C-046 - Conduct Board Decision

Between mid-June or July 2016 to late November 2016, the member had an affair with a member of the public (Ms. X). Members of the detachment had seen the member's police vehicle out of his patrolling area while he was on duty and reported the issue to the detachment Commander. It was learned that Ms. X resided in the area where the Appellant's police vehicle was seen. The detachment Commander met with the member and ordered him not to attend the residence of Ms. X while on duty. The member was charged with four allegations of breaching the Code of Conduct. During the investigation, another allegation was added for lying to the investigator.

After having received the investigation report, the Conduct Authority ordered that a Conduct Board be instituted as she was seeking the member's dismissal. After the Board was established, pre-hearing conferences were held between the parties and the Board, evidence was filed, as well as the parties written submissions. After reviewing the material filed, the Board indicated that no further information or testimonies were necessary. The Board found the allegations established. It requested that the parties file their material on conduct measures. Ultimately, the Board indicated that a conduct measures hearing would not be necessary as it had all the information, including the parties' submissions. After canvassing the evidence on the conduct measures and the parties' submissions, the Board imposed a forfeiture of 20 days' pay for Allegation 1, but also ordered the member to resign within 14 days or be dismissed. On October 23, 2018, the Board issued a corrected version of the decision in which some clerical errors had been corrected (date and typographical errors).

The decision was sent by email to the parties' representatives on August 27, 2018. The Appellant had waived his right to be personally served with the decision. His Member Representative (MR) acknowledged receipt of the decision on August 27, 2018. The Appellant appealed that decision on September 11, 2018. The Office of Coordination of Grievances and Appeals (OCGA) raised the issue of timeliness as it appeared that the appeal was filed one day outside the 14 day time limit to do so. The Respondent argued that the appeal was filed late, but that the Commissioner should grant an extension. The Appellant argued that the time limit starts when the Appellant personally receives the decision; the August 27 decision was not the final written decision and he had the right to receive the decision in person. He requested that the Commissioner forego late service of the decision pursuant to paragraph 15(8) of the 2014 Regulations.

ERC Findings

The ERC found that the issue of the Appellant's waiving of his right to be personally served with the decision was a procedural issue that should have been raised before the Board. It found that evidence in the record showed that the Board confirmed with the parties that they waived their right to receive the decision in person, that the Board gave advance notice that it would be serving the decision by email and that both representatives waived the right of their clients to receive the decision personally. The ERC found that the decision served on August 27, 2018 was the final written decision and correcting clerical errors in a decision did not change the finality of the initial decision. Therefore, the Appellant was served, through his representative, on August 27. The ERC found that the Appellant filed his appeal outside the statutory time limit to do so. The ERC further found that there were no exceptional circumstances to recommend a retroactive extension of the time limit.

ERC Recommendation

The ERC recommended that the appeal be denied for being untimely.

Commissioner of the RCMP Decision dated June 23, 2021

The Commissioner's decision, as summarized by her office, is as follows:

On March 26, 2021, the Chair of the ERC, issued his findings and recommendations (ERC C-2019-025 (C-046)) (Report) and recommends that the appeal be dismissed for being filed outside of the statutory time limit. The ERC did not pronounce on the merits. While I agree with the ERC that the Appellant failed to file his appeal within the statutory time limit, for reasons I will briefly explain, I disagree that a retroactive extension is not warranted (Report, paras. 25-26, 37-46).

Pursuant to paragraph 29(e) of the CSO (Grievances and Appeals), when considering an appeal, the Commissioner (or her delegate) has the power to decide all related matters, including "to extend the time limit referred to in section 22 and subsection 23(1) in exceptional circumstances". In Canada (Attorney General) v Pentney, 2008 FC 96 (Pentney), the Federal Court adopted four factors to consider when determining whether a time extension for commencing a proceeding before an administrative tribunal is warranted. This non-exhaustive list of factors includes whether: (1) there was a continuing intention to pursue the application or appeal; (2) the matter discloses an arguable case; (3) there is a reasonable explanation for the delay; and (4) there is no prejudice to the other party in allowing the extension. In my view, these four factors fall in the Appellant's favour. I am prepared to accept there is an arguable case, he has maintained an intention to appeal the conduct measures which resulted in his termination, and there is at least some modicum of an explanation for the minimal delay that occurred. Moreover, I recognize that the Respondent was supportive of an extension demonstrating that the Force would not suffer any prejudice in doing so.

I grant the Appellant a retroactive extension so that this appeal can advance. I note that the Parties made fulsome submissions on the merits involving some novel issues, and the record is complete in this regard. Even so, since the ERC focused solely on the preliminary prescription period issue, I have decided to provide the Appellant 14 days to inform the OCGA whether he would like this matter returned to the ERC for an examination of the merits (recognizing the delay that is likely to occur), or request that the Appeal not be re-referred and instead be presented for a decision pursuant to subsection 45.15(3) of the RCMP Act. In the event the Appellant prefers final and binding adjudication in the absence of further ERC review, I direct the OCGA to return the appeal for a decision under subsection 45.16(1) of the RCMP Act without delay.

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