Communiqué - January to March 2022

Between January and March 2022, the RCMP External Review Committee (ERC) issued the following 30 findings and recommendations:

C-056 – Conduct Authority Decision

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 Recommendation: The ERC recommends 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 recommends 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.

C-057 – Conduct Authority Decision

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

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

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

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

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

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

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

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

C-058 – Conduct Board Decision

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 recommends that the appeal be dismissed.

NC-086 – Harassment

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 recommends that the appeal be allowed and that the matter be remitted to a different decision-maker for a new decision. The ERC also recommends 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.

NC-087 – Harassment

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 recommends that the appeal be allowed.

NC-088 – Harassment

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 recommends that the appeal be dismissed and the Decision be confirmed.

NC-089 – Harassment

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 recommends that the appeal be allowed.

NC-090 – Harassment

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

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

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

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

The Appellant appealed the Respondent’s Decision.

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

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

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

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

NC-091 – Harassment

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

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

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

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

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

NC-092 – Harassment

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

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

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

NC-093 – Harassment

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

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

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

The Appellant appealed the Respondent’s Decision.

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

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

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

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

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

NC-094 – Harassment

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

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

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

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

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

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

NC-095 – Harassment

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

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

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

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

NC-096 – Harassment

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

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

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

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

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

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

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

NC-097 – Harassment

The Appellant presented a harassment complaint (Complaint) against the Alleged Harasser. The Alleged Harasser asked the Appellant if she could contact the Health Services Office (HSO) of the RCMP to speak with the Force Psychologist, because he seemed upset and stressed. The Appellant consented. The Appellant had a number of discussions with the psychologist. The Alleged Harasser and the psychologist had discussions about the Appellant. Further, in a sensitive Briefing Note (BN) that was distributed to others in addition to those on the distribution list, the Alleged Harasser allegedly disclosed confidential medical information about the Appellant. The Appellant felt embarrassed and humiliated. This BN also included negative comments about the Appellant.

During a preliminary enquiry, the Alleged Harasser provided her response to the harassment complaint and a rebuttal was provided by the Appellant. The Respondent rendered a Decision, finding that the complaints did not amount to harassment and therefore, no investigation would be mandated.

ERC Findings: The ERC found that the Decision was not reached in a manner that contravened procedural fairness. The Appellant claimed, at the appeal stage, that the Respondent was biased because the Alleged Harasser was his direct report and that he took the Alleged Harasser’s word over his. The ERC found that the Appellant was precluded from raising this issue on appeal as it was not raised before the Respondent. Further, the Administration Manual XII.8 indicates that a recusal request has to be presented as soon as possible after the party receives the materials to be reviewed by the decision-maker. The ERC further found that the fact that the Alleged Harasser is the direct report of the Respondent is not sufficient to raise to the threshold of a reasonable apprehension of bias.

The ERC also found the Decision was clearly unreasonable. By not ordering an investigation into these complaints, it was clear that the Respondent made unsupported assumptions and that he did not have the “full story”. For example, the Respondent never enquired into exactly what was discussed between the Force psychologist and the Alleged Harasser. Further, by not examining the BN, which was the subject of the second allegation, the Respondent’s finding that harassment was not established was clearly unreasonable.

ERC Recommendations: The ERC recommends that the Commissioner allow the appeal and remit the matter to a new decision-maker so that he or she can mandate an investigation. 

G-748 – Relocation

The Grievor received a transfer notice. He owned a residence at his old post, which he listed for sale. The property was on the market for a month, but it did not sell. The Grievor’s real estate agent advised that the property would only sell if the asking price was lowered. This meant that the Grievor would lose the money he had spent on home improvements. The Grievor consulted the Integrated Relocation Program (IRP) and concluded that he would qualify for the Eligible Capital Improvements (ECI) reimbursement due to the financial loss.

The Grievor contacted his Brookfield Global Relocation Services (BGRS) Advisor. The BGRS Advisor confirmed that the Grievor may qualify for reimbursement if he completes the sale and provides home improvement receipts. The Grievor proceeded to sell the residence at a loss. When he provided the requested receipts to the BGRS Advisor, she responded that he would not qualify for any reimbursement under the ECI provisions of the IRP because his residence had sold for more than $300,000.

The Grievor submitted a grievance, requesting to be reimbursed the full amount he had originally claimed. The Grievor argued that he was entitled to compensation for ECI under the IRP even if his residence was valued over $300,000. The Grievor also believed that the BGRS Advisor had provided him with inaccurate and improper advice. The Respondent contended that the ECI provisions under the IRP did not provide a separate benefit. Instead, they modified the benefit under the Home Equity Assistance Program (HEAP), which was limited to residences valued at or under $300,000. Furthermore, the Respondent submitted that the Grievor was responsible for being familiar with applicable policy, and that he should not have relied on information provided by the BGRS Advisor.

