The Respondent issued a Decision finding that the Appellant had breached the RCMP Code of Conduct. That Decision also imposed certain conduct measures on the Appellant. The Appellant appealed that Decision, but presented the appeal beyond the prescribed 14-day limitation period.
Subsection 29(e) of the Commissioner’s Standing Orders (Grievances and Appeals) authorizes the Commissioner to retroactively extend the 14-day limitation period to file an appeal in "exceptional circumstances".
The appeal engaged two considerations: (i) the extent to which the limitation period was exceeded; and (ii) whether the limitation period should be retroactively extended in the circumstances.
The ERC finds that the Appellant missed the applicable deadline by one day. In considering whether a retroactive extension of the limitation period is justified in the circumstances, the ERC considers a four-factor test. Three of those factors are met in the Appellant’s case: the Appellant had an ongoing intention to appeal, the matter discloses an arguable case, and granting an extension would not prejudice the Respondent. The fourth factor to be considered is whether there is a reasonable explanation for the delay. That factor is not met. The Appellant’s lack of familiarity with applicable authorities does not excuse omitting to respect a statutory time-limit. In addition, the Appellant has provided no information to substantiate his general assertion that health concerns affected his ability to file the appeal on time. The ERC concludes that a retroactive extension is not warranted.
The ERC recommended that the appeal be denied.
The Final Adjudicator accepted the ERC’s recommendation and dismissed the appeal.
Between January 2014 and October 2017, several events took place that the Appellant perceived as harassment by the Alleged Harasser. According to the Appellant, the Alleged Harasser had a negative influence on his career for several years. In his view, this caused him to be discouraged, depressed and devoid of all ambition within the RCMP.
As the decision-maker on the harassment complaint, the Respondent did not mandate an investigation and dismissed the complaint on the grounds that the alleged behaviour did not amount to harassment of the Appellant.
The Appellant appealed the matter on the grounds that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable. He argued that the Respondent was not impartial, failed to conduct an overall assessment by breaking down the series of events and erred by failing to mandate an investigation to gather evidence.
The case was referred to the RCMP External Review Committee (ERC). After reviewing the grounds of appeal, the ERC found that the Respondent should have mandated an investigation to fully understand the situation. The ERC found that the failure to mandate an investigation resulted in the Respondent failing to obtain relevant information, which meant he was unable to make an informed decision. The ERC found that the Respondent’s decision was therefore clearly unreasonable. Consequently, the ERC recommended that the appeal be allowed.
The Adjudicator determined that the Respondent should have indeed pursued an investigation to obtain a minimum level of information and that the failure to do so prevented a fully informed decision from being made on whether or not harassment occurred. The Adjudicator found that the decision was therefore clearly unreasonable and allowed the appeal.
The Adjudicator remitted the matter to a new decision-maker with directions that an investigation be conducted.
