Grievance Case Summary - G-339

The Grievor was criminally charged with sexual assault, extortion and breach of trust following a criminal investigation by the RCMP. The charges went to trial but the Grievor was acquitted. Later, a disciplinary hearing was held as well in relation to the same incidents but it was determined that he had not engaged in any misconduct. The Grievor then made a request to the Force that it reimburse the legal expenses that he had incurred for his criminal trial. The Force refused but a Level I grievance decision subsequently determined that the Grievor was entitled to the reimbursement of his legal expenses. However, the adjudicator declined to grant the Grievor's request for payment of interest, stating that he would have to raise this matter directly with the Force. The adjudicator also declined to address the Grievor's request that he be provided with written apologies from various members who had been involved with the investigative process as well as financial compensation. The request for such measures along with payment of interest was then presented by the Grievor directly to the Force. However, his request was denied which led to a new grievance on his part. The Level I adjudicator issued a ruling which granted standing to the Grievor to raise the matter of interest payment but not the other measures sought as they had been addressed by the previous grievance decision. The Grievor then filed a Level II grievance for the purpose of challenging that ruling. The Level II adjudicator before whom that grievance was presented determined that he did not have jurisdiction to hear it since part of the grievance was still before the Level I adjudicator. However, he offered the Grievor an opportunity to make a written submission on all of the issues and indicated that the submission should then be referred to the RCMP External Review Committee. In that submission, the Grievor complained that the criminal and disciplinary investigation process had been marred by bad faith and negligence.

The grievance cannot be adjudicated at Level II until there has been a decision at Level I on the issue of interest payment because the RCMP Act indicates that the only time at which a Level II grievance may be filed is after the Level I decision has been issued. Only then will the Grievor be entitled to seek a decision from a Level II adjudicator as to whether he has standing to challenge the Force's refusal to grant the corrective measures sought. However, given that the grievance has been outstanding for several years, the Committee deems it appropriate to express its views on the issues raised by the Grievor. The matter of interest payment cannot be considered in the absence of specific legal authority for such an expenditure. Treasury Board policy does not appear to provide for interest payment unless made pursuant to the terms of a contract. The Grievor has standing to grieve the refusal of the corrective action sought with the exception of the decision to deny his request for a criminal investigation concerning a person who is not employed by the RCMP. That particular decision is beyond the scope of what may be addressed by a grievance as it is not a matter within the administration of the affairs of the Force. The Level I adjudicator erred in finding that the previous grievance decision constituted a final determination of whether the other measures sought could be granted. All that the previous adjudicator had determined was that the measures bore no relevance to the decision that was then being grieved, i.e. the refusal to reimburse the Grievor's legal expenses. However, the evidence in the grievance record is insufficient to support a conclusion that the investigative process was tainted by bad faith or negligence and that the corrective measures sought by the Grievor would therefore be appropriate.

Consideration of the grievance at Level II should be deferred until such time as the Level I decision has been issued.

The Acting Commissioner's decision, as summarized by his office, is as follows:

The [Acting] Commissioner concurs with the ERC that the Grievor should not have been advised to file a Level II grievance prior to receiving the Level I decision on the merits of paying interest as part of the reimbursement of his legal fees. Pursuant to s. 31(2)(b) of the Act, a Level II grievance can be presented after the Level I adjudicator's final decision, not after an interlocutory ruling. The Level I adjudicator concluded that the Grievor had standing to challenge the decision not to pay interest as part of the reimbursement of his legal fees. The decision on standing amounts to an interlocutory ruling. It is the Level I adjudicator's ruling on the merits of paying interest as part of the reimbursement that will constitute the final decision on this issue at Level I.

The [Acting] Commissioner also considers it inappropriate to have split the grievance submissions. The two issues, namely the four corrective measures and the reimbursement of interest, should form a single grievance. The Appellant's right to challenge the Level I ruling on this one grievance may be exercised only once final decisions have been rendered on both issues.

Consideration of the grievance at Level II is therefore deferred until such time as the Level I final decision on the grievance has been issued.