Docket: T-1816-16
Citation: 2018 FC 1260
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 17, 2018
PRESENT: The Honourable Mr. Justice Bell
| BETWEEN:
|
| ANIKE MÉNARD
|
| Applicant
|
| and
|
| THE ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Nature of the case
[1]
This is an application for judicial review, under subsection 18(1) of the Federal Courts Act, RSC, 1985, c F-7, of a decision of the Commissioner of the Royal Canadian Mounted Police [the RCMP] dated August 23, 2016 [the decision], pursuant to subsection 45.25(4) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [the Act]. In his decision, the Commissioner dismissed the appeal filed by the applicant [Constable Ménard] under subsection 45.24(1) of the Act. The appeal challenged a recommendation of the Discharge and Demotion Board [the Board], which had ordered that Constable Ménard be discharged for unsuitability under subsection 45.23(1) of the Act.
[2]
Constable Ménard challenges the Board’s order, as well as the decision by the Commissioner of the RCMP. She claims that the Commissioner’s decision was tainted by the flawed proceedings that took place before the Board hearing.
[3]
For the reasons that follow, I allow the application for judicial review and order that both the Board’s order and the Commissioner’s decision be quashed, and that the issue of Constable Ménard’s suitability be reconsidered.
II.
Relevant facts
[4]
Constable Ménard was a member of the RCMP between May 26, 2008, and August 23, 2016. She successfully completed the RCMP basic training program at the RCMP academy in Regina, Saskatchewan. After completing this training, she was transferred to the Tracadie-Sheila detachment in New Brunswick, where she performed the general duties of a constable. She also successfully completed her six-month Field Coaching Program. Following surgery on her wrist on August 1, 2009, Constable Ménard was temporarily unable to perform her regular duties as a police investigator. For this reason, she had to work as a receptionist at the counter of her detachment. On August 31, 2009, Corporal Germain Léger was assigned to the position of supervisor at the Tracadie-Sheila detachment. As part of his new position, Corporal Léger was required to review Constable Ménard’s work, and after reviewing her work, he allegedly noted a number of shortcomings, which he shared with her.
[5]
On September 16, 2009, Constable Ménard resumed her functions as a police investigator. She subsequently had several meetings with her superior officers concerning her unsatisfactory performance. On January 27, 2010, the performance management process was implemented. Once again, Constable Ménard had several meetings with her supervisors concerning her work performance, which had remained unsatisfactory according to the representations of the respondent. Constable Ménard was informed that if the situation did not improve, the next step would be to issue her a Notice of Shortcomings and pair her with a more experienced partner, for a period of three (3) months.
[6]
On July 13, 2010, Staff Sergeant Major Hudon [S/S/M Hudon], Deputy Commissioner, Professional Standards, wrote the following, in part, to the chain of command at the Tracadie-Sheila detachment:
[translation]
On Tuesday, July 6, 2010, I had a meeting with Inspector Roch Fortin, Commander of District 8, and Sergeant Sylvain Leclair to discuss what to do going forward. I also had a one and a half hour meeting with Constable Ménard to discuss her performance and give her an opportunity to provide explanations. It is important to note that Constable Ménard is still a probationary member (until November 2010) and that, consequently, the appropriate officer could proceed directly with issuing a Notice of Intention to Discharge. Despite this, and following the candid conversation that I had with her, as well as with Sergeant Leclerc, it is my opinion that Constable Ménard has the necessary qualities to succeed, and I believe that she will benefit from a recommendation that she be served a Notice of Shortcomings and that she subsequently be shadowed by a more experienced partner, who will be able to supervise her work effectively, for a period of three (3) months, so that she can free herself from the lethargy in which she currently finds herself.
