Communiqué - April to June 2022

Between April and June 2022, the RCMP External Review Committee (ERC) issued the following 9 findings and recommendations:

C-059 – Conduct Board Decision

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 recommends that the appeal be dismissed.

C-060 – Conduct Authority Decision

The Respondent alleged that the Appellant offended the Code of Conduct by failing to take appropriate action to help a member in possible danger, and by disobeying an order not to leave work before her shift ended (Allegations). Just hours before the Conduct Meeting, the Appellant received a copy of a roughly two hours 20-minute recording. She believed the recording refuted key evidence against her. Following the Conduct Meeting, the Respondent issued a decision that the Allegations were established, and that the Appellant was to forfeit 56 hours’ pay in total.

The Appellant filed an appeal. She later received disclosure that included emails between the Respondent and his conduct advisor. These emails concerned the decision-making process.

The Appellant took numerous positions on appeal. However, only two positions were vital to the ERC’s recommendations:

i.              the Respondent predetermined that the Allegations were established; and

ii.             the Respondent would not hear her on the Allegations at the Conduct Meeting.

The Respondent did not ask for permission to challenge the Appellant’s evidence in support of these positions even though the case manager had advised him in writing of his right to do so.

ERC Findings: The ERC found that the decision-making process was procedurally unfair.

To begin, the Respondent had a reasonable apprehension of bias against the Appellant. The lion’s share of the evidence showed that the Respondent:

• received from his conduct advisor a draft decision, post-dated the day of the Conduct Meeting, stating that the Allegations against the Appellant were “established”;

• told the advisor that he “will” impose conduct measures that fall within a certain range;

• announced that the Allegations were established at the Conduct Meeting, and then permitted the Appellant to speak only to the issue of conduct measures; and

• issued a decision that is largely the same as the draft decision, but with reasons added.

An informed person who reviews this matter realistically and practically, and thinks it through, would believe it was more likely than not that the Respondent did not decide the case fairly.

Furthermore, the Respondent denied the Appellant a full opportunity to be heard. He did this in two ways. First, he restricted her submissions to written submissions by opening the Conduct Meeting with a declaration that the Allegations were established, and then pivoting to another issue without giving her an opportunity to speak to the Allegations. This was contrary to ERC and RCMP case law indicating that members cannot be limited, without their consent, to making only written submissions to a conduct authority. Second, the Respondent declined to postpone the Conduct Meeting after he learned that the Appellant did not receive a copy of the recording until just hours before that meeting. The recording was relevant to issues to be decided because it captured incidents that resulted in the Allegations. Moreover, the Respondent relied on it in making his decision. The Appellant was in turn prevented from preparing a case that sufficiently addressed a long recording that she could have used to gauge the accuracy of other evidence.

The ERC concluded that the Respondent should have found that:

i.              he had to step down as the decision-maker because he predetermined the case; or

ii.             the Allegations were not established because the Appellant did not receive a full opportunity to make                                    submissions on them.

The RCMP Act seemingly requires that procedural unfairness during a proceeding before a conduct authority be cured on appeal (where possible) rather than through a new hearing. The Appellant’s loss of her one and only chance to provide oral submissions cannot be made right on appeal. An attempt to make it right would signal that a conduct authority need not respect the basic principles of impartiality and hearing the other side. The Allegations in this case are troubling. There is also some evidence to support them. However, a member’s right to have a neutral conduct authority fairly hear and decide their case must be upheld. Otherwise, what is the purpose of the conduct process, or of the conduct meeting in particular?

ERC Recommendations: The ERC recommends that the Commissioner allow the appeal, find that the Allegations are not established, and overturn the conduct measures that were imposed by the Respondent.

NC-098 – Harassment

During an accommodation process that did not unfold as the Appellant had hoped, the Appellant presented a harassment complaint (Complaint) against the Officer in Charge of Professional Responsibility Support Services, the Alleged Harasser. The Appellant indicated that the Alleged Harasser sent him two emails that were harassing in nature. In one email, she allegedly was dismissive of him, used threatening language, and distorted the manner in which he participated in his accommodation process. In the other email, she apologized for a lack of communication, minimized her role in the RCMP’s alleged mistreatment of him, and assured him that the RCMP was not trying to discharge him, which turned out to be untrue. The Appellant attached a nine-page document that provided supporting details to the Complaint.

The Respondent rendered a decision finding that the complaint was not established and did not require an investigation. He found that the alleged behaviours did not individually or collectively meet the elements of the test for “harassment”. He further explained that the Alleged Harasser had simply satisfied her obligations under policy by educating the Appellant in a non-threatening way about the consequences of not cooperating in the accommodation process.

The Appellant appealed the Respondent’s decision. He submits that the Respondent erred by failing to order investigations into the complaint and into his accommodation process. He also submits that the Respondent relied on the wrong version of a policy in discussing the duty to accommodate. He further submits that the Respondent made various other factual errors.

ERC Findings: The ERC found that the Respondent’s decision was not clearly unreasonable.

To begin, this was one of the exceptional cases in which it was reasonable to use discretion to forego a harassment investigation. The Appellant provided a comprehensive overview of the relevant circumstances both in his Complaint and in the nine-page attachment. He did not name any witnesses whom he thought could help bring more clarity to the matter. Furthermore, the interactions that formed the basis of the complaint were contained entirely within emails that were before the Respondent. It is not clear what information an investigation might have helped add to the thorough material that was before the Respondent regarding the alleged harassment.

The Respondent also did not need to order an investigation into the Appellant’s accommodation process. That process was not a live issue in this forum. The Respondent’s task was to decide whether the Complaint was established on a balance of probabilities. He carried out that task.

The Respondent did mistakenly refer to the wrong version of an accommodation policy while he was discussing the Alleged Harasser’s conduct. However, this minor mistake had no impact on the ultimate decision that the Alleged Harasser did not engage in harassment.

Lastly, given the high degree of deference owed to the Respondent, the other disputed findings of fact could not lead to a conclusion that the decision was clearly unreasonable. The Respondent reviewed the evidence before him and made findings that were either capable of being supported by that evidence or had nothing to do with the Alleged Harasser’s actions. To reweigh that evidence, or the inferences the Respondent drew from it, would be improper.

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

NC-099 – Harassment

During an accommodation process that did not unfold as the Appellant had hoped, the Appellant presented a harassment complaint (Complaint) against the Career Development and Resourcing Officer, the Alleged Harasser. The Appellant indicated that the Alleged Harasser sent him three emails that were harassing in nature. In two emails, she allegedly did not answer questions regarding the accommodation process and raised the possibility of an administrative discharge if the Appellant did not accept an offered position. In the other email, she allegedly refused to inquire on the Appellant’s behalf concerning the loss of an accommodation option. The Appellant attached to the complaint a nine-page document that provided supporting details.

The Respondent rendered a Decision finding that the complaint was not established and did not require an investigation. He found that the alleged behaviours did not individually or collectively meet the elements of the test for “harassment”. He further explained that the Alleged Harasser had attempted to assist the Appellant find the answers to his questions, and that the Appellant’s lack of cooperation caused the accommodation process to stall.

The Appellant appealed the Respondent’s decision. He submits that the Respondent erred by failing to order investigations into the complaint and into his accommodation process. He also submits that the Respondent relied on the wrong version of a policy in discussing the duty to accommodate. He further submits that the Respondent made various other factual errors.

ERC Findings: The ERC found that the Respondent’s decision was not clearly unreasonable.

To begin, this was one of the exceptional cases in which it was reasonable to use discretion to forego a harassment investigation. The Appellant provided a comprehensive overview of the relevant circumstances both in his complaint and in the nine-page attachment to it. He did not name any witnesses whom he thought could help bring more clarity to the matter. Furthermore, the interactions that formed the basis of the complaint were contained within emails that were before the Respondent. It is not clear what information an investigation might have helped add to the thorough material that was before the Respondent regarding the alleged harassment.

The Respondent also did not need to order an investigation into the Appellant’s accommodation process. That process was not a live issue in this forum. The Respondent’s task was to decide whether the Complaint was established on a balance of probabilities. He carried out that task.

The Respondent did mistakenly refer to the wrong version of an accommodation policy while he was discussing the Appellant’s obligations to cooperate during the accommodation process. However, this minor mistake had no impact on the ultimate decision that the Alleged Harasser did not engage in harassment.

Lastly, given the high degree of deference owed to the Respondent, the other disputed findings of fact could not lead to a conclusion that the decision was clearly unreasonable. The Respondent reviewed the evidence before him and made findings that were either capable of being supported by that evidence or had nothing to do with the Alleged Harasser’s actions. To reweigh that evidence, or the inferences the Respondent drew from it, would be improper.

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

NC-100 – Harassment

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints (OCHC). In the complaint, the Appellant alleged that he was a victim of harassment by being a victim of retaliation from the Alleged Harasser.

The Appellant submitted an informal resolution proposal. The OCHC found that the compensation and transfer requested by the Appellant in that proposal, in exchange for withdrawing the complaint, were frivolous and recommended that the Respondent dismiss the complaint as frivolous. The Respondent dismissed the Appellant’s harassment complaint on the grounds that the behaviour of the Alleged Harasser was not inappropriate or offensive as it was consistent with the performance of his management duties. The Respondent did not mandate an investigation.

On appeal, the Appellant alleged that the Respondent should have investigated his allegations. In addition, the Appellant alleged that the Respondent disregarded several of his allegations and relied on his own opinion to conclude that his complaint was frivolous. Lastly, he asserted that the Respondent was in a conflict of interest as a decision-maker and should have recused himself.

ERC Findings: The ERC did not consider the conflict of interest allegation, because no request for recusal on this ground was submitted to the Respondent. However, the ERC found that the Respondent’s decision not to mandate an investigation was clearly unreasonable since the facts available to him did not enable him to have a full picture of what had happened. Interviewing the Appellant, the Alleged Harasser and potential witnesses could have enabled the Respondent to better assess the allegations of harassment.

ERC Recommendations: The ERC recommends 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 Appellant, the Alleged Harasser and potential witnesses.

G-763 – Harassment

The Grievor was the Non-Commissioned Officer in charge of a specialized unit. A civilian member (C/M B supervised by the Grievor presented a harassment complaint against the Grievor, which was later withdrawn by C/M B. The Grievor then presented a harassment complaint (Complaint) against C/M B. The Grievor’s complaint principally alleged that C/M B intentionally used misleading wording in his harassment complaint against the Grievor.

Based on the screening recommendation of the Human Resources Officer (HRO), the Responsible Officer (Respondent) screened out the Complaint on the basis that the substance of the Complaint was not related to harassment. In his grievance presentation, the Grievor asserted that the Respondent, with whom the Grievor had discussed the complaint submitted by C/M B, was in a conflict of interest and that the applicable policies were not adhered to in the screening of his Complaint. At Level I, the grievance was upheld with a direction that the complaint be submitted to a new Responsible Officer to determine whether the complaint should be investigated. Although the Grievor agreed with the Level I Adjudicator’s finding that there was a reasonable perception of bias on the part of the Respondent, the Grievor disagreed with the redress and filed for review at Level II.

