BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
Hearing held at Montréal, Quebec, on May 31, 2006.
Judgment delivered at Ottawa, Ontario, on June 8, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Date: 20060608
Docket: A-425-05
Citation: 2006 FCA 209
CORAM : LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
DANIEL GIROUARD
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
Facts and process
[1] The appellant, who is representing himself, is appealing against a decision by Madam Justice Tremblay-Lamer of the Federal Court (judge), who upheld a decision of the Commissioner of the Royal Canadian Mounted Police (RCMP) dismissing a second classification grievance made by the appellant. The Commissioner had decided to uphold the decision of a classification committee.
[2] The appellant is at the centre of a long saga which began on November 25, 1994, when the Commanding Officer of the RCMP’s “A” Division recommended that the appellant’s position be classified at a higher level than what it was, that is, at the chief superintendent level rather than superintendent. After studying and analyzing the matter, the classification committee that had been established refused to approve the recommendation made by the Commanding Officer, “A” Division.
[3] It is not necessary for the purposes of this appeal to review all the incidents which happened over this 12‑year period. It is sufficient to say that, following a Federal Court decision, the Commissioner’s decision on the appellant’s first grievance was quashed. Accordingly, a second and therefore a new classification committee was formed to conduct a new and second assessment of the appellant’s classification. Being unsatisfied with the ensuing decision, the appellant filed a new classification grievance, that is, a second one, to challenge the decision rendered by the new committee.
[4] The level I grievance adjudicator, who was called on to decide the matter, mistakenly concluded that the appellant, who had since retired from the RCMP, was not entitled to file a grievance. The adjudicator therefore dismissed the grievance. The appellant brought the matter to Tier II of the grievance process, and the Commissioner ruled on the admissibility and the merits of the grievance.
[5] The Commissioner concluded first of all that the appellant could file a grievance even though he had retired from the RCMP. He then dealt with the appellant’s application to rescind or amend the decision of the second classification committee. He dismissed the appellant’s grievance on the merits and, as already mentioned, upheld the committee’s decision.
Issues
[6] The appellant is contesting two of the judge’s conclusions. Before this Court, he withdrew a third ground of appeal, made in Federal Court, to the effect that the Commissioner’s previous involvement in the first grievance process was sufficient to give rise to a reasonable apprehension of bias when studying the second grievance.
[7] However, the appellant submits that the judge erred in concluding that it was open to the Commissioner, when acting as a level II adjudicator, to rule on the merits of the grievance in the circumstances. According to the appellant, the only avenue open to the Commissioner, who had acknowledged the appellant’s standing to file a grievance, was to return the matter to a level I adjudicator to render a first decision on the merits. The appellant states that the Commissioner, in proceeding as he did, deprived him of the opportunity to present his case against the decision of the classification committee and of the possibility of appealing against an unfavourable decision of the adjudicator.
[8] In addition, he submits that another aspect of the harm he has sustained results from the infringement of the standards of procedural fairness and natural justice which are part of the level I grievance process. I will deal with the nature of this harm in more detail later.
[9] Furthermore, the appellant submits that the Commissioner erred in law by not giving reasons for this decision to reject the conclusions and recommendations made by the RCMP External Review Committee (ERC), which, pursuant to paragraph 31(2)(b) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R‑10 (Act), had advised the Commissioner to allow the appellant’s grievance.
[10] In addition, the appellant submitted that the Commissioner did not make any ruling on the errors of fact and process he raised in connection with the second decision of the classification committee.
[11] I will deal with the issues in the following order: the sufficiency of the Commissioner’s reasons to partially reject the conclusions reached by the ERC, the failure of the Commissioner to rule on the alleged errors of fact and process, and the Commissioner’s alleged obligation to return the grievance to the first tier (level I) for rehearing.
The appellant’s failure to contest the Commissioner’s decisions following an application for reconsideration of the initial decision and following a new review of the appellant’s application by the classification committee
[12] However, before proceeding, I must consider a special problem resulting from the fact that the appellant applied to the Commissioner and obtained a reconsideration of the appealed decision. This application was made under subsection 32(3) of the Act. This subsection allows the Commissioner to rescind or amend a decision in respect of a grievance if the Commissioner determines that an error of fact or of law was made in reaching the decision.
[13] In addition, in the context of the application for reconsideration, the Commissioner asked the classification committee to provide additional information about and an analysis of the issues raised by the appellant. More specifically, the Commissioner asked the committee, [translation] “in order to be sure that the process was fair to Superintendent Girouard”, to “re-examine the evaluation report, taking into consideration such points as the choice of benchmark positions, the decision to award 528 points for this position, budget comparison, the manner of justifying the scores awarded according to the Hay system, and the comments of the External Review Committee”: see the additional appeal record, tab 5, page 2. Following the committee’s answer, the Commissioner rendered a new decision, once again on the merits of the appellant’s grievance.
[14] In summary, in addition to the decision of October 5, 2004, which is the subject of this appeal, the Commissioner stated, on the merits of the appellant’s grievance, his conclusions and reasons in the two complementary decisions requested by the appellant: a decision dated May 31, 2005, following the application for reconsideration, and a decision dated September 13, 2005, following a new revision of the appellant’s classification by the second classification committee.
[15] The special problem in this case is that the appellant did not challenge these two new decisions of the Commissioner. In legal and practical terms, this means that the rescission of the decision dated October 5, 2004, which is under appeal here, would leave two binding decisions of the Commissioner which confirm, support and develop the one rescinded.
[16] In Vidéotron Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90 (see also Halifax Employers Association Incorporated v. The Council of ILA Locals for the Port of Halifax, 2006 FCA 82), our Court stated the following about the undesirability of not contesting the decisions resulting from an application to reconsider. Mr. Justice Décary wrote the following at paragraphs 6, 12, 13, 14 and 15:
This Court is therefore in a most uncomfortable position. Clearly it cannot intervene in the impugned decision unless it was patently unreasonable, and setting aside the initial decision would not eliminate the decision to reconsider which, unless it has been challenged, can be set up against the employer.
. . .
However, what about when, as in the case before us, the Board in its reconsideration decision affirms the merits of the initial decision on all points? In my opinion, the same rule as the one formulated in Canadian National must be applied. There are two decisions which were rendered on the same initial application, and even if those decisions are concurrent, they are nonetheless distinct. Even though one does not quash the other since it affirms it, it nevertheless replaces the other for the purposes of judicial review since the latter deals with the same issues of law and policy definitively decided by the review panel. It follows that the reconsideration decision must therefore be challenged directly. If the party is also objecting to errors of law or policy in the initial decision which were not addressed by the Board in the reconsideration decision, or patently unreasonable errors of fact in the initial decision, it must then also challenge the initial decision.
The state and stability of the law would be ill served if two potentially contradictory decisions were allowed to co-exist, one by this Court on judicial review of the initial decision and the other by the Board in reconsideration of that decision.
This finding is consistent with the practice generally followed in this Court. A party asking the Board to reconsider an initial decision files a concurrent application for judicial review of the initial decision, or at least files a motion for an extension of time while awaiting the reconsideration decision. Once the reconsideration decision is rendered, the party chooses whether to challenge one or the other or both, depending on the circumstances. If both decisions are challenged, the parties may ask the Court to join the applications for judicial review for the purposes of preparing the records and the hearing.
I therefore find that this application for judicial review is purely moot in nature and that there is nothing to justify this Court agreeing to hear it nevertheless in exercising its discretion.
[17] All in all, the appellant’s challenge of the decision dated October 5, 2004 has become a moot point from a legal point of view, because this decision was replaced by two other decisions of the Commissioner. The appeal is also futile from a practical point of view because, even if the challenged decision were rescinded, the other two decisions would continue to have effect.
[18] Even though I would be warranted in dismissing the appeal on this basis, I am willing, as already mentioned, to rule on the merits of this matter so that the appellant may see the results of his judicial endeavours which he undertook without legal assistance. As mentioned at the hearing, the appellant performed a tremendous amount of legal research and analysis. His memorandum of fact and law is well articulated and thoroughly documented and deals with all his claims, even though the issues in this appeal are much more limited.
The sufficiency of the Commissioner’s reasons to partially reject the conclusions of the ERC
[19] With respect, I am of the opinion the Commissioner’s decision contains sufficient reasons to explain the refusal to follow the ERC’s recommendation to allow the grievance on the merits.
[20] The Commissioner examined the analytical method used by the second classification committee, as well as the number and type of comparisons used to classify the appellant’s position. He took into consideration the objectiveness of the members of the classification committee, as well as their undeniable expertise, which he compared with and measured against the relatively limited if not to say inexistent expertise of the member of the ERC. He noted the similarity of the results obtained by the two classification committees. He ruled that the classification recommended by the second committee was fair in relation to positions of the same level or of a higher level in the RCMP. Finally, he expressed and provided reasons for his disagreement with the position taken by the ERC regarding one of the important aspects of the work in “E” Division, which was used with other factors as the benchmark position by the classification committee.
[21] The Commissioner was fully aware of his obligation to provide reasons for his decision if he rejected, as he was fully entitled to do, the conclusions and recommendations of the ERC. Moreover, he specifically mentioned this obligation in his decision and then turned to setting out the reasons for his decision.
[22] There is no doubt that the reasons given by the Commissioner could have been more detailed and better. However, the test we must apply to the review of the reasons for a decision is not that of excellence or perfection, but that of sufficiency and adequacy. I would say in the Commissioner’s favour that, as far as the ERC was concerned, it only mentioned disagreeing with the classification committee and specified its preferences without really giving in either case any reasons in support of its position. It was difficult for the Commissioner to rebut non-existent reasons. He therefore simply stated the reasons for the divergence of his opinion from that of the ERC.
[23] In my opinion, the appellant’s criticism on this point is groundless.
Failure of the Commissioner to rule on the errors of fact and process alleged by the appellant in connection with the decision of the second classification committee
[24] There is no doubt that the decision of the Commissioner that is under appeal in this case did not in any way deal with the errors of fact and process that the appellant invoked against the second classification committee in his grievance. For all intents and purposes, these are the same errors that the appellant invoked to challenge the decision of the first classification committee. However, the appellant rightly applied for and obtained from the Commissioner a reconsideration of his decision: see the two complementary decisions in the supplemental appeal book, tabs 3 and 5. A study of the decision subsequent to the application for reconsideration shows that it deals with and ruled on the appellant’s allegations. Although the appellant was not satisfied with the rejection of his allegations by the Commissioner and with the reasons in support of this decision, he did not contest it, and the appeal now before us is not on the merits of this decision.
[25] If we were to allow the appeal for this reason, the most we could grant as a remedy would be to order the Commissioner to rule on the errors of fact and process alleged by the appellant. However, the Commissioner not only did so following the application for reconsideration of the first decision, but also had the second classification reassess its proposed reclassification of the appellant in light of these allegations.
[26] In short, even if the appellant’s criticisms of the shortcomings in the Commissioner’s first decision could have been or were well founded, these shortcomings were subsequently remedied. Once again, the remedy sought by the appellant is moot.
[27] This brings me to the third and final issue.
The Commissioner’s alleged obligation to return the grievance to the first tier (level I) for rehearing
[28] The conduct of the grievance process and hearings is governed by the Commissioner’s Standing Orders (Grievances), 1990, SOR/90‑117, 8 February, 1990 (Orders). This is the short title of the Rules Respecting Grievances in the Royal Canadian Mounted Police. These Orders were made under section 36 of the Act. The authority to establish rules for the presentation and analysis of grievances is granted to the Commissioner, who is responsible for the process to be followed.
[29] The Orders, which provide for a certain number of situations, including the one covered by section 18, where new evidence is discovered while the grievance is pending at level II, does not cover the situation in which the Commissioner and the appellant were involved. It should be noted that the appellant’s grievance was dismissed by the level I adjudicator on an issue preliminary to the merits concerning the appellant’s standing.
[30] It is not wrong to say that, as a result of the dismissal of the grievance in the circumstances, the Act and the Orders left a legal vacuum with regard to the manner of dealing with the appellant’s case. In such a case, no error of law may be invoked against the Commissioner, who decided in the interests of justice to hear this grievance, since it dated back almost ten years. In other words, the Commissioner had the authority to act as he did insofar as the process followed did not infringe on the appellant’s rights, especially his right to procedural fairness and natural justice.
[31] The appellant submitted that subsection 31(2) of the Act creates an obligation for the grievance to be heard at level I. While admitting that this is the practice generally applied, it must be noted that subsection 31(2) deals with the prescription of grievances at one or the other level: it specifies the time limits in which the complainant must file his or her grievance. I will therefore concentrate on the harm alleged by the appellant.
[32] First of all, the appellant submitted that he was deprived of the possibility of adjudication at level I, as well as of the procedural guarantees available at this level. With respect, I do not think the appellant has proved that any harm resulted from this.
[33] First of all, under paragraph 16(b) of the Orders, the powers of review of the level I adjudicator and those of the Commissioner at level II are identically limited in cases of classification grievances to “an error of fact or process”. The situation would have been different if the level I adjudicator had broader powers of review than the Commissioner. Therefore, the appellant did not sustain any harm in terms of the scope of jurisdiction and power to act of either grievance adjudication level. This leaves the question of procedural guarantees.
[34] Under section 12 of the Orders, a level I adjudicator is assisted in his or her work by an advisory board, which drafts a report, a copy of which is forwarded to the person who filed the grievance (subparagraph 7(b)(ii) of the Orders), and submits its findings and recommendations with respect to the grievance to the adjudicator (section 14 of the Orders). Under section 17 of the Orders, neither the level I adjudicator nor the Commissioner at level II is bound by the findings or recommendations of the advisory board.
[35] In my humble opinion, the appellant has no grounds for complaining about having been deprived of this procedural guarantee. In fact, at level II, he had the benefit of a similar procedural guarantee offered by the ERC, to which the grievance was referred for consultation and recommendation. In fact, the ERC’s opinion was in favour of the appellant and his position.
[36] Relying on section 10 of the Orders, the appellant argues that he was entitled to make submissions about the findings and recommendations of the advisory board. This argument is unfounded for two reasons.
[37] First of all, section 10 does not confer this right. It does, however, allow the appellant to present written submissions concerning his grievance to the advisory board so that it may take this into consideration in the eventual analysis it will make of the grievance before reaching a conclusion on the merits. The appellant’s submissions were received by the ERC, which considered his grievance at level II.
[38] Second, the appellant did not have to make any submissions about the conclusions reached by the ERC, because it recommended allowing his grievance.
[39] Finally, the appellant complains that the respondent was not heard at level II. If that was the case, it is difficult to see what harm the appellant would sustain because the respondent contested his grievance. However, this was not the case. The respondent submitted its point of view concerning the grievance and its contestation to the ERC and to the Commissioner: see the appeal record, volume III at page 585, the letter from the acting Director of Organization Design and Job Evaluation, dated January 31, 2002.
Conclusion
[40] A study of the file shows that the appellant was treated fairly as far as process is concerned and that he did not sustain any harm because his grievance was dealt with at level II rather than level I, considering the time elapsed, the similarity in process and the procedural guarantees.
[41] In addition, he succeeded in having the Commissioner reconsider his initial decision, which took into consideration the appellant’s allegations about the errors of fact and process invoked. In all fairness, a new review was also requested and obtained from the second classification committee, which specifically examined some of the appellant’s allegations. The Commissioner rendered three decisions, each one dismissing the appellant’s grievance and giving reasons for doing so. These three decisions and the reasons answer the appellant’s allegations. Therefore, in my opinion, the judge was correct in dismissing the appellant’s application for judicial review.
[42] For these reasons, I would dismiss the appeal. In the circumstances, I would limit the costs payable to the respondent to $1,500.
“I concur.
Marc Noël J.A.”
“I concur.
J.D. Denis Pelletier J.A.”
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-425-05
STYLE OF CAUSE: DANIEL GIROUARD v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT
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