Grievance Case Summary - G-702

The Grievor grieved a decision made by the Health Services Officer (HSO) (Respondent) on January 7, 2011, that in accordance with Force policy, he would be non-operational for five years because of his medical condition.

The Grievor contacted the SRR program in February 2011 and was told that he had missed the 30-day time limit to file a grievance. In May 2011, the Grievor filed a complaint with the Canadian Human Rights Commission (CHRC). In January 2012, the Grievor spoke to another SRR who did not assist him. In May 2012, the CHRC informed the Grievor that he could request a time extension to file his grievance with the RCMP. In May, June and July 2012, he again contacted the SRR program who did not assist him with his grievance. In August 2012, the CHRC informed the Grievor that it would not entertain his complaint as he had not exhausted the RCMP's internal grievance process. In August and September 2012, the Grievor again contacted the SRR program who did not provide assistance with the grievance. In October 2012, the RCMP Human Rights Unit informed the Grievor that the grievance process was still open to him and that he would need to request an extension of the statutory time limit. The Grievor filed his grievance on December 21, 2012.

The Level I Adjudicator denied the grievance on the basis that it was not filed within the 30-day statutory time limit for doing so at Level I and a retroactive extension of the time limit was not warranted. The Grievor submitted the matter at Level II where the sole issue was the timeliness of the grievance.

The Grievor acknowledged that the grievance was not timely, but argued that a retroactive extension was warranted in his case. He addressed the four-factor test set out by the Federal Court in Canada (Attorney General) v. Pentney, 2008 FC 96, for determining whether to grant an extension of time to commence a proceeding before an administrative tribunal.

The ERC found that the Grievor did not meet the Pentney criteria. Between the aggrieved date in January 2011 and the date that the Grievor filed his grievance 23 months later in December 2012, he made numerous enquiries and attempts to receive assistance with filing a grievance. The ERC found that the Grievor exhibited intermittent intention but not a continuing intention to pursue his grievance. The ERC further found that the Grievor did not provide a reasonable explanation for the delay in filing his grievance. The ERC noted that the Grievor provided no explanation for his delay within the 30 day statutory time limit following the January 7, 2011 aggrieved date. The ERC noted that between May 2012, when the CHRC informed him that he could seek a retroactive extension of time, and October 2012, he made several contacts with the SRR program, but he was unsuccessful in obtaining assistance to file his grievance. On October 31, 2012, the RCMP Human Rights Unit informed him that he could request a retroactive extension. Yet, he did not file his grievance until December 21, 2012, approximately 51 days later. The ERC found that to grant an extension in these circumstances would be prejudicial because it would introduce significant uncertainty into the Force's grievance process and would compromise the finality of the process and its integrity.

The ERC recommended that the Commissioner deny the grievance.

The Commissioner's decision, as summarized by her office, is as follows:

The Health Services Officer advised the Grievor on January 7, 2011, that he was designated as non-operational due to his medical condition. The Grievor challenged the decision on the basis that the RCMP policy does not accurately relate to his medical condition. The Grievor made some effort to seek assistance from Staff Relations Representatives without success and filed a complaint with the Canadian Human Rights Commission. Subsequently, the Grievor filed his grievance on December 21, 2012, and sought an extension. The Level I Adjudicator found the grievance lacked timeliness and did not meet the requirements for an extension. The grievance was referred to the ERC and the Grievor requested that the matter be held in abeyance. The ERC refused the Grievor's request to hold the grievance in further abeyance, found the grievance was not timely, that an extension was not appropriate in the circumstances, and recommended the grievance be denied. The Commissioner agreed with the findings and recommendations of the ERC and dismissed the grievance.