Docket: T-233-16
Citation:
2017 FC 4
Ottawa, Ontario, January 3, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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TODD STOROZUK
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Applicant
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and
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ATTORNEY
GENERAL
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Todd Storozuk, has been a member
of the Royal Canadian Mounted Police [RCMP] since 1993. In 2012, he applied for
a Drug Enforcement Supervisor/Investigator position at the Coquitlam Detachment
of the RCMP in British Columbia. His application for this position was not
successful; had the Applicant been the successful candidate for the position,
he would have been promoted from the rank of corporal to that of sergeant.
[2]
Accordingly, on May 1, 2012 the Applicant filed
a grievance pursuant to section 31 of the Royal Canadian Mounted Police Act,
RSC, 1985, c R-10 [Act], alleging that selection of the successful
candidate was based on criteria not listed in the job posting and that he was
the better candidate for the job. An adjudicator denied his grievance in a
decision dated January 5, 2016. The Applicant has now applied for judicial
review of the adjudicator’s decision.
I.
Background
[3]
On February 8, 2012, the RCMP advertised a
posting for a Drug Enforcement Supervisor/Investigator position [the Position]
at the Coquitlam Detachment. The promotional process for non-commissioned RCMP
officers is outlined in a policy document entitled NCO Promotional Process,
Selection Guide for Career Development and Resource Advisor, Validation
Committee and Line Officers [the Selection Guide]. In accordance with the
Selection Guide, the job posting outlined the requirements for prospective
candidates and indicated that applications were to include a competency résumé,
a covering letter, and a member conduct disclosure. The job posting also
included a synopsis for the Position to assist candidates in explaining why
they were the most qualified.
[4]
The synopsis contained conflicting language as
to whether there were any desirable attributes for the Position. The synopsis
listed five specific desirable attributes but later stated that no desirables
were identified for the Position:
As such it would be desirable that the
incumbent possess the following:
1. An
operational understanding of the principals [sic] of Mahjor [sic]
Case Management
2. Familiarity with Crime Reduction
methodology
3. Court recognized Drug Expert
4. Undercover Operator and/or Cover
person trained
5. Current
experience in Drug investigations as a primary investigator
Desirables: Policy allows for the Line
Officer/Delegate to identify desirables that he/she deems relevant to this
position. A desirable is not a requirement for the position but will be
considered in the Selection process and can be addressed in the COVERING
LETTER. The Line Officer has identified the following desirables for this
position: N/A
[5]
Applications for the Position were reviewed by a
senior officer of the RCMP [the Selecting Line Officer or SLO]; no interviews
were conducted. The SLO evaluated the applications and recommended the most
suitable candidate to a human resources officer for approval. The Selection
Guide provides line officers with considerable discretion when evaluating an
application package and determining which candidate warrants recommendation. The
Selection Guide provides (at page 36) that:
The line officer is to take the available
information and determine which of the candidates is right for the position
being filled. There are no strict rules for considering the information on each
candidate. The line officer needs to look at the information collectively, draw
on his or her knowledge of the position and/or unit, and recommend the right
candidate by considering person-position or person-unit fit.
[6]
On April 24, 2012, the SLO informed the
Applicant that another candidate had been recommended for the position. The SLO
provided written reasons as to why the successful candidate was recommended.
The SLO determined that, although the Applicant had met the requirements for
the position and demonstrated experience working in a supervisory position, the
successful candidate’s competency résumé and covering letter were superior to
those of the Applicant.
A.
The Grievance Process
[7]
At the time of the SLO’s decision, the grievance
process was governed by the Act and the Commissioner’s Standing
Orders (Grievances), SOR/2003-181 [Standing Orders], as repealed by Commissioners
Standing Orders (General Administration), SOR/2014-293. Prior to its
amendment in 2014, subsection 31(1) of the Act allowed RCMP members who were
“aggrieved by any decision, act or omission in the
administration of the affairs of the Force” to file a written grievance.
[8]
The Act and the Standing Orders established
a two-step grievance process, Level I and Level II. Subsection 17(1) of the Standing
Orders provided that the adjudicator’s role was to “determine
if the decision, act or omission that is the subject of the grievance is
consistent with applicable legislation and Royal Canadian Mounted Police and
Treasury Board policies.” If the decision, act, or omission was
inconsistent with the applicable legislation or policies, the adjudicator was
then required to determine whether the grievor had suffered any prejudice (Standing
Orders at 17(2)).
[9]
Adjudicators at both levels were required to “determine what corrective action is appropriate in the
circumstances” (Standing Orders at 17(2)); however, an adjudicator
at a Level II grievance was required to return a grievance to Level I for
reconsideration if, among other things, the adjudicator received evidence that
could have resulted in a different decision at Level I (Standing Orders
at 18(1) (a)). Moreover, a party could not present new evidence at the Level II
grievance unless the evidence “could not reasonably
have been known by the party at the time the grievance was considered by level
I” (Standing Orders at 12(3)).
B.
The Level I Grievance
[10]
At the Level I grievance, the Applicant’s
initial written submissions challenged the SLO’s written reasons as to why the
successful candidate was recommended for the Position. The Applicant questioned
not only whether the successful candidate’s experience and qualifications were
superior to his own, but also whether the successful candidate had sufficient
experience in the drug field and in a supervisory position. The Applicant also
challenged the SLO’s comments concerning some of the successful candidate’s
attributes which were not listed as desirable attributes in the job posting.
Specifically, the Applicant questioned why the SLO highlighted the successful
candidate’s experience in “Serious Crime
investigations, Surveillance, Interest Based Negotiations, Conflict Mediation,
Interview and Interrogation techniques and multi-jurisdictional investigations.”
[11]
After filing the grievance, the Applicant was
provided with the successful candidate’s application package and allowed to
make further written submissions, and he did so on June 21, 2012. The
Applicant asserted that he had greater and more relevant experience than the
successful candidate, and also highlighted what he regarded as deficiencies in
the successful candidate’s investigative skills. The Applicant reiterated his
earlier submissions regarding the successful candidate’s attributes which were
not listed as desirable attributes. The Applicant questioned the SLO’s
rationale for focusing on these attributes, but also provided examples of how
he too possessed these attributes.
[12]
The Respondent contended at the Level I
grievance that the SLO’s decision was consistent with applicable policies,
pointing in particular to the Career Management Manual [CMM], Chapter 4,
Section 10.11.8, which requires a line officer to “identify
the recommended candidate whom he/she has determined as being the right person”
after considering the candidates’ materials and the operational needs of the
existing team. The Respondent also pointed to the Selection Guide, arguing that
there are no strict rules for a line officer’s determination since they must
look at the information collectively to “determine
which of the candidates is right for the position being filled.”
[13]
The Respondent further argued that the SLO
adhered to policy by relying on the successful candidate’s various attributes
and by clearly finding that these attributes were relevant in determining that
the successful candidate was “the right person.”
According to the Respondent, the Applicant was not disadvantaged in his ability
to compete for the Position because he, too, was able to provide additional
qualifications which were not listed in the job posting. The Respondent also
submitted that the SLO was entitled to make her decision, despite the Applicant’s
view that he was better qualified, and she was not obligated to request that
each candidate list every qualification the candidate regarded as being
relevant to the Position.
[14]
In his rebuttal submissions, the Applicant
maintained that he possessed more experience than the successful candidate. The
Applicant also stated that the SLO did not adhere to policy by relying on
attributes that were not listed as either competencies or desirable attributes.
The Applicant further argued that the Selection Guide requires a line officer
to specify desirable attributes.
[15]
The Level I adjudicator dismissed the Applicant’s
grievance. The Level II adjudicator did not defer to the Level I grievance
decision and considered the matter anew at the Level II stage.
II.
The Level II Decision
[16]
After reviewing the background facts and the
parties’ arguments before the Level I adjudicator, as well as the Applicant’s
request for disclosure of the SLO’s notes (including a scoring matrix) and a
managerial review of the successful candidate’s performance in the Position, the
Level II adjudicator [the Adjudicator] outlined the parties’ arguments and
submissions and identified four issues to be addressed in her decision, namely
whether:
1.
the documents submitted by the Applicant along
with his Level II submission were admissible;
2.
the Applicant had established a right to
disclosure of the material he identified in his presentation at Level II;
3.
the Applicant had established that the SLO erred
in recommending a candidate for promotion other than the Applicant; and whether
4.
the Applicant had established that the
Respondent erred in finding that the rationale written by the SLO for
recommending the successful candidate was sound and defendable.
[17]
The Adjudicator then acknowledged that her
mandate at the Level II grievance, in view of subsection 17(1) of the Standing
Orders, was to determine whether the SLO’s decision was “consistent with applicable legislation and Royal Canadian
Mounted Police and Treasury Board policies” and if not, to determine
whether the decision “caused a prejudice to the grievor”
and “what corrective action is appropriate in the
circumstances.” She also noted that the Applicant was required to
establish that the decision to promote a candidate other than him was
inconsistent with policy and the Selection Guide.
