Docket: T-416-15
Citation:
2015 FC 1262
Ottawa, Ontario, November 10, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MANFRED SCHAMBORZKI
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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]
This is an application for judicial review of
the decision of a Level II Adjudicator [the Adjudicator] rendered January 20,
2015, wherein a grievance presented by the Applicant pursuant to section 31 of
the Royal Canadian Mounted Police Act RSC 1985 cR-10 [the Act] was
dismissed.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
In 2003, the Applicant made a Request for
Intervention [RFI] related to a non-selection decision in a corporal
promotional process. That RFI was successful and the process was restarted, but
the same final decision was reached. The Applicant made another RFI, which was
dismissed for lack of jurisdiction and timeliness and was subsequently the
subject of a judicial review by the Federal Court (Schamborzki v Canada
(AGC), 2010 FC 586 [Schamborzki]).
[4]
The Applicant retired on May 5, 2010. Shortly
thereafter, on May 28, 2010, Justice O’Keefe issued a Judgment in Schamborzki
in favour of the Applicant, returning his RFI to a third adjudicator to be addressed
on the merits. The Applicant and the RCMP then reached a settlement, promoting
him retroactively to corporal in 2003 with back pay [the Settlement].
[5]
After the Settlement, the Applicant requested to
participate retroactively in promotional processes which were held at the time
of his retroactive promotion. The Respondent refused, and the Applicant grieved
this refusal. The dismissal of this grievance is the subject of this judicial
review.
II.
Impugned Decision
[6]
The Adjudicator considering the Level II
grievance explained that the main issue to be addressed was whether the
Applicant had standing to present his grievance. This turned on whether the
Applicant was a “member” for purposes of section 31 of the Act, which created
the right to present a grievance.
[7]
The Adjudicator noted that the Applicant had
retired from the RCMP in May 2010. At the time of his retirement, he had an
outstanding matter – his non-selection for promotion to corporal in 2003. The
Settlement included a retroactive promotion to corporal with related back pay
and adjustments to the Applicant’s pension. The Applicant argued that nothing
in the Settlement prevented him from applying for promotional opportunities as
of the date of his backdated promotion. The Respondent argued that nothing in
the Settlement implied recognition that the Applicant had a right to be
promoted nor gave him a right to apply for promotions.
[8]
The Adjudicator found that the External Review
Committee [ERC] and the Commissioner of the RCMP [Commissioner], both of which
have a role in the grievance process under the Act, have stated in other
decisions that the meaning of “member” can be
extended in the grievance process to include retired members when there is
sufficient linkage with employment-related issues that arose before the member
retired. However, the Adjudicator concluded that this principle did not apply
to this case.
[9]
The Applicant retired on May 5, 2010, and at
that time his one unresolved issue was before the Federal Court. The parties
agreed, and the Adjudicator concurred, that such issue was concluded with the
signing of the Settlement and was not part of the current grievance. The
Adjudicator reasoned that, if competing for promotions retroactively is
considered to be a new issue, it would not fall within the ambit of the
Settlement and could therefore still be pursued by the Applicant. However, at
the same time, the Applicant wishes to characterize the competition for
promotions as a continuation of the old issue so that it could be considered an
employment matter that was left unresolved upon retirement, thus extending the
concept of “member” to include him.
[10]
The Adjudicator was not swayed by the
Applicant’s arguments and found that the issue cannot be both new and old. The
Settlement provided that the RCMP did not recognize the validity of the
Applicant’s initial claim that he was entitled to a promotion. It was a
promotion of convenience to achieve resolution, not of merit. Moreover, the
Adjudicator did not see the purpose of a settlement that would leave issues
hanging and therefore found that the Settlement did conclude all the issues
that arose from the initial decision not to promote, including competition for
further promotional opportunities.
[11]
The Adjudicator held that, being a retired
member, who was now raising an issue that was resolved by the Settlement, the
Applicant did not fit within the concept of a member grieving an outstanding
issue that had arisen in the employer-employee context. He had not established
on a balance of probabilities that he was a “member”
for purposes of the relevant Career Management Bulletins governing the
promotion process. Consequently he could not be aggrieved by the decision
denying him the opportunity to compete for promotional opportunities. He
therefore failed to establish standing both as a “member”
and as a member who was “aggrieved”.
III.
Issues
[12]
The issues raised by the parties in this
application are as follows:
A.
Should portions of the Affidavit of Amy Appleby,
filed by the Respondent, be struck out?
