Grievance Case Summary - G-426

The Grievor declined to answer certain questions on the Periodic Health Assessment (PHA) form as he felt they were invasive and improper. When he was ordered to answer the questions, he filed a grievance, arguing that the disputed questions violated his right to security of person guaranteed under s.7 of the Charter of Rights and Freedoms (Charter) as being forced to answer the questions had a serious and profound effect on his psychological integrity.

The Level I Adjudicator originally found that the Grievor had standing, but reversed that decision over one year later on the basis of new information submitted by the Respondent. In his Level II submissions, the Grievor objected to the standing decision being reconsidered.

The Committee found that there is no prohibition on the reopening of a preliminary decision on standing.

The Committee also found that, while there is some debate as to whether section 7 of the Charter can apply to decisions that are outside the area of adjudication and the administration of justice, if section 7 applies, the Grievor had not established that the requirement to answer the PHA questions deprived him of his right to security of the person under section 7 of the Charter.

Finally, the Committee found that the Force had the right to require that its members be medically fit to perform duties and to require medical fitness evaluations, but there must be a proper balance between the Force's need to assess personal information and the member's right to keep personal matters not related to occupational fitness private.

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

The Committee also recommended to the Commissioner that, if no such review has already been undertaken, he order a review of the PHA form to ensure that there is proper balance between the Force's need for personal information and the member's right to privacy.

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

While the grievance was not of the type that is referrable to the ERC and must be heard by the Commissioner at Level II (as required by section 36 of the Regulations), the Commissioner completed the adjudication of the grievance at Level II. Given the passage of time in this matter, and following the Federal Court's decision Girouard v. Canada (Attorney General), 2005 FC 915, he did not send the matter to the Designated Level II Adjudicator.

The Commissioner agreed with the ERC and found that the Grievor had standing to present his grievance, as the Grievor was aggrieved by a decision made in the administration of the affairs of the Force in respect of which there was no alternate process for redress under the Act, the Regulations or a Commissioner's Standing Order. He observed that whether or not the Grievor's personal rights actually were affected is a question for the merits of the grievance, and not a question of standing.

On the merits, the Commissioner agreed with the Committee that the Force had the right to require that its members be medically fit to perform their duties, and to use medical fitness evaluations in making this determination. The Commissioner found that the questions on the PHA form are proper and relevant, and important for an assessment of occupational fitness by Health Services, particularly considering the nature of the policing profession. The Commissioner noted that while the Grievor personally believed that several questions were unnecessary, he did not provide any medical or other expert evidence to dispute the requirement for the questions which he impugned.

The Commissioner further found that the Grievor failed to show that by being required to answer the PHA questions he had been deprived of his right to life, liberty or security of the person. The right to security of the person does not protect the Grievor from the ordinary stresses and anxieties that a member of reasonable sensibility would suffer as a result of answering the PHA questions. A Charter analysis was therefore unnecessary.

The Commissioner agreed with the ERC's recommendation and denied the grievance.

With respect to the Committee's further recommendations, the Commissioner observed that a review of the PHA form had occurred. He agreed with the ERC's further recommendation that in future reviews of the PHA form the issue of balance continue to be properly considered, and wrote that the Health Services Policy Centre is aware of its obligation and has been working with the Office of the Privacy Commissioner to ensure that a member's right to privacy remains a key consideration in assessing medical fitness for duty.