Ottawa, Ontario, April 11th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA, THE ROYAL CANADIAN
MOUNTED POLICE GRIEVANCE REVIEWER, LABOUR RELATIONS UNIT,
REGINANWR HUMAN RESOURCES,
NCO I/C STAFFING AND PERSONNEL NWR "K" DIVISION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Royal Canadian Mounted Police has a policy that First Nations communities should be policed by a certain number of Aboriginal RCMP officers with a similar cultural and linguistic background to ensure that police services will be effective and responsive to the needs of these communities. This case deals with how the RCMP assesses and determines whether a candidate for an RCMP Aboriginal position meets the RCMP criteria to qualify as an Aboriginal.
[2] This is an application for judicial review of a decision dated July 29, 2002 by Staff Sergeant David Asp, a staffing and personnel officer in the North-West Region of "K" Division of the RCMP, implementing a Level II Adjudicator's Decision which allowed the applicant's grievance of non-selection for one of three Aboriginal corporal positions.
Facts
[3] The applicant is a registered Treaty 6 Indian and a member of the Samson Cree First Nation. His affidavit deposes at paragraphs 3, 4 and 5:
¶ 3. As a member of the Samson Cree Nation and having been born to Indian parents, I learned to speak Cree and acquired an intimate knowledge of Cree culture, values and customs.
¶ 4. I resided on the Samson Cree Nation Reserve in Hobbema off and on until I was 12 years of age. When I was 16 years of age, moved to the Enoch Cree Nation Reserve where I lived until I was approximately 34 years of age. I lived off the reserve until the age of 38. I then moved to the Samson Reserve and reside on Samson Band property.
¶ 5. On December 19, 1993 I was hired by RCMP "K" Division in the Edmonton Indian Special Constable Program. This Program was designed by the Federal Government ... for the purpose of recruiting Aboriginals into the RCMP. ...
[4] On or about May 18, 1999, an RCMP Job Opportunity Bulletin (JOB) was issued for three corporal positions at three different Aboriginal detachments in "K" Division. The JOB required that "to meet the objectives of the Aboriginal Policing Program ... this position will be open to qualified promotable aboriginal constables with an inherent knowledge of aboriginal lifestyle and culture".
[5] The applicant deposed that he was "very excited" by the JOB since the position of corporal is consistently staffed by non-Aboriginals. The applicant applied for the position of corporal in the Hobbema Aboriginal detachment.
[6] On June 22, 1999, the RCMP advised the applicant that he had not been promoted. Of 15 RCMP members seeking promotion, three candidates were selected on the following basis:
1. it was determined whether the candidates were Aboriginal or self-identified themselves as Aboriginal on the RCMP's Form 3501: "Self-Identification Questionnaire"; and
2. those members were ranked on the basis of a combination of the member's seniority in the RCMP and an averaged equal weighting of the Job Simulation Exercise and Performance Report for Promotion.
Staffing and personnel chose the three members with the highest resulting ranking and awarded them the promotions. The applicant was found qualified for the position, but ranked ninth.
[7] Constable Bruno deposed that he was "shocked and surprised" at the appointment of Constable Thorne to one of the three Aboriginal corporal positions because:
1. Corporal Thorne did not look Aboriginal;
2. Corporal Thorne had not been raised in an Aboriginal family, community or environment;
3. Corporal Thorne did not speak an Aboriginal language; and
4. Corporal Thorne did not have intimate knowledge of Aboriginal culture, values or customs.
Constable Bruno deposed in his affidavit:
"I was subsequently advised by Constable David Thorne that he had attended a family funeral three weeks prior to his promotion and had discovered that he may be of Métis origin. He further advised that following that discovery, he obtained a Métis card for $10.00 and proceeded to identify himself as an Aboriginal on the Self-Identification Questionnaire."
Level I Grievance
[8] On June 30, 1999 Constable Bruno grieved this staffing decision to the Level I Adjudicator who by decision dated June 8, 2001 denied his grievance. The Level I Adjudicator concluded that both Treaty or Métis members were considered Aboriginal by the RCMP, and that a member's "self-identification" as an Aboriginal member was sufficient to meet the JOB Aboriginal requirement.
Level II Grievance
[9] Constable Bruno filed a Level II grievance on January 8, 2002. By decision dated July 8, 2002, the RCMP Level II Adjudicator, Superintendent J.P. Brazeau, allowed the applicant's grievance, concluding that self-identification is not sufficient to establish the bona fide job requirement, that practices must be adopted to ensure that standards may not be abused by members not meeting eligibility requirements, and that the October 18, 1996 RCMP memorandum of Dieter Schachhuber, Officer in Charge of Official Languages and Diversity Management Branch, was an appropriate standard to assess Aboriginal identity for promotions.
The RCMP October 18, 1996 Memorandum
[10] This memorandum recommended that a candidate should satisfy two of three criteria to establish Aboriginal identity:
1. look Aboriginal;
2. prove Aboriginal ancestry with documentation; and
3. demonstrate Aboriginal identity, including a knowledge of Aboriginal language and culture.
[11] This RCMP October 18, 1996 memorandum reads in part as follows:
[ ...]
Subject: IDENTIFICATION OF ABORIGINAL APPLICATANTS
[ ...]
The first and most important point to be made is that recruiting priorities for Aboriginals constitute a special program and therefore have to meet a number of criteria. Applicants who do not fit the criteria of the program cannot expect to be engaged merely by claiming they are Aboriginals.
[ ...]
A person who does not look like a visible minority, who would suffer disadvantage, or who did not grow up and/or live in a disadvantaged environment as part of being a member of a disadvantaged visible minority group obviously is not eligible for a special program designed to make up for past disadvantage.
Based on the above references, it is possible to identify a number of criteria an individual applicant must satisfy to be identified as an Aboriginal for the purpose of recruiting.
1. LOOK ABORIGINAL: This is a very subjective measure, but in most cases reasonable, informed people would come to a consensus. If a person does not look Aboriginal, #'s 2 and 3 apply.
2. PROVE ABORIGINAL: Documented proof that a person is Aboriginal. Ideally this documented proof is in addition to #1 above, to eliminate all doubts. Usually this documented proof shows that an applicant was raised in an Aboriginal family, community or environment.
3. ABORIGINAL IDENTITY: This is the most important criteria. The RCMP is recruiting Aboriginals primarily for their contribution to Aboriginal policing. They should speak Aboriginal languages, know Aboriginal culture, values and customs. This would have been developed by having grown up in Aboriginal communities or at least through a close personal affinity with Aboriginal communities, groups, families.
To ensure that Aboriginal applicants can make an optimum contribution to the work of the RCMP at least two of the above three criteria should be proven. By doing so, recruiters will be able to ensure that claims of Aboriginal status are as likely to be true as possible and will in fact contribute to the work of the RCMP among Canada's Aboriginals.
[ ...]
The Level II Adjudicator's Decision
[12] The Level II Adjudicator's Decision made the following findings:
1. he did not agree with the Level I Adjudicator that there is no evaluation mechanism in place for the RCMP to assess potential candidates in their knowledge of Aboriginal lifestyle or culture;
2. the memorandum dated October 18, 1996 is an effective evaluation mechanism within the RCMP which can assess whether candidates are truly Aboriginal;
3. in this case, RCMP staffing made no attempt to determine whether the candidates were Aboriginal and had "an inherent knowledge of Aboriginal lifestyle and culture";
4. Constable Bruno, the applicant, was not given proper consideration for the position, and he and the three successful candidates should be assessed as to whether they meet the criteria set out in the JOB using the evaluation mechanism developed in the October 18, 1996 memo; and
5. if this reassessment found that Constable Bruno meets the JOB requirement (qualified, promotable, Aboriginal constables who have an inherent knowledge of Aboriginal lifestyle and culture) and that any or all of the three successful candidates do not, then Constable Bruno should be promoted retroactively.
[13] The Adjudicator's Decision states at page 8:
The Grievor's Level II submission contains a number of convincing arguments, although I do not agree that the practice of using "Self-Identification" forms is contrary to both RCMP and FNPP policy. The problem in the instant case was that Staffing made no attempt to determine whether the Self-Identified candidates possessed a certain attribute which was included in the JOB by Staffing. Nor do I agree that there is no effective evaluation mechanism in existence within the RCMP which can assess the Aboriginal ancestry of candidates. As I stated previously, I believe the October 18, 1996 memo of Mr. Schachhuber does just this. In the Level II submission, I particularly agree with the following words;
"the adoption of an employment equity standard which favours the recruitment and promotion of members of Aboriginal identity carries with it certain legal responsibilities. Specifically, practices must be adopted to ensure that the standard not be abused by members not meeting the eligibility requirements."