Constable Ménard is 40 years old. She is the mother of a 14 year-old son and worked as a server in a restaurant for several years prior to joining the ranks of the RCMP. She also has two university degrees, including one in Accounting. During our meeting, she explained that she had applied to join the Montréal police force when she was younger, but that the birth of her son required her to change her plans. She later resumed her university studies and was able to obtain the above-referenced degrees. She then applied to join the RCMP. Her service file does not indicate any major problem during her six-month training at Depot. She indicated that she was happy in the Acadian Peninsula region and that she had adapted quite well to being there. She purchased a home and a van. She indicated that she did not have any financial problems but admitted that she had to keep an eye on her spending. Her son will be returning to Montréal in a few weeks to live there with his father. Even though she finds this upsetting, she understands that this will be an opportunity for her to concentrate solely on her work, so that she can make progress in terms of trying to improve her performance. I explained to her that a Notice of Shortcomings would give her a last chance to raise her profile and improve things, and she told me that she clearly understood that.
[Emphasis added.]
[7]
On August 26, 2010, Constable Ménard’s doctor recommended that she take some time off work, which continued to be extended, month after month, until October 3, 2011. On November 9, 2010, while she was still on a leave of absence from work, she received a Notice of Intention to Discharge from the RCMP. She successfully contested the notice in question, and the discharge process was therefore suspended. While she was working at the Tracadie-Sheila detachment, Constable Ménard also faced two allegations of breaching the Code of Conduct, for which disciplinary action was taken against her.
[8]
In July 2011, Constable Ménard was transferred to the Campbellton detachment. One of the objectives of this transfer was to offer her a [translation] “fresh start”
. On July 4, 2011, she had a meeting with her new supervisor, Corporal Benoit Jolette, as well as her mentor, Constable David Archambault, at the Campbellton detachment. At the time, Constable Archambault had approximately three (3) years of service, including his training period. During this meeting, Corporal Jolette gave Constable Ménard a Notice of Shortcomings. This notice listed requirements and tasks she was required to satisfy or improve over a period of three (3) months, as of the date of delivery of the notice. It is important to remember that she was still on sick leave when she received this notice.
[9]
On October 3, 2011, she returned to work, reporting for duty at Campbellton. Between October 3 and October 30, 2011, she was accompanied by her mentor, Constable Archambault, for 11 work shifts. After these 11 work shifts, Constable Ménard patroled alone in her police vehicle. Corporal Jolette, for his part, was transferred to the Saint-Quentin detachment after his first meeting with Constable Ménard. Saint-Quentin is located roughly 100 kilometres from Campbellton. Due to this transfer, Corporal Jolette therefore “supervised”
Constable Ménard from a distance, by reviewing her work through the RCMP computer system.
[10]
On April 18, 2011, S/S/M Hudon once again recommended that Constable Ménard be shadowed by a more experienced member at work—this time, in Campbellton. His correspondence in this regard reads as follows:
[translation]
Martin,
Please find attached the French version of the Notice of Shortcomings form, as well as a copy of the Notice of Intention to Discharge concerning Constable Ménard.
The Notice of Intention to Discharge lists the Constable’s alleged shortcomings, which may now be used to prepare the Notice of Shortcomings.
Notices of Shortcomings are usually prepared by the appropriate office [sic]. The Notice of Intention to Discharge was prepared by Jean-François Rennou [sic], and it would certainly prove very helpful for the preparation of this Notice of Shortcomings. Once Constable Ménard is served with the Notice of Shortcomings, we are recommending that she be shadowed by an experienced member for all or part of a period of three months. This member will supervise the constable and will have a role similar to that of the supervisors in the Field Coaching Program. If it is not possible to appoint a dedicated supervisor, a suitable colleague should assume this role by acting as a mentor for Constable Ménard. This mentor will ensure that Constable Ménard benefits from any and all practical assistance as well as any advice and supervision that she needs, to the extent reasonably practicable. This mentor should not be confused with the supervisor. To the extent possible, responsibility for each should be assumed by two different people. The role of both the supervisor and the mentor will be to help the constable and to give a general opinion concerning Constable Ménard’s success or failure at the end of the period determined in the Notice of Shortcomings.
