Docket: T-234-15
Citation:
2016 FC 578
Ottawa, Ontario, May 25, 2016
PRESENT: The
Honourable Madam Justice Heneghan
BETWEEN:
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JAIME
HERRERA-MORALES
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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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REASONS FOR JUDGMENT
I.
INTRODUCTION
[1]
These Reasons are issued pursuant to the Judgment
issued on May 20, 2016 and the Amended Judgment issued on May 24, 2016.
[2]
Mr. Jaime Herrera-Morales (the “Applicant”)
seeks judicial review pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 (“Federal Courts Act”) of a decision of the Chief Human
Resources Officer of the Royal Canadian Mounted Police (the “RCMP”) in his
capacity as a Probationary Review Officer (the “Officer”). In his decision,
dated January 15, 2015, the Officer dismissed the Applicant’s appeal of the
Appropriate Officer’s (the “AO”) decision to discharge him for unsuitability.
[3]
As a remedy, the Applicant seeks an order
reinstating him as a member of the RCMP, or in the alternative, an order
quashing the Officer’s decision and referring the matter back to the AO for
redetermination.
II.
THE PARTIES
[4]
The Applicant was a constable in the RCMP. He
was recruited on November 23, 2010 and enlisted on May 16, 2011.
[5]
Pursuant to Rule 303(2) of the Federal Courts
Rules, SOR/98-106 (the “Rules”), the Respondent to this application is the
Attorney General of Canada (the “Respondent”).
III.
THE EVIDENCE
[6]
Both the Applicant and Respondent rely upon the materials
contained in the Certified Tribunal Record.
IV.
FACTS
[7]
The following facts are taken from the Certified
Tribunal Record.
[8]
The Applicant immigrated to Canada from Peru as
a teenager in 1997. He was recruited by the RCMP as part of a campaign to
encourage the hiring of visible minorities.
[9]
The Applicant commenced the Cadet
Training Program in November 2010 and completed the program on May 16, 2011,
after which he became a probationary Regular Member of the RCMP. The Applicant
continued his training through the RCMP Field Coaching Program beginning May
18, 2011.
[10]
Cst. Wall was appointed as the Applicant’s Field
Coach. The Applicant was the first probationary member to be coached by Cst.
Wall. On August 16, 2011, Cst. Wall requested that the Applicant be transferred
to another district and assigned to a new Field Coach. On August 30, 2011,
Constable Schuck was assigned as Field Coach to the Applicant.
[11]
During the Field Coaching Program, the Applicant
was involved in a number of incidents that formed the basis of the decision to
discharge him. They are outlined below.
[12]
The Field Coaching Program required the
completion of a number of assignments. The Applicant completed Module A on July
22, 2011 but was unable to answer several questions. When the Applicant asked
for assistance, Cst. Wall provided him with the Coach’s answer key. The
Applicant copied four answers and submitted the work as his own.
[13]
Cst. Wall partially completed a Two Months Assessment
Report about the Applicant on July 22, 2011. He received a “professional”
rating in all competencies. However, Cst. Wall noted that the Applicant only
met the minimum requirements in some areas. The report also stated that there
are concerns with the Applicant’s ability to communicate effectively.
[14]
On July 23, 2011, the Applicant seized bear
spray and a bank card as exhibits but failed to document and log the evidence.
The Applicant later denied that he was responsible for the exhibits.
[15]
The Applicant was assigned to a missing persons
file and asked to obtain a statement from the mother of the missing person. The
Applicant failed to obtain relevant information and lied to another member
about his questioning of the mother.
[16]
On August 31, 2011, the Applicant attended a
motor vehicle accident involving a stolen vehicle. The Applicant told Cst.
Schuck he had never recovered a stolen vehicle although this was found to be untrue.
[17]
Cst. Schuck raised concerns, in an email dated
September 3, 2011 to the Field Coaching Coordinator, about the Applicant’s
capacity to understand English and inquired about the possibility of English
testing. The Field Coaching Coordinator echoed this concern in a four-month
assessment report dated October 4, 2011. No English language testing or
training was ever provided to the Applicant.
[18]
In completing Module B, the Applicant found a
copy of the Coach’s answer key and copied the majority of answers. He submitted
the Module B assignment on September 16, 2011.
