Date:
20100303
Docket: T-446-09
Citation: 2010 FC 250
Vancouver, British Columbia, March
3, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DAN
C. WILSON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Commissioner of the
Royal Canadian Mounted Police at Level II made January 14, 2009 denying a
grievance brought by the Applicant in respect of his request for leave without
pay. For the reasons that follow, I find that the application is allowed to the
extent that the decision will be set aside, with costs.
[2]
The
Applicant Dan Wilson was, at the relevant time, a full-time member of the Royal
Canadian Mounted Police (RCMP). In 1999 the Applicant was seconded to the
International Police Task Force in Bosnia, Herzegovina, for a year.
Upon his return to the RCMP in 2000, the Applicant was contacted by the Office
of High Representative in Bosnia and asked to help set up an anti-fraud
unit there. The Applicant perceived this offer to be unique and challenging and
requested that he be allowed to be absent from the RCMP on a leave without pay
(LWOP) basis. This request was refused. The reason stated for the refusal was
that personnel resource levels in the area in which the Applicant served were
limited and the Applicant could not be spared at that time.
[3]
On
October 17, 2000, the Applicant commenced grievance proceedings within the RCMP
in respect of the denial of his request for leave without pay. On or about
December 6, 2000, the Applicant retired from the RCMP and took the posting in Bosnia that he had
been offered. Counsel for both parties agreed that the Applicant’s retirement
does not affect the grievance procedure or his right to take these
proceedings. In respect of the damages sought by the Applicant in these
proceedings, his counsel has offered some calculations as to the Applicant’s
losses allegedly suffered but agrees that there is no evidence, for instance
from an expert accountant, to substantiate such alleged losses.
[4]
The
grievance initiated by the Applicant on October 17, 2000, proceeded at a leisurely
pace and was finally determined at Level I on September 10, 2004. The
grievance was dismissed. The Applicant appealed to Level II which entailed a
first hearing before an External Review Committee which made recommendations to
the Level II decision-maker, the Commissioner, on September 13, 2007. On
January 14, 2009, the Commissioner made a Level II decision denying the
grievance. That decision was communicated to the Applicant on February 27,
2009. This is the decision under review.
[5]
The
Applicant seeks to have the Level II decision set aside and that certain
damages be awarded. In the alternative, the Applicant requests that the Level
II decision be set aside and the matter returned to the Commissioner for an
assessment of damages. The Respondent submits that the application should be
dismissed. Both counsel agreed that costs should be awarded to the prevailing
party at the Column III level.
I. The Issues
[6]
The
principal issue in this case deals with the interpretation of the Financial
Administration Act, R.S.C. 1985, c. F-11, and the Royal Canadian Mounted
Police Act, R.S.C. 1985, c. R-10 and various regulations, policy directives
and the like in respect thereof. In short, does the Treasury Board or the Royal
Canadian Mounted Police have jurisdiction to deal with leave without pay
requests by RCMP Officers?
[7]
A
second issue has to do with the Applicant’s request for disclosure of certain
documents apparently refused by RCMP officials during the grievance
proceedings. The Applicant ultimately made a request for such documents through
the Access to Information process only to be told that they were not available.
The Commissioner in the decision under review at paragraphs 129 to 133 agreed
that such documents should have been provided to the Applicant but they were
not available. In any event, the Commissioner determined that the grievance
should not be allowed solely for that reason.
A. Issue
#1: Treasury Board or Royal Canadian Mounted Police
[8]
Applicant’s
counsel argues that, as a matter of statutory construction, the Treasury Board
not the Royal Canadian Mounted Police is the body empowered to deal with a
request by an RCMP officer that he be allowed leave without pay. As such, the
Applicant’s counsel argues, the Level II decision by the Commissioner must be
reviewed on a standard of correctness.
[9]
Respondent’s
counsel argues that leave without pay is an administrative function within
the RCMP and a decision of the Commissioner such as that at issue here is
based on statutes, regulations, standing orders and guidelines pertinent to the
RCMP and that decisions in respect thereof must be given considerable
deference.
[10]
Both
counsel rely on Dunsmuir v. New Brunswick, [2008] S.C.R. 190,
2008 SCC 9. Since I will find that this issue turns on a question of
law, the applicable standard is correctness.
[11]
The
Financial Administration Act supra, sets out a number of respects
in which the Treasury Board may act for the Queen’s Privy Council in Canada. Section
7(1)(e):
7. (1) The Treasury Board may
act for the Queen’s Privy Council for Canada on all matters relating to
…
(e) personnel management in the public
service of Canada, including the determination
of the terms and conditions of employment of persons employed therein;
[12]
Section
11(1) of the Financial Administration Act provides a definition of
“public service” by referencing the Public Service Staff Relations Act:
11. (1) In this section and sections 12 and
13,
“public service” has the meaning given
the expression “Public Service” in the Public Service Staff Relations Act and
includes any portion of the public service of Canada designated by the Governor
in Council as part of the public service for the purposes of this section and
sections 12 and 13;
[13]
The
Public Service Staff Relations Act, R.S.C. 1985, c. P.35 defines “public
service” in section 2 as that specified in Schedule I. That Schedule includes
the Royal Canadian Mounted Police:
2. (1) In this Act,
…
“Public Service” means the several
positions in or under any department or other portion of the public service of Canada specified in Schedule I;
…
SCHEDULE I
(Section 2)
PART I
Departments and other portions of the
public service of Canada in respect of which Her
Majesty as represented by the Treasury Board is the employer
Departments named in Schedule I to the
Financial Administration Act
…
Royal Canadian Mounted Police
Gendarmerie royale du Canada
[14]
Returning
to the Financial Administration Act, section 11(2)(a) empowers
the Treasury Board to act in respect of human resources and section 11(2)(d)
gives the Treasury Board power expressly with respect to leave of those
persons:
(2) Subject to the provisions of any
enactment respecting the powers and functions of a separate employer but
notwithstanding any other provision contained in any enactment, the Treasury
Board may, in the exercise of its responsibilities in relation to
personnel management including its responsibilities in relation to employer
and employee relations in the public service, and without limiting
the generality of sections 7 to 10,
(a)
determine the requirements of the public service with respect to human
resources and provide for the allocation and effective utilization of human
resources within the public service;
…
(d) determine and regulate the pay to
which persons employed in the public service are entitled for services
rendered, the hours of work and leave of those persons and any matters related
thereto;
[15]
Section
11(3) of the Financial Administration Act is critical to the
determination of the present proceedings since it provides for an exemption of
the power of the Treasury Board in respect of matters expressly
determined by any other Act:
(3) The powers and functions of the
Treasury Board in relation to any of the matters specified in subsection (2) do
not extend to any such matter that is expressly determined, fixed,
provided for, regulated or established by any Act otherwise than by the
conferring of powers or functions in relation thereto on any authority or
person specified in that Act, and do not include or extend to any power or
function specifically conferred on, or any process of personnel selection
required or authorized to be employed by, the Public Service Commission by or
under the authority of the Public Service Employment Act. [Emphasis added.]
[16]
At
this point, I turn to the Royal Canadian Mounted Police Act, R.S.C.
1985, c. R-10 (RCMP Act). Section 5(1) of that Act gives to the
Commissioner control and management of the Force and all matters connected
therewith:
5. (1) The Governor in Council may appoint
an officer, to be known as the Commissioner of the Royal Canadian Mounted
Police, who, under the direction of the Minister, has the control and
management of the Force and all matters connected therewith.
[17]
Section
21 of the RCMP Act provides for Regulations and Rules to be made
including, in subsection (2)(b), rules in respect of administration or
good government of the Force:
21. (1) The Governor in Council
may make regulations
(a)
respecting the administrative discharge of members;
(b)
for the organization, training, conduct, performance of duties, discipline,
efficiency, administration or good government of the Force; and
(c)
generally, for carrying the purposes and provisions of this Act into effect,
(2)
Subject to this Act and the regulations, the Commissioner may make rules
(a)
respecting the administrative discharge of members; and
(b) for the organization, training,
conduct, performance of duties, discipline, efficiency, administration or good
government of the Force.
[18]
Section
21 of the RCMP Act makes provision that the Treasury Board may establish
pay and allowances to be paid to the members and reduction or elimination of
pay and allowances in certain instances. It does not expressly deal with leave
without pay.
