Grievance Case Summary - G-491

In 1996, the Grievor was charged with a number of crimes. The Force suspended him and initiated disciplinary proceedings, but chose to reject the Commanding Officer's recommendation to stop his pay and allowances (SWOP). It fully reinstated the Grievor in 1997 after the court acquitted him, and a disciplinary board held that the allegations against him were unfounded.

The Grievor later complained about the way the Force treated him. He sought related remedies including investigations, apologies and compensation. Over the following five years, his concerns became the subject of different Level I and Level II grievances, as well as mediation attempts. Some of the issues were settled. Some were not.

In 2002, the Respondent rejected the Grievor's remaining allegations and requests for redress. She said that the Force acted in good faith, that policy did not allow for such remedies, and that they fell outside of the RCMP's purview. The Grievor filed a grievance, which led to preliminary decisions at Levels I and II. During this period, more issues were settled. A Level I Adjudicator later dismissed what remained of the grievance. She essentially reasoned that the RCMP had acted in good faith, and that she did not have the authority to order certain requested remedies. The Grievor filed a Level II grievance against the Respondent's refusal to provide apologies for the SWOP recommendation, for the decision to initiate disciplinary proceedings and for the conduct of the internal investigation. He also grieved the decision to deny damages for defamation.

The ERC found that it had legal authority to review the grievance because the case concerned an issue relating to the stoppage of pay and allowances as well as arguments involving applicable provisions of the Canadian Charter of Rights and Freedoms. It also found that the Grievor had standing. It observed that the Respondent did not appear to investigate the Grievor's allegations before dismissing them. It also noted that the Respondent failed to state the information she considered, to explain the bases of her findings, or to answer the Grievor's specific claims. It therefore found that the Respondent did not properly address the Grievor's concerns. It further noted that the record was unclear on other avenues of recourse.

The ERC recommended to the Commissioner of the RCMP that he allow the grievance and order a review into the Grievor's allegations, if such a review has not yet been conducted. It further recommended to the Commissioner that he identify whether there presently exists a mechanism within the RCMP whereby members can make complaints about treatment during internal investigations, whether conducted by the RCMP or by a separate police force as an agent of the Force, and have these complaints thoroughly dealt with. If there is such a mechanism, then this information should be made readily available to all members. If there is no mechanism, it recommended that the Commissioner order that one be developed.

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

The Commissioner denied the grievance.

The grievance dealt with the denial of his request for a number of corrective actions from the Force, including (i) an apology from the (then) CO due to the pursuit of formal disciplinary action against the Grievor and the stoppage of the Grievor's pay and allowances; (ii) apologies from the internal investigators for their alleged faulty or non-existent investigation, bad faith, failure to observe his right to legal counsel, and fabrication of evidence; and (iii) compensation for defamation because he had been "labelled" in the RCMP after members of the Force learned about the Code of Conduct allegations. The Commissioner also briefly reviewed two other remedies: (iv) interest and (v) a request that the individual who complained about his conduct (the Complainant) be investigated for allegations of perjury and that charges be laid. While it did not appear that the Grievor still wished to pursue these corrective measures at Level II, the Commissioner nevertheless addressed the issues for a fulsome decision. The Commissioner found it doubtful that the Grievor had named the proper Respondent, but, considering the length of time the matter had been in the grievance system, decided that he would address issues of standing and the merits. The Grievor had made extensive submissions.

Apology from the CO: The Commissioner found that the Grievor's concerns regarding the conduct of the CO should have been raised or addressed at the time the CO's actions were taken. By the time he filed the grievance, it was at least five years later. The CO was not the decision-maker in the matter respecting the stoppage of the Grievor's pay and allowances. The Director of Personnel (DP) was authorized to make the decision and did so after considering the representations made by the CO and the Grievor. The CO was entitled to provide his opinion and recommendation, as his role could be equated to a party in a litigious matter. In any event, he did provide to the DP the materials which the Grievor had requested, as well as the Grievor's submissions. The DP made an impartial decision, and, considering the decision was in his favour, the Grievor suffered no loss of pay and allowances. Furthermore, the Grievor's standing was questionable, as the Grievor should have raised his concerns regarding the CO's conduct in pursuing the matter in his submissions to the DP during that process. Had the Grievor been dissatisfied with the DP's decision he would have had the right to grieve the decision. Similarly, the Grievor could have raised his concerns respecting the CO's actions (as Appropriate Officer) in pursuing formal discipline against him during the formal disciplinary process set out in Part IV of the Act. He could have made arguments in front of the Adjudication Board had he wished to complain about malicious prosecution or the conduct of the CO. The Commissioner pointed out that the burden of proof required for a criminal finding of guilt is quite different from the Appropriate Officer's burden during formal disciplinary proceedings to prove that a member's conduct is disgraceful. Furthermore, the elements of the criminal offences with which the Grievor are markedly different from the elements of disgraceful conduct under the RCMP Code of Conduct. The CO was a party to the formal discipline and was entitled to pursue it. The Commissioner found that the Grievor had no standing to present a grievance requiring an apology from the CO. He disagreed with the ERC that the Grievor had no method or process for bringing either of these concerns forward.