[19]
A third assignment required the Applicant to
prepare a summary of a community organization. The Applicant copied the summary
of the community organization’s operations from its website.
[20]
The Tribunal Record contains a partially
completed Four Months Assessment Report dated September 25, 2010 and October 4,
2011. The Applicant received an “unacceptable” rating for “Core Values of the
RCMP”. In three of the other seven competencies, the Applicant was ranked as
“needs improvement”.
[21]
On October 13, 2011, the AO removed the
Applicant from operational duties and commenced a Code of Conduct investigation
pursuant to Part IV of the Royal Canadian Mounted Police Act, R.S.C.
1985, c. R-10 (the “Act”), relating to the Module B assignment and untruthful
statements relative to notes on a file. In the course of this Code of Conduct
investigation, the Applicant and several of his supervisors, including Cst.
Wall and Cst. Schuck, were interviewed. This investigation concluded on
November 30, 2011, and found that the three alleged breaches of the Code of
Conduct had occurred.
[22]
On October 17, 2011, the Applicant was asked to
provide particulars of a file, which he claimed to have in a notebook. It was
later discovered that the Applicant did not have the notes. The member
involved, Cst. Naipaul, stated that the Applicant lied about the notebook
containing particulars. The Applicant denied that he lied.
[23]
On December 28, 29 and 30, 2011, while on
administrative duties, the Applicant repeatedly accessed a police database,
PRIME, for personal use. He passed on the information he obtained from the
database to a civilian friend.
[24]
On February 7, 2012, Assistant Commissioner
MacRae forwarded the results of the first Code of Conduct investigation to
Inspector Sullivan, Officer in Charge of Professional Standards. Assistant
Commissioner MacRae found that the investigation revealed performance and
suitability concerns. He recommended that formal discipline be taken in
relation to the Code of Conduct breaches as well as the Applicant’s termination
on the basis of unsuitability pursuant to Part V of the Act.
[25]
On February 8, 2012, the AO initiated a second
Code of Conduct investigation relative to the accessing of a police database,
PRIME, for personal use. The Applicant was suspended from duty on April 13,
2012.
[26]
On May 3, 2012, the AO began formal disciplinary
action under Part IV of the Act. Subsection 43(1) of the Act provides that a
hearing will be initiated when informal disciplinary action would be insufficient
if the alleged contravention of the Code of Code was established. A
hearing under Part IV was never held.
[27]
On December 20, 2012, the AO signed a Notice of
Intention to Discharge pursuant to Part V of the Act, on the ground of unsuitability.
The AO identified twelve incidents which, in his opinion, constituted a failure
by the Applicant to perform his duties.
[28]
The Applicant submitted a written response on
March 29, 2013. He raised several objections including that his performance had
been unfairly evaluated; that he had not been provided with reasonable
assistance, guidance, and supervision (“RAGS”); and that he had suffered
discrimination. The Applicant also challenged the commencement of concurrent discipline
and performance proceedings under Parts IV and V of the Act.
[29]
The Applicant was represented by legal counsel
during the Part V termination process.
[30]
The AO issued a Decision to Discharge, pursuant
to section 45.19(9) of the Act, on August 22, 2013, on the ground of
unsuitability, that is the Applicant had repeatedly failed to perform his
duties in a manner required by his position.
[31]
In his decision, the AO decided that he would
not consider four of the incidents raised in the Notice of Intention to
Discharge. Those incidents were discounted because, in the AO’s opinion, while
they reflected a failure to perform his duties, they did not involve the integrity
or honesty of the Applicant.
[32]
The Applicant appealed that decision on the
grounds that the AO no longer had jurisdiction, that unsuitability had not been
established, and that he had been discriminated against.
V.
DECISION UNDER REVIEW
[33]
The Officer confirmed the AO decision on January
15, 2015. In his written decision, the Officer outlined the relevant facts, the
Notice of Intention to Discharge and the Decision to Discharge, as well as the
Applicant’s submissions.
[34]
The Officer found that the AO was entitled to
complete the probationary member discharge process despite the fact that the
Applicant was not a probationary member as of May 16, 2013. The Officer held
that the definition “probationary member”, a member who has less than two years
of service, should to be interpreted as meaning two years of active service.