Both French and English copies of the manual on managing performance issues will be provided to the supervisor, as well as to the monitor or mentor. The parties concerned should send me electronic or paper copies of all performance reports produced by District 9, which will be placed in an electronic file here at Division Headquarters.
Please note that I am also sending a copy of this email to Inspector Landry, the officer in charge at District 9, in order to inform him of past incidents concerning this member, as well as to Counsel Rannou (area of responsibility), as his help may prove necessary for the purpose of preparing the Notice of Shortcomings concerning Constable Ménard.
Regards,
Bert.
[Emphasis added.]
[11]
It is clear that despite the two (2) recommendations made by S/S/M Hudon, i.e. one in 2010 and the other in 2011, Constable Ménard was not paired with an experienced constable as recommended. It is important to mention that Constable Archambault had only three (3) years of service, only six (6) months more than Constable Ménard. Moreover, he only supervised 11 of Constable Ménard’s work shifts, and prior to this experience working with Constable Ménard, Constable Archambault had never supervised or been responsible for an RCMP recruit. In other words, this was the first time that Constable Archambault had mentored another constable, and it was therefore a new experience for him.
[12]
In late October and early November 2011, Constable Ménard received instructions that that she was no longer to patrol the territory accompanied by another police officer. Her testimony in this regard was confirmed by the testimony of Constable Spacek, cited later in these reasons. This directive by the management of the RCMP was diametrically opposed to the two recommendations made by S/S/M Hudon.
A.
Illegal disclosure of Constable Ménard’s personal information
[13]
Before going any further in my summary of the facts, it is important to note here that before completing Constable Ménard’s performance assessment, Constable Archambault received private and confidential information concerning Constable Ménard. Indeed, the full contents of the initial Notice of Intention to Discharge, including the disciplinary action taken against Constable Ménard while she was working in Tracadie-Sheila, were disclosed to Constable Archambault without authorization. This illegal disclosure was established before the Board without being challenged. On this subject, the Commissioner concluded that Constable Archambault should not have had access to this information and that the disclosure of this information did not constitute a use consistent with the purposes for which it was obtained, within the meaning of paragraphs 7(a) and 8(2)(a) of the Privacy Act, RSC, 1985, c P-21.
[14]
It should also be noted that this disclosure not only was illegal, but also prejudiced the perception that Constable Ménard’s colleagues, and particularly her mentor, Constable Archambault, had of her. Indeed, in his final report to Inspector Landry, the officer in charge of the Campbellton detachment, Constable Archambault made reference to a situation where there had been a contradiction between Constable Ménard’s statements and the statements of a complainant in the context of a case. Constable Archambault noted that the matter had involved an incident that was [translation] “rather innocuous, where the credibility of a police officer should not be called into question”
. However, he added that given [translation] “the past incidents involving Constable Ménard, there was some doubt [in his mind] about Constable Ménard’s integrity”.
[15]
The Commissioner concluded, following the approach adopted by the Board, that the illegal disclosure of Constable Ménard’s personal information did not influence the outcome of the hearing. He stated:
[translation]
On the whole, the evidence does not support the appellant’s allegations that doubts concerning her integrity negatively impacted the performance assessment process. The Board concluded that the Appellant’s performance assessment was conducted impartially and in good faith, and that in acting as it di, the Board did not commit any palpable or overriding error. Therefore, there are no grounds to intervene on appeal.
Service of the Notice of Discharge
[16]
On February 15, 2012, Constable Ménard had a meeting with Inspector Landry to discuss her performance. During this meeting, he advised her that he would not be recommending her retention within the RCMP and served her with an order removing her from her duties. On March 23, 2012, Constable Ménard therefore received a Notice of Intention to Discharge under section 45.19 of the Act. She requested a review of this notice by the Board under paragraph 45.19(2)(b) of the Act. The Board held a hearing in December 2012, and its decision ordering her to be discharged for unsuitability was rendered orally on February 12, 2013, and then in writing in May 2013. Constable Ménard then appealed this decision to the Commissioner, who referred the matter to the RCMP External Review Committee even before reviewing the file. The Committee recommended that the Commissioner dismiss the appeal. Further to this recommendation and after reviewing the file under section 45.26 of the Act, the Commissioner, in turn, dismissed the appeal and upheld the decision of the Board.
