Cuvelé v. Canada (Attorney General), docket T-2322-97

Date: 19990609

Docket: T-2322-97

OTTAWA, ONTARIO, THIS 9^TH DAY OF JUNE 1999

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

     IN THE MATTER of a decision by J.P. Blais, Inspector,

     Level II Adjudicator pursuant to s.31(2)(b) of the Royal

     Canadian Mounted Police Act, R.S., c. R-9, as amended

BETWEEN:

     DIDIER A. R. CUVELÉ

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER & ORDER

PELLETIER J.

[1]      The application is brought by Corporal Didier Cuvelé, a dog handler with the Royal Canadian Mounted Police (the "Force"). On February 28, 1996, Corporal Cuvelé brought a grievance claiming that he was entitled to standby pay from November 30, 1985 to February 24, 1996. The grievance arose from the refusal of Corporal Cuvelé`s superior officer to authorize payment of standby pay for Corporal Cuvelé who has, since becoming the dog handler in October 1985, taken after hours calls. The Level I Adjudicator rejected Corporal Cuvelé`s claim outright and held that Corporal Cuvelé did not have status to bring the grievance since it was, in the Adjudicator`s opinion, simply an attack upon the Force"s standby policy. The Level II Adjudicator held that Corporal Cuvelé was entitled to bring the grievance with respect to a certain period of time during which the Level II standby policy was in place but categorically rejected Corporal Cuvelé."s claim for standby pay prior to that period, or following the date on which his superiors advised him that he would not be designated for standby pay. As a result, Corporal Cuvelé brings this application for judicial review of the decision of the Level II Adjudicator.

[2]      The Force has had a standby policy for as long as Corporal Cuvelé has been a dog handler. It has been referred to by all concerned as Level I standby. A member of the Force who is eligible to receive this treatment is paid at the overtime rate for one hour out of every four that the member is on standby. In the mid 1990's a different level of standby was introduced by (Bulletin AM-2104 August 30,1995) which is referred to as Level II standby in which the eligible member is paid at the overtime rate for one hour out of every 8 that the member is on standby. The Level II policy was preceded by a trial period (pursuant to Bulletin AM-1885 ) in which eligible members were entitled to two additional days holidays per month as compensation for being on standby.

[3]      Corporal Cuvelé was never paid at the Level I standby rate, nor did he request such payment until the events which resulted in the launching of his grievance. He did receive the additional holidays under Bulletin AM-1885. He did not receive compensation under Bulletin AM-2104. His grievance followed the refusal of his superior officers, in February 1996, to designate him as eligible for Level II standby. The Level II Adjudicator allowed the grievance to the extent of awarding Corporal Cuvelé pay at the Level II standby rate for the period from August 30, 1995 (the effective date of Bulletin AM-2104) to February 1, 1996 (the date on which he was advised he would not be designated for Level II standby) less an allowance for additional holiday time earned in the same period .

[4]      Both parties take the position that the Level II Adjudicator"s award must be set aside. Corporal Cuvelé says he is entitled to be paid at the Level I standby rate throughout and the Respondent says that Corporal Cuvelé was not entitled to any payment at all for standby. At the opening of the hearing of this application, Corporal Cuvelé"s counsel pointed out that the Level II Adjudicator misdirected himself in that Corporal Cuvelé had not claimed Level II standby at all whereas the Adjudicator proceeded on the basis that Level II standby was being claimed for the entire period of the grievance. Thus, it was clear at the opening of the argument that the award would have to be set aside, the only issue being whether the Court should hear argument on the merits so as to provide some guidance to the following Adjudicator on any applicable principles. This was the position taken by counsel for the Respondent. Counsel for Corporal Cuvelé argued that the Adjudicator would have to make findings of fact before any legal principles came into play and that this Court could not make or anticipate those findings of fact. I decided to hear argument on the merits with a view to seeing whether some guidance could be provided to the next Adjudicator.

[5]      Some issues were resolved by consent and ought not be issues in the future. They are the following:

[6]      The Level II Adjudicator proceeded throughout his award on the basis that Level II standby pay was being sought. He appeared to believe that Corporal Cuvelé was relying upon Bulletin AM-2104 to establish his right to standby pay but claiming it at the Level I rate on the argument that the Level II rate had never been approved by Treasury Board. As a result the Adjudicator did not consider the merits of Corporal Cuvelé"s argument that he had been on Level I standby ever since becoming a dog handler. There is no finding on the issue of whether Corporal Cuvelé was on standby (apart from his status under Bulletin AM-1885) to which I can apply the appropriate standard of review. The same is true of the applicability of any limitation periods to Corporal Cuvelé"s claim. There is no finding to which I can apply the appropriate standard of review.

[7]      As a result, despite my wish to do so, I am not in a position to provide a subsequent Adjudicator with any guidance as to the disposition of this claim. This is so because anything I might say assumes certain findings of fact. I am not entitled to be the fact finder. In the end, I can do nothing more than record the agreement of the parties with respect to certain issues and send the matter back.

     O R D E R

     IT IS THEREFORE ORDERED THAT:

     "J.D. Denis Pelletier"

     Judge