Docket: T-1235-14
Citation:
2015 FC 660
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, May 21, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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FRANK
VAILLANCOURT
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is challenging the lawfulness of a
decision dated April 17, 2014, in which Superintendent Michelle Young (the
designated officer) upheld the decision dated June 12, 2013, of the Member
Representative Directorate (MRD) of the Royal Canadian Mounted Police (RCMP) to
refuse to represent the applicant in his challenge of disciplinary notices pursuant
to paragraph 3(b) of the Commissioner’s Standing Orders
(Representation), 1997, SOR/97-399 (Standing Orders) [repealed and
replaced since November 28, 2014, by the Commissioner’s Standing Orders
(General Administration), SOR/2014-293]. This application for judicial
review was heard concurrently with a similar application for judicial review in
docket T‑2180-12, in which the applicant challenges an earlier
decision dated November 2, 2012, by another designated officer regarding
his representation by the MRD: Vaillancourt v Canada (Attorney General),
2015 FC 659.
[2]
On November 2, 2012, Superintendent Luc
Delorme rendered a decision in which he ordered the MRD to represent the
applicant in his challenge of disciplinary notices. In any event, counsel for
the applicant in this application for judicial review, Jasmine Patry,
approached the MRD to ask whether they intended to continue representing the
applicant. On November 26, 2012, Superintendent Art Pittman, Director of
the MRD, responded to Ms. Patry’s letter by fax, indicating that he was
not sure whether the MRD would be able to help the applicant, but confirming
that Corporal Dominique Denis was assigned to the file and that she would soon
be contacting the applicant to determine whether she could establish a working
relationship with him.
[3]
The Superintendent asked in his letter to
Ms. Patry to be provided with the applicant’s email address and telephone
number, at the same time providing Corporal Denis’s coordinates. That letter
went unanswered. On December 14, 2012, Corporal Denis faxed a letter
to Ms. Patry asking to be provided with the applicant’s email address and
telephone number. That letter also went unanswered. On January 9, 2013, Corporal
Denis sent a third letter to Ms. Patry, asking her once again to provide
the applicant’s coordinates and also to acknowledge receipt of the letters of
November 26, 2012; December 14, 2012; and January 9, 2013. That
letter also went unanswered.
[4]
On April 11, 2013, Superintendent Pittman sent
a letter to the applicant by regular mail. That letter indicated that the three
letters sent to Ms. Patry seeking the applicant’s coordinates had remained
unanswered and that no information had been received from Ms. Patry or the
applicant. Superintendent Pittman asked the applicant to acknowledge receipt of
the letter and to confirm his intentions as soon as possible, no later than
April 30, 2013. According to the post office receipt, this letter was
received by the applicant on April 15, 2013.
[5]
On April 30, 2013, the applicant responded
by letter to Superintendent Pittman. In that letter, the applicant stated that
it was obvious that his employer had his coordinates and that he did not
understand why he was receiving such requests. The letter included neither the
applicant’s telephone number nor his email address. The applicant also
expressed surprise at the fact that Superintendent Pittman was asking whether
he wished to be represented by the MRD. The applicant stated that he had
attempted to reach Corporal Denis several times at her work and at her
cellphone numbers, leaving her several messages that included his coordinates,
but that his calls had never been returned.
[6]
On June 12, 2013, Superintendent Pittman decided
to refuse to authorize the applicant’s continued representation and sent him a
notice to that effect. According to the notice, the primary reasons for this
refusal were the applicant’s refusal to collaborate and a lack of the confidence
necessary to establish a solicitor-client relationship. This notice states that
the MRD made several attempts to communicate with the applicant and
Ms. Patry, including the letters mentioned above and telephone messages
left by Corporal Denis to Ms. Patry. Moreover, Superintendent Pittman
noted that, based on his verification, no message or telephone call had been
received from the applicant. As Corporal Denis had never given him her cellphone
number, the applicant could not have contacted her at that number, contrary to
his allegations in the letter dated April 30, 2013. Superintendent Pittman
also notes that the applicant never did provide either his telephone number or
his email address, despite the renewed requests. Superintendent Pittman concludes
that the refusal is based on paragraph 3(b) of the Standing Orders,
which provides that representation will not be authorized if it could impair
the efficiency, administration or good government of the RCMP.
[7]
The applicant submitted the decision of
June 12, 2013, for review by a designated officer. On April 17, 2014,
the designated officer upheld the decision of June 12, 2013. In doing so,
the designated officer relied solely on the events arising after the decision of
Superintendent Delorme on November 2, 2012. The designated officer
concluded that it was clear that the MRD had made considerable efforts to establish
contact with the applicant and Ms. Patry, and that the latter individuals
had provided no valid reason for their failure to respond. The designated
officer also noted that the telephone records filed by the applicant did not
support his claim that he had left voice mail messages to the MRD and that his
claim to the effect that he had tried to reach Corporal Denis on her cellphone
was unsupported by the evidence. The designated officer also stated that he did
not understand why the applicant had not followed up with a letter or email if
his calls were going unanswered. According to the designated officer, there is
no indication in the record that the MRD was indeed in possession of the
applicant’s coordinates. Accordingly, the designated officer observed that the
time and effort spent by the MRD since November 2012 were sufficient to
conclude that the applicant’s representation would cause additional delays to
other RCMP members, which would impair the efficiency, administration and good
government of the RCMP. The designated officer upheld the MRD’s decision
pursuant to paragraph 3(b) of the Standing Orders.
[8]
All of the grounds invoked by the applicant
relate to the merits of the designated officer’s decision. The applicable
standard of review in such cases is reasonableness: Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12; Vaillancourt v Canada (Attorney General),
2012 FC 70 at paras 27-33. This application for judicial review must
be dismissed.
[9]
In his memorandum, the applicant alleges that
the designated officer erred in taking into account only the facts that arose
after the decision of Superintendent Delorme on November 2, 2012. According
to the respondent, this argument is surprising, since the applicant had made
the opposite argument to the designated officer, namely, that the MRD’s
decision should be based solely on the facts arising after the decision of
November 2, 2012. During the hearing before this Court, counsel for the
applicant nevertheless agreed that the designated officer did not need to
consider events prior to November 2, 2012, so it will not be necessary to address
that argument.
[10]
The applicant also alleges that the designated
officer erred in her assessment of the evidence filed by the parties in
concluding that the applicant had failed to act in a spirit of cooperation. The
applicant also challenges the designated officer’s conclusion, alleging that it
is not the applicant’s representation that is likely to impair the efficiency,
administration and good government of the RCMP, but rather the MRD’s stubborn
refusal to provide such representation. According to the applicant, it was
impossible to justify a refusal to represent the applicant on the sole basis of
the events that occurred after November 2, 2012. The applicant’s telephone
records show that he had tried several times to communicate with Corporal Denis
and that she had never returned his calls. Moreover, the RCMP, as the
applicant’s employer, already has his telephone number and email address, which
means that the MRD could easily have obtained this information. The MRD was
also well aware that the applicant’s counsel for his Federal Court cases was
not representing him in the context of his disciplinary notices; otherwise, the
applicant would not have needed representation by the MRD.
[11]
According to the respondent, the applicant has in
no way indicated which evidence the designated officer failed to assess
properly or to consider, and has therefore not demonstrated how the designated
officer may have erred in her assessment of the evidence. The respondent
alleges that the decision is based on the evidence, including all of the
letters sent to the applicant’s counsel, as well as the applicant’s telephone
records and Corporal Denis’s statement to the effect that she had never
received any voice messages from the applicant. The designated officer pointed
out the contradiction between the applicant’s allegation that he had called
Corporal Denis several times on her cellphone and the fact that the number did
not appear in the telephone records, a contradiction that undermines the
applicant’s credibility.
[12]
I fully agree with the respondent’s arguments in
favour of dismissal. When the Court is reviewing the lawfulness of a decision
on the standard of reasonableness, its role is not to reweigh the evidence or
substitute its own decision for that of the decision-maker. Rather, the Court
must determine whether the decision and its justification are reasonable,
reasonableness being concerned mostly with “the
existence of justification, transparency and intelligibility within the
decision-making process”, as well as “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at
para 47). It is evident that the designated officer considered all of the
evidence, including that submitted by the applicant such as the telephone
records, but also that filed by the MRD, including the letters sent to the
applicant or his counsel, and Corporal Denis’s response to the applicant’s
allegations, explaining that she had not provided the applicant with her cellphone
number and had received no telephone messages from him at her work number.
General allegations aside, the applicant has in no way demonstrated how the
designated officer may have erred in her assessment of the evidence. Given all
of the evidence in the record, the designated officer’s conclusion falls within
the range of possible outcomes. I therefore consider the impugned decision to
be reasonable.
[13]
The application for judicial review is
dismissed. In light of the result, the respondent will be entitled to costs.
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