Date: 20050629
Docket: T-2026-04
Citation: 2005 FC 915
Ottawa, Ontario,
the 29th day of June 2005
PRESENT: THE
HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
DANIEL GIROUARD
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of a decision on October 5, 2004 by the
Royal Canadian Mounted Police (RCMP) Commissioner acting as a level II
adjudicator, who dismissed the applicant’s grievance and upheld a decision by a
classification board.
STATEMENT OF FACTS
[2]
On
November 25, 1994, the commanding officer of RCMP Division A recommended that
the applicant’s position classification be revised upward from superintendent
to chief superintendent.
[3]
On
December 14, 1994, the officer responsible for the pay and classification
branch informed the applicant that, following an assessment made by a
classification committee, his position would not be reclassified.
[4]
The
applicant was not satisfied with this decision and filed a grievance. This
grievance was dismissed by the level I adjudicator and by the level II
adjudicator.
[5]
The
decision of the level II adjudicator resulted in an application for judicial
review in this Court by the applicant, and on January 22, 2001, Rouleau J.
allowed the application for judicial review.
[6]
In his
decision, he found that the classification committee had misapplied the profile
method of the Hay plan and its Management Category: Position Evaluation Plan
by limiting its adequate relativity study to a single position within the RCMP,
that of the officer responsible for financial services and supplies in Division
E, whereas there were other comparable positions. Therefore, he quashed the
Commissioner’s decision and directed that the RCMP re-evaluate the applicant’s
position classification.
[7]
Following
this decision, a new classification committee was appointed.
[8]
In
addition to comparing the applicant’s position with the Hay system benchmark
positions, this new committee undertook to compare it with all the other quartermaster
positions in all other divisions. Among those positions, there was that of the
officer responsible for financial services and supplies in Division E,
classified as a chief superintendent. There was also the position of
quartermaster in Division K, classified at the superintendent level.
[9]
Finally,
there were other quartermaster positions in other divisions classified at the
inspector level.
[10]
For
the positions at the inspector level, the classification committee compared
them with each other and came to the conclusion that the Divisions C and O
positions were the closest to the applicant’s position (the position identified
by the classification committee as “PC”).
[11]
The
classification committee considered that the applicant’s position was higher than
the inspector positions and lower than the chief superintendent’s postion.
[12]
On
April 18, 2001, the classification committee awarded a rating of 1,192 points
to the applicant’s position, which was below the point range of the chief
superintendent position, which went from 1,262 to 1,719 points.
[13]
On
June 7, 2001, the applicant, not satisfied with this decision, filed a
grievance. On February 17, 2003, the level I adjudicator ruled that the
grievance was inadmissible since the applicant had retired when he filed his
second grievance, and as such he could no longer be regarded as a member of the
RCMP and as having standing to act pursuant to subsection 31(1) of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act).
[14] The applicant
appealed the decision by level I adjudicator to the RCMP Commissioner, the
level II adjudicator.
[15] Before the
level II adjudicator rendered his decision, the applicant’s grievance was referred
to the RCMP External Review Committee (ERC) pursuant to subsection 33(1) of the
Act for opinion and recommendation. The ERC considered the applicant’s
grievance pursuant to section 34 of the Act.
[16] On May 3,
2004, the ERC recommended that the applicant’s grievance be allowed, finding in
its report that, in view of the explanations given by the second committee in
support of its evaluation, it did not trust that the committee had fully
understood the essential skills required for the applicant’s position and how
they differed from those required for other RCMP positions which were
classified at the same or a higher level.
[17] On October 4,
2004, the level II adjudicator decided to reject the findings and
recommendations of the ERC and to dismiss the grievance.
PARTIES’ ARGUMENTS
[18] The applicant
maintained that the level II adjudicator made an error of law when he decided
to render a decision on the merits of the grievance. Having held that the
applicant had standing to act and therefore that the grievance was admissible,
he should have referred the grievance back to the level I adjudicator. The
level II adjudicator thus deprived the applicant of an opportunity of appealing
the decision rendered at the first level, as provided for in
paragraph 31(2)(b) of the Act.
