Date: 20000302
Docket: A-495-98
CORAM: DÉCARY, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
CLAUDE RANSON MILLARD
Respondent
Heard at Toronto, Ontario on Thursday, March 2, 2000
Judgment delivered at Toronto, Ontario on Thursday, March 2, 2000
REASONS FOR JUDGMENT BY: EVANS J.A.
Date: 20000302
Docket: A-495-98
CORAM: DÉCARY, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
CLAUDE RANSON MILLARD
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Thursday, March 2, 2000)
EVANS J.A.
| _. Claude Ranson Millard was a corporal in the Royal Canadian Mounted Police. In 1994, he advised the RCMP that he intended to relocate prior to his retirement and enquired about the relocation financial benefits that would be available to him under the RCMP Relocation Directive. |
| _. In addition to reimbursement for the real estate broker"s fees and legal expenses, he was also interested in the compensation that he could claim under the Directive on the loss sustained on the sale of the house in Toronto that was owned and occupied by a Ms. Baker, with whom Corporal Millard had lived in a common-law relationship since January 1, 1993. Ms. Baker had purchased the house in 1988 for something in excess of $2.58 million and subsequently sold it in August 1994 for $1.35 million. Corporal Millard claimed a loss of $207,000.00 as the eligible proportion of the decline in the value from January 1, 1993 until its sale in August 1994. |
| _. The Commissioner rejected this claim, relying on and adopting the findings and reasons of the Acting Chair of the External Review Committee, Ms. F. Jennifer Lynch, Q.C. On Ms. Lynch"s interpretation of the relevant provisions of the Directive , the date of the deemed acquisition of Ms. Baker"s house was May 17, 1994, the day when Corporal Millard ceased to regard the house that he owned in Victoria, his previous posting, as his principal residence. |
| _. Corporal Millard made an application for judicial review to the Trial Division of this Court in which he requested that the Commissioner"s decision be set aside as erroneous in law because it was based on a misinterpretation of the Directive . In a decision dated June 15, 19981 the learned Motions Judge granted the application, set the decision aside and referred the matter back for redetermination in accordance with the reasons for his order, with directions to determine two others issues that the Commissioner did not decide. The Attorney General has appealed to this Court the Motions Judge"s order. |
| _. The Motions Judge held that Ms. Lynch"s recognition in her reasons of factual situations to which her interpretation of the Directive would not be applicable was an indication that her "principal interpretative finding" was "fundamentally flawed". He then proceeded to a thorough analysis of the provisions of the Directive and concluded that, properly interpreted, the relevant provisions enabled a member to claim for a decline in value that occurred at a time when another house was being treated as the member"s principal residence. |
| _. However, the analysis of the Motions Judge was, with respect, itself "fundamentally flawed" because it assumed that Ms. Lynch"s interpretation of the Directive was reviewable on a standard of correctness. Having reached a different interpretation from that of Ms. Lynch, he concluded that the Commissioner"s decision was therefore erroneous in law. Instead, the Motions Judge"s starting point should have been an examination of whether the decision under review was entitled to judicial deference and, if it was, how much. |
| _. The elements of the now familiar pragmatic or functional analysis for determining the appropriate standard of review of administrative decisions must therefore be considered. |
| _. First, some deference is suggested by the provision in subsection 32(1) of the Royal Canadian Mounted Police Act2 that the "Commissioner"s decision in respect of any grievance is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal or review by any Court." |
| _. Second, the nature of the decision-making scheme for dealing with grievances also indicates that judicial restraint is appropriate. In particular, before the Commissioner renders a decision on a grievance it must have been the subject of an internal "level 1" grievance adjudication and, in the absence of a waiver by the member, a report by the External Review Committee established under section 25 of the Act . Only in the most unusual circumstances should a reviewing Court intervene in decisions made by a series of tribunals that have been specifically designed for the task. As with disputes in other workplace settings, grievances by RCMP officers should normally be resolved within the statutory decision-making scheme, with the minimum of delay and outside interference. |
| _. Third, since the Commissioner confirmed the findings by the External Review Committee it is relevant to consider the institutional characteristics of the Committee, which is expressly empowered to review the interpretation of the Directive by paragraph 36(d) of the Regulations.3 The provision in subsection 25(3) of the Act that members are appointed during good behaviour for terms of up to five years, which may be renewed, and can be removed for cause only by the Governor in Council indicates that the Committee enjoys a degree of independence from the RCMP. In addition, the Chair of the Committee, who wrote the report in this case, is a full-time member, while the other members, up to a maximum of four, may be appointed on either a full or a part-time basis: subsection 25(2). As a permanent, rather than an ad hoc body, the Committee can be expected to acquire considerable experience in the interpretation and application of the Directive, and accordingly is entitled to a measure of deference. |
