Articles of Interest

Recent Developments - the "Standing" Requirement

by Monica Phillips, Legal Counsel
July 2005

Beginning with the February-April 1999 Communiqué, the Committee has published articles of interest on major labour relations issues. The first of these articles was on the subject of standing to bring a grievance found in section 31(1) of the RCMP Act.

Now, more than six years and numerous Findings and Recommendations later, some significant new principles related to standing have evolved. The most notable are related to the standing of retired members and the issue of when a decision is taken "in the administration of the affairs of the Force". In addition, some key principles have been confirmed or further explained, including the effect of an alternative process, the lack of a need to prove adverse effect and the meaning of "aggrieved".

Standing of Retired Members

Perhaps one of the most significant developments has been the Committee's consideration of standing as it relates to retired members. To date the interpretation of the word "member" in section 31(1) of the Act has been liberal rather than literal, with an eye to accomplishing the goals of the grievance provisions of the Act.

The Committee issued its first Findings and Recommendation on this issue in May of 2004 in G-321 (summarized in the April-June 2004 Communiqué). In that matter, the Grievor complained of the failure of a classification committee to reclassify his position. The ERC recommended that the grievance be allowed (G-219, summarized in the September 1998-January 1999 Communiqué) but the RCMP Commissioner did not accept this recommendation. The decision was subsequently overturned by the Federal Court, which ordered a new evaluation. This evaluation was conducted by a new classification committee, which arrived at the same conclusions as the first committee. In the meantime, the Grievor retired from the RCMP. He presented a grievance against the second committee's decision, but his grievance was deemed inadmissible at Level I as he was no longer a "member" of the RCMP.

On the issue of standing, the Committee found that his grievance was admissible because the decision challenged pertained to the classification of the position at the time the incumbent held it. The Act requires only that the decision pertain to the rights of a person as a member of the RCMP. It is not necessary for the person to still be a member of the RCMP when the grievance is presented.

The Commissioner agreed with the Committee on standing, finding that the decision of the classification committee was a continuation of the first decision (summarized in the October-December 2004 Communiqué).

This issue was again addressed in the more recent case of G-332 (summarized in the July-September 2004 Communiqué). There the Grievor was a member until he retired in April 1999. At that time, the Force advised him that he was entitled to relocate anywhere in Canada at force expense within two years. In March 2000, the Grievor was informed by the Force that it had modified the relocation policy and that he would only be entitled to have his relocation costs reimbursed if he relocated at least 40 kilometres from his current residence.

The Grievor subsequently relocated to a location that was less than 40 kilometres from his previous residence. He submitted an expense claim to the Force which was rejected on the grounds that the relocation did not qualify for reimbursement under the new rules. He grieved the Force's decision to modify his retirement benefits without his consent. The Level I Adjudicator did not address the merits of the grievance because he concluded that retired members could not avail themselves of the grievance process.

Although the Committee recommended that the grievance be denied on the merits, it found that the Grievor had standing. The Committee found that the Act was not intended to deprive retired members of access to the grievance process in order to challenge a decision or omission by the Force pertaining to matters that arose during the course of their employment. Therefore, if it was while serving as a member of the Force that the Grievor first received a commitment from the Force that it would pay his relocation expenses once he retired, the grievance process was the appropriate recourse to challenge the failure to honour that commitment.

The Commissioner agreed with the Committee, stating that retired members may have standing in some circumstances, but that the decisions must be made on a case-by-case basis. The factors that the Commissioner referenced in coming to his decision included the fact that the subject of the grievance was a benefit accruing to the member as a result of his service, that recourse to grievance process was logical, that the benefit sought was one that was available post-retirement and that the member had requested access to the grievance process, rather than commencing a civil action (Commissioner's decision summarized in the July-September 2005 Communiqué).

Similar reasoning can also be seen in G-324 (summarized in the July-September 2004 Communiqué) where a retired member grieved a harassment decision arising from a complaint he had made prior to his retirement. The Committee found that the Grievor had standing because he was a member of the Force at the time that he initiated the harassment complaint.

The Committee cautioned that a literal interpretation of the Act would not result in the effect that Parliament intended. The wording in s. 31(1) merely requires that the subject of the grievance pertain to the employer-employee relationship. It is sufficiently broad to capture instances where a member has retired between the time that a decision was sought and the time that the decision was finally issued. The Chair commented that waiting until after the member has retired to issue a decision could shield that decision from scrutiny and an important level of accountability might be bypassed. To date, the Commissioner has not rendered a decision in this matter.

"in the Administration of the Affairs of the Force"

In the past, the Committee has found that the phrase "in the administration of the affairs of the Force" found in section 31(1) of the Act refers to the Force's own administration of its affairs, not decisions made outside the RCMP. The traditional interpretation of the phrase "in the administration of the affairs of the Force" has continued to be applied. As a result, where a decision, act or omission arises from an authority outside of the Force, most commonly Treasury Board, Grievors will lack standing.

For example, the traditional line of reasoning was recently confirmed in G-335 (summarized in the October-December 2004 Communiqué), where a Grievor challenged a Treasury Board decision to decline to declare his housing market "depressed" to allow him to receive additional home equity loss compensation. There the Committee found that the fact that the relocation benefit pertained to the performance of the Grievor's duties was not sufficient to meet the test for "in the administration of the affairs of the Force". The grievance process cannot be used to challenge decisions taken outside the Force. The Commissioner agreed with this analysis (Commissioner's decision summarized in the July-September 2005 Communiqué).

The Committee has also found that there is no standing to bring a grievance related to the Force's decision not to launch a criminal investigation of a person not employed by the RCMP. There the Committee noted that the matter was not "within the administration of the affairs of the Force" as it failed to touch on the employeremployee relationship that the grievance process was designed to manage (G-339, summarized in the October-December 2004 Communiqué).

The Acting Commissioner's decision resulted in his referring the file back to the Level I Adjudicator for both a decision on the merits and a review of the decision on standing (Commissioner's decision summarized in the July-September 2005 Communiqué).

However, recently an exception has been carved out for third parties acting as de facto delegates in decision making where responsibility continues to rest with the Force. These third parties may be acting "in the administration of the affairs of the Force" for the purpose of assessing standing.

For example, in G-345 (summarized in the April-June 2005 Communiqué), the Grievor claimed that a third-party provided him with incorrect advice on his relocation benefits by advising him to accept an offer on his home, to his financial detriment.

The Committee found that the third-party's advice was "in the administration of the affairs of the Force" since ultimate responsibility for implementation and management of the relocation policy rested with the Force. Notwithstanding that no member or employee of the Force was responsible for the omission grieved, the Committee found that the Grievor had standing.

The Commissioner has yet to render a decision in this matter.

Need to Prove Adverse Effect/Meaning of Aggrieved

The Committee has been consistent in finding that, under the Act, there is no requirement that Grievors establish an adverse effect in order to enjoy standing. The involvement of a personal right or personal interest is sufficient. However, the Committee has also long endorsed the idea that to submit a grievance it is not sufficient that the member simply disagrees with Force policy. There must be a personal right involved or a personal interest at stake. Further, Grievors should be cautioned that a lack of evidence or argument related to adverse effect may doom the grievance at the merits stage, even though it will not result in a lack of standing.

Recently this concept has been refined somewhat. In G-322/323 (summarized in the April-June 2004 Communiqué), the member filed two harassment related grievances based on comments made by the Respondents regarding him. The Level I Adjudicator rejected the Grievor's standing, finding that he had failed to show how the comments had adversely affected him. The Committee rejected this analysis, finding that the Level I Adjudicator confused the issue of standing with the issue of the merits of the grievance. To have standing to present the grievance, the Grievor was not required to establish that he had been adversely affected by the comments, merely that the comments pertained directly to him. The Commissioner agreed with the Committee's analysis on standing (summarized in the October-December 2004 Communiqué).

In G-334 (summarized in the October-December 2004 Communiqué), the Grievor requested payment of meal claims, but advanced no argument as to why he was entitled to the payment. The Level I Adjudicator found that the Grievor lacked standing as he had failed to prove his rights had been adversely effected. The Committee disagreed, finding that the Grievor was not required to advance arguments as to why he was entitled to the benefit to meet the test for standing. However, the Committee recommended that this grievance be denied on the merits due to the same lack of explanation or argument by the Grievor. The Commissioner, in his decision, did not comment specifically on the issue of standing; however, he followed the recommendation of the Committee and rejected the grievance on the merits (Commissioner's decision summarized in the July-September 2005 Communiqué).

In addition, the fact that there is an effect on the Grievor may not be sufficient to generate standing. In G-340 (summarized in the October-December 2004 Communiqué) the Grievor requested authorization to incur and then subsequently requested payment of legal fees to intervene in a Federal Court case in his role as a DSRR. These requests were denied. The Committee found that the effect on the Grievor was detrimental only to the extent of his professional work as a DSRR, the effect was not related to a personal right and therefore, he was not "aggrieved". The Commissioner has yet to render a decision in the matter referenced.

Effect of an Alternate Process

Finally, two recent cases have served to further define the concept of when standing will be denied due to the existence of an alternate process under the Act, Regulations or a CSO. An alternate internal process may deny standing, but only where that process is constituted under the Act, Regulations or a CSO. Processes that are otherwise established will not result in a lack of standing, even where this may give Grievors access to multiple processes.

The Committee has found that standing will not be denied to members on the basis that they may have access to another process for redress under a Force policy. In G-326 (summarized in the July-September 2004 Communiqué), the Level I Adjudicator denied the member standing to bring a harassment grievance, citing an internal policy on harassment as the alternate process. The Committee found that since the alternate process was not derived from the Act, Regulations or a CSO, access to the grievance process was not barred. The Commissioner agreed with the findings and recommendation of the Committee on this file, but did not comment explicitly on standing (summarized in the October-December 2004 Communiqué).

On the other hand, the Committee has found that a Grievor will lack standing where there is access to a process for recourse established under a CSO, as was the case with a recent grievance related to reclassification (G-336, summarized in the October-December 2004 Communiqué). The Committee found that the Grievors in that case had access to a new method of recourse established under a CSO and therefore had no standing under section 31(1) of the Act. The Commissioner agreed (summarized in the April-June 2005 Communiqué).