ERC DISCUSSION DOCUMENT - Model Legislation

RCMP Labour Relations Act

An Act to modernize employment and labour relations in the Royal Canadian Mounted Police Force.

Short Title

1. This Act may be cited as the RCMP Labour Relations Act.

Definitions

2. The following definitions apply in this Act:

PART I

LABOUR RELATIONS TRIBUNAL FOR THE ROYAL CANADIAN MOUNTED POLICE

Establishment and Organization of Tribunal

Tribunal established

3(1) There is hereby established a tribunal, to be known as the Labour Relations Tribunal for the Royal Canadian Mounted Police.

The name change reflects the expanded mandate of the Tribunal and will also assist members of the RCMP and the public in easily identifying the Tribunal's functions and separating the Tribunal from the RCMP itself, which is a current issue.

Mandate

(2) The Tribunal's mandate is to:

(a) provide adjudication services and mediation services in respect of appeals to it received under Part III, Part IV and Part V of the RCMP Act; and,

(b) to provide dispute and conflict resolution in accordance with this Act.

Adjudication Services

(3) The adjudication services to be provided by the Tribunal consist of the hearing of appeals filed pursuant to Parts III, IV and V of the RCMP Act.

Mediation Services

(4) The mediation services to be provided by the Tribunal consist of mediating in relation to appeals under Part III, Part IV and Part V of the RCMP Act , except that mediation services offered in relation to appeals under Part IV of the RCMP Act are subject to s.12(3) of this Act.

The provision of mediation services is in line with current trends in labour relations, including at the Public Service Labour Relations Board and the Public Service Staffing Tribunal. The exception reflects the unique features of police discipline and the very real element of public interest. See also s.12 below.

The Tribunal

4(1) The Tribunal shall consist of a Chair, a Vice-Chair and not more than ten other members, to be appointed by order of the Governor in Council.

Full- or part-time

(2) The Tribunal Chair is a full-time member of the Tribunal and the other members may be appointed as full-time or part-time members of the Tribunal.

Tenure of office

(3) The Chair of the Tribunal and every other member of the Tribunal shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed for cause at any time by order of the Governor in Council.

Re-appointment

(4) A member of the Tribunal is eligible for re-appointment on the expiration of the member's term of office.

Eligibility

(5) No member of the Force is eligible to be appointed or to continue as a member of the Tribunal.

(6) A person who ceases to be a member for any reason other than removal may, at the request of the Chair, within eight weeks after ceasing to be a member, carry out and complete any functions or responsibilities that the person would otherwise have had in connection with any matter that came before the Tribunal while the person was still a member and in respect of which there was any proceeding in which the person participated as a member. For that purpose, the person is deemed to be a part-time member.

Salary of full-time members

(7) Each full-time member of the Tribunal is entitled to be paid such salary in connection with the work of the Tribunal as may be approved by order of the Governor in Council.

Fees of part-time members

(8) Each part-time member of the Tribunal is entitled to be paid such fees in connection with the work of the Tribunal as may be approved by order of the Governor in Council.

Expenses

(9) Each member of the Tribunal is entitled to be paid reasonable travel and living expenses incurred by the member while absent from the member's ordinary place of residence in connection with the work of the Tribunal.

Application of the Public Service Superannuation Act

(10) Full-time members are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Application of other Acts

(11) All members are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Tribunal Chair

5(1) The Tribunal Chair is the chief executive officer of the Tribunal and has supervision over and direction of the work and staff of the Tribunal.

Absence or incapacity

(2) In the event of the absence or incapacity of the Tribunal Chair or if the office of Tribunal Chair is vacant, the Minister may authorize the Vice-Chair to exercise the powers and perform the duties and functions of the Tribunal Chair.

Delegation

(3) The Tribunal Chair may delegate to the Vice-Chair any of the Tribunal Chair's powers, duties or functions under this Act, except the power to delegate under this subsection.

Head office

6(1) The head office of the Tribunal shall be at such place in Canada as the Governor in Council may, by order, designate.

Staff

(2) Such officers and employees as are necessary for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.

(3) The Tribunal shall have the independent authority to engage legal counsel as staff members or to procure legal services, notwithstanding s. 4 of the Government Contracts Regulations (SOR 87/402).

(4) The Tribunal Chair may retain on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Tribunal in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.

Subsection (3) will allow the Tribunal to retain counsel, either privately or as staff persons without seeking the approval of the Department of Justice in order to maintain and protect the Tribunal's independence. Current process requires that the Department of Justice approve hiring of counsel. Seeking the approval of the Department of Justice means that the Tribunal is required to approach a body which also provides legal services to the RCMP.

Idem

(5) The Tribunal may,

(a) engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Tribunal to advise and assist the Tribunal in the exercise or performance of its powers, duties and functions under this Act; and

(b) fix and pay the remuneration and expenses of persons engaged pursuant to paragraph (a).

Duties of Tribunal

7(1) The Tribunal shall carry out such functions and duties as are assigned to it by this Act.

Rules

8. Subject to this Act, the Tribunal may make rules respecting:

(a) the sittings of the Tribunal;

(b) the manner of dealing with matters and business before the Tribunal generally, including the practice and procedure before the Tribunal;

(c) the apportionment of the work of the Tribunal among its members and the assignment of members to review appeals to the Tribunal; and

(d) the performance of the duties and functions of the Tribunal under this Act generally.

Annual report

9. The Tribunal Chair shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Tribunal during that year and its recommendations, if any, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the Minister receives it.

Providing that the Tribunal's reporting continues to be directly to Parliament, via the Minister of Public Safety, ensures continued independence and public confidence.

PART II

GRIEVANCE, DISCIPLINARY AND DISCHARGE AND DEMOTION APPEALS

Powers of the Tribunal

10. The Tribunal has, in relation to any appeal before it, the power to:

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner and to the same extent as a superior court of record;

(b) order that a hearing be conducted using any means of telecommunication that permits all persons participating to communicate adequately with each other;

(c) administer oaths and solemn affirmations;

(d) accept any evidence, whether admissible in a court of law or not;

(e) compel, at any stage of a proceeding, any person to produce any documents and things that may be relevant;

(f) confer standing on any person or group where the Tribunal determines it is the public interest to do so, subject to any limitation that the Tribunal deems are reasonable;

(g) order pre-hearing procedures and determine the terms of those procedures, including pre-hearing conferences in private; and,

(h) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of an employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliances or articles in the premises and require any person in the premises to answer all proper questions relating to the appeal.

11(1) Upon receipt of a Notice of Appeal, the Tribunal shall notify the other party or parties, as the case may be, and the Force.

(2) The Force shall provide the Tribunal with a copy of the entire record in the matter, including but not limited to: the written submissions made at each level in the process by the parties; the decisions rendered at each level in the process; and the written or documentary information under the control of the Force and relevant to the matter, within 30 days of receipt of notification of the filing of the Notice of Appeal.

(3) Notwithstanding s. 11(2), the Force may refuse to disclose information which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the detection, prevention or suppression of subversive or hostile activities, as defined in that subsection or law enforcement.

This provision removes the RCMP as the referral body and allows parties to appeal directly to the Tribunal, thereby enhancing accountability and transparency. Consequential amendments to the RCMP Act would embed the right to appeal to the Tribunal in each of Parts III, IV and V respectively. The rights to appeal would be broad and apply to both parties to avoid the difficulties inherent in the current system where many grievances, and some discipline files, receive no independent review.

Subsection (2) places an onus on the Force to provide the Tribunal with the record to ensure maximum transparency, with subsection (3) acting to limit disclosure in cases where such limitation is justified.

Mediation

12(1) The Tribunal may provide mediation services at any stage of a grievance appeal or a discharge and demotion appeal in order to resolve the matter or any portion of the matter, if the parties agree, in the form of a staff person mediator, a Tribunal member mediator or a third-party mediator retained under subsection 6(4).

(2) Subject to s. 12(3), the Tribunal may provide mediation services at any stage of a proceeding in order to resolve a disciplinary appeal or any portion of a disciplinary appeal, if the parties agree, in the form of a staff person mediator, a Tribunal member mediator or a third-party mediator retained under subsection 6(4).

Idem

(3) Where the disciplinary appeal arises, in whole or in part, from a public complaint, prior to engaging in mediation, the Chair of the Tribunal shall rule on the suitability of the matter for resolution using mediation.

See section 3(4) above for rationale.

Mediation can significantly reduce cases that require adjudication (see for example statistics in Commission for Public Complaint's 2004-2005 annual report)

The RCMP has early resolution as one of the first steps in grievance process, but revisiting this step at a later stage has merits:

- RCMP process often, in fact usually, occurs before disclosure;

- RCMP process sometimes is skipped;

- RCMP process has no third party assistance built in;

- Tribunal mediation could provide resolution, in whole or in part, at a stage when the details of the grievance have been fully explored; and,

- Tribunal mediation could provide parties with neutral support re: process that might otherwise be lacking.

(4) The person who acts as mediator in a matter may not act in any other proceedings before the Tribunal in relation to any matter that was at issue in the mediation.

Designation of Adjudicator or Panel

13(1) Upon receipt of the material referred to in section 11(2), the Chair shall cause the material to be made available to the parties and shall designate an adjudicator or a panel of adjudicators from amongst the members of the Tribunal to hear the matter.

(2) Where the Chair designates a panel of adjudicators to hear a matter, and the Chair is not a member of that panel, the Chair shall designate one member of the panel as the Chair of the panel.

(3) For the purposes of this section, the member or members making up the panel are deemed to be the Tribunal.

Human Rights Implications

14(1) Where an appeal has been referred to the Tribunal and a party to the appeal raises an issue involving the interpretation or application of the Canadian Human Rights Act, the Tribunal shall give notice of the issue to the Canadian Human Rights Commission.

(2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection 14(1). The Canadian Human Rights Commission may decline to make submissions.

This ensures that the highest priority possible is placed on human rights, adds an additional layer of accountability and transparency, ensures that the commitment to discrimination free workplace is met, and has the potential to avoid the duplication of a grievance and a human rights commission complaint.

Public Complaints

15(1) Where an appeal arises, in whole or in part, out of a public complaint, the Tribunal shall give notice of the appeal to the Commission for Public Complaints Against the RCMP.

(2) The Public Complaints Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in 15(1). The Commission for Public Complaints Against the RCMP may decline to make submissions.

These sections are advanced for discussion purposes. They ensure that the rights and interests of public complainants are respected, while also ensuring only matters where the public complaint raises issues of genuine public interest are pursued to subsequent levels.

It is noted that this is only one model. It mirrors the current system in the public service related to grievances and human rights issues. Various models, with various levels of engagement of both the public complainant and the public complaints body, could be developed to provide a voice to the public complainant, while considering cost and timeliness issues. At a minimum the model would likely include a right to notice and a right to be heard in some form.

The spectrum of public complainant involvement could include a direct full or partial right of appeal, a full or partial Public Complaints Commission driven right to appeal, a right to notice and to provide written submissions, along the line of victim statements in criminal sentencing or, as detailed above, a right vested in the Public Complaints body to make submissions.

Tribunal Review

16. The Tribunal shall review the matter as informally and expeditiously as possible and shall issue a written decision, including reasons, which shall be served on the parties, the Force and any other party with standing or with standing to make submissions.

17(1) The Tribunal retains the right to order an oral hearing into any matter or to decline to hold an oral hearing, as it sees fit.

This section gives the Tribunal the ability to hold oral hearing where the circumstances justify, but also allows for less formal, less expensive and less lengthy paper reviews, where appropriate. A system that functioned where all hearings went ahead by way of oral hearing would be expensive and require an exceptional level of administrative and operational support.

Notice

(2) Where the Tribunal determines that an oral hearing is required, the Tribunal shall serve a notice in writing of the time and place appointed for a hearing on the parties, any party with standing and any party with standing to make submissions.

Sittings of Tribunal

(3) Where a party wishes to appear before the Tribunal, the Tribunal shall sit at such place in Canada and at such time as may be fixed by the Tribunal, having regard to the convenience of the parties.

Representation of witnesses

(4) The Tribunal shall permit any person who gives evidence at a hearing to be represented by counsel or a representative.

Restriction

(5) The Tribunal may not receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.

Witness not excused from testifying

(6) In a hearing, no witness shall be excused from answering any question relating to the matter before the Tribunal when required to do so by the Tribunal on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Answer not receivable

(7) Where the witness is a member, no answer or statement made in response to a question described in subsection (6) shall be used or receivable against the witness in any hearing into an allegation of contravention of the Code of Conduct by the witness, other than a hearing into an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

Hearing in public

(8) A hearing before the Tribunal shall be held in public, except that

(a) while a child is testifying at the hearing, the Tribunal may order that portion of the hearing to proceed in private, with the exception that the child's parent or guardian may attend the hearing; and

(b) the Tribunal may order a hearing or a portion of a hearing held in private where it is of the opinion that matters involving public security may be disclosed; and

(c) the Tribunal may order a hearing or a portion of a hearing held in private where the Tribunal is of the opinion that the personal sensitivity of the anticipated testimony and the desirability of avoiding disclosure thereof outweighs the desirability of adhering to the principle that hearings be open to the public.

This change reflects current case law and supports transparency, but still maintains a right to privacy where justified.

Return of documents, etc.

(9) Any document or thing produced pursuant to this section to the Tribunal shall, on the request of the person producing the document or thing, be released to the person within a reasonable time after the Tribunal's decision.

Expenses

(10) Where the Tribunal sits at a place in Canada that is not the ordinary place of residence of a member whose matter is before the Tribunal or of the member's counsel or representative, that member, counsel or representative is entitled, in the discretion of the Tribunal, to receive such travel and living expenses incurred by the member, counsel or representative in appearing before the Committee as may be fixed by the Treasury Board.

Decision of the Tribunal

18(1)The Tribunal may:

(a) summarily dismiss any appeal that, in its opinion, is frivolous or vexatious;

(b) dismiss the appeal, in whole or in part;

(c) allow the appeal;

(d) where no determination of the matter can be made on the merits, refer the matter to the Force for an investigation, a redetermination at any lower level that the Tribunal may direct or such other referral as the Tribunal deems necessary.

Decision Final and Binding

19. All orders and decisions of the Tribunal are final and binding and, except for judicial review under the Federal Courts Act, are not subject to appeal to or review by any court.

PART III

GENERAL

Members not compellable as witnesses

20. Members of the Tribunal, persons employed by the Tribunal and persons retained under subsection 6(4) are not competent or compellable to appear as a witness in any civil proceedings respecting information obtained in the discharge of their functions.

Notes and drafts not to be disclosed

21. None of the following may be disclosed without the consent of the person who made them:

(a) notes or draft orders or decisions of the members of the Tribunal; and

(b) notes of any person providing mediation services under this Act.

Immunity from proceedings

22. No criminal or civil proceedings lie against a member of the Tribunal, or any person acting on behalf of the Tribunal for anything done or omitted to be done by that member or that person in good faith under this Act.

Oath or affirmation

23. Before commencing his or her functions, a person appointed as a member of the Tribunal shall take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgement, skill and ability, execute and perform the office of member (or Chair or Vice-Chair) of the Labour Relations Tribunal for the Royal Canadian Mounted Police. (Add, in the case where an oath is taken, "So help me God" (or name of deity).)

July 2, 2008