NC-168 - Harassment

The Appellant filed a harassment complaint (Complaint) against a senior member of the RCMP (Alleged Harasser) who worked at the same detachment as the Appellant. Following a harassment investigation, the Respondent found that the Complaint was not established (Decision). According to the Appellant, he was served with the Decision on October 7, 2019. On October 21, 2019, he sent an email to the RCMP’s legacy grievances mailbox, stating in part, that he could only find a “form for Grievances”, and was sending it even though he was not sure if it was the right form to complete. He requested clarification in that regard, and added, “Today is the deadline to grieve or appeal this decision.” Sometime between October 22 and October 23, 2019, the Office for the Coordination of Grievances (OCG) replied to the Appellant. The record contained some excerpts from that email, in which the OCG explained, in part, that the mailbox the Appellant had contacted was for legacy grievances submitted before November 28, 2014. Further, the OCG provided the Appellant with instructions on how to file an appeal. On October 23, 2019, he filed his Statement of Appeal with the Office for the Coordination of Grievances and Appeals (OCGA), indicating that the Decision was reached in a manner which contravened the applicable principles of procedural fairness. 

The ERC found that the Appellant was required to file his appeal on or before October 21, 2019, pursuant to section 38 of the Commissioner’s Standing Orders (Grievances and Appeals) (SOR/2014-289) (CSO (Grievances and Appeals)).

The ERC found that the record raised a question about whether the Appellant had filed a timely appeal, and requested that the OCGA afford the Parties opportunities to provide submissions on this preliminary issue. A submission on timeliness was only received from the Respondent. The ERC contacted the OCGA to confirm whether any attachments were enclosed with the email the Appellant had sent to the OCG on October 21, 2019. The OCGA responded that the email contained no attachments.

The ERC referred to the ERC Findings and Recommendations in NC-011. The ERC explained that, notwithstanding the defect in form, if the Appellant had contested the Decision by presenting a grievance form within the 14-day time limit, setting out his grounds of appeal and outlining all relevant information, it is possible that his appeal may have been considered filed within the statutory time limit. Had this occurred, the relevant date in assessing the timeliness of the appeal may have been the date on which the Appellant filed a grievance form. However, the ERC found that the record contained no evidence that the Appellant had filed his appeal, in any form, within the prescribed time limit. Further, the ERC found that the email sent by the Appellant on October 21, 2019, was sent to an incorrect recipient. Lastly, the ERC found that the Appellant did not provide submissions with respect to the timeliness of his appeal.

Accordingly, the ERC found that the appeal was not filed within the prescribed time limit, as the Appellant had filed his appeal 16 days after being served with the Decision.

In assessing whether a retroactive extension of the limitation period was warranted pursuant to subsection 43(d) of the CSO (Grievances and Appeals), the ERC considered the four-factor test set out by the Federal Court in Canada (Attorney General) v. Pentney, 2008 FC 96 (Pentney). The ERC found that there was a continuing intention to appeal on the Appellant’s part, he had presented an arguable case, and there appeared to be no demonstrated prejudice to the Respondent in permitting the extension. However, the ERC found that the Pentney factor that could be determinative to a finding that an extension of time was not warranted, was that the Appellant had not provided any reasonable explanation for the delay in presenting his appeal outside of the statutory 14-day timeline. The ERC also found that the Appellant had not provided any explanation with regard to the timeliness of his appeal. 

The ERC recommends that the appeal be dismissed.