Date: 20061208
Docket: T-1767-05
Citation: 2006 FC 1466
Ottawa, Ontario, December 8, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SHELLEY D. MARSH
Applicant
and
GIULIANO ZACCARDELLI, COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE,
THE ROYAL CANADIAN MOUNTED POLICE and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Ms. Marsh is a retired member of the Royal
Canadian Mounted Police (Force or RCMP) who submitted a grievance in respect of
what she characterizes to be her forced retirement from the Force.
Specifically, she says that she was forced into retirement and into taking her
retirement relocation move without any consideration being given to allowing
her to move and continue as a member of the Force for two years following that
move. The Grievance Advisory Board (GAB) established under the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (Act) considered her
grievance and recommended that it be denied. Subsequently, her grievance was denied
by both a Level I Adjudicator and a Level II Adjudicator (Adjudicator). This
application for judicial review is brought in respect of the decision of the
Adjudicator that the grievance be denied on merit.
[2] Ms.
Marsh asserts that because of the unreasonable delay in dealing with her
grievance the Adjudicator lost jurisdiction, or failed to observe a principle
of natural justice or procedural fairness. Ms. Marsh also submits that the
Adjudicator erred in law by finding that she was required to demonstrate that
other members of the Force had been allowed to take their retirement relocation
move and then remain with the force. Finally, Ms. Marsh argues that the
Adjudicator further erred by basing his decision upon an unreasonable finding
of fact or by failing to have reasonable regard to the material before him.
[3] For
the reasons that follow, I find that the Adjudicator neither lost jurisdiction
nor committed any reviewable error.
RELEVANT FACTS
[4] Ms.
Marsh says the relevant facts are as follows. At all material times she was
married to another member of the Force. They both were stationed in “E”
Division, but both wished to be relocated to “K” Division in order to be near
aging parents.
[5] After
reviewing section VI.2.P.1.b of the RCMP Administration Manual (provision) Ms. Marsh
believed that she was permitted to sell her principal residence, relocate,
purchase a new residence within two years of retiring, continue to work at the
relocated location for two years until her retirement, and qualify for
reimbursement of the real estate and legal fees incurred in the sale and
purchase of the residences.
[6] A
sergeant in “E” Division Staffing confirmed Ms. Marsh’s interpretation, and
told her that if she wished to proceed in this manner it would not be a problem
and that pre-retirement moves of this sort took place.
[7] Section
VI.2.P.1.b of the RCMP Administration Manual provided:
A member who intends to retire
may, within two years of his/her intended discharge date, dispose of his/her
principal residence at the discharge location and acquire a new principal
residence at the retirement destination and qualify for reimbursement of real
estate and legal fees.
[8] Meanwhile,
Ms. Marsh's husband had confirmed that her retirement move could be used to
allow him to transfer to “K” Division. On June 7, 1999, Ms. Marsh submitted
her Discharge Request Form. On the same day her husband submitted a memorandum
requesting that he be designated for a vacant position in K Division. On June 8,
1999, Ms. Marsh sent an e-mail to the officer in charge of “E” Division
Staffing. The e-mail set forth the provision and Ms. Marsh’s advice that she
was aware of other members of the Force who were allowed to take a
pre-retirement move and then continue to work for another two years. The
response she received was as follows:
Shelly, at this time because of
our fiscal and resourcing problems, we are not releasing members to other
Divisions, unless the other division identifies a need to us and is willing to
pay for both the exiting and the backfill moves. “K” Division at this time has
not indicated a need.
On retirement you are entitled to
and you will qualify for reimbursement of real estate and legal fees. You are
not entitled to a pre-retirement move and a new job for two years.
[9] Faced
with this advice in respect of her pre-retirement move, Ms. Marsh nonetheless
submitted the documents that would allow her to move with a retirement date of
December 1, 1999. She says that the only alternative available to her would
have been to remain in “E” Division, away from aging or sick family members,
and that this was not a realistic option. As a result, she took her retirement
at that time, thus losing two years of income and incurring a penalty to her
pension.
[10] On
July 7, 1999, she submitted her grievance. The GAB met on October 30, 2001 and
on July 4, 2002 it unanimously recommended that her grievance be denied. Ms.