ERC Findings: The ERC recommends that the grievance be denied. The ERC found that the ECI provisions only applied to benefits under HEAP and were not benefits in and of themselves. Therefore, any claim under ECI was subject to the HEAP limit of $300,000 in property value. The ERC also found that the Grievor had not demonstrated that he could claim the same amount under the doctrine of estoppel. While the BGRS Advisor made a representation which was intended to be relied upon, there was no indication that this representation caused the Grievor to suffer any detriment. At the time when he received information from the BGRS Advisor, the Grievor had already listed his residence for sale. Furthermore, the BGRS Advisor only stated that the Grievor may be entitled to compensation once he completed the sale and provided receipts. She did not make an unconditional representation that the Grievor would receive any benefits for ECI.

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:

The Grievor challenged a decision by the Director of Financial Policy, Corporate Management and Comptrollership, denying the Grievor’s claim for reimbursement under the 2009 Integrated Relocation Program Policy (IRP). 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 applicable policy did not entitle the Grievor to claim the reimbursement, nor had the Grievor demonstrated his entitlement to the reimbursement under the doctrine of estoppel. The Commissioner agreed, and dismissed the grievance.

G-749 – Private Accommodation Allowance

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 (page 4). 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. 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 recommends that the Commissioner deny the grievance.

G-750 – Private Accommodation Allowance

The Grievor held a position on the Team at X Division. As part of his duties, he was assigned to a Canadian Coast Guard Ship, on which he was part of a team of police officers comprised of members from the RCMP and other police officers. The police officers spent a number of consecutive days on board the ship when carrying out their respective work shifts. In the Grievor's case, he worked ten-hour shifts for several consecutive days, followed by six days of rest.

Between August and November 2010, the Grievor provided the officer in charge (OIC) with two 1393 forms (non-commercial accommodation allowance claim) claiming an allowance of $50.00 for nights on board the ship over a certain period. This claim was denied by the OIC, and the Grievor consequently filed a grievance.

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

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

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

The ERC then considered the question of whether the Grievor could be compensated in any way for having stayed in an unsuitable accommodation. Based on the applicable policies and the ERC's findings in certain previous recommendations, it was found that granting an allowance for having stayed in an accommodation deemed to be unsuitable was not authorized unless it had been demonstrated that the member had incurred additional expenses as a result. Given that the Grievor had not demonstrated that the condition of his accommodations during his work shifts had incurred additional expenses, the ERC found that the circumstances did not justify reimbursement.

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 assigned to a Team and spent several consecutive days on board the Canadian Coast Guard ship while working on his shifts. The Grievor claimed a private non-commercial accommodation allowance (PNAA) of $50 for his nights on board the ship. He filed a grievance challenging the decision of the Officer in Charge of the Team denying his PNAA claim. The Level I Adjudicator found that the Coast Guard ship could not be considered a private non-commercial accommodation and that the PNAA did not constitute compensation for unsuitable accommodation. The Commissioner accepts the Royal Canadian Mounted Police External Review Committee's finding that the grievance is without merit and denies the grievance.

G-751 – Travel

The Grievor was posted in location A. He was arrested and charged criminally with an offence. Through the court proceedings, an order requiring the Grievor to leave location A was issued. As a result, the Grievor provided an address in location B, for the court to apply conditions of his interim release.

The Grievor was suspended from duty.

The Grievor travelled from location A to location B. On March 4, 2013, he submitted a claim (form 1393) for the expenses incurred during his trip.

On June 17, 2013, the Grievor’s unit commander signed the expense claim to confirm that the expenses occurred. On July 16, 2013, the Respondent denied the Grievor’s claim for reimbursement.

The Grievor did not present a submission at level I. An adjudicator denied the grievance on the basis that the Grievor was not travelling on government business and therefore, he was not eligible to receive the sought-after benefits.

At Level II, the Grievor provided his version of the events leading up to his move to location B.

ERC Findings: The ERC concluded that the Grievor’s level II submission was inadmissible as the information conveyed was known to him at the time when his grievance was being considered at level I and therefore, it could have reasonably been presented during the submission phase. The ERC went on to find that the Grievor had failed to meet his burden in demonstrating that the denial of his travel claim was inconsistent with applicable legislation and policies. More specifically, it was found that, although the Grievor had been authorized to travel from location A to location B, there was no evidence to show that his move was required or initiated by the RCMP. As a result, the ERC concluded that the Grievor was not travelling on government business and therefore was not in travel status at the time of his trip to location B.

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:

The Grievor challenged a decision to deny his travel expense claim. 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 denial of his expense claim was inconsistent with the provisions of the RCMP Travel Directive or the National Joint Council Travel Directive. The Commissioner agreed, and dismissed the grievance.

G-752 – Relocation

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 recommends that the grievance be denied.

G-753 – Harassment

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 recommends 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.

