Date: 20070316
Docket: A-260-06
Citation: 2007 FCA 112
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
EVANS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
BRENDA GILLIS
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
The issue
to be decided in this case is whether an adjudicator committed a reviewable
error when he dismissed a complaint by a member of the Royal Canadian Mounted
Police that she had been wrongly deprived of a promotion because the promotion
process was not complete when it was cancelled.
[2]
Brenda
Gillis is a civilian employee of the RCMP. On September 9, 2003, she was told
that her transfer to a supervisory position at the TO-03 level had been
authorized on the basis of her success in a job competition, and that her
promotion would be effective as of September 29, 2003. She was congratulated
by colleagues to whom copies of the transfer authorization had been circulated.
Early in September, Ms Gillis started to receive communications relating to her
new responsibilities.
[3]
However,
on September 18, she was advised that the posted qualifications for the job had
been wrongly described and that, since she did not meet the correct
qualifications, her promotion to this position would be an error. An e-mail,
dated September 25, was sent to Ms Gillis and others stating that, because of
an error in the staffing process, Ms Gillis would not be assuming the TO-03
position on September 29. On November 3, the authorization of Ms Gillis’
transfer was formally cancelled.
[4]
On October
15, 2003, Ms Gillis submitted a grievance alleging that the refusal to permit
her to assume the supervisory TO-03 position was arbitrary. She claimed to have
suffered prejudice by being deprived of the promotion, which resulted in loss
of salary, pension and time in position, as well as in considerable personal
embarrassment. She rejected a compromise that was offered to her and chose to
pursue her grievance.
[5]
In a
decision dated July 4, 2005, an adjudicator, Inspector T.A. Hart, dismissed the
grievance, finding that the cancellation of the promotion was not in error,
since the promotion had not taken effect when it was cancelled on the ground
that Ms Gillis did not have the experience required by the correct job
description.
[6]
She
applied for judicial review to the Federal Court to set aside the adjudicator’s
decision. The Applications Judge granted the application and ordered the RCMP
to install Ms Gillis in the TO-03 position. His decision is reported as Gillis
v. Canada (Attorney General), 2006 FC 568.
[7]
This is an
appeal from that decision by the Attorney General, and is based on two grounds.
First, having selected reasonableness simpliciter as the appropriate
standard of review, the Judge erred by, in fact, reviewing the adjudicator’s
decision on a correctness standard. Second, in ordering that Ms Gillis be
installed in the TO-03 position the Judge not only exercised the adjudicator’s
discretion by fashioning a remedy himself, but also selected relief which the
adjudicator could not have awarded if he had found in favour of Ms Gillis.
[8]
In my
opinion, the appeal should be allowed, on the ground that the adjudicator’s
application of the relevant policies to the facts was not patently
unreasonable. Since I have concluded that the adjudicator made no reviewable
error in dismissing the grievance, I need not opine on the propriety of the
remedy awarded by the Judge.
B. THE DECISIONS BELOW
[9]
The
adjudicator found that the promotion process was under way when the mistake in
the job description was discovered and the decision to promote Ms Gillis was
reversed. However, since the process was not complete, the cancellation of her
promotion was not erroneous. The key passage of his reasons is as follows:
Having reviewed policy
on transfer, promotions and authorities, I am satisfied that the respondent was
within his authority to take the actions that he did once the error was called
to his attention. Although the transfer notice had been published which would
facilitate the promotion, the staffing action was not complete at that stage,
the complainant had not moved onto the position and no promotion notice had
been issued.
…
The member is not
promoted on the strength of a transfer notice. They are promoted at the end of
a transfer/promotion process that includes the selection process,
recommendations to the appropriate officer, acceptance of the Board's
recommendations, authorization to issue the transfer notice which starts the
process of moving the candidate from one position to another, departure from
the old post and arrival at the new post as indicated through the submission of
form A-22A and then the promotion notice published in the usual fashion
indicating the member has been transferred and promoted into a specific
position with an effective date, as established in CMM.F.1.
[10]
The
adjudicator held that, when Ms Gillis’ promotion was cancelled, the process had
only gone as far as the issue of the transfer authorization. The A-22A form,
which is signed when the person promoted starts the new job, had not been
submitted, and a promotion notice had not been issued.
[11]
The
adjudicator’s reasons also explain the importance of posting proper job
descriptions and the negative effects that mistakes can have on the efficiency
of the promotion system and on the confidence that employees have in its
fairness. In this case, the job posting had erroneously called only for
“documented experience” in a TO-02 position, which Ms Gillis had, not
“extensive experience” at that level (defined as five years or more), which she
did not.
[12]
The Judge
took the view that the adjudicator had wrongly found that Ms Gillis was not
entitled to the promotion, a matter which is not within the jurisdiction of
adjudicators to decide. Relying on section F.1.b. of an internal Career
Management Manual, the Judge held that a promotion takes effect in the RCMP
when “the member departs the old position”.