Marsh responded to the GAB report on September 9, 2002. On April 13, 2004, the
Level I Adjudicator dismissed the grievance. On June 8, 2004, Ms. Marsh
directed that the grievance be forwarded to Level II Adjudication. The
Adjudicator rendered his decision on September 9, 2005.
THE DECISION OF THE
ADJUDICATOR
[11] The
Adjudicator shared the Level I Adjudicator's conclusion that "all relevant
and applicable information has been considered and the Grievor has not
established RCMP policies and procedures were improperly applied".
[12] With
respect to whether Ms. Marsh had been fairly and equitably treated, the
Adjudicator wrote:
The Grievor believes that it is
the responsibility of “E” Division Staffing and Personnel to find, or assist
her in finding, employment at her discharge location (Edmonton). Staffing and
Personnel insist that the primary element of the noted policy deals with the
disposal of a principal residence and the purchase of a new principal residence
at the retirement destination. Any transfer of a member in relation to the
provisions of this section is at best an inferred appropriation, not a right or
an obligation on the part of the RCMP. Staffing and Personnel do not
ordinarily do job searches for retiring members. If there is a need within the
RCMP that coincides with those of a member seeking to retire, and both parties
can benefit, there is consideration given to those circumstances. Normally,
this process is initiated by the member, not S&P.
While there is no doubt that
isolated cases have been dealt with in different fashions, I do not believe
that it was the intent of the noted policy to deal with a situation in which
the member would seek to relocate to a new job for two years at the retirement
end. It is clear to me that the member is to be discharged from the place he
or she is originally posted when the request is made, not years later at the
retirement location.
The Grievor has asserted that
many other members have been given the advantage of what she terms as a
“pre-retirement move” yet she has not provided any specific examples of those
situations. Given my interpretation of policy, and the lack of detail provided
by the Grievor, I must conclude, based on the documentation before me, that the
member has been equitably and fairly treated.
Finally, there is no evidence
before me that the Grievor was forced to retire. Quite to the contrary. She
was told that there would be no job for her at the retirement destination prior
to the submission of her discharge papers. Even after that date, the Grievor
could have withdrawn her request. She did not.
[13] The
Adjudicator did not deal with Ms. Marsh's complaint about the "delay in
attention and response to this matter by the RCMP". The delay was said by
her to amount to "administrative neglect".
THE ISSUES
[14] On
this application for judicial review, Ms. Marsh raises the following three
issues:
1. Did the Adjudicator lose jurisdiction, fail to observe a
principle of natural justice, procedural fairness or other procedure that he
was required to observe, by virtue an unreasonable delay in dealing with her
grievance?
2. Did the Adjudicator err in law by determining that it was Ms.
Marsh's responsibility to demonstrate that other members of the RCMP had been
given the advantage of a pre-retirement move?
3. Did the Adjudicator base his decision on an erroneous finding
of fact made in a perverse or capricious manner or without reasonable regard to
the material before him?
[15] A
fourth issue raised in Ms. Marsh’s written argument was not pursued in oral
argument. That issue was whether the Adjudicator erred in law by failing to
give Ms. Marsh an opportunity to provide evidence that other RCMP members had
been given the advantage of a pre-retirement move.
STANDARD OF REVIEW
[16] Ms.
Marsh submits, correctly, that there may be different standards of review for
different issues decided by the Adjudicator. She submits that a pragmatic and
functional analysis leads to the result that: questions of law are reviewed on
the standard of correctness; questions of fact are reviewed on the standard of
patent unreasonableness; and questions of mixed fact and law are reviewed on
the standard of reasonableness simpliciter.
[17] The
respondents argue that all elements of the pragmatic and functional analysis
favor great deference to the Adjudicator's decision so that it should be
reviewed on the standard of patent unreasonableness.
[18] Because
different standards of review will apply to the issues Ms. Marsh raises, the
standard of review for each asserted error will be considered below in the
context of the discussion of each issue.
[19] I
turn to consider each issue raised by Ms. Marsh.
Did the Adjudicator lose
jurisdiction or fail to observe a principle of natural justice, procedural
fairness or other procedure he was required to observe, by virtue of an
unreasonable delay in dealing with her grievance?
