A-199-73
Gerald Alfred Kedward (Appellant)
v.
The Queen and W. L. Higgitt, Commissioner of
the Royal Canadian Mounted Police (Respond-
ents)
Court of Appeal, Thurlow and Urie JJ. and Smith
D.J.—Vancouver, June 5, 1975.
Civil Rights—Crown—Public service—Royal Canadian
Mounted Police—Dismissal of constable for refusing trans-
fer—Claim for wrongful dismissal—Whether right to a hear
ing before dismissal—Canadian Bill of Rights, S.C. 1960, c.
44, s. 2(e)—Royal Canadian Mounted Police Act, R.S.C. 1970,
c. R-9, s. 13(2) and Regulations ss. 150, 151 and 173 and
Commissioner's Standing Order 1200.
An RCMP officer was dismissed from the force by the
Commissioner pursuant to the RCMP Regulations for refusing
to accept a transfer. His action for wrongful dismissal was
dismissed and he appealed.
Held, dismissing the appeal, appellant was lawfully dis
charged. The procedure under the regulations and standing
orders is sufficient to satisfy the requirements of natural jus
tice. Even assuming his refusal amounted to a service offence,
there is no requirement of prosecution; it is not a necessary
preliminary to discharge.
McCleery v. The Queen [1974] 2 F.C. 339, applied.
APPEAL.
COUNSEL:
D. L. Collins for appellant.
N. D. Mullins, Q. C., for respondents.
SOLICITORS:
Dadson and Collins, North Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW J.: We do not need to hear you Mr.
Mullins. We think Mr. Collins has said all that
could be said on behalf of the appellant but we
have not been persuaded that there is any ground
on which the judgment of the learned Trial Judge'
could be reversed.
The appellant was discharged from the Royal
Canadian Mounted Police under the authority
conferred on the Commissioner by subsection
13(2) of the Royal Canadian Mounted Police Act.
That authority was exercised on one of the
grounds for its exercise prescribed by Regulations
150 and 173. It was exercised after the procedure
therefor contemplated by Regulation 151 and
Commissioner's Standing Order 1200 had been
carried out. In the course of that procedure the
appellant was advised of the recommendation
being made for his discharge and of the reason
therefor. He was also advised of, and subsequently
exercised, his right to appeal the recommendation.
There is no basis for thinking, on the material in
the record, that his representations were not con
sidered by the Commissioner in reaching his deci
sion. The striking fact which emerges from the
appellant's representations is that nowhere in them
did he offer to withdraw his refusal to take up the
proposed posting. That in our view was, in itself,
evidence to justify the Commissioner's decision to
discharge the appellant as unsuitable and may well
have made it inevitable.
It was submitted in argument that the appellant
had not been given a hearing and an opportunity
to present his case but in our opinion he was not
entitled either to a formal trial or to an oral
hearing on the question of his suitability. We do
not adopt the view of the learned Trial Judge that
the power of discharge under subsection 13(2) of
the Act was not required to be excercised on a
judicial or a quasi-judicial basis, vide McCleery v.
The Queen [1974] 2 F.C. 339, but the procedure
prescribed by the regulations and standing orders,
which gave the appellant the right to make
representations by way of appeal from the recom
mendation, is, in our view, sufficient, in a matter
of this nature, to satisfy the requirements of natu
ral justice.
i
It was also submitted that the appellant was
entitled to be charged and tried under the discipli
nary provisions of the Act for his refusal to accept
the transfer, in which case he would have had an
[1973] F.C. 1142.
oral hearing and, on conviction, a right of appeal
to a board of officers, and that only after that
procedure could a reccimmendation for his dis
charge be lawfully made.
Assuming that the appellant's refusal amounted
to a service offence for which he might have been
disciplined we do not think he had any right to
require that he be prosecuted or that a prosecution
is a necessary preliminary to a recommendation
for discharge. Nor do we think that upon the
conclusion of such a prosecution, if there had been
one, the appellant would have been rendered
immune from discharge on the ground of his
unsuitability. There is, in our view, no merit in the
appellant's contention.
In our opinion the appellant was lawfully dis
charged and his action in respect of it was properly
dismissed. For the same reason his appeal also fails
and must be dismissed.
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