Shephard v. Fortin, 2004 FCA 254

Date: 20040708

Docket: A-567-03

Citation: 2004 FCA 254

CORAM:        NADON J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                    PAUL VINCENT SHEPHARD

                                                                                                                                            Appellant

                                                                           and

                                                                 J.C.G. FORTIN

                                                                                                                               First Respondent

                                                                           and

                                         G. ZACCARDELLI, COMMISSIONER OF

                                             THE ROYAL CANADIAN MOUNTED

                                                                       POLICE

                                                                                                                           Second Respondent

                                                                           and

                                           HER MAJESTY THE QUEEN IN RIGHT

                                         OF CANADA AS REPRESENTED BY THE

                                         ROYAL CANADIAN MOUNTED POLICE

                                                                                                                              Third Respondent

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                            Fourth Respondent

                                         Heard at Ottawa, Ontario, on June 15, 2004.

                                Judgment delivered at Ottawa, Ontario, on July 8, 2004.

REASONS FOR JUDGMENT BY:                                                                        MALONE J.A.

CONCURRED IN BY:                                                                                                NADON J.A.

                                                                                                                                SHARLOW J.A.

Date: 20040708

Docket: A-567-03

Citation: 2004 FCA 254

CORAM:        NADON J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                    PAUL VINCENT SHEPHARD

                                                                                                                                            Appellant

                                                                           and

                                                                 J.C.G. FORTIN

                                                                                                                               First Respondent

                                                                           and

                                         G. ZACCARDELLI, COMMISSIONER OF

                                             THE ROYAL CANADIAN MOUNTED

                                                                       POLICE

                                                                                                                           Second Respondent

                                                                           and

                                           HER MAJESTY THE QUEEN IN RIGHT

                                         OF CANADA AS REPRESENTED BY THE

                                         ROYAL CANADIAN MOUNTED POLICE

                                                                                                                              Third Respondent

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                            Fourth Respondent

                                                    REASONS FOR JUDGMENT

MALONE J.A.

I.           Issue

[1]                Paul Vincent Shephard is a Constable in the Royal Canadian Mounted Police ("RCMP") who complains about unfair treatment in his quest to obtain the higher rank of Corporal. In particular, he asserts that a new three-stage promotion process is unfair because it denies all candidates access to their examination results and surrounding materials.

II.          Background Facts

[2]                Up until the year 2000, Constables seeking promotion were permitted to review their examination questions and answers. This necessitated that new examinations be developed annually at an average cost of over $400,000. Under new Commissioner's Standing Orders (Dispute Resolution Process for Promotion and Job Requirements), SOR/2000-141 (hereinafter "Promotions CSO") issued in 2000, the questions and answers are now not disclosed and the questions can be refined over time and reused at an annual cost of approximately $160,000. With some 750 to 800 projected annual job vacancies, this new cost-effective promotions system is understandably attractive from an administrative perspective.

[3]                Constable Shephard wrote the Corporal Job Simulation Exercise (JSE) on April 8, 2000. He obtained a score of 39 out of a possible 48 but did not receive a preferred ranking on an eligibility list which would have enabled him to progress to stage 2 of the promotions process. In accordance with the Promotions CSO, he then requested and was denied access to the following material and information:

- the questions the marker believed were answered incorrectly;

- the rationales for all questions marked incorrect;

- a copy of the regional promotional eligibility list, and test scores for the other candidates.

[4]                Under the Promotions CSO, Constable Shephard complained to a RCMP Adjudicator, Pat McCloskey, stating in his Request for Intervention that:

The marking of my promotional exam was wrong in that, based on my experience, the material provided by the Force and information provided to me, the answers I gave on the exam were correct and can be rationally supported. In those instances where the Force contends that my answers are not correct, or in accordance with the scoring key, I contend that the rationale behind the deemed correct answer in the scoring key was flawed, or incorrect.

The Adjudicator reviewed and dismissed his complaints in a decision dated April 15, 2002, where he stated:

It is evident to me that a great deal of time, money and care went into the development of the Promotional Exams. Although a few members may disagree with some of the "best" responses, clearly in an exercise such as this that is subjective in nature, you have to at some point accept the advice provided by the regular member exam development teams and professional teams and professionals hired by the RCMP to complete this task.

It is not the role of an adjudicator to determine the appropriateness of the CSO in question, policy or the NCO Promotion Process. Based on all the information provided to me by the Complainants and Respondent, I am satisfied that all the Complainants in this matter have been dealt with fairly and in accordance with the CSO and policy relating to the NCO Promotion Process.

[5]                The Adjudicator's decision was reviewed and upheld by a Federal Court Judge (see Reasons for Order and Order dated November 6, 2003 and reported as 2003 FC 1296). The Judge conducted a thorough and exhaustive review of various arguments concerning the powers of the Commissioner of the RCMP under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act) and the legality of the new Promotions CSO. The Judge concluded that withholding access to the examination results was not ultra vires the powers of the Commissioner under the Act, not contrary to principles of natural justice and not procedurally unfair. She also held that there was no reasonable apprehension of bias on the Adjudicator's part, that he was sufficiently independent, and that he had not fettered his discretion.

[6]                Constable Shephard now appeals that decision. For the reasons which follow, I would allow his appeal on a single ground of appeal. In my analysis, the learned Judge erred in law in finding that the Adjudicator did not deny Constable Shephard his participatory rights under principles of natural justice and procedural fairness by refusing him access to relevant information and documents necessary for him to obtain a fair hearing of his complaint, that is, that examination answers were not correctly assessed.

III.        Legislative and Policy Framework for Non-Officer Promotions in the RCMP

[7]                A detailed understanding of the statutory, regulatory and policy framework surrounding this appeal is essential.

[8]                The Commissioner of the RCMP has the authority to make promotions within the Force (other than for an officer rank) pursuant to paragraph 7(1) (a) of the Act:

[9]                Subsection 21(2) of the Act also gives the Commissioner the authority to make certain rules:     

In accordance with subsection 2(2) of the Act, these rules are known as Commissioner's standing orders ("CSO").

[10]            Part III of the Act deals with the presentation of grievances. Subsection 31(1) describes the participatory rights of a member in the following words:

[11]            In support of a grievance under Part III and pursuant to subsection 31(4) of the Act, a member is entitled to access to certain information, as follows:

[12]            Until the year 2000, grievances concerning promotions were governed byCommissioner's Standing Orders (Grievances), 1990, SOR/90-117, as amended ("Grievances CSO"). The Grievances CSO applied to many forms of grievances including disputes related to stoppage of pay, dismissal of a member from the Force, as well as promotion-related grievances. The Grievances CSO were silent with respect to the ability of an aggrieved member to access information relevant to his promotions grievance. Access to information by the member was governed by the above subsection 31(4) of the Act. The Grievances CSO are no longer in force.

[13]            On April 6, 2000, the new Promotions CSO came into force and were made pursuant to subsections 21(2) and 31(1) of the Act and are stated to apply as follows:

[14]            Other relevant provisions of the new Promotions CSO include the following:

[15]            There is no provision in the Promotions CSO, other than section 19, that either allows or denies a member access to information.

[16]            The Commissioner issues policy directions with respect to promotions and other matters related to RCMP administration. Collectively, these policies form a general administrative manual known as 'Policy in Administration Manual II.30'. It is common ground that these policies are guidelines only, and do not have the force of law. The current policy with respect to promotions, Policy D, was issued at the same time as the Promotions CSO, i.e. April 2000. Of particular importance in this appeal is Policy D.7 which provides as follows:

In attempting to resolve a dispute informally, or to enable a complainant to present a request for intervention, a respondent or an adjudicator will grant access to a complainant to that information only which is relevant to the dispute and under the control of the RCMP, except for:

a. promotional examination questions, scoring keys and rationales for the best and less effective answer options;

b. structured interview questions, scoring keys and audiotapes of interviews;

c. statistics relating to promotional examinations and structured interview questions; and

d. materials used in the development of promotional examinations and structured interviews, including but not necessarily limited to, work examples, draft questions and answer options.

