Docket: T-2026-04
Ottawa, Ontario, the 29th day of June 2005
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision on October 5, 2004 by the Royal Canadian Mounted Police (RCMP) Commissioner acting as a level II adjudicator, who dismissed the applicant’s grievance and upheld a decision by a classification board.
STATEMENT OF FACTS
[2] On November 25, 1994, the commanding officer of RCMP Division A recommended that the applicant’s position classification be revised upward from superintendent to chief superintendent.
[3] On December 14, 1994, the officer responsible for the pay and classification branch informed the applicant that, following an assessment made by a classification committee, his position would not be reclassified.
[4] The applicant was not satisfied with this decision and filed a grievance. This grievance was dismissed by the level I adjudicator and by the level II adjudicator.
[5] The decision of the level II adjudicator resulted in an application for judicial review in this Court by the applicant, and on January 22, 2001, Rouleau J. allowed the application for judicial review.
[6] In his decision, he found that the classification committee had misapplied the profile method of the Hay plan and its Management Category: Position Evaluation Plan by limiting its adequate relativity study to a single position within the RCMP, that of the officer responsible for financial services and supplies in Division E, whereas there were other comparable positions. Therefore, he quashed the Commissioner’s decision and directed that the RCMP re-evaluate the applicant’s position classification.
[7] Following this decision, a new classification committee was appointed.
[8] In addition to comparing the applicant’s position with the Hay system benchmark positions, this new committee undertook to compare it with all the other quartermaster positions in all other divisions. Among those positions, there was that of the officer responsible for financial services and supplies in Division E, classified as a chief superintendent. There was also the position of quartermaster in Division K, classified at the superintendent level.
[9] Finally, there were other quartermaster positions in other divisions classified at the inspector level.
[10] For the positions at the inspector level, the classification committee compared them with each other and came to the conclusion that the Divisions C and O positions were the closest to the applicant’s position (the position identified by the classification committee as “PC”).
[11] The classification committee considered that the applicant’s position was higher than the inspector positions and lower than the chief superintendent’s postion.
[12] On April 18, 2001, the classification committee awarded a rating of 1,192 points to the applicant’s position, which was below the point range of the chief superintendent position, which went from 1,262 to 1,719 points.
[13] On June 7, 2001, the applicant, not satisfied with this decision, filed a grievance. On February 17, 2003, the level I adjudicator ruled that the grievance was inadmissible since the applicant had retired when he filed his second grievance, and as such he could no longer be regarded as a member of the RCMP and as having standing to act pursuant to subsection 31(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act).
[14] The applicant appealed the decision by level I adjudicator to the RCMP Commissioner, the level II adjudicator.
[15] Before the level II adjudicator rendered his decision, the applicant’s grievance was referred to the RCMP External Review Committee (ERC) pursuant to subsection 33(1) of the Act for opinion and recommendation. The ERC considered the applicant’s grievance pursuant to section 34 of the Act.
[16] On May 3, 2004, the ERC recommended that the applicant’s grievance be allowed, finding in its report that, in view of the explanations given by the second committee in support of its evaluation, it did not trust that the committee had fully understood the essential skills required for the applicant’s position and how they differed from those required for other RCMP positions which were classified at the same or a higher level.
[17] On October 4, 2004, the level II adjudicator decided to reject the findings and recommendations of the ERC and to dismiss the grievance.
PARTIES’ ARGUMENTS
[18] The applicant maintained that the level II adjudicator made an error of law when he decided to render a decision on the merits of the grievance. Having held that the applicant had standing to act and therefore that the grievance was admissible, he should have referred the grievance back to the level I adjudicator. The level II adjudicator thus deprived the applicant of an opportunity of appealing the decision rendered at the first level, as provided for in paragraph 31(2)(b) of the Act.
[19] The applicant further argued that the level II adjudicator made an error of law in rejecting the recommendations contained in the ERC report and finding that the classification committee’s decision was correct.
[20] Finally, he maintained that the prior involvement of the level II adjudicator in considering the applicant’s first grievance could only give rise to a reasonable apprehension in the mind of any well-informed person of a biased judgment or evaluation by him in reviewing the second grievance.
[21] For his part, the respondent argued that the level II adjudicator made no error of law in not referring the grievance to the level I adjudicator. The Commissioner’s Standing Orders (Grievances), 1990, SOR/90-117, setting out the procedure applicable to grievances, are silent as to the procedure to be followed in this particular situation. Yet, the RCMP Commissioner has complete control over his own procedure and it was not in the applicant’s interests that the grievance be referred back to the level I adjudicator after so many years.
