Articles of Interest

Preparing for the New Grievance Process

by Virginia Adamson and Thomas Druyan, Counsel
March 2003

On March 22, 23 and 24, at the invitation of the Force, we participated in the RCMP Grievance Process Improvement Project Training, held at the Training Academy, "Depot" Division, Regina, Saskatchewan. We benefited greatly from attending and spoke with participants from across Canada who work in areas that relate to RCMP grievance administration, adjudication, analysis, policy and alternate dispute resolution. As well, the training provided us with the opportunity to speak to the group about the role of the ERC in the grievance process. Our presentation is available on the ERC's website at
http://www.erc-cee.gc.ca/publications/articles/a-014a/presentation-eng.aspx.

In it, we discussed the ERC's legislative mandate and the questions of standing, time limitations, disclosure, and more recent ERC recommendations that illustrate aspects of the review process. As well, several of the substantive areas covered in the presentation have been referred to in earlier editions of the ERC Communiqué, such as:

Standing: Subsection 31(1) of the RCMP Act: The Standing Requirement, by Lisa Thiele, Communiqué Feb/Apr, 1999;

Time limits: Subsection 31(2) of the RCMP Act: Time Limits, by Caroline Maynard, Communiqué Jan/Mar 2000;

Disclosure: Disclosure of Information under Subsection 31(4) of the RCMP Act, by Suzan Appleby, Communiqué Apr/Jun 2000

Medical Discharge and the impact of Meiorin : Medical Discharge and the duty to accommodate in the RCMP, Communiqué Jan/Mar 2002.

In this article, we will briefly review other specific issues raised during the Regina presentation with regard to the role of the ERC, the interpretive challenges associated with s.36(a) of the RCMP Regulations, the importance of reasons in the adjudication process, and the effect of ERC recommendations. The comments below will focus on the grievance process only and not to other areas such as discipline and discharge.

Grievance Review and Role of the ERC

If a member is dissatisfied with the decision made by a Level I Adjudicator, and wishes to appeal, then the member files a Level II Grievance. The RCMP may not appeal a decision made by a Level I Adjudicator. If the grievance is referable to the ERC, then the Commissioner will constitute the final decision-maker of that grievance and will refer it to the ERC for recommendations before making his decision. The Grievor may request that the Commissioner decide the matter directly without referring the grievance to the ERC. The Commissioner retains the discretion to either respect the Grievor's wishes, or to nonetheless refer the matter to the ERC where he considers it appropriate.

The jurisdiction of ERC is limited to those grievances which are referable to it. The fact that a grievance is not referable to the ERC does not mean that a member is left without any remedy. Instead, it should be remembered that the member can file a grievance at Level II and that it will be decided by the Level II Adjudicator, whose decision may be subject to judicial review.

Section 36 of the Regulations sets out 5 categories of referable grievances: interpretation and application of government wide policies that apply to members of the RCMP; stoppage of pay during suspension of a member; interpretation and application of the Isolated Posts Directive; interpretation and application of the Relocation Directive; Administrative Discharge on grounds of physical or mental disability, abandonment of post, or irregular appointment. The first category under s.36(a) is somewhat ambiguous in its meaning, so that it is not always clear whether or not a grievance is referable to the ERC. There are 3 elements under s.36(a). First, there must be a government-wide policy. This is normally a Treasury Board policy, but other government-wide policies (ie, health or safety policies) may originate from other Departments. Second, the policy must be applicable to RCMP members. Third, the grievance must concern the Force's interpretation of the policy (as opposed to disagreement with the policy itself). The common thread of matters which are not referable is that they do not involve government-wide policies, but rather policies applicable only to the RCMP.

In order to clarify the meaning of s.36(a), René Marin, the first Chair of the ERC, and Commissioner Inkster developed a list of 16 referable matters in 1989. In 1990, Commissioner Inkster issued a Bulletin, AM 1706, with the list of 16 subjects. This is often referred to as "the list of 16". It should be stressed that the list of 16 is not exhaustive. It should also be recognized that a couple of the items in the original list were removed because alternate forms of redress were created (e.g. classification of civilian member positions). In October 1999, a Working Group, composed of one representative each from the ERC, Divisional Staff Relations Program and the RCMP's Policy Development Branch, prepared a report for the Commissioner's consideration. The report suggested changes intended to clarify which matters could and could not be referred to the ERC and may be a helpful reference point for future consideration of these issues.

Once a grievance is referred to the ERC, the lawyers review the entire file and prepare an analysis for the Chair. Generally, the ERC bases its review on the entire record . that is, all the original documents, the decisions made by the Level I Adjudicator, and the parties' submissions. Where additional information or submissions are required, the parties may be requested to provide them. When one party makes, or is requested to make, additional submissions, the other party is given a chance to respond.

In analysing the grievance, the ERC looks at the substance of the grievance and is not bound by the Grievor's formulation of the issues. For example, a Grievor may submit that a given Treasury Board policy is unfair (which is not grievable), when the Grievor is really complaining about the fairness of the RCMP's application of that policy (which is grievable). Some of the questions the ERC considers in the review are: whether the matter is referable to the ERC; whether issues of standing and time limits have been properly addressed; whether the governing policies were properly applied; whether the appropriate remedy was granted; what were the previous ERC recommendations in similar cases; and what is the jurisprudence applicable to the issues. The ERC will consider questions of referability, standing and time limits even if the parties have not raised them.

The Chair, after consideration of all of the issues, provides findings and recommendations to the Commissioner; copies are also provided to the parties. The Commissioner is not obliged to accept or follow the ERC's recommendations; however, if he decides not to do so, he must justify his decision.

The Importance of the Level I Adjudicator's Decisions

In issuing a decision on a grievance, it is essential that the Level I Adjudicator provide proper and adequate reasons. In some cases proper reasons can help avoid unnecessary grievances at Level II, allowing Grievors to determine that their concerns were given careful consideration and that a rigorous analysis led the Level I Adjudicator to disallow the grievance. In the course of the ERC's review, the Level I Adjudicator's reasons are carefully considered. Well crafted reasons are extremely helpful. Obviously, proper reasons are also helpful to the Commissioner (or other Level II Adjudicator).

Proper reasons demonstrate that the Adjudicator understood the facts and the issues, and addressed the grievor's submissions. Moreover, the reasons should show that the Adjudicator addressed the issues and the submissions in a meaningful way. In drafting reasons, the Adjudicator must demonstrate that he or she considered the arguments of the parties, rather than simply stating that "careful consideration" has been given to them. Therefore, it is important to avoid "boiler-plate" reasons. In ERC 2000-91-003 (G-50), the Chair characterized the following boiler-plate as "merely findings supported by no rationale": 

I have reviewed your grievance, the documentation and available policy and find that the language profile level and priority were processed in accordance with existing policy. Therefore, the language requirements were properly applied and I must reject your grievance.

It is also important for Adjudicators to show that they both read and addressed the parties' submissions. In this regard, it is helpful to consider whether the decision gives the impression that the Adjudicator has taken the time to address the arguments presented by the parties. This proposition is illustrated by G-266, a grievance pertaining to medical discharge, where the Grievor's counsel relied on recent jurisprudence, Public Service Employee Relations Commission v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"), which had fundamentally altered the state of the law regarding the employer's "duty to accommodate". The Chair found it surprising that "neither the GAB, nor the Level I adjudicator chose to address the Meiorin decision, despite having before them very cogent submissions from the Grievor's counsel as to its relevance". The Commissioner echoed the ERC's concern, declaring that the Chair was correct in stating that the decision in Meiorin should have been taken into account when the grievance was considered, both by the GAB and subsequently by the Level I Adjudicator.

The need for proper reasons is now even more important since there will no longer be GABs in the new grievance process, and the rationale for decisions will rest squarely on the shoulders of Level I Adjudicators. During the training session, the new Level I Adjudicators indicated their awareness of the challenges ahead.

ERC Recommendations and Commissioner's Decisions: Section 32

As mentioned above, there is a distinction between the ERC's recommendation making power and the Commissioner's final decision making authority. Section 32 of the RCMP Act states that although the Commissioner is not required to follow the recommendations of the ERC, the Commissioner is required to give reasons when not following the ERC's recommendations.

Section 32 also states that the Commissioner's decision on a grievance, discipline appeal or discharge or demotion appeal is "final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal or review by any court." When there is an application for judicial review of a Commissioner's decision, the Federal Court may scrutinise the findings and recommendations of the ERC. Two Federal Court decisions illustrate the impact of ERC recommendations on judicial review, from two perspectives: a Commissioner's decision that followed the ERC recommendation and was reviewed in Federal Court (Millard v. Canada (2000-02-02) FCA A-495-98); and a Commissioner's decision that did not follow the ERC recommendation and was sent to Federal Court Trial Division on judicial review (Girouard v. Commissioner of the RCMP (2001-01-22) FCTD T-988-99, [2001] F.C.J. 63).

In Millard, the Federal Court of Appeal reviewed the Commissioner's decision which adopted the ERC findings and recommendations in a grievance on the application of HEAP (Home Equity Assistance Program). At Federal Court, the application for judicial review was dismissed. In assessing the standard of review applicable in this instance, the Court considered many factors. For example, it gave some deference to the statute itself and the fact that the Commissioner's decision is final and binding. It also considered the fact that only in the most unusual circumstances should a reviewing Court intervene in decisions made by a series of tribunals that have been designed for the task. The Court also considered the role and the institutional characteristics of the ERC itself and the fact that the issue in dispute fell squarely within the ERC's expertise. In concluding its analysis on standards of review in this instance, the Court stated that "it would seem clear that a decision of the Commissioner that relies on reasoned and detailed finding by the External Review Committee interpreting the Directive should be subject to minimal judicial scrutiny. Hence, only if the decision is patently unreasonable should it be set aside."

In Girouard, a decision by classification officers not to raise the Grievor's classification level was grieved. The ERC reviewed the matter and recommended that the Commissioner allow the grievance. The ERC found that the classification decision was flawed and concluded that fundamental errors of fact and process had been made. The ERC recommended that the grievance be upheld and that a new classification process be undertaken. The Commissioner did not follow the ERC recommendation.

At Federal Court Trial Division, the Plaintiff alleged that the Commissioner did not give reasons for not following ERC recommendation, as required by the RCMP Act. The Plaintiff maintained that the Commissioner should have specified the reasons leading him to conclude that there was no evidence for the existence of an error of fact or procedure. The application for judicial review was allowed and the matter was referred back for reassessment of the classification of the position held by the plaintiff. In its reasons, the Federal Court reiterated the requirement under s.32(2) of the RCMP Act that a Commissioner who intends to depart from the recommendation of the ERC must provide clear reasons for doing so.

Conclusion

As the new grievance process is launched, many changes and adjustments can be expected in the way grievances are addressed and resolved. However, such fundamentals as the jurisdiction of the ERC, the importance of giving reasons, and the right to judicial review will remain cornerstones of the transparency of the grievance process.