NC-049 - Harassment

The Appellant appealed a decision by the Force which found that his complaint of harassment was untimely and based on behaviours that did not meet the definition of “harassment” set out in RCMP policy. The Appellant's harassment complaint alleged that the Appellant's Recruit Field Coach had embarrassed and intimidated the Appellant.

The Appellant alleged on appeal that he had a legitimate explanation for the delay in filing his harassment complaint. He further argued that the Respondent's decision had breached the principles of procedural fairness and was clearly unreasonable as the Alleged Harasser's behaviours clearly met the definition of harassment and the decision contained incorrect statements of fact.

Under section 38 of the CSO (Grievances and Appeals), the Appellant was required to file his appeal with the Office for the Coordination of Grievances and Appeals (OCGA) within 14 days after the day on which he was served with the decision. The Appellant filed his Statement of Appeal approximately 3 months after being served with the decision. He argued that he had acted in good faith within the time limitation period, and did not know that he had contacted the wrong people. The Respondent asserted that the appeal should be dismissed because the Appellant had presented it late, despite being supplied with timely information on how to file it appropriately.

The ERC noted that the ERC and the Commissioner have consistently underscored that time limits are compulsory and jurisdiction-limiting, and if time limits are not met or extended in accordance with the law, then the Force shall refuse to entertain a matter. The ERC indicated that an Adjudicator may retroactively grant an extension of the section 38 limitation period pursuant to subsection 43(d) of the CSO (Grievances and Appeals) in “exceptional circumstances”. The ERC pointed out that RCMP policy does not define “exceptional circumstances” and that the ERC accordingly relies upon 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 Court indicated that the underlying consideration in an application to extend time is to ensure that justice is done between the parties. The Court noted that the test is not conjunctive, every factor may not be relevant, and there may be other relevant and contextual factors to consider. Given this flexibility, the test will be applied differently in each case, as its application will be largely contingent on the facts in play. The four factors cited in Pentney are:

1. There was a continuing intention to pursue the appeal;
2. The matter discloses an arguable case;
3. There is a reasonable explanation for the delay; and
4. There is no prejudice to the other party in permitting the extension.

The ERC found that the Appellant did have some intention to file an appeal of the Respondent's decision, but that there was no evidence that this intention was a continuing one. The Appellant had been provided clear, timely and unequivocal information about where to file his appeal and the procedure to be followed. Yet, he provided no details on what action, if any, that he took to follow the appeals process between the time that he had received that information, which was within the 14-day statutory limitation period, and the time when he filed his appeal approximately 2.5 months later. The ERC noted that a member must take ownership of his own case and that a lack of familiarity with applicable authorities is not an adequate rationale for failing to respect a statutory limitation period.

The ERC found that Appellant's argument that he had acted in good faith and had unknowingly sent his “Grievance” to the wrong person was not in any way a reasonable explanation for the delay, and that this was a primary consideration in applying the Pentney test in this case. The ERC indicated that it would be prejudicial to the integrity of the Force's appeal process to allow an extension when the Appellant had no continuing intention to file an appeal and no reasonable explanation for the delay. The ERC stated that to allow this extension would provide the Appellant an unfair advantage over other members who either chose not to appeal or were not permitted to appeal because they had missed the time limit, and that it would be an arbitrary and unwarranted ‘watering down' of the time limit. The ERC found that in light of its analysis of the other Pentney factors, the issue of whether the matter raised an arguable case was simply not sufficiently compelling to be determinative in the circumstances.

The ERC found that the Appellant had not respected the 14-day statutory time limit to appeal and that an extension of that time limit was not warranted.

The ERC recommended that the Commissioner deny the appeal and confirm the Respondent's decision.

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

The Appellant was a recruit in X Detachment. On December 12, 2017, the Appellant presented a harassment complaint (Complaint) against his coach (Alleged Harasser) for his behaviour between May 17, 2016, and July 29, 2016. The Respondent found that the Complaint was presented after the one-year limitation period for harassment complaints had expired and was more appropriately addressed as a performance issue. The Appellant filed an appeal of this decision approximately three months after he received it. The Office for the Coordination of Grievances and Appeals (OCGA) raised the concern that this appeal was submitted after the 14-day limitation period for appeals had expired. Submissions on both the preliminary issue of timeliness and the merit of the Appeal were presented to the ERC and then the Adjudicator. The ERC recommended that this appeal be dismissed because it was filed outside the 14-day limitation period prescribed by section 38 of the Commissioner's Standing Orders (Grievances and Appeals) and no exceptional circumstances justified a retroactive time limit extension. The Adjudicator agreed with the ERC recommendations and dismissed the appeal.