Brennan v. Canada ( Inspector, Grievance Adjudicator, RCMP )
T-504-98
Gibson J.
10/11/98
14 pp.
Judicial review of Level II Adjudicator's decision affirming Level I Grievance Adjudicator's dismissal of grievance with respect to refusal to promote applicant to rank of Staff Sergeant-Major (S/S/M)-Applicant member of RCMP-Elected Division Staff Relations Representative (DSRR) in 1987-DSRRs represent interests of members with respect to staff relations matters-Subsequently re-elected three times-During service as DSRR held rank of Staff Sergeant-During third term requested promotion to next substantive non-commissioned rank retroactive to first election as DSRR based on RCMP Administrative Bulletin AM-940, providing regular member on DSRR assignment shall be promoted to next substantive rank if, at any time during second or subsequent term on DSRR assignment, and having held present rank for minimum two years, member meeting national average for promotion to rank-Request denied on basis Commissioner approving abolition of rank of S/S/M in May 1975 effective with discharge of last surviving member-Application dismissed-(1) In technical area of promotion in organization such as RCMP, substantial deference, albeit somewhat short of standard of "patent unreasonableness", appropriate with respect to issues of fact-(2) Applicant not arguing procedural unfairness or lack of jurisdiction-Arguing Adjudicator's decision to effect promotion to rank of S/S/M not open to applicant by reason of policy decisions of Force and constant practice of Force, not reasonably open to Adjudicator-Based on material before Court, reasonably open to Adjudicator to conclude policy approved by Commissioner in 1975 effectively revoked any authority other than his own to appoint S/S/Ms and in result, appropriate no national average for promotion to rank identified in light of Administrative Manual-No basis to conclude Adjudicator making reviewable error in failing to consider question of promotion of applicant to rank other than S/S/M-(3) Applicant arguing doctrines of legitimate expectation, estoppel by representation applying to preclude Adjudicator from reaching decision did-Citing Evans, J.M. et al., Administrative Law: Cases, Text and Materials, 3rd ed. Toronto: Emond Montgomery Ltd. (1989): legitimate expectation important source of procedural rights, and indications will be expanded to include substantive rights-Such "indications" not realized in this Court-In Gonsalves v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 269 (F.C.T.D.), Muldoon J. citing Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 wherein stated doctrine of legitimate expectation creating only procedural, not substantive rights; affirmed by Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 and applied in Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621 (C.A.)-Applicant seeking substantive rights, i.e. right to promotion, not procedural rights-Representation of fact allegedly made in Administrative Bulletin AM-940 as to right to promotion conditional-Not enough to give rise to legitimate expectation or to create estoppel-Even if it were to do so, no substantive right would arise-Under Federal Court Rules, 1998, in matter such as this, costs would normally follow event-Given concerns reflected in conclusion (i.e. Force never more than implicitly abolished rank of S/S/M, failed to reflect in Administrative Bulletin AM-940 implicit abolition) different result regarding costs justified-Applicant acting entirely reasonably in pursuing matter to this level, and induced into so doing by RCMP's failure to clarify policies, Administrative Bulletins as applied to request by applicant for promotion to rank of S/S/M-Applicant entitled to out-of pocket disbursements fixed at $500, notwithstanding unsuccessful before this Court-Federal Court Rules, 1998, SOR/98-106.