[35]
The Officer said that performance should be
interpreted “in the broader context of our core values
of honesty and integrity”.
[36]
He stated that, contrary to the
Applicant’s submissions, Part IV and Part V proceedings could proceed
simultaneously and there was no reason why facts established through the
Code of Conduct investigations could not support a Part V performance
discharge.
[37]
The Officer found that language and
discrimination issues did not play a major role in the AO’s decision.
[38]
Ultimately, the Officer agreed with the decision
of the AO that each of the following incidents demonstrated unsuitability: the
copying of Module A, the copying of Module B, the community profile exercise and
the unauthorized access of PRIME. The Officer found that the Applicant failed
to perform to his duties despite being provided with RAGS.
VI.
ISSUES
[39]
This application for judicial review raises a
number of issues.
[40]
First, what is the applicable standard of
review.
[41]
Second, did the Officer breach procedural
fairness by determining the Applicant could be discharged under Part V of the
Act.
[42]
Third, did the Officer err in determining that
the AO had jurisdiction to discharge the Applicant as a probationary member.
[43]
Fourth, did the Officer err by failing to
consider his language difficulties, and did that failure amount to discrimination
against the Applicant.
[44]
Fifth, did any failure to consider the Applicant’s
language difficulties amount to a failure to provide adequate reasons.
[45]
Next, did the Officer misapprehend the evidence.
[46]
Finally, if the application for judicial review
is granted, should the relief sought by the Applicant, that is an order for
reinstatement, be granted.
VII.
RELEVANT LEGISLATION
[47]
The Act and the RCMP Regulations, 1988,
SOR/88-361 (the “Regulations”) have been amended since the Officer rendered his
decision. Both parties rely upon the Act and the Regulations in effect at the
time the Officer made his decision.
[48]
Sections 18, 37, 38, and 45.18(1) of the Act are
relevant to this proceeding and provide as follows:
18. It is the
duty of members who are peace officers, subject to the orders of the Commissioner,
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18. Sous réserve
des ordres du commissaire, les membres qui ont qualité d’agent de la paix
sont tenus :
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(a) to
perform all duties that are assigned to peace officers in relation to the
preservation of the peace, the prevention of crime and of offences against
the laws of Canada and the laws in force in any province in which they may be
employed, and the apprehension of criminals and offenders and others who may
be lawfully taken into custody;
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a) de remplir toutes les fonctions des
agents de la paix en ce qui concerne le maintien de la paix, la prévention du
crime et des infractions aux lois fédérales et à celles en vigueur dans la
province où ils peuvent être employés, ainsi que l’arrestation des criminels,
des contrevenants et des autres personnes pouvant être légalement mises sous
garde;
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(b) to
execute all warrants, and perform all duties and services in relation
thereto, that may, under this Act or the laws of Canada or the laws in force
in any province, be lawfully executed and performed by peace officers;
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b) d’exécuter tous les mandats — ainsi que
les obligations et services s’y rattachant — qui peuvent, aux termes de la
présente loi, des autres lois fédérales ou de celles en vigueur dans une
province, légalement l’être par des agents de la paix;
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(c) to
perform all duties that may be lawfully performed by peace officers in
relation to the escort and conveyance of convicts and other persons in
custody to or from any courts, places of punishment or confinement, asylums
or other places; and
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c) de remplir toutes les fonctions qui
peuvent être légalement exercées par des agents de la paix en matière
d’escorte ou de transfèrement de condamnés, ou d’autres personnes sous garde,
à destination ou à partir de quelque lieu que ce soit : tribunal, asile, lieu
de punition ou de détention, ou autre;
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(d) to
perform such other duties and functions as are prescribed by the Governor in
Council or the Commissioner.
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d) d’exercer les autres attributions
déterminées par le gouverneur en conseil ou le commissaire.
