MOUNTED POLICE MEMBERS LEGAL FUND
Significant Win in Supreme Court of Canada
RCMP members have secured a significant victory in the Supreme Court of Canada. In Fraser, Pilgrim and Fox v. Canada, the Supreme Court found that the RCMP Pension Plan is unfair to RCMP members who temporarily reduce their hours of work to job-share. The RCMP introduced the job-share program in 1997 as an alternative to members going on extended leaves without pay. The program was created for RCMP women who needed to reduce their hours of work for childcare responsibilities in the home. But unlike a leave without pay, where returning members could “buy back” pensionable service by paying the employer and employee pension contributions, RCMP members who job shared were denied the opportunity to buy back full-time pension credits. This resulted in lower pension benefits for retired members. The Supreme Court of Canada held in a judgment released in October 2020 that this pension rule had a disproportionate impact on women, and it was therefore a clear violation of the right to equality under s. 15(1) of the Canadian Charter of Rights and Freedoms.
This claim was brought forward by three now retired members of the Force, Joanne Fraser, Alison Pilgrim and Colleen Fox, with the support of the Mounted Police Members’ Legal Fund (LF). These women and others brought this matter forward to RCMP senior management in 2000, and pursued grievances when their requests for equitable treatment were denied. Over the years, senior management acknowledged that there was “an element of unfairness” to the RCMP Pension Plan, and was “immensely sympathetic” to their position. However, the terms of the RCMP Pension Plan were found in the RCMP Superannuation Act, and as a statute there was little that could be done. When the grievances were finally denied in 2010, the members looked to the Courts.
The Supreme Court of Canada found that women continue to carry an unequal burden for childcare, and that this has effects on their working lives. Historically, pension plan rules were designed for “male pattern” employment, meaning long term, full-time uninterrupted employment. But women often face breaks in service or part-time hours to manage childrearing and childcare responsibilities in the home. Many pension plans have revised their rules over the years to be more flexible and provide more opportunities to accrue pensionable service. However, the RCMP Pension Plan has not kept pace, and the result is that RCMP members who temporarily reduce their hours of work for childcare responsibilities will have lower pension benefits than their colleagues.
The Supreme Court of Canada noted that the government could identify no policy concern, purpose or principle that explains why job-sharers should not be granted full-time pension credit. On the contrary, the Court held that this limitation was entirely detached from the purposes of both the job-sharing scheme and the buy-back provisions, which were intended to ameliorate the position of female RCMP members who take leave to care for their children.
In the result, the Supreme Court of Canada declared that the RCMP Pension Plan violates section 15(1) of the Charter and that the federal government should amend the plan to allow members to buy back this missed pensionable service. The Court directed the government to ensure the pension amendments have retroactive effect so that all RCMP members, retired or current, have the opportunity to buy back full-time pension credit.
The LF was proud to support this ground-breaking Charter litigation. For almost a decade, the LF financially supported this case, including the development of the legal arguments, retaining experts, and arguments at three levels of court. This matter was pursued by very capable counsel, Mr. Paul Champ of Ottawa. With this important victory, past and future RCMP members will benefit from a pension plan that is fairer to women. It is also expected that this victory will lead to change for women across the federal public sector, as the other public service pension plans will also have to be amended to extend the buy back right to full-time employees who temporarily reduce their hours of work.
INPORTANT INFORMATION FOR ALL MEMBERS OF THE MOUNTED POLICE MEMBERS’ LEGAL FUND (MPMLF)
- NATIONAL POLICE FEDERATION LOANS
In 2016 members of the MPMLF, who were interested in working to form a Union within the RCMP,(Later known as the National Police Federation) asked the Legal Fund to approve an interest bearing loan to assist them in this endeavour. That loan, along with further requests in 2017 and 2018 were approved for a total $1,830,000,00.
On March 31, 2020 the loans, along with interest in the amount of $97,892.60, for a total amount of $1,927,892.69, were repaid to the Legal Fund by the National Police Federation (NPF).
- AN UPDATE ON THE CURRENT STANDING OF THE MPMLF
Following in quotation marks contains some information that was forwarded to you all in November 2019 at the end of which I will indicate to you in large type why this update note is necessary.
