Articles of Interest

Role of RCMP External Review Committee in Grievances

by Martin Griffin, Counsel
April 2005

On March 30th and April 1st, 2005, at the invitation of the Force, three of the Committee's counsel participated in the Grievance Training Workshop, held at the Canadian Police College in Ottawa, Ontario. On both days, we were privileged to spend time with participants in the RCMP grievance process from across the country. We also had the opportunity, through a presentation, to speak to the participants about the Committee's role and highlight issues that arise before the Committee in its review of grievances. Our presentation will be available shortly on the Committee's website.

In addition to covering topics that had been discussed in earlier training sessions (an article describing an earlier presentation on the RCMP grievance process can be found at www.erc-cee.gc.ca/publications/articles/a-014.aspx) , our presentation also highlighted newer topics, namely: the burden of persuasion in grievances, disclosure of relevant material, harassment, stoppage of pay, and retired members' standing. These topics will be the subject of a brief review in this article.

The burden of persuasion
In our presentation, we discussed Committee recommendations such as ERC 2500-93-001 (G-091) which have referred to the Grievor's "burden of persuasion". In G-091, the Committee indicated that, in line with labour-law principles in the private and public sectors, the member presenting a grievance under Part III of the Act is required to show on a balance of probabilities that the Force decision being grieved is wrong.

An example of this burden not being met is found in ERC 2200-98-002 (G-234). In that case, a member was subpoenaed to appear before a Coroner's Inquest because of his involvement in a matter. The member sought to be represented by a lawyer at Force expense. Treasury Board's Policy on the Indemnification of and Legal Assistance for Crown Servants provides for reimbursement of such expenses if members act within their scope of duties and meet reasonable Force expectations. The Force denied his request. The member's grievance of that decision was denied at Level I on the grounds that the member had not established that his involvement in the matter met the policy criteria. The Committee also recommended that the grievance be denied, due to the Grievor's failure to provide any evidence as to how his actions in the matter having led to the Coroner's Inquest may have been "within the scope of his duties".

The Respondent must also address a grievance with sufficiently clear evidence, or the grievance may well be allowed. In ERC 2100-02-001 (G-301), a member grieved the Force's order to reside in RCMP barracks during an investigation. The issue to be decided in the grievance was whether the barracks met the requirement of "Suitable Police Quarters" pursuant to a Travel Directive. The Chair found that the evidence provided by the Grievor, which was based on what the latter had observed personally, quite clearly established that the facility he was required to stay in did not comply with the policy requirements. Although the Respondent provided information to the contrary, it was not based on first-hand evidence, and so did not carry as much weight. The grievance was allowed.

These recommendations underscore the need for both the Grievor and the Respondent to ensure that relevant evidence is before the grievance adjudicator. The Commissioner's Standing Orders (Grievances) (the "CSOs") establish mechanisms through which information may be provided by the parties. The CSOs allow both the Grievor and Respondent to make written submissions and provide documentation. Subsection 31(4) of the RCMP Act, in addition, enshrines a Grievor's right to written or documentary evidence in the Force's possession if it is relevant and reasonably required to present the grievance.

Disclosure of relevant material pursuant to subsection 31(4) of the Act
Subsection 31(4) of the Act provides that a member presenting a grievance be given "access to such written or documentary information under the control of the Force and relevant to the grievance as the member reasonably requires to properly present it". A member seeking information under subsection 31(4) must establish that the information is under the control of the Force, and that it is both relevant and necessary to present the grievance.

Where these criteria are met, the burden may shift to the Respondent to explain why the information should not be disclosed (ERC 3200-95-001 (G-147)). Exclusion will be justified where disclosure of the information is injurious to the defence of Canada or the prevention of hostile activities, or injurious to law enforcement (CSOs, s.8).

Recently, the Committee has examined the issue of whether personal information, as defined in the Privacy Act, could be disclosed to a Grievor pursuant to subsection 31(4). In two medical discharge cases, ERC 2300-01-001 (G-266) and ERC 2900-01-002 (G-267), the Force had refused to provide a Grievor with information about accommodations made for other disabled members in the Force. While noting that "there may be some merit to the decision not to have provided the Grievor with access to medical information about other members", the Chair found that information about accommodations made by the Force for other disabled members would be relevant to the grievance. He also observed that personal information within the meaning of the Privacy Act would be subject to disclosure since the RCMP Act authorizes such disclosure pursuant to s.31(4), as long as it is relevant and reasonably required.