[20] Relying
upon the decisions of NLK Consultants Inc v. British Columbia
(Human Rights Commission) (1999), 17 Admin. L.R. (3d) 46 (B.C.S.C.) and Misra
v. College of Physicians & Surgeons (Saskatchewan), [1988]
5 W.W.R. 333 (Sask. C.A.) Ms. Marsh argues that unreasonable delay may amount
to a breach of natural justice, a breach of procedural fairness, an abuse of
discretion or an abuse of process. She characterizes the delay in dealing with
her grievance to be unreasonable and argues that it resulted in a loss of
jurisdiction, or breach of natural justice and procedural fairness. It
follows, she says, that the Adjudicator's decision should be quashed and the
Court should order that she:
1. be
reinstated as a regular member of the RCMP as at December 1, 1999 until
December 1, 2001;
2. receive
retroactive pay from December 1, 1999 until December 1, 2001;
3. receive
credit for pensionable service from December 1, 1999 until December 1, 2001;
4. receive
reimbursement of real estate and legal fees for her move to Edmonton; and
5. receive
the costs of this application.
[21] In
response, the respondents argue that there was no substantive breach of natural
justice or procedural fairness caused by any delay, that Ms. Marsh was not
prejudiced and that the issue of delay was expressly addressed by the
Adjudicator.
[22] Dealing
first with the applicable standard of review, the pragmatic and functional
analysis does not apply to judicial review brought on the ground of breach of
procedural fairness. It is for the reviewing court to determine procedural
fairness questions. See: Canadian Union of Public Employees v. Ontario
(Minister of Labor), [2003] 1 S.C.R. 539 at paragraph 100.
[23] Turning
to the length of the delay, the chronology of the grievance process is as
follows:
• July 7, 1999 – Ms.
Marsh filed a “Level I” grievance, alleging that she was entitled to a
pre-retirement move, and the right to work at “K” division for two years,
because this sort of arrangement had been granted to other RCMP officers.
• October 26, 1999 – Ms.
Marsh received a letter denying (based on privacy concerns) her request to
acquire information with respect to five other RCMP employees who had retired
and allegedly used their pre-retirement move allowance to move and still be
allowed to continue working in another division.
• October 28, 1999 – Ms.
Marsh requested notes, emails and correspondence concerning her file from
Staffing, Sgt. Demerath, and Sgt. Deevy.
• December 1, 1999 – Ms. Marsh retired and moved to Edmonton.
• June 7, 2000 – Ms.
Marsh received all available information in response to her October 28,
1999 request. The response stated that some material may no longer be in
existence.
• May 27, 2001 – Ms.
Marsh provided an outline of the reasons for her grievance to the RCMP.
• May 29, 2001 – An
internal RCMP letter, from administration to the Commanding Officer, stated
that the process of determining the nominees to preside at the grievance
hearing was underway.
• June 1, 2001 – Ms.
Marsh was sent a letter informing her who would be serving on the GAB to hear
her grievance. She had no objections to the proposed GAB members.
• October 30, 2001 – The GAB convened to resolve Ms. Marsh’s grievance.
• July 4, 2002 – The
GAB concluded that Ms. Marsh was not entitled to a pre-retirement move and then
continued employment in the new division. The GAB also found that while Ms.
Marsh had been given some false information, the mistakes were clarified and
she made a fully informed decision to retire.
• September 9, 2002 –
Ms. Marsh requested that the GAB decision be reviewed by the internal RCMP
review process – the “Level I” review.
• April 13, 2004 –
Deputy Commissioner Busson denied the Level I grievance review, finding that Ms.
Marsh had not been forced to retire.
• June 8, 2004 - Ms. Marsh requested a Level II grievance
review.
• September 9, 2005 –
The Level II grievance review upheld the decision of the Level I Adjudicator. Ms.
Marsh received a copy of this decision on September 13, 2005.
• October 11, 2005 – Ms. Marsh filed this application for
judicial review.
[24] No
evidence was provided concerning the usual time required to complete the
grievance process or explaining any source of delay.