| _. Fourth, the issues in dispute in this case fall squarely within the expertise of the Committee: they involve the interpretation of certain provisions of the Directive, which by no stretch of the imagination can be regarded as "general law". It should also be said that the organization and drafting of the portions of the Directive with which this case is concerned do not make for easy reading. It is not surprising that some very different views about their interpretation were expressed by the Commissioner and the Motions Judge. |
| _. Fifth, the Directive itself is an Appendix to an Administrative Manual, a species of administrative quasi-legislation governing various aspects of RCMP members" conduct, benefits and conditions of service, rather than either subordinate legislation promulgated under a discrete statutory power, or a formal contractual document. Its provisions include not only the eligibility criteria for the benefits that it describes, but also practical advice and guidance to officers on selecting a neighbourhood and choosing an appropriate new home. The policy objectives of the part of the Directive relevant here are stated to be the reimbursement of members for actual, reasonable and legitimate relocation expenses, and to keep to a minimum the costs to the public of the relocation of officers. |
| _. On the basis of this analysis it would seem clear that a decision of the Commissioner that relies on reasoned and detailed findings by the External Review Committee interpreting the Directive should be subject to minimal judicial scrutiny. Hence, only if the decision is patently unreasonable should it be set aside. A standard similar to that applied to the review of the interpretation by labour arbitrators of a collective agreement would seem appropriate here. The question, therefore, is whether Ms. Lynch"s interpretation of the Directive on which the Commissioner based his decision was one that the Directive was reasonably capable of bearing. |
| _. In her careful analysis of the provisions of the Directive Ms. Lynch recognized that it was possible to interpret them in at least two ways. On the view advanced by Corporal Millard, the date when a member elected to have a property, that was retained at a previous posting location, no longer regarded as a principal residence was immaterial to the date when the ownership and occupation of the property at the member"s present location commenced for the purpose of calculating the drop in its value when it was sold. However, on the view taken both by the "level 1" adjudicator and Ms. Lynch, the provisions regarding the election with respect to the member"s property at the place of the previous posting should be read together with the provisions on the Home Equity Assistance Program in the Directive in order to prevent members from profiting at the expense of the public purse from speculative property transactions. |
| _. Given the puzzling drafting and organization of the provisions of the Directive, and their apparent purposes, there is something to be said for each view. It was therefore not patently unreasonable for the Commissioner to adopt the interpretation preferred by Ms. Lynch. As counsel at the hearing agreed, the unusual facts of this case were not contemplated by the drafters of the Directive: they fell between the cracks. The fact that Ms. Lynch acknowledged that her interpretation might require modification in the light of different facts does not indicate that it was patently unreasonable. Rather, it suggests an appropriate sensitivity to the policy and contextual considerations that can properly be taken into account in the course of interpreting a document. |
| _. In these circumstances, the Commissioner"s decision satisfied the minimal standard of rationality connoted by the term "patent unreasonableness". |
| _. In view of this conclusion, it is unnecessary to consider other aspects of the case, in particular whether Ms. Baker could be considered to be the common law spouse of Corporal Millard within the meaning of the Directive prior to the dissolution of his marriage. |
| _. For these reasons, the appeal will be allowed and the decision of the Commissioner restored. There will be no order for costs. |
"John M. Evans"
J.F.C.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
CLAUDE RANSON MILLARD
DATE OF HEARING: THURSDAY, MARCH 2, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: EVANS J.A. |
DELIVERED AT TORONTO, ONTARIO ON THURSDAY, MARCH 2, 2000.
APPEARANCES: Mr. Sadian G. Campbell
Mr. Thomas E. Cole
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General of Canada
FEDERAL COURT OF APPEAL
Date: 20000302
Docket: A-495-98
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Appellant
- and -
Respondent
REASONS FOR JUDGMENT
__________________
1 (1998), 149 F.T.R. 200.
2 R.S.C. 1985, c. R-10.
3 RCMP Regulations, 1988, SOR/88-361.
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