Articles of Interest

Subsection 31(2) of the RCMP Act: Time Limits

by Caroline Maynard, Legal Counsel
March 2000

Although Parliament has given members a broad right to grieve, this right is subject to limitation periods. Under subsection 31(2) of the RCMP Act, the Force has no option but to refuse to allow a grievance that is filed outside the statutory time limits, unless the Commissioner grants an extension of time. It is unfortunate that many members have seen their grievance denied on the basis of time limits before any consideration is given to the merits of their case. The following article addresses the most frequent issues that arise with respect to the time limit requirements.

Standing

Before a determination on the timeliness of a grievance can be made, the decision maker must be satisfied that the grievor has "standing" to bring a grievance under subsection 31(1) of the RCMP Act. The issue of standing is a preliminary question of the capacity of a member to present a grievance. One of the components of the standing requirement is whether the member is "aggrieved", or prejudiced, by the decision, act or omission that he or she seeks to grieve. For more details on standing, please refer to Lisa Thiele's article on the standing requirement in the February/April 1999 issue. For the purpose of this article, however, it is important to be aware of the relationship between "time limits" and "standing" as the limitation period begins to run from the time the member is first "aggrieved" by the decision, act or omission.

LEVEL I

Paragraph 31(2)(a) provides that a grievance at Level I of the grievance process must be presented "within 30 days after the day on which the aggrieved member knew or reasonably ought to have known of the decision, act, or omission giving rise to the grievance".

a) Aware of the decision, act or omission:

It must be emphasized that the 30-day limitation period does not run from the date of the decision, act or omission, but rather from the date the grievor knew or ought to have known of the decision, act or omission. The concept of "knew or ought to have known" has been defined by the Committee in ERC 3300-97-008 (G-208) as including "the knowledge, actual or imputed, of having been 'aggrieved' by that decision." In fact, a member may be aware of a decision made by the Force well before this decision has an impact on his or her interests, but the limitation period starts only when the member becomes aware that he or she is prejudiced by the decision.

For example, in ERC 3300-97-009 (G-210), the Force, in 1994, released information to Revenue Canada concerning members who had received transfer allowances in previous years. As a direct result, in 1995, Revenue Canada reassessed the tax returns of the Grievor and several other members. The Grievor filed a grievance claiming that, by releasing personal information, the RCMP had violated his rights. The Committee found that it was on the day the Grievor had received the reassessment notice from Revenue Canada that he had become aware that the Force's release of information "included information about him personally". Since the Grievor had filed his grievance within 30 days of receipt of the reassessment, the Committee found that he had complied with the statutory time restriction.

The findings and recommendations in ERC 2500-97-002 (G-222) provide another example where the Committee determined when the Grievor first became aware of the decision being grieved. In this case, the Grievor had inquired about the expenses that would be covered for both the purchase of his residence and interim accommodation. He was told that there were no provisions covering interim accommodation and storage of household effects. Three months later the Grievor submitted a claim for storage expenses. The claim was denied and he grieved. The Committee found that the Grievor had been aggrieved by the first decision concerning his entitlement to reimbursement for storage expenses, and that the Grievor should have submitted his grievance within 30 days of the date he became aware of that decision. The Committee therefore recommended that the grievance be denied on time limits.

b) What constitutes a grievance?

The Force requires that grievances be presented on a Grievance Presentation Form - form 3081. The Committee, however, has never interpreted this requirement as having an influence on the statutory time limits. In fact, members will sometimes provide their request in an ordinary memorandum, and later add a form 3081. The Committee has found that a member's memorandum that contains information such as the identification of the decision, act or omission being grieved, the date on which the member became aware of it, and the redress sought, is sufficient to constitute a grievance within the meaning of the RCMP Act. As long as this memorandum is presented within the 30-day limitation period, the member is deemed to have respected the Level I statutory time limit. The Committee, however, has indicated that a notice of intention to file a grievance is not a grievance in and of itself: see ERC 2800-91-001 (G-033). Furthermore, subsequent requests for information and the submission of additional comments in support of the grievance do not relate to the existence of the grievance itself. The 30-day limitation period is a limit for the commencement of the grievance process and is not a limit for completing all submissions. Delays associated with the presentation of submissions are of an administrative nature and do not affect compliance with the statutory time limit.

c) Date of presentation

There is no regulation or rule that defines what constitutes "presentation" of a grievance. The administrative policy in the Administration Manual (AM II.20.D.3. and J.2.a.) states that members may forward their grievances either through the Administration and Personnel Officer or through the chain of command. Force policies are advisory guidelines and their purpose is to ensure that members' grievances are received by the appropriate person in a timely fashion. It is the Committee's view that as long as there are some objective indications that the person or office to whom the grievance is submitted will commence the review process and that the Force considers that person to be its representative for that purpose, the grievance has been "presented".

For a grievance to be presented in time, it is not enough to put a date on the grievance that is within the time limit; the grievance must also be submitted to the Force within the statutory period. The Committee has seen a number of cases where the grievance presentation form had been signed within the time frame but had been stamped "received" outside the limitation period. Since a stamp mark could simply indicate the date on which the form was received at a certain point in the chain of command, it was found that a stamp was not conclusive evidence that the grievance was presented on that particular date. The Committee has always been of the opinion that, where a grievance is dated within the time frame, where there is no substantial indication that it was submitted outside the time frame, and where no objection with regard to time limits is made by the Force, then, on a balance of probabilities, the grievance may be found to have been submitted within the statutory time frame.