[22] Further, the level II adjudicator was not bound to prefer the ERC’s opinion to that of the classification committee, which had expertise in the subject-matter. In addition, the level II adjudicator fully explained the reasons why he chose not to follow the ERC’s recommendations and findings.
[23] The only issues which the level II adjudicator had to address were whether the classification procedure had been followed, and in particular, whether the classification committee had compared the applicant’s position with similar positions inside and outside the RCMP, and this was done by the classification committee. There is nothing in the evidence to suggest that the classification committee’s conclusion was arbitrary or without foundation. Therefore, the level II adjudicator made no patently unreasonable error of law or fact in approving the classification committee’s opinion.
[24] Finally, as to the reasonable apprehension of bias, legally, the applicant’s grievance could not be heard by anyone but the Commissioner. The applicant stated no facts indicating that the RCMP Commissioner was biased in any way against the applicant or that he acted toward him in bad faith. Further, if the applicant had a reasonable apprehension of bias, he should have raised it at the first opportunity; he did not do so.
ISSUES
A. Did the level II adjudicator commit a breach of procedural fairness by not referring the applicant’s grievance back to the level I adjudicator?
B. Did the level II adjudicator err in finding that the classification committee’s decision was correct?
C. Did the prior involvement of the level II adjudicator in the review of the applicant’s first grievance give rise to a reasonable apprehension of bias?
ANALYSIS
A. Did the level II adjudicator commit a breach of procedural fairness by not referring the applicant’s grievance back to the level I adjudicator?
[25] This issue does not relate to the decision itself, but to the way in which it was made. The issue is essentially one of procedural fairness, which does not entail a pragmatic and functional analysis and does not require that the Court determine the applicable standard of judicial review. In order to decide whether an administrative tribunal observed procedural fairness, the procedures and guarantees required in a particular case have to be established: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, paragraph 74; Public Service Alliance of Canada v. Canada (Attorney General of Canada), [2005] F.C.J. No. 548 (QL).
[26] The assessment of procedural fairness involves the weighing of certain factors, such as the nature of the legislation and the choice of procedures made by the administrative entity, the importance of the decision for the party concerned and his legitimate expectations. (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[27] Unlike the level I adjudicator, the level II adjudicator ruled that the applicant had standing to act and that he could make a decision on the merits of the grievance.
[28] The applicant essentially objected that, by not referring the grievance to the level I adjudicator for decision on the merits, contrary to paragraph 31(2)(b) of the Act, the level II adjudicator deprived him of an opportunity to appeal the decision at the first level.
[29] Paragraphs (a) and (b) of subsection 31(2) of the Act provide that:
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31 (2) A grievance under this Part must be presented
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31 (2) Un grief visé à la présente partie doit être présenté :
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(a) at the initial level in the grievance process, within thirty days after the day on which the aggrieved member knew or reasonably ought to have known of the decision, act or omission giving rise to the grievance; and
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a) au premier niveau de la procédure applicable aux griefs, dans les trente jours suivant celui où le membre qui a subi un préjudice a connu ou aurait normalement dû connaître la décision, l’acte ou l’omission donnant lieu au grief;
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(b) at the second and any succeeding level in the grievance process, within fourteen days after the day the aggrieved member is served with the decision of the immediately preceding level in respect of the grievance. |
b) à tous les autres niveaux de la procédure applicable aux griefs, dans les quatorze jours suivant la signification au membre de la décision relative au grief rendue par le niveau inférieur immédiat. |
[30] Section 18 of the Commissioner’s Standing Orders (Grievances), 1990, SOR/90-117, which govern the procedure for the applicant’s grievance, provided as follows:
18. (1) Where a member presenting a grievance at level II presents new evidence that could not reasonably have been known to the member at the time the grievance was presented at level I, the consideration of the grievance at level II shall be stayed and the grievance shall be referred to level I for reconsideration and decision.
(2) Where a grievance is referred to level I for reconsideration in accordance with subsection (1), the member who constitutes level I shall reconsider the grievance and confirm, amend or rescind the level I decision.
(3) Where a level I decision is confirmed, amended or rescinded in accordance with subsection (2), the grievance shall be considered at level II.
[31] Accordingly, such is the procedure to be followed where a member filing a grievance at level II presents new evidence that could not reasonably have been known to the member at the time the grievance was presented at level I. In such a case, the grievance is referred back to level I before being examined at level II; however, that is not the situation in the case at bar, since there was no new evidence. Accordingly, the grievance procedure is silent as to the procedure that is to be followed. It is not clear whether a grievance referred back to level I would automatically be considered at level II.
