Articles of Interest

Standing 101

by Josh Brull, Legal Counsel
January 2012

Introduction

The "standing" principle is a crucial part of the RCMP grievance process. It can be a bewildering part of the process, too. The ERC has observed confusion over what standing means, what it involves, and what is necessary to prove it exists. There is also a tendency to mix it up with other concepts. This article will focus on the basics of what standing is, and what it comprises. Moreover, it will offer tips that may help a member demonstrate standing. The following is a distillation of various legal principles found in publicly available legislation, policies, and cases.Footnote 1

What Standing Is and Comprises

Standing is simply a precondition that a grievor must satisfy before a grievance can be heard. It is nothing more than that, and should be thought of in that way. A pilot cannot fly an airplane without a license. A runner may not compete in an Olympic race without qualifying. Similarly, the RCMP Act (Act) does not allow a grievor to argue the merits (i.e. actual rights and wrongs) of a grievance without standing. One must meet certain requirements to obtain a pilot’s license or a spot in an Olympic race. Likewise, the Act says one must meet five requirements to gain standing.

1. The individual must be a member of the RCMP.
2. The individual must be aggrieved.
3. The individual’s aggrievement must arise out of a decision, act, or omission.
4. The decision, act, or omission must be made in the administration of the Force’s affairs.
5. There must be no other process for resolving the matter set out in the Act, the RCMP Regulations (Regulations), or the Commissioner’s Standing Orders (CSO).

1. Member

This is the most straightforward requirement. A regular member of the Force will automatically meet it. A civilian member of the Force will also automatically meet it.

A retired regular or civilian member of the Force will meet the requirement if the issue in dispute involves the employer-employee relationship (ERC G-332). For instance, a retiree can be a member where a grievance concerns an employment-related benefit to which (s)he might be entitled (ERC G-332). A retiree may also be a member where a grievance pertains to a decision regarding a complaint (s)he made before retiring (ERC G-321, ERC G-324). So long as the retiree can reasonably link the grievance to his or her prior employment, (s)he will be deemed a member.

Someone who is not, or was not a regular or civilian member will not meet this requirement. For example, a public service employee who works for the Force cannot grieve under the Act.

2. Aggrieved

A member is aggrieved if (s)he is prejudiced or personally affected by a decision, act, or omission. This is not a hard standard to meet. Despite what some believe, it does not compel a member to:

• establish that what (s)he alleges is true, or that (s)he has a right to something;
• substantiate that a written authority supports his or her main argument(s);
• demonstrate that the Force did something wrong; or,
• prove that (s)he lost, or will lose something, or that (s)he is entitled to a remedy.

A grievor will need to address those sorts of things when (s)he argues the merits of a grievance. Once again, to be aggrieved, (s)he need only show that a decision, act, or omission prejudiced or personally affected him or her. The ensuing four examples help illustrate this idea.

1. If the Force refuses to pay a member’s travel expense, then the member will be aggrieved. This is so because the refusal would have a financial impact, and therefore personally affect the member. Whether the member is entitled to the travel expense is a merits issue.
2. If the RCMP allegedly errs during a harassment investigation, then a complainant and/or alleged harasser may be aggrieved. This is so because the purported mistake will lead to a denied right under harassment policy, or other prejudice, and thus personally affect the member(s). Whether the investigation is still sound enough to stand is a merits issue.
3. If the RCMP allegedly treats a member differently on the basis of the member’s race, then the member will be aggrieved. This is so because the alleged action is discriminatory, and possibly prejudicial in other ways, and will thus personally affect the member. Whether the Force’s conduct violates the Canadian Charter of Rights and Freedoms is a merits issue.
4. If a member asserts that the RCMP trained and directed a Labrador Retriever to covertly eat his or her written reports, then (s)he will be aggrieved. This is so because the alleged actions, if true, will jeopardize the member’s future employment, and therefore personally affect him or her. Whether or not the allegation can actually be proven is a merits issue.

Although the position in the last example is frivolous and absurd (not to mention potentially career-limiting for anyone who takes it), it is nevertheless instructive. It clarifies that "aggrieved" is a low-threshold standard. This is not to say that anything can lead to aggrievement. A member will not be aggrieved if (s)he disagrees with, but has no personal interest in, an RCMP authority or action.

For instance, a member is not aggrieved just because (s)he dislikes a Force directive concerning the payment of retirement relocation costs. However, if the member files a claim, (s)he will likely be aggrieved if the RCMP denies him or her a benefit on the basis of a provision of such a policy. Similarly, a member is not aggrieved just because (s)he thinks an advertised position contains an overly strict language requirement. Yet if the member applies for the job, (s)he will likely be aggrieved if his or her application is denied on the basis that (s)he did not meet the requirement.

3. Decision, Act, or Omission

A grievor can grieve a decision, act, or omission. These three things include countless (in)actions. However, they do not ordinarily cover the issuance of a Notice of Intention to Discharge, the issuance of a Notice to Recommend Discharge, or other interim acts in a discharge process. Such acts are steps in a formal procedure (ERC G-266, ERC G-444). One may grieve them once a final decision is made. This does not mean a recommendation can never be grievable (ERC G-506). There might be cases where the act of making a recommendation meets all standing requirements.

4. Administration of the Affairs of the Force

A grievor may grieve a decision, act, or omission only if it was made in the administration of the affairs of the Force. In other words, the requirement will be met if the RCMP is responsible for the disputed decision, act, or omission. This includes circumstances where the grievor disagrees with how the Force applies an RCMP or government authority. In addition, the requirement could be satisfied where a third party relocation contractor gives a member bad advice or inaccurate information, to the member’s detriment. Although a relocation contractor is not part of the Force, the Force has the ultimate responsibility for administering its own relocation policy (ERC G-345).

Conversely, a member is not permitted to grieve a decision, act, or omission made by a separate authority. For example, neither the Treasury Board’s refusal to offer members a benefit (ERC G-129), nor its unwillingness to declare a housing market depressed (ERC G-335), nor its decision to change an entitlement under a government policy (ERC G-495), were found to be grievable.

5. No Other Redress Process

A member may not grieve something that can be resolved through another process set out in the Act, the Regulations, or a CSO. For instance, a member will not have standing to grieve:

• a disciplinary penalty, as discipline is dealt with in another process contained in the Act;
• a discharge "on the ground of term of imprisonment", as the Regulations contain a formal system for disputing such a matter;
• a decision, act, or omission made in the course of the classification of the member's position, as a CSO establishes a procedure for handling those issues; and,
• the very same subject that the member already grieved in another RCMP grievance.

Contrary to popular misconceptions, a member may grieve a disputed issue even if that issue can be addressed via processes in other legislation (e.g. human rights, privacy, and official languages statutes) or other authorities (e.g. harassment and accommodation policies). So long as there are no other resolution processes in the Act, the Regulations, or a CSO , the requirement will be met.

Tips

A grievor must prove (s)he met each standing requirement. It is risky to assume that the record speaks for itself, and that an adjudicator will simply view things a grievor’s way and find that the requirements are satisfied. The following tips might help a grievor demonstrate standing. As will be seen, it is vital to dedicate time and effort to properly filling out a grievance form (Form 3081).

1. Member

Form 3081 asks grievors to provide their names, ranks, and regimental numbers. This information will illustrate that a grievor is a member. A retiree should identify his or her former regimental number. The retiree will also need to explain how the disputed matter involves his or her prior "employer-employee relationship" with the RCMP. This exercise is often as basic as stating that the grievance is about, for example, the Force’s administration of one of the retiree’s employment benefits, or the Force’s handling of a harassment complaint in which the retiree was involved.

2. Aggrieved

Form 3081 instructs grievors to "[s]pecify the prejudice ... you suffered as a result of this decision, act or omission . Some grievors reply by conveying frustration with their situations. Others criticize the Force. Some offer background information. These sorts of responses are not useful.

The section is really asking a grievor to briefly explain how (s)he is aggrieved. A grievor should respond directly and precisely. Perhaps (s)he incurred financial hardship. Maybe (s)he suffered discrimination. Possibly (s)he sustained psychological harm. (S)he might have been denied a benefit under a policy. A directive may have been misapplied, to his or her detriment. These are the sorts of things (s)he must communicate to pass the low threshold of proving aggrievement. For example, the ensuing kinds of statements should usually satisfy the "aggrieved" requirement:

• the supervisor allowed only part of my meal claim, and this caused me financial harm;
• the manager wouldn’t let me live there because I’m single, and this is discriminatory;
• the superior repeatedly sent me sexually charged emails, and this caused me anxiety; or,
• the director misinterpreted relocation policy, and I lost a storage entitlement as a result.

The grievor may expand upon such a statement in subsequent submissions.

3. Decision, Act, or Omission

Form 3081 directs grievors to "[c]learly identify the decision, act or omission that is being grieved" . It might be beneficial for a grievor to do three things before responding to this direction. First, disregard all the details of the grievance for a moment. Second, concentrate on the big picture. Third, ask this question: if I had to make somebody understand what I am grieving, in just a few words, what would I say? Once the grievor knows the answer to this question, (s)he should write it on Form 3081. For instance, the following types of statements generally ought to be sufficient:

• the supervisor decided to deny my isolated post medical transfer expense claim;
• the director omitted to tell me (s)he was ordering a recovery of an overpayment from me;
• the resourcing official put me in a new job that does not accommodate my disability; or,
• the manager determined that (s)he did not have to investigate my harassment complaint.

The grievor may expand upon such a statement in subsequent submissions.

4. Administration of the Affairs of the Force & No Other Redress Process

Form 3081 asks grievors to "[i]dentify the person who made the decision, act or omission that is the subject of this grievance". If that person is not part of the Force (or clearly linked to it, in the case of some contractors), then the grievor cannot use the RCMP grievance process to argue his or her case.

Sometimes it is unclear who had the authority to make a disputed decision (i.e. the Force, the Treasury Board, or another entity). This raises a merits question. So long as a grievor can establish that the Force made a decision - authorized or not - the requirement will be satisfied.

Moreover, before a member spends valuable time and energy on a grievance, (s)he should review the Act, Regulations, and CSOs to see if either contains another process for resolving the dispute.

Conclusion

Hopefully, this article has cleared up some of the misconceptions and mysteries of standing, and provided practical information and suggestions. It is important to remember that standing is a prerequisite to arguing a grievance, and that proving it exists requires putting the appropriate time and effort into properly filling out a grievance form. If a member would like further guidance in relation to the standing principle, (s)he could talk to a staff relations representative and/or a lawyer.

Date modified:

2015-03-23