In addition, the date of mailing has been accepted as the date of presentation for the purpose of the statutory time limits. Members should try to keep documentary evidence of the date of mailing, in case the determination of the date of presentation becomes an issue.

d) More than one decision, act, or omission

As in the above-mentioned G-222, the Committee has on many occasions had to consider which of a series of possible Force decisions had aggrieved a member in order to determine the timeliness of the grievance. This becomes necessary when a member has filed a grievance more than 30 days after an original decision - but within 30 days of some later confirmation of, or refusal to reopen or revisit the original decision. This situation usually occurs when a member requests that the Force reconsider its original decision, or in the alternative, attempts to resolve the dispute outside the grievance process. In ERC 2500-93-001 (G-91), the Committee emphasized that while "informal resolution is highly desirable", it does not have the effect of extending time limits. It also indicated that it is not possible to revive an expired right to grieve "simply by requesting a review, a confirmation or a clarification of the earlier decision".

In G-091, the Committee further explained that there are situations when a request for review can trigger a new right to grieve. For example, when a member provides new information or submissions that put the original decision "in a whole new light" and raises a legitimate expectation that the decision would be reopened, then, the new decision is grievable in itself. If the Force declines to reopen its decision, this refusal can also be grieved. The grievance will be within time limits if it is submitted within 30 days of the member becoming aware of the reopened decision or of the refusal to reopen the decision. On the other hand, when a member makes a simple request for review, and where the Force does reopen the decision, but only to the extent of confirming the original decision, a separate grievable decision does not arise; in this case, the last decision is merely a restatement of the first (For example, see ERC 2100-97-001 (G-214)).

Since it is not always possible to know when or whether a matter will be reconsidered, members who want to grieve, should always do it at the earliest opportunity.

e) Continuing grievances

Another instance where more than one decision, act or omission can affect a member is what is called "continuing grievances". Continuing grievances involve an original action that is grievable, followed by subsequent repetition or recurrence of the action or behaviour at the basis of the grievance. Such a grievance will be timely if filed within the limitation period following a recurrence of the action. The remedy available is, however, applied only from the date of the grieved recurrence.

These grievances often involve the non-payment of money or benefit premiums. For example, in ERC 3300-96-004 (G-206), the Committee indicated that the non-payment of wages could be viewed as the subject of a continuing grievance since it was a decision that reoccurred at each pay-day. This is to be contrasted with a single action that produces continuing consequences. For example, a member who is told by the Force that a certain rate will be used to calculate future travel claims, who does not agree with the rate and wants to grieve, should do it right away. If the member waits and grieves after the particular rate is applied to his or her travel claim, it could be argued that the member is grieving the "consequence" of the grievable decision.

LEVEL II

Paragraph 31(2)(b) provides that a grievance at Level II of the grievance process must be presented "within 14 days after the day the aggrieved member is served" with the Level I decision.

The comments made concerning the time limit requirements at the first level of the grievance process are, for the most part, equally applicable to the Level II limitation period. The only differences are that the Level II time limit is significantly shorter (i.e., 14 days) and starts to run from the date of service of the decision rendered by the Level I adjudicator. The Committee has reviewed only a few cases wherein the date of service given by the member differed from the date on the certificate of service. In most of these cases, the discrepancies in dates of service were within a day or two of one another. The Committee looked at this issue in ERC 3300-93-015 (G-149), and made the following comments:

The Committee generally accepts the date indicated by a Certificate of Service as the date on which a document was served. ... [W]hen a date given by a member specifically indicates differently than the Certificate of Service, there is no corroborating documentation indicating one date over the other, and no objection on time limits has been made by the Force, the Committee is entitled to prefer, on a balance of probabilities, the date given by the member.

In G-149, the member submitted that he had been served with the Level I decision on October 6, 1996, while October 5, 1996 was the date indicated on the certificate of service. Since the member had presented his Level II grievance presentation on October 20, 1996, the determination of the date of service became very important to settle the issue of time limits. The Committee concluded in favour of the member and the Commissioner agreed.

Time extension under subsection 47.4(1) of the RCMP Act

Subsection 47.4(1) of the RCMP Act provides the Commissioner with the discretion to extend the deadline for submitting a grievance where "the Commissioner is satisfied that the circumstances justify an extension". As mentioned above, the Force has no choice but to enforce the two limitation periods set out in subsection 31(2) of the RCMP Act unless the Commissioner grants an extension. Consequently, members must present their grievances, or at a minimum request an extension, within the statutory limitation period. Moreover, members who are involved in informal discussions with the Force can apply for an extension of the time limits under subsection 47.4(1), in order to protect their right to later file a grievance.

A member may request the extension at both levels of the grievance process, whereupon the Commissioner or his delegate must, in fairness, respond quickly. An extension may also be granted by the Commissioner or his delegate, on their own motion. In all cases, these requests and extensions should be in writing and should enunciate appropriate justifications. Members should also properly identify the decision, act or omission for which they request an extension. In ERC 2700-98-001 (G-223), the Committee commented that the Force can not generally extend time limits for unknown issues.

While a request for an extension of time should be presented within the time limit, there are circumstances that could justify granting a retroactive extension. For example, the Committee has recommended that the time limit be extended retroactively in cases where: members had received insufficient or inadequate instructions regarding the limitation periods and the requirements to file grievances; where the circumstances had been beyond the member's control; and where there was no negligence on the part of the member.

On a final note, when preparing to present a grievance, members should bear in mind the words of the Commissioner in ERC 2400-93-005 (G-104): "members have a responsibility to be fully conversant on all policy and, when in doubt, to seek guidance before time limits expire".