A-118-74
Donald R. McCleery, former Staff Sergeant of the
Royal Canadian Mounted Police (Applicant)
v.
The Queen, the Solicitor General of Canada, the
Honourable Warren Allmand, and the Commis
sioner of the Royal Canadian Mounted Police
(Respondents)
and
D. S. Thorson, Deputy Attorney General of
Canada (Mis -en-cause)
Court of Appeal, Thurlow, Pratte- and Ryan
JJ.—Montreal, June 19, 20; Ottawa, August 2,
1974.
Judicial review—Application of RCMP member to set
aside his discharge by Commissioner—Motion to quash
application for lack of jurisdiction—Motion dismissed—
Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9,
ss. 3, 5, 7(1),(4), 13(1)(a), 21, 38, and Regs. 150, 151, 173
and Standing Order 1200; R.S.C. 1952, c. 241, s. 14; R.S.C.
1927, c. 160, s. 14; R.S.C. 1886, c. 45, s. 11; S.C. 1874, c.
22, s. 16; Interpretation Act, R.S.C. 1970, c. I-23, ss. 22(1),
23(1)—Federal Court Act, s. 28, Federal Court Rule 1402.
By a section 28 application, it was sought to set aside a
decision of the Commissioner of the Royal Canadian Mount
ed Police discharging the applicant as a member of the
force. The respondents and intervener moved to quash the
application on the ground that the decision was not review-
able under section 28, in view of (1) the wording of section
28(1); and (2) the definition of "federal board, commission
or other tribunal" in section 2 of the Federal Court Act.
Held, 1. to except the order from the operation of section
28(1) of the Federal Court Act, it had to be "a decision or
order of an administrative nature not required by law to be
made in a judicial or quasi-judicial basis". It was admittedly
"of an administrative nature". But it was also a decision "to
be made on a judicial or quasi-judicial basis" since the
power to discharge, under section 13(2) of the Royal
Canadian Mounted Police Act, was limited by the terms of
the Regulations authorized by section 21. The Regulations
had effectively prescribed the circumstances under which
the power to discharge members was to be exercised. Stand
ing Order 1200 served to reduce further the power to
discharge to a set of rules, with statutory effect, designed to
assure that the audi alteram principle would be observed. 2.
That the Commissioner in deciding to discharge a member
of the force under section 13(2) of the Act was not acting as
a "federal board, commission or tribunal" within section 2
of the Federal Court Act might have been argued, on the
basis of earlier statutes respecting the force, which provided
that the engagement of a person to serve as a member was
solely with the Commissioner. But the wording of the
present Act makes it clear that the authority of the Commis
sioner is derived, not from the engagement under contract,
but from the statute itself. In dismissing the motion to
quash, an extension of time should be granted, for bringing a
motion under Rule 1402(2) to vary the contents of the case
on the section 28 application, as fixed by Rule 1402(1).
Ridge v. Baldwin [1964] A.C. 40; Cooper v. Wands-
worth Board of Works (1863) 14 C.B.N.S. 180,
considered.
MOTION.
COUNSEL:
Arthur H. Campeau for applicant.
I. G. Whitehall for respondents.
Paul J. Evraire for mis -en-cause.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery and Renault, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered in English by
THURLOW J.: This is a motion for an order
quashing an application under section 28 of the
Federal Court Act to review and set aside a
decision of the Commissioner of the Royal
Canadian Mounted Police to discharge the appli
cant as a member of the force pursuant to
Regulation 173 of the Regulations made under
the provisions of the Royal Canadian Mounted
Police Act' . The ground put forward for the
motion is that the decision is not reviewable
under section 28 and the Court is without juris
diction to entertain it. The Court heard at the
same time, by consent, a similar application to
quash a section 28 proceeding, brought by Gilles
G. Brunet to review an order of the Commis
sioner discharging him from the force and as no
distinction was made between the two cases the
reasons which follow will apply to both.
' R.S.C. 1970, c. R-9.
By subsection 28(1) of the Federal Court Act
the Court has jurisdiction to hear and determine
an application to review and set aside
... a decision or order, other than an order of an adminis
trative nature not required by law to be made on a judicial
or quasi-judicial basis, made by or in the course of proceed
ings before a federal board, commission or other tri
bunal....
