Grievance Case Summary - G-448

The Grievor submitted a request for access to personal information to the RCMP. More than one month later, the Respondent confirmed receipt of the Grievor's request, and also informed him that the RCMP would be unable to respond within the time limits set out in the Privacy Act. Following an additional one-month delay, the Respondent reiterated that the RCMP would be unable to respond to his request within the time limits set out in the Privacy Act.

The Grievor filed a grievance. After the grievance was filed, the Respondent sent the Grievor the documents he requested. The Respondent maintained that the grievance had become a moot point and the Office for the Coordination of Grievances (OCG) referred the matter to the Level I Adjudicator for decision. The file was sent to the first level without the Grievor's representations in the matter. The Level I Adjudicator found that the Grievor had obtained the redress sought and no longer had any interest in the grievance.

The Grievor submitted the grievance to the second level. Later, he sent another grievance form to the OCG concerning the manner in which the OCG had handled his grievance. The OCG informed the Grievor that this new form would be added to the current file for Level II review. The Grievor expressed his disagreement with the way in which the OCG chose to proceed.

The Grievor was denied the right to be heard concerning the moot character of the grievance. Correspondence from the OCG informing the Grievor of his right to make representations in the matter was confusing and contributed to the fact that the Grievor made representations after the file was sent to the adjudicator.

With regard to the other objections raised by the Grievor concerning the handling of his grievance by the OCG, it was appropriate for the OCG to treat these issues as incidental in order to have them considered in the course of this grievance. However, the file does not lead to a finding that the OCG acted inappropriately or in bad faith concerning the Grievor.

As for the basis for the grievance, the Committee feels that the issue on which the grievance is based is not a moot point. Despite the fact that documents were submitted to him, the Grievor claims he suffered harm owing to the excessive length of time needed to provide them. Although the RCMP informed the Grievor twice that it would be unable to meet the time limits set out in the Privacy Act, it did not offer any reasons, and consequently, there is no way to determine whether the RCMP had lawful grounds for failing to comply with the established time limits. Because section 16(3) of the Privacy Act indicates that failing to comply with time limits is equivalent to a refusal of communication, the Committee found that the RCMP did not comply with the Privacy Act in processing the Grievor's request for access.

The Committee recommended that the RCMP Commissioner allow the grievance and apologize to the Grievor on behalf of the RCMP for the harm caused by this shortcoming.

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

[TRANSLATION]

Similarly to the ERC, the Commissioner concluded that the applicant had been denied his right to be heard on the moot character of the grievance.

The Commissioner noted that OCG referred the case to the Level I Adjudicator for a decision on the moot character of the grievance as if this were a preliminary issue. However, the policy on grievances does not include the moot character issue in the definition of preliminary or ancillary matters that an adjudicator must deal with before deciding on the merits of the grievance. As the ERC Chair stated in her report, a “member has standing where the decision, action or omission challenged has a direct impact on that member personally. The fact that the Grievor obtained the requested remedy has no bearing on the fact that a decision may have had a direct impact on the Grievor personally.” The issue therefore does not pertain to the Grievor’s standing, but rather to the merits of the grievance, as this is a matter of deciding whether the Grievor still has a right asserted in the grievance. Accordingly, when a party states that a grievance has become moot, it is more appropriate to deal with this issue as part of the merits of the grievance, rather than as a preliminary issue under the policy on grievances.

The Commissioner also found that the issue being grieved was not moot. The scope of the grievance went beyond the simple disclosure of personal information requested by the Grievor. It also included the issue of whether the applicant's rights under the Privacy Act had been violated and if so, whether it was possible to quantify and remedy the harm done, if any.

The Commissioner disagreed with the Respondent’s submission that the Grievor could not present a grievance because the appropriate remedy was to file a complaint to the Privacy Commissioner under the relevant procedure outlined in the Privacy Act. The Commissioner indicated that the Grievor was entitled to present the grievance in this case, notwithstanding the availability of a remedy under the Privacy Act.

The Commissioner found that the OCG should have opened a new grievance case concerning the grievance lodged by the Grievor against the OCG employee responsible for managing this case. Only this employee could have acted as the Respondent to the grievance and explained her actions, decisions or omissions being grieved. The Respondent in this case, namely the officer in charge of access to information, could not be asked to make these submissions in her place.

Furthermore, Article I.1 of the RCMP policy on grievances (AM II.38) gives the OCG no discretion in respect to the processing of grievance forms. The OCG must open a grievance case when it receives a 3081 form. It falls to a grievance adjudicator, and not the OCG, to then decide whether the grievance should be attached to another grievance—and only after the parties are asked to submit their views on the issue.

Had it not taken such a long time to process this case, the Commissioner might have ordered its return to Level I so that a case could have been opened on the grievance against the OCG employee. This new grievance case should then have been processed in accordance with the grievance resolution procedures outlined in the policy on grievances. However, given the delay of about 7 years, the Commissioner found that it was high time this matter was resolved. He agreed with the ERC Chair’s finding that the employee had acted appropriated in responding to the Grievor’s communications, and that the case did not reveal any bad faith against the Grievor.

Given the long period of time elapsed since the submission of the grievance, the Commissioner deemed it appropriate to rule on the merits of the case rather than returning it to Level I.

The Commissioner found, as had the ERC Chair, that the Force had failed to comply with the Privacy Act in the processing of the Grievor’s access request.

As per the ERC’s recommendation, the Commissioner allowed the grievance and apologized to the Grievor, on behalf of the RCMP, for the delay in the processing of his access to information request. Since the Grievor eventually received the documentation requested and did not substantiate the alleged financial loss, the Commissioner did not deem it appropriate to grant such a remedy.