2009-10 RCMP External Review Committee Annual Report

PDF 768 KB

June 21, 2010

The Honourable Vic Toews, P.C., M.P.
Minister of Public Safety
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8

Dear Minister:

In accordance with Section 30 of the Royal Canadian Mounted Police Act, I am pleased to submit to you the annual report of the RCMP External Review Committee for fiscal year 2009-10, so that it may be tabled in the House of Commons and in the Senate.

Yours very truly,

Catherine Ebbs
Chair

I am very pleased to present the 2009-2010 Annual Report of the RCMP External Review Committee (ERC). This year marked my twentieth year of service with federal government tribunals, and my fifth year as Chair and Chief Executive Officer of the ERC. Although we continued to face a number of challenges in 2009-2010, I am very proud to report on this years operational accomplishments and corporate developments.

In this past year, two major occurrences have positively influenced the ERC's operations. Firstly, the Treasury Board provided additional funding on a temporary basis. Secondly, certain corporate reporting methods were modified for very small government agencies such as the ERC. As a result of these developments, the ERC was able to improve its performance. In particular, the number of findings and recommendations issued by the ERC increased. Furthermore, the ERC is now able to give priority to cases in which a member has been ordered to resign or be dismissed. While the ERC has always considered these cases to be priorities given the gravity of such decisions, it is now better able to address these while maintaining its processing times for all other cases.

On the corporate side, as one of the smallest federal agencies, the ERC faces unique pressures in responding to government reporting requirements that are designed for large, complex government departments. However, central agencies, especially Treasury Board, are questioning the one size fits all approach to reporting, and have begun to modify certain accountability systems to reflect the realities of micro agencies.

For example, in 2009-2010, the ERC completed its second ever Management Accountability Framework (MAF) assessment. For micro agencies, MAF reports are streamlined and more focussed, and there is an oral evaluation. While the exercise is still challenging, the modified process is a significant improvement that I believe results in a report that is more meaningful and more useful. I am pleased with the ongoing refinement of the MAF, and proud of the ERC's positive results.

This recognition of the unique circumstances of micro agencies such as the ERC is a positive development in our rapport with the central agencies of the federal public service. I commend them on these initiatives, and I look forward to continued good relations with them as the ERC pursues its mandate of providing quality findings and recommendations in RCMP labour relations matters.

Finally, I am very proud of the recognition which the ERC is enjoying within both the federal tribunal community, and the broader labour relations community. The ERC has earned this recognition by balancing the accomplishment of our mandate with the continuous development of our expertise, and by playing a key role in facilitating the training of newly-appointed federal tribunal members.

Once again this year I am grateful to the dedicated staff of the ERC whose exceptional work has allowed the ERC to enjoy the esteem of its peers and stakeholders.

Catherine Ebbs
Chair

In 1976, The Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure Within the Royal Canadian Mounted Policerecommended that there be independent review of RCMP labour relations matters. This would ensure that RCMP labour relations systems were as fair and equitable as possible, and perceived to be so by members of the Force. It also concluded that independent reviews were vital to a system "which would have the respect of those members most likely to have an occasion to resort to it".

The RCMP External Review Committee (ERC) is the independent federal tribunal established by Parliament over twenty years ago to carry out the independent reviews recommended by the 1976 Commission of Inquiry.

The ERC reviews certain types of grievances, as well as disciplinary appeals, and discharge and demotion appeals. Its jurisdiction is restricted to regular and civilian members only. Public servants employed by the RCMP have separate labour relations processes.

As a quasi-judicial tribunal, the ERC applies the rule of law, and its role is crucial to ensuring transparency, fairness, and impartiality in RCMP labour relations processes. Once the ERC reviews a case, it issues findings and recommendations to the RCMP Commissioner, who then makes the final decision.

The ERC helps to maintain fair and equitable labour relations within the RCMP. Over the years, its findings and recommendations have prompted the RCMP to make policy changes in many areas of its internal labour relations, including medical discharges, suspensions without pay (SWOP), harassment prevention, relocation and transfer allowances, and workforce adjustment. As this Annual Report indicates, the ERC continues to provide sound guidance in RCMP labour relations matters.

As one of two bodies which oversee the RCMP (the other being the Commission for Public Complaints Against the RCMP (CPC)), the ERC has an important function in maintaining public confidence in the RCMP by helping to ensure that the RCMP respects the law and human rights in labour relations.

In 2009-2010, the ERC's budget was approximately $1 million, and the organization had a staff of 9, including the Chair. The ERC spent approximately 80% of its time and resources on case review, and 20% on outreach and communication. Corporate services such as financial management, human resources and information technology services are included in these two sets of activities.

The ERC reports to Parliament through the Minister of Public Safety. It is headed by a Chair who is appointed by order of the Governor in Council. The Chair is also the Chief Executive Officer. Under the Royal Canadian Mounted Police Act (RCMP Act), no one who is appointed to the ERC can be a member of the RCMP.

In addition to the Chair, the ERC is managed by an Executive Director/Senior Counsel who oversees a staff of seven. The staff is comprised of lawyers who are experts in labour, employment and administrative law. It also includes a small number of administrative personnel who ensure the day-today operations of a modern public institution.

The ERC receives some support services from the Department of Public Safety through a Memorandum of Understanding for assistance in such areas as Human Resources, Information Technology, and Finance. As for all federal public service departments, the department of Public Works and Government Services Canada provides the ERC with all accommodation services.

