NC-235 - Harassment

The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser. Following an investigation, the Respondent determined that the Complaint was not established. The Decision was served on the Appellant on March 22, 2018 and he filed his appeal 42 days later, on May 3, 2018.

The Respondent went on to challenge the timeliness of the appeal. The Appellant acknowledged that he submitted his appeal after the 14-day statutory time limit. However, he argued that he followed the guidance provided to him by his Member Workplace Advisor but was ill-advised on how to properly challenge the Decision. He submitted that because of the misinformation he received, delays ensued and he remained unaware of the timeliness requirements to file an appeal until it was too late.

The ERC found that the Appellant failed to file his appeal within 14 days of receiving that Decision as required under 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 in Canada (Attorney General) v. Pentney, 2008 FC 96 (Pentney). The ERC found that the Appellant had not demonstrated a continuing intention to appeal the Decision and that he had not provided a reasonable explanation for submitting his appeal 28 days after the statutory time limit to do so. As for the remaining factors, the ERC found that the arguments raised by the Appellant, although not very detailed, presented an arguable case and that there was no indication that the Respondent would be prejudiced by an extension of the time limit.

Finally, the ERC found that a balancing of the Pentney factors supported the conclusion that an extension of time was not warranted in the circumstances.

The ERC recommends that the appeal be dismissed.