[32] On the one hand, it is possible the applicant had a legitimate expectation he would have an opportunity to be heard at the first level. On the other hand, the Commissioner has complete control over his procedure when the standing orders are silent. In view of the history of this grievance, procedural fairness required that, since so many years had elapsed, a decision on the merits be made as promptly as possible.
[33] It may be that the respondent’s decision not to refer the grievance back to level I could have caused the applicant harm, in that he would have twice been deprived of an opportunity of making his case. In this regard, however, it is worth recalling that the level I adjudicator does not have more latitude than the level II adjudicator in considering the classification committee’s opinion, or indeed than the ERC: the latter can only determine if an error of fact or procedure has occurred. Therefore, in the case at bar, in view of the fact that the level II adjudicator was fully familiar with all the factual considerations relating to the applicant’s grievance, the contention that the applicant suffered significant harm is not very persuasive.
[34] In addition, it is worth noting that the new Commissioner’s Standing Orders (Grievances), SOR/2003-181, provide in section 18 that a grievance which has been referred to the ERC does not have to be referred back to the level I adjudicator:
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18. (1) Level II shall return a grievance to level I for reconsideration if
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18. (1) Le niveau II renvoie le grief au niveau I pour une nouvelle étude dans les cas suivants :
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(a) the level receives evidence that could have resulted in a different decision by level I if the evidence had been presented at that level; or
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a) il reçoit un nouvel élément de preuve qui aurait pu donner lieu à une décision différente au niveau I s=il lui avait été présenté;
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(b) level I erred in determining that it did not have jurisdiction over the grievance.
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b) le niveau I a commis une erreur en jugeant qu=il n=avait pas compétence à l=égard du grief.
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(2) Subsection (1) does not apply to grievances that are referred to the Committee under section 33 of the Act. |
(2) Le paragraphe (1) ne s=applique pas aux griefs qui sont renvoyés au Comité aux termes de l=article 33 de la Loi. |
[35] Although under the transitional provisions of the new Standing Orders the applicant’s grievance continued to be governed by the old Standing Orders, the procedure followed by the level II adjudicator was consistent with his new Standing Orders.
[36] I am satisfied that the decision of the level II adjudicator was consistent with procedural fairness in this particular case.
B. Did the level II adjudicator err in finding that the classification committee’s decision was correct?
[37] In the case at bar, the level II adjudicator decided not to follow the ERC’s recommendations because he was of the view that the classification procedure had been complied with and the classification committee’s decision was correct.
[38] The applicant argued that he made an error of law by rejecting the recommendations contained in the ERC’s report and accepting the classification committee’s findings concerning the applicant’s position, and by regarding the relativity study as sufficient.
[39] This issue goes to the merits of the Commissioner’s decision, which entails the pragmatic and functional analysis developed by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[40] Four factors must be considered to determine the applicable standard of review: “the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question – law, fact, or mixed law and fact” – Dr Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 26.
[41] Section 32 of the Act contains a partial privative clause, which favours a greater deference to the Commissioner’s decision:
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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 Courts Act, is not subject to appeal to or review by any court.
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32. (1) Le commissaire constitue le dernier niveau de la procédure applicable aux griefs; sa décision est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n’est pas susceptible d’appel ou de révision en justice.
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(2) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a grievance referred to the Committee under section 33, but if the Commissioner does not so act, the Commissioner shall include in the decision on the disposition of the grievance the reasons for not so acting. |
(2) Le commissaire n’est pas lié par les conclusions ou les recommandations contenues dans un rapport portant sur un grief renvoyé devant le Comité conformément à l’article 33; s’il choisit de s’en écarter, il doit toutefois motiver son choix dans sa décision. |
[42] The Commissioner has greater expertise than the Court in a technical area such as that of promotion or position classification in a specialized agency such as the RCMP.
[43] In Brennan v. Canada (Royal Canadian Mounted Police), [1998] F.C.J. No. 1629 (F.C.) (QL), at paragraph 12, Gibson J. held 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”.
[44] Further, under section 16 of the Commissioner’s Standing Orders (Grievances), 1990,[1] when a grievance is filed regarding promotion or position classification, his function is limited to considering evidence of errors of fact or procedure, which does not involve any question of law. When the finding which gives rise to review is purely factual in nature, greater deference must be shown with respect to the tribunal’s decision.
[45] Therefore, in light of the factors listed above, I am of the opinion that the applicable standard of review is that of the patently unreasonable decision.
[46] In the case at bar, I am satisfied that the decision by the level II adjudicator not to follow the ERC’s recommendations and to approve the classification committee’s opinion was not patently unreasonable, for the following reasons.
[47] Under subsection 32(2) of the Act, the Commissioner was not bound by the ERC’s conclusions and recommendations if he chose to disregard them: however, he had to give grounds for his choice in his decision. The level II adjudicator explained the reasons why he disregarded the recommendations.
[48] To summarize:
● the second evaluation was the result of an objective review of the value of the work of a position by a committee of analysts with experience in classification;
● he had no hesitation in acknowledging the expertise of the classification committee as compared with the ERC, which had no special expertise in the area;
● he found that managing police service contracts with the Government of British Columbia and the municipalities in that province was an important component of the work of the Division E.
[49] The level II adjudicator was not bound to accept the ERC’s opinion, in which he essentially criticized the decision of the classification committee.
[50] The ERC’s report is summary in nature, and he did not examine the evidence of errors of fact or procedure in assessing the applicant’s position classification, which it was limited to doing pursuant to paragraph 16(b) of the Commissioner’s Standing Orders (Grievances), 1990.
In my opinion, the ERC went beyond its proper function by substituting its opinion for that of the classification committee.
[51] I repeat that, in a grievance dealing with classification, the role of the level II adjudicator, like that of the ERC, was limited to the examination of the evidence of errors of fact or procedure. Once he found that there had been compliance, the adjudicator had no choice but to dismiss the applicant’s grievance.
[52] Unlike the comparative analysis conducted by the preceding classification committee, the analysis conducted by the second classification committee was much more thorough. In addition to the benchmark positions in the Hay system, the new committee compared the applicant’s position to other managerial positions in other divisions.
[53] Essentially, the applicant objected that the adjudicator had not dealt with the qualitative problem raised by the ERC, namely that it would have been useful for the committee to include the position of officer responsible for administration and personnel in Division A in the comparative analysis and explain why he was reclassified.
[54] Now, the selection of the positions to be included in a relativity study is a matter for the expertise of the classification committee. It is possible that some other comparison would have been helpful. However, the relativity study contained many comparisons with other positions having a persuasive similarity to the applicant’s position. The quality of the study, therefore, cannot be questioned simply because one position was not included in the comparison. Accordingly, the adjudicator correctly relied on the committee’s expertise on this point. The classification committee made no error of procedure and there is no evidence to show that the process of classifying the applicant’s position was arbitrary or without foundation.
[55] In short, in view of the expertise of the classification committee, the adjudicator determined whether the classification procedure had been complied with and assessed the reasoning of the classification committee (Fortin v. Canada (Royal Canadian Mounted Police), [1994] F.C.J. No. 783 (QL)).
[56] Being satisfied that there had been compliance, he dismissed the applicant’s grievance.
[57] I cannot accept that, in approving the classification committee’s opinion, the decision of the level II adjudicator was “clearly irrational” or “evidently not in accordance with reason”: Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941.
[58] Therefore, I am of the view that this decision is not patently unreasonable.
C. Did the prior involvement of the level II adjudicator in the review of the applicant’s first grievance give rise to a reasonable apprehension of bias?
[59] Under subsection 32(1) of the Act, the Commissioner is the final level of the governing procedure, and under subsection 5(2) of the Act he may not delegate his responsibilities as a level II adjudicator to anyone else if the grievance is part of the class of grievances which must be referred to the ERC. When Parliament’s intention is clear, it should not be assumed that the legislative scheme is unfair (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781). Further, in this case, there is none of the overlapping of functions which gave rise to a finding of reasonable apprehension of bias in 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919.
[60] To summarize, the mere fact that it was the same commissioner who made a decision does not as such give rise to a reasonable apprehension of bias, especially when his role was solely to examine the evidence of errors of fact or procedure and to give grounds why the ERC’s recommendations were to be disregarded.
[61] The applicant set out no facts establishing that the Commissioner was biased in any way or had acted toward him with bad faith.
[62] For these reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
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“Danièle Tremblay-Lamer” |
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JUDGE |
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2026-04
STYLE OF CAUSE: Daniel Girouard v. The Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 20, 2005
REASONS FOR ORDER AND ORDER BY: Madam Justice Danièle Tremblay-Lamer
APPEARANCES:
Marie-Christine Girouard FOR THE APPLICANT
Paul Deschênes FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pg. Mercantil 2-4, A-3-1 FOR THE APPLICANT
Barcelona Espana
E-08003
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
[1] 16. A board and the member who constitutes level I or level II shall be limited to a consideration as to whether there is evidence of
(a) in the case of a grievance in respect of a performance evaluation, bias, prejudice or an error of fact or process; and
(b) in the case of a grievance in respect of a promotion or classification of a position, an error of fact or process.