2021 FC, 2021 FC 1175

Date: 20211104 Docket: T-801-21 Citation: 2021 FC 1175 Ottawa, Ontario, November 4, 2021 PRESENT: The Honourable Mr. Justice Manson BETWEEN: ADRIEN POIRON Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] This is an application for judicial review of the final level decision of the Royal Canadian Mounted Police [RCMP] Adjudicator [the " “Final Level Adjudicator” " ], dated April 20, 2021 [the " “Final Decision” " ].

The Final Decision upheld the initial level decision of RCMP Adjudicator [the " “Initial Level Adjudicator” " ], dated October 23, 2020 [the " “Initial Decision” " ], which dismissed the Applicant’s grievance in which he contested the determination of his rate of pay [the " “Grievance” " ]. II. Background [ 2 ] The Applicant, Adrien Poiron, is an employee of the RCMP as a Sworn Civilian Member. The Applicant has worked as an Electronics/Computer and Radio Technician for the RCMP since March 4, 1991. A. The Applicant’s Grievance [ 3 ] On May 23, 2019, the Applicant presented the Grievance pursuant to

section 31 of the Royal Canadian Mounted Police Act , RSC 1985, c R-10 [the " “ RCMP Act ” " ]. The Grievance alleges that the RCMP is not following the Treasury Board Directive to the RCMP dated August 24, 1972 [the " “Directive” " ], resulting in unfair compensation for the Applicant. [ 4 ] More specifically, the Applicant alleges that – contrary to the Directive – his hourly rate is not the same as his Public Service counterpart.

He attributes the discrepancy to a misinterpretation and misapplication of the Directive by the RCMP. [ 5 ] As part of his Grievance, the Applicant sought the following redress: That the RCMP follow the Directive and apply the Annual Rate of Pay Formula set out in the Directive to calculate the Applicant’s remuneration, including overtime; and That the adjustment in remuneration be retroactively applied to the entirety of the Applicant’s employment with the RCMP. B.

The Initial Decision [ 6 ] On May 28, 2019, the Office of the Coordination of Grievances and Appeals [the " “OCGA” " ] raised the preliminary issue of standing in regards to the Grievance with the Applicant.

Specifically, the OCGA noted that the Applicant was grieving an issue that appeared to be the same as a previous grievance presented by the Applicant, and which had already been adjudicated and dismissed in a final level decision. [ 7 ] On May 29, 2019, the Applicant responded that he wished to proceed with the Grievance because he felt that it was different from the previous grievance and that the facts in his previous grievance were ignored. [ 8 ] On May 11, 2020, the Respondent also raised the preliminary issue of standing on the basis that the Applicant had a similar grievance that had been previously adjudicated upon at a final level.

On May 19, 2020, the Applicant provided submissions on the issue of standing at the request of the OCGA. [ 9 ] Pursuant to paragraph 36(

a) of the RCMP Act and subsection 3(1) of the Commissioner’s Standing Orders (Grievances and Appeals) , SOR/2014-289 [the " “ CSO ” " ], an Initial Level Adjudicator was appointed for a decision on the preliminary issue of standing in regards to the Grievance. [ 10 ] Following an examination of the information and documents found in the adjudicator’s package provided by the OCGA, the Initial Level Adjudicator dismissed the Grievance for lack of standing, finding that the Applicant had not established that the impugned decision, act, or omission met the requirements of subsection 31(1) of the RCMP Act for two reasons.

[ 11 ] First, the Initial Level Adjudicator found that there was no distinction between the subjects of the present Grievance and the previously adjudicated grievance. Given that final level decisions are final and binding [ RCMP Act , subsection 32(1) ], the Applicant should have sought a judicial review under the Federal Courts Act, RSC, 1985, c F-7 [the " “ Federal Courts Act ” " ] of the previous final decision rather than commence a new grievance. For this reason, the Grievance was dismissed according to subsection 31(1.1) of the RCMP Act and paragraph 10 (

a) of the CSO . [ 12 ] As well, the Initial Level Adjudicator found that the impugned decision, act, or omission – in this case, the RCMP’s alleged misinterpretation and misapplication of the Treasury Board Directive – was not made in the administration of the affairs of the Force. Upon examination of the record before him, the Initial Level Adjudicator found that it was a decision of the Treasury Board, not the RCMP, that the Applicant was attacking in his Grievance. C. The Final Decision [ 13 ] In accordance with paragraph 31(2)(

b) of the RCMP Act and pursuant to subsection 7(2) of the CSO , the Applicant requested a referral of the Grievance to the final level on the basis that the Initial Decision was reached in a manner that contravened the applicable principles of procedural fairness and was clearly unreasonable. [ 14 ] In his submissions at the final level, the Applicant argued that the Initial Level Adjudicator was incorrect in his finding that the Applicant was attacking a Treasury Board decision.