G-754 – Harassment

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 (Cpl.) 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 Cpl., 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 recommends 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.

G-755 – Harassment

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 (Cpl.) 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 Cpl., 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 recommends 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.

G-756 – Harassment

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 recommends 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.

G-757 – Harassment

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 (Cpl.) 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 recommends that the grievance be denied

G-758 – Harassment

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 recommends that the grievance be denied.

G-759 – Relocation / Time Limits

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 recommends that the grievance be denied on the issue of timeliness.

G-760 – Travel

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 (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 recommends that the Commissioner allow the grievance.

G-761 – Relocation

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 recommends 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.

G-762 – Relocation

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 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-049 Conduct Board Decision (summarized in the July – September 2021 Communiqué)

Three contraventions of the Code of Conduct were established against the Appellant for the sexual harassment of a public service employee (the Complainant) in the workplace. On three occasions, the Appellant made inappropriate comments and acted inappropriately towards the Complainant. Despite strong mitigating factors, an RCMP Conduct Board (Board) determined that the gravity of the misconduct was such that the Appellant’s dismissal from the Force was justified.

The Appellant is appealing the Board’s decision on the basis that it contravened the principles of procedural fairness and was clearly unreasonable. More specifically, he argues that the Board, in addressing Allegation 1, failed to provide adequate reasons with respect to his findings on the credibility of the parties. The Appellant also submits that the sanction imposed is clearly unreasonable and grossly disproportionate to the substantiated conduct.

ERC Findings: With respect to the Appellant’s first ground of appeal, the ERC clarified that the latter is subject to a reasonableness review as opposed to a correctness review as suggested by the Appellant when he argues that his procedural rights were breached. In this regard, the ERC concluded that the Board recognized and adequately dealt with the contradictory evidence. It also found that the Board’s reasons clearly articulate why it came to the conclusion that it did with respect to Allegation 1. As for the Appellant’s second ground of appeal, the ERC determined that the Board committed no manifest or determinative error in its evaluation of the evidence.

ERC Recommendations: The ERC recommends that the appeal be denied and the imposed conduct measure confirmed.

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

The Appellant appealed the decision and conduct measures imposed by an RCMP Conduct Board finding that three allegations made against him were established and ordered the Appellant’s dismissal. I agree with the ERC that there is no reasonable apprehension of bias. The Appellant provided no proof to support this serious claim. There is a presumption that Boards are fair and impartial; therefore, the burden falls on the Appellant to demonstrate bias (Report, para 81). The ERC is correct. Such behaviour is not welcome in the workplace and it is unfortunate that the Complainant was subjected to these experiences. The only acceptable sanction in the circumstances is dismissal. The appeal is dismissed. I confirm the conduct measure imposed by the Board.

C-050 Conduct Authority Decision (summarized in the July – September 2021 Communiqué)

The Appellant was a supervisor at a Detachment. One of his subordinates, Cst. X, initiated a harassment complaint against the Appellant. In the course of making enquiries about the harassment complaint, it was learned that there were allegations of inappropriate behaviour by the Appellant towards two other female members at the Detachment.

Following a harassment investigation regarding the actions of Cst. X and a Conduct Meeting, the Conduct Authority issued a written decision where he found that the Appellant adversely impacted Cst. X, by watching her walk from behind (Incident 1), treating her differently from male members (Incident 2), and making inappropriate sexual comments and trying to pry into her current relationship (Incident 3), contrary to section 2.1 of the Code of Conduct. The Conduct Authority found that the Appellant's behaviour was sexual misconduct amounting to harassing behaviour. The Conduct Authority imposed conduct measures of a temporary two-year demotion, an order not to be placed in an acting supervisory role for a one-year period, a permanent transfer from his current position and location, a direction to attend counselling and apologize to Cst. X, and a direction to participate in a campaign against violence towards women and children at the Appellant's new position.

The Appellant alleges that the Conduct Authority's decision contravened the principles of procedural fairness, was based on an error of law and was clearly unreasonable. The Appellant argues that he was denied procedural fairness because he was not provided advance notice that he was potentially facing a demotion. The Appellant raises a number of arguments, appealing the Conduct Authority's finding on the Allegation. The Appellant also appeals the conduct measures imposed by the Conduct Authority. The Appellant alleges that the conduct measures imposed were clearly unreasonable because the Conduct Authority considered certain irrelevant considerations. The Appellant alleges that the Conduct Authority failed to consider certain mitigating factors and improperly considered an aggravating factor when imposing conduct measures and that the demotion was not proportionate to the circumstances.  

ERC Findings: The ERC found that the Appellant was not denied procedural fairness because he was informed, through the Notice of Conduct Meeting, of the conduct measures that were available to the Conduct Authority, which included demotion.

The ERC found that the Conduct Authority was not required to consider the intentions of the Appellant when he interacted with Cst. X when making a finding of sexual harassment.

The ERC found that the Conduct Authority did not make an error in weighing the evidence that led to a clearly unreasonable Decision on the Allegation.

The ERC found that the Conduct Authority was not required to make an express finding in his decision with respect to every element of the case and every argument made.

The ERC was of the view that the Conduct Authority made a clearly unreasonable error when he found that the Appellant's behaviour in Incident 1 amounted to harassment, because he did not explain how the Appellant's behaviour met the reasonable person test of harassment. The Decision on the Allegation was clearly unreasonable because the Conduct Authority failed to sufficiently explain why Incident 1 amounted to sexual harassment. However, the ERC found that the Allegation can still be established on the basis of Incidents 2 and 3 because the Conduct Authority did not make a reviewable error in his finding of sexual harassment with respect to Incidents 2 and 3.    

The ERC found that the conduct measures imposed on the Appellant by the Conduct Authority were not clearly unreasonable and do not require intervention on appeal. The Conduct Authority identified the appropriate range of conduct measures he would consider imposing in the Decision. With the exception of one aggravating factor, "the Appellant's failure to take responsibility", the Conduct Authority's identification of both mitigating and aggravating factors in his Decision was supported by the record and was not influenced by irrelevant considerations. The conduct measures selected by the Conduct Authority were proportionate to the misconduct and supported by the principles in the Conduct Measures Guide.

ERC Recommendations: The ERC recommended that, pursuant to subsection 45.16(2)(b) of the RCMP Act, the appeal be allowed in part. The ERC recommended that the Commissioner find that the Appellant's conduct, in relation to Incidents 2 and 3, supports a finding that the Allegation was established.

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

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

The Appellant raises in one statement of appeal, several arguments directed at the factual findings established in C-050 and C-051, as well at the global measures imposed in response to those findings. He seeks a direction that the decisions: contravene the principles of procedural fairness with respect to lack of advance notice provided by the Respondent; rely on errors of law; and, are clearly unreasonable in light of the disproportionate sanctions imposed. The progression of sexual harassment investigations against the Appellant has been complex to date. The end result is two appealed decisions that share global conduct measures and a third decision, not appealed, with separate measurements. For the sake of clarity and concision the two appealed decisions are consolidated into one. The Appellant has not articulated how consideration of the complainant’s filing of a complaint could constitute a breach of procedural fairness nor did he provide any arguments with respect to the test that must be met to demonstrate a reasonable apprehension bias. I agree with the ERC that consideration of the complaint was not evidence of a clearly unreasonable error. I agree with the ERC that, upon viewing the conduct meeting notes and final decision, the Respondent clearly considered the relevant factors that justify a demotion. The Respondent’s decision to demote the Appellant is acceptable and defensible. I find no reason to overturn this decision based on a clearly unreasonable error.

C-051 Conduct Authority Decision (summarized in the July – September 2021 Communiqué)

The Appellant was a supervisor at a Detachment. A female member at the Detachment, Cst. Z, initiated a harassment complaint against the Appellant. In the course of making enquiries about the harassment complaint, it was learned that there were allegations of inappropriate behaviour by the Appellant towards two other female members at the Detachment.

Following a harassment investigation regarding the actions of Cst. Z and a Conduct Meeting, the Conduct Authority issued a written decision where he found that the Appellant adversely impacted Cst. Z, by "making inappropriate sexual comments in the presence of other people, checking her up and down, and asking her to turn around to look at her outfit," causing Cst. Z to feel embarrassed, demeaned and uncomfortable, contrary to section 2.1 of the Code of Conduct. The Conduct Authority found that the Appellant's behaviour was sexual misconduct amounting to harassing behaviour. The Conduct Authority imposed conduct measures of a temporary two-year demotion, an order not to be placed in an acting supervisory role for a one-year period, a permanent transfer from his current position and location, a direction to attend counselling and apologize to Cst. Z, and a direction to participate in a campaign against violence towards women and children at the Appellant's new position.

The Appellant alleges that the Conduct Authority's decision contravened the principles of procedural fairness, was based on an error of law and was clearly unreasonable. The Appellant argues that he was denied procedural fairness because he was not provided advance notice that he was potentially facing a demotion. The Appellant raises a number of arguments, appealing the Conduct Authority's finding on the Allegation. The Appellant also appeals the conduct measures imposed by the Conduct Authority. The Appellant alleges that the conduct measures imposed were clearly unreasonable because the Conduct Authority considered certain irrelevant considerations. The Appellant alleges that the Conduct Authority failed to consider that the mitigating factors exceeded the aggravating factors when imposing conduct measures and that the demotion was not proportionate to the circumstances.  

ERC Findings: The ERC found that the Appellant was not denied procedural fairness because he was informed, through the Notice of Conduct Meeting, of the conduct measures that were available to the Conduct Authority, which included demotion.

The ERC found that the Conduct Authority did not make a reviewable error in his implied finding that the Appellant's comments to Cst. Z were sexual in nature.

The ERC found that even though the Appellant did not place a condition of a sexual nature on Cst. Z's employment or on any opportunity for Cst. Z's training or promotion, his behaviour amounted to sexual harassment. 

The ERC was of the view that the Conduct Authority was not required to consider the intentions of the Appellant when he interacted with Cst. Z, when making a finding of sexual harassment.

The ERC found that there was no reviewable error in the Respondent's weighing of the evidence, or in his application of the test of sexual harassment. The ERC was of the view that the Conduct Authority provided sufficient reasons for his Decision on the Allegation.

The ERC found that the conduct measures imposed on the Appellant by the Conduct Authority were not clearly unreasonable and do not require intervention on appeal. The Conduct Authority identified the appropriate range of conduct measures that he would consider imposing in the Decision. The Conduct Authority's identification of both mitigating and aggravating factors in his Decision was supported by the record and was not influenced by irrelevant considerations. The conduct measures selected by the Conduct Authority were proportionate to the misconduct and supported by the principles in the Conduct Measures Guide.

ERC Recommendations: The ERC recommended that, pursuant to subsection 45.16(2)(a) of the RCMP Act, the appeal in respect of the finding on the Allegation be dismissed.

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

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

The Appellant raises in one statement of appeal, several arguments directed at the factual findings established in C-050 and C-051, as well at the global measures imposed in response to those findings. He seeks a direction that the decisions: contravene the principles of procedural fairness with respect to lack of advance notice provided by the Respondent; rely on errors of law; and, are clearly unreasonable in light of the disproportionate sanctions imposed. The progression of sexual harassment investigations against the Appellant has been complex to date. The end result is two appealed decisions that share global conduct measures and a third decision, not appealed, with separate measurements. For the sake of clarity and concision the two appealed decisions are consolidated into one. The Appellant has not articulated how consideration of the complainant’s filing of a complaint could constitute a breach of procedural fairness nor did he provide any arguments with respect to the test that must be met to demonstrate a reasonable apprehension bias. I agree with the ERC that consideration of the complaint was not evidence of a clearly unreasonable error. I agree with the ERC that, upon viewing the conduct meeting notes and final decision, the Respondent clearly considered the relevant factors that justify a demotion. The Respondent’s decision to demote the Appellant is acceptable and defensible. I find no reason to overturn this decision based on a clearly unreasonable error.

C-052 Conduct Authority Decision (summarized in the October – December 2021 Communiqué)

The Appellant was the Non-Commissioned Officer (NCO) in charge in a detachment. A Public Service Employee (PSE), who provided administrative support to the unit, reported that the Appellant sent her inappropriate text messages.

The Appellant was notified of the initiation of a Code of Conduct investigation pertaining to the inappropriate text messages. The Appellant met with a number of male members of the unit to inform them of the Code of Conduct investigation and named the PSE who made the complaint against him. Additional Code of Conduct allegations were then mandated against the Appellant for excluding a female civilian member from the unit meeting and disclosing protected information regarding the complainant.

Following a Code of Conduct investigation regarding the actions of the Appellant and a Conduct Meeting, the Conduct Authority issued a written decision where he found that four out of five allegations against the Appellant were established. The Appellant was found to have (1) misused Force equipment by sending personal text messages; (2) abused his authority and engaged in discreditable conduct by seeking a romantic relationship with a subordinate; (3) engaged in harassment by excluding a civilian member from a unit meeting; and, (4) improperly disclosing protected information. A fifth allegation of failing to disclose an interpersonal relationship was not established.

The Conduct Authority imposed conduct measures consisting of a demotion from the rank of Sergeant to Corporal for an indefinite period; ineligibility for promotion for a period of one year; transfer from his current position; an order to follow any treatment plan by the Health Services Officer as appropriate; the completion of an online Harassment in the Workplace course; and a reprimand.

The Appellant appealed the decision. He alleges that the Conduct Authority’s decision to impose a demotion as part of conduct measures was clearly unreasonable. The Appellant alleges (1) the conduct measures do not reflect prior similar cases; and (2) the Conduct Authority did not properly consider the mitigating factors; failed to consider relevant evidence; and considered certain irrelevant factors.

ERC Findings: The ERC found that the conduct measures imposed on the Appellant by the Conduct Authority were not clearly unreasonable and do not require intervention on appeal. The Conduct Authority identified the appropriate range of conduct measures that he would consider imposing in the Decision. The Conduct Authority’s identification of both mitigating and aggravating factors in his Decision was supported by the record and was not influenced by irrelevant considerations. The conduct measures selected by the Conduct Authority were proportionate to the misconduct and supported by the principles in the Conduct Measures Guide.

