Date: 20040123
Docket: T-384-03
Citation: 2004 FC 106
Ottawa, Ontario, the 23rd day of January 2004.
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN :
KEYHAN DERAKHSHAN
Applicant
- and -
THE COMMISSIONER OF THE ROYAL
CANADIAN MOUNTED POLICE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act and subsection 32(1) of the Royal Canadian Mounted Police Act of a decision of an Inspector, herein the "Adjudicator," dated January 21, 2003, wherein the Adjudicator dismissed the Applicant's grievance on the grounds that the Applicant did not have standing to bring it.
[2] The Applicant is self-represented and specified in oral submissions that his lack of legal expertise was reflected in his written pleadings; he now solely seeks the revocation of the decision by the Adjudicator to deny the Applicant's "Request for intervention"; he has deleted all else from his pleadings.
[3] The Applicant claims that he was in error in respect to jurisdiction for the purpose of seeking his promotion. This, he withdraws.
[4] That, which remains, strictly and solely the issue before the Court, is standing.
[5] The Respondent requests that this Court dismiss the application for judicial review.
BACKGROUND
[6] Members of the Royal Canadian Mounted Police (RCMP) must complete a minimum of seven years of service, and must successfully write the "Corporal's Job Simulation Exercise" (JSE) in order to be considered for promotion from the rank of constable or corporal.
[7] The Applicant has been a member of the RCMP since 1992. In April of 2000 the Applicant, who sought promotion from the rank of constable to corporal, wrote the JSE.
[8] At about the same time as the Applicant wrote the exam, a JSE was reported missing or stolen from the Toronto West RCMP Detachment. The Applicant was informed of this and that an internal investigation had been initiated by the RCMP to identify those responsible for the alleged theft of the JSE.
[9] On January 9, 2001, the Staffing Policy Centre dispatched a message informing all members interested in participating in the 2001 JSE that the exam had not been changed from the 2000 sitting and the minimum passing score would continue to be the same. The message provided the candidates the option of retaining their recent scores for up to four years, or re-qualifying by rewriting the exam. The grievor did not rewrite the exam, and therefore retained his score from the 2000 exam.
[10] On August 1, 2001, the Applicant asked the RCMP's Divisional Staff Relations Representative (the "DSRR"), in this matter, about the outcome of the investigation. The DSRR informed the Applicant that, as far as he knew, no suspects had been identified. On August 3, 2001, the Applicant submitted a formal request for the results of the investigation. The Applicant received the reply that Toronto West Detachment RCMP members were not advised of the final results, but that the outcome of the investigation was that no suspects could be identified.
[11] The RCMP continued to use the JSE exam whose copy had been stolen in 2001 for the purposes of determining promotions from the rank of constable to corporal.
[12] On September 20, 2001 the Applicant filed a "Grievance Presentation." The grievance was given the file number APB-487-10-1085. In his grievance, the Applicant stated that, as a result of the loss of the JSE in April 2000 and its continued use as the exam for promotion from constable to corporal, the Applicant had been disadvantaged. The Applicant sought to have the exam results invalidated and a new exam created. In the alternative, the Applicant asked that he be granted a form of score compensation to offset the advantage gained. The Adjudicator dismissed this grievance on January 21, 2003.
[13] On February 26, 2002, the Applicant filed a "Request for Intervention." The Request for Intervention was given the file number APB 525-4-1528. The Applicant claimed to be aggrieved because a copy of the JSE had gone missing in April 2000, and that as a result, some people may have used the exam to obtain an advantage over other candidates in the promotional process for the years 2001 and 2002. Although the Applicant had not written a JSE in 2001, he was put at a disadvantage because his results for 2000 were still valid and thus, he was in competition with the candidates who wrote the exam in 2001. It was possible, therefore, that there were people who benefited from the stolen exam, received higher marks than he had, and were appointed the status of corporal in his stead.
DECISION UNDER REVIEW
[14] The grievance with file number APB 487-10-1085 is not under review. On January 21, 2003, the Adjudicator dismissed the grievance with file number APB 525-4-1528.
[15] The Adjudicator found that the Applicant did not have standing. There was no evidence that demonstrated that the missing document had been used by anyone to gain advantage over the Applicant or other members of the RCMP. The evidence rather, demonstrated that there had been no perceptible changes to exam scores before or after the exam was reported missing.
[16] The Adjudicator dismissed the grievance.
ISSUE
[17] Did the Adjudicator commit a reviewable error when he determined that the Applicant did not have standing?
STANDARD OF REVIEW
[18] The standard of review, in accordance with Flood v. Canada (Attorney General) is correctness.
[19] Although the Applicant is in complete agreement with the Flood decision in regard to "standing," he has pleaded it has no relevance in his case; this, due to the fact, that he, the Applicant, did not have a chance to participate in the promotional process due to circumstances which arose from the stolen exam; whereas Flood, who was a member of the R.C.M.P. had been the subject of a systemic error.
[20] The Flood decision, nevertheless, applies in respect of the Applicant's standing.
LACK OF EVIDENCE
[21] In Flood, Reed J. stated that, in order for a complainant to have standing, he or she must particularize how the alleged error in the promotion system has impacted him or her. Reed J.'s decision has, essentially, been codified in the CSO. Section 9 of the CSO states, inter alia, that the complainant must specify: "how the [impugned] decision, act or omission caused the prejudice." In this case, the Applicant would be required to produce evidence both that someone benefited from the Respondent's decision and specific evidence that the Respondent's decision was detrimental to him.
[22] The Adjudicator correctly found that the Applicant had not submitted evidence that demonstrated personal prejudice. Contrary to the Applicant's submissions, the onus was on the Applicant, and not the Respondent, to prove his case. The Applicant's complaint was missing an element needed to prove standing.
ANALYSIS
[23] There is no provision in the Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements (CSO) SOR/2000-14) which deals specifically with the situation in which the Respondent refuses to disclose evidence to the complainant. As such, the procedure that must be followed by the complainant where this situation occurs must be gleaned from other provisions of the CSO. The form "Request for Intervention" is the form which the complainant must complete in order to launch a complaint. The CSO, in section 9, describes that which the complainant must include in his or her request in order for it to be valid. The Request for Information mirrors the provisions of section 9. Thus, subsection 9(a) states that the request for intervention must specify the decision, act, or omission that gave rise to the dispute. The Request for Information, at section A, states: "Clearly identify the decision, act or omission giving rise to this request for intervention." The form then proceeds to mimic section 9 word for word. Therefore, the Request for Intervention is intended to contain the substance of the complainant's grievance.
[24] The "Request for Intervention" also has a category that asks the complainant to identify whether he or she needs additional information which is in the possession of the Respondent. As the form contains the substance of the complaint, and a request for disclosure is included on the form, the request for disclosure contained in the "Request for Information" becomes part of the substance of the complaint.
[25] In the case at bar, the Applicant, in his "Request for Intervention" requested the Respondent to disclose the following evidence:
1. A copy of the investigation file pertaining to the lost/stolen Corporal's JSE from Toronto West Detachment.
2. A letter from the National Staffing Policy Branch, verifying the fact that the same Corporal's JSE was used in the years 2000, 2001, and 2002 for the current promotional cycle.
3. A complete national list of constables promoted to corporals based on the Corporal's JSE written in 2000, 2001 and 2002.
[26] Pursuant to paragraph 11(2)(b) of the CSO, the Respondent must "address each issue raised by the complainant." Here, the Respondent submitted that a copy of the investigation file pertaining to the missing JSE and a complete national list of constables promoted to corporals based on the JSE written in the years 2000, 2001 and 2002 were "of no added value to the complaint." Thus, the Respondent addressed the Applicant's request for disclosure. The Applicant did not refer to this issue in his reply to the Respondent.
[27] The Adjudicator, pursuant to subsection 21(1) of the CSO, has the power to address this issue. Under subsection 21(1) of the CSO, the Adjudicator has the jurisdiction to address "preliminary or collateral matters" such as disclosure of information. Moreover, subsection 21(1) of the CSO states that the Adjudicator "shall" decide all matters.
[28] Ultimately, the Adjudicator's error in not resolving this issue is immaterial, as the Adjudicator was correct in his determination that the Applicant did not have standing.
CONCLUSION
[29] The application for judicial review is dismissed.
ORDER
Upon the basis of the amended pleadings by the Applicant at the hearing wherein only one issue remains, that of standing;
THIS COURT ORDERS that the Application for judicial review is dismissed.
"Michel M.J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-384-03
STYLE OF CAUSE: KEYHAN DERAKHSHAN v.
THE COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
DATED: January 23, 2004
_____________________
APPEARANCES:
Keyhan Derakhshan FOR THE APPLICANT
Sharon McGovern FOR THE RESPONDENT
SOLICITORS OF RECORD:
Keyhan Derakhshan FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Applicant's Application Record, Applicant's Affidavit dated April 3, 2003 at 1, para. 1 ("Applicant's Affidavit").
Applicant's Application Record, Tab 2(E), Respondent's Submissions, File: APB-487-10-1085, at 2 ("Respondent's Submissions, File APB-487-10-1085").
Applicant's Affidavit, supra at 1-2 para. 5.
Respondent's Submissions, File APB-487-10-1085, supra at 2.
At the time of the hearing, it was made known to the Court by the Applicant that a new exam is now being given.
Applicant's Affidavit, supra at 2 para. 6.
Applicant's Affidavit, supra at 2, para. 8
Applicant's Application Record, Decision of the Adjudicator, File APB 525-4-1528, Tab 2(K) at 2. ("Decision of the Adjudicator, File APB 525-4-1528")
Flood v. Canada (Attorney General), 2001 FCT 878 (T.D.), [2001] F.C.J. No. 1249 (QL).
Decision of the Adjudicator, supra at 2.
Applicant's Application Record, Request for Intervention, dated February 26, 2002, Tab (ii)(H) at 1 ("Request for Intervention").
Applicant's Application Record, "Respondent's Submissions" dated March 27, 2002 at Tab (ii)(I), at 2 (the "Respondent's Submissions").
Applicant's Application Record, "Applicant's Submissions" dated April 22, 2002 at Tab (ii)(J), at 1 (the "Applicant's Submsisions").
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