Communiqué - July to September 2022

Between July and September 2022, the RCMP External Review Committee (ERC) issued the following 8 findings and recommendations:

C-061 – Conduct Board Decision

The Appellant was the sergeant in charge of a cell block at a detachment. In the spring, the Appellant and Ms. X, a city employee from the same detachment, started texting each other on work and non-work-related topics. Over the course of the next few weeks, their text exchanges became sexually charged. Ms. X and the Appellant then became sexually intimate while at work and while both were on duty. At the end of the summer, Ms. X allegedly told the Appellant to stop texting her and that she wished to stop the relationship. 

Ms. X unexpectedly met the Appellant, who was at the end of his shift, in one of the detachment stairwells, as she rushed into the detachment to begin her shift. Their version of events differs, but the gist of the event is that Ms. X performed fellatio on the Appellant. Both agree, however, that they suddenly stopped. Ms. X approached a colleague of hers and told her what happened. On the same day, the supervisor was made aware of the situation, as well as the Conduct Authority. An investigation was mandated and the Appellant was arrested for sexual assault. The Crown elected not to proceed with charges.

The allegations proceeded by way of a contested hearing. However, there was a “Determination of Established Facts” filed before the Initial Board at a pre-hearing conference. Considering the delay between the Notice of Hearing and the actual hearing dates, the Member Representative filed a motion for a stay of proceedings. The Initial Board denied the motion, indicating that while the delay was unacceptable, it did not rise to the abuse of process threshold. However, the delay “may” be considered by the Board later in the proceedings. In the meantime, the Initial Board was replaced by another Board.

The Board found both allegations established. For the purposes of the allegations phase, the Board stated that it did not need to determine whether the Appellant was in a position of authority over Ms. X or whether the sexual contact was unwanted, because the sole act of having sexual contact while on duty, at the detachment was discreditable. The issue of authority and consent would be dealt with at the conduct measures phase. At the conduct measures phase, the Board found that the Appellant was in a position of authority over Ms. X. It further found that, while Ms. X might have been a willing participant in the beginning, the acts were no longer consensual. The Appellant was directed to resign from the Force and, in default of resigning within 14 days of being directed to do so, the Appellant would be dismissed.

The Appellant appealed the Board’s decision and raised the following grounds of appeal: (a) failing to provide any remedy for a clearly established Charter breach; (b) failing to apply the proper legal principles with respect to the standard of proof required to establish the allegations; (c) glossing over contradictions and problematic aspects of Ms. X’s evidence so as to find her to be a more credible witness than the Appellant on the issue of consent; and, (d) relying upon evidence that was not properly before the Board at both the merits and measures stages of the hearing.

ERC Findings: The ERC found that whether the Appellant’s section 7 rights to life, liberty and security of the person were engaged is a separate issue from whether the delay itself was unreasonable. For a finding that there was a Charter breach, there must be serious and profound effect of a state-imposed psychological stress; that delay alone does not warrant a stay of proceedings, but where there is proof of “significant prejudice” which results from the delay, a stay may be warranted. The ERC found that the Appellant did not demonstrate that the Board erred in not affording much weight to the delay as a mitigating factor.

On the second ground of appeal, the ERC found that there is no authority that stands for the principle that allegations must be proven, “as drafted”. Further, in order to find an allegation established, not all particulars of that allegation have to be proven. The ERC found that the Board did not err when it found the allegations were established while not making a finding on whether the Appellant was in a position of authority over Ms. X and whether the sexual contact was unwanted. The Board explained that, since the Appellant admitted to having sexual contact in the workplace and having an inappropriate relationship with Ms. X, it was sufficient to establish discreditable conduct.

Regarding the Board’s assessment of Ms. X’s credibility, the ERC found that the Board’s assessment was not clearly unreasonable. The Board explained its reasons for finding Ms. X’s version of events more plausible. It was further aware of some inconsistencies in her testimony. Where a trial judge demonstrates that he or she is aware of the inconsistencies in a witnesses’ evidence, but still concludes that the witness was nonetheless credible, in the absence of a palpable and overriding error, there is no basis for interference by the appellate court. 

Lastly, the ERC found that the Appellant was precluded from raising issues regarding the prior investigation documents. They were filed at the hearing and the Appellant had taken no position towards them nor did he request to have witnesses appear before the Board. Regarding the relationship between the city and the RCMP, the ERC found that the Board could not take official notice of a negative impact on their working relationship as no evidence was adduced at the hearing. That being said, the ERC found that when the decision is reviewed as a whole, the error does not seem so egregious that it justifies allowing the appeal in and of itself. The Board relied on multiple aggravating factors to explain its decision to order the Appellant’s dismissal.

ERC Recommendation: The ERC recommends that the appeal be denied.

C-062 – Conduct Authority Decision

The Appellant misused his RCMP status to develop a romantic relationship with a civilian.  In doing so, he inadvertently jeopardized a joint homicide investigation that was being performed by the RCMP and a partner police service.  The RCMP carried out a conduct investigation.  The Respondent reviewed the investigation file and a letter containing the Conduct Advisor’s input.  He then held a Conduct Meeting in which he heard and discussed the Appellant’s submissions. 

The Respondent issued a decision (Decision).  He found that the Appellant abused his position, contrary to section 3.2 of the Code of Conduct (Allegation #1).  He also found that the Appellant discredited the RCMP, contrary to section 7.1 of the Code of Conduct (Allegation #2).  He went on to order a written reprimand for Allegation #1, and a forfeiture of 40 hours’ pay for Allegation #2. 

The Appellant filed an appeal.  He argued that he was denied fairness.  In his view, the Conduct Advisor exceeded his role, and either decided the case himself or caused the Respondent to be biased.  He also argued that the Respondent did not properly explain how the Allegations were established, or why the Appellant received a written reprimand and a forfeiture of 40 hours’ pay.

ERC Findings: The ERC found that the conduct process was not in any way unfair.  The Conduct Advisor respected his role, as described in RCMP conduct authorities.  His letter offered advice on how to understand and approach the case.  It did not counsel the Respondent to make a specific decision.  It also did not press him to make a particular finding.  Moreover, it was clear from the record that the Respondent prepared, signed and dated a decision in which he engaged with the Appellant’s positions, and gave reasons in his own words.  A reasonably informed person who views this case realistically and practically, and thinks it through, would find that it was more likely than not that the Respondent decided matters fairly.

The ERC also found that the Respondent explained how the Appellant abused his position and discredited the RCMP.  The Decision contained roadmaps from the evidence and submissions, to the Allegations and the misconduct, to the Code of Conduct violations.  Those roadmaps could have been better.  However, they did not contain any apparent errors, and displayed reasons that were solid enough to form a tenable line of analysis that supported the Decision.

The ERC further found that the Decision implied why the Appellant received a written reprimand for abusing his position (i.e., Allegation #1).  The Respondent set forth eight factors that mitigated this conduct, but only one factor that aggravated it.  The disproportionate number of mitigating factors seemingly softened the conduct to the point that a remedial conduct measure sufficed. 

However, the ERC found that the forfeiture of 40 hours’ pay, as ordered by the Respondent, was unreasonable.  This was so only because the Decision did not provide a roadmap from the Appellant’s discreditable conduct (i.e., Allegation #2) to the ordering of that conduct measure.  The appeal should be allowed in part on this basis.  Based on some general principles extracted from the Conduct Measures Guide, the ERC found that two conduct measures should be imposed to address the discreditable conduct.  One is a forfeiture of 40 hours’ pay.  The other is a direction to reflect on the core RCMP values of honesty, integrity and professionalism.