[ ...] (Emphasis added)
[14] The Adjudicator's Decision held at page 9:
I believe the Grievor was not given proper consideration for this position, and he and the three successful candidates should be assessed as to whether they meet the criteria set out in the JOB of May 18, 1999. If no evaluation mechanism to determine Aboriginal ancestry has been developed since May 18, 1999, and the date of my decision, then Staffing should apply the criteria set out in Mr. Schachhuber's memo of October 18, 1996. If it is found that the Grievor does possess this job requirement ("qualified promotable Aboriginal constables who have an inherent knowledge of Aboriginal lifestyle and culture") and that any or all of the three successful candidates do not, then the Grievor should be promoted retroactively to the date the first of the three successful candidates (not possessing this job requirement) was promoted.
The RCMP Decision under review
[15] The RCMP did not appeal the Level II Adjudicator's Decision to the next grievance level. Instead, the RCMP accepted the decision so that it is a final decision binding on the RCMP. The RCMP then implemented that decision.
[16] The implementation decision did not reassess the three successful candidates and Constable Bruno by way of interview or further research. Rather Staff Sergeant Asp reviewed their files and concluded that:
1. Corporal Thorne does not look Aboriginal;
2. Corporal Thorne and the other successful candidates have documentation proving their formal native identity as Métis; and
3. Corporal Thorne and the other two successful candidates have been posted to Aboriginal detachments. Corporal Thorne has been posted in Aboriginal detachments for a total of 11 years. From these postings, the candidates possess the necessary knowledge of Aboriginal lifestyle and culture.
[17] The implementation decision is set out in a memorandum dated July 29, 2002 from Staff Sergeant David Asp. It concluded that the successful candidates promoted to the rank of corporal were fully qualified Aboriginal members, such that Constable Bruno could not be promoted to any of their positions. The memorandum reads in part:
[...] Cst. Bruno clearly possessed the job requirements as per the original Job Opportunity Bulletin.
The adjudicator directs that if any or all of the three successful candidates do not meet the JOB requirements "qualified promotable Aboriginal constables who have an inherent knowledge of Aboriginal lifestyle and culture", then the Cst. Bruno should be promoted retroactively to the date the first of the three successful candidates (not possessing this job requirement) was promoted. A review of the three successful candidates files were made. All of these candidates forwarded documentation outlining their Formal Identity of Aboriginal Ancestry. It is clear throughout the review that two of these members, then Cpl. Fraser and Cpl. Ladouceur, in addition possess and display distinctive native features, look Aboriginal.
Utilizing the criteria set out in Mr. Schachuber's memorandum of October 1996, as no other official criteria has been established, 1) LOOK ABORIGINAL, 2) PROVE ABORIGINAL, & 3) ABORIGINAL IDENTITY. Number 1 & 2 are straight forward and number three states the person should "speak Aboriginal languages, know Aboriginal culture, values and customs". The recommendations is that the candidates meet at least two of the three criteria.
All three of the selected candidates are officially recognized as METIS, met through documentation. Cpl Thorne does not outwardly display the distinctive native features, however, when doing a review of this members postings throughout his career to date, it is clear that he possess the necessary knowledge of Aboriginal lifestyle and culture. Cpl. Thorne has been posted to identified Aboriginal Postings of Prince Rupert B.C., Fort Providence, NWT, Yaloyoak Detachment, Inuvait, and Hobbema Detachment since 1997. For purposes of this review, up to June 3, 1999, he had been posted in Aboriginal Detachments for a total of 11 years prior. In addition to Cpl. Thorne, Cpl's Fraser and Ladouceur had also been primarily posted to Aboriginal Detachment in Identified First Nation Policing positions; Cpl. Ladouceur has been posted to Lac La Biche, Wetaskiwin, Fort Chipewyan, Saddle Lake FNP Detachment, a total of 8 years prior to receipt of his promotion to Corporal at Saddle Lake. Cpl. Fraser was posted to Ft. McMurray FNP, Headquarters "N" Division Aboriginal Policing Branch, and Rocky Mountain House Detachment and Sunchild O'ches FNP Detachment, a total of 8 years.
