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2016-07: Disciplinary Procedural Code

Whereas article 19 of the bylaws provides that the organization may undertake certain disciplinary actions in respect of members,

And whereas it is desirable that a clear policy be put into place that will facilitate the orderly and transparent resolution of disputes, grievances, and complaints that may arise from time to time between members of the organization and between members and the organization itself,

Be it resolved that Resolution 2001-10 (“Disciplinary Procedural Code”) be rescinded;

And be it further resolved that article 19.7 of the bylaws be replaced by the following:

“The procedure to be followed in respect of any disciplinary action pursuant to these bylaws is as follows:

1. Interpretation and Application

1.1 This policy in no way limits the rights of any party, including the organization and its members, from pursuing other modes of redress that may be available to them including civil, criminal, or other administrative proceedings.

1.2 For ease of reference, the person or people raising a grievance or a complaint will be referred to here as the “Complainant” or “Complainants”. The person or people about whom a grievance or complaint is made will be called the “Respondent” or “Respondents”.

1.3 The national board of directors may launch a grievance or complaint on its own initiative and will, in that case, be represented by one board member duly appointed for the purpose.

1.4 Meetings may be conducted in person, by telephone, by videoconference, by audio conference, or by any other means that permits all parties to actively participate in the conversation.

1.5 These procedures are to be interpreted with a view to resolving disputes. In the event that time periods are missed or extensions sought, or in cases where technical compliance with the rules has not been fully achieved, reasonable flexibility shall be afforded to the parties to avoid any injustice. In the event that any dispute arises with respect to these rules, a motion may be made to the national board to have the matter resolved, and the national board may (on a two-thirds majority vote) make any order it deems just in order to facilitate grievance and complaint proceedings.

2. Choice of Procedure

2.1 Two distinct processes exist for the resolution of disputes: a grievance process for resolving minor issues, and a complaints process for addressing more serious disciplinary matters.

2.2 The grievance process may be used in circumstances where the penalty sought by the complainant is a reprimand or the issues between the complainant and the Respondent may be resolved short of holding a formal hearing. A grievance proceeding may not lead to disciplinary action beyond a reprimand (such as suspension or expulsion of a member).

2.3 The complaint process is reserved for the most serious of disciplinary infractions or for cases where important organizational values and beliefs are challenged. It should be used when the actions of an individual are likely to negatively impact the reputation of the organization, where the core tenets of the organization have been willfully disregarded or flouted, or where gross negligence or carelessness is being alleged. The formal complaint procedure must be utilized in circumstances where the Respondent is alleged to have committed criminal acts as defined in the Criminal Code of Canada, the Narcotic Control Act, the Food and Drugs Act or any other statute containing indictable offence provisions. Note that in such cases, the complaint process is intended only to address matters as between the organization and its members.

2.4 The Complainant will choose whether to classify their concern as a grievance or a complaint. However, the national board of directors may, on a motion requiring at least four directors’ approval, elevate a grievance to a complaint in circumstances where:

a) The matters in issue affect the organization as a whole;
b) There are other complaints dealing with the same subject matter, which are already under way;
c) The matters involve allegations that potentially criminal acts have been committed by the Respondent; or
d) It is determined that in the interests of the just resolution of the matter that the complaint should be treated as a formal disciplinary matter.

3. Administrative Matters

3.1 Grievances or complaints may be initiated by addressing concerns, in writing, to any member of the board of directors, or to any person or persons as the national board may from time to time designate to receive such grievances and complaints.

3.2 The national board may from time to time appoint one or more Grievance and Complaints Committees consisting of three individuals, at least one of whom is a member of the national board of directors, to address grievances and complaints either on a standing basis or for the purposes of a particular grievance or complaint.

3.3 Decisions resulting from grievance or complaint proceedings will be provided to the parties electronically (by e-mail) where possible, and on request, sent by regular mail to the parties in the format or formats of their choice.

3.4 Each Complainant and Respondent is entitled to be represented by legal counsel or an agent at any face-to-face meetings, at any hearings before the board or when the matter is considered at a membership meeting. However, if a party chooses to be represented by counsel or an agent, they are solely responsible for any fees, disbursements, or other costs associated with that representation.