“In a few weeks the Union will start collecting membership fees from most members, Officers, Civilian Members and some others are excluded, but there will not be enough left to keep the Legal Fund going. (20 Officers and 149 Civilian Members are currently members of the Legal Fund). We now have 116 open files and believe we have funds to bring them to a conclusion. We continue to receive approximately three (3) new applications for assistance a week. To be ready for what needs to be done, we contacted our Legal counsel to see what option(s) might be available and find out what we would have to do if the Legal Fund was to continue or be dissolved. He provided instructions for dissolution of the Legal Fund as continuation as it currently exists was not possible. Last week the Legal Fund Executive met to discuss the material provided by our lawyer following which, In a telephone conversation with our lawyer during the meeting, we learned that there was an option that was easier than dissolution and would continue protection for members of the Legal Fund. That option was to meld with the National Police Federation (NPF). Merging would serve all members (Except Officers, Civilian Members and perhaps a few others who have been exempted from being associated with the NPF). It would ensure that the many important outstanding cases that are ongoing are maintained as well as provide the NPF’s legal branch with an immediate influx of funds by which to protect those members. This option was discussed with NPF President, Brian Sauve and he was in agreement. As a result the Legal Fund Executive approved the following motion.”
“WHEREAS - the Mounted Police Members' Legal Fund (LF), given the reduction of participants in the LF since the Commissioner cut pay roll deductions in March 2016, the LF cannot continue to provide services to the membership, as per the objects of the LF.”
“BE IT RESOLVED - after lengthy discussion and consultation with the LF counsel by the Executive of the LF, given the same like-minded objects of both the LF and the National Police Federation (NPF), there should be a merger of the LF with NPF, subject to approval by members of the LF and the NPF Executive.”
Vote: Unanimous agreement by the LF Executive.”
“As mentioned above, this option, as well as dissolution, is subject to further discussion and the approval of members of the LF and the NPF Executive. As a result we have planned a Special Meeting to be held in the Spring and Summer rooms at the Albert at Bay Suite Hotel, 435 Albert Street, Ottawa ON K1R 7X4. Telephone 1-800-267-6644; 1-613-238-8858; Fax 1-613-238-1433 commencing at 9:00 AM on December 2, 2019.
“All members of the LF are entitled to a vote. If you are attending you can vote in person, if not, you can advise me at [email protected] which of the following has your proxy: Trevor Dinwoodie; Michelle Boutin; Jeff McGowan; Rob Farrer; Tom Almasi. If attending, please also advise me at [email protected] so I can ensure adequate space is available. If you are not attending and do not contact [email protected] to provide your proxy, Trevor Dinwoodie will be your proxy. “
AT THE DECEMBER 2, 2O19 MEETING, WHILE THE MAJORITY OF VOTES RECEIVED INDICATED THAT MEMBERS WISHED THE MERGER OF THE MPMLF AND THE NPF THERE WAS NOT ENOUGH TO LEGALLY APPROVE THE MERGER AND WE WERE ADVISED BY OUR COUNSEL THAT WE REQUIRED A FORMAL WRITTEN PROPOSAL WHICH NEEDED TO BE APPROVED BY THE NPF AND THE MEMBERS OF THE MPMLF.
OVER THE PAST COUPLE OF MONTHS THIS FORMAL WRITTEN PROPOSAL HAS BEEN DRAFTED AND REDRAFTED BY COUNSEL FOR THE MPMLF AND THE NPF HOWEVER HAS NOT BEEN FINALIZED AS OF APRIL 6, 2020. IN THE MEANTIME THE NPF STARTED COLLECTING NPF DUES AND THE 4000 PLUS MEMBERS, WHO HAVE MAINTAINED MPMLF MEMBERSHIP, ARE CONTINUING TO PAY MPMLF DUES. AS A RESULT A GREAT MANY MPMLF MEMBERS, WHO BELIEVED THAT THE MERGER HAD TAKEN PLACE, HAVE CONTACTED US TO FIND OUT WHY THIS IS OCCURRING. OUR ANSWER TO EACH HAS BEEN AS FOLLOWS:
“You are still being deducted MPMLF dues as the MPMLF is still an active corporation and continues to work as it has in the past. We continue to accept applications for assistance and paying monthly for the 75 plus Legal Fund files that are open.
