Date: 20061212
Docket: T-878-05
Citation: 2006
FC 1478
Vancouver, British
Columbia,
December 12, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ANDREW
JOHN ROOK
Applicant
and
ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
Respondents
REASONS FOR ORDER AND ORDER
[1]
In the
present Application for judicial review, the Applicant challenges a decision of
the Adjudicator of the “E” Division of the Royal Canadian Mounted Police (RCMP),
which found no error in a decision rendered by the Superintendent OIC Human
Resources “E” Division of the RCMP (Superintendent) cancelling his promotion and
transfer previously granted. The issue for determination is whether the
decision of the Adjudicator is made in reviewable error. For the reasons that
follow, I find that it is not.
I. Factual background
[2]
On June 5,
2002, the Applicant, a Constable at the Williams Lake Detachment, North
District “E” Division was selected as the successful candidate for promotion to
the position of Corporal at the North Vancouver Detachment. The proposed
implementation date was to be September 13, 2002, but because the Applicant experienced
problems in selling his home in Williams Lake, he was given a one-year
extension to do so. By June 6, 2003, the Applicant still had not sold his home
and, as a result, he was advised by a Senior Human Resources Advisor that, due
to operational necessity, the North
Vancouver position
needed to be filled, and that once he completed the sale of his home he would
be placed into another Corporal position in the Lower Mainland. At this point
in time, the Advisor did not know that, on July 4, 2002, an incident came to
light that resulted in the Applicant admitting to having been involved in sexual
relations with a 17 year-old female while he was on duty, and, consequently, an
internal RCMP investigation was underway.
[3]
After the internal
investigation was completed, and after considering the circumstances, on June
9, 2003, the Superintendent, acting under the authority of the RCMP
Administrative Manual CMM 4, and having determined that the Applicant would not
be given any further consideration for promotion, cancelled the Applicant’s
promotion and transfer.
[4]
The
Applicant filed a grievance to contest the decision to cancel his promotion and
transfer, but was advised by the Office for the Coordination of Grievances that,
on the authority of the RCMP Administrative Manual, because his grievance
pertained to a promotion, it would be diverted from the grievance process to the
dispute resolution process which governs promotion disputes. The Applicant complied
with this decision by signing and submitting a “Request for Intervention”, the
outcome of which is the decision under review. However, even though he took
this action, the Applicant subsequently submitted two other grievances to challenge
the decision to divert him to the dispute resolution process from the grievance
process. These grievances were subsequently dismissed.
II. The jurisdictional issue
for determination
[5]
Throughout,
the Applicant has strenuously argued that he should not have been diverted from
the grievance to the dispute resolution process. This argument is based on his
contention that, when he was selected as the successful candidate for the North Vancouver position on June 5, 2002, he
became “promoted”, and, thus, since he was no longer a candidate for promotion,
was not subject to the Superintendent’s authority to cancel his promotion and
transfer.
[6]
In the
dispute resolution process, to which the Applicant agreed, the Adjudicator reviewed
the Superintendent’s decision for error and found none. On the “promotion”
issue, the Adjudicator made the following finding:
The Complainant was not
promoted after succeeding in the competition for the North Vancouver position because he did not consummate
the transaction by filling the position offered. He was unable to move because
he could not sell his residence in Williams
Lake. He was not paid as a Corporal and continued his duties at Williams Lake in the rank of Constable.
While there were assurances
that when he sold his home he would be offered a position in the Lower Mainland
District this offer was made before the complaint of Code of Conduct violation /
Criminal action came to the attention of the [Superintendent]. The internal
investigation arose of its own accord and as a result of the activities of the
Complainant. By chance it came to the attention of the [Superintendent] before
any other position had been offered to the Complainant. I find that before
June 9, 2003, the transfer had not taken effect and the promotion was still in
abeyance.
(Adjudicator’s Decision: p.10)
[7]
The question
is: Is the Adjudicator correct in the determination that the Superintendent had
jurisdiction to cancel the Applicant’s promotion and transfer?
[8]
Arguing
that the question should be answered in the affirmative, Counsel for the
Respondent details that, based on the RCMP’s operational procedures, a number
of factors are required to be in place before a promotion is complete, and none
were in place in the Applicant’s case:
In addition, CMM 4.F.6.a.1
calls on a member to complete an A-22A form before a promotion is complete.
CMM 4.F.6.e sets out the steps for Staffing and Personnel Officers (S&PO)
in circumstances of an unconditional promotion and require the S&PO to
“ensure the member physically occupies a position permitting promotion and
meets the necessary requirements outlined” in other sections. The S&PO
must also “prepare a fax for the approval of the OIC Staffing Br./A&PO [Administration and Personnel
Officer] listing the members who are in position and are promotable.” The OIC
S&P Br./A&PO must then review and
approve the fax according to CMM 4.F.6.f.1.
[Appendix “A”, Tab “C”,
p.151-152]
CMM 4.F.7.a also provides
support for the Adjudicator’s conclusion that the [Superintendent] has the
final decision with regard to Cst. Rook’s promotion. This section says that
the effective date of a promotion will be:
1. the effective date of a
classification upgrading provided the member occupies the position on a
permanent basis and is authorized by the transfer/promotion process to
remain in that position;
2. the date the member
departs the old position as indicated on form A-22A. [emphasis added]
[Appendix “A”, Tab “C”, page
153]
(Memorandum of Fact and Law of
the Respondent, March 16, 2006, paras. 38 and 39)
I find that Counsel for the Respondent’s argument is
unassailable, and, therefore, find that the Adjudicator is correct in the
determination that the Superintendent had jurisdiction to cancel the
Applicant’s promotion and transfer.
ORDER
Accordingly, this Application is dismissed.
No costs are awarded.
“Douglas
R. Campbell”
Email this Content