Pay and Allowances
22. (1) The Treasury Board shall
establish the pay and allowances to be paid to members.
(1.1)
Where, pursuant to this Act, a member is demoted, the rate off pay of that
member shall be reduced to the highest rate of pay for the rank or level to
which the member is demoted that does not exceed the member’s rate of pay at
the time of the demotion.
(2)
No pay or allowances shall be paid to any member in respect of any period
during which the member is serving a sentence of imprisonment.
(3) The Treasury Board may make regulations
respecting the stoppage of pay and allowances of members who are suspended from
duty.
[19]
The
Applicant’s counsel argues that we can stop right here since the RCMP Act
does not “expressly” deal with leave without pay. That matter, because of
section 11(3) of the Financial Administration Act, counsel argues remains
with the Treasury Board.
[20]
The
Respondent’s counsel argues that included in the general powers conferred by
section 5(1) and 21 of the RCMP Act is the power in the Commissioner to
deal with leave without pay and that such power is sufficiently “explicit” to
satisfy the conditions of section 11(3) of the Financial Services Act.
[21]
Applicant’s
counsel refers to the Leave without Pay Policy published by the Treasury
Board during the relevant time period to illustrate that the Treasury Board has
taken control of leave without pay issues. That Policy states, in part:
Policy
objective
To provide an equitable and consistent
application of leave without pay.
Policy
statement
It is the policy of the government to
permit employees to take unpaid absences from work for personal or other
reasons while maintaining continuity of their employment.
Application
This policy applies to all department and
other portions of the Public Service listed in Part I of Schedule I of the
Public Service Staff Relations Act.
Policy
requirements
Leave
without pay must be authorized in accordance with the relevant authority, that
is, the collective agreement or the appropriate terms and conditions of
employment.
For
the following leave without pay situations, departments must adhere to the
standards in Appendix A of this policy:
-
illness
or injury;
-
employment
in the office of a minister;
-
Reserve
Forces training.
[22]
The
Policy further states that an employee other than certain staff of a minister
may return after leave, implying Applicant’s counsel argues that all others may
return without problem.
Employment in the office of a minister
Leave without pay to accept employment on
the exempt staff of a minister, or a leader of the Opposition must
only be granted for a specified period if the deputy minister is
satisfied that the individual’s subsequent re-employment in the department will
not be prejudiced.
[23]
Respondent’s
counsel argues that the Policy in referring to “appropriate terms and
conditions of employment” means that the Treasury Board, as a matter of policy,
has enabled employers such as the RCMP to deal with leave without pay.
Applicant’s counsel argues that a policy statement cannot override a statutory
provision such as section 11(3) of the Financial Administration Act and,
in any event, the “authorization” of leave does not extend to refusal of leave,
but deals only with matters in respect of administrative terms and conditions
respecting such leave.
[24]
Respondent’s
counsel points out an administrative directive issued to regional human
resources officers of the RCMP dated December 15, 1999, restricting approval to
all applications for leave without pay. It says:
RE:
LEAVE WITHOUT PAY AND SELF FUNDED LEAVE WITHOUT PAY
As
you will recall from discussions held at the last Cos/Directors/DSRRs
conference in Ottawa a few weeks ago, the R.C.M.P.
currently faces a severe lack of human resources to meet its contractual
agreements with different stakeholders.
We
are currently addressing this severe vacancy pattern that is affecting all
Divisions. Until the situation has been corrected, I would ask that approvals
of Leave Without Pay and Self Funded Leave Without Pay for Regular Members be
restricted to all but exceptional cases.
Your
anticipated cooperation in this regard is appreciated.
[25]
Applicant’s
counsel argues that such a directive cannot create jurisdiction where none exists.
