Labour Rights Law Office Sebastien Anderson, Barrister & - - PowerPoint PPT Presentation

Labour Rights Law Office

Sebastien Anderson, Barrister & Solicitor

Labour Rights Law Office: Who are we?

• Our people
• S

ebastien Anderson, BC & AB

• Daniel Oleksiuk, BC
• S

herry S hir, Articled S tudent

• Primary fields of practice
• Labour, Employment, Human

Rights, & Administrative law

• Our Police Clients
• Port Moody Police S

ervices Union

• Transit Police Prof. Association
• Individual RCMP Members
• A virtual law office
• Toll-free access 24/ 7/ 365
• Phone: 1-877-708-8350
• Fax: 1-877-700-8879
• Email: info@

LabourRightsLaw.com

• Web: www.LabourRightsLaw.com
• Cloud-based servers in BC
• Encrypted Enterprise file sharing
• Upload & download large files
• Collaboration
• Quick and easy access to documents

What issues are facing our RCMP clients?

• Bill C-42: An Act to amend the RCMP Act & related consequential

amendments to other Acts

• Justice delayed is j ustice denied: the RCMP grievance procedure
• Health S

ervices Office on the offensive!

• Elements of a good employment law defence: What can you do?

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

Workplace relations: Amendments to Parts I – IV of the RCMP Act

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• Legislative history
• First Reading: 20 June 2012
• S

econd Reading: 19 S

• ept. 2012
• Third Reading: 6 March 2013
• Royal Assent: 19 June 2013, S

tatutes of Canada 2013, c-18.

• Coming into force: “ on a day to be fixed by Order of the Governor in

Council.”

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• The Harper Government says Bill C-42
• modernizes discipline, grievance and human resource

management processes for members, with a view to

preventing, addressing and correcting performance and conduct issues in a timely and fair manner [… ] In particular, it authorizes the [RCMP] Commissioner to act with respect to staffing, performance management, disputes relating to harassment and general human resource management.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• Bill C-42 is said to
• Increase flexibility so the Commissioner has the authority to act fairly and

expeditiously to resolve conflicts tarnishing the RCMP’s reputation;

• “ increase accountability to its members and the public;”
• “ gives force of law on investigations…

involving members of the RCMP;”

• Improves “ enforcement of disciplinary measures, the handling of

grievances… in order to expedite the processing of … misconduct cases involving RCMP members.”

Commissioner’s new powers to modernize human resource management & harassment

Commissioner Paulson: The person to modernize the RCMP?

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

ection 31(1.2); precludes a Member from filing a grievance claiming a right t o equal pay for work of equal value;

• S

. 31(1) of the Act : a member may file a grievance, if there is no other process for redress in the Act , Regulations, or Commissioner’s S tanding Orders;

• The amendment to S

ection 31(1.1)of the RCMP Act prohibits the filing of a grievance if there is another administrative procedure contained in another Federal statute, with the exception of the Canadian Human Right s Act ;

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

ection 30.2 of the Act requires the Commissioner to establish “ an informal conflict management system;”

• S

ection 31(6) of the Act is amended to require a response to a grievance “ as soon as feasible” rather than the requirement to do so “ as soon as possible;”

• S

ections 32(1) & 45.16(9) of the Act are amended by removing the express reference to j udicial review under the Federal Court s Act ;

• Decisions are “ final and binding” , therefore, j udicial review is available;

Increased authority for the RCMP Commissioner

• Discharge any member for promotion of economy or efficiency of the

Force: s 20.2(1)(k);

• Discharge/ demote a member for reasons other than a contravention of

the Code of Conduct: s 20.2(1)(g);

• Discharge/ demote a member whose performance the Commissioner

deems unsatisfactory: s 20.2(1)(e); and

• Require a member to undergo a medical examination/ assessment by a

qualified person chosen by the Commissioner: s 20.2(1)(c);

• To sub-delegate the authority to dismiss/ demote; and the authority to

sub-delegate the authority do dismiss/ demote: s 20.2(4);

Commissioner’s new authority to make rules

• To direct the stoppage of a member’s pay and allowances: s. 21(2)
• To discharge/ demote a member for
• unsatisfactory work performance;
• reasons other than contravention of the Code of Conduct; and
• the promotion of economy and efficiency of the Force;
• To require a member to undergo a medical

examination/ assessment to determine

• the member’s ability to perform their duties; or
• to participate in Code of Conduct proceedings.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

. 36 of the Act : Commissioner may make rules “ defining the levels of the grievance procedure, i.e., restricting grievances concerning various matters.

• S

ection 37 Discipline replaced by Part IV-Conduct

• Bill C-42 makes no substantive

changes to the Code of Conduct Regulation

• procedural changes are intended

to make it more “ flexible”

• A hearing is not required for all

Code of Conduct investigations, s. 42 of the Act .

• S

. 40.2 of the Act permits the Commissioner to seek an ex part e search warrant from a j ustice; and production orders, s. 40.3 of the Act .

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• Code of Conduct investigations conducted by a “ Conduct

Authority” for which the Commissioner’s Rules define a “ conduct measure.”

• If Conduct Authority considers the conduct measure insufficient,

matter may be referred to a hearing before the Commissioner’s delegate.

• Conduct Authority may impose only one or more of the defined

conduct measures.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

. 43 of the Act , establishes Conduct Board similar to a military court- martial procedure;

• Hearing before Conduct Board is public, unless otherwise ordered, s. 45.12.
• Conduct Board has the same powers as a Board of Inquiry, s. 45(2) of the

Act ;

• Conduct Board may impose a penalty including:
• a recommendation for dismissal;
• a direction to the Member to resign, failing which it will recommend dismissal;
• r
• one or more of the conduct measures defined by the Commissioner’s Rules.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• Conduct Board may conduct the hearing in the absence of the

affected Member, s. 45.12(8) of the Act .

• Conduct Board may require a Member to submit to a medical

examination/ assessment if the Member claims to be unable to attend due to medical reasons, s. 45.12(9) of the Act .

• A Member may appeal the Conduct Board’s decision to the

Commissioner, s. 45.11 of the Act .

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• The External Review Committee replaces the former Adj udication Board

provisions.

• The Appeal may be referred to the Committee if it involves,
• financial penalty of more than one day’s pay;
• demotion;
• direction to resign;
• recommendation for dismissal; or
• dismissal.
• Part V – Discharge & Demotion is repealed, Bill, s. 33.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

ection 50 of the Act creates a number of summary conviction offences, punishable by a fine of up to $5,000 and/ or 6 mos. Imprisonment for

• refusing to produce a document in that person’s possession or control;
• Refusing to answer any question;
• Using insulting or threatening language or causing interference or disturbance

during a proceeding under the Act ;

• Printing observations or using words in relation to a civil or administrative

action or proceeding with an intent to inj ure reputation;

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• S

ection 50.1 of the Act creates a number of hybrid offences (summary conviction or indictable offences) for,

• Intentionally harassing, intimidating, or threat ening anyone to compel them from making

a complaint;

• Harassing, intimidating and threatening a complainant, a member subj ect to Code of

Conduct proceedings, or a potential witness;

• Making a false or misleading statement;
• Destroying, mutilating, altering, or concealing a document or other evidence; and
• Directing or counselling anyone to do any of the above.

Bill C-42: An Act to amend the RCMP Act & related consequential amendments to other Acts

• Civilian Review & Complaints Commission replaces the Commission

for Public Complaints Against the RCMP;

• It is not responsible for review of
• grievances;
• disciplinary matters;
• demotions; and
• dismissals.
• Jurisdiction is limited to conducting reviews on its own initiative concerning
• nly specified RCMP activities.

Justice delayed is j ustice denied:.

The RCMP grievance procedure and the RCMP’s defence by delay, obfuscation, and stall tactics

Justice delayed is j ustice denied

• Congratulations to the MPP

A for setting up the MPP AC Legal Program!!!

• The grievance process is untimely, non-responsive and ineffective.
• The RCMP’s grievance procedure is overly complex and cumbersome.
• However, failure to pursue a grievance provides the RCMP with a defence

that the Member failed to engage an available dispute resolution mechanism.

• The financial burden to retain and instruct legal counsel was more than

many members could bear.

Health S ervices Office on the offensive

Health S ervices Office on the offensive

• HS

O is terminating payment for treatment unless Member consents to excessive disclosure of their personal confidential medical records by their healthcare provider, e.g.,

• DS

M diagnosis;

• S

ymptoms;

• Treatment plan, etc.
• Arbitrary removal from RCMP’s list of approved healthcare

providers following professional disagreement concerning treatment plan.

Health S ervices Office on the offensive

• If the Member refuses consent to excessive disclosure, change their

status to permanently disabled from performing work in an RCMP workplace so as to trigger medical discharge proceedings.

• HS

O is entitled to reasonable information from a Member’s healthcare provider, including:

• Whether Member is fit to work;
• If not, the prognosis about when a return to work is anticipated;
• If so, what restrictions and limitations are necessary for a return to work;
• If the Member has a temporary or permanent disability, what measures are

necessary to accommodate their return to work in an RCMP workplace?

Elements of a good employment law defence:

What can you do?

Employment law defence tactics: What can you do?

• 1.

Request to personally review your personnel file

• S

ign, date, number, and initial every single page;

• Make an appointment with yourself to do this every year on your birthday as a

gift to yourself;

• 2.

Purchase and maintain your own “ Work Diary”

• Make contemporaneous notes of meetings with supervisors re: work

performance issues or other incidents that may result in employment related consequences.

• Keep it in your locker or somewhere safe and confidential so you can take it

with you with little or short notice.

Employment law defence tactics: What can you do?

• 3.

When no more pages available in Work Diary store it in a secure place, e.g., S afety Deposit Box, safe, etc.

• 4. Make copies of any potentially relevant policies and keep them

with your Work Diary.

• 5. When trouble surfaces, prepare a chronological time-line using

notes made from your Work Diary and the relevant documents.

Thank you! Any Questions?

S ebastien Anderson, Barrister & S

• licitor

Labour Rights Law Office Ph: 604-475-0041 or 1-877-708-8350