RCMP |
Shephard v. Fortin
T-892-02
2003 FC 1296, Snider J.
6/11/03
39 pp.
Applicant constable with Royal Canadian Mounted Police (RCMP) wishing to be promoted to rank of corporal--On multiple choice written examination, Corporal Job Simulation Exercise (JSE), applicant obtained score of 39 out of possible 48 marks--As result of JSE score, applicant did not receive preferred ranking on eligibility list--Applicant, submitted request for intervention (RFI) pursuant to Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements) (Promotions CSO)--As part of RFI, applicant requested detailed disclosure of marking for examination paper--Adjudicator, appointed to consider applicant's RFI, and those of 12 other members; dismissed all 13 RFIs stating "I am satisfied there was no decision, act or omission that resulted in an error and therefore I dismiss all thirteen cases"--Applicant seeking judicial review of decision, arguing he should have been given access to JSE results and rationale for each question marked incorrect-- Whether portions of Promotions CSO and Policy D.7 ultra vires powers of Commissioner under Royal Canadian Mounted Police Act (Act)--Application of Part III to Promotions CSO central to submissions of applicant--In this case, Part III of Act not applying--Act, s. 31(1) specifically states Part III of Act only applies to situations where no other process for redress provided in Act, its regulations or Commissioner's standing orders--These particular orders provide process for presentation and resolution of all grievances of members related to job requirements and to selection processes for promotion-- Commissioner entitled to make these rules by virtue of Act that, s. 21(2)(b)-- Promotions CSO properly made as within scope of Act, s. 21(2)(b)--In addition, apparent from Act, Promotions CSO and Regulatory Inpact Analysis Statement that CSO established as alternative process for redress within meaning of Act, s. 31(1)--Promotions CSO, s. 2(1) clearly states these orders apply instead of Part III of Act--Therefore, Promotions CSO intra vires powers of Commissioner under Act-- Promotions CSO designed to apply instead of Part III of Act to certain grievances relating to promotion process and job requirements--Finally, since CSO duly made, Promotions CSO themselves determine extent of procedural rights and relief available to complainants--Further, this interpretation of Promotions CSO does not effectively circumvent or nullify provisions of Part III--Part III continues to apply to more serious matters affecting members of Force--As to interpretation of Policy D.7, authority to make Policy D.7 not explicitly granted to Commissioner in Act--Policy D.7 not statutory instrument--Under Act, s. 7(1), Commissioner has very broad-reaching authority with respect to promotion of non-commissioned members of RCMP--Parliament chose to give Commissioner great discretion in this subject area with no direct restrictions or guiding provisions in Act diminishing this authority--Accordingly, making of Policy D.7 not prohibited by enabling legislation--Whether Adjudicator erred in reviewable manner--In system such as this one, more than reasonable to conclude disclosure of requested material should only be made on exceptional basis--Adjudicator concluded applicant had not established such extraordinary circumstances--Balancing interests must be undertaken in order to determine whether benefits of disclosure greater than cost and added administrative burden associated with it--Therefore, balancing of interests at stake demonstrates distinct advantages to all parties under current non-disclosure system--Adjudicator's decision indicates that he put his mind to disclosure of information and documentation requested by applicant--Adjudicator ultimately concluded applicant dealt with fairly and in accordance with Promotions CSO and relevant policy--No reviewable error on this point-- Adjudicator did not unduly fetter discretion by automatically following Policy D.7--Decision indicates Adjudicator did not automatically apply Policy D.7.a-- Adjudicator considered submissions of both parties on issues of disclosure and application of policy, as well as rationale behind policy-- Adjudicator did not fetter discretion--Whether denial of natural justice and procedural fairness occurred--Applicant arguing his right to justice and fairness abrogated by policy contained in RCMP Administrative Manual--Applying criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, content of duty of fairness not high and, upon reviewing manner in which Adjudicator reached decision, Adjudicator met this duty--As to whether actions of Adjudicator gave rise to reasonable apprehension of bias, no evidence of unfair or capricious treatment in this case--Informed person, viewing matter realistically and practically would conclude Adjudicator would decide issue before him fairly--Therefore, no apprehension of bias--Judicial review dismissed--Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 7(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 4), 21 (as am. idem, s. 12), 31(1) (as am. idem, s. 16)--Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141, s. 2(1).