[13]
The Judge
held (at para. 38) that Ms Gillis was promoted when the transfer authorization
notice was circulated, because she had then “to the fullest extent possible,
departed her old position.” It was irrelevant that her departure was not “as
indicated on form A-22A” in accordance with F.1.b., since the completion of
this form was not a condition precedent to a promotion, and there was no
evidence before him “as to what form A-22A is” (para. 37).
[14]
Having
found that the cancellation of the promotion was in error and that Ms Gillis
had thereby suffered prejudice, he ordered (at para. 45) that she be “forthwith
be installed in the TO-03 position to which she is entitled” as corrective
action.
C. LEGISLATIVE FRAMEWORK
[15]
Commissioner’s
Standing Orders (Dispute Resolution Process for Promotions and Job
Requirements,
SOR/2000-141, enacted pursuant to subsections 21(2) and 31(1) of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10, governs the procedures
for the making and adjudication of grievances or “requests for intervention”,
as they are called in the arcane language of the RCMP promotion grievance
process.
[16]
Section 1
of the Standing Orders explains who adjudicators are.
|
“adjudicator”
means an officer or senior manager designated as an adjudicator by the
Commissioner.
|
«arbitre»
Officier
ou cadre supérieur désigné arbitre par le commissaire.
|
[17]
The mode
of appointment and the qualifications of adjudicators are set out in an RCMP Administration
Manual (Appeal Book, vol. 1 at p. 67).
D.
2. Pursuant
to subsection 5(2), RCMP Act and C.1, a senior officer designated by the
Commissioner will designate officers or senior managers as adjudicators.
D. 3. The
members responsible for human resources for the regions, in consultation with
other interested parties and the SRRs, will recommend the designation of
adjudicators based on the following general criteria:
D. 3. a.
ideally, a candidate should be mutually agreed upon by management and the SRRs;
D. 3. b.
a candidate should be legally trained, trained internally as an adjudicator, or
have experience in the adjudication process; and
D. 3. c.
a candidate should not be directly involved in the RCMP promotional processes.
[Emphasis
added]
[18]
Subsection
22(1) of the Standing Orders defines the jurisdiction of the adjudicator
as follows.
|
22(1) If a request for
intervention is not rejected under subsection 21(2), the adjudicator
(a)
shall dismiss the request for intervention; or
(b)
shall, if the adjudicator determines that a decision, act or omission is
erroneous and has prejudiced the complainant, order appropriate corrective
action.
|
22(1)
Si la demande d’intervention n’est pas rejetée aux termes du paragraphe
21(2), l’arbitre :
a) soit, rejette la demande;
b) soit, s’il conclut que la décision, l’acte
ou l’omission donnant lieu au différend est erroné et que le demandeur en a
subi un préjudice, ordonne la prise des mesures correctives indiquées.
|
[19]
Section 23
imposes a specific limitation on these powers.
|
23.
The decision of the adjudicator to grant a request for intervention shall not
extend to a determination of whether or not the complainant is entitled to be
promoted.
|
23.
Dans sa décision, l’arbitre ne peut se prononcer sur le droit du demandeur à
la promotion.
|
[20]
Section 25
contains a preclusive clause.
|
25.
The decision of the adjudicator that disposes of a request for intervention
is not subject to appeal or further review.
|
25.
La décision que l’arbitre rend à la suite d’une demande d’intervention n’est
pas susceptible d’appel ou de révision ultérieure.
|
[21]
Chapter 5, “Job
Descriptions and Job Requirements”, of the RCMP Career Management Manual
includes provisions dealing with the date of a promotion: Appeal Book, p. 263.
F.1. The effective date of a promotion will be:
F.1.a. the effective date of a classification
upgrading provided the member occupies the position on a permanent basis and is
authorized by the transfer/promotion process to remain in that position;
F.1.b. the date the member departs the old
position as indicated on form A-22A. The promotion date cannot precede the
authorized date of transfer or fulfillment of all conditions for promotion;
…
D. ISSUES AND ANALYSIS
1. Standard of review
[22]
I do not
agree with the Applications Judge’s conclusion that reasonableness simpliciter
is the standard of review appropriate for the adjudicator’s decision in this case.
In my view, a pragmatic and functional analysis indicates that patent
unreasonableness is the appropriate standard: see Shephard v. Fortin, 2003
FC 1296, 242 F.T.R. 42 at paras. 35-36, rev’d. on another ground 2004
FCA 254; Smith v. Canada (Attorney General), 2004 FC 320, 13 Admin. L.R.
(4th) 250 at para. 7.
[23]
First,
section 25 of the Standing Orders precludes any appeal or review of an
adjudicator’s decision. This is in the nature of a finality clause and is a
legislative indication of deference.
[24]
Second,
the questions in dispute involve the application to the facts of technical
provisions respecting the RCMP promotion and grievance process. For the most
part, the relevant documents in this case are administrative manuals, not legal
instruments. There is also a strong factual element in the questions decided by
the adjudicator concerning the RCMP promotions process. To the extent that the
questions are of mixed fact and law, fact predominates. This factor favours
considerable deference.
[25]
Third,
adjudicators are RCMP officers or senior managers. In my respectful opinion,
the Applications Judge erred when, in assessing expertise, he appeared to
regard as relevant the experience of the particular adjudicator whose decision
he was reviewing: para. 22.
