Date: 20030114
Docket: T-1506-02
Neutral citation: 2003 FCT 29
BETWEEN:
CONSTABLE DARREL BRUNO
Applicant
and
THE ATTORNEY GENERAL OF CANADA,
THE ROYAL CANADIAN MOUNTED POLICE GRIEVANCE REVIEWER,
LABOUR RELATIONS UNIT, REGINA NWR HUMAN RESOURCES,
NCO I/C STAFFING AND PERSONNEL NWR "K" DIVISION
Respondents
REASONS FOR ORDER
HARGRAVE P.
BACKGROUND
[1] This proceeding arises out of a denial of a promotion to the Applicant, Constable Bruno, to the position of corporal, three opportunities being open at the Hobbema, Sun Child/O' Chiese and Saddle Lake Detachments for the promotion of "qualified promotable aboriginal constables".
[2] Constable Bruno was an unsuccessful candidate for corporal. However, he was successful in his final internal Level II grievance application. The matter did not end there, for Constable Bruno now says that the Royal Canadian Mounted Police ("RCMP") failed to apply the favourable final Level II adjudication. Thus the present application for, among other things, mandamus directing the RCMP to comply with the final Level II grievance adjudication of 8 July 2002.
[3] In due course, during the Rule 318 production of the tribunal's documents, and here the tribunal includes the NCO I/C Staffing and Personnel NWR "K" Division, the Crown refused to produce various documents on the grounds that production "would be a violation of the privacy and integrity of Corporal Thorne, Corporal Fraser and Corporal Ladoucer", who were the successful candidates, and who had self-identified themselves as aboriginal.
[4] Constable Bruno, in his submissions to the Level II Adjudicator, pointed out and here I will refer to the Adjudicator's decision, that Corporal Thorne "... does not look Aboriginal, was not raised by an Aboriginal family; has never resided on a reserve or with any Aboriginal family members; knows nothing about values, customs or traditions of First Nations people and does not speak any Aboriginal languages. It was not until three weeks prior to the promotion that Cpl. Thorne learned that he had a family member who was Métis, following which he obtained a Métis card for $10 and identified himself as an Aboriginal ...". Be this as it may, the Adjudicator emphasized the job requirement that the successful candidate have an inherent knowledge of aboriginal lifestyle and culture, concluding that :
| On behalf of the Grievor, it is argued that he possess "an intimate knowledge of First Nations' culture, customs and values." There is no evidence or claim to the contrary and I am prepared to accept that he has established a prima facie case that he possessed the job requirements set out in Staffing Action 99-05. Therefore, if any or all of the three successful candidates do not possess the job requirement "inherent knowledge of aboriginal lifestyle and culture", they should not have been promoted to the positions.
I believe the Grievor was not given proper consideration for this position, and he and the three successful candidates should be assessed as to whether they meet the criteria set out in the JOB of May 18, 1999. If no evaluation mechanism to determine Aboriginal ancestry has been developed since May 18, 1999, and the date of my decision, then Staffing should apply the criteria set out in Mr. Schachhuber's memo of October 18, 1996. If it is found that the Grievor does posses this job requirement ("qualified promotable Aboriginal constables who have an inherent knowledge of Aboriginal lifestyle and culture") and that any or all of the three successful candidates do not, then the Grievor should be promoted retroactively to the date the first of the three successful candidates (not possessing this job requirement) was promoted.
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While key, in the mind of the Adjudicator, was the concept of an inherent knowledge of aboriginal lifestyle and culture, also at issue is a failure to adhere to RCMP First Nations Policing Policy, including an 18 October 1996 memorandum from the Official Languages and Diversity Management Branch dealing with identification of aboriginal applicants for involvement in the RCMP First Nations Policing Policy setting out three criteria, that a recruit, in the aboriginal applicant category, look aboriginal, proves himself or herself to be an aboriginal and have an aboriginal identity. This was expanded in a job opportunity bulletin of 18 May 1999, dealing with the promotions now at issue, which required that applicants be qualified, promotable aboriginal constables with an inherent knowledge of aboriginal lifestyle and culture.
