa, Ontario,
July 5, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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BARRY GEORGE RUSSELL
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Applicant
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and
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COMMISSIONER OF THE ROYAL
CANADIAN MOUNTED POLICE AS REPRESENTED HIS DESIGNATE ADJUDICATOR RCMP
SUPERINTENDENT MARK MCGOWAN
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
This judicial
review turns on two fighting words: “cheat” and “bias”; neither of which should
have been used. Corporal Kent MacKay was accused of cheating while vying with
Sergeant Barry Russell for a promotion within the Royal Canadian Mounted
Police. He was allowed to continue in the competition by Superintendent Dan
Nugent, notwithstanding that he was of the view that one of the examples in his
application could be construed as misleading. Superintendent Nugent did not
pass on that information to the validation committee, which he himself
appointed. The validation committee found that both candidates were qualified.
The selection committee determined that they were equally qualified. Corporal
MacKay was recommended for the promotion on the basis of seniority. That
recommendation was accepted by Superintendent Nugent. The superintendent was
accused of conflict of interest and bias.
[2]
Sergeant
Russell complained that Corporal MacKay should not have been allowed back into
the competition and, in any event, should not have been appointed.
[3]
These
complaints were dismissed by Superintendent Mark McGowan, adjudicator, Atlantic
region, RCMP. This is the judicial review of that decision. Although there may
have been some hard feelings on Sergeant Russell’s part at the outset, he
himself has now been promoted and is not interested in Corporal MacKay’s job.
In fact, he now plays a role in the RCMP’s promotion process himself. He
considers it flawed, at least as applied in this case. Nevertheless, the matter
has not become moot. There is some potential gain to Sergeant Russell in that
if judicial review is granted and the matter is referred back to another
adjudicator, he might benefit from some retroactive pay and pension
adjustments.
[4]
I
shall:
a.
discuss
the RCMP’s promotion process;
b.
set
out the facts leading up to the complaint;
c.
analyze
superintendent McGowan’s decision; and
d.
render
my own decision.
THE RCMP
PROMOTION PROCESS
[5]
The
promotion process within the RCMP is complex. It is designed to ensure fair
play and to minimize favouritism so that the best qualified person gets the
job. Candidates are assessed at different stages by different members of the
RCMP, who act independently from each other. The process need not be described in
great length as it was clearly explained by Madam Justice Bédard in Rehill v
Canada (Attorney General), 2011 FC 1348, 209 ACWS (3d) 210, 2011 FCJ No
1647 (QL) at paras 19-30.
[6]
This
particular competition was within non-commissioned officer ranks. The framework
is set out in the Career Management Manual, bulletin CMM-783, issued in
June 2006. As the promotion was for a decentralized position, the authority to
promote lay with Superintendent Dan Nugent, the Human Resources Officer
Designate, Atlantic region, who was also the Officer in Charge, Atlantic
Region, Career Development Resources Office.
[7]
There
are five stages to the process:
a.
qualifying
list based on Job Simulation Exercises;
b.
supervisor/line
officer support;
c.
advertisement;
d.
competency
validation; and
e.
selection.
[8]
At
the competency validation stage, applicants were required to “identify two
verifiable examples describing how you best demonstrate each required
competency…” One field of competency was concern for safety. The candidate’s
signature is his “verification that the examples provided are true and
accurately describes your behaviour…” His supervisor must also sign. His
signature serves as verification of the behavioural examples provided by the
candidate. The controversy relates to one of Corporal MacKay’s examples of his
concern for safety.
THE FACTS
[9]
The
advertised position was for a “Detachment/District Policing Supervisor/Investigator/
Analyst” with the rank of Sergeant in West Prince (Alberton), PEI in the “L”
division.
[10]
One
of Corporal MacKay’s résumés with respect to the concern for the safety aspect
of his competency related to the “take-down” of a high risk offender in Charlottetown. Corporal MacKay wrote:
I ensured all our members were properly equipped
with a variety of intervention options including, but not limited to their
service pistol CFW, OC spray, hand cuffs, Vests and police identity jackets.
[11]
The
suspect was apprehended in a parking lot of a restaurant. “Result: this violent
offender was safely taken into custody and is presently on remand facing a
number of charges.”
