Calandrini v. Canada (Attorney General)

Calandrini v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-01-19
Neutral citation
2018 FC 52
File numbers
T-1197-16, T-891-16
Notes
Digest
Decision Content
Date: 20180119
Docket: T-891-16
T-1197-16
Citation: 2018 FC 52
Ottawa, Ontario, January 19, 2018
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MARCO CALANDRINI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] The Applicant, Marco Calandrini, is a Civilian Member [CM] of the Royal Canadian Mounted Police [RCMP]. In these applications, pursuant to s 18 and s 18.1 of the Federal Courts Act, RSC 1985, c F-7, he seeks judicial review of a decision to initiate a conduct board hearing against him and a decision to extend the prescribed time for making that decision.
[2] Responsibilities for the promotion and maintenance of good conduct within the RCMP are set out in the Code of Conduct of the RCMP [Code of Conduct]: Royal Canadian Mounted Police Regulations, 2014, SOR/2014-28, Schedule (Code of Conduct of the Royal Canadian Mounted Police). Decisions regarding any allegation of a breach of the Code of Conduct against an RCMP Member are made by “conduct authorities” pursuant to the Commissioner’s Standing Orders (Conduct), SOR/2014-291 [CSO – Conduct]. There are three levels of conduct authority with responsibilities which vary according to the severity of the conduct measures they may impose against a subject member: CSO – Conduct, ss 2–5.
[3] Decisions made by a conduct authority may be subject to review by a “review authority”: CSO – Conduct, s 9. If a review authority determines that the conduct measures imposed by a conduct authority are clearly unreasonable or disproportionate, and if it is in the public interest to do so, the review authority may rescind the measures: CSO – Conduct, s 9(3). The review authority may then substitute other conduct measures as deemed to be appropriate or initiate a conduct board hearing into the alleged contravention of the Code of Conduct. The conduct board may impose conduct measures up to and including dismissal or a direction to resign: Royal Canadian Mounted Police Act, RSC 1985, c R-10 [RCMP Act or the Act], s 45(4).
[4] Subsection 41(2) of the Act imposes a prescription period of one year during which the decision to initiate a conduct board hearing may be made. Under s 47.4(1) of the Act, the Commissioner of the RCMP [Commissioner] is authorized to extend that time when justified. That decision-making power may be delegated by the Commissioner to a member as set out in s 5(2) of the Act.
[5] In this matter, there was an investigation into three alleged violations of the Code of Conduct by the Applicant and conduct measures were imposed by a conduct authority. A review authority subsequently determined that the conduct measures were disproportionate to the nature and circumstances of the contraventions and that a conduct board hearing was required.
[6] In Court file T-891-16, the Applicant challenges the decision of the Commissioner’s designate dated May 12, 2016 to grant an extension of time under s 47.4(1) of the Act. In file T-1197-16, the Applicant challenges the decision of the review authority dated May 30, 2016 to initiate a conduct hearing. As the two applications relate to decisions made in a continuous sequence of events they were heard one after the other and one Judgment and Reasons is being issued and will be placed on each file.
II. Background
[7] The Applicant was employed as a CM in the Explosives Training Unit [ETU] which forms part of the Police Sciences School [PSS] of the Canadian Police College [CPC] in Ottawa, Ontario.
[8] Mr. Calandrini was one of the subjects of an investigation into complaints of misconduct at the PSS relating to nudity in the workplace that had been initiated in April 2014. During the investigation, he was suspended with pay until December 17, 2014. This investigation was concluded by an Adjudication Board hearing on December 11, 2014 and the imposition of five days forfeiture of pay for disgraceful conduct on January 16, 2015. Written reasons for that decision were issued on April 13, 2015.
[9] On November 25, 2014, allegations of sexual assault and harassment were brought against Mr. Calandrini by a male co-worker. The allegations were that Mr. Calandrini had on three occasions between August 31, 2012, and October 29, 2013, touched the buttocks, inner thigh area and chest of the other employee while making sexually suggestive remarks. The co-worker objected to the physical contacts when they occurred. He did not report the incidents until he was told that Mr. Calandrini would be returning to the workplace. At that time, the complainant sought help from the RCMP Assistance Program and his union and made a report to the Acting Officer in Charge [A/OIC] of the PSS.