B.
What is the applicable standard of review?
C.
Did the Adjudicator err in determining that the
Applicant did not have standing?
IV.
Positions of the Parties
A.
Applicant’s Submissions
[13]
The Applicant argues that certain paragraphs of
the Respondent’s Affidavit, the Affidavit of Amy Appleby, should be struck
pursuant to Federal Court Rule 81 because they contain opinion, argument and
legal conclusions. The Applicant cites Canadian Tire Corporation v Canadian
Bicycle Manufacturers Association, 2006 FCA 56 in support of his position.
[14]
On the standard of review, the Applicant argues that the appropriate
standard with respect to a Level II Adjudicator’s decision on standing is
correctness. The Applicant relies on Flood v Attorney General of Canada,
2001 FCT 878 [Flood] and Derakhshan v Canada (Commissioner of the
Royal Canadian Mounted Police), 2004 FC 106 [Derakhshan], in which
the issue before the Court was whether an adjudicator had committed a
reviewable error in determining that an applicant did not have standing to
bring a grievance under the Act, and the Court held that correctness was the
appropriate standard.
[15]
On the merits of the Adjudicator’s decision on standing, the Applicant submits that the test to be applied when determining
whether a retired member of the RCMP has standing to bring a grievance is
whether the subject-matter of the grievance is an employment issue. He argues
that the Adjudicator did not correctly articulate and apply this test.
[16]
The Applicant references ERC decision G-324
where it was concluded that section 31(1) of the Act was intended to limit the
grievance process to issues pertaining to the employee-employer relationship as
opposed to challenge by the general public of RCMP decisions. The ERC noted
that the Act does not impose timelines for decision-making within the grievance
process and expressed the concern that there could be a lack of accountability
for decisions respecting the rights of members if a member’s retirement
determined whether the decision would be subject to scrutiny within the
grievance process.
[17]
The Applicant also refers to the Commissioner of
the RCMP having noted in decision G-332 that whether a retired member has
standing to bring a grievance must be decided on a case-by-case basis and
depends on the requirement that the retired member’s grievance pertain to the
employment relationship.
[18]
Specifically, the Applicant submits that the
Adjudicator made the following errors:
A.
he did not apply the proper legal test on
standing. The test is not one of continuation from an issue that existed prior to
retirement but whether the issue relates to the employment relationship that
existed before retirement;
B.
he conflated the issue in the non-selection
grievance with the issue at stake in the present grievance. The fact that this
second issue crystalized after his retirement does not negate the conclusion
that the issue pertains to the employment relationship that existed prior to
the Applicant’s retirement; and
C.
he misconstrued the effect of the Settlement.
The Settlement expressly stated that it did not relate to any other entitlement
or proceeding that the parties might have or undertake.
[19]
Overall, the Applicant argues that the
subject-matter of the grievance pertains to the employment relationship that
existed between the Applicant and the RCMP before the Applicant’s retirement.
Therefore, he falls within the extended meaning of “member”
for the purposes of determining standing to present a grievance.
B.
Respondent’s Submissions
[20]
The Respondent submits that the impugned paragraphs of the Affidavit of
Amy Appleby are not argumentative in nature and are not in violation of Rule
81. The Affidavits filed for both parties not only
present evidence in support of opposing positions but also provide the Court
with a narrative, which includes background information that provides
assistance to the Court. Material introduced as general background information
may be accepted by the Court on judicial review for the purposes of assistance
(Chopra v Canada (Treasury Bd) [1999] 168 FTR 273 (TD)).
[21]
The Respondent’s position on standard of review
is that this Court has ruled that the appropriate standard for a judicial
review of a decision of an RCMP adjudicator, given the adjudicator’s
specialized expertise and broad powers before him or her, is one of
reasonableness. The Respondent refers to a number of Federal Court decisions
including that of Justice O’Keefe in Schamborzki.
[22]
On the decision on standing, the Respondent
submits that the Adjudicator was reasonable in finding that the Applicant was
not a member as defined under the Act. The Respondent argues that the Act sets
out two preliminary requirements in order for an individual to have standing to
submit a grievance: he or she must be a “member”
and must be aggrieved.
[23]
The Respondent then argues that the Applicant
did not provide sufficient linkage, with employment-related issues that arose
before the Applicant retired, to extend the meaning of “member”.
The issue has to have arisen before the Applicant retired or, alternatively, be
an issue that was a continuation of a grievance that remained unresolved upon
the Applicant’s retirement.
[24]
The Respondent submits that the Applicant
over-simplifies the applicable test. Notwithstanding that ERC decisions are not
precedential or binding, but merely recommendations, an examination of the
decisions supports the Adjudicator’s interpretation. The grievors in the cases
cited by the Applicant either were members of the RCMP at the time the
complaint was initiated, had retired after the time that a decision was sought
and before it was issued, or had received a commitment from the RCMP for a
retirement benefit. The Respondent distinguishes those cases from that of the
Applicant and argues that the Adjudicator correctly found that the Applicant
was notionally promoted from Constable to Corporal pursuant to the Settlement,
which does not provide the Applicant with the linkage to his employment
necessary for him to be considered a member.
V.
Analysis
A.
Should portions of the Affidavit of Amy Appleby,
filed by the Respondent, be struck out?
[25]
I agree with the Applicant that paragraphs 4 and
39 of the Affidavit of Amy Appleby [the Appleby Affidavit] should be struck out
as argumentative. These paragraphs express a legal conclusion that the
Applicant no longer met the definition of “member”
under the Act, which is precisely the issue that the Court must decide in this
application. The other impugned paragraphs of the Appleby Affidavit (paragraphs
6 and 32 to 38) contain references to provisions of the Act and relevant Career
Management Bulletins and Standing Orders and, on my reading of their context,
represent an effort to provide the Court with a narrative, grounded in the
legislative and procedural backdrop, of the history of the matter that gives
rise to this application. They are not argumentative and fit within the
parameters recognized as acceptable in Delios v
Canada (Attorney General), 2015 FCA 117:
[42] Accordingly, as a general rule, the
evidentiary record before the Federal Court on judicial review is restricted to
the evidentiary record that was before the administrative decision-maker. In
other words, as a general rule, evidence that was not before the administrative
decision-maker and that goes to the merits of the matter before the Board is
not admissible on judicial review. As a result, most affidavits filed on
judicial review only attach the record that was before the administrative
decision-maker, without commentary. This is proper. See generally Connolly
v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44 (F.C.A.) at
paragraph 7, citing Access Copyright, above at paragraphs 19-20.
[43] There are narrow, principled exceptions
to the general rule against filing evidence on judicial review that was not
before the administrative decision-maker: Access Copyright, above at
paragraph 20. In the case before us, the Federal Court invoked one of the
exceptions, the "general background" exception. The discussion that
follows is limited to this exception.
[44] Under this exception, a party can file
an affidavit providing "general background in circumstances where that
information might assist [the review court to understand] the issues relevant
to the judicial review": Access Copyright, above at paragraph
20(a).
[45] The "general background"
exception applies to non-argumentative orienting statements that assist the
reviewing court in understanding the history and nature of the case that was
before the administrative decision-maker. In judicial reviews of complex
administrative decisions where there is procedural and factual complexity and a
record comprised of hundreds or thousands of documents, reviewing courts find
it useful to receive an affidavit that briefly reviews in a neutral and
uncontroversial way the procedures that took place below and the categories of
evidence that the parties placed before the administrator. As long as the
affidavit does not engage in spin or advocacy - that is the role of the
memorandum of fact and law - it is admissible as an exception to the general
rule.
[46] But "[c]are must be taken to
ensure that the affidavit does not go further and provide evidence relevant to
the merits of the matter decided by the administrative decision-maker, invading
the role of the latter as fact-finder and merits-decider": Access
Copyright, above at paragraph 20(a).
[26]
I also note that paragraphs 32 to 38 of the Appleby Affidavit reference exhibits, but the Applicant has
confirmed that no issue is taken with those documents forming part of the
record before the Court.
[27]
My decision on this preliminary issue is that paragraphs
4 and 39 of the Appleby Affidavit are struck out, but the other impugned
paragraphs and exhibits referenced therein will remain.
B.
What is the applicable standard of review?
[28]
The Respondent disagrees with the Applicant’s reliance
on Flood and Derakhshan, as authority for adoption of a
correctness standard, on the basis that those cases predate Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir]. Although the Supreme Court in Dunsmuir
states at paragraph 57 that existing jurisprudence may be helpful in
identifying questions that generally fall to be determined under the
correctness standard, the Respondent argues that the several post-Dunsmuir
cases [Schamborski at para 50; Smith v Canada (AGC), 2009 FC 162
at paras 13-14, Sansfaçon v Canada
(AGC), 2008 FC 110 at paras 14-15; Canada (AGC) v Boogaard, 2015 FCA
150 at para 33; Rehill v Canada (AGC), 2011 FC 1348 at para 16; and, Mousseau
v Canada (AGC), 2012 FC 1285 at para 15] that have held the appropriate
standard of review for decisions of RCMP adjudicators to be reasonableness,
currently represent better authority.
