Federal Court Decisions

     T-1338-97

BETWEEN:

     ALLAN DALE EVANS,

     Applicant,

     - and -

     ATTORNEY GENERAL OF CANADA AND COMMISSIONER OF THE

     ROYAL CANADIAN MOUNTED POLICE,

     Respondents.

     REASONS FOR ORDER

LUTFY J.:

     In November 1995, the Applicant filed two grievances concerning the results of tests which would have qualified him to compete for promotion to the rank of corporal in the Royal Canadian Mounted Police. These grievances have yet to be resolved.

     On June 11, 1997, qualified candidates were invited to express their interest prior to 16:00 hours on June 19, 1997 for any of six corporal positions in various regions of Newfoundland and Labrador. The applicant is presently a constable with the Clarenville detachment of the R.C.M.P. and is particularly interested in the position of corporal now available in that municipality.

     On June 13, 1997, the applicant requested a delay in the staffing of these positions on the ground that his grievances had yet to be resolved. The applicant would only be qualified to apply for any one or all of these positions if he were successful in the grievance process.

     In the forenoon of June 16, 1997, the applicant received two consecutive responses to his request for a delay:

(a)      at 8:59 a.m., he was advised:

A check of our present records fail [sic] to identify you as being a fully processed candidate for the 2nd cycle promotional process. The national rank ordered promotional list fails to include you as well. Only candidates with test and structured interview scores advance to the promotion list. Have you been led to believe you are a fully processed candidate or on the national rank ordered list?

I am not aware of your grievances, nor do I know the present status. Once you receive a reply of the outcome of the grievances and your status is known, we will deal with whatever redress is necessary at that time.

         I trust this will assist you.

     (b)      at 9:17 a.m., he was advised:

Further to our telephone conversation and the previous message we will await the outcome of the Ottawa grievances, and deal with whatever redress is required at that time.

     The applicant now seeks judicial review of the decision denying his request that the staffing of the six corporal positions be set over until his grievances are dealt with.

     On June 20, 1997, counsel for the applicant presented a motion for interlocutory injunctive relief on an urgent basis by way of telephone conference hearing. The motion seeks to enjoin the respondents from dealing further with the promotions to the six corporal positions until the applicant's grievances are resolved. I understand that the applicant would be satisfied if the injunction extended only to the Clarenville position. After argument by counsel was completed, I was not convinced that an injunction should issue. I took the matter under advisement to consider further the case law relied upon by the applicant.

     The parties acknowledge that to obtain the injunctive relief, the applicant must establish that his application for judicial review raises a serious issue, that he will suffer irreparable harm if the injunction does not issue and that the balance of convenience is in his favour.

     It is not apparent to me that the applicant meets even the low threshold required in establishing a serious issue. The applicant alleges that the respondents failed to observe the principles of natural justice and procedural fairness in making their decision to deny his request to set over the staffing of the six positions. The applicant made his request in the afternoon of Friday, June 13 and received his response early on Monday, June 16. The response was timely and addressed the issue of the applicant's grievances. There was a telephone exchange during which the issue was apparently further discussed and a second response confirmed the position of the respondents. The applicant's complaint, in my view, appears to be more directed to the respondents' refusal than with the procedures and process which led to it.

     However, even if there was a serious issue, I am satisfied that the applicant has not established irreparable harm. If no injunction is issued, the Clarenville position for corporal will have been staffed prior to the resolution of the applicant's grievances. If the applicant succeeds in the grievance process, his family will be required to move should a corporal position become available in another region. This evidence is speculative. It presumes that the applicant will succeed with the grievance process and that his test results will be better than those of other candidates for the same position. Even if he were proven right in these assumptions, any pecuniary loss could be compensated by damages. The other inconveniences which result from displacing his family from one community to another do not constitute irreparable harm. (See Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 at 97.) These inconveniences may even be inherent in seeking promotions from within an organization such as the R.C.M.P. with a broad geographic mandate.

     In Tkachuk v. Canada (1991), 48 F.T.R. 73, the job functions of an R.C.M.P. corporal were changed from his plainclothes posting to uniform duties. His superiors characterized this change as a necessary administrative decision and not one which was punitive or disciplinary. The corporal sought judicial review of this decision and interlocutory injunctive relief. In dismissing the application for the interlocutory injunction, Mr. Justice MacKay stated at page 76:

In order to obtain an interlocutory injunction, an extraordinary remedy, an applicant must establish that he or she will suffer harm that is not compensable in damages. As noted above, the applicant, in his affidavit, states that the transfer to uniform duties "... is a punitive transfer and professionally embarrassing to me". The applicant will suffer no reduction in salary and is not required to relocate.

It is my view that there is insufficient evidence to accept the applicant's statement that the transfer is a punitive transfer. In the applicant's view the transfer is punitive, and the effect on the applicant may be the same, in the circumstances of this case, whether the motivation for the transfer is punitive or based on proper administrative reasons. The Superintendent states that the reasons are the latter. As for the statement that the transfer is professionally embarrassing, I cannot accept that the transfer within the force to another detachment and to new duties without a reduction in pay, however embarrassing that may be to the applicant personally, constitutes irreparable harm sufficient to warrant the grant of an interlocutory injunction. Moreover, whatever harm the applicant suffers due to embarrassment may ultimately be remedied by any vindication which may result from a successful prosecution of the claimant's grievance or of his rights at the trial of this action, if he be successful.

     In Tkachuk, supra, the application for injunction was made some three weeks after the change in functions became effective. In the present case, the application for the injunction could not be heard until the day after it was open to the respondents to staff the six corporal positions. On this issue, MacKay J. stated at page 77:

The second reason that an interlocutory injunction should not be granted is that the transfer which is objected to has already been effected. Indeed, that transfer was said to be effective May 15, a week before the application for an injunction was filed. Save for the applicant's recuperation from surgery, he would be carrying out his duties at the Burnaby detachment to which he was transferred. As stated by Mr. Justice Walsh for this court in Minister of Transport of Quebec v. Attorney General of Canada, [1982] 2 F.C. 17, at 22-23:

"With respect to the applications for interlocutory injunction it may be said at once that they must be dismissed as the event sought to be enjoined, namely the cancellation of some services and operation of others at less frequent intervals had already taken place when they came on for hearing and an injunction cannot be issued to prevent something which has already taken place."

     For these reasons, the application for an interlocutory injunction will be dismissed.

                         "Allan Lutfy"                          Judge

Ottawa, Ontario

June 23, 1997