Docket: T-1548-13
Citation:
2014 FC 1113
Ottawa, Ontario, November 21, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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STAFF SERGEANT WALTER BOOGAARD
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is a staff sergeant of the Royal
Canadian Mounted Police (RCMP or the Force). After a few attempts to advance
his career, he received a letter from the RCMP Commissioner saying that he
would not be appointed to any commissioned rank and that he should consider
leaving the Force. The staff sergeant now applies for judicial review pursuant
to subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7.
[2]
Originally, the applicant asked the Court to set
aside the Commissioner’s letter and direct the Commissioner to promote the
applicant to the rank of inspector retroactive to 2005. In his memorandum, he
does not expressly request the promotion, but simply asks that the Commissioner
be directed to reconsider the matter in accordance with the reasons of the
Court. He also wants an opportunity to make additional submissions to the
Commissioner if a retroactive promotion is unavailable.
I.
Background
[3]
The applicant is a staff sergeant of the RCMP
who wants to be an inspector. He has successfully completed the officer
candidate program twice and the record includes many positive reviews of his
performance on the job.
[4]
However, his ambitions have been stymied by
circumstances surrounding an incident that happened in 2000. His gun was stolen
by two women. He said that they stole it from his vehicle while he was in a
restaurant. The women said that the applicant had picked them up and was
unsuccessfully negotiating a price for sex with one of them when the other
stole the gun.
[5]
The applicant was thereafter charged with
conducting himself in a disgraceful manner that brings discredit on the Force
contrary to subsection 39(1) of the Royal Canadian Mounted Police
Regulations, 1988, SOR/88-361 [RCMP Regulations]. The appropriate officer
representative prosecuting the offence considered and discounted the women’s
version of the event and so the matter proceeded to the adjudication board upon
an agreed statement of facts corresponding to the applicant’s story. The
applicant admitted that it was disgraceful for him to leave his firearm
unattended and unsecured in his vehicle and the adjudication board agreed.
Consequently, it reprimanded him and ordered that he forfeit five days’ pay.
[6]
At first, this event did not negatively affect
his career prospects. He was since promoted twice more through the
non-commissioned ranks.
[7]
However, the process for becoming an officer
described in subsection 6(1) of the Royal Canadian Mounted Police Act,
RSC 1985, c R-10 [RCMP Act], is different. Pursuant to subsection 6(3) of the
RCMP Act, only the Governor in Council may appoint someone to the rank of
officer and the first appointment must be a commission under the Great Seal.
[8]
To be considered, interested persons must
complete the officer candidate program. If the candidate does so successfully,
then he or she will be placed on a national eligibility list for appointments
for several years. Once an inspector position becomes vacant, Executive/Officer
Development and Resourcing would try to fill the position. Once a candidate is
selected by the senior manager and other appropriate officials have approved or
are aware of it, they forward the candidate’s file to the Commissioner. Upon
the recommendations of the Commissioner and the Minister of Public Safety, the
Governor in Council may then commission the member.
[9]
The applicant successfully completed the officer
candidate program in 2004. Although his career development and resourcing
advisor was initially quite positive about the applicant’s prospects for
advancement, his attitude inexplicably changed in 2005. The applicant
ultimately was not promoted that time around, though almost everyone else in
his cohort was.
[10]
He again completed the officer candidate program
in 2009. Curious about why he failed the last time, he made an access to
information request. It revealed that the chair of the adjudication board that
had disciplined the applicant told the applicant’s adviser at the time that “there may have been more to the disciplinary matter”.
The applicant’s adviser then called the person who prosecuted the case, who
told him that a principled approach had been followed and that she was not
comfortable disclosing information that was not before the board.
[11]
Upon learning this, the applicant filed a
harassment complaint against the chair for his remarks. That complaint was
dismissed nearly nineteen months later, but the applicant grieved it on
November 18, 2011. On December 15, 2011, the applicant also sought judicial
review of the same decision.
[12]
Meanwhile, the applicant had been restored to
the list of candidates eligible for commission following his second successful
completion of the officer candidate program. He was selected for a post in Saskatchewan and most relevant approvals and acknowledgements had been secured. His file
was forwarded to the RCMP Commissioner for his approval.
[13]
During his review, the Commissioner secured a
copy of the investigation report underlying the applicant’s earlier
disciplinary offence. The women’s version of the event caused him concerns that
he shared with the applicant’s commanding officer, Deputy Commissioner Mike
Cabana.
[14]
Deputy Commissioner Cabana subsequently met with
the applicant on January 10, 2013. He gave to the applicant a copy of the
investigation report and inquired about the inconsistencies between the
applicant’s story and that of the women who stole his firearm. Ultimately, the
Deputy Commissioner was not satisfied with the applicant’s answers and stopped
supporting the applicant’s bid for a promotion.
[15]
This effectively blocked the applicant from the
appointment in Saskatchewan for which he had been selected. Indeed, he was
later removed from the list of candidates eligible for commission altogether
for the same reason. On January 11, 2013, the applicant filed two related
grievances against the Deputy Commissioner for his actions.
[16]
On March 13, 2013, this Court rendered its
decision on the applicant’s judicial review of the earlier harassment
investigation. Mr. Justice Donald Rennie agreed with the applicant that it was
unreasonable (see Boogaard v Attorney General of Canada, 2013 FC 267 at
paragraphs 44 to 49, [2013] FCJ No 302). However, the respondent’s counsel had
told Justice Rennie that the grievance could result in a promotion, while a
judicial review could not. Although Justice Rennie was concerned about how long
the grievance process had taken (Boogaard at paragraphs 28 to 35), the
respondent’s concession convinced him that the grievance procedure was an
adequate alternative process (Boogaard at paragraph 27). He therefore denied
the applicant any relief.
[17]
The grievance related to that same complaint
resolved on June 19, 2013. The adjudicator agreed with Justice Rennie; he found
that the harassment investigation was inconsistent with policy and that the
chair’s gossip about the applicant prejudiced his chances for advancement. I
would note that there was misinformation about the availability of a promotion.
As such, the adjudicator only ordered the respondent to the grievance to ensure
that the Director General of the Executive/Officer Development and Resourcing
immediately reinstate the applicant to the list of candidates eligible for
commission.
[18]
On July 8, 2013, the applicant’s counsel wrote
directly to the RCMP Commissioner asking him to grant the promotion that he
said both the Court and the adjudicator felt was warranted but neither could
give.
[19]
He initially received no response, so the
applicant’s counsel sent another letter to the Commissioner on September 9,
2013. This time, counsel invoked the fact that the Commissioner was the final
level in the grievance process under subsection 32(1) of the RCMP Act and he
requested a response by October 31, 2013.
[20]
On September 10, 2013, the Director General of Executive/Officer
Development and Resourcing sent a letter to the applicant refusing to respect
the adjudicator’s decision. Since Deputy Commissioner Cabana had confirmed that
he still could not support the applicant’s candidacy, she said she had no
authority to restore him to the list of eligible candidates. The applicant’s
counsel brought this to the Commissioner’s attention by letter dated September
11, 2013.
II.
The Commissioner’s Letter
[21]
The Commissioner responded in a letter marked “WITHOUT PREJUDICE” and dated September 13, 2013. Though
the applicant was seeking a promotion through a number of processes, the
Commissioner said he wanted to write “in an effort to
arrive at the heart of the matter.”
[22]
This, he explained, was the incident in 2000.
Although the matter was dealt with through formal discipline, the Commissioner
said that, “[f]or reasons that are not at all clear to
me, the agreed statement of facts was silent on the full nature of the events
that gave rise to the disciplinary proceedings.” Based on his
understanding of those events, the Commissioner stated that the applicant’s
character did not reflect the core values of the RCMP. He said that he would
never commission the applicant as an officer so long as he continued to deny
the allegations and that “he should therefore consider
whether he can continue to contribute to the mission of the Force at his
current rank.”
[23]
He concluded by inviting the applicant’s counsel
to meet with him and discuss the matter further if he had any alternative
course to propose.
III.
Other Information
[24]
Superintendent Steven Dunn is the RCMP
Commissioner’s chief of staff. He swears that the letters from the applicant
dated September 9, 2013 and September 11, 2013, did not come to his or the
Commissioner’s attention until after the Commissioner sent the letter described
above. He also says that neither he nor the Commissioner considered the letter
dated July 8, 2013 to be a level II grievance request.
[25]
Superintendent Dunn also observes that the
grievances against Deputy Commissioner Cabana were still unresolved as of
November 29, 2013. The respondent says in submissions that they were resolved
in January 2014 and one has been grieved to level II.
IV.
Issues
[26]
The applicant submits four issues for
consideration:
1.
What is the nature of the decision being
challenged?
2.
What is the appropriate standard of review?
3.
Is the RCMP Commissioner’s decision
unreasonable?
4.
What is the appropriate remedy?
[27]
The respondent proposes that there are
essentially six issues, which I rephrase as follows:
A.
Is the Commissioner’s letter subject to judicial
review?
B.
Could the grievance process supply an adequate
alternative remedy?
C.
What is the standard of review?
D.
Was the process unfair?
E.
Was the decision unreasonable?
F.
What remedies are available?
[28]
I prefer the respondent’s division of the issues
and will address them in the same order.
V.
Applicant’s Written Submissions
[29]
Despite the fact that the Governor in Council
formally decides who is appointed to be an officer, the applicant submits that
the Commissioner’s recommendation is so crucial to this process that it is an
exercise of statutory power. As such, he asserts that denying him the
opportunity in Saskatchewan is reviewable pursuant to subsection 18.1(1) of the
Federal Courts Act.
[30]
Further, he submits that the Court should not
decline to exercise the power to decide the case. He has been languishing in the
RCMP dispute resolution process for four years and even when it had only been three
years, Justice Rennie found that the delays “stretch the
boundaries of tolerance” (Boogaard at paragraph 35). Further, it
would be futile since the Commissioner ultimately has overall control of the
Force and he has already unequivocally expressed his views.
[31]
As for the standard of review, the applicant
submits that it is correctness for the questions of procedural fairness and
reasonableness otherwise. Still, the applicant submits that even highly
discretionary decisions can be set aside when they rely on irrelevant
considerations or violate the principles of natural justice.
