Date: 19990204
Docket: T-792-98
| IN THE MATTER OF a decision by Guy Laflamme, Insp. Level II Adjudicator pursuant to s. 31(2)(b) of the Royal Canadian Mounted Police Act, R.S., c. R-9, as amended |
BETWEEN:
BRUCE M. BRAMALL
Applicant
- and -
PHILIP J.R. MURRAY, COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE,
THE ROYAL CANADIAN MOUNTED POLICE and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LUTFY J.:
[1] In Brooke v. Royal Canadian Mounted Police (Deputy Commissioner) (1993), 152 N.R. 231 (F.C.A.), the Court of Appeal set aside the decision of the Deputy-Commissioner of the R.C.M.P. denying the grievance of a Special Emergency Response Team member seeking standby compensation. In the words of Mahoney J.A. at paragraphs 6 and 7:
| In my opinion, that order was given; members of the SERT team required by Supplement 6 to be "operationally prepared and competent to respond to activation, deployment and commitment at any given hour of the day including weekends and statutory holidays" and, to that end, required to "be available for contact at all times by telephone etc." and not to "participate in any activity the nature or location of which prevent prompt response to call out", were members on standby as defined by subparagraph H.8.a.2. of the Manual , that is, members "ordered to remain available and able to respond immediately to a duty requirement." The contrary conclusion is, with the greatest respect to the respondent, an "erroneous finding of fact ... made in a perverse or capricious manner". [Emphasis added.] |
He also added:
| A member is on standby when he is ordered to be on standby; it is not the well-foundedness of the order but the order itself that puts the member o[n] standby. |
[2] In this case, as in Brooke, the operative threshold for standby status is in subparagraph H.8.a.2. of the R.C.M.P. administration manual: "A member is on standby when he/she is ordered to remain available and to respond immediately to a duty requirement." In each instance, the determination to be made is whether the factual circumstances meet this test and constitute, at least implicitly, a standby order.
[3] In Brooke, the standby order was inferred from Supplement 6 which stipulated the duties and responsibilities of SERT members. These were summarized in the dictum from Mahoney J.A., supra paragraph 1: operationally prepared to respond to deployment at all times and a prohibition of activity the nature and location of which might prevent a prompt response to call out.
[4] In December 1990, the officer-in-charge of SERT issued a verbal order cancelling the standby status during a meeting to which the applicant was not invited. He soon learned of the cancellation, however, and informed his direct supervisor in the Informatics Branch. No steps were taken by anyone in the Informatics Branch "to alter the applicant"s standby order or the requirement for the applicant to remain available to respond to emergencies in off-duty hours" (paragraph 23 of the applicant"s memorandum). The applicant"s view is clear: his own supervisor should have cancelled his standby status at the same time as the cancellation order was made by the officer-in-charge of SERT (page 77 of the applicant"s record).
[5] The applicant does not rely on Supplement 6. He argues that the failure of his immediate supervisors in Informatics Branch to repeat to him the cancellation order issued by the officer-in-charge of SERT, together with the terms of his job description, meant that he continued to be on standby status. In particular, the applicant relies on the job description of his work environment as constituting the factual circumstances tantamount to a standby order:
| The incumbent is also required to carry a pager in order to be quickly located in case of emergencies when off duty, according to the F and Out requirements. However, the incumbent is not compensated with Stand-By overtime payment for this responsibility. In order to assure a quick response to emergencies, the incumbent is also required to take the Telecommunications Maintenance Van at home every night. |
For the applicant, the requirement to carry a pager "when off duty" and to take a van home every night must be read as a standby order, even though the job description stipulated there would be no standby compensation for this requirement.
[6] The applicant grieved the refusal to pay to him standby compensation subsequent to the December1990 cancellation order. He did not convince the Level II Adjudicator of his position. The decision of the Level II Adjudicator includes the following principal findings (at pp. 19-20 of the applicant"s record):
| a) I also conclude that when the OIC SERT convened a meeting on December 19, 1990, and gave the order to cancel all standby, it applied to all SERT members and support units. Supplement 6 ceased effectively to exist and the requirement to be operationally ready at all times was rescinded. ... I am satisfied that the Grievor was not required to remain available and able to respond immediately to a duty requirement after the December 19, 1990 order from the OIC SERT to cease all standby. |
| b) The Grievor"s job description required that the incumbent carry a pager and use a Force owned vehicle to travel home. It also stated that "the incumbent is not compensated with stand-by overtime payment for this responsibility . (My emphasis) I interpret this last sentence as meaning that the requirement to carry a pager and use a Force owned vehicle to travel home should specifically not be equated to an order to be on standby. While both requirements might be indicative of the value of the function exercised by the incumbent, they are not in any way an implicit order to be on standby. ... |
| c) I find that, for a member to be on standby, the order must be sufficiently explicit so that a reasonable person reviewing the order and circumstances would come to the conclusion that this member had no choice but be on standby. The requirement to carry a pager, cellular phone, tools of the trade or to use a Force"s owned vehicle are insufficient by themselves to constitute an order to be on standby. [Emphasis in italics added.] |
[7] The Level II Adjudicator properly referred to subparagraph H.8.a.2. in his early discussion of the substantive issue (page 16 of the applicant"s record). Later in his reasons he stated (page 19 of the applicant"s record):
| The necessity for the Grievor to be on standby was directly related to the requirement of SERT to be on standby. The Grievor can justify standby duties only and only if he was required to work under the same condition as SERT and according to their rules. |
These comments were made in explaining why the applicant"s supervisors recommended standby compensation for him in the period prior to December 1990. The Level II Adjudicator"s statements mirror those of the applicant"s immediate supervisor (page 81 of the application record):
| Although Bramall was no[t] a member of SERT, he was subject to the same conditions as SERT in support of their operations. His "Job Description" reflected the requirement to be available for any "Call-outs" by SERT, thereby putting him on "Standby" while SERT members were on "Standby". Once the "Standby" order was rescinded by Supt. Quinn, there was no need for Bramall to remain on "Standby", therefore he would only respond when SERT was "Called Out" if he was available. [Emphasis added.] |
The applicant cannot rely on his supervisor"s reference to his job description without regard to the direct linkage to SERT members being on standby. I do not accept the applicant"s argument that, in the above-quoted statement from the decision, the Level II Adjudicator was setting out a new test, let alone an incorrect one. In my opinion, the findings of the adjudicator, supra paragraph 6, show that he understood the appropriate test.
[8] Standby status was cancelled in December 1990. The applicant received no contrary explicit order to be on standby, neither from his Informatics Branch supervisors or anyone else. Nothing favourable to the applicant can be inferred from the silence of his Informatics Branch supervisors. Supplement 6 was no longer in force. The applicant"s job description, requiring him to carry a pager "when off duty" and return home with the van, stated that no standby compensation would be paid for this responsibility.
[9] In my view, this application for judicial review is governed by paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. As in Brooke, the issues are factual. In Brooke, the Court of Appeal intervened because of a reviewable error of fact concerning the existence of standby status. The test of subparagraph H.8.a.2. of the R.C.M.P. administration manual does not raise legal principles. The decision of the Level II Adjudicator, which I have carefully considered together with the parties" submissions, is neither patently unreasonable or based on an erroneous finding of fact made in a perverse or capricious manner.
[10] The applicant"s counsel argued that the decision is one of mixed law and fact ("whether the facts satisfy the legal test": Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 35). She urged that, at the very least, "substantial deference, albeit somewhat short of a standard of "patent unreasonableness" is appropriate" (Brennan v. Canada (Royal Canadian Mounted Police, [1998] F.C.J. No. 1629 (QL) (F.C.T.D.) at paragraph 12). I do not agree with either submission. The facts of this case do not appear to raise either questions of law or the same degree of technical difficulty as in Brennan. However, even if this were an application for judicial review where less curial deference was appropriate, I would not intervene. The decision under review is neither "unreasonable" or "clearly wrong" (Southam at paragraphs 56 and 60).
[11] Accordingly, this application will be dismissed. Each party sought costs in the event of their success, in submissions made at the end of the hearing. In the circumstances, the respondents will have their costs on a party and party basis.
Judge
Ottawa, Ontario
February 4, 1999