ERC Recommendations: The ERC recommends that the Commissioner allow this appeal, in part, on the limited basis that the Respondent did not sufficiently explain why he ordered the Appellant to forfeit 40 hours’ pay for discrediting the RCMP.  The ERC further recommends that the Appellant instead receive two conduct measures for this misconduct.  One is a forfeiture of 40 hours’ pay, which a fuller analysis showed was suitable.  The other is a direction to reflect on the core RCMP values of honesty, integrity and professionalism.

NC-101 – Medical Discharge

The Respondent ordered the Appellant to be discharged from the RCMP for having a disability, as defined by the Canadian Human Rights Act (CHRA). The Appellant had a very lengthy period of off-duty sick (ODS) and the Respondent made several attempts to try and accommodate the member. Several Graduated Return to Work (GRTW) were attempted by the RCMP but all of them were rejected by the Appellant for one reason or another. The Respondent also attempted on two occasions to send the Appellant to a major metropolitan area at public expense to work from there so that she could get the care she needed. The Appellant refused, for reasons that were personal and unrelated to her contract of employment.

The Appellant was sent to an Independent Medical Examiner (IME) who subsequently opined that the Appellant was unlikely to be able to return to work in any capacity in the foreseeable future. This opinion was lengthy and was followed up with a second opinion after reviewing conflicting medical information provided by the Appellant’s physician and clinical psychologist. The IME’s reports remained the same as to diagnosis/prognosis and the Health Services Officer (HSO), after reviewing all of the medical information on the Appellant’s file, recommended a permanent O6 medical profile and determined that she was not able to return to work at the RCMP in any capacity for the foreseeable future.

The Appellant was provided and made submissions through her counsel in respect of a Notice of Intent to recommend her discharge. The Appellant submitted, among other points, that she was not accommodated by the RCMP up to the point of undue hardship; that the assignment of an O6 permanent medical profile and ultimate discharge was clearly unreasonable based on the evidence before the Respondent; and that the Respondent failed to consider new medical evidence provided by the Appellant post-decision. The Appellant submitted that it was the responsibility of the RCMP to pay her for losses that she would suffer on the sale of her home in order for her to move to the intended place of duty established by the RCMP. Further, the Appellant stated that she could not return to her current place of duty without providing an explanation as to exactly why to her superiors. Finally, the Appellant was difficult to reach along and after the discharge process and often did not respond to communications from the RCMP.

The Appellant appealed the decision to discharge her on the basis of a disability. The Appellant indicated that the Respondent did not follow the rules of natural justice and did not provide her with procedural fairness by not disclosing medical information not privy to the Respondent and by not considering recent and conflicting medical evidence; that the decision erred in law by not following the Canadian Human Rights Act (CHRA) and RCMP policy; and that the decision was clearly unreasonable and not supported by all of the evidence.

ERC Findings: In respect of procedural fairness, the Appellant submitted that the Respondent should have disclosed notes between the HSO and the IME which the Respondent did not do, due to the fact they were not part of the record before the Respondent who also indicated that he did not have access to the Appellant’s medical file. Second, the Appellant indicated that the Respondent failed to consider new medical information brought forth prior to his decision to discharge her. Further, the Appellant argued that the Respondent did not make the decision to discharge the member: it was in fact made by the HSO/IME. The allegation was that the Respondent could not, in law, delegate this power. Finally, the Appellant further submitted that the Respondent would not consider new medical evidence presented by her post decision but before the decision was served raising the view that the Respondent was not functus.

First, the ERC found that the medical information submitted prior to the decision was examined by both the IME and the HSO and it was determined that this did not change the recommended O6 permanent medical category with the stated employment restrictions/limitations. The Respondent had every right to rely on the given medical profile. Second, the Respondent was not legally obliged to go on a fishing expedition and make inquiries regarding documents that may or may not have been produced and were not before him. The Appellant was made well aware that the medical information was considered by the IME/HSO. This in no way impaired the Appellant’s ability to make a full answer and defence.

In respect to delegating his authority to discharge the Appellant, the HSO/IME had no legal authority to discharge the member and the legal authority to do so rested and remained with the Respondent.

Finally, the ERC determined that in accordance with subsection 12(3) of the CSO (Employment Requirements), the decision took effect immediately upon signing it and the Respondent was functus officio in respect of considering additional medical evidence post decision.

The ERC reviewed the CHRA and cited many provisions of RCMP policy, including the Disability Management and Accommodation Program Manual and found that there was a legal basis to discharge the Appellant on medical grounds and that such policy was in fact in accordance with the CHRA.

With respect to whether or not the decision was clearly unreasonable, the ERC found that it was not. The ERC found that the Appellant was in fact accommodated up to the point of undue hardship. Of prime importance in this case, was the fact that the Appellant frustrated the RCMP’s efforts to find a solution to help her, for reasons that were irrelevant to this process.

ERC Recommendation: The ERC recommends that the Commissioner dismiss the appeal. 

NC-102 – Stoppage of Pay and Allowances

The Appellant appealed a decision by the Force ordering the Stoppage of his Pay and Allowances.  The Stoppage of Pay and Allowances Order (SPAO) was imposed as a result of Code of Conduct allegations of indecent acts and voyeurism.  A statutory investigation into the Appellant’s alleged behaviour had been conducted by a local police department and the Appellant was charged with indecent acts, exposure and voyeurism.  

The Appellant appealed the SPAO Decision arguing that he was not clearly involved in the indecent acts or the voyeurism.  The Appellant argued that the SPAO Decision was clearly unreasonable because the imposition of SPAO resulted in severe financial and personal consequences for the Appellant and his family.  The Appellant also was of the view that the SPAO Decision was made in a manner that was at odds with the principles of procedural fairness.

ERC Findings: The ERC found that the Appeal was referable and was presented within the relevant time limitation period. The ERC found that a number of arguments raised by the Appellant were inadmissible because they were raised for the first time on Appeal and the Appellant had not explained why he did not raise the arguments to the Respondent in his earlier submissions.  The ERC explained why it dismissed the procedural fairness concerns raised by the Appellant. Regarding the merits, the ERC found that:

• The Respondent’s finding that the Appellant was clearly involved in the indecent acts involving civilians was not clearly unreasonable.  The Respondent provided a sufficient roadmap that linked the evidence in the record to his finding of clear involvement for each indecent act incident. The Respondent’s reasons, which include his summaries of the evidence that he considered for each incident, adequately explain why he found that the Appellant was clearly involved in each indecent act incident.  The Respondent also addressed the Appellant’s challenges to the evidence of the civilian witnesses and the objective evidence;

• The Respondent’s reasons indicate that he weighed the evidence in the record regarding the indecent act incidents involving the undercover operators against the Appellant’s submissions and the Appellant’s version of events described in his statement to the local police department, before determining that the Appellant was clearly involved in the deliberate act of exposing himself to both undercover operators in a public place; 

• The Respondent’s finding that the Appellant was not clearly involved in the voyeurism is not clearly unreasonable.  The Respondent clearly identified the evidence in the record that led him to conclude that the other person in the videorecordings did not consent to videorecordings and that she did not have knowledge of the videorecordings.  The ERC reviewed the video and photo evidence and found that the evidence before the Respondent could not be viewed as incapable of supporting the Respondent’s finding; and,

• The fact that a SPAO led to severe financial and personal consequences for the Appellant is not part of the criteria to be considered when imposing a SPAO.

ERC Recommendation: The ERC recommends that the Commissioner dismiss the appeal because the Respondent’s decision to impose a SPAO was not clearly unreasonable and was not reached in a manner that was procedurally unfair.

NC-103 – Harassment

The Appellant presented a harassment complaint (Complaint) against the Deputy Commissioner of her Division, the Alleged Harasser, in October 2017, approximately 19 months after the last alleged incident of harassment.  The Complaint contained numerous allegations, including that the Alleged Harasser had failed to provide a safe work environment free from harassment and discrimination.  Other allegations included that the Alleged Harasser was responsible for the persons under his employ and that the selection process completed by the Chief Human Resources Officer was biased against the Appellant. 