[19] The applicant
further argued that the level II adjudicator made an error of law in rejecting
the recommendations contained in the ERC report and finding that the
classification committee’s decision was correct.
[20] Finally, he
maintained that the prior involvement of the level II adjudicator in considering
the applicant’s first grievance could only give rise to a reasonable
apprehension in the mind of any well-informed person of a biased judgment or
evaluation by him in reviewing the second grievance.
[21] For his part,
the respondent argued that the level II adjudicator made no error of law in not
referring the grievance to the level I adjudicator. The Commissioner’s
Standing Orders (Grievances), 1990, SOR/90-117, setting out the procedure
applicable to grievances, are silent as to the procedure to be followed in this
particular situation. Yet, the RCMP Commissioner has complete control over his
own procedure and it was not in the applicant’s interests that the grievance be
referred back to the level I adjudicator after so many years.
[22] Further, the
level II adjudicator was not bound to prefer the ERC’s opinion to that of the
classification committee, which had expertise in the subject-matter. In
addition, the level II adjudicator fully explained the reasons why he chose not
to follow the ERC’s recommendations and findings.
[23] The only
issues which the level II adjudicator had to address were whether the
classification procedure had been followed, and in particular, whether the
classification committee had compared the applicant’s position with similar
positions inside and outside the RCMP, and this was done by the classification
committee. There is nothing in the evidence to suggest that the classification
committee’s conclusion was arbitrary or without foundation. Therefore, the
level II adjudicator made no patently unreasonable error of law or fact in
approving the classification committee’s opinion.
[24] Finally, as to
the reasonable apprehension of bias, legally, the applicant’s grievance could
not be heard by anyone but the Commissioner. The applicant stated no facts
indicating that the RCMP Commissioner was biased in any way against the
applicant or that he acted toward him in bad faith. Further, if the applicant
had a reasonable apprehension of bias, he should have raised it at the first
opportunity; he did not do so.
ISSUES
A. Did the level II adjudicator commit a breach of
procedural fairness by not referring the applicant’s grievance back to the
level I adjudicator?
B. Did
the level II adjudicator err in finding that the classification committee’s
decision was correct?
C. Did
the prior involvement of the level II adjudicator in the review of the
applicant’s first grievance give rise to a reasonable apprehension of bias?
ANALYSIS
A. Did
the level II adjudicator commit a breach of procedural fairness by not
referring the applicant’s grievance back to the level I adjudicator?
[25] This issue
does not relate to the decision itself, but to the way in which it was made.
The issue is essentially one of procedural fairness, which does not entail a
pragmatic and functional analysis and does not require that the Court determine
the applicable standard of judicial review. In order to decide whether an
administrative tribunal observed procedural fairness, the procedures and
guarantees required in a particular case have to be established: Moreau-Bérubé
v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, paragraph 74; Public
Service Alliance of Canada v. Canada (Attorney General of Canada), [2005]
F.C.J. No. 548 (QL).
[26] The assessment
of procedural fairness involves the weighing of certain factors, such as the
nature of the legislation and the choice of procedures made by the
administrative entity, the importance of the decision for the party concerned
and his legitimate expectations. (See Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817).
[27] Unlike the
level I adjudicator, the level II adjudicator ruled that the applicant had
standing to act and that he could make a decision on the merits of the grievance.
[28] The applicant
essentially objected that, by not referring the grievance to the level I
adjudicator for decision on the merits, contrary to paragraph 31(2)(b)
of the Act, the level II adjudicator deprived him of an opportunity to appeal
the decision at the first level.
[29] Paragraphs (a)
and (b) of subsection 31(2) of the Act provide that:
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31 (2) A grievance under this
Part must be presented
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31 (2) Un grief visé à la présente partie doit être
présenté :
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(a) at the initial level in the
grievance process, within thirty days after the day on which the aggrieved
member knew or reasonably ought to have known of the decision, act or
omission giving rise to the grievance; and
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a) au premier niveau de la procédure applicable aux
griefs, dans les trente jours suivant celui où le membre qui a subi un
préjudice a connu ou aurait normalement dû connaître la décision, l’acte ou
l’omission donnant lieu au grief;
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(b) at the second and any succeeding
level in the grievance process, within fourteen days after the day the
aggrieved member is served with the decision of the immediately preceding
level in respect of the grievance.
