Date: 19990609
Docket: T-2322-97
OTTAWA, ONTARIO, THIS 9TH DAY OF JUNE 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
IN THE MATTER of a decision by J.P. Blais, Inspector,
Level II Adjudicator pursuant to s.31(2)(b) of the Royal
Canadian Mounted Police Act, R.S., c. R-9, as amended
BETWEEN:
DIDIER A. R. CUVELÉ
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER & ORDER
PELLETIER J.
[1] The application is brought by Corporal Didier Cuvelé, a dog handler with the Royal Canadian Mounted Police (the "Force"). On February 28, 1996, Corporal Cuvelé brought a grievance claiming that he was entitled to standby pay from November 30, 1985 to February 24, 1996. The grievance arose from the refusal of Corporal Cuvelé`s superior officer to authorize payment of standby pay for Corporal Cuvelé who has, since becoming the dog handler in October 1985, taken after hours calls. The Level I Adjudicator rejected Corporal Cuvelé`s claim outright and held that Corporal Cuvelé did not have status to bring the grievance since it was, in the Adjudicator`s opinion, simply an attack upon the Force"s standby policy. The Level II Adjudicator held that Corporal Cuvelé was entitled to bring the grievance with respect to a certain period of time during which the Level II standby policy was in place but categorically rejected Corporal Cuvelé."s claim for standby pay prior to that period, or following the date on which his superiors advised him that he would not be designated for standby pay. As a result, Corporal Cuvelé brings this application for judicial review of the decision of the Level II Adjudicator.
[2] The Force has had a standby policy for as long as Corporal Cuvelé has been a dog handler. It has been referred to by all concerned as Level I standby. A member of the Force who is eligible to receive this treatment is paid at the overtime rate for one hour out of every four that the member is on standby. In the mid 1990's a different level of standby was introduced by (Bulletin AM-2104 August 30,1995) which is referred to as Level II standby in which the eligible member is paid at the overtime rate for one hour out of every 8 that the member is on standby. The Level II policy was preceded by a trial period (pursuant to Bulletin AM-1885 ) in which eligible members were entitled to two additional days holidays per month as compensation for being on standby.
[3] Corporal Cuvelé was never paid at the Level I standby rate, nor did he request such payment until the events which resulted in the launching of his grievance. He did receive the additional holidays under Bulletin AM-1885. He did not receive compensation under Bulletin AM-2104. His grievance followed the refusal of his superior officers, in February 1996, to designate him as eligible for Level II standby. The Level II Adjudicator allowed the grievance to the extent of awarding Corporal Cuvelé pay at the Level II standby rate for the period from August 30, 1995 (the effective date of Bulletin AM-2104) to February 1, 1996 (the date on which he was advised he would not be designated for Level II standby) less an allowance for additional holiday time earned in the same period .
[4] Both parties take the position that the Level II Adjudicator"s award must be set aside. Corporal Cuvelé says he is entitled to be paid at the Level I standby rate throughout and the Respondent says that Corporal Cuvelé was not entitled to any payment at all for standby. At the opening of the hearing of this application, Corporal Cuvelé"s counsel pointed out that the Level II Adjudicator misdirected himself in that Corporal Cuvelé had not claimed Level II standby at all whereas the Adjudicator proceeded on the basis that Level II standby was being claimed for the entire period of the grievance. Thus, it was clear at the opening of the argument that the award would have to be set aside, the only issue being whether the Court should hear argument on the merits so as to provide some guidance to the following Adjudicator on any applicable principles. This was the position taken by counsel for the Respondent. Counsel for Corporal Cuvelé argued that the Adjudicator would have to make findings of fact before any legal principles came into play and that this Court could not make or anticipate those findings of fact. I decided to hear argument on the merits with a view to seeing whether some guidance could be provided to the next Adjudicator.
[5] Some issues were resolved by consent and ought not be issues in the future. They are the following:
| 1 - While not conceding that the naming of the Commissioner of the R.C.M.P. and of the R.C.M.P itself was improper, counsel for Corporal Cuvelé agreed that the removal of these entities as parties would still give Corporal Cuvelé remedies against the Treasury Board, which administers the R.C.M.P. payroll system. As a result, Philip J.R. Murray, Commissioner of the Royal Canadian Mounted Police and the Royal Canadian Mounted Police are struck as parties to this application and the style of cause is amended to reflect the change. |
| 2 - A question was also raised as to the propriety of certain affidavits filed in this applications which placed on the record certain information which was not before the Level II Adjudicator. On the other hand, Counsel for the Respondent objected to certain portions of Corporal Cuvelé"s affidavit which also placed before the Court information not before the Level II Adjudicator. It is trite law that the evidence to be considered by a court sitting in judicial review of a decision is limited to the record before the original decision maker, unless the basis of the application is misconduct on the part of the decision maker. I indicated that I would not consider material not before the Level II Adjudicator, with the possible exception of documents of which I might take judicial notice. |
| 3 - It is common ground that at one point in his deliberations, the Level II Adjudicator sought information from a member of the Force and did not disclose that inquiry to the parties or give them a chance to respond to it. The Respondent admits that this is a breach of the rules of natural justice. Since the matter is to be sent back, I am asked to simply note the breach for the purpose of discouraging its recurrence, which I have done. |
| 4 - Since Corporal Cuvelé confirms that he seeks compensation only on the basis of Level I Standby, there is no longer any issue as to the authorization for Level II Standby. |
| 5 - Corporal Cuvelé conceded that the claims for interest as damages and pre- and post-judgment interest were abandoned, so that these items are no longer issues. |
[6] The Level II Adjudicator proceeded throughout his award on the basis that Level II standby pay was being sought. He appeared to believe that Corporal Cuvelé was relying upon Bulletin AM-2104 to establish his right to standby pay but claiming it at the Level I rate on the argument that the Level II rate had never been approved by Treasury Board. As a result the Adjudicator did not consider the merits of Corporal Cuvelé"s argument that he had been on Level I standby ever since becoming a dog handler. There is no finding on the issue of whether Corporal Cuvelé was on standby (apart from his status under Bulletin AM-1885) to which I can apply the appropriate standard of review. The same is true of the applicability of any limitation periods to Corporal Cuvelé"s claim. There is no finding to which I can apply the appropriate standard of review.
[7] As a result, despite my wish to do so, I am not in a position to provide a subsequent Adjudicator with any guidance as to the disposition of this claim. This is so because anything I might say assumes certain findings of fact. I am not entitled to be the fact finder. In the end, I can do nothing more than record the agreement of the parties with respect to certain issues and send the matter back.
O R D E R
IT IS THEREFORE ORDERED THAT:
| (1) the style of cause in this matter is amended by deleting Philip J.R. Murray, Commission of the Royal Canadian Mounted Police and the Royal Canadian Mounted Police; |
| (2) the decision of the Level II Adjudicator, Pierre Blais, is hereby set aside and the matter is remitted for determination by a different Adjudicator. |
"J.D. Denis Pelletier"
Judge