Docket: A-268-14
Citation:
2015 FCA 43
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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NUNO CAMARA
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Appellant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS
FOR JUDGMENT
SCOTT J.A.
[1]
Mr. Nuno Camara (the Appellant) is appealing the
decision of Mactavish J. of the Federal Court (the Judge) who dismissed his
application for judicial review of a decision rendered by the Acting Commissioner
of the Royal Canadian Mountain Police (RCMP) denying his Level II Grievance
with respect to his suspension without pay and allowances pending the outcome
of disciplinary proceedings taken against him by his employer.
[2]
For reasons that follow, I believe that this
appeal should be dismissed.
[3]
In his 42-page decision, the Acting Commissioner
dealt with a number of arguments of the Appellant disputing the issuance of a suspension
without pay and allowances order (SPAO) against him, several of which are not
relevant in this appeal. Of particular importance is the Acting Commissioner’s
finding that the Appellant was not the victim of undue delay in the issuance of
a SPAO and the processing of his grievance. The Acting Commissioner noted that
the duration of the SPAO was not unreasonable considering that SPAOs are
preventive measures designed to protect the integrity of the RCMP. When applied,
SPAOs normally endure pending resolution of the disciplinary proceedings (a
process distinct from the grievance process itself). With respect to the delay in
the grievance process per se, the Acting Commissioner concluded that it was not undue so as to
justify granting the grievance.
[4]
The Acting Commissioner also found that the SPAO
was warranted in the particular circumstances of this case. He held that the
Appellant’s behaviour constituted a breach of the Code of Conduct of the RCMP
and that it was so outrageous as to significantly affect the performance of his
duties under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10
(the RCMP Act).
[5]
On appeal from a decision of the Federal Court
in an application for judicial review, this Court must determine whether the
court below selected the proper standard of review and applied it correctly (Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at para. 45).
[6]
In the present case, the Judge applied the
standard of correctness to the issue of delay as she accepted that it could
raise an issue of procedural fairness (reasons of the Judge at paragraph 18)
and she assessed the Acting Commissioner’s substantive decision on the standard
of reasonableness (reasons of the Judge at paragraph 24). Although the
Appellant argued in his memorandum that the Judge could have been clearer as to
the standard applied to the issue of delay, at the hearing, he did not dispute
that she selected the appropriate standards of review for the two questions
before her.
[7]
Applying the standard of correctness, the Judge
concluded that the Appellant had failed to meet his burden of establishing that
the delay involved met the required threshold: that it was so oppressive as to
taint the proceedings and to cause serious prejudice (reasons of the Judge at
paragraph 37). She noted that the Appellant was partly responsible for the
delay since he requested several extensions to file his responses at various
stages of the grievance process (reasons of the Judge at paragraph 36). The
Judge also noted that the Appellant relied on bold assertions of unfairness and
prejudice which were not substantiated.
[8]
The Judge was satisfied that the Acting
Commissioner’s conclusion, in respect of the outrageous character of the breach
of the code of conduct and his interpretation of the Suspension Policy, was clearly
explained and was sufficiently reasoned. In her view, the decision fell within
the range of possible outcomes as established in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47 [Dunsmuir].
[9]
The Appellant challenges the Judge’s and the
Acting Commissioner’s decisions on two grounds. He asserts that the Judge
failed to appreciate that it was incumbent on the Respondent to justify the
inordinate delay incurred, since seven years had passed before a final decision
was released whereas the Commissioner’s Standing Order in the RCMP’s
Administrative Manual II.38 mandates early resolution of this type of
grievance. The Appellant also claims that the Acting Commissioner’s decision cannot
be reasonable because his reasons are insufficient.
[10]
I will now examine if the Judge properly applied
the standards of review, focussing firstly on the Appellant’s argument that the
delay involved constituted a breach of procedural fairness and an abuse of
process. To do so, I will apply the teachings of the Supreme Court of Canada in
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000]
2 S.C.R. 307 [Blencoe], where the requirement for prejudice is clearly
stated:
[101] In my view, there are appropriate
remedies available in the administrative law context to deal with state-caused
delay in human rights proceedings. However, delay, without more, will not
warrant a stay of proceedings as an abuse of process at common law. (…) In the
administrative law context, there must be proof of significant
prejudice which results from an unacceptable delay.
(…)
[115] I would be prepared to recognize that
unacceptable delay may amount to an abuse of process in certain
circumstances even where the fairness of the hearing has not been compromised.
(…) It must however be emphasized that few lengthy delays will meet this
threshold. I caution that in cases where there is no prejudice to hearing
fairness, the delay must be clearly unacceptable and have directly caused a
significant prejudice to amount to an abuse of process. It must be a delay
that would, in the circumstances of the case, bring the human rights system
into disrepute.
[My emphasis]
[11]
It is undisputed that the delay in this matter did
not impact the fairness of the hearing. Further, I have not been persuaded that
the timeline involved in the Appellant’s case directly caused a significant
prejudice.
[12]
As I review the stages involved in coming to a
final decision, I note that from the date of the Appellant’s contravention of
the Code of Conduct (November 23, 2005) to the implementation of SPAO, four and
a half months elapsed. During that time, the Appellant was served with a Notice
of Suspension on November 24, 2005, followed by a Notice of Intent to Recommend
Stoppage of Pay and Allowances on December 30, 2005. He provided his first
response on January 23, 2006. He received a reply on January 25, 2006 and filed
a second response on February 16, 2006. He was copied on the Notice to Recommend
the Stoppage of Pay and Allowances dated February 22, 2006. The SPAO was
applied on April 13, 2006. Not only does this delay appear reasonable, but it
could only have benefited the Appellant who received his pay and allowances
until the SPAO was issued (reasons of the Judge at paragraph 23).
[13]
The Appellant filed his Level I grievance
disputing the imposition of the SPAO on May 18, 2006. The documentation
supporting the SPAO order was sent on July 11 and delivered on July 13, 2006,
according to Canada Post. The Appellant requested that it be forwarded to a
different address on August 22, 2006, claiming he had not received the
documentation. It was served by fax on August 30, 2006. The Appellant and his
representatives requested five extensions; all were granted between September
12 and November 11, when he finally filed his submissions. The Respondent received
the Appellant’s submissions on November 11, 2006 and filed its response on
December 8, 2006. On December 18, 2006, the Appellant received the Respondent’s
response and requested an extension until January 16, 2007, which was approved,
but he did not file additional materials. The level I decision was issued on
May 22, 2008.
[14]
It is difficult to conclude that the time taken
for the above-mentioned steps is inordinate, given that the Appellant provided
no information as to how long this process normally takes. This is especially
so considering the number of extensions he requested.
[15]
The Appellant indicated his intention of
appealing the Level I decision on June 5, 2008 but requested an extension of
time to file his appeal submissions until October 15, 2008 because his sentencing
hearing was scheduled for August 29, 2008. The extension was granted. However, the
Appellant was convicted of one count of theft under $5000, after he pleaded
guilty in Manitoba Provincial Court. He resigned from the RCMP on September 23,
2008, before the disciplinary process was concluded.
[16]
Following the Appellant’s resignation, however
long the delay to obtain a decision on the Level II grievance, the only issue
at stake was the reimbursement of the pay he would have received up to his
resignation.
[17]
It is true that the External Review Committee (the
ERC), an independent body set up to review labour matters within the RCMP pursuant
to subsection 33(1) of the RCMP Act, took a very long time to issue its
recommendations (about three and a half years). No one knows why this is so. The
ERC is beyond the control of either party. There is no evidence that the
Appellant made any attempt to speed up the process.
[18]
Once the ERC issued its recommendation, the
Acting Commissioner took about six months to issue his final decision. Considering
that the Appellant was no longer a member of the RCMP at the time, there is no
indication or evidence that this delay was inordinate. Consequently, I reject
the Appellant’s first argument.
[19]
I now turn to the Appellant’s second argument. Like
the Judge, I find that the Acting Commissioner’s decision was reasonable. His
decision was based on his interpretation of the RCMP Suspension Policy, in
which he has significant expertise. The Acting Commissioner considered all of the
arguments that were submitted and determined that the Appellant’s conduct met
the criteria found in sections d.9 and d.10 of the RCMP Suspension Policy since
he stole evidence that had been obtained in the course of what he believed was
a valid investigation. As previously mentioned, the Acting Commissioner concluded
that such behaviour was outrageous. While the Appellant’s interpretation of the
Suspension Policy could also have been adopted, the interpretation and
conclusion of the Acting Commissioner were open to him. The Acting
Commissioner’s decision is owed deference and I find that his decision was
reasonable.
[20]
The Appellant would clearly have preferred more
detailed reasons from the Acting Commissioner and argued that the reasons given
were insufficient. I see no valid reason to set the Acting Commissioner’s decision
aside on this basis. The reasons were thorough enough to explain how the Acting
Commissioner reached his conclusion and for the Federal Court to judicially
review the said decision (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 16).
[21]
In sum, I conclude that the Judge properly
applied the standards of review.
[22]
The appeal should be dismissed with costs. At
the hearing, the parties agreed that a lump sum of $1,400 would be appropriate
to cover either party’s costs.
“A.F. Scott”
“I agree
Johanne Gauthier J.A.”
“I agree
D.G. Near J.A.”
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