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37. It is
incumbent on every member
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37. II incombe à
chaque membre:
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(a) to
respect the rights of all persons;
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a) de respecter les droits de toutes
personnes;
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(b) to
maintain the integrity of the law, law enforcement and the administration of
justice;
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b) de maintenir l'intégrité du droit et de
son application ainsi que de !'administration de la justice;
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(c) to
perform the member’s duties promptly, impartially and diligently, in
accordance with the law and without abusing the member’s authority;
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c) de remplir ses fonctions avec
promptitude, impartialité et diligence, conformément au droit et sans abuser
de son
autorité;
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(d) to
avoid any actual, apparent or potential conflict of interests;
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d) d'éviter tout conflit d'intérêt réel,
apparent ou possible;
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(e) to
ensure that any improper or unlawful conduct of any member is not concealed
or permitted to continue;
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e) de veiller à ce que l'inconduite des
membres ne soit pas cachée ou ne se répète pas;
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(f) to be
incorruptible, never accepting or seeking special privilege in the
performance of the member’s duties or otherwise placing the member under any
obligation that may prejudice the proper performance of the member’s duties;
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j) d'être incorruptible, de ne pas
rechercher ni accepter des avantages particuliers dans l'exercice de ses
fonctions et de ne jamais contracter une obligation qui puisse entraver
l'exécution de ses fonctions;
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(g) to act
at all times in a courteous, respectful and honourable manner; and
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g) de se conduire en tout temps d'une façon
courtoise, respectueuse et honorable;
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(h) to
maintain the honour of the Force and its principles and purposes.
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h) de maintenir l'honneur de la
Gendarmerie, ses principes et ses objets.
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38. The Governor
in Council may make regulations, to be known as the Code of Conduct, governing
the conduct of members.
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38. Le gouverneur
en conseil peut prendre des règlements, appelés code de déontologie, pour
régir la conduite des membres.
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45.18 (1) Any
officer may be recommended for discharge or demotion and any other member may
be discharged or demoted on the ground, in this Part referred to as the
“ground of unsuitability”, that the officer or member has repeatedly failed
to perform the officer’s or member’s duties under this Act in a manner fitted
to the requirements of the officer’s or member’s position, notwithstanding
that the officer or member has been given reasonable assistance, guidance and
supervision in an attempt to improve the performance of those duties.
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45.18 (1) Le
renvoi OU la rétrogradation d'un officier peut être recommandé, ou tout autre
membre peut être renvoyé OU rétrogradé, pour le motif, appelé dans la
présente partie « motif d'inaptitude », qu'il a omis, a plusieurs
reprises, d'exercer de façon satisfaisante les fonctions que lui impose la présente
loi, en dépit de l'aide, des conseils et de la surveillance qui lui ont été
prodigués pour l'aider à s’amender.
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[49]
Sections 38 to 58.7 of the Regulations
constitute the Code of Conduct. Sections 39(1) and 45 of the Regulations are
relevant to this proceeding and are reproduced below:
39. (1) A member
shall not engage in any disgraceful or disorderly act or conduct that could
bring discredit on the Force.
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39. (1) Le membre
ne peut agir ni se comporter d’une façon scandaleuse ou désordonnée qui
jetterait le discrédit sur la Gendarmerie.
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45. A member
shall not knowingly or wilfully make a false, misleading or inaccurate
statement or report to any member who is superior in rank or who has
authority over that member pertaining to
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45. Le membre ne
peut sciemment ou volontairement faire une déclaration ou un rapport faux,
trompeur ou inexact à un membre qui lui est supérieur en grade ou qui a
autorité sur lui, relativement :
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(a) the
performance of that member’s duties;
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a) à l’exercice
de ses fonctions;
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(b) any
investigation;
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b) à une enquête;
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(c) any conduct
concerning that member, or any other member;
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c) à sa conduite
ou à celle d’un autre membre;
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(d) the operation
of the Force; or
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d) au
fonctionnement de la Gendarmerie;
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(e) the
administration of the Force.
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e) à l’administration de la Gendarmerie.
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VIII.
SUBMISSIONS
A.
Applicant’s Submissions
(1)
What is the applicable standard of review?
[50]
The Applicant submits the standard of review on
the issue of procedural fairness is correctness. In determining if the Officer based
his decision on erroneous findings of fact, the standard is reasonableness; see
the decision in Elhatton v. Canada (Attorney General), 2014 FC 67 at
paragraphs 32-35.
(2)
Did the Officer breach procedural fairness by
determining the Applicant could be discharged under Part V of the Act?
