NC-175 - Harassment

The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser who worked at the same Detachment. Following a harassment investigation, the Respondent found that the Complaint was not established. The Appellant submitted his appeal on August 16, 2019. Two weeks later, the Office for the Coordination of Grievances and Appeals (OCGA) asked the Appellant if he could provide proof of service of the Respondent’s decision (Decision). While he indicated that he did not have a copy of the proof of service from Canada Post, the Appellant explained that upon being served with the Decision, he made note of when the appeal was due and “made sure” he filed his appeal within the statutory 14-day timeline. In a subsequent submission, the Appellant reiterated that, to the best of his knowledge, he received the Decision on August 2, 2019 and therefore, that he had respected the statutory time limitation by filing his appeal on August 16, 2019.

Following a preliminary review of the record, the ERC requested that the OCGA confirm the date on which the Appellant had been served with the Decision. The OCGA provided the ERC with a copy of the proof of service document confirming that the Appellant had received the Decision on August 1, 2019. The ERC gave both parties an opportunity to make submissions on the issue. The Appellant acknowledged that he submitted his appeal after the statutory 14-day timeline; however, he argued that when he was served with the Decision, the RCMP had recently terminated his employment and therefore, he had no support in navigating the “highly legalistic process” he was dealing with. He added that he was also waiting for another member’s advice before sending his appeal.  

The ERC found that the Appellant failed to file his appeal on or before August 15, 2019, pursuant to section 38 of the Commissioner’s Standing Orders (Grievances and Appeals) (SOR/2014-289) (CSO (Grievances and Appeals)).

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 of Canada (Attorney General) v. Pentney, 2008 FC 96 (Pentney). The ERC found that the Appellant had not provided a reasonable explanation for the delay nor a continued intention to pursue his appeal. While it was determined that the Appellant’s arguments challenging the reasonableness of the Decision presented an arguable case, the ERC found that it would be prejudicial to the integrity of the Force’s appeal process to extend the statutory time limitation period in the circumstances.

On this basis, the ERC found that the application of the Pentney test revealed that an extension of the time limit under subsection 43(d) of the CSO (Grievances and Appeals) was not warranted in this case.

The ERC recommends that the appeal be dismissed.