Docket: A-351-16
Citation:
2017 FCA 204
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CORAM:
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WEBB J.A.
BOIVIN J.A.
RENNIE J.A.
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Appellant
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and
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CONSTABLE
ROBERT McBAIN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on
October 4, 2017).
BOIVIN J.A.
[1]
The Crown appeals from a judgment of Mr. Justice
Manson of the Federal Court (the Judge) rendered on July 19, 2016 (indexed as
2016 FC 829 (the Decision)). The Judge granted the respondent’s application for
judicial review of a decision made by the Royal Canadian Mounted Police (RCMP)
Commissioner (the Commissioner). The Commissioner had been seized of an
administrative appeal by the respondent from a decision of the RCMP
Adjudication Board (the Board), wherein the Board found the respondent had
conducted himself in a disgraceful manner and ordered him to resign from the
RCMP within fourteen days or be dismissed. The Commissioner found that the
Board had breached the respondent’s right to procedural fairness, but confirmed
its finding and sanction on the basis that the outcome was legally inevitable.
In this appeal, this Court must determine whether the Judge erred in granting
the respondent’s application on the basis of a procedural fairness breach and
remitting the matter back to a differently constituted Board for
redetermination.
[2]
On an appeal from an application for judicial
review, the task of our Court is to determine whether the judge identified the
proper standard of review and applied it correctly.
This Court must thus “step into the shoes”
of the judge and focus on the administrative decision at issue (Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paras. 45-47).
[3]
The Judge in his reasons underwent a complete
review of the facts and procedural history (paras. 2-37). As such, only a brief
summary will be provided here.
[4]
The respondent was the subject of a disciplinary
proceeding before the Board (now, the Conduct Board) for allegedly having
sexual intercourse during a contemporaneous professional interaction with a
citizen. During the hearing, the Board heard considerable amounts of inadmissible
evidence relating to whether the sexual intercourse was consensual and to the respondent’s
unforthcoming conduct following the incident. The Board relied heavily on this
evidence in its reasons. It ultimately refused the parties’ joint proposal on sanction
(a reprimand and forfeiture of ten days’ pay), and ordered the respondent to
resign.
[5]
The respondent appealed the Board’s decision to
the Commissioner on the basis that the proceeding was procedurally unfair. The
Commissioner referred the appeal to the RCMP External Review Committee (the
Committee) for a recommendation, as required by subsection 45.15(1) of the
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (the Act). The
Committee found there were serious breaches of the respondent’s right to
procedural fairness and recommended that the Commissioner allow the respondent’s
appeal. It recommended ordering a new hearing or, in the alternative, accepting
the parties’ joint recommendation on sanction.
[6]
The Commissioner agreed that the respondent’s
right to procedural fairness was breached, but he decided to render the
decision that should have been rendered and thus found that a new hearing would
inevitably have resulted in the same outcome and he made the order himself.
[7]
Seized of the respondent’s judicial review
application, the Judge found that the Commissioner’s decision failed to cure
the procedural fairness issues that had occurred at the initial stage (para. 51),
and therefore ordered that a new hearing be held before a differently constituted
Board.
[8]
The question of whether an administrative
decision-maker complied with the duty of procedural fairness is reviewed for
correctness (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para. 43; Mission Institution v. Khela, 2014
SCC 24, [2014] 1 S.C.R. 502 at para. 79).
[9]
Breaches of procedural fairness will ordinarily
render a decision invalid, and the usual remedy is to order a new hearing (Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78
(QL)).
[10]
Exceptions to this rule exist where the outcome
is legally inevitable (Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202 at pp. 227-228; 1994 CarswellNfld 211
at paras. 51-54) [Mobil Oil] or where the breach of procedural
fairness has been cured in the appellate proceeding (Taiga Works Wilderness
Equipment Ltd. v. British Columbia (Director of Employment Standards), 2010
BCCA 97, [2010] B.C.J. No. 316 (QL) at para. 38 [Taiga Works]).
[11]
In this case, there was also a statutory
requirement on the Commissioner to justify his reasons for departing from the
recommendation made by the Committee (the Act, subsection 45.16(6)).
[12]
We do not agree with the Commissioner that the
outcome in this case was legally inevitable (Mobil Oil). The Board had
departed from a joint submission on sanction, and it relied heavily on
inadmissible evidence in reaching its decision. It is far from certain that the
Board would have reached the same result had the procedural fairness breaches
not occurred. The Crown acknowledged that Mobil Oil does not apply in this
case.
[13]
Nor do we agree that the proceedings before the
Commissioner cured the procedural fairness breaches. Taiga Works adopts
the five factors outlined by De Smith, Woolf & Jowell in Judicial Review
of Administrative Action, 5th ed. (London: Sweet & Maxwell, 1995) at
489-90, to determine whether an appellate proceeding has cured earlier
procedural defects. These are: (i) the gravity of the error committed at
first instance; (ii) the likelihood that the prejudicial effects of the
error may also have permeated the rehearing; (iii) the seriousness of the consequences
for the individual; (iv) the width of the powers of the appellate body;
and (v) whether the appellate decision is reached only on the basis of the
material before the original tribunal or by way of rehearing de novo.
[14]
In this case, the errors at first instance were
serious, and it is likely that those errors permeated the proceedings before
the Commissioner when he considered inadmissible evidence. It was not disputed
that the consequences for the respondent were serious and that the Commissioner
remained bound by the same duty of procedural fairness toward the respondent.
In this case, the Commissioner, relying on Mobil Oil, did not proceed de
novo and reached his decision on the basis of the record before him, and
this record was tainted by earlier breaches of procedural fairness.
[15]
Therefore, we are all of the view that the
Commissioner’s refusal to order a new hearing was a legal error. The Judge
arrived at the same conclusion and we agree with his reasons for so finding. In
his review of the Commissioner’s decision, he identified the proper standard of
review and he applied it correctly. He committed no error that would warrant
the intervention of this Court.
[16]
For these reasons, the appeal will be dismissed,
with costs.
“Richard Boivin”
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