Docket:
A-43-13
Citation: 2013 FCA 286
CORAM:
BLAIS C.J.
DAWSON J.A.
O’REILLY J.A. (ex
officio)
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BETWEEN:
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GREG IRVINE, GUY RICHARD JOHNSON, FRANK PETER DEHEER,
KURTIS ENGLAND, RONALD LYVER, CHRISTOPHER TERRANCE MATECHUK,
PATRICK MACISSAC, BRIAN MEARS, MITCH ROWLAND, J. P. PAUL SIMARD,
ED HALL, STEVE VIGOR, PETER SHERSTAN, SEAN LOWE, AL BAIRD,
MARC KOREMAN, PAUL WHITE, RON CHRISTIANSON, ROB LIDGETT,
WILL WARK, GORD CORBETT, MARCO LOU, SHANE POWERS,
BOB VATAMANIUCK, JAY PENNER, JIM LANK, DAVE ALBRECHT,
TOM MATERI, PETER ROSS, DAN JAKEL, PHIL TAWTEL, BILL HAMILTON,
DARRYL URANO, KEITH O’NEILL, DAVID GAZLEY, RAYMOND PEACOCKE,
RANDALL PEARSON and JASON PERRY
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Appellants
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The appellants are members of the RCMP Emergency Response Team located
in “K” Division (Alberta). They applied in the Federal Court for judicial
review of the decision of an RCMP Level II Grievance Adjudicator which
determined they were not entitled to standby compensation for time spent on-call.
The Federal Court dismissed their application for judicial review (2012 FC 1370).
The appellants now appeal from the decision of the Federal Court.
The Facts
[2]
The facts are set out extensively in the decision of the Federal Court.
For the purpose of this appeal it is sufficient to explain that members of RCMP
Emergency Response Teams (ERTs) are assaulters and sniper/observers who are
specially trained in the use of various tactical procedures and weapons. As the
Federal Court Judge explained in his reasons, an ERT may be deployed to provide
armed back-up support in emergency situations including hostage situations,
high-risk arrests or emergencies within penitentiaries. Service on an ERT is voluntary.
[3]
Members of ERTs are expected to be available to respond to emergency
situations whenever they arise. Thus, ERT members are required to carry a pager
at all times (unless they have given notice they will be out of the Division).
Further, ERT members are not permitted to do anything that might impair their
ability to respond to an emergency situation. Examples of prohibited conduct
include the consumption of alcohol and travel to a remote area.
[4]
The appellants are not compensated for maintaining this constant state
of readiness. Accordingly, they filed a grievance seeking compensation for time
spent on call. Specifically, they sought Standby Level II compensation, under
which they would be paid for one hour of work for every eight hours spent on call.
The Decision of the Grievance
Level II Adjudicator (Adjudicator)
[5]
Included in the reasons of the Adjudicator was reference to certain
provisions found in the RCMP Administration Manual. Chapter II.9 section E.1.j
of the manual defines Standby Level II to occur “when a member voluntarily
makes himself/herself available for duty on reasonably short notice at
identified locations.”
[6]
The Adjudicator made a number of findings of fact, including the fact
that in “K” Division no one had identified locations where Standby Level II was
authorized for ERTs.
The Decision of the Federal
Court
[7]
The Federal Court found the reasons of the Adjudicator provided
sufficient justification, transparency and intelligibility within the
decision-making process, and that the decision fell within the range of
possible, acceptable situations which are defensible in respect of the facts
and the law. It followed that the decision was reasonable (reasons of the
Federal Court at paragraph 64).
The Issue on Appeal
[8]
The sole issue on appeal is whether the Federal Court properly applied
the reasonableness standard of review to the Adjudicator’s decision.