[5] The Crown having, as I say, objected to production of a group of documents, I directed, pursuant to Rule 318(3) that the documents be produced to the Court, in a sealed envelope, that the documents be identified and described, that the parties have the opportunity to make representations and that following an examination by the Court, relevant and producible documents would be produced to the Applicant once the relevant appeal period or periods have run, with documents determined not to be relevant to be returned in a sealed envelope to the Respondents.
CONSIDERATION
[6] Initially, the Crown objected to a production of 13 documents. Documents which the Crown now objects to produce are five in number.
[7] Considering the five documents, which have now been produced to me, with a brief reason why production is in each case denied, I have kept in mind the basis of Constable Bruno's application and the general rules as to production of documents from a tribunal, including relevance, particularly in the senses of affecting the decision which the Court will make and in the light of the Applicant's material and supporting affidavit, that filed 12 December 2002. I do not know, directly from the Crown's representations, which documents were in fact before the decision-maker, that is before the NCO I/C Staffing and Personnel NWR "K" Division in considering the implementation of the decision of the Level II grievance adjudicator, but believe that it is safe to assume all the material which the Crown objects to produce was before that individual as a tribunal when it considered the implementation of the Level II grievance award. I now turn to each of the five documents.
(1) "Federal Court Review"
[8] The first document, which is undated, is called 'Federal Court Review: Royal Canadian Mounted Police "K" Division Staffing and Personnel Response Prepared by S/Sgt. David N. Asp NCO I/C Staffing and Personnel for "K" Division'. The document is headed "Solicitor-Client Privileged". The document is not directed to anyone, but rather appears to be a general memorandum or memoir. It is certainly a relevant document. The question is whether there is a privilege to exempt it from production.
[9] The burden, in the claim of privilege, is on the party asserting the privilege. Here I have nothing more than the document itself and an assertion that "when prepared it was noted to be 'Solicitor-Client Privileged' ...."
[10] In Jordan v. Towns Marine Electronics Ltd. (1996), 110 F.T.R. 22, upheld by Mr Justice Noel, as he then was, (1996) 113 F.T.R. 226, I set out the law as to privilege, both generally and with respect to a report for which privilege is claimed. Mr Justice Noel also set out this passage, to which I now turn:
| [19] In considering whether a document is privileged, this Court has adopted the dominant purpose rule described in Waugh v. British Railway Board, [1980] A.C. 521. The House of Lords, in that case, adopted the view of Chief Justice Barwick, who wrote the minority decision for the Australian Court of Appeal in Grant v. Downs (1976), 135 C.L.R. 674 at p. 677:
. . . a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
[20] There must be a balancing of the discovery process, on the one hand, to allow a litigant claims of privilege where it is proper, but on the other hand to recognize that it is in the interests of justice to make the fullest possible disclosure of relevant material capable of throwing light upon the issues in a case. For that reason a party claiming privilege must come clearly within the now well-established dominant purpose rule.
[21] The party claiming privilege has the onus of proving both that the report was prepared for the dominant purpose of being provided to counsel and for the purpose of using it in respect of existing litigation or litigation of which there was a reasonable prospect or was reasonably contemplated at the time of production of the document: see for example Marubeni Corporation v. Gearbulk Ltd. (1986), 4 F.T.R. 265; The "Philippine Victory" (1992), 49 F.T.R. 211; British Columbia v. Bagbusters Pest Management, an unreported decision of Master Chamberlist, March 24, 1995, Prince George Registry No. 27740; and Armeco Construction Ltd. v. Canada (1995), 83 F.T.R. 107 at 110.
[22] The question of privilege, in connection with adjusting reports, was considered at length by the B.C. Court of Appeal in Shaughnessy Golf and Country Club v. Uniguard Services Ltd. (1986), 1 B.C.L.R. (2d) 309. It is clear from that case that it is insufficient to show only that litigation was in reasonable prospect when the document was produced: the claimant for privilege must also establish that the dominant purpose for creating the document was to provide it to counsel either to obtain legal advice or to aid in the conduct of litigation.