[12]
It
came to Superintendent Nugent’s attention that Sergeant Baillie, one of the
three members of the validation committee, was part of a team investigating
that incident. It was reported to Superintendent Nugent, not by Sergeant
Baillie, that the findings of Sergeant Baillie during the administrative review
were that none of the officers was wearing his police jacket at the time of the
take down and only two of the officers had their police jackets with them at
all. One member did not have his baton or OC spray. There was also no mention in
Corporal MacKay’s description of the event that one of the RCMP members was slightly
injured as the result of the suspect’s vehicle ramming the police vehicle, or
that the local police were given no advance warning.
[13]
As
a result, Corporal MacKay was either removed from or suspended from the
competition. The language is none-too crisp.
[14]
He
was then given an opportunity to explain himself. He pointed out that the rules
provide that the examples be limited to 23 lines, that one cannot use a font
size smaller than 8 and that no appendices are allowed.
[15]
He
said that in his first draft he had included the information which some thought
should have formed part of his example, but the résumé was too long. He had to
cut something out, and in fact only 10 character spaces were left in the
example he submitted.
[16]
Having
thought the matter through, this is what Superintendent Nugent wrote to Corporal
Mackay:
I have reviewed the documentation that first brought
your Example (2) in the competency Concern for Safety into question. I am
satisfied that a prima facie case was established to demonstrate that your
Example (2) was misleading. I have carefully reviewed the documentation that
you presented to Sgt. Clifford on 2009-10-06. I have concluded that the
statements I cited from your competency resumé, while sufficiently misleading
to raise a duty to account, did not amount to cheating as envisaged in the
relevant policy. Your application in the promotional process cited above will
therefore be re-inserted at the point where it was suspended.
[17]
Superintendent
Nugent then struck a different validation committee to review Corporal MacKay’s
competency. He did not pass on Sergeant’s Baillie’s administrative report.
[18]
The
function of the validation committee is to determine whether candidates meet
the minimum requirements for the job. It does not compare candidates. Thus,
there is no issue because Sergeant Russell and Corporal Mackay were assessed by
different committees. It is noteworthy that Corporal MacKay had never
complained about the presence of Sergeant Baillie on his validation committee
as originally struck.
[19]
The
selection committee found both candidates equally qualified. Corporal MacKay
was recommended on the basis of the traditional tie-breaker: seniority. It does
not appear that the selection committee had copy of Sergeant Baillie’s report.
Superintendent Nugent who, of course, had knowledge of Sergeant Baillie’s
report, endorsed the selection committee’s recommendation.
[20]
Shortly
after the appointment was announced, Sergeant Russell came to learn of Corporal
MacKay’s situation. He filed complaints in accordance with RCMP procedures.
SUPERINTENDENT McGOWAN’S
DECISION
[21]
The
coversheet of the decision states it deals with the “removal and re-insertion
of candidate in process” and failure on the part of the CDRO (Career
Development Resources Office) “to consider relevant information” and that the
CDRO was in conflict of interest.
[22]
One
fact, which I have not recited above, is that a member of the RCMP had
telephoned Superintendent Nugent to support Corporal MacKay’s candidacy. He
later emailed to apologize and stated he knew better than to think that he
might have been able to influence the decision.
[23]
Superintendent
McGowan broke down the case into five issues.
[24]
The
first complaint submitted by Sergeant Russell was that the decision of
Superintendent Nugent, as Acting Human Resources Officer (Acting HRO), to allow
Corporal MacKay back into the promotion process was contrary to policy and
established process. Superintendent McGowan disagreed, as informal resolution
of contentious matters was an established procedure which happened every day.
[25]
The
second complaint was the Acting HRO’s decision to allow Corporal MacKay to
submit additional documentation to clarify his example for competency
evaluation. Superintendent McGowan was of the view that this documentation
related to the potential exclusion of Corporal MacKay in the promotion process.
This information did not form part of the validation package considered by the
validation committee. There was no deviation from policy.
[26]
The
third complaint was that the Acting HRO failed to seek out and consider all
available relevant information prior to making his decision to allow Corporal
MacKay back into the process. This complaint was dismissed on the grounds that
it was not the adjudicator’s function to second guess Superintendent Nugent’s
decision.
[27]
The
fourth complaint was that the Acting HRO made a policy error in changing the
rationale submitted by the line officer. It was found that this point was itself
raised in error, and is not one that I shall consider further.
[28]
Finally,
it was submitted that the Acting HRO was in a conflict of interest. It was held
that he was not. Again, the role of the adjudicator was not to second guess
Superintendent Nugent “but to review the process used by the decision maker, in
reaching the decision and to consider if the decision process was flawed. In
this instance it was not.” Consequently, the complaints were denied.