The RCMP External Review Committee is:
headed by one (1) Chair.
One (1) Executive Director/Senior Counsel reports to the Chair.
Five (5) counsel, of which three (3) are permanent and two (2) are temporary, as well as
one (1) Manager, Administrative Services report to the Executive Director/Senior Counsel.
One (1) administrative assistant reports to the Manager, Administrative Services.

The ERC does not have authority to initiate reviews. The case review process starts when the RCMP Commissioner refers a case to the ERC. The types of cases that must be referred to the ERC are described in the RCMP Act. They include certain categories of grievances that are outlined in the RCMP Regulations, as well as all disciplinary appeals, and all discharge and demotion appeals.

When the ERC reviews a case, it examines the entire record, including all supporting documentation, the decision made, and the submissions of the parties. Where the review involves the appeal of a disciplinary decision, or a discharge and demotion decision, the transcript of the hearing, as well as any exhibits entered at the hearing, are also before the ERC. The ERC Chair may request that one or both parties provide additional information or submissions. If information is received from a party, the other party is given the chance to respond. The Chair also has the authority to hold a hearing if deemed necessary, although this option is rarely exercised. The Chair considers all of the evidence, legal issues, relevant legislation, and case law before making findings and recommendations.

The ERC Chair provides the findings and recommendations to the RCMP Commissioner and the parties involved. The Commissioner is the final decision-maker, and must consider the ERC's recommendations. If the Commissioner does not follow the ERC's recommendations, the RCMP Act requires that the Commissioner's decision include the reasons for not doing so.

The grievance, discipline, and discharge and demotion processes, and the ERCs role in each, are examined more closely below.

The RCMP Act provides that disputes involving personal rights and interests are to be resolved through the RCMP grievance process. Grievances can cover a broad range of rights and interests, from entitlements to claim reimbursement for certain expenses, to the right to work in an environment free from harassment and discrimination. Grievances represent the greatest number of cases referred to the ERC.

Five types of grievances which must be referred to the ERC for review:

1. the Force's interpretation and application of government policies that apply to government departments and that have been made to apply to members;
2. the stoppage of the pay and allowances of members made pursuant to subsection 22(3) of the Act;
3. the Force's interpretation and application of the Isolated Posts Directive;
4. the Force's interpretation and application of the RCMP Relocation Directive; and
5. administrative discharge for reasons of physical or mental disability, abandonment of post, or irregular appointment.

An RCMP officer designated as a Level I Adjudicator initially considers and decides a grievance. If the grieving member is dissatisfied with the Level I Adjudicators decision, the member may file a Level II grievance which is decided by the RCMP Commissioner or designate. Under section 36 of the RCMP Regulations, before making a decision, the Commissioner must first refer to the ERC for its review, grievances which fall under five specified categories, unless the Commissioner grants a members rare request to not do so.

When an RCMP member is alleged to have committed a serious violation of the RCMP Code of Conduct, and formal discipline is initiated, an internal hearing is held to determine whether or not the allegations are established, and if so, what the appropriate sanction will be. The matter is heard by an Adjudication Board consisting of three senior RCMP officers. If, after the Board renders its decision, either the Force or the member wishes to appeal that decision to the RCMP Commissioner, then the Appellant and the Respondent provide written submissions to the Commissioner. Unless the Commissioner grants a members rare request to not do so, the Commissioner refers the file to the ERC for its review. Once the ERC has conducted a thorough review of the file, it issues its findings and recommendations to the Commissioner and the parties involved.

A discharge or a demotion proceeding may be initiated against a member for failing to perform his/her duties in a satisfactory manner. When this happens, the member may request that a Discharge and Demotion Board, consisting of three senior officers of the RCMP, be convened to review the matter. The decision of the Board may be appealed by either the member or the Appropriate Officer who initiated the proceeding. Appeal submissions are made in writing to the RCMP Commissioner. Unless the Commissioner grants a members rare request to not do so, the Commissioner refers all discharge and demotion appeals to the ERC for its review. Once the ERC has conducted a thorough review of the file, it issues its findings and recommendations to the Commissioner and the parties involved.

In addition to case reviews, the ERC engages in other activities that support and enhance its core mandate. Outreach and communication, in a variety of forms, is an important component of its work.

The ERC publishes the quarterly Communiqué, which includes case summaries and articles on issues that commonly arise in cases.

• Referability: A discussion concerning the Committee's jurisdiction to review matters
• Standing: Recent Developments the "Standing" Requirement
• Standing: Subsection 31(1) of the RCMP Act: the "Standing" Requirement
• Time Limits: Subsection 31(2) of the RCMP Act: Time Limits
• What Makes a Good Grievance?

Other papers are listed on the ERC's website at www.erc-cee.gc.ca

The ERC also maintains a website (www.erc-cee.gc.ca) which contains, among other things, Annual Reports, Communiqué editions, an extensive searchable database of summaries of the ERCs findings and recommendations, summaries of RCMP Commissioners subsequent decisions, and the ERCs most requested articles, discussion papers and specialized reports. The ERC has received positive feedback from its website users about its accessibility and utility. In this past year, the ERC recorded 525,909 page views on its website.

The ERC provides information and training to various labour relations personnel within the RCMP. Outreach initiatives have included visits with RCMP members in detachments, National Headquarters, and Divisional Headquarters. The ERC tries to combine these visits with other travel whenever possible. During these information and training sessions, the ERC routinely addresses procedural difficulties or questions which commonly arise in grievance and appeal matters. This helps to encourage a better understanding of the importance and practical function of adhering to proper procedures.

The ERC also responds to formal and informal requests for information. In 2009-2010, the ERC received a total of 114 requests. On average, the ERC provided an answer to each request within two days. Over one-third of the requests came from the RCMP itself. Members of the public were the second largest group of requesters.

The number of requests for information received by the RCMP External Review Committee by source:
RCMP: 42
RCMP Labour Relations Personnel: 21
Public: 41
Media: 2
Other government: 7
Other: 1

The graph below illustrates the range of the general categories of requests received. Several requests were straightforward and requesters were provided with a timely response or were re-directed to the appropriate office. However, other requests were complicated and required more time and effort for a complete and accurate response. By far, the median response time was one day, indicating that a smaller number of complex inquiries were significantly time-consuming.

The number of requests for information received by the RCMP External Review Committee by subject:
Mandate: 20
Findgins and recommendations questions: 45
Other ERC documents: 15
File before ERC: 11
Case not referred: 1
Policy/Procedure: 21
Other: 1

Twenty-one cases were referred to ERC in 2009-2010: 16 grievances and 5 disciplinary appeals. The ERC received no referrals of discharge and demotion appeals this year.

The number of grievances, disciplinary appeals and discharge/demotion appeals received at the RCMP External Review Committee by fiscal year:
2005 06
Grievances: 51
Disciplinary: 10
Discharge/Demotion: 0

2006 07
Grievances: 30
Disciplinary: 4
Discharge/Demotion: 0

2007 08
Grievances: 38
Disciplinary: 3
Discharge/Demotion: 0

2008 09
Grievances: 18
Disciplinary: 4
Discharge/Demotion: 0

2009 10
Grievances: 16
Disciplinary: 5
Discharge/Demotion: 0

The ERC completed 35 cases in 2009-2010: 29 findings and recommendations were issued regarding grievances and four were issued regarding disciplinary appeals. Two cases were withdrawn before the ERC could issue its findings and recommendations. The ERC did not issue any findings and recommendations in discharge or demotion cases this year.

The number of cases completed and recommendations issued by the RCMP External Review Committee on grievance cases, disciplinary appeals and discharge/demotion appeals by fiscal year:
2005 06
Grievances: 34
Disciplinary: 4
Discharge/Demotion: 1

2006 07
Grievances: 42
Disciplinary: 5
Discharge/Demotion: 0

2007 08
Grievances: 26
Disciplinary: 4
Discharge/Demotion: 1

2008 09
Grievances: 28
Disciplinary: 3
Discharge/Demotion: 0

2009 10
Grievances: 30
Disciplinary: 5
Discharge/Demotion: 0

The chart below shows the distribution of this year's grievance recommendations by subject matter. In the last few years, travel, harassment, and relocation issues accounted for a significant portion of grievance reviews. In 2009-2010, issues relating to travel expense claims represented more than one-third of all the grievance recommendations issued. Relocation and harassment issues combined to make up almost one-third of all grievance recommendations in 2009-2010.

Pie Chart shows the distribution of grievance recommendations issued by the RCMP External Review Committee by number of cases per subject:
Relocation: 3
Harassment and related issues: 5
Miscellaneous: 4
Language: 1
SWOP: 2
Discrimination: 2
Travel: 12

This year, the ERC reviewed and made recommendations in four disciplinary appeals. All four were initiated by a member. Two involved a sanction consisting of an order to resign within 14 days or be dismissed from the Force. The other two involved the forfeiture of pay. The ERC recommended that two appeals be dismissed (D-109 and D-112), that one be allowed (D-110), and that one be allowed in part (D-111).

For grievances, the ERCs objective is to issue its findings and recommendations within three months of the case being referred to it. For discipline and discharge and demotion cases, it strives for a standard of six months. These service standards are not currently being met. The ERC continues to pursue avenues for a permanent resource allocation that will allow it to reach and sustain an acceptable review rate.

At the start of 2009-2010, 60 grievances and appeals were pending before the ERC. At the fiscal year end of 2009-2010, there were 46 cases before the ERC for review. They were distributed as follows:

• 34 pending grievances;
• 12 pending disciplinary appeals; and
• 0 pending discharge and demotion appeals.

This reduction in the number of pending cases signals a move toward a shorter delay for cases before the ERC. If this trend continues, the ERC will reach the point where its turn-around rate will be reasonable. However if the relatively small number of cases that reach the ERC ever surges at once, the delays will again increase significantly. This occurred one year when the ERC received 30 cases more than it received historically and it created lengthy delays in the processing of all subsequent cases.

In addition to its case review function, the ERC must meet every statutory obligation required of all departments in the Public Service. The ERC is fully committed to delivering on its mandate, while ensuring compliance with legislation and policy.

The ERC's workload includes disproportionately significant reporting and corporate requirements. The ERC has few staff members who are involved in the collection, analysis and reporting of its corporate data to the central agencies that oversee the various aspects of management. As a result, these staff members are called upon to become the ERCs subject matter experts for a number of different areas including procurement, finance, human resources and knowledge management. These staff members assume many roles to address corporate management demands in order to meet the same reporting requirements of large departments and agencies. The ERC also uses a variety of external consultants to ensure that it thoroughly meets all of its obligations. Given the ERCs small size and budget, these reporting pressures take combined human and financial resources away from the case review process.

As a quasi-judicial tribunal, when reviewing grievances and appeals, the ERC applies the rule of law and is guided by the principles of fairness, impartiality, independence, and transparency, not unlike a court of law. The ERC is a recommending body. It issues findings and recommendations the same way that an adjudication body issues decisions.

The following sections highlight some of the grievances and disciplinary appeals that the ERC reviewed this year. As of March 31, 2010, the RCMP Commissioner had not issued decisions in these cases.

