Date: 20180423

Docket: T-872-17

Citation: 2018 FC 434

[ENGLISH TRANSLATION REVISED BY THE AUTHOR]

Ottawa, Ontario, April 23, 2018

PRESENT: The Honourable Mr. Justice Grammond

BETWEEN:

ERIC BERNARD FRÉMY

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

[1]  The applicant, Éric Bernard Frémy, is seeking judicial review of a decision made by a Level II Adjudicator appointed under the Royal Canadian Mounted Police Act, RSC 1985,
c R-10 [the Act]. That decision, dated May 10, 2017, dismissed the grievance filed by Mr. Frémy against a decision by Deputy Commissioner Craig J. Callens, Commanding Officer E Division of the Royal Canadian Mounted Police [RCMP], in British Columbia. For the reasons that follow, I am allowing this application for judicial review.

I.  Facts

[2]  Mr. Frémy was recruited by the RCMP in 2009. He did his initial training in French at the RCMP’s Depot Division in Regina. As part of a pilot project, along with other unilingual Francophone cadets, he was sent to do his practical training at the RCMP’s E Division in British Columbia. He also received training to acquire the necessary language skills. Apparently, he did not learn English as quickly as his superiors would have liked.

[3]  In June 2013, Mr. Frémy underwent an assessment of his skills as part of his training program. This assessment covered a range of topics. However, one of the board members decided to interrupt the assessment on the grounds that Mr. Frémy was unable to answer the questions. The record does not specifically reveal the role that Mr. Frémy’s language abilities might have played in that decision. A report completed a few days before by one of his supervisors suggested, rather, that Mr. Frémy had made significant progress in becoming a constable.

[4]  In the summer of 2013, Mr. Frémy contacted the RCMP official languages department to plan for the resumption of his language training.

[5]  In August 2013, Mr. Frémy filed a complaint with the Office of the Commissioner of Official Languages [the Office of the Commissioner] regarding his treatment by the RCMP. Documentation submitted by Mr. Frémy in the context of this case does not contain all the correspondence exchanged with the Office. It contains only certain pages from the preliminary report and final report by the Office of the Commissioner, which found that the RCMP had breached its obligations under the Official Languages Act, RSC 1985, c. 31 (4^th Supp.). It also contains several emails exchanged with the Office of the Commissioner’s investigator.

[6]  On August 30, 2013, Mr. Frémy was notified that he had been assigned to administrative tasks, and his uniform and service weapon were removed. His language training was also terminated. From that moment, he was required to report to his place of work without any significant work being assigned. On September 2, his supervisor, Sergeant Raffle, told him that he was at risk of being dismissed because he lacked proficiency in English.

[7]  On October 25, Mr. Frémy had an email exchange with Rashpal Lovelace, from the RCMP’s human resources department. She told him that the RCMP intended to dismiss him. She invited him to a meeting to discuss potential “options.” That meeting took place on October 31. A Staff Relations Representative [SRR] was also present at the meeting. In the RCMP’s labour relations regime in force at the time, the SRR’s role was to give advice to members as part of their employment relationship with the RCMP. Ms. Lovelace then notified Mr. Frémy that he could request a voluntary discharge, which would avoid a dismissal. There was also talk of notice that could be awarded to Mr. Frémy in the event of voluntary discharge. As for Mr. Frémy, he asked whether he could be transferred to Quebec. According to Mr. Frémy, Ms. Lovelace told him that the reason for his eventual dismissal was his lack of proficiency in English.

[8]  Over the next two months, discussions took place between the RCMP and Mr. Frémy. The RCMP refused to transfer Mr. Frémy to Quebec. It offered notice of approximately one year, during which Mr. Frémy would continue receiving his salary. Faced with Mr. Frémy’s hesitations, the RCMP issued an ultimatum and asked Mr. Frémy to submit a request for voluntary discharge by December 23, otherwise a discharge procedure would be initiated.

