Date: 20040305
Docket: T-656-03
Citation: 2004 FC 320
Vancouver, British Columbia, Friday, the 5th day of March, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ROBERT GEORGE SMITH
Corporal, Regimental No. 32023
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Corporal Robert Smith has been a member of the Royal Canadian Mounted Police ("RCMP") for 28 years. He wants to be a CPIC (Canadian Police Information Centre) Field Operations Auditor ("CPIC Auditor") in Vancouver. With this position comes a promotion to the rank of Sergeant. On June 30, 2000, Corporal Smith decided to post a notice on the Human Resources Management Information System ("HRMIS") indicating his interest in such a position. A CPIC position became available and Corporal Smith's interest was identified in a search. He was, however, eliminated from the competition without an interview or contact, allegedly because it was determined that he did not have the necessary experience.
[2] On December 5, 2001, Corporal Smith decided to file a grievance known as a request for intervention ("RFI") pursuant to Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements) SOR/2000-141 ("CSO"). By letter dated February 12, 2003, J.F. Michel Bachand, Insp. (the "Adjudicator") denied his request. Corporal Smith seeks judicial review of that decision. Specifically, he asks that this Court quash the decision of the Adjudicator and recommend that he be promoted to the rank of Sergeant.
Issues
[3] The issues raised by this application are as follows:
1. Was Corporal Smith's application for judicial review commenced out of time?
2. Did the Adjudicator commit a reviewable error?
Analysis
Issue #1: Was Corporal Smith's application for judicial review commenced out of time?
[4] The Respondent submits that Corporal Smith did not apply to the Court for an extension of time prior to filing the judicial review on April 24, 2003. Since the decision of the Adjudicator was made on February 12, 2003, his application for judicial review should be dismissed as it is out of time (Joudrey v. Canadian Atlantic Railway, a division of Canadian Pacific Ltd., [1995] F.C.J. No. 1159 (T.D.) (QL); Canada (Attorney General) v. Purcell, [1994] F.C.J. No. 1649 (T.D.) (QL)).
[5] Section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 states:
|
An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated ... to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the expiration of those 30 days. |
|
Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication ... à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. |
|
|
|
|
[6] Although I agree with the Respondent that the decision under review in these proceedings is that of the Adjudicator, dated February 12, 2003, and that the Applicant's filing was late, I note that there are unusual circumstances in this case. Accordingly, I am prepared to exercise my discretion in favour of Corporal Smith and consider the application on its merits.
Standard of Review
[7] The Adjudicator's function is to consider disputes in the specialized area of the RCMP process for promotions and job requirements. This Court held that in the context of the statutory grievance process, an Adjudicator is entitled to substantial deference in respect of fact finding in the technical area of RCMP promotions (Brennan v. Canada (Royal Canadian Mounted Police), [1998] F.C.J. No. 1629 at para. 12 (T.D.) (QL)). While in Brennan, the standard was held to be one of reasonableness simpliciter, in Shephard v. Canada (Royal Canadian Mounted Police), [2003] F.C.J. No. 1638 at para. 36 (F.C.) (QL), the standard of review was found to be patent unreasonableness. I would agree that the decision of the Adjudicator should be accorded great deference.
[8] However, on any standard of review, for the reasons that follow, I conclude that the decision of the Adjudicator should not stand.
Issue #2: Did the Adjudicator commit a reviewable error?
[9] The core document in this dispute is Job Code 575, which stated that candidates must:
...[have] some experience in CPIC field operations or in CPIC services.
The Adjudicator's conclusion on this Code was that:
The job code is quite clear that the candidate must possess one or more years of work experience posted specifically to one of the identified CPIC units.
There was no analysis by the Adjudicator on how he reached this conclusion.
