Grievance Case Summary

G-247

The member requested legal services at public expense during the investigation into a number of public complaints against him, one of which contained the threat of a civil suit. The request was refused on the basis that policy did not permit payment for members legal services during Force investigations into public complaints unless a civil suit was filed. The member was assured that his request would be reconsidered when a civil suit was filed against him.

He submitted a grievance against the refusal three months after being notified thereof. He had thought that the complaints had been resolved and it was only after the appointment of a Force investigator two months after the refusal that he realized that he still needed legal services. He asserted that the complaints against him related to the performance of his duties as a member. His request for previous GAB, adjudicator and Committee findings on similar grievances was denied on the ground that these documents had not been used in making the decision.

The Level I adjudicator denied the grievance on the basis of standing. He held that the member was not aggrieved because the request for legal services had not been denied but had merely been determined to be premature. The adjudicator asserted that the request would be reconsidered in the event of a civil suit. He did not rule on the information request. The member filed his Level II grievance.

On March 2, 2000, the ERC issued its findings and recommendations. The Committee found that the member was aggrieved by the refusal. The fact that the refusal would be reconsidered in the event of a civil suit did not negate the force and effect of the refusal on the member at the time it was made. However, the Committee found that the member failed to comply with the 30-day limitation period for the presentation of grievances and therefore the grievance was untimely. It also found that, in view of the provisions of subsection 45.36(5) of the Act, the member was not entitled to rely on any verbal assurances that no investigation would be conducted into the complaints.

On the merits, the Committee found that the applicable Treasury Board policy did not preclude consideration for legal services at public expense where a civil suit was only threatened, if it was clear that a suit was likely to proceed, or where there were exceptional circumstances. Such circumstances could include a situation where there was a considerable risk that evidence gathered in a public complaint investigation could detrimentally affect the member's position in a civil suit against him or her by the complainant. However, the member did not provide sufficient information to show that he would have placed himself at considerable risk in a civil suit if he agreed to participate in the public complaint investigation without legal representation. Similarly there was insufficient contextual information about the background to the complaints for a determination to be made regarding whether the member had acted honestly, within the scope of his duties, meeting departmental expectations. The Committee also found that if the member had submitted his grievance in time, he would have been entitled to be granted access to the information requested.

The Committee recommended that the grievance be denied for failure to respect the limitation period for presentation of grievances at Level I. In the alternative, it recommended that it be denied on the merits.

On March 24, 2000, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:

The Commissioner agreed with the Committee that the 30-day time limit at Level I had not been respected. The grievance was denied.

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