The Respondent rendered a Decision finding that the Appellant was out of time to file the Complaint as she had not provided sufficient reasons for him to extend the timeline to file. 

The Appellant appealed the Respondent’s Decision.  The Appellant submits that the Respondent was biased against her, and there was a breach of procedural fairness as she was not asked to provide further submissions related to her extenuating circumstances.  The Appellant further alleged that the Respondent failed to properly consider the “discoverability principle” and the decision was unreasonable. 

ERC Findings: The ERC found that the Respondent was not biased against the Appellant.  The ERC further found that the Appellant’s right to procedural fairness was satisfied because she was provided sufficient opportunity to make submissions on extenuating circumstances.  The ERC also found that the Appellant had failed to explain why she waited to file the Complaint until after she received decisions in another administrative process.  The ERC further found that while the Respondent had cited the proper policy for the consideration of extenuating circumstances, his reasons were insufficient to explain his findings and were therefore clearly unreasonable. 

ERC Recommendations: The ERC recommends that the Commissioner allow the appeal and remit the matter to a new decision-maker to render a new decision on whether the Appellant has demonstrated extenuating circumstances to extend the timeline for filing the Complaint.

NC-104 – Harassment

The Appellant presented a harassment complaint (Complaint) against the Chief Human Resources Officer, the Alleged Harasser.  The Complaint contained numerous allegations, including that the Alleged Harasser had failed to provide a safe work environment free from harassment and discrimination.  Other allegations included that the Alleged Harasser was responsible for the persons under his employ and that he engaged in a biased personnel selection made against the Appellant. 

The Respondent rendered a Decision finding that the Complaint was not established.  In his view, the Alleged Harasser’s actions did not amount to harassment but were actions within the scope of his duties.  The Respondent found that the alleged conduct was not directed at the Appellant.  The Respondent further found that the conduct was not improper or offensive conduct, meant to demean, belittle, or cause personal humiliation or embarrassment to the Appellant.  Finally, the Respondent found that looking at the allegations as a whole, they did not meet the test for harassment.

The Appellant appealed the Respondent’s Decision on several grounds. The Appellant argued that the Respondent was biased against her. The Appellant also believed that the Respondent could not conclude that harassment had not occurred because the Appellant’s past grievances succeeded in demonstrating discrimination on the same facts. Finally, the Appellant asserted that the Respondent’s decision was clearly unreasonable.

ERC Findings: The ERC found that the Respondent was not biased against the Appellant.  The ERC further found that the Respondent was not subject to issue estoppel from grievance decisions in determining whether the alleged conduct was harassment. The ERC found that while the Respondent had cited the proper test for harassment, his reasons were insufficient to explain his findings and were therefore clearly unreasonable.

ERC Recommendations: The ERC recommends that the Commissioner allow the appeal and remit the matter to a new decision-maker to render a new decision and to mandate an investigation into the conduct alleged by the Appellant. 

NC-105 – Harassment

The Alleged Harasser was the Appellant’s supervisor.  The two had a difficult working relationship.  They had ongoing issues and different visions for the work unit which ultimately led to conflicts arising from the Appellant’s Performance Evaluation as well as an alleged disguised demotion, among other things.  In 2018, the Appellant filed a harassment complaint (the complaint) against the Alleged Harasser which comprised multiple grounds organized into three main allegations.  Moreover, on an unspecified date, the Appellant filed an additional document which included several additional allegations.  The Alleged Harasser provided a detailed response in which he categorically denied the principle allegations made against him while acknowledging that there was conflict in their working relationship and telling his side of the story. 

The Respondent found that she had enough information to make a decision (the Decision) with respect to the complaint.  Therefore, she did not mandate an investigation.  In fact, she stated that the complaint “is not capable of being resolved through the investigative process” and concluded that the behaviours described “do not constitute harassment as prescribed in the definition of the policy on the Investigation and Resolution of Harassment Complaints”. 

ERC Findings: Although the Appellant did not raise this point on appeal, procedural fairness was in play based on the fact that the Respondent had failed to provide the Appellant with an opportunity to reply to the Alleged Harasser’s response to the complaint.  The ERC found that the decision was reached in a procedurally unfair manner on this basis.  The breach of the Appellant’s right to be heard constitutes an irreparable error that cannot be cured on appeal.  In addition, the ERC found that the decision was clearly unreasonable because it omitted to “meaningfully grapple with key issues or central arguments” raised in the additional document.  Despite having clearly been before the Respondent, the decision does not mention at any point the additional document.  It is simply silent about its existence and does not address its contents.  Thus, the Respondent failed to demonstrate that she actually listened to the Appellant and was alert and sensitive to the matter before her.  Finally, the ERC also found that the decision was clearly unreasonable because the Respondent did not have sufficient information to come to a conclusion.  In particular, no witness statements were taken despite a witness list having been outlined in the complaint, and the Appellant himself was not interviewed to gather more information about the longstanding issues.  In this way, the Administration Manual XII.8 was not adhered to by the Respondent during the decision-making process.  Fairness requires that a complainant be able to explain the details of their complaint, for instance through an interview, a statement, or a written document, and to receive an opportunity to respond to an alleged harasser’s reply to their complaint.

ERC Recommendations: The ERC recommends that the appeal be allowed, and that the matter be remitted for a new decision with a direction to order at least a limited investigation into the complaint.  During the investigative process, the Appellant should be permitted to address the Alleged Harasser’s response to the complaint and any other material collected.

G-767 – Private Accomodation Allowances

The Grievor held a position on the Marine Security Enforcement Team (MSET) in “X” Division.  As part of his duties, he was assigned to the Canadian Coast Guard ship on a team of police officers comprised of members from the RCMP and other police forces.  The police officers spent several consecutive days on the ship while working their respective shifts.  In the Grievor’s case, he worked ten-hour shifts for eight consecutive days, followed by six days of rest.

In November 2010, the Grievor sent the Officer in Charge (OIC) of the MSET several 1393 forms (expense claim for non-commercial accommodation) claiming an allowance of $50.00 for nights on board the ship spanning from July 2009 to December 2010.  The claim was denied by the OIC of the MSET and, as a result, the Grievor filed a grievance.

The grievance was denied at Level I.  In support of his decision, the Adjudicator found that (1) the Coast Guard ship could not be considered a private non-commercial accommodation; (2) the private non-commercial accommodation allowance (PNAA) was not an allowance for unsuitable accommodation; and (3) the Grievor was not eligible for any compensation as neither the Treasury Board Travel Directive nor the RCMP Travel Directive provided for an allowance for unsuitable accommodation.

The Adjudicator also noted that the Grievor’s discomfort did not result in personal expenses that could justify a reimbursement.

ERC Findings: The ERC found that the Coast Guard ship could not be considered a private non-commercial accommodation since it was not someone’s permanent residence and therefore, it did not have a private character.  The ERC then found that the Grievor was not eligible to receive a PNAA since such an allowance only applied to travellers staying in a private non-commercial accommodation.

The ERC then considered whether the Grievor could be compensated in any way for having been housed in an unsuitable accommodation.  Based on the applicable policies and the ERC findings in certain prior recommendations, it was determined that granting an allowance for having been housed in an accommodation deemed unsuitable was not authorized unless it is shown that the member incurred additional expenses as a result.  Since the Grievor did not show that he incurred additional expenses due to the accommodation conditions during his work shifts, the ERC found that the circumstances did not justify a reimbursement.

ERC Recommendation: The ERC recommends that the Commissioner deny the grievance.