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

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

The Appellant appeals the conduct measures imposed by the Commanding Officer of “X” Division (the Respondent). The Respondent found that four allegations against the Appellant were established, contrary to sections 4.6, 7.1, 2.1, and 9.1 of the Code of Conduct, a Schedule to the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281. The Respondent imposed six conduct measures.

The Appellant contends that the conduct measures were imposed in contravention of the applicable principles of procedural fairness and are clearly unreasonable because the Respondent did not properly consider comparable conduct measures in similar cases, but considered irrelevant factor. Some evidence and mitigating factors were also not accurately taken into consideration. The Appellant requests that his rank of Sergeant be reinstated and the demotion be substituted with a monetary penalty of 15 to 25 days’ forfeiture of pay.

In accordance with subsection 45.15(1) of the Royal Canadian Mounted Police Act, RSC 1985, c R-10, the appeal was referred to the RCMP External Review Committee (ERC) for review. In a report issued on October 7, 2021 (ERC C-2019-022 (C-052)), the Chair of the ERC, Mr. Charles Randall Smith, recommended that the appeal be dismissed.

After reviewing the Respondent’s decision and the Appellant’s submissions, the adjudicator finds that the Respondent’s decision was not reached in a manner that breached the applicable principles of procedural fairness and it is not clearly unreasonable. The adjudicator dismisses the appeal and confirms the conduct measures imposed by the Respondent.

C-055 Conduct Board Decision (summarized in the October – December 2021 Communiqué)

This is an appeal by a Conduct Authority requesting the Respondent be directed to resign within 14 days or face dismissal from the Force.

The Respondent was charged with two allegations of unwanted touching on two female members at a team building function. The Respondent, while highly intoxicated, had touched a female member and attempted to do the same to a second female member. The Respondent appeared before a Conduct Board (Board) where the two allegations of discreditable conduct were deemed established under section 7.1 of the Code of Conduct.

The Board found that dismissal was disproportionate in regards to the mitigating factors and imposed 35 days' forfeiture of pay. In addition, the Board ordered continued treatment and other conduct measures. 

The Appellant appealed the conduct measures imposed and requested that the Respondent be dismissed from the Force. The Appellant submitted that the Board made an error of law in finding that assault or harassment in the workplace did not occur, which resulted in lesser conduct measures. Further, the Appellant argued that the Board failed to properly assess the evidence.

ERC Findings: The ERC found that the Board did not err in not assessing whether the member had committed harassment as that was not the allegation before the Board and that the Conduct Authority cannot add new allegations orally during the proceedings or on appeal. The ERC agreed with the Appellant that under normal conditions, dismissal in these circumstances may have been the appropriate conduct measure. However, the Board was obliged to consider both aggravating and mitigating factors when making its determination as to appropriate conduct measures. There was overwhelming and compelling mitigating evidence in favour of the Respondent, to determine that dismissal was not appropriate here.

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 the Respondent had contravened the RCMP Code of Conduct after finding two allegations of discreditable conduct to be established. The allegations relate to events that occurred at an evening “team-building” function where the Respondent consumed alcohol to the point of intoxication. The Appellant submitted that the allegations, which the Respondent did not deny, met the definition of sexual assault. The Appellant sought the Respondent’s dismissal from the Force.

The Appellant held the position that the Board intentionally misclassified the Respondent’s actions as “unwanted sexual touching”, describing him as an “intoxicated pub patron” with the intent of imposing lesser conduct measures. The Board made no error by not classifying the Respondent’s conduct as sexual harassment. The Appellant sought to garner a re-weighing of the evidence.

The Appellant alleges that the Board gave more consideration to the letters of support for the Respondent than the victim impact statement and argues that one of the victim’s impact statement was “trivialized in comparison to the attention given to each and every personal reference of the subject member, none of whom were directly impacted by his behaviour.” The Board was in the best position to determine the weight of the evidence and I see no justification to intervene. I agree with the ERC that the Board did not commit a reviewable error in identifying and reaching the appropriate sanctions.

The Board described and carefully assessed a number of aggravating and mitigating factors prior to imposing conduct measures. I accept that the Board’s decision on conduct measures does not give rise to a manifest and determinative error, and is not unreasonable. I confirm the conduct measures imposed by the Board.

I direct the Appellant to arrange suitable sensitivity training for the Respondent and once completed, I direct the Respondent to send letters of apology to the Appellant without delay so they can be provided to the two female members. The appeal is dismissed.

NC-076 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant presented a harassment complaint (Complaint) against her Detachment Commander, the Alleged Harasser. The Complaint contained numerous allegations, including incidents where the Alleged Harasser had made comments which the Appellant perceived as offensive. Other allegations involved the Appellant’s belief that the Alleged Harasser was making sexual advances towards her.

The Respondent rendered a Decision finding that the Complaint was not established. In his view, the Alleged Harasser’s actions did not amount to harassment. The Respondent found that, while a couple comments should not have been made, they did not constitute harassment. The Respondent further found that the Alleged Harasser did not make sexual advances towards the Appellant, and that he had treated her no differently than others in the detachment. The Respondent found that the remaining incidents did not meet the threshold for harassment. Finally, the Respondent found that looking at all the allegations as a whole, they did not meet the test for harassment.

The Appellant appealed the Respondent’s Decision.

ERC Findings: The ERC found that the Respondent applied the wrong test for harassment in his decision and committed an error of law. The Respondent referred to the proper definition of harassment from the RCMP Administration Manual, but when the Respondent identified what is required in order to make a finding of harassment, the test he stated was not consistent with the cited manual. The ERC further found that the Decision was unreasonable as the Respondent did not explain how his finding that in two incidents, the Alleged Harasser should not have said what he did, but that this was not a pattern of harassment. Further, the ERC found that the Respondent had found for one incident, had it been repeated, there could be a different finding relating to harassment, but did not explain why two other similar incidents did not create a pattern for harassment. The ERC also found it was unreasonable to not have an investigation conducted when the Appellant and Alleged Harasser had different accounts of the events that led to the Complaint. There is no analysis to explain these differences, or why an investigation wasn’t conducted. 

ERC Recommendations: The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker to reassess the evidence, have an investigation conducted, reapply the proper reasonable person test, and reconsider whether the incidents establish a pattern of harassment.

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 her supervisor’s behaviour did not meet the definition of harassment. This appeal is made pursuant to subsection 7(1) of the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints) and paragraph 37(a) of the Commissioner’s Standing Orders (Grievances and Appeals).

The Appellant contends that the decision was reached in a manner that contravenes the applicable principles of procedural fairness and is clearly unreasonable. The Appellant also requests that a full investigation be conducted, inclusive of witness interviews.

Pursuant to paragraph 17(a) of the Royal Canadian Mounted Police Regulations, this appeal was forwarded to the Royal Canadian Mounted Police External Review Committee (ERC) for a Recommendation. In a report issued on July 23, 2021 (ERC C-2020-063 (NC-076)), the ERC recommended that the appeal be allowed, on the basis that the Respondent’s decision contained an error of law due to the application of an improper definition of harassment. The ERC also found that the decision was clearly unreasonable due to the fact that an investigation was not mandated and there were incongruences in the rationale pertaining to the repetitive nature of certain behaviours.

The adjudicator disagreed with the ERC on the standard of review applicable to a question of law but ultimately reached the same conclusion that an error of law had indeed been committed by the Respondent in rendering his decision due to the lack of clarity as to the legal test applied. The adjudicator also found that the Respondent’s decision is clearly unreasonable as the rationale was inconsistent with regard to the repetitive nature of incidents deemed unacceptable by the Respondent.

The adjudicator allowed the appeal and directed the Director General of the Workplace Responsibility Branch to identify an alternate decision maker to render a new decision. The adjudicator left it at the new decision maker’s discretion whether further inquiries are required.

NC-079 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant presented a harassment complaint (Complaint) against a Detachment Commander, the Alleged Harasser. The Complaint contained a number of allegations, including the allegation that the Alleged Harasser had called the Appellant a derogatory name and had impacted the choice of whether he should obtain a position at the Detachment. Other allegations involved comments made by the Alleged Harasser about the Appellant being "sneaky" and "unethical".

The Respondent rendered a decision finding that the Complaint was not established. In his view, the allegations that the Alleged Harasser had called the Appellant a derogatory name or had impacted the choice of who would be obtaining the position in his Detachment, were not established and the evidence did not support a finding that the Alleged Harasser engaged in harassment.

The Appellant appealed the Respondent's decision.

ERC Findings: The ERC found that the Respondent had cited the correct test for harassment, but had ignored evidence about comments made by the Alleged Harasser. The ERC found that the decision was clearly unreasonable as it did not address all the incidents in the harassment allegation.

ERC Recommendations: The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker to reassess the evidence.

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

The Appellant appeals the Respondent’s decision whereby he found that the allegations of harassment, made by the Appellant against the Detachment Commander (Alleged Harasser), were not established.

In 2016, the Appellant applied for a Corporal position where the Alleged Harasser was the Detachment Commander. An Agreement in existence provided that the Council and Chief were to be consulted on staffing decisions. According to the Appellant, the Alleged Harasser, upon consulting the Council and Chief, allegedly made unfounded, and harmful comments to dissuade the Council and Chief from approving the Appellant in the selection process, while he was the primary candidate for the position. The Appellant filed a Harassment Complaint on July 4, 2016. Following a Final Investigation Report, completed on September 29, 2016, the Respondent issued a Record of Decision on December 20, 2016, served on the same date. The Respondent determined that harassment was not established.