[51]
The Applicant argues the Officer breached
procedural fairness by finding that he could be discharged under Part V of the
Act. He submits Parliament’s intention was to have Code of Conduct
contraventions dealt with under Part IV. He argues Part V does not refer to the
Code of Conduct, rather it addresses repeated performance failures.
[52]
The Applicant further submits that the RCMP
cannot deprive probationary members of the benefits afforded under the Part IV
hearing process by charactering a disciplinary discharge as a discharge for
unsuitability; see the decision in Jacmain v. Attorney General (Canada),
[1978] 2 S.C.R. 15.
[53]
If disciplined pursuant to the Part IV of the
Act, the Applicant would have been entitled to a hearing before a three-member
board, with at least one law school graduate among the board members.
Discipline pursuant to Part IV would have also provided the Applicant with the
opportunity to present evidence, cross-examine witnesses and make
representations at the hearing; the benefit of a one year limitation period to
conduct the Part IV hearing after the alleged contravention of the Code of
Conduct became known to the AO; and a broader scope of disciplinary action.
[54]
As well, the Applicant claims he was entitled to
an oral hearing since the Code of Conduct allegations involved serious issues
of credibility and integrity; see Singh v. Canada (Minister of Employment
& Immigration), [1985] 1 S.C.R. 177.
[55]
The Applicant points out that the grounds for
his discharge, that is plagiarism, deceit and failure to comply with RCMP
policy, are disciplinary in nature; see Saskatoon (City) Police Assn. v.
Saskatoon (City) Police Commissioners, 2004 SKCA 3.
[56]
The Applicant also argues that he had a
legitimate expectation that the AO would proceed under Part IV.
(3)
Did the Officer err in determining that the AO
had jurisdiction to discharge the Applicant as a probationary member?
[57]
The Applicant further submits that the Officer
erred in finding that the AO had jurisdiction to discharge him as a
probationary member. Pursuant to section 45.19(11) of the Act, a probationary
member is defined as a member with less than two years of service. Although the
Notice of Intention to Discharge was issued December 20, 2011, the AO’s
decision was not made until August 22, 2013. The Applicant was not a probationary
member at that time.
(4)
Did the Officer err by failing to consider his
language difficulties, and did that failure amount to discrimination against
the Applicant?
[58]
In the alternative, the Applicant submits that
the Officer erred by failing to consider his language difficulties, which were
known to the RCMP.
[59]
Under Part V, a member may only be discharged
for failing to perform his duties if the member receives RAGS in an attempt to
improve performance; see section 45.18 of the Act. The Applicant argues that to
the extent that RAGS were provided to him, their effectiveness was undermined
by his difficulty in understanding English. He also submits that the
performance failures related to honesty and integrity were caused by language
issues.
[60]
The Applicant also argues that the RCMP breached
the duty to accommodate. Language is a defining characteristic of national or
ethnic origin and should be protected under that ground; see Liu v. Everlink
Services Inc., 2014 HRTO 202 at paragraph 9. He submits there is a prima
facie case of discrimination in the present circumstances, as he
possesses a characteristic protected under the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 (the “Canadian Human Rights Act”), he suffered adverse
treatment and it is reasonable to infer that the protected characteristic
played a role in the adverse treatment; see Lincoln v. Bay Ferries Ltd.,
2004 FCA 204 at paragraph 18.
[61]
The Applicant relies upon the decision in Khiamal
v. Canada (Human Rights Commission), 2009 FC 495 at paragraph 61 to support
his submissions that if his difficulty understanding English played a role in
the concern about his honesty and integrity, that is sufficient to
amount to discrimination.
(5)
Did any failure to consider the Applicant’s
language difficulties amount to a failure to provide adequate reasons?
[62]
The Applicant further submits that the Officer
breached procedural fairness by failing to provide adequate reasons for his
finding that language did not play a role in the incidents. In this regard, he
relies upon subsection 5(3) of the Commissioner’s Standing Orders
(Probationary Members) and the decision in VIA Rail Canada Inc. v.
Canada (National Transportation Agency) (2000), 193 D.L.R. (4th) 357.
(6)
Did the Officer misapprehend the evidence?