[9]  During this period, Mr. Frémy was able to obtain advice from two SRRs, one of whom was able to advise him in French. He also obtained advice from a French-speaking lawyer whose services had been retained by the SRR Program. Mr. Frémy said that all these people told him that he would have no chance of winning if he challenged an eventual decision by the RCMP to dismiss him and that he requesting a voluntary discharge was a much better idea.

[10]  Mr. Frémy signed his request for voluntary discharge on December 24, 2013. According to the agreement with the RCMP, this discharge would only take effect on November 11, 2014.

[11]  As early as January 7, 2014, Mr. Frémy sent an email to the RCMP Commissioner’s office in which he stated that his resignation was not free and voluntary and requested leave to withdraw it.

II.  Arbitration awards

[12]  The challenge to the validity of Mr. Frémy’s decision has followed a particularly tortuous procedural path. I will summarize only the aspects that are most relevant to this decision.

[13]  Mr. Frémy initially filed a grievance against his discharge, alleging that he had resigned under duress. A decision with respect to that grievance was made on October 9, 2015. The adjudicator found that Deputy Commissioner Callens had failed to make a decision on Mr. Frémy’s request to withdraw his resignation. She therefore ordered Deputy Commissioner Callens to consider Mr. Frémy’s request and make a decision within 60 days, otherwise the grievance would be allowed in full and Mr. Frémy reinstated with the RCMP.

[14]  On December 9, 2015, Deputy Commissioner Callens denied Mr. Frémy’s request.
Mr. Frémy filed a new grievance to challenge this decision.

[15]  This new grievance was the subject of a first level decision on October 20, 2016. The following paragraphs provide an adequate summary of the reasons of the adjudicator’s decision:

[translation]

The case law indicates that the mere fact of having to choose between resignation and discharge does not constitute a decision made under duress. In reviewing the complainant’s situation as presented in this case, I find that there was a choice between voluntary discharge or dismissal (p. 17) and that he consulted a member representative regarding this decision (p. 19 and 22). The record also shows that the process that led the complainant to sign his request for discharge spanned several months, giving him a chance to make a considered decision.

The complainant alleges that he was intimidated in the months leading up to his voluntary resignation. He said that he lost certain privileges, such as wearing the uniform, and also stated that he was relieved of his responsibilities. Knowing that the member was facing an eventual dismissal, although the record contains very little information on the reasons behind this dismissal, I am of the opinion that the circumstances described by the complainant are appropriate in the case of a member faced with dismissal, and I cannot find that this constitutes intimidation or harassment.

(Level I Adjudicator’s decision, paragraphs 49–50)

[16]  Mr. Frémy subsequently brought the case before a Level II Adjudicator. On May 10, 2017, the Level II Adjudicator upheld the decision by the Level I Adjudicator and dismissed Mr. Frémy’s grievance. She found that Deputy Commissioner Callens’s decision was reasonable on the evidence. The essence of her 45-page decision is reflected in the following excerpt:

[translation]

I must remind the complainant, as did the Level I Adjudicator, as well as the respondent, that his decision was guided by the good advice of two SRRs, a Member Employee Assistance Program representative and two legal advisors who negotiated on his behalf. Faced with two choices, resignation or the possibility of a discharge procedure, he decided to resign. This choice was not a spontaneous, reactive or ill-considered decision made under the influence of strong and sudden emotions or a wave of anger. In the months leading up to his resignation, the complainant consulted competent resources, including at least two legal advisors representing his interest and with whom he could have conversations protected by solicitor-client privilege. Furthermore, he negotiated his departure succeeding in obtaining not a transfer, as he would have liked, but instead almost eleven months of wages. Over four months after learning that he could face discharge, and having had ample time to consider his options and even negotiate his departure, he resigned.

(Decision by the Level II Adjudicator, para 160)

[17]  Mr. Frémy filed an application for judicial review of that decision with the Federal Court.

[18]  It should be noted that throughout these various proceedings, the RCMP has never attempted to justify its intention to dismiss Mr. Frémy or even state the reasons thereof. The RCMP merely asserted that Mr. Frémy’s resignation was voluntary and that there was no reason to revoke it, arguing that the reasons for the intended dismissal, as well as the “language issue,” were irrelevant. It follows that the record before me does not contain any evidence enabling me to refute Mr. Frémy’s allegations that he was dismissed due to his lack of proficiency in English.