3.5 If the organization or the national board is a Complainant or Respondent in respect of a complaint, the national board may, by ordinary motion, allocate funds for legal fees or disbursements to retain its own legal counsel or agent to provide legal advice relevant to any issue arising in the proceedings.

3.6 No grievances may be instituted after the expiration of 30 days from the time of the incidents complained of occurred or 30 days from the time that the Complainant may, through reasonable diligence, have learned about the incidents in question.

3.7 No complaints may be instituted after the expiration of one year from the time of the incidents complained of occurred or one year from the time that the Complainant may, through reasonable diligence, have learned about the incidents in question.

4. Grievance Procedure

4.1 To initiate a grievance, the Complainant will prepare and submit a written document outlining their concerns. The grievance should contain sufficient information and particulars to identify who is involved, the nature of the concern, who might have more information about the issue, and what resolution or solution the Complainant hopes to achieve.

4.2 When the grievance is received, it shall be referred to a Grievance and Complaints Committee. Once the committee is satisfied that they have sufficient particulars and understand the concerns, and within two weeks (14 days) of receipt of the grievance in any case, two members of the same will meet with the Respondent to discuss the concerns.

4.3 If the issue cannot be resolved simply by that meeting, then the Respondent will be invited to prepare a written response to the concerns, to be provided within two weeks (14 days) of the phone call. This written response will be shared with the Complainant.

4.4 The Committee will then schedule a one-hour telephone or in-person meeting with the Complainant and the Respondent (to occur within 14 days) to attempt to resolve the matter. The meeting will be conducted as informally but fairly as possible, and is intended as an opportunity to frankly discuss the options and attempt to reach a resolution.

4.5 At the meeting, the Complainant and Respondent will be given an opportunity to tell their side of the story, and an attempt will be made to mediate a resolution. If such mediation is unsuccessful, then the Committee will, no later than 72 hours after the conclusion of the hearing, render a decision in writing to all involved.

4.6 The decision of the Committee is final and binding on the parties, except where a formal reprimand is a part of the decision which would give rights of appeal under section 6, below.

4.7 Copies of all grievance decisions will be retained by the national office and sent to the parties but will not otherwise be published or disclosed to any third parties except (a) as may be required by law or (b) where an appeal to the membership is made under section 6, below.

5. Complaint Procedure

5.1 To initiate a complaint, the Complainant will prepare and submit a written document outlining their concerns. The complaint should contain sufficient information and particulars to identify who is involved, the nature of the concern, who might have more information about the issue, and what resolution or solution the Complainant hopes to achieve.

5.2 When the complaint is received, it shall be referred to a Grievance and Complaints Committee. Once the committee is satisfied that they have sufficient particulars and understand the concerns, a copy of the complaint will be forwarded to the Respondent, who will have a three weeks (21 days) to provide a written response.

5.3 If a response is received, it will be forwarded to the Complainant who will then have two weeks (14 days) to provide a written reply. The reply may not raise new issues, but may only address what was in the response. The reply will be provided to the Respondent.

5.4 At the sole discretion of the Committee, and for the most serious of complaints, where the Respondent is alleged to have committed criminal acts as defined in the Criminal Code of Canada, the Narcotic Control Act, the Food and Drugs Act or any other statute containing indictable offence provisions, section 5.5 (Mediation) of this Policy does not apply.

5.5 For less serious complaints where disciplinary action is nevertheless sought, a mediation process will be undertaken. The goal of the mediation is to attempt to settle the matters in dispute between the parties. In this process:

a) a mediator shall be selected within 30 days of the Complainant’s reply, if any, by the Complainant, the Respondent and the Committee, together. If the parties are unable to agree on the selection of a mediator, the choice of the Committee shall prevail;
b) The mediation session shall occur within 30 days of selecting a mediator;
c) If the dispute is settled at mediation, the proposed settlement (which may or may not include disciplinary action or public notice of the proceedings) shall be submitted to the national board for approval, such approval not being unreasonably withheld;
d) If the mediation is unsuccessful, or the national board declines to approve the settlement, what transpired at the mediation shall remain confidential.