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b) à tous les autres niveaux de la procédure applicable aux griefs,
dans les quatorze jours suivant la signification au membre de la décision
relative au grief rendue par le niveau inférieur immédiat.
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[30] Section 18 of the Commissioner’s Standing Orders
(Grievances), 1990, SOR/90-117, which govern the procedure for the
applicant’s grievance, provided as follows:
18. (1) Where a member presenting a grievance at level II presents
new evidence that could not reasonably have been known to the member at the
time the grievance was presented at level I, the consideration of the grievance
at level II shall be stayed and the grievance shall be referred to level I for
reconsideration and decision.
(2) Where
a grievance is referred to level I for reconsideration in accordance with
subsection (1), the member who constitutes level I shall reconsider the
grievance and confirm, amend or rescind the level I decision.
(3) Where
a level I decision is confirmed, amended or rescinded in accordance with
subsection (2), the grievance shall be considered at level II.
[31] Accordingly, such is the procedure to be followed where a
member filing a grievance at level II presents new evidence that could not
reasonably have been known to the member at the time the grievance was
presented at level I. In such a case, the grievance is referred back to level I
before being examined at level II; however, that is not the situation in the
case at bar, since there was no new evidence. Accordingly, the grievance
procedure is silent as to the procedure that is to be followed. It is not clear
whether a grievance referred back to level I would automatically be considered
at level II.
[32] On the one hand, it is possible the applicant had a
legitimate expectation he would have an opportunity to be heard at the first
level. On the other hand, the Commissioner has complete control over his
procedure when the standing orders are silent. In view of the history of this
grievance, procedural fairness required that, since so many years had elapsed,
a decision on the merits be made as promptly as possible.
[33] It may be that the respondent’s decision not to refer the
grievance back to level I could have caused the applicant harm, in that he
would have twice been deprived of an opportunity of making his case. In this
regard, however, it is worth recalling that the level I adjudicator does
not have more latitude than the level II adjudicator in considering the
classification committee’s opinion, or indeed than the ERC: the latter can
only determine if an error of fact or procedure has occurred. Therefore, in
the case at bar, in view of the fact that the level II adjudicator was fully
familiar with all the factual considerations relating to the applicant’s
grievance, the contention that the applicant suffered significant harm is not
very persuasive.
[34] In addition, it is worth noting that the new Commissioner’s
Standing Orders (Grievances), SOR/2003-181, provide in section 18 that a
grievance which has been referred to the ERC does not have to be referred back
to the level I adjudicator:
18. (1) Level II shall return a grievance to level I
for reconsideration if
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18. (1) Le niveau II renvoie le grief au niveau I pour
une nouvelle étude dans les cas suivants :
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(a) the level receives evidence
that could have resulted in a different decision by level I if the evidence
had been presented at that level; or
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a) il reçoit un nouvel élément de preuve qui aurait
pu donner lieu à une décision différente au niveau I s=il lui avait été présenté;
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(b) level I erred in determining
that it did not have jurisdiction over the grievance.
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b) le niveau I a commis une erreur en jugeant qu=il n=avait pas compétence à l=égard du grief.
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(2) Subsection (1) does not apply to
grievances that are referred to the Committee under section 33 of the Act.
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(2) Le paragraphe (1) ne s=applique pas aux griefs qui sont
renvoyés au Comité aux termes de l=article
33 de la Loi.
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[35] Although under the transitional provisions of the new Standing
Orders the applicant’s grievance continued to be governed by the old Standing
Orders, the procedure followed by the level II adjudicator was consistent
with his new Standing Orders.
[36] I am satisfied that the decision of the level II adjudicator
was consistent with procedural fairness in this particular case.
B. Did the level II adjudicator err in
finding that the classification committee’s decision was correct?
