Articles of Interest

Statutory Time Limits

by Caroline Verner, Legal Counsel
July 2010

Under section 31(1) of the Royal Canadian Mounted Police Act (RCMP Act), a good many matters are grievable by members of the Force. However, this right to grieve is not absolute and is subject to certain restrictions, including statutory time limits. Under section 31(2) of the RCMP Act, these limits are mandatory and may result in dismissal of the grievance if not respected. Apparently the Act aims to impose upon members a duty of expeditiousness when contesting decisions.

It is also essential to remember that ignorance of laws or directives is not acceptable justifi cation for failing to respect the time limitations. The ERC found and the RCMP Commissioner has agreed, that it is important for members to be familiar with the policies applicable to their situation (G-409 and G-425)

As shall be subsequently discussed, the vast majority of grievances are presented well within the statutory 30-day time limit. However, some are presented so close to the deadline that a problem may arise. And sometimes, the very time that a grievance is presented is diffi cult to determine.

Time limits

Level I

Section 31(2)(a) of the RCMP Act provides that, at the initial level, the grievance must be presented "within thirty 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." This means that the date from which time starts to be counted is the date on which the member knew or reasonably ought to have known of the decision causing him or her prejudice. In many cases, the starting point of this 30-day period will pose no problem; in others, however, that point can be rather nebulous.

First of all, it may be that the member learns of the Force's position before having submitted a request or formal authorization. For example, it may be a case where the member is informed that he or she will not be granted a benefi t, even though a claim has not been submitted. In case G-385, the ERC indicated that the member was aware of the Force's position when he was refused authorization to travel, since he had previously been informed that any expense claim for travel outside of the division would not be accepted. The subsequent request for such authorization did not create any new right to recourse since no new information had been provided, and the denial of that request only confirmed an earlier decision.

Second, it may also be that a policy or decision has no immediate effect on the member's rights. In such circumstances, the time period is calculated only from the moment the member realizes the prejudice he or she has suffered as a result of that decision or when the policy produces its effects. For example, in case G-365, the Committee found that the 30-day period began to run the day that the grievor received an answer to his request for assistance for vacation travel under the Isolated Post Directive, 1991, and not when he received a general bulletin sent to his division on how the reimbursement for such travel would be calculated.

Some confusion may arise when there is more than one decision, act or omission. In such cases, it is a matter of determining whether subsequent decisions, acts or omissions constitute a reiteration of the initial decision or a new decision. This issue arises when determining which of a series of decisions has prejudiced the member for purposes of calculating time limitations. It may be that the Force has revised its decision after receiving new information not known at the time of the initial decision, which puts the case in a whole new light. In this instance, the latest decision will be considered the starting point for the 30- day period. Otherwise, when the decision is simply confirmed, the grievance will have to be presented within 30 days of the initial decision, act or omission.

The ERC has also reminded members that while an informal resolution is desirable, it does not have the effect of extending the 30-day limit for presenting a grievance (G-091). If, however, following discussions and as mentioned above, new information is brought to the attention of the Force during informal discussion and the Force renders a decision based on that information, the 30- day period starts to run again from the date of that latest decision.

Continuing grievances create particular concerns with respect to time limits. These situations involve an initial action that is grievable, followed by a repetition or recurrence of that action or behaviour. These grievances generally involve the non-payment of money or premiums. For example, in G-206, the ERC indicated that nonpayment of wages could be viewed as the subject of a continuing grievance since it was a decision that reoccurred each pay day. In principle, such a grievance will be considered timely if filed within the limitation period following a recurrence of the action in question. However, the remedy available will not have retroactive effect, and is applied only from the date of the grieved recurrence.

Level II

With regard to the second level, s. 31(2)(b) of the RCMP Act provides that the grievance must be presented "within fourteen days after the day the aggrieved member is served with the decision of the immediately preceding level in respect of the grievance."

While the observations on the time limit for presenting a grievance at the fi rst level are in principle applicable to the time limit for presenting at the second level, generally the date from which counting begins does not present the same ambiguities. The member has 14 days from the date of service of the decision rendered by the Level I Adjudicator to present his or her grievance. In the event that a date of service is alleged to differ from that on the Certificate of Service, it is up to the party making that allegation to demonstrate, on a balance of probabilities, the inaccuracy of the date indicated on the Certificate.

General considerations

a) Calculation of time limits

Neither the RCMP Act nor its regulations deal with the issue of time limit calculations. It is essential that members be alert to the methods of calculating time so that they do not see their grievance dismissed for late presentation. The method can generally be found in the Interpretation Act (R.S.C., 1985, c. I21). Section 26 of that Act provides that "[w]here the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday."