ERC Findings: The ERC agreed with the Level I Adjudicator’s finding on the reasonable apprehension of bias. The ERC further found that the Respondent had decided the Complaint in a manner inconsistent with applicable RCMP harassment authorities. The Respondent’s reliance in his decision, on material related to the screening of C/M B’s complaint, which had not been disclosed to the Grievor, resulted in a procedurally unfair process. The Respondent also erred by (1) failing to consider the full extent of the behaviours alleged in the Grievor’s complaint; (2) failing to ensure that clarification was obtained from the Grievor, which denied the Grievor his opportunity to fully explain the details of his allegations; (3) failing to ensure that an investigation into the Grievor’s complaint took place; (4) finding that the Grievor did not demonstrate that he was harmed by C/M B’s harassment complaint against the Grievor; and (5) concluding that the Grievor’s proper recourse was to grieve the HRO’s decision to accept the withdrawal of C/M B’s complaint. As well, the ERC found that there was no failure by the Respondent to implement the Level I Direction, as the Grievor’s Level II grievance presentation suspended the Level I Direction.

ERC Recommendations: The ERC recommended that the Commissioner: allows the grievance; apologizes to the Grievor for the fact that the Complaint was not screened in accordance with the applicable harassment authorities and jurisprudence; acknowledges that the Respondent did not possess sufficient information to make a final decision; and quashes the Respondent’s decision that the Complaint was not related to harassment.

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

The Grievor Challenged a decision by the Commanding Officer of "X" Division to screen out his harassment complaint. At Level I, the Adjudicator allowed the grievance, finding a reasonable apprehension of bias; however, the Grievor objected to the Level I direction and the failure to consider other aspects of his grievance. The Grievor sought a review at Level II. The ERC recommended that the grievance be allowed on the basis that the Respondent had not screened out the complaint in compliance with policy and lacked the evidence to do so. Due to the passage of time, the ERC found that a new screening process would be futile. The Commissioner agreed, allowed the grievance, but declined to begin the process afresh, and apologized to the Grievor for the manner in which his complaint was addressed.

G-764 – Relocation

The Grievor contested the Respondent’s decision to deny her claim for a retirement relocation under the 2009 Integrated Relocation Program policy (IRP). Her spouse, who was also a member of the RCMP, took a retirement relocation following his retirement. When the Grievor retired more than five years later, her request for a retirement relocation was denied because the IRP provides that a Member Couple is only entitled to one retirement relocation at Crown expense.

The Grievor grieved the decision claiming she should have been considered a member with spouse at the time of her retirement, and thereby entitled to a retirement relocation, because her husband had retired significantly earlier than her. She indicated that their circumstances had changed since his retirement. She also stated that the IRP was discriminatory on the grounds of marital status.

The Level I Adjudicator denied the grievance, finding that the Respondent applied the IRP policy regarding a Member Couple and retirement relocation in a consistent manner. The Adjudicator noted his limited mandate to determine whether the Respondent’s decision was consistent with policy, but commented that members who feel that their circumstances warrant a change to policy, may seek amendments by presenting their submission to their respective Commanding Officers, or through the appropriate national policy section.

ERC Findings: The ERC indicated that with her argument that the policy was discriminatory, the Grievor was challenging the IRP policy itself, as opposed to challenging a decision made under that policy. The RCMP Act provides that Members are permitted to grieve if they are aggrieved by a “decision, act or omission” which was made within the administration of the affairs of the Force. Although the Grievor had standing to grieve the decision made under the policy, she did not have standing to challenge the policy itself.

The ERC further found that her argument of discrimination was a bald assertion because she did not explain or substantiate it, nor even specify which human rights legislation she was invoking. The ERC has taken the view that making a bald assertion of discrimination based either on the Canadian Charter of Human Rights or any other human rights legislation is insufficient for the ERC to address.

The ERC lastly found that the Grievor did not establish that the Respondent’s decision was inconsistent with applicable policy. The IRP is clear that a Member Couple is only eligible for one retirement relocation at Crown expense, and that members of a Member Couple should decide for which retirement to use it. The Respondent was bound to apply the applicable RCMP policy and had no discretion to do otherwise, as the IRP is policy, not permissive guidelines. There is no discretion to extend benefits or create entitlements unless specifically authorized in a provision.

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:

The Grievor Challenged a decision by the Departmental National Coordinator for the Integrated Relocation Program denying the Grievor’s request for a Crown-funded retirement relocation. At Level I, the Adjudicator denied the grievance, finding that the Grievor had not established her case. The Grievor sought a review at Level II. The ERC recommended that the grievance be denied on the basis that the Grievor had failed to establish her entitlement to a second Crown-funded retirement relocation. The ERC found that the Grievor had already received retirement relocation benefits, along with her member spouse, in 2010. The Commissioner agreed and dismissed the grievance.

G-765 – Stoppage of Pay and Allowances

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 recommends that the Commissioner deny the grievance.

G-766 – Promotion

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 recommends that the grievance be denied.

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-053 Conduct Board Decision (summarized in the October – December 2021 Communiqué)

During an RCMP-led Program, the Appellant answered a service call from an elderly woman who wanted to turn over a firearm. The Appellant kept the firearm submitted by the elderly woman for himself and provided a false and misleading police report regarding his actions. An investigation was mandated in which the investigator came to the Appellant’s residence and provided him with an “Order to Return Items”. The Appellant therefore produced the firearm. The Appellant plead guilty and was convicted under the Criminal Code of possessing a prohibited firearm without a valid registration certificate. While reviewing the Appellant’s files, his supervisor came across similar circumstances that occurred one year prior. In that other case, the Appellant again kept the item for himself and created a false and misleading police report. The Appellant faced nine allegations including behaving in a manner likely to discredit the Force contrary to section 7.1 of the Code of Conduct, failing to act with integrity and abusing his authority, power and position contrary to section 3.2, failing to provide complete, accurate and timely accounts contrary to section 8.1 and failing to properly account for property coming into his possession contrary to section 4.4.

Before the conduct hearing began, the Appellant filed a motion to exclude evidence under section 24(2) of the Charter of Rights and Freedoms (Charter). The Appellant argued that when the investigator served the Appellant with the Order to Return Items (Order), he breached the Appellant’s rights under section 8 (unlawful search and seizure) of the Charter. The Conduct Board (Board) granted the motion and excluded all evidence obtained as a result of the order. The hearing before the Board was held over a three-day period. Although some of the facts were undisputed by the Appellant, it was the interpretation of those facts that was contested. The Board found five allegations established, and it later stayed one of these allegations by consent from the parties. After a conduct measures hearing, the Board ordered the Appellant to resign or be dismissed.

On appeal, the Appellant argued that the Board issued contradictory reasons in finding that the breaches of the Appellant’s Charter rights required that the related evidence be excluded from the conduct hearing, while simultaneously turning to the Criminal Proceedings involving that very evidence. Moreover, the Board relied on excluded evidence to make its findings. The Appellant further argued that the Board erred in law when it stated that it was bound by the Provincial Court judge’s findings. The Appellant further argued that the Board breached his right to procedural fairness by not calling the elderly woman as a witness. Lastly, the Appellant submitted that the Board could not find Allegation 8 (making a false report) established while finding Allegation 7 (theft of a handgun) not established.

ERC Findings: The ERC found that the Board did not issue contradictory reasons by relying on the criminal court findings. It found that the guilty plea entered by the Appellant was not derivative evidence of the Charter breach. The ERC, in application of the res judicata or relitigation principle, found that the Board committed no error in law by indicating that it was bound by the Provincial Court judge’s findings. It further found that the Board enjoyed a wide latitude in conducting the hearing and refusing to call the elderly woman to testify did not breach the Appellant’s right to procedural fairness because there was no conflict to resolve in the evidence presented by the witness. Lastly, the ERC found that the Board was not clearly unreasonable in finding Allegation 8 established because the crux of the allegation was false reporting; while the crux of Allegation 7 was theft.

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

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

The Appellant faced nine allegations under various sections of the RCMP Code of Conduct for misusing the Gun Amnesty program in order to take personal possession of a prohibited firearm.

After the Appellant’s supervisor became aware of the matter, a subsequent investigation revealed a second instance of misusing the Gun Amnesty Program and a third incident in which the Appellant failed to properly account for evidence.

The Appellant contested all nine allegations. A Conduct Board (Board) found six of the nine allegations established, then excluded one based on the Kienapple Principle and ordered the Appellant to resign within 14 days or be dismissed from Force. The Appellant appealed this decision.

On appeal, the Appellant argued that the Board incorrectly relied on derivative evidence that had been excluded based on a Charter breach, had committed an error of law by determining that it was bound by a criminal conviction of possessing a prohibited firearm, breached the principles of procedural fairness by refusing cross-examination of key witnesses, and imposed a clearly unreasonable conduct measure outside the scope of the parity principle.

The appeal was referred to the RCMP External Review Committee (ERC) for review. The ERC found that the Board did not err by allowing the evidence, did not breach the relevant principles of procedural fairness, did not commit an error law, and that the Board’s decision was not clearly unreasonable.

An Adjudicator found that the Board’s decision was supported by the record, ultimately determining dismissal was a proportionate conduct measure. The appeal was dismissed.

C-054 Conduct Board Decision (summarized in the October – December 2021 Communiqué)

Between mid-June or July 2016 to late November 2016, the member had an affair with a member of the public (Ms. X). Members of the detachment had seen the member’s police vehicle out of his patrolling area while he was on duty and reported the issue to the detachment Commander. It was learned that Ms. X resided in the area where the Appellant’s police vehicle was seen. The detachment Commander met with the member and ordered him not to attend the residence of Ms. X while on duty. The member was charged with four allegations of breaching the Code of Conduct. During the investigation, another allegation was added for lying to the investigator.

After having received the investigation report, the Conduct Authority ordered that a Conduct Board (Board) be instituted as she was seeking the member’s dismissal. After reviewing the material filed, the Board indicated that no further information or testimonies were necessary. The Board found the allegations established. It requested that the parties file their material on conduct measures. Ultimately, the Board indicated that a conduct measures hearing would not be necessary as it had all the information, including the parties’ submission. After canvassing the evidence on the conduct measures and the parties’ submissions, the Board imposed a forfeiture of 20 days’ pay for Allegation 1, but also ordered the member to resign within 14 days or be dismissed.

