Grievance Case Summary - G-533

In 2009, the Grievor apparently made claims for private non-commercial accommodation allowance (PAA) for days that he was on relief duty. The PAA claims were denied. The Grievor grieved the denial of his PAA claims. The Grievor learned of the decision on October 5, 2009 and signed the grievance form on October 22, 2009. However, the Grievor’s supervisor only signed the grievance form on November 13, 2009, which was outside the 30-day time limit. Although the Grievor provided the applicable policy documents, he did not provide a copy of the completed expense form or forms and did not provide details of his claims. He described the prejudice suffered as being the denial of funds to which he was entitled under the Treasury Board Travel Directive (TBTD).

A Level I Adjudicator denied the grievance on the ground that the Grievor had not established its merits. Although provided with the opportunity to make a submission, she found that the Grievor failed to provide sufficient information to enable a reasonable person to determine whether the contested decision was made contrary to applicable legislation or policy. She also determined that the grievance was filed outside the statutory limitation period and was therefore statute-barred. The Level I Adjudicator recognized that since the timeliness matter had not been raised before the file had been sent to her for decision, fairness would normally require that she give the parties an opportunity to be heard on the question prior to making a ruling on it. She decided not to seek submissions from the parties on the timeliness issue because it would not alter the outcome, given her findings on the merits.

The grievance is referable to the ERC and the Grievor meets the statutory requirements for standing. It was reasonable for the Level I Adjudicator to conclude the grievance was untimely. She correctly decided not to provide an opportunity to be heard on the time limits issue because the Grievor did not meet his burden of persuasion to establish the grievance on a balance of probabilities. Retroactive extension of the limitation period is not justified in this particular case because the grievance does not present an arguable case. It is impossible to assess the merits of the grievance because the Grievor failed to provide the essential facts of the decision, act or omission under review.

The ERC recommended that the Commissioner of the RCMP deny the grievance. The record does not establish that the time limit was met, and the Grievor has failed to discharge his burden of persuasion on the merits.

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 39 days after the date of the decision being grieved. Thus, the matter was out of time.

The Commissioner further deemed that procedural fairness had been breached. He commented that the Office for the Coordination of Grievances or the Level I Adjudicator should have provided the parties with the opportunity to present submissions on the timeliness issue prior to a ruling being made on that issue. However, the Commissioner decided not to send the matter back to obtain submissions in that regard. He agreed with the ERC that this was a case where the Grievor had no chance of success because he clearly did not meet his burden of persuasion to establish the grievance on a balance of probabilities.

Following the criteria set out by the Federal Court of Canada in Canada (Attorney General) v. Pentney, 2008 FC 96, the Commissioner also 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 the Grievor did not have an arguable case. His submissions appeared to be insufficient to meet the onus of showing he was aggrieved on a balance of probabilities.