Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Grievances and Appeals): SOR/2022-259

Canada Gazette, Part II, Volume 156, Number 26

Registration
SOR/2022-259 December 5, 2022

ROYAL CANADIAN MOUNTED POLICE ACT

The Commissioner of the Royal Canadian Mounted Police makes the annexed Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Grievances and Appeals) under paragraphs 21(2)(h)footnote a and (m)footnote a and section 36footnote b of the Royal Canadian Mounted Police Act footnote c.

Ottawa, December 1, 2022

Brenda Lucki
Commissioner of the Royal Canadian Mounted Police

Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Grievances and Appeals)

Amendments

1 The Commissioner’s Standing Orders (Grievances and Appeals) footnote 1 are amended by adding the following after section 1:

Definition of standardized test

1.1 For the purpose of subsection 31(4.2) of the Act, standardized test means a test that is used by the Force to assess an individual’s behaviour, knowledge and experience in order to evaluate job-relevant competencies, and includes the marking scheme, the answer key and any materials prepared for the purpose of developing the test. The content of the test must be equivalent for all test-takers, be administered according to standard instructions and procedures and be scored according to a set protocol.

2 Section 4 of the Standing Orders is repealed.

3 Paragraph 37(a) of the Standing Orders is replaced by the following:

Transitional Provision

4 Part 1 of the Commissioner’s Standing Orders (Grievances and Appeals) continues to apply to a grievance of a written decision referred to in paragraph 37(a) of those Standing Orders, if the grievance was presented before the day on which these Standing Orders come into force.

Coming into Force

5 These Standing Orders come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Standing Orders.)

Issues

Amendments to the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289 [CSO (Grievances and Appeals)] is required to provide members appointed to a rank in the RCMP with a streamlined, and more timely redress process to challenge promotion-related decisions by filing an appeal under Part 3 of the CSO (Grievances and Appeals).

Currently, grievances related to promotion decisions are filed and adjudicated pursuant to Part III of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (RCMP Act), and Part 1 of the CSO (Grievances and Appeals).

The volume of grievances has significantly increased since 2014. Thus, the average number of days that elapse between a grievance being referred for adjudication and a decision being rendered on merit has also increased significantly.

The grievance process is comprised of two levels of adjudication (Initial and Final Levels). Under Part 1 of the CSO (Grievances and Appeals), an adjudicator at the initial level must consider whether the decision, act or omission, that is the subject of the grievance, is consistent with the relevant law, the relevant Treasury Board or RCMP policy and, if it is not, whether it has caused a prejudice to the grievor. If dissatisfied by the initial level decision, the grievor may grieve to a final level adjudicator who must consider whether the initial level decision contravenes the principles of procedural fairness, is based on an error of law or is clearly unreasonable. The final level adjudication decision is subject to judicial review. The amendment would create a redress process for ranked members to file an appeal under Part 3 of the CSO (Grievances and Appeals) when challenging promotion-related decisions. As a result of the amendments, such challenges would have only one level of adjudication as required for all appeals under the CSO (Grievances and Appeals). In an appeal, an adjudicator must consider whether the decision that is the subject of the appeal contravenes principles of procedural fairness, is based on an error of law, or is clearly unreasonable. The decision on appeal is subject to judicial review.

Objective

The key objective of this initiative is to increase timeliness in rendering decisions as there would be only one level of adjudication, instead of two, for promotion-related grievances filed by members appointed to a rank in the RCMP. The amendment would also reduce the resources required to both administer and adjudicate the grievance and appeal files. It is expected that the proposal would reduce the initial and final level adjudicators’ caseloads, which in turn would improve the timeliness of decisions rendered under Part 1 of the CSO (Grievances and Appeals).

Description

The amendments relate primarily to creating a process for appeals by members appointed to a rank, of a written decision made in the course of the selection processes for a promotion to another rank, or job requirements, other than official languages requirements, established for a position.