[18]
The Adjudicator determined, with respect to the
first issue noted above, that the documents attached to the Applicant’s written
submissions were inadmissible by virtue of subsection 12(3) of the Standing
Orders because they “were in existence and
accessible at the time the Grievor submitted his arguments at Level I and their
existence should have been known to the Griever.”
[19]
As to the second issue, the Adjudicator found
that, by failing to request disclosure of material already in existence at the
time he engaged in early resolution of the grievance, the Applicant had missed
his opportunity to disclosure of such material. She also found that the
performance review report about the successful candidate was not relevant and
did not need to be disclosed to the Applicant.
[20]
The Adjudicator then addressed the third issue,
namely, whether the Applicant had established that the SLO erred in
recommending a candidate for promotion other than the Applicant. In this
regard, the Adjudicator found that: “the Grievor has
not provided any evidence that would cause me to question the SLO’s
recommendation and to adopt, by default, the Grievor’s opinion that the Grievor
was the superior candidate.” The Adjudicator addressed the Applicant’s
arguments concerning the formatting of the synopsis for the Position and the
SLO being influenced by factors not identified as desirables; she determined though,
that the SLO was not bound by strict rules for considering each candidate’s
information and that it was “the Grievor’s
responsibility to clearly establish, in his examples and Covering Letter, that
he best met the requirements of the position.” Ultimately, with respect
to this third issue, the Adjudicator concluded that the Applicant had “expressed strictly his personal opinion, thus failing to
establish that the Respondent’s actions were inconsistent with policy and with
the Guide.”
[21]
With respect to the final issue as to whether
the Applicant had established that the SLO’s rationale for recommending the successful
candidate was not sound and defendable, the Adjudicator determined that the
Applicant had not offered any convincing arguments that the rationale fell
short of being informative or defendable. The Adjudicator stated: “I can readily identify and understand the strengths that
convinced the SLO to recommend the candidate she found best demonstrated the
qualities required of the incumbent of the position. Though the Griever may
genuinely believe he was the best candidate for the position, it is not an error
for the SLO to conclude otherwise as long as she can articulate her reasons in
a manner that I find reasonable.” The Adjudicator thus concluded:
[53] As a result of my examination of
the Record, I find that the Grievor has not established, on a balance of
probabilities, an inconsistent application of policy.…Based on the evidence in
the Record, I find that the promotion process was followed and that the outcome
was supported by a rationale sufficiently sound, defendable and informative to
be considered reasonable … Therefore, the Respondent’s decision to adopt the
SLO’s recommendation and promote a member other than the Grievor must stand.
III.
Issues
[22]
This application for judicial review raises the
following issues:
1.
What is the standard of review?
2.
Did the Adjudicator breach any duty of
procedural fairness?
3.
Was the Adjudicator’s decision reasonable?
IV.
Analysis
[23]
Before addressing the above issues, it should be
noted that the Respondent challenged certain portions of the Applicant’s
affidavit because it included several documents which the Adjudicator refused
to accept at the Level II grievance and introduced evidence not before the
Adjudicator. At the hearing of this matter, the Applicant (who represented
himself in this proceeding) was informed that this additional documentation
could not be accepted upon judicial review of the Adjudicator’s decision since
it did not fall within one of the recognized exceptions to the general rule
that the record for judicial review is usually limited to that which was before
a decision-maker. This additional documentation has therefore not been
considered in reviewing the Adjudicator’s decision.
A.
Standard of Review
[24]
The Standing Orders governed the
grievance process for promotional decisions only from August 20, 2010 to
November 27, 2014. Although the case law is not altogether clear as to the
appropriate standard of review applicable when reviewing a decision of a Level
II adjudicator acting under the Standing Orders, I am satisfied that the
appropriate standard of review for the Adjudicator’s decision in this case is
that of deferential reasonableness in view of the following decisions.