The Commissioner of the RCMP has provided her decision in the following matters, for which the ERC’s Findings and Recommendations were summarized in previous issues of the Communiqué:

C-057 Conduct Authority Decision (summarized in the January – March 2022 Communiqué)

The Appellant was a supervisor at a Detachment. One of his subordinates, Cst. B, initiated a harassment complaint against the Appellant. During the investigation of the harassment complaint, additional allegations of inappropriate behaviour by the Appellant were disclosed.

Following a harassment investigation regarding the actions of the Appellant and a Conduct Meeting, the Conduct Authority issued a written decision where she found that the Appellant engaged in harassment against Cst. B, by drawing a target and writing offensive remarks on equipment worn by Cst. B (Allegation 1); and that the Appellant engaged in 12 incidents of offensive conduct, which demonstrated disrespect for women and Cst. B (Allegation 2). Both allegations were brought pursuant to section 2.1 of the Code of Conduct. The Conduct Authority imposed conduct measures of a demotion from the rank of Corporal for an indefinite period, a total forfeiture of 20 days' pay, and a direction to complete ethics/harassment training.

On appeal, the Appellant alleged that the Conduct Authority’s decision contravened the principles of procedural fairness, and was clearly unreasonable. The Appellant argued that he was denied procedural fairness because he was provided insufficient time to receive representation from the Member Representative Directorate (MRD) prior to the Conduct Meeting. The Appellant appealed the Conduct Authority’s findings on the allegations based on the Conduct Authority failing to consider relevant evidence, namely, that the Appellant could not have reasonably known Cst. B would be offended. The Appellant also appealed the conduct measures imposed by the Conduct Authority, alleging that the imposed conduct measures, which impacted his leave and severance retirement payouts, were overly punitive.

ERC Findings: The ERC found that the Appellant was not denied procedural fairness because he was informed, through the Notice of Conduct Meeting, that he could seek advice and assistance from the MRD.

The ERC found that the Conduct Authority considered the Appellant’s arguments and did not fail to consider any relevant evidence when determining that the Appellant engaged in harassment and disrespectful behaviour.

The ERC found that the conduct measures imposed on the Appellant by the Conduct Authority were not clearly unreasonable and did not require intervention on appeal. The Conduct Authority identified the appropriate range of conduct measures, as well as mitigating and aggravating factors. The conduct measures selected by the Conduct Authority were proportionate to the misconduct and supported by the principles in the Conduct Measures Guide.

ERC Recommendations: The ERC recommended that, pursuant to subsection 45.16(2)(a) of the RCMP Act, the appeal be dismissed and the Conduct Authority’s findings on the allegations be confirmed.

The ERC recommended that, pursuant to subsection 45.16(3)(a) of the RCMP Act, the appeal relating to conduct measures be dismissed and that the conduct measures imposed by the Conduct Authority be confirmed.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the finding made by the Respondent that two allegations raised against him are established, namely that he engaged in harassment and that he engaged in disrespectful and offensive conduct, both allegations contrary to section 2.1 of the Code of Conduct. The Appellant also appealed the conduct measures imposed by the Respondent, namely an indefinite demotion and forfeiture of 10 days’ pay for the allegation of harassment, and the forfeiture of 10 days’ pay and training for the allegation of disrespectful and offensive conduct.

The Appellant contended that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness, is tainted by an error of law and is clearly unreasonable. He advanced that he was denied procedural fairness because he was not afforded legal assistance from the Member Representative Directorate, as was his right; that the conduct proceedings occurred prior to completion of the investigation and that the Respondent did not consider all the evidence; and, that the conduct measures were overly punitive, particularly given the impact on his severance pay following retirement.

The RCMP External Review Committee examined the matter and recommended that the appeal be dismissed.

The Adjudicator determined that the grounds of appeal raised by the Appellant were not established; dismissed the appeal; and, confirmed the findings made by the Respondent as well as the conduct measures she imposed.

C-059 Conduct Board Decision (summarized in the April – June 2022 Communiqué)

This is an appeal by an RCMP member, requesting the decision dismissing him from the Force be overturned.

The Appellant was alleged to have provided false or incomplete information to an investigator during a Code of Conduct investigation, into whether he conducted himself in a discreditable manner towards his supervisor. The Appellant was alleged to have done this by arranging a meeting between his supervisor and a member of the public and failing to tell his supervisor about the meeting or its purpose, contrary to section 2.1 of the Code of Conduct.

The Appellant provided a response to the investigator regarding this Code of Conduct investigation. However, when the investigator compared the text messages string provided by the Appellant with his response to the one provided by his supervisor, one derogatory text message he had sent to his supervisor was missing. As a result, the Appellant was alleged to have provided a false or misleading statement to the investigator in his response, contrary to section 8.1 of the Code of Conduct.

While attempting to explain the discrepancy in the text messages, the Appellant provided a statement written by another member. In this statement, the member explained that it was him that had sent the derogatory text message, without the Appellant’s knowledge. Then the Appellant stated that his young child may have deleted the text message. The Appellant was subsequently alleged to have, for a second time, failed to provide complete and accurate accounts contrary to section 8.1 of the Code of Conduct.

The Board found that both allegations were established on a balance of probabilities. The Board further found that dismissal was the appropriate remedy as the actions of the Appellant were directly contrary to the core values of the Force.

The Appellant appealed the conduct findings. The Appellant submitted that there was a reasonable apprehension of bias on behalf of the Board. He further argued that the Board breached procedural fairness by holding him to a higher standard of proof and failing to call two key witnesses. Further, the Appellant argued that the Board’s decision was clearly unreasonable and not supported by the evidence.

ERC Findings: The ERC found that there was no reasonable apprehension of bias on behalf of the Board, as the context of the whole decision would not lead a reasonable person to conclude that the Board was biased. The ERC also found that the Board did not breach procedural fairness by failing to summon two witnesses, as the Appellant was aware prior to the hearing that these two individuals wouldn’t be called and failed to raise this issue at the hearing. He was thus precluded from raising this issue on appeal. Lastly, the ERC found that the evidence supported the findings that the Board made related to the credibility of the witnesses, and the decision as a whole was reasonable.

ERC Recommendation: The ERC recommended that the appeal be dismissed.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

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

The Appellant faced two allegations under section 8.1 of the RCMP Code of Conduct for providing a false, misleading written statement to a superior or a person in authority, while being involved as a Subject Member in a Code of Conduct investigation. The Appellant allegedly deleted a text message from an exchange before submitting the conversation to the Conduct Authority and then claimed the deleted offending text message was sent by a fellow RCMP officer without his knowledge.

The Appellant contested both allegations. A Conduct Board found the allegations established and ordered the Appellant to resign within 14 days or be dismissed from Force. The Appellant appealed this decision.

On appeal, The Appellant argues that the Board’s behaviour raised a reasonable apprehension of bias; that the Board breached his right to procedural fairness when it did not call two crucial witnesses and when it held the Appellant to a higher standard of proof than the Conduct Authority Representative; and, that the decision is unreasonable because it was unsupported by the evidence. The Appellant also argues that methods employed by the investigator breached his right to procedural fairness. Accordingly, the Appellant sought full reinstatement, including all pay, benefits and overtime, that he would have received since the issuance of the decision.

The appeal was referred to the RCMP External Review Committee (ERC) for review. The ERC found that Board did not demonstrate a reasonable apprehension of bias; did it not breach the relevant principles of procedural fairness; and, that the Board’s decision was not clearly unreasonable.

An Adjudicator found that the Board’s decision was supported by the record and not clearly unreasonable, as well as that it was not reached in contravention of the applicable principles of procedural fairness. The appeal was dismissed.

NC-090 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant presented a harassment complaint (Complaint) against a former colleague, the Alleged Harasser. The Appellant was seeking a promotion within the Alleged Harasser’s unit and was corresponding with the Alleged Harasser regarding the opportunity. As the correspondence was ongoing, the Alleged Harasser accidentally sent the Appellant an email discussing the Appellant and describing the Appellant’s interactions as a “saga”. The Appellant immediately responded taking issue with the email. The Appellant, the Alleged Harasser, and their supervisors then met to discuss the Alleged Harasser’s behaviour. The Alleged Harasser’s supervisor noted the behaviour in a performance log. The Appellant subsequently was not the selected candidate for the promotion. The Appellant then filed the Complaint.  

The Complaint alleged that the email describing the Appellant’s interactions as a “saga” amounted to harassment. The Complaint also explained that, in subsequent dealings, the Alleged Harasser had been dishonest with the intended recipient of the email and that it was originally intended for a coworker in her unit. The Appellant felt that the Alleged Harasser’s opinion affected her opportunity for promotion.

Prior to rendering a Decision, the Respondent received a written response to the Complaint from the Alleged Harasser. The Respondent also sought input from the Alleged Harasser’s supervisor regarding the recipient of the email as well as from the National Promotions Unit regarding the impartiality of the promotion process.

The Respondent rendered a Decision finding that the Complaint was not established. In his view, given the isolated nature of the email, there was no need to mandate an investigation nor did its content demean the Appellant.

The Appellant appealed the Respondent’s Decision.

ERC Findings: During the Appeal, the Appellant submitted a number of documents, which explained the involvement of the Alleged Harasser in the promotion process as well as a document explaining the information gathered prior to the Decision. The ERC found that these documents should be included as fresh evidence in the Appeal.

The ERC found that the Decision was both procedurally unfair and clearly unreasonable. More specifically, the ERC found that the principles of fairness had not been adhered to as the Appellant was not provided an opportunity to explain fully the substance of her Complaint and to respond to the information gathered by the Respondent prior to the rendering of the Decision.

The ERC also found that the decision not to mandate an investigation was clearly unreasonable. It was determined that the conduct of the Alleged Harasser and the content of the correspondence, did not clarify the scope of the Alleged Harasser’s actions or whether they impacted the Appellant’s career aspirations. This information was necessary to resolve the substance of the Appellant’s complaint.

ERC Recommendations: The ERC recommended that the Commissioner allows the appeal and remit the matter to a new decision-maker so that he or she can mandate an investigation and re-determine the Complaint in line with the principles of procedural fairness.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the Respondent’s decision finding that the allegation of harassment, made by the Appellant against the Alleged Harasser, was not established. The Appellant accused the Alleged Harasser of gossiping about her via email, after the latter inadvertently sent the email to the former. The Appellant filed a harassment complaint against the Alleged Harasser. She claimed that the email, referring to a “saga” of poor behaviour by the Appellant, demonstrated that the Alleged Harasser was actively harming her reputation and potentially harming her promotional opportunities within her division. The Respondent in this matter concluded that an investigation into the circumstances was not necessary, that the behaviour did not amount to harassment and that the matter was appropriately dealt with by the Alleged Harasser’s manager. The Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision was reached in a manner that contravened the principles of procedural fairness and is clearly unreasonable. She argued that an investigation into her allegation was necessary because the context of the email implied there was more to it and that there had been more conversations between the Alleged Harasser and the intended recipient. The Appellant also provided new evidence to support her appeal, as she had never been afforded an opportunity to submit this evidence previously.

The appeal was referred to the RCMP External Review Committee (ERC). In a report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision was reached in a manner that was not procedurally fair, since the Respondent did not provide the Appellant the opportunity to submit evidence, received submissions made by the Alleged Harasser and other parties, and did not provide the Appellant an opportunity to reply to those submissions. Furthermore, the ERC found that the decision was also clearly unreasonable because the Respondent lacked evidence or a rational basis for his conclusions and was incorrect to suggest an
investigation was unnecessary in the circumstances. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision maker for a new consideration.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. The Adjudicator mandated an investigation and remitted the matter to a new decision maker.

NC-091 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant and the Alleged Harasser had multiple exchanges over a period of months. Some of the exchanges concerned the Appellant’s deteriorating health and availability to work. The Alleged Harasser allegedly made the Appellant feel bad for needing medical leave, jeopardized his recovery, told him he was unfit for policing, accused him of misleading a doctor and yelled at him in the presence of other members, among other things.

The Appellant presented a harassment complaint (Complaint). It briefly described five alleged incidents of harassment. It also named Inspector (Insp. A) as a witness. The Alleged Harasser filed a response to the Complaint, and attached several supporting documents. He agreed that someone should speak to Insp. A, who was present during one incident and may have already looked into others. Insp. A also handed over documentation relating to an incident. The Respondent did not order an investigation into the Complaint. Moreover, the Appellant was not invited to supply further details about his Complaint, or address the Alleged Harasser’s or Insp. A’s information.

The Respondent concluded that the alleged incidents did not amount to harassment (Decision). The Appellant lodged an appeal. He suggested that a deeper inquiry into his Complaint was necessary, and that he could have provided further helpful information. He also believed that the Decision was based on flawed assumptions, misunderstandings and inaccuracies that an investigation could have rectified. The Appellant ultimately resigned from the RCMP.

ERC Findings: The ERC found that the Decision was reached in a procedurally unfair manner. If a decision-maker decides a harassment complaint without ordering an investigation, because they believe there is sufficient information before them, the process must be fair. A complainant must be given an opportunity to fully explain their side of the story and respond to the alleged harasser’s version of events, before a final decision is made. The Appellant’s inability to supplement his Complaint (e.g., via an interview or statement), to reply to the Alleged Harasser’s version of events, or to address Insp. A’s documentation resulted in a process that was procedurally unfair. The ERC also found the Decision to be clearly unreasonable because it was based on information that was not complete enough to provide a supporting rational or tenable line of analysis. In addition to interviewing the Appellant, speaking to Insp. A would have enabled the Respondent to more meaningfully assess multiple aspects of the Complaint. Two other witnesses could also have helped to clarify what happened during an incident. The ERC found that, although the Appellant is no longer a member, the appropriate remedy is to order an investigation and render a new decision that meaningfully addresses the Complaint. Regardless of the outcome, this will help to ensure the Appellant’s case is, and is seen to be, fairly and thoroughly reviewed.

ERC Recommendations: The ERC recommended that the appeal be allowed, and that the matter be remitted for a new decision with a direction to order an investigation into the Complaint.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the Respondent’s decision finding that the allegations of harassment, made by the Appellant against the Alleged Harasser, were not established. The Appellant accused the Alleged Harasser of making remarks about his medical leave; preventing him from leaving his duty area, criticizing and yelling at him; and, contacting his father in order to share sensitive information.

The Appellant filed a Harassment Complaint against the Alleged Harasser. He claimed that the Alleged Harasser’s handling of his request for medical leave made the Appellant feel humiliated, belittled, demeaned, and threatened. The Respondent in this matter concluded that the Appellant’s Complaint was unfounded and that an investigation into the allegations would not be necessary, as the offending behaviour did not constitute harassment. The Respondent issued
a Record of Decision where she determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision was reached in a manner that contravened the principles of procedural fairness and is clearly unreasonable. He argued that an investigation into his allegations was necessary because there was not a rational basis to make a finding that harassment did not occur without such an investigation. He also argued that it was procedurally unfair not to afford him an opportunity to respond to the Alleged Harasser’s evidence and submissions in response to the Complaint.

The appeal was referred to the RCMP External Review Committee (ERC) and in a Report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision was reached in a manner that was not procedurally fair since the Respondent did not provide the Appellant the opportunity to submit evidence and to receive submissions made by the Alleged Harasser and other parties, and was not provided an
opportunity to reply to those submissions either. Furthermore, the ERC found that the decision was clearly unreasonable because the Respondent lacked evidence or a rational basis for her conclusions and was incorrect to suggest an investigation was unnecessary in the circumstances. The ERC recommended an investigation be mandated and that the relevant witnesses be contacted.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. The Adjudicator mandated an investigation into the complaint of harassment.

