Ottawa, Ontario, March 6, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
COMMISSIONER GIULIAN ZACCADELLIE,
ROYAL CANADIAN MOUNTED POLICE
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 32(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act) for judicial review of the decision of the Commissioner, rendered by Inspector J. F. Michel Bachand (the adjudicator). The decision, dated January 13, 2006, denied the applicant’s request for intervention. The applicant had filed a request for intervention on the basis that a promotion had been awarded to a candidate who lacked the necessary qualifications.
[2] The applicant requested the following in her notice of application:
1. A determination that Corporal Ryerse lied with respect to his documented experience in conducting major fraud investigations and misled personnel with respect to this experience.
2. An order for a new review of the original request for intervention to determine Corporal Ryerse’s contribution to Project Oxlip, Corporal Ryerse’s notebook with respect to his contribution to the investigation, and an interview of the investigator in charge of the project from the commercial crime unit regarding any assistance he received with respect to the investigation.
[3] The applicant’s request may be restated as follows:
The applicant requests that the adjudicator’s decision be set aside, and that the request for intervention be referred for redetermination.
Background
[4] The applicant, Nina Iwanowich, is a member of the Royal Canadian Mounted Police (RCMP). In August 2004, the RCMP posted an employment opportunity for a promotion to the position of sergeant. One of the qualifications for the position was documented experience in conducting major fraud investigations. The applicant applied for the position on August 28, 2004. On March 15, 2005, Corporal Ryerse was awarded the position. The applicant filed a request for intervention (RFI) on April 12, 2005, claiming to be aggrieved as a result of the selection of Corporal Ryerse for the position. The applicant was of the opinion that Corporal Ryerse did not have the necessary qualifications for the position and misled the promotion board with respect to his major fraud experience.
[5] In her RFI submissions, the applicant indicated that she had spoken to Sergeant Gairy and Sergeant McQueen, who were involved in the fraud aspect of the investigation in which Corporal Ryerse claimed to have obtained experience. Both members told the applicant that they did not recall Corporal Ryerse’s participation in the investigation. The applicant also claimed that Corporal Ryerse was required to show documented experience in the form of 1624s, C237s, or members’ notes, in order to establish that he was qualified for the position. The applicant stated that she had suffered from the loss of a promotional opportunity since Corporal Ryerse was not qualified for the position. She therefore sought to have a new promotion board formed in order to reconsider the original candidates for the position, with the exception of Corporal Ryerse.
[6] An administrative review of the matter was undertaken in order to investigate the applicant’s allegations of misconduct. A memorandum prepared by Sergeant McCann, dated October 25, 2005, outlined the results of the administrative review. The memorandum noted that there was no indication that Corporal Ryerse sought or intended to mislead the promotion board. Corporal Ryerse’s comments on form 4052 were reviewed, and it was determined that he met the requirement of major fraud experience. The response also discussed the two manners in which the term “documented” was applied in the staffing section: (1) in reference to pre-existing documents (such as annual assessments, letters, and personnel interview reports); and (2) through information provided by the candidate on a form 4052, which was then validated by an identified reference who confirmed the information.
[7] The memorandum indicated that Corporal Ryerse did provide information regarding his documented experience conducting major fraud investigations in a form 4052, and that this information was confirmed with the individual named as his identified reference. As a result, he had met the test for documented experience, and was qualified for the position. In addition, the reason for which Sergeant Gairy and Sergeant McQueen did not recall Corporal Ryerse’s involvement in the investigation was that his involvement predated the transfer of the investigation to their department.
[8] On November 20, 2005, the applicant responded to the results of the review by advising that she had personally reviewed the fraud investigation file in question, and had found no evidence of Corporal Ryerse’s involvement. She also noted that neither Sergeant Gairy nor Sergeant McQueen had been contacted during the review. Although they had not been involved in the investigation when Corporal Ryerse allegedly had, the applicant submitted that it was common sense for them to be aware of his participation on the file. The applicant reiterated her position that Corporal Ryerse was obligated to show documented evidence in the form of 1624s, C237s or members’ notes, in order to show that he was qualified for the position. In a response dated December 15, 2005, the applicant was advised that there was nothing to add to the memorandum of October 25, 2005, and that the matter would be referred to an adjudicator.
[9] Given the lack of supporting evidence provided by the applicant, the adjudicator denied the RFI by decision dated January 13, 2006. This is the judicial review of the adjudicator’s decision.
Adjudicator’s Reasons
[10] The adjudicator first noted that the applicant had filed an RFI on the basis that the candidate selected for the sergeant’s position did not meet the job requirement of documented experience conducting major fraud investigations, and had misled the promotions board with respect to his fraud experience. Her reasons for making the allegations included: (1) her knowledge of the selected candidate’s background; (2) a conversation held with the selected candidate in which he indicated that he did not understand why fraud examples were required for the position; and (3) her understanding that two members involved in project Oxlip did not recall the selected candidate’s involvement in the fraud aspect of the project.
[11] The adjudicator noted the applicant’s submission that the selected candidate could not claim to have major fraud experience on a file which was outsourced to a CCS investigator. The applicant also believed that the selected candidate and his fellow team members concentrated solely on the drug aspect of the project. The applicant requested that the promotion board attempt to confirm the selected candidate’s documented experience in major fraud investigations via 1624s, C237s, or members’ notes. The applicant requested that a new board consider the original candidates, with the exception of the selected candidate.
[12] The adjudicator proceeded to consider the memorandum of October 25, 2005, the applicant’s rebuttal, and the further response of December 15, 2005. There were no other submissions made to the adjudicator. The adjudicator noted his examination of all the materials forwarded by the office for the coordination of grievances on January 10, 2006.
[13] The adjudicator indicated that the applicant had demonstrated that she had standing and that the RFI was presented within the prescribed time. The adjudicator concluded as follows:
In matters of this nature, the burden of proof rests with the member who files a claim. In other words, the member must demonstrate that his/her claim is valid. It is not on the other party to disprove.
In this instance, the complainant has given her opinion and feelings about Cpl. Ryerse’s experience however has not provided any evidence supporting her arguments.
The respondent for his part has provided the findings of an administrative review, which “provided additional support and confirmation that Cpl. Ryerse’s [sic] did in fact meet the requirement for major fraud experience.”
As an Adjudicator, I must base my findings on the material presented before me. In this matter therefore, given the lack of supporting evidence provided by the complainant, I must deny the Request for Intervention.
Issue
[14] Did the adjudicator err in denying the applicant’s request for intervention?
Applicant’s Submissions
[15] The applicant submitted that the adjudicator committed a factual error in finding that she had only offered opinion and feelings about Corporal Ryerse’s experience, and had not provided any evidence in support of her arguments. The applicant submitted that she had offered the following evidence which was ignored by the adjudicator:
- Her review of the project Oxlip file revealed no mention of Corporal Ryerse’s involvement in the fraud aspect of the investigation.
- Her conversation with Sergeant Gairy and Sergeant McQueen, who were responsible for the fraud aspect of the project, revealed that they could not recall Corporal Ryerse’s involvement. The applicant stated that they would have been made aware of Corporal Ryerse’s major involvement in the project through meetings and reports.
- Sergeant Gairy’s affidavit, sworn March 3, 2006, confirmed that Corporal Ryerse had no involvement with the project. The affidavit also stated that Corporal Ryerse’s name did not appear on the witness list upon which other police witnesses were named.
- Her conversation with Corporal Ryerse, in which he stated that he did not understand why they needed fraud examples for the position.
[16] The applicant submitted that the adjudicator erred in accepting Sergeant McCann’s statement that an administrative review had been undertaken which: (1) revealed that there was no indication that Corporal Ryerse sought or intended to mislead; and (2) confirmed that Corporal Ryerse met the requirement of major fraud experience, without having seen the report or confirming its existence. The applicant submitted that the adjudicator erred in failing to apply the same standard to her arguments as he did to those of the RCMP. It was submitted that the applicant’s evidence was dismissed as “opinion”, while Sergeant McCann’s opinion was accepted.
Respondent’s Submissions
[17] The respondent applied the pragmatic and functional approach to the determination of the appropriate standard of review, and concluded that the adjudicator’s decision was subject to review on the standard of patent unreasonableness. It was submitted that the Federal Court has held that in cases dealing with the review of RCMP promotions policy, the appropriate standard of review is patent unreasonableness (see Shephard v. Canada (Royal Canadian Mounted Police) (2003), 242 F.T.R. 42, 2003 FC 1296, reversed on other grounds, (2004), 242 D.L.R. (4th) 529, 2004 FCA 254). It was submitted that the Court has applied the standard of review of patent unreasonableness to decisions made by RCMP adjudicators regarding promotion and job requirement issues (see Smith v. Canada (Attorney General), (2005), 140 A.C.W.S. (3d) 560, 2005 FC 868; Brennan v. Royal Canadian Mounted Police) (1998), 154 F.T.R. 309, 83 A.c.W.S. (3d) 895).
[18] The respondent submitted that the issue before the adjudicator was whether there was any evidence to substantiate the applicant’s assertion that the promotion process for the sergeant’s position was not carried out correctly, in that the selected candidate did not meet the job requirement of documented experience conducting major fraud investigations.
[19] The respondent noted the applicant’s submission that she provided evidence that Corporal Ryerse’s name was not mentioned in the fraud aspect of the project Oxlip file which she reviewed. The respondent submitted that while this alleged evidence was merely opinion and supposition, there was an explanation provided regarding the manner in which Corporal Ryerse met the requirement of documented experience in the selection process. The respondent referred to Sergeant McCann’s memorandum, dated October 25, 2005, in which it was explained that candidates can fulfill the requirement for documented experience by providing a reference who can confirm their experience. The memorandum indicated that Corporal Ryerse had provided such a reference, who confirmed the information on his form 4052.
[20] The respondent noted the applicant’s submission that she spoke with Sergeant Gairy and Sergeant McQueen, and that neither could recall Corporal Ryerse’s involvement in the investigation. The respondent submitted that while the alleged evidence of the conversation was not substantiated, it was not determinative of the issue before the adjudicator, since Corporal Ryerse met the requirement for documented experience by providing a reference. In addition, Sergeant McCann’s memorandum explained that the investigators could not recall Corporal Ryerse’s involvement in the project since his investigation of the fraud offence pre-dated the transfer of the investigation to their department. It was submitted that the applicant’s alleged evidence regarding the RCMP’s record keeping methods constituted mere opinion. The respondent submitted that the applicant’s submissions regarding her conversation with Corporal Ryerse constituted mere opinion and were not determinative of the issue before the adjudicator.
[21] The respondent submitted that Sergeant Gairy’s affidavit constituted new evidence which was not tendered before the adjudicator when he rendered his decision. It was submitted that there were no exceptional circumstances that would warrant the inclusion of this new evidence in this application for judicial review, since the applicant could have tendered it as evidence before the adjudicator (see Han v. Canada (Minister of Citizenship and Immigration) (2006), 147 A.C.W.S. (3d) 1029, 2006 FC 432). The respondent submitted that the affidavit should not be considered in this application for judicial review.
[22] The respondent noted the applicant’s submission that the adjudicator blindly accepted the RCMP’s evidence with respect to the administrative review. It was submitted that the adjudicator did not make findings of fact as to the validity of the review, nor did he rely upon the findings in the review in rendering his decision. The adjudicator set out all of the information provided to him by the parties, but clearly stated that his decision to deny the RFI was based upon the lack of supporting evidence proffered by the applicant.
Analysis and Decision
Standard of Review
[23] The issue in this case is factual in nature. It involves a determination as to whether the adjudicator erred in finding that there was insufficient evidence to support the applicant’s claim. In Smith above, this Court discussed the appropriate standard of review to be applied in cases involving an adjudicator’s decision to deny a request for intervention. Justice Dawson stated at paragraphs 12 and 13:
In Shephard v. Canada (Royal Canadian Mounted Police) (2003), 242 F.T.R. 42 (T.D.) (reversed on other grounds (2004), 242 D.L.R. (4th) 529 (F.C.A.)) a pragmatic and functional analysis was conducted by this Court in order to determine the appropriate standard of review of a decision of an adjudicator to deny a request for intervention. The Court noted: the privative clause contained in section 25 of the Commissioner's Standing Orders; the fact that adjudicators have special expertise in addressing the issues before them; the broad responsibility given to adjudicators to resolve these disputes; and the issue in that case was a question of fact and not a question of law. In the result, the Court concluded, at paragraph 36, that "all of the factors in a pragmatic and functional analysis lead to the conclusion that great deference should be given to the Adjudicator in this matter" so that the standard of review was patent unreasonableness.
Similarly, in the present case: the same privative provision applies, the adjudicator is required by the same RCMP policy to be an officer or senior manager, so as to have expertise with respect to job requirements and the RCMP promotion process; the purpose of the grievance provision and the Act are the same; and the problem before the adjudicator was a question of fact. I conclude, therefore, that the applicable standard of review to be applied to the adjudicator's decision that Corporal Smith did not meet all of the requirements of Job Code 575 is patent unreasonableness.
I would adopt the analysis of Justice Dawson and accordingly, the appropriate standard of review is patent unreasonableness.
[24] Issue
Did the adjudicator err in denying the applicant’s request for intervention?
Preliminary Point – Use of Affidavit of Sergeant Gairy
The applicant submitted the affidavit of Sergeant Gairy sworn on March 3, 2006, which post-dated the date of the adjudicator’s decision which was January 13, 2006. The respondent submitted that this affidavit should not be considered as it was new evidence that was not before the adjudicator, and that it could have been put before the adjudicator. It is only in exceptional circumstances that the Court will allow new evidence to be considered upon judicial review that could have been put before the adjudicator but was not. I can see no such exceptional circumstances in this case. The affidavit of Sergeant Gairy to the extent that it contains new evidence, will not be considered on this application.
[25] A review of the adjudicator’s decision shows that the adjudicator reviewed the following materials in considering the applicant’s RFI:
- the applicant’s RFI submissions;
- Sergeant McCann’s memorandum, dated October 25, 2005;
- the applicant’s response, dated November 20, 2005;
- Inspector Brine’s response, dated December 15, 2005.
[26] The adjudicator correctly noted that members who file a request for intervention bears the onus of proving the validity of their claims. As a result, the applicant was required to provide the adjudicator with evidence to support her claim that Corporal Ryerse did not meet the requirement of documented experience conducting major fraud investigations, and had misled the board with respect to the experience he claimed to have.
[27] The applicant’s submissions mention: (1) a conversation held with Corporal Ryerse in which he allegedly indicated that he did not understand why the position required fraud examples; (2) a conversation held with Sergeant Gairy and Sergeant McQueen, in which neither could recall Corporal Ryerse’s involvement with project Oxlip; and (3) that Corporal Ryerse’s experience must be documented via 1624s, C237s or members notes. The applicant’s response to Sergeant McCann’s memorandum stated that: (1) she had personally reviewed the project Oxlip file and was unable to find any mention of Corporal Ryerse’s involvement in the fraud aspect of the investigation; and (2) Sergeant Gairy and Sergeant McQueen would have been aware of Corporal Ryerse’s involvement in the project even though they began working on it after his departure.
[28] The record before me shows that all of the above arguments that were relevant to the case were explained. For example, Sergeant Gairy and Sergeant McQueen became involved with the file after Corporal Ryerse’s involvement in the fraud aspect of the file, and Corporal Ryerse could document his fraud experience either by documented evidence (notebook entries, 1624s, C237s, etc.), or by validating information provided by the candidate through a form 4052. The validation process takes the form of contacting the identified references given by the applicant and having them confirm the information provided by the applicant. This method is used for experience a member has but which is not documented.
[29] In the present case, the applicant submitted a form 4052 with references. The references were contacted and verified the experience the applicant claimed to have.
[30] In order to set aside the adjudicator’s decision, I must find the decision to be patently unreasonable. A patently unreasonable decision is a decision that is clearly irrational. In this case, the adjudicator denied the request for intervention due to the lack of supporting evidence provided by the applicant. He also noted that the respondent provided the findings of an administrative review which “provided additional support and confirmation that Corporal Ryerse did in fact meet the requirement of major fraud experience”. Based on the record before me, I cannot conclude that the adjudicator’s decision was patently unreasonable. The application for judicial review must therefore be dismissed.
JUDGMENT
[31] IT IS ORDERED that:
1. The applicant’s application for judicial review is dismissed.
2. There shall be no order as to costs.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10.:
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31.(1) Subject to subsections (2) and (3), where any member is aggrieved by any decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner’s standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.
. . .
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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31.(1) Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un acte ou une omission liés à la gestion des affaires de la Gendarmerie causent un préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs prévue à la présente partie dans le cas où la présente loi, ses règlements ou les consignes du commissaire ne prévoient aucune autre procédure pour corriger ce préjudice.
. . .
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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The Commissioner’s Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), S.O.R./2000-141.:
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2.(1) These Standing Orders apply instead of Part III of the Act to the presentation and resolution of all grievances of members in respect of
(a) a decision, act or omission made in the course of the selection processes for the promotion of members, by which decision, act or omission a member has been aggrieved; or
(b) job requirements, other than official languages requirements, established for a position through a decision, act or omission, by which decision, act or omission a member has been aggrieved.
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2.(1) Les présentes consignes s’appliquent, à la place de la partie III de la Loi, à la présentation et au règlement des griefs suivants:
a) ceux ayant trait à une décision, un acte ou une omission liés aux processus de sélection en vue de la promotion des membres et causant un préjudice à un membre;
b) ceux ayant trait aux exigences de postes — à l’exception des exigences en matières de langues officielles — qui sont arrêtées à la suite d’une décision, d’un acte ou d’une omission, lesquels causent un préjudice à un membre.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-310-06
STYLE OF CAUSE: CORPORAL NINA IWANOWICH
- and -
COMMISSIONER GIULIAN ZACCADELLIE,
ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 5, 2006
APPEARANCES:
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Nina Iwanowich
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SELF-REPRESENTED
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Sharon McGovern
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SOLICITORS OF RECORD:
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Nina Iwanowich Barrie, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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