Docket: T-1197-16
Citation:
2016 FC 1331
Ottawa, Ontario, December 1, 2016
PRESENT: The Honourable Justice Mosley
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BETWEEN:
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MARCO CALANDRINI
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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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ORDER
AND REASONS
[1]
The applicant, Marco Calandrini, filed an
application for judicial review of the decision of Assistant Commissioner (A/Commr.)
Craig MacMillan of the Royal Canadian Mounted Police [RCMP] acting as the
Review Authority. This motion is seeking an order directing the respondent to
transmit unredacted and unedited documents contained within the Certified
Tribunal Record [CTR] as well as to provide the applicant with additional
documents pursuant to Rules 317 and 318 of the Federal Court Rules, SOR/98-106.
I.
BACKGROUND
[2]
The applicant is a civilian member of the RCMP
formerly employed at the Canadian Police College. Between August 31, 2012 and
October 29, 2013, sexual misconduct allegations were made against him for
actions involving a male co-worker.
[3]
In December 2014, the RCMP initiated a conduct
investigation into these allegations under subsection 40(1) of the Royal
Canadian Mounted Police Act, RSC 1985, c R-10 [RCMP Act]. The Ottawa Police
Service also conducted a criminal investigation but, on February 25, 2015,
decided not to lay criminal charges.
[4]
On September 10, 2015, Chief Superintendent (C/Supt.)
Marty Chesser, Commanding Officer of National Headquarters and a Conduct
Authority as defined under subsection 2(3) of the RCMP Act, held a conduct
meeting with Mr. Calandrini. C/Supt. Chesser informed Mr. Calandrini that all
three allegations against him were substantiated. On October 5, 2015, C/Supt.
Chesser imposed a conduct measure on Mr. Calandrini of 15 days’ pay (5 days per
allegation, 120 hours in total) under subsection 42(1) of the RCMP Act for the
findings of sexual misconduct. Mr. Calandrini has satisfied this financial
penalty.
[5]
On January 7, 2016, A/Commr. MacMillan, acting
as Review Authority under subsection 9(1) of the Commissioner’s Standing
Orders – Conduct, SOR/2014-291 [CSO – Conduct], became aware of the
findings of misconduct and the imposed conduct measure. The following day, he
requested a review of the conduct measure imposed on the applicant.
[6]
From January 18 to February 17, 2016, A/Commr.
MacMillan was out of the office for personal reasons. Between February 18 and
February 26, 2016, CBC News published a series of reports regarding alleged
improprieties at the Canadian Police College and identified Mr. Calandrini as
one of the alleged perpetrators.
[7]
On February 19, 2016, A/Commr. MacMillan decided
to proceed with a review under subsection 9(2) of the CSO – Conduct. That
provision allows a Review Authority to “review a
decision to determine if a finding is clearly unreasonable or a conduct measure
is clearly disproportionate to the nature and circumstances of the
contravention”.
[8]
On March 1, 2016, A/Commr. MacMillan sought a
retroactive extension of time to initiate a conduct hearing against the
applicant. The prescribed one-year limitation period had expired on November
25, 2015. On May 12, 2016, Chief Superintendent Raj Gill granted the extension
under subsection 47.4(1) of the RCMP Act. That decision is also the subject of
an application for judicial review in Federal Court file T-891-16, which will
be heard at the same time as this matter.
[9]
On May 30, 2016, A/Commr. MacMillan determined
that the penalty ordered against the applicant was “clearly
disproportionate” to his behaviour. He determined that it was in the
public interest to rescind the conduct measure under paragraph 9(3)(c) of the
CSO – Conduct and to initiate a conduct hearing per subsection 41(1) of the
RCMP Act. The decision to rescind the conduct measure and initiate a hearing,
served on the applicant on June 27, 2016, is the underlying decision under
review to which this motion relates.
[10]
In his Notice of Application for Judicial
Review, the applicant sought disclosure pursuant to Rule 317 of certified
copies of:
[A]ll documents, notes and correspondence
relating to the May 30, 2016, decision of the Review Authority, A/Commr.
MacMillan, rescinding the conduct measures previously imposed against CM
Calandrini on October 5, 2015, and directing that a conduct hearing be
initiated against him pursuant to section 41(1) of the RCMP Act.
[11]
On August 17, 2016, in response to the Rule 317
request, the respondent wrote to CM Calandrini and to the Federal Court
Administrator transmitting the CTR. In that letter, the respondent advised of
its objection, under Rule 318(2) of the Federal Court Rules, to the
transmission of six sets of emails in the CTR which had been redacted in black.
