A-295-94
A-82-94
Kathy Marion Armstrong (Appellant)
v.
Commissioner N. D. Inkster of the Royal Canadian Mounted Police in his Capacity as the Commissioner of the Royal Canadian Mounted Police, Deputy Commissioner, J. D. Farrel of the Royal Canadian Mounted Police in his Capacity as the Appropriate Officer, Superintendent E. P. Craig of the Royal Canadian Mounted Police in his Capacity as the Designated Officer, Discharge and Demotion Board Appointed Pursuant to Section 45.2 of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended, Composed of Superintendent J. D. Maxwell (Chairman), Inspector D. M. A. McLay (Member) and Inspector J. P. R. Poitras (Member), Inspector Mortimer of the Royal Canadian Mounted Police in his Capacity as Officer in Charge of Langley Detachment, "E" Division (Respondents)
Indexed as: Armstrongv. Canada (Commissioner of the Royal Canadian Mounted Police) (C.A.)
Court of Appeal, Stone, Desjardins and McDonald JJ.A."Vancouver, October 1, 1997; Ottawa, January 20, 1998.
Administrative law — Judicial review — Certiorari — Appeals from trial judgments dismissing applications to quash (i) RCMP Commissioner's dismissal of appeal from Discharge and Demotion Board's decision applicant should be discharged on ground of unsuitability; (ii) Board's decision — RCMP's evidence presented to Board in written form only — Appellant not requesting authors of statements be called for cross-examination — On appeal, External Review Committee finding ground of unsuitability not established — Commissioner considering résumé prepared by staff member of all information before Board — (1) No denial of procedural fairness due to appellant's lack of opportunity to have RCMP witnesses produced for cross-examination — RCMP Act silent as to right of member facing discharge to cross-examine — In such circumstances, courts reluctant to hinder Board with courts' rules, procedures unless required by natural justice — Natural justice not requiring right to cross-examine as evidence before Board neither contradictory nor attacking appellant's credibility — Appellant not waiving right to cross-examine by failing to ask for it — To waive right, party must be clear as to consequences of act; waiver must be clear — (2) Board meeting criteria for independence: security of tenure, financial security, institutional independence as to administrative matters relating directly to exercise of tribunal's function — Informed reasonable person would perceive Board as independent — (3) Résumé prepared by staff member containing comment that had psychologist known of appellant's history of problems with paperwork, opinion might have been different — Not new evidence appellant should have been given opportunity to dispute — Court divided as to propriety of comment, but as Commissioner not mentioning psychologist, clearly making own decision, no breach of natural justice.
RCMP — Appeal from trial judgments dismissing applications to quash (i) RCMP Commissioner's dismissal of appeal from Discharge and Demotion Board's decision applicant should be discharged on ground of unsuitability; (ii) Board's decision — RCMP's evidence presented to Board in written form only — On appeal, External Review Committee finding ground of unsuitability not established — Commissioner considering résumé prepared by staff member of all information before Board — RCMP Act containing comprehensive, detailed code respecting discharge — No right to cross-examination provided — (1) Where statute silent on right to cross-examine, courts generally reluctant to impose their procedures upon board — Act's procedural requirements not violating right to fair hearing — (2) Provisions of Act ensuring Board meeting criteria for independence — (3) Court divided on propriety of staff member's comment in résumé that psychologist may have changed opinion had he known appellant's history of problems with paperwork, but as Commissioner coming to own decision, no breach of natural justice.
These were appeals from trial judgments dismissing applications to quash (i) the RCMP Commissioner's dismissal of an appeal from a decision of the Discharge and Demotion Board that the appellant should be discharged from the RCMP; and (ii) the Board's decision and various procedural steps preliminary to that decision. The appellant, a constable with the RCMP, was served with a notice of intention respecting discharge on the ground of unsuitability. A discharge and demotion board was assembled to review this decision. The RCMP's evidence was presented to the Board in written form only. During the hearing the appellant did not request that the authors of the statements be called for the purpose of cross-examination. The Board found that the ground of unsuitability had been made out. The appellant appealed to the Commissioner who referred the matter to an External Review Committee. The Committee found that the grounds of unsuitability had not been established. The case was then sent to the Commissioner, who found, after considering résumé of all the information put before the Board, that the grounds of unsuitability had been established. On judicial review, the Trial Judge found that the grounds on which the appellant relied had not been made out.
The issues were: (1) whether the procedural requirements in the Royal Canadian Mounted Police Act deprived the appellant of her right to a fair hearing; (2) whether the appellant was denied natural justice due to a lack of independence on the part of the Board; and (3) whether the staff member's comments in the résumé constituted new facts, opinions or material which the appellant was not given an opportunity to dispute.
Held, the appeals should be dismissed.
Per Stone J.A.: There was no denial of procedural fairness due to the appellant's lack of opportunity to have RCMP witnesses produced for cross-examination. The appellant never asked the Board for the opportunity to cross-examine the authors of statements in the RCMP documentary evidence, and the evidence before the Board was neither conflicting nor contradictory. Thus the Board never specifically denied the appellant the right to challenge the case against her through cross-examination, and there was accordingly no breach of the rules of natural justice. Had the appellant wanted to test the RCMP's evidence through cross-examination, it was incumbent upon her to at least attempt to make her wishes known to the Board.
The right to cross-examination, in essence, is the right to test the case against oneself. The appellant had a full opportunity to challenge the evidence against her, and therefore the hearing before the Board did not lack procedural fairness due to the absence of cross-examination.
(2) The Board met the three criteria for judicial independence. Subsection 45.25(1), which directs the Commissioner to refer the Board's decision to the Review Committee before considering the appeal, was not relevant to the Board's independence.
(3) The staff member's comment that one psychologist may have changed his opinion had he known of the appellant's history of problems with paperwork neither suggested that the result was a foregone conclusion, nor recommended how the appeal should be disposed of by the Commissioner. Nothing in the record indicated that the Commissioner did not come to his own decision in the matter, as he was obliged to do under the statute.
Per Desjardins J.A.: In stating that the fact that the psychologist was unaware of the appellant's history of problems with paperwork may have influenced his opinion, the staff member was not bringing forward any new evidence upon which the appellant should have been given an opportunity to respond. She was neither testifying nor giving her own interpretation. She was not commenting upon the correctness of the psychologist's conclusions. She was simply drawing to the attention of the Commissioner the possibility that the expert's evidence may have been different had he known certain relevant facts concerning the appellant's work history. It was not improper for the staff member, at this deliberative stage, to flag possible weaknesses in the evidence for the Commissioner's consideration and reflection. The comments concerning the conclusions of the psychologist were not illegitimate and should not be condemned.
Per McDonald J.A.: (1) The procedural requirements set out in the Royal Canadian Mounted Police Act do not violate the appellant's right to a fair hearing. Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose upon a board their procedures and technical rules of evidence unless natural justice so requires. The Royal Canadian Mounted Police Act does not give to members who are facing discharge a right to cross-examine witnesses, although it does provide for a right to cross-examination in informal disciplinary actions as well as for boards of inquiry. Parliament, therefore, has decided to provide more by way of procedural rights to those who are the subject of a board of inquiry or disciplinary action than to those who are facing dismissal. It is not for the Court to question the wisdom of Parliament.
The appellant did not waive any right she might have had by failing to ask for the right to cross-examine. To waive a right a party must be clear as to the consequences of his or her act. The waiver itself must be clear. But the rules of natural justice do not require that the appellant be granted the right to cross-examination in this case. The evidence before the Court was neither contradictory nor attacked the appellant's credibility. Further, the RCMP Act provides an extensive array of procedural rights and safeguards to satisfy the requirements of natural justice.
(2) The Board met the criteria established for independence: (1) security of tenure; (2) financial security; and (3) institutional independence with respect to matters of administration that relate directly to the exercise of the tribunal's function. The informed reasonable person would perceive the Board as independent. By providing that all Board members must be officers of the RCMP, the Act ensures a slightly higher degree of independence as officers are managers and therefore have increased security. One of the Board members must be a graduate of law school. All officers are required to take an oath that they will impartially execute and perform their duties. No Board member is allowed to be a superior of the individual charged and none of the members may have participated in instituting or processing the case against the individual charged. The names of all Board members are provided to the appellant who, may make the objections to the appointment of any member. Additional safeguards that ensure the independence of the Board are that the Commissioner's reasons must explain a departure from a ruling of an External Review Committee, set up to review the Board's decision; and it is a summary conviction offence to induce a member to forego his or her duty. Although the Commissioner appoints the officer who appoints the Board, there is no requirement that the Board have additional attributes of independence over and above those already provided by Parliament in the Royal Canadian Mounted Police Act.
(3) Natural justice requires that factual information within the knowledge of a tribunal be disclosed to the parties for comment and rebuttal if it will be relied on in reaching a decision. However, it is open to a tribunal to use (and not disclose) its accumulated background or experience, skill and specialized knowledge in analyzing and evaluating the evidence properly presented to it. It is open to the Commissioner to have a staff member prepare guidelines or summarize evidence to assist the Commissioner in fulfilling his duties. However, undisclosed comments made by a staff member that do not fall within that staff member's background or experience should be disclosed. The staff member was not qualified to give the opinion that had the psychologist known of the appellant's history of problems with paperwork, his opinion might have been different. As this issue did not arise before the Board, the appellant was not given an opportunity to refute the assertion. Because the question was not specifically addressed by the Board, it should not have been considered by the Commissioner. However, as there was no mention of the psychologist in the Commissioner's decision, and there was enough evidence for the Commissioner to make his finding regardless of the staff member's assertion, it was the Commissioner who made the final decision. Therefore there was no breach of the right to a fair hearing. The staff member's actions fell exceptionally close to the line. In the future, those occupying such a position should be told to refrain from making such comments. It was only because of the unique facts of this case that the principle underlying audi alteram partem was not breached. The staff member could draw to the Commissioner's attention that the psychologist did not have before him certain information, but should not have speculated upon whether this would change the psychologist's opinion. To allow a lay person to speculate on this matter would undermine the foundations of expert testimony. Lay persons should not comment on what may or may not change an expert's opinion if that expert or another expert is not given a chance to agree or disagree with that lay person's view. Only an expert knows what factors might change his opinion.
statutes and regulations judicially considered
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 24.1 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 15), 45.1 (as enacted idem, s. 16), 45.2 (as enacted idem), 45.19 (as enacted idem), 45.22 (as enacted idem), 45.23 (as enacted idem), 45.24 (as enacted idem), 45.25 (as enacted idem), 45.26 (as enacted idem), 48 (as am. idem, ss. 19, 24).
cases judicially considered
applied:
Innisfil (Corporation of the Township) v. Corporation of the Township of Vespra et al., [1981] 2 S.C.R. 145; (1981), 123 D.L.R. (3d) 530; 15 M.P.L.R. 250; 37 N.R. 43; 12 O.M.B.R. 129; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214.
considered:
Willette v. Commissioner of the Royal Canadian Mounted Police, [1985] 1 F.C. 423; (1984), 10 Admin. L.R. 149; 56 N.R. 161 (C.A.); 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; County of Strathcona No. 20 and Chemcell Ltd. v. Maclab Enterprises Ltd., Provincial Planning Board and City of Edmonton (1971), 20 D.L.R. (3d) 200; [1971] 3 W.W.R. 461 (Alta. C.A.); Kuntz v. College of Physicians & Surgeons of B.C. (1987), 24 Admin. L.R. 187 (B.C.S.C.); Lazarov v. Secretary of State of Canada, [1973] F.C. 927; (1973), 39 D.L.R. (3d) 738 (C.A.).
referred to:
Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432; (1984), 8 Admin. L.R. 177; 54 N.R. 303 (C.A.); Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. 3(d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; R. v. Généreux, [1992] 1 S.C.R. 259; (1992), 88 D.L.R. (4th) 110; 70 C.C.C. (3d) 1; 8 C.R.R. (2d) 89; 133 N.R. 241; Toshiba Corp. v. Anti-Dumping Tribunal; Sharp Corp. v. Anti-Dumping Tribunal; Sanyo Corp. v. Anti-Dumping Tribunal (1984), 8 Admin. L.R. 173; 6 C.E.R. 258 (F.C.A.); B and W et al., Re (1985), 52 O.R. (2d) 738; 23 D.L.R. (4th) 248; 16 Admin. L.R. 99 (H.C.).
authors cited
Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law, 2nd ed. Scarborough, Ontario: Carswell, 1994.