(Pages 28 and 29)
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In applying the dominant purpose principle, in the present instance, I have kept in mind that production of documents, in the case of judicial review, must not be equated with discovery of documents in an action. However, there is nothing in the memorandum, or in the submissions, to indicate why this particular document was brought into existence, or its dominant purpose, either of the author or of whoever requested the material. There is nothing to indicate whether it was produced or brought into existence to obtain legal advice or to aid in the conduct of litigation which, at the unknown time of its production, was either in existence or a reasonable prospect.
[11] As I pointed out in Jordan, the party claiming privileged document has the burden of proving both that the report was prepared for the dominant purpose of being provided to counsel and for the purpose of using it in respect of existing litigation or litigation of which there was a reasonable prospect, or was reasonably contemplated at the time of production of the document. Here there was nothing to bring the memoir within the well-established law.
[12] There is nothing in the material to put the memoir into a time context. The Crown has not satisfied the burden of establishing facts to show that the memoir was produced with litigation in mind, or was produced for the dominant purpose of contemplated litigation, with the prospect of litigation being reasonable: see for example these criteria as set out in Commercial Union Assurance Co. PLC v. M.T. Fishing Co. (1999), 162 F.T.R. 74 at 75, affirmed by the Court of Appeal (1999), 244 N.R. 397. This memoir must be produced.
(2) Memorandum from Cpl. D.R. Thorne
[13] This document is referred to as a memorandum from Corporal D.R. Thorne to the O i/c "K" Division Staffing and Personnel (1999-11-19).
[14] This document, as described, a memorandum in connection with the transfer of Corporal Thorne and his forgoing of his first choice of a posting given that another successful candidate was already in place there. The memorandum has no relevance whatsoever to the present judicial review and need not be produced.
(3) Memorandum from Cpl. S.C. Grier
[15] This document is a staff action memorandum from Corporal S.C. Grier to Constable D.R. Thorne, dated 8 June 1999. It touches upon the cost of transferring two successful candidates between Detachments. It has no relevance to the present review and need not be produced.
(4) Memorandum from Cpl. S.C. Grier
[16] This document and memorandum from Corporal S.C. Grier to Inspector J.H. Hill, dated 3 June 1999 sets out the identities of the three successful candidates and touches on redundancy of transferring two of the candidates between present postings. Again, it has no relevance in the present judicial review proceeding and need not be produced.
(5) Ranking of Various Applicants
[17] This document, setting out the ranking of the applicants for the promotion, is undated. It sets out the location of each of the candidates and their preference as to posting should they be successful. It is only relevant, in part, in that it sets out Constable Bruno's ranking, 9th out of 15. The positions of the unsuccessful candidates are irrelevant, as are the rankings, among themselves, of the three successful candidates.
[18] I do not see that the document would in any way affect the outcome of this judicial review for it is unnecessary and extraneous to the relief which Constable Bruno seeks. The document need not be produced.
CONCLUSION
[19] The only document that must be produced is the undated memoir, 'Federal Court Review: Royal Canadian Mounted Police "K" Division Staffing and Personnel Response Prepared by S/Sgt. David N. Asp NCO I/C Staffing and Personnel for "K" Division', the heading of which "Solicitor-Client Privileged" is not borne out by any material. However, for the present, the documents will be re-placed and sealed in their original envelope, pending the outcome of any appeals, or the running of any appeal periods.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
14 January 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-1506-02
STYLE OF CAUSE: Constable Darrel Bruno v. Attorney General of Canada et al.
REASONS FOR ORDER OF: Hargrave P.
DATED: 14 January 2003
WRITTEN REPRESENTATIONS BY:
K Collen Verville FOR APPLICANT
David Stam FOR RESPONDENT
SOLICITORS ON THE RECORD:
Parlee McLaws LLP FOR APPLICANT
Barristers and Solicitors
Edmonton, Alberta
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta
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