Wasylynuk v. Canada (Royal Mounted Police)

Wasylynuk v. Canada (Royal Mounted Police)
Court (s) Database
Federal Court Decisions
Date
2020-10-14
Neutral citation
2020 FC 962
File numbers
T-2061-19
Decision Content
Date: 20201014
Docket: T-2061-19
Citation: 2020 FC 962
Toronto, Ontario, October 14, 2020
PRESENT: Mr. Justice A.D. Little
BETWEEN:
CORPORAL PATRICK G. WASYLYNUK
Applicant
and
COMMANDING OFFICER “K” DIVISION ROYAL CANADIAN MOUNTED POLICE AND
ATTORNEY GENERAL OF CANADA
Respondents
ORDER AND REASONS
[1] The applicant is a Corporal with the Royal Canadian Mounted Police. He seeks an order for mandamus and an injunction pending his judicial review application, under ss. 18.2 and 44 of the Federal Courts Act, RSC 1985, c F-7.
[2] The applicant has been on medical leave from his job at the RCMP since June 2003. At that time, he had accumulated over 22 years of service with the Force. He and the RCMP are in a long-running dispute arising from the RCMP’s attempt to discharge him from the Force for medical reasons.
[3] The Commissioner of the RCMP has quashed the applicant’s medical discharge because he was not afforded procedural fairness. The applicant has applied for judicial review of that decision, because the Commissioner did not exercise her discretion to address certain additional issues he raised.
[4] In August 2020, the RCMP sent the applicant a memorandum requiring him to take steps that would enable or force him to return to work, or to assess its ability to accommodate his disabling medical condition. He resists those steps.
[5] On this motion, the applicant relies on a stay provision in s. 26 of the RCMP Regulations 1988, SOR/88-361 (the “RCMP Regulations 1988”), now repealed, to stop that process. He contends that the s. 26 stay requires the RCMP not to make him take any steps that would force (or enable) him to return to work until the final disposition of his application to this Court for judicial review, including any appeals.
[6] The applicant and respondents take very different views of the motion and of the present circumstances as between them. On one hand, the applicant is pursuing justice, as he sees it – an explanation, transparency and accountability for what happened to him many years ago. He wants a complete standstill until all aspects of his grievance against the RCMP have been finally determined on the merits. He also does not want to get into another discharge and grievance process before the first grievance is resolved to his satisfaction.
[7] On the other hand, the respondents say that the RCMP has the right to manage its employees and must be able to take steps to get this officer back on the job. Cpl. Wasylynuk has not worked actively for the RCMP for over 15 years and has received his pay and benefits throughout. As the decision to discharge him on medical grounds has been quashed by the Commissioner of the RCMP and the Force has formally withdrawn the documents that led to his discharge, the respondents assert that there is nothing left to argue about. Cpl. Wasylynuk must start the process of returning to work. Viewed through this lens, the circumstances leading to the applicant’s current motion is a self-made crisis.
[8] The Court’s role on this motion is not to resolve this broader debate. It is to resolve the parties’ current dispute, on the basis of the applicable legal principles and the evidence adduced on this motion.
[9] On that basis, I have concluded that the applicant’s motion must be dismissed.
I. Events Leading to this Motion
[10] The present dispute arises from events in August 2020, but has its roots over 15 years ago. I will sketch the key events.
[11] The applicant has been a member of the RCMP since 1980. He is 66 years old. In June 2003, he was placed on medical leave as a result of developing depression and Post Traumatic Stress Disorder.
[12] In June 2005, Cpl. Wasylynuk was assigned a medical profile “O6-Permanent”. That designation was based in part on information provided to the RCMP by Cpl. Wasylynuk’s psychiatrist. The designation meant that he was permanently precluded from employment with the RCMP in any capacity.
[13] In 2008, the RCMP began the process to medically discharge the applicant. It served Cpl. Wasylynuk with a Notice of Intention to Discharge under the RCMP Regulations 1988.
[14] In 2010, the RCMP served him with a Notice of Discharge under subs. 20(9) of the RCMP Regulations 1988.