[25]
For example, in Mousseau v Canada (Attorney
General), 2012 FC 1285, [2012] FCJ No 1366 [Mousseau], Justice
Tremblay-Lamer stated that the decision of a Level II adjudicator concerning
the grievance of an officer’s work transfer was reviewable on the
reasonableness standard:
[15] In the case of a judicial review
of a decision of an RCMP adjudicator, given the adjudicator’s specialized
expertise and broad powers with regard to the questions before him or her, “great
deference should be given to the Adjudicator in this matter” (Sansfaçon v
Canada (Attorney General), 2008 FC 110 citing Shephard v Canada (Royal
Canadian Mounted Police), 2003 FC 1296 at paras 35-36; Smith v Canada
(Attorney General), 2005 FC 868 at para 13; Gillis v Canada (Attorney
General), 2006 FC 568 at para 27), especially when it involves an internal
grievance process and internal policies at the RCMP. Therefore, the applicable
standard of review is reasonableness. Consequently, this Court must determine
whether the findings are justified, transparent and intelligible, and fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). In Canada
(Attorney General) v Boogaard, 2015 FCA 150 at para 6, [2015] FCJ No 775 [Boogaard],
the Federal Court of Appeal held that the reasonableness standard applied to
the Commissioner’s letter indicating that he would not promote a senior officer
(this matter did not involve a grievance).
[26]
Similarly, in Schamborzki v Canada (Attorney
General), 2015 FC 1262, [2015] FCJ No 1323, the Court reviewed Mousseau
and other cases involving internal RCMP grievances and concluded that: “the evolution of the jurisprudence favours adoption of the
standard of reasonableness” (para 30); and that “the
Commissioner’s decisions should be reviewed on a standard of reasonableness”
(para 31).
[27]
Accordingly, the Court should not intervene if
the Adjudicator’s decision is justifiable, transparent, and intelligible, and
it must determine “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011]
3 SCR 708. Additionally, “as long as the process and
the outcome fit comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing court to substitute its own
view of a preferable outcome”; and it is also not “the function of the reviewing court to reweigh the evidence”:
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59
and 61, [2009] 1 S.C.R. 339.
[28]
As to whether any rules of procedural fairness
were breached by the Adjudicator, that is an issue subject to the correctness
standard of review (see: Mission Institution v Khela, 2014 SCC 24 at
para 79, [2014] 1 S.C.R. 502). This requires the Court to determine whether the
process followed by the Adjudicator achieved the level of fairness required by
the circumstances of the matter (see: Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 115, [2002] 1 S.C.R. 3).
It is, therefore, not so much a question of whether the Adjudicator’s decision
is correct as it is a question of whether the process followed by her in making
her decision was fair (see: Hashi v Canada (Citizenship and Immigration),
2014 FC 154 at para 14, 238 ACWS (3d) 199; and Makoundi v Canada (Attorney
General), 2014 FC 1177 at para 35, 471 FTR 71).
B.
Did the Adjudicator breach any duty of
procedural fairness?
[29]
There are two aspects of the Adjudicator’s
decision that raise questions of procedural fairness, one pertaining to an
extension of time granted to the Respondent prior to the Level I decision and
the other concerning the Adjudicator’s treatment of documentation that was not
before the Level I adjudicator.
[30]
The Applicant states that the Respondent failed
to comply with the timeframe policies at the Level I grievance and the Level II
Adjudicator failed to address the issue. The Applicant does not challenge the
Adjudicator’s refusal to accept additional documents at the Level II grievance,
although he did continue to rely on some of these documents to support his
arguments at the hearing of this matter.
[31]
The Respondent notes that although the Applicant
raised the issue of the extension of time in his reply submissions at the Level
I grievance, he did not provide any substantive arguments. According to the
Respondent, the Applicant never alleged that the extension of time was unfair
or prejudicial. The Respondent further states that the Applicant never raised
this issue at the Level II grievance and it should not be raised for the first
time on judicial review. The Respondent also says the Adjudicator properly
applied the Standing Orders by refusing to allow the Applicant to submit
additional documents that were not before the Level I adjudicator.
[32]
The Applicant’s arguments concerning timeliness
are directed towards the RCMP’s Office for the Coordination of Grievances [OCG].
The Respondent requested an extension of time to file materials for the Level I
grievance because of staffing changes. A case manager at the OCG allowed the
extension. Section 4.2.2.3 of the RCMP’s grievance policy grants a case manager
at the OCG discretion to grant extensions to administrative timeframes to
either the grievor or respondent if there are reasonable grounds for so doing,
such as “prior operational commitments” and “other unforeseen and exceptional circumstances.”
[33]
The record is not clear as to whether the
Applicant was notified of the OCG’s extension decision and provided with an
opportunity to voice his objections. At the Level I grievance, the Applicant
raised this issue in his reply submissions where he simply stated “I raise issue in respect to time”, but he did not
elaborate on why the extension of time was inappropriate. The Level I
adjudicator never addressed this issue. At the Level II grievance, the
Applicant did not raise this issue in his written submissions. Since this issue
was not raised before the Adjudicator, it cannot be said that she breached any
duty of procedural fairness by not addressing it. In any event, the Applicant
has not made any submissions as to why the OCG improperly exercised its
discretionary power in granting the extension of time, and I cannot see how he
has been prejudiced or unfairly treated by reason of the extension of time
granted prior to the Level I grievance decision.
[34]
As to the Adjudicator’s decision not to allow
the Applicant’s additional evidence at the Level II grievance, it must be noted
that her authority to accept new evidence was constrained by subsection 12(3)
of the Standing Orders:
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12 (3) A party shall not present evidence to level II that was not
presented to level I unless the evidence could not reasonably have been known
by the party at the time the grievance was considered by level I.
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12 (3) Aucune partie ne peut présenter au niveau
II un élément de preuve qui n’a pas été présenté au niveau I, à moins qu’il
s’agisse d’un élément de preuve qui ne pouvait raisonnablement être connu de
la partie au moment de l’étude du grief par le niveau I.
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[35]
The Applicant had the onus of demonstrating why
the additional evidence was not reasonably known to him at the Level I
grievance. In his submissions, the Applicant claims he was unaware the SLO made
notes or a scoring matrix. He points to the Supreme Court of Canada’s decision
in May v Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, in support
of his argument that the SLO’s notes (including the scoring matrix) should have
been disclosed and provided to him. The Adjudicator considered this argument,
yet rejected it, stating as follows:
[34] By failing to request disclosure
of material already in existence at the time he engaged in ER [Early
Resolution], and material that should have been known to the Grievor, the
Grievor has missed his opportunity to do so.…The fact that the Grievor did not
think at level I of asking for disclosure of the SLO’s notes, or did not know
that the notes existed, does not open the door to disclosure at level II.
[36]
The Adjudicator’s determination that the SLO’s
notes could not be accepted as evidence at the Level II grievance did not
breach any duty of procedural fairness owed to the Applicant. The Applicant did
not request these notes until after the Level I decision and the Adjudicator’s
authority to accept them as evidence for the Level II grievance was restricted
by subsection 12(3) of the Standing Orders.
[37]
The Adjudicator’s rejection of the Applicant’s
additional evidence which was not presented at Level I also did not breach any
duty of procedural fairness owed to the Applicant. All of these documents,
other than the SLO’s template rationale for her decision provided to another
unsuccessful candidate, were in the Applicant’s possession before the Level I
grievance but not provided to the Level I adjudicator. It was not unfair for
the Adjudicator to reject this additional evidence as evidence for the Level II
grievance, especially in view of subsection 12(3) of the Standing Orders.
Although the SLO’s template rationale for her decision recommending the
successful candidate suggests she may not have undertaken an independent
analysis of why the successful candidate was superior to the Applicant, the
Applicant did not make any submissions as to why this document should be
accepted for the first time at the Level II grievance and, consequently, the
Adjudicator rightly refused to accept this document.
[38]
In short, I find that the Adjudicator, in
rendering her decision, did not breach any duty of procedural fairness owed to
the Applicant.
C.
Was the Adjudicator’s decision reasonable?
[39]
Although the Applicant’s submissions address the
decisions by the SLO and the Level I adjudicator, the Court is tasked only with
review of the Level II Adjudicator’s decision.
[40]
The Applicant contends that the Adjudicator
ignored his arguments that he was a more appropriate candidate for the position
than the successful candidate, and refers to Smith v Canada (Attorney
General), 2004 FC 320 at para 10, 129 ACWS (3d) 1020 [Smith], where
the Court found it was “extremely disconcerting that
absolutely no reference is made to the Applicant’s argument” in an adjudicator’s
grievance decision. The Applicant also refers to Russell v Commissioner of
Royal Canadian Mounted Police, 2013 FC 755 at para 5, 436 FTR 29, where the
Court reviewed a decision by which an RCMP officer had been removed from a
promotional competition, and observed that: “The
promotion process within the RCMP is complex. It is designed to ensure fair
play and to minimize favouritism so that the best qualified person gets the
job.”
[41]
The Respondent maintains that the Adjudicator’s
decision was reasonable. According to the Respondent, the Adjudicator properly
identified the SLO’s broad discretion as well as her obligation to review all
of the evidence and reasonably determined that the SLO’s decision was detailed
and compelling. The Respondent distinguishes Smith, where the
adjudicator had made “absolutely no reference”
to the applicant’s arguments, on the basis that the Adjudicator here addressed
the Applicant’s arguments and concerns and provided detailed reasons for the
decision.