The Appellant appealed the conduct measures imposed by the Board. He argues that the Board breached his right to procedural fairness by not holding a hearing on conduct measures. He submits that the Board should have called witnesses and assessed their credibility in regards to impact and support letters provided to the Board as there was contradictory evidence. The Appellant further argues that the Board incorrectly assessed the weight it gave to the aggravating and mitigating factors; and lastly, he argues that he could not be imposed 20 days’ forfeiture of pay while at the same time being dismissed.

ERC Findings: The ERC found that the Appellant could not raise on appeal the issue of the conduct measures hearing because it is a procedural issue that should have been raised when the Board informed the parties that it was working on the written decision. The Appellant was aware that there was no hearing on conduct measures, yet did not raise an objection to this issue. The ERC further found that the Board does not have the obligation to call witnesses on behalf of a party if that party does not request it or submit a witness list. Further, because the Board had not given much weight to the impact and support letters, it did not have to assess the credibility of the authors of those letters. The ERC found that considerable deference was owed to the Board’s assessment of the mitigating and aggravating factors. In his appeal, the Appellant was requesting that these be reweighed; however, the ERC found that it was not the role of the Final Adjudicator to reweigh these factors. Lastly, the ERC found that the RCMP Act and Commissioner’s Standing Orders (Conduct) did not authorize the Board to impose both a dismissal and a forfeiture of pay. Therefore, the Board’s decision could only be interpreted as imposing the Appellant’s dismissal.

ERC Recommendations: The ERC recommended that the appeal be partially upheld on the ground of the 20 days’ forfeiture of pay; but be dismissed on all other grounds.

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

An RCMP conduct board (Board) determined that the Appellant had contravened sections 3.3 (by not carrying out a lawful direction) and 8.1 (by not providing complete, accurate and timely accounts of responsibilities and performance of duties) of the Code of Conduct after finding four of five allegations against the Appellant to be established.

The ERC recommended that the appeal be partially allowed.

After completing his probationary period, the Appellant had an extramarital affair with a member of the public wherein he engaged in sexual, intimate or romantic activity with Ms. X at her residence while he was on duty. Furthermore, the Appellant failed to provide complete, accurate and timely accounts pertaining to the carrying out of his responsibilities and the performance of his duties.

The Appellant met with the detachment Commander and was subsequently ordered not to attend Ms. X’s residence while on duty and that engaging in an extramarital affair while on duty might bring the reputation of the RCMP into disrepute.

On May 1, 2019, an adjudicator provided a direction on the preliminary issue of standing consolidating the three appeals related to the matter. The appeal was referred to the ERC and recommended that the appeal be dismissed for being filed outside of the statutory time limit. The ERC did not pronounce on the merits.

This is the second ERC Report relating to the Appellant’s appeal of the Board’s decision. In the first report (ERC C-2020-025 (C-046)), the ERC had not reviewed the merits of the appeal, and had determined that the Appellant had filed his appeal outside the statutory time limit, and there were no exceptional circumstances to justify a retroactive extension.

However, although a conduct appeal adjudicator agreed that the appeal was filed outside the statutory time limit, in his view there was a reasonable explanation for the delay, and gave the Appellant the option of having the merits of his appeal dealt with directly by me or to have his file returned to the ERC for a recommendation on the merits. The Appellant chose the latter option and raised the following grounds of appeal: the Board breached procedural fairness by not holding a hearing on conduct measures; the Board failed to assess the credibility of the authors of the support letters when there was conflicting evidence and erred in its assessment of the mitigating and aggravating factors and did not abide by the principle of parity of conduct measures; and, the Board erred in imposing a 20-day forfeiture of pay in addition to dismissal.

Even if the ERC had found that the Appellant could raise the issue on appeal, the Chair concluded that the Board’s decision to proceed without a hearing did not deprive the Appellant of a procedurally fair process. The Member Representative had indicated that her case was complete and the Appellant declined to address the Board in person.

The ERC recommends that I partially allow the appeal on the 20-day forfeiture of pay, but deny the other grounds. I agree.

C-056 Conduct Authority Decision (summarized in the January – March 2022 Communiqué)

The Appellant attended a Bar while off-duty. In an incident which was in large part captured by video footage, the Appellant was involved in an altercation with other Bar patrons. As a result of the altercation, RCMP members attended the scene. They were told that the Appellant, who had consumed alcohol, had initially kicked or pushed a female patron, Ms. X, and had later approached Ms. X and her spouse, Mr. X, to apologize. RCMP members were also told that the Appellant had then gotten into a physical altercation with Mr. X and other patrons, and had identified himself as a police officer. Responding members reported that outside the Bar, after the altercation had taken place, the Appellant was argumentative with members as they tried to calm him. Eventually, the Appellant was arrested by Cst. B. Cst. B reported that the Appellant had requested “professional courtesy” after his arrest. 

Two allegations of discreditable conduct were brought against the Appellant. One pertained to the Appellant being intoxicated, fighting and yelling profanities while also identifying himself as an RCMP officer. The other pertained to the Appellant committing an assault on Ms. X. A third allegation alleged that the Appellant had abused his authority by seeking professional courtesy from Cst. B. Following a Conduct Meeting, the Respondent concluded that the allegations were established. The Respondent imposed conduct measures consisting of a five-day forfeiture of pay and a nine-day forfeiture of leave, as well as a Reprimand.

The Appellant appealed the Respondent’s decision. He raised various procedural grounds which included a challenge to the Respondent’s jurisdiction to proceed with the Conduct Meeting. He also submitted that the Respondent had improperly assessed the evidence in relation to the three allegations, and that the conduct measures imposed were too harsh.

ERC Findings: The ERC found no basis to interfere with the Respondent’s decision in light of the procedural grounds raised by the Appellant. Regarding the challenge to the Respondent’s jurisdiction, the ERC concluded that the Respondent’s role in holding the Conduct Meeting and dealing with the allegations respected the process contemplated by applicable regulations and policy. The ERC also addressed the Appellant’s arguments regarding the manner in which the Respondent had assessed the evidence in relation to each of the three allegations. Noting that significant deference was owed to the Respondent’s assessment of the facts, the ERC concluded that there was no basis to interfere with the Respondent’s findings, as they were supported by the evidence and they showed a rational and tenable line of analysis. The ERC further found that there was no reason to interfere with the Respondent’s imposition of pay and leave forfeitures as conduct measures. However, it found that the Reprimand which had been imposed left the impression that many of the actions taken by the Appellant to defend himself, and make a full answer and defence, had been treated as a lack of accountability constituting an aggravating consideration. For this reason, the ERC found that the Reprimand should be rescinded.

ERC Recommendations: The ERC recommended that the appeal of the Respondent’s findings that Allegations #1, #2 and #3 are established be dismissed and that those findings be confirmed. The ERC also recommended that the appeal in respect of the conduct measures relating to Allegation #1 and Allegation #2 be dismissed and that those conduct measures be confirmed. The ERC further recommends that the appeal in respect of the conduct measures relating to Allegation #3 be allowed in part, by confirming the two-day forfeiture of leave and rescinding the Reprimand imposed by the Respondent.

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

The Appellant faced two allegations under section 7.1 of the Code of Conduct for conducting himself in a
manner likely to discredit the force while off-duty, by being intoxicated, fighting, and yelling profanities
while also identifying himself as a RCMP officer, and for assaulting a member of the public. Based on the
ensuing conduct investigation, a third allegation, under section 3.2, was added for abusing his authority by asking fellow officers for professional courtesy.

The Appellant contested all three allegations. The Respondent found all three allegations established and
ordered 14 days’ forfeiture of pay, with five days being taken as pay and nine days as leave, a direction to
follow up with the divisional Support for Operational Stress Injury Program coordinator, and a written
reprimand. The Appellant appealed this decision.

On appeal, the Appellant argued that the investigation was incomplete; that the Respondent established
the allegations void of evidence; that the Respondent did not possess jurisdiction to hear the matter; that
procedural fairness was denied as the Conduct Authority muted his Member Workplace Advisor by
ordering him not to speak or say anything which may have benefited the Appellant; and, that the conduct
measures were overly harsh.

The appeal was referred to the RCMP External Review Committee (ERC) for review. The ERC
recommended that the Commissioner dismiss the appeal of the Respondent’s findings that Allegations #1,
#2 and #3 are established and confirm those findings. The ERC recommended that the appeal of the conduct measures relating to Allegation #1 and Allegation #2 be dismissed and that the Commissioner confirm those conduct measures. Finally, the ERC recommended that the appeal be partially allowed in respect of the conduct measure imposed for Allegation #3.

The Adjudicator upheld the Respondent’s decision finding that Allegations #1, #2 and #3 are established, as
well as the conduct measures imposed with respect to Allegations #1 and #2, but rescinded the written
reprimand associated with Allegation #3 and confirmed that the conduct measure for Allegation #3 was 16
hours’ forfeiture of leave, not 24 as the Respondent inadvertently ordered. The appeal was allowed in
part.

C-058 Conduct Board Decision (summarized in the January – March 2022 Communiqué)

The Appellant faced six discreditable conduct allegations at a hearing before a Conduct Board. The allegations pertained to the Appellant’s interactions with several different women arising from his duties as an RCMP member. After hearing the evidence, the Board found that the allegations had been established. In two instances, the Appellant was found to have taken advantage of his position as a police officer to have sexual relations with women. In another instance, the Appellant had approached a minor and verified her identity by asking her questions about a sensitive matter noted in police records, which were accessible on his police car’s computer, upsetting her. The Appellant had also responded to that individual’s request to ride in his police car with an inappropriate comment. In a further instance, the Appellant had failed to follow up on a complainant’s disclosure of possible sexual assault. The Board ordered the Appellant to resign.  

The Appellant appealed the Board’s decision on several grounds. He argued that the hearing had been unfair, as he had received insufficient disclosure before the hearing began. He also believed that the Board had improperly refused to require a witness to testify. In addition, the Appellant believed that the Board had acted unfairly by rendering its decision without considering his written submission, and by making certain comments indicating prejudgment. Further, the Appellant believed that certain witnesses had been improperly influenced by questions and comments made by investigators during their interviews, and that the Board had erred in accepting the evidence of those witnesses.

ERC Findings: The ERC found that the Appellant was precluded from raising a disclosure issue on appeal pursuant to paragraph 25(2)(b) of the Commissioner’s Standing Orders (Grievances and Appeals). This is because the disclosure argument that was advanced on appeal had not been presented to the Board. Similarly, the Appellant’s argument that the Board should have required a witness to testify could not be raised on appeal, as the Appellant had not taken a position on that issue before the Board. The ERC further found that the Appellant had not established that the Board had failed to consider his written submission. The Record showed that the submission was properly before the Board and that the Board had addressed its content. The ERC also disagreed that the way the Board had conducted the hearing raised a reasonable apprehension of bias. The Board’s actions indicated that it had remained open-minded throughout the hearing. Finally, the ERC addressed the Board’s handling of concerns with respect to the way the witness interviews had been conducted during the investigation. The Board’s reasons showed a rational and tenable line of analysis, in that it had handled those concerns by ensuring witnesses were called to testify and by evaluating whether their credibility was impacted by investigators’ comments during their interviews.

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:

A conduct board found six Code of Conduct allegations established and ordered the Appellant to resign within 14 days, in default of which he would be dismissed. The Appellant appealed the decision on the basis that the conduct board: (1) failed to ensure adequate disclosure prior to the hearing; (2) improperly refused to require an investigator to testify during the hearing; (3) failed to consider a written submission provided by the Appellant during closing arguments, and prejudged the case; (4) erred by eliciting witness testimony to compensate for tainted evidence; (5) improperly relied on certain evidence and information; (6) referred to corroborating evidence with insufficient specificity; and, (7) made certain findings arising from information that had not been disclosed to the Appellant. The Commissioner agreed with the ERC, and dismissed the appeal after finding that the Appellant had not demonstrated that the conduct board made any reviewable errors. The conduct measure imposed by the conduct board was confirmed.

NC-085 Harassment (summarized in the October – December 2021 Communiqué)

The Appellant filed a harassment complaint against an Inspector (Alleged Harasser), alleging that he provided false information about the Appellant in respect to a grievance process the two were involved in. Further, the Appellant claimed that the Alleged Harasser disclosed personal information about her to others in respect to a query from health management-related authorities.

The Respondent found that in both matters, the definition of harassment had not been met. The Respondent found that the Appellant could have raised her concerns about the alleged incorrect information with grievance authorities. The Respondent indicated that with respect to the second allegation, that she could not access information in a grievance process.

ERC Findings: The ERC’s review at the appellate level is a review of the Respondent’s Decision on one or more prescribed ground(s) of appeal. The ERC found that the Respondent’s Decision was not clearly unreasonable. The ERC agreed with the Respondent that in both matters, the definition of harassment had not been met.

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

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 was reached in a manner is clearly unreasonable.

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

I agree with the ERC that the Respondent did not err in her decision. The Respondent did not require access to the contents of the grievance process to determine whether the allegation met the definition of harassment. I find no error made by the Respondent that renders her decision clearly unreasonable. The allegations do not rise to the level of harassment.

The adjudicator found that the facts noted in the allegations did not raise to the level of harassment. As such, the adjudicator dismissed the appeal.

NC-086 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints (OCHC). In the complaint, the Appellant alleged that she was harassed by her supervisor (Alleged Harasser) who allegedly made comments and enquiries regarding her work accommodation, went to her residence without being invited, did not approve her training request and made a false statement on a performance evaluation and participated in other related incidents.

On appeal, the Appellant alleges that there was a conflict of interest between one of the investigators and the Alleged Harasser and that the selection of the investigators was not representative of the parties involved. Moreover, she alleges that the investigators did not address inconsistencies in the evidence, that she was not given an opportunity to respond to the Alleged Harasser’s statements and that they were not translated into English. The Appellant also submits that policies and guidelines pertaining to the harassment investigation and resolution process were not followed and that the Respondent’s reasons were insufficient to support his decision adequately.

ERC Findings: The ERC found that there was a breach of procedural fairness in that the Appellant never received a written decision from the Respondent with respect to her objection to the appointment of the investigators. Further, the full version of events of one witness was not obtained, and a full account of the interviews of all witnesses was not provided to the Appellant. The ERC further found that the Respondent’s decision was clearly unreasonable due to a lack of reasons. In this regard, the ERC concluded that the Respondent omitted to properly consider whether the incidents as a whole revealed a pattern of harassment and that he misapplied the test to determine whether harassment had occurred.

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 a direction be issued to conduct an interview of the witness that was not questioned and to re-interview the witnesses whose interview recordings cannot be found. The new decision-maker should also be directed to ensure that any conflicting evidence is appropriately addressed and that the outcome of the decision is carefully explained.

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 former against the Alleged Harasser were not established.

In 2007, the Appellant began to work from home as an accommodation to her medical condition. In 2011, the Alleged Harasser became the Appellant’s supervisor. According to the Appellant, the Alleged Harasser took exception to her medical accommodation. The Appellant alleged that a series of events, including refusal of training and leave, constituted harassment. The events culminated with a visit from the Alleged Harasser to the Appellant’s home, unannounced and when she was no longer the Appellant’s supervisor. The Appellant filed a Harassment Complaint. Following a Final Investigation Report, the Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming the decision is clearly unreasonable. She contended that there were a series procedural fairness breaches due to the nature of the investigation and the time it took to process the matter. She also opined that the Respondent misapplied the reasonable person test for harassment and incorrectly considered the Alleged Harasser’s intent. Finally, she submitted that the Respondent’s decision lacked sufficient reasoning to support his decision.

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 is clearly unreasonable since the Respondent breached the Appellant’s right to procedural fairness, did not apply the reasonable person test, incorrectly considered intent, and provided insufficient reasons. The ERC recommended the matter be remitted to a new decision maker for a new consideration, including additional interviews.

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. However, due to the time elapsed, continuation of the administrative process was deemed futile, considering that if the harassment allegation was eventually established, the conduct process could no longer be invoked against the Alleged Harasser. The Adjudicator issued an apology to the Appellant without further direction.

NC-087 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant was the Non-Commissioned Officer in charge (NCO i/c) of a Professional Standards Unit. The Alleged Harasser was the Appellant’s supervisor. In March/April 2018, a management review was conducted of the Appellant’s unit. During the review, the interviewers learned that there had been an incident of a sexual nature in the unit, that the Appellant had known about it, but had failed to report it. Shortly thereafter, the Alleged Harasser held a meeting to discuss the Review Team’s recommendations, some of which removed responsibilities from the Appellant. The Alleged Harasser further commenced a Code of Conduct process against the Appellant for not reporting the incident. The Appellant filed a harassment complaint against the Alleged Harasser claiming that he was humiliated during the review meeting and he was belittled by how he was treated in respect to conduct matter.

The Office of the Coordination of Harassment Complaints (OCHC) recommended a limited investigation if required. However, the Respondent decided not to conduct a Code of Conduct investigation into the harassment complaint. He found that the Alleged Harasser was performing her managerial responsibilities and the process required in respect to the ongoing conduct matter. The Respondent further found that the Appellant could have filed a grievance in respect to his transfer from the Professional Responsibility Unit (PRU). The Respondent found that the Appellant’s harassment was not established.

ERC Findings: The ERC first found that the Respondent had breached the Appellant’s right to procedural fairness by not disclosing two documents that were before him when he rendered his decision. The ERC further found that the Respondent’s decision was clearly unreasonable given that there was insufficient information in the record to determine whether the Appellant was harassed. Lastly, the ERC agreed with the Respondent that the procedural issues related to the conduct process are to be dealt with in the appeal of the conduct decision filed by the Appellant.

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:

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

According to the Appellant, the Alleged Harasser, who was his supervisor, exploited both a Code of Conduct investigation and an accusation of harassment against him to justify a transfer to another unit. The Appellant alleged that a series of events, including forcing the Appellant to sit through a humiliating meeting where he was stripped of his responsibilities; starting a Code of Conduct investigation for ulterior purposes; and, discriminating against him based on sex, constituted acts of harassment.

Following an initial review of the Appellant's harassment complaint, the Respondent determined that an investigation was not necessary and eventually issued a Record of Decision after obtaining certain relevant documentation which led him to conclude that the impugned actions and behaviours did not constitute harassment.

The Appellant filed a Statement of Appeal, claiming the decision contravened the applicable principles of procedural fairness; was based on an error of law; and, is clearly unreasonable. He argued that there were a series procedural fairness breaches due to the collection of evidence and the manner in which the Code of Conduct process was handled. He also argued that the Respondent's decision was clearly unreasonable because he did not acknowledge all of the Appellant's arguments and had insufficient information to justify his finding that the Alleged Harasser's behaviour did not meet the definition of harassment.

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 breached procedural fairness for incorrectly considering evidence and is clearly unreasonable because the Respondent did not have sufficient evidence to substantiate his findings and failed to consider all of the Appellant's grounds of appeal. The ERC recommended the matter be remitted to a new decision maker for fresh consideration.

Having examined the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the majority of the ERC's findings and allowed the appeal. However, the Adjudicator found there was no procedural breach associated with the gathering of certain evidence because the Respondent had a duty to obtain and consider the Code of Conduct and harassment matters which were raised by the Appellant in his complaint. The Adjudicator determined that, due to the passage of nearly four years and the retirement of the Appellant and other witnesses, the redress sought was no longer viable, and issued an apology without further direction.

NC-088 Harassment (summarized in the January – March 2022 Communiqué)

The Appellant presented a harassment complaint (Complaint) against a manager (Alleged Harasser). She indicated that the Alleged Harasser harassed her in several ways. These included performing some of her job functions, treating her rudely and disrespectfully, mistreating others in her presence and directing another member not to communicate with her. This caused her to feel overridden in her job, embarrassed, frustrated, bullied, confused, intimidated and uncomfortable.

The Alleged Harasser provided a written response to the Complaint in which she spoke to each alleged incident of harassment. The Appellant then submitted a comprehensive written reply to the Alleged Harasser’s response. The Respondent reviewed both documents. She ultimately held that none of the alleged behaviours met the definition of “harassment” found in policy. She added that she did not need to order a harassment investigation into the behaviours (Decision).

The Appellant appealed the Decision. She did not file a submission despite being invited to do so. In her Statement of Appeal, she indicates that she is appealing the Decision on the grounds that it is clearly unreasonable and based on an error of law. She states that nobody interviewed or spoke to her, that she genuinely was harassed, and that harassment was rampant in her unit. She adds that she left her workplace and later, the RCMP, to avoid harassment and frustration.

ERC Findings: The ERC found that the RCMP’s omission to interview or speak to the Appellant prior to the Decision did not result in a denial of procedural fairness or a breach of policy in this case. The record includes a lengthy document in which the Appellant had the chance to, and did, reply to the Alleged Harasser’s positions, provide context, supply further background and details, discuss related concerns, and include supporting evidence. The Decision was also not clearly unreasonable. The Appellant did not suggest that there was no rational or tenable line of analysis supporting the Decision, or demonstrating that the Decision was clearly irrational. She also did not suggest that the evidence could not support the Decision. Ultimately, the Appellant repeated her belief that she was harassed and that harassment was common in her unit. While an appellant may disagree with a respondent’s balancing of evidence, absent a reviewable error, it is not the Commissioner’s role on appeal to assess whether a respondent erred simply by performing the function with which the respondent was tasked. Lastly, the Decision was not based on an error of law. The Appellant did not provide any suggestion as to how she believed the Respondent erred in law. The ERC was not prepared to speculate on that point.

It is clear that the Appellant was an extremely dedicated and diligent member of the RCMP who cared deeply about her work. Unfortunately, due to the very limited contents of the appeal, there is little that can be done for her at this stage. The ERC sincerely thanked the Appellant for her long and committed service to Canadians, and wished her well in her future endeavours.

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

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

The Appellant filed a harassment complaint against the Operations Manager of the Operational Communication Centre (Alleged Harasser) where she is posted.

The Level III Conduct Authority of “X” Division (the Respondent) ruled that the Alleged Harasser’s behaviour did not meet the definition of harassment.

The Appellant appealed the Respondent’s decision, contending that it is clearly unreasonable and based on an error of law. She also submits that an investigation should have been conducted into her 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 dismissed. The ERC noted that following the filing of the harassment complaint, the Alleged Harasser provided a response to the allegations and the Appellant submitted a reply to the Alleged Harasser’s response, which included providing additional material. The ERC determined that an investigation was therefore not required in this instance, concluding that the Respondent’s decision was not reached in contravention of the applicable principles of procedural fairness, is not clearly unreasonable, and is not tainted by an error of law. The ERC recommended that the appeal be dismissed.

The adjudicator concurred with the findings made by the ERC and dismissed the appeal.

NC-089 Harassment (summarized in the January – March 2022 Communiqué)

This case stems, in part, from a complaint to a municipal police force, concerning the Appellant’s alleged behaviour, by another RCMP member (the Aleged Harasser). The allegations were sexual assault and criminal harassment. The Provincial Crown did not proceed with charges against the Appellant.

After the criminal investigation concluded, a Code of Conduct investigation was initiated to examine the Appellant’s alleged behaviour. The RCMP Conduct Authority, also the decision-maker for this harassment complaint, found that the allegations against the Appellant were not established.

The Appellant subsequently filed a harassment complaint against the Alleged Harasser. He alleged, among other things, that the Alleged Harasser made false allegations, repeated the allegations to co-workers, and previously made false allegations against other RCMP members. According to the Appellant, the Alleged Harasser made these allegations as punishment for assigning her a work task she did not wish to complete.

ERC Findings: The ERC found that the Respondent’s decision was clearly unreasonable. This is because there was insufficient information in the record to not mandate an investigation, and to then determine that the Appellant’s complaint of harassment was not established, and that the Alleged Harasser had not contravened the RCMP Code of Conduct. The ERC also recommended that it would be prudent to remit the matter back to a new decision-maker.

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:

The Alleged Harasser, an RCMP member, accused the Appellant of sexual assault. A criminal investigation and, subsequently, a Code of Conduct investigation, were conducted on this allegation. Both investigations determined that the allegations raised by the Alleged Harasser against the Appellant were unsubstantiated.

The Appellant then filed a harassment complaint against the Alleged Harasser. He claimed that she concocted false allegations against him as reprisal for a work task he had assigned her, and to derive financial gain. The Respondent in this matter, who was incidentally also the decision maker in the Code of Conduct investigation, issued a Record of Decision where she determined that harassment was not established, concluding that the Appellant’s complaint was unfounded and that an investigation into his complaint was not necessary. 

The Appellant filed a Statement of Appeal, claiming that the decision is clearly unreasonable. He argued that an investigation into his allegation was necessary and that the Code of Conduct investigation was not related because it only considered whether sexual assault occurred, not whether the accusations were deliberately misleading. 

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 is clearly unreasonable, since the Respondent lacked evidence or a rational basis for her conclusions and was incorrect to suggest that the previous Code of Conduct investigation was dispositive of this matter. 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 a new investigation and remitted the matter to a new decision maker outside of “X” Division. 

G-749 Travel / Private Accommodation Allowances (summarized in the January – March 2022 Communiqué)

Between July 29 and August 28, 2011, the Grievor was on travel status performing relief duties. Some time following his return, he learned of a document prepared after a staff relations representative (SRR) caucus that took place on or around October 18, 2012. This document noted that since January 2010, the RCMP had refused to pay the private non-commercial accommodation allowance (PNAA) to members conducting investigations or providing relief at isolated posts. The document encouraged members to file a grievance if they had been denied the PNAA under similar circumstances.

On October 29, 2012, the Grievor submitted a claim to his supervisor requesting payment of the PNAA for each night he had spent. On his 1393 form (PNAA claim), the Grievor did not provide any details about the nature of his accommodation. The claim was denied on February 8, 2013.

On February 14, 2013, the Grievor filed a grievance in relation to his claim being denied. The Grievor attached, among other things, the summaries of grievance cases 3500‑07‑001 (G‑496), 2400‑07‑002 (G‑497) and 2400‑10‑001 (G‑498).

The grievance was denied at Level I. In support of the decision, the Adjudicator specified that cases G‑496, G‑497 and G‑498 did not apply to the Grievor’s situation as they all involved members having lived in Crown-owned houses that were normally occupied by other members, which had justified the PNAA being granted. In this respect, the Adjudicator observed that the Grievor had not discharged his burden as he had not provided any information or details about where he had stayed while performing relief duties. Consequently, the Adjudicator found that it was impossible to determine whether the Grievor’s circumstances justified his being paid the PNAA.

In his Level II submissions, the Grievor revealed for the first time that he had stayed in government housing normally occupied by another member of the RCMP.

ERC Findings: The ERC found that the new evidence presented by the Grievor was inadmissible at Level II as it was known to him at the time the case was at Level I. It follows that the Grievor reasonably could have presented the information when his grievance was being considered at Level I. It was also found that the Grievor’s argument that his accommodation situation became clear when he attached grievance case summaries G‑496, G‑497 and G‑498 to his grievance form was without merit.

Having found that the new evidence presented by the Grievor was inadmissible at Level II, the ERC stated that the evidence on file did not enable it to determine if the Grievor had, in fact, stayed in private non-commercial accommodation. Consequently, the ERC found that granting the PNAA could not be justified under the circumstances.

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 was on travel status, performing relief duties. He claimed a private non-commercial accommodation allowance (PNAA) of $50 per night. He filed a grievance challenging the decision of the Non-Commissioned Officer of “X” Division denying his PNAA claim. The Level I Adjudicator found that the Grievor did not meet his burden of proof on the merits. The Royal Canadian Mounted Police External Review Committee reiterated the Level I Adjudicator’s reasons for denying the grievance. The Commissioner agrees that the Grievor stayed in a Crown housing rented by another member, thereby creating an entitlement to the PNAA. The grievance is allowed.

G-752 Relocation (summarized in the January – March 2022 Communiqué)

The Grievor filed a grievance against the Respondent’s decision requiring her to reimburse funds granted to her during a transfer under the Integrated Relocation Program (IRP). The amount of money in question received by the Grievor came from savings resulting from the smaller amount of household goods and effects shipped during her relocation. In an audit by Relocation Services, the Grievor had stated that she had left certain household goods at her residence. The Respondent therefore ordered the reimbursement of the savings received on the grounds that the Grievor had to ship her entire household effects under section 2.04.03.d of the IRP.

In her Level I grievance, the Grievor stated that section 2.04.03.d.iii of the IRP provides that “members who are proceeding unaccompanied OR not shipping their entire household effects are not entitled to this benefit.” She reasoned that since she moved accompanied by her common-law spouse, she should have benefited from the savings in question. Furthermore, the Grievor explained that the household goods that she did not ship were included in her accommodation at destination and that she therefore left them at her residence for her tenants. The Grievor also disagreed with the amount claimed, stating that she should have only reimbursed the net amount rather than the gross amount. The Level I Adjudicator denied the grievance.

At Level II, the Grievor challenges the Level I Adjudicator’s interpretation of the wording of section 2.04.03.d.iii, claiming that she was entitled to the savings since she did not move unaccompanied.

ERC Findings: The ERC found that under section 2.04.03.d of the IRP, in order to obtain the savings, a member must be accompanied at the time of the move and must also have sent their entire household goods and effects. Furthermore, the ERC found that the Grievor did not provide any argument or evidence supporting her claim that the Respondent should not have required the gross amount of the reimbursable amount.

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 challenged the Respondent’s decision requiring her to reimburse $3,408.16 granted during her transfer under the Integrated Relocation Program (IRP), the Royal Canadian Mounted Police Relocation Policy. The Level I Adjudicator found that the Grievor failed to meet her burden of proving that the Respondent’s decision requiring reimbursement of the additional amount paid violated the policy. The RCMP External Review Committee (ERC) found that the Respondent’s decision was consistent with the IRP and that the Grievor had the responsibility to familiarize herself with the policy and its exceptions. The Commissioner accepts the finding of the ERC and denies the grievance.

G-753 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that the Grievor had harassed a Non-Commissioned Officer (NCO) in the Grievor's detachment. Shortly after the Grievor had received a negative performance review, an anonymous public complaint was made to the Commission for Public Complaints Against the RCMP (CPC). The complaint alleged that two corporals had engaged in "reprehensible, drunken behaviour", and had encouraged a junior member who was about to go on duty to drink excessively. Subsequently, an anonymous letter was sent to numerous public officials claiming negligence and mismanagement by the Grievor's detachment's management. A Non-Commissioned Officer and the two corporals filed a joint harassment complaint against the Grievor alleging that he had authored and sent both the public complaint and the anonymous letter. During the investigation, the Grievor's wife admitted to authoring and sending both. The Grievor admitted providing her with information contained in them, and assisting in faxing the letter to public officials.

At both Level I and Level II, the Grievor argued that he was not the author and sender of the Public Complaint and the letter and that following a complaint from his wife, that the Office of the Privacy Commissioner (OPC) had found that the RCMP has breached the Privacy Act during the investigation. At Level II the Grievor attached new evidence obtained through an Access to Information and Privacy (ATIP) request. The Grievor argued that the Adjudicator had erred by not giving any weight to the findings of the OPC that the RCMP had breached his privacy during the investigation. Lastly, the Grievor argued that as the complainants' subordinate, he could not have harassed them because he had no power or authority over them.

ERC Findings: The ERC found the new evidence obtained through an ATIP request to be inadmissible because the Grievor had not provided any explanation to substantiate that the evidence could not reasonably have been known by him at the time the grievance was considered at Level I.

As the Grievor had not presented any arguments regarding the anonymous public complaint, the ERC did not address the Respondent's finding that the Allegation was not established.

With respect to the anonymous letter, the ERC found that the Respondent's analysis was consistent with harassment authorities. The Grievor, by his own admission, had provided some of the content of the letter, and had participated in faxing it. In finding that the Grievor's conduct met the test for harassment, the Respondent considered all elements of the test, all relevant evidence, applied the reasonable person test, and considered the severity and impropriety of the act.

With respect to the report from the Privacy Commissioner, the ERC found that if the Grievor wished that any weight be given to his assertions with respect to that report, he bore the onus to present the evidence to support his assertions.

Lastly, the ERC found that there is no requirement in the definition of harassment that the alleged harasser must be in a position of power over the person being harassed.

ERC Recommendation: The ERC recommended that the grievance be denied because the Respondent's decision was rendered in accordance with relevant RCMP and Treasury Board policy, as well as the applicable law.

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

The Grievor anonymously sent a letter to the local Mayor, along with other public officials, complaining about the leadership of his superior after a negative performance review, acting in concert with his spouse, a nonmember. The superior made a Harassment Complaint against the Grievor. The Grievor insisted he did not send the anonymous letters and his wife admitted to doing so. An investigation was completed, which included numerous witnesses and statements from the Grievor and the Grievor’s wife. The Respondent found the Grievor participated in sending the letter and that harassment was established. The Grievor filed a Grievance disputing the Respondent’s decision on the basis of a number of issues including his belief that no harassment was possible since the Grievor was under the authority of the Complainant. The Level I adjudicator dismissed the Grievance, finding the Grievor failed to establish that the Respondent’s decision was inconsistent with applicable policies and legislation. The Grievor sought a review at Level II. The matter was referred to the RCMP External Review Committee (ERC) who recommended the Grievance be dismissed. The Commissioner found the Respondent’s decision that harassment was not established, was not inconsistent with policy and legislation, as the Grievor behaved in a manner which was harmful, acknowledging that it was irrelevant that the Complainant was in a position of authority, by virtue of her rank. The Commissioner dismissed the Grievance.

G-754 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that the Grievor had harassed another member in his detachment. Shortly after the Grievor had received a negative performance review, an anonymous Public Complaint was made to the Commission for Public Complaints Against the RCMP (CPC). The complaint alleged that two Corporals had engaged in "reprehensible, drunken behaviour", and had encouraged a junior member who was about to go on duty to drink excessively. Subsequently, an anonymous letter was sent to numerous public officials claiming negligence and mismanagement by the Grievor's detachment's management. A Non-Commissioned Officer and the two corporals filed a joint harassment complaint against the Grievor alleging that he had authored and sent both the public complaint and the anonymous letter. During the investigation, the Grievor's wife admitted to authoring and sending both. The Grievor admitted providing her with information contained in them, and assisting in faxing the letter to public officials.

With respect to the Public Complaint, the Respondent found that the Grievor had played a significant role in its composition; not physically writing it did not negate his involvement. The Respondent found that the Grievor had deliberately attempted to publicly undermine and humiliate the Corporals, and that it was reasonable to conclude that the Grievor would know it would cause offence or harm. With respect to the anonymous letter, the Respondent found that the Grievor, by his own admission, had provided some of the content of the letter, and had participated in faxing it.

At both Level I and Level II, the Grievor argued that he was not the author and sender of the Public Complaint and the letter and that following a complaint from his wife, that the Office of the Privacy Commissioner (OPC) had found that the RCMP has breached the Privacy Act during the investigation. At Level II, the Grievor attached new evidence obtained through an Access to Information and Privacy (ATIP) request. The Grievor argued that the Adjudicator had erred and raised a reasonable apprehension of bias in not giving any weight to the findings of the OPC that the RCMP had breached his privacy during the investigation. Lastly, the Grievor argued that as the complainants' subordinate, he could not have harassed them because he had no power or authority over them.

ERC Findings: The ERC found the new evidence obtained through an ATIP request to be inadmissible because the Grievor had not provided any explanation to substantiate that the evidence could not reasonably have been known by him at the time the grievance was considered at Level I.

With respect to the public complaint, the ERC found that the Respondent's analysis was consistent with harassment authorities. In finding that the Grievor's conduct met the test for harassment, the Respondent considered all elements of the test, all relevant evidence, applied the reasonable person test, and considered the severity and impropriety of the act. 

With respect to the report from the Privacy Commissioner, the ERC found that if the Grievor wished that any weight be given to his assertions with respect to that report, he bore the onus to present the evidence to support his assertions. The ERC further found that whether the Level I Adjudicator gave insufficient, or any, weight to an argument or piece of evidence, was not evidence of a real likelihood of bias and was not sufficient to rebut the presumption of impartiality.

Lastly, the ERC found that there is no requirement in the definition of harassment that the alleged harasser must be in a position of power over the person being harassed.

ERC Recommendation: The ERC recommended that the grievance be denied because the Respondent's decision was rendered in accordance with relevant RCMP and Treasury Board policy, as well as the applicable law.

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

The Grievor challenged a decision by the Respondent, finding that the Grievor had harassed an RCMP member (Corporal X). At Level I, the Adjudicator denied the grievance, finding that the Grievor had failed to establish that the Respondent’s decision was inconsistent with applicable policy or legislation. The Grievor sought a review at Level II. The ERC recommended that the grievance be denied, on the basis that the Respondent’s decision was rendered in accordance with policy, and the Respondent’s analysis was consistent with harassment authorities. The Commissioner agreed, and dismissed the grievance.

G-755 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that the Grievor had harassed another member in the Grievor's detachment. Shortly after the Grievor had received a negative performance review, an anonymous public complaint was made to the Commission for Public Complaints Against the RCMP (CPC). The complaint alleged that two Corporals had engaged in "reprehensible, drunken behaviour", and had encouraged a junior member who was about to go on duty to drink excessively. Subsequently, an anonymous letter was sent to numerous public officials claiming negligence and mismanagement by the Grievor's detachment's management. A Non-Commissioned Officer and the two corporals filed a joint harassment complaint against the Grievor alleging that he had authored and sent both the Public Complaint and the anonymous letter. During the investigation, the Grievor's wife admitted to authoring and sending both. The Grievor admitted providing her with information contained in them, and assisting in faxing the letter to public officials.

With respect to the Public Complaint, the Respondent found that the Grievor had played a significant role in its composition; not physically writing it did not negate his involvement. The Respondent found that the Grievor had deliberately attempted to publicly undermine and humiliate the Corporals, and that it was reasonable to conclude that the Grievor would know it would cause offence or harm. With respect to the anonymous letter, the Respondent found that the Grievor, by his own admission, had provided some of the content of the letter, and had participated in faxing it.

At both Level I and Level II, the Grievor argued that he was not the author and sender of the public complaint and the letter and that following a complaint from his wife, that the Office of the Privacy Commissioner (OPC) had found that the RCMP has breached the Privacy Act during the investigation. At Level II, the Grievor attached new evidence obtained through an Access to Information and Privacy (ATIP) request. The Grievor argued that the Adjudicator had erred and raised a reasonable apprehension of bias in not giving any weight to the findings of the OPC that the RCMP had breached his privacy during the investigation. Lastly, the Grievor argued that as the complainants' subordinate, he could not have harassed them because he had no power or authority over them.

ERC Findings: The ERC found the new evidence obtained through an ATIP request to be inadmissible because the Grievor had not provided any explanation to substantiate that the evidence could not reasonably have been known by him at the time the grievance was considered at Level I.

With respect to the public complaint, the ERC found that the Respondent's analysis was consistent with harassment authorities. In finding that the Grievor's conduct met the test for harassment, the Respondent considered all elements of the test, all relevant evidence, applied the reasonable person test, and considered the severity and impropriety of the act. 

With respect to the anonymous letter, the ERC found that the Respondent's analysis was also consistent with harassment authorities. In finding that the Grievor's conduct met the test for harassment, the Respondent considered all elements of the test, all relevant evidence, applied the reasonable person test, and considered the severity and impropriety of the act.

With respect to the report from the Privacy Commissioner, the ERC found that if the Grievor wished that any weight be given to his assertions with respect to that report, he bore the onus to present the evidence to support his assertions. The ERC further found that whether the Level I Adjudicator gave insufficient, or any, weight to an argument or piece of evidence, was not evidence of a real likelihood of bias and was not sufficient to rebut the presumption of impartiality.

Lastly, the ERC found that there is no requirement in the definition of harassment that the alleged harasser must be in a position of power over the person being harassed.

ERC Recommendation: The ERC recommended that the grievance be denied because the Respondent's decision was rendered in accordance with relevant RCMP and Treasury Board policy, as well as the applicable law.

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

The Grievor challenged a decision that he had harassed Corporal (Cpl.) Z. At Level I, the Adjudicator denied the grievance, finding that the Grievor had not established his case. The Grievor sought a review at Level II. The ERC recommended that the grievance be denied, on the basis that the Grievor had failed to demonstrate that the Respondent erred in finding that the Grievor had harassed Cpl. Z by participating in the creation and dissemination of a public complaint and an anonymous letter to various public officials. The Commissioner agreed, and dismissed the grievance.

G-756 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that his harassment complaint was not established. The Grievor had alleged that a Sergeant (Sgt.) in his detachment had harassed him by failing to assist in resolving a conflict between the Grievor and his supervisor; and, by filing a harassment complaint against him.

The Grievor challenged the Respondent's decision on the basis that it was not clear that a subordinate could harass a superior, that the Sgt.'s harassment complaint against him was a reprisal as defined by the Public Servants Disclosure Protection Act (PSDPA), and that there was a reasonable apprehension of bias. The LeveI I Adjudicator rejected the Grievor's argument that the RCMP hierarchy negated the possibility of harassment by a person of lower rank. He found that the PSDPA had its own complaint mechanism, and that this portion of the grievance exceeded the scope of the RCMP grievance process. Lastly, he found that the Grievor's submissions did not include any details to support his argument of bias.

At Level II, the Grievor argued that the Level I Adjudicator breached the principles of procedural fairness, that the Respondent and the Level I Adjudicator had not considered the totality of the evidence, that the Level I decision was not consistent with RCMP and Treasury Board policy, and that the harassment complaint against him by the Sgt. was both a reprisal and an abuse of authority.

ERC Findings: The ERC found that, despite the Grievor's bald assertion, there was no breach of procedural fairness. The Grievor was heard through a Level I submission, and there was no argument or evidence in the record sufficient to rebut the presumption of the Level I Adjudicator's impartiality.

The ERC found that the Grievor did not meet his burden of persuasion because he provided no explanation and no examples as to what evidence the Respondent or the Level I Adjudicator did not adequately consider. A grievor is required to satisfy the initial burden of persuasion, on a balance of probabilities standard.

The ERC found that, since the Grievor did not provide any explanation or specify any provisions of the harassment policies that the Respondent failed to respect, he failed to demonstrate how the Respondent's decision was not in line with these policies. Instead, he made a bald assertion in reference to the Level I decision.

The ERC further found that the Respondent did not err in his assessment of the Grievor's argument regarding reprisals. The Respondent found that the Sgt.'s act of filing a harassment claim against the Grievor did not meet the criteria for harassment because she had filed a valid harassment complaint.

The ERC found that, as per the Commissioner Standing Orders (Grievances) at section 12(3) and Administrative Manual II.38.L.3 (Grievances), the Grievor was barred from raising the abuse of authority argument because he had not raised it before the Level I Adjudicator although it was known to him at that time.

Lastly, although the Grievor did not argue that the Respondent had failed to apply or misapplied the reasonable person test for harassment, the ERC found that it was authorized to address an error of law that was evident on the face of the record by virtue of paragraph 34(3)(a) of the RCMP Act. This paragraph provides that the ERC may provide such findings and recommendations to the Commissioner as it sees fit. Although the Respondent correctly cited the reasonable person test, the Respondent improperly considered whether the Sgt. intended to cause offence or harm. The ERC found that this was a misapplication of the reasonable person test because the Alleged Harasser's intent is not a component of the test.

ERC Recommendations: The ERC recommended that the grievance be allowed and that the Commissioner renders a new decision. The ERC noted that while there had been a significant passage of time, the Grievor was entitled to a decision in which the correct test was applied.

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

The Grievor challenged a decision rejecting his complaint of harassment. At Level I, the Adjudicator denied the grievance, finding that the Grievor had not established his case. The Grievor sought a review at Level II. The ERC recommended that the grievance be allowed and that the Commissioner issue a new decision, on the basis that the Respondent had made an error of law with respect to the test for harassment. The Commissioner disagreed and dismissed the grievance.

G-757 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that his harassment complaint filed in April 2012 was not established. The Grievor had alleged that in June 2009, a Corporal in his detachment had harassed him by telling his supervisor that his work was atrocious, and by using a derogatory term to describe him. The Alleged Harasser admitted to the Grievor that he had made the comment. At the time of the incident, the Grievor and the Alleged Harasser discussed the comment and they both agreed to move forward. Later, in 2011, the Grievor's supervisor used the derogatory term as part of an investigation involving the Grievor's work performance.

The Grievor challenged the Respondent's decision on the basis that it was unclear whether the Respondent had considered all relevant materials. He further argued that the Respondent had erred by failing to recognize that the conduct constituted harassment. Lastly, he argued that there was an apprehension of bias on the part of the Respondent in relation to the Grievor's supervisor's correspondence with the Respondent's representative. The LeveI I Adjudicator dismissed the grievance finding that the Grievor had not met his onus to establish that the Respondent's decision was inconsistent with applicable policies and legislation. The Adjudicator rejected the Grievor's argument regarding bias because when the Respondent named his representative for the grievance, he had already discharged his duty and was functus officio with regard to the harassment decision.

At Level II, the Grievor argued that the Level I Adjudicator breached the principles of procedural fairness and that the Level I decision was not consistent with RCMP and Treasury Board policy. He further argued that the Level I Adjudicator lacked a clear understanding of the facts, and that the Respondent and the Level I Adjudicator had not considered the totality of the evidence.

ERC Findings: The ERC found that, despite the Grievor's bald assertion, there was no breach of procedural fairness. The Grievor was heard through a Level I submission, and there was no argument or evidence in the record to rebut the presumption of impartiality of the Level I Adjudicator.

The ERC found that, since the Grievor did not provide any explanation or specify any provisions of the harassment policies that the Respondent failed to respect, he failed to demonstrate how the Respondent's decision was not in line with these policies.

The ERC found that there was no error evident on the face of the record regarding the Respondent's assessment of the totality of the evidence, and his finding that the conduct did not constitute harassment. The Respondent reviewed the evidence and applied the correct test. The Respondent was clear that it was one comment made by the Alleged Harasser which was at issue. The Respondent pointed out that harassment is normally a series of incidents, but can be one severe incident which has a lasting impact on the individual. The Respondent noted that the Grievor himself indicated that he felt the issue between himself and the Alleged Harasser had been resolved once they informally discussed it, and that had his supervisor not subsequently raised the derogatory comment, the Grievor would not have thought about it again. The Respondent therefore found that it had no further negative impact on the Grievor, had not continued to cause him offence or pain, and therefore did not meet the definition of harassment.

Regarding the Grievor's allegation of an apprehension of bias against the Respondent, the ERC agreed with the Level I Adjudicator's review of the issue.

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:

In 2009, the Alleged Harasser advised the Grievor his file work was “atrocious” and he was a "cancer". In 2011, the comments were repeated in a performance review, executed by a different superior. Shortly after, the Grievor filed a Harassment Complaint, stating that the Alleged Harasser called him a "cancerous tumour", and the remark was resurrected by the 2011 performance review. The Respondent found that although the comment was not constructive, the Grievor and the Alleged Harasser discussed it, resolved the issue and then, it resurfaced when a different superior raised it in the performance review. The Respondent determined there was no harassment by the Alleged Harasser since the performance review was completed by someone else. The Grievor filed a Grievance disputing the Respondent’s decision. The Level I adjudicator dismissed the Grievance, finding the Grievor failed to establish that the Respondent’s decision was inconsistent with applicable policies and legislation. The Grievor sought a review at Level II. The matter was referred to the RCMP External Review Committee (ERC) who recommended the Grievance be dismissed. The Commissioner accepted the Respondent’s reasoning that although the comment may have been worded more constructively, harassment was not established as the comment was not to harm the Grievor, found the performance review did not resurrect the remark, and was executed by another superior. The Commissioner dismissed the Grievance.

G-758 Harassment (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent's decision that his harassment complaint was not established. The Grievor had alleged that his supervisor had harassed him by humiliating him, by being untruthful regarding his work performance, and by filing a harassment complaint against him.

At Level I, the Grievor argued that the Alleged Harasser's conduct constituted harassment, was an abuse of authority; and was a reprisal under the Public Servants Disclosure Protection Act (PSDPA). He argued that there was an apprehension of bias due to the Alleged Harasser's correspondence with the Respondent's representative. The Level I Adjudicator dismissed the grievance finding that the Grievor had not met his onus to establish that the Respondent's decision was inconsistent with applicable policies and legislation. The Adjudicator rejected the Grievor's argument regarding bias because when the Respondent named his representative for the grievance, he had already discharged his duty and was functus officio with regard to the harassment decision.

At Level II, the Grievor argued that the Level I Adjudicator breached the principles of procedural fairness, and that the Level I decision was not consistent with RCMP and Treasury Board policy. He argued that the Level I Adjudicator lacked a clear understanding of the facts. He argued there was a breach of procedural fairness due to the delay in receiving the Level I decision, and he reiterated his Level I arguments regarding bias, abuse of authority, and reprisal.

ERC Findings: The ERC found that the Grievor failed to demonstrate how the Respondent's decision was not in line with harassment policies. The Respondent reviewed the evidence and applied the correct test, and concluded that the test for harassment was not met.

The ERC found that there was no breach of procedural fairness. The Grievor was heard through a Level I submission, and the presumption of impartiality of the Level I Adjudicator was not rebutted. The Grievor had not requested that the decisions for this grievance and another be issued concurrently, and there was no requirement to do so. The Grievor did not specify any argument he was prevented from making, or anything he would have argued differently had he received the two Level I decisions concurrently, and the Grievor was heard de novo and concurrently at Level II.

The ERC concurred with the Respondent's finding that the test for harassment was not met because the Alleged Harasser's actions were not improper. The ERC stated that abuse of authority is a form of harassment, and that improper conduct is required to establish harassment. The Respondent found that there was no intent to injure. The ERC stated that the Respondent did not err his analysis and noted that abuse of authority cannot occur where there is no intent.

Regarding reprisal, the ERC found that the Respondent did not err in finding that the Alleged Harasser's act of filing a valid harassment claim did not meet the criteria for harassment. He was exercising his rights under RCMP policy, pursuant to which a supervisor is as equally entitled to file a harassment complaint as is a subordinate. The ERC agreed with the Level I Adjudicator's review of the Grievor's argument regarding reprisal under the PSDPA, which exceeded the scope of the RCMP grievance process.

Regarding the Grievor's allegation of an apprehension of bias against the Respondent, the ERC agreed with the Level I Adjudicator's review of the issue.

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:

The Grievor challenged a decision by the Respondent, finding that an RCMP member, Corporal X, did not harass him. At Level I, the Adjudicator denied the grievance, finding that the Grievor had failed to establish that the Respondent’s decision was inconsistent with applicable policy or legislation. The Grievor sought a review at Level II. The ERC recommended that the grievance be denied, on the basis that the Respondent did not err by concluding that Corporal X’s conduct did not meet the test for harassment. The Commissioner agreed, and dismissed the grievance.

G-759 Relocation / Time Limits (summarized in the January – March 2022 Communiqué)

The Grievor filed a grievance challenging the Respondent’s decision to deny his Home Equity Assistance Program (HEAP) application. During the Early Resolution Phase of the grievance process, the Respondent raised the preliminary issue of timeliness on the basis that the grievance was filed outside of the 30-day statutory time limit set out under para. 31(2)(a) of the RCMP Act.

At Level I, the Grievor argued that he was initially unaware that the HEAP denial was a Force decision to which the grievance process applied. He explained that, 41 days after the decision was rendered, he was informed by his RCMP relocation reviewer of the appropriate process for redress, and promptly filed his grievance the following day. The Level I Adjudicator denied the grievance, finding that it had been initiated after the expiration of the 30-day statutory limitation period, and further concluded that a retroactive extension of time was not justified in these circumstances.

At Level II, the Grievor explained that he was away from his home detachment for approximately three weeks during the statutory limitation period and that he was unable to access his e‑mails. In the Grievor’s view, his absence from the detachment and his attempts to reach his RCMP relocation reviewer demonstrates his continuing intention to pursue his grievance, which in turn justifies a retroactive extension of time.

ERC Findings: The ERC concluded that the Grievor did not submit his grievance within the 30‑day Level I limitation period. The ERC also found that there were no exceptional circumstances that would justify the Commissioner retroactively extending the 30-day statutory time limit.

ERC Recommendation: The ERC recommended that the grievance be denied on the issue of timeliness.

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

The Grievor challenged the Respondent's decision to deny his Home Equity Assistance Program application. The Level I Adjudicator denied the grievance on the basis that it was filed outside of the statutory time limit. The ERC agreed with the Level I Adjudicator and recommended the grievance be denied. The Commissioner found that the Griever failed to file his grievance within 30 days after the day on which he knew of the impugned decision and that the circumstances do not warrant a retroactive extension of the statutory time limit. The Commissioner dismissed the grievance.

G-760 Travel (summarized in the January – March 2022 Communiqué)

The Grievor was posted to Detachment A. He was involved in a matter with his former spouse who was also a regular member of the RCMP at Detachment A. That matter resulted in the Grievor’s arrest and the laying of charges, after which the Grievor was released.

Following the incident, the Grievor went off-duty sick (ODS). While ODS, he moved out of the matrimonial home near Detachment A, and took up residence with family in another locality within the Division. The Grievor remained ODS for nearly a month after the incident.

Subsequently, the Grievor advised the then Officer in Charge (OIC) that he was feeling better and was ready to come back to work. Since a return to Detachment A was not an option given the presence of the Grievor’s former spouse, the OIC proposed to the Grievor that he report for work at a unit near the location where he had taken residence. The Grievor worked at that unit for approximately three weeks (first secondment).

The Grievor was then transferred temporarily to another unit (second secondment) where he worked for a period of three months. A Transfer Notice (form A-22A) indicating a “no cost move (secondment)” was issued.

During the second secondment, the Grievor ceased living with family and rented an apartment.

In response to a shortage of resources identified at Detachment B, the Grievor was seconded to a general duty position at that detachment following the second secondment. A form A-22A indicating a “no cost – temp secondment” was issued to this effect. The Grievor’s secondment with Detachment B lasted for approximately five months after which he was issued a form A-22A indicating a “no cost” transfer to a permanent position at Detachment B.

A few months later, the Grievor submitted three expense claims (form 1393) to the Respondent requesting compensation for travel expenses incurred during his three secondments. The total for the three claims amounted to $28,536.23.

The Respondent denied the Grievor’s expense claims and the Grievor filed a grievance challenging this decision.

A Level I Adjudicator denied the grievance on the basis that the Grievor failed to have his claims for travel status pre-approved prior to the commencement of the first secondment.

ERC Findings: The ERC concluded that while the Grievor failed to meet the “pre-authorization” and “government business” requirements under the RCMP Travel Directive (Administrative Manual (AM) VI.1), he was nevertheless in travel status during the period covered by his secondments. More specifically, in relying on section 4.8.2 of the AM VI.1 and section G.1.e.2 of the RCMP Career Management Manual, Chapter 3 (CMM 3) which both provided that a member will be considered in travel status if his or her temporary workplace is located outside his or her headquarters area, the ERC determined that the Grievor was in travel status as a result of the RCMP’s decision to transfer him without permanently changing his headquarters area. The ERC further found that the Grievor’s travel status had been authorized through the completion of forms A-22A tracking his secondments. In support of this position, the ERC relied on section G.1.e of the CMM 3 which stated that "[a] temporary transfer must be indicated as such on form A-22A". In finding that the Grievor was in travel status for the duration of his secondments, the ERC determined that he was entitled to meal, accommodation and incidental allowances in accordance with the AM VI.1.

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

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

The Griever challenged a decision by the Respondent to deny his claim for travel expenses incurred by him for durations in which he was temporarily seconded outside his home detachment area. At Level I, the Adjudicator denied the grievance, finding that the Griever had not sought pre-approval for his travel status, and that he failed to establish that the Respondent's decision was inconsistent with policy. The Griever sought a review at Level II. The ERC recommended that the grievance be allowed, finding that the Griever was in travel status during his secondments, due to the RCMP's decision to transfer the Griever without permanently changing his headquarters area. The Commissioner agreed, and allowed the Grievance.

G-761 Relocation (summarized in the January – March 2022 Communiqué)

The Grievor was transferred to a new posting. As a result of the transfer, he decided to sell his property at the old posting, which included a residence and a large parcel of land. Under the Integrated Relocation Program (IRP), the Grievor was entitled to reimbursement for the real estate commission. The reimbursement amount was based on an appraisal of the property, which was organized by an RCMP Regional Relocation Reviewer (the Respondent) and Royal LePage Relocation Services (RLRS). The first appraisal was limited to 1.235 acres of land because of the restrictions imposed by the IRP. The Grievor requested a second appraisal, which would cover four acres of land and which would involve a more experienced appraiser. This request was approved by the RCMP Departmental National Coordinator (DNC).

RLRS subsequently informed the Grievor that, instead of conducting a second appraisal, the first appraisal was adjusted to assess the value of four acres of land. The Respondent advised the Grievor that the second appraisal would not occur because an appraisal of four acres had already been conducted.

The Grievor submitted a grievance, arguing that he was entitled to the second appraisal. The Grievor believed that the second appraisal would have assessed his property value at the sale price, which would result in a full reimbursement of his real estate commission. The Grievor emphasized that he requested a more experienced appraiser; that his request for the second appraisal was approved; and that a more experienced appraiser was never provided. The Respondent argued that the second appraisal did not occur due to the delay caused by the Grievor. Furthermore, the Respondent insisted that the existing appraisal already covered four acres of land, which was sufficient to complete the appraisal process under the IRP. The Respondent contended that the Grievor could not claim full reimbursement for his real estate commission since the commission was paid on a large parcel while the reimbursement was limited to the commission attributable to four acres of land.

ERC Findings: The ERC recommended that the grievance be allowed. The ERC found that the second appraisal was requested and approved pursuant to the IRP. While the Grievor had caused some delay, the ERC observed that the Respondent did not explain why she needed more time to complete the appraisal. The ERC concluded that the appraisal of four acres received by the Grievor ignored his request to have a more experienced appraiser. Nothing in policy allowed the Respondent to decide not to proceed with the second appraisal once it was approved by the DNC.

ERC Recommendations: After considering an ex-gratia payment as an alternative remedy, the ERC recommended that the Commissioner allow the grievance and ensure that a second appraisal is completed based on historical real estate information. The Grievor may then receive any reimbursement he is entitled to under the IRP pursuant to the results of the second appraisal.

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

The Grievor was transferred and sold his residence which stood on over 56.3 acres. For the purpose of assessing the reimbursable real estate commission, under the Integrated Relocation Program, a real estate appraiser assessed the Grievor’s land, taking into consideration only 1.235 acres. The Grievor requested a second independent appraisal, contending the initial appraiser lacked experience and policy allowed four acres to be included in the assessment. The Departmental National Coordinator granted approval for the second independent appraisal. The Respondent did not have the second independent appraisal done, but instead, relied on the original appraisal, reassessed to include four acres. The Grievor was reimbursed for real estate commission based on the reassessed initial appraisal. The Grievor grieved the Respondent’s omission in failing to obtain a second independent appraisal. The Respondent argued the Grievor’s delay made the second appraisal impossible to obtain in time prior to closing. As redress, the Grievor sought a second independent appraisal, and claimed he ought to be reimbursed the entire real estate commission paid by him. The Level I adjudicator dismissed the grievance. The Grievor filed for a review at Level II. The matter was referred to the RCMP External Review Committee (ERC) and the ERC recommended the grievance be allowed and a second independent appraisal be ordered. The Commissioner accepted the ERC recommendation and allowed the grievance, directing a second independent appraisal, and confirming that the value to be assessed was up to four acres, not the entire amount as claimed by the Grievor.

G-762 Relocation (summarized in the January – March 2022 Communiqué)

The Grievor contested the Respondent’s decision denying his claim for reimbursement under the 2009 Integrated Relocation Program policy (IRP). When the Force relocated the Grievor in 2014, he indicated a loss of $51,000 on the sale of his residence. He had purchased it for $374,000, made capital upgrades of $13,000, and sold for $336,000 as a result of a decline in the local real estate market. The Grievor’s claim for compensation under the Home Equity Assistance Program (HEAP) in the IRP was denied by the Respondent because his residence value exceeded the $300,000 residence value cap to be eligible for the HEAP in the IRP.

The Grievor grieved the Respondent’s decision. At Level I, the Grievor also claimed compensation under the depressed market status provision of the IRP. His realtor wrote a letter outlining a market value drop of 12-14% for homes in that area of similar value. His grievance was dismissed at Level I.

At Level II, he argued that the residence value cap was far from modern, which contradicted the IRP’s stated guiding principles, and did not meet the objective set out in the IRP for the relocation process to have minimal detrimental effects on the member. He further argued that he should be reimbursed in accordance with the subsequently issued 2017 Relocation Directive which removed the residence value cap and increased the HEAP. The Grievor argued he should be entitled to the HEAP provided to Canadian Forces personnel because the Canadian Forces Integrated Relocation Program, which has no residence value cap, is also administered by the Treasury Board, and is almost the same as the IRP. Lastly, he argued he was entitled to compensation under the depressed market status provision of the IRP as provided to Canadian Forces personnel.

ERC Findings: The ERC indicated it is mandated to review the Respondent’s decision to determine whether it was rendered in accordance with RCMP and Treasury Board policies, and applicable law. In arguing that the HEAP policy contradicted itself, the Grievor was challenging the IRP policy, as opposed to challenging a decision made under that policy, which was beyond the scope of the grievance.

The ERC found that the 2017 Relocation Directive was not relevant to the grievance. The Respondent applied the correct policy, the 2009 IRP, which was applicable to the Grievor’s 2014 relocation. There was no authority to apply the HEAP provision in the new policy beyond the retroactive date of April 1, 2016. The ERC noted the presumption against the retroactive application of policies and found that the Grievor had not rebutted the presumption.

The ERC found that the Respondent was bound to apply the applicable RCMP policy and had no discretion to do otherwise. Section 1.05.5 of the IRP provides that the IRP is a policy, not permissive guidelines, and that there is no discretion to extend benefits or create entitlements unless specifically authorized in a provision. The IRP does not specifically authorize any discretion to circumvent the $300,000 residence value cap. The ERC further found that the eligible capital improvements provision was a moot issue given that the Grievor was disqualified from compensation by the $300,000 residence value cap.

The ERC found that the Canadian Forces Integrated Relocation Program was not applicable to the grievance, and that the Respondent had no authority to apply any policy other than the RCMP’s IRP.

Although at Level I the Grievor also requested financial compensation under the depressed market status provision, the Grievor did not build a business case for depressed marked status as required by the IRP, and no decision was made by the Force with respect to that provision. The letter from the Grievor’s realtor neither constituted a business case, nor met the required 20% decline in the real estate market to constitute depressed market status. The ERC found that the Grievor’s request for financial compensation under the depressed market status provision was beyond the scope of the grievance.

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:

The Grievor was relocated and incurred a loss on the sale of his home, which was valued in excess of $300,000. The Grievor sought reimbursement for the loss under the Home Equity Assistance Program (HEAP) provisions of the Integrated Relocation Program policy (IRP), 2009, in effect at the time. The HEAP provisions were restricted to homes under $300,000 and due to the cap, the Grievor was ineligible and reimbursement was denied. The Grievor disputed the existence of the cap. The Level I adjudicator dismissed the grievance, finding the Grievor failed to establish that the Respondent's decision was inconsistent with applicable policies and legislation. The Grievor sought a review at Level II. At Level II, the Grievor filed the updated IRP Directive and sections that eliminated the cap shortly after the Level I decision, and the Grievor requested it be applied retroactively to reimburse him. The matter was referred to the RCMP External Review Committee (ERC) resulting in a recommendation that the grievance be dismissed. The Commissioner agreed with the ERC. The Commissioner accepted that the Grievor was challenging the Respondent's decision to deny HEAP, and that the updated IRP clearly provided it was retroactive only to April 1, 2016, not earlier, and as such did not apply to the Grievor whose home sold on July 4, 2014. The Commissioner dismissed the grievance.