NC-192 - 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. A few days later, the Office for the Coordination of Grievances and Appeals (OCGA) asked the Appellant when he had received the Respondent’s decision (Decision). The Appellant indicated that he received the Decision on August 2, 2019.

Following a preliminary review of the record, the ERC noted that the proof of service confirmed that the Appellant had received the Decision on August 1, 2019. The ERC gave both parties an opportunity to make submissions on the issue of the timeliness of the appeal. 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 had missed the delay in filing the appeal by a very short period. 

The ERC found that the Appellant failed to file his appeal on or before August 15, 2019, as required pursuant to the 14-day timeline imposed by 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 (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 recommended that the appeal be dismissed.

The Commissioner’s decision, as summarized by his office, is as follows:

On October 3, 2016, the Appellant was posted to his first detachment. He displayed several work-related deficiencies from the outset and failed to meet the Field Coaching Program requirements.

On November 17, 2018, the Appellant submitted a harassment complaint with three allegations against his Officer in Charge (Alleged Harasser).

On July 24, 2019, the Respondent found that the alleged behaviours did not amount to harassment.

The Appellant is challenging the Respondent’s decision that the Alleged Harasser did not contravene the RCMP Code of Conduct.

The Appeal was referred to the RCMP External Review Committee, who recommended for the Appeal to be dismissed as it was statute barred for timeliness.

The adjudicator granted a retroactive time extension. However, the adjudicator finds that the Appellant failed to demonstrate that the Respondent’s decision contravenes the principles of procedural fairness, is based on an error of law or is clearly unreasonable. Consequently, the Appeal is dismissed.