Date: 20060608
Docket: A-425-05
Citation: 2006 FCA 209
CORAM
: LÉTOURNEAU J.A.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
DANIEL GIROUARD
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
LÉTOURNEAU J.A.
Facts and process
[1]
The
appellant, who is representing himself, is appealing against a decision by
Madam Justice Tremblay-Lamer of the Federal Court (judge), who upheld
a decision of the Commissioner of the Royal Canadian Mounted Police (RCMP)
dismissing a second classification grievance made by the appellant. The
Commissioner had decided to uphold the decision of a classification committee.
[2]
The
appellant is at the centre of a long saga which began on November 25,
1994, when the Commanding Officer of the RCMP’s “A” Division recommended that
the appellant’s position be classified at a higher level than what it was, that
is, at the chief superintendent level rather than superintendent. After
studying and analyzing the matter, the classification committee that had been
established refused to approve the recommendation made by the Commanding Officer,
“A” Division.
[3]
It is not
necessary for the purposes of this appeal to review all the incidents which
happened over this 12‑year period. It is sufficient to say that,
following a Federal Court decision, the Commissioner’s decision on the
appellant’s first grievance was quashed. Accordingly, a second and therefore a
new classification committee was formed to conduct a new and second assessment
of the appellant’s classification. Being unsatisfied with the ensuing decision,
the appellant filed a new classification grievance, that is, a second one, to
challenge the decision rendered by the new committee.
[4]
The level
I grievance adjudicator, who was called on to decide the matter, mistakenly
concluded that the appellant, who had since retired from the RCMP, was not
entitled to file a grievance. The adjudicator therefore dismissed the
grievance. The appellant brought the matter to Tier II of the grievance
process, and the Commissioner ruled on the admissibility and the merits of the
grievance.
[5]
The Commissioner
concluded first of all that the appellant could file a grievance even though he
had retired from the RCMP. He then dealt with the appellant’s application to
rescind or amend the decision of the second classification committee. He
dismissed the appellant’s grievance on the merits and, as already mentioned,
upheld the committee’s decision.
Issues
[6]
The
appellant is contesting two of the judge’s conclusions. Before this Court, he
withdrew a third ground of appeal, made in Federal Court, to the effect that
the Commissioner’s previous involvement in the first grievance process was
sufficient to give rise to a reasonable apprehension of bias when studying the
second grievance.
[7]
However,
the appellant submits that the judge erred in concluding that it was open to
the Commissioner, when acting as a level II adjudicator, to rule on the
merits of the grievance in the circumstances. According to the appellant, the
only avenue open to the Commissioner, who had acknowledged the appellant’s
standing to file a grievance, was to return the matter to a level I
adjudicator to render a first decision on the merits. The appellant states that
the Commissioner, in proceeding as he did, deprived him of the opportunity to
present his case against the decision of the classification committee and of
the possibility of appealing against an unfavourable decision of the
adjudicator.
[8]
In
addition, he submits that another aspect of the harm he has sustained results
from the infringement of the standards of procedural fairness and natural
justice which are part of the level I grievance process. I will deal with
the nature of this harm in more detail later.
[9]
Furthermore,
the appellant submits that the Commissioner erred in law by not giving reasons
for this decision to reject the conclusions and recommendations made by the
RCMP External Review Committee (ERC), which, pursuant to paragraph 31(2)(b)
of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R‑10
(Act), had advised the Commissioner to allow the appellant’s grievance.
[10]
In
addition, the appellant submitted that the Commissioner did not make any ruling
on the errors of fact and process he raised in connection with the second
decision of the classification committee.
[11]
I will
deal with the issues in the following order: the sufficiency of the
Commissioner’s reasons to partially reject the conclusions reached by the ERC,
the failure of the Commissioner to rule on the alleged errors of fact and
process, and the Commissioner’s alleged obligation to return the grievance to
the first tier (level I) for rehearing.
The
appellant’s failure to contest the Commissioner’s decisions following an
application for reconsideration of the initial decision and following a new
review of the appellant’s application by the classification committee
[12]
However,
before proceeding, I must consider a special problem resulting from the fact
that the appellant applied to the Commissioner and obtained a reconsideration
of the appealed decision. This application was made under subsection 32(3)
of the Act. This subsection allows the Commissioner to rescind or amend a
decision in respect of a grievance if the Commissioner determines that an error
of fact or of law was made in reaching the decision.
[13]
In
addition, in the context of the application for reconsideration, the
Commissioner asked the classification committee to provide additional
information about and an analysis of the issues raised by the appellant. More
specifically, the Commissioner asked the committee, [translation]
“in
order to be sure that the process was fair to Superintendent Girouard”, to
“re-examine the evaluation report, taking into consideration such points as the
choice of benchmark positions, the decision to award 528 points for this
position, budget comparison, the manner of justifying the scores awarded
according to the Hay system, and the comments of the External Review
Committee”: see the additional appeal record, tab 5, page 2. Following the committee’s
answer, the Commissioner rendered a new decision, once again on the merits of
the appellant’s grievance.
[14]
In
summary, in addition to the decision of October 5, 2004, which is the subject
of this appeal, the Commissioner stated, on the merits of the appellant’s
grievance, his conclusions and reasons in the two complementary decisions requested
by the appellant: a decision dated May 31, 2005, following the application
for reconsideration, and a decision dated September 13, 2005, following a
new revision of the appellant’s classification by the second classification
committee.
[15]
The
special problem in this case is that the appellant did not challenge these two
new decisions of the Commissioner. In legal and practical terms, this means
that the rescission of the decision dated October 5, 2004, which is under
appeal here, would leave two binding decisions of the Commissioner which
confirm, support and develop the one rescinded.
[16]
In Vidéotron
Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90 (see also Halifax
Employers Association Incorporated v. The Council of ILA Locals for the Port of
Halifax, 2006 FCA 82), our Court stated the following about the
undesirability of not contesting the decisions resulting from an application to
reconsider. Mr. Justice Décary wrote the following at paragraphs 6,
12, 13, 14 and 15:
This Court is
therefore in a most uncomfortable position. Clearly it cannot intervene in the
impugned decision unless it was patently unreasonable, and setting aside the
initial decision would not eliminate the decision to reconsider which, unless
it has been challenged, can be set up against the employer.
. . .
However, what
about when, as in the case before us, the Board in its reconsideration decision
affirms the merits of the initial decision on all points? In my opinion, the
same rule as the one formulated in Canadian National must be applied.
There are two decisions which were rendered on the same initial application,
and even if those decisions are concurrent, they are nonetheless distinct.
Even though one does not quash the other since it affirms it, it
nevertheless replaces the other for the purposes of judicial review
since the latter deals with the same issues of law and policy definitively
decided by the review panel. It follows that the reconsideration decision must
therefore be challenged directly. If the party is also objecting to errors of
law or policy in the initial decision which were not addressed by the Board in
the reconsideration decision, or patently unreasonable errors of fact in the
initial decision, it must then also challenge the initial decision.
The state and
stability of the law would be ill served if two potentially contradictory
decisions were allowed to co-exist, one by this Court on judicial review of the
initial decision and the other by the Board in reconsideration of that
decision.
This finding
is consistent with the practice generally followed in this Court. A party
asking the Board to reconsider an initial decision files a concurrent
application for judicial review of the initial decision, or at least files a
motion for an extension of time while awaiting the reconsideration decision.
Once the reconsideration decision is rendered, the party chooses whether to
challenge one or the other or both, depending on the circumstances. If both
decisions are challenged, the parties may ask the Court to join the
applications for judicial review for the purposes of preparing the records and
the hearing.
I therefore
find that this application for judicial review is purely moot in nature and
that there is nothing to justify this Court agreeing to hear it nevertheless in
exercising its discretion.
[17]
All in
all, the appellant’s challenge of the decision dated October 5, 2004 has
become a moot point from a legal point of view, because this decision was
replaced by two other decisions of the Commissioner. The appeal is also futile
from a practical point of view because, even if the challenged decision were
rescinded, the other two decisions would continue to have effect.
[18]
Even
though I would be warranted in dismissing the appeal on this basis, I am
willing, as already mentioned, to rule on the merits of this matter so that the
appellant may see the results of his judicial endeavours which he undertook
without legal assistance. As mentioned at the hearing, the appellant performed
a tremendous amount of legal research and analysis. His memorandum of fact and
law is well articulated and thoroughly documented and deals with all his
claims, even though the issues in this appeal are much more limited.
The sufficiency of the Commissioner’s
reasons to partially reject the conclusions of the ERC
[19]
With
respect, I am of the opinion the Commissioner’s decision contains sufficient reasons
to explain the refusal to follow the ERC’s recommendation to allow the
grievance on the merits.
[20]
The
Commissioner examined the analytical method used by the second classification
committee, as well as the number and type of comparisons used to classify the
appellant’s position. He took into consideration the objectiveness of the
members of the classification committee, as well as their undeniable expertise,
which he compared with and measured against the relatively limited if not to
say inexistent expertise of the member of the ERC. He noted the similarity of
the results obtained by the two classification committees. He ruled that the
classification recommended by the second committee was fair in relation to
positions of the same level or of a higher level in the RCMP. Finally, he
expressed and provided reasons for his disagreement with the position taken by
the ERC regarding one of the important aspects of the work in
“E” Division, which was used with other factors as the benchmark position
by the classification committee.
[21]
The
Commissioner was fully aware of his obligation to provide reasons for his
decision if he rejected, as he was fully entitled to do, the conclusions and
recommendations of the ERC. Moreover, he specifically mentioned this obligation
in his decision and then turned to setting out the reasons for his decision.
[22]
There is
no doubt that the reasons given by the Commissioner could have been more
detailed and better. However, the test we must apply to the review of the
reasons for a decision is not that of excellence or perfection, but that of
sufficiency and adequacy. I would say in the Commissioner’s favour that, as far
as the ERC was concerned, it only mentioned disagreeing with the classification
committee and specified its preferences without really giving in either case
any reasons in support of its position. It was difficult for the Commissioner
to rebut non-existent reasons. He therefore simply stated the reasons for the
divergence of his opinion from that of the ERC.
[23]
In my opinion,
the appellant’s criticism on this point is groundless.
Failure
of the Commissioner to rule on the errors of fact and process alleged by the
appellant in connection with the decision of the second classification
committee
[24]
There is
no doubt that the decision of the Commissioner that is under appeal in this
case did not in any way deal with the errors of fact and process that the
appellant invoked against the second classification committee in his grievance.
For all intents and purposes, these are the same errors that the appellant
invoked to challenge the decision of the first classification committee.
However, the appellant rightly applied for and obtained from the Commissioner a
reconsideration of his decision: see the two complementary decisions in the
supplemental appeal book, tabs 3 and 5. A study of the decision subsequent
to the application for reconsideration shows that it deals with and ruled on
the appellant’s allegations. Although the appellant was not satisfied with the
rejection of his allegations by the Commissioner and with the reasons in
support of this decision, he did not contest it, and the appeal now before us
is not on the merits of this decision.
[25]
If we were
to allow the appeal for this reason, the most we could grant as a remedy would
be to order the Commissioner to rule on the errors of fact and process alleged
by the appellant. However, the Commissioner not only did so following the
application for reconsideration of the first decision, but also had the second
classification reassess its proposed reclassification of the appellant in light
of these allegations.
[26]
In short,
even if the appellant’s criticisms of the shortcomings in the Commissioner’s
first decision could have been or were well founded, these shortcomings were
subsequently remedied. Once again, the remedy sought by the appellant is moot.
[27]
This
brings me to the third and final issue.
The
Commissioner’s alleged obligation to return the grievance to the first tier
(level I) for rehearing
[28]
The
conduct of the grievance process and hearings is governed by the Commissioner’s
Standing Orders (Grievances), 1990, SOR/90‑117, 8 February,
1990 (Orders). This is the short title of the Rules Respecting Grievances in
the Royal Canadian Mounted Police. These Orders were made under section 36
of the Act. The authority to establish rules for the presentation and analysis
of grievances is granted to the Commissioner, who is responsible for the
process to be followed.
[29]
The
Orders, which provide for a certain number of situations, including the one
covered by section 18, where new evidence is discovered while the
grievance is pending at level II, does not cover the situation in which
the Commissioner and the appellant were involved. It should be noted that the
appellant’s grievance was dismissed by the level I adjudicator on an issue
preliminary to the merits concerning the appellant’s standing.
[30]
It is not
wrong to say that, as a result of the dismissal of the grievance in the
circumstances, the Act and the Orders left a legal vacuum with regard to the
manner of dealing with the appellant’s case. In such a case, no error of law
may be invoked against the Commissioner, who decided in the interests of
justice to hear this grievance, since it dated back almost ten years. In other
words, the Commissioner had the authority to act as he did insofar as the
process followed did not infringe on the appellant’s rights, especially his
right to procedural fairness and natural justice.
[31]
The
appellant submitted that subsection 31(2) of the Act creates an obligation
for the grievance to be heard at level I. While admitting that this is the
practice generally applied, it must be noted that subsection 31(2) deals
with the prescription of grievances at one or the other level: it specifies the
time limits in which the complainant must file his or her grievance. I will
therefore concentrate on the harm alleged by the appellant.
[32]
First of
all, the appellant submitted that he was deprived of the possibility of
adjudication at level I, as well as of the procedural guarantees available at
this level. With respect, I do not think the appellant has proved that any harm
resulted from this.
[33]
First of
all, under paragraph 16(b) of the Orders, the powers of review of
the level I adjudicator and those of the Commissioner at level II are
identically limited in cases of classification grievances to “an error of fact
or process”. The situation would have been different if the level I
adjudicator had broader powers of review than the Commissioner. Therefore, the
appellant did not sustain any harm in terms of the scope of jurisdiction and
power to act of either grievance adjudication level. This leaves the question
of procedural guarantees.
[34]
Under
section 12 of the Orders, a level I adjudicator is assisted in his or her
work by an advisory board, which drafts a report, a copy of which is forwarded
to the person who filed the grievance (subparagraph 7(b)(ii) of the
Orders), and submits its findings and recommendations with respect to the
grievance to the adjudicator (section 14 of the Orders). Under
section 17 of the Orders, neither the level I adjudicator nor the
Commissioner at level II is bound by the findings or recommendations of the
advisory board.
[35]
In my
humble opinion, the appellant has no grounds for complaining about having been
deprived of this procedural guarantee. In fact, at level II, he had the
benefit of a similar procedural guarantee offered by the ERC, to which the
grievance was referred for consultation and recommendation. In fact, the ERC’s
opinion was in favour of the appellant and his position.
[36]
Relying on
section 10 of the Orders, the appellant argues that he was entitled to
make submissions about the findings and recommendations of the advisory board.
This argument is unfounded for two reasons.
[37]
First of all,
section 10 does not confer this right. It does, however, allow the appellant to
present written submissions concerning his grievance to the advisory board so
that it may take this into consideration in the eventual analysis it will make
of the grievance before reaching a conclusion on the merits. The appellant’s
submissions were received by the ERC, which considered his grievance at
level II.
[38]
Second,
the appellant did not have to make any submissions about the conclusions
reached by the ERC, because it recommended allowing his grievance.
[39]
Finally,
the appellant complains that the respondent was not heard at level II. If
that was the case, it is difficult to see what harm the appellant would sustain
because the respondent contested his grievance. However, this was not the case.
The respondent submitted its point of view concerning the grievance and its
contestation to the ERC and to the Commissioner: see the appeal record,
volume III at page 585, the letter from the acting Director of Organization
Design and Job Evaluation, dated January 31, 2002.
Conclusion
[41]
In
addition, he succeeded in having the Commissioner reconsider his initial
decision, which took into consideration the appellant’s allegations about the
errors of fact and process invoked. In all fairness, a new review was also
requested and obtained from the second classification committee, which
specifically examined some of the appellant’s allegations. The Commissioner
rendered three decisions, each one dismissing the appellant’s grievance and
giving reasons for doing so. These three decisions and the reasons answer the
appellant’s allegations. Therefore, in my opinion, the judge was correct in
dismissing the appellant’s application for judicial review.
[42]
For these
reasons, I would dismiss the appeal. In the circumstances, I would limit the
costs payable to the respondent to $1,500.
“Gilles
Létourneau”
“I
concur.
Marc Noël J.A.”
“I
concur.
J.D.
Denis Pelletier J.A.”
Certified
true translation
Michael
Palles
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