Section 35 of the Interpretation Act defines a holiday as including Sundays and certain other fixed dates such as New Year's Day, Good Friday, Easter Monday, Christmas Day, the birthday or the day fixed by proclamation for the celebration of the birthday of the reigning Sovereign, Victoria Day, Canada Day, the first Monday in September (designated Labour Day), November 11 (Remembrance Day), and any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiving.

However the Administration Manual (AM) II.38.F.3.a is more specific, indicating that time limits for grievances are calculated in consecutive days. It also indicates that the time period will exclude the first day but include the final day.

AM II.38.F.3.c. stipulates that Saturday is considered a holiday, just like Sunday. As a result, time limits are counted in consecutive days, and if they end on a holiday, which includes Saturday and Sunday, then they are put off to the next working day.

b) Types of evidence

We note that members are responsible for presenting their grievance within the time limit set by the RCMP Act. This obligation is set forth in AM II.38.F.1.c. They are also responsible for demonstrating that it has in fact been presented in a timely fashion, if that issue should be raised. The grievance will be deemed to be presented when it is received at the Office for the Coordination of Grievances (OCG). If it is not possible to present the grievance directly to the OCG, the member may present it to his or her supervisor.

The date when the grievance is deemed presented is not always obvious. AM II.38 specifies that the date of presentation shall be the date when the grievance was transmitted by facsimile, sent by registered mail, or received at the OCG if sent by regular mail, unless the date it was sent can be demonstrated. For this purpose, the ERC has ruled that it is preferable for the member to retain evidence of transmission (G-300). Finally, members also have the option of transmitting their grievance electronically, in which case the computer-generated date of electronic transmission will be considered.

The grievance file may also involve different transmission dates. In this case, according to the ERC, when a grievance is dated within the time frame, when there is no substantial indication that it was submitted outside the time frame, and when no objection is raised by the Force, the grievance can be deemed to have been submitted within the time frame established in the RCMP Act.

c) Duty to act fairly

The ERC has often considered the issue of the duty to act fairly. There are two aspects of this duty: the right to be heard and the right to obtain a decision from an impartial decision maker. The ERC has ruled on this issue, in particular when the Level I Adjudicator rendered a decision on a preliminary issue even though the parties had not had an opportunity to present their submissions. In case G-374, the ERC indicated that if the Level I Adjudicator considers the issue of time limits, not only must the parties be informed of this, but they must also have had the opportunity to make their submissions on the subject before the Adjudicator makes a ruling. Otherwise, there could be a breach of procedural fairness and, more specifi cally, of the right to be heard.

In this eventuality, the case can be returned to the Level I Adjudicator so that the parties can present their arguments on the preliminary issue. The ERC may also remedy the default if, subsequent to the Level I decision, the parties have provided their written representations on the subject of time limits. For example, in G-486, considering the time elapsed since the presentation of the grievance and the fact that the parties subsequently had the opportunity to address the time limit issue, the ERC did not recommend that the case be returned to the Level I Adjudicator.

RCMP Commissioner's Power to Extend Time Limits

If the statutory time limit expires, section 47.4(1) of the RCMP Act provides the Commissioner of the RCMP with the discretion to extend that deadline, even retroactively, if he is satisfied that the circumstances justify such an extension. This section also stipulates that the Commissioner may extend the time limit upon application. It is therefore important, should this case arise, for the member to present such an application before expiry of the established time limit and provide a reasonable explanation for the delay.

The ERC has considered the issue of section 47.4(1) of the Act on many occasions. To date it has concluded, with the Commissioner's confi rmation, that an extension may be granted in the following situations:

• when there was a clear and unequivocal intention to present a grievance prior to expiry of the time limit;
• when the delay was beyond the member's control;
• when the member was given false or confusing information;
• when the member honestly believed that the decision would be revised; or
• when the case involves a subject of importance to the Force and its members.

Extensions have also been granted when there was some confusion as to when calculation of the time limit began, the length of the delay was minimal, and where the delay caused the respondent no prejudice. However, this list is not exhaustive, and other circumstances may arise facilitating a recommendation that the Commissioner use his discretion.

In Attorney General v. Pentney, [2008] FC 116, which is considered in case G-488, the Court applied the four factors found in Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883 to extend the appeal period: there is a continued intention to pursue the application or appeal; the case is arguable; there is a reasonable explanation for the delay; and there is no prejudice to the other party in allowing the extension. It indicated, however, that recent case law in the matter advocated a flexible approach to the application of these factors, and that this analysis was not exclusive.

In conclusion, many circumstances can affect the point at which time limits for presenting a grievance begin to be counted. Therefore, members should be conversant on their roles and responsibilities with respect to grievances by taking the initiative to inform themselves about the applicable legislation.

As a rule, when the delay is caused by a situation beyond the member's control, the ERC favours a recommendation that the statutory time limit be extended.