Date: 20110503
Docket: T-435-10
Citation: 2011
FC 512
Ottawa, Ontario, May 3, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ABE TOWNSEND
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for an interlocutory injunction pursuant to section 18 of the
Federal Courts Act, RSC 1985, c
F-7 to prevent the Commissioner of the Royal Canadian Mounted
Police (RCMP) from applying the RCMP travel directive.
[2]
Abe Townsend (the applicant)
requests:
1. An order prohibiting
the Commissioner of the RCMP from applying the terms of the RCMP Travel
Directive which came into effect on January 1, 2010 until thirty days from
the date of the decision at the final level of the applicant’s grievance filed
January 20, 2010;
2. An order that the
Commissioner of the RCMP apply the terms of the Treasury Board travel directive
for the RCMP, as set out in Treasury Board Minutes 704761 and 710531 and the Treasury
Board Travel Directive until the conclusion of the injunction period; and
3. Costs on a partial
indemnity basis.
Background
[3]
This
case involves policies regarding work related travel for the RCMP.
[4]
In
1971, the Government of Canada, through the Treasury Board, enacted the “Travel
Directives respecting the Rules, Standards and Procedures that apply to
Government Business Travel by Members of the R.C.M. Police” (Treasury Board
Minute 704761).
[5]
The
Treasury Board, with the National Joint Council (NJC), then issued the Treasury
Board Travel Directive for all public servants in 1972.
[6]
Due
to the potential effect of this travel directive on RCMP members, in 1972, the
RCMP Commissioner proposed amendments to Treasury Board Minute 704761 through Treasury
Board Minute 710531 creating exceptions for RCMP members to the new Treasury
Board Travel Directive.
[7]
After
the adoption of Treasury Board Minute 710531, the Treasury Board and the NJC
agreed that the standard of accommodation for public servants on work related
travel was “a single room, in a safe environment, conveniently located and
comfortably equipped.”
[8]
In
1988, the Royal Canadian Mounted Police Regulations, 1988, SOR 88-361, were amended and section
74 stated that:
A member travelling in relation to the
performance of the member’s duties is entitled to be paid travelling expenses
in accordance with Treasury Board travel policy.
[9]
Between
1988 and 2008, hundreds of grievances were filed by RCMP members concerning
travel issues. These grievances often involved the standards of accommodation
provided to the RCMP members while travelling for their employment duties.
Occasionally, RCMP members were housed in shared accommodation or tents.
[10]
In
2008, the RCMP Commissioner directed there to be confirmation on the status of
the Treasury Board Minutes and the establishment of a clear framework for
assessing claims related to RCMP travel. On January 1, 2010, the RCMP
Commissioner released the RCMP Travel Directive.
[11]
The
applicant filed a grievance challenging the decision of the Commissioner of the
RCMP to create, publish and impose in-house travel directives.
Issues
[12]
The
issues are as follows:
1. Does the Federal
Court have jurisdiction to grant the injunction sought?
2. Has the applicant met
the tripartite test for an injunction?
Applicant’s Written Submissions
[13]
The
applicant submits that the Federal Court has jurisdiction to grant the
injunction. The applicant was required to challenge the RCMP Travel
Directive through the grievance process set out in the Royal Canadian
Mounted Police Act, RSC 1985, c R-10 (RCMP Act). No decision maker in the
grievance procedure has jurisdiction to grant interim or interlocutory relief. Therefore,
the applicant submits, the Federal Court retains residual discretion to grant
an injunction due to the inherent jurisdiction of courts. The Federal Court has
exclusive original jurisdiction because the RCMP Commissioner is a “federal
board, commission or other tribunal” as defined by section 2 of the Federal
Courts Act and over which the Federal Court has supervisory jurisdiction.
[14]
The
applicant submits that he meets the tripartite test for an injunction outlined
in RJR-Macdonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311,
[1994] SCJ No. 17 (QL).
[15]
The
applicant submits that there is a serious issued to be tried because the RCMP
Commissioner lacked jurisdiction to create the 2010 RCMP Travel Directive.
By virtue of the RCMP being listed in Schedule IV of the Financial
Administration Act, RSC 1985, c
F-11,
the Treasury Board is responsible for the determination of the terms and
conditions of employment of the RCMP. The Federal Court has previously held in Wilson
v Canada (Attorney General), 2010 FC 250 at paragraph 32, that the Financial
Administration Act does not expressly grant the RCMP Commissioner the
jurisdiction to set the terms and conditions of travel.
[16]
The
applicant submits that RCMP members will suffer irreparable harm if the
injunction is denied. Substandard quality of accommodation or other breaches of
the Treasury Board Travel Directive does not result in financial loss
but rather loss of human dignity which cannot be remedied in damages.
[17]
The
applicant submits that the balance of convenience is in favour of the applicant
since the respondent neither asserts nor demonstrates that it will suffer harm
if the injunction is granted.
Respondent’s Written Submissions
[18]
The
respondent submits that the Federal Court lacks jurisdiction to grant an
injunction in this case. As the applicant has submitted a grievance pursuant to
section 31 of the RCMP Act which has yet to be decided by the RCMP grievance
committee, the application before this Court is premature.
[19]
The
respondent also submits that the applicant does not meet any of the factors under
the tripartite test for injunctive relief.
[20]
The
respondent submits that the applicant has not set out a prima facie
case. The RCMP Commissioner has not attempted to replace the Treasury Board as
the employer, as was the case in Wilson above. Rather, the
Commissioner exercised his authority to review the existing RCMP travel
provisions and re-issue them in an understandable format. The respondent agrees
with the applicant that RCMP members must conform to the Treasury Board
Travel Directive where an exception for the RCMP has not been approved. The
only reference to accommodation in the 1971 and 1972 Treasury Board Minutes or
the RCMP Regulations is contained in subsection 4(1) of the 1971 Treasury Board
Minute 704761 which states that RCMP members will receive reasonable expenses
for accommodation while in travel status or on temporary duty. The respondent
submits that the RCMP Commissioner determines what are reasonable expenses and
for major events that may include shared accommodation. This is within the RCMP
Commissioner’s control and management of the RCMP pursuant to section 5 of the RCMP
Act.
[21]
The
respondent submits that the applicant has not proven that he will suffer
irreparable harm if the injunction is not granted. The applicant must show that
the harm will, not may, occur to him personally. The applicant has not
presented any evidence about how his entitlement to single room accommodation
will be affected by the 2010 RCMP Travel Directive.
[22]
The
respondent submits that the balance of convenience favours the Crown.
[23]
Finally,
the respondent submits that the outcome that the applicant seeks would not be
achieved through an injunction. There was no express entitlement to a single
room accommodation in the earlier travel directives so an order to apply the
1971 and 1972 Minutes and the Treasury Board Travel Directive would not
address the applicant’s grievance regarding receiving single room
accommodation.
Analysis and Decision
[24]
Issue
1
Does the Federal Court have
jurisdiction to grant the injunction sought?
The applicant has not commenced an
application for judicial review, as he is required to use the grievance
procedure set out in the section 31 of the RCMP Act in order to challenge
the RCMP Travel Directive prior to proceeding to the Federal Court. Because
of this, I do not have jurisdiction to award the interlocutory injunction under
section 18 without an application for judicial review before this Court. In any
event, since the parties have argued the tri-partite test for an injunction and
the application may have been able to have been brought under another section
of the Federal Courts Act, I will consider the submissions of the
parties made with respect to the tri-partite test for injunctive relief.
[25] Issue 2
Has the
applicant met the tripartite test for an injunction?
Were I to find that this
Court had jurisdiction to grant the injunction, I would still conclude that the
applicant does not meet the requirements for obtaining an injunction.
[26]
The
Supreme Court held in RJR-MacDonald above, that the test for an
interlocutory injunction requires analysis of three factors. Firstly, the Court must assess whether
there is a serious issue to be tried on the merits of the case. Secondly, the Court
considers whether the applicant will suffer irreparable harm if the injunction
were refused. Thirdly, it must be determined which of the two parties will
suffer the greater harm from the granting or refusal of the injunction.
[27]
This
tripartite test is conjunctive and, as such, the applicant must satisfy all
three elements of the test before he will be entitled to relief. Failure to
meet all three components results in the motion being dismissed (see Musqueam Indian Band v Canada, 2008 FCA
214 at paragraph 3).
[28]
While
the applicant might succeed on the question of serious issue, he cannot succeed
on an assessment of irreparable harm.
[29]
Irreparable harm is injury of a
serious nature for which any redress after trial cannot fairly or adequately
compensate (see RJR-MacDonald above, at paragraph 64).
[30]
The burden is on the applicant seeking an injunction to show that
irreparable harm will result to him personally if the injunction is not
granted. Proof that persons who are not
parties to the proceeding will suffer irreparable harm unless an injunction is
granted is not sufficient to obtain an injunction (see Canada v Amnesty, 2009 FC 426 at paragraphs 32 to 34).
[31]
The applicant submits that RCMP members will suffer irreparable
harm in the form of loss of dignity, which is not remediable with damages. He
does not address any harm that he would personally face.
[32]
The applicant submitted in oral
arguments that this case is analogous to International Longshore and
Warehouse Union, Canada v Canada (AG), 2008 FCA 3, where the union was
required only to show evidence that irreparable harm would result to its
members and not to the union specifically. The applicant submits that he filed
his grievance and application for an interlocutory injunction as the staff relations
representative (SRR) for RCMP members stationed in Nova Scotia. As such,
he submits that he was acting in a similar capacity as a union.
[33]
I do not find this argument persuasive. While the applicant
provided little information on his SRR position, it appears that he represents
only members in Nova Scotia, whereas, any injunction would affect RCMP members nationally.
[34]
Furthermore, even if the applicant were permitted to show
irreparable harm to RCMP members generally, as opposed to himself personally,
he still has not succeeding in doing so. The applicant must provide
non-speculative evidence that harm will occur. As confirmed by
this Court in Canada (Attorney General) v Canada
(Information Commissioner), 2001 FCA 25 at paragraph 12:
…the fact that irreparable harm may arguably arise does not
establish irreparable harm. What the respondents had to prove, on a balance
of probabilities, is that irreparable harm would result from compliance
with the subpoena issued on behalf of the Commissioner (Metropolitan Stores
(MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1
S.C.R. 110 (S.C.C.), at para. 35). The alleged harm may not be speculative
or hypothetical (Imperial Chemical Industries plc v. Apotex Inc.
(1989), [1990] 1 F.C. 221 (Fed. C.A.)).
[Emphasis
added]
[35]
The applicant has not produced any evidence that harm will occur
to RCMP members. His submissions are based on the premise that due to the 2010 RCMP
Travel Directive, RCMP members may be assigned shared accommodation in the
future which would result in loss of dignity. This does not meet the threshold
of clear, non-speculative evidence that irreparable harm will occur if an
injunction is not granted.
[36]
The lack of irreparable harm is determinative and the application must
be dismissed, with costs to the respondent.
JUDGMENT
[37]
IT IS
ORDERED that the
application for judicial review is dismissed with costs to the respondent.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Federal Courts Act,
RS, 1985, c F-7
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2. . . .
“federal
board, commission or other tribunal” means any body, person or persons
having, exercising or purporting to exercise jurisdiction or powers conferred
by or under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867 ;
18.(1) Subject
to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue
an injunction, writ of certiorari, writ of prohibition, writ of mandamus or
writ of quo warranto, or grant declaratory relief, against any federal board,
commission or other tribunal; and
(b) to hear
and determine any application or other proceeding for relief in the nature of
relief contemplated by paragraph (a), including any proceeding brought
against the Attorney General of Canada, to obtain relief against a federal
board, commission or other tribunal.
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2. . . .
« office
fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou
groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des
pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu
d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et
ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou
d’une personne ou d’un groupe de personnes nommées aux termes d’une loi
provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
18.(1)
Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en
première instance, pour :
a) décerner
une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo
warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître
de toute demande de réparation de la nature visée par l’alinéa a), et
notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
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Royal
Canadian Mounted Police Act,
RS, 1985, c R-10
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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.
(2) The
Commissioner may delegate to any member any of the Commissioner’s powers,
duties or functions under this Act, except the power to delegate under this
subsection, the power to make rules under this Act and the powers, duties or
functions under section 32 (in relation to any type of grievance prescribed
pursuant to subsection 33(4)), subsections 42(4) and 43(1), section 45.16,
subsection 45.19(5), section 45.26 and subsections 45.46(1) and (2).
. . .
31.(1) Subject
to subsections (2) and (3), where any member is aggrieved by any decision,
act or omission in the administration of the affairs of the Force in respect
of which no other process for redress is provided by this Act, the
regulations or the Commissioner’s standing orders, the member is entitled to
present the grievance in writing at each of the levels, up to and including
the final level, in the grievance process provided for by this Part.
. . .
32.(1) The
Commissioner constitutes the final level in the grievance process and the
Commissioner’s decision in respect of any grievance is final and binding and,
except for judicial review under the Federal Courts Act, is not subject to
appeal to or review by any court.
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5.(1)
Le gouverneur en conseil peut nommer un officier, appelé commissaire de la
Gendarmerie royale du Canada, qui, sous la direction du ministre, a pleine
autorité sur la Gendarmerie et tout ce qui s’y rapporte.
(2)
Le commissaire peut déléguer à tout membre les pouvoirs ou fonctions que lui
attribue la présente loi, à l’exception du pouvoir de délégation que lui
accorde le présent paragraphe, du pouvoir que lui accorde la présente loi
d’établir des règles et des pouvoirs et fonctions visés à l’article 32
(relativement à toute catégorie de griefs visée dans un règlement pris en
application du paragraphe 33(4)), aux paragraphes 42(4) et 43(1), à l’article
45.16, au paragraphe 45.19(5), à l’article 45.26 et aux paragraphes 45.46(1)
et (2).
. .
.
31.(1)
Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un
acte ou une omission liés à la gestion des affaires de la Gendarmerie causent
un préjudice peut présenter son grief par écrit à chacun des niveaux que
prévoit la procédure applicable aux griefs prévue à la présente partie dans
le cas où la présente loi, ses règlements ou les consignes du commissaire ne
prévoient aucune autre procédure pour corriger ce préjudice.
. .
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32.(1)
Le commissaire constitue le dernier niveau de la procédure applicable aux
griefs; sa décision est définitive et exécutoire et, sous réserve du contrôle
judiciaire prévu par la Loi sur les Cours fédérales, n’est pas susceptible
d’appel ou de révision en justice.
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