Grievance Case Summary - G-421

In 1994, the Force recognized that since 1971, members involved in marine patrols and patrol cabins were reimbursed for meal claims at the wrong rate. The Force reimbursed Patrol Cabin/Vessel members for the shortfall retroactively to 1971, even though under the law they were only liable for the last six years. The Grievor was reimbursed $8,522.10. He requested that the Force pay him interest on the retroactive payment. The Force declined and a grievance followed.

The Grievor stated that interest should be paid on equitable grounds through the policy on ex gratia payments, as it had been done in other cases. A Grievance Advisory Board recommended that the Grievor's claim for interest be paid in the same way that it had been in two other situations, namely, for retroactive payments of a Bilingual Bonus, and to Special Emergency Response Team (SERT) members for on-call pay.

The first Level I Adjudicator concluded that he could not proceed without more information on the interest on the retroactive Bilingual Bonus and SERT payments. The Respondent did not address the Level I Adjudicator's specific request for additional material and the file was sent to a different Level I Adjudicator who denied the grievance on the basis that payment of interest was only authorized when there are contractual obligations, statutory authorization or a court order.

The Committee found that the second Level I Adjudicator erred when he did not follow up on the request for additional information issued by the first Level I Adjudicator. If the Force was in fact inconsistent in its decisions on whether to pay interest on retroactive payments, then this may create unfairness such that the Grievor's complaint could possibly be founded.

The Committee also found that the Grievor had set out a prima facie justification to find in his favour. However, as the file was incomplete, no conclusion could be reached as to whether the Force should pay interest to the Grievor.

The Committee recommended to the Commissioner of the RCMP that the grievance be allowed.

The Committee further recommends that the Commissioner return the file to Level I or make a determination himself on the substance of the Grievor's claim on a priority basis, after the information requested in the first Level I decision is received and the parties have had a chance to respond to it, if they so choose.

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

In a decision dated November 18, 2011, the Commissioner determined that although some information was missing, there was sufficient information on the record, in legislation, and in jurisprudence from the Federal Court to enable him to make a decision.

The Commissioner stated that the Royal Canadian Mounted Police Act does not explicitly authorize the awarding of interest. He stated he was bound by the Federal Court’s decision in Nantel v. Canada (Attorney General), 2008 FCA 351, and could not award interest, as the RCMP Act did not provide an exception to the common law rule that the Crown is not liable for interest.

In respect of the Grievor’s argument that members had received interest on a retroactive payment for the Bilingualism Bonus, the Commissioner found that the payment of the Bilingualism Bonus had been made as a result of a court order (Gingras v. Canada, [1990] 2 F.C. 68, upheld on appeal [1994] 2 F.C. 734). While the Federal Court decision was silent on interest, the legislation provided for interest on judgements against the Crown. Furthermore, the decision to pay interest had been made by the Treasury Board, not the Force.

The Commissioner found that the Grievor had been treated equitably in that he received a payment for past amounts greater than that which the Force was legally liable to pay, and therefore would not consider an ex gratia payment or an equitable payment.

The Grievor did not provide any authorities which convinced the Commissioner to order interest. The Commissioner denied the grievance.