It is clear throughout the review that all three of the successful candidates were and remain fully qualified Aboriginal Members (sic) no further redress is required on this decision.
(Emphasis in original)
[18] Constable Bruno filed another grievance with respect to the implementation decision by the RCMP of the Adjudicator's Decision. Staff Sergeant Asp responded to that grievance in a memorandum dated October 23, 2002. He said that the Adjudicator's Level II Decision has already been implemented and that:
"Constable Bruno is not entitled to commence another Grievance. He is however, entitled to request a Federal Court review of the matter and has done so.
This grievance has no standing and no further action from this office will be undertaken."
Relevant Legislation
[19] The legislation relevant to the RCMP grievance process is the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (the Act), and the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141. The relevant excerpts are attached to these reasons as Appendix "A".
Issues
[20] The issues raised in this application are:
1. should the Court, in its discretion, decline to exercise its judicial review jurisdiction because this issue was properly subject to the grievance process which is an adequate alternative remedy and which should have been pursued before seeking judicial review by this Court?;
.
2. in the alternative that the Court exercises its judicial review jurisdiction over this matter, what is the appropriate standard of review?; and
3. applying the appropriate standard of review, should the Decision of Staff Sergeant Asp dated July 29, 2002 regarding the implementation of the Level II Adjudicator's Decision be set aside because it was patently unreasonable or unreasonable?
Analysis
Issue No. 1: Should the Court, in its discretion, decline to exercise its judicial review jurisdiction because this issue was properly subject to the grievance process which is an adequate alternative remedy and which should have been pursued before seeking judicial review by this Court?
[21] In Rae v. Canada(Attorney General) (1995), 58 A.C.W.S. (3d) 3 (F.C.T.D.), Madam Justice Reed held that an RCMP member had to exhaust the remedies available to members to grieve decisions before the Court would take jurisdiction on judicial review. Justice Reed stated at paragraph 3:
¶ 3 The difficulties which lie in the way of any decision on the present application being a meaningful one are: (1) the decision under review is that of the Staff Sergeant Jeffery [...] No grievance was filed with respect to the earlier decision of Staff Sergeant Jeffery, although counsel for the respondent takes the position that that course of action was open to the applicant, and he should have pursued it before commencing an application for judicial review in this Court. In any event, it is a basic principle of administrative law that an applicant should exhaust the remedies available to him before a Court will take jurisdiction by way of judicial review.
[22] Subsection 31(1) of the Act provides an internal grievance scheme for work-related disputes where "no other process for redress is provided by this Act, the regulations or the Commissioner's standing orders". On the date the redress implementation decision was issued, July 29, 2002, the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141 ("Promotions CSO") were standing orders in force as of April 6, 2000 pursuant to subsections 21(2) and 31(1) of the Act. Section 2 of the Promotions CSO provides that the orders apply instead of Part III of the Act to the presentation and resolution of all grievances of members in respect of the selection processes for the promotion of members and job requirements established for a position. The dispute in the review at bar concerns a decision implementing a prior decision of a Level II Adjudicator which ordered a reassessment by management whether candidates for promotion have met specific Aboriginal job requirements. In my view, the subject matters falls within the application of the Promotions CSO, which is therefore an internal grievance scheme that must be exhausted by an applicant prior to seeking the Court's intervention.
[23] To determine whether the Court should decline to exercise its judicial review jurisdiction, the Federal Court of Appeal in Froom v. Canada (Minister of Justice), [2005] 2 F.C.R. 195 (C.A.) held per Justice Sharlow at paragraph 12 that the test is whether the alternative remedy is adequate, not whether it is perfect.
[24] In the review at bar, Constable Bruno successfully grieved the decision that did not select him for one of three corporal positions at "K" Division detachments. After the Level II Adjudicator issued his decision, Sergeant David Asp implemented that decision in a manner unsatisfactory to the applicant such that he now seeks this Court to intervene on judicial review. However, the implementation decision sought to be reviewed in this case is not a final adjudicator's decision. It was incumbent on the applicant to first submit a grievance in respect of the implementation decision.
