Shephard v. Fortin et al., (2003) 242 F.T.R. 42 (FC)

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: October 20, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 242 F.T.R. 42 (FC);2003 FC 1296

Shephard v. Fortin (2003), 242 F.T.R. 42 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. NO.034

Paul Vincent Shephard (applicant) v. J.C.G. Fortin (first respondent) and G. Zaccardelli, Commissioner of The Royal Canadian Mounted Police (second respondent), Her Majesty the Queen in Right of Canada, as represented by the Royal Canadian Mounted Police (third respondent) and Attorney General of Canada (fourth respondent)

(T-892-02; 2003 FC 1296)

Indexed As: Shephard v. Fortin et al.

Federal Court

Snider, J.

November 6, 2003.

Summary:

An RCMP constable wrote an exam for a promotion. He did not receive a preferred ranking. He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions. The constable requested disclosure of the examination materials. An adjudicator denied the request. The constable applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2085

Natural justice - Constitution of board or tribunal - Bias - Acting in multiple roles or capacities - An RCMP constable wrote an exam for a promotion - He did not receive a preferred ranking - He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions (Promotions CSOs) - An adjudicator denied detailed disclosure of the examination materials - The constable alleged bias - He pointed to "the participation of legal counsel for the [RCMP], as 'prosecuting counsel', in the adjudication process, as demonstrated by legal advice received from [Groulx], counsel, RCMP Legal Services" - The Federal Court rejected the argument - Groulx made every effort to extricate himself from the adjudication process - He declined from participating in a video-conference held by the adjudicators - Further, Groulx's advice was provided to all the parties and extensive consultations on the ramifications of the decision took place openly and with all parties - Finally, the adjudicator's decision to apply the non-disclosure policy and rule in a manner that was consistent with Groulx's legal advice did not inexorably lead to a finding of apprehension of bias - See paragraphs 61 to 65.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - An RCMP constable wrote an exam for a promotion - He did not receive a preferred ranking - He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions (Promotions CSOs) - An adjudicator denied detailed disclosure of the examination materials - The Federal Court rejected the constable's argument that the adjudicator created a reasonable apprehension of bias by consulting with other adjudicators, who were members of RCMP management, and considering information from the Commissioner's office - The adjudicator benefitted from a wide-ranging debate on the Promotions CSOs and the disclosure issue - He obtained the views of many interested parties, including the constable and other complainants - This formed part of a legitimate consultation with several parties - The adjudicators were simply trying to cope with a new procedure - The consultations concerned the application of the Promotion CSOs and the non-disclosure policy and not the particular facts of any one complainant - Rather than trying to determine this among themselves, the adjudicators reached out to all representative groups affected by the decision in a collaborative process - See paragraphs 61 to 70.

Administrative Law - Topic 2153

Natural justice - Administrative decisions or findings - Maker of discretionary decision seeking advice of others - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 2498

Natural justice - Procedure - At hearing - Participation by tribunal's counsel - [See Administrative Law - Topic 2085 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - An RCMP constable wrote an exam for a promotion - He did not receive a preferred ranking - He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions - An adjudicator denied detailed disclosure of the examination materials - The constable sought judicial review, arguing that the adjudicator breached principles of procedural fairness and natural justice by denying him access to the examination material - The Federal Court rejected the argument - The duty of fairness in this case was not high and the adjudicator met his duty - The constable knew the case to be met and was given a reasonable opportunity to respond - See paragraphs 52 to 60.

Police - Topic 4038

Internal organization - Promotions - Judicial review - Standard of review - An RCMP constable wrote an exam for a promotion - He did not receive a preferred ranking - He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions - The constable requested detailed disclosure of the examination materials - An adjudicator denied the request - The constable sought judicial review - The Federal Court held that the standard of review was patent unreasonableness - Therefore, the decision ought only to be overturned if the adjudicator based his determination on an application of the Promotions CSO that was patently unreasonable or on findings of fact for which there was no evidence - See paragraphs 35 to 37.

Police - Topic 4038

Internal organization - Promotions - Judicial review - An RCMP constable wrote an exam for a promotion - He did not receive a preferred ranking - He submitted a request for intervention under the Commissioner's Standing Orders dealing with promotions - An adjudicator denied the constable's request for detailed disclosure of the examination materials - The Federal Court held that the adjudicator's decision was not patently unreasonable or made in a perverse or capricious manner - Policy Direction D.7 issued by the Commissioner provided that a member could not have access to the examination material - The court stated, inter alia, that Policy D.7 and the reasons behind it presented a strong case for disallowing access to examination materials - Although the adjudicator could have ordered disclosure in spite of Policy D.7, he held that the constable had not established extraordinary circumstances - A balancing of the interests at stake demonstrated that there were distinct advantages to all parties under the non-disclosure system - See paragraphs 38 to 46.

Police - Topic 6626

Police commission and R.C.M.P. Commissioner - Duties and powers - Directives and standing orders - An RCMP constable argued that the portions of the Commissioner's Standing Orders dealing with promotions (Promotions CSOs) that eliminated the right to appeal set out in Part III of the RCMP Act and a member's right to access examination materials were ultra vires the Commissioner's powers under the Act - Further, he argued that portions of Policy Direction D.7 that withheld access to examination results were ultra vires the Commissioner's powers - The Federal Court held that the Commissioner had the authority to make the Promotions CSOs under s. 21(2)(b) of the Act, which permitted him to make rules for the efficiency and administration of the RCMP - Part III of the Act did not apply because the Promotions CSOs were established as an alternative process for redress within the meaning of s. 31(1) of the Act - The making of Policy D.7 was not prohibited by the Act - Section 7(1) gave the Commissioner broad-reaching authority respecting promotions - Further, Policy D.7 did not conflict with provisions of the Act or the Promotions CSOs - See paragraphs 21 to 34.

Police - Topic 6742

Police commission and R.C.M.P. Commissioner - Judicial review - Scope or standard of review - An RCMP constable argued that the portions of the Commissioner's Standing Orders dealing with promotions (Promotions CSOs) that eliminated the right to appeal set out in Part III of the RCMP Act and a member's right to access examination results and information were ultra vires the Commissioner's powers under the Act - Further, he argued that the portion of Policy Direction D.7 that withheld access to examination results was ultra vires the Commissioner's powers - The Federal Court held that the correctness standard of review applied to the Commissioner's decisions to eliminate the right to appeal set out in Part III of the Act, to apply the Promotions CSOs instead of Part III and to put in place the impugned portions of Policy D.7 - See paragraphs 17 to 20.

Statutes - Topic 5401

Operation and effect - Delegated legislation - Standing orders and directives - General - [See Police - Topic 6626 ].

Cases Noticed:

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 17].

Workers' Compensation Board (Nfld.) v. Jesso et al. (2001), 206 Nfld. & P.E.I.R. 276; 618 A.P.R. 276 (Nfld. C.A.), refd to. [para. 21].

Pfizer Canada Inc. et al. v. Apotex Inc. et al. (2002), 223 F.T.R. 1 (T.D.), refd to. [para. 25].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193, refd to. [para. 29].

Armstrong v. Royal Canadian Mounted Police (Commissioner) et al., [1998] 2 F.C. 666; 222 N.R. 375 (F.C.A.), refd to. [para. 29].

Gallant v. Correctional Service Canada (Pacific Region), [1989] 3 F.C. 329; 92 N.R. 292 (F.C.A.), refd to. [para. 42].

Fedoriuk v. Royal Canadian Mounted Police (Commissioner) (1988), 88 N.R. 61 (F.C.A.), refd to. [para. 47].

Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 (T.D.), dist. [para. 53].

Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 (T.D.), refd to. [para. 53].

Jain et al. v. Canada (Attorney General) (1999), 173 F.T.R. 92 (T.D.), refd to. [para. 54].

Magnasonic Canada Ltd. v. Canada (Anti-Dumping Tribunal), [1972] F.C. 1239 (F.C.A.), refd to. [para. 53].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 54].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 61].

Bell Canada v. Canadian Telephone Employees Association et al. (2003), 306 N.R. 34, refd to. [para. 62].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 62].

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. 63].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 66].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 66].

Authors and Works Noticed:

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf), generally [para. 48].

Mullan, David J., Administrative Law (2001), p. 322 [para. 62].

Counsel:

Augustine F. Bruce and Sheila Osborne-Brown, for the applicant;

James Gunvaldsen-Klaassen, for the respondent.

Solicitors of Record:

Benson, Myles, St. John's, Newfoundland, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at St. John's, Newfoundland, on October 20, 2003, by Snider, J., of the Federal Court, who released the following decision on November 6, 2003.