T-1919-95
BETWEEN:
SERGEANT
J.E.J.M. TOUPIN,
Applicant,
-
and -
HER
MAJESTY IN RIGHT OF CANADA,
Respondent.
-
and -
A.B.
HARVIE, Level II Adjudicator,
Mis-en-cause.
REASONS
FOR ORDER
JOYAL J.
The Court had before it an application
for judicial review of the decision of an adjudicator, A.B. Harvie, under
the grievance procedure for members of the Royal Canadian Mounted Police
(hereinafter "the RCMP").
The matter originated on July 9, 1992
when the applicant, an RCMP sergeant against whom certain criminal charges had
been made, was suspended from duty with pay. The pay and benefits terminated
on September 2, 1992. Immediately, on the following September 11, the
applicant challenged the decision by a grievance.
On May 10, 1993, following his
acquittal on the criminal charges, the applicant received from the authorities
a revocation of the earlier decision and an undertaking to pay him his salary
and benefits retroactive to September 2, 1992. However, the suspension order
was continued.
On August 24, 1993 the applicant
filed a claim for interest in the amount of $124.89 to compensate for the delay
in giving him his salary. On August 27, 1992 the RCMP denied his
application on the basis of s. 36 of the Federal Court Act.
On September 8, 1993 the applicant
filed a new grievance claiming interest in the amount of $124.89. In the
meantime, he was paid his salary accumulated between September 2, 1992 and
May 10, 1993 and the record indicates that on the date of the hearing of his
application by this Court he was continuing to receive his salary.
In connection with this new grievance
a host of exhibits was entered in the record on the question of interest. The
matter ended on August 22, 1994 when the applicant submitted a new
application, for $790.98 this time, covering the $124.89 originally claimed and
in addition $637.50 which he said he paid in interest on a loan made following
the cessation of his salary and $28.59 representing interest on the interest.
To complicate matters, on October 12,
1994 the applicant submitted an action request alleging that the original order
imposing the suspension without pay was unlawful and the decision made without
statutory authority.
On November 2, 1994 an action request
by a committee consisting of three officers recommended that the applicant be
paid the sum of $637.50, representing interest on the loan which the latter had
allegedly obtained between September 1992 and May 1993.
On December 5, 1994 the applicant's
grievance was dismissed on the ground that because of the delay in filing the
grievance it was inadmissible.
The record disclosed several appeals
and new pleadings in the following months, culminating on May 5, 1995 in a
decision at level II by the adjudicator Harvie dismissing the grievance. This
decision was also confirmed on review on August 22, 1995 and is now the
subject of an application for judicial review in this Court.
In his challenge the applicant said
he had complied with all the accepted rules, that his application for interest
was a valid one, that it was filed when the figures were known and that overall
the policy and procedure followed by the RCMP was unlawful, unconstitutional,
unreasonable and contrary to any principle of natural justice. The applicant
accordingly asked that the adjudicator's decision be quashed and that the Court
order the RCMP to pay the applicant the interest sought.
Counsel for the respondent, for her
part, submitted that the adjudicator's decision was not vitiated by any error
of law. Further, the record clearly indicated that the legislation did not
give the applicant any right to interest. Counsel therefore argued that the
application for judicial review was without basis in fact or in law and should
be dismissed.
To clarify the matter the Court will
once again review the facts in the record and make the following comments:
1.the decision of May
10, 1993 enabled the applicant to receive his salary and regular benefits but
he was still suspended from his duties with pay;
2.the claim for
interest dated August 24, 1993 seems to be an afterthought, as the applicant
had accepted the settlement of his arrears several weeks before without any
mention of interest;
3.it seems clear that
the RCMP carefully examined the applicant's arguments regarding the question of
entitlement to interest and even filed the most relevant precedents in this
connection;
4.the RCMP considered
each of the applicant's written representations but it was not until a year
later, on August 22, 1994, that the applicant submitted a new claim for
interest, increasing the amount from $124.89 to $790.98.
I make only a few comments on the
errors of law raised by the applicant:
1.the principle of
natural justice has been fully observed by the RCMP throughout in all respects;
2.the applicant had
reason to know from the outset that his claim would not be admissible: he was
not misled in his efforts to promote his case;
3.the applicant's
arguments that the thirty-day deadlines for filing a grievance should be calculated
from August 27, 1993, the date of the denial by Inspector Brazeau, are not
tenable: as the grievance system specifies, the thirty-day deadlines are from
the date on which the injury was sustained or the grievor knew or ordinarily
should have known of it;
4.based on the judgment
of this Court in Eaton v. The Queen and the decisions of the adjudicator in Dahl
and Treasury Board and Puxley and Treasury Board, I must conclude that in the
absence of a contractual or statutory provision the applicant is not entitled
to any amount for interest.
Conclusions
Analysis of the facts contained in
the record, consideration of the applicant's allegations and the Crown's
replies and, finally, a review of the applicable legislation and case law leads
me to conclude that the arbitral award of the mis-en-cause is valid in fact and
in law. I see no basis for intervention by the Court.
The application for judicial review filed by the
applicant must therefore be dismissed.
L. Marcel Joyal
J
U D G E
O T T A W A, Ontario,
January 24, 1997.
Certified true translation
C. Delon, LL.L.
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.:T-1919-95
STYLE OF CAUSE:SERGEANT J.E.J.M. TOUPIN,
Applicant,
and
HER MAJESTY IN
RIGHT OF CANADA,
Respondent.
and
A.B. HARVIE,
Level II Adjudicator,
Mis-en-cause.
PLACE OF
HEARING:Montréal, Quebec
DATE OF
HEARING:November 19, 1996
REASONS FOR
ORDER BY:Joyal J.
DATED:January
24, 1997
APPEARANCES:
Jean-Maurice
ToupinTHE APPLICANT REPRESENTING HIMSELF
Marie-Claude
CoutureFOR THE RESPONDENT
Raymond Piché
SOLICITORS OF RECORD:
George
ThomsonFOR THE RESPONDENT
Deputy Attorney General of Canada
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