Standard of Review
[9]
On an appeal from a decision of the Federal
Court disposing of an application for judicial review, this Court is required
to determine whether the Federal Court identified the appropriate standard of
review and applied it correctly (Telfer v. Canada (Revenue Agency), 2009
FCA 23, 386 N.R. 212 at paragraph 18). If the Federal Court selected and
applied the wrong standard, this Court then proceeds to apply the correct
standard of review. If the correct standard was applied by the Federal Court,
this Court then ensures that it was applied properly and, where necessary,
remedies errors which were made.
[10]
In the present case, the parties agree that the Judge selected the
reasonableness standard of review and that this was the correct standard of
review to be applied. In my view, the parties have correctly stated both the
Judge’s selection and the standard of review to be applied to the decision of
the Adjudicator.
Consideration of the Issue
[11]
The appellants submit that basing a decision upon irrelevant
considerations renders a decision unreasonable. They further submit that the Adjudicator
based his decision on factors this Court found to be irrelevant in Brooke v.
Canada (Royal Canadian Mounted Police (RCMP), Deputy Commissioner)
(1993), 152 N.R. 231, (F.C.A.) and that the Federal Court upheld the decision
on similarly irrelevant grounds.
[12]
In Brooke, the applicable definition provided that a “member is
on Standby when he/she is ordered to remain available and able to respond
immediately to a duty requirement.” The adjudicator in Brooke dismissed
the grievance because the person who gave the required standby order lacked
authority to do so, and in any case the affected members were not on standby.
The adjudicator reached the latter conclusion after considering:
• The
definition as to when a member is on standby.
• Standby
was a very special circumstance, only to be employed when all other
alternatives have been addressed.
• Standby
was to be authorized only when an emergency exists or when emergent
circumstances are so demanding that the standby is required.
• There
could be no permanent and therefore continuous standby.
[13]
This Court set aside the adjudicator’s decision. The adjudicator had
focused on the procedure used to authorize standby, that is the fact the person
who ordered members to be on standby lacked the authority to do so. The
adjudicator failed to focus upon the relevant definition. The remaining factors
considered by the adjudicator were found by the Court to be irrelevant. The
adjudicator’s finding that the members had been ordered to standby was sufficient
to establish that they met the definition of “standby” under the relevant definition.
[14]
In my view, the situation in the present case is distinguishable from
that in Brooke because in the present case, the Adjudicator had regard
to the applicable definition and reasonably applied it to the appellants’
circumstance. The reasonableness of the Adjudicator’s application of the
definition is demonstrated by the fact that the appellants acknowledged in
their written submission to the Adjudicator that they did not meet the
definition. On page one of their submission (appeal book page 121) they wrote:
ii: Approval of the
location must be given by CO/Director/delegate.
The level I
[decision] states that there is no evidence of a request or it’s denial in any
submission advanced. While that may be true, common sense and common practice
should be relied upon in this regard. ERT Members were aware there had not
been approval for the location for Standby II to be paid. Location in this
instance is relative to a Detachment or a unit. This unit works everywhere in
the Province so it is unreasonable to assume that approval would be given for
individual locations. That particular piece of policy does not make sense in
relation to ERT and should not be relied upon to base any decision on relative
to whether or not this unit should be paid Standby II as they do not have a
work “location” per se. It could be said that this policy has no bearing at all
on ERT as they don’t have a defined location. [underlining added]
[15]
It was therefore open to the Adjudicator on the record to have regard to
the applicable definition and find the appellants did not fall within it.
[16]
To the extent the Adjudicator considered other factors, those factors
did not materially affect his conclusion that the appellants did not meet the
definition for inclusion in Standby Level II pay. To a large extent the
Adjudicator’s comments now said to be irrelevant were directed to submissions
made to the Adjudicator by the appellants.
[17]
As I have concluded that the decision of the Adjudicator was reasonable,
I would dismiss the appeal with costs. In doing so I rely on the reasonableness
review contained herein and should not be seen to endorse the language of the
Federal Court decision in its entirety.
“Eleanor R. Dawson”
“I agree,
Pierre Blais C.J.”
“I agree,
James W. O’Reilly
(ex officio)”
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