RCMP |
Shephard v. Fortin
A-567-03
2004 FCA 254, Malone J.A.
8/7/04
14 pp.
Appellant Constable in Royal Canadian Mounted Police-- Asserting new three-stage promotion process unfair because denying candidates access to examination results and surrounding materials--Appellant wrote Corporal Job Simulation Exercise (JSE)--In accordance with Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements) (Promotions CSO), appellant requested and was denied access to material and information relating to JSE--RCMP Adjudicator dismissed appellant's complaints examination answers not correctly assessed; decision upheld by Federal Court--Appeal from that decision allowed--Federal Court Judge erred in finding Adjudicator not denying appellant participatory rights under principles of natural justice and procedural fairness by refusing him access to relevant information and documents necessary for him to obtain fair hearing--Role of Adjudicator under Promotions CSO to make decision on merits of each case--Decision on merits of appellant's case requiring Adjudicator to determine whether exam questions incorrectly marked, rather than determination of whether appellant treated fairly during examination process--Adjudicator to order appropriate corrective action if determines decision, act or omission in question erroneous and prejudiced complainant-- Thus, Adjudicator, in present appeal, following finding marking of JSE erroneous, would change any answers on appellant's JSE found to be incorrectly marked, and change preferred ranking on Promotional Eligibility List-- Requirement of written reasons for Adjudicator's decision, and lack of appeal or further review also indicating greater procedural protections warranted--Collectively, indicating duty of fairness requiring more than minimal level of procedural protection found by Judge--Case against appellant consisting of particulars of and rationale for marking of his JSE--Without that information, appellant unable to know case against him, and right to be heard rendered meaningless-- Commissioner's Standing Orders (Dispute Resolution Process for Promotions and Job Requirements), SOR/2000-141.