The ERC reviewed several grievances involving alleged failures to properly handle or investigate harassment complaints. These cases suggest that there is sometimes uncertainty about what does -and what does not constitute harassment, as defined in the Treasury Board's Policy on Prevention and Resolution of Harassment in the Workplace, and in the RCMP's Policy on Internal Conflict and Harassment in the Workplace. The cases also indicate that there may also be some uncertainty over when and how the Force should conduct harassment investigations, as well as what constitutes an adequate investigation. The ERC made recommendations that attempt to address these issues.

In G-474, after numerous exchanges, the Grievor expressed his frustration with a grievance administrator (GA) in an email to the GA. The GA complained that the email constituted harassment. The Respondent agreed. The Grievor grieved the Respondent's finding of harassment.

The ERC found that the Grievor's email was abrupt and inappropriate, but that it did not meet the definition of harassment. Applying the test set out in Treasury Board and RCMP harassment policies, it concluded that a reasonable observer would not have found the email to be offensive, profane, or intimidating, and that the situation as a whole was instead one of workplace conflict. The ERC recommended that the RCMP Commissioner allow the grievance and rescind the finding of harassment.

In G-479, the team investigating the Grievor's harassment complaint interviewed 17 witnesses, the majority of whom contradicted the Grievor's claims. The Respondent determined that the situation was not one of harassment. The Grievor grieved this decision. She alleged that the investigators lacked proper training and failed to correctly describe her complaint to witnesses. She also alleged that the Respondent did not understand the complaint or consider all of the evidence. The Grievor ultimately felt that the investigation was not conducted fairly, and that the resulting decision was inappropriate.

The ERC found that there was nothing improper about the investigation, and that it was neutral and thorough. The key people were interviewed, and each interview focussed on the issues that were most important to the harassment complainant. Furthermore, the Respondent considered and weighed the totality of the evidence. Nothing suggested that his conclusions were unreasonable, or that the investigators failed to meet training requirements under policy. The ERC recommended that the RCMP Commissioner deny the grievance.

In G-482, the Grievor filed an harassment complaint alleging that, over a two-year period, he had been subjected to improper performance reports, punitive transfers, unnecessary fitness for duty assessments, retaliatory discipline proceedings, and an unwarranted Off-Duty Sick placement. The individuals who reviewed the complaint advised the Respondent to ask the Grievor for more information before making a determination. However, the Respondent did not do this. Instead, he determined that none of the conduct complained of met any of the quite specific definitions of harassment contained in Force policy. He accordingly decided to not investigate the complaint. The Grievor grieved the Respondents determination and decision.

The ERC found that the Respondent failed to handle the harassment complaint in accordance with policy. It explained that the Respondent should not have reached a determination without first meeting with the Grievor and seeking additional information. It further noted that the definition of harassment is quite broad, and that if the Grievors allegations were found to be true, they could fall within that definition, and particularly within the definition of abuse of authority, which is specified as a type of harassment. The ERC therefore found that the Respondent did not have a good reason to refuse to initiate an investigation. It recommended to the RCMP Commissioner that the grievance be allowed, and that the complaint be dealt with according to policy.

In G-483, the Grievor grieved the Respondents determination that the Grievors harassment complaint against her supervisor was unfounded, and that the situation was instead one of workplace conflict.

The ERC noted that the Respondent did not follow the process for investigating and determining harassment complaints, as set out in RCMP policy. The ERC found that the Respondent was not authorized to determine the harassment complaint. Rather, the complaint should have been forwarded to the Human Resources Officer, who, in turn, advises the Commanding Officer, who determines the matter. The ERC recommended that the RCMP Commissioner allow the grievance, and that the file be returned to the appropriate delegated manager for a full review by an authorized person.

In G-489, the Grievor filed an harassment complaint alleging that a Health Services Officer (HSO) repeatedly harassed him and tried to bully him into releasing medical information, and that the HSO overstepped his authority by recommending administrative discharge. The Respondent rejected the Grievors complaint despite never speaking to him about it, and despite the fact that his claims were not refuted. In her view, no investigation was required because the alleged harassment involved the proper enforcement of RCMP standards.

The ERC did not agree with this conclusion. It found that the Respondent breached the harassment policy by failing to initiate an investigation. The ERC pointed out that allegations centred on administrative actions do not necessarily rule out the possibility of harassment because harassment can consist of a series of administrative decisions. The ERC felt that it would have been important to know more about the context in which the alleged harassment took place. It found that a full investigation should have been ordered. The ERC also acknowledged that, given some of the Respondents comments and her professional relationship with the HSO, there was an appearance that she may not have been fully objective in her review of the harassment complaint.

The ERC re-emphasized that the discretion to decide to not investigate an harassment complaint should be exercised very carefully and only in the most exceptional cases.

It recommended that the RCMP Commissioner allow the grievance and, due to the passage of time, apologize to the Grievor for the way in which his complaint was handled.

A members right to grieve is subject to statutory limitation periods. Subsection 31(2) of the RCMP Act provides that those limitation periods are mandatory. Nevertheless, s.47.4(1) of the Act enables the RCMP Commissioner to extend, or to retroactively extend, such time limits if he or she is satisfied that circumstances justify an extension.

The ERC has dealt with this issue on several occasions. Historically, it has found, and the Commissioner has agreed, that an extension may be granted where, for example:

• there was a clear intention to submit a grievance before the time limit expired;
• the Grievor was given confusing or inaccurate information;
• the Grievor had an honest belief that the decision was going to be reopened;
• the case raised an issue of broad implication for the Force; and
• there was confusion as to the commencement of the time limit, and the delay was not significant and did not cause the Respondent prejudice.

This year, the ERC considered four grievances which raised questions surrounding the extension of statutory time limits.

In G-465, the ERC recommended to the RCMP Commissioner that he retroactively extend the Level I time limit for filing a grievance. Upon a Staff Relations Representatives (SRR) instructions, the Grievor, a retired member, gave his grievance form to the SRR, who in turn had promised to submit it for him. The SRR filed the grievance after the 30-day statutory time limit had expired despite having received it before that time.

The ERC found that giving a grievance to an SRR does not meet the statutory filing requirement, and that a Grievor cannot successfully argue that a grievance was filed late because he was unaware of policy. However, it recommended that the RCMP Commissioner retroactively extend the time limit as it was clear that the Grievor intended to grieve within the limitation period, and that the late filing was largely outside of his control. It also found that the delay was minimal, as was any prejudice that it may have caused.

In G-471, the Grievor did not grieve the Force's decisions to reduce his expense claim by 25%, and to decline to pay him overtime, until six months after learning of those decisions. The Grievor argued that he submitted the grievance late, in part, because he had spent a considerable amount of time trying to informally resolve the matter.

The ERC found that while attempts at alternative dispute resolution are desirable, they do not justify the extension of a statutory time limit. It therefore concluded that the grievance was not submitted on time and that an extension was not warranted in the circumstances.

In G-488, the Grievor requested that the Force reimburse his legal expenses associated with his suspension and underlying Code of Conduct and Criminal Code investigations. After his request was denied, the Grievor sent repeated requests to the Respondent to reconsider his decision. The Respondent refused since there was no new evidence to warrant a review of the original decision. The Grievor did not file a grievance until three months after learning of the original decision, after the statutory time limit had expired.

The ERC comprehensively reviewed the jurisprudence in this area, including a key decision of the Federal Court of Canada in Canada (Attorney General) v. Pentney, [2008] FCJ No. 116. The ERC found that a retroactive extension would not be justified in this case. It reasoned that the Grievor did not answer requests for explanations of the delay; the delay was significant, particularly because it was unexplained; the Force did not appear to contribute to or cause any of the delay; and the Grievor did not actually request an extension. The ERC recommended that the RCMP Commissioner deny the grievance.

In G-484, the Grievor alleged that he submitted his Level II grievance late because he was on annual leave when the filing deadline passed. The ERC found that this was not a sufficient rationale to justify an extension under s.47.4 (1) of the Act. However, since many grievances concerning the same issues had come from the same division, it also found that the issues raised by the Grievor were of general importance to the RCMP as a whole. The ERC recommended that an extension be granted on that basis.

The RCMP provides policing services in hundreds of northern, coastal or otherwise remote areas which are formally known as isolated posts.

The National Joint Councils Isolated Posts and Government Housing Directive (IPGHD) provides that members who serve at isolated posts are generally entitled to receive Vacation Travel Assistance (VTA). These benefits are basically payments designed to help members cover certain types of vacation travel expenses that are incurred as a result of serving at an isolated post.

VTA is critical to members at isolated posts, as the costs of travelling to and from their postings are exceptionally high. Additionally, challenging conditions at isolated posts, such as harsh weather, unrelenting demands and minimal support, can make getaway vacations essential to a members well-being.

In 2009-2010, the ERC reviewed a number of grievances involving disputes over the calculation of VTA benefits. The following is a summary of some of its key findings and recommendations.

G-480 involved a Grievor who served at two separate isolated posts in one fiscal year. They were located in different regions and had different VTA entitlements. The IPGHD provided for two VTA benefits per fiscal year at the first post, but just one per year at the second post. He took one vacation while at each post, and claimed VTA for both. His first claim was allowed. The Respondent refused to authorize the second claim.

The Grievor thought that he was entitled to two VTA payments in one fiscal year. The Respondent felt that the Grievor was entitled to VTA just once per fiscal year. The parties relied upon the same section of the IPGHD, which they construed differently.

The ERC found that both interpretations were equally plausible. It referred to a prior case where it stated that if there is more than one plausible way to apply [IPGHD provisions] to the facts I suggest that the Force choose the application that is most beneficial to the member in the isolated post. It noted that its approach met the IPGHD's stated aim: to facilitate the recruitment and retention of staff delivering government programs in isolated locations. It also felt that the approach was reasonable in light of the hardships, sacrifices and costs associated with serving at isolated posts, as per the findings of the Brown Task Force on Governance and Cultural Change in the RCMP.

The ERC recommended that the RCMP Commissioner allow the grievance and order a specialist review of the Grievors claim to determine if all other policy requirements were met. It further recommended that a clarification be circulated to members if the current version of the IPGHD contained a provision similar to the disputed one in this case.

G-470 serves as an interesting contrast to G-480. In this case, a Grievor at an isolated post took more than one family vacation during a fiscal year. He alternated VTA claims for different family members so that he could be reimbursed multiple times. This was apparently a standard practice at his post for a while. The ERC found that, despite the IPGHD's above-noted expressed objective, that authority could not reasonably be construed to entitle the Grievor to receive VTA benefits for more than one trip in the same fiscal year. It recommended that the RCMP Commissioner deny the grievance.

In G-484, the Grievor believed that the Treasury Board had undervalued the rate of VTA at his isolated post, contrary to the section of the IPGHD under which that rate was established. The Respondent claimed that he discussed the issue with the Treasury Board. The Treasury Board revised certain VTA rates, yet the rate at the Grievors post stayed the same. The Respondent confirmed that the rate was correct. However, he did not reply to requests for a rundown of his meeting(s) with the Treasury Board.

The Grievor maintained that the rate of VTA at his isolated post was flawed. He also expressed doubts that the Respondent had raised his concern with the Treasury Board.

The ERC opined that the Grievor had assembled a compelling case for demonstrating that the disputed VTA rate was too low. It nonetheless found that he did not have standing to grieve this issue, as only matters involving a decision, act or omission made in the administration of the Forces affairs are grievable. By law, only the Treasury Board could set or amend VTA rates.

However, the ERC noted that it was one of the Respondents duties to raise the Grievors VTA-related concern with the Treasury Board. It found that an alleged failure to do so could amount to a grievable omission by the Force. It then concluded that the Grievor had not established this purported omission. The record illustrated that the Respondent engaged the Treasury Board about the disputed rate of VTA. Moreover, the Treasury Boards failure to change that rate did not, in and of itself, prove that the Respondent neglected to address the Grievors concern.

The ERC recommended that the RCMP Commissioner deny the grievance. It commented that the Respondent should have handled the matter more openly, given the spirit of the IPGHD.

Lastly, in G-473, the ERC reviewed the Forces refusal to process the Grievors full VTA claim, despite having allowed similar claims in the past. The Force asserted that the Grievor did not seek costs in compliance with a modified version of the IPGHD. The Grievor argued that the RCMP failed to orient him to the revised IPGHD, contrary to an explicit requirement under that authority. He felt that fairness, as well as a Force Compensation Bulletin, entitled him to receive his full claim.

The ERC did not agree with the position that the Force had to process the Grievors full claim, and possibly ignore the IPGHD in so doing. It found that the Grievor was aware that a revised IPGHD had taken effect before travelling. It also explained that members were expected to familiarize themselves with directives which applied to them. The ERC pointed out that, unlike some prior cases, there was no internal Compensation Bulletin in effect to support a full reimbursement.

The ERC then found that the Force had not met its duty to provide orientation sessions about the revised IPGHD. It recommended that the RCMP Commissioner partly allow the grievance on that basis. It also recommended that mechanisms be put in place to properly and fully inform all members at isolated posts about policy requirements, entitlements and key changes to them.

This year, the ERC issued findings and recommendations in three grievances involving issues surrounding pre-authorization to travel. While the facts of the cases vary, the key message is that, in accordance with relevant policies, unless there are special circumstances, travel expenses will not be approved without proper pre-authorization.

In G-468, the Grievor obtained written pre-authorization to travel. The authorization did not specify the mode of transportation to be used. The Grievor used his own car and later submitted a claim for reimbursement for travel expenses based on the number of kilometres travelled. He argued that using his private vehicle was the most efficient mode of transportation in the circumstances.

The Respondent refused to approve the reimbursement, and the Grievor grieved this decision.

The ERC analysed the applicable government and RCMP travel policies. It found that, in accordance with policy, the employer could choose the mode of transportation, and that the selected mode of transportation should generally be the one which is most economical and efficient. It cited its findings in G-295 to G-298 to highlight that [Translation] there are no circumstances where an employee can disregard an employers decision regarding the mode of transportation to use even where the employee believes that decision to be ill-advised. The ERC accordingly recommended that the grievance be denied.

In G-472, the Grievor had to travel a considerable distance to another city to appear as a police witness in court a task that is considered to be administrative. He felt that the impending trip was a good travelling opportunity for his family, and proposed to use his own car. The Respondent advised him by email that the Force would reimburse only a very small portion of his planned mileage expense. The Grievor did not reply to the Respondent, and the Respondent never signed the submitted travel authorization form. The Grievor proceeded to travel in his own car.

Upon his return, the Grievor filed an expense claim which included a per kilometre allowance. The Respondent did not allow the claim. Rather, he modified it to cover the reimbursement of the estimated round-trip cost of the Grievor's fuel as well as an incidental payment. He felt this was consistent with policy, and reasonable in the circumstances. The Grievor grieved.

The ERC noted that the Grievor decided to use his own car even though he knew that he did not have permission to do so. In the ERC's view, the Respondent's decision to reimburse the Grievor on the calculation of expenses as if he had used the most overall economical and expedient means was both reasonable and in accordance with policy. It therefore recommended that the grievance be denied.

In G-486, an HSO ordered the Grievor, who was Off Duty Sick (ODS), to attend a medical appointment in another city. The Grievor informed his immediate supervisor of the event before attending it, however he did not receive express approval. He proceeded to his appointment using his private vehicle. He subsequently submitted a travel expense claim for mileage and a lunch allowance. The Respondent denied the claim and limited any reimbursement to gas and meals. The Grievor grieved.

The ERC found that travel for ordered medical reasons was administrative travel to be reimbursed under policy. Although the policy stated that such claims must be pre-authorized, the ERC noted that there were special circumstances in this case. Specifically, the Grievor gave his immediate supervisor advance notice about the trip, and the supervisor would have known that the Grievor was required to make the trip, given that he was ordered to attend the HSO appointment. On that basis, the ERC recommended that the Grievor not be penalized for travelling without pre-authorization.

Nevertheless, the ERC ultimately found that because the Grievor did not have permission to use his own car, the Respondent was justified in refusing part of the claim. It found that he was reasonable to offer reimbursement for gas and lunch since the Grievor would have incurred those costs if he had used one of the Force's cars. The ERC recommended that the grievance be denied, but that the Grievor receive gas and lunch costs, as per the Respondents offer.

It further recommended that the RCMP Commissioner order a review to ensure that methods are in place to inform members on ODS status of the policy requirements for travel to medical appointments ordered by the Force. It also recommended that such a review ensure that methods are in place to advise personnel about the proper way to process these travel expense claims.

As part of its mandate, the ERC reviews appeals from decisions of RCMP disciplinary adjudication boards (Boards) to ensure that the hearing process was fair, and that the Board did not err in making its findings. Boards are required to hold hearings to decide whether an allegation of misconduct has been established, and if so, the sanction that should be imposed. In doing so, Boards are required to act fairly. This obligation arises from Common Law principles of fairness, as well as from specific provisions in the RCMP Act. In particular, subsection 45.1(8) requires that parties to a hearing be given full and ample opportunities to be represented, to present evidence, to cross-examine witnesses, and to make representations.

Where allegations are established, a Board imposes sanctions which can range from a reprimand to dismissal from the Force. In deciding on an appropriate sanction, a Board will assess many factors, including sanctions imposed in similar cases, and a members prior discipline record.

In 2009-2010, the ERC examined a number of important issues in its review of four disciplinary appeals. These issues included the scope of the Appropriate Officer's (AO) disclosure obligations; the Boards obligation to provide clear reasons for its decision; the ERC's deference to a Boards findings of credibility; the ERC's deference to decisions on sanction; the principle of parity of sanction; and the doctrine of culminating incident.

In D-109, the ERC examined the scope of an AO's ongoing duty to disclose material to a member who is subject to a formal disciplinary hearing. The material in the AO's possession was not relevant to the allegations against the Appellant Member. However, it became relevant when the Appellant Member brought a motion to stay the proceedings. The Board found that an AO's disclosure obligation relates only to information relevant to the merits of the case, not to information relevant to a procedural motion.

The ERC disagreed. It emphasized that in cases of professional discipline where the right to continue in one's profession is at stake, a high standard of disclosure is required. The ERC found that the Board should have ordered disclosure of the information that was in the AO's possession and relevant to the Appellant Member's motion.

Boards often read an oral version of a decision to the parties at a hearing, and later issue a final written version of that same decision. Discrepancies between the two versions sometimes occur, and can become problematic where they are significant.

In D-111, a Board's oral decision and subsequent written decision pertaining to sanction were significantly different. For example, the oral decision contained a description of the discipline process and a discussion on leadership, neither of which appeared in the written decision. The oral decision also did not specifically list mitigating and aggravating factors, whereas the written decision did. Further, the two decisions seemed to contain different conclusions as to whether a failure to apologize was an aggravating factor.

The ERC found that the written decision substantially changed the reasoning for the sanction. This situation was procedurally unfair, as it would create a concern that the parties would not be able to determine the basis for the decision with any degree of certainty. The ERC recommended that the RCMP Commissioner allow the appeal on sanction, and conduct his own review for the purpose of making a new sanction decision.

In D-109, the ERC reiterated the longstanding principle that it will give considerable deference to credibility findings made by a Board. In this case, the Board found two allegations of disgraceful conduct to be established. Its findings were partly based on the testimony of a complainant, even though that complainant was found to have been deceitful to others in the past. The ERC did not accept the Appellant Members argument that the Board had erred in relying on certain parts of the complainants evidence. The Boards reasons showed that it had turned its mind to the issue of the complainants credibility. The Board specifically acknowledged that the complainant had lied to others, and it chose to not accept certain parts of her testimony.

The ERC also examined the Appellant Members argument that another witness had contradicted part of the complainants testimony which had been accepted by the Board. The ERC acknowledged that the two versions differed slightly with respect to an event that had occurred. However, it found that the differences were isolated and that the testimonies were otherwise relatively compatible. In the ERCs view, the minor contradictions raised by the Appellant Member were insufficient to cast doubt on the Boards credibility findings.

The ERC also attaches a certain degree of deference to decisions on sanction. In D-110, the ERC observed that it generally will not recommend that the sanction imposed by a Board be overturned on the sole basis that its own objective assessment of the facts leads it to a different result. Rather, it might only intervene in circumstances involving an error of principle, a failure to consider relevant and important mitigating factors, a consideration of irrelevant aggravating factors, or a result in which the sanction is clearly disproportionate.

The principle of parity of sanction generally means that a penalty should not represent a departure from an established pattern of discipline. In D-111, the ERC applied the principle in its finding that a less severe sanction than that imposed by the Board was warranted. It reviewed the cases on the record in support of sanction, and found that lesser sanctions had been imposed in those which most resembled the Appellant Members case. The ERC recommended that the RCMP Commissioner reduce the sanction.

However, in D-112, the ERC also recognized that in some cases, an existing pattern of discipline may not be readily identifiable. In this case, a Board found that the decisions which were submitted to support arguments on sanction did not contain fact patterns sufficiently similar to that of the matter it was considering. The ERC agreed that, in such a case, the Board could only impose a sanction based on the evidence before it.

In D-112, the Appellant Member argued that the Board erred in applying the doctrine of culminating incident when it ordered the Appellant Member to resign within fourteen days or be dismissed. This doctrine provides that an employer may consider an employees entire disciplinary record, and that an employee may be dismissed for repeated misconduct even if the final, or culminating incident is not serious enough to merit dismissal on its own. The Appellant argued that the doctrine did not apply because there was a gap of seven years between his last misconduct and the present incident.

The ERC found that the criteria for applying the doctrine of culminating incident were met in this case. The Appellant had a record of prior discipline. He had been put on notice that further misconduct would result in disciplinary action. Moreover, there was a final incident of misconduct meriting discipline. The ERC therefore found that the Board did not err in applying the doctrine.

The ERC noted that although seven years had elapsed between the prior discipline and the culminating incident, there was a history of misconduct with a very identifiable pattern of aggressive/threatening conduct linked to alcohol, which was a relevant factor in determining sanction. The ERC recommended that the RCMP Commissioner dismiss the sanction appeal.

An RCMP Adjudication Board found that the Member, who attempted to defraud an insurance company, engaged in disgraceful conduct. It directed the Member to resign from the Force within fourteen days or be dismissed. Following its review, the ERC endorsed this sanction, as did the RCMP Commissioner.

The Member filed an application with the Federal Court of Canada (FCC) for judicial review of the RCMP Commissioners decision on sanction.

On January 8, 2010, the FCC issued its decision to quash the RCMP Commissioners decision, primarily on the basis of what it found was the insufficient weight given to an experts evidence at the Board hearing. The FCC found this evidence to be absolutely essential to the case, in view of the experts qualifications and the credibility that the RCMP had accorded to her over an eighteen-year period. The FCC noted that both the ERC and the Commissioner acknowledged concerns about the Board's treatment of this experts evidence, yet they went on to hold that the error did not affect the outcome of the case.

The FCC granted the Member's judicial review application. It directed the RCMP Commissioner to convene a new Board in an expeditious but reasonable manner to decide the matter of the sanction.

In March 2010, the FCC decided that the Treasury Board, and not the RCMP, has jurisdiction to deal with requests by members for Leave Without Pay (LWOP). This decision is very briefly summarized below.

Upon returning from an international secondment, the Grievor asked for LWOP so that he could take another international secondment. The RCMP rejected his request. It relied on an internal directive which limited LWOP to exceptional cases due to a severe lack of human resources.

The Grievor filed a grievance. A Level I Adjudicator dismissed it for reasons which the ERC found insufficient. The ERC concluded that applicable LWOP authorities neither created an entitlement to LWOP, nor prevented the Force from issuing a directive that LWOP be granted only in exceptional cases. It also found that the Grievor's request for LWOP did not meet the requirement of being exceptional. It recommended that the RCMP Commissioner deny the grievance.

The RCMP Commissioner followed the ERCs recommendation. The Grievor applied to the FCC for judicial review of the Commissioners decision.

The FCC framed the issue as follows: does the Treasury Board or the [RCMP] have jurisdiction to deal with leave without pay requests by [members]? It held that since the issue turned on a question of law, the RCMP Commissioners decision had to be reviewed on a standard of correctness.

It deduced from the Financial Administration Act, and prior Federal Court jurisprudence, that members are employees of Her Majesty, and that Her Majesty's functions are delegated to the Treasury Board in respect of the Force, unless otherwise expressly assigned by legislation.

The FCC held that the Treasury Board retained power over LWOP since no express legislation in the RCMP Act ... takes away from the Treasury Board its powers respecting [that power]. It also held that nothing in the Treasury Boards policy statements were sufficiently accessible and precise to remove that power from the Treasury Board, or to ascribe it to the Force.

The FCC set aside the RCMP Commissioner's decision for lack of jurisdiction, with costs to the Grievor. It did not return the case to the Commissioner, given its finding that he lacked jurisdiction to decide it.

The Attorney General of Canada has given notice that it will be appealing the FCC's decision.

[ Process and role in grievances - text description of image ]

[ Process and role in discipline - text description of image ]

[ Process and role in discharge and demotion - text description of image ]

The RCMP External Review Committee (ERC) was created in response to recommendations in the 1976 Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure Within the Royal Canadian Mounted Police. In 1986, as part of the Commissions call for an independent review mechanism in the area of labour relations within the RCMP, the ERC was formally established through Part II of the Royal Canadian Mounted Police Act. It became fully operational by 1988.

The first Chair of the ERC was the Honourable Mr. Justice René Marin, who from 1974 to 1976 had chaired the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure Within the Royal Canadian Mounted Police. In 1993, the Vice Chair, F. Jennifer Lynch, Q.C., became Acting Chair, a position she held until 1998. Philippe Rabot then assumed the position on an acting basis and, on July 16, 2001, was appointed Chair of the ERC.

Upon Mr. Rabot's departure in April 2005, Catherine Ebbs assumed the role of Acting Chair of the ERC. A member of the Bar of Saskatchewan, Ms. Ebbs was a member of the National Parole Board for sixteen years, the last ten as Vice-Chair in charge of the Appeal Division of the Board. Ms. Ebbs joined the ERC in 2003, serving as Legal Counsel, and then as Executive Director/Senior Counsel, before becoming Acting Chair.

Ms. Ebbs was appointed as full-time Chair on November 1, 2005, for a three-year term. She was reappointed on November 1, 2008, for a second three-year term.

The ERC produces a wide variety of research publications and reference materials, all of which are available to the RCMP and the general public at www.erc-cee.gc.ca.

Catherine Ebbs, Chair
David Paradiso, Executive Director and Senior Counsel
Lorraine Grandmaitre, Manager, Administrative Services and Systems
Virginia Adamson, Counsel
Josh Brull, Counsel
Jean-Jacques Desgranges, Counsel
Martin Griffin, Counsel
Jill Gunn, Counsel
Janet Reid, Counsel
Caroline Verner, Counsel
Jonathan Haig, Administrative Assistant

1. *

   Includes secondments

P.O. Box 1159, Station B
Ottawa, Ontario
K1P 5R2

Telephone: 613-998-2134
Fax: 613-990-8969

E mail: org@erc-cee.gc.ca
Internet site at: www.erc-cee.gc.ca