NC-246 - 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 Appellant appealed the Respondent’s Decision 34 days after the expiry of the 14-day time limit to file an appeal.

The parties were given an opportunity to make submissions on the timeliness of the appeal. The Appellant acknowledged that he submitted his appeal after the 14-day statutory time limit. He argued that he made attempts to clarify how to challenge the Decision, and that his Member Workplace Advisor did not provide him with adequate guidance. The Respondent questioned whether a Member Workplace Advisor could have lacked basic knowledge of the appeals process.

The ERC found that the Appellant failed to file his 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 he had not provided a reasonable explanation for submitting his appeal 34 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.

After balancing the Pentney factors, the ERC concluded that an extension of time was not warranted in the circumstances.

The ERC recommended that the appeal be dismissed.

The Adjudicator agreed with the ERC Findings and Recommendations and as such, adopted the ERC Findings and Recommendations in their entirety as their reasons for concluding for that this appeal be dismissed.