Articles of Interest

Update on Files Before the Federal Court

June 2003

There are currently two disciplinary and discharge files in which the RCMP Commissioner's decisions are actively being challenged in Federal Court.

D-68 - Gordon
(Federal Court File T-253-01)

The facts of this case were first summarized in the July/September 2000 Communiqué.

A member disputed an allegation that he had sexually assaulted a member of the public who had visited him at home. The member admitted that he had sexual relations with the individual in question but maintained that the activity was entirely consensual. The Adjudication Board found the allegation to have been established, and ordered the member to resign within fourteen days on pain of dismissal. The member appealed the Board's conclusion and challenged the way it had assessed credibility.

The ERC found that the Board failed to address certain key aspects of the evidence, some of its conclusions did not appear to be supported by the evidence, and comments in its decision suggested that the Board misunderstood some of the witnesses' testimony. The ERC also found that the Board failed to address critical weaknesses in the complainant's evidence, leaving the impression that it had not fully considered the evidence and the parties' arguments before reaching its decision. The ERC determined that the allegation of misconduct was not founded and recommended that the Commissioner allow the member's appeal.

The Commissioner found the allegation of disgraceful conduct to be established. He stated that the member had an obligation to respect the position of trust that existed between himself and the victim, and he failed to do so. The Commissioner indicated that even if the alleged victim consented to the sexual relations as the member alleged, it was a consent induced as a result of his position of trust and authority. The Commissioner maintained the decision of the Adjudication Board and ordered the Appellant to resign.

This decision is the subject of an application for judicial review by the Federal Court and will be heard in Edmonton starting in October 2003. The member brought a motion in FC for judicial review of the Commissioner's decision, asserting that the Adjudication Board's decision "was patently unreasonable ... and ... the findings of fact were speculative, conjectural, made without regard to the totality of the material before it, or were otherwise made in a perverse or capricious manner." The member alleges that the Commissioner erred in disregarding the ERC's recommendations and instead relying on the flawed reasons of the Adjudication Board. The member further alleges that the Commissioner erred in ignoring the principle of parity of sanction, that he did so on the apparent basis of race, and that he failed to comply with principles of fundamental justice.

G-267 - Muldoon
(Federal Court File T-1585-02)

The facts of this case (as well as the doctrine of an employer's duty to accommodate disabled employees) were summarized in the January/March 2002 Communiqué.

Two companion cases (G-266 and G267) involved grievances against medical discharges. In G-266, the member injured herself during a firearms qualification shoot and exacerbated an existing problem. A medical board concluded that the member's disability would, for the foreseeable future, limit her "ability to physically apprehend individuals and to demonstrate the necessary restraint in the use of her firearm under the circumstances." The Force made some efforts to secure the member a new position, but determined that there were no available positions within the Force for which the member was sufficiently qualified and sought to discharge her. In contrast, the member insisted that there were other positions to which she could have been appointed. Meanwhile, in G-267, the member was injured in an accident which left him with nerve damage in the area of his spine, and his condition deteriorated to the point that he had to stop working altogether. The medical board concluded that the Grievor's disability would, for the foreseeable future, render him "unable to physically restrain people ... unable to carry or drag heavy objects or push vehicles ... incapable of intense work for long periods as when on highway patrol or in other police vehicles [and] ... unable to chase persons to the point of apprehension." Accordingly, the Force sought to discharge him. But, the member likewise argued that there were positions for which he should have been considered since there were other disabled members with similar duty restrictions but who continued to occupy regular member positions.

Although the factual situation in these two cases was somewhat different, the ERC recommended that both grievances be allowed because the RCMP had failed in its duty to accommodate the members. The ERC pointed out that the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Committee) v. BCGSEU, [1999] 3 S.C.R. 3 (the "Meiorin" decision) imposed a duty on the Force to accommodate its disabled employees and to demonstrate that it would experience an undue hardship were it to accommodate them. The ERC found that the measures which the Force assumed to assist its disabled members in securing alternate employment within the Force fell well short of the requirements set forth in Meiorin. Further, the Force failed to present evidence to support the proposition that accommodating these members would impose undue hardship.

In G-266, the Commissioner agreed with the ERC that the Force's existing policy did not fully meet the legal requirements relating to the duty to accommodate disabled employees. The Commissioner instructed the Force to review and revise the policy governing medical discharges in order to better comply with the existing state of the law. The Commissioner allowed the grievance and directed the Force to make more extensive efforts to try to secure the member another position within the Force.

However, in G-267, the Commissioner dismissed the grievance. Although the Commissioner reiterated the proposition that the Force's existing policy was deficient, he also stated that the file contained enough information for him to render a decision. The Commissioner expressed the view that neither the Canadian Human Rights Act, nor the principles set out in the Meiorin case obliged an employer to accommodate an employee who was totally incapable of performing work, of whatever kind. The Commissioner stated that the member's medical profile meant that he was medically unsuitable for any duties in the RCMP. Moreover, the Commissioner concluded that continuing to employ the member would represent an "undue hardship" for the Force, as defined in the Meiorin case.

Since the Commissioner allowed the grievance in G-266, but not in G-267, the member brought an application for judicial review. The member is asserting that the Commissioner erred in law in reaching the decision that he did and that he based his decision on "erroneous findings of fact that were made in a perverse or capricious manner and without regard to the material before him". A hearing is scheduled to commence in Calgary in December 2003.