[37] In the case at bar, the level II adjudicator decided not to
follow the ERC’s recommendations because he was of the view that the
classification procedure had been complied with and the classification
committee’s decision was correct.
[38] The applicant argued that he made an error of law by
rejecting the recommendations contained in the ERC’s report and accepting the
classification committee’s findings concerning the applicant’s position, and by
regarding the relativity study as sufficient.
[39] This issue goes to the merits of the Commissioner’s decision,
which entails the pragmatic and functional analysis developed by the Supreme
Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982.
[40] Four factors must be considered to determine the applicable
standard of review: “the presence or absence of a privative clause or statutory
right of appeal; the expertise of the tribunal relative to that of the
reviewing court on the issue in question; the purposes of the legislation and
the provision in particular; and the nature of the question – law, fact, or
mixed law and fact” – Dr Q v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226, at paragraph 26.
[41] Section 32 of the Act contains a partial privative clause,
which favours a greater deference to the Commissioner’s decision:
32. (1) The Commissioner constitutes the final level in the
grievance process and the Commissioner's decision in respect of any grievance
is final and binding and, except for judicial review under the Federal
Courts Act, is not subject to appeal to or review by any court.
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32. (1) Le commissaire constitue le dernier niveau de la
procédure applicable aux griefs; sa décision est définitive et exécutoire et,
sous réserve du contrôle judiciaire prévu par la Loi sur les Cours
fédérales, n’est pas susceptible d’appel ou de révision en justice.
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(2) The Commissioner is not bound to act
on any findings or recommendations set out in a report with respect to a
grievance referred to the Committee under section 33, but if the Commissioner
does not so act, the Commissioner shall include in the decision on the
disposition of the grievance the reasons for not so acting.
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(2) Le commissaire n’est pas lié par les
conclusions ou les recommandations contenues dans un rapport portant sur un
grief renvoyé devant le Comité conformément à l’article 33; s’il choisit de
s’en écarter, il doit toutefois motiver son choix dans sa décision.
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[42] The Commissioner has greater expertise than the Court in a
technical area such as that of promotion or position classification in a
specialized agency such as the RCMP.
[43] In Brennan v. Canada (Royal Canadian Mounted Police),
[1998] F.C.J. No. 1629 (F.C.) (QL), at paragraph 12, Gibson J. held that
“in the technical area of promotion in an organization such as the RCMP in
which he was operating, substantial deference, albeit somewhat short of a
standard of ‘patent unreasonableness’, is appropriate on the part of this court
with respect to issues of fact”.
[44] Further, under section 16 of the Commissioner’s Standing
Orders (Grievances), 1990,
when a grievance is filed regarding promotion or position classification, his
function is limited to considering evidence of errors of fact or procedure,
which does not involve any question of law. When the finding which gives rise
to review is purely factual in nature, greater deference must be shown with
respect to the tribunal’s decision.
[45] Therefore, in light of the factors listed above, I am of the
opinion that the applicable standard of review is that of the patently
unreasonable decision.
[46] In the case at bar, I am satisfied that the decision by the
level II adjudicator not to follow the ERC’s recommendations and to approve the
classification committee’s opinion was not patently unreasonable, for the
following reasons.
[47] Under subsection 32(2) of the Act, the Commissioner was not
bound by the ERC’s conclusions and recommendations if he chose to disregard
them: however, he had to give grounds for his choice in his decision. The level
II adjudicator explained the reasons why he disregarded the recommendations.
[48] To summarize:
● the second evaluation was the result
of an objective review of the value of the work of a position by a committee of
analysts with experience in classification;
● he had no hesitation in acknowledging the
expertise of the classification committee as compared with the ERC, which had
no special expertise in the area;
● he found that managing police service contracts
with the Government of British Columbia and the municipalities in that province
was an important component of the work of the Division E.
[49] The level II adjudicator was not bound to accept the ERC’s
opinion, in which he essentially criticized the decision of the classification
committee.
[50] The ERC’s report is summary in nature, and he did not examine
the evidence of errors of fact or procedure in assessing the applicant’s
position classification, which it was limited to doing pursuant to paragraph
16(b) of the Commissioner’s Standing Orders (Grievances), 1990.
In my opinion, the ERC went beyond its proper function by substituting
its opinion for that of the classification committee.
[51] I repeat that, in a grievance dealing with classification,
the role of the level II adjudicator, like that of the ERC, was limited to
the examination of the evidence of errors of fact or procedure. Once he
found that there had been compliance, the adjudicator had no choice but to
dismiss the applicant’s grievance.
[52] Unlike the comparative analysis conducted by the preceding
classification committee, the analysis conducted by the second classification
committee was much more thorough. In addition to the benchmark positions in the
Hay system, the new committee compared the applicant’s position to other
managerial positions in other divisions.
[53] Essentially, the applicant objected that the adjudicator had
not dealt with the qualitative problem raised by the ERC, namely that it would
have been useful for the committee to include the position of officer
responsible for administration and personnel in Division A in the comparative
analysis and explain why he was reclassified.
[54] Now, the selection of the positions to be included in a
relativity study is a matter for the expertise of the classification committee.
It is possible that some other comparison would have been helpful. However, the
relativity study contained many comparisons with other positions having a
persuasive similarity to the applicant’s position. The quality of the study,
therefore, cannot be questioned simply because one position was not included in
the comparison. Accordingly, the adjudicator correctly relied on the
committee’s expertise on this point. The classification committee made no error
of procedure and there is no evidence to show that the process of classifying
the applicant’s position was arbitrary or without foundation.
[55] In short, in view of the expertise of the classification
committee, the adjudicator determined whether the classification procedure had
been complied with and assessed the reasoning of the classification committee (Fortin
v. Canada (Royal Canadian Mounted Police), [1994] F.C.J. No. 783
(QL)).
[56] Being satisfied that there had been compliance, he dismissed
the applicant’s grievance.
[57] I cannot accept that, in approving the classification
committee’s opinion, the decision of the level II adjudicator was “clearly
irrational” or “evidently not in accordance with reason”: Canada (Attorney
General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941.
[58] Therefore, I am of the view that this decision is not
patently unreasonable.
C. Did the prior involvement of the level
II adjudicator in the review of the applicant’s first grievance give rise to a
reasonable apprehension of bias?
[59] Under subsection 32(1) of the Act, the Commissioner is the
final level of the governing procedure, and under subsection 5(2) of the Act he
may not delegate his responsibilities as a level II adjudicator to anyone
else if the grievance is part of the class of grievances which must be referred
to the ERC. When Parliament’s intention is clear, it should not be assumed that
the legislative scheme is unfair (Ocean Port Hotel Ltd. v. British Columbia
(General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R.
781). Further, in this case, there is none of the overlapping of functions
which gave rise to a finding of reasonable apprehension of bias in 2747-3174
Québec Inc. v. Québec (Régie des permis d'alcool), [1996]
3 S.C.R. 919.
[60] To summarize, the mere fact that it was the same commissioner
who made a decision does not as such give rise to a reasonable apprehension of
bias, especially when his role was solely to examine the evidence of errors of
fact or procedure and to give grounds why the ERC’s recommendations were to be
disregarded.
[61] The applicant set out no facts establishing that the Commissioner
was biased in any way or had acted toward him with bad faith.
[62] For these reasons, the application for judicial review is
dismissed.
ORDER
THE COURT
ORDERS that the application for judicial review be dismissed.
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“Danièle Tremblay-Lamer”
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JUDGE
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Certified
true translation
François
Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2026-04
STYLE OF CAUSE: Daniel Girouard v. The Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 20, 2005
REASONS FOR ORDER AND ORDER BY: Madam Justice
Danièle Tremblay-Lamer
DATED: June 29, 2005
APPEARANCES:
Marie-Christine Girouard FOR
THE APPLICANT
Paul Deschênes FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Pg. Mercantil 2-4, A-3-1 FOR
THE APPLICANT
Barcelona Espana
E-08003
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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