If you have an issue and come to us for assistance we will ask if you have contacted the NPF. If you have and they say they will provide the assistance that is fine. We know what services we provide however do not know what the NPF will provide. If they say they can’t help then we will look at the issue and see if the MPMLF can. Hopefully we will be able to assist. We have over 4,000 members who have continued their membership with the MPMLF waiting to see if the merger with the NPF is approved. If it is, we will be advising the Legal Fund members that their membership in the MPMLF will be terminated at a certain date and they will receive refunds if necessary.”
A. G. Clarke, Secretary/Treasurer, MPMLF
In 2013, an application was made to the Legal Fund by the Staff Relations Representatives seeking funding for counsel to investigate the possibility of a claim concerning the RCMP’s delay in implementing pension portability for members who transferred to the RCMP prior to 2012 from other police departments. Eventually, forty-eight claims were filed in court to pursue damages flowing from that delay. The Legal Fund is pleased to report that these claims have now been concluded voluntarily, and that the Legal Fund is satisfied with the outcome of those claims.
We recently assisted a Member who sought help from the Legal Fund because he believed the promotion process was flawed. He also felt that the line officer was biased in favour of the one candidate over another and therefore there were grounds for filing a grievance.
In 2011, the Member applied for a promotion to S/Sgt. and was unsuccessful. He filed a grievance and once all relevant material was obtained, he learned that the successful candidate had failed to provide all up to date material and therefore was chosen under false pretenses. His grievance contained three main arguments: The successful candidate should not have been included because he/she submitted an incomplete application; the SLO did not provide adequate rationale for his decision; there was bias from the SLO in the selection process.
The line officer either ignored or was unaware of vital information pertaining to the successful candidate and as a result the Grievance was upheld at Level 1. The adjudicator ordered that the griever’s file along with the other candidates’ files be reassessed and the successful candidate would be promoted. The Griever didn’t agree with this, primarily because none of the other candidates had filed a grievance. He therefore, asked that the Grievance be sent to Level II.
The Level II adjudicator basically agreed with the Level I adjudicator with the exception of two changes: The application was to be re-assessed by a different SLO; the result would not be backdate.
After several years of trying to resolve this internally, the Member applied to the Legal Fund in an effort to find justice on 2017-03-29. A legal opinion was sought from Legal Fund Counsel. Counsel immediately filed an application in Federal Court to protect the Member’s timeline. Opinion of Legal Fund counsel was that there was a good chance of success should the issue be heard at Federal Court hearing.
The Member’s affidavit had to be file by 2017-05-03 followed by the respondent’s affidavit and then potentially on to a hearing in Federal Court. Before this could happen, the Member was notified of his promotion in the very position he had occupied in an acting role and it was backdated along with the appropriate compensation to 2012-01-09.
There are many lessons to be learned from this difficult exercise not the least of which is that Force decisions are not always fair and members don’t have their grievances dealt with in a timely manner. Why, after many years fighting for justice, does it take the threat of a Federal Court hearing to get some management personnel to come to their senses and apply basic principles of justice and fair play. Without the Legal Fund, this member would have to bear the cost of a legal opinion and a Federal Court action. Are you a member of the Legal Fund?
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C.7 - Senate submission
Supreme Court of Canada Motions
- SCC Decision on AGC Extension January 15 2016
- Reply of the AGC 30 Dec 2015
- Reply of the AGC to AMPMQ 23 Dec 2015
- Reply of the AGC to CPA 23 Dec 2015
- Reply of the AGC 30 Dec 2015
- AMPMQ - SIGNED ltr 4 Jan 2016
- Reply of the AGC to the Legal Fund 23 Dec 2015
- Reply of the AGC to CPA 23 Dec 2015
- Reply of the AGC to AMPMQ 23 Dec 2015
- Reply of the AGC 30 Dec 2015
- Cover Letter Reply of the AGC 30 Dec 2015
- AG Motion Record of the Respondent
- AMPMQ Response to Motion
- BCMPPA Response to the Motion
- CPA Response to AG Motion 2015
- MPAO Response to AG Motion 2015
- MPMLF Response to AG Motion for Extension
- AG of BC Response to AGC Motion