IV.                    The Decision Under Appeal

[17]            As this appeal can be resolved under principles of procedural fairness and natural justice, it is only necessary to summarize paragraphs 52 through 56 of the reasons below. In brief, the Judge found that the content of the duty of fairness owed by the Adjudicator was minimal in the circumstances. She considered the factors set out by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 22 to 27: the nature of the decision made and the statutory scheme under which the decision-maker operates, the importance of the decision to the individual affected, the legitimate expectation that a certain procedure will be followed and the agency's own choice of procedure and expertise.

[18]            The Judge characterized the Adjudicator's decision as being the determination of "whether the Applicant was treated fairly during the examination process", and held that the process of written submissions bore little similarity to the judicial process. The examination result under review was only one element in a multi-stage promotion process, and did not have a determinative effect on promotion especially since Constable Shephard could re-write the exam annually. The Adjudicator's decision had no impact on his current employment status or duties, and therefore was not of critical importance to him. Constable Shephard could not fairly be said to have legitimate expectations that the prior procedure would apply, given the extensive attempts made by the RCMP to notify its members of the new non-disclosure policy. In addition, the adjudicators are experienced and senior members of the RCMP, and their choice of procedures should be respected.

[19]            Weighing these factors and reviewing the Adjudicator's decision, the Judge concluded that procedural fairness was satisfied because, in her view, Constable Shephard knew the case to be met and was given a reasonable opportunity to respond.

V.         Standard of Review

[20]            The Supreme Court of Canada in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100 recognized that questions of procedural fairness are questions of law. In accordance with Housen v. Nikolaisen, [2002] 2 S.C.R. 235, this Court must apply a standard of correctness to the Judge's conclusion that the duty of procedural fairness did not require disclosure of examination materials. (See also Ha v. Canada (Minister of Citizenship and Immigration)(2004), 236 D.L.R. (4^th) 485 at paragraph 45).

VI.        Analysis

[21]            Section 4 of the Promotions CSO required the Adjudicator to deal with Constable Shephard's complaint as expeditiously as the circumstances and considerations of fairness permitted. Rules of natural justice and fairness including procedural fairness are well known to this Court and are to be applied with flexibility. For example, in Bell Canada v. Communications Workers of Canada, [1976] 1 F.C. 459 (C.A.) at 477, Jackett C.J. made the following observation:

It is not unimportant to keep in mind in a case such as this that the so-called rules of natural justice are a means devised by the courts to interpret and apply statutory law in such a way as to avoid unjust results in particular cases. They are not rigid but flexible. They must be applied according to the exigencies of the particular case and they are not to be used as an instrumentality to defeat the achievement of the objectives of the particular statute.

(See also Inuit Tapirisat of Canada v. The Right Honourable Jules Léger, [1979] 1 F.C. 710 (C.A.) at 717; Gallant v. Canada, [1989] 3 F.C. 329 (C.A.) at 339).

[22]            The flexible and general duty of fairness grew out of the rules of natural justice, as referred to by Hoyt J.A. in Wark v. Green (1985), 23 D.L.R. (4^th) 594 (N.B.C.A.) at 598-599:

The old concept of natural justice and its two main components, the right to be heard and the right to a hearing from an unbiased tribunal, is giving way to a doctrine of procedural fairness which incorporates and extends the former boundaries of natural justice.

The right to be heard fundamentally requires that a person know the case to be met, and be given an opportunity to answer it. (See, for instance, Jones & de Villars, Principles of Administrative Law, 2^nd Ed. (Toronto: Carswell, 1994) at p. 180).