[10] On December 2, 2014, upon being informed of the fresh allegations, the A/OIC directed that a new Code of Conduct investigation be commenced by the RCMP Professional Responsibility Unit [PRU] pursuant to s 40(1) of the Act. The Applicant was temporarily reassigned to another unit pending the outcome of the investigation on December 24, 2014.
[11] In addition to the internal inquiry, the RCMP notified the Ottawa Police Service [OPS]. The OPS conducted an investigation but in February 2015 concluded that they would not proceed with criminal charges. The RCMP investigation then resumed and witness statements were obtained. On or about April 10, 2015, the RCMP investigation was completed and the PRU report was provided to the A/OIC. It was then determined that report should be considered by the Commanding Officer [CO] of the National Headquarters Division, Chief Superintendent [C/Supt] Marty Chesser as the alleged contraventions required a more senior conduct authority. As CO of the Division, C/Supt Chesser could impose a broader range of remedial, corrective or serious measures under the Code of Conduct.
[12] The RCMP was at that time implementing new procedures for the management of discipline inquiries. Under the former procedures, contraventions of the Code of Conduct were referred to adjudication boards. This had resulted in substantial backlogs as the boards dealt with both serious and less serious breaches of the Code. As a result of changes implemented in 2014, contraventions of the Code which could be dealt with at the unit, branch or divisional level were referred to the CO’s at each level for conduct meetings with the subject member. The severity of the conduct measures that could be imposed, if the contravention was established, depended on the level of seniority of the CO.
[13] C/Supt Chesser informed Mr. Calandrini by memorandum in June 2015 that he had been designated by the Commissioner to act as the conduct authority with respect to the allegations. C/Supt Chesser stated in the same memorandum that he considered that if the allegations were established, a financial penalty in the range of 25 to 30 days of pay would be considered.
[14] C/Supt Chesser reviewed the investigation reports and met with the Applicant on September 10, 2015, to provide him with an opportunity to respond to the allegations. The investigation was concluded by October 5, 2015. In his Record of Decision, C/Supt Chesser found that all three allegations against Mr. Calandrini were substantiated. He imposed a reduction of five days’ pay for each contravention for a total reduction of 15 days’ pay as conduct measures under subsection 42(1) of the RCMP Act. Mr. Calandrini did not appeal the findings or imposition of conduct measures. It appears from the record that he did not dispute the factual basis of the allegations when interviewed by the OPS and the PRU.
[15] In the Record of Decision, C/Supt Chesser stated that he had taken the following into consideration in determining the appropriate conduct measures:
Ÿ that Mr. Calandrini accepted responsibility and was cooperative with the Ottawa Police Service;
Ÿ work record (above-average, work ethic);
Ÿ desire to resolve the matter quickly / at the earliest opportunity.
[16] The Applicant fulfilled the conduct measures by forfeiting the total of 15 days’ pay over three consecutive pay periods in December 2015 and January 2016. It is not clear from the record whether the 5 days imposed by the adjudication board on December 11, 2014 for the other misconduct was also deducted at this time. On February 18, 2016 he was suspended again when complaints by members about the RCMP’s handling of the initial investigation came to the attention of the Commissioner and Deputy Commissioner (D/Commr) Peter Henschel, the senior officer responsible for the CPC. As of the date of the hearing of these applications he remained suspended with pay. The matter had come to the attention of the Commissioner in February 2016 through an email from a RCMP Member. A CBC journalist was also asking to see a decision, presumably the written reasons of the adjudication board issued on April 13, 2015.
[17] Assistant Commissioner [A/Commr] Craig MacMillan was at that time the RCMP Professional Responsibility Officer [PRO]. In that role, he had responsibility for three branches of the RCMP concerned with matters relating to conduct, grievances, employment requirements and public complaints.
