The applicant is a staff sergeant of the Royal Canadian Mounted Police (RCMP). After a few attempts to advance his career, he received a letter from the RCMP Commissioner saying that he would not be appointed to any commissioned rank and that he should consider leaving the Force. The staff sergeant applied for judicial review, asking that the Commissioner be directed to reconsider the matter in accordance with the reasons of the Court. The application was allowed, and the Court determined that the Commissioner’s letter was subject to judicial review, as the power to recommend candidates for appointment or promotion was public in nature, and the Commissioner was exercising a public power that could not be shielded from review. Although the Commissioner’s decision attracted only a minimal degree of procedural fairness, even this was not met as there was nothing in the record that suggested the applicant had notice or an opportunity to respond. The Commissioner’s decision was unreasonable. He circumvented the disciplinary process and it was not open for the Commissioner to revisit a former incident and substitute his own judgment for that of statutory adjudication board. The Commissioner’s decision was set aside with a direction requiring the Commissioner to do as much as possible to enable the applicant’s promotion and not withhold consent once a position was available.
Administrative law – Decisions of administrative tribunals – Police Commission – Royal Canadian Mounted Police – Employment law – Appointment – Labour law – Disciplinary grievances – Judicial review – Procedural requirements and fairness – Privilege and immunity – Standard of review – Reasonableness simpliciter – Remedies – Alternative remedies
Boogaard v. Canada (Attorney General),  F.C.J. No. 1162, 2014 FC 1113, Federal Court, November 21, 2014, O’Keefe J.
The Applicant is a staff sergeant of the RCMP who wants to be an inspector. He had successfully completed the officer candidate program twice and the record includes many positive performance reviews. However, his inability to obtain further promotion is attributed to an incident in 2000 where his gun was stolen by two women. The applicant claimed the firearm was taken from his vehicle while he was in a restaurant. The women stated that the gun was stolen during unsuccessful negotiations for paid sex. The applicant received a reprimand and forfeit of 5 days’ pay by a statutory adjudication board based on an agreed statement of facts corresponding to his version of events, whereby he admitted it was disgraceful for him to leave his firearm unattended and unsecured in his vehicle. He was later promoted twice through non-commissioned ranks and in 2004 and 2009 he completed the officer candidate program for appointment to be an inspector. He was advised by the Deputy Commissioner and Commissioner that concerns persisted regarding the inconsistent accounts surrounding the stolen firearm. A parallel grievance proceeding found that an investigation of a harassment complaint filed by the applicant was conducted unreasonably and that gossip surrounding the applicant had prejudiced his chances for advancement. The applicant was reinstated to the list of candidates eligible for promotion. The Commissioner subsequently wrote a letter to the Applicant’s counsel stating that, based on his understanding of [the 2000] events, the applicant’s character did not reflect the core values of the RCMP and he would never commission the applicant as an officer so long as he continued to deny the allegations. The letter went on to state that the Applicant should consider “whether he can continue to contribute to the mission of the Force”. The Applicant sought judicial review of the decision set out in the Commissioner’s letter.
The application was allowed. The Commissioner’s letter was subject to judicial review, as the power to recommend candidates for appointment or promotion was public in nature. No appointment was ever made without the Commissioner’s recommendation. There is no evidence that a recommendation from the Commissioner was ever refused. Although his letter was marked “Without Prejudice”, the contents did not fit within the scope of settlement privilege. There was no such hint of a potential compromise or negotiation in the letter, and the decision was tantamount to an outright refusal. As such, the Court had jurisdiction to review the decision and should not decline it out of a desire to promote settlements. The grievance process did not supply an adequate alternative remedy. The standard of review was reasonableness, having regard to the principle that even discretionary decisions must be made in good faith and without relying on considerations irrelevant to the statutory purpose (Maple Lodge Farms Limited v. Government of Canada,  2 SCR 2 at 7). Breaching any of these criteria will almost certainly be unreasonable. While the Commissioner’s decision only attracted a minimal degree of procedural fairness, this was not met as the Applicant had no knowledge that the Commissioner personally had concerns about his candidacy and was not given an opportunity to respond. The Commissioner’s decision was unreasonable, as it was not open to the Commissioner to revisit the 2000 incident and substitute his own judgment for that of the statutory adjudication board. There was a prescribed code of disciplinary offences and associated procedural rights in respect of potential penalties, including loss of promotional opportunities. The Commissioner’s letter circumvented the disciplinary process in an unacceptable manner. In sum, the decision was reviewable, unreasonable, and therefore must be set aside. The Commissioner was directed to “do as much as he can” to enable the applicant’s promotion and not withhold his recommendation once a position becomes available to the Applicant because of the circumstances surrounding the theft of the Applicant’s firearm.
To stay current with the new case law and emerging legal issues in this area, subscribe here.