[25] Section
31(6) of the Act requires that:
|
As soon as
possible after the presentation and consideration of a grievance at any level
in the grievance process, the member constituting the level shall render a
decision in writing as to the disposition of the grievance, including reasons
for the decision, and serve the member presenting the grievance and, if the
grievance has been referred to the Committee pursuant to section 33, the
Committee Chairman with a copy of the decision.
|
Le membre qui constitue un niveau de la procédure applicable aux
griefs rend une décision écrite et motivée dans les meilleurs délais possible
après la présentation et l’étude du grief, et en signifie copie au membre
intéressé, ainsi qu’au président du Comité en cas de renvoi devant le Comité
en vertu de l’article 33.
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[26] In
view of this direction and the length of time taken to deal with the Level I
grievance review (approximately 19 months) and the Level II grievance
(approximately 15 months), I am prepared to assume for the purpose of the
analysis that the grievance process was protracted and took longer than
Parliament intended. The next question is whether the delay resulted in a loss
of jurisdiction or breach of natural justice or procedural fairness as Ms.
Marsh alleges.
[27] As
noted in Judicial Review of Administrative Action in Canada, Brown & Evans,
(loose-leaf) (Toronto: Canvasback Publishing 2000) at 9:8100, administrative
delay may be invoked as a ground for impugning administrative action. However,
delay by itself will rarely constitute a ground of review. Generally, in order
to establish that delay rises to the level of a breach of the duty of fairness,
an applicant must establish actual prejudice to their ability to provide a full
answer or defense. (Brown & Evans at 9:8230).
[28] In
the present case, Ms. Marsh’s affidavit, filed in support of her application,
is silent on the existence of any actual prejudice. In her written argument,
she describes the prejudice she has suffered in the following terms:
53. In
the case at bar, it was almost 5 years by the time the Applicant requested a
Level II review of the Level I Adjudicator’s decision. At [sic] central
issue in the [sic] both the Level I and II decisions, was the fact that
the Applicant did not raise any evidence of members who had received the
benefit of a “pre-retirement move”. However, at the time the original
grievance was filed there was evidence that the Applicant did have knowledge of
individuals who had received the benefit of “pre-retirement move” under the
policy. Moreover, the Applicant also knew that Sgt. Deevy possessed knowledge
of members who had received this benefit.
54. The
Applicant submits that if she has received the Level I Adjudicator’s decision
“as soon as possible” as contemplated under s. 31(6) of the RCMP Act,
that she would have been able to raise further evidence of members who had
taken such a “pre-retirement move”. However, because of the 5-year delay, she
is prejudiced in that she has moved from Burnaby, witnesses may have moved, and
relevant documents may have been lost. Furthermore, even if the witnesses
could be tracked down, there is no guarantee that they could now give the
evidence as existed at the time of the grievance. As it was stated by Lawton
J. in Douglas v. Saskatchewan (Human Rights Commission):
In our present mobile society it
is reasonable to assume that witnesses can be hard to locate. I believe that
minds dim and memories fade and not just in old people …
Douglas v. Saskatchewan
(Human Rights Commission), (1989), 79 Sask. R. 44 (Sask. Q.B.) at para. 25.
RCMP Act, supra
at para. 1.
55. Because
of the delay in receiving the Level I Adjudicator’s decision, the Applicant was
prevented from accessing witnesses that would have otherwise been available to
her. As a result the Applicant suffered real evidentiary prejudice in
presenting evidence in support of her contention that other members had
received the benefit of the “pre-retirement move”.
[29] It
is correct, as Ms. March argues, that at the time of her original grievance she
had some knowledge of individuals who she believed had received the benefit of
a "pre-retirement move". This was raised in her letter of September
15, 2000 which formed part of the GAB package. There, she noted that in her
grievance presentation she had sought information concerning the names and
regimental numbers of members who had been allowed to take a retirement move
and continue working for two years. She was advised that within “E” Division
there were five such members, but their names were protected as private
information.
[30] In
view of the fact that as part of the grievance process Ms. Marsh had sought and
obtained some evidence in respect of members who had taken a pre-retirement
move, and had placed that information before the GAB, I find her submission
that but for the delay she would have been able to adduce further evidence of
members who had taken pre-retirement moves to be unsupported by evidence. There
is no evidence of what, if any, additional evidence Ms. Marsh could have
obtained. In her grievance presentation she had already availed herself of her
right, under subsection 31(4) of the Act, to obtain “access to such written or
documentary information under the control of the Force and relevant to the
grievance as the member reasonably requires to properly present it”.