ANALYSIS
[29]
It
matters not whether Corporal MacKay was eliminated from or simply temporarily
suspended from the competition. If he was struck from the competition, such a decision
would clearly be in breach of natural justice, as he was not given an
opportunity to explain himself. As stated by Lord Reid in the seminal case of Ridge
v Baldwin, 1964 AC 40, [1963] 2 All ER 66 at p 79:
I do not doubt that if an officer or body realizes
that it has acted harshly and reconsiders the whole matter afresh, after
affording to the person affected a proper opportunity to present his case, then
its later decision will be valid.
[30]
Although
Superintendent McGowan’s language is somewhat loose in not drawing a clear
distinction between “bias” and a “reasonable apprehension of bias”, the
unsolicited telephone call in support of Corporal MacKay does not give rise to
a reasonable apprehension of bias. A similar situation was encountered in Rehill,
above.
[31]
It
is not necessary to consider the conflict of interest allegation arising from
the fact that Superintendent Nugent played two roles in this process. In my
opinion, the process was not flawed because he held two different positions,
but rather because he was privy to some information in his role as Acting HRO,
which he did not use in his decision as Officer in Charge, Atlantic Region,
Career Development Resources Office, to promote Corporal MacKay.
[32]
Although
as an outsider I certainly owe deference to the dedicated officers of the RCMP
who were doing their best to carry out their duties, there was far too much
focus on the individual steps of the promotion process, and not enough focus on
the reasonableness of the final result.
[33]
It
is unfortunate that within the RCMP misrepresentation seems to be equated with
cheating. Cheating carries with it a mens rea. A misrepresentation may
be innocent, negligent or fraudulent. There is no basis to quarrel with
Superintendent Nugent’s decision that Corporal MacKay’s résumé was not
fraudulent, but that it may have been misleading.
[34]
Another
aspect of this “cheating” issue is that one’s word is one’s bond. Naturally, Corporal
MacKay, supported by his supervisor, vigorously denied that he cheated. Indeed,
if so found there would have been serious consequences for him.
[35]
For
reasons I cannot quite understand, although the examples given must be
“verifiable” it seems that the verification is limited to the candidate, and
his supervisor. In this case, there was information easily ascertainable that
put into question whether Corporal MacKay’s example was completely accurate.
[36]
Like
Superintendent McGowan, I agree that there is no basis for finding bias, “real”
or “apprehended”, on the part of Superintendent Nugent. However, it was both
wrong in law and unreasonable for Superintendent McGowan not to second guess
Superintendent Nugent. It was not simply his function to consider if the process
was followed. He had to decide if the decision was reasonable. This was a
“decision on the merits” within the meaning of the RCMP Administrative Manual.
Section 22 thereof provides that the adjudicator either dismiss the application
or shall if he “determines that a decision […] is erroneous and has prejudiced
the complainant, order appropriate corrective action.”
[37]
The
validation and selection committees should have had a copy of Sergeant Baillie’s
administrative report. If they had the report, we simply do not know whether
the validation committee would have been satisfied that Corporal MacKay met the
minimum requirements and that the selection committee would have found both
candidates equally qualified.
[38]
I
can understand Superintendent Nugent’s concern that the validation committee’s
role was to review the material submitted by Corporal MacKay. It is well known
that outside knowledge may give rise to a reasonable apprehension of bias which
would disqualify someone from making a decision (Committee for Justice and
Liberty et al v National Energy Board et al, [1978] 1 S.C.R. 369).
[39]
On
the other hand, a decision should be made on a complete record. In this case,
that record should have included Sergeant Baillie’s report as it may well have
had a bearing on the deliberations of the validation and selection committees.
See Oakwood Developments Ltd v Saint-François-Xavier (Rural Municipality), [1985] 2 S.C.R. 164, [1985] SCJ No 49 (QL).
[40]
The
issue as to whether there was a misrepresentation at all, or whether it was
relevant, did not rest with the opinions of Corporal MacKay, his supervisor or
Superintendent Nugent. It rested with the validation and selection committees.
They were deprived of relevant information which may have had a bearing on
their decisions.
[41]
For
this reason, the judicial review shall be granted.
[42]
Counsel
for the Minister suggested lump sum costs of $2,500, irrespective of the
outcome of the case. I consider this to be a fair and reasonable suggestion.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
This
application for judicial review is granted.
2.
The
matter is referred back to another adjudicator for reconsideration.
3.
The
applicant shall have his costs fixed in the amount of $2,500, all inclusive.
“Sean Harrington”
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