T-821-96
BETWEEN:
GARY BARNETT
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED
POLICE, F.G. PALMER, DEPUTY COMMISSIONER OPERATIONS
and THE ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR ORDER
ROULEAU, J.
This is an application for an order quashing the decision of the Deputy Commissioner Operations, RCMP, dated February 17, 1996, wherein he denied the applicant's grievance against a RCMP policy, known as Administrative Manual Bulletin or (AM) 1646.
The applicant commenced employment with the RCMP in August of 1979 with the rank of special constable. He was converted to a Regular Constable on May 5, 1990.
Special constables receive modified training upon being hired for specific jobs and carry out various duties with the Force such as Native Special Constables, Airport Special Constables, static guard (executive/diplomatic protection or property security), aircraft maintenance engineer, provost and explosives technician.
In 1988, the RCMP announced fundamental policy changes relating to its structure and recruiting philosophy. Part of the change involved the conversion of special constables to constables. The Administrative Manual, which contains the administrative guidelines for the Force, was amended accordingly.
Following reassessment of the roles and responsibilities of the RCMP at the airports, it was determined that additional training of special constables was necessary to provide the requisite policing services. As a result, extra training was required before they could be converted or promoted to regular constables. In the Applicant's case, as an Airports special constable, he had initially received 286 hours of training compared to regular constables who receive 862 hours of training.
On March 31, 1988, the Administrative Manual Bulletin 1215 was issued and, in order to be eligible for promotion, special constables had to be prepared to relocate immediately. They also had to sign an undertaking that they would revert voluntarily to the Special Constable rank if they did not successfully complete the training. Thereafter, on November 10, 1989, AM 1215-A was issued amending AM 1215. It deleted relocation as a criterion for eligibility and demotion no longer followed unsuccessful training.
The applicant was promoted under this amended policy in May of 1990. Initially he had been unwilling to relocate and therefore, was ineligible for promotion. However, his application went forward when the relocation requirement was dropped in November of 1989 and six months later the applicant was promoted after training and automatically received a pay raise effective May 1990.
When both AM 1215 and 1215-A were in place, the timing of the promotions was dependant upon the training schedules. As a result, since a special constable was not promoted until training was completed, promotions and salary increases occurred at different intervals among the force. During the training and promotion process, RCMP airport duties remained the same for special constables and constables. Consequently, former special constables who had completed their training and had been promoted were receiving full constable pay as they worked alongside other special constables performing the same duties but who had not yet completed training.
A second policy change, AM 1646, was issued on June 6, 1990. It directed the immediate conditional promotion of the remaining special constables to regular constables. They were to be trained as soon as practicable and receive the constable rate of pay upon completion of training.
Delays occurred in sending the converted special constables to the training academy. Accordingly, individuals who had been promoted on the same day were receiving the different rate of pay depending on when they had completed training. This inequity was recognized on November 1990 at a Commanding Officers/Divisional Staff Relation Representative Conference (DSSR) and as a result this second policy was amended on January 31, 1991 by AM 1646-A. It provided that all special constables conditionally promoted on June 7, 1990, would receive salary raises retroactive to their date of promotion following the successful completion of training. However, this amendment did not apply to the applicant, who had been promoted under AM 1215 or 1215-A (the "First Policy") one month prior to June 6, 1990, the effective date of the second policy.
The applicant filed a grievance stating that the Second Policy did not provide for equality amongst converting special constables. He submitted that the retroactivity of pay increase should apply to all Special Constables going back to the enactment of the first policy change effective in 1988. The initial grievance was considered at Level I by Chief Superintendent Proke and denied. The grievance was then considered at Level II by Inspector H.L. Kennedy and was again denied.
The applicant then commenced an action in this Court seeking an order quashing inspector Kennedy's decision. On September 8, 1993, Nadon J. quashed Inspector Kennedy's decision and ordered that the grievance be re-submitted to a different level decision-maker. As a result, a new Level II adjudicator entertained the grievance and on July 7, 1994, it was denied once again.
Following this decision, the applicant re-applied to this Court to judicially review the latest decision. On December 21, 1995, Simpson J. allowed the application and ordered that the matter be referred back for redetermination. Simpson J. found that the adjudicator had erred in law by failing to render a decision which addressed the issues raised by the applicant, specifically those involving the Canadian Human Rights Act. Furthermore, it was held that the adjudicator had failed to address the issue that special constables and constables performed identical airport duties, that training schedules drove the timing of pay raises under the First Policy and that this situation was inequitable under the Second Policy.
On February 27, 1996, Level II Deputy Commissioner Operations F.G. Palmer reviewed the applicant's grievance, particularly the policy dealing with pay equity for the promotion of special constables to the rank of constables and whether it was inequitable or unfair and a violation of the Canadian Human Rights Act. The applicant's submission was that retroactive pay should have been available to all converted special constables affected by the conversion process since its inception, as of June 24, 1988.
The Deputy Commission dismissed the applicant's grievance for the following reasons:
| (a) there was no violation of the Canadian Human Rights Act. The issue of equality of work did not arise since the work of Regular and Special Constables was not the same. Nor did the equal wages for work of equal value provisions of the Act apply since that section applied only as between male and female employees; |
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| (b) the training academy could only accommodate specific numbers of trainees at any given time and training priorities in other areas had to be taken into account; |
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| (c) it was unreasonable to assert that members should be provided promotional opportunity immediately on becoming eligible for promotion. Many members are eligible for promotion but only receive the promotion when an opening exists and the process identifies them as the chosen candidate. Other members qualified for promotion may be promoted sooner or later than their colleagues, because of the administrative and logistical quirks of the system; |
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| (d) there would have been significant costs to applying retroactive pay increases and/or promotions to the extent argued by the applicant. In times of fiscal restraint and monetary difficulties, management's decisions were difficult but were made in an attempt to deal with all aspects of the problem; |
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| (e) the decision made was entirely within the prerogative of those in command at the time; |
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| (f) the applicant was ineligible for promotion until the issuance of AM 1215-A on November 10, 1989. He was immediately considered for promotion and was so promoted on May 6, 1990; and, |
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| (g) a valid grievance must identify adverse impact on the specific person bringing the grievance. Here the applicant was unaffected by the lack of retroactivity of AM 1646-A with the possible exception of the six month period from November 1989 to May 1990. This period could not be considered an unreasonable delay given that administrative arrangements had to made so that the applicant could commence his training program, after confirming his eligibility for promotion under the new policy. |
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The applicant now seeks to have that decision set aside. He maintains that the choice of June 7, 1990, as the retroactive pay date was arbitrary and failed to take into account those individuals who were conditionally promoted between June 24, 1988, and June 7, 1990, but who were not eligible for their pay increase until they had completed training. If all relevant facts had been taken into account it is argued, all special constables would have received retroactive pay upon completion of training back to the date of the first troop conversion.
I am dismissing the application for the following reasons.
Before the decision of the Deputy Commissioner can be quashed, it must be established that he committed a reviewable error which would warrant this Court's interference. I cannot ascertain any such error here. It is clear from his reasons that he took into account all relevant factors and considerations in coming to his conclusion. Furthermore, he has complied with the directions given by this Court upon sending the matter back for redetermination on two previous occasions. Finally, the Deputy Commissioner was acting entirely within his jurisdiction when he denied the applicant's grievance against the impugned RCMP policy.
The essence of the applicant's complaint here, and what he is actually seeking to challenge in these proceedings, is the Force's policy decision. However, the courts are very reluctant to interfere with policy and financial decisions which are made by a public body for the purpose of assisting it in the exercise of its discretionary powers. Here, the impugned policy was formulated in accordance with the discretionary powers contained in the Public Service Staff Relations Act, which affirms the Treasury Board's right to determine the organization of the Public Service and to assign duties to, and classify, positions therein, and The Royal Canadian Mounted Police Act which states that the employer has the right to establish the pay and allowances to be paid to members of the Force. Furthermore, the Commissioner is entitled to promote members of the Force and Treasury Board has the power to prescribe ranks and levels of members as well as the maximum number of people that may be appointed to each rank and level.
It is clear therefore that Treasury Board and the Commissioner have broad discretionary powers with respect to the classification of positions within the Force, the duties assigned to those positions, as well as remuneration and promotion. It is a well-established principle that before the Court will interfere with the exercise of such discretionary powers, or with policy and financial decisions made by any level of government, it must be satisfied that the discretion was exercised for an unauthorized or ulterior purpose, in bad faith, or for irrelevant considerations. There is quite simply no evidence of that in the present case.
For these reasons, the application is dismissed.
JUDGE
OTTAWA, Ontario
November 18, 1997
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