[29]
The Applicant argues that Flood employs consideration of the factors subsequently approved in Dunsmuir,
in identifying the applicable standard of review, and therefore remains
good authority.
[30]
I agree with the Respondent that the evolution of the jurisprudence
favours adoption of the standard of reasonableness in the case at hand. I
consider the analysis in paragraph 15 of Mousseau v Canada (Attorney
General), 2012 FC 1285 to apply to the decision to be reviewed in this
application:
[15] In the case of a judicial review of a
decision of an RCMP adjudicator, given the adjudicator’s specialized expertise and broad powers with
regard to the questions before him or her, “great deference should be given to
the Adjudicator in this matter” (Sansfaçon v Canada (Attorney General),
2008 FC 110 citing Shephard v Canada (Royal Canadian Mounted Police),
2003 FC 1296 at paras 35-36; Smith v Canada (Attorney General), 2005 FC
868 at para 13; Gillis v Canada (Attorney General), 2006 FC 568 at para
27), especially when it involves an internal grievance process and internal
policies at the RCMP. Therefore, the applicable standard of review is
reasonableness. Consequently, this Court must determine whether the findings
are justified, transparent and intelligible, and fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[31]
In so concluding, I note that Flood and Derakhshan do not address precisely the same issue that
is before the Court in the case at hand. While those decisions dealt with
issues of standing, they arose in the context of adjudicators’ decisions
whether a member had shown the negative personal impact or prejudice necessary
to create standing. They did not involve decisions on whether a grievor could
be considered a “member” for purposes of the
Act. I therefore find more influential the decisions cited by the Respondent
which include the recent decision of the Federal Court of Appeal in Canada
(AGC) v Boogaard, 2015 FCA 150, holding that the Commissioner’s decisions
should be reviewed on a standard of reasonableness, and the following analysis
in Schamborzki:
[54] The mere fact that jurisdiction is
declined does not render the question a true question of jurisdiction or vires.
Though it is true that Adjudicator Guertin declined to hear the matter citing
section 25 which limited his jurisdiction, I cannot agree that the question for
judicial review was the question of his jurisdiction. In my opinion, the true
question before Adjudicator Guertin was not the outer limits of his
jurisdiction under section 25, but whether that section had been triggered at
all. This was a determination by Adjudicator Guertin that, “The original RFI
presented to Supt. McCloskey dealt with the same promotion . . .”. Yet, the
proper interpretation of section 25 does not appear to be at issue. That leaves
me to surmise that it is only his determination of mixed fact and law that lies
in dispute and not a jurisdictional matter at all.
[55] Since I have determined that it is not
a question of pure jurisdiction, the reasonableness standard shall apply.
[32]
This analysis has relevance to the present case.
While the Adjudicator declined to consider the Applicant’s grievance on the
merits, on the basis of his conclusion that the Applicant had no standing, this
does not involve a true question of jurisdiction such as would militate in
favour of the correctness standard. The Adjudicator was tasked with determining
whether the Applicant met the requirements of the Act necessary to be entitled
to present his grievance. This was a determination of mixed fact and law which
attracts a reasonableness standard.
C.
Did the Adjudicator err in determining that the
Applicant did not have standing?
[33]
Notwithstanding my conclusion that the
Adjudicator’s decision attracts a reasonableness standard, and that he is
accordingly entitled to deference, I find that his decision not to grant
standing to the Applicant to pursue his grievance was unreasonable.
[34]
The starting point for consideration of the issue of
standing is section 31(1) of the Act:
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31. (1) Subject to subsections (1.1) to (3), if a member is aggrieved
by a decision, act or omission in the administration of the affairs of the
Force in respect of which no other process for redress is provided by this
Act, the regulations or the Commissioner’s standing orders, the member is
entitled to present the grievance in writing at each of the levels, up to and
including the final level, in the grievance process provided for by this
Part.
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31. (1) Sous réserve des paragraphes (1.1) à
(3), le membre à qui une décision, un acte ou une omission liés à la gestion
des affaires de la Gendarmerie causent un préjudice peut présenter son grief
par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs
prévue à la présente partie dans le cas où la présente loi, ses règlements ou
les consignes du commissaire ne prévoient aucune autre procédure pour réparer
ce préjudice.
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[35]
To present a grievance, the grievor must be a “member”, the definition of which in the Act does not
expressly contemplate a retired member of the RCMP. However, it is common
ground between the parties that the term “member”
is to be given a more expansive definition so as to include, in some
circumstances, former members who have retired. The Adjudicator so noted in
paragraph 36 of his decision, observing that both the ERC and the Commissioner
have agreed that the meaning of “member” can be
extended in the grievance process to include retired members when there is
sufficient linkage with employment-related issues that arose before the member
retired. However, the Adjudicator held that such linkage did not exist in the
case at hand.
[36]
The parties have not referred to any jurisprudence of this Court that
prescribes the circumstances in which the meaning of “member” can be extended in the
grievance process to include retired members. They refer to recommendations of
the ERC and decisions of the Commissioner but correctly acknowledge that, while
these “decisions” may inform the Court’s
analysis, they are of course not binding. The Applicant argues that the
language in some of these decisions refers to the requirement for a connection
between the grievance and the employment relationship, which the Applicant says
exists in the case at hand. The Respondent argues that these decisions all
involve some form of more direct connection between the grievance and the
previous employment than applies to the Applicant’s grievance.
[37]
I agree with the Applicant’s position, that the rationale underlying the
ERC and Commissioner decisions referenced by the parties is the existence of a
connection between the grievance and the employment relationship. In the
Recommendation made by the ERC in G-324, the ERC stated as follows at
paragraphs 17 to 18:
[17] I disagree with the Level 1 adjudicator’s conclusion
regarding the Grievor’s standing because I consider that he misinterpreted
the reason why s.31(1) of the Act refers to “any member…aggrieved by
any decision” in describing the scope and purpose of the grievance right. I
would characterize the adjudicator’s interpretation as having been a literal
interpretation which did not give any consideration to the purpose for which
Parliament saw fit to provide within the RCMP a similar recourse to challenge
management decisions as that which exists in other labour relations contexts.
In my opinion, the adjudicator’s interpretation of the Act was not
consistent with the rule of statutory interpretation established by s. 12 of the
Interpretation Act, R.S.C. 1985, c. I-23 which states that “[e]very
enactment is deemed remedial, and shall be given fair, large and liberal
construction and interpretation as best ensures the attachment of its objects”.
[18] The indication in the Act that the right of
grievance is one that can be exercised by RCMP members only obviously was
intended to refer to the fact that this recourse was not intended as a means
for the general public to challenge RCMP decisions. For that purpose, there
exists a different recourse provided for by the Act, which consists in
the filing of a public complaint. I do not disagree with the Level 1
adjudicator’s assertion that retired members are no longer considered to be
members for the purposes of the Act but that fact was not relevant for
the purpose of deciding whether the Grievor had standing. A far more relevant
consideration was the fact that the decision which was being grieved is one
that pertained to a harassment complaint that the Grievor had presented as a
member of the Force and which addressed events that affected him personally in
his capacity as a member. The wording “any member… aggrieved by any decision”
in s. 31(1) merely imposes as a requirement that the decision in question be
one that pertains to the employer-employee relationship. That wording is
therefore sufficiently broad to capture instances where a member has retired
between the time that a decision was sought and the time that the decision was
finally issued.
[38]
In his subsequent Decision in G-324, the Commissioner ruled that the
grievor did have standing, noting that the grievance in that case was a
continuation of a harassment complaint that the grievor had filed while still
an active member of the RCMP. The Respondent would distinguish this decision on
the basis of the connection between the grievance and the previous harassment
complaint. However, while that particular connection did exist in that case, I
find the rationale for both the Recommendation and the Decision was the
existence of a connection with the employment relationship and that it need not
be that particular connection (the grievance being a continuation of a previous
complaint) for the rationale to apply. I consider the reasoning in the ERC’s
Recommendation, that the Interpretation Act, R.S.C. 1985, c.I-23
requires the Act to be afforded a large and liberal interpretation, to be
compelling and supportive of this rationale.
[39]
The Commissioner’s Decision in G-332, as summarized by his office,
stated as follows:
On the issue of standing, the Commissioner ruled that it was
essential to examine whether the subject-matter of the grievance concerned an
employment issue. In the present case, where the grievance related to a benefit
that accrued to the member as a result of his service with the RCMP, access to
the grievance process was reasonable given that the grievance process was
designed to resolve disputes arising from the employer-employee relationship
between the Force and its members. This grievance concerned a change to a
retirement benefit that was available to the Grievor for up to two years after
retirement. Therefore, the Commissioner ruled that although the Grievor was
retired, he had standing to present his grievance. The Commissioner further
commented that the standing of retired members to grieve must be determined on
a case-by-case basis.
[40]
Again, while there was a particular connection
in the G-332 case, the rationale underlying the decision to grant standing was
the fact that the grievance concerned a dispute arising from the employment
relationship.
[41]
Against this backdrop, being conscious of the deference to be
afforded to the Adjudicator, I must consider the reasonableness of the
Adjudicator’s decision that there is not sufficient linkage between the
Applicant’s grievance and employment-related issues that arose before the
Applicant retired. There is certainly some degree of linkage between the
Applicant’s request to participate retroactively in promotional processes and
his employment relationship with the RCMP. This is not an example of a member
of the public challenging an RCMP decision. It is a challenge brought by a
former employee, which has been brought following his retirement because the
challenge flows from a judicial decision and resulting settlement related to
his employment that did not occur until after his retirement.
[42]
This brings us to the significance of the Settlement. It is
apparent from the Adjudicator’s reasons that his conclusion, that there is
insufficient linkage between the Applicant’s grievance and employment-related
issues that arose before the Applicant retired, stems from his analysis of the
impact of the Settlement. In paragraphs 41 to 43 of his decision, the
Adjudicator reaches a conclusion that the Settlement concluded all issues
arising from the initial non-promotion decision, that the nature of the
Settlement demonstrates an intention to “wipe the slate clean for all purposes”, and that
notwithstanding the Applicant’s assertion that he always intended to compete
for promotions, the Settlement “closed
that door”.
[43]
In effect, the Adjudicator has interpreted the Settlement
Agreement to represent a release of the grievance that the Applicant now wishes
to present. I note that the Adjudicator’s reasons do not include a
consideration of the meaning of section 5 of the Settlement Agreement, which
speaks to what the Settlement applies to and what it does not. However, the
concern I have with the Adjudicator’s treatment of the Settlement is not a
function of whether he has interpreted it correctly but rather the fact that he
interprets it in considering whether the Applicant qualifies as a “member” for purposes of the
Act so as to have standing to present his grievance.
[44]
It may or may not be that the effect of the Settlement is to
preclude the Applicant pursuing whatever entitlements he says would result from
an opportunity to participate retroactively in promotional processes. But this
is an issue to be raised by the Respondent, if this were to be the Respondent’s
position, when the merits of the Applicant’s grievance are being considered.
The Respondent argues that the Adjudicator cannot be faulted for analyzing the
Settlement, because the Applicant placed it in issue. However, it does not
appear that either party was arguing that rights to pursue the new grievance were
either created or foreclosed by the Settlement. The Adjudicator’s reasons refer
to the Applicant’s position being that nothing in the Settlement prevents him
from applying for promotional opportunities and the Respondent’s position as
being that nothing in the Settlement implies recognition that the Applicant had
a right to be promoted or gives him a right to apply for promotion. The reasons
then refer to “common links”
as including that the Settlement does not specifically allow or preclude the
Applicant from applying for further promotional opportunities.
[45]
The Adjudicator’s subsequent conclusion that the Settlement did
preclude the Applicant from competing for promotions therefore represents a
premature foray into the merits of the grievance, which should not have formed
part of the Adjudicator’s consideration of the Applicant’s standing. Whether or
not he qualified for the extended definition of “member” should not depend on whether his grievance
will ultimately succeed on its merits or be foreclosed by the Settlement or any
other issue.
[46]
Absent the analysis of the effect of the Settlement, there could
well be a linkage between the Applicant’s grievance and his employment
relationship which is sufficient to support standing. I therefore find that the
Adjudicator’s decision is outside the range of acceptable outcomes and that
this matter should be referred to another adjudicator for determination.
VI.
Costs
[47]
Counsel for both parties agreed at the hearing of this application that
costs should be in the cause and calculated in accordance with
the lower to middle range of units under Column IV of the Tariff B Table. The
Applicant having succeeded in this application, costs shall be payable by the
Respondent in an amount to be agreed by the parties or, failing agreement,
to be assessed in accordance with the lower to middle range of
units under Column IV.
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