Date: 20091119
Docket: T-974-08
Citation: 2009 FC 1191
Vancouver, British Columbia, November
19, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
TIMOTHY
NIXON
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S., 1985, c. F-7, in respect of the decision of an RCMP Level
I Grievance Adjudicator, Inspector Robert Bourget, dated May 6, 2008,
finding and deciding that the Chief Human Resources Officer (CHRO) is the
appropriate respondent to the applicant’s performance assessment grievance.
These are my reasons for determining that judicial intervention at this stage
would be premature.
I. Background
[2]
The
applicant is a lawyer employed as a civilian member of the RCMP and represented
himself in this application. The main issue in his grievance is the assessment
of the level of his performance for the fiscal year 2006-2007. Mr. Nixon
asserts that the manner in which the RCMP assessed his performance and allotted
performance pay for that year utilized a procedure that was fundamentally
unfair.
[3]
Assistant
Commissioner Mole, Acting Deputy Commissioner Human Resources, made the final
decision as to the applicable level and corresponding performance bonus. In so
doing, he relied upon the assessment and evaluation made by a committee of
senior officers, known as the “Departmental Review Committee” (the DRC). The
DRC had assessed Mr. Nixon’s performance as “Superior” which was a
level below the “Outstanding” assessment recommended by his immediate supervisor.
[4]
At
the time of the filing of the grievance on July 25, 2007, the identities of the
members of the DRC were unknown to Mr. Nixon and accordingly they were not initially
named by him as respondents. However, it was his intention from the outset to
include the members of the DRC as respondents to his grievance and he later
identified the committee members and submitted their names to the grievance
coordinator to be included as respondents.
[5]
Mr.
Nixon then sought an order to compel the Office for the Coordination of
Grievances to serve each of the persons he had named, including the members of
the DRC, with a copy of the grievance as respondents.
II. Decision
Under Review
[6]
The
Adjudicator found that the Chief Human Resources Officer (CHRO) is the
appropriate respondent in this case. The role of the DRC was to evaluate
assessments and either agree or recommend changes with supporting rationales to
the CHRO. The responsible authority and ultimate decision maker, in the view of
the Adjudicator, was the CHRO. Therefore, only the CHRO was an appropriate
respondent. The Adjudicator determined that, in essence, only one person
assumed responsibility for the decision and only one was required to respond.
[7]
The
Adjudicator then forwarded the grievance to the Professional Standards and
External Review Directorate to be acted upon.
III. Issue
[8]
The
sole issue is whether the RCMP Level I Grievance Adjudicator, made a reviewable
error on any of the statutory grounds listed in subsection 18.1(4) of the Federal
Courts Act when he found that the CHRO was the appropriate respondent.
IV. Analysis
[9]
Before
the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, three standards of review were available for
tribunal decisions; after that decision there are only two: correctness and
reasonableness. The standard of patent unreasonableness was subsumed under the
reasonableness standard: Laplante v. Canada (Attorney
General),
2008 FC 1036, [2008] F.C.J. No. 1293, at para. 23.
[10]
The
Adjudicator is to be shown a great deal of deference in assessing the
reasonableness of his decision. He is familiar with the internal working of the
RCMP and its employee relations and policies, and, like a labour arbitrator, is
knowledgeable in the area and deserving of respect and deference: Smith v. Canada (Attorney
General),
2009 FC 162, [2009] F.C.J. No. 205, at para. 14, citing Dunsmuir, supra,
at para. 68; Voice Construction Ltd. v. Construction & General Workers'
Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, at para. 22.
[11]
The
applicant submits that he has a substantive right under s. 31 of the RCMP
Act to grieve the individual acts of each member of the DRC that
participated in the evaluation of his assessment. The applicant alleges that he
was denied procedural fairness in the manner in which the Adjudicator disposed
of his request that the committee members be added as respondents to the
grievance and denied the right to be heard before the decision was made.
[12]
The
respondent’s position is that the applicant will have the opportunity to submit
his arguments about the involvement of the members of the DRC and the decision
not to include them as respondents when the grievance proceeds to phase 2 of
the grievance process. He can also complain at that time about the manner in
which the Adjudicator collected information prior to making his decision. The
respondent submits that the Bourget Decision is an interlocutory and procedural
decision. It is not determinative of any substantive right.
[13]
I
agree with the respondent that this application is premature. For that reason,
I make no finding as to the merits of the applicant’s complaints about the
process followed or the decision reached by the Adjudicator.
[14]
Courts
are reluctant to intervene in grievance procedures until applicants have
exhausted all of the remedies available to them within that process. As
explained by Justice Anne Mactavish in
Sherman v. Canada (Customs and
Revenue Agency), 2006 FC 715, [2006] F.C.J. No. 912, at paragraph 40, there
are a number of reasons for this:
…including the fact that the
application may be rendered moot by the ultimate outcome of the case, and the
risk of the fragmentation of the process, with the accompanying costs and
delays. Also of concern is the absence of a full record at the preliminary
stage, with the resultant inability to see how the ruling actually played out
in the ultimate determination of the case. There is also the possibility that
the tribunal may end up modifying its original ruling as the hearing unfolds.”
[15]
The
applicant insists that the matter will not become moot if he succeeds in his
grievance as the issues he has raised about the choice of respondents and the
manner in which the Adjudicator proceeded may remain outstanding even if he
succeeds in achieving the higher performance level. He contends that there is a
public interest in having the Court judicially review the Adjudicator’s
decision as, he submits, there were egregious violations of procedural
fairness.
[16]
The
applicant does not acknowledge that there is a “risk of fragmentation of the
process” should the Court intervene at this stage of the process. He submits
that it would be speculative to assume that other issues may arise during the
remaining stages which might later be subject to judicial review. I disagree.
In my view, the applicant is asking the Court to open the door to multiple interventions
in the RCMP grievance process prior to the ultimate outcome.
[17]
Unless
there are special circumstances, the general principle is that interlocutory
decisions are not subject to judicial review: Cannon v. Canada (Assistant
Commissioner of the RCMP), [1998] 2 F.C. 104, [1997] F.C.J. No. 1552, at
para. 17;
Groupe G. Tremblay Syndics Inc. v. Canada
(Superintendent of Bankruptcy) (T.D.), [1997] 2 F.C. 719, [1997] F.C.J.
No. 294; Mohawk Council of Kahnawake v. Jacobs, [1996] A.C.F. no 757,
[1996] F.C.J. No. 757.
[18]
Special
circumstances may be found where there is, for example, a challenge to the
constitutionality of the tribunal: Zundel v. Canada (Human Rights
Commission), [2000] 4 F.C. 255, [2000] F.C.J. No. 678 (F.C.A.); Szczecka
v. Canada (Minister of Employment and Immigration), (1993), 116 D.L.R. (4th)
333, [1993] F.C.J. No. 934; Pfeiffer v. Canada
(Superintendent of Bankruptcy) (T.D.), [1996] 3 F.C. 584, [1996] F.C.J.
No. 585, at para. 17.
[19]
The
applicant cites Cannon, above, for the proposition that procedural
fairness issues constitute special circumstances calling for the judicial review
of an interlocutory decision. Cannon was a case in which the applicant’s
attempt to subpoena the prosecuting officer as a witness had been denied by the
adjudicator. The Court dismissed the application on the basis that this was an
interlocutory decision in the context of a proceeding that could be the subject
of an appeal to the Commissioner, and if necessary, subject to judicial review
if a procedural error of significance was not remedied by the Commissioner’s
ruling. I do not read Justice MacKay’s comments in Cannon about procedural
fairness issues as an invitation to bring them before the Court at an early
stage of the grievance process.
[20]
Here
the evidence indicates that the applicant will have the opportunity to submit
his arguments about the role of the DRC members and the Adjudicator’s decision when
the grievance proceeds to phase 2 of the process. Any procedural error of
significance may be remedied at that stage. And if not, assuming that the
matter is not by then moot, it remains open to the applicant to then seek a
remedy through judicial review. There are, therefore, no special circumstances
that would warrant the Court's intervention to review the Adjudicator’s
interlocutory decision at the present time. This application is premature.
[21]
The
respondent seeks costs. While they would normally follow the result, I will
exercise my discretion in this matter not to award them as the applicant
appears to have been motivated in bringing this application to correct what he
considers to be flaws in the grievance process.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application is dismissed. The parties will bear their own costs.
“Richard
G. Mosley”
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