Grievance Case Summary - G-353

The Grievor was suspended with pay for suspected involvement in weapon offences with two accomplices. A number of months later, he was charged with 13 Criminal Code offences ranging from transferring ammunition with no authority or authorization to do so to possessing prohibited devices without a licence. An Order to Stop Pay and Allowances was issued.

The Committee found that the matter was moot. The member had been reinstated following a July 2005 decision of an Adjudication Board, and therefore his pay and allowances were to be repaid from the date of the original Order. Nevertheless, the Committee recommended to the Commissioner that he consider the grievance, given that the Grievor had raised several issues of importance in relation to the substance and procedure related to the stoppage of pay and allowances, and such an Order has profoundly serious consequences on the member to which it applies. The Committee concluded that there was a breach of natural justice in that the reasons provided by the Level I Adjudicator were inadequate; however, it did not find unfairness in the disclosure of information in the case, nor did it accept the Grievor's bias argument. The Committee found that the Order to Stop Pay and Allowances should not have been issued, because at the time that the Order was made, it was not clear that the Grievor was involved in outrageous and extreme conduct.

The Committee recommended that the grievance be allowed.

The Commissioner rendered a decision in this matter, as summarized by his office:

The Commissioner rendered his decision on December 15, 2006. He agreed that the matter was moot, however, decided to address the issues raised by the Grievor. The Commissioner found that the supplying of summaries to the Appropriate Officer by Internal Affairs Branch, did not result in a reasonable apprehension of bias. In addition, the Commissioner also concluded that the Order to Stop Pay and Allowances (the "SWOP order") was issued in a timely manner.

The Commissioner found that it was arguable, given the jurisprudence from the Supreme Court of Canada, that the reasons for the SWOP order conformed with the requirements of natural justice. However, given the serious nature of SWOP orders, fairness requires that adequate supporting rationale be provided to allay any perception of "rubber stamping." Consequently, it was not sufficient for the A.CHRO to simply state that he reviewed the materials and agrees with the recommendation to issue the order.

With respect to the issue of whether the Grievor's conduct could be characterized as "outrageous", the Commissioner concluded that the definition of outrageous conduct utilized by the A.CHRO did not reflect the intent of the Act. Since SWOP orders are to be issued only in extreme circumstances, outrageous conduct should be associated with behaviour that is so reprehensible that it would be inappropriate to pay the member pending the resolution of the case.

In this case, the impugned conduct, while serious, could not be characterized in this manner. The grievance was upheld on this basis. Given his conclusion on outrageous conduct, the Commissioner did not address the issue of clear involvement.

The Commissioner upheld the grievance.