The Applicant’s Grievance
[15] Cpl. Wasylynuk filed a grievance dated October 15, 2010. The decision, act or omission he grieved was “[t]he medical discharge process that led to and the Notice of Discharge pursuant to s. 20(9) of the Royal Canadian Mounted Police [Regulations] 1988 served on me on October 6, 2010”. He stated that the prejudice to him was “[t]he medical discharge process failed to follow the statutory requirements and process require that led to the Notice of Discharge … causing me the loss of my employment” with the RCMP.
[16] As corrective action, Cpl. Wasylynuk specified three requests: the “withdrawal or stay of the ‘Medical Discharge’” (i.e. the Notice of Discharge); the “withdrawal of the Notice of Intention to Medical Discharge”; and the “withdrawal of the medical profile of O6-permanent”.
[17] Grievances at the RCMP go through as many as two levels. A Level I Adjudicator issued a decision on January 22, 2019. She allowed Cpl. Wasylynuk’s grievance. She concluded that the Notice of Discharge was invalid and quashed the decision to discharge him on medical grounds. She concluded that Cpl. Wasylynuk’s right to procedural fairness – specifically his right to know the case against him – had been breached. Setting aside the decision to discharge, the Level I Adjudicator remitted the case, with directions, to a different Commanding Officer for the process to start anew. However, because the matter would be considered fresh, she declined to make decisions on other issues, including whether to change Cpl. Wasylynuk’s medical profile designation from O6 to something else.
[18] Cpl. Wasylynuk was not satisfied. He took his grievance to Level II. The Level II decision-maker is the Commissioner of the RCMP.
[19] During the Level II grievance process, the parties exchanged written submissions on the merits, which were provided to a committee (the “External Review Committee” or “ERC”) whose mandate is to make recommendations to the Commissioner concerning the grievance. In written submissions in April 2019, the representative of the respondent in the grievance noted that the grievor requested that the “discharge of October 4, 2010, notice of intention to discharge of June 9, 2008 and the medical profile (O6-Permanent) of November 2005, be withdrawn”.
[20] Through the written submission, the RCMP advised that it was agreeable to voluntarily withdrawing all three documents and that Cpl. Wasylynuk should consider them “formally withdrawn”. Noting that Cpl. Wasylynuk had been off work for some period of time, the submission advised that “it will be necessary to take all reasonable steps to return him to work”, including having a new medical assessment and profile, taking steps to accommodate any medical conditions and possibly facilitating a graduated return to work. The submission took the position that there remained “no appealable issues in this grievance as the Respondent has executed the relief sought by the Grievor” and there were other proceedings in the Alberta Court of Queen’s Bench to address the rest of Cpl. Wasylynuk’s complaints.
[21] The applicant’s position was and is that the RCMP “purported” to make those withdrawals, “unilaterally and without the consent of Wasylynuk”. He maintains that only a grievor can withdraw a grievance. He continued to pursue the grievance to Commissioner, as the Level II decision-maker.
The RCMP’s 2019 Attempts to Return Cpl. Wasylynuk to Work
[22] After it (purportedly) withdrew those three matters, the RCMP sent Cpl. Wasylynuk four communications between April and August 2019. They are dated April 15, 2019, May 7, 2019, May 28, 2019 and August 22, 2019. All concerned his return to work. Cpl. Wasylynuk took the position that the communications were orders and were unlawful. His then-counsel advised that the grievance continued and “any action on the matter” was stayed due to the RCMP Regulations 1988.
[23] The RCMP initially took the position that steps should be taken to facilitate Cpl. Wasylynuk’s eventual return to work while his appeal to the Commissioner was pending. Cpl. Wasylynuk responded to email communications, under protest, given the perceived “threat of a Code of Conduct”, i.e. that the communications were orders that he must obey or face an allegation of a breach of the RCMP Code of Conduct. But he seemed to advise that he would cooperate with the proposed steps.
[24] Weeks passed. After a series of back-and-forth communications with respect to Cpl. Wasylynuk having a medical examination and obtaining security clearance, the RCMP sent him a memorandum dated August 22, 2019, attaching many documents for his attention and completion that related to his return to work. The tone of that memorandum was direct concerning the requirement to complete the return-to-work steps. The contents of that memorandum are substantially the same as the memorandum dated August 13, 2020 that has led to this motion.
[25] It is not clear from the record what happened immediately after the memorandum dated August 22, 2019, but on October 4, 2019, Cpl. Wasylynuk filed a Notice of Application with this Court for judicial review of the four communications. He served a Motion Record seeking an injunction to restrain the RCMP from taking steps towards his return to work.
[26] The RCMP seems to have relented, at least temporarily, in pursuing a resumption of active work by Cpl. Wasylynuk. His written representations on this motion advised that his injunction motion was never filed and neither his then-motion, nor his application, has been heard by the Court. While the application remains extant, the served injunction motion apparently lapsed for failure to file it.
[27] While these communications between the parties were occurring, the ERC did its work and provided a report to the Commissioner prior to her grievance Level II decision.
The Commissioner’s Level II Decision
[28] At the Level II stage, Cpl. Wasylynuk again succeeded. The Commissioner’s Level II decision dated November 17, 2019, allowed his grievance and quashed his medical discharge for a second time. The Commissioner concluded that Cpl. Wasylynuk’s right to procedural fairness had been breached. He was not afforded the opportunity to access documents and records on which the Notice of Intention to Discharge was based, did not receive a copy of a Medical Board Report and was discharged despite the fact that the discharge was not one of the recommendations contained in the Medical Board Report.
[29] The Commissioner concluded, however, that no live controversy remained with respect to certain issues raised by Cpl. Wasylynuk related to how the O6-permanent medical profile came into existence, including alleged privacy breaches. Applying the principles in Borowski v Canada (Attorney General), [1989] 1 SCR 342, the Commissioner decided not to exercise her discretion to address the moot issues.
Application for Judicial Review
[30] Despite his success before the Level II decision-maker, Cpl. Wasylynuk was again not satisfied. He has filed an application for judicial review of the Level II decision in this Court, by Notice of Application which is now amended and dated February 24, 2020. The judicial review application has not yet been heard or decided.
[31] The Amended Notice of Application seeks an order quashing the decision of the Commissioner and remitting it back to her for reconsideration and redetermination “on the specified issues”. The Commissioner, as noted, decided to quash Cpl. Wasylynuk’s discharge, but found other issues moot and exercised her discretion not to making findings about those other “collateral” issues. I use the word “collateral” to describe these issues as the applicant’s counsel did at the hearing of this motion.
[32] In over 18 pages and 75 very detailed paragraphs (some with extended subparagraphs), the Amended Notice of Application contains a chronology of events leading to the application and describes alleged errors made by the Commissioner. It does not expressly define the “specified issues” that the applicant seeks to be redetermined. At paragraphs 66-83, it alleges that the Level II decision maker made numerous errors of law, or law and fact. There are many, many issues raised in the pleading.
[33] As I understand it, however, the focus of the applicant’s position now is that the RCMP arbitrarily and improperly assigned Cpl. Wasylynuk the medical profile of 06-Permanent in November 2005 without proper assessment and in doing so, committed certain wrongful acts. The alleged wrongful acts include improper use of his medical information (which is alleged to be, among other things, a breach of the Privacy Act, RSC 1985, c P-12), a failure to conduct the medical assessment in accordance with an applicable manual, and various procedural fairness issues concerning his right to participate in the medical profile assignment process (i.e., to receive information and make submissions). The applicant’s position is also that the assignment of the medical profile was done in bad faith and was a contrived process, predetermined to end with his discharge from the Force. Collectively, these are the “collateral” issues already mentioned.
[34] The applicant alleges that the Commissioner’s decision failed to find that the assignment of the medical profile was the first step in the medical discharge of the applicant and thus a part of the grievance he launched in 2010. Paragraph 70 of the Amended Notice of Application expounds the details of his allegations about the assignment of the medical profile at length, in subparagraphs (a) to (dd).
[35] While these issues relate to the assignment of the medical profile in November 2005, they were elsewhere entwined in the pleading with events and issues that arose later during the grievance process. The applicant raised new issues as the grievance process evolved, including after the Level I decision (as did the respondent RCMP at that time). The Amended Notice of Application also mentions alleged breaches of human rights legislation and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The applicant further maintains, in his amendments made after the Commissioner’s decision on certain other allegations he made against individuals involved in the return-to-work communications described above, that the Commissioner has exhibited bias or a reasonable apprehension of bias and should have recused herself from the Level II decision.
[36] I observe that for the judicial review of the Level II decision, there are issues for substantive review under the principles set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, and at least one issue related to procedural fairness in the Level II process.
[37] Returning to what I understand is the essence of the applicant’s current position: neither the Level I nor the Level II decision-maker addressed his “collateral” issues related to the assignment of the O6-Permanent medical profile, which became the premise of the Notice of Intention to Discharge and the later Notice of Discharge. The applicant wants those issues addressed on their merits. He therefore seeks judicial review of the Level II decision.
[38] I also reiterate that the Commissioner decided to quash the applicant’s discharge. Her conclusion on the “collateral” issues was that they are moot and that she would not exercise her discretion to determine them anyway.
The So-Called “Long Order” Memorandum dated August 13, 2020
[39] We now arrive at the event that led the applicant to commence the present motion. On August 13, 2020, the RCMP sent Cpl. Wasylynuk a memorandum. It has been described by the applicant in this motion as the “Long Order” – not for its length but because it was authored by Inspector Long, of the RCMP’s “K” Division in Edmonton. He is Cpl. Wasylynuk’s immediate superior officer. The Commanding Officer of “K” Division is a respondent on this motion.
[40] The memorandum dated August 13, 2020 concerned Cpl. Wasylynuk’s return to work. It bore the heading “Accommodation, Medical Profile, Security Clearance and Employment Requirements – FIFTH REQUEST” (original bolding). Its introductory paragraph stated as follows:
The purpose of this memo is to follow up on the previous letter dated April 15, 2019, and our subsequent messages dated May 7, 2019, May 28, 2019 and August 22, 2019 respectively, seeking to facilitate your return to work and address your accommodation needs, medical profile, security clearance and your employment requirements as a member of the RCMP. You have failed to comply with all reasonable deadlines provided to you. Accordingly, this is the last opportunity being provided to you to cooperate with the process so that the RCMP can properly facilitate any needed accommodations and re-establish the employer employee relationship. Failure to provide a meaningful response will result in administrative action which could include a stoppage of your pay and allowances and to your discharge from the RCMP.
[41] The memorandum set out some “Background” (at least from the writer’s perspective) and addressed certain steps for action by August 27, 2020, including completing documents to obtain security clearance required under the Commissioner’s Standing Orders (Employment Requirements), SOR/2014-292, and the completion of documents for a Periodic Health Assessment (“PHA”).
[42] In a section of the memorandum on requirements to fill out security documents, it stated: “You must complete and return the security documents provided to you. Failure to do so will result in a review of your circumstances under the RCMP Employment Requirements policy, which could result in the stoppage of your pay and allowances, and possibly your discharge from the RCMP.” It stated the following with respect to medical requirements: “The medical information provided as part of your PHA and/or IME [Independent Medical Evaluation] is necessary for the purpose of establishing your ability to perform your duties, any need to accommodate, and/or to justify an authorized medical leave of absence. Without this information, you may be considered to be absent without authorization.”
[43] The memorandum also had a section entitled “Failure to Comply” which included the following: “I refer you to the administration manual, which states that a member must cooperate fully during attempts to address any deficiencies or challenges that may impede his/her ability to meet employment requirements”. In addition, it stated:
The RCMP is committed to demonstrating accountability and responsibility in addressing situations where a member no longer possesses the basic requirements for carrying out of a member’s duties, is absent from duty without authorization …
Should you no longer possess a basic requirement of a member or have been determined to be absent from duty without authorization, your pay and allowances may be stopped until you are able to demonstrate your ability to obtain and retain a security clearance, and or demonstrate your medical requirements for authorized sick leave. If you are not able to demonstrate the above, your circumstances will be examined under the RCMP Employment Requirements policy, which could result in your discharge from the RCMP.
[44] Inspector Long signed the memorandum dated August 13, 2020. It precipitated this motion, which was heard on September 10, 2020 by videoconference.
The Present Motion
[45] The applicant’s Notice of Motion requests an order for mandamus and an injunction, specifically:
[an] interim and interlocutory order of mandamus, and injunctive relief on the principle of quia timet, or in the alternative, interim and interlocutory declaratory relief, stopping, enjoining or prohibiting the Royal Canadian Mounted Police (“RCMP”) and the Respondents from:
i. directing, ordering, forcing or compelling the Applicant to attend for a periodic health assessment or a medical profile evaluation or take any steps or complete any documents regarding any such process;
ii. directing, ordering, forcing or compelling the Applicant to take any steps or complete any documents to update the Applicant’s security clearance with the RCMP;
iii. directing, ordering, forcing or compelling the Applicant to take any steps or complete any documents to prove current and continuing qualification for active duty in the RCMP;
iv. terminating or suspending the pay, benefits and allowances of Corporal Patrick Wasylynuk;
v. terminating, discharging or having the Applicant brought up, investigated or sanctioned on any code of conduct violations with the RCMP;
vi. complying with any other demand or request as expressed, directly or indirectly, in the Long Order; and,
vii. in engaging in any other conduct or activity, directly or indirectly, that would serve to undermine, diminish, restrict or breach the s. 26 stay imposed pursuant to RCMP Regulations 1988
pending the outcome of the Amended Notice of Application as filed herein, being an application for judicial review in respect of the November 17, 2019 decision of the Commissioner (received November 22, 2019) (“Decision”) in the Matter of a Grievance Presented at Level II by Corporal Patrick Wasylynuk, Regimental Number 36606, of a decision by the commanding officer, “K” Division, to medically discharge Corporal Patrick Wasylynuk and any lawful appeal of that decision, until there has been effected a final disposition of the grievance process in accordance with law, and compelling the Respondents, and each of them to comply with the statutory stay set out in s. 26 of the RCMP Regulations 1988 …
[46] Thus in paragraphs i, ii, iii and vi above, the applicant requests an Order directed at matters expressly discussed in Inspector Long’s memorandum dated August 13, 2020. (I assume that item vi is misworded and in fact seeks to excuse the applicant from complying with any other matter in Inspector Long’s memorandum.) Items iv and v seek to restrain a possible effect if Cpl. Wasylynuk does not comply with the requirements of the memorandum. Item vi is a catch-all request for a broad enforcement of the stay in the applicable RCMP Regulations 1988.
[47] The “statutory stay” in s. 26 of the RCMP Regulations 1988, mentioned in the Notice of Motion, provides as follows:
26. A decision by an appropriate officer to discharge a member or to recommend the discharge of an officer is stayed until after the expiration of the time limit within which a grievance or appeal may be filed in accordance with the provisions of the Act or these Regulations, or, where a grievance or appeal has been filed, until after the final disposition of the grievance or appeal.
As is apparent, this provision applies to a decision to discharge a member, or recommend a discharge. If a “grievance or appeal” has been filed, the stay lasts until after the “final disposition of the grievance or appeal”.
[48] The scope and effect of the stay in s. 26 is central to the applicant’s position on this motion. Through his request for mandamus and for an injunction, Cpl. Wasylynuk wants the RCMP to abide by that stay, as he submitted that it applies to prevent any action against him, including the steps set out in Inspector Long’s August 13, 2020 memorandum, until the final disposition of the judicial review proceeding he has commenced before this Court (including any appeals).
[49] The position of Cpl. Wasylynuk on this motion also rested on what he seeks from the grievance process. He put the argument as follows:
a critical cornerstone in advancing a grievance presentation is to contest conduct or treatment (in the form of a decision, act or omission) that the grievor asserts is unfair and/or unreasonable, thereby causing the grievor to suffer prejudice. The grievor seeks redress, so as to not only put the grievor back into the position he or she was before the challenged decision, act or omission, but to also address the nature and extent of the improper conduct and processes that the grievor was subjected to – because the conduct of the Respondent has served to essentially destroy the career of Wasylynuk, including by extending the grievance process unnecessarily, and by the Respondents’ very serious and substantive procedural and statutory breaches that have been incumbent throughout, including the medical discharge process.
[Emphasis added.]
[50] The applicant submitted that failure to obey a lawful order (the so-called Long Order) is a disciplinary offence, contrary to paragraph 37(c) of the Royal Canadian Mounted Police Act, RSC 1985, c R-10 (“RCMP Act”), and ss. 3.3 and 4.2 of the Code of Conduct, which is a schedule to the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, ss. 18 and 23(1). He noted that the Long Order states that his “[f]ailure to provide a meaningful response will result in administrative action which could include a stoppage of your pay and allowances and your discharge from the RCMP” [underlining added]. Accordingly, he asserted that it is a “certainty that administrative action will occur”. In his submission, such administrative action could include:
an investigation being initiated under subs. 40(1) of the RCMP Act,
the laying of charges against Cpl. Wasylynuk,
the initiating of a formal hearing under subs. 41(1) of the RCMP Act, and
an appearance before a formally appointed conduct board established pursuant to s. 43 of the RCMP Act to determine if there has been a contravention of the Code of Conduct.
[51] If a contravention is found, Cpl. Wasylynuk submitted that conduct measures may be imposed under subs. 45(4) of the RCMP Act, including dismissal from the Force. He argued that he faces “serious potential jeopardy, including not only stoppage of his pay and allowances, but the stigma, embarrassment and humiliation of having to face and answer to serious Code of Conduct contraventions, including dismissal”.
[52] Cpl. Wasylynuk seeks to prevent all of this from happening, by way of an interlocutory Order of mandamus from this Court, or alternatively an interlocutory injunction. From a process perspective, Cpl. Wasylynuk commenced this motion within his application for judicial review of the Commissioner’s Level II decision. That judicial review does not challenge the “Long Order”, nor did he propose amendments to it to do so. He also did not commence a separate Notice of Application to challenge the “Long Order”.
[53] The evidence before the Court comes from an affidavit sworn by Cpl. Wasylynuk and the documents attached to it. The respondents cross-examined him. They did not file affidavit evidence in response to his on this motion.
II. Preliminary Motion to Amend the Notice of Motion
[54] Shortly after filing his motion record, the applicant moved informally to amend his Notice of Motion and his written submissions on this motion, and provided a short affidavit from Cpl. Wasylynuk to explain the situation.
[55] In brief, the applicant’s counsel discovered while preparing for this motion that certain pages were missing from, or not properly reproduced in, the Certified Tribunal Record (“CTR”). The applicant referred to some pages that were before the External Review Committee but maybe not before the Commissioner. This raised a concern about whether all of the proper documentation was before the Commissioner before she delivered her Level II decision. The alleged absence of pages led to the allegation that the Commissioner may not have considered all of the relevant material that she was required to consider before making her decision which, to the applicant, raised an issue of procedural fairness for the judicial review pending in this Court.
[56] The respondents’ position was that the absence of certain pages was simply a reproduction error; the missing pages were mistakenly not photocopied for the CTR. They produced an affidavit confirming that the allegedly missing pages were in fact before the Commissioner when she made her decision. The respondents also noted the contents of certain “missing” pages were mentioned in the Commissioner’s Level II decision. The respondents observed that the applicant has had the CTR since January 2020 and had not brought a formal Notice of Motion to amend under Rule 75 of the Federal Courts Rules, SOR/98-106. They complained that the motion for mandamus and an injunction was a moving target.
[57] The attempt to amend the applicant’s motion materials was an unfortunate distraction for both parties in the days leading up to this larger motion. On its merits, I may have considered the argument raised by the applicant, if it were necessary to do so. At the hearing of the motion, there was enough uncertainty about some, though not all, of the “missing” pages to make the point not completely unarguable. Given my conclusions on irreparable harm, however, I have not found it necessary to consider the strength of the merits of the applicant’s judicial review application at the first stage of the injunction test.
[58] For clarity, while I grant the applicant’s informal motion to amend his Notice of Motion and written submissions on this motion under Rule 75 of the Federal Courts Rules, my conclusion should not be interpreted as encouraging an argument about the point at the judicial review application. It is natural to expect that the parties will be able to sort out, between them and before the hearing of the judicial review, whether in fact there is any issue as to what was before the Commissioner when she made her Level II decision and what should be in the CTR. The parties will be aware of Rules 317-318 of the Federal Courts Rules. If there is an issue, the applicant will have to decide, outside of the usual fog of an impending injunction motion, whether further amendments to his Amended Notice of Application dated February 24, 2020 are required, or whether he is satisfied that the judicial review application can proceed as is.
[59] I move now to consider the jurisdiction of the court on the main motion, and then the merits of the applicant’s motion seeking an interlocutory order of mandamus and an injunction pending the final disposition of the application for judicial review.
III. Jurisdiction of this Court on this Motion
[60] The applicant referred to two provisions of the Federal Courts Act as the sources of the Court’s authority to grant the relief he requests. Section 18.2 provides that the Court may make interim orders pending an application for judicial review:
18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.
[61] The applicant connected s. 18.2 to subs. 18(1), which provides that the Federal Court has “exclusive original jurisdiction (a) to grant an injunction, … writ of mandamus … against any federal board, commission or other tribunal.” It was not disputed that the RCMP falls within the definition of a “federal board, commission or other tribunal” in subs. 2(1) of the Federal Courts Act.
[62] The applicant’s second source for the Court’s authority to grant mandamus and an injunction was s. 44 of the Federal Courts Act, which provides as follows:
44 In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, a mandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that court in all cases in which it appears to the court to be just or convenient to do so. The order may be made either unconditionally or on any terms and conditions that the court considers just.
[63] The Supreme Court analyzed this provision in Canada (HRC) v Canadian Liberty Net, [1998] 1 SCR 626. Justice Gascon also did so in Letnes v Canada (Attorney General), 2020 FC 636, a case involving an RCMP officer with a “O6-Permanent” medical profile seeking interim relief against the RCMP. Section 44 provides the Court with “free-standing” jurisdiction to grant an injunction, on suitable evidence, when the merits of the underlying proceeding will be heard by another decision-maker who cannot issue injunctions: see Letnes, at para 20.
[64] The applicant also referred to Rule 373 of the Federal Courts Rules, SOR/98-106, which provides that on motion, a judge may grant an interlocutory injunction.
[65] I am satisfied that the Court has jurisdiction to issue an injunction on a motion such as this one, under either s. 18.2 or s. 44 of the Federal Courts Act. The respondents did not submit otherwise. The same framework from RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, applies to applications for interlocutory injunctions under both provisions. As a result of what I have decided below, I do not need to distinguish between the two sources of the Court’s jurisdiction.
IV. The Applicant’s Request for a Mandamus Order
Seeking Mandamus on an Interlocutory Motion
[66] The respondents challenged the applicant’s ability to seek mandamus on this interlocutory motion. They also argued that this motion is premature, as no administrative proceeding has yet begun and to make an order of mandamus (or an injunction) at this time would interfere with that process. It is convenient to deal with the mandamus point now, and address prematurity issues later.
[67] To support their submission, the respondents pointed to subs. 18(3) of the Federal Courts Act, which provides that the remedies provided for in subs. 18(1) may be obtained “only on an application for judicial review made under s. 18.1”. They also rely on Kellapatha v Canada (Immigration, Refugees and Citizenship), 2017 FC 739, at paras 17 and 20, in which Justice Fothergill held that a writ of mandamus is not available as a form of interim injunctive relief because it would constitute an interim declaration of rights. According to the respondents, while the Court has statutory jurisdiction to grant mandamus, it cannot do so on a motion, or as a form of interim injunctive relief.
[68] The applicant’s position was that there is no limitation on the kind of interim order that may be granted under s. 18.2 of the Federal Courts Act. He also referred to subs. 18.4(1), which contemplates that an application to this Court under any of ss. 18.1 to 18.3 be heard and determined without delay and in a summary way. However, the applicant did not refer to any cases to support the proposition that mandamus could be ordered on an interlocutory motion. He maintained that there is no way to enforce s. 26 as an interlocutory stay in a regulation except by interlocutory motion, which must be for a mandamus order.
[69] Like Justice Fothergill in Kellapatha, I am inclined to conclude that mandamus involves a determination of rights and should not be granted on an interlocutory basis. A similar approach is taken to declaratory relief on an interlocutory motion: see Sawridge Band v Canada, 2003 FCT 347, [2003] 4 FC 748 (Hugessen, J.) at para 6, aff’d 2004 FCA 16, [2004] FCR 274. This does not imply that a party who seeks an order requiring a respondent to take some positive action is without a remedy. That party can seek an interim or interlocutory mandatory order: R v Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196 (“CBC”).
[70] In addition, I agree with the respondents that a mandamus application under Rule 18 of the Federal Courts Act is to be commenced by Notice of Application rather than by Notice of Motion. In the present dispute, in response to the RCMP’s first four communications to him in 2019, Cpl. Wasylynuk did file a separate Notice of Application seeking virtually identical relief in relation to the four communications in 2019 as he claims in the present Notice of Motion. He served an interlocutory motion for an injunction to the same end. That procedure was not followed here, perhaps owing to the pressure of the August 27, 2020 diary date for Cpl. Wasylynuk to take action in response to Inspector Long’s memorandum. In addition, neither the event that triggered this motion (the delivery of Inspector Long’s memorandum dated August 13, 2020) nor the broadly-defined conduct that the applicant requests to be restrained in his Notice of Motion is mentioned in the Amended Notice of Application dated February 24, 2020. The applicant has not proposed any additional amendments to this pleading.
[71] Having said that, and while (as the respondents argued) my conclusion on this point of law would be dispositive of the motion for mandamus, I do not rest this decision solely on this point decided in Kellapatha, or on the formalities of which (originating) document should have been filed to get this matter promptly before the Court. It is also not necessary to decide whether, in the right circumstances, an order of mandamus could be ordered on an interlocutory basis in some rare cases involving a public duty whose nature is inherently ‘interlocutory’.
[72] Accordingly, I turn to the merits of the request for mandamus.
The Legal Requirements for a Mandamus Order
[73] The criteria for an order of mandamus are found in the reasons of Robertson JA in Apotex Inc. v Canada (Attorney General), [1994] 1 FC 742 (CA), at para 55, aff’d [1994] 3 SCR 1100. These criteria have been confirmed recently by the Federal Court of Appeal in Hong v Canada (Attorney General), 2019 FCA 241 (Woods, JA), at para 10; Canada (Health) v The Winning Combination Inc., 2017 FCA 101, at para 60 (Rennie, JA); and Lukacs v Canada (Transportation Agency), 2016 FCA 202, at para 29 (AF Scott, JA). They are:
(1) there must be a legal duty to act;
(2) the duty must be owed to the applicant;
(3) there must be a clear right to performance of that duty;
(4) where the duty sought to be enforced is discretionary, certain additional principles apply;
(5) no other adequate remedy is available to the applicant;
(6) the order sought will have some practical value or effect;
(7) the Court finds no equitable bar to the relief sought; and
(8) on a balance of convenience an order of mandamus should (or should not) be issued.
In Robertson JA’s decision in Apotex, criteria 3 and 4 involved several subsidiary considerations that need not be detailed here: see Canadian Horse Defence Coalition v Canada (Food Inspection Agency), 2019 FC 1559, at para 42 (Boswell, J).
[74] The Apotex criteria have also been applied recently and regularly by this Court, including in Iris Technologies v Minister of National Revenue, 2020 FC 532, at para 53 (Heneghan, J), aff’d 2020 FCA 117 (Rennie, JA). See also Express Gold Refining Ltd v Canada (National Revenue), 2020 FC 614, at paras 20 and 79 (Pentney, J); Canadian Horse Defence Coalition, at para 42; and Albatal v Royal Canadian Mounted Police, 2016 FC 371, at para 15 (Gleeson, J).
[75] The focus of the submissions on this motion was whether, and how, the stay in s. 26 of the RCMP Regulations 1988, met the criteria in Apotex and in particular, the first three. To analyze these issues, it is necessary to understand the legal nature of the public duty that the applicant proposed to be enforced by mandamus, and to interpret the scope and effect of the stay in s. 26.
[76] Mandamus is an order that compels the performance of a public legal duty. The duty is typically set out in a statute or regulation. An order of mandamus is the Court’s response to a public decision-maker that fails to carry out a duty, on successful application by an applicant to whom the duty is owed and who is currently entit