[31] Similarly,
I find her arguments that witnesses may have moved, that documents may have
been lost, and that witnesses’ memories may have faded to be non-specific
assertions that fall short of establishing an inability to prove necessary
facts due to the passage of time.
[32] I
therefore find that Ms. Marsh failed to establish on this application any prejudice
resulting from delay.
[33] Ms.
Marsh also argues that it is not necessary for her to show actual prejudice
because prejudice may, in certain cases, be inferred. She relies upon the
decision in NLK Consultants, cited above, and the decision in MacPhee
v. Barristers' Society of New Brunswick (1983), 5 Admin. L.R. 240
(N.B.Q.B.) in support of this proposition.
[34] However,
those decisions pre-date the decision of the Supreme Court of Canada in Blencoe
v. British Columbia (Human Rights Commission), [2000] 2
S.C.R. 307, a decision the parties were referred to by the Court during oral
argument. In Blencoe, the Court considered whether a remedy existed
under principles of administrative law where delay arose in the context of a
human rights proceeding. In view of the finding of fact made at first instance
that prejudice resulting from the delay had not been established, the majority
of the Court considered whether the delay could amount to a denial of natural
justice or an abuse of process even where the subject of the human rights
complaint had not been prejudiced in an evidentiary sense.
[35] At
paragraph 121 the majority concluded:
To constitute a breach of the
duty of fairness, the delay must have been unreasonable or inordinate (Brown
and Evans, supra, at p. 9-68). There is no abuse of process by delay per se.
The respondent must demonstrate that the delay was unacceptable to the point of
being so oppressive as to taint the proceedings.
[36] In
the present case, I find that the evidence falls short of establishing a delay
sufficient to taint the proceedings. It follows that the ground of review
based upon delay fails.
[37] There
are, in my respectful view, two additional reasons why this ground of review
should not succeed. One flows from policy considerations, the other from the
nature of the relief sought.
[38] With
respect to policy concerns, Ms. Marsh's concerns about delay were only raised
before the Adjudicator. They were articulated as follows:
As I have followed all required
response time lines, as set by RCMP Policy in the grievance process, I am also
aggrieved of the delay in attention and response to this matter by the RCMP.
This grievance is, at this time, five years in process reflecting the
administrative neglect by the RCMP to resolve this matter in an expedient
manner.
[39] Missing
from Ms. Marsh’s submission was any allegation of prejudice. Further, there is
no evidence that at any time Ms. Marsh sought to expedite the process or
to compel a decision.
[40] It
is to be remembered that the common remedies for a person aggrieved by any
delay in reaching a decision are mandamus or a stay of proceedings
(depending upon whether the person is the moving or responding party). I am
concerned that Ms. Marsh took no step to expedite or compel the decision
at issue, but simply awaited the decision. After learning that the decision
was negative, she now argues that the Adjudicator lost jurisdiction by delay.
[41] In
my view, just as any objection as to bias must be raised on a timely basis,
policy considerations favor requiring any complaint of delay to be raised and
pursued before the final decision is rendered.
[42] Consistent
with this view are the remarks of the Federal Court of Appeal in Gill v. Canada
(Minister of Employment and Immigration), [1984] 2 F.C. 1025. In the
context of what it characterized to be "extraordinary bureaucratic
delay" the Court wrote as follows:
This is not, however,
to say that I think that the Government can, by simple inaction, defeat rights
which were clearly intended to be granted. It may well be that the
recently discovered administrative duty to act fairly encompasses a duty not
unreasonable to delay to act; or, put positively, that the procedural duty
to act fairly includes a duty to proceed within a reasonable time. It does not
by any means follow, however, that the breach of such a duty would give rise to
the setting aside of the tardy action when it is finally taken. The remedy
surely is to compel timely action rather than to annul one that, though
untimely, may otherwise be correct.
[underlining
added]
[43] As
to the second reason, relating to the nature of the relief sought, in the context
of the delay and prejudice here asserted by Ms. Marsh it would make little
sense to simply overturn the decision of the Adjudicator and remit the matter
to a new decision-maker to start afresh. Indeed, for this reason Ms. Marsh
instead asks the Court to grant the relief that was sought before the
Adjudicator, as more particularly set out at paragraph 18 above.