For greater certainty, the proposed amendment excludes promotions to rank described in subsections 31(3) and (7) of the RCMP Act, and section 16 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281 (RCMP Regulations). The proposal excludes CMs who would continue to have the right to grieve (two levels of adjudication) promotion-related decisions under Part 1 of the CSO (Grievances and Appeals); these represent only a small percentage of the grievances filed under the RCMP Act. The proposal also does not have implications to the redress process set out in the Commissioner’s Standing Orders (Classification Redress Process for Members).

The proposal includes amending section 37 of the CSO (Grievances and Appeals) to stipulate that a written decision made in the course of the selection processes, including job requirements, for the promotion of a member appointed to a rank is subject to an appeal.

Regulatory development

Consultation

Consultation took place with RCMP Corporate Staffing Policies, Planning and Promotions, HR Policies, Strategies and Programs; Corporate Member Labour Relations; Treasury Board Secretariat Canada; the National Police Federation (NPF), and the RCMP-NPF Non-commissioned Officer Promotions Task Force. This Task Force was established outside of the Collective Agreement between the NPF and Treasury Board, whereby the RCMP and NPF representatives meet to discuss options to modernize and improve the Non-Commissioned Officers’ promotion process.

Only representatives from the NPF on the Task Force expressed concerns about the proposal. They stated that it will be more difficult for ranked members to have their appeal allowed because they believe the ’clearly unreasonable’ standard on appeal would be higher than the assessment standard in an initial level grievance. However, we note that the standard on appeal also includes determining whether the decision contravenes principles of procedural fairness and is based on an error or law.

The promotion of members appointed to a rank in the RCMP is prescribed by legislation.

As this amendment would only impact the members appointed to a rank in the RCMP, no external consultations were conducted (other than with NPF).

This proposal was forwarded for inclusion in the Forward Regulatory Plan in April 2022. The proposed amendments to the CSO (Grievances and Appeals) were published on the external RCMP website on April 25, 2022.

Modern treaty obligations and Indigenous engagement and consultation

There is no impact on modern treaty obligations with Indigenous peoples. The CSO (Grievances and Appeals) is a recourse process to resolve workplace issues that are applicable only to RCMP members. The stakeholder groups that may be affected by the change are members appointed to a rank in the RCMP.

Instrument choice

The CSOs are statutory instruments established pursuant to the legislative power conferred to the Commissioner by the RCMP Act. Subsection 2(2) of the RCMP Act defines CSOs as “the rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules.”

The Commissioner made the CSO (Grievances and Appeals) pursuant to the legislative powers that are conferred by paragraph 21(2)(m) and section 36 of the RCMP Act.

Subsection 31(1) of the RCMP Act states that a member can present a grievance if no other process for redress is provided by the RCMP Act, the RCMP Regulations or the CSOs. As the CSO (Grievances and Appeals) is a statutory instrument, only a regulatory instrument could be used to make the required amendments and therefore achieve the policy objective.

By creating an appeal process for redress under the CSOs, members appointed to a rank will have a more streamlined and efficient or timely redress process to challenge promotion-related decisions.

The sustained baseline scenario (i.e. no action) would mean that the considerable delays in obtaining final decisions in grievances will continue.

Regulatory analysis

The regulatory proposal will have a positive impact on the administration and adjudication of grievances and appeals. By reducing the levels of adjudication for certain types of promotional grievances, final decisions should be rendered in a timelier manner, and the human resources and time required to administer and adjudicate grievances and appeals will decrease.

Benefits and costs

By creating a redress process for promotion-related decisions with only one level of adjudication, there would be a significant reduction of the Final Level Adjudicators’ grievance workload. Furthermore, fewer adjudicative resources and case managers would be required to administer these files.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

One-for-one rule

The one-for-one rule does not apply to this proposal, as there are no anticipated increases to the administrative costs.

Regulatory cooperation and alignment

This proposal is not related to any work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal.

Contact

David Elms
Superintendent
Director Recourse Adjudications Directorate
Royal Canadian Mounted Police
Telephone: 613‑698‑6094
Email: david.elms@rcmp-grc.gc.ca