Britton v. Royal Canadian Mounted Police, (2012) 421 F.T.R. 126 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: October 11, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 421 F.T.R. 126 (FC);2012 FC 1325

Britton v. RCMP (2012), 421 F.T.R. 126 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. NO.045

Johnathon Britton (applicant) v. Royal Canadian Mounted Police (respondent)

(T-1158-11; 2012 FC 1325; 2012 CF 1325)

Indexed As: Britton v. Royal Canadian Mounted Police

Federal Court

Gleason, J.

November 16, 2012.

Summary:

The applicant applied for judicial review, seeking to have certain documents about his conduct removed from his Royal Canadian Mounted Police (RCMP) training file. At issue was: (1) should the time for making this application be extended; (2) did the RCMP make a reviewable decision that could be the subject of a judicial review application; (3) did the RCMP commit a breach of the applicant's rights to procedural fairness; (4) were those involved in making the recommendation actually biased or was there a reasonable apprehension of bias on the part of the RCMP in this matter; (5) was the recommendation to cease the applicant's training reasonable; and (6) what quantum of costs should be awarded?

The Federal Court held that the application was untimely, an extension of time was not warranted and, accordingly, the application was dismissed. Further, the court found that, in any event, the RCMP did not make any reviewable decision that could be the subject of a judicial review application, the RCMP did not violate the applicant's rights to procedural fairness, the claim of actual or apprehended bias was without merit, and the recommendation to cease the applicant's training was reasonable. The court ordered lump sum costs of $2,000.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - The applicant resigned from his position as a cadet with the Royal Canadian Mounted Police (RCMP) - He applied for judicial review, seeking to have certain documents about his conduct removed from his RCMP training file - The applicant argued that his resignation should be considered equivalent to a decision by the RCMP to terminate his training because his decision to resign was not voluntary - The Federal Court rejected the argument - The termination of the applicant's training was not a forgone conclusion at the point he tendered his resignation as the concurrence of several others in the RCMP hierarchy was required before the termination could have been effected - When confronted with the recommendation and being advised of the option of resigning, after having been afforded some time to think the issue through, the applicant chose to resign - Thus, there was no reviewable decision by the RCMP that could be the subject of a judicial review application under s. 18.1 of the Federal Courts Act - See paragraphs 19 to 26.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - Section 18.1(2) of the Federal Courts Act established a 30 day time limit to bring a judicial review application - The 30 days ran from the date an applicant became aware of the decision giving rise to the application - The section gave the court discretion to extend the time period - The Federal Court stated that "The case law establishes that the criteria normally considered by the Court in the exercise of such discretion include: the presence of an intention to initiate a judicial review application formulated within the 30 days following the decision, which continues until the date the application is made; a reasonable explanation for the delay, which involves consideration both of the length and cause of the delay; the absence of prejudice to the respondent; and demonstration that the application has some merit ..." - See paragraph 14.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The applicant applied for judicial review, seeking to have certain documents about his conduct removed from his Royal Canadian Mounted Police training file - He sought to extend the 30 day time limit to bring a judicial review application under s. 18.1(2) of the Federal Courts Act - The Federal Court dismissed the application - In the absence of a reasonable explanation for the delay, the length of the delay, which was significant when compared to the 30 day time limit, and the absence of proof of any continuing intention to institute the application, there was no reason why the time limit for commencing the application should be extended - Also, the application was without merit, and this was a further reason why it was not appropriate to extend the time limit - See paragraphs 14 to 18.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - The applicant resigned from his position as a cadet with the Royal Canadian Mounted Police (RCMP) - The applicant applied for judicial review, seeking to have certain documents about his conduct removed from his RCMP training file - At issue was: (1) should the time for making this application be extended; (2) did the RCMP make a reviewable decision that could be the subject of a judicial review application; (3) did the RCMP commit a breach of the applicant's rights to procedural fairness; (4) were those involved in making the recommendation actually biased or was there a reasonable apprehension of bias on the part of the RCMP in this matter; (5) was the recommendation to cease the applicant's training reasonable; and (6) what quantum of costs should be awarded? - The Federal Court held that the application was untimely, an extension of time was not warranted and, accordingly, the application was dismissed - Further, in any event, the RCMP did not make any reviewable decision that could be the subject of judicial review, the RCMP did not violate the applicant's rights to procedural fairness, the claim of actual or apprehended bias was without merit, and the recommendation to cease the applicant's training was reasonable - The court held that, in the circumstances, lump sum costs of $2,000 were appropriate - See paragraph 20.

