Grievance Case Summary - G-524

The Grievor pursued and accepted a promotional transfer to a job in another city, even though he knew his family did not wish to go there. He moved by himself, believing his family would soon follow. They did not, and his marriage became strained. As a result, he cancelled the transfer and returned to his old job in accordance with the Integrated Relocation Program (IRP). He incurred costs during his trips to and from the other city, and sought compensation despite accepting that the IRP did not entitle him to certain expenses. A Departmental National Coordinator (DNC) denied his request. She indicated that, under the IRP, a member who cancels a transfer may receive relocation expenses only in exceptional circumstances. Such circumstances required an element of unforeseeability which, in her view, did not exist here.

The Grievor told a Force official he was “offended”, claimed he would be furthering things, and asked what constituted exceptional circumstances. He believed that saving his marriage surely qualified. The IRP subsequently gave him the IRP definition of “exceptional circumstances”. The Grievor grieved the original decision to deny his request roughly 33-38 days after becoming aware of it. The parties spoke to the timeliness issue and the merits. The Level I Adjudicator denied the grievance on the basis that the Grievor filed it outside the 30-day statutory limitation period. She also held that he did not establish that the delay was justified, or that a retroactive extension of the time limit was warranted. Sadly, the Grievor is now separated from his family.

After addressing minor preliminary issues, the ERC found that the matter was out of time. It recognized the perceived unfairness of enforcing a 30-day limitation period when other steps in the grievance process can take much longer. However, it explained that the time limit was mandatory, that the Grievor did not respect it, and that the Force had to follow the law.

The ERC also found that a retroactive extension was not justified. It reached this conclusion by applying the adaptable and contextual test for extending time limits set out by the Federal Court of Canada in Canada (A-G) v. Pentney, 2008 FC 96. It noted that while some factors favoured an extension, they were outweighed by other factors. Specifically, the Grievor failed to provide a reasonable explanation for the delay. His request to an official for more information about the DNC's reasons did not suspend the 30-day clock, since nothing new was presented which could have placed the matter in a whole new light. It was also unclear if he had an arguable case. Put simply, he did not seem to meet his onus of showing that his was one of the rare instances in which the Force should pay the expenses of a member who cancelled a transfer for personal reasons. While the breakdown of the Grievor’s marriage must have been devastating for him, it cannot reasonably be said to have been unforeseeable. Lastly, the record was missing crucial materials, and the Grievor conceded that the IRP did not entitle him to certain requested costs.

The ERC recommended to the Commissioner of the RCMP that he deny the grievance.

The Commissioner has rendered a decision in this matter, as summarized by his office:

As recommended by the ERC, the Commissioner denied the grievance.

The Commissioner found that the grievance was presented outside the 30-day statutory time limit within which to file a grievance. The Grievor's supervisor signed the grievance 33 days after the latest date that the Grievor would have been aware of the decision being grieved. Thus, the matter was out of time.

The Commissioner further deemed that clarification of the term "exceptional circumstances" in the decision being grieved did not restart the limitation period. He relied on prior grievance decisions (G-091 and G-095) in stating that requests to review a decision do not have the effect of restarting the time limit and a restatement of the decision by the Respondent does not consist of a new grievable decision.

Following the criteria set out by the Federal Court of Canada in Canada (Attorney General) v. Pentney, 2008 FC 96, the Commissioner found that a retroactive extension of the time limit was not warranted. The Grievor provided no reasonable explanation for waiting to file his grievance until after the 30-day period had expired. Further, the Commissioner agreed with both the Level I Adjudicator and the ERC in that it was not clear the Grievor had an arguable case or that he had met the burden of establishing that his was one of the rare instances in which the Force should pay the expenses of a member who cancelled a transfer for personal reasons.

On the collateral issue of the identity of a respondent, as pointed out by the ERC, the Commissioner echoed the significance of ascertaining the correct parties in each matter. While it was unclear, in this matter, whether the named responding party was actually the one to make the decision at issue, there was no objection to her involvement and the record showed complete submissions. The Commissioner found that a suitable respondent was named.