[25] The respondents submit that the Court should not exercise its judicial review jurisdiction because Constable Bruno should have pursued a grievance with respect to the implementation decision. However, the respondents failed to appreciate that Staff Sergeant Asp in a memorandum dated October 23, 2003 advised that Constable Bruno is not entitled to commence another grievance and that the grievance that he did commence with respect to the implementation decision has no standing and no further action from the RCMP will be taken with respect to this grievance.
[26] It is clear to the Court that Staff Sergeant Asp's position that the grievance procedure was not available or appropriate was in error. It is also clear that the respondents cannot on one hand advise Constable Bruno that the grievance procedure with respect to the implementation decision is not available to him, and on the other hand take the position before this Court that Constable Bruno should have pursued the internal grievance procedure. The respondents must come to Court with clean hands when they take the position that the Court should decline its judicial review jurisdiction on this basis.
[27] Mr. Justice Max Teitelbaum in a similar RCMP case Sauve v. Canada (1998), F.T.R. 91 (T.D.) held at paragraph 26:
In that it was found by the Assistant Commissioner that the grievance procedure was not adequate or was not the proper form to deal with the allegations of discrimination and harassment, I am satisfied that there would be no purpose for the plaintiff to appeal to the next level of the grievance procedure.
Accordingly, Justice Teitelbaum refused to strike the action on the basis that the RCMP Plaintiff had failed to pursue the internal grievance procedure.
[28] For the same reasons, the Court in this case cannot have expected Constable Bruno to have pursued his grievance of the implementation decision. Accordingly, the Court should assume its jurisdiction to judicially review the implementation decision of Staff Sergeant Asp.
Issue No. 2: In the alternative that the Court exercises its judicial review jurisdiction over this matter, what is the appropriate standard of review?
[29] The applicant submits that the decision of Staff Sergeant Asp implementing the Level II Adjudicator's order is reasonableness simpliciter. The respondents submit that the standard of review is patent unreasonableness.
[30] Applying the pragmatic and functional approach, I conclude that the appropriate standard of review in this case is reasonableness simpliciter. The Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 held at paragraph 26 that the reviewing Court must have regard to four contextual factors in determining the appropriate standard of review:
¶ 26 [...] In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact [...]
Privative clause and statutory right of appeal
[31] The decision by staffing and personnel to implement the decision of a Level II Adjudicator is not insulated from review. The Act contemplates an internal grievance process to review management decisions affecting an employee. However, the RCMP advised the applicant that this grievance process was not available, and the applicant should pursue this application for judicial review. Accordingly, this factor warrants little deference.
Expertise of the Tribunal
[32] In this case, it fell to the non-commissioned officer in charge of staffing to determine whether the applicant and three promoted officers were "qualified promotable Aboriginal constables who have an inherent knowledge of Aboriginal lifestyle and culture" having regard to the RCMP memorandum of October 1996: "Looking Aboriginal, Prove Aboriginal, and Aboriginal Identity". Implementing the Level II Adjudicator's Decision required an application of the RCMP memorandum's criteria. This is an area where the RCMP staffing and personnel have expertise. Accordingly, it warrants deference.
Purpose of legislation and the Aboriginal Policing Policy
[33] The purpose of the legislation and "First Nations Policing Policy" is to grant the RCMP discretion in selecting qualified Aboriginal RCMP officers to ensure that police services will be effective and responsive to the needs of Aboriginal communities. This factor militates toward deference to the RCMP in relation to personnel decisions.
Nature of question
[34] The implementation decision of the Level II Adjudicator's Decision required the RCMP apply criteria for identifying Aboriginal candidates. The criteria is effectively the RCMP law which Staff Sergeant Asp was required to apply in deciding whether the three candidates and Constable Bruno were Aboriginal. In my opinion, this is analogous to a question of mixed fact and law which warrants some deference, but is subject to review on a reasonableness standard.
Conclusion regarding standard
[35] My conclusion is that the appropriate standard of review of the implementation decision of Staff Sergeant Asp is reasonableness simpliciter.
Issue No. 3: Applying the appropriate standard of review, should the Decision of Staff Sergeant Asp dated July 29, 2002 regarding the implementation of the Level II Adjudicator's Decision be set aside because it was unreasonable?