[32]
In this regard, he notes that disciplinary
proceedings under the RCMP Act are serious and typically attract a high degree
of deference. In his case, it was followed appropriately and the evidence of
the women who stole his firearm was discounted. In his view, the Commissioner
acted unreasonably by going behind that and disregarding the opinion of the appropriate
officer without any inquiry at all. He says it is entirely contrary to the
statutory scheme to elect not to proceed with an allegation against a member
but then secretly store the information to be used against him years later.
[33]
Moreover, he says the process was unfair since
the applicant was not even told that this information was being used against
him for more than a decade and only then because he made an access to
information request. Indeed, no one even formally made the case against him until
2013. Then, the Commissioner essentially said that his only choice was to come
clean. He never had a hearing before the adjudication board and it is basically
impossible for him to contest the allegations so long after the fact. In his
view, it is entirely unfair to hold such serious allegations against him for so
long without any recourse to adjudication.
[34]
Finally, given the long history of this dispute,
he says the Court should give very specific directions. He says there is little
doubt that he would have been promoted in 2005 had it not been for the RCMP’s
unreasonable actions. He says the Commissioner should be directed to reconsider
promoting the applicant to inspector and, if possible, to do so retroactively
to 2005. If that is not possible, the applicant says that some other remedy
like waiving pay increments should be considered and he should be permitted to
make submissions to the Commissioner about that.
[35]
Further, the applicant asks for an enhanced
costs award because he has been disputing this for so long and the Force
completely ignored the findings of this Court and the adjudicator. Further, the
outcome of the last proceeding could have been different had it not been for
the respondent’s misrepresentation to Justice Rennie about the availability of
a promotion.
VI.
Respondent’s Written Submissions
[36]
The respondent argues that the Commissioner’s
letter is not subject to judicial review because it was drafted “without
prejudice”. It should not have been disclosed to the Court and the respondent
says that the Court should dismiss the case to protect the public interest in
encouraging settlement.
[37]
The applicant is seeking identical relief in a
related grievance and should have done the same for this letter. Just like last
time, the respondent submits that the grievance process is an adequate
alternative and the Court should not interfere. The respondent recognizes that
the Commissioner is himself the final level, but says there would be no bias
because he would often delegate the task in circumstances like this. The
respondent points out that very few circumstances are exceptional enough to
justify interference with an ongoing administrative process (see Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61, [2011] 2
FCR 332 [CB Powell]). Further, the available remedies do not have to be
perfect or even the ones that the applicant wants, so long as they are
adequate.
[38]
In the alternative, the respondent says the
decision was lawful. Though the respondent agrees with the applicant about the
standard of review, it says that the process was fair and the decision was
reasonable.
[39]
Specifically, the process was fair because the
applicant was given a copy of the report and an opportunity to meet with both
his commanding officer and the Commissioner. He chose not to meet with the
Commissioner, but it was still offered.
[40]
Further, the respondent says that the decision
was reasonable. Nobody has a right to a commissioned appointment. It is a
discretionary decision based on the RCMP’s core values, which is something the
Commissioner has special expertise to assess. In doing that, the respondent
says the Commissioner was entitled to consider any information available to
him, including the investigation report that was never considered by the board
adjudicating the applicant’s disciplinary offence. The inconsistencies
disclosed therein cast doubt on the applicant’s honesty, integrity, and
accountability and time has not erased those character flaws.
[41]
As such, the respondent submits that the
application should be dismissed with costs against the applicant.
[42]
Alternatively, the respondent also criticizes
the relief requested by the applicant. First, it says the Court has no ability
to order the Commissioner to exercise his discretion in any specific way since
the applicant has no right to a promotion. Second, only the Governor in Council
can appoint someone to a commissioned rank; the Commissioner has no such power,
nor could he even recommend him for this promotion since the applicant’s
commanding officer also withdrew his support. Third, even if he could, an
appointment retroactive to 2005 is statute-barred by subsection 23(2) of the Interpretation
Act, RSC 1985, c I-21.
[43]
Finally, the respondent says that any costs
award should not be influenced by the respondent’s misrepresentation in the
earlier proceeding. It was likely an honest mistake and the respondent was not
seeking a promotion from the Court at the time anyway.
VII.
Analysis and Decision
A.
Issue 1 - Is the Commissioner’s letter subject
to judicial review?
[44]
Under subsection 18.1(3), the Federal Court only
has jurisdiction to review decisions made by a “federal
board, commission or other tribunal”. With a few exceptions irrelevant
to this case, subsection 2(1) defines this to mean “any
body, person or persons having, exercising or purporting to exercise
jurisdiction or powers conferred by or under an Act of Parliament or by or
under an order made pursuant to a prerogative of the Crown”.
[45]
As Mr. Justice David Stratas observed in Air
Canada v Toronto Port Authority, 2011 FCA 347 at paragraphs 52 to 56,
[2013] 3 FCR 605 [Air Canada], this depends not just on whether the body
itself is created by statute but whether the specific power being exercised is
public in nature.
[46]
Curiously, Air Canada might not bind this
Court. Though Justice Stratas gave the only set of reasons, the other two
members of the panel said only that they “concur with his
proposed disposition” (Air Canada at paragraph 87,
emphasis added). Still, having reviewed the jurisprudence recited by Justice
Stratas, I find his summary of the law on this area at paragraph 60 helpful and
this Court has followed it before (see Maloney v Council of the Shubenacadie
Indian Band, 2014 FC 129 at paragraph 26, 237 ACWS (3d) 829 [Maloney];
Hengerer v Blood Indians First Nation, 2014 FC 222 at paragraph 42,
[2014] FCJ No 259).
[47]
The respondent does not dispute that a decision
to commission an officer is public, nor even that the Commissioner’s
recommendation is too. However, it is worth noting that the RCMP Act itself
does not actually assign to the Commissioner any role at all. Instead,
subsection 6(3) exclusively gives that power to the Governor in Council.
Although pending amendments will change that (Enhancing Royal Canadian
Mounted Police Accountability Act, SC 2013, c 18, section 5), they are not
yet in force.
[48]
Still, the recommendation power can currently be
justified by subsection 5(1) of the RCMP Act, which gives to the Commissioner
the “control and management of the Force and all matters
connected therewith,” subject to the Minister’s direction. Moreover,
section 98 of the RCMP Regulations expressly refers to “a
recommendation by the Commissioner to the Governor in Council for the
appointment or promotion of an officer,” which suggests some power in
that regard.
[49]
Indeed, Ms. Dansereau swears in her affidavit
that no appointment is ever made without the Commissioner’s
recommendation. Further, there is no evidence that either the Minister of
Public Safety or the Governor in Council has ever refused a recommendation from
the Commissioner. Indeed, the Commissioner even says in his letter that “I will not be commissioning S/Sgt. Boogaard” (emphasis
added), thus acknowledging that the decision is effectively his to make. The
Commissioner’s power to recommend candidates for appointment is therefore
public in nature.
[50]
It is with that in mind that the respondent’s
assertion of settlement privilege should be considered. By 2012, the applicant
had secured all relevant approvals and the Commissioner’s recommendation was
the only remaining hurdle. Once the file reached his desk, the Commissioner had
a duty to decide whether to recommend the applicant for commission. Although
Deputy Commissioner Cabana subsequently withdrew his support for the applicant,
that was only after the Commissioner had reviewed the file and shared with him
his concerns. In my view, the Commissioner was exercising a public power and
doing it for the reasons he set out in his letter and the Commissioner should
not be able to shield it from review merely by writing “without prejudice” on
it.
[51]
Despite the general value of settlement
privilege (see Sable Offshore Energy Inc v Ameron International Corp,
2013 SCC 37 at paragraphs 2, 11 to 13, [2013] SCJ No 37), this letter does not
fit very well within its scope. In Bellatrix Exploration Ltd v Penn West
Petroleum Ltd, 2013 ABCA 10 at paragraph 25, 358 DLR (4th) 628, the Alberta
Court of Appeal observed that “[a] communication that is
not in substance privileged does not become so just because one party places “without
prejudice” on it.” It also said at paragraph 24 that “the types of communications covered by the settlement
privilege require at least a hint of potential compromise or negotiation.”
[52]
There is no such hint in the Commissioner’s
letter. He said this:
Now, were S/Sgt. Boogaard to elect to change
his ways, come clean as it were and explain his behaviour we might, after a
suitable period of time, find that his actions were sufficiently repaired so as
to warrant consideration for advancement. In the meantime, I will not be
commissioning S/Sgt. Boogaard and he should therefore consider whether he
can continue to contribute to the mission of the Force at his current rank.
Should you have any alternative course you
might want me to consider I would be pleased to meet with you and discuss this
matter further.
[Emphasis added]
[53]
That is tantamount to an outright refusal. The
offer, if it can be called that, was that the applicant must recant and admit
to something he may not have done in exchange for which the Commissioner might
reconsider commissioning him at some vague future time. In contrast, the
Commissioner is quite definite when he says that he will not commission
the applicant otherwise. The only thing that could possibly suggest settlement
is the invitation to propose an “alternative course”.
However, the preceding paragraph makes it quite clear that there is no room for
any real compromise on the issues that matter.
[54]
As such, this Court has jurisdiction to review
the decision and should not decline it out of a desire to promote settlements.
B.
Issue 2 - Could the grievance process supply an
adequate alternative remedy?
[55]
The respondent is right that parties can
normally come to the courts only after exhausting adequate administrative
processes (see Halifax (Regional Municipality) v Nova Scotia (Human
Rights Commission), 2012 SCC 10 at paragraph 36, [2012] 1 S.C.R. 364). Justice
Stratas expressed the rule this way in CB Powell at paragraph 31:
[A]bsent exceptional circumstances, those who
are dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative
process affords no effective remedy can they proceed to court.
[Emphasis added]
[56]
Further, there is no dispute that the
Commissioner’s letter could have been grieved under subsection 31(1) of the
RCMP Act. As such, the question is whether that process is an adequate one and
can afford an effective remedy.
[57]
In other cases, including the applicant’s
earlier judicial review, courts have found that it is adequate (see Boogaard
at paragraphs 23 to 35; Bruno v Canada (Attorney General), 2006 FC 462
at paragraph 21, 268 DLR (4th) 98; Lebrasseur v Canada, 2011 FC 1075 at
paragraph 51, 418 FTR 49). In the present circumstances, however, I am
convinced that it is not.
