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A-199-73
Gerald Alfred Kedward (Appellant) v.
The Queen and W. L. Higgitt, Commissioner of the Royal Canadian Mounted Police (Respond- ents)
Court of Appeal, Thurlow and Urie JJ. and Smith D.J.—Vancouver, June 5, 1975.
Civil Rights—Crown—Public service—Royal Canadian Mounted Police—Dismissal of constable for refusing trans- fer—Claim for wrongful dismissal—Whether right to a hear ing before dismissal—Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e)—Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, s. 13(2) and Regulations ss. 150, 151 and 173 and Commissioner's Standing Order 1200.
An RCMP officer was dismissed from the force by the Commissioner pursuant to the RCMP Regulations for refusing to accept a transfer. His action for wrongful dismissal was dismissed and he appealed.
Held, dismissing the appeal, appellant was lawfully dis charged. The procedure under the regulations and standing orders is sufficient to satisfy the requirements of natural jus tice. Even assuming his refusal amounted to a service offence, there is no requirement of prosecution; it is not a necessary preliminary to discharge.
McCleery v. The Queen [1974] 2 F.C. 339, applied. APPEAL.
COUNSEL:
D. L. Collins for appellant.
N. D. Mullins, Q. C., for respondents.
SOLICITORS:
Dadson and Collins, North Vancouver, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment of the Court delivered orally in English by
THURLOW J.: We do not need to hear you Mr. Mullins. We think Mr. Collins has said all that could be said on behalf of the appellant but we have not been persuaded that there is any ground
on which the judgment of the learned Trial Judge' could be reversed.
The appellant was discharged from the Royal Canadian Mounted Police under the authority conferred on the Commissioner by subsection 13(2) of the Royal Canadian Mounted Police Act. That authority was exercised on one of the grounds for its exercise prescribed by Regulations 150 and 173. It was exercised after the procedure therefor contemplated by Regulation 151 and Commissioner's Standing Order 1200 had been carried out. In the course of that procedure the appellant was advised of the recommendation being made for his discharge and of the reason therefor. He was also advised of, and subsequently exercised, his right to appeal the recommendation. There is no basis for thinking, on the material in the record, that his representations were not con sidered by the Commissioner in reaching his deci sion. The striking fact which emerges from the appellant's representations is that nowhere in them did he offer to withdraw his refusal to take up the proposed posting. That in our view was, in itself, evidence to justify the Commissioner's decision to discharge the appellant as unsuitable and may well have made it inevitable.
It was submitted in argument that the appellant had not been given a hearing and an opportunity to present his case but in our opinion he was not entitled either to a formal trial or to an oral hearing on the question of his suitability. We do not adopt the view of the learned Trial Judge that the power of discharge under subsection 13(2) of the Act was not required to be excercised on a judicial or a quasi-judicial basis, vide McCleery v. The Queen [1974] 2 F.C. 339, but the procedure prescribed by the regulations and standing orders, which gave the appellant the right to make representations by way of appeal from the recom mendation, is, in our view, sufficient, in a matter of this nature, to satisfy the requirements of natu ral justice.
i
It was also submitted that the appellant was entitled to be charged and tried under the discipli nary provisions of the Act for his refusal to accept the transfer, in which case he would have had an
[1973] F.C. 1142.
oral hearing and, on conviction, a right of appeal to a board of officers, and that only after that procedure could a reccimmendation for his dis charge be lawfully made.
Assuming that the appellant's refusal amounted to a service offence for which he might have been disciplined we do not think he had any right to require that he be prosecuted or that a prosecution is a necessary preliminary to a recommendation for discharge. Nor do we think that upon the conclusion of such a prosecution, if there had been one, the appellant would have been rendered immune from discharge on the ground of his unsuitability. There is, in our view, no merit in the appellant's contention.
In our opinion the appellant was lawfully dis charged and his action in respect of it was properly dismissed. For the same reason his appeal also fails and must be dismissed.
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