BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT
[1] This is an application for judicial review of a decision dated July 4, 2005 of an Adjudicator appointed pursuant to a Request for Intervention made under the provisions of the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements). The intervention was requested pursuant to subsections 21(2) and 31(1) of the Royal Canadian Mounted Police Act R.S., c-8 (2d Supp). The Adjudicator denied the Applicant's request for intervention in respect of a purported withdrawal of a promotion to a supervisory position.
[2] The Applicant, Brenda Gillis, is a civilian member of the Royal Canadian Mounted Police (RCMP) appointed under the provisions of section 7(1)(a) of the RCMP Act, supra. As such, the parties are agreed, the grievance at issue is to be dealt with under the provision of that Act and Standing Orders made pursuant to that Act. This proceeding deals with an effort made by the Applicant to secure and to retain a promotion which she believed she was awarded but was subsequently revoked by those in authority at the RCMP. The matter went to a grievance, called a request for intervention, which comprised a review of a file of written material by an Adjudicator who was a member of the RCMP appointed for this purpose. The Adjudicator refused to intervene in the revocation of the promotion. The Applicant asks that this Court set aside the Adjudicator's decision and restore her promotion. For the reasons that follow I will do so.
Facts
[3] In January, 2003 the RCMP posted a Bulletin advertising for applicants for the position of Civilian Member-Operations Communications Centre, IC-LES T0-03 (a T0-03 position). At that time the Applicant had been with the RCMP for just under four years. She was then engaged at the LES-T0-02 level and a promotion to the T0-03 level would mean that she would assume a supervisory role.
[4] The Applicant applied for the T0-03 position at the end of January, 2003 and, on June 27, 2003 received a memorandum from the Human Resources department stating:
After an in-depth review of your personnel file, service file and résumé, you have been found to meet the basic requirements of this position. Your résumé has been reviewed, weighted and you are deemed to be eligible for the next step in the promotion process.
[5] On August 19, 2003 the Applicant had a job interview. On September 9, 2003 she received a Transfer Authorization from the Office of Staffing and Personnel stating that she would, in 30 days, be promoted from a T0-02 position to a T0-03 position. The position was permanent. This document contained the caution: "This is not a notice of promotion". Almost immediately the Applicant received congratulatory e-mails from friends and colleagues as to her promotion. Importantly, on September 15, 2003, the Applicant received an e-mail, also copied to others, from a member of the Office of Staffing and Personnel, stating, among other things:
"Please be advised that Brenda Gillis will be the T0-03 supervisor in OCC effective 03-09-29"
[6] A notice dated September 12, 2003 was circulated to employees of the Applicant's division respecting Central Region "O" Division Transfers/Promotions stating that the Applicant was transferred to a T0-03 position.
[7] Then things started to go wrong. Someone in the Office of Staffing and Personnel came to the view that the job had been improperly advertised and that certain criteria had been mis-stated. As a result, a meeting was held between the Applicant and members of Office Staffing and Personnel on September 18, 2003, where it was acknowledged that the appropriate person had "signed off" on the Applicant's transfer but there was "clearly a mistake on our (RCMP's) part". It was indicated that the Applicant would be offered "something else... equivalent to the position that she had won".
[8] On September 19, 2003, the next day, the Applicant started to receive verbal comments to the effect that she was not getting the T0-03 position due to an error in the process. On September 24, 2003 the Applicant received an e-mail from another person at the Office of Staffing and Personnel stating that there had been an error in the process and that "...you are to remain in your current role, seconded to informatics until further notice".
[9] On October 15, 2003 the Applicant initiated a grievance procedure. On November 3, 2003 the Office sent another Transfer Authorization to the Applicant purporting to cancel her transfer to a T0-03 position. That was followed by a notice of Central Region "O" Division Transfer/Promotions dated 2003-11-03 - 2003-11-07 sent to "O" Division employees stating that the Applicant's transfer to T0-03 was cancelled.
[10] There were, apparently, a number of mis-steps during the grievance procedure, however ultimately the matter was placed before an Adjudicator, in written form only, not including an oral hearing. The Adjudicator provided a written decision dated July 4, 2005 in which the request for intervention was denied. The substantive portion of the Adjudicator's findings and recommendations were:
I find that the complainant has not established how she has been aggrieved by the respondent's decision to stop a staffing action before completion and deny the complainant the opportunity to occupy a promotion position when the record established that she did not meet the job requirements.
The complainant has argued that on the strength of the publication of the transfer/promotion list of 03-09-12 she should be considered promoted and therefore unfairly treated when the respondent ordered the complainant not to proceed with the transfer, which in effect denied her the promotion.
Having reviewed policy on transfer, promotions and authorities, I am satisfied that the respondent was within his authority to take the actions that he did once the error was called to his attention. Although the transfer notice had been published which would facilitate the promotion, the staffing action was not complete at that stage, the complainant had not moved onto the position and no promotion notice had been issued.
I agree, as well, with his argument that it would have been unfair to qualified CM's who were not selected to allow the complainant to occupy the position once it became know that she did not meet the job requirements.
The member is not promoted on the strength of a transfer notice. They are promoted at the end of a transfer/promotion process that includes the selection process, recommendations to the appropriate officer, acceptance of the Board's recommendations, authorization to issue the transfer notice which starts the process of moving the candidate from one position to another, departure from the old post and arrival at the new post as indicated through the submission of form A22A and then the promotion notice published in the usual fashion indicating the member has been transferred and promoted into a specific position with an effective date, as established in CMM.F.1.
The respondent is well within his authority to stop this process at any step along the way if there is an error identified that would result in the selection or promotion of an unqualified candidate.
Once the final step has been reached and the promotion notice is issued, then reversing this decision is an entirely different process. However, stopping the process short of the final step when an error in process is detected, is not itself and error and it causes no prejudice to the complainant, particularly when it becomes apparent that the member is unqualified for the advertised position.
Aside from the policy consideration in this decision, I am concerned as well with the perceptions by the general membership as to the fairness and efficiency of the promotion system.
Promotions are an important part of a member's career. It is imperative that the members have faith in the system and believe that they will be given a fair opportunity to compete for positions, for which they are qualified.
Support for the process would be seriously eroded if the members believed that it lacked the necessary safe-guards to ensure that an unqualified candidate is not promoted by error. Once the error is detected, regardless of who made the mistake, it needs to be addressed, corrected and not repeated.
Consequently, it falls on the staffing officers to ensure that the process is fair and equitable, and that only qualified candidates are considered for advertised positions. Once a problem is identified within a staffing action, the process must be held in abeyance until the problem is resolved and the process brought back on line with established policy. Otherwise the process falls into disrepute and becomes the source of discontent.
I find the actions of the respondent to be consistent with Force policy and within his authority to cancel the staffing action and rescind the offer of transfer/promotion to the complainant once it became apparent that the JOB had been published in error and the complainant did not meet the job requirements for work experience.
Having failed to establish how she was aggrieved by the decision giving rise to this complaint, I find that the complaint fails of the merits and the Request for Intervention is denied.
[11] The Applicant now seeks a judicial review of this decision.
Issues for Determination
[12] The fundamental issue is whether this Court will set aside the decision of the Adjudicator and, if so, what relief will be given. In arriving at a determination the Court must consider:
1. Was there a denial of natural justice in the process such that the entire proceeding must be set aside;
2. If not, what is the appropriate standard of review to be applied to the decision;
3. Given the appropriate standard of review, was the decision flawed in such a way so as to be set aside;
4. If the decision is set aside, what remedies are to be granted, if any.
[13] These issues will now be considered.
Issue #1- Was there a denial of natural justice in the process such that the entire proceeding must be set aside
[14] The Applicant states that she did not receive an oral hearing thus she was denied fundamental natural justice and the proceeding is a nullity.
[15] There is no inherent right to an oral hearing in matters of this kind. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 18 to 34 the Supreme Court of Canada considered the question of procedural fairness, in particular the right to an oral hearing. The Court held that while there clearly exists a duty of fairness, the requirement as to how that duty is met will depend on the circumstances, an oral hearing is not an essential requirement.
[16] Here the Applicant was asked, in cross-examination, whether she believed that she had a full opportunity to present her position in support of her grievance, her answer was yes. A review of the record supports her answer.
[17] The duty of fairness and natural justice was appropriately met in this case.
Issue #2 - What is the appropriate standard of review to be applied to the decision
[18] The Applicant's counsel states that the appropriate standard of review in respect of matters of law only is that of correctness. Respondent's counsel agrees.
[19] In the case of this decision, Applicant's counsel asserts, and Respondent's counsel somewhat hesitantly agrees, that the determination is that of mixed law and fact. Applicant says the standard is reasonableness simpliciter, Respondent says it is patent unreasonableness or, in the alternative, reasonableness simpliciter.
[20] In Pushpanathan v. Canada (MCI), [1998] 1 S.C.R. 982 Justice Bastarache for the majority at paragraph 26 states that the reviewing court must ask "was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board." The Court has to embark, as he put it in paragraph 27, upon a "pragmatic and functional" approach, applying different factors, none of which are alone dispositive. These factors are 1) Privative Clause, 2) Expertise, 3) Purpose of the Act as a whole and the provision in particular, 4) Nature of the problem, a question of law or fact.
[21] In this case there is a privative clause. Section 25 of the Standing Orders says that the decision is not subject to appeal or further review. This provision is clear and straight forward and can be considered as a reasonably strong provision such that the standard tends towards patent unreasonablness.
[22] The expertise of the Adjudicator is not entirely clear. On cross-examination the Respondent's witness was asked as to the expertise of the particular individual and was unable to give any helpful answer. The Standing Order simply describes an "Adjudicator" in section 1 as an officer or senior manager designated by the Commissioner. It appears that an Adjudicator is not a full time position and not one for which there must be specialized qualifications. This points to lower deference.
[23] The purpose of the Act and, in particular, the Standing Order is to address, as set out in section 2(1), 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 that official languages requirements, established for a position through a decision, act or omission, by which decision, act or omission a member had been aggrieved.
[24] Section 4 says that the matters are to be dealt with as expeditiously as the circumstances permit.
[25] These factors point to a higher level of deference.
[26] The nature of the problem is a mixture of law and fact. The facts must be ascertained and measured against laws, policies and procedures relating to transfers and rescinding of transfers. This points to a moderate level of deference.
[27] Certain decisions of tribunals within the RCMP have been examined as to the level of deference. In Shephard v. Fortin (2003), 242 FTR 42 this Court determined that a review of a promotions policy was to be conducted under the standard of patent unreasonableness. In Smith v. Canada (2004), 12 Admin. L.R. (4th) 250 the decision of the Adjudicator in a promotions and job requirement issue was given great deference. In Brennan v. Royal Canadian Mounted Police, Inspector [1998] F.C.J. No. 1629 a determination as to refusal of promotion was given substantial deference somewhat short of patent unreasonableness. In Sinclair v. Canada(Attorney General),2006 FC 528 a question of discharge was held to be one clearly of a factual nature, thus to be considered on the basis of patently unreasonable.
[28] Here the question is one of mixed law and fact. Both counsel agreed that the question was not whether the Applicant had gotten the job, rather, the question was whether the RCMP had the right to rescind the transfer to that job. A standard of reasonableness simpliciter is the appropriate one.
Issue #3- Given the appropriate standard of review, was the decision flawed in such a way so as to be set aside
[29] The function of the Adjudicator is set out in section 22(1)(a) of the Standing Order. The Adjudicator:
a) shall dismiss the request for intervention; or
b) shall, if the adjudicator determines that a decision, act or omission is erroneous and has prejudiced the complainant, order appropriate corrective action.
[30] Section 23 states that the Adjudicator's decision shall not extend to a determination of whether or not the complainant "is entitled to be promoted".
[31] The question for determination by the Adjudicator was correctly stated in the second paragraph of the findings set out earlier in these Reasons, it was whether:
"...she should be considered promoted and therefore unfairly treated when the respondent ordered the complainant not to proceed with the transfer, which in effect denied her the promotion."
[32] The Adjudicator cannot decide whether the Applicant "is entitled to be promoted" since section 23 of the Standing Order precludes that. The Adjudicator can only determine if the Applicant was improperly denied the promotion she already received. Yet the Adjudicator did precisely what he could not do, he decided the matter on the basis of entitlement to promotion, he said:
The member is not promoted on the strength of a transfer notice. They are promoted at the end of a transfer/promotion process that includes the selection process, recommendations to the appropriate officer, acceptance of the Board's recommendations, authorization to issue the transfer notice which starts the process of moving the candidate from one position to another, departure from the old post and arrival at the new post as indicated through the submission of form A22A and then the promotion notice published in the usual fashion indicating the member has been transferred and promoted into a specific position with an effective date, as established in CMM.F.1.
The respondent is well within his authority to stop this process at any step along the way if there is an error identified that would result in the selection or promotion of an unqualified candidate.
[33] It is to be noted that section 23 precludes the Adjudicator from determining whether a person "is entitled" to be promoted, not whether a person "is qualified" to be promoted. Here the Adjudicator did not address qualification, rather he addressed the process of promotion, that is, he addressed entitlement. The Adjudicator determined that the process of promotion or transfer was not complete hence could be interrupted. He cannot decide that.
[34] The question was, given that the Applicant was entitled to a promotion, can it be reversed? On this question the Adjudicator said:
Once the final step has been reached and the promotion notice is issued, then reversing this decision is an entirely different process. However, stopping the process short of the final step when an error in process is detected, is not itself an error and it causes no prejudice to the complainant, particularly when it becomes apparent that the member is unqualified for the advertised position.
[35] By implication, the Adjudicator has found that reversal cannot be made once the promotion is effective. I agree. He did so on the basis that something called a "promotion notice" had yet to be issued. There is nothing the Act or Standing Orders that says what a "promotion notice" is or how or when it is "issued". If it is the e-mail of September 15, 2003 saying that the Applicant "will be" a T0-03, that document was issued. If it was the September 12, 2003 Transfer/Promotions Notice, that document was issued too.
[36] Counsel for the Respondent provided, in answers to undertakings of the Respondent's witness, McCann, a "Policy Directorate", the relevant portion of which both counsel agree is section F-1-b:
F.1. The effective date of a promotion will be:
F.1.b. the date the member departs the old position as indicated on form A-22A. The promotion date cannot precede the authorized date of transfer or fulfillment of all conditions for promotion.
[37] There is no evidence as to what form A22A is. It could have been the e-mail or notice referred to above, in which case the Adjudicator's decision is plainly wrong.
[38] In any event, the Adjudicator's decision is wrong in law. The effective date of transfer is the "date the member departs the old position", form A-22A "indicates" that, but is not a necessary requirement for the transfer to be effective. The Applicant had, to the fullest extent possible, departed her old position, she was precluded, as ordered by the e-mail of September 24, 2003 from doing anything more than she had already done.
[39] Thus the decision of the Adjudicator, on any standard, including that of patent unreasonableness or reasonableness simpliciter, was wrong. It was erroneous for the Office of Staffing and Personnel to attempt to reverse the transfer already awarded to the Applicant.
[40] The next issue, as required by section 22(2)(b) of the Standing Order is a consideration as to whether the Applicant was prejudiced. The Adjudicator simply said, in this regard that the Applicant had:
"...failed to establish how she was aggrieved..."
[41] There was no discussion whatsoever as to prejudice to the Applicant. The only discussion by the Adjudicator was as to:
"...perceptions by the general membership as to the fairness and efficiency of the promotion system."
[42] Prejudice to the general membership is irrelevant. The relevant issue as set out in section 22(2)(b) of the Standing Order is prejudice to the complainant. That prejudice is clear, she was prevented from getting a job that not only gave more salary but put her into a supervisory role. She went from worker to supervisor. Preventing that was prejudicial. The Adjudicator in failing to address this issue was not just simply unreasonable, but patently unreasonable.
[43] The decision must be set aside.
Issue #4- If the decision is set aside what remedies are to be granted, if any.
[44] The decision is set aside. The determination that should have been made, in accordance with section 22(2)(b) of the Standing Order is to "order appropriate corrective action". Section 18.1(3) of the Federal Courts Act, R.S.C. 1985, C.F-7 provides that this Court may order a federal board, commissioner of other tribunal to do any act or thing that it has unlawfully failed or refused to do.
[45] The Adjudicator has failed to order appropriate corrective action. That corrective action would be to declare that the purported Transfer Cancellation of November 3, 2003, to be a nullity, and to direct that the Applicant, Brenda Gillis, forthwith be installed in the T0-03 position to which she is entitled. This will be so ordered.
Costs
[46] The Applicant has been successful and is entitled to costs. The usual level of costs, Column III, at the middle, is appropriate.
In Conclusion
[47] The Applicant is successful, a Judgment will go setting aside the decision of the Adjudicator and affording the decision that ought to have been given. Costs at the middle of Column III are awarded.
[48] Counsel for each of the parties have been most helpful. I reiterate what Counsel for the Applicant has said as to the great courtesy and assistance that was given to her by Counsel for the Respondent. This is in the best tradition of the bar.
Toronto, Ontario
May 4, 2006
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1505-05
STYLE OF CAUSE: BRENDA GILLIS
Applicant
and
AGC
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
BY: HUGHES J.
APPEARANCES BY:
| Lorraine Porr |
|
| Melanie Toolsie |
SOLICITORS OF RECORD:
| Harrison, Pensa LLP London, Ontario
|
|
| John H. Sims, Q.C Deputy Attorney General of Canada
|
|