Date: 20060628
Docket: T-897-05
Citation: 2006 FC 815
Ottawa, Ontario, June 28, 2006
PRESENT: The Honourable Mr. JusticeShore
BETWEEN:
JODY KATHRYN LEIGH KUNTZ
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] The Supreme Court of Canada has held that even when there is a breach of procedural fairness (and that is not considered to be the case in this instance) but the result of the case if returned for redetermination, based on certain agreed facts, would be the same, the remedy should not be granted.
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
In this appeal, the distinction suggested by Professor Wade is apt.
Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.
INTRODUCTION
[2] The Applicant, Ms. Jody Kathryn Leigh Kuntz, engaged in inappropriate conduct that is inconsistent with the behaviour and judgment expected of a cadet or a member of the Royal Canadian Mounted Police (RCMP). As a result of that conduct, Ms. Kuntz' Cadet Training Agreement was terminated. Ms. Kuntz challenged the decision dated April 25, 2005 of Inspector R.T. Smart, Director of Cadet Training, RCMP Training Academy at "Depot Division," terminating her Cadet Training Agreement, and a decision dated April 25, 2005, of Superintendent Wayne E. Martin, Training Officer, RCMP Training Academy at "Depot" Division, confirming the termination.
JUDICIAL PROCEDURE
[3] This is an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (Act), of the decision of the Director of Cadet Training, RCMP Training Academy at "Depot Division", terminating the Applicant's Cadet Training Agreement and of the decision of the Training Officer, RCMP Training Academy at "Depot Division", confirming the termination of the Applicant's Cadet Training Agreement, both decisions dated April 25, 2005.
[4] Ms. Kuntz seeks a declaration that her Cadet Training Agreement with the RCMP was wrongfully terminated. She also seeks a declaration that the Training Officer and the Director of Cadet Training breached their duty of fairness in making the decision to terminate her Cadet Training Agreement and an order quashing the decision to terminate her training. In the alternative, the Applicant wants an order quashing the said termination decisions and directing the Director of Cadet Training and the Training Officer to comply with their duty of fairness in deciding whether to terminate her, including permitting her a further and reasonable opportunity to be heard.
BACKGROUND
[5] Ms. Kuntz, is a 31 year old mother of two, who resides in Prince Rupert, British Columbia. After graduating from secondary school, Ms. Kuntz enrolled in Law and Security Administration Studies at Algonquin College of Applied Arts and Technology. She completed this two-year program at the top of her class and graduated with a Diploma in 1994. She then enrolled in and completed the British Columbia Deputy Sheriff training program at the Justice Institute of B.C. in 1995, again graduating near the top of her class. After finishing the Deputy Sheriff training program, Ms. Kuntz resided in Prince Rupert, where she worked for almost ten years as both a Deputy Sheriff and a bank employee.
[6] Ms. Kuntz was admitted to the RCMP Depot training program in January 2005. Like all RCMP cadets, Ms. Kuntz was required to execute the standard RCMP Cadet Training Agreement (Agreement; Tribunal Record, at page 19) upon her entrance to the Academy. The Agreement sets out the terms of engagement between cadets and the RCMP. It provides that cadets are not employees of the RCMP and may be terminated prior to the completion of the training period.
[7] Ms. Kuntz entered into a Cadet Training Agreement with the RCMP dated January 27, 2005.
[8] In accordance with the Agreement, Ms. Kuntz was not an employee and the RCMP reserved the right to terminate her training.
Successful completion of the Cadet Training Program is required before engagement may be considered with the Royal Canadian Mounted Police. It must be understood that this is not an offer of engagement or employment with the Royal Canadian Mounted Police or the Government of Canada.
In particular, the Royal Canadian Mounted Police reserves the right at its discretion and at any time to revoke this offer or terminate your training including, without limitation:
...
- if you become involved in any activity which may bring discredit to the Cadet Training Program or the Royal Canadian Mounted Police, including without limitation being charged with a criminal or quasi-criminal offence or are involved in misconduct of any kind including without limitation, threats, harassment, physical abuse or psychological abuse, cheating, drug and alcohol abuse; [Emphasis added]
(Applicant's Record - Tab 3 F, p. 66; Memorandum of the Applicant - Tab 5, p. 157, para. 7)
[9] In addition, and in accordance with the agreement, Ms. Kuntz received a copy of the Cadet Training Handbook and agreed to follow the guidelines. (Cadet Training Handbook acknowledgement of receipt dated 2005-01-27; Respondent's Record - Tab 4, p. 10)
[10] Ms. Kuntz was first made aware of the allegations on April 8, 2005. (Applicant's Record, Tab 3, para. 7, p. 20)
[11] On April 12, 2005, Ms. Kuntz was provided with a written summary of the allegations and given the opportunity to respond to the allegations. These allegations included:
1) That she touched, in an inappropriate manner, another Cadet while in the lounge area of Earl's Restaurant;
2) That she rubbed her chest against another Cadet;
3) That she showed a tattoo on her buttocks to other troop mates while in the lounge area at Earl's Restaurant;
4) That she lifted the front of her shirt and exposed her bra and chest area;
5) That she made a comment of a sexual nature to another Cadet;
6) That, while attending the Depot Mass, troop mates requested that she button up her shirt; and
7) That she made a comment of a sexual nature during firearms training.
(Rebuttal to the Recommendation for Termination dated April 13, 2005 - Applicant's Record - Tab 3 F, pp. 64-68; Letter from Balfour Moss dated April 26, 2005 - Applicant's Record - Tab 3 K, pp. 80-81; Request for Termination of Contract dated April 12, 2005 - Applicant's Record - Tab 3 E, pp. 60-62; Cadet Training Program Cadet Performance Feedback Sheet - Applicant's Record, Tab 3 D, pp. 56-68)
[12] In her Rebuttal to the Recommendation for Termination dated April 13, 2005, Ms. Kuntz admitted she was involved in behaviour which may have been perceived to be inappropriate:
a) I picked up the name of a fellow cadet, and instead of saying his name I said something to the effect of "What? You want to have sex?" I had previous conversation with this Cadet and it was intended in a joking manner. However, I agree this is totally unacceptable especially should it have made the cadet feel uncomfortable or I said this where someone else could have overheard. Regardless of my intentions for this to be humorous, I agree this was not appropriate. (Applicant's Record, Tab 3 F, p. 66)
b) Regarding sitting on a cadet's lap in the bar: "This behaviour innocent as I may have intended it, was between friends and was not intended to be perceived, in the manner in which it has been." (Applicant's Record, Tab 3 F, p. 64)
c) "I simply do not remember showing my tattoo, however may have and advised it would have been a stupid moment if that were the case." (Applicant's Record, Tab 3 F, p. 65)
d) In respect to her comment in front of the class "It's so hot in here I would probably feel more comfortable if I was [naked]." I was extremely nervous to be in front of the class with everyone watching and I spoke before I thought. I do in this instance remember Cdt Johnson while passing me in the hall saying in a joking manner "I can't believe you said that." (Applicant's Record, Tab 3 F. p. 66)
e) "Doane was standing with his back against a silver metal bar/railing which was surrounding the dance floor. I was leaning back into him with my hands behind my back against his leg area...I tend to be familiar with my friends, as I am a very affectionate person, this is the type of behaviour I was displaying. I did not feel it would have looked inappropriate. However after that weekend, Cdt Skelton was advised that she hears from another troop 29 member, that a female from troop 28 (who has since left Depot) said that it looked like people from our troop were hooking up on [the] weekend or one of the women looked like she had touched one of the men." (Applicant's Record, Tab 3 F, p. 67)
f) "I admit that I may on occasion make a comment where people will laugh and say "oh Jody", but at no time has anyone specifically spoke with me to advise my comments were offensive. These are innocent comments said in the company of friends. I agree I need to be cautious of my comments at all times, especially when my conversations may be overheard by others." (Applicant's Record, Tab 3 F, p. 66)
g) "In conclusion, I would like to make it clear that I am not trying to minimize the impact of my behaviour, I fully assume responsibility for these actions and the consequences that will follow." (Applicant's Record, Tab 3 F, p. 68)
[13] A request termination of Ms. Kuntz' Cadet Training Agreement was made on April 14, 2005. (Request for termination of contract from Cpl Alin Leblanc; Cpl Claude Rochon; W/O Scott Mellett - Applicant's Record, Tab 3 E, pp. 60-62)
[14] A review of the file was conducted by Sgt. Joanne White, APS Training Co-ordinator dated April 20, 2005. The memo addressed each incident and/or allegation individually "as the circumstances of the termination are complex and involve behaviours which have manifested since the commencement of Cadet Kuntz' training on 2005-01-31." (Request for termination from Sgt. Joanne White - Respondent's Record, Tab 2, p. 2)
[15] In the memo, Sgt. Joanne White, stated "As I stressed in paragraph #2 of this page, the conduct has crossed from a social atmosphere to a professional setting which is disconcerting. Given the frequency, nature and pattern of the behaviours, I believe that counselling is not an adequate intervention in a training setting." (Request for termination from Sgt. Joanne White - Respondent's Record, Tab 2, p. 2)
[16] On April 21, 2005, Sgt. Dwayne Bauer, Acting NCO i/c Applied Police Sciences reviewed the request, all the correspondence on Cadet Kuntz' file including feedback documents, witness statements and correspondence from the A.P.S. Facilitation Team and Sgt. White. Sgt. Bauer concurred with the recommendation for termination and stated: "I do not see counselling to be an appropriate intervention in this matter." (Request for Termination Memorandum from Sgt. D. Bauer - Respondent's Record, Tab 2, p. 8)
[17] On April 25, 2005, Inspector R.T. Smart, Director, Cadet Training confirmed the termination of the Applicant's Cadet Training Contract. This was in accordance with the procedure outlined in the Cadet Training Handbook and his decision was forwarded to the Training Officer, "Depot" Division, for review. (Memorandum from Insp. R.T. Smart, Director, Cadet Training - Applicant's Record, Tab 3 J, p. 77)
[18] Notice of the termination was forwarded to Ms. Kuntz on April 25, 2005. (Memorandum from Insp. R.T. Smart, Director, Cadet Training - Applicant's Record, Tab 3 J, p. 77)
[19] Confirmation of the termination by Supt. Wayne E. Martin, Training Officer "Depot" Division occurred on 2005-04-25. (Memorandum from Supt. Wayne E. Martin, Training Officer, "Depot" Division - Applicant's Record, Tab 3 J, p. 78)
[20] Ms. Kuntz challenges the decision dated April 25, 2005 of Inspector R.T. Smart, Director of Cadet Training, RCMP Training Academy at "Depot Division," and the decision of April 25, 2005, terminating her Cadet Training Agreement, and of Superintendent Wayne E. Martin's Training Officer, RCMP Training Academy at "Depot" Division, confirmation of that decision.
[21] In her application, Ms. Kuntz asked for relief:
(1) A declaration pursuant to Section 18 of the Federal Court Act, R.S.C. 1985, c. F-7 that the applicant's Cadet Training Agreement was wrongfully terminated,
(2) A declaration pursuant to Section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, that the Training Officer and the Director of Cadet Training breached their duty of fairness to the applicant in making the decision to terminate her Cadet Training Agreement,
(3) An order quashing the decision of the Director of Cadet Training, Royal Canadian Mounted Police Training Academy at "Depot Division," dated April 25, 2005, purporting to terminate the applicant's Cadet Training Agreement, and the [decision] of the Training Officer, Royal Canadian Mounted Police Training Academy at "Depot Division, dated April 25, 2005, confirming the decision to terminate the applicant, and reinstating the applicant as an RCMP cadet,
(4) In the alternative , an order quashing the decision of the Director of Cadet Training, Royal Canadian Mounted Police Training Academy at "Depot Division," dated April 25, 2005, purporting to terminate the applicant's Cadet Training Agreement, and the [decision] of the Training Officer, Royal Canadian Mounted Police Training Academy at "Depot Division," dated April 25, 2005,confirming the decision to terminate the applicant, and directing that the Director of Cadet Training and the Training Officer comply with their duties of fairness in deciding whether to terminate the applicant, including permitting her a further and reasonable opportunity to be heard, and
(5) Costs of the within Application.
