Docket: T-3795-25
Citation: 2026 FC 735
Ottawa, Ontario, June 4, 2026
PRESENT: The Honourable Mr. Justice Duchesne
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BETWEEN:
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WAIL MOHAMED
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS AND JUDGMENT
[1] This proceeding involves a member of the Royal Canadian Mounted Police [the RCMP] and his attempt to revive or commence afresh an appeal he had originally filed pursuant to the Royal Canadian Mounted Police Act, RSC 1985, c R-10 [the RCMPA] and section 22 of Commissioner's Standing Orders (Grievances and Appeals), SOR/2014-289 [the CSO] on December 9, 2022, and voluntarily withdrew on January 5, 2023.
[2] On March 3, 2025, the Applicant requested that his January 2023 withdrawal of appeal be itself withdrawn, or, in the alternative, that he be granted an extension of time to appeal from the decision dated November 30, 2022, that found that he had breached the Code of Conduct he was subject to. The Applicant’s request was denied by an adjudicator empowered pursuant to the RCMPA through their decision made on August 25, 2025 [the Decision]. The Applicant seeks judicial review of the Decision.
[3] Having studied the records filed and having considered the parties’ respective oral and written arguments, I conclude that the Applicant has not established that the Decision is unreasonable. The Applicant’s application is therefore dismissed for the reasons that follow.
I. The Factual Background
A. The Code of Conduct decision and the Applicant’s First Appeal
[4] The Applicant filed a grievance in which he advanced allegations that he had been discriminated against. The grievance reached the final grievance level on and was rejected on November 9, 2022.
[5] The RCMP was investigating Code of Conduct complaints against the Applicant at about the same time as his grievance was moving through the grievance process. The investigation led to a November 30, 2022, decision that found that the Applicant had indeed breached the Code of Conduct he was subject to [the Conduct Decision].
[6] The Applicant had the right to appeal the Conduct Decision to the RCMP Commissioner [the Commissioner] pursuant to section 45.11 of the RCMPA and section 22 of the CSO by filing a Statement of Appeal within 14 days from after the day on which copy of the decision giving rise to the appeal was served upon him. The Statement of Appeal was required to include information described at section 22 of the CSO.
[7] The Applicant filed his Statement of Appeal of the Conduct Decision on December 9, 2022, within the 14-day timeline prescribed by section 45.11 of the RCMPA and section 22 of the CSO.
[8] On January 5, 2023, a resource case manager from the RCMP’s Office for the Coordination of Grievances and Appeals [OCGA] wrote to the Applicant regarding his appeal. The recourse case manager informed the Applicant that his appeal had been assigned a file number that was to be referred to in future correspondence regarding his appeal. The recourse case manager also informed the Applicant that his Statement of Appeal form was incomplete, and that he was required to provide the information described by section 22 of the CSO by January 14, 2023, after which the matter would proceed to the next stage of the appeal process. The recourse case manager also informed the Applicant that he could withdraw his appeal if he wished to do so by notifying the OCGA in writing.
[9] Two hours after the OCGA’s correspondent to the Applicant, still on January 5, 2023, the Applicant responded to the OCGA and notified it that he would like to “withdraw this grievance”
in reference to his appeal.
[10] On January 6, 2023, the OCGA wrote to the Applicant, acknowledged his withdrawal of his appeal, and informed him that his appeal file would be concluded effective immediately on that date.
[11] The Applicant’s grievance, being a matter separate from the Conduct Decision, was later resolved through the mediation mechanism provided by the Federal Public Sector Labour Relations Act [FPSLRA].
B. The Second Appeal
[12] The Applicant sought to revive his appeal of the Conduct Decision on March 3, 2025. The Applicant wrote to the OCGA through his solicitors and requested that his solicitors’ letter be accepted as his withdrawal of his January 5, 2023, notice of withdrawal of his December 2022 appeal of the Conduct Decision.
[13] The Applicant also requested an extension of time for him to commence an appeal of the Conduct Decision as an alternative remedy if his withdrawal of his earlier withdrawal of his appeal was not granted. The Applicant relied solely and explicitly on Canada (Attorney General) v Pentney, 2008 FC 96 at paragraphs 31 and 37 [Pentney], in support of his request and as the basis of his argument for an extension of time to appeal. No authority and no statutory or regulatory source was cited by the Applicant to support the proposition that he could withdraw the withdrawal of appeal he communicated in writing to the OCGA more than two years earlier.
[14] The March 3, 2025, letter also set out that the RCMP was aware of the Applicant’s efforts to revive his December 2022 appeal or to appeal afresh, that the RCMP did not oppose the Applicant’s request for an extension of time to commence an appeal, and that the RCMP confirmed that it was not prejudiced by the Applicant’s request for an extension of time. The Applicant’s letter was co-signed by an RCMP Superintendent.
[15] The OCGA assigned a new appeal number to the Applicant’s March 3, 2025, request, on March 4, 2025.
C. The Adjudicator’s Direction
[16] On April 16, 2025, an RCMP adjudicator with delegated authority to determine appeals pursuant to subsection 45.16(11) of the RCMPA [the Adjudicator] issued a direction to the parties regarding the Applicant’s alternative requested relief for a retroactive extension of time to commence an appeal [the Direction]. In that Direction, the Adjudicator acknowledged that the Applicant had filed an appeal pursuant to subsection 45.11(3) of the RCMPA and noted that he had initially presented his appeal on December 9, 2022, and withdrew it on January 5, 2023.
[17] The Adjudicator referred to the Applicant’s March 3, 2025, letter and his submission contained therein that the applicable test for an extension of time to commence an appeal was the four-part test set out in Pentney. The Adjudicator set out in his Direction that Pentney was not correct test for a retroactive time extension in an appeal such as the one at issue. The Adjudicator wrote:
[5] However, this is not the correct test for a retroactive time extension in a conduct appeal, which is found in paragraph 29(e) of the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289. The correct test is “exceptional circumstances”. Some assistance in the test for exceptional circumstances can be found in Wenham v Canada (Attorney General), 2021 FCA 208, at paragraphs 36 and 37.
[6] Prior to making any decision on whether a retroactive time extension can be granted for the presentation of this appeal, procedural fairness demands that both Parties be given the chance to be heard.
[18] The Adjudicator invited the parties to make submissions on the preliminary issue of time, starting with the Applicant. The Direction explicitly set out, “As a reminder, the Parties are to address whether there are exceptional circumstances that would justify an extraordinary remedy”.
D. The submissions in response to the Direction
[19] The Applicant delivered his post-Direction submissions on May 14, 2025. They reflected that he was seeking an extension of time for the presentation of his appeal in accordance with sections 29(e) and 43(d) of the CSO. The Applicant argued that he satisfied the test for an extension of time as set out in Pentney and should be granted the requested retroactive statutory extension of time for the presentation of his appeal “given his exceptional circumstances”
. The Applicant’s submissions sought to address the four parts of the test set out in Pentney, but contained no evidence, submission, or representation of the “exceptional circumstances”
involving the Applicant that justified the sought extension of time.
[20] The RCMP wrote to the OCGA on May 20, 2025, and communicated that, “as per the MOS agreed upon the RCMP and the member on October 26, 2023, [the RCMP] have no submissions to make on the issue of timeliness”.
The MOS (assumed to mean “Minutes of Settlement”
) were neither sent nor produced to the OCGA for the Adjudicator’s consideration. No submissions filed with the OCGA (or with this Court) refer to any of the content of the MOS.
E. The Decision
[21] The Adjudicator considered a 73-page record prepared by the OCGA that included, among others, the Applicant’s Statement of Appeal from December 2022, his withdrawal of his appeal from 2023, his letter of March 3, 2025, the RCMP’s May 20, 2025, communication that it had no submission to make on the issue of time, as well as the correspondence and written submissions filed by the Applicant in connection with his request.
[22] The Adjudicator identified section 45.11 of the RCMPA and section 22 of the CSO as relevant provisions to be considered on the preliminary issue of whether an extension of time ought to be granted to the Applicant. The Adjudicator then reasoned and determined the Applicant’s request for a withdrawal of his notice of withdrawal of appeal as follows:
[15] I raise these legislative references, as the appeal was first presented on December 9, 2022, within the statutory time limitation period. However, the OCGA noted that the Appellant did not provide a concise statement of the grounds for the appeal. The reason for this is that the Appellant simply stated that the Respondent’s decision was reached in a manner that was procedurally unfair, based on an error of law and was clearly unreasonable. In other words, rather than provide a concise statement of the grounds for the appeal, the Appellant simply copied the legislative test for being successful on an appeal.
[16] In other words, on December 9, 2022, the Appellant did not meet the requirements for presenting an appeal. As such, his email on January 5, 2023, withdrawing the appeal had no effect.
[17] This means that an Appeal has never been presented and that the email the Appellant’s representative sent on March 3, 2025, is a request to present the appeal outside the statutory time limitation period. The effect of this is that the appeal is clearly outside the statutory time limitation period and the only issue I must resolve is whether I ought to grant a retroactive time extension.
[23] Turning to the main issue of whether a retroactive extension of time ought to be granted, the Adjudicator reasoned as follows:
[18] In my direction on April 16, 2025, I explicitly informed the Appellant that the Pentney test was not the appropriate test for a retroactive time extension for an appeal. I said that as the Pentney test is the proper test under section 47.4 of the RCMP Act, which is to determine whether a retroactive time extension is justified in the circumstances. Parliament has provided significantly different wording for a retroactive time extension for an appeal under paragraph 29(e) of the CSO (Grievances and Appeals), which requires “exceptional circumstances”.
[19] Even though I explicitly informed the Parties of the correct test, the Appellant still made a submission on the basis of the Pentney test. If Parliament wanted the same test used for two different legislative references, the wording would be the same, which it is not.
[24] The Adjudicator considered that there was no statutory definition for the expression “exceptional circumstances”
in the CSO. The Adjudicator turned to the Federal Court of Appeal’s comments on the meaning of “exceptional”
as found in Wenham v Canada (Attorney General), 2021 FCA 208, that exceptionality “connotes something quite remarkable, extraordinary or, if not rare, at least very far from common”
and applied that meaning of “exceptional”
in his assessment of the Applicant’s request based on “exceptional circumstances”.
[25] The Adjudicator considered that the Applicant argued that the reason for his delay is that he had a separate though related grievance with the Federal Public Service Labour Relations and Employment Board which related to “concerns that the Code investigations were discriminatory and adverse impacts as a result of his race and/or national/ethnic origin”
. The Adjudicator also observed that the Applicant had not articulated any reason for withdrawing his appeal in January 2023.
[26] The Adjudicator found that the Applicant had not established that there were exceptional circumstances to justify a retroactive extension of time and dismissed the appeal based on the following reasoning:
[23] The Appellant had options with this appeal, including requesting that it be held in abeyance pending the outcome of his grievance, or alternatively, he could have argued discrimination as it related to whether the impugned decision was clearly unreasonable. Rather than explore these options, he simply withheld making these arguments for well over two years and now asks that he be permitted to argue his case now.
[24] Parliament has established statutory time limitation periods to provide finality to managerial decisions, which in this case refers to a conduct decision that resulted in the forfeiture of five days of pay, six months of close supervision and bi-weekly reporting to a supervisor. Rather than address this issue at the time, the Appellant chose to delay appealing the decision while waiting over two years for a decision from a different administrative tribunal.
[25] Having considered the Appellant’s arguments, I am not persuaded that there is anything exceptional about his matter. I am limited in my authority to what Parliament allows me to decide, which in this case is a determination on whether exceptional circumstances exist. As I do not find that there are any exceptional circumstances in this matter, I find that I do not have the authority to grant a retroactive time extension.
[27] The Applicant’s appeal was dismissed by the Adjudicator.
II. The Issue
[28] The sole issue before the Court is whether the Decision is reasonable.
[29] The parties agree, and I with them, that the applicable standard of review is the reasonableness standard as discussed and explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov].
III. The Standard of Review
[30] The Supreme Court of Canada summarized the analytical approach set out in Vavilov in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7-8 as follows:
[7] In Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).
[8] Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).
[31] It is the Applicant’s onus to demonstrate that any shortcomings or flaws in the Decision are sufficiently central or significant to render the decision unreasonable (Vavilov at para 100). This is not a “line-by-line treasure hunt for error”
(Vavilov at para 102).
[32] Reviewing courts cannot expect administrative decision makers to respond to every argument or line of possible analysis presented or to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Vavilov, at para 128).
[33] Administrative decision makers are not bound by their previous decisions in the same manner that courts are bound by stare decisis. A lack of unanimity among administrative decision makers is the price to pay for the decision making freedom and independence given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law (Vavilov, at para 129).
[34] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. A decision maker who departs from longstanding practices or established internal authority bears the justificatory burden of explaining that departure in its reasons. Justifying the departure reduces the risk of arbitrariness which would undermine public confidence in administrative decision makers and in the justice system as a whole (Vavilov, at para 131).
[35] Absent exceptional circumstances, reviewing courts must not interfere with the decision-maker’s factual findings and cannot reweigh and reassess evidence considered by the decision-maker (Vavilov at para 125).
IV. The Statutory and Regulatory Framework
[36] The general regulatory framework for an appeal and for an extension of time to commence an appeal of a conduct authority’s decision is set out in sections 45.11, 45.16 and 45.17 of the RCMPA, and in sections 22 and 29 to 31 of the COS. These provisions are reproduced in the appending to this judgment and reasons.
[37] These provisions set out the process to be followed when an RCMP member such as the Applicant on appeals from a decision made by a conduct authority.
[38] I note that the Applicant referred to and relied upon paragraph 43(d) of the COS in its post-Direction submissions. That paragraph does not apply to the appeal or to the process at issue in this matter as it only applies to appeals that are not appeals pursuant to Part IV of the RCMPA. The Applicant’s appeal was an appeal pursuant to Part IV of the RCMPA.
[39] As set out in section 45.11 of the RCMPA and section 22 of the COS, a member may appeal a decision by a conduct authority to the Commissioner by filing a Statement of Appeal within 14 days after the day on which copy of the decision giving rise to the appeal is served on the member. The Statement of Appeal must be accompanied by a copy of the decision that is being appealed and include the appellant’s name, employee number, a concise statement of the grounds on which the appeal is based, and particulars concerning the redress requested.
[40] The Commissioner is empowered by subsections 30(1) and (2) of the COS to give any direction for any matter that arises in the context of an appeal that is not provided for in the RCMPA, the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, or Part 2 of the COS. More importantly for the purposes of this proceeding, the Commissioner is empowered pursuant to paragraphs 29(e) and subsection 30(3) of the COS, to extend the time for the commencement of appeal “in exceptional circumstances”
, and, to remedy any failure by any party to comply with any provision of the appeal process set out in Part 2 of the COS.
[41] Pursuant to subsection 45.15(1) of the RCMPA, the Commissioner is required to refer an appeal to the RCMP External Review Committee [the ERC] if the appeal relates to specific penalties as set out paragraphs 45.15(a) to (e) of the RCMPA prior to considering the appeal themselves. The ERC reviews the appeal and related materials, prepares a report in respect of the case which sets out its findings and recommendations for the Commissioner’s use and consideration when they consider and determine the appeal.
[42] Subsection 45.16(8) of the RCMPA clarifies that the Commissioner is not bound to act on any findings or recommendations set out in the ERC report on the case. However, if the Commissioner does not so act, then they are required to include the reasons for not so acting in their decision on the appeal.
[43] While the ERC plays a key role in the appeal decision making process, it is not empowered to decide any matter arising within an appeal or the appeal itself. The ERC remains a recommendation making body. As provided by subsections 45.16(7) and (9) of the RCMPA, the Commissioner (or their delegate) decides the appeal before them and their decision is final and binding subject to judicial review.
V. Arguments
[44] The Applicant argues that the Decision is unreasonable for three reasons:
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a)The Adjudicator was unreasonable in his finding that the Applicant did not properly submit his appeal in December 2022.
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b)The Adjudicator unreasonably failed to consider the four factors for granting a retroactive extension of time as set out in Pentney. In doing so, the Adjudicator departed from established case law.