Excerpt from the stenographer’s notes from the Board hearing
[17]
During the hearing before the Board, Inspector Landry was interrogated about Constable Ménard’s performance, as compared with the performance of Constable Spacek. During this testimony, Inspector Landry admitted that Constable Spacek was considered to be one of the best members of the RCMP in Campbellton. The exchange reads as follows:
[translation]
A. You are asking me to compare the performance of the two members?
Q. Yes.
A. In general or just in terms of a specific subject?
Q. In general?
A. In general? I can tell you that Constable Spacek is a junior, a very junior member, but that she is probably one of our best members in Campbellton.
Q. Really?
A. Absolutely.
[18]
Given Inspector Landry’s opinion about the fact that Constable Spacek could be counted among the best members of the RCMP in Campbellton, I believe that it is relevant to reproduce excerpts of the testimony she gave before the Board:
[translation]
On one occasion, I remember that a member advised me not to help Constable Ménard (page 25, line 25, page 26, line 1-2).
[translation]
A. Er, yes, you know, when we are sent to respond to a call, we often—you know, we—you know, we’ll say, you know, we say: “23, on site” or with our computerized location systems you can also see, you know, where—where the other members are, where the other vehicles are—are parked and stationary.
Q. O.K.
So, based on your experience at work this fall with Ms. Ménard, what is your impression of the number of calls to which Officer Ménard responded?
She responded to her share of calls compared to—to everyone else.
Q. O.K.
What about her availability to assist?
Her availability?
Q. Yes?
A. Er, she came—she accompanied me to respond to calls. She responded to calls with me and other members.
Er, she never just stood there with her arms crossed. She—you know she was there—and, you know, I remember responding to a call and, er, the person was—was suicidal, and I was there with the Corporal, and she took the initiative, and it was during the first week that she had been working with us, when she had started with us, and, er, she spoke to the mother. She had a conversation with the mother, just to, er, get more information.
Q. O.K.
So, during your specific intervention with Officer Ménard, what was your impression of the way in which she approached clients?
OBJ J. LAVIGNE: Objection.
“Impression”. Needs to be grounded in the facts.
C. CHRÉTIEN: Well, I’m asking about her impression of how Constable Ménard approached clients, “during a specific intervention”.
MEMBER B. TREMBLAY: Would you like her to rephrase?
J. LAVIGNE: I’d like her to rephrase because I don’t think we can learn much from impressions.
MEMBER B. TREMBLAY: Can you perhaps rephrase without asking for an impression?
C. CHRÉTIEN: O.K.
BY C. CHRÉTIEN:
Q. So, during your specific intervention, what—you know—how did she approach clients?
A. She was, er, she had good interpersonal skills, er, she asked good questions to obtain details of—of why we were there.
Er, She had good communication skills. She is bilingual—more bilingual that I am. Er, she did not hesitate when speaking English or French. Er, she did not talk down to the client.
Er, she acted in a professional manner.
Q. O.K.
And how did you feel when you worked with her during the night shift?
She was my back up. Er, I felt—I felt safe. I had previously worked with her at night, you know.
To be clear, I trusted her enough for her to be my back up, so . . .
Q. All in all, based on your experience and the few months that you worked with her, what do you think of her abilities—her abilities as a police officer?
A. To be honest, she impressed me with how much—with what I had heard about her.
Er, you know, with what I had heard, you know, I took these assessments with a grain of salt, without judging her in that way, and after observing how she worked and her work ethic, you know, she may have been a bit lacking in some areas, er, but who hasn’t slipped up when you are—when—when starting out as a member?
Er, but all in all, she impressed me with—given what I had heard.
