The Federal Court of Appeal considered the trial judge’s decision where it overturned the decision of RCMP Commission which refused to order a new hearing because it concluded the outcome was legally inevitable. The Court of Appeal affirmed the trial judge’s decision. The outcome was not legally inevitable given the breaches of procedural fairness alleged.

McBain v. Canada (Attorney General), [2017] F.C.J. No. 924, 2017 FCA 204, Federal Court of Appeal, October 4, 2017, W.W. Webb, R. Boivin and D.J. Rennie JJ.A.

The respondent, Mr. McBain, was a RCMP constable subject to a disciplinary proceeding due to an allegation of sexual misconduct during professional interactions with a citizen. The allegations were serious. Initially, the RCMP Adjudication Board (the “Board”) found the respondent conducted himself in a disgraceful manner and order his resignation within 14 days, failing which he would be dismissed. At the hearing, the Board relied on inadmissible evidence related to the issue of consent and whether the respondent was forthcoming in his involvement after the alleged incident. The Board refused the joint proposal on sanction, which was a reprimand and forfeiture of pay for 10 days.

The respondent appealed this decision to the RCMP Commission on the basis that the Board hearing was procedurally unfair. The Commission referred the appeal to the RCMP External Review Committee, as it was required to do under the applicable legislation, which concluded the respondent’s procedural rights were breached. The Committee also recommended the respondent’s appeal be allowed and a new hearing ordered. The Commission, while accepting the respondent’s procedural rights had been breached, did not order a new hearing. The primary basis for this conclusion was the Commission’s finding the same outcome would have been reached if a new hearing had been ordered—in other words, the outcome was inevitable.

The respondent was successful on judicial review of the Commission’s decision before the Federal Court. The Court held the Commission’s decision did not cure the breaches of procedural fairness at the initial hearing. It therefore ordered a new hearing to be held in front of a newly constituted Board.

The Crown appealed to the Federal Court of Appeal. The Court of Appeal affirmed the decision of the trial judge and ordered a new hearing. The Appeal Court disagreed with the Commission’s conclusion that the outcome of the case was “legally inevitable” so as to justify not remitting the matter for rehearing given the breaches of procedural fairness. The Court held the result was “far from certain” given that the Board had relied heavily on inadmissible evidence in reaching its decision. Additionally, the Court held the proceeding before the Commission did not cure the procedural fairness breaches. The breaches were significant and the Commission had proceeded on the basis of the same record before the Board. The decision was, therefore, tainted for the same reasons.

In the end, the Federal Court of Appeal held the Commission’s decision to not order a new hearing was a legal error. It upheld the trial judge’s decision and a new hearing in front of a newly constituted Board was ordered.

This case was digested by Adam R. Way, and first posted on Quicklaw and published in the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.