Federal Court


Policy and forms ambiguous about when time began to run

Applicant employed by respondent since 1994, as auditor beginning in 1997 and as team leader beginning in 2002. After several poor performance appraisals, however, applicant demoted back to position as auditor in 2006. Applicant filed grievances regarding performance appraisals and demotion. Grievances referred to independent third party reviewer in April 2008. In September 2008, applicant went on leave for medical reasons. He complied with various requests for medical information until 2011, when he failed to respond. As result of failure, respondent terminated applicant for abandoning position in November 2011. Applicant filed grievance regarding termination. Grievance denied on Oct. 2, 2012. Union representative provided applicant with copy of decision on Oct. 16, advising that he had seven days from date of notice to request referral to independent third party reviewer. Respondent’s national conflict resolution office received applicant’s request for referral to independent third party reviewer on Oct. 29. Respondent denied request on basis it had been received out of time. Applicant brought application for judicial review, arguing time did not begin to run until he received formal notice of decision from respondent on Nov. 1. Application allowed. Both policy and forms were ambiguous about when time began to run. Ambiguity had to be resolved in favour of employee. Applicant, therefore, had until Nov. 8 to request referral. Respondent’s decision wrong and unreasonable in circumstances even if time began to run earlier. Matter should be remitted for decision in accordance with these reasons.

Haymour v. Canada Revenue Agency (Nov. 5, 2014, F.C., Henry S. Brown J., File No. T-377-14) 246 A.C.W.S. (3d) 117.

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