Grievance Case Summary - G-342

The Assistant Chief Human Resources Officer ordered that a member stop receiving his pay and allowances as a result of an allegation that he had created and passed false documents in an effort to prove that a vehicle that was involved in an accident was insured at the time. The incident resulted in the member being charged with a violation of a provincial statute but no criminal charge was laid. The Force also launched a disciplinary investigation. The member grieved the decision on the grounds that the proceedings to stop his pay and allowances had not taken place in a timely manner and that the decision violated Force policy which states that stoppage of pay and allowances is not to be ordered when only violation of a provincial statute is involved and not a serious criminal matter. The Level I adjudicator denied the grievance. He stated that Force policy allowed for stoppage of pay and allowances any time there is an allegation that the member violated the Code of Conduct, as was the case here.

Treasury Board appears to have engaged in an unlawful sub-delegation of regulation-making authority by leaving it up to the RCMP to establish the criteria under which stoppage of pay and allowances may be ordered. The proceedings concerning the Grievor unfolded within a reasonable time frame. However, the order to stop his pay and allowances violates the Force's criteria because he was not charged with any criminal offence. The fact that he was made the subject of disciplinary proceedings is not an adequate justification for the order.

The grievance should be allowed.

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

With respect to his decision of July 2004 on grievance G-320, the Commissioner commented that only a court of competent jurisdiction has authority to declare the Stoppage of Pay and Allowances Regulations invalid and of no force or effect generally. He agreed with the ERC that in a particular case, he has authority to consider the issue, although the Regulations would continue in effect despite a finding of invalidity.

In the Commissioner's view, the question whether the Regulations are valid is more properly debated outside the context of the grievance process. To this end, he has already ordered a complete review of the Regulations and related policy, which is well underway, and includes consultations with Treasury Board Secretariat.

For the purposes of the present grievance, the Commissioner presumed that the Regulations were valid and decided the matter on the merits. He referred to policy at AM X.II.5.D.9 which states that "[s]toppage of pay and allowances will only be invoked in extreme circumstances when it would be inappropriate to pay a member" [emphasis added]. The Commissioner concluded that the grievance should be upheld because the circumstances of this case were not so extreme as to justify the decision to stop the member's pay and allowances.