III.  Issues and standard of review

[19]  The framework governing this Court’s intervention should now be defined.

[20]  Mr. Frémy filed an application for judicial review. The purpose of this type of application is to review the legality of a decision made by the public administration. If the Court finds that the decision is inconsistent with the law, it can only set it aside. As a general rule, the Court itself cannot make the decision that the administration should have made. Rather, it must refer the matter back for a new decision (Canada (Citizenship and Immigration) v Yansane, 2017 FCA 48 at paras 15–20 [Yansane]).

[21]  However, in the conclusions of his application for judicial review, Mr. Frémy asks this Court for reinstatement with the RCMP, adjustments to his years of service and damages to compensate for lost wages and other harm. In the context of an application for judicial review, this Court cannot award such remedies. The role of this Court is limited to reviewing the decision made by the Level II Adjudicator and, as the case may be, quashing that decision.

[22]  The Level II Adjudicator’s decision focuses on whether Mr. Frémy’s resignation was voluntary and whether there were “limited and exceptional circumstances” warranting the withdrawal of his resignation. This question is subject to the reasonableness standard. Indeed, since Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], “a court must presume, in reviewing a decision in which a specialized administrative tribunal has interpreted and applied its enabling statute or a statute with a close connection to its function, that the reasonableness standard applies” (Barreau du Québec v Quebec (Attorney General), 2017 SCC 56 at para 15). The Level II Adjudicator’s decision dealt with the interpretation and application of the Act. The Act is at the heart of the adjudicator’s mandate, and its application is the latter’s expertise. The use of common law rules or concepts, including those relating to employment law, to supplement the Act does not mean that the adjudicator has stepped outside his or her area of expertise. Decisions by adjudicators who apply common law principles are also subject to the reasonableness standard (Nor‑Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616 [Nor-Man]).

[23]  In addition, Mr. Frémy also challenges the decision by Deputy Commissioner Callens in December 2014. However, in cases where an administrative decision may be subject to internal remedies, it is the final decision, not the initial decision, that is subject to a judicial review before this Court.

IV.  Analysis

A.  Relevant legal sources

[24]  Employment in the RCMP is governed first and foremost by the Act. It has often been said that because of the special nature of the work of police officers, there is no contractual relationship between police officers and the Crown (see, for example, Flanagan v Canada (Attorney General), 2014 BCCA 487). For example, under section 7 of the Act the Commissioner can “appoint” members instead of hiring them.

[25]  At the material time, subsection 12(2) of the Act stipulated that a member of the RCMP may be dismissed or discharged only under the provisions of the Act, regulations or the Commissioner’s standing orders. Section 21 granted the Governor in Council and the Commissioner authority to make regulations with respect to discharge of members. In addition, under section 30 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 [the Regulations], in force at the relevant time, a member “may voluntarily resign from the Force at any time […] in writing.” The RCMP Administrative Manual contains a section on resignation of its members, called “request for voluntary discharge,” which includes the following note: “A voluntary discharge request is irrevocable, unless limited and exceptional circumstances apply” (section 11.14 D).

[26]  Even in the absence of a contract in the strict sense, employment law nonetheless provides an indispensable backdrop to understanding concepts in the Act and Regulations. In addition, section 8.1 of the Interpretation Act, RSC1985, c I-21, provides that the private law of a province must be used when it is necessary to supplement or interpret the provisions of an Act of Parliament in order to apply it to the province in question. Since the facts in issue took place in British Columbia, it is common law employment law that clarifies the concepts in the Act and Regulations, and in particular the concept of “resignation,” which is central to this case. Furthermore, the adjudicators reviewing this case did not hesitate to rely on employment law precedent, just as judges of this Court have done in other cases (Britton v. Canada (Royal Mounted Police), 2012 FC 1325 at para 21).