[63]
The Applicant submits that the Officer and AO
relied upon generalized and unreliable evidence which resulted in erroneous
findings of fact. He points to the fact that the Officer relied upon a
memorandum dated six months after the Applicant completed Modules A and B, as
proof that the Applicant was aware cutting and pasting answers was not
permitted.
[64]
The Applicant also argues the Officer relied
upon common experience and usual practice rather than specific instructions to
conclude that the Applicant was aware cheating was prohibited. He also submits
that the Officer misconstrued his testimony during the Code of Conduct
investigations by failing to consider his language difficulties.
(7)
If the application for judicial review is
granted, should the relief sought by the Applicant, that is an order for
reinstatement, be granted?
[65]
Finally, the Applicant in his Memorandum of Fact
and Law sought an order for his reinstatement. In oral submissions, Counsel for
the Applicant said that if the decision under review were quashed and an order
for reinstatement were denied, the practical effect is that the Applicant would
remain a member of the RCMP.
B.
The Respondent’s Submissions
(1)
What is the applicable standard of review?
[66]
The Respondent submits that issues of procedural
fairness are reviewed on a correctness standard; see the decision in Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
[2011] 3 S.C.R. 654. She argues that the Officer’s decision should be reviewed
on the standard of reasonableness; see the decision in Canada (Attorney
General) v. Boogaard, 2015 FCA 150.
(2)
Did the Officer breach procedural fairness by
determining the Applicant could be discharged under Part V of the Act?
[67]
The Respondent submits that there is nothing in
the Act prohibiting concurrent proceedings under Parts IV and V.
[68]
The Respondent argues that the RCMP is entitled
to discharge a member for unsuitability if it failed to have him discharged on
other grounds; see Girardeau v. Canada (Attorney General) (1997), 127
F.T.R. 20. Further, she submits that facts obtained through the disciplinary
investigation may be relevant to a performance discharge; see Jacmain, supra;
Canada (Attorney General) v. Penner, [1989] 3 F.C. 429. Concerns over
the Applicant’s suitability that arise from his misconduct are legitimate.
(3)
Did the Officer err in determining that the AO
had jurisdiction to discharge the Applicant as a probationary member?
[69]
In response to the Applicant’s submissions that
he was not a probationary member, the Respondent submits that there is no
requirement that a process begun under Part V be completed before the end of a
member’s probationary period.
(4)
Did the Officer err by failing to consider his
language difficulties, and did that failure amount to discrimination against
the Applicant?
[70]
The Respondent submits that the Applicant did
not challenge the AO’s determination, that it was not his role to determine if
discrimination occurred, before the Officer. In light of this failure, the
argument that the Officer failed to consider accommodation lacks merit.
[71]
The Respondent argues that the Applicant has
failed to establish an evidentiary basis to support his argument that the RCMP
failed to accommodate his language difficulties and further, that he was
dismissed on account of those difficulties; see Lui, supra at
paragraphs 9, 87-90. The Respondent argues that there is no nexus between the
Applicant’s language difficulties and the reasons for his dismissal.
(5)
Did any failure to consider the Applicant’s
language difficulties amount to a failure to provide adequate reasons?
[72]
The Respondent submits that no breach of
procedural fairness resulted from the failure to provide adequate reasons. She
argues that the alleged inadequacy of the reasons is not an independent ground
for review, but must be considered as part of the reasonableness
analysis; see the decision in Newfoundland and Labrador Nurses’ Union
v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708 at
paragraph 14.
(6)
Did the Officer misapprehend the evidence?
[73]
The Respondent contends that the Officer’s
consideration of the evidence was reasonable. She argues that a reviewing court
should focus upon the decision as a whole and not engage in the “microscopic
review” proposed by the Applicant.
[74]
The Respondent submits that the evidence in the
record demonstrates that the Applicant proved himself unsuitable to be a RCMP
member. She argues that the Applicant’s statements during the Code of Conduct
investigations demonstrate that he understood the consequences of his actions
but took the “easy way out”.
(7)
If the application for judicial review is
granted, should the relief sought by the Applicant, that is an order for
reinstatement, be granted?
[75]
Finally, the Respondent argues that the relief
of an order of reinstatement as a member of the RCMP should not be granted. First,
the relief was not set out in the Notice of Application and is not “necessarily
ancillary” to the relief sought in the Notice of Application. As such, the
relief sought is non-compliant with Rule 301(d) of the Rules. Second, the
Respondent submits this Court does not have the authority to appoint members of
the RCMP and this is not an appropriate case for a directed verdict.
