The effect of RCMP External Review Committee appeal delays and how Members might avoid them
The CBC recently reported that the RCMP External Review Committee (ERC) is struggling with a significant backlog of files. While this is a concern for RCMP Members, it also begs questions: What does the “significant” number really mean? Will the government’s recent efforts be enough to tackle the backlog? And how might Members avoid their appeal getting stuck in ERC limbo?
The ERC is the quasi-judicial, independent civilian oversight tribunal that reviews appeals of decisions made in RCMP labour relations matters, such as disciplinary/misconduct cases, harassment complaints, discharges and demotions, certain grievances, and stoppages of a Member’s pay and allowances. Once the Chair of the ERC has reviewed a case, the Chair issues non-binding Findings and Recommendations (F&Rs) to the Commissioner of the RCMP. The Commissioner or another appeal adjudicator then makes the final decision.
Chronic underfunding, pleading for sufficient permanent resources, and case processing delays are nothing new for the ERC. What is new is the unprecedented magnitude of the backlog – 238 cases as of March 31, 2018 – and, as a result, the disheartening length of ERC delays.
Let’s do the math….
The Current Backlog
According to the ERC’s Annual Reports, from 2003-04 to 2014-15, the RCMP referred an average of 34 cases each year to the ERC, and the ERC’s annual output of F&Rs averaged 30.
Despite the RCMP Act providing that the ERC consists of “a Chairperson, a Vice-chairperson and not more than three other members” (s. 25(1)), for decades the Governor-in-Council has only appointed a Chairperson. As a result, year-end backlogs persisted, varying from 39 in March 2011 to 91 in March 2014. At an output rate of 30 cases per year, a 91-case backlog meant an ERC delay of up to three years.
But wait, there’s more.
Since the introduction of the new RCMP labour relations regime in November 2014, the number of cases referred to the ERC has tripled to a new yearly average of 93. However, the ERC’s funding and resources did not increase, nor did its average annual output. Thus, the year-end backlog ballooned:
There is one mathematical constant over the past 15 years: despite the ERC’s commendable efforts, with one decision maker, its average annual output is 30 cases per year.
So, with a March 2018 backlog of 238 cases, any Member who is trying to protect their labour relations rights via the legislated appeal process – which includes the ERC’s independent civilian review – could wait eight years for the ERC to issue its F&Rs.
If this trend continues in this 2018-19 year (93 cases referred and 31 issued), then by March 31, 2019, the backlog could grow to 300 cases and a delay of 10 years.
As the then-Chair of the ERC recognized in previous Annual Reports, the ERC must be able to complete cases in a timely manner in order to be “meaningful to RCMP members and to the Force” (2015-16), and any additional delays will “substantially reduce the utility of [the ERC’s] findings and recommendations to both RCMP members and the Force” (2016-17). Now that additional delays are here, as predicted, the ERC’s ability to contribute to the fairness, transparency and public accountability of RCMP labour relations has been seriously compromised.
As if this weren’t bad enough, there is another factor that could impede the ERC’s ability to issue F&Rs in 2018-19.
Musical Chairs
In February 2018, the Chair of the ERC, its sole decision-maker, was appointed to the bench of the Federal Court of Canada. The Chair position was left vacant for months. On June 18, 2018, a previous Interim Chair was appointed Interim Chair again, this time for one year pending the arrival of a permanent Chair.
The search for a new full-time Chair, as well as a part-time Vice-Chair, began only recently. The positions’ posting advises that application reviews were to begin December 3, 2018, and that applications will continue to be accepted and considered until the appointments are made. Since the appointment process normally takes many months, it will likely be some time before these positions are filled and the appointees are oriented and operating at full speed.
From experience, I can attest that placing the ERC in a holding pattern of uncertainty dramatically frustrates its ability to fulfill its mandate. The ERC’s website suggests this may be the case for 2018-19, given that, as of December 12, 2018, the most recent case summaries that can be found on the website (C-020, NC-013, D-135, G-650) all pre-date the previous Chair’s February departure.
Two Decision Makers + $8.1 Million = Not Enough
Even if two full-time decision makers can generate an annual output of 30 cases each (60 cases/year), if the backlog is pushing 300, it could take the new Chair and Vice-Chair five years to clear it. In the meantime, new cases will continue to arrive and be added to the pile.
In October 2017, Minister Goodale announced “$8.1 million of new funding over four years to address the backlog of cases currently with the ERC for review”. However, the temporary nature of the funding means that the ERC cannot plan for permanent expansion or offer permanent employment. It is notoriously difficult to attract and retain appropriately knowledgeable and skilled staff to insecure, temporary positions. Moreover, the funding is set to end well before the backlog can be eliminated and new cases can be processed with reasonable timeliness.
Two decision makers and short-term temporary funding is a recipe for a never-ending, multi-year backlog.
How This Affects Members
These multi-year delays mean that Members, including those who have been unjustly treated and have legitimate grounds to appeal an RCMP labour relations decision, have effectively lost access to the independent, impartial, civilian oversight body that was established to help ensure fairness in these proceedings.
While not every appeal referred to the ERC involves injustices, the ERC does receive cases involving unfairly conducted proceedings, erroneous determinations of harassment complaints, abuses of authority, and decisions that are clearly unreasonable or contain errors of law. The ERC logjam means that unjust decisions will go unchecked, even if the passage of time will cause irremediable financial, legal or psychological harm to the Member.
Notably, for certain types of appeals under the new regime (for example, those related to harassment complaints, appointment revocations, non-disciplinary discharges or demotions, or post-suspension stoppages of a Member’s pay and allowances), the Commissioner’s Standing Orders (Grievances and Appeals) seem to have anticipated inordinate ERC delays. Subsection 47(5) provides the RCMP with the means to side-step delays: if the ERC does not issue its F&Rs “within a reasonable time”, the appeal adjudicator may unilaterally choose to go ahead without them and render a final decision.
What Members Can Do
To minimize the chances of your labour relations appeal being delayed at the ERC, you can take steps to either avoid the need for an appeal, or to bypass the ERC.
1. Contact Your Member Workplace Advisor or Lawyer
As soon as you know you will be involved in a labour relations process, contact your Member Workplace Advisor (MWA) or a lawyer of your choosing. Obtaining good, independent advice at the beginning – before any steps in the process have occurred – can help you avoid issues that could generate a need to appeal.
2. Know the Law
Acquaint yourself with the laws, regulations, Commissioner’s Standing Orders and policies applicable to your matter. If you have any questions about the process, ask your MWA or your lawyer.
3. Bypass the ERC
If strategically wise, you may request that your appeal not be referred to the ERC, but that it go directly to the internal RCMP appeal adjudicator.
For a conduct appeal, a Member – whether they are the appellant or the respondent – may request in writing, with supporting reasons, that the matter not be referred to the ERC (subsection 23(1) of the Commissioner’s Standing Orders (Grievances and Appeals)).
Similarly, for a non-conduct appeal (for example, an appeal related to a harassment complaint decision, appointment revocation, non-disciplinary discharge or demotion, or stoppage of pay and allowances), a Member may ask that the appeal adjudicator render the final decision without first referring the matter to the ERC (subsection 50(1) of the Commissioner’s Standing Orders (Grievances and Appeals)).
If a Member’s bypass request is granted but they are not satisfied with the appeal adjudicator’s final decision, their avenue of recourse would be an application for judicial review at the Federal Court.
Although bypassing the ERC and applying to the Federal Court may be a faster route overall, in each case, the desire or need for a speedier process will have to be weighed against all other relevant factors, including:
your chances of success on appeal;
whether it would be beneficial to have the appeal adjudicator’s decision (and the Federal Court’s decision), informed by the ERC’s F&Rs; and
if not successful on appeal, whether you are willing and able to proceed to the Federal Court.
If your case is already at the ERC awaiting review, you could request that your case no longer be reviewed by the ERC, but that it proceed directly to the internal RCMP appeal adjudicator.
If you are contemplating bypassing the ERC, you are strongly encouraged to seek the advice and assistance of your MWA or lawyer to ensure that:
doing so would be strategically wise; and if so,
your Notice of Appeal, request for non-referral to the ERC, and appeal submissions are all skillfully written so as to maximize your chances of success.
Jill Gunn is an Ottawa-based lawyer. Her practice involves protecting the rights of RCMP Members involved in labour relations processes, and the just resolution of workplace harassment issues. Formerly legal counsel at the ERC and in-house counsel at York Regional Police, she has been providing legal advice on police labour relations matters since 2005.