In G-266 and G-267, the Commissioner agreed in principle with the Chair's recommendation that relevant information with respect to accommodation arrangements that have been made with other members should be disclosed to Grievors, emphasizing that this should be done without disclosing confidential medical information.

Harassment in the workplace
Our presentation also covered the issue of harassment in the workplace. Treasury Board's Policy on the Prevention and Resolution of Harassment in the Workplace defines harassment as conduct that may offend or humiliate an employee, where the person exhibiting such conduct knew or ought to have known that it would be unwelcome. The Policy provides informal mechanisms, such as early resolution and mediation, for dealing with alleged harassment in the workplace . The Policy also contemplates a more formal complaint and investigation process to deal with such matters where informal means are not feasible. The Force's own internal policy governing the prevention and resolution of harassment in the workplace, which was recently modified and which can be found at chapter XII.17 of the RCMP Administration Manual, must in all essential aspects respect the spirit of the Treasury Board policy.

We discussed the Committee's recommendation in ERC 2400-95-004 (G-235). In that case, the Force had found a harassment complaint to be unsubstantiated because the person exhibiting the conduct had not deliberately intended to harass. The Chair found that the allegation had been established, and emphasized that a finding of harassment is not dependant on the existence of a deliberate intent to harass. Rather, what matters is whether the person exhibiting the conduct "knew or ought to have known" that it would be unwelcome.

The topic of harassment is discussed in an article entitled Human Rights and Harassment in the Workplace by Odette Lalumière, which was published in the April/June 2001 Communiqué. While this article deals with an older version of the RCMP's internal policy on harassment, it is nonetheless a useful overview of the issues which may arise in this area.

Stoppage of Pay
We also took the opportunity to discuss three recent recommendations concerning the stoppage of pay of suspended members. In ERC 2800-03-001 (G-318), ERC 3300-03-012 (G-319) and ERC 3300-03-011 (G-320), the Committee examined the legislative, regulatory and policy framework governing stoppage of pay in the RCMP. Subsection 22(3) of the Act gives Treasury Board the authority to make regulations respecting stoppage of pay and allowances of suspended members. The resulting Treasury Board regulation, however, indicates only who may order stoppage of pay, and not the criteria which would govern such a measure. Internal Force policy sets out such criteria. In its recommendations, the Committee expressed the view that this constitutes an improper delegation by Treasury Board of its authority to make regulations, and questioned the Force's legal authority to stop pay and allowances. These three recommendations are discussed in the Committee's January-March 2004 Communiqué.

In G-318, G-319 and G-320, the Commissioner concluded that he did not have the legal authority necessary to pronounce on the validity of the Regulations. Consequently, in addressing the merits of these grievances, he presumed that the Regulations were valid. His decisions are summarized in the Committee's July-September 2004 Communiqué.

Standing of Retired Members
In recent files referred to the Committee, retired members had presented grievances under Part III of the Act pertaining to matters that had arisen during the course of their employment with the Force. The Grievors had been denied standing at Level I on the basis that retired members could not be considered "members" with standing to grieve. In ERC 3300-03-001 (G-321), ERC 3300-03-003 (G-324) and ERC 3300-03-014 (G-332), the Chair concluded that the retired members had sufficient standing to present their grievances. Casting aside a restrictive interpretation of the term "member" within the Act, the Chair considered the purpose of the Act and a rule of statutory interpretation which favors liberal construction and interpretation of enactments. As the grievances pertained to matters which had arisen from the Grievors' employment within the Force, the members had standing notwithstanding their retired member status.

The Commissioner has issued his decision in G-321 and agreed with the ERC that the member had standing to present the grievance. He has not yet issued his decisions in G-324 and G-332.

Conclusion
Through our participation in events such as the Grievance Training Workshop, we hope to be of assistance to all participants in the RCMP grievance process and, more broadly, to positively influence the manner in which labour relations issues are addressed within the RCMP. We benefit from participating in such activities, and we look forward to similar opportunities in the future.