BETWEEN:
and
THE ROYAL CANADIAN MOUNTED POLICE
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of a Royal Canadian Mounted Police (RCMP) adjudicator under the Commissioner’s Standing Orders (Dispute Resolution Process for Promotions and Job Requirements) (the CSO) which dismissed the applicant’s grievance that the promotion process he was involved with was prejudiced.
[2] Walter Smiley, the applicant, has been a police officer since 1979 with the Hantsport Municipal Police Force. In 1994, he was promoted to the rank of sergeant.
[3] of 2001, the Hantsport Municipal Police Force was absorbed into the RCMP. The document entitled Protocol for the Amalgamation of Other Police Forces into the RCMP (the Amalgamation Protocol) states that an officer who previously held a non-commissioned officer (NCO) rank will, after one year of satisfactory service, be allowed to participate in the promotional process up to and including the sergeant rank. The Amalgamation Protocol also states that if the officer does not succeed in getting a promotion the officer will be required to compete in future promotional cycles at the corporal rank.
[4] According to the applicant, the afternoon before he was to write the sergeant’s exam he received a call at home from a secretary with staffing advising him not to write the exam as a management decision had been made that the offer to allow him to keep the rank of sergeant upon successful completion of the exam was not going to be honoured. The applicant claims that he found out that a few officers had brought forth complaints that an absorbed officer was allowed to write the sergeant’s exam. Upon learning about this, the applicant called the RCMP regional head office in Halifax. The head office informed him that no absorbed officer would be allowed to write a ranked RCMP exam.
[5] After the applicant submitted a grievance on this matter, he was allowed to write the sergeant’s exam on the condition that his grievance be withdrawn. The applicant decided to withdraw his grievance and he wrote and passed the sergeant’s exam in February 2003. Passing the sergeant exam does not automatically mean that the member is promoted to the rank of sergeant; the member must successfully compete for a position with sergeant rank in order to obtain the rank of sergeant.
[6] The applicant felt that despite his successful completion of the sergeant exam that he was not being considered for all the available sergeant positions for which he was eligible. He submitted a grievance on this matter.
[7] In late June 2004, the applicant was informed that he was being considered retroactively for promotional opportunity 2001 HRM 068, NCO i/c Springdale Detachment, “B” Division – Sergeant (the Springdale position). The promotion selection process in the RCMP involves comparing candidates and ranking them against each other in order to determine which candidate is the strongest. There were only two candidates competing for the Springdale position, the applicant and the incumbent, Sgt. MacKay. On September 27, 2004, a three-person selection committee (the Selection Committee) determined that the incumbent, Sgt. P. J. MacKay would receive the promotion.
[8] The applicant filed a request for intervention dated October 19, 2004. A request for intervention is an internal administrative process whereby an RCMP member grieves a decision made during the selection process concerning that member’s possible promotion.
[9] On May 17, 2005, the applicant’s request for intervention was presented to Inspector D. G. Wojcik (the “Adjudicator”). He determined that the applicant had not proven that he had been “prejudiced by a decision, act or omission in selection process”. It is this decision which is under review.
[10] The applicant essentially submits:
1) that the Selection Committee was biased as evidenced from the fact that it took only 12 minutes to conduct the promotion competition and evidenced by the facts surrounding the applicant’s absorption into the RCMP, including his difficulties in getting permission to write the sergeant exam; and
2) that the Career Development and Resourcing Department (CDR) did not consider him for all the promotional opportunities for which he was eligible.
[11] The applicant implies that the bias arose in both cases because of resentment among some members of the RCMP towards absorbed officers who were to be given the opportunity to be promoted to the rank of sergeant after only having served in the RCMP for a short time. Although not framed as such by the applicant, these allegations include submissions of breaches of procedural fairness.
[12] In his submissions, the applicant only challenged the Adjudicator’s findings on bias. For example, he did not challenge the Adjudicator’s finding that some of the issues he raised were time barred.
Bias on the part of the Selection Committee in favour of the incumbent
[13] In that regard, the relevant portion of the Adjudicator’s decision reads:
Process biased in favour of the incumbent – I have reviewed the process which was used by the CD&R and the Selection Committee to have the files of the two candidates assessed, compared and ranked. I found nothing in my review to persuade me that there was any evidence of a procedure which was biased in favour of the incumbent. The current promotion process used by the Force is premised on the fact that candidates are compared, assessed and ranked in relation to each other. This comparison process is not carried out in a void, as seems to be suggested by the complainant. I find no merit to this argument.
[14] The Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, held that the test in such a matter is whether an informed person, viewing the matter realistically and practically and having thought the matter through would conclude that the decision-maker would decide fairly or not. Therefore, the test is whether such an informed person would conclude that the Selection Committee was going to decide unfairly against the applicant.
[15] I am not persuaded that the decision should be sent back for reconsideration as there is simply no evidence in front of the Court to support a finding of bias.
[16] The applicant submits a reasonable person reviewing the circumstances leading up to the Selection Committee decision and the circumstances under which the decision was made would conclude that the Selection Committee was biased. These circumstances are:
1) the fact that the absorption agreement was not honoured (i.e. the applicant was told that if he wrote the sergeant test that he would not be permitted to apply for sergeant rank positions);
2) the fact that the Division Staff Relations representative advised the applicant that no absorbed municipal officer would be permitted to write a ranked exam; and
3) the fact that the Selection Committee took only 12 minutes to review, compare and decide between the applications of the applicant and Sgt. MacKay.
[17] The respondent submits that the first of these facts is not properly before the Court because the agreement was not before the Adjudicator. I agree. As for the second of these facts, namely the alleged comment from the Division Staff Relations representative, it is hearsay evidence which is given very little weight. Concerning the third of these facts, the respondent notes that the applicant was informed that he had been placed on a qualifying list and that he indicated that he would forward his Performance Report for Promotion (PRP) and his Structured Résumé (SR) by July 28, 2004. The Selection Committee convened on September 27, 2004. The respondent also notes that there were two months between the date the applicant submitted his PRP and SR and the date the Selection Committee met and that it is possible the members of the Selection Committee reviewed the documents during that time.
[18] The applicant correctly stated in his submission that the transcript from the meeting of the Selection Committee indicates that the Selection Committee met for a total of 12 minutes including the time spent discussing the files off-record. Since there is nothing of substance in the transcript of the Selection Committee meeting, one can only assume that the substantive discussion happened in the off-record portion of the meeting. It is not clear why the process in place includes taping the formalities of the meeting, such as the names of the Selection Committee members and their decision, but leaves off-the record the substance of the decision. So again the evidence before the Court is unsatisfactory. Certainly, 12 minutes does not seem to be a very long time, but as the respondent points out it is not unreasonable to infer that the Selection Committee members came to the meeting well prepared, having read in advance all the materials.
[19] The applicant has provided basically no evidence to support his allegation of bias. He does not submit evidence of any inappropriate behaviour or comments by the members of the Selection Committee nor does he provide any evidence that members of the Selection Committee had relationship with the incumbent.
Bias or unfairness preventing the applicant from being considered for all available promotional opportunities
[20] The applicant has not submitted any evidence on which to make a bias finding. Even if the Court were to accept the evidence that the Division Staff Relations representative told him that absorbed officers would never be allowed to write a ranked RCMP exam, there is still no evidence that this representative had any relationship with the CDR staff or that the CDR staff shared the same views about absorbed officers.
[21] Similarly, there is no evidence to support the notion that the process used by the staff at CDR to determine which promotional opportunities the applicant was eligible was unfair.
[22] It appears that CDR followed the procedures in Chapter 4 of the RCMP Career Manual.
[23] The only evidence before the Court is that after the applicant filed a grievance about the lack of promotional opportunities offered to him, a review of the applicant’s file was initiated to determine his eligibility in a number of sergeant promotional opportunities. On June 28, 2004, a memo was written by CDR that identified four promotional opportunities which the applicant could have competed for, except that the memo also indicated that three of the four positions had requirements that the applicant could not meet. The remaining position was the Springdale position that the applicant ultimately competed for. Based on the evidence before the Court, it is impossible to determine whether other promotional opportunities arose in the relevant promotional year which the applicant should have been considered for.
[24] As there is no indication that the CDR was unfairly narrowing the list or any evidence that staff members at CDR made negative comments about the applicant or absorbed officers generally, I cannot see how it can be found that there was bias or a reasonable apprehension of bias or any unfairness.
[25] While I am sympathetic to the difficulties that the applicant has faced in re-establishing his career after the absorption of his municipal police force into the RCMP, there is no evidence indicating that the process followed by the CDR to determine which promotional opportunities the applicant was eligible for or the process followed by the Selection Committee was tainted by bias or the reasonable apprehension of bias. The Adjudicator’s decision, therefore, ought to be upheld.
[26] Consequently, the application for judicial review is dismissed. As no costs were requested, none should be awarded.
Ottawa, Ontario
January 24, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2082-05
STYLE OF CAUSE: WALTER B. SMILEY v. THE ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 7, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: January 24, 2007
APPEARANCES:
Mr. Walter B. Smiley THE APPLICANT ON HIS OWN BEHALF
Ms. Susan Inglis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Walter B. Smiley THE APPLICANT ON HIS OWN BEHALF
Halifax, Nova Scotia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada