Ottawa, Ontario, Friday the 17th day of June 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] At all times relevant to this application, job descriptions and job requirements for positions available to members of the Royal Canadian Mounted Police ("RCMP") were described in the RCMP Career Management Manual ("CMM"). Members who were interested in promotion, or a lateral change of duties, were to review the CMM. If a member believed he or she met the job requirements for a specific position, the member was to submit their name for consideration through the RCMP Human Resource Management Information System ("HRMIS") Employment Career Preferences process.
[2] Pursuant to this process, Corporal Smith, the applicant, expressed interest in the position of "CPIC Field Operations IC/Auditor" described in Job Code 575 contained in the CMM. Such a position subsequently became available, and RCMP staffing personnel conducted a HRMIS search to identify possible candidates. Corporal Smith's interest in the position was identified in the HRMIS search, but he was not contacted in respect of the vacancy, and was eliminated from further consideration, because staffing personnel concluded that he was not qualified for the position.
[3] As a result, Corporal Smith filed a request for intervention, as permitted by the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements). An adjudicator refused Corporal's Smith's request for intervention. However, such decision was quashed by this Court, and the matter was remitted for re-determination by another adjudicator. That re-determination has been conducted, and a second adjudicator has denied Corporal Smith's request for intervention. He brings this application for judicial review of that negative decision.
JOB CODE 575
[4] Job Code 575 is brief, and is as follows:
Job Description:
The member is responsible for:
1. conducting CPIC audits of all municipal and government agencies and the RCMP;
2. investigating complaints against CPIC breaches of security and improprieties in the use of the CPIC system; and
3. providing user assistance and training to all municipal, RCMP and government agencies.
Job Requirements:
Education:
1. RCMP minimum at time of engagement.
Experience:
1. Several years of operational policing experience.
2. Some experience in CPIC field operations or in CPIC services.
THE ADJUDICATOR'S DECISION
[5] The adjudicator reviewed in some detail the facts of the case and the positions of the parties, noting that Corporal Smith was informed that he did not meet the job requirements because he did not have "[s]ome experience in CPIC field operations or in CPIC services" as required in the experience portion of the job requirements. The adjudicator considered Corporal Smith's arguments that there was a lack of clarity in Job Code 575, but that nonetheless Corporal Smith did have the required experience because he spent one year as the CPIC coordinator at the Vancouver International Airport detachment. Against this, it was argued by the respondent to Corporal Smith's request for intervention, that Corporal Smith had never been posted either in a CPIC field operations section or in CPIC Services in Ottawa and, therefore, he did not meet the job requirement.
[6] In giving his decision, the adjudicator first dealt with the wording of Job Code 575, and in particular the use of the phrase "[s]ome experience in CPIC field operations or in CPIC services". The adjudicator found that, on the surface, reference to CPIC field operations or CPIC services may suggest, to an inexperienced person, that anyone who has worked with CPIC as a police employee may have the required experience. However, the adjudicator indicated that he believed an experienced employee, including the applicant, would know that the reference to CPIC field operations or CPIC services meant a specific section or unit as opposed to general CPIC experience gained at the detachment level.
[7] In addition, the adjudicator determined that the fact that Corporal Smith selected the "CPIC Field Operations IC/Auditor" position to add to his HRMIS files suggested that he must have considered that he was indicating an interest for a specific section/unit and that the title of that section/unit was CPIC Field Operations. The adjudicator explained this finding as follows:
[21] On one hand the Complainant was applying for the specific section, CPIC Field Operations, which he knew was not the function of a CPIC detachment supervisor and yet when the Job Code advised that he would need "Some experience in CPIC field operations" it would appear to me that he may have ignored the obvious connection between this requirement and the specific job he was indicating an interest in. To express an interest in CPIC Field Operations, knowing full well it is a separate section and then argue that the requirement to have some experience in "CPIC field operations" does not equate to experience in a CPIC Field Operations section is something I find difficult to accept.
[8] With respect to the term "CPIC services" found in the Job Code, the adjudicator concluded that any employee reading Job Code 575 would understand that some experience would be necessary in a dedicated CPIC section somewhere in Canada.
[9] The second issue addressed by the adjudicator was Corporal Smith's complaint that he was not contacted personally before he was eliminated from consideration for the auditor position. The adjudicator noted that, at the relevant time, the selection process required that an HRMIS search be conducted, and staffing personnel check the interested individuals' files to determine if they met all of the requirements. If more than one individual was identified, then a promotions selection committee would be required. In this case, only two individuals were identified via the HRMIS search and only one individual, ultimately the successful candidate, was found to possess the necessary requirements. Once it was determined that Corporal Smith did not have the requisite experience, he was not considered further.
[10] While Corporal Smith argued that he should have been contacted in order to allow him to "make his case", the adjudicator found that staffing personnel either have to contact all HRMIS identified applicants in every case, or not contact any identified applicants and rely on the system to do the work it was designed to do. The adjudicator noted that one of the main purposes of the HRMIS system is to allow staffing personnel to quickly identify employees interested in a particular job. In the adjudicator's view, it would be unrealistic to suggest that every applicant should be personally contacted to review their HRMIS information for each promotion opportunity.
[11] In the result, the adjudicator found that staffing personnel had made the correct decision to eliminate Corporal Smith from any further consideration for the auditor position.
THE STANDARD OF REVIEW
[12] 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.
[13] 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.
THE ISSUES
[14] Corporal Smith argued orally that the adjudicator erred in the following respects.
[15] First, the Job Code requirements, as written, were much simpler than the actual requirements for the job. As written, the Job Code described a developmental position with a basic general knowledge requirement. The adjudicator erred by focussing on the actual requirements of the position and not on the requirements as written. The adjudicator relied upon his own opinion and did not use any applicable policy to clarify the Job Code as written.
[16] Second, the adjudicator erred in failing to conclude that staffing personnel ought to have contacted him. Corporal Smith argues that it is reasonable for members to expect some consideration if their name surfaces during a HRMIS search, and even more so if five interested and qualified candidates cannot be identified.
[17] Third, the adjudicator failed to provide any analysis or reasons for his conclusion.
ANALYSIS
[18] Without doubt, Job Code 575 could have been written more clearly. At issue, however, is whether it was patently unreasonable for the adjudicator to conclude that Corporal Smith did not meet the requirement of having "[s]ome experience in CPIC field operations or in CPIC services", notwithstanding his experience as the CPIC coordinator at the Vancouver International Airport detachment.
[19] Where a decision is patently unreasonable, the defect in the decision is apparent on the face of the reasons given for the decision. (See: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 57). In Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 52, the Court noted that a patently unreasonable defect, once identified, can be explained simply and reasonably, leaving no real possibility of doubting that the decision is defective. In Canadian Union of Public Employees (CUPE) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 164, the majority of the Supreme Court explained that where a question admits many appropriate answers, but not the one reached by the decision-maker, the decision is patently unreasonable.
[20] Turning to the facts of this case, the adjudicator considered Corporal Smith's submission that his experience at the Vancouver International Airport, where he supervised CPIC data entry and maintenance for a period in excess of a year, provided him with the requisite experience. The adjudicator referred to the letters from former colleagues which Corporal Smith provided and which described his duties and performance during that period. Those letters stated that:
i. "I clearly remember Rob doing PIRS audits and CPIC".
ii. "Rob was responsible for ensuring the correctness of entries and reports for PIRS and CPIC".
iii. "I was responsible for PIRS and CPIC data entry. Corporal Smith was then responsible in his position as 'reader' to review the files for compliance with CPIC/PIRS and operational policy and procedures".
[21] Faced with an admittedly poorly drafted description of the required experience, it was the responsibility of the adjudicator to determine whether the staffing personnel improperly determined that Corporal Smith did not meet the requirements for the position, and improperly failed to notify him of the opportunity to compete. Having regard to the adjudicator's own experience and expertise, the adjudicator concluded that an experienced employee would not be misled by the lack of clarity. Corporal Smith has not shown any immediate defect in respect of that conclusion, he simply disagrees with it. Further, the adjudicator took the view that by indicating interest in the position "CPIC Field Operations IC/Auditor" in his HRMIS file, Corporal Smith must have appreciated that he was indicating an interest in a specific section or unit, called "CPIC Field Operations". The adjudicator found it illogical to express an interest in "CPIC Field Operations", knowing it to be a separate section, and then to argue that the requirement to have some experience in "CPIC field operations" does not equate to experience in a CPIC Field Operations section. Corporal Smith has not shown any immediate defect in respect of that conclusion.
[22] Corporal Smith accepts that simply working with CPIC in general duty policing is not sufficient to meet the requirement of Job Code 575. However, he has not shown that it was patently unreasonable to find that supervising the correctness of CPIC data entries and ensuring that those entries were in accordance with operational policy and procedures, did not equate to some experience in CPIC field operations or in CPIC services.
[23] In summary, Corporal Smith views the Job Code, as written, to describe a developmental position. The adjudicator came to a different conclusion and I have not been persuaded that the adjudicator's conclusion was patently unreasonable.
[24] With respect to the second issue raised by Corporal Smith, in his initial submission Corporal Smith noted that "[i]f I had been too far down the list of people or did not eventually make a short list of candidates I could understand no further contact but in this case Sgt. Gregoire advised me the successful candidate was the only candidate considered". The adjudicator therefore found that Corporal Smith was suggesting that in some cases it would be acceptable for staffing personnel not to contact all HRMIS identified members for a job application, but in other cases staffing personnel would be required to contact members. The adjudicator rejected such submission. In the adjudicator's view, staffing personnel must either contact all HRMIS identified applicants in every case, or not contact any identified candidates and rely on the system to work as it was designed to do. The adjudicator found that requiring members to be contacted would undermine the purpose of the system, which is to allow staffing personnel the ability to quickly identify employees who have an identified interest for a particular job.
[25] I do not find that conclusion to be patently unreasonable.
[26] Finally, Corporal Smith argues that the adjudicator made the same errors this Court found in the first adjudicator's decision. I do not agree. The decision under review in this application did address Corporal Smith's submissions and, in my view, adequately explained why the adjudicator found that Corporal Smith's interpretation of Job Code 575 was not correct.
CONCLUSION
[27] For these reasons, I have not been satisfied that the Court should intervene to set aside the decision of the adjudicator, and the application for judicial review will be dismissed.
[28] The Attorney General seeks costs. In my view, the issues raised by Corporal Smith were valid and not free from doubt. The dispute arose from the ambiguity in Job Code 575, which was in no way the fault of Corporal Smith.
[29] In those circumstances, I determine this to be an appropriate case for each side to bear their own costs. No costs will be awarded.
ORDER
[30] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. No costs are awarded to either party.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1112-04
STYLE OF CAUSE: ROBERT GEORGE SMITH V. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: APRIL 14, 2005
REASONS FOR ORDER AND DAWSON J.
ORDER
APPEARANCES:
SELF-REPRESENTED FOR THE APPLICANT
KEITHA J. RICHARDSON FOR THE RESPONDENT
SOLICITORS OF RECORD:
SELF-REPRESENTED FOR THE APPLICANT
JOHN H. SIMS, Q.C.