NC-116 - Harassment

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints. In the complaint, the Appellant alleged that he experienced retaliation for appealing a disciplinary decision made by the Alleged Harasser. The Respondent did not mandate an investigation into the complaint. He determined that the fact that the Alleged Harasser asked for a new conduct investigation of the Appellant, after the Appellant appealed his disciplinary decision, did not constitute harassment.

On appeal, the Appellant alleged that the Respondent erred in interpreting the facts since the factual background showed that the Alleged Harasser initiated the new conduct investigation as a retaliation measure. The Appellant also argued that the Respondent should have mandated an investigation into his harassment complaint. 

ERC Findings

The ERC found that the Respondent’s decision not to mandate an investigation was clearly unreasonable since the facts before him did not enable him to have a full picture of what had happened. Interviewing the Appellant, the Alleged Harasser and the potential witnesses could have enabled 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 new decision-maker for a new decision with the direction to mandate an investigation into the Appellant’s complaint that should include interviewing the potential witnesses. 

Commissioner of the RCMP Decision dated March 27, 2023

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

[Translation]

A Code of Conduct investigation was mandated into the Appellant regarding allegations of misconduct towards his former spouse. The Appellant attended a conduct meeting before the Conduct Authority (Alleged Harasser). The Alleged Harasser found that three of the five allegations were established. The Alleged Harasser imposed conduct measures on the Appellant. The next day, the Appellant appealed the Alleged Harasser’s decision.

Nearly a month later, the Alleged Harasser ordered a Code of Conduct investigation into the Appellant concerning three other Code of Conduct allegations. The Appellant then filed a harassment complaint against the Alleged Harasser with the Office for the Coordination of Harassment Complaints. According to the Appellant, the Alleged Harasser mandated this new Code of Conduct investigation in bad faith and as a reprisal because he had appealed the conduct decision previously made by the Alleged Harasser. The Appellant argued that the information supporting this new investigation was known to the Alleged Harasser before he even rendered his decision, and that the Alleged Harasser was now relying on it solely out of vindictiveness following the appeal of this decision by the Appellant.

The Respondent did not mandate an investigation into the harassment complaint and issued a decision dismissing it. The Appellant is now appealing the Respondent’s decision on the grounds that the Respondent allegedly erred in his interpretation of the facts and in law and that he should have mandated an investigation into the complaint.

Upon reviewing the matter, the ERC recommended that the appeal be allowed and that the matter be remitted for investigation and appropriate evidence collection.

The Adjudicator disagreed with the findings of the ERC, noting that pursuant to section 47.01 of the RCMP Act, no administrative action or proceeding, including harassment complaints, lies against conduct authorities for anything done in good faith in the course of the exercise or performance of their duties. Moreover, the Adjudicator found that the harassment process was not the appropriate process for addressing this matter and that the Appellant should instead have filed an abuse of process motion at the earliest opportunity as part of the second Code of Conduct investigation, and that if this motion had been unsuccessful, he could have appealed on the grounds of procedural fairness by arguing that there was abuse of process.

The Adjudicator found that the Respondent’s decision was consistent with these considerations. Therefore, the Adjudicator found that the Respondent’s decision was not reached in contravention of the relevant principles of procedural fairness, that it was not based on an error of law and that it was not clearly unreasonable. The Adjudicator therefore dismissed the appeal.

Between January 2014 and October 2017, several events took place that the Appellant perceived as harassment by the Alleged Harasser.  According to the Appellant, the Alleged Harasser had a negative influence on his career for several years.  In his view, this caused him to be discouraged, depressed and devoid of all ambition within the RCMP.

As the decision-maker on the harassment complaint, the Respondent did not mandate an investigation and dismissed the complaint on the grounds that the alleged behaviour did not amount to harassment of the Appellant.

The Appellant appealed the matter on the grounds that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable.  He argued that the Respondent was not impartial, failed to conduct an overall assessment by breaking down the series of events and erred by failing to mandate an investigation to gather evidence.

The case was referred to the RCMP External Review Committee (ERC).  After reviewing the grounds of appeal, the ERC found that the Respondent should have mandated an investigation to fully understand the situation.  The ERC found that the failure to mandate an investigation resulted in the Respondent failing to obtain relevant information, which meant he was unable to make an informed decision.  The ERC found that the Respondent’s decision was therefore clearly unreasonable.  Consequently, the ERC recommended that the appeal be allowed.

The Adjudicator determined that the Respondent should have indeed pursued an investigation to obtain a minimum level of information and that the failure to do so prevented a fully informed decision from being made on whether or not harassment occurred.  The Adjudicator found that the decision was therefore clearly unreasonable and allowed the appeal.

The Adjudicator remitted the matter to a new decision-maker with directions that an investigation be conducted.

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