[2013] 2 F.C.R. D-9
RCMP
Judicial review of RCMP Commissioner’s decision terminating applicant’s employment for disgraceful conduct under Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 45.16—Adjudication Board deciding that applicant had displayed pattern of inappropriate behaviour, had not taken responsibility for his actions, was not honest and forthright—Board further noting that applicant’s behaviour towards spouse, including dangerous misuse of a weapon, demonstrated lack of self-control, judgment—At External Review Committee (ERC), applicant submitting new evidence, including evidence spouse committing perjury—ERC recommending, inter alia, that Commissioner order new hearing regarding certain allegations in light of alleged perjury—Commissioner agreeing with ERC that there was credible, relevant evidence regarding alleged perjury, deciding to consider this additional evidence—Commissioner also deciding to consider outcome of perjury investigation—Based on outcome of police force investigations, Commissioner finding perjury allegation would not have altered Board’s decision—Whether Commissioner erring in failing to find that allegations of perjury requiring new hearing before Board—Commissioner, sitting as third level of review, was not in position to make decision as to spouse’s credibility—Appellate court, Commissioner, should not intervene in credibility findings unless trier of fact made palpable, overriding error or made findings of fact that were clearly wrong or unsupported by evidence—Here, Commissioner was in no position to make finding of credibility—Allegations sustained on testimony of single witness; applicant’s ex-spouse—That testimony was essential to findings—In circumstances of conflicting testimony between estranged spouses, in absence of independent corroborative evidence, it was unreasonable to conclude that spouse’s credibility would be unaffected by the new evidence—Decision thus unreasonable—Finally, Commissioner receiving as fresh evidence “joint affidavit”—Such affidavits unknown to legal system—While Commissioner not bound by strict rules of evidence, reliance on joint affidavit to conclude spouse’s credibility would be unaffected falling short of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 standard of cogency—Application allowed.
Elhatton v. Canada (Attorney General) (T-889-11, 2013 FC 71, Rennie J., judgment dated January 25, 2013, 24 pp.)