[23]            The Judge relied on the factors set out in Baker (supra at paragraph 17) to determine that the requirements of fairness were minimal. In that case, L'Heureux-Dubé J., writing for a unanimous Court on this point elaborated the concern driving the application of those factors, at paragraph 22:

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decision are made using a fair and open procedure... with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Similarly, Dickson J. in [1980] 1 S.C.R. 602">Martineau v. Matsqui Inmate Disciplinary Board, [1980] 1 S.C.R. 602 at 631 concluded that:

In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?

[24]            The role of the Adjudicator under the Promotions CSO is to make a decision on the merits of each case as to whether the decision under review is erroneous and has prejudiced the complainant, after a thorough review and analysis of all relevant evidence. A decision on the merits of Constable Shephard's case would require the Adjudicator to determine whether the exam questions were incorrectly marked, rather than a determination of whether he was treated fairly during the examination process.

[25]            The Adjudicator is to order appropriate corrective action if he determines that the decision, act or omission in question is erroneous and had prejudiced the complainant. Thus, the Adjudicator, in the present appeal, following a finding that the marking of the JSE is erroneous, would change any answers on Constable Shephard's JSE that were found to be incorrectly marked, and change his preferred ranking on the Promotional Eligibility List. The requirement of written reasons for the Adjudicator's decision, and the lack of appeal or further review also indicate that greater procedural protections is warranted. (Baker, supra at paragraph 24). Collectively, this indicates that the duty of fairness requires more than the minimal level of procedural protection found by the Judge.

[26]            The case against Constable Shephard consists of the particulars of and rationale for the marking of his JSE. Without that information, he is simply unable to know the case against him, and his right to be heard is rendered meaningless. Indeed, how can the Adjudicator carry out his duty to determine if Constable Shephard has been prejudiced by an erroneous decision as required by paragraph 22(1)(b) of the Promotions CSO if the requested examination materials are not made available for review and comment in the written submissions of the parties required by section 18?

[27]            While the Supreme Court of Canada has repeatedly held that the common law duty of fairness and rules of natural justice may be abrogated by express statutory language or necessary implication (see, for instance, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 at paragraphs 19-22), the Promotions CSO is silent on the rights of disclosure in the redress process, and explicitly directs an Adjudicator to abide by "considerations of fairness". Instead, in the present appeal, Constable Shephard has had his right to natural justice and procedural fairness abrogated by the Adjudicator's application of Policy D.7. That policy, based on cost considerations, removes his right to review the only documentation that has the potential to support his grievance, and enable him to know the case he must meet. It is contrary to the principles of procedural fairness and natural justice and should not have been relied upon by the Adjudicator so as to deny Constable Shephard access to his examination results and surrounding materials.

[28]            For these foregoing reasons, I would order the following relief:

1)         the appeal should be allowed;

2)         the order of the Federal Court dated November 1, 2003 should be set aside;

3)         the decision of the RCMP Adjudicator dated April 15, 2002 should be quashed;

4)         an order should issue that Constable Shephard be provided with particulars under section 19 of the Promotions CSO, namely, the questions and answers said to be erroneous answered by Constable Shephard in his Corporal Job Simulation Exercise written on April 8, 2000 and the rationales for the correct answers of those questions;

5)         a new adjudication should be ordered;

6)          costs of this appeal should be awarded to Constable Shephard.

                                                                                         "B. Malone"          

                                                                                                      J.A.               

"I agree

M. Nadon J.A."

"I agree

K. Sharlow J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  A-567-03

Appeal from the Order of Madam Justice Snider dated November 6, 2003 in file T-892-02

STYLE OF CAUSE: Paul Vincent Shephard v. J.C.G. Fortin et al

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   June 15, 2004

REASONS FOR JUDGMENT:                    Malone J.A.     

CONCURRED IN BY:                                  Nadon J.A.

Sharlow J.A.

DATED:                     July 8, 2004                   

APPEARANCES:

SOLICITORS OF RECORD: