Grievance Case Summary - G-516

On January 13, 1999, the Respondent gave effect to two of the four operational restrictions the Health Services Officer had imposed on the Grievor. The Health Services Officer added that he could [Translation] “revise the medical profile once [the Grievor] has reported to our service for follow-up on the tests we are requesting.” Despite this follow-up, the medical profile and operational restrictions were upheld. The Grievor filed a grievance against the decision to give effect to the two restrictions.

The Grievor criticized the fact that the restrictions were based on false information and had been developed following a complaint he filed against a subordinate of the Health Services Officer. He asked that the Respondent answer a number of questions before providing his written submission. The Respondent answered an initial set of questions.

First, the Level I Adjudicator found that the Grievor did not have standing. A Level II Adjudicator overturned the decision and returned the case to the Level I Adjudicator. The Office for the Coordination of Grievances asked the Grievor a number of times to file his submissions on the issue of merit, which he did not do.

The Level I Adjudicator denied the grievance. In his view, the medical profile was also to include a summary of the operational restrictions imposed. Given that the Respondent is the Grievor’s line officer, he had the authority required to order the application of these restrictions.

The ERC has jurisdiction to rule on this grievance. Despite the importance of considering the context of a given grievance, the ERC found that it could not render a decision in all of the Grievor’s grievances, because some of them had not been referred for review. Although the Respondent did not answer a second set of questions posed by the Grievor, the Respondent did fulfil his duty to communicate information. The timeframe in this case was unacceptable, but it did not cause the Grievor serious harm. Lastly, the ERC found that the Respondent’s application of the two operational restrictions was warranted.

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

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

[TRANSLATION]

The Commissioner denied the grievance on the sole ground that it had become moot upon the death of the Grievor.

The grievance dealt with the application by the Grievor's Line Officer of two operational restrictions imposed by the Health Services Officer: not to drive an RCMP vehicle and not to work with his service weapon. The redress sought by the Grievor in his grievance was to be able to drive an RCMP vehicle and carry his service weapon again.

First of all, the Commissioner concluded that he had jurisdiction over the grievance because it had been duly presented by the Grievor at Level II while he was alive and still a “member” of the RCMP within the meaning of section 2 of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10.

The Commissioner then applied the doctrine of mootness, as defined by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski]. The Commissioner concluded that a tangible and concrete dispute in this case no longer existed because of the Grievor's death. Moreover, the redress requested in the grievance was no longer possible. Consequently, the grievance had become moot.

The Commissioner noted that in Borowski the Court indicated that, even if a dispute has become moot, there are cases where the Court may exercise its discretion to hear the case nonetheless. For example, "there may be collateral consequences of the outcome that will provide the necessary adversarial context" (Borowski, p. 359.) The dispute may also pose a question of public importance for which a decision would be in the public interest.

The Commissioner noted as well that in the decision in R. v. Smith, [2004] 1 S.C.R. 385, the Supreme Court of Canada applied the principles stated in Borowski to the case of a deceased appellant. The Court stated that its discretion to hear an appeal made by a person who dies during the proceeding should be exercised only in the exceptional case where a question remains in dispute and must be decided in the interests of justice despite the death of the person most directly affected by the appeal.

Applying these principles to this case, the Commissioner concluded that this was not one of the rare cases where he would have to decide on a moot grievance. The issue raised by the grievance was of a very personal nature affecting only the Grievor. The appropriateness of the operational restrictions imposed on the Grievor was not a matter of general interest for members of the RCMP. The answer to this question depended on facts specific to the dispute and was inextricably linked to the Grievor himself. Moreover, there were no collateral consequences of the outcome, such as corrective action of a financial nature that would benefit his estate. The redress sought by the Grievor was not of a monetary nature.