NC-092 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant filed a harassment complaint against a Staff Sergeant (Alleged Harasser), alleging that he made offensive remarks regarding the Appellant within a grievance process in which he had supplied information on the decision-making process for a promotion. The Respondent found that the definition of harassment had not been met. The Respondent explained that the grievance process was a separate administrative process from the harassment process. The confidentiality of the grievance process prevented her from accessing any information related to or comments allegedly made by the Alleged Harasser during the grievance process.

ERC Findings: The ERC’s review at the appellate level of harassment decisions is a review of the Respondent’s Decision (Decision) on one or more prescribed ground(s) of appeal, not a review de novo of whether harassment occurred. The ERC found that the Decision was clearly unreasonable because the Respondent did not have to access the grievance process to determine whether she had sufficient information to render a decision on the harassment complaint or to mandate an investigation. 

ERC Recommendations: The ERC recommended that the Commissioner allow the appeal. The ERC also recommended that the Commissioner set the decision aside and appoint a different decision-maker to review the harassment complaint in order to determine if an investigation of some nature is required.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals a finding made by the Respondent that the Alleged Harasser’s behaviour did not meet the definition of harassment. The Appellant contends that the decision is clearly unreasonable.

This appeal was forwarded to the Royal Canadian Mounted Police External Review Committee (ERC) for review. The ERC recommended that the appeal be allowed.

The adjudicator found that the Respondent was incorrect to conclude that the grievances process is sheltered from allegations of harassment. Based on that faulty premise, the Respondent failed to apply the test for harassment to the Appellant’s allegation.

Accordingly, the adjudicator determined that the decision was clearly unreasonable and allowed the appeal. The adjudicator mandated that a new decision maker be appointed to review this harassment complaint in order to determine whether an investigation of some nature is required, and to render a new decision with reasons.

NC-093 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant presented a harassment complaint (Complaint) against a former colleague and supervisor, the Alleged Harasser. The Appellant and Alleged Harasser worked together in a division for a number of years before she went on leave. Upon the Appellant’s return and before her transfer, she was placed under the supervision of the Alleged Harasser for a short period of time. Several years later, the Appellant attempted to return to the divsion. At that time, the Appellant became aware of a Final Report which discussed her performance for the short time she was under the supervision of the Alleged Harasser. The Appellant then filed the Complaint, challenging the accuracy and use of the Final Report.

The Complaint alleged that the Final Report contained falsehoods regarding the time she spent under the supervision of the Alleged Harasser. As well, the Appellant felt that the unfavourable representation of her performance was being used to prevent her from achieving her career aspirations.

The Respondent rendered a Decision finding that the Complaint did not include enough details to justify an investigation. The Respondent found that the allegation was not established as the alleged behaviours speculated on the conduct of the Alleged Harasser and the impact it may have had on the Appellant.

The Appellant appealed the Respondent’s Decision.

ERC Findings: During the Appeal, the Appellant submitted a number of documents, which explained the assessment of the Appellant’s performance and use of the Final Report. The ERC found that these documents should be included as fresh evidence in the Appeal.

The ERC also requested a copy of the briefing note informing the Respondent of the allegation. In response, the Appellant submitted arguments and evidence. The submissions and evidence related to the content of the briefing note were accepted. The remaining arguments and evidence were not considered.

The ERC found that the Decision was both procedurally unfair and clearly unreasonable. More specifically, the ERC found that the principles of fairness had not been adhered to as the Appellant was not provided an opportunity to explain the substance of her Complaint fully and to provide relevant documents, central to the Complaint.

The ERC also found that the decision not to mandate an investigation was clearly unreasonable. The Respondent identified multiple areas where the information before him lacked sufficient detail. Yet, the Respondent chose to render a decision rather than seeking the necessary information.

ERC Recommendations: The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker so that he or she can mandate an investigation and re-determine the Complaint in line with the principles of procedural fairness.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the Respondent’s decision finding that the allegation of harassment, made by the Appellant against the Alleged Harasser, was not established. The Appellant accused the Alleged Harasser of spreading false information about her by sharing an unjustified negative performance review that she had never previously been made aware of.

The Appellant filed a harassment claim against the Alleged Harasser. She claimed that the performance review was deliberately misleading and it demonstrated that the Alleged Harasser was actively harming her reputation and promotional opportunities. The Respondent in this matter concluded that an investigation into the circumstances was not necessary and that the offending behaviour did not constitute harassment against the Appellant. The Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision was reached in a manner tha contravened the principles of procedural fairness, is based on an error of law, and is clearly unreasonable. She argued that an investigation into her allegation was necessary because the complaint had been split into five innocuous statements that made no sense without considering them in totality, or examining the offending performance review. The Appellant also provided new evidence to support her appeal, as she had never been afforded an opportunity to submit this evidence previously.

The appeal was referred to the RCMP External Review Committee (ERC) and in a report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision was reached in a manner that was not procedurally fair since the Respondent had not provided the Appellant the opportunity to submit evidence. Furthermore, the ERC found that the decision was also clearly unreasonable because the Respondent lacked evidence or a rational basis for his conclusions and was incorrect to suggest that an investigation was unnecessary in the
circumstances. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision maker, outside of the Division, for a new consideration.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. The Adjudicator mandated a new investigation and remitted the matter to a new decision maker outside of the Division.

NC-094 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant filed a harassment complaint (Complaint) with the Office for the Coordination of Harassment Complaints (OCHC). In the Complaint, the Appellant alleged that he was harassed by the Alleged Harasser who allegedly, while on operational duty, humiliated the Appellant in front of others through actions which included yelling and criticizing his performance in a belittling manner. The Appellant further felt that the Alleged Harasser had made comments towards him that suggested that he lacked the skills required to become a police officer. The Alleged Harasser provided a detailed response to the Complaint.

The Respondent did not mandate an investigation into the Complaint. Based on the Complaint, the Alleged Harasser’s response and other material that related to the Appellant’s performance, the Respondent concluded that the Alleged Harasser’s actions did not amount to harassment. The Appellant appealed the Respondent’s decision.

On appeal, the Appellant alleged that the Respondent breached his procedural fairness rights by failing to consider all of the information that had been submitted with the Complaint. The Appellant also argued that the Respondent had erred by only considering the allegations individually and failing to consider them as a series of incidents. He also alleged that the decision was clearly unreasonable because the Respondent had improperly assessed the facts and that an investigation ought to have been mandated.

ERC Findings: The ERC found that while the Alleged Harasser had the opportunity to respond to the allegations raised in the Complaint by providing their full version of the events, the Appellant had not been given an opportunity to rebut the Alleged Harasser’s response. Nor had the Appellant had an opportunity to comment on the material relating to his performance which was before the Respondent. While there was a lack of certainty as to whether an additional document had been provided to the Respondent by the Appellant when submitting the Complaint, that issue might have been clarified if the Appellant had been given an opportunity to fully explain his perception of the events and address the material before the Respondent. In failing to give the Appellant this opportunity, the Respondent did not follow applicable rules of procedural fairness.

The ERC further found that the Respondent had assessed the allegations as a whole based on the limited information available. However, the Respondent’s decision not to mandate an investigation was clearly unreasonable since the evidence available to her did not provide the full story, and an investigation was necessary to fully understand what happened. Interviews of the Appellant, the Alleged Harasser and a number of potential witnesses that had been identified in the Complaint could have allowed the Respondent to better assess the allegations of harassment.

