BETWEEN:
and
COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
REASONS FOR ORDER
[1] This application is for judicial review of a decision of a Level II Adjudicator (the AAdjudicator@), dated January 16, 2004 (the ADecision@) in which he concluded that the grievance filed by the Applicant was defeated by the limitation period in paragraph 31(2)(a) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the ARCMP Act@). It reads :
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31. (2) A grievance under this Part must be presented (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; |
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31. (2) Un grief visé à la présente partie doit être présenté : 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; |
THE BACKGROUND
[2] Although this application does not deal with the merits of the Applicant=s grievance, an appreciation of the context is important to an understanding of the limitations issue.
[3] In 1996, the RCMP decided to consolidate certain security programs and transfer twenty positions from Regular to Civilian Members. This required a period of transition in which the Regular Members trained the new Civilian Members.
[4] At that time, the RCMP had a policy entitled AWorkforce Adjustment Directive@ (the ADirective@) which was attached to an RCMP Bulletin dated April 12, 1994 (the ABulletin@). It is not disputed that the Regular Members were promised two things. Firstly, that the Directive would apply and secondly that, pursuant to the Directive, they would be designated as AAffected Members@ and would receive a cash payment known as Workforce Adjustment Compensation (AWFAC@) on their retirement (the APromise@) and would not be obliged to accept reasonable offers of other positions.
[5] However, the Promise made in 1996 was only applied to three early retirees. In 1998, the Promise was replaced by an Undertaking found in a memo dated April 23, 1998 from Assistant Commissioner D.G. Cleveland who was the Director of Human Resources. It disclosed that the seventeen remaining members no longer had a guarantee of WFAC on retirement and were no longer presumed to be Affected Members.
[6] The Undertaking also said that a Workforce Adjustment situation did not necessarily exist and that its existence would be determined on a case by case basis depending on whether the services of the member were still required. This was, in my view, notice that a Regular Member would only become an Affected Member if there were no vacancies which the member was qualified to fill at AA@ Division Headquarters. However, the Applicant did not grieve this decision.
[7] A memorandum to file dated June 16, 2000 (the AMemorandum@) shows that, on that day, the Applicant met with his RCMP Career Counsellor and she told him that, once his position was terminated or
class=Section2 >[7]converted to a Civilian Member she would find him another position. This was, in my view, another clear indication that (i) his situation was not going to be treated as a Workforce Adjustment, (ii) he was not going to be designated as an Affected Member and (iii) he would not have the opportunity to turn down another position in favour of taking WFAC. However, the Memorandum acknowledges that he disputed his counsellor=s approach and felt he should be on Workforce Adjustment. He did not grieve her decision.
[8] About one month later, the Applicant sent a memorandum to the Director of Human Resources. It was dated July 20, 2000. It set out his concern about his Career Counsellor=s offer to find him another job. He clearly had not appreciated the fact that the Undertaking had broken all important aspects of the Promise. This explains his failure to grieve. However, his memorandum shows that by July 20, 2000, he understood the real issue which was that the Workforce Adjustment might not be applied in his case and he described this as a Acomplete turnaround@ and a Adramatic change@. He referred to the Promise and felt it should still govern. He asked for a Notice of Workforce Adjustment and WFAC on the termination of his position in April 2002.
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[9] The Applicant received a prompt reply dated July 27, 2000 (the AReply@) from Assistant Commissioner G.J. Loeppky who was the Chief Human Resources Officer. He essentially repeated the Undertaking. In my view, the Reply made it clear that the Promise would not be respected and that the question of whether the Applicant would be treated as being in a Workforce Adjustment situation would depend on whether there was another job. If there was another job, the letter made it clear that the Directive would not apply i.e. he would not received a Notice of Workforce Adjustment and would not receive WFAC. This was a clear decision from the proper authority that the Applicant would not necessarily be placed in a Workforce Adjustment situation. This decision was not grieved by the Applicant.
[10]
[11] On October 10, 2000, the Applicant sent a memorandum, not to Assistant Commissioner Loeppky, but to the officer in charge of staffing and personnel for AA@ Division. The memo ignored the Reply and tried to persuade the recipient to reinstate the Promise. The Applicant asked that he and four of his subordinates, who had not received notices of Workforce Adjustment, be provided with such notices. There was no immediate reply to this memo.
class=Section4 >[11]
[12] The next letter to the Applicant was sent ten months later on August 3, 2001 (the AFinal Letter@). The author was the Assistant Chief Human Resources Officer, who was Assistant Commissioner J.D.M. Séguin.
[13] In the letter, the Applicant was advised that the writer had reached two decisions that governed him. Firstly, a job opportunity has been identified and secondly, the original plan under which he would have received WFAC or Apackages@ (i.e. the Promise), was no longer available. These Adecisions@ followed a meeting with the Applicant and were presented in the context of bringing closure to his issue.
[14] I was initially troubled by the last sentence of the Final Letter which read, AIn conclusion, I regret that we cannot recommend the Workforce Adjustment action request by those Affected RCMP Members@. I was concerned that this letter could have been interpreted as a recommendation rather than as a decision. However, having read the Directive, I am satisfied that the Assistant Commissioner had the decision-making power and that, as the Applicant acknowledged, the Awe@ referred to his office. I have also concluded that when he said
class=Section5 >[14]recommend he meant Aendorse@ or Asupport@. I say this because his office had the decision-making power and accordingly, he could not, in fact, be making a recommendation.
THE GRIEVANCE
[15] The Applicant has laboured under a misapprehension. He thought that his immediate superior, T.G. Killam, Assistant Commissioner for Technical Operations, had the power to decide whether he was in a Workforce Adjustment situation. This, as the Directive shows, was not the case (see sections 4.19 and 5.2). Killam had no role until after a Workforce Adjustment situation was identified. Then, he was to decide who were Affected Members. However, the Applicant believed that he had never received a final decision and that he should not, in the spirit of Alternative Dispute Resolution and because of his supervisory position, take a confrontational stance and grieve all the decisions described above. However, he acknowledged that he could have grieved earlier than he did.
[16]
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[17] Instead, he waited until retirement and then submitted a grievance dated May 31, 2002 (the AGrievance@). It identified Assistant Commissioner Killam, Assistant Commissioner of Technical Operations as the member whose omission was the subject of the Grievance. It read as follows:
Since 1996, I was prohibited in applying for promotion or transfer by an agreement with my supervisor that I would be work force adjusted in April of 2002. It has been my intention to retire at the time of work force adjustnment [sic] as I have over thirty-five years service with the RCMP. Subsequent to 1996, I was reduced from OIC Branch status to OIC Section status and I did not submit parade documents or request for promotion in accordance with the aforementioned agreement. As of this date, I will retire from the RCMP without work force adjustment being offered to me and I have been penalized since 1996 in not being able to seek any promotional opportunity.
I would request work force adjustment compensation or equivalent monetary payment.
THE DECISION
[18] Based on the language in the Memorandum, the Reply and the Final Letter, the Adjudicator said:
Based on the above, I conclude that the Grievor should have Areasonably known@ that the terms of the 1998 agreement were not going to be honoured upon received the memorandum of 01-08-03. Statute requires that a grievance presentation be submitted within 30 days of this date. Insp. Feagan=s grievance was not received until 02-05-31.
I appreciate the comments of the Grievor with respect to his continued attempts to act in a Anon-adversarial@ manner during the transition phase. However, this does not, in my view, release him of his statutory responsibilities with respect to the grievance process. The Grievor, having failed to respect the time frames as outlined within paragraph 31.(2)(a) of the Act, has lost his right to grieve. This being the case, I, as Level II Adjudicator, do not have jurisdiction to review the substantive issues of the grievance.
class=Section7 >
[19] With regard to the first line of the above quotation, I think that what the Applicant should have reasonably have known was that it was the Promise (and not the 1998 agreement (the AUndertaking@)) that was not going to be honoured. However, this discrepancy is not material. The point is that there was not going to be a payment of WFAC.
THE ISSUES
[20] Against this background, the issue is whether the Adjudicator reasonably concluded that the Applicant=s grievance was out of time.
[21] The Applicant says that the Adjudicator erred in that:
_ He wrongly concluded that the Final Letter applied to the Applicant.
_ He failed to apply the facts from the Fisher Grievance in which the Final Letter was not conclusive.
DISCUSSION
[22] These submissions both depend on the Adjudicator=s decision in the Fisher grievance.
[23] Fisher and his follow grievors (the AFisher Group@) were the Applicant=s subordinates. By the fall of 2001, the Applicant had told them about the contents of his Final Letter.
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[24] They were concerned and held a meeting with Assistant Commissioner Killam on September 11, 2001. The Applicant was present and the group was advised that its members would not receive WFAC. However, another Acash out@ option was discussed. Thereafter, unknown to the Applicant, the Fisher Group demanded a written response from the Assistant Commissioner to their request to be designated as Affected Members and received his written decision denying them that status on January 16, 2002 (the ADenial@).
[25] On July 18, 2003, the Level II Adjudicator who made the Decision in this case ruled that the Fisher Group had grieved in time because their grievance was filed within thirty days of the Denial. In reaching this conclusion, he overturned the decision of a Level I Adjudicator who had concluded that they should have grieved within thirty days of the meeting of September 11, 2001.
[26] The Level II Adjudicator described the Fisher Group=s successful submission in the following terms:
The Grievors contend that the Level I Adjudicator erred in deciding that the effective date of the grievance was the 01-09-11 instead of the 02-01-17. They argued that neither the Level I Adjudicator nor anybody else can determine when the Grievors felt or should have felt aggrieved. Only they know when or by what event they felt aggrieved.
The Grievors point out that the meeting of the 01-09-11 was just one of many held to try to resolve this issue. The Grievors claim that prior to this meeting several of the Aaffected@ members encountered resistance from Staffing when their positions came due for application of WFAC; however, these issues were resolved internally by memoranda or face to face meetings and not the grievance process. That is why, following the meeting of 01-09-11, the Grievors felt that their situation would eventually be resolved internally as they had been in the past. The Grievors point out that during the meeting several options were presented by the D,TOD and no specific time limit was imposed on these options. Each member had to determine if the options were personally
class=Section9 >acceptable and if so, no grievable situation would develop for the specific member. No one felt aggrieved following the meeting of 01-09-11. It was only when the D,TOD officially rejected their request by way of memo dated 02-01-16 that they felt aggrieved.
[27] It is noteworthy that the Final Letter is not mentioned. That omission is explained by the fact that members of the Fisher Group did not receive copies of the Final Letter.
[28] In my view, the Final Letter justified the Adjudicator=s Decision in this case and distinguishes this case from that of the Fisher Group. As I noted above, although not perfect, it was a clearly worded written decision which was made by the right decision maker. I have therefore concluded that it was open to the Adjudicator to find that the Final Letter created a situation in which the Applicant should have reasonably known that a decision had been reached on his request for WFAC.
[29] In dealing with the issue of whether the Decision was open to the Adjudicator, I have had regard for the decision of my colleague Justice Layden-Stevenson in Horton v. Canada (Attorney General), [2004] F.C.J. No. 969, [2004] FC 793 in which she dealt with the review of a decision of an RCMP Level II adjudicator. There she said:
26. In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Mr. Justice Iacobucci, for a unanimous court, stated at paragraphs 46, 47 and 55:
46. Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did. [Y]
47. The standard of reasonableness basically involves asking Aafter a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?@ Y Deference is built into the
class=Section10 >question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter. [Y]
55. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.
[30] The Applicant also said that the Final Letter should not have triggered the limitation period because it was not a decision on the same topic as his grievance. The Final Letter, he said, indicated that he would not get WFAC because he would be offered another position. He says that offering him another position was not dispositive on his entitlement to WFAC because, as an Affected Member, he could decline the position and have WFAC. The difficulty is that he was never made an Affected Member by Assistant Commissioner Killam and the Assistant Commissioner could not confer that designation unless a Workforce Adjustment situation was identified. Since the Final Letter made it clear that the latter would not happen, no decision to make him an Affected Member could be made. Accordingly, the omission which is the subject of the grievance does not arise from a different decision B there was none to be made. Everything flowed from the Final Letter.
CONCLUSION
[31] For all these reasons, an order will be made dismissing this application.
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JUDGE
Ottawa, Ontario
September 1, 2005
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: BRYAN JAMES FEAGAN v. COMMISSIONER OF
THE ROYAL CANADIAN MOUNTED POLICE
DATE OF HEARING: March 31, 2005
REASONS FOR ORDER
DATED: September 1, 2005
APPEARANCES:
Mr. Bryan James Feagan on his own behalf
Mr. Jan Brongers for Respondent
SOLICITORS OF RECORD:
Westbank, BC on his own behalf
John H. Sims, QC for Respondent
Deputy Attorney General of Canada
Ottawa, ON