[58]
Justice Rennie’s earlier decision to the
contrary in this case was largely premised on the respondent’s concession that
a promotion was available through the grievance process. That was false and the
process’s adequacy needs to be re-evaluated.
[59]
In that regard, subsection 17(2) of the Commissioner’s
Standing Orders (Grievances), SOR/2003-181, requires the level hearing a
grievance to “determine what corrective action is
appropriate in the circumstances” if the grievance is well-founded.
However, the legislation leaves the scope of its remedial authority unclear.
[60]
Fortunately, the respondent filed with its
record an affidavit from Superintendent O’Rielly that explains it further. He
says at paragraph 16 that an adjudicator will try to place “the member in the position he or she would have been in but
for that error, subject to any limitations imposed on the adjudicator.”
That sounds expansive, but it turns out that the limitations are many. Superintendent
O’Rielly says the following:
There are limits on a level’s authority to
order certain remedies. In general terms, an adjudicator will not award
general damages or interest on monies owed; will not validate a
candidate in a promotion process nor award a promotion; and will not
determine a Grievor’s fitness for duty by re-examining a medical or dental
diagnosis or reassessing a medical profile. The adjudicator has no power to
overturn a Treasury Board decision or direct changes to a policy or directive which
is not under the control of the RCMP, such as a Treasury Board policy. An
adjudicator is not authorized to exercise the powers provided to other persons
or bodies under the Act, for example an adjudicator may not appoint a person
to the rank of an officer, an authority that rests solely with the Governor
in Council.
[Emphasis added]
[61]
Admittedly, the respondent is right that a
remedy need only be adequate, not perfect (see Froom v Canada (Minister of Justice), 2004 FCA 352 at paragraph 12, [2005] 2 FCR 195).
Tellingly, however, the respondent does not even propose what available remedy
could possibly compensate the applicant.
[62]
After all, the harm alleged by the applicant is
that he was denied a promotion for which he had already been selected. Ordinarily
one would think either a promotion to that rank would be an effective remedy,
or else some kind of compensation for the lost salary. Evidently, however,
neither is available.
[63]
Indeed, even the very modest remedy awarded by
the adjudicator – that of being restored to the list of candidates eligible for
promotion – is apparently out of bounds. So out of bounds, in fact, that Deputy
Commissioner Cabana considered himself entitled to thwart it entirely. It seems
perverse to me that the respondent to a grievance cannot appeal an
adjudicator’s decision (see Affidavit of Superintendent O’Rielly at paragraph
13), but the RCMP can simply decline to obey the remedy ordered. Yet, the
respondent seems to suggest that the applicant’s only recourse should be
another grievance, this time of the decision to ignore the adjudicator’s order.
Assumedly, this recursive process could continue forever.
[64]
Moreover, I share Justice Rennie’s concerns
about the delays in this case. The original harassment investigation took
nineteen months. The grievance took nineteen months more. It then took nearly
three more months for the Director General of Executive/Officer Development and
Resourcing to tell the applicant that she could not respect the adjudicator’s
decision. The reason for that, Deputy Commissioner Cabana’s decision to
withdraw his support, was grieved immediately in January 2013, but it took
twelve months to resolve. At least on these facts, Justice Rennie spoke truly
when he said that “[t]he RCMP and its members have the
worst of both worlds: a procedure that truncates procedural fairness in the
name of efficiency and workplace harmony, but provides neither” (Boogaard
at paragraph 37). The delays were barely tolerable fourteen months ago when
Justice Rennie still believed the grievance process could yield a promotion (Boogaard
at paragraph 35); they are intolerable now.
[65]
Consequently, I have no confidence that the
grievance procedure could be adequate in this case and I will decide this
matter on its merits.
C.
Issue 3 - What is the standard of review?
[66]
I agree with the parties about the standard of
review. For questions of procedural fairness, the standard of review is
nominally correctness (see Canada (Attorney General) v Clegg,
2008 FCA 189 at paragraph 19, 380 NR 275; Mission Institution v Khela,
2014 SCC 24 at paragraph 79, [2014] SCJ No 24). The Commissioner must have
afforded to the applicant all procedural rights to which he was entitled,
though relief may be denied if any error is “purely
technical and occasions no substantial wrong or miscarriage of justice” (see
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph
43, [2009] 1 S.C.R. 339).
[67]
As for the substance of the decision, it is
discretionary and thus presumptively reviewable on the reasonableness standard
(see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1 SCR
190). I share Justice Rennie’s view that the “Commissioner
has specialized expertise on the realities of policing and what is required to
maintain the integrity and professionalism of the RCMP” (see Elhatton
v Canada (Attorney General), 2013 FC 71 at paragraph 29, 425 FTR 281).
[68]
That said, the applicant points out that even
discretionary decisions must be made in good faith and without relying on
considerations irrelevant to the statutory purpose (see Maple Lodge Farms
Limited v Government of Canada, [1982] 2 S.C.R. 2 at 7 and 8, 137 DLR (3d) 558
[Maple Lodge]). Though Maple Lodge was decided before Dunsmuir,
this Court has confirmed its continuing guidance by observing that breaching
any of the Maple Lodge criteria will almost always be unreasonable (see Malcolm
v Canada (Minister of Fisheries and Oceans), 2013 FC 363 at paragraph 56,
430 FTR 238).
D.