You know, er, when I met her for the first time, I was a little wary of her, I suppose, I was a little careful in that sense and then, you know, to see her during interventions and—to see her doing her work, I said to myself: Hey! She’s not so bad after all.
Q. I have no further questions. I have no more questions. Finally, relevant provisions Je n’ai pas d’autres questions. J’ai plus de questions.
Finally, the relevant provisions.
III.
Relevant provisions
[19]
The relevant provisions of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10, as they were prior to the amendments of June 19, 2013; of the Privacy Act, RSC, 1985, c P-21; and the Public Service Employment Act, RSC 1970, c P-32, are set out in appendices A, B and C.
IV.
Board’s order and Commissioner’s decision
[20]
In an extremely detailed decision, the Board explained why it concluded that Constable Ménard’s discharge, on the ground of unsuitability, had been established [translation] “on a balance of probabilities”
. The Board therefore ordered Constable Ménard’s discharge under subsection 45.23(2) of the Act.
[21]
In its analysis, the Board had to contend with two diametrically opposed positions concerning the procedure to follow. The appropriate officer, appointed under subsection 2(3) of the Act, claimed that the Board should show deference “towards those that had observed”
Constable Ménard during the performance assessment. Constable Ménard, for her part, argued that the Board did not have any duty of deference to the decision rendered by her superiors. Indeed, Constable Ménard claimed that the Board had a duty to examine the evidence, without prejudice towards her and without showing deference to her mentor and her superiors. Constable Ménard claimed that, in the context of its functions, the Board played the role of an arbitrator by deciding whether unsuitability had been established. Constable Ménard was also of the opinion that the Board should follow the procedure applicable in an adversarial system, where all the parties start on an equal footing.
[22]
In its decision, the Board concluded that it should show deference to Constable Ménard’s supervisors and evaluators. Shortly after reaching this conclusion, the Board maintained that it should [translation] “decide, considering all the documentary evidence on record and the testimony heard during the hearing, whether the ground of unsuitability had been established . . . on a balance of probabilities”
. First and foremost, this presents a problematic dichotomy because it seems inconceivable to me that the Board could show deference to a previous decision but, at the same time, undertake to weigh the evidence fairly to determine whether the ground of unsuitability had been established. Such deference diminishes the value of the testimony provided by Constable Ménard, Constable Spacek and all other evidence in support of Constable Ménard. I will revisit this point later in my analysis.
[23]
In his decision, the Commissioner approved of this deferential approach to the opinion of Constable Ménard’s supervisors. He clearly articulated the question raised here, noting the following at paragraph 84:
[translation]
Before rendering a decision on the merits of this appeal, it is important to discuss, on the one hand, the degree of deference that a board constituted under Part V of the Act must show towards the decision of the appellant’s managers and, on the other hand, the degree of deference applicable in the context of an appeal under section 45.24 of the Act.
[24]
The Commissioner cited Ahmad v Canada (Public Service Commission Appeal Board), [1974] 2 FC 644, in concluding that the Board must show deference to the opinions of the managers with regard to the competence or incompetence of an employee. The Commissioner went even further and reinforced the findings of the external committee by maintaining that [translation] “the Board’s role was not to re-assess the member’s performance, but solely to ensure that the evidence established that the appellant received reasonable assistance, as provided in section 45.18 of the Act”
.
[25]
With respect to the level of deference that must be shown when reviewing the Board’s decision, the Commissioner cited Dunsmuir v New-Brunswick, 2008 SCC 9, and Housen v Nikolaisen, 2002 SCC 33, to conclude that [translation] “considerable deference should be accorded to the Board’s decision”
. Indeed, the Commissioner maintains that since the issues in dispute in this case concern an interpretation of the facts by the Board, he must show considerable deference to the Board’s decision. He also added that his intervention is only warranted if the Board’s decision falls outside a range of “possible, acceptable outcomes which are defensible in respect of the facts and the law”
: Dunsmuir, para 47.
Job shadowing
[26]
Before the Commissioner and the Board, Constable Ménard explained that she had not been shadowed by a more experienced Constable for the recommended period of time. The Commissioner concluded that it was up to Constable Ménard’s supervisors to use their judgment to determine the duration of the job shadowing. The Commissioner also declared the following at paragraph 132 of his decision:
[translation]
Given the deference that the Board should accord to the decisions made by the appellant’s managers, I conclude that the Board did not commit any palpable or overriding error in assessing the job shadowing provided to the appellant and in determining whether her supervisors had offered her reasonable assistance. Therefore, my intervention is not justified.
Disclosure of private and confidential information
[27]
As mentioned in paragraph 13 above, the Commissioner concluded, correctly in my opinion, that private and confidential information concerning Constable Ménard was disclosed to Constable Archambault contrary to paragraphs 7(a) and 8(2)(a) of the Privacy Act. This information primarily related to the performance gaps noted in Constable Ménard’s work, as well as the disciplinary measures taken against her while she was working in Tracadie-Sheila. As indicated above, only supervisors were authorized to access this information. Consequently, since Constable Archambault was not Constable Ménard’s supervisor, he was not authorized to access the information in question. In paragraph 173 of his decision, the Commissioner noted that Constable Archambault’s final opinion had been based, in part, on his perception of Constable Ménard’s level of integrity. The allegation of a lack of integrity was part of the private and confidential information disclosed to Constable Archambault.
[28]
Despite this breach of privacy, the Commissioner maintains that it was not Constable Archambault’s role to recommend whether Constable Ménard should be discharged. On the contrary, this authority rested with Inspector Landry and Corporal Jolette. The Commissioner noted that neither of these two officers called Constable Ménard’s integrity or honesty into question in their final reports. The Commissioner also noted that the Board “did not make any reference whatsoever to Constable Ménard’s integrity or honesty”
. In other words, the Commissioner was of the opinion that the illegal disclosure of private and confidential information concerning Constable Ménard did not have any influence on the decision-making process, even though Constable Archambault made reference to that information.
V.
Analysis
A.
Standard of Review
[29]
This case involves a decision by the Board and the appeal of this decision to the Commissioner. In both instances, the interpretation of the home statute was the central element. On this subject, it is my opinion that the case law clearly establishes that the applicable standard of review is reasonableness (Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R 708; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654; Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 SCR 293; Delta Air Lines Inc. v Lukács, 2018 SCC 2, 416 D.L.R. (4th) 579).
[30]
In the context of a judicial review, the judge must show judicial deference to the administrative decision maker. At paragraph 47, Dunsmuir instructs us that “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”
.
[31]
Deference should not be shown when there is a breach of the principles of procedural fairness, which includes the right to an impartial decision maker. Indeed, any violation of the principles of procedural fairness is an error which allows the Court, in the context of a judicial review, to intervene (Mission Institute v Khela, 2014 SCC 24, [2014] 1 SCR 502 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 43; Contrevenant no. 10 c Canada (Attorney General), 2018 CAF 150 at para 20). An impartial decision maker is a crucial requirement where the decision maker is part of a complete scheme created with the objective of ensuring respect for the principles of procedural fairness. In this case, Part V of the Act constitutes a complete scheme applicable to the discharge and demotion of members of the RCMP (Harvey Sinclair v Canada (Attorney General), 2006 FC 528 [Sinclair] at para 13, 291 FTR 182; Anderson v Canada (Attorney General), 2018 FC 834).
[32]
I adopt as my own the following comments of the Justice Montigny, now a judge of the Federal Court of Appeal, at paragraphs 13, 14 and 15 of Sinclair:
[13] Part V of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-9, as amended, provides the complete scheme for the discharge or demotion of a member of the RCMP. Section 45.18(1) states that a member can be discharged on the ground of unsuitability meaning that the “... member has repeatedly failed to perform... [his] duties under this Act in a manner fitted to the requirements of the ... member’s position, notwithstanding that the ... member has been given reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties.”
[14] Before a member is discharged, the appropriate officer serves a notice in writing of the intention to recommend the discharge of the member. This notice includes particulars of the acts and omissions constituting the ground of unsuitability upon which the discharge will be based. (RCMP Act, s. 45.19). Once a member has received the Notice of Intention to Discharge he may send the appropriate officer a request in writing for a review of the member’s case by a Discharge and Demotion Board (RCMP Act, s. 45.19(4)).
[15] If a member requests a Discharge and Demotion Board, three officers of the RCMP are appointed as members of that Board (RCMP Act, s. 45.2). The Discharge and Demotion Board gives the member a full and ample opportunity in person or by counsel or a representative to appear before the Board, make representations, present documentary evidence and with leave of the Board, to call witnesses (RCMP Act, s. 45.22(3)). Following the hearing, the Discharge and Demotion Board decides whether the ground of unsuitability is established on a balance of probabilities. If the ground of unsuitability is established, the Board discharges the member (RCMP Act, s. 45.23).
B.
Procedural fairness
[33]
The situation facing Constable Ménard, her discharge, is considered to be the “capital punishment”
of employment law (Bird v White Bear First Nation, 2017 FC 477 at para 32; Johar v Best Buy Canada, 2016 ONSC 5287 at para 11). In light of this principle, it is my opinion that Constable Ménard had a right to a fair and just hearing. The Board had a duty to conduct an independent assessment of the evidence in order to determine whether the appropriate officer had established the ground of unsuitability on a balance of probabilities. The Board’s statement at the beginning of its decision, indicating that it had to show deference to the decision made by the appropriate officer, had the consequence of placing Constable Ménard in an unfavourable position and created a situation that raised a reasonable apprehension of bias. Consequently, the Board departed from its role as an independent decision maker.
[34]
The Commissioner justified his finding by citing Ahmed v Canada (Public Service Commission Appeal Board), [1974] 2 FC 644, 51 DLR (3d) 470 [Ahmed]. With respect, I believe that he is wrong. The decision in Ahmed was rendered in the early 1970s, and Canadian society has changed dramatically since then, particularly in the area of employment and labour law. Moreover, there have been several amendments to the procedures concerning discharge and demotion within the RCMP, provided in Part V of the Act. Indeed, in an effort to create a complete scheme that will be able to respond to the demands and expectations of members of the RCMP, Parliament made amendments to Part V of the Act in 1990, 1993 and 2002. In June 2013, Part V was finally repealed.
[35]
In order to illustrate the distinction between the decision rendered in Ahmed and the case at bar, we will review the various statutes concerned in the two cases, namely, the Public Service Employment Act, RSC 1970, c P-32, and the Royal Canadian Mounted Police Act. The relevant excerpts are reproduced in appendices A and B below.
[36]
In this case, the powers and responsibilities of the Board and the Commissioner differ from those of the appeal board in Ahmed, where the employee did not have the right to appeal to an independent board made up of experienced officers in the context of a complete scheme. Moreover, in Ahmed, the appeal board did not have jurisdiction to consider the case de novo, as it did not have any testimonial evidence before it, or to render a decision on the balance of probabilities.
[37]
By showing deference to the findings of the managers and the appropriate officer, the Board and the Commissioner deprived Constable Ménard of her right to an impartial decision maker. This breach of a principle of procedural fairness leads me to conclude that the application for judicial review should be allowed.
[38]
Even if I am wrong and there was no breach of procedural fairness, it is my opinion that both the Board and the Commissioner relied on an interpretation of their home statute that was unreasonable. Indeed, if we follow the logic of their interpretation, the Board will show deference to a decision rendered by the managers of a member of the RCMP, even if there is an error in this decision. By extension, the Commissioner will also show deference to this error by according deference to the decision rendered by the Board. This is unreasonable because, on the one hand, the consequences of such an approach could prove irreversible, and on the other hand, this approach does not encourage transparency in the context of a complete scheme.
C.
