Grievance Case Summary - G-234

The member made a request to obtain the services of a lawyer to represent him during the Coroner's public inquiry into the circumstances surrounding the death of a woman whose body had been retrieved from a river. The member was one of the last persons to have seen her alive. His request was rejected for the reason that the Department of Justice had found that he had not met the eligibility criteria set out in the Royal Canadian Mounted Police's Administration Manual, i.e., "if the employee was acting beyond the scope of his/her duties, he/she is not entitled to legal counsel at public expense." Consequently, the member submitted a grievance. He also requested to have access to the request for study by the Department of Justice and their written opinion as to his eligibility for the services of counsel at government expense and any other documents that related to the internal investigation.

Two years went by before a Grievance Advisory Board (GAB) was able to meet to review this grievance. The majority of the GAB found that the grievance should be denied because the member had not shown that he had acted within the scope of his duties or responsibilities, in conformity with the RCMP's expectations. The dissenting member of the GAB found that the grievance should be allowed because, essentially, he believed that the RCMP had an obligation to establish that the member was not acting within the scope of his duties. The member received the GAB's reports and asked for a period of three months to prepare his reply. He was granted a one-week period, but the Level I arbitrator had already made his decision.

The adjudicator rejected the grievance for the reason that the member had not shown that his actions could be considered as being part of his duties. The member presented his grievance at Level II. He asked how the adjudicator could have made a decision without having reviewed all the files in this matter.

On July 27, 1999, the ERC issued its findings and recommendations. The Committee agreed with the point made by the GAB's majority report to the effect that the member was best placed to describe his actions and explain his perception that his actions could reasonably be considered within the scope of his duties. Although there may well have been pertinent documents that the RCMP ought to have made available to the member, the member himself was not very talkative. Not having the documents requested did not prevent him from explaining the facts surrounding his meeting with the woman who died shortly afterward. It was the member's responsibility to explain why he had met this woman and how this was part of his duties. Therefore the Committee recommended that the Commissioner reject this grievance.

As well, the Committee found that it was not reasonable to take such a long time (almost three years) to establish a GAB to review this grievance. The Committee also found that not having given the member more than a few weeks to respond to the GAB's report was unreasonable, especially in view of the difficult circumstances the member was experiencing at the time. The principle of audi alteram partem requires that the member have a right to respond. The Committee therefore also recommended that light should be shed on the reasons that the Level I adjudicator had not waited for the member's response to the GAB's report before making his decision despite the fact that an extension had been granted.

On September 10, 1999, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:

The Commissioner concurs in the findings and recommendations of the External Review Committee (ERC). The Commissioner acknowledged that the Officer in charge, Administration and Personnel had acted unreasonably in refusing the member's request for documents other than the legal opinions, and in this regard, he emphasized subsection 31(4) of the RCMP Act. Regarding the payment of legal fees, the Commissioner noted that it is the taxpayers who are called upon to pay legal fees, and he emphasized the importance that had to be accorded to the perception that taxpayers may have of the actions of members of the RCMP. In denying the grievance, the Commissioner took into consideration the fact that no evidence demonstrated the nature of the member's involvement in the incident, nor showed that he was acting within the scope of his duties at the time. The Commissioner added that he found the time it had taken the division to deal with the grievance to have been too long and he indicated that he would ask the Director of Human Resources to advise the divisions in this regard. The Commissioner also asserted that he would obtain an explanation for the fact that the Level I decision had been rendered before the member had been able to avail himself of the extension of time he was given within which to respond to the report of the GAB.