Articles of Interest

Subsection 31(1) of the RCMP Act: The "Standing" Requirement

by Lisa Thiele, Legal Counsel
April 1999

In the examination of grievances, an issue that is often the subject of analysis - and some confusion - is that which deals with the requirements of subsection 31(1) of the RCMP Act, or "standing" to bring a grievance. The Committee has undertaken a brief review of the statutory requirements, the more common issues that have arisen in past grievances and some potential pitfalls in interpreting this part of the legislation. Subsection 31(1) confers a right to grieve on any member who is "aggrieved" by any "decision, act or omission" made "in the administration of the affairs of the Force", in respect of which no other process for redress is provided by the Act, the regulations or the Commissioner's standing orders. It is to these requirements that we attribute the term "standing" to grieve.

Standing in its general legal sense is a threshold question as to whether the person bringing an action or complaint is the proper party to do so, in the sense that the person has a sufficient personal stake in the controversy. In other words, generally speaking, a person must be personally affected in order to be considered able to bring an action or challenge before a court, and cannot merely wish to challenge some action or legislation on the basis of a theoretical dispute. As the Chief Justice of the Supreme Court of Canada noted in Canada v. Borowski, [1981] 2 S.C.R. 575, "[m]ere distaste has never been a ground upon which to seek the assistance of a court." In the context of subsection 31(1), this inquiry is, firstly, whether a member is "aggrieved" by the decision, act or omission the member seeks to grieve.

What it means to be "aggrieved"?

In its analysis of the "aggrieved" requirement, the Committee has explained that, in order to submit a grievance, it is not sufficient that a member merely disagree with Force policy. The member must show that the implementation of policy, or any other decision, act or omission of the Force, has a negative personal impact on him or her. As it was explained in ERC 2800-92-003 (G-077):

The requirement of standing thus distinguishes between members who question the Force's actions because their personal rights or interests are at stake and those who do so only because they are aware of an error in the Force's administration. The grievance procedures under the RCMP Act provide a quasi-judicial method of resolving disputes involving personal rights and interests. They are not designed to provide a general method to correct administrative errors. That is not to say that members who feel that there have been mistakes within the Force's administration should not be able to raise them with their fellow members... However, adjudication regarding such errors under Part III of the RCMP Act can be performed only if a grievor's personal rights and interests are involved.

What this means in practice is that a member is not entitled to grieve a decision, act or omission without showing that it affects the member personally. Examples of where this requirement has been put in issue include grievances where members have sought to challenge certain specific requirements for a promotional opportunity, such as language requirements, but have not given any indication of how the opportunity affected them or their interests. In such a case, the "aggrieved" requirement is not established. This is to be contrasted with cases where members might grieve the same requirements for a promotional opportunity, but can illustrate that they applied for the promotion but were rejected because of the specific requirements, or that they did not apply, despite wanting to do so, because of the requirements. Any such personal interest in a decision, act or omission will be sufficient to establish the "aggrieved" requirement.

The requirement that a member be "aggrieved" is not an overly onerous one. It does not require that a member establish at the outset of a grievance a tangible benefit that will accrue if the grievance is successful, or a tangible benefit lost as a result of the decision being grieved. In the above example, for instance, a member would not need to establish that he or she would be, but for the specific requirements, guaranteed a position advertised in a promotional opportunity, in order to have standing to grieve the specific requirements. The personal loss of the chance to compete would be sufficient to show the requisite personal interest. It is enough to satisfy the "aggrieved" requirement to show that the decision, act or omission that is being challenged has an effect on the member personally.

Standing vs. Merits

It is also important to distinguish, for the purposes of determining whether a member has standing, the requirement of having a personal interest in the matter from the merits of the grievance. The issue of standing is a preliminary question of the capacity of a member to present a grievance and does not concern the ultimate merits of the substantive issue in the grievance. The Committee explained this important distinction as follows in ERC 3300-93-014 (G-125):

While standing does require that a member's rights be at issue, it should be emphasized that the question of standing is not a question of the merits of the grievance. Whether a member's particular right actually exists in a given situation, and should be upheld, is a question of the merits, not a preliminary question of standing.

... A member is not prevented from being aggrieved just because the Force asserts that it is applying Force policy. The "aggrieved" requirement does not prevent a member from challenging the validity and/or interpretation of Force policy; it only requires that the member have a personal interest in the matter in order to do so. Further, whether the Grievor can successfully challenge Force policy in maintaining the rights he asserts is a question of the merits, not of standing.
[emphasis in original]

In light of the foregoing, then, a reasonable question to ask, in determining whether a member meets the "aggrieved" requirement, would be, 'Has the grievor indicated that the decision, act or omission at issue has a direct, personal effect on him or her?'. Questions such as 'Does the grievor have the right that is asserted in the grievance?' or 'Does Force policy allow for what the grievor is arguing?' are questions related to the merits of the grievance, and are not legitimate inquiries for determining standing.

"in the administration of the affairs of the Force"

If aggrieved, a member may challenge any "decision, act or omission", a broadly-worded phrase entitling members to grieve a wide range of determinations affecting them, as long as the decision, act or omission was made "in the administration of the affairs of the Force". The Committee has explained in past cases that this phrase refers to the Force's own administration of its affairs. That is to say, the grievance process cannot be used to attack a decision that was not made in the RCMP. For example, if the decision sought to be challenged is one that was made by the Treasury Board, a member cannot grieve it through the grievance process in Part III of the Act. In ERC 2900-94-001 (G-129), the Committee explained that:

...to the extent that a grievance under the RCMP Act is a challenge to a policy itself, it must be a challenge to policy issued by the Force. In my view, Part III of the RCMP Act does not intend to give RCMP grievance adjudicators authority to rule upon direct challenges to the validity of Treasury Board policy. No such extraordinary authority is explicitly provided by Part III of the RCMP Act, nor is it necessarily implied in its general provisions... [G]iven the nature of Part III of the RCMP Act and, specifically, the absence of explicit wording giving adjudicators direct external jurisdiction, I find that "in the administration of the affairs of the Force" refers to the Force's own administration of its affairs.

In that particular case, the member had sought to challenge the fact that there was no adoption allowance available to RCMP members. However, since it is the Treasury Board that, under subsection 22(1) of the RCMP Act, establishes the pay and allowances of RCMP members, the member's challenge to the lack of an adoption allowance directly attacked a decision, act or omission of the Treasury Board, not one made by the Force in the administration of its affairs.

It must be emphasized that the above example is quite different from a grievance which alleges that the Force has erred in its application of a Treasury Board policy. In many of its decisions affecting members, the Force is interpreting, applying and implementing policy that has been set by the Treasury Board. Decisions regarding relocation entitlements, the provision of legal fees at public expense, the bilingualism bonus and travel entitlements are but a few examples. Such decisions are clearly ones made in the administration of the affairs of the Force. It is only in those rare cases which involve a direct attack on a policy itself, for its exclusions or inclusions, perhaps, that the fact that the policy is a Treasury Board policy will take the matter outside of the operation of subsection 31(1).

"no other process for redress"

The final requirement of subsection 31(1) is that there be, in respect of the decision, act or omission at issue, "no other process for redress ... provided by this Act, the regulations or the Commissioner's standing orders". Where there is an alternate method for redress, a grievance cannot be brought under subsection 31(1). An example of such a procedure is the Commissioner's Standing Orders (Loss of Basic Requirements), found at AM Appendix X-3-3, which provide an appeal process to a member whose pay has been stopped because of loss of a basic requirement for the discharge of duty. In light of this process, a member would not be entitled to grieve a decision stopping the member's pay because of the loss of a basic requirement, but would have to pursue this other process to challenge the decision.

In addition to each of the requirements in subsection 31(1), there is one final point that is worth briefly addressing, as it relates to the issue of standing. This is the relationship of time limits to the standing issue.