[18] On January 7, 2016, A/Commr MacMillan met with C/Supt Chesser and Superintendent [Supt] Joanne Robineau, the Employee Management Relations Officer for RCMP Headquarters. The purpose of the meeting was to get feedback on the new conduct management processes roughly a year after they had come into effect on November 28, 2014. This followed the enactment of Bill C-42, An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts, 1st Sess, 41st Parl, 2013, (assented to 19 June 2013) SC 2013, c 18. To that end, A/Commr MacMillan was meeting with all of the Divisional Commanders across the country. The object of these meetings was to collect information for a one-year review presentation about the new procedures scheduled for an RCMP Senior Management Meeting in late February.
[19] In preparation for the January 7, 2016 meeting, A/Commr MacMillan had been given a binder containing a brief summary of Mr. Calandrini’s file, along with 15 – 20 others relating to conduct and harassment matters at National HQ. The binder had been prepared by the Workplace Relations Branch [WRB]. As stated in his affidavit and elaborated upon in cross-examination, A/Commr MacMillan had only a brief opportunity to do a cursory review of the binder before the meeting with C/Supt Chesser. He recalls only a general discussion with C/Supt Chesser regarding the content of the binder and how the processes had been working over the past year.
[20] Supt Robineau states in her affidavit that she recalls C/Supt Chesser discussing the range of sanctions that could be imposed on a CM at the CPC and what he thought was appropriate. She recalls that A/Commr MacMillan stated that the conduct decisions made by C/Supt Chesser were sound, including the present matter at the CPC. A/Commr MacMillan disagrees with that statement and says that based on his review of the summaries, he did have concerns with three cases.
[21] On cross-examination, A/Commr MacMillan acknowledged that he provided C/Supt Chesser with some feedback regarding the process used in the conduct hearings and states that any comments regarding specific conduct decisions, if any, would have been preliminary in nature only and subject to further review.
[22] A/Commr MacMillan was designated by the Commissioner as a review authority for conduct measures imposed under the new regime pursuant to s 9 of the CSO – Conduct. In that capacity he was also a conduct authority in respect of the subject member for any decision that he decided to review. As review authority and on his own initiative, he could review a decision of a conduct authority to determine if a finding is clearly unreasonable or if a conduct measure that has been imposed is clearly disproportionate to the nature and circumstances of the contravention.
[23] If the review authority determines that a finding of the conduct authority is clearly unreasonable, or a conduct measure is clearly disproportionate, and, if it is in the public interest to do so, the review authority may rescind, vary or augment any conduct measure imposed by the conduct authority and initiate a hearing in accordance with subsection 41(1) of the Act: CSO – Conduct, ss 9(3).
[24] On January 8, 2016, the day after the meeting with D/Supt Chesser and Supt Robineau, A/Commr MacMillan requested a review of the measures imposed in three cases, including that of the Applicant, by a conduct advisor to determine if there were any concerns. In his email message, he stated that there was “no rush”. On cross-examination, he said that this was because he was conscious of the heavy burden on the staff in the WRB due to the recent changes. From January 18 to February 17, 2016, A/Commr MacMillan was on bereavement leave. While on leave, he remained in contact with his office.
[25] On February 10, 2016, A/Commr MacMillan became aware that the Commissioner had asked to meet with someone from the Professional Responsibility Sector regarding a conduct file for a CM at the CPC. It appears that this followed the receipt by the Commissioner of an email from an employee at the college. A/Commr MacMillan was advised that the Commissioner had been provided with the information he requested by a colleague. The same day, A/Commr MacMillan sent a follow-up email to the WRB regarding his request dated January 8, 2016, asking that the response be expedited in anticipation of his return to the office the following week.
[26] On February 17, 2016, A/Commr MacMillan attended a brief meeting with the Commissioner, and several others including C/Supt Chesser and D/Commr Henschel. A/Commr MacMillan says that at the outset of the meeting he advised the Commissioner that he had requested an initial review of the Applicant’s file and would subsequently determine whether a review was warranted. A/Commr MacMillan says he further explained that, given the nature of his role in the review process as the review authority, he should refrain from discussing the details of the Applicant’s file. According to A/Commr MacMillan, the meeting lasted no more than five minutes. His recollection of this meeting was supported by handwritten notes made the same day.
[27] A/Commr MacMillan states in his affidavit that at no time did he seek input from the Commissioner regarding the appropriateness of conducting a review under s 9 of the CSO – Conduct of the Applicant’s conduct file and at no time did the Commissioner ever give him directions or instructions with respect to his determination of whether a review was warranted. He acknowledged on cross-examination that the Commissioner “had a view” about the Calandrini case.
[28] Between February 18 and 26, 2016, CBC News published a series of reports regarding improprieties at the CPC which identified the Applicant as one of the perpetrators. The articles contained quotes attributed to the Minister of Public Safety, the Commissioner and D/ Commr Henschel expressing concern about the situation.
[29] On February 19, 2016, A/Commr MacMillan was provided with a report prepared by Sgt David Falls of the National Conduct Management Section (NCMS) and a transit memorandum from C/Supt Mike O’Rielly of the WRB regarding the Applicant’s conduct file. In his report, Sgt Falls identified discrepancies between the expected range of conduct measures set out in the RCMP Conduct Measures Guide with regard to allegations of sexual harassment and the conduct measures imposed on the Applicant. Absent significant mitigating factors to be found in the facts of the case, persistent sexual harassment would justify measures in the aggravated range of 20 days financial penalty to dismissal, he reported. The Record of Decision, Sgt Falls said, did not identify factors that would justify the imposition of mitigated conduct measures.
[30] In forwarding the report to A/Commr MacMillan, C/Supt O’Rielly noted that the public interest had not been explicitly addressed in the conduct measures decision and was a significant factor. In the absence of a proper justification for the imposition of mitigated conduct measures, they could be considered as clearly disproportionate in his view.
[31] There is no limitation period prescribed in the RCMP Act for the purposes of reviewing the decision of a conduct authority or the conduct measures that it imposes. However, section 41(2) of the RCMP Act prescribes that a conduct hearing shall not be initiated against a RCMP member for an alleged contravention of the Code of Conduct after the expiry of one year from the time that the alleged contravention and the identity of the subject member became known to the conduct authority.
[32] The measures that can be imposed where a review authority determines that a finding of a conduct authority is clearly unreasonable, or a conduct measure is clearly disproportionate, without initiating a hearing, are limited to those measures outlined in s 5(1) of the CSO – (Conduct) pursuant to s 9(3)(a) and (b) of the CSO – (Conduct). These include demotions, transfers, suspensions without pay, forfeiture of annual leave and financial penalties but do not include dismissal. For a review authority to seek dismissal, the matter must be referred to a conduct board: RCMP Act, s 45(4).
[33] The parties agree that the date on which the alleged contraventions and the Applicant’s identity became known to the conduct authority was November 25, 2014, being the date on which the A/OIC at the CPC became aware of the complaints rather than the date on which they were brought to C/Supt Chesser’s attention. Thus the limitation period set out in s 41(2) of the RCMP Act expired on November 25, 2015. As noted above, subsection 47.4(1) of the RCMP Act provides that if the Commissioner is satisfied that the circumstances justify an extension, the Commissioner may, on motion by the Commissioner or on application, and after giving due notice to any member affected by the extension, extend the time limited prescribed by s 41(2) of the RCMP Act.
[34] On March 1, 2016, the Applicant was served with a Notice of Application by A/Commr MacMillan for an extension of time to initiate a conduct hearing. Chief Superintendent (C/Supt) Raj Gill was at that time designated as the delegated decision-maker for the Commissioner on applications for extensions under s 47.4(1) of the RCMP Act.
[35] Over the course of the next two months, A/Commr MacMillan and the Applicant, with the assistance of a Staff Relations Representative [SRR], submitted detailed written submissions to C/Supt Gill, regarding the merits of the application for an extension. For his part, A/Commr MacMillan listed fourteen factors that he argued justified the extension. These included, in his view; that there was a clear public interest in ensuring the RCMP deals properly with complaints of harassment in general and sexual harassment in particular; the contraventions amounted to serious misconduct and harassment; a time extension was required in order to preserve the public’s trust; the decision to initiate the application was not influenced by media reports or bias; the time-lapse was not significant or long and would not cause serious prejudice to the subject member’s ability to respond; and there is no express limitation in s 47.4(1) of the RCMP Act that prevents the extension of time after the expiry of the limitation period.
[36] The Applicant, through the SRR, responded with arguments that the application was statute barred; motivated by negative media attention about the allegations of misconduct at the CPC; an extension would cause serious prejudice to his ability to respond to the allegations; there was no reasonable explanation for the delay; the review was an abuse of process and precluded by issue estoppel. The delay, he argued, was wholly attributable to administrative inefficiencies and the review authority’s lack of diligence.
[37] In reply, A/Commr MacMillan noted that there were approximately 741 conduct cases during the period of November 28, 2014, to December 31, 2015, of which about 685 were handled through a conduct meeting. This represented a significant increase from the 287 annual nine year average for discipline cases under the previous process. These numbers were helpful, he submitted, in understanding the context in which the review process operates and why the RCMP Act provided for an extension of time.
[38] In a six-page decision letter issued on May 12, 2016, C/Supt Gill noted that the submissions addressed a number of issues relating to the merits of the review process and that his decision would be confined to the question of whether an extension of the time limitation was justified by the circumstances. He then outlined the history of the proceeding, the applicable legislation, the documentary record, the submissions received and his mandate as delegated decision-maker.
[39] C/Supt Gill cited Grewal v Canada (Minister of Employment and Immigration), [1985] 2 FC 263, [1985] FCJ No 144 (FCA) [Grewal], for the proposition that the authority to grant an extension “must not be exercised arbitrarily or capriciously and the limitation period should only be extended when there are sound reasons for doing so.”
[40] In his analysis, C/Supt Gill found that s 47.4(1) of the RCMP Act clearly demonstrated Parliament’s intent that the Commissioner be authorized to grant an extension of the time limitation in 41(2) of the RMCP Act where the Commissioner is satisfied that the circumstances justify such an extension. In this regard, he continued at paragraph 22:
[…] While Parliament has indicated by placing time prescription periods on the ability of a conduct authority to impose a conduct measure or initiate a conduct hearing, in the interest of ensuring the conduct process move in a timely manner, Parliament has also, by virtue of subsection 47.4 (1), recognized that in some cases the one-year time limitations are not realizable, and in order to ensure the viability of the conduct process, has provided the Commissioner with the extension authority.
[41] C/Supt Gill found that the time extension had been requested with due procedural fairness and that there was an absence of a reasonable apprehension of bias. Both parties had been given a fair chance to be heard, to receive full disclosure of materials, and sufficient time to respond. He was persuaded by the arguments advanced by A/Commr MacMillan and summed up his conclusions in the last two paragraphs:
25. I determine that the delay in proceedings giving rise to the time extension request is not oppressive nor excessive, that there would be no serious prejudice caused to the Respondent by the granting of the time extension, and that the delay has not sufficiently denied the Respondent access to natural justice or his ability to have a fair due process.
CONCLUSION:
26. The burden is on the Applicant to demonstrate that an extension to the limitation period in respect of the Allegations is justified in the circumstances. Given the totality of the circumstances, and for the reasons set out above, I am satisfied that an extension is warranted. Therefore, as previously stated, I grant the extension from November 25, 2015, until June 2, 2016, a period of twenty-one (21) days from the date of this decision.
[42] On May 30, 2016, Assistant Commissioner (A/Commr) MacMillan, rescinded the previous conduct measures that were imposed on October 5, 2015, and directed that a conduct hearing be initiated against the Applicant. The Notice of Decision informed the Applicant that the previous conduct measures of forfeiture of 15 days’ pay was clearly disproportionate to the nature and circumstances of the contraventions and that it is in the public interest to rescind the measures and initiate a conduct hearing pursuant to s 41(1) of the RCMP Act. A Notice of Conduct Hearing issued on June 23, 2016, particularized the contraventions, named the conduct board and established a schedule for the procedures to follow.
III. Preliminary matter
[43] On December 1, 2016, the Court granted a motion, in part, pursuant to Rule 317 and Rule 318 of the Federal Courts Rules, SOR/98-106, for the production of additional documents contained within the Certified Tribunal Record (CTR) that had been withheld by the Respondent.
[44] The motion resulted in the delivery of additional documents to the Applicant. One document remained in dispute. This was a redacted email from Josianne Phenix, to Sgt Falls dated February 10, 2016, regarding information C/Supt Chesser had received from the Conduct Authority Representative (CAR), prior to making his decision about the conduct measures to impose. The Applicant sought the content as he believed that it contained references to precedents as well as the rationale for the conduct authority’s determination that 15 days forfeiture of penalty was an appropriate penalty. The Respondent took the position that the redacted content was not relevant as it was not before the review authority, A/Commr MacMillan, when he made his decision and was, moreover, protected by solicitor client privilege.
[45] In my reasons for decision on the motion, I expressed doubt about the relevance of the email and concluded that the question of privilege would best be determined on the hearing of the judicial review application: Calandrini v Canada (AG), 2016 FC 1331, 274 ACWS (3d) 867. Accordingly, I directed that an unredacted and unedited copy of the email be filed under seal for review by the Court prior to the hearing. This was done and the issue is addressed below.
IV. Relevant Legislation
[46] The following sections of the RCMP Act are relevant:
Notice to designated officer
Avis — officier désigné
41 (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct and the conduct authority is of the opinion that the conduct measures provided for in the rules are insufficient, having regard to the gravity of the contravention and to the surrounding circumstances, the conduct authority shall initiate a hearing into the alleged contravention by notifying the officer designated by the Commissioner for the purpose of this section of the alleged contravention.
41 (1) Lorsqu’il apparaît à l’autorité disciplinaire d’un membre que celui-ci a contrevenu à l’une des dispositions du code de déontologie et que, eu égard à la gravité de la contravention et aux circonstances, les mesures disciplinaires prévues dans les règles ne seraient pas suffisantes, elle convoque une audience pour enquêter sur la contravention qui aurait été commise en signalant celle-ci à l’officier désigné par le commissaire pour l’application du présent article.
Limitation or prescription period
Prescription
(2) A hearing shall not be initiated by a conduct authority in respect of an alleged contravention of a provision of the Code of Conduct by a member after the expiry of one year from the time the contravention and the identity of that member as the one who is alleged to have committed the contravention became known to the conduct authority that investigated the contravention or caused it to be investigated.
(2) L’autorité disciplinaire ne peut convoquer une audience, relativement à une contravention au code de déontologie qui aurait été commise par un membre, plus d’un an après que la contravention et l’identité du membre en cause ont été portées à la connaissance de l’autorité disciplinaire qui tient ou fait tenir l’enquête.
[…]
[…]
Representation
Représentation
47.1 (1) Subject to any rules made under subsection (3) a member or a conduct authority may be represented or assisted by any person in any
47.1 (1) Sous réserve des règles établies conformément au paragraphe (3), toute personne peut représenter ou assister un membre ou une autorité disciplinaire :
(a) presentation of a grievance under Part III;
a) lors de la présentation d’un grief sous le régime de la partie III;
(b) proceeding before a board; or
b) lors des procédures tenues devant une commission;
(c) appeal under subsection 45.11(1) or (3).
c) lors d’un appel interjeté en vertu des paragraphes 45.11(1) ou (3).
Privilege
Secret professionnel
(2) If a member or conduct authority is represented or assisted by another person, communications passing in confidence between them in relation to the grievance, proceeding or appeal are, for the purposes of this Act, privileged as if they were communications passing in professional confidence between the member or the conduct authority and their legal counsel.
(2) Lorsqu’un membre ou une autorité disciplinaire se fait représenter ou assister par une autre personne, les communications confidentielles qu’ils échangent relativement au grief, aux procédures ou à l’appel sont, pour l’application de la présente loi, protégées comme si elles étaient des communications confidentielles échangées entre le membre ou l’autorité disciplinaire et son conseiller juridique.
Rules
Règles
(3) The Commissioner may make rules prescribing
(3) Le commissaire peut établir des règles pour prescrire :
(a) the persons or classes of person who may not represent or assist a member or conduct authority; and
a) quelles sont les personnes ou catégories de personnes qui ne peuvent représenter ou assister un membre ou une autorité disciplinaire;
(b) the circumstances in which a person may not represent or assist a member or conduct authority.
b) quelles sont les circonstances dans lesquelles une personne ne peut représenter ou assister un membre ou une autorité disciplinaire.
[…]
[…]
Extensions of time limitations
Prorogation des délais
47.4 (1) If the Commissioner is satisfied that the circumstances justify an extension, the Commissioner may, on motion by the Commissioner or on application, and after giving due notice to any member affected by the extension, extend the time limited by any of subsections 31(2), 41(2), 42(2) and 44(1), for the doing of any act described in that subsection and specify terms and conditions in connection with the extension.
47.4 (1) Le commissaire, s’il est convaincu que les circonstances le justifient, peut, de sa propre initiative ou sur demande à cet effet, après en avoir dûment avisé les membres intéressés, proroger les délais prévus aux paragraphes 31(2), 41(2), 42(2) et 44(1) pour l’accomplissement d’un acte; il peut également spécifier les conditions applicables à cet égard.
Exception
Exception
(1.1) The notice shall not be given if, in the Commissioner’s opinion, giving it might compromise or hinder any investigation of an offence under an Act of Parliament.
(1.1) Le commissaire n’avise pas les membres intéressés s’il estime que l’avis risque de compromettre la tenue d’une enquête relativement à une infraction à une loi fédérale ou d’y nuire.
Reference to time
Mention du délai
(2) Where a time is extended under this section, any reference in this Act to the time shall be construed as a reference to the time as so extended.
(2) Lorsqu’il y a prorogation d’un délai en vertu du présent article, toute mention du délai dans la présente loi s’interprète comme désignant le délai prorogé.
[47] The following section of the CSO – Conduct is relevant:
Serious conduct measures
Mesures disciplinaires graves
5 (1) A conduct authority referred to in paragraph 2(1)(c) may impose, in addition to any remedial and corrective conduct measures, one or more of the following serious conduct measures against a subject member:
5 (1) L’autorité disciplinaire visée à l’alinéa 2(1)c) peut imposer à un membre visé, en plus des mesures disciplinaires simples et correctives, une ou plusieurs des mesures disciplinaires graves suivantes :
(a) a removal, restriction or modification of duties as specified by the conduct authority for a period of not more than three years;
a) le retrait, la limitation ou la modification de fonctions qu’elle précise, pour une période d’au plus trois ans;
(b) an ineligibility for promotion for a period of not more than three years;
b) l’inadmissibilité à toute promotion pour une période d’au plus trois ans;
(c) a deferment of pay increment for a period of not more than two years;
c) le report de l’augmentation d’échelon de la solde pour une période d’au plus deux ans;
(d) a reduction to the next lower rate of pay for a period of not more than two years;
d) le retour à l’échelon de la solde inférieur précédent pour une période d’au plus deux ans;
(e) a demotion for a period of not more than three years;
e) la rétrogradation pour une période d’au plus trois ans;
(f) a demotion for an indefinite period;
f) la rétrogradation pour une période indéfinie;
(g) a transfer to another work location;
g) la mutation à un autre lieu de travail;
(h) a suspension from duty without pay;
h) la suspension sans solde;
(i) a forfeiture of annual leave for a period of not more than 160 hours;
i) une réduction de la banque de congés annuels d’au plus cent soixante heures;
(j) a financial penalty deducted from the member’s pay.
j) une pénalité financière à déduire de la solde du membre.
[…]
[…]
Conduct boards and persons designated by Commissioner
Imposition de mesures par le comité de déontologie
(3) Conduct boards and persons who are designated as conduct authorities by the Commissioner under subsection 2(3) of the Act may impose any of the measures referred to in subsection 5(1) against a subject member.
(3) La personne désignée par le commissaire à titre d’autorité disciplinaire en vertu du paragraphe 2(3) de la Loi et le comité de déontologie peuvent imposer les mesures mentionnées au paragraphe 5(1).
[…]
[…]
Designation of review authority
Désignation d’une autorité de révision
9 (1) The Commissioner may designate a person to be a review authority in respect of decisions made by conduct authorities and as the conduct authority in respect of the subject member for any decision that the review authority decides to review.
9 (1) Le commissaire peut désigner une personne à titre d’autorité de révision à l’égard des décisions rendues par toute autorité disciplinaire. Lorsqu’elle révise une décision l’autorité de révision est désignée à titre d’autorité disciplinaire du membre visé.
Reason for review
Objet de la révision
(2) A review authority may, on their own initiative, review a decision to determine if a finding is clearly unreasonable or a conduct measure is clearly disproportionate to the nature and circumstances of the contravention.
(2) L’autorité de révision peut, de son propre chef, réviser une décision pour établir si une conclusion est manifestement déraisonnable ou si les mesures disciplinaires sont vraisemblablement disproportionnées avec la nature et les circonstances de la contravention.
Power of review authority
Pouvoir de l’autorité de révision
(3) If the review authority makes the determination that a finding is clearly unreasonable or a conduct measure is clearly disproportionate and if it is in the public interest to do so, the review authority may
(3) Lorsqu’elle établit qu’une conclusion est manifestement déraisonnable ou qu’une mesure disciplinaire est vraisemblablement disproportionnée et qu’il est dans l’intérêt public de le faire, elle peut :
(a) rescind any finding made by the conduct authority that the subject member has not contravened the Code of Conduct, substitute for that finding a finding that the subject member has contravened the Code of Conduct and impose any one or more of the conduct measures referred to in subsection 5(1) that is proportionate to the nature and circumstances of the contravention;
a) annuler la conclusion de l’autorité disciplinaire selon laquelle le membre visé n’a pas contrevenu au code de déontologie, y substituer une conclusion voulant qu’il ait contrevenu au code de déontologie et lui imposer une ou plusieurs des mesures disciplinaires mentionnées au paragraphe 5(1) qui sont proportionnées à la nature et aux circonstances de la contravention;
(b) rescind or amend any conduct measure imposed by the conduct authority, or substitute any one or more of the measures referred to in subsection 5(1) that is proportionate to the nature and circumstances of the contravention; or
b) annuler ou modifier toute mesure disciplinaire imposée par l’autorité disciplinaire, ou y substituer une ou plusieurs des mesures disciplinaires mentionnées au paragraphe 5(1) qui sont proportionnées à la nature et aux circonstances de la contravention;
(c) rescind any conduct measure imposed by the conduct authority and initiate a hearing in accordance with subsection 41(1) of the Act.
c) annuler toute mesure disciplinaire imposée par l’autorité disciplinaire et convoquer une audience conformément au paragraphe 41(1) de la Loi.
[48] The following sections of the Federal Courts Rules are relevant:
Material from tribunal
Matériel en la possession de l’office fédéral
317 (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.
317 (1) Toute partie peut demander la transmission des documents ou des éléments matériels pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande, en signifiant à l’office une requête à cet effet puis en la déposant. La requête précise les documents ou les éléments matériels demandés.
Request in notice of application
Demande inclue dans l’avis de demande
(2) An applicant may include a request under subsection (1) in its notice of application.
(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.
Material to be transmitted
Documents à transmettre
318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
318 (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l’office fédéral transmet :
(a) a certified copy of the requested material to the Registry and to the party making the request; or
a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause ;
(b) where the material cannot be reproduced, the original material to the Registry.
b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
Objection by tribunal
Opposition de l’office fédéral
(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
(2) Si l’office fédéral ou une partie s’opposent à la demande de transmission, ils informent par écrit toutes les parties et l’administrateur des motifs de leur opposition.
V. Issues in Application T-891-16
[49] Having considered the parties’ submissions, the issues for the Court to consider on this application are:
What is the standard of review?
Is this application premature?
Was the decision to grant the extension of time statute-barred?
If not statute-barred, was the decision reasonable?
VI. Analysis
A. What is the standard of review?
[50] The question of whether an extension of time could be granted after the expiry of the limitation period is a question of law to be determined by the applicable legal principles. There is no dispute between the parties that when a tribunal is interpreting its home statute, the governing standard of review is presumptively reasonableness: Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 26, [2011] 1 SCR 160; Alberta (Information