Issue 4 - Was the process unfair?
[69]
Though the Commissioner must decide fairly, the
content of that duty varies (see Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraph 21, 174 DLR (4th) 193). In Canada (Attorney General) v Mavi, 2011 SCC 30 at paragraph 42, [2011] 2 S.C.R. 504 [Mavi],
the Supreme Court of Canada said this:
The duty of fairness is not a
“one-size-fits-all” doctrine. Some of the elements to be considered were set
out in a non-exhaustive list in Baker to include (i) “the nature of the
decision being made and the process followed in making it” (para. 23); (ii)
“the nature of the statutory scheme and the ‘terms of the statute pursuant to
which the body operates’” (para. 24); (iii) “the importance of the decision to
the individual or individuals affected” (para. 25); (iv) “the legitimate
expectations of the person challenging the decision” (para. 26); and (v) “the
choices of procedure made by the agency itself, particularly when the statute
leaves to the decision-maker the ability to choose its own procedures, or when
the agency has an expertise in determining what procedures are appropriate in
the circumstances” (para. 27). Other cases helpfully provide additional
elements for courts to consider but the obvious point is that the requirements
of the duty in particular cases are driven by their particular circumstances. The
simple overarching requirement is fairness, and this “central” notion of the
“just exercise of power” should not be diluted or obscured by jurisprudential
lists developed to be helpful but not exhaustive.
[Emphasis added]
[70]
Still, the factors are helpful and most point to
a low level of procedural fairness. The decision to recommend someone for a
commission is nothing like a judicial decision. Moreover, the statute itself
does not even contemplate this decision and the appointment power is formally
exercised by the Governor in Council. As well, the procedures chosen by the
RCMP Commissioner for making his recommendation generally do not indicate a
very high level of procedural fairness and the applicant raises no argument
about legitimate expectations.
[71]
Indeed, the only thing in favour of a higher
degree of procedural fairness is how important it is to the applicant; the
Commissioner’s decision denies him any prospect for advancement in his chosen
career. Even then, most members of the RCMP would not become officers at an inspector
rank or higher regardless.
[72]
Altogether, I consider this decision to attract
a minimal degree of procedural fairness. Still, even a fairly minimal duty
typically requires some form of notice and an opportunity to respond (see Nicholson
v Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 SCR
311 at 328, 88 DLR (3d) 671; Baker at paragraph 22; Mavi at
paragraph 5; Maloney at paragraph 52).
[73]
In this regard, nothing in the record suggests
that the applicant could have known that the Commissioner personally had
concerns about his candidacy until his counsel received the letter.
[74]
Still, the respondent argues that the decision
can inherit its fairness from the process Deputy Commissioner Cabana used when
withdrawing his support. Though that seems strange, I think it is acceptable in
the circumstances. The evidence shows that the Commissioner was, in fact, the
first person to have access to the investigation report and that it was he who
raised his concerns with Deputy Commissioner Cabana. They also met and
discussed how Deputy Commissioner Cabana would tell the applicant about their
concerns. In my view, this shows an ongoing decision-making process in which
the Commissioner was always engaged.
[75]
Indeed, the concerns the Commissioner expressed
in his letter were the same that Deputy Commissioner Cabana discussed with the
applicant at the meeting in January. The Deputy Commissioner also gave to the
applicant a copy of the investigation report and an opportunity to persuade him
that his concerns were ill-founded. That was fair enough.
[76]
The applicant’s other arguments about the
fairness of using the investigation report against him goes more to the
substance of the decision, not the procedure used in making this
decision. As such, I will assess them there.
E.
Issue 5 - Was the decision unreasonable?
[77]
The respondent is right that the investigation
report reveals inconsistencies between the applicant’s version of the
circumstances surrounding his stolen firearm and that of the women who stole
it. Equally, I am satisfied that if the women’s description of the incident was
true, the applicant’s behaviour and his lies to cover it up would reflect
poorly enough on his character to justify denying him a commission. I am also
satisfied that the Commissioner could reasonably consider someone’s
disciplinary record regardless of when the offence occurred.
[78]
Nevertheless, the applicant has convinced me
that the decision was unreasonable. The appropriate officer and the
adjudication board already decided what happened on that day in 2000 and it was
they to whom Parliament assigned that task (see RCMP Act, subsections 43(1),
45.12(1)). It is not open to the Commissioner to revisit it now and substitute
his own judgment for that of the entities actually charged with that
responsibility.
[79]
In my view, the RCMP Act makes Parliament’s
intention in that regard abundantly clear. The RCMP Act and its associated Regulations
supply a complete code regarding disciplinary offences and it gives an accused
member substantial procedural rights. These include rights to notice and a full
oral hearing subject to many of the laws of evidence (RCMP Act, subsections
45.1(2), 45.1(7), 45.1(8) and 45.1(10)). Indeed, the adjudication board is even
required to keep a record so that the member can appeal (RCMP Act, subsections
45.13(1), 45.14(1)). These procedural rights correspond to the very serious
consequences a decision against a member could entail (RCMP Act, subsection
45.12(3)), including the loss of promotional opportunities.
[80]
By his actions, however, the RCMP Commissioner
circumvented the entire procedure chosen by Parliament and has held the
allegations against the applicant as if they had actually been proven. That is
unacceptable. Had the appropriate officer brought these charges against the
applicant he could have challenged the women’s testimony and potentially
cleared his name on a balance of probabilities, which is the opportunity
Parliament intended to give him. It is impossible to do so now. Moreover, no
new evidence has arisen that could justify reopening the adjudication board’s
decision. For the purposes of the RCMP Act, the truth was settled thirteen
years ago.
[81]
Therefore, the Commissioner violated the scheme
enacted by Parliament by looking behind the adjudication board’s decision and
preferring his own intuitions to the judgment of every relevant authority.
Consequently, he exceeded his discretion because he relied on considerations
prohibited by the statute from which he derives his power. That makes the decision
unjustifiable and it must be set aside.
[82]
Before leaving this, Superintendent Dunn also
said in his affidavit that the decision was justified because the
inconsistencies in the report would raise concerns “[r]egardless
of their veracity”. Whatever that was supposed to mean, it introduces a
nuance that is nowhere to be found in the Commissioner’s decision. The
Commissioner referred repeatedly to the “full nature” of the events and exhorts
the applicant to “come clean.” Evidently, the Commissioner concluded that the
applicant tried to purchase sex from one of the women and then lied to cover it
up, all the while casting aspersions on the honesty of the other witnesses.
That was because he inappropriately substituted his opinion about the
disciplinary case for that of the appropriate officer’s and ignored the
adjudication board’s judgment. Superintendent Dunn’s observation was not among
the Commissioner’s reasons and therefore cannot justify his decision.
F.
Issue 6 - What remedies are available?
[83]
The Court’s remedial options on judicial review
are set out by subsection 18.1(3) of the Federal Courts Act. Paragraph
18.1(3)(a) permits the Court to compel a tribunal to do something that it has
unlawfully refused to do and paragraph 18.1(3)(b) allows the Court to set aside
a decision and give directions when sending it back for redetermination.
[84]
The respondent argues that this means the
applicant’s requested relief is unavailable. In Canada (Chief
Electoral Officer) v Callaghan, 2011 FCA 74 at paragraph 126, [2011] 2 FCR
80, the Federal Court of Appeal observed that “mandamus
cannot be sought to compel the exercise of discretion in a particular way.”
As such, it says the Court cannot order the Commissioner to recommend the
applicant’s promotion, nor can it give directions to the same effect. The
respondent submits that the only thing the Court could do is set aside the
decision and that directions are uncalled for.
[85]
That is often true, but not always. On rare
occasions, a mandatory order directing a decision-maker to reach a specific
outcome is appropriate (see LeBon v Canada (Minister of Public Safety and
Emergency Preparedness), 2013 FCA 55 at paragraphs 13 and 14, 444 NR 93 [LeBon];
D’Errico v Canada (Minister of Human Resources and Skills Development),
2014 FCA 95 at paragraph 16, [2015] FCJ No 370 [D’Errico]). However,
this would generally only be appropriate where either “the
outcome of the case on the merits is a foregone conclusion” (D’Errico
at paragraph 16) or else there are other exceptional circumstances warranting
relief (LeBon at paragraph 14; D’Errico at paragraph 16).
[86]
This applies even to highly discretionary
decisions like the one in this case. For instance, in Trinity Western
University v British Columbia College of Teachers, 2001 SCC 31, [2001] 1
SCR 772 [TWU], the decision being reviewed was about whether to accredit
a university program. Though that also is highly discretionary, the Supreme
Court refused to send it back to the College of Teachers because the only
reason it was ever refused was for irrelevant reasons (TWU at paragraphs
41 to 43).
[87]
However, having stated the above about mandamus,
the applicant stated at the hearing he was seeking directions not mandamus.
[88]
Similarly, the only reason the Commissioner
refused his recommendation in this case was because he believed accusations
against the applicant that the relevant authorities had dismissed. Apart from
that, the applicant had secured all approvals and his professional record was
excellent. The Deputy Commissioner, in the notes of his interview with the
applicant, even said the following:
The writer clearly explained to Mr. Boogaard
that the issue was not in relation to the fact he lost his firearm, or the
quality of his work which is irreproachable, but more a question of integrity.
[89]
Indeed, the Commissioner recognized in his
letter that, after the theft of his firearm, “S/Sgt.
Boogaard went on to positively develop himself in many aspects of his
professional life”. Indeed, the Commissioner described his concerns
about the investigation report as “the heart of the
matter” and his offer to potentially reconsider if the applicant
confessed suggests that this was the one roadblock preventing his approval. As
this was the only reason the Commissioner withheld his recommendation and it
was unlawful, a directed outcome is available.
[90]
Further, the Federal Court of Appeal has
recognized that a directed outcome is also justified “where
there has been substantial delay and the additional delay caused by remitting
the matter to the administrative decision-maker for re-decision threatens to
bring the administration of justice into disrepute” (D’Errico at
paragraph 16). I agree with Justice Rennie’s observation that delays are
especially serious “where what is in issue is promotion
from a pool to a senior position. Officers may have only a limited number of
years of eligibility in the pool before they retire” (Boogaard at
paragraph 33). The applicant was first eligible to be appointed an officer
nearly a decade ago. These allegations were used against him then and the
adjudicator decided that they likely hurt his promotional chances. They
definitely are the only reason that he was not appointed to the position for
which he was selected in 2012. If the RCMP continues to delay the process, it
could very well drag it out until the applicant retires.