ERC Recommendations: The ERC recommended that the appeal be allowed and that the matter be remitted to a different decision-maker for a new decision. The ERC also recommended that an investigation into the Appellant’s Complaint be mandated.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the Respondent’s decision finding that the allegation of harassment made by the Appellant against the Alleged Harasser was not established. The Appellant accused the Alleged Harasser, his training officer, of humiliating him in front of others and criticizing his performance in a belittling manner. The Appellant further alleged that the Alleged Harasser made comments towards him that suggested he lacked the skills necessary to become a police officer.

The Respondent in this matter concluded that the Appellant’s complaint was unfounded and that an investigation into the circumstances would not be necessary, as the offending behaviour was borne out of frustration with the Appellant’s poor performance as a police officer. The Respondent issued a Record of Decision where she determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision was reached in a manner that contravened the principles of procedural fairness; was based on an error of law; and, is clearly unreasonable. He argued that an investigation into his allegations was necessary because the Respondent failed to consider all evidence and did not provide adequate justification as to why she accepted the Respondent’s version of events over his.

The appeal was referred to the RCMP External Review Committee (ERC) and in a Report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision was reached in a manner that was not procedurally fair since the Respondent did not provide the Appellant the opportunity to submit evidence, and received submissions made by the Alleged Harasser without providing the Appellant an opportunity to reply to those submissions. Furthermore, the ERC found that the decision was also clearly unreasonable because the Respondent lacked evidence or a rational basis for her conclusions and was incorrect to suggest an investigation was unnecessary in the circumstances. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision maker for a new decision.

Having considered the facts of the matter, the applicable statutory and policy provisions, as well as the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. The Adjudicator mandated an investigation and remitted the matter to a new decision maker. 

NC-095 Harassment (summarized in the January – March 2022 Communiqué)

In 2013, Constable (Cst.) X filed a grievance against the Appellant containing harassment allegations. In 2016, the Appellant filed a harassment complaint against Cst. X for comments made in an email written by her in exchanges during the processing of her grievance against the Appellant.

The complaint was filed with the Office for the Coordination of Harassment Complaints on September 23, 2016. On January 19, 2017, the Respondent issued a decision dismissing the Appellant’s harassment complaint on the grounds that it should have been dealt with as part of Cst. X’s grievance process. In support of this position, the Respondent relied on the grievance policy in effect at the time, Chapter II.38 of the Administration Manual (AM), entitled “Grievances” (AM II.38), which provided that “the level considering a grievance shall decide all matters relating to it” (section 13).

ERC Findings: Since the new RCMP Act took effect in November 2014, the option of filing a grievance to report harassment allegations is no longer available. Harassment complaints are now dealt through a single process according to the procedure in Chapter XII.8 of the AM, entitled “Investigation and Resolution of Harassment Complaints” (AM XII.8). In this case, since the complaint was filed in 2016, it was, by default, to be addressed in accordance with AM XII.8. The Respondent therefore erred in applying AM II.38, and the decision under appeal is consequently based on an error of law.

ERC Recommendation: The ERC recommended that the appeal be allowed.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

[Translation]

In November 2013, Constable (Cst.) X, filed a grievance containing allegations of harassment against the Appellant, under the process available at the time. This complaint was investigated and found to be without merit. On September 23, 2016, the Appellant filed a harassment complaint against Cst. X, related to comments made by the latter about her in an email she wrote during the handling of the grievance. On January 19, 2017, the Respondent rendered his/her decision, dismissing the Appellant’s harassment complaint and arguing that the Grievor should have raised his/her complaint to the Adjudicator during the treatment of the Cst. X’s grievance. The Respondent relies on the grievance policy of the Administration Manual (AM) grievance policy chapter II.38 “Grievances” (AM II.38) in effect at the time the grievance against Cst. A was processed.  

The RCMP External Review Committee (ERC) has conducted a review of the file and determined that since the new RCMP Act came into effect as of November 28, 2014, the use of the grievance process to deal with harassment allegations is no longer an option. The ERC points out that the harassment complaints must now be dealt with according to the single process established in the AM, chapter II.8 « Investigation and Resolution of Harassment Complaints” (AM XII.8); as well as the Commissioner’s Standing Orders (investigations and resolution of harassment complaints) CSO (Grievance). The ERC concluded that since the Appellant’s complaint was filed in 2016, and despite the date of the source document, it must be dealt with in accordance with the AM XII.8 and CSO (Grievance). The ERC found that the Respondent therefore erred in law and recommends that the appeal be allowed.

The Adjudicator shares the ERC’s opinion to the effect that the decision of the Respondent erred in law and accepts its recommendation to allow the appeal. However, the Adjudicator considers that due to the time elapsed and the fact that Cst. X no longer works for the RCMP, no further action is now possible in the context of this complaint. The Adjudicator apologizes to the Appellant on behalf of the RCMP for the shortcomings on the part of the RCMP in handling his/her harassment complaint. 

NC-096 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant presented a harassment complaint (Complaint) against his supervisor (Alleged Harasser). He accused the Alleged Harasser of ignoring or taking too long to answer his requests. He also accused the Alleged Harasser of communicating with him in a belittling way, including once in front of Corporal (Cpl.) X. In his reply, the Alleged Harasser explained why he had done certain things, and attributed some of his actions to staffing and budget issues.

The Respondent ordered an investigation. Investigators interviewed both parties and a witness. They then drafted a detailed report that outlined the statements they had obtained, and several other pieces of evidence. After reviewing the report and the evidence, the Respondent found that allegations did not individually constitute harassment. Taking into consideration the totality of her findings, she concluded that the Complaint was not established (Decision).

The Appellant appealed the Decision. He believed that it was reached in a procedurally unfair manner and was clearly unreasonable. He took four positions. Namely, the Respondent: had a reasonable apprehension of bias; omitted to consider the allegations as a whole; omitted to pursue and address two specific issues; and omitted to have the investigators interview Cpl. X.

ERC Findings: The ERC was not persuaded by the Appellant’s positions.

An alleged breach of procedural fairness must be raised at the earliest possible opportunity. The Appellant learned the Respondent would be the decision-maker months before the Decision was made. Yet he did not object to her appointment, or ask to have any possible unfairness resolved. Assuming he learned about a possible reasonable apprehension of bias only after the Decision was made, he did not provide any evidence of an impropriety to support his position.

Moreover, the Decision was not clearly unreasonable. First, the Respondent both recognized and applied the principle that allegations of harassment must be considered as a whole. She found that the allegations did not collectively reveal harassment. Rather, they collectively revealed a mutual communication breakdown, different workstyles, and a shared lack of professionalism and respect. Second, the investigators did examine, and the Respondent did address, one of the two issues the Appellant claimed was ignored. Although the investigators did not pursue and address the other issue, that issue principally involved the actions of someone other than the Alleged Harasser. Third, it was unnecessary for the investigators to interview Cpl. X, since Cpl. X would not have offered obviously crucial evidence. The Appellant and Alleged Harasser already provided clear and corresponding accounts of the incident that Cpl. X witnessed. Ultimately, the evidence the Respondent received and relied on was capable of supporting her findings.

ERC Recommendations: The ERC recommended that the Appeal be dismissed and that the Decision be confirmed.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant challenged the Respondent’s finding that his harassment complaint was not established.

According to the Appellant, the Alleged Harasser ignored, declined, or took too long to answer his requests for a RCMP travel card, kit and clothing, and overtime claim. The Appellant also contended that the Alleged Harasser set him up for failure by giving him a short turnaround time to prepare a statistical report for a meeting, and spoke to him in a belittling manner.

The Respondent ordered an investigation and issued a Record of Decision after considering the Final Investigation Report and the evidence presented to her. In the Respondent’s view, the incidents forming the Appellant’s allegation against the Alleged Harasser did not constitute harassment, either individually or in their totality.

