Su v. Canada (Attorney General)

Su v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-07-04
Neutral citation
2017 FC 645
File numbers
T-1979-16
Decision Content
Date: 20170704
Docket: T-1979-16
Citation: 2017 FC 645
Ottawa, Ontario, July 4, 2017
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
TIELUN SU
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the November 2, 2016 decision of Commissioner Robert W. Paulson (“Commissioner”) of the Royal Canadian Mounted Police (“RCMP”), denying the Applicant’s appeal in respect of an order made pursuant to s 22(2)(a)(ii) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 (“RCMP Act”) stopping his pay and allowances on the basis that he was absent from duty without authorization (the “Appeal Decision”).
Background [2] The Applicant has been a civilian member of the RCMP since October 13, 2009, posted to the “E” Division Protective Technical Services as an Electronic/Electro-Mechanic Technician. The Applicant was diagnosed with liver cancer and, between April 27, 2012 and October 28, 2015, was off-duty and receiving full salary and benefits under the RCMP sick leave policy. The Applicant’s salary and benefits were stopped, effective October 28, 2015, following the issuance of an Order Directing the Stoppage of Pay and Allowances.
[3] There were various communications prior to the stoppage. These included a letter dated April 14, 2015 from Inspector Kevin O’Blenis (“Inspector”), as the Applicant’s Commander, to the Applicant asking that he contact the Inspector to discuss accommodation options as well as other employee support systems available to the Applicant to aid his return to work. The letter also noted that the Applicant had been off duty since April 27, 2012; that his most recent medical certificate submitted on January 29, 2015 indicated a leave recommendation of three months and that his last disclosure of medical information in respect of his medical disability was received on January 30, 2015 but did not present applicable limitations and restrictions. Further, that the Applicant had left the country without obtaining prior permission and the RCMP had since been unable to communicate directly with him. The letter reiterated the RCMP’s commitment to assisting employees such as the Applicant to return to work through accommodation options and asked that the Applicant contact the Inspector within seven days. The Applicant did not respond to the April 14, 2015 letter.
[4] On April 21, 2015, at the request of the Inspector, Staff Sergeant Stephen Whitworth (“Staff Sergeant”) attended at the Applicant’s residence to confirm that the April 14, 2015 letter had been received and understood. By email of April 22, 2015 the Staff Sergeant reported to the Inspector that the Applicant had confirmed receipt of the letter but was reluctant to contact the Inspector until he had seen his family doctor during the week of April 26, 2015 and his specialist, to have an MRI, in mid-May. The Staff Sergeant stated that he had explained to the Applicant that, once the medical information was received, decisions had to be made about the Applicant returning to work or medical retirement.
[5] On May 1, 2015 the Inspector again wrote to the Applicant. The Inspector set out the current status of the situation, including that as the Applicant had not submitted an updated medical certificate, Form 2135 (“Medical Certificate”), he was on unsupported leave and absent from duty without authorization. The letter set out the obligations and requirements of the Applicant, attached the relevant policy for the Applicant’s review and drew his attention to a non-exhaustive list of requirements moving forward being that: the Applicant was required to provide a valid Medical Certificate for all absences exceeding 40 consecutive hours; Medical Certificates must include applicable limitations and restrictions and an anticipated date of return to full or modified duties and any Medical Certificate with an anticipated return to work date of “indeterminate” or similar wording has a maximum validity of 30 days; written approval of the Inspector to travel beyond the boundaries of his duty area or area of primary residence for more than 24 hours, excluding periods of regular time off, must be obtained; the Applicant must actively participate in any prescribed treatment plan and be available for all testing and consultations recommended by his medical practitioner; and, the Applicant must maintain communication with the Inspector and the Applicant’s assigned disability case manager and comply with additional information requirements upon request.
[6] The letter went on to address what was required of the Applicant moving forward and listed directions in that regard. Specifically, that a valid Medical Certificate, including applicable limitations and restrictions and an anticipated date of return to work to full or modified duties be provided to the Inspector by May 8, 2015. That, pursuant to the policy, the HSO would require an Evaluation of Disability Questionnaire (or “Form 4056”) and a Functional Abilities Form and that these forms were to be completed by a medical practitioner and indicate the Applicant’s limitations and restrictions. Those forms would be used to determine what functions and duties the Applicant was able to perform and were essential to getting him back to work. The forms were required to be completed within fourteen days of the Applicant’s meeting with his doctor and to be provided directly to the HSO. Further, that by May 8, 2015 the Applicant was to provide the Inspector with a reliable means of communication with him as the Applicant had indicated that he did not have a phone. The May 1, 2015 letter also noted the serious potential consequences of noncompliance, including that the Applicant’s pay could be stopped and that he could be subject to discharge from the RCMP as he was on unsupported leave, meaning that he was absent from duty without authorization.
[7] On May 12, 2015 the Staff Sergeant and a translator attended at the Applicant’s residence to personally provide him with the Inspector’s letter of May 1, 2015. By email of the same date, the Staff Sergeant reported to the Inspector that he and the translator were satisfied, and the Applicant confirmed, that he understood the content of the documents, being the letter, a Medical Certificate (Form 2135), an Evaluation of Disability Questionnaire (Form 4056) and copies of the applicable policies from the RCMP Administration Manual. The Staff Sergeant reported that the Applicant had stated that he had submitted the Medical Certificate but that his doctor would not complete the Form 4056. Further, that it was explained to the Applicant that he needed to go back to his doctor as it was his responsibility to ensure that he complied with the Inspector’s direction and that noncompliance could result in his pay being stopped. The possibility of pursuing medical retirement was also discussed and the Applicant also provided a contact phone number.
[8] The Applicant responded to the Inspector’s May 1, 2015 letter by email of May 8, 2015. In response to the Inspector’s directions he stated “… my new PG [family doctor] does not like to fill form 4056. And he think it is not his responsibility…[S]o I cannot follow your requirement”. Further, that “I definitely agree to disclose my medical information to HSO at any time if HSO raise the requirement to my doctors! This is the best I can do for form 4056”. The Applicant also asked that the HSO send Form 4056 and Form 3414 (Hazardous Occurrence Report) to his doctors. By way of explanation, I pause here to note that a “HSO” is a Health Services Officer. This is a licensed physician responsible for supervising and coordinating the delivery of professional opinions and recommendations by the Health Services Programs, and overseeing the appropriate application of professional health standards in one or more RCMP divisions. In this matter, Dr. Tania Fitzpatrick (“Dr. Fitzpatrick”) was the Applicant’s assigned Health Services Officer (“HSO”) until late June 2015 at which time Dr. Karen Hossack (“Dr. Hossack”) assumed conduct of overseeing the Applicant’s fitness for duty.
[9] The Applicant also sent an email to the Inspector and Ms. Alice Hsing on July 6, 2015 stating that he had already explained why Form 4056 had not been provided but that “I think I could have an Evaluation after visiting my specialist”. He stated that he had not seen his specialist since his return from Beijing but was urging his family doctor to schedule an appointment. He also took issue with a prior determination that his illness was not work related. By email of July 20, 2015 the Applicant again stated that he had addressed Form 4056 and that he was awaiting replies on questions he had raised about Form 3414 (Hazardous Occurrence Report).
[10] At the request of the Inspector, by memorandum of July 28, 2015, Dr. Hossack provided her opinion as to the current medical status of the Applicant to assist the Inspector in deciding whether to approve, rescind or deny the Applicant’s continuous sick leave. Dr. Hossack stated that having reviewed all pertinent documentation made available to the RCMP and performing required consultations in forming her recommendation, absent any new information, she was unable to recommend the Applicant’s continuous sick leave with respect to a complete absence from work. She recommended the Applicant’s sick leave in terms of reduced hours as part of a Return to Work Agreement. She also stated that she requested disclosure of relevant medical information and had sought further clarification from the Applicant’s care provider and that she was able to meet with the Applicant in person should he wish to discuss his medical condition or limitations and restrictions in support of his return to work.
[11] On July 29, 2015 the Inspector again wrote to the Applicant. The Inspector stated that, under his direction, the Staff Sergeant and a translator had attended at the Applicant’s residence to ensure, and had confirmed, that the Applicant understood the Inspector’s letter of May 1, 2015. The Inspector acknowledged that the Applicant had provided a Medical Certificate (Form 2135) dated June 25, 2015 but stated that it was incomplete as it was silent as to his occupational limitations and restrictions as well as an anticipated date of return to full or modified duties. The Inspector stated that it was unfortunate that the Applicant’s physician refused to assist him in completing Form 4056 (Evaluation of Disability Questionnaire), but that this did not absolve the Applicant of his obligations. Further, that the Inspector had consulted with Dr. Hossack, the Applicant’s HSO, who had advised that based on the medical information available to her, the Applicant’s complete absence from work under sick leave policy was not medically supported and that the Applicant was capable of returning to work in some capacity. The Inspector stated that the HSO had requested additional medical information from the Applicant’s care providers but that it remained his responsibility to provide the required medical information in support of his absence from work. The letter advised the Applicant that, given his continued failure to submit a properly completed Medical Certificate and that he continued to remain absent from duty, the Inspector was rescinding his sick leave. In the result, he was on unsupported leave. The letter gave the Applicant one final opportunity to submit, by August 7, 2015, a properly completed Medical Certificate as well as any other necessary medical information, to be validated by Dr. Hossack. It stated that if he failed to do so then the Inspector would be making a recommendation for the stoppage of the Applicant’s pay and allowances pursuant to s 22(2)(i) of the RCMP Act. This would mean that the Applicant’s pay, as well as his medical and extended health benefits, would stop. The letter urged the Applicant to take the matter seriously and stated that the RCMP remained committed to his return to work, however, if he chose the option of a consensual medical discharge, this also remained open to him.
[12] The Applicant responded by email of August 3, 2015 stating that he was attaching an updated Medical Certificate (Form 2135) and that he was sorry that because of his negligence it was incomplete and that “The complete one will be sent to you later”. As to Form 4056, he had previously addressed this in his prior communications and agreed to disclose his medical information if the RCMP raised the requirements with his specialists and that this was the best he could do. He stated that he had almost lost his life due to the unhealthy working environment at the RCMP and “[T]he facts mentioned in my form 3414 are clear that my illness status is one of the direct results from the actions that I have experienced from work…”. He went on to suggest matters that should be considered as regards to his safe return to work including that the problem of the Form 3414 had to be resolved before details of a return to work could be discussed; he was awaiting an enhanced MRI after which he needed to consult his specialist who could have some more safety suggestions about his return to work; and, that recent blood tests and ultrasound were attached for consideration.
[13] By email of August 20, 2015, Dr. Hossack advised the Inspector that she had no further contact with the Applicant’s caregivers beyond seeing another Medical Certificate (Form 2135) forwarded to her and signed by Dr. Al-Jawadi. She stated that she had previously had conversations with the Applicant’s primary and specialist health care providers and had received further medical information from the Applicant (testing in May and June), however, this did not change the conclusions in her prior memorandum.
[14] On August 25, 2015 the Applicant sent an email to the Inspector, Ms. Hsing and Dr. Hossack attaching a document he had generated entitled “Sick Leave Process Review” to give these “newcomers” a clearer outline of his sick leave. On August 27, 2015 the Applicant sent a further email attaching a Medical Certificate and stated that his family doctor had told him that “it is over his scope for filling the field of “Occupational Restrictions” on my update Medical Certificate. Specialist may provide some advise for that”. He stated he would see his specialist on September 2, 2016 and have an MRI on January 24, 2016.
[15] The Inspector then prepared a “Recommendation for the Stoppage of Pay and Allowances”, dated August 28, 2015 wherein, pursuant to s 22(2)(a)(ii) of the RCMP Act, he recommended that the Applicant’s pay and allowance be stopped (“Recommendation”). The Recommendation set out in detail the background facts and communications. It concluded, as of the date of the Recommendation, that the Applicant had failed to provide a properly completed Evaluation of Disability Questionnaire (Form 4056) as requested on May 1, 2015. That questionnaire particularizes operational restrictions that would sufficiently describe the Applicant’s limitations and restrictions upon which the RCMP would be able to develop a Return to Work Plan, which would include the appropriate accommodation of the Applicant’s disability. Further, that the Applicant had evaded taking responsibility to ensure that the relevant medical information was forwarded to the HSO that would allow her to assess his fitness for duty and identify any limitations and restrictions in support of a Return to Work Plan. The Inspector was satisfied that the Applicant had been given ample opportunities to present sufficient medical information outlining his limitations and restrictions so that the RCMP could accommodate his need in support of his return to work but that the Applicant had ignored the Inspector’s direction to provide the information and requests made by his immediate supervisor and others. The Applicant continued to deliberately disregard what was required of him by RCMP policy and the Inspector’s direction, and, the HSO had opined that his conditions did not preclude him from returning to work in some capacity on a Return to Work Plan.
[16] The Inspector concluded that the Applicant remained absent without authorization notwithstanding steps having been taken to establish the reasons for the absence and anticipated return to duty. Accordingly, the Inspector was of the opinion that the Applicant’s pay and allowances should be stopped, to be restored when the Applicant had engaged the HSO in a return to work plan or the HSO, after a review of new relevant medical information, changed her opinion and supported the sick leave of the Applicant in terms of a complete absence from the workplace.
[17] A Notice of Intention to Stoppage of Pay and Allowances dated September 2, 2015 (“Notice of Intent”) was issued by Ms. Sharon Woodburn, Assistant Commissioner, Human Resources Officer (“HRO”). The Notice of Intent advised that it was the HRO’s intent to stop the Applicant’s pay and allowances for being absent from duty without authorization. The Notice of Intent referenced the Recommendation and attached the material presented to the HRO as a part of the Recommendation which she used to inform her opinion. The HRO listed the four grounds of her opinion being that: during the time the Applicant had been off duty sick since April 27, 2012, he had submitted numerous improperly completed Medical Certificates despite repeated requests for him to comply with policies and the direction of the Inspector; the April 14, 2015, May 1, 2015 and July 29, 2015 letters from the Inspector; the July 28, 2015 Memorandum of Dr. Hossack; and, the July 29, 2015 decision of the Inspector rescinding the Applicant’s sick leave with the result that the Applicant was on unsupported leave. The HRO concluded that during the time the Applicant had been off duty sick since April 27, 2012 he had continued to submit incomplete Medical Certificates and sufficient medical information that would enable the HSO to make a determination on his fitness for duty. Despite repeated requests and written direction from his Commander, the Inspector, the Applicant had continued to ignore his obligations and responsibilities as required under policy. As such, the HRO was of the opinion that the Applicant’s current status was absent from duty without authorization as provided for under s 22(2)(ii) of the RCMP Act. The Applicant was afforded fourteen days to submit a written reply. The HRO stated that she expected that the stoppage of pay and allowances would remain in effect until the Applicant had complied with what was required of a member absent from duty on sick leave as set out in Administration Manual Chapter 19.3 and engage in a Graduated Return to Work as set out in Administration Manual II.36.
[18] The Applicant made submissions dated September 7, 2015. As to the Medical Certificate (Form 2135), a copy of a certificate of August 24, 2015 was attached. The Applicant requested that if Part A had been incorrectly completed by him that he be so advised so that he could correct the form. As to Part B, completed by his doctor, if the RCMP was of the view that it was incorrectly completed then the HSOs, Drs. Fitzpatrick and Hossack, both of which had contacted his physicians many times, should be consulted. As to Form 4056, he had explained the issue many times. He also pointed out that prior to July 29, 2015 no one had advised him that his Medical Certificates were incomplete. As to Dr. Hossack, she was a new HSO and he had received only one email from her, on July 28, 2015, in which she asked him to start work right away and “It is neither risk assessment with my recent medical data and diagnosis, nor my specialists’ recent advice”. The following day he had received a work schedule from Ms. Alice Hsing and had replied by email on the following day reminding her that “the safe and timely manner is RCMP’s policy of RTW”. The Applicant stated, based on the email and letters from Brian Jarvis, the Inspector and Dr. Hossack, he thought they were “new comers to my case”. Accordingly, he felt an obligation to outline his case and his recent medical situation to them and had sent them a document he generated in this regard entitled “Sick Leave Process Review”, a copy of which was included in his submission.
[19] The Applicant also stated that he had not received responses to his email to the Inspector, Dr. Hossack and Ms. Hsing but had then received the Recommendation and Notice of Intent. He concluded that:
“Based on above facts, it is clear that they violate RCMP’s policy of sick-leave and RTW with the power in their hands to arbitrarily bully and harass me. And this is not the first time that HSO violate RCMP’s policy of sick-leave to harass me. Now, you followed Mr. Brian Jarvis, Mr. Kevin O’Blenis and Dr. Karen Hossack with these pseudo-propositions as your grounds to exert more pressure to a serious illness member.
And you sent Mr. Whitworth with your letter to my home without prior notice on 2015-09-03. He knocked on the door loudly and clung to the window looking in. This is the third time of harassment of my daily life in this way from Mr. Whitworth since May of 2015.
Stop these harassments, please.”
[20] The Applicant attached the documentation referenced in his submission.
[21] On September 22, 2015 the HRO requested that Dr. Hossack advise if the results of the Applicant’s MRI could reasonably have an impact on her July 28, 2015 opinion and sick leave recommendation.
[22] On October 6, 2015 Dr. Hossack advised the HRO that the results of the MRI would not alter her current opinion and recommendation, that she was aware of the nature of his condition and remained unable to medically support his complete absence from work. In her opinion, with adequate treatment the Applicant should be able to undergo a gradual return to work in some capacity.
[23] On October 29, 2015, the HRO signed an Order Directing the Stoppage of Pay and Allowances, effective that date (“Order”). The Order stated that after a comprehensive review of the material, which included the Applicant’s written representation dated September 7, 2015, the HRO had decided to order the stoppage of the Applicant’s pay and allowances in accordance with s 22(2) of the RCMP Act. The HRO had determined that he was absent from duty without authorization and was not performing his duties as a civilian member of the RCMP. The HRO stated that the rationale for her decision was outlined in the attached Record of Decision. Further, that the Order would remain in effect until the Applicant remedied any issues that resulted in the Order, or as otherwise directed by the HRO or an adjudicator. The Applicant’s pay and allowances may be reinstated when the HRO was satisfied that the reasons for the stoppage of pay and allowances as outlined under s 22(2)(a)(ii) of the RCMP Act were no longer in effect in that the Applicant was engaged in a return to work plan or, on the advice of the HSO, his sick leave is supported.
[24] On November 8, 2015, the Applicant submitted an appeal of the Order pursuant to s 20(1)(e) of the Commissioner’s Standing Orders (Employment Requirements), SOR/2014-292 (“CSO Employment Requirements”). His file was assigned to Mr. Douglas Dewar, a recourse case manager. Various correspondence followed including clarification of the scope of the Applicant’s appeal. The Applicant was informed that allegations of harassment contained in his appeal were to be made to the Office for the Coordination of Harassment Complaints. On December 16, 2015, the Applicant submitted an updated Statement of Appeal. In this he alleged that the decision to stop pay and allowances was procedurally unfair and unreasonable. He submitted that the facts were clear that his absence for duty was authorized according to RCMP Administrative Manual, Chapter 19.3, Sick Leave and that he had already explained his case in his letter of September 7, 2015 in response to the Notice of Intent. This should have made it clear that he had done nothing to violate “RCMP’s policy and discipline”. He was shocked to receive the decision and alleged that the HRO had disregarded the RCMP’s policy and core values, “repeatedly took those pseudo-propositions in the “RECORD OF DECISION” to falsely accuse an honest, disciplined civilian member and to arbitrarily harass an employee with a serious illness”. He cited the Canadian Human Rights Act and RCMP Administrative Manual, Chapter 19.3, Sick Leave, as applicable to his appeal and sought to be compensated for mental/physical damage and financial loss due to wrong doings.
[25] The Applicant was provided with disclosure and made written submissions in support of his appeal. In his submissions he alleged that the stoppage of pay was linked to the perpetual harassment he had suffered during his employment in the RCMP. He also provided a “Background Note” with his version of events. He repeated that he had responded to the Notice of Intent, that the HRO took pseudo-propositions in the Record of Decision “to intentionally hurt a serious illness civilian member by using the authority in her hand”. He concluded that the Order was a premeditated incident against an honest and disciplined civilian member through violation of RCMP’s Sick Leave, return to work policies and Canadian law and was an incident of intentional injury to a seriously ill employee. He repeated his request for compensation adding that he was also seeking compensation for all financial losses for an honest and disciplined civilian member due to the wrong doings.
[26] By a decision dated November 2, 2016, the Commissioner denied the appeal. This is the judicial review of that decision.
Decision Under Review [27] The Commissioner’s decision is detailed and lengthy. It sets out background information, communications preceding the stoppage of pay and allowances, the procedural history of the matter, references the applicable legislation and policies, and, describes the Applicant’s position in the appeal before the Commissioner. In his analysis the Commissioner addresses each of the Applicant’s three arguments on appeal, being that the Order was reached in a procedurally unfair manner; the Order was clearly unreasonable; and, there was an error in law.
[28] On the first issue, the Commissioner noted that the RCMP National Guidebook – Appeal Procedures explains that on appeal the principles of procedural fairness provide the parties with certain rights, being the right to be heard, the right to a decision from an unbiased adjudicator, the right to a decision from the person who hears the appeal and the right to reasons for the decision. The Commissioner then referenced the procedure to be followed for the stoppage of pay and allowances of a member who is absent from duty without authorization as set out in s 4 of the CSO Employment Requirements. The Commissioner concluded that in this case the facts established that the required policy procedure was followed and the Applicant had not put forth any evidence to show that the HRO was biased or failed to consider his position and his evidence prior to issuing the Order. The Commissioner found that the decision to issue the Order was reached in a fair, open and unbiased manner and that the HRO had followed the proper procedure and provided adequate reasons for her decision. The Order was, therefore, rendered in a procedurally fair manner.
[29] On the second issue, the Commissioner concluded that the Order was reasonable. The Commissioner noted the requirements of s 2.9 of the Administration Manual, Chapter 19.3, Sick Leave which states that a Medical Certificate will be considered complete when it includes applicable limitations and restrictions and an anticipated date of return to full or modified duties. The Commissioner acknowledged that the Applicant had put forth several explanations why his general practitioner was unwilling to properly complete Form 2135 and his position that he has no control over the completeness of the medical information provided by his doctor and that he should not be held accountable if his Medical Certificates are considered to be incomplete. However, the Commissioner afforded little weight to these arguments. This was because even though the Applicant had gone to great lengths to explain his situation and medical condition, all of his evidence was based on his own personal opinion which was irrelevant in the circumstances. The Commissioner stated that if a member is off duty sick, his or her absence from work must be supported by a medical practitioner. As per policy, the practitioner must convey his or her support by completing a Form 2135, Medical Certificate, every 30 days. Those forms are used by the HSO to make a determination on the member’s fitness for duty. The Commissioner stated that while he appreciated that the Applicant had made certain efforts to obtain his general practitioner’s support, the fact that his doctor refused to fill out the requested forms did not absolve the Applicant of the requirements under policy.
[30] The Commissioner also found that the Applicant had failed to provide a complete Evaluation of Disability Questionnaire, Form 4056, as required by s 2.12 of Administration Manual, Chapter 19.3, Sick Leave, which clearly states that the member will ensure that his medical practitioner completes and returns the form at the request of the HSO. Further, that the Applicant disregarded his responsibilities under the policy and his position with respect to the completion of Form 4056 lacked credibility as his explanations for not doing so remained the same as when the HSO initially requested that an Evaluation of Disability Questionnaire be filled out in March 2014. The Commissioner found it questionable that, over a period of almost a year and a half, the Applicant’s physician had not familiarized himself with the Applicant’s medical condition given that he allegedly had been suffering from a serious illness.
[31] The Commissioner noted the HSO’s mandate, her role, communications and the opinion that she rendered prior to the issuance of the Order. He also described the Applicant’s submission that the HSO failed to perform a risk assessment, consult with his care providers and develop a Return to Work agreement prior to recommending that he engage in a gradual return to work. Further, that she was only recently assigned to his case and therefore could not have been properly aware of his medical condition. The Commissioner identified the ten sections of Administration Manual, Chapter 19.3, Sick Leave, and Administration Manual Chapter II.37, which the Applicant alleged the HSO had breached and his position that, as a result, the HSO’s recommendation should not be followed.
[32] The Commissioner found that there was nothing in the evidence to indicate that the HSO did not have sufficient time to familiarize herself with the Applicant’s medical condition or that she did not possess the necessary qualifications to put forth well founded opinions to the Inspector and the HRO. Further, that the HSO acted in accordance with applicable policies. For example, although the Applicant contended that the HSO did not develop a Return to Work agreement prior to recommending that he return to work, this was not a mandatory requirement of s 7.5.7 of the Administration Manual, Chapter 19.3, Sick Leave. As to the Applicant’s references to Form 3414 in his communication with the HSO and her response, the Commissioner found that the Hazardous Occurrence Report, Form 3414, that was filed by the Applicant was not relevant to the appeal. And, as noted by the HSO, the Occupational Health and Safety Branch had advised the Applicant in November 2014 that he had not provided sufficient evidence to prove that his illness was work related.
[33] Further, although the Applicant had gone to great lengths to present his medical history and his personal opinion regarding his limitations and restrictions, he had not provided any compelling evidence to refute the information contained in the HSO’s letters of July 28, 2015 and October 6, 2015. Based on the information in the record, the Applicant had only put forward his personal opinion regarding his capacity to return to work. This was of little value as he was required to provide the opinions of his healthcare providers. As well, the Applicant’s allegation that the HSO’s opinion was not supported by his specialist and that his general practitioner is of the opinion that his illness belongs to the category of serious illnesses was not supported by any evidence, despite the fact that this contradicts the HSO’s opinion which the Applicant knew would be relied upon by the HRO. The Commissioner concluded, based on the information before him, that the HSO followed protocol and the HRO acted reasonably in relying upon the HSO’s opinion.
[34] In the circumstances the HRO fulfilled the requirements of s 4 of the CSO Employment Requirements and acted reasonably in concluding that the Applicant was absent from duty without authorization.
[35] As to the final issue, while the Applicant had alleged that the decision to issue the Order was based on an error of law, he had not identified the error nor provided any evidence in support of that position. The Commissioner found there was no evidence to show that the HRO committed an error of law. The HRO was in possession of all the information contained in the record at the time the Order was issued and there was nothing to suggest that the HRO forgot, ignored or misconceived any of the evidence prior to reaching her decision.
[36] The Commissioner found that the Applicant had not established that the decision to issue the Order contravened the principles of procedural fairness, was clearly unreasonable or was based on an error of law. Accordingly, the appeal was dismissed.
Issue and Standard of Review [37] The Applicant is self-represented and has not explicitly identified the issues on judicial review but submits that the Order was based on an error of law, that the rationale for the Order was clearly unreasonable, and, that the process of the Order contravened the principles of procedural fairness. The Respondent submits that there are two issues, whether the appeal process was fair and whether the Appeal Decision was reasonable.
[38] In my view, the issues are:
(a) Was the Applicant denied procedural fairness?
(b) Was the Appeal Decision reasonable?
[39] The Applicant makes no submission on standard of review. The Respondent submits that it is well established that deference is owed to decisions of RCMP adjudicators and the Commissioner of the RCMP, and that such decisions are accordingly reviewed on the reasonableness standard (Mousseau v Canada (Attorney General), 2012 FC 1285 at para 15 (“Mousseau”); Canada (Attorney General) v Boogaard, 2015 FCA 150 at para 33 (“Boogaard”)). This Court has emphasized that given RCMP adjudicators’ specialized expertise and broad powers, great deference should be given to their decisions, including on matters pertaining to the internal policies of the RCMP (Mousseau at para 15). Further, in Boogaard, the Federal Court of Appeal noted that the Commissioner of the RCMP had a very wide margin in determining an appropriate promotion in light of the legislative framework for doing so and the fact that the Commissioner must draw on his “expertise, experience and knowledge” in determining the needs of the force (at paras 33-46). The Respondent submits that the same reasoning applies to decisions regarding members’ ongoing entitlement to receipt of pay and allowances.
[40] The Respondent also submits that, to the extent that the interpretation of the Commissioner’s Standing Orders or Administration Manual may be in issue, deference is owed. The Standing Orders are regulations, and the Administration Manual is internal RCMP policy. Review on a standard other than reasonableness would not be consistent with the jurisprudence, which emphasizes deference in this regard (Celgene Corp v Canada (Attorney General), 2011 SCC 1 at paras 11-13 and 33-34; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 30-34, 37-39 and 48 (“Alberta Teachers’”); Irvine v Canada (Attorney General), 2012 FC 1370 at paras 26-28, aff’d in 2013 FCA 286 (“Irvine”); Beaulieu v Canada (Attorney General), 2015 FC 57 at para 44, leave to appeal to the Supreme Court of Canada denied in 2016 CarswellNat 3848 (WL) (“Beaulieu”)).
[41] It is clear that issues of procedural fairness are reviewable on the correctness standard (Mission Institute v Khela, 2014 SCC 24 at para 79; Canada v Khosa (Citizenship and Immigration), 2009 SCC 12 at para 43 (“Khosa”); Storozuk v Canada (Attorney General), 2017 FC 4 at para 28 (“Storozuk”)).
[42] And, I agree with the Respondent that the Commissioner’s decision is reviewable on the reasonableness standard. While the parties identify no jurisprudence concerning the standard of review that should be applied to a Commissioner’s decision concerning an appeal of an order made pursuant s 22(2)(a)(ii) of the RCMP Act, this Court has previously held that when reviewing the decision of an RCMP adjudicator or the Commissioner, given specialized expertise and broad powers with regards to the questions before him or her, a great amount of deference is owed, especially when an internal grievance process or internal RCMP policies are involved (Mousseau at para 15; Boogaard at paras 32-33; also see Storozuk at paras 24-27; Schamborzki v Canada (Attorney General), 2015 FC 1262 at para 30; and Camara v Canada, 2015 FCA 43 at paras 6 and 19). I also agree with the Respondent that the interpretation of the Commissioner’s Standing Orders or the Administration Manual are to be reviewed on the reasonableness standard as this concerns the interpretation by the RCMP of its own internal policies in which it has relative expertise (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51 (“Dunsmuir”); Alberta Teachers’ at paras 30, 39 and 48; Beaulieu at paras 41-44; Irvine at para 27).
[43] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at paragraph 47: Khosa at para 59).
[44] The applicable legislation and RCMP policies are included in Appendix A of these reasons.
Issue 1: Was the Applicant denied procedural fairness? Applicant’s Position [45] This matter was set down to be heard in Vancouver on June 21, 2017 for two hours and, on the following day, June 22, 2017, for a further two hours. At the end of two hours on June 21, 2017 the Applicant stated, through a translator, that he was unwell and unable to proceed any longer on that day, and that he was only about one third of the way through his submissions. Later that day the Applicant advised the Registry that he was not well enough to proceed on the following day and sought an adjournment. An adjournment was granted to June 23, 2017. The Applicant then provided a certificate from his family doctor stating that he suffers from cirrhosis of the liver and was unable to appear on June 22 or 23, 2017. The matter was adjourned by my direction, dated June 22, 2017, in which the parties were also given the option of proceeding on the basis of their written submissions and without the need for further appearances. On June 23, 2017, the Applicant elected to proceed in that manner and the Respondent agreed. Accordingly, this matter has