[26]
An
important decision in respect of this issue is that of the Federal Court of
Appeal in Gingras v. Canada, [1994] 2 F.C. 734. That case dealt with a
bilingual bonus plan instituted by the Treasury Board and whether RCMP members
were employees of Treasury Board for purposes of that plan. The unanimous
decision of that Court was given by Mr. Justice Décary. He described the Financial
Administration Act as the centerpiece of the organization of the federal
government at page 748:
The centerpiece of the organization of
the federal government is the Financial Administration Act. It sets up a
committee of the Queen’s Privy Council for Canada which it calls the “Treasury Board”
(subsection 3(1)). The Treasury Board may act for the Privy Council in any matter
relating to, inter alia, “(a) general administrative policy in the public
service of Canada”; “(b) the organization of the public service or any portion
thereof”; “(c) financial management”; and “(e) personnel management in the
public service, including the determination of terms and conditions of
employment of persons employed therein” (subsection 5(1)).
[27]
Mr.
Justice Décary recited certain provisions of the Financial Administration
Act. It is important to note that the words of section 7(1)(d)
are essentially the same as section 11(2)(d) of the version of that
Act at issue here, as is section 7(3) of the former Act essentially the same as
section 11(3) that we are dealing with here.
[28]
Mr.
Justice Décary drew a number of conclusions in respect of that Act commencing
at page 753 of the reported decision including:
A careful reading of these
provisions leads me to make the following observations:
1. In the executive branch of the federal
government there is only one "employer" and that is Her Majesty the
Queen in right of Canada;
2. As a general rule, Her Majesty does not
exercise her functions of employer herself or through the Governor in Council:
instead she delegates the exercise thereof either to the Treasury Board, when a
department or portion of the public service specified in Part I of Schedule I
is concerned, or to a separate employer when a portion of the public service
specified in Part II of Schedule I is concerned;
3. Parliament has adopted an objective,
simple and easily verifiable test to determine those persons in respect of whom
Her Majesty will be represented as employer by the Treasury Board and
those in respect of whom she will be represented as employer by a separate
employer; it has drawn up two lists in legislation and not in a regulation,
namely Schedules I and II; although these lists are given in a schedule to the
Public Service Staff Relations Act, they serve purposes other than those of
that Act: thus the Financial Administration Act (see subsection 7(9)) and the
Public Service Employment Act (see the definition of "Public Service"
in subsection 2(1)) refer expressly or by necessary implication to Schedule I;
a reference made to Schedule I therefore does not necessarily imply a
reference to the Act with which it is associated;
4. Parliament has chosen to indicate by
legislation rather than by regulation the persons for whom the Treasury Board,
on behalf of Her Majesty, will be the employer and those for whom it will not:
any change of status in this regard therefore can only be made by legislation;
5. The RCMP is a division or a section of
the public service of Canada within the meaning of the Financial Administration
Act and is a department within the meaning of that Act; its members are
therefore for the purposes of the Act "persons employed in the public
service of Canada"; further, the definition of "employee" in section
2 of the Public Service Staff Relations Act, by excluding members of the RCMP
from the definition "person employed in the Public Service" for the
purposes of that Act, confirms that the latter are in any case "persons
employed in the Public Service";
6. The RCMP (and not merely its civilian
personnel) is listed in Part I of Schedule I among the departments and other
portions of the public service of Canada for which Her Majesty, represented by
the Treasury Board, is the employer;
7. CSIS is listed in Part II of Schedule I
among those portions of the public service of Canada which are
separate employers;
8. A comparison of Parts I and II of
Schedule I indicates that Parliament took great care to determine exactly what
"portions" of the public service it would list in that Schedule and
there is nothing to suggest that the reference to the RCMP made in Part I of
Schedule I should be interpreted as a reference only to the civilian staff of
the RCMP; Schedule I designates "portions" in their entirety and when
it intends to refer only to part of a portion it does so expressly ("Staff
of the Exchequer Court" and "Staff of the Supreme Court" in Part
I, in 1970; "Staff of the Federal Court" and "Staff of the
Supreme Court" and "Staff of the Non-Public Funds, Canadian
Forces" in Parts I and II, respectively, in 1985); it would in any case be
somewhat unusual for Parliament to have listed the RCMP in Part I solely on
account of its civilian personnel when as we know the RCMP is essentially an
institution made up of officers and members-as if Parliament had given priority
to the assistant over the principal; it would also be strange if, after taking