[36] The Level II Adjudicator found that the Griever (Constable Bruno) was not given proper consideration for the position and that he and the three successful candidates should be assessed as to whether they meet the criteria set out in the JOB of May 18, 1999. The Adjudicator also found that Constable Bruno's submission "contains a number of convincing arguments". One of Constable Bruno's arguments was that Corporal Thorne did not look Aboriginal, had not been raised in an Aboriginal family, community or environment, did not speak an Aboriginal language, and did not have intimate knowledge of Aboriginal culture, values or customs. These factors are criteria set out in the RCMP memorandum of October, 1996 entitled "Identification of Aboriginal Applicants".
[37] The JOB stated that the competition was open to Aboriginal constables who "have an inherent knowledge of Aboriginal lifestyle and culture". The meaning of "inherent" is defined as:
2. existing in something as a permanent attribute or quality; forming an element, especially an essential element of something; intrinsic, essential.
See Shorter OxfordEnglish Dictionary, Volume 1 (Oxford University Press, 1986).
[38] The Level II Grievance Adjudicator's Decision allowed Constable Bruno's grievance, and was not appealed by the RCMP. Accordingly, this decision was binding and final for the RCMP. The nine-page decision required the RCMP to:
1. assess whether any of the three successful candidates had "an inherent knowledge of Aboriginal lifestyle and culture"; and
2. determine whether self-identified candidates possess the Aboriginal attributes by applying the criteria set out in the RCMP memo dated October 18, 1996 entitled "Identification of Aboriginal Applicants".
[39] Staff Sergeant Asp, in implementing the Adjudicator's Decision, did not reasonably assess whether the three successful candidates had "an inherent knowledge of Aboriginal lifestyle and culture" or whether they met the criteria set out in the RCMP memo entitled "Identification of Aboriginal Applicants". This is clear to the Court from the following:
1. the respondents concede that Staff Sergeant Asp did not make inquiries about whether the three successful candidates met the criteria other than reviewing the material on file. It was this material on file which the Adjudicator found inadequate for the purpose of this assessment;
2. the respondents concede that they have no information whether Corporal Thorne speaks an Aboriginal language and they made no effort to assess this criteria with respect to Corporal Thorne or the other two successful candidates;
3. the respondents concede that Constable Thorne did not look Aboriginal, so that in the absence of meeting this criteria, Constable Thorne must meet criteria 2 ("Prove Aboriginal") and criteria 3 ("Aboriginal Identity"). With respect to criteria 3, Staff Sergeant Asp did not assess whether Corporal Thorne, or the other two successful candidates, "know" Aboriginal culture, values and customs "from having grown up in Aboriginal communities or at least through close personal affinity with Aboriginal communities, groups, families". Rather, Staff Sergeant Asp decided that Corporal Thorne possessed the necessary knowledge of Aboriginal lifestyle and culture because he had been posted to Aboriginal detachments for 11 years. This is not a reasonable basis for assessment because criteria 3 states that "the knowledge of Aboriginal culture, values and customs would have been developed by having grown up in an Aboriginal community or at least through close personal affinity with Aboriginal communities, groups, families";
4. the JOB uses the word "inherent" which means that the knowledge of Aboriginal culture and values is an essential element of the applicant's background. An RCMP officer posted to Aboriginal communities would not thereby acquire an "inherent" knowledge of Aboriginal culture and values; and
5. the implementation decision did not assess the main basis for Constable Bruno's grievance in relation to Corporal Thorne. The allegation was that Corporal Thorne did not grow up in an Aboriginal community, and that he learned only a few weeks before the competition that he had some Métis blood, whereupon he applied for a Métis card. Criteria 2 in the RCMP "Identification of Aboriginal Applicants" provides that there must be documented proof that a person is Aboriginal and that "usually this documented proof shows that an applicant was raised in an Aboriginal family, community or environment".
[40] For these reasons, the Court concludes that the implementation decision of Staff Sergeant Asp is not reasonable in that it has not properly implemented the Adjudicator's Decision. Accordingly, this implementation decision must be set aside and the matter referred to another RCMP Staffing and Personnel Officer to properly implement the Adjudicator's Decision. The criteria must be applied to the three successful candidates for the competition and Constable Bruno. If one of the three successful candidates is found not to meet the criteria, and Constable Bruno is found to meet the criteria, then Constable Bruno must be retroactively promoted as required by the Adjudicator's Decision.