Grievor's Reliance on Privileged Advice Given by AOR to AO and Settlement Discussions: The Commissioner found that it was disturbing and entirely inappropriate that the Grievor was able to obtain a copy of a document containing advice from the Appropriate Officer Representative to the CO, as this advice was protected by privilege pursuant to s. 47.1(2) of the Act, and should not have been disclosed to the Grievor. Similarly, the Grievor should not have produced information respecting settlement discussions during legal and administrative proceedings, or any settlement offers which may have been made. Settlement discussions and offers are confidential and without prejudice, and a common law privilege excludes from evidence statements made during negotiations to settle litigation.

Apology from Internal Investigators: The Grievor also did not, at time of the actions of the investigators, seek to complain about their conduct. Furthermore, he had other avenues of recourse. The Commissioner did not agree with the ERC that the Grievor had no method or process for bringing his concerns about the investigators forward. The Grievor could have made a complaint to the investigators' supervisor or through this chain of command. Management would have had the authority to take appropriate action, such as through the performance management process or by ordering an internal investigation. Secondly, he could have advised his representative during the formal disciplinary proceedings. These would have been the appropriate forums to raise allegations regarding the failure to respect his right to counsel, fabrication of evidence, or that the investigation was poor, non-existent or conducted in bad faith. There was no evidence that the Grievor brought his concerns forward. In addition, he provided no evidence to support these allegations. Further, the Canadian Charter of Rights and Freedoms does not apply to disciplinary proceedings taken pursuant to Part IV of the Act and the corresponding investigation, as they are neither criminal nor quasi-criminal and the consequences are not penal in nature but are designed to correct behaviour (rehabilitate) and to ensure the integrity of the Force (see R. v. Wigglesworth, [1987] 2 S.C.R. 541). The Grievor was not "arrested or detained" within the meaning of s. 10 of the Charter, when questioned in the internal investigation. Therefore, he was not denied his right to counsel under s. 10(b).

Defamation: In order to prove that he was defamed, the Grievor had to show that (i) the statements were published, meaning they were communicated to a third party, (ii) the statements were about him, and (iii) the statements would tend to disparage his reputation in the eyes of a reasonable person (Grant v. Torstar Corp., [2009] 3 S.C.R. 640, at para. 28). He did not provide evidence to prove these three elements on a balance of probabilities. It appeared from the file that the Grievor's concern was that members of the Force found out that he was the subject of Code of Conduct allegations. He did not provide any evidence that the allegations were discussed or published as established or proven, and did not complain of any other specific comments. It was true that the internal investigators were investigating allegations of disgraceful conduct, and that they could only be established by a finding of the Adjudication Board after a quasi-judicial hearing. Truth is a defence to an action in defamation. Furthermore, there is an absolute privilege attached to statements given in evidence in a trial and during quasi-judicial proceedings, which extends to all the participants in the proceeding, including the judge (or board), counsel, parties, and witnesses, and to the contents of documents offered in evidence (Brown, The Law of Defamation in Canada). Statements to the police in furtherance of legitimate investigations are protected by an absolute or qualified privilege, and the protection extends to the individual police officers who are performing the investigation (Evans v. London Hospital Medical College, [1981] 1 W.L.R. 184). The Grievor's claim would fail. Finally, the RCMP's grievance process is not one by which a member may obtain compensation for defamation. There is no authority allowing for such a payment. Grievance Adjudicators acting pursuant to the authority granted by Part III of the Act do not have the authority to order damages. Even if he had proven he was defamed (which he had not), the Grievor did not point to any policy or law which would allow for compensation.

Interest: There is no authority for the RCMP to pay interest to a Grievor. The Crown is not liable to pay interest unless a contract or legislation authorizes such a payment. The RCMP Act does not. The matter was settled in G-421 and G-455, and has been confirmed recently by the Federal Court in two decisions: Busch v. Attorney General of Canada (March 22, 2012) and Beaulieu c. Le Procureur général du Canada (April 17, 2013). As such, should the Grievor still be seeking interest, his claim would fail.

Investigation of the Complainant: Should the Grievor be still seeking an investigation into the Complainant or that charges be laid, his request would be denied. Pursuant to subsection 31(1) of the Act, the grievance process is designed to deal with decisions, acts or omissions which occur in the administration of the affairs of the Force. As such, his complaint is not the proper subject of a grievance.

Review: The Commissioner did not agree with the ERC that a review of the Grievor's allegations or an investigation is warranted. Having found that there are proper mechanisms within the Force which could have been engaged to deal with the concerns raised by the Grievor, he determined he would not inquire into this issue further.