Grievance Case Summary - G-535

The Grievor was served with a Notice of Intention to Discharge for reason of a physical and/or mental disability as per s. 19 of the RCMP Act. A medical board (MB) hearing was scheduled and the Respondents were appointed as MB members. Grievor’s counsel requested the MB be postponed: he set out a number of reasons, including his contention that documents had not been provided to his office. He was advised that the MB would proceed as scheduled.

The Grievor grieved the fact that the MB decided to convene without first dealing with issues he was raising about lack of disclosure and appearance of bias. The Level I Adjudicator concluded the Grievor did not have standing on the basis that he was not aggrieved. She found that the procedural and substantive issues arising during the medical discharge process were not grievable until the process was concluded and a grievable decision made. At Level II, the Grievor attempted to add an additional respondent to his grievance. The Grievor also argued that he should not have to wait until he is medically discharged to seek redress.

The ERC’s decision focusses on standing and does not address any matters which concern the merits of the grievance. The ERC found the matter was referable to the ERC and all the statutory time limits had been respected. The ERC recommends that the Commissioner of the RCMP not agree to adding the additional respondent at Level II as it would change the nature of the grievance and the Grievor already had the opportunity to make such a request at Level I.

The ERC found that the Grievor does not have standing to pursue this grievance. The ERC determined that the Grievor was a member, that the alleged omission occurred in the course of the administration of the Force’s affairs, and that the Grievor was aggrieved. However, the ERC concluded that there was another process for redress specified in the Regulations, namely the medical discharge process.

The ERC concluded that the Grievor lacked standing to bring this grievance on the basis that there was another process for redress specified in the RCMP Regulations. The ERC therefore recommended that the Commissioner of the RCMP deny the grievance.

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

In a decision dated December 5, 2012, the Commissioner denied the grievance. He agreed with the ERC that the Grievor should not be permitted to add a Respondent at Level II. He also agreed with the ERC that the Grievor did not have standing to present his grievance as there was another process for him to seek redress for issues arising during the medical discharge process, namely the procedure set out in section 20 of the Regulations.

The naming (or appointment) of a medical board and the proceeding (during which the medical board considers the materials provided by the designated officer in support of the discharge and any documentation and representations provided by the member) is governed by section 20 of the Regulations. The materials show that the Grievor was provided with the opportunity to provide submissions and documentation, and to nominate his medical practitioner to the medical board.

The decision to discharge (or retain) the member is not made by the medical board, but by the appropriate officer, after a review of the medical board's report (after the medical board has reviewed the material provided by the designated officer and the member). It is only the decision of the appropriate officer which may be the subject of a grievance under the Act (paragraph 22(a) of the Regulations). As such, the Grievor needs to exhaust the medical discharge process prior to being able to access the grievance process. He has no standing to grieve now.

The Commissioner added that the medical discharge process is intended to be fair, but also expeditious. Should a member bring a grievance regarding the Notice of Intention to Discharge which initiated the process, the appointment of the medical board, or any other step in the process before the final decision of the appropriate officer, this may have the effect of delaying and unduly complicating the process (as stated by the Level I Adjudicator) and may be seen as a collateral attack on the process, and an abuse of process.