Grievance Case Summary - G-534

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 claims. He described the prejudice suffered as being the denial of funds to which he was entitled under the Treasury Board Travel Directive (TBTD). The Grievor identified the Corporate Management Officer (CMO) as the Respondent even though the Acting Officer in Charge stated that he had made the decision to deny the Grievor’s 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.

A Level I Adjudicator found the Grievor had standing and that the Respondent was not the CMO, but rather the individual who had made the decision which was being grieved. He also flagged for the Grievor that although he was making no firm finding on timeliness, the grievance may well have been out of time. Subsequent to the first Level I decision, the Grievor was given a chance to make further submissions to support his decision. He made no representations about the timeliness question. A second Level I Adjudicator denied the grievance on the ground that the Grievor had not established its merits. 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. She noted the Grievor did not address the time limits issue despite the first Level I Adjudicator “making the Grievor aware it was his burden to establish the limitation period was respected”. The second Level I Adjudicator 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. A respondent serves as the Force’s representative during the grievance process. He or she is supposed to be “the person who made the decision, act or omission that is the subject of a grievance” (see Commissioner’s Standing Orders (CSO) (Grievances), SOR/2003-181, section 1). The Level I Adjudicator correctly decided that the proper respondent was the Acting Officer in Charge. It was reasonable for the second 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 primarily because the Grievor has offered no explanation for the apparent delay, and 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 noted that, despite being given adequate opportunities to make submissions with respect to the issue of timeliness, the Grievor elected not to address this issue.

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.

The Commissioner briefly commented on the collateral issue of the identity of the respondent. The issue of the appropriate respondent was referred to a Level I Adjudicator for a decision. The Level I Adjudicator named an appropriate respondent after determining that the respondent identified by the Grievor was not the individual who made the decision that was being grieved. The decision regarding the proper respondent played a particular role in this matter, as the Grievor had filed another grievance on the same subject-matter (G-533), naming the responding party now also identified by the Level I Adjudicator in this file. Even though the two grievances then dealt with the same respondent and the same subject matter, the Commissioner chose to render separate decisions.