Date: 20040621
Docket: T-1437-03
Citation: 2004 FC 880
Ottawa, Ontario, June 21, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JEAN FRENETTE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a level II adjudicator, acting on behalf of the Commissioner of the Royal Canadian Mounted Police (RCMP), pursuant to subsection 32(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (Act). In his decision, the level II adjudicator dismissed the applicant's grievance, which was addressed to a request for documents with a view to presenting adequately six further grievances that the applicant had previously filed.
ISSUE
[2] The applicant alleges that the level II adjudicator did not consider his submissions.
[3] The issue in dispute is the following, in my opinion: Did the level II adjudicator err in upholding the level I adjudicator's decision by referencing the applicant to present his request for records in the context of presenting other grievances that were not the subject matter of the present litigation?
[4] For the following reasons, I reply in the negative to this question and I will therefore dismiss this application for judicial review.
FACTS
[5] The applicant, Sergeant Jean Frenette, is a member of the RCMP. On August 22, 2000, he filed a grievance about the problems he alleges he was having in obtaining, under subsection 31(4) of the Act, some documents to use in preparing adequately six grievances (97-MADM-5681, 82, 83, 84 and 98-MADM-3786, 3791) that he had previously filed.
[6] His grievance was dismissed by the level I adjudicator, and then by the level II adjudicator. The applicant is now seeking judicial review of the decision of the level II adjudicator.
IMPUGNED DECISION
[7] The level II adjudicator dismissed the applicant's grievance in the following words:
[translation]
I am unable to allow this grievance on the ground that the provisions of subsection 31(1) were not complied with. Sgt. Frenette has not been able to identify clearly the decision, act or omission giving rise to the grievance, and which is independent of his other grievances now under way. To satisfy the statutory requirements concerning the capacity to file a grievance, it is not enough, in my opinion, to lodge a wholesale attack on the establishment of administrative deadlines and to cite a divisional or regional policy. The applicant should challenge separately the relevance of the documents, in relation to the independent grievances, following a refusal by the respondent to the grievance to provide the documentation referred to in subsection 31(1) of the Act. (Emphasis added - the word "independent" is in boldface in the original)
...
In each of files 97-MADM-5681, 5682, 5683 and 5684, as well as in files 98-MADM-3786 and 3791, the applicant should indicate clearly, if he has not already done so, the relevant documentation requested under subsection 31(4) of the Act. In each case, the respondent to the identified grievance (the decision-maker) provides the requested documentation or refuses to provide it, in which case he must give reasons for his refusal. Where the documentation is refused, the applicant and the respondent on the grievance both have the right to a review by a level I grievance adjudicator in this regard and cannot then dispute at level II the decision concerning the relevant documentation. The applicant must base his argumentation on the documentation that is provided. If the grievance is dismissed by the level I on the content of the submissions that are made, the applicant may, once again, challenge the refusal of the relevant documentation in an argument at level II.
ANALYSIS
[8] In Frenette v. Canada (Attorney General), 2004 FC 879, I held that the standard of review applicable to a decision of a level II adjudicator concerning a performance evaluation is the patent unreasonableness of the decision. The case at bar involves the same general grievance process, but the issue bears on the merits of the decision that dismissed the grievance for noncompliance with subsection 31(1) of the Act. I conclude that the level II adjudicator did not commit any patently unreasonable error, for the following reasons:
[9] Subsections 31(1) and (4) of the Act provide as follows:
| 31. (1) Subject to subsections (2) and (3), where any member is aggrieved by any decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner's standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.
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31. (1) Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un acte ou une omission liés à la gestion des affaires de la Gendarmerie causent un préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs prévue à la présente partie dans le cas où la présente loi, ses règlements ou les consignes du commissaire ne prévoient aucune autre procédure pour corriger ce préjudice.
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| 31(4) Subject to any limitations prescribed pursuant to paragraph 36(b), any member presenting a grievance shall be granted 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.
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31(4) Sous réserve des restrictions prescrites conformément à l'alinéa 36b), le membre qui présente un grief peut consulter la documentation pertinente placée sous la responsabilité de la Gendarmerie et dont il a besoin pour bien présenter son grief.
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[10] The level II adjudicator's decision is addressed to a procedural question and does not result in the loss of any right whatever for the applicant, contrary to what he says. What the adjudicator concluded is that disputes concerning the obtaining of documentation are collateral questions that should be resolved on a case-by-case basis in the context of the presentation of each grievance by the level I adjudicator who is to hear and determine the grievance.
[11] The appropriate procedure in the context of requests for documentation is provided in the RCMP's Administration Manual (AM). It was accurately summarized by the level II adjudicator. In each of his grievances, the applicant must clearly specify the relevant documentation requested under subsection 31(4) of the Act. In each case, the respondent to the grievance provides the requested documentation. Where he refuses to provide it, he must give reasons for his refusal. If refused, the applicant and the respondent on the grievance both have the right to request that a level I adjudicator decide this issue as a collateral question. Both parties must comply with the level I adjudicator's decision. They cannot challenge the decision concerning the relevant documentation before a level II adjudicator. The applicant must base his argumentation on the documentation that is provided. If the grievance is dismissed by the level I adjudicator on the content of the submissions that are made, the applicant may, once again, challenge the refusal of the relevant documentation in an argument before the level II adjudicator.
[12] Under the procedure established in the AM, it is clear that the applicant could not present an overall grievance encompassing requests for documentation pertaining to different grievances. The level II adjudicator was right to draw this conclusion. This application for judicial review is therefore dismissed without costs.
ORDER
THIS COURT ORDERS: the application for judicial review is dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1437-02
STYLE: JEAN FRENETTE v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 3, 2004
REASONS: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS
AND ORDER: June 21, 2004
APPEARANCES:
Jean Frenette APPLICANT, REPRESENTING HIMSELF
Raymond Piché FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean Frenette APPLICANT, REPRESENTING HIMSELF
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Montréal, Quebec
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