NC-242 - 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 and 15 days later, the Appellant filed her appeal.

While the Appellant acknowledged that her appeal was submitted outside the 14-day statutory time limit to do so, she explained that upon being served with the Respondent’s decision (Decision), she immediately reached out to a superior to express her discontentment and her desire to appeal same. She stated that because she was on medical leave, she did not have access to the RCMP InfoWeb or to any RCMP forms. The following day, the Appellant’s superior provided her with information regarding the appeal process. Eventually, the Appellant received a copy of form 6437 which prompted her to formally appeal the Decision. The Appellant’s position is that the limitation period should have started not when she was served with the Decision but rather when she received her superior’s response. 

The ERC found that the Appellant failed to file her appeal within 14 days of receiving the 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 she had not provided a reasonable explanation for the delay at issue. As for the remaining factors, the ERC found that the arguments raised by the Appellant presented an arguable case and that there was no indication that the Respondent would be prejudiced by an extension of the time limit.

The ERC determined 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.