Date: 1998-11-10
Docket: T-504-98
BETWEEN:
JOSEPH W. BRENNAN, residing at
278 McEachern Cres., Orleans, Ont. K1E 3K5
Applicant
AND
GUY LAFLAMME, Inspector, Grievance Adjudicator,
Royal Canadian Mounted Police, 250 Tremblay Road,
Pickering Building, Room 204 F, Ottawa, Ont. K1A OR2
AND
PHILIP MURRAY, Commissioner,
Royal Canadian Mounted Police, 1200 Vanier Parkway,
Ottawa, Ont. K1A OR2
AND
THE ATTORNEY GENERAL OF CANADA,
Department of Justice, Justice Building,
239 Wellington Street, Ottawa, Ont. K1A 0H8
Respondents
REASONS FOR DECISION
GIBSON J.:
INTRODUCTION
[1] The applicant seeks judicial review of a decision of Inspector Guy Laflamme of the Royal Canadian Mounted Police (the "RCMP"), a Level II Grievance Adjudicator (the "Adjudicator"), wherein he affirmed the Level I Grievance Adjudication decision which dismissed the applicant"s grievance with respect to the refusal to promote him to the rank of Staff Sergeant-Major ("S/S/M"). The decision under review is dated the 14th of January, 1998.
BACKGROUND
[2] The applicant served in the RCMP from the 13th of November, 1957 to the 9th of February, 1997. He was first elected a Division Staff Relations Representative ("DSRR") for "A" Division of the RCMP on the 17th of July, 1987. He was subsequently re-elected as a DSRR on three occasions and served as such until the 24th of January, 1996. DSRRs represent the interests of members of the RCMP with respect to staff relations matters within the force.
[3] During his service as a DSRR, the applicant held the rank of Staff Sergeant.
[4] On the 2nd of February, 1993, during his third term as DSRR for "A" Division, the applicant requested of the Commanding Officer, "A" Division, that he be promoted to the "next substantive non-commissioned rank" retroactive to the time of his first election as a DSRR. The applicant based his request on the provisions of RCMP Administrative Bulletin AM-940 issued the 21st of March, 1986, entitled "Promotion of Members on DSRR Assignment". The relevant provisions of that Bulletin, paragraph 1.b.1.2, provided that a regular member on DSRR assignment, other than a Special Constable, shall be promoted to the next substantive rank if, at any time during a second or subsequent term on DSRR assignment, and having held his or her present rank for a minimum of two years, the member meets the National Average for promotion to that rank as identified in Admin. Manual App. II-1-10.
[5] The applicant was informed by memorandum dated the 10th of June, 1993 that his request for promotion to the rank of S/S/M had been denied by the Deputy Commissioner, Administration. It was explained to the applicant that his request had been denied on the basis that, in May of 1975, the then Commissioner had approved the abolition of the rank of S/S/M, effective with the discharge of the last serving member.
[6] The applicant filed a grievance regarding this decision on the 25th of June, 1993. The grievance was denied at the first level. The applicant pursued the grievance to the second level. It is the decision at the second level, upholding the denial at the first level, that is here under review.
THE DECISION UNDER REVIEW
[7] In his decision, the Adjudicator briefly outlined the grievance before him. He then went on to consider his mandate. He wrote:
This grievance is in regard to a promotion and I am therefore limited to a consideration as to whether there is evidence of an error of fact or process (Commissioner"s Standing Orders on Grievance, section 16). The mandate of an adjudicator in a grievance of this nature is to examine whether force policies and procedures had been respected; all relevant and applicable information has been considered; and whether the member has been equitably treated.
[8] After setting out the background to the grievance at some length, the nature of the grievance and the policy underlying the decision that was before him, the Adjudicator concluded as follows:
first:
It is an established fact then that AM-940 [a policy on promotion of DSRRs] applied when the Grievor was elected ;
second:
...that AM-940 delegated the authority of the Commissioner to promote a DSRR to the CO of the Division where the DSRR is posted. ... It is my finding that the D/Commr..(Admin.) acted without authority [in denying the promotion] and that this constituted an error in process.
third:
I am satisfied that, with regard to this grievance, a vacancy was not required to promote the Grievor into the next higher rank.
fourth: I am satisfied that the rank of S/S/M still exists.