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Limitation periods (incl. extension of) - [See both Administrative Law - Topic 3342.1 ].

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - [See Administrative Law - Topic 3203 ].

Police - Topic 4105

Internal organization - Dismissal of members - What constitutes dismissal - [See Administrative Law - Topic 3203 ].

Police - Topic 4110

Internal organization - Dismissal of members - Grounds - Unsuitability - The applicant resigned from his position as a cadet with the Royal Canadian Mounted Police (RCMP) - He applied for judicial review, seeking to have certain documents about his conduct removed from his RCMP training file - The applicant argued that his resignation should be considered equivalent to a decision by the RCMP to terminate his training because his decision to resign was not voluntary - The Federal Court held that the applicant resigned and thus there was no decision to review - Alternatively, it would have dismissed the application on the merits - The court held that it "should afford considerable leeway to the RCMP in its assessments of the suitability of candidates ... RCMP officers are often placed in highly stressful situations and the stability of candidates is an appropriate basis for screening. Here, the applicant displayed difficulty controlling his emotions and engaged in conduct that was disrespectful of women. The offensive comments he made occurred in the context of a very short dating relationship. The applicant's behavior ... afforded the RCMP ample basis for concern as to the applicant's suitability as an officer and thus, if the RCMP made any decision in this matter, it was a reasonable one." - See paragraphs 38 and 39.

Police - Topic 4162

Internal organization - Discipline - Appeals and judicial review - When available - [See Administrative Law - Topic 3203 ].

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - [See Police - Topic 4110 ].

Cases Noticed:

Gayler v. Director Personnel, Careers Administration, Other Ranks, National Defence Headquarters et al., [1995] 1 F.C. 801; 88 F.T.R. 241 (T.D.), refd to. [para. 9].

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 14].

Muckenheim v. Canada Employment Insurance Commission (2008), 382 N.R. 97; 2008 FCA 249, refd to. [para. 14].

Budisukma Puncak Sendirian Berhad et al. v. Canada et al. (2005), 338 N.R. 75; 2005 FCA 267, leave to appeal denied (2006), 356 N.R. 394 (S.C.C.), refd to. [para. 14].

Kuntz v. Canada (Attorney General) (2006), 295 F.T.R. 239; 2006 FC 815, refd to. [para. 20].

Linnell v. Canada (Attorney General) et al. (1996), 119 F.T.R. 265 (T.D.), refd to. [para. 20].

Farber v. Compagnie Trust Royal, [1997] 1 S.C.R. 846; 210 N.R. 161; 145 D.L.R.(4th) 1, dist. [para. 21].

Deters v. Prince Albert Fraser House Inc. (1991), 93 Sask.R. 205; 4 W.A.C. 205 (C.A.), dist. [para. 21].

Thompson v. Sawyer, Calgary Police Commission and Calgary (City), [1986] A.W.L.D. 727; 68 A.R. 311 (Q.B.), refd to. [para. 23].

Head v. Graham and Ontario Provincial Police Force (1981), 40 O.R.(2d) 84; 127 D.L.R.(3d) 366 (Ont. C.A.), affd. [1985] 1 S.C.R. 566; 59 N.R. 91; 8 O.A.C. 368, refd to. [para. 24].

Bouchard v. Canada (Ministre de la Défense nationale) et al. (1998), 158 F.T.R. 232; 18 Admin. L.R.(3d) 7 (T.D.), affd. (1999), 255 N.R. 183 (F.C.A.), refd to. [para. 25].

Zündel v. Citron et al., [2000] 4 F.C. 225; 256 N.R. 201 (F.C.A.), refd to. [para. 36].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), refd to. [para. 36].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 36].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 36].

Dimplex North America Ltd. v. CFM Corp. (2006), 307 F.T.R. 153; 2006 FC 1403, refd to. [para. 40].

Canada (Attorney General) v. Timson et al. (2012), 413 F.T.R. 55; 2012 FC 719, refd to. [para. 40].

Slaeman et al. v. Canada (Attorney General) (2012), 412 F.T.R. 103; 2012 FC 641, refd to. [para. 40].

Counsel:

Nicholas P. Robinson, for the applicant;

Natasha Crooks, for the respondent.

Solicitors of Record:

Merchant Law Group, Regina, Saskatchewan, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Regina, Saskatchewan, for the respondent.

This application was heard on October 11, 2012, at Regina, Saskatchewan, by Gleason, J., of the Federal Court, who delivered the following decision on November 16, 2012.