care in the Public Service Staff Relations Act to exclude the RCMP from the
word "employee", Parliament had failed to make this same exclusion
when the time came to prepare Schedule I; further, the fact that, despite
excluding both RCMP members and "non-civilian" employees of CSIS from
the definition of an "employee", Parliament persisted in including
the RCMP in Part I and CSIS in Part II indicates that inclusion in either Parts
I and II of Schedule I has nothing to do with the definition of an
"employee" in the Act;
9. A member of the RCMP is therefore a
person employed in the public service, in a portion thereof, the employer
of whom is Her Majesty represented by the Treasury Board, which also makes him
a person employed in the Public Service; the fact that such a member is not an
employee for the purposes of the Public Service Staff Relations Act does not in
any way alter his status as a public service employee; I entirely concur in the
approach taken by the Trial Judge, who considered that "the exclusion of
non-civilian, non-unionized members of the RCMP for the purposes of application
of the general provisions of the Public Service Staff Relations Act is solely
and specifically related to the purpose of that Act, namely setting out
collective labour relations in the Public Service. This exclusion does not have
the effect of placing these members of the RCMP outside the definition of
public service'";
[29]
At
page 758, Mr. Justice Décary wrote:
I am not saying that members of the RCMP are employees like any
others. It is clear that both in the ordinary law and in Canadian statutory
law, as a consequence of their method of appointment, their oath and their code
of discipline, they form a class apart. I am simply saying that this special
status does not deprive them of their status as employees for the purposes of
statutes relating to the organization of the federal Government: they may be
special employees, but they are still employees.
[30]
I
gather from this analysis that members of the RCMP are employees of Her
Majesty, that Her Majesty’s functions are delegated to the Treasury Board in
respect of the RCMP except to the extent otherwise assigned by legislation
rather than regulation or otherwise.
[31]
In
Gingras just as in the present case, counsel for the Crown argued that
section 5 of the RCMP Act was sufficiently broad so as to give the
necessary powers to the Commissioner, not the Treasury Board. Justice Décary
said so at page 754 and 760 of the reported decision:
The appellant relied heavily on section 5 of
the Royal Canadian Mounted Police Act, which provides that the Commissioner
"under the direction of the Minister, has the control and management
of the force and all matters connected therewith."
The fact that such authority is vested in the
Commissioner does not make him an employer in place of the Treasury Board. The
latter's powers are scrupulously protected by subsection 7(6) of the Financial
Administration Act and it is only in exceptional cases, and by some means other
than a mere assignment of those powers to some other authority, that such other
authority will exercise them in its place. In the case at bar, section 5 of the
Royal Canadian Mounted Police Act is a simple assignment of power to the
Commissioner which accordingly does not in itself confer any actual authority
on the Commissioner over matters which are specified in subsection 7(1) of the
Financial Administration Act and as to which the Treasury Board appears to have
exercised its powers.
In any case, whatever the Commissioner's powers
may be under the Royal Canadian Mounted Police Act, it is clear that they do
not extend to the powers and duties listed in paragraphs (a), (c), (d) and (i)
of subsection 7(1) of the Financial Administration Act, which are significant
attributes of the status of employer, since under subsections 6(2), 7(2) and
sections 11 and 22 of the Royal Canadian Mounted Police Act those powers and
duties will continue to be exercised by the Treasury Board. Subsection 22(1) in
particular provides that "The Treasury Board shall establish the pay
and allowances to be paid to the members of the force." It is true
that the Treasury Board does not enjoy the power to appoint members of the
RCMP, but it does not have that power in the departments either and yet it
remains the employer (as Her Majesty's representative): that power belongs to
the Public Service Commission. The power to make appointments is therefore not
an essential attribute of the status of employer for the purposes of the
legislation at issue.
[32]
In
the present case, I find Gingras to be persuasive if not binding
authority. That case states that legislation has given powers to the Treasury
Board that can only be taken away by legislation. Section 11(3) states that
those powers can only be taken away by express legislation. I find no express
legislation in the RCMP Act that takes away from the Treasury Board its
powers respecting leave without pay.
[33]
Respondent’s
counsel argues that the Policy Statement issued by the Treasury Board
constitutes a conferral of power upon the Commissioner of the RCMP to deal with
“appropriate terms and conditions of employment” which includes leave without
pay. Reference is made to Greater Vancouver Transportation Authority v.
Canadian Federation of Students – British Columbia Component, 2009 SCC 31
where the Supreme Court of Canada, in its majority decision, found that in
certain circumstances a policy stated can be binding “law”. Justice Deschamps
for the majority wrote at paragraphs 64 and 65:
[64] Where a
policy is not administrative in nature, it may be "law" provided that
it meets certain requirements. In order to be legislative in nature, the policy
must establish a norm or standard of general application that has been enacted
by a government entity pursuant to a rule-making authority. A rule-making
authority will exist if Parliament or a provincial legislature has delegated
power to the government entity for the specific purpose of enacting binding
rules of general application which establish the rights and obligations of the
individuals to whom they apply (Denys C. Holland and John P. McGowan, Delegated
Legislation in Canada (1989), at p. 103). For the purposes of s. 1 of the Charter,
these rules need not take the form of statutory instruments. So long as the
enabling legislation allows the entity to adopt binding rules, and so long as
the rules establish rights and obligations of general rather than specific
application and are sufficiently accessible and precise, they will qualify as
"law" which prescribes a limit on a Charter right.
[65] Thus, where a government policy is
authorized by statute and sets out a general norm or standard that is meant to
be binding and is sufficiently accessible and precise, the policy is
legislative in nature and constitutes a limit that is "prescribed by
law".
[34]
I
find that even if the Policy Statement made by the Treasury Board is of the
type dealt with by the Supreme Court, the terms “appropriate terms and
conditions of employment” are not “sufficiently accessible and precise” so as
to fall within the requirement stipulated by that Court, particularly in view
of the provisions of section 11(3) of the Financial Administration Act
that an exclusion to the powers of the Treasury Board must be “expressly” made.
[35]
Therefore,
as to the first issue I find that the Treasury Board, not the Commissioner of
the RCMP, has power to determine whether leave without pay should or
should not be granted. The Commissioner’s decision denying a request for
leave without pay is without jurisdiction and must be set aside.
B. Issue #2: Documents
[36]
In
view of my determination as to Issue #1, the issue respecting documents is not
necessary. In any event, it appears that such documents are not “available”.
Whether that means that they once existed and no longer exist is unclear.
[37]
Applicant’s
counsel points to certain places in the Commissioner’s decision where the
Commissioner finds that the Applicant has failed to discharge certain burdens
of proof. Counsel argues that the documents may have assisted in this regard.
This is speculation. I have no evidence to permit me to find or even infer that
the documents may have been helpful.
[38]
I
decline to make any determination in respect of the documents. The matter is
moot.
B. Remedy
[39]
I
am setting aside the Commissioner’s decision for lack of jurisdiction.
[40]
Applicant’s
counsel asks that I make an award of damages and recommends a sum of money
based on counsel’s assertions and calculations alone. There is no evidence on
the point.
[41]
In
Canada v. Grenier, [2006] 2
F.C.R. 287, the Federal Court of Appeal determined that an action for damages
was separate from a judicial review of a decision relating to the same subject
matter. I appreciate that the Ontario Court of Appeal has taken a different
view and that the Supreme Court of Canada may, at some point, come to grips
with the issue. At present, however, I am bound by Grenier and find
that I cannot make an award of damages in the context of the present
proceedings.
[42]
As
an alternative, Applicant’s counsel asks that I sent the matter back to the
Commissioner for a determination of damages and an award thereof in the context
of the grievance proceedings. I decline to do so. If the Commissioner had
no jurisdiction to deal with the matter in the first place, the Commissioner
has no jurisdiction now.
[43]
The
record indicates that there are proceedings by way of an action in the Alberta courts in
which the Applicant, as plaintiff, is seeking damages in respect of matters
raised here. I say no more about that so as not to prejudice that action or any
defence. It is clear that I have declined to award damages here or to refer the
matter to the Commissioner for that purpose.
[44]
As
a result, I set aside the Commissioner’s decision with costs to the Applicant
to be assessed at the Column III level.
JUDGMENT
FOR
THE REASONS GIVEN:
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is allowed;
2. The
Commissioner’s Level II grievance decision is set aside; and
3. Costs
are awarded to the Applicant to be assessed at the Column III level.
“Roger
T. Hughes”
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