I am also satisfied that the rank of S/S/M is one classified as a non-commissioned rank, based on the definition in the Act of "officers" found in subsection 2(1), 6(1), and 6(3) and Regulations at sections 15 and 65.
and finally:
... I am satisfied that the decision to abolish the rank of S/S/M was reasonable, based on a study by Classification Section on the redundancy of certain ranks. I am also satisfied that the decision was made by the appropriate authority, the Commissioner, and that it consequently removed any existing or future delegation of authority to promote to the S/S/M rank. In practical terms, only the Commissioner can reverse his decision and promote to the S/S/M rank.
Nevertheless, this decision was never carried out through legislative amendment of RCMP Regulations. But, according to the material before me, this policy decision was carried out in practice. No one was ever promoted to S/S/M rank thereafter. This explains why a national average for promotion to S/S/M did not exist in the AM. I am satisfied that a policy decision was made in 1975 to abolish the rank of S/S/M, that although this decision was not carried out through legislative amendments, it was carried out in practice by informing the COs accordingly and not promoting anyone to the S/S/M rank. This practice was maintained to this date. This decision was clear and unambiguous and was communicated to all Divisions. The resultant practice of the Force of not promoting to the rank of S/S/M was carried out openly, not in a surreptitious manner, [over] a long period of time and without exception. It is my finding that the Force adopted a policy in 1975 on promotion to the S/S/M rank by which it consistently did abide and that this policy was not the result of an arbitrary decision. While this policy was not explicitly included in AM-940, it nevertheless existed and was included in subsequent policies on promotion for DSRRs. I therefore conclude that a promotion to the S/S/M rank was not open to DSRRs as a result of this policy decision and constant practice of the Force. Only the Commissioner can break with this practice and promote to the S/S/M rank.
THE ISSUES
[9] The issues argued before me were:
| 1. the appropriate standard of review of a decision such as that here under review; |
| 2. whether or not, against the appropriate standard of review, the Adjudicator erred in a reviewable manner in deciding as he did or in failing to consider the issue of promotion of the applicant to an alternative non-commissioned rank; and |
| 3. whether the applicant was entitled to rely on the doctrine of legitimate expectation to support his requested promotion. |
ANALYSIS
| 1. Standard of Review |
[10] In Fortin v. Gaudet, Inkster et al1, a judicial review of a decision of a Level II adjudicator in the R.C.M.P. relating to promotion, albeit in circumstances different in significant respects from those before me, Mr. Justice Joyal identified one of the points at issue before him in the following terms:
(2) If the member acting as Level II erred in dismissing the applicant"s grievance, is this error a patently unreasonable error on the basis of which this Court can intervene in this matter?
He wrote:
If the Court concludes that the Level II adjudicator made an error, the respondents contended that the error was simply one of fact and that it was not patently unreasonable.
| The Level II adjudicator"s decision is protected by the final appeal clause contained in s. 32(1) of the Royal Canadian Mounted Police Act: |
"32(1) The Commissioner constitutes the final level in the grievance process and the Commissioner"s decision in respect of any grievance is final and binding and, except for judicial review under the Federal Court Act , is not subject to appeal to or review by any court."
The respondents accordingly added that under the Supreme Court of Canada judgments in National Corn Growers" Association et al. v. Canada Import Tribunal, [1990] 2 S.C.R. 1324; ... and Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; ... the powers of judicial review which this Court has pursuant to s. 18.1 of the Federal Court Actare limited to patently unreasonable errors of law or fact when the subject decision is protected by a final appeal clause.
| The respondents contended that the rules set forth in Alliance, at 961-962 S.C.R., should be applied in the case at bar: |
"In summary, the courts have an important role to play in reviewing the decisions of specialized administrative tribunals ... In undertaking the review courts must ensure first that the board has acted within its jurisdiction by following the rules of procedural fairness, second, that it acted within the bounds of the jurisdiction conferred upon it by its empowering statute, and third, that the decision it reached when acting within its jurisdiction was not patently unreasonable. On this last issue, courts should accord substantial deference to administrative tribunals, particularly when composed of experts operating in a sensitive area."
The respondents alleged that Parliament intended the various administrative decisions which might affect members of the RCMP to be challenged by means of an internal grievance procedure carried out by persons who have specialized knowledge of the RCMP"s operation and requirements.
Further, the respondents argued that by inserting a final appeal clause in the Act Parliament intended decisions made by specialized RCMP tribunals to be beyond the scope of judicial review except for decisions that may be patently unreasonable. [some citations omitted]
[11] Counsel for the respondents here adopted the same argument. While Mr. Justice Joyal does not appear to have specifically adopted the arguments of the respondent as recited, or, for that matter, to have rejected them, implicitly, he appears to have accepted them. In concluding, he wrote:
I do not feel that the adjudicator made any error. On the contrary, he set out his function and followed it to the letter: he could not substitute his opinion for that of the board.
[12] By reference to the quotation from Canada (Attorney General) v. Public Service Alliance of Canada set out in the foregoing extract from Fortin, while I am not satisfied that the Adjudicator whose decision is here under review could be described as an "expert[s] operating in a sensitive area", I am nonetheless satisfied that, in the technical area of promotion in an organization such as the RCMP in which he was operating, substantial deference, albeit somewhat short of a standard of "patent unreasonableness", is appropriate on the part of this court with respect to issues of fact.
[13] Against such a standard, I turn to an examination of whether or not the Adjudicator made a reviewable error in deciding as he did.
| 2. Reviewable error |
[14] It was not argued before me that the Adjudicator failed to provide procedural fairness or acted outside of the bounds of his jurisdiction. Rather, it was argued that the last element of his decision to the effect that a promotion to the S/S/M rank was not open to the applicant by reason of policy decisions of the Force and constant practice of the Force was not reasonably open to the Adjudicator.
[15] By notation dated the 2nd of May, 1975, the then Commissioner of the RCMP approved the following recommendation:
....
2. On the basis of the foregoing results, and to be consistent with the application of the principles of classification to other sectors of the Force, my recommendations are:
...
| c) STAFF SERGEANT-MAJOR |
| 1. That this rank be abolished effective with the discharge of the last serving incumbent. |
| d) that Regulations, Standing Orders and other directives dealing with the ranks of ... S/S/M be reviewed and revised as required ... . |
[16] Central to the argument on behalf of the respondent was an interpretation of the words "...the last serving incumbent" to mean the last serving incumbent appointed before the 2nd of May, 1975. The Adjudicator adopted this interpretation.
[17] On the 21st of March, 1986, the Force published a bulletin on "Promotion of Members on DSRR Assignment", designated AM-940, the form of assignment that the applicant was on on that date and for some years thereafter. In respect of regular members other than special constables, the category into which the applicant fell, it provided as follows:
| b. ... |
| 1. Effective after 86-03-31, you shall be promoted to the next substantive rank if the following applies: |
| 1. At any time during your initial term on DSRR assignment, you meet the National Average for promotion to that rank, as identified in Admin. Manual App. II-1-10; |
| 2. At any time during a second or subsequent term on DSRR assignment and having held your present rank for a minimum of two years, you meet the National Average for promotion to that rank as identified in Admin. Manual App. II-1-10. |
| 1. b. 2. If you are elected or reelected DSRR prior to 86-03-31, and b.1. has an adverse effect on your promotional opportunity, the provisions of Admin. Manual II.1.M.3. shall apply for the duration of your assignment. |
| 3. Your promotion shall be approved by your CO and shall not be subject to a Transfer/Promotion Board. [underlining added for emphasis] |
[18] Counsel for the respondent acknowledged that the foregoing applied in respect of the applicant except that, he urged, S/S/M was not a "substantive" rank, no National Average for promotion to that rank was identified in the appropriate portion of the Admin. Manual, and the 1975 action of the Commissioner had effectively revoked the delegation of authority to the applicant"s CO to approve his promotion.
[19] It is interesting to note that the policy approved by the Commissioner in May of 1975 was never reflected in Administrative Bulletin AM-940. That notwithstanding, I can only conclude on the basis of the material and argument before me that it was reasonably open to the Adjudicator to conclude that the policy approved by the Commissioner in May of 1975 effectively revoked any authority other than his own to appoint S/S/Ms and that, in the result, it was appropriate that no National Average for promotion to that rank was identified in the Admin. Manual. That I might not have reached the same conclusions, particularly in light of the fact that the policy endorsed by the Commissioner in May of 1975 was not reflected on the face of Administrative Bulletin AM-940, is of no consequence.
[20] I find no basis on the material before me and the argument made before me on which to conclude that the Adjudicator made a reviewable error in failing to consider the question of promotion of the applicant to a rank other than S/S/M. The material before me discloses that the applicant"s principal focus was on a promotion to the rank of S/S/M, not to another rank. Indeed, in his original request for promotion, S/S/M was the sole "next substantive non-commission rank" that the applicant identified. In his grievance, the applicant grieved "the decision to deny my request for promotion based on the alleged abolishment of the rank of Staff Sergeant Major." The redress requested was "...promotion to the rank of Staff Sergeant Major," not any other rank.
| 3. Legitimate Expectation |
[21] The applicant argued before me, though in different terms, that the doctrines of legitimate expectation and estoppel by representation apply to preclude the Adjudicator from reaching the decision he did. The applicant cited Professor Janisch to the following effect:
...it is repugnant to our notions of decency in government that when there has been a degree of reliance placed on internal rules, the government may ignore them and resile on any expectation it may have raised. As we have already seen, legitimate expectation is an important source of procedural rights and there are indications that it will be expanded to include substantive rights.2
At least in this Court, the "indications" that Professor Janisch cites to the effect that the doctrine of legitimate expectation will be expanded to include substantive rights have not been realized.
[22] In Gonsalves v. Canada (Minister of Citizenship and Immigration),3 Mr. Justice Muldoon wrote:
The Supreme of Court of Canada in Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170 ..., at p. 1204, stated that the doctrine of legitimate expectation created only procedural, not substantive rights. This was affirmed by the Supreme Court in Reference Re Canada Assistance Plan, (B.C.), [1991] 2 S.C.R. 525... and was applied by the Federal Court of Appeal in Lidder v. Minister of Employment and Immigration, [1992] 2 F.C. 621... (F.C.A.). This usually creates a right to make representations or be consulted. It does not give a substantive right which would in effect compel the appeal division to take jurisdiction.
Here, the right to a determination is substantive. The facts here also show that if there were any procedural rights to be had, they would have been in the nature of providing the opportunity for a hearing or to make submissions. The applicant was asked by the Minister to make submissions and did so; therefore, any procedural requirements were satisfied. The determination was a finding that Parliament, by enacting s. 70(5) [of the Immigration Act] had terminated the IAD"s jurisdiction to deal with Ms. Gonsalves" appeal.
Estoppel, while not raised by the applicant, usually mirrors legitimate expectation and is also not available to Ms. Gonsalves in this case. According to the Federal Court of Appeal in Lidder, supra, there must be a representation of fact made which a reasonable person would have assumed was intended to be acted upon; that person must have acted on it and, as a consequence of such reliance, the person must have suffered a detriment. In this case, the February 2, 1996 telephone call on behalf of the registrar to the applicant"s counsel which stated that a determination would be made in the matter is not enough to create an estoppel. [some citations omitted]
I am satisfied that the foregoing applies here. The applicant seeks substantive rights, the right to a promotion, not procedural rights. The representation of fact allegedly made in Administrative Bulletin AM-940 as to a right to promotion is conditional. As such, I conclude, it is not enough to give rise to a legitimate expectation or to create an estoppel. Even if it were to do so, no substantive right would arise.
CONCLUSION
[23] For the foregoing reasons, considering the standard of review which I regard as appropriate on this application for judicial review, and on the basis of the arguments made before me, I reluctantly conclude that this application for judicial review must be dismissed. My reluctance derives from my concern that I simply do not share the conclusion of the Adjudicator that the decision of the RCMP, reflected in the policy endorsed by the Commissioner in May of 1975, was "clear and unambiguous and was communicated to all divisions." Further, I am not satisfied, as was the Adjudicator, that "[t]he resultant practice of the Force of not promoting to the rank of S/S/M was carried out openly, [and] not in a surreptitious manner..." . The Force never more than implicitly abolished the rank of S/S/M. It never formally carried out the abolition. It failed to reflect in Administrative Bulletin AM-940 this implicit abolition. Similarly, in the same Administrative Bulletin, it failed to reflect the implicit revocation of authority to COs to approve promotions to the rank of S/S/M. All of the foregoing, despite the fact that Administrative Bulletin AM-940 was originated by the Commissioner, albeit a different Commissioner than the one who approved the policy initiative of May, 1975.
COSTS
[24] Under the Federal Court Rules, 1998,4 in a matter such as this, costs would normally follow the event. Given the concerns that I have reflected in my conclusion above, I am satisfied that a different result regarding costs is here justified. I cannot but conclude that the applicant acted entirely reasonably in pursuing this matter to the level of this Court and was induced into so doing by the failure of the RCMP to clarify its policies and Administrative Bulletins, as they applied to the request by the applicant for promotion to the rank of S/S/M. In the result, I will order that the applicant is entitled to his out of pocket disbursements in respect of this application, which I fix at $500, notwithstanding that he has been unsuccessful before this Court.
_____________________________
Judge
Ottawa, Ontario
November 10, 1998
__________________2 Administrative Law, 3rd edition, Janisch, Emond Montgomery Publications Ltd. Toronto, 1989, p. 793.