Costs
[41] Constable Bruno has been perseverant since June 22, 1999 in grieving this decision and then bringing this matter before the Federal Court. This is an important case with respect to how Aboriginal applicants are properly identified for the purpose of the RCMP First Nations Policing Policy. The implementation decision of Staff Sergeant Asp was unreasonable, and the decision of Staff Sergeant Asp that Constable Bruno could not grieve that implementation decision was incorrect. Constable Bruno is entitled to his legal costs.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review of the Decision dated July 29, 2002 of Sergeant David Asp is allowed, the Decision is set aside, and the matter of implementing the Adjudicator's Level II Grievance Decision is referred to another RCMP Staffing and Personnel Officer to properly implement the Adjudicator's Decision in accordance with these reasons; and
2. The applicant is awarded his legal costs on a party-and-party basis at the upper end of Column III of Tariff B.
Judge
APPENDIX "A"
1. Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10
| PART III
GRIEVANCES
Presentation of Grievances
Right of member
31. (1) Subject to subsections (2) and (3), where any member is aggrieved by any decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner's standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.
Limitation period
(2) A grievance under this Part must be presented
(a) at the initial level in the grievance process, within thirty days after the day on which the aggrieved member knew or reasonably ought to have known of the decision, act or omission giving rise to the grievance; and
(b) at the second and any succeeding level in the grievance process, within fourteen days after the day the aggrieved member is served with the decision of the immediately preceding level in respect of the grievance.
[...]
Decision
(6) As soon as possible after the presentation and consideration of a grievance at any level in the grievance process, the member constituting the level shall render a decision in writing as to the disposition of the grievance, including reasons for the decision, and serve the member presenting the grievance and, if the grievance has been referred to the Committee pursuant to section 33, the Committee Chairman with a copy of the decision.
[...]
Final level in grievance process
32. (1) The Commissioner constitutes the final level in the grievance process and the Commissioner's decision in respect of any grievance 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.
[...] |
PARTIE III
GRIEFS
Présentation des griefs
Règle
31. (1) Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un acte ou une omission liés à la gestion des affaires de la Gendarmerie causent un préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs prévue à la présente partie dans le cas où la présente loi, ses règlements ou les consignes du commissaire ne prévoient aucune autre procédure pour corriger ce préjudice.
Prescription
(2) Un grief visé à la présente partie doit être présenté :
a) au premier niveau de la procédure applicable aux griefs, dans les trente jours suivant celui où le membre qui a subi un préjudice a connu ou aurait normalement dû connaître la décision, l'acte ou l'omission donnant lieu au grief;
b) à tous les autres niveaux de la procédure applicable aux griefs, dans les quatorze jours suivant la signification au membre de la décision relative au grief rendue par le niveau inférieur immédiat.
[...]
Décision
(6) Le membre qui constitue un niveau de la procédure applicable aux griefs rend une décision écrite et motivée dans les meilleurs délais possible après la présentation et l'étude du grief, et en signifie copie au membre intéressé, ainsi qu'au président du Comité en cas de renvoi devant le Comité en vertu de l'article 33.
[...]
Dernier niveau
32. (1) Le commissaire constitue le dernier niveau de la procédure applicable aux griefs; sa décision est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n'est pas susceptible d'appel ou de révision en justice.
[...] |
2. Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141
| APPLICATION
2. (1) These Standing Orders apply instead of Part III of the Act to 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 than official languages requirements, established for a position through a decision, act or omission, by which decision, act or omission a member has been aggrieved.
(2) These Standing Orders apply only to the resolution of grievances initiated by a request for intervention submitted in accordance with these Standing Orders on or after the day on which these Standing Orders come into force.
[...]
PROCESS FOR REDRESS
Consensual Settlement
7. (1) Subject to subsection (2), a member who is aggrieved by any decision, act or omission made in the course of a selection process for the member's promotion and who attempts to settle the issue directly with the person responsible for the decision, act or omission is not exempt from the obligation to submit a request for intervention within the time provided under subsection 8(1).
(2) On request by the two parties involved in the consensual settlement, the adjudicator shall grant an extension of the time for submission of a related request for intervention under subsection 8(1).
Submission of Request for Intervention
Time for Submission
8. (1) A member who is aggrieved by any decision, act or omission made in the course of a selection process for the member's promotion may submit a request for the intervention of an adjudicator, to the office for the coordination of grievances in the region where the member is posted, within 30 days after the day on which the member knew or ought to have known of the decision, act or omission.
(2) A member who is aggrieved by any decision, act or omission made in the course of the establishment of the job requirements for a position may submit a request for the intervention of an adjudicator, to the office for the coordination of grievances in the region where the member is posted, within 30 days after the day on which the job requirements were first published.
[...]
Decision on the Merits
22. (1) If a request for intervention is not rejected under subsection 21(2), 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.
(2) In the case of a request for intervention under subsection 8(1), the only corrective action that may be awarded by the adjudicator is an order that the erroneous decision, act or omission be corrected.
(3) In the case of a request for intervention under subsection 8(2), the only corrective action that may be awarded by the adjudicator is an order requiring the addition or deletion of one or more job requirements for the position and requiring publication of the revised job requirements.
[...]
Final Decision
25. The decision of the adjudicator that disposes of a request for intervention is not subject to appeal or further review. |
CHAMP D'APPLICATION
2. (1) Les présentes consignes s'appliquent, à la place de la partie III de la Loi, à la présentation et au règlement des griefs suivants :
a) ceux ayant trait à une décision, un acte ou une omission liés aux processus de sélection en vue de la promotion des membres et causant un préjudice à un membre;
b) ceux ayant trait aux exigences de postes -- à l'exception des exigences en matières de langues officielles -- qui sont arrêtées à la suite d'une décision, d'un acte ou d'une omission, lesquels causent un préjudice à un membre.
(2) Les présentes consignes ne s'appliquent qu'au règlement des griefs pour lesquels une demande d'intervention est présentée aux termes des présentes consignes à la date de leur entrée en vigueur ou après celle-ci.
[...]
PROCÉDURE APPLICABLE POUR LA CORRECTION D'UN PRÉJUDICE
Règlement consensuel
7. (1) Sous réserve du paragraphe (2), le membre à qui une décision, un acte ou une omission lié au processus de sélection en vue de sa promotion cause un préjudice et qui tente de régler la question directement avec la personne ayant rendu la décision, posé l'acte ou commis l'omission n'est pas soustrait à l'obligation de se conformer au délai prévu au paragraphe 8(1).
(2) Sur demande des deux parties qui ont entamé un processus de règlement consensuel, l'arbitre proroge le délai prévu au paragraphe 8(1) pour la période demandée.
Présentation de la demande
Délai
8. (1) Le membre à qui une décision, un acte ou une omission lié au processus de sélection en vue de sa promotion cause un préjudice peut présenter une demande d'intervention d'un arbitre au bureau de coordination des griefs dans sa région d'affectation, dans les trente jours suivant celui où le membre a connu ou aurait dû connaître la décision, l'acte ou l'omission.
(2) Le membre à qui une décision, un acte ou une omission relatif aux exigences d'un poste cause un préjudice peut présenter une demande d'intervention d'un arbitre au bureau de coordination des griefs dans sa région d'affectation, dans les trente jours suivant celui où les exigences du poste ont été publiées pour la première fois.
[...]
Décision sur le fond
22. (1) Si la demande d'intervention n'est pas rejetée aux termes du paragraphe 21(2), l'arbitre :
a) soit, rejette la demande;
b) soit, s'il conclut que la décision, l'acte ou l'omission donnant lieu au différend est erroné et que le demandeur en a subi un préjudice, ordonne la prise des mesures correctives indiquées.
(2) Dans le cas d'une demande présentée aux termes du paragraphe 8(1), la seule mesure corrective que l'arbitre peut ordonner est la correction de la décision, de l'acte ou de l'omission erroné.
(3) Dans le cas de la demande présentée aux termes du paragraphe 8(2), les seules mesures correctives que l'arbitre peut ordonner sont l'ajout ou le retrait d'une ou de plusieurs exigences de poste, et la publication des exigences modifiées.
[...]
Décision finale
25. La décision que l'arbitre rend à la suite d'une demande d'intervention n'est pas susceptible d'appel ou de révision ultérieure. |
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1506-02
STYLE OF CAUSE: CONSTABLE DARREL BRUNO
AND
THE ATTORNEY GENERAL OF CANADA ET AL.
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: MARCH 21, 2006
APPEARANCES:
SOLICITORS OF RECORD:
PARLEE MCLAWS LLP FOR APPLICANT
Edmonton, AB
JOHN H. SIMS, QC FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON