Grievance Case Summary - G-455

The Grievor received a positive evaluation followed by a 10% performance payment, and two further pay increases. Shortly thereafter, the Respondent informed him that he had been overpaid by mistake, and that as a result, the Force would be recovering $1,367.82 from him. The Respondent gave the Grievor some time to consider options, and to express a preference, as to how the Force might collect that amount. The Grievor objected to any recovery of money whatsoever. The Force eventually took back the funds at a rate of 10% of bi-weekly gross pay.

The Grievor filed a Level I grievance and made a broad disclosure request. He later contended that: the RCMP did not disclose what he had asked for; various principles barred the Force from taking back his pay; and, the Respondent acted high-handedly by ordering the overpayment recovery. He sought several remedies, including a reimbursement of the reclaimed funds, and interest. The Level I Adjudicator denied the grievance. He held that the Grievor did not show that the Force erred in law, policy or process by recouping his overpayment. He reasoned that the Grievor received more money than he was entitled to, and that the Force had to take back the excess payment as per the Financial Administration Act (FAA) and Treasury Board policy.

The Grievor filed a Level II grievance. He indicated that the Force recently paid him back all of the money that it had taken. He stated that he wanted the ERC to review his case in any event.

The ERC addressed four issues.

First, the ERC found that the Force met its disclosure obligation. It explained that the Grievor made an extremely vague disclosure request, and that he did not clarify how the material that he wanted was relevant or reasonably necessary.

Second, the ERC found that the Commissioner of the RCMP did not have to reconsider the decision concerning the recovery of the overpayment. This was so because the matter was moot because of the repayment by the Force, and the facts did not give rise to a compelling reason to exercise discretion in favour of reconsidering that issue.

Third, the ERC found that the Respondent complied with the FAA as well as with Treasury Board and Force overpayment policy, and that he acted fairly, in ordering a retrieval of the overpayment.

Fourth, the ERC found that the Grievor was not entitled to an interest payment as he had not explained why he should receive one, nor had he cited an authority or precedent in support of his request.

The ERC recommended to the Commissioner of the RCMP that he deny the grievance.

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

In a decision dated May 23, 2012, Commissioner Robert W. Paulson denied the grievance, as recommended by the ERC.

The Commissioner agreed with the ERC that he did not have to reconsider the decision concerning the recovery of the overpayment, since that issue was now moot.

Since the documents sought by the Grievor pertained to issues that had become moot, it was no longer required to rule on the Grievor’s disclosure request.

The Commissioner concluded that the only remaining issue to be determined was whether the Grievor was entitled to interest. The Commissioner agreed with the ERC that the Grievor had not explained why he was entitled to interest, nor provided any authorities supporting a determination that interest could be ordered. The Commissioner also concluded that he could not award interest to the Grievor. The Royal Canadian Mounted Police Act does not explicitly authorize the awarding of interest, nor is such authority provided in the Regulations under the Act or in the Commissioner’s Standing Orders.

In reaching his decision on the interest issue, the Commissioner referred to the Level II decision on grievance case G-421 (ERC file 3300-05-010), where (then) Commissioner Elliott concluded that, in the absence of a legislative authority to do so, he could not award interest in a grievance adjudication. Judicial review was sought regarding the Commissioner’s decision in G-421; however, the application was not made within the requisite time period. In dismissing the motion for an extension of time to file the application, the Federal Court found that the applicant had “no reasonable chance of success” in the proposed judicial review, as he made no argument which would “oust the constitutional provision that an award of interest cannot be made against the Crown, absent a contractual or statutory exception” (Busch v. Attorney General of Canada (March 22, 2012), 12-T-15 (F.C.)).