Federal Court

Administrative Law

Presence of jurisdictional issue not exceptional circumstance to permit judicial review

Application by R.C.M.P. member for judicial review of adjudication board’s decision on preliminary motion that applicant was served forthwith with notice of hearing. Complaint was made against applicant and, after investigation, it was decided matter would proceed to formal disciplinary proceedings. There was no dispute proceedings were pursued within one-year limitation period. Board was composed to hear matter in Nov. 2010, but applicant was not served with notice of hearing for another ten and one-half months. Board held two-day hearing in April 2012, at which applicant brought preliminary motion arguing board did not have jurisdiction to hear dispute because of time lapse between commencement of proceedings and service of notice. Section 43(4) of Royal Canadian Mounted Police Act required service be forthwith. Board agreed it would lose jurisdiction if s. 43(4) had not been complied with but found Parliament chose to provide flexible timelines by using word “forthwith” rather than specific timeline. Board found applicant’s disciplinary matters were sensitive and complicated and AOR assigned to his case unexpectedly took medical leave, and that circumstances provided valid reason for delay. Board concluded forthwith meant as soon as reasonably practicable in circumstances and applicant had complied with this requirement. Respondent argued application for judicial review was premature; applicant argued decision was final and he should not have to submit to disciplinary proceedings if board lacked jurisdiction. Application dismissed. Parties could only proceed to judicial review after all remedial recourses in administrative process had been exhausted. Mere presence of jurisdictional issue was not an exceptional circumstance to permit judicial review before process was complete. It was not clear commissioner under appeal scheme in Act could not hear appeal from jurisdictional issue; s. 45.14(3) granted general authorization for commissioner to hear any ground of appeal. For court to rule that commissioner lacked jurisdiction to hear appeal and allow applicant to proceed directly to judicial review would be unjustified interference with commissioner’s expertise and appeal scheme under Act.

Black v. Canada (Attorney General) (Nov. 8, 2012, F.C., Russell J., File No. T-915-12) 223 A.C.W.S. (3d) 238.

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