Smillie, J. A. "The Problem of `Official Notice': Reliance by Administrative Tribunals on the Personal Knowledge of their Members" (1975), Public Law 64.
APPEALS from trial judgments dismissing applications to quash (i) the RCMP Commissioner's dismissal of an appeal from the Discharge and Demotion Board's decision that the appellant should be discharged from the RCMP; and (ii) the Board's decision, and various procedural steps preliminary to that decision (Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 2 F.C. 356; (1994), 73 F.T.R. 81 (T.D.); T-2381-93, Rothstein J., judgment dated 24/5/94, not distributed). Appeals dismissed.
counsel:
Scott M. Bluekens for appellant.
George C. Carruthers for respondents.
solicitors:
Warner, Scarborough, Herman & Harvey, New Westminster, British Columbia, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
Stone J.A.: I have had the privilege of reading in draft the reasons for judgment of my colleague McDonald J.A. Although I agree with the result reached by McDonald J.A. and much of his reasoning, there are a few points upon which my reasoning departs from his. As such, I feel it is necessary to add my own brief comments. I shall begin with a brief summary of the facts, and of the procedures for discharge set out in the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (the RCMP Act).
As the Trial Judge acknowledged in his reasons [[1994] 2 F.C. 356], the RCMP Act contains a comprehensive and detailed code respecting discharge from the Force. The Act provides that before a member of the RCMP is recommended for discharge, he or she must be served with written notice1 describing the particulars of the acts or omissions constituting the ground of unsuitability on which the recommendation for discharge will be based.2 The member is then afforded a full and ample opportunity to examine the material relied on in support of the recommendation,3 and may request a review of his or her case by a Discharge and Demotion Board.4
Once the Discharge and Demotion Board is appointed, all of the material forming the basis of the recommendation for discharge, and which the member has already had a chance to examine, is forwarded to it.5 In addition to the member, the "appropriate officer", who is an officer of the RCMP appointed by the Commissioner (in this case the appellant's commanding officer), is made a party to the review.6 The member affected has the right to appear before the Board either in person or by counsel to make representations and present documentary evidence to it, and with leave of the Board he or she may call witnesses.7 The Board is required to provide the member with a written copy of its decision,8 including the findings of fact and reasons supporting its final recommendation on the issue of discharge.9
The affected member has the right to appeal the decision of the Board on any ground to the Commissioner of the RCMP, with whom he or she may file written submissions.10 Before considering the appeal, the Commissioner must refer the member's case to the External Review Committee,11 which is charged with reviewing the case, in the course of which it may conduct a hearing into the matter.12 After the Committee has completed its review and provided the Commissioner with a report of its findings, the Commissioner is responsible for determining the appeal on the basis of the material that was before the Board, the transcript of any Board hearing, the Board's decision, any written submissions made to the Commissioner, and the findings or recommendations of the External Review Committee.13 Further, if the Commissioner does not act in accordance with the Committee's findings and recommendations, he or she must indicate in his or her decision the reasons for not so acting.14
On October 16, 1991, the appellant in the present case was served with a notice that she was to be recommended for discharge. She requested that a Discharge and Demotion Board be appointed to review her case, and the Board conducted a hearing into the matter between March 2 and 6, 1992. The RCMP's evidence against the appellant was presented to the Board in written form only. During the hearing, the appellant did not request at any time that the authors of the statements contained in the RCMP's documentary evidence be called for the purpose of cross-examination. On June 8, 1992, the Board released its decision recommending that the appellant be discharged from the RCMP, on the ground of unsuitability. The appellant appealed the Board's decision to the Commissioner and the case was referred to the External Review Committee, which disagreed with the Board's decision that the appellant be discharged from the Force and recommended instead that she be transferred to another posting.
The Commissioner then considered the appeal. To assist him in his deliberations, he had one of his staff members, Sgt. Swann, prepare a résumé of the material submitted in the proceedings below. Sgt. Swann also included in her résumé a number of comments and recommendations. In a decision dated September 24, 1993, the Commissioner concluded that the recommendation for discharge was well founded, and dismissed the appellant's appeal from the Board's decision.
As McDonald J.A. states, the first issue raised in this appeal is whether the procedural requirements in the RCMP Act deprived the appellant of her right to a fair hearing. In particular, the appellant contends that she was denied natural justice because she was not provided with an opportunity to cross-examine the RCMP's witnesses during the hearing before the Discharge and Demotion Board. I concur with McDonald J.A.'s comments pertaining to this issue and with his conclusion that there was no denial of procedural fairness due to the appellant's lack of opportunity to have RCMP witnesses produced for the purpose of cross-examination, except in one respect. In my view, the case at bar is distinguishable from Willette v. Commissioner of the Royal Canadian Mounted Police, [1985] 1 F.C. 423 (C.A.), and the Trial Judge's comments to this effect (at pages 369-370 of his reasons) are apt. In that case, the RCMP member who was subject to a recommendation for discharge specifically requested that he be afforded the right to cross-examination, which the Board expressly denied. Furthermore, the evidence in Willette was conflicting and contradictory, thus heightening the importance of cross-examination as a tool to assist the member in testing the case against him and the Board in ferreting out the facts.
Neither of these circumstances is present in the matter before us. The appellant never asked the Board for the opportunity to cross-examine the authors of statements in the RCMP's documentary evidence, and the evidence before the Board was not conflicting or contradictory. Thus, the Board never specifically denied the appellant the right to challenge the case against her through cross-examination, and there was accordingly no breach of the rules of natural justice. In my view, had the appellant wanted to test the RCMP's evidence through cross-examination, it was incumbent upon her at the very least to attempt to make her wishes known to the Board.
The right to cross-examination, in essence, is the right to test the case against oneself. As the following passage from the decision in Innisfil (Corporation of the Township) v. Corporation of the Township of Vespra et al., [1981] 2 S.C.R. 145, at pages 168-169 reveals:
. . . it is not a necessary ingredient of natural justice that one who has submitted relevant evidence in writing or ex parte must be produced for cross-examination, provided that the evidence is disclosed and an adequate opportunity is given to reply to it.
There is little doubt in my mind that the appellant in the present case had a full opportunity to challenge the evidence against her, and I am therefore unable to conclude that the hearing before the Board lacked procedural fairness due to the absence of cross-examination.
The second issue is whether the appellant was denied natural justice due to a lack of independence on the part of the Board. Once again, I agree with my colleague McDonald J.A. that the Board met the three criteria for judicial independence, which are security of tenure, financial security and institutional independence. However, I have reservations with respect to his comment (at paragraph 43, infra) that subsection 45.25(1) of the RCMP Act, which directs the Commissioner to refer the Board's decision to the External Review Committee before considering the appeal, constitutes a safeguard which "ensure[s] the independence of the Board". While this provision can certainly be characterized as enhancing the procedural protections available to members who are recommended for discharge or demotion, in my view it has no impact on or relevance to the independence of the Board.
The third issue is whether several comments made by Sgt. Swann in the résumé she prepared for the Commissioner constituted new facts or opinions which the appellant was not given the opportunity to dispute. McDonald J.A. takes exception to Sgt. Swann's third comment, which reads:
One psychologist was unaware of the Appellant's history of problems with paperwork, a fact which may have influenced his opinion had it been known during his evaluation of her.
My colleague maintains that Sgt. Swann was not qualified to assert this opinion, and suggests that it should have been disclosed to the appellant so that she could reply to it. While McDonald J.A. concludes that the Commissioner's failure to do so did not violate the appellant's right to a fair hearing in the circumstances of this case, he characterizes Sgt. Swann's comment (at paragraph 51, infra) as "exceptionally close to the line". In future, he urges, staff members in Sgt. Swann's position should be instructed to "refrain from making such remarks", as they do not fall within their expertise.
The courts in England have accepted that there is a proper role for staff in assisting statutory decision makers and a line over which they must not cross. In Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), which involved the duty of an investigating body to act fairly, Lord Denning M.R., in referring to the tribunal's decision-making process, put the matter this way at page 19:
Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
He added these views at page 20:
It was, I think, unfortunate that the conciliation officer headed her report: "Clearly predictable case." But there was a good reason underlying it. In preparing the papers, it is very helpful for the staff to estimate the length of time needed to discuss the case and the amount of work to be done by the members to make a summary. But it was a mistake of the staff to prejudge the case by calling it "clearly predictable" and by recommending to the board the opinion which it should form. That is undesirable because it might tempt the members of the board to take a short cut"and not read the papers"and merely rubber stamp the recommendation. The summary should outline the facts, the point in controversy and the issues. It should not tell the committee what the result should be.
To my mind, these views are pertinent to the present discussion. I would not characterize the disputed comments in the present case as in any way suggesting that the result was foregone or as recommending how the appeal should be disposed of by the Commissioner. In my view, nothing in the record indicates that the Commissioner did not come to his own decision in the matter, as he was obliged to do under the statute.
I would dispose of both appeals in the manner proposed by my colleague McDonald J.A.
* * *
The following are the reasons for judgment rendered in English by
Desjardins J.A.: I agree with the reasons for judgment of my colleague Stone J.A. I also agree with the conclusion and much of the reasons for judgment of my colleague McDonald J.A. I do not agree, however, with my colleague McDonald J.A.'s comments, in obiter, on the last issue in appeal. I refer, in particular, to paragraphs 49, 50 and 51 of his reasons for judgment, which I had the advantage of reading in draft.
In her résumé to the Commissioner, prior to the latter's decision, Sgt. B. R. M. Swann wrote the following:15
One psychologist was unaware of the Appellant's history of problems with paperwork, a fact which may have influenced his opinion had it been known during his evaluation of her.
The Trial Judge characterized Sgt. Swann's statement [at page 381] as a "commentary or advice given to the Commissioner to assist him in his consideration of the evidence before the Discharge and Demotion Board". He concluded that it was not a new fact. He dismissed the appellant's contention that the résumé contained facts and material not before the Discharge and Demotion Board and which the appellant did not have an opportunity to challenge.
My colleague, McDonald J.A., views Sgt. Swann's comments as amounting to an opinion outside of her expertise, since Sgt. Swann had not been qualified as an expert. He concludes, however, that her comments were not conclusive findings. Therefore, he says [at paragraph 50, infra], "despite the fact that this is information about which Sgt. Swann is not qualified to comment on, there has been no breach of the right to a fair hearing".
I see this matter differently.
The psychologist in question had concluded that the appellant was unable to perform adequately at work for the reason that her work environment was not supportive. Sgt. Swann stated in her résumé that since the psychologist was unaware of the appellant's history of problems with paperwork, that fact may have influenced his opinion. In my view, Sgt. Swann was not bringing any new evidence upon which the appellant should have been given an opportunity to respond. She was not testifying nor was she giving her own interpretation. She was not either commenting upon the correctness of the psychologist's conclusions. She was simply drawing to the attention of the Commissioner the possibility that the expert evidence may have been different had he known certain relevant facts concerning the appellant's working history. There is a great difference between saying that one's expert opinion "would have been different" and saying that one's expert opinion "may have been different". The evidence, as a whole, together with their lacunae, were on file for the Commissioner to weigh and assess. It was Sgt. Swann's role, at this deliberative stage, to sift and summarize it for him. It was not improper for her to flag possible weaknesses in the evidence for the Commissioner's consideration and reflection. I do not think that Sgt. Swann's comments concerning the conclusions of the psychologist were illegitimate and that they should be condemned.
Our Court, in a number of cases, has determined that internal staff memoranda which contain summaries of the evidence and comments, do not violate the audi alteram partem rule.16
This being said, I would dispose of these matters as suggested by my colleague McDonald J.A.
* * *
The following are the reasons for judgment rendered in English by
McDonald J.A.: These appeals were heard together and arise out of the same factual circumstances. The first appeal is from a judgment of the Trial Division of January 27, 1994, dismissing an application for an order in the nature of certiorari to quash or set aside the decision of N. D. Inkster, Commissioner of the RCMP, dismissing an appeal from a decision of the Discharge and Demotion Board and ordering that the appellant be discharged forthwith from the RCMP. The second appeal is from a judgment of the Trial Division of May 24, 1994 [T-2381, Rothstein J., not distributed], dismissing an application for orders in the nature of certiorari to quash or set aside the decision of the Discharge and Demotion Board and various procedural steps preliminary to that decision, beginning with the notice of shortcomings, followed by a notice by the appropriate officer of intention regarding discharge, and, finally, the decision of the designated officer appointing the members of the Discharge and Demotion Board.
The facts of this case are not complicated. The appellant joined the Royal Canadian Mounted Police on November 20, 1985. After she completed basic training she was transferred to the Langley, British Columbia Detachment to complete her recruit field training course. She remained at Langley as a Level 01, General Policing Constable in the General Duties section.
On October 16, 1991, she was served with a notice of intention respecting discharge from the Royal Canadian Mounted Police on the grounds of unsuitability. The appellant asked for a review of this decision and a Discharge and Demotion Board was assembled for this purpose. The Commissioner appointed an officer to appoint the Board members. The appellant did not contest or challenge the officers' appointments.
In order to deal with the introduction of witnesses, the Board asked the appellant's representative to advise it of the names of the witnesses it would call along with a synopsis of their general testimony.
The case against the appellant consisted mainly of unsworn documentary evidence. No viva voce evidence was adduced on behalf of the officer making the complaint nor were the authors of the statements or other documentary evidence contained in the notice offered or produced for purposes of cross-examination by the appellant. The appellant attempted, but failed, to contest the admissibility of four unsworn statements put into evidence as part of the appropriate officer's documentary case. She did not request that the authors of these statements or the authors of the other material entered by the appropriate officer be produced for cross-examination.
The Board found that the grounds of unsuitability had been made out. The appellant appealed to the Commissioner who referred the matter to the Royal Canadian Mounted Police External Review Committee. The Committee found that the grounds of unsuitability had not been established and recommended that the appellant remain a member of the Royal Canadian Mounted Police but be transferred from the Langley Detachment.
The case was then sent to the Commissioner who had a member of his staff prepare for him a résumé of all the information put before the Board by the appropriate officer and the appellant. The appellant was not given an opportunity to make further submissions to the Commissioner. The Commissioner found that the grounds of unsuitability had been made out. The appellant then applied for judicial review of that decision.
By orders dated January 27, 1994 and May 24, 1994, the Trial Judge dismissed the applications for judicial review. The Trial Judge found that the grounds on which the appellant relied had not been made out. In particular, the Trial Judge found that the administrative manual had been complied with, and that the appellant had suffered no prejudice as a result of the Royal Canadian Mounted Police placing her back on progress reporting before she was served with her notice of shortcomings. The three major grounds for judicial review were: (1) whether the statutory scheme contained in the Royal Canadian Mounted Police Act concerning the process and procedure before the Discharge and Demotion Board deprived the appellant of her right to a fair hearing; (2) whether the statutory scheme contained in the Royal Canadian Mounted Police Act appointing the Discharge and Demotion Board deprived the appellant of her right to a fair hearing before an independent trier of fact pursuant to the rules of natural justice (this issue will hereinafter be referred to as the question of the independence of the Board); and (3) whether the Commissioner considered new facts, opinions or material in breach of the Royal Canadian Mounted Police Act thereby depriving the appellant of a right to a fair hearing pursuant to the rules of natural justice.
These issues are the same issues that comprise the appeal to this Court. On the issue of whether the statutory scheme deprived the appellant of her right to a fair hearing and, in particular, the issue of her right to cross-examine the opposing side's witnesses, the Trial Judge held that while the appellant had not been given an opportunity to cross-examine the opposing side's witness statements, there was nothing in the Act that provided her with this right. Moreover, the appellant did not request an opportunity to examine any witnesses. She had, therefore, effectively waived her right.
As for the independence of the Board, the Trial Judge found that the Board was independent. Members of the Board were not allowed to be superiors of the appellant and could not have participated in instituting or processing the case against her. The names of all Board members were provided to the appellant and the appellant was given a chance to object. In particular, the Trial Judge found that the Royal Canadian Mounted Police Act contained a complete code, and that he should not place additional attributes of independence over and above those provided by Parliament.
Finally, as for any new facts, material or opinions arising from the résumé of Sgt. Swann, the Trial Judge found that it was appropriate for a staff member to prepare guidelines for the Commissioner. Even though part of Sgt. Swann's report was incorporated into the Commissioner's decision, the Commissioner still wrote his own reasons. There had, therefore, been no improper delegation and no breach of the rules of natural justice.
The appellant appeals from the decision of the Trial Judge on the same grounds arguing that the Trial Judge erred in not finding that these grounds had been made out. Having listened extensively to the arguments of both counsel, and having reviewed the vast amount of material put before this Court, as well as the decision of the Trial Judge, it is with some regret that I find that the appeal must be dismissed. While I do not agree with all of the reasons contained in the trial judgment, nonetheless, I have been unable to find any error made by the Trial Judge which would warrant interference by this Court. As I have come to my conclusion based on slightly different reasons than those offered by the Trial Judge, I will set out my reasons for so holding in full. Before beginning my analysis on the three central issues on appeal to this Court, a few cursory remarks concerning the duty of fairness are warranted.
The duty to be fair is a fundamental principle underlying our law. At one time, the degree of fairness an administrative body was held to depended on the characterization of that body as judicial or executive. Today, however, the categorization of bodies according to their function is not a central concern. Indeed, as Jones & de Villars point out, "[t]he Courts must now concentrate squarely on the real question which has always been before them: Was the procedure used in this case fair in all the circumstances?"17 Today, the factors that courts consider in determining the appropriate level of fairness governing an administrative body are: (1) the nature of the decision; (2) the relationship between the body and the individual; and (3) the effect of the decision on the individual in question. The comments of Le Dain J in Cardinal et al. v. Director of Kent Institution18 need also be remembered. He stated: "This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual."
The facts of this case are that the Board made a decision to dismiss the appellant from her job which was upheld by the Commissioner. This type of decision is generally viewed as administrative in nature. However, the relationship between the appellant and the Board is adversarial and the effect of the Board's decision on the appellant is severe: it impacts directly on her ability to earn a livelihood. In order to determine the procedures necessary to ensure natural justice or procedural fairness, it is helpful to keep in mind the following rules articulated by Dickson J. (as he then was) in Kane v. Board of Governors (University of British Columbia):19
1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to a legislative mandate. The Board need not assume the trappings of a court. There is no lis inter partes, no prosecutor and no accused. The Board is free, within reason, to determine its own procedures, which will vary with the nature of the inquiry and the circumstances of the case . . . . Few, if any, of the members of the Board will be legally trained. It would be wrong, therefore, to ask of them, in the discharge of their quasi-judicial duties, the high standard of technical performance which one may properly expect of a court. They are not fettered by the strict evidential and other rules applicable to proceedings before courts of law. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice . . . .
2. . . . In any particular case, the requirements of natural justice will depend on "the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter which is being dealt with, and so forth" . . . . To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.
3. A high standard of justice is required when the right to continue in one's profession or employment is at stake . . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.
4. The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity "for correcting or contradicting any relevant statement prejudicial to their views".
On the first issue raised in appeal"whether the statutory scheme deprives the appellant of her right to a fair hearing"I am in agreement with the Trial Judge's finding that the procedural requirements set out in the Royal Canadian Mounted Police Act do not violate the appellant's right to a fair hearing. A great deal of time was spent by both sides in oral argument on whether there exists a right to cross-examination in this case. I will, therefore, focus my attention on this issue. The right to cross-examine while of principal importance to our judicial system is not an absolute right. Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose upon a board their procedures and technical rules of evidence.20 The Royal Canadian Mounted Police Act does not provide a right to cross-examine witnesses to members who are facing discharge. Interestingly, however, the Royal Canadian Mounted Police Act provides for a right to cross-examination in informal disciplinary actions as well as for boards of inquiry.21 Parliament, therefore, has decided to provide more by way of procedural rights to those who are the subject of a board of inquiry or disciplinary action than to those who are facing dismissal. While the omission may seem questionable given the importance of the right at stake, it is not for this Court to question the wisdom of Parliament. It is sufficient to note that no right to cross-examination is provided in the Act. It follows that this Court will be reluctant to hinder the Board with the formal trappings of a court unless natural justice requires that this be done.
In County of Strathcona No. 20 and Chemcell Ltd. v. Maclab Enterprises Ltd., Provincial Planning Board and City of Edmonton22 the Alberta Court of Appeal found that the fact that the respondent had an opportunity to respond to an expert's report and the fact that the Board had a statutory right to determine its own procedure and rules of practice meant that cross-examination was not necessary. The Court stated:
It does not follow that the refusal of or the placing of limitations upon the right of cross-examination will always require that the court quash an order made in proceedings in which these restrictions are enforced. If he is afforded an equally effective method of answering the case made against him, in other words is given "a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice". . . the requirements of natural justice will be met.23
There are, however, other cases that have held that the right to cross-examination should be granted where an individual's reputation or livelihood is at stake. Two examples are, Willette v. Commissioner of the Royal Canadian Mounted Police24 and Re B and W et al.,25 Yet, in Kuntz v. College of Physicians & Surgeons of B.C.26 the British Columbia Supreme Court found that there was no right to cross-examination even though the petitioner's livelihood in that case was at stake. The Court found that cross-examination was unnecessary as the petitioner could correct or controvert any facts through means other than cross-examination.
The Trial Judge in this case distinguished Willette on various grounds. One of the grounds was that in Willette, there was a request to cross-examine that was denied by the board. With respect, I do not believe that this is a viable distinction. The respondents in the case at bar argued that had the appellant wished to, she could have secured her rights by calling any witness on her own with leave of the Board. This very argument was made in Willette, and the Court of Appeal rejected it, stating:
. . . in the circumstances of this case where the evidence being relied upon by the Board was, in its own words, "conflicting and contradictory in many respects," it erred in failing to do what it clearly had authority to do, that is, calling the makers of the statements before the hearing to testify viva voce and be cross-examined.27
I also disagree with the view that by failing to ask for the right to cross-examine, the appellant waived any right she might have had. To waive a right a party must be clear as to the consequences of his or her act. The waiver itself must be clear. Having said this, however, I am of the opinion that the Trial Judge was correct in stating that the rules of natural justice do not require that the appellant be granted the right to cross-examination in this case. The evidence before the Court was not contradictory and did not attack the appellant's credibility. Further, the Royal Canadian Mounted Police Act provides an extensive array of procedural rights and safeguards to satisfy the requirements of natural justice. As previously stated, courts should be sensitive to the reality that boards cannot be hindered by the same trappings we find in regular courts. Thus, the Trial Judge was correct in finding that the nature and effect of the statutory scheme did not deprive the appellant of her right to a fair hearing.
The second ground of this appeal is whether or not the Board meets the established criteria of independence. The three criteria that a tribunal must meet in order to be found independent are: (1) security of tenure; (2) financial security; and, (3) institutional independence with respect to matters of administration that relate directly to the exercise of the tribunal's function.28 The test to be applied in considering these factors is whether an informed and reasonable person would perceive the tribunal as independent.29 In 2747-3174 Québec Inc. v Quebec (Régie des permis d'alcool),30 the Supreme Court of Canada held that "[t]he purpose of these objective elements is to ensure that the judge can reasonably be perceived as independent and that any apprehension of bias will thus be eliminated. Independence is in short a guarantee of impartiality."