The Applicant submitted that, though the Treasury Board determines the annual rate of pay for Civilian Members and Public Service employees, the RCMP is misapplying these rates resulting in incorrect compensation to the Applicant as a Civilian Member. [ 15 ] The Applicant also filed a rebuttal response further reiterating his position. [ 16 ] On April 20, 2020, the Final Level Adjudicator rendered the Final Decision regarding the preliminary issue of standing in regards to the Grievance.

He upheld the Initial Decision and dismissed the Grievance, finding that the Applicant did not establish that the Initial Decision contravened the Applicant’s rights to procedural fairness, was based on an error of law, or was clearly unreasonable.

(1) Procedural Fairness [ 17 ] The Final Level Adjudicator canvassed the relevant case law as well as the applicable legislation and policies (i.e.

section 13 of the CSO and

section 1.4 of the National Guidebook – Grievance Procedure ). He found that the Initial Decision did not contravene the Applicant’s right to be heard, right to a decision from the person who hears the grievance, or the right to reasons for the decision. [ 18 ] Though the Applicant alleged that the Initial Level Adjudicator " “ha[d] clearly made a biased and unreasonable decision in favor of RCMP management without examining the details of [his] grievance properly” " , the Final Level Adjudicator found that the Applicant was not actually alleging bias but was disagreeing with the findings of the Initial Decision.

As a result, the Initial Decision did not contravene the Applicant’s rights to procedural fairness.

(2) Error of Law [ 19 ] While the Applicant did not argue this point, the Final Level Adjudicator found that the law regarding the Initial Level Adjudicator’s finding of his jurisdiction to adjudicate the matter was correct, as well was his application of subsection 31(1) of the RCMP Act in regards to the preliminary issue of standing in the Grievance. Therefore, the Initial Decision was not based on an error of law.

(3) Reasonableness [ 20 ] The Final Level Adjudicator found that the Initial Decision thoroughly examined the question of whether the Grievance had been previously adjudicated and correctly dismissed on this basis. [ 21 ] Moreover, while the Initial Decision could have stopped once it found that the Grievance had been previously adjudicated, it went on to examine the question of whether the impugned decision was made in the administration of the Force: " “In determination of standing, the crux of a grievance must be examined.

The question at this juncture is: who is responsible for establishing a member’s rate of pay, both annually and hourly?” " [ 22 ] The Final Level Adjudicator agreed with the Initial Decision that the Treasury Board, not the Force, is responsible for the determination of pay rates for Civilian Members. [ 23 ] The Final Decision held that the Applicant did not establish that the Initial Decision contravened the Applicant’s rights to procedural fairness, was based on an error of law, or was clearly unreasonable. III.

Decision Under Review [ 24 ] The Final Decision confirmed that, on the preliminary issue of standing, the Applicant’s Grievance did not meet the requirements of section 31(1) of the RCMP Act because the same issue had been adjudicated previously and the impugned decision was not made in the administration of the Force. [ 25 ] The Final Decision also found that the Initial Decision did not contravene the Applicant’s right to procedural fairness, was not based in error of law, and was not clearly unreasonable.

IV. Issues [26] The issues are: 1) Was the Final Decision reasonable? 2) Was the Final Decision procedurally fair? V.

Standard of Review [27] Where a Court reviews the merits of an administrative decision, such as the Final Decision, the standard of review is reasonableness[Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]]. [28] Issues that relate to a breach of procedural fairness are reviewed on the standard of correctness or a standard with the same import[Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34-35, 54-55, citing Mission Institution vKhela, 2014 SCC 24 at para 79]. VI.

Analysis [29] The Applicant submits that the Final Decision is unreasonable because it employed circular reasoning. The Applicant also assertsthat the Final Decision refers to and acknowledges a number of documents (i.e. several Treasury Board documents and an

article by LisaThiele) but did not apply them correctly or ignored them. [30] In regards to the issue of procedural fairness, the Applicant submits that the adjudicators were influenced by the previous grievanceand undertook their analysis with preconceived bias. The Applicant also argues that the grievance process itself is inherently biasedbecause it is not run by an independent group or agency. He also states that by ignoring the aforementioned documents, that the FinalDecision was biased and procedurally unfair. A.

Was the Final Decision Reasonable? [31] A reasonableness review should focus on the decision-maker’s process and the outcome. It is not the role of the Court to decide theissue themselves, determine the decision it would have made in place of that of the administrative decision-maker, attempt to ascertainthe "“range”" of possible conclusions that would have been open to the decision-maker, conduct a de novo analysis, or seek to determinethe "“correct”" solution to the problem.

The reviewing Court must only consider whether the decision – including the reasons and theoutcome – was unreasonable. [32] I find that the Final Decision is clear, intelligible, and justifiable. The Final Decision thoroughly outlines the procedural history, thepositions of the parties, and the applicable legislation and policies, and is reasonable to uphold the Initial Decision that the subject of theGrievance had been adjudicated previously.

Indeed, at paragraph 4 of the Applicant’s affidavit filed in support of this application, theApplicant states, "“…My first grievance was dismissed on standing and therefore a second grievance was filed approaching the subjectfrom a different angle.”" The Final Decision (and the Initial Decision) were reasonable in dismissing the Grievance on the basis that thesubject had been adjudicated previously.

While one of the documents (a table of pay rates) was not put before the adjudicators, it wouldnot have affected the outcome. [33] The Final Decision was also reasonable in upholding the Initial Decision’s finding that the impugned decision was not made in theadministration of the Force. The Final Decision aptly lays out both parties’ positions and the applicable legislation and policies. [34] There is no circular reasoning in the Final Decision as alleged by the Applicant. In addition, the Final Decision was made uponreview of the entire adjudicator’s package provided by the OCGA.

There is no evidence provided by the Applicant that the FinalDecision did not take into account all of the materials provided. B. Was the Final Decision Procedurally Fair? [35] The Final Decision itself contains a thorough analysis of procedural fairness according to the five non-exhaustive factors set out inBaker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker].

Not only does the FinalDecision correctly assess and find that the Applicant was afforded procedural fairness regarding the Initial Decision, the Final Decisionalso follows the same procedurally fair process. [36] The grievance process provides the parties the right to be heard, the right to a decision from an unbiased adjudicator, the right to adecision from the person who hears the grievance, and the right to reasons for the decision. The Applicant was able to make written andrebuttal submissions throughout the two level process.

The Applicant was provided justifiable, intelligible, and transparent reasons bythe adjudicators at both levels. [37] While the Applicant submits that both adjudicators were biased, he has provided no evidence to support this assertion. Theadjudicators’ reference to the previous grievance was correct and necessary to assess whether the subject of the Grievance had beenadjudicated previously in light of the preliminary issue of standing. There is also no evidence that materials were ignored. [38] I find that the Applicant was afforded procedural fairness.

The Applicant has been allowed to fully adjudicate the issue of standing

on this subject twice, before four different adjudicators, two different respondents, and over the course of three years. [ 39 ] The Respondent seeks costs in the amount of $1,500.00. The Applicant responds that it would be unfair to assess costs against him for seeking judicial review of what he has challenged as a procedurally unfair grievance process. Given the facts here, I find that minimal costs in the amount of $500.00 should be awarded to the Respondent. JUDGMENT in T-801-21 THIS COURT’S JUDGMENT is that: 1 . The application is dismissed. 2 . Costs to the Respondent in the amount of $500.00. "Michael D.

Manson" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-801-21 STYLE OF CAUSE: ADRIEN POIRON v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: October 28, 2021 JUDGMENT AND REASONS: MANSON J. DATED: NOVEMBER 4, 2021 APPEARANCES : Adrien Poiron For The Applicant Joel Stelpstra Marylise Soporan For The Respondent SOLICITORS OF RECORD : Adrien Poiron Nanaimo, British Columbia For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent