Vancouver, British Columbia, December 12, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
and
DEPARTMENT OF JUSTICE
REASONS FOR ORDER AND ORDER
[1] In the present Application for judicial review, the Applicant challenges a decision of the Adjudicator of the “E” Division of the Royal Canadian Mounted Police (RCMP), which found no error in a decision rendered by the Superintendent OIC Human Resources “E” Division of the RCMP (Superintendent) cancelling his promotion and transfer previously granted. The issue for determination is whether the decision of the Adjudicator is made in reviewable error. For the reasons that follow, I find that it is not.
I. Factual background
[2] On June 5, 2002, the Applicant, a Constable at the Williams Lake Detachment, North District “E” Division was selected as the successful candidate for promotion to the position of Corporal at the North Vancouver Detachment. The proposed implementation date was to be September 13, 2002, but because the Applicant experienced problems in selling his home in Williams Lake, he was given a one-year extension to do so. By June 6, 2003, the Applicant still had not sold his home and, as a result, he was advised by a Senior Human Resources Advisor that, due to operational necessity, the North Vancouver position needed to be filled, and that once he completed the sale of his home he would be placed into another Corporal position in the Lower Mainland. At this point in time, the Advisor did not know that, on July 4, 2002, an incident came to light that resulted in the Applicant admitting to having been involved in sexual relations with a 17 year-old female while he was on duty, and, consequently, an internal RCMP investigation was underway.
[3] After the internal investigation was completed, and after considering the circumstances, on June 9, 2003, the Superintendent, acting under the authority of the RCMP Administrative Manual CMM 4, and having determined that the Applicant would not be given any further consideration for promotion, cancelled the Applicant’s promotion and transfer.
[4] The Applicant filed a grievance to contest the decision to cancel his promotion and transfer, but was advised by the Office for the Coordination of Grievances that, on the authority of the RCMP Administrative Manual, because his grievance pertained to a promotion, it would be diverted from the grievance process to the dispute resolution process which governs promotion disputes. The Applicant complied with this decision by signing and submitting a “Request for Intervention”, the outcome of which is the decision under review. However, even though he took this action, the Applicant subsequently submitted two other grievances to challenge the decision to divert him to the dispute resolution process from the grievance process. These grievances were subsequently dismissed.
II. The jurisdictional issue for determination
[5] Throughout, the Applicant has strenuously argued that he should not have been diverted from the grievance to the dispute resolution process. This argument is based on his contention that, when he was selected as the successful candidate for the North Vancouver position on June 5, 2002, he became “promoted”, and, thus, since he was no longer a candidate for promotion, was not subject to the Superintendent’s authority to cancel his promotion and transfer.
[6] In the dispute resolution process, to which the Applicant agreed, the Adjudicator reviewed the Superintendent’s decision for error and found none. On the “promotion” issue, the Adjudicator made the following finding:
The Complainant was not promoted after succeeding in the competition for the North Vancouver position because he did not consummate the transaction by filling the position offered. He was unable to move because he could not sell his residence in Williams Lake. He was not paid as a Corporal and continued his duties at Williams Lake in the rank of Constable.
While there were assurances that when he sold his home he would be offered a position in the Lower Mainland District this offer was made before the complaint of Code of Conduct violation / Criminal action came to the attention of the [Superintendent]. The internal investigation arose of its own accord and as a result of the activities of the Complainant. By chance it came to the attention of the [Superintendent] before any other position had been offered to the Complainant. I find that before June 9, 2003, the transfer had not taken effect and the promotion was still in abeyance.
(Adjudicator’s Decision: p.10)
[7] The question is: Is the Adjudicator correct in the determination that the Superintendent had jurisdiction to cancel the Applicant’s promotion and transfer?
[8] Arguing that the question should be answered in the affirmative, Counsel for the Respondent details that, based on the RCMP’s operational procedures, a number of factors are required to be in place before a promotion is complete, and none were in place in the Applicant’s case:
In addition, CMM 4.F.6.a.1 calls on a member to complete an A-22A form before a promotion is complete. CMM 4.F.6.e sets out the steps for Staffing and Personnel Officers (S&PO) in circumstances of an unconditional promotion and require the S&PO to “ensure the member physically occupies a position permitting promotion and meets the necessary requirements outlined” in other sections. The S&PO must also “prepare a fax for the approval of the OIC Staffing Br./A&PO [Administration and Personnel Officer] listing the members who are in position and are promotable.” The OIC S&P Br./A&PO must then review and approve the fax according to CMM 4.F.6.f.1.
[Appendix “A”, Tab “C”, p.151-152]
CMM 4.F.7.a also provides support for the Adjudicator’s conclusion that the [Superintendent] has the final decision with regard to Cst. Rook’s promotion. This section says that the effective date of a promotion will be:
1. the effective date of a classification upgrading provided the member occupies the position on a permanent basis and is authorized by the transfer/promotion process to remain in that position;
2. the date the member departs the old position as indicated on form A-22A. [emphasis added]
[Appendix “A”, Tab “C”, page 153]
(Memorandum of Fact and Law of the Respondent, March 16, 2006, paras. 38 and 39)
I find that Counsel for the Respondent’s argument is unassailable, and, therefore, find that the Adjudicator is correct in the determination that the Superintendent had jurisdiction to cancel the Applicant’s promotion and transfer.
ORDER
Accordingly, this Application is dismissed.
No costs are awarded.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-878-05
STYLE OF CAUSE: ANDREW JOHN ROOK v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 11, 2006
REASONS FOR ORDER AND ORDER: CAMPBELL J.
APPEARANCES:
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Mr. Andrew Rook |
FOR THE APPLICANT (self-represented)
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Mr. David Kwan
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SOLICITORS OF RECORD:
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n/a
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Mr. John H. Sims, Q.C. Department of Justice |