Unreasonable conclusions regarding the job shadowing and the disclosure of private and confidential information
[39]
I believe that both the conclusions reached and the analyses conducted by the Board and the Commissioner concerning the issues of the job shadowing and the disclosure of private and confidential information were unreasonable. In reviewing the case at bar, it is important to keep in mind that the future of a police officer is at stake here. On two occasions, S/S/M Hudon recommended that Constable Ménard be shadowed by an experienced constable. Unfortunately, these instructions were not followed. The uncontested evidence demonstrates that Constable Archambault was not an experienced constable. Moreover, he was paired with Constable Ménard for only six (6) weeks over a period of three (3) months. Furthermore, Constable Ménard was instructed not to accompany other police officers during the period corresponding to her performance assessment, and the other police officers were advised not to work with her. Finally, I note that Constable Ménard’s [translation] “supervisor”
was transferred to the Saint-Quentin detachment, located 100 km from Campbellton. I do not believe that this was the kind of supervision that was contemplated when the decision was made to transfer Constable Ménard to Campbellton, for a [translation] “fresh start”
. Under these circumstances, the RCMP created a situation where the failure of a member was more likely than the member’s success. I believe that the conclusions, including the decision-making process used by both the Board and the Commissioner, concerning the issue of job shadowing, lack transparency and intelligibility.
[40]
With respect to the issue of the disclosure of Constable Ménard’s private and confidential information, it is clear that Inspector Landry and Corporal Jolette relied on the opinion of Constable Archambault to form their own opinions. The documentary evidence clearly demonstrates that Constable Archambault received private and confidential information about Constable Ménard and that he also used this information to form his own opinions about Constable Ménard’s skills. The Commissioner concluded that the information was illegally transmitted to Constable Archambault. I agree with him on this point. However, I believe that both his conclusion and his analysis concerning the influence of this disclosure lack transparency and intelligibility. It is clear that the disclosure influenced Constable Archambault’s opinion of Constable Ménard, and that his opinion significantly influenced Inspector Landry and Corporal Jolette.
VI.
Style of cause
[41]
The respondent asks this Court not to designate the RCMP as a named respondent in this case since the RCMP is not a legal entity. I agree with this position. Indeed, the RCMP is a federal government department, not a legal entity. Consequently, as established by the case law, it cannot be named as a party in a case (Gravel v Canada (Attorney General), 2011 FC 832 at para 6, 393 FTR 219; Sauvé v Canada, 2010 FC 217 at para 44, 186 ACWS (3d) 66). Consequently, the Attorney General of Canada will be the only respondent in this case.
VII.
Conclusion
[42]
For these reasons, the application for judicial review is allowed. The decisions rendered by the Board and the Commissioner are set aside. I order that the case be reconsidered. The style of cause will be amended to strike the ROYAL CANADIAN MOUNTED POLICE as a respondent.
JUDGMENT in T-1816-16
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed with costs;
2. The order of the Board and the decision of the Commissioner are quashed;
3. The issue of Constable Ménard’s suitability shall be reconsidered; and
4. The style of cause for the case is amended strike the name of the ROYAL CANADIAN MOUNTED POLICE as a respondent.
“B. Richard Bell”
Judge
Certified true translation
This 29th day of January, 2019.
Michael Palles, Translator
APPENDIX A
APPENDIX B
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APPENDIX C
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FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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T-1816-16
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| STYLE OF CAUSE:
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ANIKE MÉNARD v THE ATTORNEY GENERAL OF CANADA
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| PLACE OF HEARING:
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Montréal, QuEbec
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| DATE OF HEARING:
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AUGUST 30, 2018
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| JUDGMENT AND REASONS:
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BELL J.
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| DATED:
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dEcembEr 17, 2018
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APPEARANCES:
| Caroline Chrétien
Jean-François Longtin
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FOR THE APPLICANT
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| Nadia Hudon
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
| Bélanger Longtin
Montréal, Quebec
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FOR THE APPLICANT
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| Attorney General of Canada
Montréal, Quebec
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for the respondent
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