Date: 20080129
Docket: T-298-07
Citation:
2008 FC 110
Ottawa, Ontario, January 29, 2008
Present:
The Honourable Mr. Justice Blanchard
BETWEEN:
NORMAND
SANSFAÇON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant, Normand Sansfaçon, is a member of the Royal Canadian
Mounted Police. He submitted a request for intervention regarding the
retroactivity of his promotion. The request for intervention was filed under
subsections 21(2) and 31(1) of the Royal Canadian Mounted Police Act,
R.S.C. (2nd suppl.), c. 8 (the RCMP Act). Adjudicator Coleman, appointed
following the request for intervention under the provisions of the Commissioner’s
Standing Orders (Dispute Resolution Process for Promotions and Job Requirements)
SOR/2000-141 (Commissioner’s Standing Orders), issued a decision on December
28, 2006, dismissing the applicant’s request for intervention. This is an
application for judicial review of that decision.
I. Background
[2]
On May 25, 2001, the applicant, who was employed as a
constable, applied for the Understudy Program of the Special “I” Section in
Montréal, following the publication of Bulletin CMM-492. The purpose of the
Bulletin, published on May 15, 2001, was to advertise a “Job Opportunity within
the RCMP” for the position of “Regular Member – Special “I” Sections anywhere
in Canada, Special “I” Understudy (Cst) – see App. A.”
[3]
The applicant’s application was accepted on October 9,
2001; the officer in charge of the Staffing and Personnel Section authorized
the applicant’s lateral transfer to the Special “I” Section in Montréal in the
Understudy Program. The applicant began his training on
October 16, 2001.
[4]
On February 6, 2002, the applicant filed a grievance under
section 31 of the RCMP Act. He contended that he should have been promoted to
the rank of corporal on the date he entered the Special “I” Section Understudy
Training Program, i.e., October 16, 2001, in accordance with Job Code 1060
which, the applicant says, was in effect at the time of his transfer. Code 1060
states, according to the special requirements or abilities set out therein,
that “the promotion will be effective the date of entry into the Technical
Services Branch, Special “I” Understudy Technical Installer Program.” When the applicant
entered the training program, Job Code 3014 was also in effect. According to
that code, the position of understudy in Special “I” Sections was designed for
the rank of constable. The requirements for this Job Code were still being
developed at that time.
[5]
On February 12, 2002, the applicant was advised by an
e-mail from the Grievance Registrar that he had not used the correct process to
enforce his rights. He was told that the new process for dispute resolution
regarding promotions, referred to as “a request for intervention”, had been in
effect since April 2000. However, the applicant insisted that the grievance
continue and be heard by an adjudicator under the former process.
[6]
On September 24, 2002, the Level I adjudicator dismissed
the applicant’s grievance on the ground that CMM-492 was clear and that the [translation] “advertised positions were
at the rank of constable and that the selected candidates had to wait until
they successfully completed the Understudy Program and passed the promotion
process examinations before being promoted to the rank of corporal.”
[7]
The applicant presented the same grievance to the level II
adjudicator. Once again, the adjudicator dismissed the grievance on March 29,
2004, on the ground that the applicant did not have standing and that the
request for intervention process was the appropriate process to remedy the
alleged harm.
[8]
On May 11, 2004, the applicant presented a request for
intervention under the Commissioner’s Standing Orders. The entire file
regarding the February 6, 2002, grievance was included in the request for
intervention file that was submitted to Adjudicator Coleman for determination.
[9]
On December 28, 2006, Adjudicator Coleman dismissed the
request for intervention on the ground that Bulletin CMM-492 was clearly
addressed to constables for positions of constables. Adjudicator Coleman also
referred to the applicant’s transfer form, which indicates a lateral transfer
at the rank of constable.
[10]
On February 15, 2007, the applicant filed an application
for judicial review of Adjudicator Coleman’s decision.
II. Impugned decision
[11]
In his decision of December 28, 2006, Adjudicator Coleman
made the following findings:
[translation]
(a) Bulletin
CMM-492 was intended to apply to constables;
(b) The
fact that Code 1060, which is a code that is applied for the rank of corporal,
appeared on all the correspondence is immaterial, despite the existence of Code
3014;
(c) Adjudicator
Coleman found that he did not have jurisdiction to determine whether the
applicant’s tasks were the same as his colleagues who held the rank of
corporal;
(d) The
applicant failed to establish that he was aggrieved or prejudiced;
(e) Consequently,
the applicant did not have standing, and the grievance was dismissed.
III. Relevant legislation
[12]
The relevant legislation pertaining to the RCMP grievance
procedure is the RCMP Act and the Commissioner’s Standing Orders. The
relevant provisions can be found in the Appendix to this judgment.
IV. Issue
[13]
The only issue is whether Adjudicator Coleman erred in his
decision.
V. Standard
of review
[14]
In Shephard v. Canada (Royal Canadian Mounted Police),
2003 FC 1296 at paragraphs 35-36 (set aside on other grounds by (2004),
242 D.L.R. (4th) 529 (F.C.A.)), the Court conducted a pragmatic and functional
analysis to determine the appropriate standard of review of an adjudicator’s
decision dismissing a request to intervene. The Court noted the privative
clause in section 25 of the Commissioner’s Standing Orders, the special
expertise of adjudicators to deal with the issues before them, the broad powers
of adjudicators in this regard, and that the issue was a question of fact, not
a question of law. Accordingly, the Court found at paragraph 36 that “all of the factors in a
pragmatic and functional analysis lead to the conclusion that great deference
should be given to the Adjudicator in this matter” and
therefore the standard of review is patent unreasonableness (Smith v. Canada
(Attorney General), 2005 FC 868 at paragraph 13, and Gillis v. Canada
(Attorney General), 2006 FC 568 at paragraph 27).
[15]
In this case, the same privative clause applies; the
adjudicator, in accordance with the same RCMP policy, must be an officer or
senior manager in order to have the expertise pertaining to requirements of
positions and the RCMP promotion process; the objectives of the grievance
provision and of the RCMP Act are identical; and the issue is essentially a
question of fact. Therefore, in this case, I am adopting the pragmatic and
functional analysis that was done in Shephard, above, and the resultant
standard of review is patent unreasonableness.
VI. Analysis
Preliminary issues
[16]
At the hearing, counsel for the respondent asked that the
Attorney General of Canada be designated as the respondent since the RCMP is
not a legal entity. The applicant did not object and the request was granted.
[17]
The respondent submits that certain documents tendered in
evidence that were not before Adjudicator Coleman, in particular, a decision of
a Level I adjudicator dated February 8, 2007, concerning the date of a
certificate, should not have been included in the court record and should not
be considered for purposes of this application for judicial review.
[18]
Since the decision in question was issued more than a month
after Adjudicator Coleman’s decision, it could not have been before him for
purposes of the decision that he made. Accordingly, this evidence will not be
considered on the application for judicial review.
[19]
As
a preliminary issue, the respondent argues that the 30-day deadline in section
8(1) of the Commissioner’s Standing Orders to submit a request for intervention
has expired. The respondent submits that the applicant was aware, at the latest
by January 8, 2002, of the decision of Sergeant Mario Grégoire to use Job Code
1060, as can be seen on the applicant’s request for intervention form dated
May 11, 2004. The respondent adds that the applicant knew when the
notice of transfer was signed on October 9, 2001, that he had been transferred
from a constable position to another constable position. Thus, the request for
intervention was filed late and should be dismissed on that ground alone.
[20]
The
applicant submits that he did comply with the deadlines in this case since he
believed that the grievance process was the correct procedure to follow and,
therefore, he was not required to request an extension of time. He says that he
was ready to discuss the issue of deadlines at any time and that nobody raised
the issue. The applicant notes that Adjudicator Coleman accepted his request for
intervention and that he rendered a decision on the substantive issues of the
grievance. Furthermore, Adjudicator Coleman did not question his jurisdiction
on the basis of non-compliance with deadlines. On the contrary, he explicitly
acknowledged [translation] “his
authority to determine this request for intervention.”
[21]
The
documentary evidence indicates that the applicant submitted his request for
intervention beyond the 30-day time period prescribed by section 8(1) of the
Commissioner’s Standing Orders. Section 27(1) provides that an extension of
time may be granted in the circumstances set out therein. The applicant did not
submit such a request. Notwithstanding the applicant’s failure to comply with
the prescribed time limits, the issue arose at the hearing as to whether
Adjudicator Coleman tacitly extended the time periods by accepting and dealing
with the request for intervention. Although the issue was not fully discussed
before the Court, I am of the view that the argument as to the extension of time
can be raised under the circumstances. In any event, I do not have to dispose
of this dispute on the basis of non-compliance with the deadlines because, for
the following reasons, I am of the view that the applicant has not demonstrated
that Adjudicator Coleman erred in his findings on the substantive issues of the
grievance.
Is Adjudicator Coleman’s
decision patently unreasonable?
[22]
Bulletin
CMM-492 dated May 15, 2001, stated that the Staffing and Personnel Section,
Central Region, Ottawa, was seeking candidates for the Special “I” Understudy
position. The
following
details about the position are found in Appendix A of the Bulletin:
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…
3.
Position No. and Rank/Level: Constable
5. Job
Requirements:
a.
Open to: All qualified constables.
NOTES:
1. Promotion
to the Corporal rank will be contingent upon de successful completion of
the two years Understudy Program, meeting the prescribed selection criteria
and successful completion of the current promotion system. (emphasis added)
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[…]
3.
Numéro et grade ou niveau de poste: Constable
5.
Exigences du poste:
a.
Employés admissibles: Tous les constables compétents.
NOTA:
1. La
promotion au grade de caporal sera accordée sous réserve de réussite du
Programme de stage, de la satisfaction des critères de sélection établis
ainsi que de la réussite des examens du processus d’avancement en vigueur.
(emphase ajoutée)
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[23]
The
applicant admits that he applied for the position after reading Bulletin
CMM-492 but argues that, notwithstanding the procedure described in Bulletin
CMM-492, Job Code 1060 was used in all the correspondence in his case and
therefore should prevail. The applicant quotes the following passage from Job
Code 1060 in support of his submissions:
c. Special Requirements/Abilities:
1. Promotion will be effective the
date of entry into the Technical Services Branch, Special “I” Understudy
Technical Installer Program.
2. A continuing tour of duty in Special
“I” is contingent upon successful completion of the Technical Services Branch,
Special “I” Understudy Installer Program (maximum two years) as determined by
the policy centre. [Emphasis added.]
Thus, the applicant submits that his
promotion to the rank of corporal should have been effective on the date he
entered the program. Furthermore, he maintains that Job Code 3014 for the
position of understudy in Special “I” Sections already existed, that it was
designed for the rank of constable and that this code has appeared in the
Career Management Manual since May 24, 2001. The applicant also argues that the
procedure set out in Bulletin CMM-492 could not have applied to him because one
of the special requirements, set out in section 5.(e)(1) of the Bulletin
requires that “Candidates will be required to successfully complete the Special
“I” Understudy Orientation Program with a recommendation acknowledging
suitability for performing Special “I” duties.” According to the applicant, he
never took the Special “I” Understudy Orientation Program and never received a
recommendation acknowledging his suitability.
[24]
Last,
in support of his submissions, the applicant refers to a decision of
Adjudicator Tranquilla, rendered October 29, 2006, following a grievance filed
by the applicant about a refusal to pay him acting pay. Adjudicator Tranquilla
determined that the Job Code that was in effect when the applicant entered the
Understudy Training Program, i.e., Code 1060, was the one that should be
applied in this matter.
[25]
The
respondent contends that Adjudicator Coleman’s decision is supported by the
evidence in the record, in particular:
(a) The applicant applied for the
Understudy Program under Bulletin CMM‑492.
(b) Bulletin CMM-492 was
addressed to members at the constable level and stated that a promotion would
be granted upon successful completion of the program.
(c) The authorization of
transfer form indicates a lateral transfer from constable to constable.
(d) The publication of
Bulletin CMM-492 nullified the selection criteria in Job Code 1060 because, in
particular, it would be illogical to grant promotions to members at the
beginning of the program and then remove them if the members failed the
training.
(e) All the constables
enrolled in the program were transferred under Job Code 1060 and they were
corrected (sic) for Job Code 3014. That the job code was intended to be
a mere formality and not a job offer.
(f) The promotion to the
rank of corporal is not retroactive.
[26]
At
first glance, with respect to the applicant’s submissions about Adjudicator
Tranquilla’s decision of October 29, 2006, I am of the view that this decision
has no impact on this litigation. That decision dealt with a different remedy,
a different dispute and different relief sought by the applicant.
[27]
After
reviewing the evidence in the record, I am of the view that Adjudicator Coleman
did not err in finding that the intention of Bulletin CMM-492 was clear and
that this process was directed to constables for constable positions. The
memorandum dated June 19, 2002, from Inspector Guay to the officer in charge of
the Staffing and Personnel Section, Central Region, explained the use of Job
Code 1060 at the time of the transfer. He wrote: [translation] “With respect to Job Code 1060, which was used
at the time of the transfers, this is explained by the fact that Job Code 3014
was not known at that time. On that point, I would like to point out that all
the constables in the program who were transferred under Job Code 1060 were
corrected by Job Code 3014.” This explanation is completely logical
considering the circumstances. At the time of the transfer, although Job Code
3014 existed, the requirements pertaining to this Job Code were in the process
of being developed. I am satisfied that, in this case, the use of Job Code 1060
was intended to be a formality and not a job offer.
[28]
I
am also satisfied that Adjudicator Coleman’s decision, interpreted as a whole,
was based on the evidence. The decision was not made in a perverse or
capricious manner or without regard for the material before him. I cannot find
that his decision was patently unreasonable.
[29]
For these reasons, the intervention of the Court is not warranted.
The application for judicial review will therefore be dismissed.
[30]
The applicant requested that costs not be ordered against him. He
explained that he always acted in good faith under the circumstances and that
he was only seeking to enforce his rights in filing this application with the
Court. Although I can accept that the applicant always acted in good faith,
that is not a sufficient reason to grant his request. The respondent will have
his costs under the circumstances.
JUDGMENT
THE COURT ORDERS THAT
1. The application for judicial review is dismissed
with costs.
2. The
name of the respondent, Royal Canadian Mounted Police, in the style of cause is
replaced by the Attorney General of Canada.
“Edmond
P. Blanchard”
Certified
true translation
Mary
Jo Egan, LLB
Appendix
Royal Canadian Mounted
Police Act
(R.S.C. 1985, c. R-10 ): sections 21 and 31.
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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.
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.
(2)
A grievance under this Part must be presented
(a) at the initial
level in the grievance process, within thirty days after the day on which the
aggrieved member knew or reasonably ought to have known of the decision, act
or omission giving rise to the grievance; and
(b) at the second and
any succeeding level in the grievance process, within fourteen days after the
day the aggrieved member is served with the decision of the immediately
preceding level in respect of the grievance.
(3)
No appointment by the Commissioner to a position prescribed pursuant to
subsection (7) may be the subject of a grievance under this Part.
(4)
Subject to any limitations prescribed pursuant to paragraph 36(b), any
member presenting a grievance shall be granted access to such written or
documentary information under the control of the Force and relevant to the
grievance as the member reasonably requires to properly present it.
(5)
No member shall be disciplined or otherwise penalized in relation to
employment or any term of employment in the Force for exercising the right
under this Part to present a grievance.
(6) As soon as possible after the presentation and consideration of a
grievance at any level in the grievance process, the member constituting the
level shall render a decision in writing as to the disposition of the
grievance, including reasons for the decision, and serve the member
presenting the grievance and, if the grievance has been referred to the
Committee pursuant to section 33, the Committee Chairman with a copy of the
decision.
(7) The Governor in Council may make regulations prescribing for the purposes
of subsection (3) any position in the Force that reports to the Commissioner
either directly or through one other person.
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21. (1)
Le gouverneur en conseil peut prendre des règlements:
a) concernant le renvoi, par
mesure administrative, des membres;
b) sur l’organisation, la
formation, la conduite, l’exercice des fonctions, la discipline, l’efficacité
et la bonne administration de la Constablerie;
c) de façon générale, sur la
mise en oeuvre de la présente loi.
(2) Sous réserve des autres
dispositions de la présente loi et de ses règlements, le commissaire peut
établir des règles:
a) concernant le renvoi, par
mesure administrative, des membres;
b) sur l’organisation, la
formation, la conduite, l’exercice des fonctions, la discipline, l’efficacité
et la bonne administration de la Constablerie.
31. (1)
Sous réserve des paragraphs (2) et (3), un membre à qui une décision, un acte
ou une omission liés à la gestion des affaires de la Constablerie 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 Commissioner’s Standing Orders ne prévoient
aucune autre procédure pour corriger ce préjudice.
(2)
Un grief visé à la présente partie doit être présenté:
a) au premier niveau de la
procédure applicable aux griefs, dans les trente jours suivant celui où le
membre qui a subi un préjudice a connu ou aurait normalement dû connaître la
décision, l’acte ou l’omission donnant lieu au grief;
b) à tous les autres niveaux
de la procédure applicable aux griefs, dans les quatorze jours suivant la
signification au membre de la décision relative au grief rendue par le niveau
inférieur immédiat.
(3) Ne peut faire l’objet
d’un grief en vertu de la présente partie une nomination faite par le
commissaire à un poste visé au paragraph (7).
(4) Sous réserve des restrictions prescrites conformément à l’alinéa 36b),
le membre qui présente un grief peut consulter la documentation pertinente
placée sous la responsabilité de la Constablerie et dont il a besoin pour
bien présenter son grief.
(5) Le fait qu’un membre présente un grief en vertu de la présente partie ne
doit entraîner aucune peine disciplinaire ni aucune autre sanction
relativement à son emploi ou à la durée de son emploi dans la Constablerie.
(6)
Le membre qui constitue un niveau de la procédure applicable aux griefs rend
une décision écrite et motivée dans les meilleurs délais possible après la
présentation et l’étude du grief, et en signifie copie au membre intéressé,
ainsi qu’au président du Comité en cas de renvoi devant le Comité en vertu de
l’article 33.
(7)
Le gouverneur en conseil peut, par règlement, déterminer, pour l’application
du paragraph (3), les postes dont le titulaire relève du commissaire,
directement ou par l’intermédiaire d’une autre personne.
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Commissioner’s
Standing Orders (Dispute Resolution Process for Promotions and Job Requirements):
Sections 8, 25 and 27.
|
8. (1) A
member who is aggrieved by any decision, act or omission made in the course
of a selection process for the member's promotion may submit a request for
the intervention of an the adjudicator, to the office for the coordination of
grievances in the region where the member is posted, within 30 days after the
day on which the member knew or ought to have known of the decision, act or
omission.
(2) A member who is
aggrieved by any decision, act or omission made in the course of the
establishment of the job requirements for a position may submit a request for
the intervention of an the adjudicator, to the office for the coordination of
grievances in the region where the member is posted, within 30 days after the
day on which the job requirements were first published.
(3) The office for
the coordination of grievances shall, on receipt of the request for
intervention, provide a copy of the request to the person identified as the
respondent in the request.
25. The decision of the adjudicator that disposes of a request for
intervention is not subject to appeal or further review.
27. (1) The adjudicator may, on request for an extension of time,
in justifiable situations, order that the time for complying with subsection
8(1) or (2) or 12(1) begins to run only when the situation in question is no
longer in effect.
(2) The
justifiable situations for an order extending time are the following:
(a) when the member
is on sick leave; or
(b) when the member
is assigned to an operation within the Force that prevents the member from
presenting their case in a complete manner.
(3) The request
for an extension of time under this section must be made before the expiry of
the original time for compliance under subsection 8(1) or (2) or 12(1), as
applicable.
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8. (1) Le
membre à qui une décision, un acte ou une omission lié au processus de
sélection en vue de sa promotion cause un préjudice peut présenter une
request for intervention d'un the adjudicator au bureau de coordination des
griefs dans sa région d'affectation, dans les trente jours suivant celui où
le membre a connu ou aurait dû connaître la décision, l'acte ou l'omission.
(2) Le membre à qui une
décision, un acte ou une omission relatif aux exigences d'un poste cause un
préjudice peut présenter une request for intervention d'un the adjudicator au
bureau de coordination des griefs dans sa région d'affectation, dans les
trente jours suivant celui où les exigences du poste ont été publiées pour la
première fois.
(3) Sur réception d'une
request for intervention, le bureau de coordination des griefs en transmet
une copie à la personne qui y est identifiée comme le défendeur.
25. La décision que l'the adjudicator rend à la suite d'une request
for intervention n'est pas susceptible d'appel ou de révision ultérieure.
27. (1) L'the adjudicator
peut, sur présentation d'une demande à cet effet et si les circonstances le
justifient, ordonner que le délai prévu aux paragraphs 8(1), (2) ou 12(1)
pour poser l'acte qui y est décrit ne commence à courir qu'à compter de la
cessation de ces circonstances.
(2) Les circonstances
qui justifient une prorogation sont les suivantes:
a) le membre est en congé de maladie;
b) il ne peut, en raison de contraintes
opérationnelles, faire valoir sa position de façon pleine et entière.
(3) La demande de prorogation présentée aux termes du présent article doit
l'être dans le délai fixé aux paragraphs 8(1), (2) ou 12(1), selon le cas.
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