The respondent claimed solicitor-client privilege and privilege pursuant to
subsection 47.1(2) of the RCMP Act over these emails. In subsequent
correspondence, the respondent also asserted privilege based on “deliberative secrecy”.
[12]
The applicant disputed the objections made by
the respondent in correspondence dated August 23, 2016. The applicant advised
the respondent that a review of the CTR established that additional
documentation was before the decision-maker or should have been before the
decision-maker, and requested that this documentation be produced in the
judicial review proceedings. These documents were described as:
· “Binder
of information” referred to in email correspondence from A/Commr. MacMillan to
C/Supt. Michael O’Reilly, dated February 19, 2016, referred to at page 135 of
the CTR; and,
· The
“inquiry from the Commissioner” referred to in email correspondence from
A/Commr. MacMillan to C/Supt. Michael O’Reilly, dated February 19, 2016, referred
to at page 136 of the CTR.
[13]
With respect to producing this additional
documentation, the respondent took the position that these documents were not
before the decision-maker, A/Commr. MacMillan, when he rendered his decision to
rescind the conduct measures and initiate a hearing.
[14]
After this motion was brought and prior to the
hearing on October 19, 2016, the respondent advised the applicant and the Court
that it was no longer asserting claims of privilege based on subsection 47.1(2)
of the RCMP Act, solicitor-client privilege, nor deliberative secret to support
any redactions within the following documents:
A.
Email from Craig MacMillan to Stephen Foster
dated February 22, 2016 (CTR, p. 138);
B.
Emails between Craig MacMillan and Gregory Rose
(copied to Kelly Jobson and Stephen Foster) dated February 22, 29 and March 1,
2016 (CTR, pp. 139-143); and
C.
Emails between Stephen Foster, Gregory Rose, and
Craig MacMillan dated March 7, April 1, and May 12, 2016 (CTR, pp. 163-165,
185-188, 209).
[15]
These emails have been transmitted to the
applicant and are no longer in dispute in this motion. However, a redacted
email from Josianne Phenix to David Falls dated February 10, 2016 remains in
dispute. As produced in the CTR, that email bears the notation:
Document received by A/Commr MacMillan
redacted in package. Contents of email unknown.
[16]
At the hearing of this motion, it was clarified
that the applicant was not seeking the entire “Binder
of information” referred to in email correspondence from A/Commr.
MacMillan to C/Supt. Michael O’Reilly but rather a missing page relating to his
own case. That page was produced by the respondent following the hearing.
II.
ISSUES
[17]
Given the production of the additional material
the only issues which appear to remain are the following:
A.
Whether additional documents relating to “inquire from the Commissioner” must be produced; and
B.
Should an unredacted version of the email from
Josianne Phenix to David Falls dated February 10, 2016 be produced?
III.
ANALYSIS
A.
Whether additional documents relating to “inquiry from the Commissioner” must be produced.
[18]
As noted above, the reference to the “inquiry from the Commissioner” appears in email
correspondence from A/Commr. MacMillan to C/Supt. Michael O’Reilly, dated
February 19, 2016. In that email, A/Commr MacMillan states that while he was
away from the office on personal leave, on or about February 10, 2016 he became
aware that, as the result of an email to the Commissioner, the latter was
inquiring about the matter involving the applicant. A/Commr MacMillan goes on
to say that upon his return to work he briefly attended a meeting at the
Commissioner’s office regarding this matter and explained the procedure he was
following. He states that he had not read the email sent to the Commissioner.
[19]
It is trite law that only information that is
relevant to the underlying judicial review application must be produced under
Rule 317. Relevance is to be determined by reference to the grounds of review
set out in the originating Notice of Application and the applicant’s supporting
affidavit: Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455
(FC), 180 NR (C.A.) at para 10; leave to appeal to the Supreme Court of Canada
refused (1995), 198 NR 237n [Pathak].
[20]
A copy of any relevant statutory provisions referred
to in these reasons is attached as an appendix.
[21]
In this instance, the applicant did not raise
any issue relating to the “inquiry from the
Commissioner” in his Notice of Application. He named procedural fairness
as a ground of review in the Notice but only in relation to the alleged failure
of A/Commr. MacMillan, as Review Authority, to provide any or sufficient
reasons to substantiate his decision.
[22]
The applicant argues that he only became aware
of the inquiry upon delivery of the email correspondence from A/Commr. MacMillan
to C/Supt. Michael O’Reilly, dated February 19, 2016, as part of the CTR. He
says that this email suggests that there may be evidence that the Commissioner fettered
the discretion of the Review Authority to rescind the conduct measures and initiate
a conduct hearing. The applicant is not interested in the email to the
Commissioner from a civilian member but rather in any communication from the
Commissioner to A/Commr. MacMillan.
[23]
Further to questions from the Court at the
hearing of this motion, counsel for the respondent provided a statement from
the A/Commr:
I can advise that the C’r (Commissioner) has
never communicated orally or in writing any direction to me regarding the
exercise of the s.9 authority regarding this matter.
[24]
This statement is not before the Court in the
form of affidavit evidence but in a letter to the Court and to opposing counsel
from the respondent’s counsel. In that respect, it has no evidentiary value.
Should the respondent wish to adduce evidence on this topic for the judicial
review application, an affidavit will be required.
[25]
The limitation in Rule 317 is related to the
principle that a judicial review must be decided on the basis of the
information in the decision maker’s possession at the time the decision was
made: Access to Information Agency Inc v Canada (Transport), 2007 FCA
224, [2007] FCJ No 814 at para 7 [Access to Information]; see also Canada
(Public Sector Integrity Commissioner) v Canada, 2014 FCA 270, [2014] FCJ
No 1167 at para 4 [Public Sector Integrity Commissioner]; Ochapawace
First Nation v Canada (Attorney General), 2007 FC 920, [2007] FCJ No 1195
at para 19; aff’d 2009 FCA 124 [Ochapawace].
[26]
As Justice Pelletier noted in Access to
Information, above, at paragraph 17, Rule 317 does not serve the same purpose
as documentary discovery in an action. He elaborated at paragraph 21:
…The purpose of the rule is to limit
discovery to documents which were in the hands of the decision-maker when the
decision was made and which were not in the possession of the person making the
request and to require that the requested documents be described in a precise
manner. When dealing with a judicial review, it is not just a matter of
requesting the disclosure of any document that could be relevant in the hopes
of later establishing relevance. Such a procedure is entirely inconsistent with
the summary nature of judicial review. If the circumstances are such that it is
necessary to broaden the scope of discovery, the party demanding more complete
disclosure has the burden of advancing the evidence justifying the request. It
is this final element that is completely lacking in this case.
[27]
There are exceptions to this principle.
Materials that were not before the decision-maker may be considered relevant if
there is an allegation that the decision-maker breached procedural fairness,
committed jurisdictional error or where there is an allegation of a reasonable
apprehension of bias: Gagliano v Canada (Commission of Inquiry into the
Sponsorship Program and Advertising Activities – Gomery Commission), 2006
FC 720, [2006] FCJ No 917 at para 50 [Gagliano]; Canadian National
Railway Co v Louis Dreyfus Commodities Ltd., 2016 FC 101, [2016] FCJ No 71
at para 27 [Canadian National Railway]; Bernard v Professional
Institute of the Public Service of Canada, 2015 FCA 263, [2015] FCJ No 1396
at paras 14-28 [Bernard].
[28]
To be successful in obtaining disclosure of
material that was not before the decision-maker at the time the decision was
made, the applicant must raise a ground of review that would allow the Court to
consider evidence that was not before the decision-maker, and then demonstrate
that this ground of review has a factual basis supported by appropriate
evidence: Canadian National Railway Co, above, at para 27; Public
Sector Integrity Commissioner, above, at para 4.
[29]
Documents that were not before the
tribunal when it made its decision may be ordered to be produced if they are
found to be relevant to the judicial review application: Canadian
Broadcasting Corp v Paul, 2001 FCA 93, [2001] FCJ No 542 at paras 63-67 [Paul].
In Paul, the Court of Appeal held that it was appropriate to consider
additional documents which were relevant to the allegation that a report
submitted to the Canadian Human Rights Tribunal was biased and incomplete.
[30]
In this matter, there is no evidence of the
existence of any communication between the Commissioner and the Review
Authority beyond the vague allusion in A/Commr. MacMillan’s email to having
become aware of the Commissioner’s inquiry. That inquiry related to an email
from a civilian staff member that is not in evidence.
[31]
I agree with the respondent that what the
applicant is now asking for would amount to a request for discovery of the RCMP
at large and is beyond the scope of Rule 317. There is no evidence of any written
or oral communication beyond that described in the February 19, 2016 email.
B.
Should an unredacted version of the email from
Josianne Phenix to David Falls dated February 10, 2016 be produced?
[32]
As noted above, the applicant contends in his
Notice of Application that A/Commr. MacMillan’s decision is unreasonable
because of a lack of reasons or sufficiency of reasons. At first impression, it
was not clear to me how the Phenix email could be relevant to determining the
sufficiency of the Review Authority’s reasons when the decision was not
informed by the content of the email. The Supreme Court has set a threshold in
assessing the sufficiency of a decision-maker’s reasons: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] SCJ No 61 at paras 16-18. It remains open to the applicant to
argue on judicial review that the reasons do not meet that threshold but he
could do that without reference to the advice provided to the Conduct
Authority.
[33]
The applicant submits that this email is
relevant to the underlying judicial review because he believes that it likely
sets out precedents as well as the reasons and rationale for the Conduct
Authority’s determination that 15 days’ forfeiture of pay was an appropriate
penalty. That would be relevant, he contends, to the determination of whether
the conduct measures imposed were “clearly
disproportionate to the nature and circumstances of the contraventions”
and should have been before the Review Authority as the decision maker.
He also wants to have an unredacted version of this email before the Court on
judicial review to assist in determining whether the Review Authority provided
sufficient reasons for its decision. The Notice of Decision simply concludes:
Take notice
that in accordance with paragraph 9(3)(c) of the CSO, I find that the Measures
are clearly disproportionate to the nature and circumstances of the
Contraventions, and it is in the public interest to rescind the Measures and
initiate a hearing in accordance with subsection 41(1) of the RCMP Act.
[34]
The applicant contends that any privilege that
would otherwise be associated with this correspondence is explicitly waived due
to the following note from Josianne Phenix in the email:
As you may
know, the communication between conduct authorities and conduct authority
representatives (CAR) are privileged. I sought and obtained the authorization
from the CO to share the information he received from the CAR (Denys Morel) in
this matter.
[35]
Assuming that the content of the Phenix email
contains the information which the applicant believes it does, there is some
merit to the argument that it may be relevant to the determination of the
judicial review application. Any information about precedents relating to conduct
measures in other cases, for example, may be relevant to a determination of
whether the original finding is “clearly unreasonable”
or “clearly disproportionate”. While the email
was apparently not read by A/Commr. MacMillan, he would have, in the course of
conducting the review, presumably considered the rationale for the conduct
measure that was imposed.
[36]
The content of this email was prepared by a
Conduct Authority Representative, who is a lawyer at the Conduct Authority
Representative Directorate (CARD). If the lawyer provided the Conduct Authority
advice on the appropriate conduct measure range, that advice would be a
privileged communication subject to any waiver of the privilege. The content of
the email was shared with David Falls, and copied to two others, for the purposes
of determining whether to recommend a review under section 9 of the CSO –
Conduct.
[37]
The respondent submits that the statutory
privilege provided by subsection 47.1(2) of the RCMP Act, or solicitor-client
privilege, would attach to the redacted content in the Phenix email.
[38]
Subsection 47.1(2) reads as follows:
If a member or
conduct authority is represented or assisted by another person, communications
passing in confidence between them in relation to the grievance, proceeding or
appeal are, for the purposes of this Act, privileged as they were
communications passing in professional confidence between the member or the
conduct authority and their legal counsel.
[39]
The applicant argues that subsection 47.1(2)
does not apply to the Phenix email because the statutory privilege attaches
only to communications made in relation to a grievance, a proceeding or an
appeal. The applicant submits that the decision of the Review Authority to
rescind previously imposed conduct measures does not fall within any of those
three categories. Moreover, the applicant argues, even if the communication did
fall into either one of the three categories, there was an express waiver of
any privilege attaching to the content of the email when C/Supt. Chesser
authorized its disclosure to third parties.
[40]
The redacted communication at issue was in
relation to a grievance that was brought forth by the civilian member who
complained about the applicant’s behavior. The allegations were investigated
and ultimately substantiated by the conduct authority. It seems to me that at
least part of this process would have been completed under paragraph 47.1(1)(a)
(i.e. presentation of a grievance) of the RCMP Act. Throughout this process,
the conduct authority was provided with advice by a member of CARD. Such
advice, at first impression and without deciding the matter, would be
privileged under subsection 47.1(2).
[41]
For solicitor client privilege to apply to a
communication, it must be: (1)
made between a lawyer and a client; (2) entail the seeking or giving of legal
advice; and (3) intended to be kept confidential by the client: Solosky v
The Queen, [1980] 1 S.C.R. 821 at 837. It is not clear from the record on this
motion whether the content of the Phenix email contains legal advice that would
be protected under solicitor-client privilege but that is a reasonable
inference on the facts before the Court.
[42]
Section 29 of the CSO – Conduct defines a “Conduct Authority Representative” (CAR) as a “person who is authorized by the Director of the Conduct
Authority Representative Directorate to provide representation or assistance to
a conduct authority”. Further, section 29 defines “representation” as the “act
of representing a subject member or conduct authority, including providing
legal advice, litigation or advocacy for the purpose of these Standing
Orders” [Emphasis added].
[43]
Express waiver of a privilege will occur when
the holder knows of the existence of the privilege and voluntarily evinces an
intention to waive it: R v Youvarajah, 2011 ONCA 654, [2011] OJ No 4610
at para 146. The unredacted content of the Phenix email indicates that C/Supt.
Chesser was aware of the existence of the privilege as authorization was sought
from him to share it. In authorizing the sharing of that communication with a
third party, it is arguable that C/Supt. Chesser voluntarily waived the privilege.
[44]
The opposing argument is that as the sharing of
the communication was internal to the RCMP conduct authorities and advisors,
the “common interest” or “joint interest” exception to waiver would apply to
the communications. As such, the communication would remain privileged to the
outside world even though it was disclosed to a third party. For those
exceptions to apply, the parties (in this case the CO, the holder of privilege,
and the third party, being Dave Falls) would have to share a common goal: see
David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed
(Toronto: Irwin Law, 2015) at p 239.
[45]
I advised the parties at the hearing that I would
consider whether I would require production of the content of the email in
unredacted form for the Court’s review and invite further submissions on
whether the content was or was not privileged. Having considered the matter
further, it seems to me that the question of privilege would best be determined
on the hearing of the judicial review application with the benefit of full
argument with supporting evidence and authorities from the parties. For that
reason, I will order that an unredacted and unedited version of the email be
provided under seal to the Court to be opened only by the Application Judge
unless any claims of privilege respecting the content are abandoned by the
respondent prior to the hearing. It will remain open to the respondent to
present evidence and argument in support of any privilege claim it may wish to
assert respecting the content of the email and to the applicant to contest such
claim.
IV.
COSTS
[46]
The applicant has been largely successful and
deserves his costs. The filing of the motion resulted in the production of
further material. On October 14, 2016, four days prior to the motion hearing,
the respondent transmitted most of the documents at issue in the motion and
withdrew privilege claims initially asserted. I have found that a further
document will need to be produced in unredacted but sealed form subject to a
ruling as to its admissibility at the hearing of the underlying application.
[47]
The applicant initially sought costs on a
substantial indemnity basis. At the hearing, counsel acknowledged that there
were no precedents in support of awarding solicitor-client costs in the absence
of “reprehensible, scandalous or outrageous conduct”:
see for example Louis Vuitton Malletier S.A. v. Yang, 2007 FC 1179,
[2007] FCJ No 1528 at paras 54-60; and Dimplex North America Ltd v CFM Corp,
2006 FC 1403, [2006] FCJ No 1762 at para 8. The default position as I
stated in Dimplex, is Column III of the table to Tariff B. Here I think
the costs should fall in the middle of that column.
ORDER
THIS COURT ORDERS that:
1.
The Motion is granted in part;
2.
The Respondent is not required to produce
additional documents relating to “the inquiry from the
Commissioner”;
3.
In accordance with the reasons provided, if the
Respondent chooses to maintain a claim of privilege respecting the email from
Josianne Phenix to David Falls dated February 10, 2016, the Respondent shall
file with the Registry of the Court an unredacted and unedited copy of the
email under seal to be opened only by the Judge assigned to hear the underlying
Application for Judicial Review;
4.
Subject to any findings that the Application
Judge may make regarding the relevance and admissibility of the email including
any claim of privilege, it shall form part of the Certified Tribunal Record
before the Court; and
5.
As the Applicant has largely been successful, he
shall have his costs for this motion assessed at the middle of Column III of
the table to Tariff B.
“Richard G. Mosley”
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