[44] This
relief is sought pursuant to the jurisdiction granted to the Court in
subsection 18.1(3)(b) of the Federal Courts Act, R.S.C.
1985, c. F-7, which provides:
|
On an application for
judicial review, the Federal Court may
[…]
(b)
declare invalid or unlawful, or quash, set aside or set aside and refer back
for determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
Sur présentation
d'une demande de contrôle judiciaire, la Cour fédérale peut :
[…]
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer
pour jugement conformément aux instructions qu’elle estime appropriées, ou
prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout
autre acte de l’office fédéral.
|
[45] I
accept that pursuant to this grant of jurisdiction there are circumstances in
which the Court will issue directions on an application for judicial review
that are so specific that they will compel the federal board, tribunal or
commission to reach a specific conclusion. See, for example, Turanskaya v. Canada
(Minister of Citizenship and Immigration) (1997), 145 D.L.R. (4th)
259 (F.C.A.). In Ali v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 73 this Court considered when such specific
direction should be given. At paragraph 18, the Court considered the relevant
factors to be:
·
Is there evidence on record that is so clearly conclusive that
there is only one possible conclusion?
·
Is the sole issue to be decided a pure question of law which will
be dispositive of the case?
·
Is the legal issue based on uncontroverted evidence and accepted
facts?
·
Is there a factual issue which involves conflicting evidence
which is central to the claim?
[46] In
my view, for the following reasons, the present case is not one that
fits within the above criteria for giving specific directions.
[47] First,
it is not readily apparent to me that the provision should be interpreted as
Ms. Marsh submits. On its face, the provision makes no reference to any
right of a member to be transferred to another division in a pre-retirement
move. The provision deals only with the reimbursement of real estate and legal
fees where a principal residence is sold at the location of discharge and a new
residence is acquired at the retirement destination. The provision is to be
read in the context of section D.3 of the RCMP Career Management Manual which
states:
In the lateral transfer planning
process although the personal circumstances and aspirations of members will be
considered, the organizational needs of the RCMP take precedence.
[48] Thus,
it is not clear that Ms. Marsh is correct in her interpretation of the policy.
[49] Second,
the evidence falls short of establishing that the provision was applied in an
unfair or discriminatory manner. This is because in the response to Ms. Marsh’s
grievance, the respondent, Inspector Boland, (grievance respondent) noted that
if there is a need within the RCMP that coincides with that of a member who
seeks to retire, and both parties can benefit, consideration is given to those
circumstances. He also noted that in Ms. Marsh’s case neither Division “E” nor
Division “K” were willing to fund the inter-divisional transfer of a member.
This evidence was not contradicted by Ms. Marsh and so there is, at the least,
conflicting evidence on the application of the provision.
[50] Thus,
I conclude that even if a reviewable error is established this is not a proper
case for the granting of specific directions. The available remedy would be
confined to setting aside the decision and remitting it for redetermination.
If no other reviewable error is found, it would, in my view, be futile to remit
the matter on the sole ground of delay.
Did the Adjudicator err in law
by determining that it was Ms. Marsh's responsibility to demonstrate that other
members of the RCMP had been given a pre-retirement move?
[51] The
Adjudicator agreed with the conclusion of the Level I Adjudicator that Ms.
Marsh had not established that in her case RCMP policies and procedures were
improperly applied. He then, in the excerpt from his decision quoted above at
paragraph 12, turned to consider whether Ms. Marsh had been fairly
treated. After noting that isolated cases had been dealt with in different
fashions, the Adjudicator set out his interpretation that the provision was not
intended to deal with a situation where a member would seek to relocate to a
new job two years in advance of retirement. The Adjudicator then concluded,
based upon his interpretation of the policy and the lack of evidence provided
by Ms. Marsh, that she had been equitably and fairly treated.
[52] Ms.
Marsh argues that the Adjudicator erred in law by concluding that she bore the
onus of proving that other members of the Force had been treated more
favorably, and that this is an error of law reviewable on the standard of
correctness.
[53] I
agree that the Adjudicator concluded that Ms. Marsh bore the burden of proof,
and that this is a conclusion of law reviewable on the standard of correctness.