The expression "federal board, commission
or other tribunal" is defined in section 2 as
meaning:
... any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by
or under an Act of the Parliament of Canada ...
The definition goes on to exclude certain bodies
but the exceptions are not applicable.
There were two positions put forward from
which the application was attacked, the first
based on the language of subsection 28(1), the
other based on that of the definition of "federal
board, commission or other tribunal" in
section 2.
With respect to that based on subsection
28(1) it was common ground that the order
attacked in the section 28 application was of an
administrative nature but issue was raised as to
whether it was a decision "required by law to be
made on a judicial or quasi-judicial basis".
On this point the following sections of
the Royal Canadian Mounted Police Act are
relevant:
3. There shall continue to be a police force for Canada,
which shall consist of officers and other members and be
known as the Royal Canadian Mounted Police.
5. The Governor in Council may appoint an officer to be
known as the Commissioner of the Royal Canadian Mount
ed Police who, under the direction of the Minister, has the
control and management of the force and all matters con
nected therewith.
Section 6 provides for other officers of the
force and for their appointment by the Gover
nor in Council.
7. (1) The Commissioner shall appoint the members of
the force other than officers, for permanent or temporary
duty.
(4) The Commissioner may appoint any member and any
special constable appointed under section 10 to be a peace
officer.
Tenure of Office of Members
13. (1) Officers of the force hold office during the pleas
ure of the Governor in Council.
(2) Unless appointed for temporary duty, every member
other than an officer shall upon appointment sign articles of
engagement for a term of service not exceeding five years,
but any such member may be dismissed or discharged by the
Commissioner at any time before the expiration of his term
of engagement.
21. (1) The Governor in Council may make regulations
for the organization, training, discipline, efficiency, adminis
tration and good government of the force and generally for
carrying the purposes and provisions of this Act into effect.
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be
known as standing orders, for the organization, training,
discipline, efficiency, administration and good government
of the force.
The Act also includes provisions for the disci
pline of the force, for the procedure for the trial
of service offences and for punishments there-
for. Under section 38 a convicting officer may
recommend dismissal from the force.
Regulations made by the Governor in Council
under subsection 21(1) provide:
DISCHARGE
150. Every member other than an officer may be dis
charged from the Force for any of the following reasons:
(a) expiration of his term of engagement;
(b) purchase;
(c) invaliding;
(d) unsuitability;
(e) decease;
(f) desertion;
(g) dismissal;
(h) order of the Minister due to the exigencies of the
service;
(i) change of status;
(j) age limit;
(k) completion of maximum period of service.
(1) free discharge; or
(m) pension.
151. Every member shall be advised immediately of any
recommendation that is made for his discharge from the
Force.
DISCHARGE FOR UNSUITABILITY
173. The Commissioner may recommend the discharge of
an officer and may discharge a member other than an officer
who has proved to be unsuitable for duties in the Force.
Standing Order 1200 made under subsection
21(2) of the Act provides:
RECOMMENDATIONS FOR DISCHARGE
1200. (1) When a member is informed pursuant to Reg.
151 that his discharge from the Force is being recommend
ed, he shall also be advised that he may appeal to the
Commissioner against the recommendation.
(2) Subject to (3), such an appeal must be made in writing
and within four days after notification of the
recommendation.
(3) When a recommendation is made pursuant to sec. 38
of the R.C.M.P. Act and the convicted member requests a
written transcript of the evidence, the provisions of sec. 41
of the Act shall apply.
The argument by counsel for the respondents
and intervenant in support of his position was
made on two lines. The first was that under
section 13(2) of the Act the power of the Com
missioner to discharge a member of the force is
absolute and exercisable either with or without
cause and it is consequently unnecessary that it
be exercised on a judicial or quasi-judicial basis.
The second was that the appointments of mem
bers of the force are at pleasure and since the
Commissioner is authorized by subsection 7(1)
to appoint them he is empowered by subsection
23(1) 2 of the Interpretation Act to dismiss them
at pleasure. In this connection counsel relied on
the statements of Lord Reid and Lord Hodson
in Ridge v. Baldwin 3 for the proposition that a
power to dismiss at pleasure is exercisable with
out cause and that there is no need for a person
holding such an authority to proceed judicially
or quasi-judicially.