Standing vs. Time Limits

It is to be noted that what we consider when we evaluate "standing" is, generally speaking, a member's ability to come within the terms of subsection 31(1), to show that he or she has a personal stake in the dispute and that the matter is one that otherwise fits within the purview of Part III of the Act. A member's compliance with the statutory time limits, set out in subsection 31(2), is a different matter and is the subject of a separate examination. Certainly, there is a necessary connection between the two, as the limitation period begins to run from the time that the member is first "aggrieved". For this reason, the determination of one is dependent on the other, and the examination of the two issues may be linked. Nonetheless, it would not be correct to state that someone whose grievance had to be denied for non-compliance with time limits did not have standing. It is entirely possible for a member to come within the terms of 31(1) but to be nonetheless statute-barred by reason of non-compliance with the time limits. While both subsections 31(1) and (2) are jurisdiction-limiting preconditions to the adjudication of grievances, they involve separate inquiries and findings.

There is a practical importance to this distinction. That is, while there is a statutory discretion to extend the time limits under subsection 31(2), which can be exercised by the Commissioner or his delegate, there is no power or discretion to confer standing on a member who is not aggrieved, and thus does not meet the requirements of subsection 31(1).

Avoid the potential pitfalls

1. "The member is not aggrieved by the decision that her expenses will not be reimbursed, because she has not yet incurred the expenses."

This reasoning is wrong because it requires a tangible consequence of a decision to be realized in order for a member to have standing, and the legislation does not contain such a requirement. In ERC 2400-93-007 (G-098), a member grieved a decision that the Force would not pay certain storage costs, but she had not yet actually paid the storage costs herself. The Committee found that she had shown that she had a personal interest in challenging the legitimacy of the decision, and that this was sufficient for the standing requirement. A member does not have to be out of pocket as a result of a decision, in order to have a personal interest in challenging that decision.

2. "The member can complain to the Privacy Commissioner, and therefore has no standing."

This reasoning shows a misconception of the stipulation in subsection 31(1) regarding there being no other process for redress available. As the Committee explained in ERC 3300-94-003 (G-124), this stipulation relates only to other processes provided by the Act, its regulations or the Commissioner's standing orders. Therefore, opportunities to make complaints to the Privacy Commissioner, the Commissioner of Official Languages, the Canadian Human Rights Commission, or other bodies that are external to the operation of the RCMP, do not affect members' right to grieve under Part III of the Act.

3. "The member has no standing because the decision at issue was made according to a Treasury Board policy over which the Force has no control."

This reasoning is dangerous because it is incomplete. There are many decisions made in the administration of the affairs of the Force pursuant to policies issued by the Treasury Board that the Force has no authority to change. This does not mean that they are not grievable. The relevant determination to be made is whether the Force actually made the decision, by interpreting or applying a Treasury Board policy, or whether the decision is one that was made by the Treasury Board itself and not by the Force.

For example, in ERC 3300-96-001 (G-183), the member challenged the lack of coordination of benefits for members who were spouses under the RCMP Dental Care Plan. This was found to be an attack on a Treasury Board determination, not grievable under the Act, because it was not an interpretation or application by the Force of Treasury Board policy, but was an attack on the policy itself, a policy over which the Force had no control. That may be contrasted with ERC 2000-95-005 (G-184), where a member challenged the meaning to be ascribed to "spouse/common-law partner" for the purposes of members' entitlement to compassionate leave. This, unlike the matter in G-183, involved the RCMP's interpretation of the policy. Therefore, while both matters involved policies over which the Treasury Board had authority, only the member in G-184 met the requirements of subsection 31(1).

4. "This decision affects all members equally. Therefore, the member has no standing."

This reasoning, too, is incorrect. It is wrong to state that, because a decision affects all members, an individual member cannot be aggrieved. A member can, for instance, grieve against a Force-wide decision or policy, as long as the member is personally affected by it. For example, in ERC 2200-91-003 (G-059), a member had standing to challenge mandatory participation in a Force dental plan, despite the fact that every member was in the same position, because he could show that he was personally affected through mandatory pay deductions. On the other hand, a member cannot establish standing on the basis that the decision at issue concerns something that affects all members, and therefore, on a theoretical level, the member is also affected. To accede to this argument would mean that a member could grieve any decision, act or omission of the Force, however remote from the member's personal situation, just by virtue of being a member. This would be incorrect, as what the Act requires is a personal impact.