5.6 If the dispute is not resolved at mediation, the resolution is not approved by the national board, or if mediation is not available by virtue of s. 5.4 above, then an investigation will be launched. The Committee may conduct the investigation or may appoint one or more investigators to carry out this task.

5.7 The role of the investigator will be to collect relevant documents; interview potential witnesses; analyze the data collected; and make a written recommendation to the Committee within 30 days of being appointed, as to whether formal disciplinary charges should be laid against the Respondent. The Committee will consider that recommendation but is not bound to accept it. The Committee will decide, within 14 days of receiving the recommendation of the investigator, whether to proceed with disciplinary charges or not. That decision is final and not subject to appeal.

5.8 If the Committee determines that there is no merit to the complaint and that it should be dismissed, it shall provide written reasons justifying that decision.

5.9 If the matter moves forward to a formal disciplinary hearing, then the following process will govern:

(a) Where possible (and financially viable), formal disciplinary hearings should be held in person;
(b) At the hearing, the organization (as represented by a member of the board or by legal counsel instructed by a member of the board) will take the role of the Complainant;
(c) The hearing shall take place within 60 days of the final decision to proceed with disciplinary charges;
(d) The national board of directors, except for any director who is representing the organization or who may otherwise have a conflict of interest, will adjudicate the disciplinary hearing. In the event that this leaves fewer than five directors to adjudicate the hearing, the directors shall, by way of motion, appoint sufficient additional parties of their choosing, who or may or may not be members of the organization, to ensure at least five persons will adjudicate the hearing;
(e) At least two weeks prior to the hearing, notice of the hearing shall be provided to the Respondent. The notice shall set out the infractions that the respondent has allegedly committed in sufficient particularity to allow the Respondent to understand the case that he or she has to meet. In particular, the notice must identify the list of witnesses the board intends to call and include electronic (and where feasible, accessible) copies of any documents that will be used in the hearing;
(f) At the hearing, the parties may present documentary evidence, examine and cross-examine witnesses and make opening and closing arguments, subject to the discretion of the adjudicating panel and in accordance with any rules or procedures set forth by the panel;
(g) The panel shall render its written decision in favour of the Complainant or the Respondent within two weeks (14 days) of the discipline hearing. At least five members of the panel must agree in the result before a member may be found guilty of a disciplinary infraction.
(h) Written decisions after disciplinary hearings shall be circulated to the membership of the AEBC within 30 days of their release to the parties.

6. Appeal Rights

6.1 A member who is unhappy with the outcome of a grievance (rendered pursuant to s. 4.5 above) or a complaint (rendered pursuant to s. 5.9 above) may appeal that decision to the membership at the following meeting of members. This does not require that the board call a special or interim meeting of members prior to the next scheduled general meeting, except as may otherwise be provided by the bylaws. Similarly, the bylaw requirements for notice to members of special business at an upcoming meeting of members apply;

6.2 A member wishing to appeal such a decision shall, in writing, communicate to a member of the board or one of the persons appointed in s. 3.1 above of their intent to do so, and the remedy they seek from the membership, within 30 days of receiving the written decision;

6.3 On appeal, a member may seek to overturn or to vary in some way a disciplinary decision;

6.4 The disciplinary penalty imposed pursuant to s. 4 or s. 5 shall take effect and remain in effect until the conclusion of the appeal, except as may otherwise be directed by the national board of directors;

6.5 The national secretary shall include an appeal of the disciplinary decision in the agenda for the next meeting of members, and allot 30 minutes to consideration of the appeal. The notice to members of the meeting shall include a copy of the original disciplinary decision and a notice of hearing indicating the intent of the member to appeal and the remedy sought;

6.6 The appeal is ordinarily taken as an appeal from the decision as rendered: no new evidence or information not otherwise presented at the hearing may be put forward by either the board or the Respondent. However, at the outset of consideration of the appeal, the members may, by way of a two-thirds majority vote, grant leave to adduce additional evidence or information;

6.7 The members may, by a two-thirds majority vote, grant the appellant’s motion, in whole or in part, subject to any amendments made and accepted by the parties;

6.8 The decision of the members is final and may not be further appealed.

History: 

Replaces 2001-10