Date: 20091229
Docket: T-1664-08
Citation: 2009 FC 1313
Ottawa, Ontario, December 29,
2009
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
CORPORAL PATRICK G. WASYLYNUK
Regimental Number 36606
Applicant
and
SUPERINTENDENT B.P. HARTL,
WILLIAM J.S. ELLIOTT,
Commissioner of the ROYAL CANADIAN
MOUNTED POLICE,
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the hearing of this judicial review, counsel for the Respondents raised
a preliminary issue. A review of the facts leading up to the filing of the
Notice of Application will provide the context in which this preliminary issue
has arisen.
[2]
The Applicant, a member of the Royal Canadian Mounted Police (RCMP)
since 1981, has been on sick leave since June 16, 2003. In March 2008, the
Applicant commenced an action against the RCMP in the Alberta Court of Queen’s
Bench for damages suffered as a result of alleged workplace harassment.
[3]
On June 24, 2008, a Designated Officer prepared and the Applicant was
served with a Notice of Intention to Discharge “for reason of a physical and/or
mental disability”. The Notice explained that a three member medical board
would be appointed to determine the degree of the Applicant’s disability and
that the Applicant had 14 days within which to nominate one member of the board
and to submit any medical or other documentation.
[4]
On July 4, 2008, the Applicant filed a grievance against “the initiation
of a ‘Notice of Intention to Discharge’” seeking “the withdrawal or stay of the
‘Notice of Intention to Discharge’.” On the same day, the Applicant advised
the Designated Officer who had initiated the discharge process that a grievance
had been filed and stated that pending a determination of the grievance the
discharge process should be held in abeyance.
[5]
On July 22, 2008, in response to the Applicant’s grievance submissions
on the question as to whether a Notice of Intention to Discharge may be the
subject of a grievence, the Designated Officer noted that the RCMP
Administrative Manual Appendix II-38-2 lists a number of notices and decisions
that are non-grievable; that each of the listed matters has a specific process
for redress, review or appeal under the Royal Canadian Mounted Police Act,
R.S.C. 1985, c. R-10 (Act), the Royal Canadian Mounted Police Regulations,
1988 SOR/8-361 (Regulations), or the Commissioner’s Standing Orders
(Grievances), SOR/2003-181; and that according to the list a Notice of
Intention to Discharge pursuant to subsection 20(1) of the Regulations is a
non-grievable decision.
[6]
On August 12, 2008, the Return to Work Coordinator advised the Applicant
since he had declined to nominate his own physician, the Commanding Officer
would select the members of the medical board and that the Commanding Officer
would make a decision based on the board’s recommendation. He was also
informed that if the Commanding Officer decided that he should be medically
discharged, he could grieve this decision.
[7]
In his reply of August 14, 2008, the Applicant reiterated his position
that the medical discharge process should be held in abeyance until the
grievance was determined. He also stated that if the grievance process proved
to be unsuccessful he intended to nominate a physician to sit on the medical board.
[8]
On August 15, 2008, the Return to Work Coordinator informed the
Applicant that the medical board process would not be held in abeyance as the
grievance process is a separate and parallel process to the medical board. He
also advised the Applicant that if the Commanding Officer determined that he
should be discharged, he could grieve that decision and the medical discharge
process would be held in abeyance until the situation was resolved.
[9]
The Applicant filed his Notice of Application on October 28, 2008. He
states in the Notice of Application that he is applying for “a stay of the
medical discharge process pending the disposition of a grievance or any further
appeals there under of the grievance filed by the Applicant on the 4th
day of July 2008.” In addition to a summary recital of the facts set out
above, under the grounds for the application, the Applicant states that in “a
case where a grievance is filed, s. 26 of the RCMP Act Regulations 1988 imposes
a stay until after the final disposition of the grievance of appeal.”
[10]
At the judicial review hearing, counsel for the Respondents raised a
preliminary question as to whether the proceeding is a properly constituted
judicial review. In particular, the Respondents’ counsel noted that no
decision was identified in the Notice of Application. Further, it was not
possible to discern whether mandamus, prohibition or other interlocutory relief
was being sought. However, this issue had not been raised in the Respondents’
written submissions. Following a discussion regarding the procedure that
should be followed since the Applicant was unaware of this position, the
parties agreed that the Court should hear submissions on the merits coupled
with an opportunity to make additional submissions in writing.
[11]
At the hearing, I raised another matter with the Applicant. Included in
the Applicant’s record at page 24 is a September 18, 2008 memorandum from the
Case Manager, Office for the Coordination of Grievances, advising the
Designated Officer that the Level 1 adjudicator had denied the Applicant’s
grievance. According to the memorandum, a copy of the decision was enclosed,
however, it was not included in the record. The memorandum also states that
the Designated Officer would be notified if the Applicant requested a referral
to Level II. Although the memorandum is included with exhibit “H” to the
Applicant’s affidavit, there is no reference to the memorandum in the body of the
Applicant’s affidavit or in the Applicant’s written submissions. The
Applicant’s counsel confirmed that the Level 1 adjudicator had denied the
grievance and that the grievance had proceeded to the next level.
[12]
In their supplementary submissions, the Respondents point out that
initially on their reading of the Notice of Application and the Applicant’s
written submissions they had understood that the Applicant was seeking a stay
of proceedings under section 50 of the Federal Courts Act, R.S.C. 1985,
c. F-7. However, as it had become apparent at the hearing that this was not
the relief being sought no further submissions were being made in this regard.
[13]
The Respondents submit that the Notice of Application does not comply
with the requirements of Rule 301 of the Federal Courts Rules,
SOR/98-106. In particular, the Applicant has not named a tribunal or decision
maker, he has not identified a decision or order, he has not indicated the
grounds upon which relief is being sought, and he has not specified the form of
relief he is seeking. Accordingly, the application should be dismissed. Further,
the Respondents argue that the application cannot succeed on its merits.
[14]
In his supplementary submissions, the Applicant acknowledges that the
Notice of Application could have been clearer. He points out, however, that
there was never a formal decision not to stay the “discharge” although it was
evident that the Respondents were refusing to stay the “discharge” pending the
outcome of the completion of the grievance process.
[15]
As he acknowledged at the hearing, the Applicant reiterates that the
within proceeding was never an application for a court ordered stay. Instead,
it was brought to require the Respondents to comply with the stay found in
section 26 of the Regulations.
[16]
The Applicant also asks the Court to exercise its jurisdiction to allow
the application to be amended to include a request for “an order in the nature
of mandamus requiring the Respondents to stay the discharge pending final
completion of the grievance or an order in the nature of prohibition stopping
the discharge process pending the final completion of the grievance.”
[17]
I agree with the Respondents that the Notice of Application is less than
clear. In the Notice of Application, the Applicant states that he “makes
application for a stay of the medical discharge process pending the disposition”
of his July 4, 2008 grievance. Under the grounds for the application, he
states that “[i]n a case where a grievance is filed, s. 26 of the RCMP Act
Regulations 1988 imposes a stay until after the final disposition of the
grievance or appeal.”
[18]
Cast in its most positive light from the Applicant’s perspective, it
would appear that the Applicant is asking the Court to enforce a stay to which
he believes he is entitled under the Regulations.
[19]
In this proceeding, the Applicant’s position that the discharge process
should be stayed pending a final determination of his grievance is premised on
his contention that he is entitled to grieve the Notice of Intention to
Discharge. He submits that pursuant to subsection 31(1) of the Act any member
of the RCMP aggrieved by a decision, act or omission for which no other process
for redress is provided in the Act, the Regulations, or the Commissioner’s
Standing Orders is entitled to present a grievance. I note that in his
grievance submissions the Applicant advanced this same position and sought the
same remedy, namely, that the discharge process should be held in abeyance
pending a final determination of his grievance.
[20]
In these circumstances where the central issue and the remedy being
sought in the grievance process are the same as those in the within proceeding
and, ultimately, the final decision in the grievance process may be judicially
reviewed in this Court, in my opinion, it would be premature for the Court to
intervene before the statutory means of redress have been exhausted.
[21]
With regard to the Applicant’s request that he be permitted to amend
his Notice of Application to include the remedies of mandamus or prohibition,
as he has not advanced any basis upon which these remedies could be granted
they will not be considered.
[22]
For these reasons, the judicial review will be dismissed with costs to
the Respondents.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed with costs to the Respondents.
“Dolores
M. Hansen”
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