[26]
For standard
of review purposes, the expertise of the administrative decision-maker under
review must be assessed by reference to the office or institution, not the curriculum
vitae of the decision-maker under review: see, for example, A.I. v.
Ontario (Director, Child and Family Services Act) (2005), 75 O.R. (3d)
663 (S.C.J. Div. Ct.)
at paras. 81-82.
[27]
More
relevant are the qualifications for adjudicators set out in the D.3.b. of the Administration
Manual quoted above, which provides that persons appointed as adjudicators should
have legal training, or training or experience as an adjudicator. Even though
these provisions are not contained in a statutory order, they were developed to
guide the exercise of discretion by the senior officer whom the Commissioner
designated under subsection 5(2) of the RCMP Act to appoint
adjudicators.
[28]
The fact
that adjudicators are members of the RCMP, and should have legal or directly
relevant training or experience in adjudication, indicates that they have
knowledge of the internal administration of the RCMP and of the process of
adjudication.
[29]
The
crucial question is whether the administrative decision-maker is better
equipped than the reviewing court to decide the issues in dispute. Even though
adjudicators are senior managers or officers of the RCMP, not independent
external arbitrators, the relative expertise factor favours considerable
deference in this case.
[30]
Fourth,
the purpose of the grievance process is to provide a fair, informed,
inexpensive and expeditious disposition of grievances, a factor which also
favours considerable deference.
[31]
The
question to be addressed now is whether the adjudicator’s reasons indicate that
his decision to dismiss Ms Gillis’ grievance was patently unreasonable.
2. Was it patently unreasonable
for the adjudicator to conclude that Ms Gillis had not been promoted?
[32]
Judicial
review for unreasonableness, whether patent or simple, must be conducted
largely on the basis of the reasons given by the administrative decision-maker:
Law Society of New
Brunswick
v. Ryan, 2003
SCC 20, [2003] 1 S.C.R. 247 at para. 49. It is never for the court reviewing
for unreasonableness to consider whether it would have come to the same
conclusion as the tribunal whose decision is under review.
[33]
In my
opinion, a review of the adjudicator’s reasons establishes that his decision is
not patently unreasonable; it is not “so flawed that no amount of curial
deference can justify letting it stand”: Law Society of New Brunswick at
para. 52. Indeed, the reasons of the adjudicator would also stand up to the
“somewhat probing examination” to which decisions reviewable on the
reasonableness simpliciter standard are subjected: Canada (Director
of Investigations and Research, Competition Act) v. Southam Inc., [1997] 1
S.C.R. 748 at para. 56.
[34]
In
particular, it was not patently unreasonable for the adjudicator to conclude on
the basis of the material before him that the transfer authorization document
did not effect the promotion. The authorization stated that it was not a notice
of promotion and that the promotion would not take effect for 30 days.
[35]
Nor was it
patently unreasonable for the adjudicator to find, in light of the provision in
F.1.b. of the Career Development Manual, that a promotion is complete
only when the individual starts in the job, as indicated by a signed form
A-22A. On this point, the Applications Judge stated that there was no evidence
before him explaining what form A-22A was. This is incorrect.
[36]
During
cross-examination on his affidavit, Sergeant McCann, an RCMP officer employed
in the Career Development and Resourcing branch, explained that “the full
promotion is not complete” until the officer in charge of Career Development
signs the promotion telex facsimile sheet, “indicating, in effect, that the
person has arrived and is in, so to speak, the chair doing the duties.” He
continued (Appeal Book, p 206):
There’s another form
which is referred to as the A-22A in which the incoming manager would sign off
that the person has basically affected the transfer into the position and is
doing those duties.
Later, he added (Appeal Book, pp. 212-13):
The promotion does not
take place until they physically start engaging in the duties of the new
position. At that time, incoming manager will acknowledge that on a form A-22A
that this person is now the incumbent and that the officer in charge of Career
Development Resourcing is given this notification the person is there, and it’s
at that time once again the OIC at Human Resources reviews the entire situation
and authorizes the promotion at that time. Once that facsimile is signed, that
is the official document that the person has been promoted …
The evidence of Sergeant McCann was uncontradicted. Ms
Gillis does not assert that an A-22A form was signed or that she had started to
perform the duties of a TO-03.
[37] The Applications Judge also
stated that the adjudicator erred in law by making a finding, contrary to
section 23 of the Standing Orders, as to whether Ms Gillis was
“entitled to be promoted”. I do not agree, even if this is a question on which
no curial deference is owed to the adjudicator.
[38] In my respectful opinion, the
adjudicator merely answered the question put to him by concluding that the
cancellation of Ms Gillis’ promotion was not in error, because the promotion
process was not complete when the mistake in the job description was
discovered.
E. CONCLUSIONS
[39] For these reasons, I would
allow the appeal, set aside the decision of the Federal Court, and dismiss the
application for judicial review, with costs in this Court and below.
“John M. Evans”
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
J. Edgar Sexton J.A.”
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