It was not suggested, however, that a provi
sion having the force of a statute could not
serve to impose on such a power the require
ment that it be exercised on a judicial or quasi-
judicial basis.
In the view I take of the matter it is conceiv
able in the light of opinions expressed in Ridge
v. Baldwin that section 13(2), if it could be read
in isolation from the other provisions of the
Royal Canadian Mounted Police Act, would
authorize a dismissal or discharge without
observance of the audi alteram partem princi
ple. This would appear to flow from the fact
that section 13(2) does not specify any ground
necessary for dismissal or discharge. Even so I
should have entertained some doubt that the
member might be dismissed or discharged with
out some opportunity to present his side of the
matter when the ground for his dismissal or
discharge was alleged misconduct on his part. In
such a situation the right to a hearing might well
be implied on the principle of Cooper v. Wands-
worth Board of Works 4 . But I do not think it is
necessary to pause to consider the matter on
that basis for in my view subsection 13(2) must
2 23. (1) Words authorizing the appointment of a public
officer to hold office during pleasure include the power of
(a) terminating his appointment or removing or suspend
ing him,
(b) re-appointing or reinstating him, and
(c) appointing another in his stead or to act in his stead,
in the discretion of the authority in whom the power of
appointment is vested.
3 [1964] A.C. 40 at pp. 65, 66 and 129 respectively.
4 (1863) 14 C.B.N.S. 180.
be read along with the other provisions of the
Act which include section 21.
I also regard it as open to doubt, in view of
the wording of subsection 13(2), that the
appointments of members of the force as such
are held at pleasure by virtue of subsection
22(1) 5 of the Interpretation Act or that such
members may be dismissed or discharged at the
pleasure of the Commissioner under subsection
23(1) of that Act. The latter subsection applies
when there are "Words authorizing the appoint
ment of a public officer ... during pleasure"
and I think it is at least doubtful that that is the
effect of subsection 7(1) of the Royal Canadian
Mounted Police Act when read in the light of the
special provisions respecting the tenure of offi
cers and members to be found in section 13. But
whether members may be dismissed or dis
charged at the pleasure of the Commissioner or
not, nothing in the material before the Court in
this case suggests that the procedure in fact
invoked for the discharge of the applicant was
by way of the exercise of such a power and if
such a power of dismissal or discharge is exer-
cisable it does not seem to me that it can be
called in as an aid to determining that the power
which the Commissioner purported to exercise
was one that could be exercised and a decision
made otherwise than on a judicial or quasi-judi
cial basis. It seems to me moreover that the
exercise of any power that may accrue to the
Commissioner under subsection 23(1) of the
Interpretation Act, like that which arises under
subsection 13(2) of the Royal Canadian Mount
ed Police Act, must be subject to the other
statutory provisions relating to the force dealing
with the termination of the appointments of the
members.
5 22. (1) Every public officer appointed before, on or
after the 1st day of September 1967, by or under the
authority of an enactment or otherwise, shall be deemed to
have been appointed to hold office during pleasure only,
unless it is otherwise expressed in the enactment or in his
commission or appointment.
The Regulations made under section 21 of the
latter Act for "the organization, training, disci
pline, efficiency, administration and good gov
ernment of the force and generally for carrying
the purposes and provisions of this Act into
effect" have statutory effect and they appear to
me to have effectively prescribed the occasions
and circumstances in which the power to dis
charge members is to be exercised. If in doing
so the Regulations have limited the scope of the
reasons which a Commissioner might otherwise
consider adequate to warrant discharge that
appears to me to be something foreseen and
provided for by the terms of section 21, and in
my view the consequence is that the power of
section 13(2) to dismiss or discharge is limited
accordingly. I also think, though it appears to
me to be unnecessary, for the reason already
given, to reach a concluded opinion on the
point, that if there is, as contended, a power to
dismiss or discharge at pleasure under subsec
tion 23(1) of the Interpretation Act it too is
limited in its exercise by the Commissioner to
the situations in which under the Regulations
for the administration and good government of
the force a member may be dismissed or
discharged.
