Date: 20040621
Docket: T-1054-02
Citation: 2004 FC 879
Ottawa, Ontario, June 21, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JEAN FRENETTE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a level II adjudicator, acting on behalf of the Commissioner of the Royal Canadian Mounted Police (RCMP), pursuant to subsection 32(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (Act). In his decision, the level II adjudicator dismissed the applicant's grievance concerning the latter's performance evaluation.
FACTS
[2] The applicant, Sergeant Jean Frenette, has been a member of the RCMP since October 17, 1974. On May 21, 1997, he was transferred from Montréal Special "I" Section to the Divisional Criminal Information Analytical Section.
[3] The applicant was evaluated on his performance by Staff Sergeant Jean Martin (Staff Sgt. Martin), his line officer at the time of the events. The evaluation covered the period from October 17, 1996 to October 17, 1997. On March 30, 1998, Staff Sgt. Martin came to the applicant's office to deliver his evaluation to him. The applicant refused to examine the contents of the evaluation; instead, he returned the evaluation to Staff Sgt. Martin.
[4] On May 27, 1998, the applicant filed a grievance, seeking to have his performance evaluation revoked. On the form, he divided his grievance in two and asked for a ruling on the first part before he presented his submissions on the second. The first part dealt with some procedural errors in the evaluation process, while the second was addressed to issues of bias, prejudice and errors of fact. The applicant did not present any arguments concerning the second part of his grievance. Both the level I adjudicator and the level II adjudicator dismissed the grievance. The applicant is now seeking judicial review of the decision of the level II adjudicator.
IMPUGNED DECISION
[5] The level II adjudicator began by stating that, contrary to what the applicant wished, it was not possible to divide a grievance into two parts:
[translation] ... a complainant cannot divide his grievance into separate issues and cannot demand a decision on one issue before deciding whether he will go on to another issue. The only exception is when a complainant wants the level I adjudicator to determine an incidental issue, such as the request for relevant records rejected by the respondent, as it is explained in clause II.20.K of the Administration Manual. The complainant did not request a decision by the level I adjudicator concerning the refusal of relevant records and he mentioned in his electronic message of June 28, 2000, to the Labour Relations Office that he agreed to this grievance being sent to the CCG. Consequently, this part of the complainant's presentation at level II concerning the relevant records was not presented within the prescribed time. [Emphasis added]
[6] Concerning the merits of the grievance, the level II adjudicator stated he agreed with the level I adjudicator that there had been a number of minor procedural errors such as the absence of observations by the intermediate supervisor. However, the level II adjudicator concluded that these errors did not invalidate the process as a whole.
[7] The level II adjudicator further noted that Staff Sgt. Martin had indicated in the record that he attempted to meet with the applicant on March 30, 1998, to discuss his evaluation and that the applicant had refused:
[translation] The complainant deplores the fact that he did not meet with his evaluator, as required by the policy. I note that Staff Sgt. Martin stated in the record that he had attempted to meet with Sgt. Frenette on March 30, 1998, to discuss his evaluation and Sgt. Frenette had refused to meet with him. The complainant did not dispute this statement. If the complainant refused such a meeting, he cannot later complain about its absence. Some of the complainant's concerns might perhaps have been reviewed and eased if he had agreed to meet with his evaluator.
[8] The adjudicator also stated that the applicant's new supervisor, Staff Sgt. Bolduc, had declined to participate in the evaluation. The adjudicator therefore concluded as follows:
[translation] I note that the complainant thinks it was not the job of Staff Sgt. Martin to write his performance evaluation for 1996-97, but this decision was simply not his to make. Even if the complainant no longer reported to Staff Sgt. Martin after May 1997, the latter was his supervisor during the major part of the period covered by the evaluation and, furthermore, his new supervisor, Staff Sgt. Bolduc, had declined to participate in the evaluation. It was therefore completely appropriate for Staff Sgt. Martin to prepare the complainant's performance evaluation.
[9] In light of the foregoing, the adjudicator reached the conclusion that Sgt. Frenette had not proved that the evaluation of his performance should be revoked.
ISSUE
[10] The applicant does not present any specific issues. He states that the level II adjudicator committed certain errors of law or fact that should induce the Court to set aside the decision.
[11] The issue in dispute is the following: Did the level II adjudicator commit a patently unreasonable error?
[12] For the following reasons, I reply in the negative to this question and I will therefore dismiss this application for judicial review.
ANALYSIS
Standard of review
[13] It is necessary first to determine the standard of judicial review that is applicable to the decision of the level II adjudicator. According to Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, at paragraph 26, four factors must be considered:
(a) the presence or absence of a privative clause or right of appeal;
(b) the expertise of the tribunal;
(c) the purposes of the legislation and the provision in particular; and,
(d) the nature of the question.
[14] The first factor in the analysis concerns the review mechanism. Subsection 32(1) of the Act provides that the Commissioner's decision "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". This is a partial privative clause. It is also important to note that the impugned decision is a level II decision, which follows a level I decision. The first factor favours considerable deference.
[15] Regarding the expertise of the tribunal, the level II adjudicator has some specialized knowledge of RCMP matters, which tends to favour deference.
[16] As to the purposes of the legislation and the standing orders pertaining thereto, the objective is to settle labour conflicts or disputes concerning the conditions of employment of members of the RCMP. Consequently, the points in dispute concern the individual rights of the applicant and cannot be said to be fundamentally polycentric. The third factor therefore, favours a low level of deference.
[17] The final factor concerns the nature of the problem. In the case at bar, the issue is one of assessment of evidence and not interpretation of a statutory provision. This is a factual question, which the adjudicator is in a better position than the Court to decide, then.
[18] In view of the foregoing, I accept the standard of review proposed by the respondent, the standard of the patently unreasonable decision. In Millard v. Canada (Attorney General), [2000] F.C.J. No. 279, at paragraph 9 ( F.C.A.) (QL), the Federal Court of Appeal effectively stated that judicial deference is necessary owing to the nature of the decision-making system in relation to grievances in the RCMP.
Two-stage grievance processing
[19] Where a grievance is in respect of a performance evaluation, the role of the level II adjudicator is limited to a consideration of whether there is evidence of bias, prejudice or an error of fact or procedure (paragraph 16(a) of the Commissioner's Standing Orders (Grievances), 1990, SOR/90-117 adopted under paragraph 36(a) of the Act).
[20] The applicant argues that his grievance should have been processed in two phases: first, the level II adjudicator should have ruled on the stated procedural errors, and second, he could have discussed the issues of bias, prejudice and errors of fact.
[21] The level II adjudicator states in his decision that the applicant could not divide his grievance into various stages.
[22] I subscribe to the level II adjudicator's statement. The applicant has not proved that he had the right to file a grievance in two stages. I have examined the letter relied on by the applicant to prove his entitlement to a two-stage grievance. I conclude that the letter of Adèle Stang, the grievance auditor, does not accept this principle. More important, box 2A of the grievance form states: "Clearly identify the decision, act or omission giving rise to the grievance. Indicate how you are aggrieved by the decision, act or omission. If necessary, continue on a separate page." Nowhere is there any mention of the possibility of proceeding by stages.
Person authorized to perform the evaluation
[23] The applicant says it was not Staff Sgt. Martin who was to write the evaluation but instead his supervisor at the end of the evaluation period. The evaluation period was from October 17, 1996 to October 16, 1997. The applicant's supervisor was Staff Sgt. Martin at that time, until May 21, 1997, when the applicant was temporarily transferred to the Divisional Criminal Information Analytical Section. It was not until November 12, 1997, that the applicant was notified that he would not be returning to the Special Section. The applicant's new supervisor, Staff Sgt. Bolduc, had refused to participate in the evaluation for the following reasons:
[translation] I have checked Sgt. Frenette's form A-126 for the period in which he was in my sector. He was absent on sick leave from the time he arrived in May 1997 until October 1997. Subsequently, he returned for three days a week for about one month. Given that his presence in my sector was quite infrequent, no file could be accredited to him. The writing of the grievances in which he was involved occupied a portion of his days. He did not work sufficiently in my sector for me to be able to provide a fair and balanced evaluation of the duties, given the circumstances. [Emphasis added]
[24] Since the applicant was on sick leave from May to October 1997, it is normal that the applicant's new supervisor was unable to evaluate his performance. It was not patently unreasonable that it be Staff Sgt. Martin who carried out the evaluation.
Meeting about the evaluation
[25] The applicant claims that Staff Sgt. Martin was to meet with him to discuss the evaluation. This is a question of assessment of the facts. The record discloses that the applicant did not want to examine his evaluation. The file shows that Staff Sgt. Martin attempted to meet with the applicant to discuss the evaluation on the same day he tried to give it to him, but without success. The adjudicator's conclusion, that the applicant could not subsequently complain because of his refusal, is not, in my opinion, patently unreasonable.
Forms 2150 and 1004
[26] The level I and level II adjudicators both found that some minor procedural errors had been committed (e.g. the fact that the intermediate supervisor did not comment on the forms 2510 and 1004). In their view, these were not sufficiently important to invalidate the evaluation as a whole. Once again, this does not appear to me to be patently unreasonable. In Staff Sgt. Martin's evaluation, a number of negative incidents that had occurred during the 1996-97 year were detailed, including some that were within his personal knowledge.
Conformity with previous administrative decisions
[27] The applicant says the level II adjudicator did not follow the precedents developed by other level II adjudicators. It should be recalled that in this Court the issue is whether the level II adjudicator's decision was patently unreasonable. The fact that the level II adjudicator did not follow other administrative decisions is not fatal in itself. The applicant cites, inter alia, the fact that an evaluation should reflect the whole of the year and not simply a small period of the year. It is my opinion, after reading the evaluation written by Staff Sgt. Martin, that he did in fact consider the year as a whole, although he focussed in particular on the most recent months of the applicant's work within the Special Section.
[28] In regard to the principle that the evaluation should be based on the personal knowledge and observations of the evaluator, I note that Staff Sgt. Martin did in fact relate what he had observed himself. He noted the interaction between the applicant and other individuals and the repercussions of the applicant's conduct on other employees. So the evaluation made by Staff Sgt. Martin cannot be characterized as patently unreasonable.
Bias
[29] The applicant submits that the level II adjudicator should have disqualified himself due to the existence of a conflict of interest. The applicant's affidavit states, at paragraph 43:
[translation] On June 19, 2002, the applicant sent an email to the Chief Superintendent Ghyslaine Clement, Director of Human Resources, informing her that the applicant was surprised and amazed to learn that the level II Adjudicator, knowing he was a former boss of the applicant, had not withdrawn before rendering a judgment in this case, knowing that there is a huge conflict between the applicant and the level II Adjudicator. He provides an explanation [sic] thinks that now, some sixteen years later, he is haunted by the result of this conflict knowing that this adjudicator made an important decision related to his grievance. The applicant asks Ms. Clement if there are not some appropriate measures to require an adjudicator to withdraw if he discovers that he may be in a conflict of interest in a case that is before him. The applicant did not receive an answer from Ms. Clement.
[30] In the first place, this allegation of bias was not submitted to the level II adjudicator and no request for disqualification was presented to him. It is trite law that an allegation of bias should be raised at the earliest opportunity. The applicant should have done so at the outset of the level II proceeding.
[31] Secondly, this supposed bias has not been demonstrated. As the Federal Court of Appeal stated, in Arthur v. Canada (Attorney General), 2001 FCA 223, [2001] F.C.J. No. 1091, at paragraph 8 (C.A.) (QL), mere suspicions and impressions are not sufficient:
An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. ... [Emphasis added]
[32] The applicant seems to be saying that the level II adjudicator had been his supervisor 16 years earlier. He argues that at the time there was a "huge conflict" with him. He does not describe the circumstances or the nature of the conflict. Nor does he explain how this conflict dragged on for all these years and how the decision of the level II adjudicator is biassed. I do not adopt this bias argument, therefore.
CONCLUSION
[33] The level II adjudicator's decision is not patently unreasonable and does not necessitate any intervention by this Court. The application for judicial review is therefore dismissed without costs.
ORDER
THIS COURT ORDERS: the application for judicial review is dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1054-02
STYLE: JEAN FRENETTE v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 3, 2004
REASONS: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS
AND ORDER: June 21, 2004
APPEARANCES:
Jean Frenette APPLICANT, REPRESENTING HIMSELF
Raymond Piché FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean Frenette APPLICANT, REPRESENTING HIMSELF
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Montréal, Quebec