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c)The Adjudicator failed to meaningfully grapple with the Applicant’s evidence, and more particularly:
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failed to consider that it was an exceptional circumstance that the RCMP cosigned a letter to the OCGA explicitly stating that the RCMP did not oppose the request for an extension; and,
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did not consider the relationship between the Applicant’s discrimination grievance and the conduct appeal.
[45] The Respondent argues that Adjudicator’s consideration of the December 2022 appeal is irrelevant to the Decision and cannot establish that the Decision is unreasonable because he had withdrawn his appeal in January 2023.
[46] The Respondent argues that the Applicant did not raise any argument with respect to the non application of Pentney before the Adjudicator following the Direction and therefore cannot raise his argument based on Pentney now as it constitutes a new issue on judicial review. In the alternative, the Respondent argues that the Adjudicator’s conclusion that Pentney did not apply was reasonable.
[47] The Respondent also argues that the Adjudicator considered the Applicant’s arguments and evidence reasonably and came to a reasonable conclusion based on that evidence.
VI. Analysis
A. The Adjudicator came to an unreasonable conclusion regarding the December 2022 Statement of Appeal and notice of withdrawal, but that does not make the Decision unreasonable
[48] I agree with the Applicant that the Adjudicator’s findings on whether the Applicant had filed an appeal in December 2022, and whether his withdrawal of his appeal on January 5, 2023, had any effect are unreasonable. The Adjudicator’s findings on these points are nevertheless immaterial to the substance of the Decision and do not establish that the Decision is unreasonable.
[49] The evidence in the record reflects that the OCGA accepted the Applicant’s Statement of Appeal as having been filed on December 9, 2022, that the Applicant had commenced an appeal by doing so, that the Applicant’s appeal had been assigned a file number, and that the appeal would proceed to its next stage of the appeal process regardless of whether the Applicant actually provided the OCGA with the information it identified as missing from the Statement of Appeal that had been filed. Neither party provided the Court with any authority that suggests that an appeal pursuant to section 45.11 of the RCMPA is not considered as commenced upon the accepted filing of an incomplete Statement of Appeal. The powers provided to the Commissioner (or their delegate) pursuant to section 29 and subsection 30(3) of the COS to remedy any failure by any party to comply with the requirements of a Statement of Appeal, considered in light of the OCGA’s communications with the Applicant, suggest that an incomplete Statement of Appeal may be filed for the purposes of commencing an appeal and may be rectified during the appeal process. It follows that the Adjudicator’s finding that the Applicant’s December 9, 2022, Statement of Appeal did not meet the requirements for presenting an appeal may be accurate based on the facts and the applicable provisions of the COS, but that does not mean that the Applicant had failed to file an appeal in a timely manner or at al. Tt means that the Statement of Appeal was incomplete but could still be corrected as may have been permitted by the Adjudicator.
[50] It also follows that the Applicant’s January 5, 2023, written withdrawal of his otherwise incomplete Statement of Appeal could indeed have a legal effect because he had filed an appeal in a timely manner pursuant to section 22 of the COS and section 45.11 of the RCMPA. The Applicant’s January 5, 2023, withdrawal of his December 9, 2022, appeal was therefore effective as of January 5, 2023, and operated to withdraw his appeal without any adjudication on its merits.
[51] In the end, whether the Applicant had withdrawn his appeal on January 5, 2023, or had failed to properly commence an appeal in December 2022 is immaterial. The conclusion of either scenario is that there was no appeal pursued by the Applicant within 14 days of the Conduct Decision and that any appeal to be brought in 2025 could only be brought if the time for commencing the appeal was extended beyond the 14 days contemplated by section 22 of COS.
[52] The Adjudicator was therefore required consider whether an extension of time should be granted regardless of their findings regarding the December 9, 2022, Statement of Appeal or the January 5, 2023, withdrawal of appeal.
B. The Applicant’s argument regarding the application of the four-part test in Pentney is a new issue raised for the first time on judicial review and cannot be considered
[53] The Applicant argues that there is a longstanding and consistent practice for RCMP adjudicators to apply the Pentney test and to consider its four factors when considering whether to grant an extension of time to commence an appeal pursuant to paragraph 29(e) of the COS. The Adjudicator’s departure from this longstanding practice as established through numerous ERC reports, the Applicant argues, establishes that the Adjudicator’s decision is unreasonable.
[54] The Respondent objects to the Applicant’s second argument on the ground that it constitutes a new argument on judicial review that was not raised before the Adjudicator in their submissions to the Adjudicator following the Direction that set out their view that Pentney did not apply in the circumstances. The Respondent relies on the Federal Court of Appeal’s comments in Firsov v. Canada (Attorney General), 2022 FCA 191, at paragraph 49 [Firsov], in support of its argument. The Federal Court of Appeal wrote as follows at paragraph 49 of Firsov.
[49] Courts generally will not consider a new issue on judicial review where the issue could have been, but was not, raised before the administrative decision-maker: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 21-26; Canada (Attorney General) v. Valcom Consulting Group Inc., 2019 FCA 1 at para. 36; Gordillo v. Canada (Attorney General), 2022 FCA 23 at para. 99. The reasons for this include the risk of prejudice to the responding party, and the potential to deny the reviewing court an adequate evidentiary record: Alberta Teachers’ at paras. 24-26.
[55] A review of the Applicant’s submissions in response to the Adjudicator’s Direction shows that the Applicant had the opportunity to submit the argument he submits in this proceeding to the Adjudicator prior to their having made the Decision but failed to do so.
[56] Rather than submitting that there was a long established practice in ERC reports that the Pentney test applied for the purposes of determining whether an extension of time ought to granted pursuant to paragraph 29(e) of the COS, the Applicant largely repeated what he had submitted in his original request for an extension of time and repeated his reliance on Pentney without actually identifying or explaining what he considered were the “exceptional circumstances”
that justified his request. In short, the Applicant doubled down on an argument that he knew had no chance of success in light of the Adjudicator’s Direction regarding the applicable legal test rather than make a submission to attempt to persuade the Adjudicator that Pentney applied.
[57] Considering these circumstances, I must follow the Federal Court of Appeal’s statements in Firsov and decline the Applicant’s invitation to review the Adjudicator’s Decision on the basis of an issue that had not been put before them for their consideration.
[58] If I am wrong in my reading of Firsov and of its direction in light of the facts of this matter, then I would find that the Applicant has not demonstrated that the Decision is unreasonable in its consideration and determination of the issue of an extension of time pursuant to paragraph 29(e) of the COS.
[59] The Applicant’s argument is that there is a long-standing practice for adjudicators to follow and apply Pentney in their consideration of paragraph 29(e) of the COS, yet the Applicant fails to establish that such a practice exists. The Applicant relies on five ERC reports to the Commissioner, one of which post-dates the Decision, that contain recommendations for the disposition of the appeals under study in those matters. As is apparent from subsection 45.16(8) of the RCMPA, the ERC is a recommendation making committee with no decision making power, is not an adjudicator, and has no power to bind the Commissioner or his delegate in their determination of whether an extension of time should be granted pursuant to paragraph 29(e) of the COS, or of an appeal. The long-stranding practice argued by the Applicant cannot be de jure practice of adjudicators under the RCMPA because it is the practice of the ERC and not of adjudicators tasked with deciding appeals.
[60] The Applicant refers to a single published summary of a decision by the Commissioner in matter no. C-046 to argue that the Commissioner has applied Pentney before in another matter where paragraph 29(e) of the COS was at issue. The summary of the decision linked to the Applicant’s Memorandum of Fact and Law does not suggest that that there was any consideration of whether exceptional circumstances were at issue in the Commissioner’s decision. While the Court cannot fully consider the Commissioner’s decision in matter C-046 because only a summary has been produced, the Commissioner’s decision in matter C-046 would not be binding upon the Adjudicator here in the same manner as precedent binds the courts and it would not be unreasonable for the adjudicator to depart from a prior administrative decision made on similar facts with some justification for it (Vavilov, at para 131; Faisal v. Canada (Citizenship and Immigration), 2021 FC 412, at para 26).
[61] The Adjudicator considered the wording of paragraph 29(e) of the COS, its explicit use of the words “exceptional circumstances”
, and interpreted the wording of paragraph 29(e) as requiring a different analytical approach and legal test than the ones that apply when the statutory basis for an extension of time does not refer to “exceptional circumstances”
as the basis for an extension of time to be granted. To quote the Adjudicator at paragraphs 18 and 19 of the Decision, “Parliament has provided significantly different wording for a retroactive time extension for an appeal under paragraph 29(e) of the CSO (Grievances and Appeals), which requires “exceptional circumstances”
, and “If Parliament wanted the same test used for two different legislative references, the wording would be the same, which it is not.”
[62] The Adjudicator explains the reasons for their approach to paragraph 29(e) of the COS. The Adjudicator’s approach and interpretation of paragraph 29(e) of the COS is in my view justified, intelligible and reasonable in light of the applicable statutory and regulatory language and framework.
[63] The Applicant’s second argument if considered on its merits does not persuade me that the Decision is unreasonable.
C. The Adjudicator did not fail to grapple with the Applicant’s evidence
[64] The Applicant argues that the Adjudicator failed to grapple with the Applicant’s evidence by failing to consider that it was an exceptional circumstance that the RCMP co-signed a letter to the OCGA explicitly stating that the RCMP did not oppose the request for an extension of time, and did not consider the relationship between the Applicant’s discrimination grievance and the conduct appeal.
[65] The Applicant’s argument is not persuasive.
[66] The record reflects that the Applicant did not lead evidence that established what he considered were “exceptional circumstances”
that justified his request for an extension of time commence an appeal more than 2 years after the expiry of the statutorily fixed time to do so. At best, the Applicant referred to “exceptional circumstances”
twice in his submissions to the Adjudicator, but both references are bald and fail to explain what his “exceptional circumstances”
were.
[67] The Adjudicator nevertheless understood and summarized the Applicant’s inferred basis for an extension of time as being that he had a parallel FPSLRA grievance in process at the time of his withdrawal of his appeal and indicated why there was nothing exceptional about the Applicant’s situation.
[68] Considering the Applicant’s failure to lead evidence of what his exceptional circumstances were, I find that the Adjudicator grappled with the Applicant’s concerns appropriately and sufficiently.
[69] It is correct that the Adjudicator did not mention in the Decision that the RCMP did not oppose the Applicant’s request for an extension of time, or acknowledge that the RCMP would not be prejudiced if an extension of time were granted, or that the RCMP jointly signed the March 3, 2025 letter, that contained representations as to the RCMP’s position on the Applicant’s request, but that does not make the Decision unreasonable. A party who seeks an extension of time is charged with the burden of proof and of persuasion. The Applicant had the burden of satisfying the Adjudicator that the evidence he led established the existence of exceptional circumstances. He also had the burden of persuading the Adjudicator that his evidence was sufficient light of the circumstances and the applicable legal framework to discharge his burden. The RCMP’s non-opposition to the relief he sought was very minor point that did not diminish or absolve the Applicant from discharging his onus or burdens with evidence and argument.
[70] The Applicant also did not lead evidence to show that the RCMP’s non-opposition to a request for an extension of time to commence an appeal is factually exceptional. The summary of the Commissioner’s decision in matter no. C-046 and its mention that the RCMP in that matter supported the granting of an extension of time in that case, as well as the ERC report in matter C-088 relied upon by the Applicant that reflects that the RCMP also supported an appellant’s request for an extension of time in that matter, suggest that the RCMP’s decision to not oppose the Applicant’s request for an extension of time is not exceptional and does not constitute an “exceptional circumstance”
in this case.
[71] The Adjudicator’s failure to mention the RCMP’s position and co-signature of the March 3, 2025, letter are not fundamental flaws that make the Decision unreasonable.
VII. Conclusions and Costs
[72] For the reasons set out above, I find that the Applicant has not established that the Decision is unreasonable. The Applicant’s application for judicial review is therefore dismissed.
[73] The parties informed the Court at the hearing that they had reached an agreement that the unsuccessful party would pay the successful party its costs of this proceeding in the amount of $ 3,000, all inclusive. There is no basis for the Court to disregard the parties’ agreement as to costs.
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