I turn now to the procedure. In Regulation
151 there is a statutory requirement that every
member be advised immediately of any recom
mendation that is made for his discharge from
the force. The object of this is obviously to give
the member concerned an opportunity to make
representations to the Commissioner against the
recommendation that is being made against him
and even if there were nothing more to be found
I should have thought that the effect of the
Regulations was to require that the power of
subsection 13(2) to dismiss or discharge a
member be exercised only upon the member
being afforded a reasonable opportunity to
present his representations. The method by
which that power may be exercised, in my opin
ion, falls well within the scope of what may be
prescribed by Regulations "for carrying the . . .
provisions of this Act into effect" within the
meaning of subsection 21(1) and it appears to
me that the effect of Regulation 151 on the
power would by itself be sufficient to classify it
as one that is required by law to be exercised on
a quasi-judicial basis.
But there is also the provision of Standing
Order 1200 which also has the authority of the
statute and which requires that the member be
informed that he may "appeal" from the recom
mendation and goes on to prescribe both the
time and the manner in which the member's
"appeal" is to be made. To my mind this order
serves to further reduce the procedure for the
exercise of the power to a set of rules which
have statutory effect and which contemplate
and indeed appear to be designed to assure that
the audi alteram patient principle will be
observed.
It follows, in my opinion, that the decision of
the Commissioner to discharge the applicant
was one that was required by law to be made on
a judicial or quasi-judicial basis within the
meaning of subsection 28(1) of the Federal
Court Act and that the contention of the
respondents and the intervenant based on the
wording of that subsection cannot prevail.
The other position put forward was that the
Commissioner when deciding to discharge a
member of the force under subsection 13(2) of
the Royal Canadian Mounted Police Act is not
acting as a "federal board, commission or other
tribunal" as defined in section 2 of the Federal
Court Act. It was said that having regard to the
legislative history of the force the engagement
of a member to serve is a contract between him
and the Commissioner and that in consequence
when the Commissioner discharges a member in
the exercise of his power to do so, which is
incorporated by reference in the form of
engagement which the member signs, he is
simply exercising a right under a contract and
not a power conferred by or under an Act of the
Parliament of Canada within the meaning of
section 2.
It may well have been possible to argue on
the basis of earlier statutes pertaining to the
force that the engagement of a person to serve
as a member was solely with the Commissioner
or the person from time to time holding that
office. For example section 16 of Statutes of
Canada 1874, c. 22 specifically provided that:
The engagement shall be contracted to the Commissioner,
and may be enforced by the Commissioner for the time
being.
Similar wording is also found in R.S.C. 1886, c.
45, s. 11, R.S.C. 1927, c. 160, s. 14 and R.S.C.
1952, c. 241, s. 14. But since the coming into
force on April 1, 1960 of Statutes of Canada
1959, c. 54, by which the provisions cited ear
lier in these reasons were enacted and in which
the wording above mentioned was dropped, it
no longer appears to me to be tenable to suggest
that the engagement of a member is a contract
with the Commissioner. In my opinion under the
present statute the engagement of a member is
an engagement to serve the Crown on the terms
and under the conditions prescribed by the stat
ute and the regulations and standing orders
made under its authority and any authority the
Commissioner has to dismiss or discharge such
a member is derived not from the engagement
but from the statute itself. The contention of
counsel for the respondents and the intervenant
is therefore not sustainable.
In the result I would dismiss the motion to
quash and on the alternative request for an
extension of time to bring a motion under Rule
1402(2) to vary the contents of the case on the
section 28 application as fixed by Rule 1402(1)
I would grant a further ten days from the date
of the order.
The following are the reasons for judgment
delivered in English by
PR&TTE J.: I agree with my brother Thurlow
that, for the reasons he gives, the power of the
Commissioner of the Royal Canadian Mounted
Police to dismiss or discharge a member of the
force is derived from the statute.
I also agree with his opinion that the decision
of the Commissioner to discharge the applicant
was a decision that was required by law to be
made on a judicial or quasi-judicial basis. How
ever, as I do not share all the views that he
expresses on that point, I will state succinctly
my reasons for reaching that conclusion.
In my opinion, a decision is required by law
to be made on a judicial or quasi-judicial basis if
it cannot legally be made without the interested
parties having been first given a reasonable op
portunity to be heard. 6 The Commissioner of
the Royal Canadian Mounted Police is given by
statute the power to dismiss and discharge
members of the force. Regulations and Standing
Orders adopted under section 21 of the Royal
Canadian Mounted Police Act require the Com
missioner not to exercise that power without
first having given to the interested member of
the force an opportunity to be heard. The provi
sions of these Regulations and Standing Orders,
inasmuch as they regulate the manner in which
the Commissioner is to exercise one of his
statutory powers, were, in my view, validly
adopted under section 21 of the Act. Therefore,
the decision made by the Commissioner to dis
charge the applicant could not be made, under
the Regulations, unless the applicant had been
given an opportunity to put forward his conten
tions; it was, for that reason, a decision that was
required by law to be made on a judicial or
quasi-judicial basis.
For these reasons, I would dispose of the
motion in the way suggested by my brother
Thurlow.
The following are the reasons for judgment
delivered in English by
RYAN J.: I agree that the motion to quash
should be dismissed.
The decision of the Commissioner to dis
charge the applicant, though administrative in
nature, was one that was required by law to be
made at least on a quasi-judicial basis within the
meaning of section 28(1) of the Federal Court
Act.
6 See: Blois v. Basford [1972] F.C. 151; Lazarov v. Secre
tary of State of Canada [1973] F.C. 927; Howarth v. Na
tional Parole Board [1973] F.C. 1018.
Section 7(1) of the Royal Canadian Mounted
Police Act vests in the Commissioner power to
appoint the members of the force other than
officers. Section 13(2) of the Act requires that
such member upon appointment shall sign
articles of engagement for a term of service not
exceeding five years. Section 13(2) also author
izes the Commissioner to dismiss or discharge a
member other than an officer before the expira
tion of his term of engagement.
Regulations and Standing Orders have been
made under section 21 of the Act that impose
procedural limitations on the exercise of the
Commissioner's power to dismiss or discharge.
The Regulations relevant to this case, 150, 151
and 173, and the relevant Standing Order,
number 1200, are set out in the judgment of my
brother Thurlow. Regulation 151 imposes a duty
to advise a member of any recommendation that
is made for his discharge. Under Standing Order
1200(1) he must also be advised that "he may
appeal to the Commissioner against the recom
mendation". This Regulation and this Standing
Order impose a duty on the Commissioner to
proceed at least on a quasi-judicial basis.
Whether Regulation 151 would alone be suffi
cient to impose such a duty I need not decide,
because when it is read together with Standing
Order 1200, it is clear that the object is, as my
brother Thurlow says with reference to Regula
tion 151, "to give the member concerned an
opportunity to make representations to the
Commissioner against the recommendation that
is being made against him". Previous decisions
of this Court, cited by my brother Pratte, sup
port the conclusion that this is enough to impose
a duty to act at least quasi-judicially when
making a decision of an administrative nature.
In this case the Commissioner was proceeding
under Regulation 173, and Regulation 151 and
Standing Order 1200 were clearly applicable. It
is not material to the decision of the case that he
may possibly have proceeded in some other
way. It is thus not strictly necessary to deter-
mine whether, independently of section 13(2) of
the Royal Canadian Mounted Police Act, the
Commissioner has a power to dismiss by virtue
of section 23(1) of the Interpretation Act or
whether, if he has, he would be bound by the
Regulations and Standing Orders in exercising
it. Because of section 13 of the Royal Canadian
Mounted Police Act, however, I share my broth
er Thurlow's doubt that the appointments of
members of the force other than officers "are
held at pleasure by virtue of subsection 22(1) of
the Interpretation Act or that such members
may be dismissed or discharged at the pleasure
of the Commissioner under subsection 23(1) of
that Act".
I agree that the Commissioner, in discharging
a member of the force other than an officer, is
exercising a power conferred by statute. For the
reasons given by my brother Thurlow, I would
reject the submission that, in discharging a
member, the Commissioner is simply exercising
a right under a contract.
I would dispose of the request for extension
of time in the manner indicated by my brother
Thurlow.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.