[42]
The Respondent contends that the Adjudicator’s
comments concerning the desirable attributes were reasonable and that the job
positing did not limit the SLO from considering other attributes since a
desirable was not a requirement for the position. According to the Respondent,
the posting did not limit a prospective candidate’s ability to address other
attributes, and since the Applicant addressed the attributes listed in the
posting, he was not prejudiced. The Respondent also advances the argument that the
Applicant was never entitled to the promotion, relying in this regard upon the
Federal Court of Appeal’s decision in Canada (Attorney General) v Boogaard,
2015 FCA 150, 255 ACWS (3d) 1016, where Justice Stratas placed the issue of a
promotion involving a member of the RCMP in context:
[51] While in this case the promotion
is of great importance to the respondent, normally we do not think of people
having a “right” to a promotion. Often in promotion decisions, only a few win,
many more lose, and the difference between winning and losing can legitimately
turn upon fine things, sometimes subjective or subtle things. For example,
usually we describe people who have been promoted as “deserving” or “lucky.” We
do not say that people have been promoted because the employer was legally
forced to do it.
[52] Further, a promotion decision,
such as the one in this case, is not a simple one, arrived at by processing
information objectively and logically against fixed, legal criteria. Rather, it
is a complex, multifaceted decision involving sensitive weighings of
information, impressions and indications using criteria that may shift and be
weighed differently from time to time depending upon the changing and evolving
needs and priorities of the organization. What are the needs and priorities of
the organization, both now and in the future, perhaps years later? What is the
nature of the position the applicant seeks? Does the applicant have the skills,
judgment, experience, reliability, integrity, character and personality to
carry out the responsibilities of the position and supervise others? Does the
applicant exemplify the values and culture of the organization? How does the
applicant compare to others who have previously been promoted and others who
now seek promotion? How will others react? The questions could go on and on.
[43]
The Applicant does not point to any specific or
particular reasons as to how or why the Adjudicator’s decision was
unreasonable. The Adjudicator’s role, as defined by subsection 17(1) of the Standing
Orders, only allows an adjudicator to review whether a line officer’s
decision was “consistent with applicable legislation
and Royal Canadian Mounted Police and Treasury Board policies.” The
Adjudicator did not have the authority or jurisdiction under subsection 17(1)
to reweigh the Applicant’s experience and qualifications against those of the
successful candidate; nor, for that matter, does this Court. The Adjudicator’s
recognition of her role is not tantamount to ignoring the Applicant’s request
to have his experience and qualifications reweighed against those of the
successful candidate.
[44]
In this case, the Adjudicator consulted the CMM
and the Selection Guide which outlined the SLO’s role in selecting a candidate.
The Adjudicator noted that these policies provided the SLO with “much latitude in selecting the candidate deemed the best
candidate for the position.” In my view, it was reasonable for the
Adjudicator to find that the SLO was not “bound by
strict rules for considering the information of each candidate”.
[45]
It was also reasonable for the Adjudicator to
determine that the SLO’s decision to examine and assess attributes beyond those
listed was consistent with policy or legislation. This was reasonable for
various reasons. First, the wording of the job posting concerning the desirable
attributes was not an issue because the Applicant addressed the listed
attributes. Second, the posting expressly stated that there were no required
desirables. And third, the job posting encouraged prospective applicants to provide
information about how they exceeded requirements and any other relevant
information. In this case, the Adjudicator reasonably determined that the SLO
had not breached her discretionary mandate by considering additional relevant
qualifications.
[46]
In short, I find the Adjudicator’s decision to
be transparent, intelligible, and justifiable, and well within a range of
possible, acceptable outcomes defensible in respect of the facts and law.
V.
Conclusion
[47]
The Adjudicator’s decision in this case was
transparent, intelligible, and justifiable, and within a range of possible,
acceptable outcomes defensible in respect of the facts and law. In rendering
her decision, the Adjudicator did not breach any duty of procedural fairness
owed to the Applicant. Accordingly, the Applicant’s application for judicial
review is dismissed.
[48]
The Respondent has requested its costs in its
memorandum of fact and law. In view of the application having been dismissed,
the Respondent is entitled to costs in such amount as may be agreed to by the
parties. If the parties are unable to agree as to the amount of such costs
within 15 days of the date of this judgment, either party shall thereafter be
at liberty to apply for an assessment of costs by an assessment officer in
accordance with the Federal Courts Rules, SOR/98-106.
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