The Royal Canadian Mounted Police Act provides that all Board members must be officers of the Royal Canadian Mounted Police. This ensures a slightly higher degree of independence as officers are managers and therefore have increased security. One of the Board members must also be a graduate of a law school.31 Further, all officers are required to take an oath that they will impartially execute and perform their duties. In Canadian Pacific Ltd. v. Matsqui Indian Band32 Lamer C.J. stated that this is an important factor that is to be considered in deciding independence. Further, no Board member is allowed to be a superior of the individual charged and none of the members may have participated in instituting or processing the case against the individual charged.33 The names of all Board members are also provided to the appellant who, in turn, may make objections to the appointment of any member.
Additional safeguards that ensure the independence of the Board are that the decision of the Board is referred to an External Review Committee. If the Commissioner fails to follow the Committee's ruling, he or she must set out why in his or her reasons.34 Section 48 [as am. idem, ss. 19, 24] of the Royal Canadian Mounted Police Act also provides a further safeguard because it makes it an offence punishable on summary conviction to induce a member to forego his or her duty. While it is true that it is the Commissioner who appoints the officer who appoints the Board, nonetheless, I am in agreement with the Trial Judge's conclusion that there is no requirement that the Discharge and Demotion Board have additional attributes of independence over and above those already provided by Parliament in the Royal Canadian Mounted Police Act. The Board meets the criteria established for independence and I am satisfied that the informed, reasonable person would perceive the Board as independent.
The last issue on appeal is whether the Trial Judge erred in finding that no new facts, opinions or material had been placed before the Commissioner thereby denying the appellant her right to a fair hearing. At trial, the following three comments contained in Sgt. Swann's résumé to the Commissioner were alleged by the appellant to constitute new facts, material or opinions that were not before the Board and which the appellant did not have an opportunity to challenge:
1) Since raters may not interpret scores in the same way, it is important to consider the narrative/assessment in part 7A because it may explain the ratings and furnish their underlying rationale.
2) Further, supervisors may be reluctant to assign unsatisfactory ratings given the requirement for extensive documentation in such cases, the impact such ratings may have on a member's career and the problems with motivation which may result.
3) One psychologist was unaware of the Appellant's history of problems with paperwork, a fact which may have influenced his opinion had it been known during his evaluation of her.
The Trial Judge found that the first two comments were opinions and not facts and that the third comment was commentary or advice given to the Commissioner to assist him in his consideration of the evidence before the Discharge and Demotion Board.
It is important to remember that incorporated in the common law principles of audi alteram partem, and the duty to be fair, is the requirement that a person affected by a tribunal's decision is to be told the case against him or her. The rationale for this principle is that it is only in this way that a party can correct evidence prejudicial to his or her case and bring evidence to prove his or her position.35 A party is also to be given the opportunity to present his or her side.
An excellent example of this principle is found in a decision by this Court in Lazarov v. Secretary of State of Canada.36 In that case, the Minister had refused Mr. Lazarov's application on the basis of confidential information that had been provided to him by the police. Speaking for the Court, Thurlow J.A. [as he then was] found that this conduct breached the rules of natural justice. He stated:
It is not a case of depriving a person of his property and it is true that the applicant can apply again after two years, but the status of citizenship carries with it rights and advantages and to refuse the application of a person to whom it would otherwise be granted on the basis of matters of which he is not apprised and which he is given no opportunity to dispute is shocking to one's sense of justice, even though he may lawfully apply again after a comparatively short time. It suggests that the applicant is not being fairly dealt with and that fairness demands that he at least be afforded an opportunity to state his position on them.
. . .
In my opinion therefore the rule audi alteram partem applies whenever the Minister proposes to exercise his discretion to refuse an application on the basis of facts pertaining to the particular applicant or his application and where he has not already had an opportunity in the course of the proceedings before the Citizenship Court he must be afforded a fair opportunity in one way or another of stating his position with respect to any matters which in the absence of refutation or explanation would lead to the rejection of his application.37
Not every undisclosed comment falls within this principle. As J. A. Smillie states in, "The Problem of `Official Notice': Reliance by Administrative Tribunals on the Personal Knowledge of their Members,"38 there is a distinction between a tribunal's use of facts within its own knowledge to supplement, or as a substitute for evidence properly and openly presented to it, and its use of its accumulated background of special knowledge, understanding and experience to evaluate and assess the evidence properly presented. Smillie claims that the principle of natural justice requires that factual information within the knowledge of a tribunal be disclosed to the parties for comment and rebuttal if it will be relied on in reaching a decision. However, it is open to a tribunal to use (and not disclose) its accumulated background or experience, skill and specialized knowledge in analysing and evaluating the evidence properly presented to it.
Smillie's distinction is subject to criticism in that in certain situations it appears arbitrary. Nonetheless, it is helpful to this case. I agree with the Trial Judge that it is open to the Commissioner to have a member of his or her staff prepare guidelines or summarize evidence to assist the Commissioner in fulfilling his or her duties. However, undisclosed comments made by a staff member that do not fall within that staff member's background or experience should be disclosed. The first two comments made by Sgt. Swann set out above dealing with the issue of extensive documentation and its impact on ratings are comments that fall within Sgt. Swann's specialized knowledge. I am unable, however, to conclude that the third comment concerning the psychologist and what may have influenced his opinion is within Sgt. Swann's expertise. Indeed, it is clearly not. The psychologist provided a different reason for why the appellant was unable to perform adequately at work: her work environment was not supportive. Sgt. Swann asserts that had the psychologist known of the appellant's history of problems with paperwork, his opinion might have been different. Sgt. Swann is not qualified to give this opinion. The only person entitled to state this is the psychologist or another similarly qualified expert. This issue did not arise before the Board. Consequently, the appellant was not given an opportunity to refute the assertion. Because this question was not specifically addressed by the Board, it should not have been considered by the Commissioner.
There is, however, no mention of the psychologist in the Commissioner's decision. The only possible reference is where he states that, "based on the material before me, I detect a sense that Cst. Armstrong is providing excuses or, if one prefers, rationale, for her inability to perform to the level expected of her, based on her responsibilities and in comparison with her peers." In the material provided to this Court, there was enough evidence for the Commissioner to make his finding irrespective of Sgt. Swann's assertion. Further, while Sgt. Swann prepared the résumé, it is the Commissioner who makes the final decision. Sgt. Swann's comments were merely opinions and not conclusive findings. I therefore find that despite the fact that this is information about which Sgt. Swann is not qualified to comment, there has been no breach of the right to a fair hearing.
I do, however, feel that it is important to emphasize that the actions of Sgt. Swann fall exceptionally close to the line in this case. In the future, both Sgt. Swann and those occupying her position should be told to refrain from making such remarks. Even if Sgt. Swann had specialized knowledge, this is the type of comment that should be disclosed before the Board in order to enable the appellant to refute it. It is only because of the unique facts of this case that the principle underlying audi alteram partem has not been breached.
With respect to this last issue, I agree that a tribunal may have its staff prepare summaries of the facts and evidence. I would, however, add the following: In my opinion, only an expert (in this case a psychologist) is able to speculate upon whether or not his or her opinion might have changed had he or she been aware of any additional information. Sgt. Swann may draw to the Commissioner's attention that the psychologist did not have before him certain information but she should not speculate upon whether this would change the psychologist's opinion. Indeed, to allow a lay person to speculate on this matter is, in my opinion, to undermine the foundations of expert testimony.
The rules of evidence require that an expert be qualified as an expert in a certain subject area before being allowed to give testimony pertaining to that subject area. The reason for this rule is obvious. It ensures that only those individuals who are qualified may testify on a certain subject-matter. Lay persons are not experts and, therefore, should not be commenting on what may or may not change an expert's opinion if that expert or another expert is not given a chance to agree or disagree with that lay person's view. Only an expert knows what factors might change his or her opinion. The Commissioner can decide whether or not he wishes to rely on the evidence of the expert but neither he nor Sgt. Swann can postulate that the expert's opinion might have been different unless this was an issue brought before the Board or unless the expert is given an opportunity to comment.
I would dismiss both appeals. As the respondents do not ask for costs, none will be ordered.
1 S. 45.19(1) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16].
2 S. 45.19(2)(a) [as enacted idem].
3 S. 45.19(3) [as enacted idem].
4 S. 45.19(4 [as enacted idem].
5 S. 45.22(2) [as enacted idem].
6 S. 45.22(1) [as enacted idem].
7 S. 45.22(3) [as enacted idem].
8 S. 45.23(5) [as enacted idem].
9 S. 45.23(2) [as enacted idem].
10 Ss. 45.24(2) and (3) [as enacted idem].
11 S. 45.25(1) [as enacted idem].
12 S. 45.25(4) [as enacted idem].
13 S. 45.26(1) [as enacted idem].
14 S. 45.26(5) [as enacted idem].
15 A.B., Vol. III, at p. 363.
16 Toshiba Corp. v. Anti-Dumping Tribunal; Sharp Corp. v. Anti-Dumping Tribunal; Sanyo Corp. v. Anti-Dumping Tribunal (1984), 8 Admin. L.R. 173 (F.C.A.), at p. 175; Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432 (C.A.).
17 Jones, David Phillip and Anne S. de Villars, Principles of Administrative Law, 2nd ed. (Scarborough, Ont.: Carswell, 1994), at p. 207.
18 [1985] 2 S.C.R. 643, at p. 653.
19 [1980] 1 S.C.R. 1105, at pp. 1112-1113.
20 Jones and de Villars, Principles of Administrative Law, 2nd ed. (Scarborough, Ont.: Carswell, 1994), at p. 260.
21 See ss. 24.1(4) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 15] and 45.1(8) [as enacted idem, s. 16]. S. 24.1(4) provides that, "Any person whose conduct or affairs are being investigated by a board of inquiry or who satisfies a board of inquiry that the person has a substantial and direct interest in the matter before the board shall be afforded a full and ample opportunity, in person or by counsel or a representative, to present evidence, to cross-examine witnesses and to make representrations before the board."
Similarly, s. 45.1(8) sets out: "The parties to a hearing shall be afforded a full and ample opportunity, in person or by counsel or a representative, to present evidence, to cross-examine witnesses and to make representations at the hearing."
22 (1971), 20 D.L.R. (3d) 200 (Alta. C.A.).
23 Id., at p. 203.
24 [1985] 1 F.C. 423 (C.A.).
25 (1985), 52 O.R. (2d) 738 (H.C.). See also Jones and de Villars, supra, at p. 265.
26 (1987), 24 Admin. L.R. 187 (B.C.S.C.).
27 Supra, note 24, at p. 433.
28 ;Valente v. The Quenn et al., [1985] 2 S.C.R. 673.
29 ;R. v. Généreux, [1992] 1 S.C.R. 259.
30 [1996] 3 S.C.R. 919, at p. 961.
31 S. 45.2(2) [as enacted idem] provides that "At least one of the officers appointed as a menber of a discharge and demotion board shall be a graduate of a school of law recognized by the law society of any province."
32 [1995] 1 S.ˆ.R. 3.
33 S. 45.2(4) [as enacted idem] states: "An officer is not eligible to be appointed as amember of a discharge and demotion board if the officer (a ) is the immediate superior officer of the member whose case is to be reviewed by the board; or (b) is involved in the initiation or processing of the case that is to be reviewed by the board."
34 S. 45.26(4) sets out that "The Commissioner shall as soon as possible render a decision in writing on an appeal, including reasons for the decision, and serve each of the parties to the review by the discharge and demotion board and, if the case has been referred to the Committee pursant to section 45.25, the Committee Chairman with a copy of the decision."
S. 45.26(5) provides that, "The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under s. 45.25, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting."
35 See Jones and de Villars, at p. 251.
36 [1973] F.C. 927 (C.A.).
37 Id., at pp. 939-940.
38 (1975), Public Law 64.