(Applicant's Record - Tab 1, pp. 3-4.
ISSUES
[22] (A) Affidavit of the Applicant - Was certain information not before the decision-maker?
(B) Standard of Review?
(C) Does the doctrine of legitimate expectation have any application to this case?
(D) Was the Applicant cadet's training agreement terminated in accordance with the principles of natural justice?
ANALYSIS
A. Affidavit of the Applicant
Certain information not before the decision-maker
[23] Certain information included in Ms. Kuntz' supporting affidavit was not before the decision-maker and should not be considered by this Court for the purposes of judicial review. (Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273 (T.D.))
[24] It is trite law that in a judicial review application, the only material that should be considered is the material that was before the decision-maker. (Lemiecha v. Canada(Minister of Employment and Immigration) (1994), 72 F.T.R. 49 (T.D.); Moktari v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 25 (T.D.))
[25] As a result, this Court recognizes paragraphs 2, and 38 to 46 of the Affidavit of the Applicant in light of that which follows.
[26] Most of the information referred to in those paragraphs is, in fact, contained in the Tribunal Record and was before the decision-maker: the Tribunal Record does, in fact, contain evidence of Ms. Kuntz's studies at Algonquin College of Applied Arts and Technology, for example, her transcript and diploma. The Tribunal Record also contains evidence of her training and work as a Deputy Sheriff in B.C. In addition, it includes mention of the Medal of Bravery which Ms. Kuntz was awarded by the Governor General. Finally, interview notes and statements from Ms. Kuntz's troop mates are also included in the Tribunal Record, as are excerpts from her troop mate's journal which led to the investigation of harassment. As this evidence was before the decision-maker, the statements of her colleagues which constituted the basis for the investigation and the decision itself, can and must be considered by this Court.
[27] Certain elements contained in Ms. Kuntz's Affidavit do not appear to have been before the decision-maker. These include the actual excerpts from Hansard and the Canada Gazette which refer to the Medal of Bravery (referred to in paragraph 2 of Ms. Kuntz's Affidavit). As well, examples of behaviour, Ms. Kuntz had observed in other individuals during her time at the Academy (referred to at paragraph 40 of Ms. Kuntz's Affidavit), are not contained in the Tribunal Record and were not before the decision-maker. This evidence is not considered by this Court.
[28] As for the evidence concerning the exit interview, Ms. Kuntz's departure from the Academy and the consequences of the decision (referred to in paragraphs 38-39 and 41-46), this evidence was, also, not before the decision-maker at the time of the decision because these events had occurred subsequent to the decision having been made. It is important to recall that the notes of the exit interview are contained in the Tribunal Record. The information provided by Ms. Kuntz in their regard will not be considered by this Court.
B. Standard of Review
[29] Section 18.1 of the Act expressly sets out the grounds of review and the jurisdiction of the Court on an application for judicial review. To succeed on such an application, an applicant must establish grounds as set out in section 18.1(4). Ms. Kuntz has not demonstrated any such reviewable error within the meaning of section 18.1 of the Act.
[30] The correct standard of review is reasonableness simpliciter.
[31] The powers of the Court on an application for judicial review are governed by the principles of administrative law as set forth by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; and Canadian Union of Postal Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. In determining which standard of judicial review of administration decisions ought to be applied, a pragmatic and functional approach should be used. When determining whether an issue should receive exacting review (correctness), undergo significant searching or testing (reasonableness) or be left to the near-exclusive determination of the original decision-maker (patent unreasonableness) the Court should weigh the following factors:
a) the presence or absence of a privative clause of right of appeal;
b) the expertise of the decision-maker;
c) the purpose of the legislation; and
d) the nature of the question in issue.
(Canada(Attorney General) v. Grover (2004, 252 F.T.R. 244)
[32] While there is no privative clause, a request to terminate must be supported at all levels of review. If the recommendation is unsupported at any level, the cadet remains in the Cadet Training Program. The presence of a review mechanism indicates some deference is warranted. (Cadet Training Handbook)
[33] The RCMP officers involved in the termination process are all members of Depot Division. They have experience, thus, expertise, in training RCMP cadets, including determining what behaviour is inconsistent. This factor suggests deference is warranted.
[34] In this case, there is no applicable statutory scheme. Cadets are not members of the RCMP and the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, as amended, has no application. The intent of the legislature was to allow the RCMP to control its own procedure and have a high degree of latitude in the Cadet Training Process.
[35] As noted at para. 4, the Cadet Training Agreement gives the RCMP the discretion to terminate the contract.
[36] This factor suggests deference is warranted.
[37] While the question in issue as framed by Ms. Kuntz is a question of law (which suggests no deference), this is not determinative. In Canada(Attorney General) v. Grover, above, Mr. Justice Sean Harrington observed:
Although a question of procedural fairness is usually considered a question of law on which relief will be given if the decision is not correct, it is also helpful to consider procedural fairness as a distinct matter. As Binnie J., speaking for the majority, stated in C.U.P.E. at paragraphs 102 and 103:
102. The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.
103. On occasion, a measure of confusion may arise in attempting to keep separate these different lines of inquiry. Inevitably some of the same "factors" that are looked at in determining the requirements of procedural fairness are also looked at in considering the "standard of review" of the discretionary decision itself...
In MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854, 2003 FC 1459, O'Keefe J. applied a pragmatic and functional analysis in a case in which the Commission decided not to send a complaint to the Tribunal. He noted there was no privative clause, that the Commission was experienced in fact finding in terms of screening complaints and that it had discretion to dismiss complaints. All this favoured deference. He was of the view that the issue was a mixed one of fact and law which should be reviewed on the standard of reasonableness simpliciter. Gibson J. came to the same conclusion in Gardiner v. Attorney General of Canada, [2004] F.C.J. No. 616, 2004 FC 493. I agree.
[38] The foregoing factors suggest a substantial degree of deference is owed the decision to terminate the Applicant's Cadet Training Agreement. Accordingly, the standard of reasonableness is appropriate.
C. Does the doctrine of legitimate expectation have any application in this case?
[39] Ms. Kuntz believes that she had a legitimate expectation that the RCMP Harassment Policy would apply. While the existence of a procedure may give rise to a legitimate expectation, Mrs. Kuntz must show the practice or conduct said to give rise to the reasonable expectation to be clear, unambiguous and unqualified. In C.U.P.E., above, Mr. Justice William Ian Corneil Binnie stated that the doctrine of legitimate expectations:
...looks to the conduct of a Minister or other public authority in the exercise of a discretionary power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified, that has induced in the complainants (here the unions) a reasonable expectation that they will retain a benefit or be consulted before a contrary decision is taken.
[40] Ms. Kuntz has not pointed to any clear, unambiguous and unqualified conduct that would give rise to a legitimate expectation. In fact, Ms. Kuntz, in her Affidavit, states:
I do not believe the instructor specifically told us the policy was applicable to cadets, but that is the impression we were left with, especially given that it occurred so early in our training.
(Applicant's Record - Tab 3, p. 19, para. 5)
D. Was the Applicant cadet's training agreement terminated in accordance with the principles of natural justice?
[41] While Ms. Kuntz is owed a duty of fairness, that duty is minimal: Ms. Kuntz should be advised of the allegations against her and provided the opportunity to answer. In the circumstances of this case, that duty was met.
[42] The duty of fairness varies according to the following factors:
a) the nature of the decision and process being followed;
b) the nature of the statutory scheme;
c) the importance of the decision to the affected individual;
d) the legitimate expectations of the party challenging the decision, and
e) the nature of deference accorded to the body.
(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 23)
[43] In the circumstances of this case, a review of these factors suggests the duty of fairness is minimal:
a) The nature of the decision and the process being followed
In Baker, above, the Court held the more the administrative process resembles the judicial process, the more likely it is that the procedural protection closer to the trial model will be required. The termination process laid out in the Cadet Training Handbook, and followed in this case, does not closely resemble the judicial process. This factor indicates a minimal duty of fairness.
b) The nature of the statutory scheme
The decision to terminate Ms. Kuntz' Cadet Training Contract was made according to the contract itself. No statute applies. The process outlined in the Cadet Training Handbook provides that the request for termination will involve several levels of review and all must support the cadet's termination. This factor points to a minimal duty of fairness.
c) The importance of the decision to the affected individual
The Attorney General acknowledges that this factor points to an increased duty of fairness and, therefore, reasons were provided, as was an opportunity to be heard.
d) The legitimate expectations of the party challenging the decision
As previously noted, Ms. Kuntz did not have a legitimate expectation that the RCMP Harassment Policy would apply.
e) The nature of deference owed accorded to the body
The duty of fairness should take into account and respect the choices of procedure made by the agency, particularly where the decision-maker has the ability to choose its own procedures. This factor also points to a minimal duty of fairness.
[44] In Knight v. Indian Head SchoolDivision No. 19, [1990] 1 S.C.R. 653, the court addressed the minimum duty of fairness required where an employee's dismissal is in the discretion of the employer. At minimum, the employee must be provided with the reasons for her dismissal and the opportunity to be heard.
[45] In Linnell v. Canada(Attorney General) et al. (1996) 119 F.T.R. 265, Mr. Justice James Alexander Jerome, had an opportunity to consider whether the duty of fairness was complied with in the dismissal of two RCMP cadets. At paragraph 12, the Court Considered the following factors:
1) Was the cadet advised consideration was being given to terminate her?
2) Was the cadet provided the reasons for that termination?
3) Was the situation discussed with the cadet? and
4) Was the cadet provided an opportunity to respond?
[46] Ms. Kuntz acknowledges that she was provided both orally and in writing with the reasons for her dismissal. The situation was discussed with her and she was provided with the opportunity to respond in writing to the reasons for her termination. The termination followed the procedure set out in the Cadet Training Handbook, Appendix 5, Part XIII. The termination procedure followed by the RCMP met the required duty of fairness. (Applicant's Record - Tab 4 B, p. 1 24)
CONCLUSION
[47] The decision of Inspector R.T. Smart in terminating Ms. Kuntz' Cadet Training Agreement and Superintendent Wayne E. Martin's confirmation of that decision met the duty of fairness. The Court therefore, dismisses the Application for judicial review.
JUDGMENT
THIS COURT ORDERS that
1) The application for judicial review is dismissed with costs.
Obiter
This is a case of a woman who has dedicated herself for more than ten years to the dream of pursuing a career-path in the RCMP. She studied, relocated and worked in various positions to fulfill her personal obligations and professional aspirations.
Her dream may have evaporated with the Judgment of this Court, although it is the specialized decision-maker's decision, which, in fact, decided on the basis of appropriate procedure and substance which is explained in the Judgment.
All having been said and done, outside of the respective authoritative decisions, demonstrating that the RCMP acted in its right. Can the individual, in question, be given another chance, whether, with counselling, which was previously discounted or in another manner? Whether that would, in fact, be a calculated risk of potential benefit to the institution for which she wants to work; and whether that is even considered feasible is another matter?
Thus, can an element of flexibility or leniency be extended by the good offices of the RCMP, on its part, to demand change in the inappropriate behaviour with a new chance for the individual? This, based on the individual's past aspirations and previously demonstrated work and recognized achievements (including a medal of bravery from the Governor General of Canada). In effect, can the system afford to make room for that? That is for the appropriate authorities in the RCMP to decide.
"Michel M.J. Shore"
Email this Content