Grievance Case Summary - G-549

In 2009, while off-duty, the Grievor drove a vehicle while impaired, and was involved in a collision. Two occupants who had been present in the vehicle were slightly injured. The Grievor was served with a Notice of Driving Prohibition. One month later, the Grievor was again arrested while driving with his blood alcohol level exceeding the legal limit. Shortly thereafter, the Grievor entered a treatment program for an alcohol addiction, which he completed. In June 2010, the Respondent issued a Stoppage of Pay and Allowances Order (SPAO).

The Grievor grieved the SPAO. He took the view that the Respondent's rank and position prevented him from issuing the SPAO impartially, and that the Respondent had failed to provide all relevant documentation to the Grievor. He argued that given his alcohol addiction, his conduct could not be seen as extreme and outrageous, which was the standard required by policy for a SPAO to be issued. The Level I Adjudicator found that the Grievor's misconduct was outrageous, and dismissed the Grievor's argument that his alcohol addiction was a disability that needed to be taken in account. The Grievor resigned from the Force prior to the Level I decision being issued.

The ERC dealt with procedural issues. It found that there was no reasonable apprehension of bias in this case. The SPAO process set up by Parliament allowed any officer of the Respondent's rank at National Headquarters to issue a SPAO, and therefore contemplated that SPAO decision-makers would be officers with other responsibilities. As for the Respondent's disclosure obligations, the ERC found that documents pertaining to presentations about the SPAO process generally were not relevant to the grievance, since the Grievor's case had to be looked at individually in terms of whether policy requirements had been met. The ERC also found that the Respondent would not have been required to provide to the Grievor a copy of a document summarizing SPAO precedents, which he had relied upon to render his decision. However, the ERC found that full access to such precedents would ensure fairness for members involved in the SPAO process. Finally, the ERC noted that the Level I Adjudicator's reasons had not addressed several significant grounds raised by the Grievor, rendering them inadequate.

With respect to the issuance of the SPAO itself, the ERC emphasized that the outrageous threshold required by policy could be described in terms such as 'shocking', 'atrocious' and 'grossly immoral or offensive'. It further indicated that in determining whether the circumstances of an offence are outrageous, it is necessary to take into account all the factors affecting the conduct in question. In this case, all of the allegations were manifestations of the Grievor's alcohol addiction problem. Although the conduct was serious, it did not meet the outrageous threshold when the disability was considered.

The ERC recommended to the Commissioner of the RCMP that he allow the grievance and order that the Grievor's pay and allowances be reinstated up to the date of his resignation. As well, if the Stoppage of Pay and Allowances Order affected the Grievor's pension, it further recommended that the Commissioner order a review of the Grievor's file so that appropriate adjustments could be made.

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

The Acting Commissioner agreed with the ERC regarding the procedural issues. He found that there was no reasonable apprehension that the Respondent was biased. He also did not order disclosure of presentation materials given to the RCMP Senior Executive Committee regarding the stoppage of pay and allowances process in general, as the question in this grievance concerned whether or not the Respondent followed the existing policy (which had not changed). The Acting Commissioner also agreed with the ERC that the Respondent would not have been required to provide to the Grievor a copy of a document summarizing SPAO precedents, which he had relied upon to render his decision.

The Acting Commissioner also agreed that the Level I Adjudicator did not address a number of grounds raised by the Grievor. However, as he performed a de novo review of the matter, the Acting Commissioner found that he could decide the matter afresh and fully, including addressing issues which were overlooked at Level I.

On the merits, the Acting Commissioner found that the Suspension policy ensured that a suspension without pay (SWOP), described in the Act and the policy as a stoppage of pay and allowances, was a measure designed to protect the integrity of the RCMP and its processes. The Suspension policy sets out elements which provide procedural fairness to a member for whom the Force is considering a stoppage of pay and allowances. The measure is temporary in that it is only in place pending the outcome of the matter (criminal or disciplinary) which gave rise to the stoppage of pay. In addition, the policy specifically sets out that the stoppage of pay and allowances shall only be ordered in “extreme circumstances when it would be inappropriate to pay a member,” such as when a member is “clearly involved in the commission of an offence that contravenes an act of Parliament or the Code of Conduct, and is so outrageous as to significantly affect the proper performance of [his] duties.”

The Commissioner agreed with the Respondent and found that the circumstances in this case were indeed extreme and outrageous. While he agreed that driving while one's licence is suspended is a provincial offence that, in isolation, is unlikely to be a cause for a SWOP, the Acting Commissioner found that impaired driving was not a minor criminal offence. He noted that considering the extreme dangers involved, driving while impaired is inexcusable and is not tolerated for any member of society, and even less so for a member of the Force. The repetition of this conduct is even more appalling. In this case, the member's alleged conduct was particularly egregious since the first incident of impaired driving involved a collision which caused injuries to passengers in the Grievor's vehicle, and the second incident occurred only a short time later and while the Grievor was prohibited from driving. The Grievor also allegedly swore at a member of the police force involved and called her a “bitch.” The Acting Commissioner noted that the Grievor had time to reflect on his actions and realize the seriousness of his situation over the course of a month, yet he did it again.

The Acting Commissioner found that while the Grievor may have established that he had a disability (alcoholism), he had failed to meet the initial legal burden of proving on a balance of probabilities a prima facie case of discrimination. Furthermore, the Acting Commissioner did not agree with the ERC that the Grievor's alcoholism made his conduct less extreme or outrageous. He found that the Grievor did not provide any evidence to support his assertion that his alcoholism was a precipitating factor in his decisions to drive while impaired. He therefore disagreed with the ERC that the level of “shocking,” “atrocious” or “grossly immoral” (as set out in G-353, a decision of former Commissioner Zaccardelli) was not met because of the Grievor's alcoholism.

The Acting Commissioner therefore denied the grievance.