The Appellant files a Statement of Appeal, claiming that the decision contravened the applicable principles of procedural fairness and was clearly unreasonable. He argued a reasonable apprehension of bias on the part of the Respondent who had failed to consider the incidents in their totality, overlooked certain issues, and failed to have the harassment investigators interview Corporal X.

The appeal was referred to the RCMP External Review Committee (ERC) and in a Report containing findings and recommendations, the ERC recommended that the appeal be denied. The ERC found that the Appellant had not demonstrated a reasonable apprehension of bias, and was satisfied that the Respondent considered the incidents in their totality; and did not overlook any issues. The ERC also determined that interviewing Corporal X would not have offered any crucial evidence.

Having examined the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator agreed with the ERC recommendation and dismissed the appeal.

G-765 Stoppage of Pay and Allowances (summarized in the April – June 2022 Communiqué)

The Grievor held a position in "X" Division. On November 27, 2007, while off duty, he was involved in a physical altercation with a member of the community (Alleged Victim). In the months following the incident, the Grievor allegedly conducted, for personal purposes, checks on the Alleged Victim and his spouse in the police computer system. Following a police investigation, the Grievor was charged with assault causing bodily harm.

During his criminal trial, the Grievor testified in his own defence. In its reasons for decision, the Court found that the Grievor’s testimony was unreliable and that the checks he conducted in the police computer system were more than a simple coincidence.

Following the RCMP’s analysis of the Grievor’s testimony and cross-examination at his criminal trial, it was determined that he allegedly made a false or misleading statement when answering questions about the checks he conducted on the Alleged Victim and his spouse in the computer system (allegation of perjury). As a result, an investigation under the RCMP Code of Conduct was initiated and the Grievor was served with a Suspension Notice.

On August 16, 2010, the Commanding Officer of "X" Division (Commanding Officer) signed a Notice of Intent to Stop Pay and Allowances. One month later, on September 16, 2010, the Commanding Officer issued a Recommendation to Stop Pay and Allowances (Recommendation). The Recommendation was based on the allegation of perjury.

On February 7, 2011, the Respondent issued his decision on the recommendation and on the same day, a Stoppage of Pay and Allowances Order (Order) was signed.

On February 11, 2011, the Grievor filed a grievance challenging the Respondent’s decision on the Recommendation as well as the order.

The grievance was denied at Level I. In support of his decision, the Adjudicator found that the allegation of perjury fell within [translation] “extreme and outrageous” circumstances in that [translation] “[the Grievor’s] misconduct, far from meeting the RCMP’s expectations, reflects a lack of adherence to the values it promotes, including integrity, honesty, accountability and sound judgment.” He added that [translation] “the RCMP would risk losing the public’s trust if it did not fully and clearly dissociate itself from the Grievor, including through such means as the stoppage of pay and allowances.” Based on these findings, the Adjudicator determined that the Grievor failed to establish on a balance of probabilities that the Respondent’s decision was inconsistent with the applicable legislation and/or policy.

At Level II, the Grievor indicated that an RCMP Adjudication Board (Adjudication Board) found that the allegation of perjury had not been established on a balance of probabilities. A copy of the Adjudication Board decision was eventually sent to the ERC. As the decision made no reference to the order, the ERC asked the Grievor to confirm whether his pay and allowances had been reinstated retroactive to February 7, 2011, the date of the order. The ERC also offered the parties the opportunity to make written submissions on the mootness of the grievance in the event that the Grievor would be able to confirm that his pay and allowances had in fact been reinstated.

On January 24, 2022, the Grievor confirmed that his pay and allowances had been reinstated retroactively. Furthermore, he submitted that his grievance was not moot given the psychological harm he suffered and the many financial losses he incurred during his years without pay.

ERC Findings: By applying the criteria of the analysis developed by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the ERC found that the entire issue on the Grievor’s stoppage of pay and allowances became moot when he was entitled to retroactive reimbursement of them as a result of the Adjudication Board’s decision. With respect to the reimbursement of the other amounts claimed, it was determined that this was a separate issue that remains in dispute. In this regard, while the ERC found that the circumstances did not warrant additional compensation, it was nevertheless recommended that the Grievor’s situation be reassessed to see if he should be compensated for the harm caused by the stoppage of his pay and allowances.

ERC Recommendation: The ERC recommended that the Commissioner deny the grievance.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

[Translation]

The Grievor challenged the Respondent’s decision to stop his pay and allowances.  The Level I Adjudicator found that the Grievor failed to meet his burden of establishing that the decision to stop his pay and allowances was inconsistent with applicable legislation or policies.  The RCMP External Review Committee (ERC) recommended that the issue relating to the Grievor’s stoppage of pay and allowances be now considered moot as he received retroactive reimbursement of his pay and allowances as a result of the Adjudication Board’s decision.  The Commissioner accepted the ERC’s finding and denied the grievance.

G-766 Promotion / Time Limits (summarized in the April – June 2022 Communiqué)

On May 8, 2013, the Grievor received an email informing him that his application for a promotional process had been screened out because he did not meet the language requirements of the position. On the same day, the Grievor visited the office of a Career Development and Resourcing Advisor (Advisor) to discuss the circumstances surrounding his application being screened out. On May 16, 2013, the Grievor contacted the Advisor again to express his impression that he had been treated unfairly in the selection process. The following day, on May 17, 2013, the Advisor responded to the Grievor reiterating that his application was screened out because he did not meet the linguistic profile of the position.

On June 11, 2013, the Grievor filed a grievance challenging the decision to screen out his application. According to the information contained in his grievance form, he allegedly learned of the decision on May 17, 2013, the date on which he received the email from the Advisor. On July 19, 2013, the Respondent requested that the limitation period issue be decided by an Adjudicator. The Respondent noted that the Grievor allegedly learned of the decision at issue on May 8, 2013, the date on which he read the email informing him for the first time that his application had been screened out of the selection process. In his submissions, the Grievor took the position that he had delayed filing his grievance because he was awaiting a response from the Advisor. In his view, it was necessary to have this information before initiating the grievance procedure.

A Level I Adjudicator denied the grievance on the grounds that it had not been filed within the 30-day limitation period set out in paragraph 31(2)(a) of the RCMP Act. It was also determined that the circumstances did not call for extending this period.

ERC Findings: The start date for calculating the limitation period is the day on which the member knew or reasonably ought to have known of the decision, act or omission detrimental to him or her. However, in some cases, the Force may have revised its decision as a result of new information that was not known at the time of the initial decision and that puts the matter in a whole new light. In this case, the ERC noted that the Grievor was informed that he had been screened out for the first time on May 8, 2013, and that he did not file a grievance at that time. On the issue of whether the Advisor’s email constituted a new decision, it was determined that it merely reiterated the initial decision contained in the email informing the Grievor that his application had been screened out. Consequently, the ERC found that the Advisor’s email did not constitute a new decision that puts the matter in a whole new light and therefore that the Grievor did not file his grievance within the 30-day limitation period set out in the Act. The ERC also found that there were no exceptional circumstances in this case to warrant an extension of the limitation period.

ERC Recommendation: The ERC recommended that the grievance be denied.

Commissioner of the RCMP Decision: The Commissioner’s decision, as summarized by her office, is as follows:

[Translation]

The Grievor received an email informing him that his application for a position as sergeant in charge of the High Altitude Surveillance Program had been screened out because he did not meet the language requirements of the position.  He filed a grievance challenging the decision to screen out his application from the promotional process.  The Grievor requested that his application for the position be reinstated or that he be compensated with a promotion to the rank of sergeant.  The Level I Adjudicator denied the grievance on the preliminary issue of the limitation period.  The Commissioner accepted the RCMP External Review Committee’s finding that the limitation period was not met and denied the grievance.