B.  Applicable legal framework and standard of review

[27]  To fully understand the scope of the standard of review in this case, it is necessary to have an understanding of the legal nature of the decision under review, which was essentially to rule on the validity of Mr. Frémy’s resignation. Based on the note in the administrative manual that a resignation may be revoked under “limited and exceptional circumstances,” the Level II Adjudicator stated that this was a discretionary power conferred on Deputy Commissioner Callens (paragraph 161). She inferred that a high degree of deference was necessary, since the Manual does not circumscribe the exercise of this power.

[28]  With respect, I find that this analysis is incorrect. We must first consider the issue from the perspective of the Act and Regulations. I reproduce here in full section 30 of the Regulations as it read at the time:

[29]  It is clear from this provision that the resignation is primarily a contractual concept, since it is formed by an offer and acceptance. It follows that Deputy Commissioner Callens’s power to authorize Mr. Frémy to withdraw his resignation is not strictly discretionary but rather a power that is structured by the common law rules allowing a resignation to be invalidated. This power therefore has an important legal content. As Stratas J. of the Federal Court of Appeal noted:

[…] where the decision-maker is considering a discretionary matter that has greater legal content, the range of possible, acceptable outcomes open to the decision-maker might be narrower.

(Canada (Attorney General) v. Abraham, 2012 FCA 266 at paragraph 45)

[30]  While it is true that a grievance adjudicator is not always required to apply common law concepts in exactly the same way as the courts (Nor-Man at paragraph 54), in this case I find it difficult to understand how a resignation that would be considered invalid at common law could still be upheld under the Act and Regulations.

C.  Voluntariness of a resignation at common law

[31]  A number of Canadian court decisions deal with situations where an employee alleges having been forced to resign. The courts recognize that a resignation may be vitiated if, in reality, it was not given voluntarily. A decision by the Supreme Court of British Columbia summarizes the rule as follows: “When an employee is left with no choice but to resign or be fired, the resignation is not voluntary and a letter of resignation is tantamount to a dismissal” (Chan v Dencan Restaurants Inc., 2011 BCSC 1439 at paragraph 34 [Chan]; see also Deters v Prince Albert Fraser House Inc., 1991 CanLII 7933 (Sask CA) at paragraph 13; Ramsay v Terrace (City), 2014 BCSC 1292 [Ramsay]).

[32]  For example, in Chan, an employee was the subject of unjustified negative comments by his supervisor for several months, thus giving him the impression that he wanted to get rid of him. Following a particular incident, his supervisor told him to resign or he would be dismissed. The Court held that the resignation was involuntary. In Ramsay, without any forewarning, a municipal employee received an extremely negative assessment and was given the choice of resigning or facing a discharge procedure. The Court held that the resignation was involuntary, especially since the employee received little explanation for his negative assessment.

[33]  The decisions are the manifestation, in the context of labour law, of the general rule of contract law regarding economic duress. According to this rule, a contract entered into as a result of economic threats may be declared invalid if the victim of coercion did not provide genuine consent due to the threat and if the threat was illegitimate (Universe Tankships of Monrovia v International Transport Workers’ Federation, [1983] 1 AC 366 (HL) at 400; see also Stott v Merit Investment Corp. (1988), 48 DLR (4th) 288 (Ont CA); NAV Canada v Greater Fredericton Airport Authority Inc., 2008 NBCA 28; Burin Peninsula Community Business Development Corporation v Grandy, 2010 NLCA 69; Taber v Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at para 9; John D. McCamus, The Law of Contracts, 2^nd Ed., Toronto, Irwin Law, 2012, pp 385–402; by way of comparison with the civil law, see The Queen v Premier Mouton Products Inc., [1961] S.C.R. 361; Gelber v Kwinter (Estate of), 2008 QCCA 1838).

[34]  Based on this case law, it is clear that the decision-maker must consider all the circumstances in order to determine the genuineness of the consent and the legitimacy of the threat.

D.  Adjudicator’s errors in this case

[35]  In this case, however, the Level II Adjudicator merely considered the fact that Mr. Frémy obtained legal advice and that he was able to negotiate the conditions of his resignation, receiving almost eleven months’ wages (see the excerpt above from her decision). She did not consider all the circumstances, including the following aspects, which appear particularly relevant to the assessment of the coercion that Mr. Frémy alleges to have experienced.

[36]  First, the Level II Adjudicator failed to consider the RCMP’s treatment of Mr. Frémy beginning in August 2013. Implicitly, she agreed with the Level 1 Adjudicator, who found that this treatment was warranted under the circumstances. It should be noted that in late August 2013, Mr. Frémy was suspended from his regular duties and assigned administrative tasks. He stated that, in fact, he was not assigned any work and had to spend long weeks seated idle behind a desk. He never received a formal explanation of the reasons for his suspension. The only clue was his supervisor’s statement that he could be discharged because of his lack of proficiency in English. One might think, as the Level II Adjudicator seems to have done, that this suspension gave Mr. Frémy time to reflect. However, this overlooks the fact that Mr. Frémy had to wait two months before being told explicitly that the RCMP intended to discharge him. It seems to me that the adjudicator should have instead considered the psychological effect of this suspension made without any declared reason, which is reminiscent of the climate of animosity and injustice that developed for several months in Chan.

[37]  Second, the Level II Adjudicator completely failed consider the legitimacy of the intended dismissal, stating the following:

[translation]

I would remind the complainant that he decided to resign even before he was notified of his intended discharge and that the reasons that might have led to his dismissal, whatever they were, cannot enable him to establish duress in the context of a resignation.

(Level II Adjudicator’s decision, para 154)

[38]  In contract law, the legitimacy of the coercion is a decisive factor in assessing economic duress. In labour law, the threat of dismissal based on an invalid pretext or grounds does not constitute legitimate coercion. For example, in Ramsay, the employer had attempted to justify the intended dismissal of the applicant. However, in Head v Ontario Provincial Police Commissioner (1983), 127 DLR (3d) 366 (Ont CA), upheld sub nom Head v Graham, [1985] 1 S.C.R. 566, Mr. Head, a police officer, had been arrested for sex offences when he was given the choice to resign or face discharge procedures. His resignation was deemed to be valid. The Ontario Court of Appeal held that the representatives of the Ontario Provincial Police had not done anything inappropriate by seeking Mr. Head’s resignation.

[39]  In this case, it was impossible to ignore the reasons for the intended dismissal and the “language issue.” In other words, if the RCMP intended to dismiss Mr. Frémy due to his lack of proficiency in English, because the budget for second-language training was exhausted or any other similar reasons, it is highly likely that the coercion against him was illegitimate. It was also dangerous to discard all evidence related to Mr. Frémy’s complaint to the Office of the Commissioner of Official Languages. The sequence of events might suggest that Mr. Frémy was the victim of retaliation because he filed this complaint. Likewise, the excerpts from the Office of the Commissioner of Official Languages reports that were submitted in the record suggest that the language requirements that the RCMP imposed on Mr. Frémy violated the Official Languages Act, RSC 1985, c 31 (4^th Supp). However, due to the approach taken by the Level I and Level II Adjudicators, these key issues remain unaddressed.

[40]  Third, the Level II Adjudicator did not consider that the RCMP had held out the possibility of a transfer to Quebec, only to withdraw the idea. This approach could have increased the pressure felt by Mr. Frémy, who saw it as a reasonable solution to the situation.

[41]  Fourth, the adjudicator does not appear to have considered the fact that after returning from the holiday break, Mr. Frémy took steps to withdraw his resignation. This tends to show that his resignation was not actually voluntary.

[42]  On this matter, the adjudicator who decided Mr. Frémy’s first grievance made the following remarks:

[TRANSLATION]

The record shows that the complainant did not want to resign, since he diligently contacted the responsible officers between January 7 and November 11, 2014, to withdraw his discharge. The complainant’s allegations regarding the circumstances surrounding his request for discharge could justify the revocation of his discharge […].

(Paragraph 51)

[43]  Does the failure to consider these factors make the Level II Adjudicator’s decision unreasonable?

[44]  Discretionary powers are often circumscribed. Legislation sometimes states that a decision-maker must consider a particular set of factors. In other cases, the common law identifies that factors that must be considered. In these situations, failure to consider all the relevant factors gives rise to an unreasonable decision. The Federal Court of Appeal put it this way:

If the Tribunal fails to consider meaningfully or completely any of these criteria, or if it artificially cuts down or limits any of these criteria, it is disobeying Parliament’s requirement in the subsection and is not reaching an outcome that can be viewed by a reviewing court as within the range of the possible or acceptable […]

(Canada (Attorney General) v Almon Equipment Limited, 2010 FCA 193 at para 39, [2011] 4 FCR 203)

[45]  This is what happened in this case. As I have just established, the Level II Adjudicator failed to consider several relevant factors. Consideration of these factors could well have resulted in the finding that Mr. Frémy’s resignation was given under duress and that it should be declared invalid.

[46]  Of course, when parties reach a settlement to settle or avoid a dispute, there is always some degree of coercion, and the settlement is not always necessarily invalid. Case law recognizes that the mere fact of regretting a settlement does not make it involuntary (Yacucha v Canadian National Railway Company, 2007 FC 233). In this case, however, too much evidence suggesting that Mr. Frémy’s resignation was not voluntary was discarded by the adjudicators.

E.  Procedural fairness

[47]  Given my finding on the main issue, it is not necessary for me to decide the allegations of breach of procedural fairness.

V.  Appropriate remedy

[48]  Normally, when the Court finds that a decision is unreasonable, it refers the case back to the lower court for a new decision. This approach makes it possible to respect the respective missions of the Court and administrative bodies. In fact, in this case, it is to the bodies established by the Act that Parliament has entrusted the role of deciding grievances by members of the RCMP, and not this Court. This was noted by de Montigny J. of the Federal Court of Appeal in Yansane:

In general, the role of a superior court in a judicial review of an administrative decision is not to replace the administrative decision-maker’s decision with its own decision; rather, its role is limited to verifying the legality and reasonableness of the decision rendered, and to returning the file to the same decision-maker or another decision-maker in the same organization if it finds that an error was made and that the decision was illegal or not within the range of possible, acceptable outcomes in respect of the facts and the law […].

(Yansane at paragraph 15)

[49]  At the hearing, Mr. Frémy stated that referring the matter to an adjudicator would be tantamount to handing him over, defenceless, to the RCMP. I understand Mr. Frémy’s apprehensions. After all, under section 32 of the Act, the Commissioner of the RCMP is the second-level decision-maker; it is only through the intermediary of delegation that this power is exercised by an adjudicator. I am also mindful of the passage of time: over four years have already elapsed since the resignation whose validity is being challenged. Nevertheless, I remain confident that an adjudicator will be able to decide the matter fairly, in accordance with these reasons. In this regard, I would again cite Yansane:

[…] it goes without saying that an administrative tribunal to which a case is referred back must always take into account the decision and findings of the reviewing court, unless new facts call for a different analysis.

(Yansane at paragraph 25)

[50]  To summarize, the adjudicator to whom the matter is referred will have to determine whether Mr. Frémy’s resignation was valid based on the common law test for economic duress. The adjudicator will have to take into account all the circumstances, including the reasons that led the RCMP to force Mr. Frémy to choose between resignation and discharge.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.  The application for judicial review is allowed;

2.  The decision by the Level II Adjudicator is set aside;

3.  The matter is referred back to another adjudicator for redetermination;

4.  The respondent is ordered to pay costs.

“Sébastien Grammond”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-872-17
STYLE OF CAUSE:		ERIC BERNARD FRÉMY v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Ottawa, ontario
DATE OF HEARING:	MARCH 26, 2018
JUDGMENT AND REASONS:	GRAMMOND j.
DATED:	APRIL 23, 2018

APPEARANCES:

Éric Bernard Frémy	FOR THE APPLICANT (ON HIS OWN BEHALF)
Marie-Josée Bertrand	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Attorney General of Canada Ottawa, Ontario

FOR THE RESPONDENT