[10] Section 18.1(4)(d) of the Federal Courts Act permits this Court to grant relief upon judicial review where a decision or order is based on an erroneous finding of fact that is made in a perverse or capricious manner or without regard for the material before it. In his decision, the Adjudicator made no reference whatsoever to any of the documentary evidence that Corporal Smith submitted in support of his interpretation of Job Code 575. The Adjudicator states in his decision that he has reviewed the submissions of the parties and the relevant policy, but nothing in the decision speaks directly to the main submissions of Corporal Smith on this issue of primary importance. Although the Adjudicator has no obligation to refer to each Job Code or argument submitted by the Applicant, it is extremely disconcerting that absolutely no reference is made to the Applicant's argument concerning the interpretation of Job Code 575. For this reason, I conclude that the Adjudicator's decision was perverse and capricious, and that material evidence was ignored.
[11] Further, Corporal Smith submits that he was denied procedural fairness, as the Adjudicator provided no reasons for his interpretation of Job Code 575. Again, I agree. Section 24 of the CSO states:
|
The adjudicator shall give their decisions in writing, with reasons, and shall provide a copy of their decisions to the complainant and respondent. |
|
L'arbitre rend sa décision et les motifs de celle-ci par écrit et en remet une copie au demandeur et au défendeur. |
|
|
|
|
[12] I have carefully reviewed the Adjudicator's decision and cannot find any reasons. The essence of the Adjudicator's decision is that it is "quite clear" from the wording of Job Code 575 that Staffing Central's interpretation of the job requirements is correct and not those of Corporal Smith. To say that something is clear is not a reason. This conclusion that Job Code 575 is "quite clear", without further explanation, is simply not sufficient. There is no reference in Job Code 575 to one or more years posted specifically to one of the identified units. What is an "identified unit"? How did the Adjudicator interpret "some experience in CPIC field operations" as "one or more years experience posted specifically to one of the identified units"? The Adjudicator was obligated to explain why he preferred Central Staffing's interpretation of Job Code 575 over the interpretation provided by Corporal Smith. He did not.
[13] Indeed, as submitted by the Respondent, the Adjudicator possesses certain expertise in interpreting the meaning of terminology used within the RCMP. It was precisely the difference in proposed interpretations of Job Code 575 that the decision of the Adjudicator was intended to resolve and explain. This was not done.
[14] The Respondent submitted several explanations that would support the Adjudicator's understanding of Job Code 575. The Respondent was unable, however, to point to any reason that the Adjudicator provided for his decision. In respect of assessing procedural fairness, it is not enough for the Respondent to graft its own reasons onto the decision of an Adjudicator in an attempt to demonstrate that the Adjudicator did not breach the principles of natural justice. The Adjudicator was obliged, pursuant to s. 24 of the CSO to provide his own reasons for his decision. He failed to do so. This constitutes a reviewable error.
Conclusion
[15] For these reasons, the decision of the Adjudicator should not be allowed to stand. Corporal Smith asks that I quash the decision of the Adjudicator with recommendations that he be promoted to the rank of Sergeant retroactive to October 2001. While I can and will quash the decision, it is not possible or appropriate for me either to recommend promotion or to speculate as to how Job Code 575 ought to have been interpreted by the Adjudicator. Accordingly, I will quash the decision and require that the matter be sent back to a different adjudicator for redetermination.
ORDER
THIS COURT ORDERS THAT:
1. The decision of the Adjudicator dated February 12, 2003, is quashed and the matter returned for redetermination by a different adjudicator.
2. Costs are awarded to Corporal Smith.
(Sgd.) "Judith A. Snider"Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-656-03
STYLE OF CAUSE: Robert George Smith, Corporal, Regimental
No. 32023 v. the Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 3, 2004
REASONS FOR ORDER: The Honourable Madam Justice Snider
DATED: March 5, 2004
APPEARANCES:
Corporal, Robert George Smith FOR THE APPLICANT
Mr. Ken Manning FOR THE RESPONDENT
SOLICITORS OF RECORD:
Corporal, Robert George Smith FOR THE APPLICANT
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada