Executive summary: key legal and evidentiary issues

• Constable Hart's RCMP recruiter failed to inform him of a Treasury Board Directive that, under specified conditions, allows CAF members to retain their current rate of pay when they become RCMP members.

• Had Hart requested leave without pay from the CAF instead of resigning, he asserts he would have benefitted financially from the Directive with an increased salary — he estimates his loss at approximately $17,000.

• The grievance was dismissed at both the initial and appeal levels as untimely, filed beyond the 30-day statutory limitation under paragraph 31(2)(a) of the RCMP Act.

• Central to the dispute was whether Hart's awareness of the Directive in May 2019 triggered the grievance timeline, or whether the timeline could not begin until he learned he was personally ineligible for the AMRP in November 2019.

• The Appeal Adjudicator's characterization of the grievance as targeting the recruiter's omission to disclose the Directive — rather than the November 2019 decision denying AMRP eligibility — was challenged but upheld by the Federal Court.

• Although the Court agreed there may be potential merit to the underlying grievance, it found the Appeal Adjudicator's decision on timeliness met the reasonableness standard under Vavilov.

From the Canadian Armed Forces to the RCMP

Bradley Hart served as a member of the Canadian Armed Forces before deciding to transition to the Royal Canadian Mounted Police. He resigned his commission in the CAF on December 2, 2018, and commenced RCMP basic training on January 24, 2019. On successful completion, he became a member of the RCMP in late July 2019. Crucially, during the recruitment process, no RCMP National Recruiting agent informed Hart of a Treasury Board Directive — specifically, the Above Minimum Rate of Pay (AMRP) provision — which allows persons appointed in the core public administration to retain their prior rate of pay upon joining the RCMP. Had Hart known about this provision, he attests that he would have requested leave without pay from the CAF rather than resigning, thereby maintaining continuous service and qualifying for the AMRP.

Discovery of the Directive and the AMRP inquiry

On May 29, 2019, during a basic training information session on pay and benefits, Hart first learned of the AMRP. He was unsure if he qualified, as RCMP's National Recruiting agents had not disclosed this information to him throughout the recruitment process, though he had made them aware that he was still working with the CAF. Several months later, in November 2019, Hart made his initial inquiry as to the application of the Directive to him. On November 26, 2019, he was advised that he was not eligible because he had a break in service — he had resigned from the CAF rather than taking leave without pay, and time spent at Depot did not count as continuous employment as cadets receive an allowance and are not considered employed at that point. Hart estimated his financial loss at approximately $17,000.

The grievance process

Upon receipt of this information, Hart submitted a grievance on December 23, 2019, to the Office of the Coordination of Grievances and Appeals pursuant to subsection 31(1) of the Royal Canadian Mounted Police Act, RSC 1985, c R-10. He alleged that the failure of Recruiting Analysts to disclose the Treasury Board AMRP policy available to CAF members resulted in forfeiture of approximately $17,000 and caused additional and unnecessary financial hardship, as he was the sole breadwinner for his family of four. He requested that the AMRP be approved and his pay rate be adjusted, with retroactive pay, from the date eligible. Some 18 months after filing the grievance, the assigned Initial Adjudicator raised a preliminary issue regarding whether the grievance was submitted within the 30-day statutory time limitation, given that Hart acknowledged having learned of the AMRP provision in May 2019. On February 21, 2023, the Initial Adjudicator dismissed the grievance as untimely and found that a retroactive extension of time was not justified. Hart sought a review of the initial level decision. The Appeal Adjudicator dismissed the appeal, finding that the Grievor had failed to establish that the initial level decision was procedurally unfair, was based on an error of law, or was otherwise clearly unreasonable.

The scope of the grievance and the timeliness question

A central issue before the Federal Court was whether the Appeal Adjudicator unreasonably narrowed the scope of the grievance. Hart argued that his grievance disputed the November 2019 decision to deny his entitlement to the AMRP given his unique circumstances involving the Respondent's negligence — not just the Respondent's negligence during the recruitment process. The Court was unable to accept this submission, noting that the grievance clearly stated Hart was aggrieved by the "failure of Recruiting analysts to disclose Treasury Board AMRP policy available to CAF members," with no direct mention of the November 2019 decision. The Appeal Adjudicator had properly identified and addressed the subject of the grievance, distinguishing between two matters: first, the November 2019 decision that Hart was not eligible for the AMRP, which Hart was not contesting with the grievance; and second, the Respondent's omission to disclose the Treasury Board Directive prior to Hart's joining the Force, which was the actual subject of the grievance.

When the limitation period began

The Appeal Adjudicator recognized that the clock could not start in May 2019, as Hart was not yet a member at that time — he was a cadet, and cadets do not have the right to grieve under the RCMP Act. Applying subsection 31(2) of the RCMP Act, which requires that a grievance 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, the Appeal Adjudicator concluded that the time limit could not begin until Hart became a member of the RCMP at the end of July 2019. Accordingly, the clock began to run at that point, and the grievance filed on December 23, 2019, was filed after the expiry of the 30-day period. Hart argued this was contradictory — that the Appeal Adjudicator acknowledged he could not have grieved in May 2019 yet concluded the grievance should have been filed earlier than it was. The Federal Court found no contradiction, stating that the Appeal Adjudicator correctly acknowledged that only RCMP members have grievance rights, and it was obvious from the Decision that the clock began to run in late July 2019, requiring the grievance to be filed within the 30-day period thereafter.

The Federal Court's ruling and outcome

The Honourable Mr. Justice Zinn, applying the reasonableness standard of review as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, found that the Decision met the reasonableness standard. All four of Hart's arguments — that the scope of the grievance was unreasonably narrowed, that generally becoming aware of a policy should not trigger the grievance timeline before an employee learns if and how they are personally aggrieved, that the Adjudicator failed to meaningfully grapple with a key issue, and that contradictory findings were made — were considered and rejected. The application for judicial review was dismissed. Notably, Justice Zinn stated he was of the same mind as the Initial Level Adjudicator who wrote that, based on a prima facie examination, there may be potential merit to the grievance. He further observed that it is important to recruits coming from the CAF to the RCMP to be told of the Directive and that the failure of the RCMP and its recruiters to so inform potential recruits is arguably actionable for those who suffered loss as a consequence. However, Mr. Hart could not recover his damages through the grievance route. Although the parties informed the Court that they agreed costs should be fixed at $2,500, Justice Zinn declined to impose costs upon Hart, ordering instead that each party bear its own costs.