IX.
DISCUSSION
A.
Did the Officer breach procedural fairness by
determining the Applicant could be discharged under Part V of the Act?
[76]
The standard of review for issues of procedural
fairness is correctness; see the decision in Pizarro v. Canada (Attorney
General), 2010 FC 20.
[77]
I agree with the Respondent that nothing in the
Act prohibits concurrent proceedings under Parts IV and V. However, at the same
time, the Act does not allow the RCMP to improperly use unsuitability findings
as a disguise for disciplinary sanctions.
[78]
Parts IV and V of the Act address different
procedures. Part IV of the Act, together with the Code of Conduct set out in
the Regulations, establish the behavioural standards for members of the RCMP
and a procedure to sanction misconduct. Part V of the Act specifies the
procedure for the discharge and demotion resulting from a member’s
unsuitability.
[79]
In Jacmain, supra, Justice Pigeon,
in considering the jurisdiction of an adjudicator under the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, said the following about the use
of termination for unsuitability, “I cannot agree that
the employer can deprive an employee of the benefit of the grievance procedure
by labelling a disciplinary discharge a rejection”.
[80]
In Penner, supra the
Federal Court of Appeal criticized the characterization of a disciplinary
sanction as a discharge for unsuitability:
It is clear that
five of the nine judges who rendered this Jacmain judgment expressed the
opinion that an adjudicator seized of a grievance by an employee rejected on probation
is entitled to look into the matter to ascertain whether the case is really
what it appears to be. That would be an application of the principle that form
should not take precedence over substance. A camouflage to deprive a person of
a protection given by statute is hardly tolerable. In fact, we there approach
the most fundamental legal requirement for any form of activity to be defended
at law, which is good faith. …
[81]
Procedural fairness is a flexible principle, the
content of which is to be decided in the specific context of each case; see the
decision in Knight v. Indian Head School Division No. 19, [1990] 1
S.C.R. 653 at pages 682-684. In my opinion, the improper deprivation of
procedures provided for in Part IV of the Act raises issues of procedural
fairness.
[82]
In my opinion, the Applicant’s discharge for unsuitability
was a disguised disciplinary discharge. Only two of the grounds for discharge
listed by the Officer relate to failure to perform his duties, that is the
missing persons incident and the exhibits incident. The remaining grounds are
incidents that demonstrate dishonesty and a lack of integrity, which are
breaches of section 37(g) of the Act and section 45 of the Regulations. These
breaches should be disciplined under Part IV.
[83]
I note that the AO discounted four of the twelve
incidents listed in the Notice of Intention to Discharge from consideration in
his Decision to Discharge. The AO explicitly stated that although each of the
four incidents reflects a failure to perform his duties, they did not involve
the Applicant’s honesty or integrity. There was no reason to discount these
incidents unless the motivation for discharge was breaches of the Code of
Conduct.
[84]
I agree with the Applicant’s submissions that he
had a legitimate expectation that his misconduct would be disciplined under
Part IV of the Act. The doctrine of legitimate expectations relates only to
procedural rights, not to a particular result; see the decision in Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[85]
The Applicant had a legitimate expectation
arising from section 43(1) of the Act which provides that the AO “shall initiate
a hearing” if formal disciplinary action is taken. The AO instituted formal disciplinary
action against the Applicant on May 3, 2012 but failed to initiate a hearing.
[86]
The titles support the Applicant’s submissions
about his legitimate expectation. The title of Part IV of the Act is
“Discipline”. Part V of the Act is entitled “Discharge and Demotion”.
[87]
Part IV provides for procedural protections not
provided for under Part V of the Act. The Applicant had a legitimate
expectation that those procedures would be available to him. The Applicant was
denied the procedures available under Part IV of the Act by the AO’s decision
to proceed with his termination under Part V. Denial of statutory protections through
the characterization disciplinary discharge as a discharge for unsuitability
cannot be tolerated.
[88]
In my opinion, the Officer erred in finding that
unsuitability includes more than performance. Section 45.18(1) of the Act
defines “ground of unsuitability” as the repeated failure to perform the
member’s duties under this Act in a manner fitted to the requirements of the
member’s position.
