Administrative law – Decisions of administrative tribunals – Royal Canadian Mounted Police – Police – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Notice – Judicial review application – Premature – Jurisdiction – Remedies – Alternative remedies
Black v. Canada (Attorney General),  F.C.J. No. 1001, 2013 FCA 201, Federal Court of Appeal, September 9, 2013, Pelletier, Trudel and Mainville JJ.A.
The appellant, a police officer with the Royal Canadian Mounted Police (RCMP), appealed the dismissal of his application for judicial review of an Adjudication Board decision. The appellant had disciplinary proceedings commenced against him by his commanding officer for alleged violations of the RCMP Code of Conduct. An adjudication board was appointed by a third party to hear the complaint and both the appellant and the commanding officer were notified of the appointment. Pursuant to subsection 43(4) of the Royal Canadian Mounted Police Act, the commanding officer was required to provide the appellant with notice of the hearing and particulars of the allegations against him “forthwith” after being notified of the appointment. The appellant received the Notice of Disciplinary Hearing (Notice) ten months after the commanding officer was notified of the appointment and made a motion to the adjudication board that he had not been provided with the Notice “forthwith”. The adjudication board dismissed his application and the appellant brought an application for judicial review to the Federal Court.
The respondent to the appellant’s application, the Attorney General of Canada, maintained that the appellant was bound to exhaust his internal remedies before resorting to judicial review. The appellant argued that his right of appeal to the Commissioner did not constitute an adequate alternative remedy, hence exceptional circumstances justified recourse to judicial review. The Federal Court held that the circumstances did not warrant a pre-emptive recourse to judicial review as an appeal to the Commissioner was an adequate alternative remedy. The Court dismissed the application and the appellant appealed.
The Court of Appeal held that the allegation of a jurisdictional error did not, in and of itself, constitute an exceptional circumstance justifying judicial intervention with respect to an interlocutory decision. Further, the RCMP Act allowed the appellant to appeal against findings that he has violated the RCMP Code of Conduct on any ground which is capable of resulting in a reversal of the adjudication board’s finding, including lack of jurisdiction. As a result, the appellant had a right of appeal to the Commissioner which ought to have been exhausted before an application for judicial review.
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