Docket:
A-481-12
Citation: 2013 FCA 201
CORAM:
PELLETIER J.A.
TRUDEL J.A.
MAINVILLE J.A.
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BETWEEN:
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STEVE BLACK
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Appellant
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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
PELLETIER J.A.
[1]
In November 2010, Sergeant Steve Black’s (Sgt. Black)
commanding officer decided to institute formal disciplinary proceedings against
him for alleged violations of the Royal Canadian Mounted Police’s (RCMP) Code
of Conduct. Later that month, an adjudication board was appointed by a third
party to hear the complaint against Sgt. Black and the commanding officer was notified
of its appointment. Subsection 43(4) of the Royal Canadian Mounted Police
Act, R.S.C. 1985 c. R-10 (the Act) requires the commanding officer to give
Sgt. Black notice of the hearing and particulars of the allegations against him
“forthwith” after being notified of the appointment of the adjudication board.
The Notice of Disciplinary Hearing (Notice) was provided to Sgt. Black on September
30, 2011, some 10 months or so after the commanding officer was notified of the
appointment of the adjudication board.
[2]
When the adjudication board convened, Sgt. Black argued
that the commanding officer’s failure to provide the Notice “forthwith”
deprived the adjudication board of jurisdiction and asked that the charges
against him under the Code of Conduct be dismissed. The adjudication board
decided that, in the circumstances, the Notice had been served “forthwith” and
dismissed the motion. The hearing was then adjourned, to be continued at a
later date.
[3]
In the interim, Sgt. Black brought an application for
judicial review of the adjudication board’s decision. The issue before the
Federal Court was whether it should judicially review the adjudication board’s
interlocutory decision. Sgt. Black argued that the issue went to the
adjudication board’s jurisdiction, an exceptional circumstance that justified
his recourse to judicial review prior to exhausting his internal remedies. The
respondent Attorney General of Canada (the Attorney General) maintained that
Sgt. Black was bound to exhaust his internal remedies before resorting to
judicial review, to which Sgt. Black replied that his statutory right of appeal
to the Commissioner did not constitute an adequate alternate remedy, hence the
exceptional circumstances justifying recourse to judicial review.
[4]
The Federal Court, relying on this Court’s decision in CB
Powell Ltd v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R.
332 (CB Powell), held that the “jurisdictional” issue did not constitute
an exceptional circumstance which justified a pre-emptive recourse to judicial
review. The Court went on to find that the right of appeal to the Commissioner
provided at section 45.14 of the Act was an adequate alternate remedy. In light
of those conclusions, the Federal Court dismissed the application for judicial
review without deciding if the Notice was served “forthwith”, leaving that
matter to be considered if and when Sgt. Black appealed the adjudication
board’s final decision to the Commissioner.
[5]
For the reasons that follow, I would dismiss the
appeal.
DISCUSSION
[6]
The issue in this appeal is whether the Federal Court
was justified in declining to hear Sgt. Black’s application for judicial
review. Since this is an appeal from the Federal Court
on questions of law, the standard of review is correctness.
[7]
The jurisprudence of this Court holds that it will not
intervene with respect to an interlocutory decision of an administrative
tribunal unless there are exceptional circumstances: see Air Canada
v. Lorenz (T.D.), [2000] 1 F.C. 494, [1999] F.C.J. No. 1383 (Lorenz)
at paragraphs 37-38. Sgt. Black seeks to outflank this jurisprudence by arguing
that the decision in this case is a final decision.
[8]
It is true that the adjudication board’s decision is
final in the sense that it has decided the issue and that it has no plans to
revisit it. That said, the adjudication board’s decision simply deals with a
procedural matter that is not determinative of, the substantive issue between
the parties, namely whether Sgt. Black has violated the Code of Conduct. It is
therefore an interlocutory decision: see Reebok Canada v. Canada (Deputy Minister of National Revenue, Customs and Excise - M.N.R.), [1995]
F.C.J. No. 220 at paragraphs 7-11.
[9]
Sgt. Black argues that the fact that his challenge goes
to the jurisdiction of the adjudication board is an exceptional circumstance, a
position that is supported by the jurisprudence which he cites, specifically Pfeiffer
v. Redling, [1996] 3 F.C. 584 (Pfeiffer), Lorenz, cited above,
and Secord v. Saint John (City) Board of Police Commissioners, 2006 NBQB
65, 300 N.B.R. (2d) 202 (Secord). Each of these cases involved a
challenge to a tribunal’s jurisdiction to proceed with the matter before it. In
Pfeiffer and in Secord, the reviewing court held that an attack
on the tribunal’s “existence” was an exceptional circumstance. In Lorenz,
Evans J., as he then was, found that while exceptional circumstances could
justify judicial intervention with respect to an interlocutory decision, an
allegation of bias against the tribunal member was not such a circumstance.
[10]
In my view, this jurisprudence must be read in the
light of this Court’s decision in CB Powell. While not excluding the
possibility that particular facts might justify judicial intervention with respect
to an interlocutory decision, this Court reaffirmed the principle that the
circumstances must be truly exceptional. In particular, the suggestion that a
particular issue is jurisdictional does not meet the very high threshold for
intervention:
Over thirty years ago, that approach was discarded: C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227. In that case, Dickson J.
(as he then was), writing for a unanimous Supreme Court declared (at page 233),
"The courts, in my view, should not be alert to brand as jurisdictional,
and therefore subject to broader curial review, that which may be doubtfully
so." Recently, the Supreme Court again commented on the old discarded
approach, disparaging it as "a highly formalistic, artificial 'jurisdiction'
test that could easily be manipulated": Dunsmuir, supra, at paragraph 43. Quite simply, the use of the
label "jurisdiction" to justify judicial interference with ongoing
administrative decision-making processes is no longer appropriate.
…
It is not surprising, then, that courts all across Canada have
repeatedly eschewed interference with intermediate or interlocutory
administrative rulings and have forbidden interlocutory forays to court, even
where the decision appears to be a so-called "jurisdictional" issue:
see e.g., Matsqui Indian
Band, supra; Greater Moncton International Airport
Authority, supra at
paragraph 1; Lorenz v. Air
Canada, [2000] 1 F.C.
494 (T.D.) at paragraphs 12 and 13; Delmas, supra; Myers v. Law Society of Newfoundland (1998), 163 D.L.R. (4th) 62 (Nfld. C.A.); Canadian National Railway Co. v. Winnipeg City
Assessor (1998), 131
Man. R. (2d) 310 (C.A.); Dowd
v. New Brunswick Dental Society (1999), 210 N.B.R. (2d) 386, 536 A.P.R. 386 (C.A.).
CB Powell, cited above, at paragraphs 42
and 45
[11]
As a result, the allegation
of jurisdictional error does not, in and of itself, constitute an exceptional
circumstance justifying judicial intervention with respect to an interlocutory
decision.
[12]
Sgt. Black seeks to supplement his exceptional
circumstances argument by claiming that the right of appeal in section 45.14 of
the Act is not an adequate alternate remedy because it does not allow him to
raise issues of jurisdiction. The relevant portions of section 45.14 are
reproduced below:
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45.14 (1) Subject
to this section, a party to a hearing before an adjudication board may appeal
the decision of the board to the Commissioner in respect of
(a) any
finding by the board that an allegation of contravention of the Code of
Conduct by the member is established or not established; or
(b) any
sanction imposed or action taken by the board in consequence of a finding by
the board that an allegation referred to in paragraph (a) is
established.
(2) For the purposes of this
section, any dismissal of an allegation by an adjudication board pursuant to
subsection 45.1(6) or on any other ground without a finding by the board that
the allegation is established or not established is deemed to be a finding by
the board that the allegation is not established.
(3) An appeal lies to the
Commissioner on any ground of appeal, except that an appeal lies to the
Commissioner by an appropriate officer in respect of a sanction or an action
referred to in paragraph (1)(b) only on the ground of appeal that
the sanction or action is not one provided for by this Act.
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45.14 (1) Sous
réserve des autres dispositions du présent article, toute partie à une
audience tenue devant un comité d’arbitrage peut en appeler de la décision de
ce dernier devant le commissaire :
a) soit en ce qui concerne la conclusion selon laquelle est
établie ou non, selon le cas, une contravention alléguée au code de
déontologie;
b) soit en ce qui concerne toute peine ou mesure imposée par
le comité après avoir conclu que l’allégation visée à l’alinéa a) est
établie.
(2) Pour l’application du présent
article, le rejet par un comité d’arbitrage d’une allégation en vertu du
paragraphe 45.1(6) ou pour tout autre motif, sans conclusion sur le
bien-fondé de l’allégation, est réputé être une conclusion portant que cette dernière
n’est pas établie.
(3) Le commissaire entend tout
appel, quel qu’en soit le motif; toutefois, l’officier compétent ne peut en
appeler devant le commissaire de la peine ou de la mesure visée à l’alinéa
(1)b) qu’au motif que la présente loi ne les prévoit pas.
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[13]
Sgt. Black argues that his right of appeal is limited
to whether any of the allegations against him have been established and if so,
whether the sanction imposed is one provided by law. He concludes from this
that he cannot raise issues of jurisdiction in an appeal to the Commissioner. He
goes on to say that subsection 45.14(3), which refers to “any ground of appeal”
does not “extend the Commissioner’s appellate jurisdiction beyond that already
set out in subsection 45.14(1)”: see Appellant’s Memorandum of Fact and Law, at
paragraph 21.
[14]
In my view, Sgt. Black’s reading of section 45.14 is
excessively narrow. Granted, the words used to confer the right of appeal are
somewhat unusual in the administrative law context, but they are undoubtedly
familiar to those whose primary frame of reference is the Criminal Code
R.S.C. 1985 c. C-46:
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675. (1) A
person who is convicted by a trial court in proceedings by indictment may
appeal to the court of appeal
(a) against
his conviction
(i) on any
ground of appeal that involves a question of law alone,
(ii) on
any ground of appeal that involves a question of fact or a question of mixed
law and fact, with leave of the court of appeal or a judge thereof or on the
certificate of the trial judge that the case is a proper case for appeal, or
(iii) on
any ground of appeal not mentioned in subparagraph (i) or (ii) that appears
to the court of appeal to be a sufficient ground of appeal, with leave of the
court of appeal; or
(b) against
the sentence passed by the trial court, with leave of the court of appeal or
a judge thereof unless that sentence is one fixed by law.
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675. (1) Une
personne déclarée coupable par un tribunal de première instance dans des
procédures sur acte d’accusation peut interjeter appel, devant la cour
d’appel :
a) de sa déclaration de culpabilité :
(i) soit
pour tout motif d’appel comportant une simple question de droit,
(ii) soit
pour tout motif d’appel comportant une question de fait, ou une question de
droit et de fait, avec l’autorisation de la cour d’appel ou de l’un de ses
juges ou sur certificat du juge de première instance attestant que la cause
est susceptible d’appel,
(iii) soit
pour tout motif d’appel non mentionné au sous-alinéa (i) ou (ii) et jugé
suffisant par la cour d’appel, avec l’autorisation de celle-ci;
b) de la sentence rendue par le tribunal de première instance,
avec l’autorisation de la cour d’appel ou de l’un de ses juges, à moins que
cette sentence ne soit de celles que fixe la loi.
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[15]
As the text of subsection 675(1) makes clear, the object
of an appeal (conviction, sentence) does not dictate the ground of
appeal (error of law, question of mixed fact and law).
[16]
So it is for section 45.14 of the Act. Subsection
45.14(3) allows Sgt. Black to appeal against a finding that he has violated the
Code of Conduct on any ground which is capable of resulting in a reversal of
the adjudication board’s finding, including a lack of jurisdiction. The
distinction between subsection 45.13(1) and subsection 45.13(3) is the
distinction between the object of an appeal and the grounds of
that appeal.
[17]
As a result, Sgt. Black’s argument that his right of
appeal is not an adequate alternate remedy fails.
[18]
Finally, Sgt. Black argues that the fact that he must
wait until the adjudication board renders its final decision before he can
appeal its decision with respect to jurisdiction is an exceptional circumstance.
He contends that a favourable decision on the jurisdiction issue at this
juncture would put an end to the proceeding, thus sparing him, and others, the
time and expense of a full hearing on the merits.
[19]
This argument is fully answered by the following passage from CB
Powell:
This [the policy of discouraging
judicial review of interlocutory decisions] prevents fragmentation of the
administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste
associated with hearing an interlocutory judicial review when the applicant for
judicial review may succeed at the end of the administrative process anyway ….
Further, only at the end of the administrative process will a reviewing court
have all of the administrative decision-maker's findings; these findings may be
suffused with expertise, legitimate policy judgments and valuable regulatory
experience …. Finally, this approach is consistent with and supports the
concept of judicial respect for administrative decision-makers who, like
judges, have decision-making responsibilities to discharge….
CB Powell, at paragraph 32 (citations
omitted)
[20]
Sgt. Black’s desire to spare himself the time and
expense of a full hearing on the merits has saddled him with the cost of
proceedings in this Court and in the Federal Court and has delayed the
resolution of the outstanding allegations against him by more than a year.
[21]
I would therefore dismiss the appeal with costs.
"J.D. Denis Pelletier"
“I agree
Johanne Trudel J.A.”
“I agree
Robert M. Mainville J.A.”
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