[89]
I am satisfied that the Officer breached the
duty of procedural fairness owed to the Applicant by proceeding with his
discharge under Part V of the Act, and this application for judicial review
will be allowed.
[90]
The Applicant has raised a number of other
issues with the Officer’s decision. Although my conclusion on the issue of
procedural fairness is sufficient to dispose of this application, I will
briefly address the other arguments raised by the parties.
B.
Other Arguments
(1)
Did the Officer err in determining that the AO
had jurisdiction to discharge the Applicant as a probationary member?
[91]
The Act does not require that Part V proceedings
commenced when a member is a probationary member must be concluded prior to the
end of that member’s probationary period. In my opinion, the Officer correctly
found that the AO had jurisdiction to discharge the Applicant as a probationary
member.
(2)
Did the Officer err by failing to consider his
language difficulties, and did that failure amount to discrimination against
the Applicant?
[92]
The Officer found that while issues of language
and discrimination “surfaced” in this case, they did not play a significant
role.
[93]
Under Part V of the Act, a member may only be
discharged for failing to perform his duties if the member receives RAGS in an
attempt to improve performance. The Officer did not consider whether the
Applicant’s difficulty understanding English prevented him from understanding
the RAGS.
[94]
Since Cst. Wall, Cst. Schuck and Mr. Hall raised
concerns that the Applicant did not comprehend instructions, it was unreasonable
for the Officer to not consider whether the Applicant was provided with RAGS. Assistance,
which may have been reasonable for a native English speaker, may not be
reasonable given the Applicant’s comprehension issues with the English
language.
[95]
In my opinion, it was unreasonable for the
Officer to not explain why he was satisfied that RAGS provided to the Applicant
were adequate.
[96]
I am not persuaded by the Applicant’s
submissions that he was discriminated against on the basis of language. He has
not provided sufficient evidence to show that he was dismissed on a ground protected
under the Canadian Human Rights Act.
(3)
Did the Officer misapprehend the evidence?
[97]
It is not the role of a reviewing court to
re-weigh evidence that was before the decision maker; see the decision in Khosa
v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339 at
paragraph 61. Given the factual nature of the inquiry into the Applicant’s
suitability for his position as a member of the RCMP, the Officer’s
consideration of the evidence here was reasonable.
X.
CONCLUSION
[98]
In my opinion, the Applicant has shown that the
Officer committed a reviewable error, that is the breach of procedural fairness
that arose from the Officer’s decision that the Applicant could be discharged
under Part V of the Act.
XI.
REMEDY
[99]
In his Memorandum of Fact and Law, the Applicant
seeks an order reinstating him as a member of the RCMP.
[100] The Respondent opposes this relief. However, she acknowledged that
the practical effect of quashing the Officer’s decision is that the Applicant is
not discharged from the RCMP.
[101]
The remedies available upon judicial review are
described by subsection 18.1(3) of the Federal Courts Act. That provision
provides as follows:
(3) On an
application for judicial review, the Federal Court may
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(3) Sur présentation d’une demande de
contrôle judiciaire, la Cour fédérale peut :
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(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
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a) ordonner à
l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou
refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
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(b) declare invalid or unlawful, or
quash, set aside or set aside and refer back for determination in accordance
with such directions as it considers to be appropriate, prohibit or restrain,
a decision, order, act or proceeding of a federal board, commission or other
tribunal.
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b) déclarer nul ou illégal, ou annuler,
ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle
estime appropriées, ou prohiber ou encore restreindre toute décision,
ordonnance, procedure ou tout autre acte de l’office fédéral.
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[102] The remedy of reinstatement is not available in this proceeding; see
the decision in Ross v. Mohawk Council of Kanesatake (2003), 232 F.T.R.
238. Pursuant to section 7(1)(a) of the Act, the power to appoint members to
the RCMP resides with the Commissioner of the RCMP. The reinstatement of a
dismissed member of the RCMP is beyond the jurisdiction of this Court.
[103] In the result, the application for judicial review is allowed with
costs to the Applicant, the Officer’s decision is quashed and the matter is
remitted for redetermination in accordance with the applicable law.
“E. Heneghan”