[91]
Further, it would appear that this delay will not
be compensable. As the respondent argues, retroactive appointments are
unavailable. Paragraph 6(3)(b) of the RCMP Act provides that a first commission
is issued under the Great Seal and subsection 23(2) of the Interpretation
Act says the following:
|
23. …(2) Where an
appointment is made by instrument under the Great Seal, the instrument may
purport to have been issued on or after the day its issue was authorized, and
the day on which it so purports to have been issued is deemed to be the day
on which the appointment takes effect.
|
23. …(2) La date de
la prise d’un acte de nomination revêtu du grand sceau peut être considérée
comme celle de l’autorisation de la prise de l’acte ou une date ultérieure,
la nomination prenant effet à la date ainsi considérée.
|
[92]
In my view, this means that an instrument could
not purport to be issued before the day on which its issue was authorized.
Since that would necessarily occur in the future and is within the power of the
Governor in Council, a retroactive promotion is unavailable.
[93]
As such, given the serious delays and the RCMP’s
refusal to obey the order of the adjudicator, further delay could bring the
administration of justice into disrepute. This makes the giving of a direction
justified.
[94]
The respondent raises another objection,
however. Since Deputy Commissioner Cabana has withdrawn his support, the
applicant is off the list of candidates eligible for promotion. The respondent
submits that while that is the case, “the Commissioner
cannot recommend the Applicant for appointment to a position at the officer
level.”
[95]
Deputy Commissioner Cabana withdrew his support
for the very same reason the Commissioner never gave his recommendation. That
was unreasonable and Deputy Commissioner Cabana will likely reconsider his
position upon reviewing this decision. Should he continue to withhold support,
it should be recalled that the officer appointment process is not one created
by any legislation. Rather, the policies upon which the respondent relies were
created by the Commissioner himself pursuant to the control and management
power he derives from subsection 5(1) of the RCMP Act. I am therefore satisfied
that the Commissioner can recommend a candidate to the Governor in Council over
a commanding officer’s unreasonable objections. Similarly, the Commissioner
could override any other self-imposed rules that would otherwise prevent the
applicant from being restored to the eligibility list.
[96]
There is, however, another problem. The
applicant cannot simply be promoted to an inspector rank immediately. Rather,
the maximum number of officers in each of the commissioned ranks is prescribed
by the Treasury Board by subsection 6(2) of the RCMP Act. As such, a position
needs to be vacant. These are things over which the Commissioner has little
control.
[97]
Therefore, I would only order that the
Commissioner do as much as he can to enable the applicant’s promotion and to
not withhold his consent once a position is available. This, of course, is
conditional on nothing else coming to light that would reasonably cast a shadow
over the applicant’s qualifications.
[98]
The applicant also wants the Commissioner to
consider if he can do anything to compensate the applicant for the lost
promotion. Admittedly, further compensation would be necessary to restore the
applicant to the position he would have been in if the impugned decision had
not been made.
[99]
However, that is ultimately not the purpose of
judicial review. Judicial review is only intended to ensure that public powers
are exercised lawfully and its remedies cannot always repair the harm an
unlawful decision does. I have not been directed to anything that would suggest
that the Commissioner has any obligation to consider other remedies nor that he
has yet ignored it, so it would be premature to order the Commissioner to
consider additional remedies.
[100] Finally, the applicant requests substantial indemnity costs for two
reasons: (1) the respondent misinformed Justice Rennie about the availability
of a promotion, which would have changed the outcome of the application; and
(2) the RCMP ignored the adjudicator’s decision.
[101] In my view, neither circumstance justifies the level of costs the
applicant seeks.
[102] First, the outcome of the earlier application might have been
different if Justice Rennie had known about the remedial inadequacy of the
grievance process, but it would not have been better. Unlike this case, where
the decision was expressly one to recommend the applicant for a promotion or
not, the decision in that case was a harassment investigation. Indeed, Justice
Rennie implied that the only remedy he would have ordered was to have it set
aside (Boogaard at paragraph 50). That would have meant that the entire
harassment investigation would need to be repeated, which probably would have
taken a long time and for which the only remedy requested was an apology. The
remedy the adjudicator ordered was, in fact, better. Further, I see no evidence
that the respondent intentionally lied to the Court.
[103] Second, although it is true that the RCMP should not have simply
disobeyed the adjudicator’s order, the adjudicator made his decision based only
on the fact that there were rumours of misconduct. At the time, the
investigation report had not been disclosed and so there was no foundation to
the gossip.
[104] This case was more arguable. Though the Commissioner should not have
considered the investigation report, it was not just a rumour. Therefore, the
results in the grievance and the earlier judicial review did not dictate the
result in this one. I would not order enhanced costs and would instead have
them assessed under column III in the table of Tariff B.
[105] I am satisfied that the Commissioner’s decision is reviewable and
that it was unreasonable and therefore must be set aside. I would direct that
the Commissioner must do as much as he can to enable the applicant’s promotion
and that he not withhold his recommendation once a position becomes available
to the applicant because of the circumstances surrounding the theft of the
applicant’s firearm.
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