[54] As
for the correctness of the conclusion, Ms. Marsh argues that an evidentiary
burden may switch to the opposite party where one party has prima facie
established their assertion, or where only the party opposite has access to the
relevant information.
[55] With
respect to the first scenario, Ms. Marsh notes that her GAB package included
information that:
·
Sergeant Deevey had told her that members had submitted their
discharge requests, sold their principal residence, relocated, purchased a new
residence within two years of retiring, and continued to work for two years to
their retirement dates.
·
Ms. Marsh was aware of this.
[56] As
well, the Adjudicator acknowledged that "isolated cases have been dealt
with in different fashions".
[57] I
agree that, as a matter of law, if this was the only evidence before the Adjudicator
the burden would have shifted to the grievance respondent to introduce some
responding evidence. However, the grievance respondent placed the following
information before the GAB (which formed part of the record at subsequent
levels of review):
The primary element of this
policy deals with disposal of a principal residence and the purchase of a new
principal residence at a retirement destination. Any transfer of a member in
relation to the provisions of this section is at best an inferred appropriation,
not a right or an obligation on the part of the RCMP. Staffing and Personnel
do not ordinarily do job searches for retiring members. If there is a need
within the RCMP that coincides with those a member seeking to retire, and both
parties can benefit, there is consideration give to those circumstances. This
is not initiated by Staffing and Personnel, it is normally undertaken by the
interested member.
[…]
On 1999-06-08 Cst. Marsh emailed
(A-8) Supt. Schlecker, quoting Admin. Man. VI.2.P.1.b, advising she was aware
of other members who were allowed to take a pre-retirement move and continue to
work for another two years. She requested “E” Division Staffing and Personnel
contact “K” Division Staffing and Personnel to determine if a position would be
available for her to take on in a similar fashion. Supt. Schlecker responded
by email (A-8) on the same date by saying “E” Division was not releasing
members to other Divisions, unless the other Division identified a need and was
willing to pay for both the exiting and the backfill moves. He further stated
“K” Division had not indicated a need. Supt. Schlecker advised Cst. Marsh she
would obtain reimbursement of real estate and legal fees, however, she would
not be entitled to a pre-retirement move and a new job for two years.
[…]
There may be circumstances were
members are accommodated with pre-retirement moves, however, they are primarily
in conjunction with a Division’s operational needs combined with those of the
retiring member. To migrate towards inter-Divisional pre-retirement transfer
considerations would be an unhealthy position for Staffing and Personnel to
adopt, and to my knowledge, it is not done.
I would like to point out Career
Management Manual 3.D.3.a. where it states, “In the lateral transfer
planning process the organizational needs of the RCMP take precedence.”
(A-12)
Cst. Marsh’s request to have a
position identified in “K” Division whereby she could take a pre-retirement
move did not meet with the organizational needs of the day; in that, neither
“K” nor “E” Division were willing to fund a transfer of this nature. She was
advised of this position in a forthwith manner, by Supt. Schlecker, when she
posed a question/request on the issue. She was not misguided on this matter in
any way by “E” Division Staffing and Personnel. Even though there may be
circumstances where pre-retirement transfers are considered, it is usually in
an environment whereby the RCMP pays for the transfer (not within the
provisions of Admin. Man.VI.P.1.b. but under regular transfer conditions) to
meet an existing need in the organization. In the matter of Cst. Marsh’s
retirement, this was not considered an option for “K” Division or “E” Division.
[58] In
that circumstance, I am satisfied that the grievance respondent met any
evidentiary obligation imposed upon him and that the Adjudicator did not err in
law by finding that Ms. Marsh had not met her evidential and legal
burden. What was missing was any evidence on Ms. Marsh’s behalf of any person
who was allowed to move to a new job at their retirement destination where the
person's circumstances were the same as that of Ms. Marsh.
[59] Ms.
Marsh is also correct that, at law, in some circumstances where the overall
burden of proof is on an applicant, the evidentiary burden may shift to the
respondent where only the respondent has access to relevant information. Ms.
Marsh asserts that "[u]pon realizing that there was an issue regarding
whether members were taking a ‘pre-retirement move’, the RCMP had a duty to
either provide information, which they control, that shows that this type of
move is occurring, or to provide rebuttal information that this type of move is
not happening".
[60] Part
of the information provided by Inspector Boland in response to the grievance is
set out above at paragraph 57. Inspector Boland was the Officer in Charge
Policy and Recruiting Staffing and Personnel. Information he provided included
that to "migrate towards inter-Divisional pre-retirement transfer
considerations would be an unhealthy position for Staffing and Personnel to
adopt, and to my knowledge, it is not done". In my view, this met the
obligation to respond to the information provided by Ms. Marsh on her
grievance. The Adjudicator did not err by concluding that the evidentiary
burden remained upon Ms. Marsh. To conclude otherwise, and to have required
more from the grievance respondent, would have required the grievance
respondent to prove a negative, that is, to prove that moves of the sort
alleged by Ms. Marsh were not happening in the circumstances she alleged.
Did the adjudicator base his
decision on an erroneous finding of fact made in a perverse or capricious
manner, or without reasonable regard to the material before him?
[61] Ms.
Marsh points to three instances of a reviewable error she asserts under this
heading.
[62] First,
in connection with the portion of the Adjudicator's reasons set out above at
paragraph 12, she argues that the Adjudicator held that she failed to raise any
evidence that other members had been given the advantage of a pre-retirement
move. This finding is said to ignore the evidence that: Ms. Marsh said she
possessed knowledge that other members had submitted discharge requests, sold
and then purchased a new residence at their retirement location within two
years of retiring, and afterward continued to work for two years; also, Sergeant
Deevey had verified this to Ms. Marsh; and the Adjudicator’s acknowledgment
that "isolated cases" had been dealt with in different fashions.
[63] In
my respectful view, it is not correct to assert that the Adjudicator ignored
this evidence and instead held that no evidence had been adduced. In the words
of the Adjudicator, Ms. Marsh "has not provided any specific examples
of those situations". The Adjudicator did not say that she adduced no
evidence and Ms. Marsh has not pointed to any such specific examples that she
put in evidence.
[64] Second,
Ms. Marsh argues that the Adjudicator's finding that the policy was not
intended to "deal with a situation in which the member would seek to
relocate to a new job for two years at the retirement end" was made
without regard to evidence that members were using the policy in that fashion.
This evidence, Ms. Marsh argues, supported the argument that the policy either
expressly or implicitly covered this type of move.
[65] The
Adjudicator's interpretation of the policy was consistent with its plain
meaning and with section D.3 of the RCMP Career Management Manual referred to
above. It was also consistent with the evidence before the Adjudicator that
while there might be circumstances where members were accommodated with
pre-retirement moves, those circumstances were primarily in conjunction with a division's
operational need, and to the knowledge of Inspector Boland inter-divisional
pre-retirement transfer considerations were not generally taken into account.
[66] Given
that the Adjudicator's interpretation was supported by evidence, and given that
the evidence presented by Ms. Marsh was not inconsistent with that evidence, I
have not been satisfied that the interpretation was made without regard to the
evidence before the Adjudicator. The Adjudicator did not have before him
evidence that the provision had ever been utilized as specifically alleged by
Ms. Marsh.
[67] Finally,
Ms. Marsh says that the Adjudicator ignored the fact that five years had passed
since she commenced her grievance and he gave no consideration or weight to the
delay and the prejudicial effect it had on her ability to gather evidence in
support of her grievance.
[68] I
have previously set out, at paragraph 38 above, the entire submission Ms. Marsh
made in respect of delay. No submission was made by her that she either wanted
to, or had tried to, obtain further evidence, but that she had been frustrated
in that effort as a result of delay. In the result, in my view the Adjudicator
committed no reviewable error in failing to address a matter not raised before
him.
[69] For
these reasons, the application for judicial review will be dismissed.
[70] The
respondents seek costs. As a matter of law, costs generally follow the event.
However, in the present case, counsel for the respondents was unable to point
to any evidence that explained or justified the time spent in order to conclude
the grievance process. While I have found that such delay does not warrant
setting the decision aside, in the exercise of my discretion over costs, I find
that such delay justifies depriving the respondents of their costs. Each party
shall bear their own costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES THAT:
The application
for judicial review is dismissed, without costs to any party.
“Eleanor R. Dawson”
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