The Appellant filed a Statement of Appeal on December 28, 2016, claiming the decision was reached in a manner that contravenes the applicable principles of procedural fairness, and is clearly unreasonable. He argued much of the actual complaint was not addressed, including many of the harmful statements made by the Alleged Harasser, including those contained a document from the Alleged Harasser, which was not considered. On July 11, 2018, and subsequently again, on January 16, 2019, new information arose, which the Appellant submits ought to be considered by the adjudicator, consisting of a Letter of Finding by the Office of the Privacy Commission, and emails disclosed as a result of an ATIP request, exchanged in the relevant time frame, between the Career Development Resource Advisor, the District Policing Officer and the Inspector of “X” Division.

The appeal was referred to the RCMP External Review Committee (ERC) on February 22, 2017, and in a Report containing Findings and Recommendations, issued on September 16, 2021, (NC-2016-023 (NC-079)), the Chair of the ERC, Mr. Charles Randall Smith, recommended that the appeal be allowed on the ground that the decision was clearly unreasonable since the Respondent did not fully assess the Harassment Complaint, nor consider all the evidence against the Alleged Harasser in his reasons. The ERC recommended the matter be remitted to a new decision maker for a new consideration including all the evidence.

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, the redress sought by the Appellant against the Alleged Harasser was no longer available. The adjudicator issued an apology to the Alleged Harasser without further direction.

The appeal was referred to the RCMP External Review Committee (ERC) on February 22, 2017, and in a Report containing Findings and Recommendations, issued on September 16, 2021, (NC-2016-023 (NC-079)), the Chair of the ERC, Mr. Charles Randall Smith, recommended that the appeal be allowed on the ground that the decision was clearly unreasonable since the Respondent did not fully assess the Harassment Complaint, nor consider all the evidence against the Alleged Harasser in his reasons. The ERC recommended the matter be remitted to a new decision maker for a new consideration including all the evidence.

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, the redress sought by the Appellant against the Alleged Harasser was no longer available. The adjudicator issued an apology to the Alleged Harasser without further direction.

NC-080 Harassment / Time Limits (summarized in the October – December 2021 Communiqué)

The Appellant filed a harassment complaint against her direct supervisor (Alleged Harasser). She asserted that he omitted to take action against coworkers who mistreated her, ignored her feelings and requests for help, and ultimately contributed to her isolation in the workplace.

Officials elected to put aside the Appellant’s harassment complaint, and instead inquire into whether the Alleged Harasser should be made the subject of a Code of Conduct investigation. After meeting with the Alleged Harasser and reviewing certain materials, they found that he did not treat the Appellant in a “derogatory harassing manner” or contravene the Code of Conduct. The Respondent adopted these findings as her Decision, which was served on the Appellant.

The Appellant presented an appeal roughly four days after the expiration of the 14-day time limit set forth in section 38 of the Commissioner’s Standing Orders (Grievances and Appeals) (CSO (Grievances and Appeals)). Upon request, she explained that her appeal was late because:

• the Inspector who served her with the Decision could not say how to pursue recourse;
• she and her Member Representative (MR) thought she had 14 business days to file an appeal;
• her MR was unengaged, and their talks were “fairly unhelpful”; and
• she had to take it upon herself to navigate policy regarding how to present an appeal.

The Respondent took issue with some of the Appellant’s explanations.

ERC Findings: The ERC found that the appeal was untimely. Pursuant to section 38 of the CSO (Grievances and Appeals), the Appellant was required to file her appeal within 14 days after the date upon which she was served with the Decision. She did not do so, and there were no exceptional circumstances warranting an extension of time pursuant to subsection 43(d) of the CSO (Grievances and Appeals). The ERC and the Commissioner have found that the obligation for initiating and arguing a case rests with a member, and that a lack of familiarity with applicable authorities is not an acceptable reason for omitting to respect a statutory limitation period. The 14-day time limit was not only identified in a CSO and in policy. The “Instructions for Statement of Appeal” attached to the Appellant’s appeal form also specified how long the Appellant had to appeal a decision, and where to find further information about how to do so. If the Appellant was otherwise unsure of her responsibilities, then she could have reached out to another MR who was more responsive, or to the Office of Coordination of Grievances and Appeals (OCGA), for assistance.

ERC Recommendation: The ERC recommended that this appeal be dismissed on the basis that it was initiated after the expiry of the statutory time limit, and an extension of that time limit is not warranted in the circumstances.

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

The Appellant appeals the Respondent’s decision whereby he determined that the alleged harasser did not act in a “derogatory harassing manner” toward the Appellant or contravene the RCMP Code of Conduct.

The appeal was forwarded to the RCMP External Review Committee (ERC) for review. Upon receiving the appeal, the ERC noted that the Appellant may have submitted her appeal outside of the statutory 14-day time limit. The ERC obtained submissions from the Parties on the issue of time limitation. In a report containing findings and recommendations, issued on October 8, 2021, (NC-2017-015 (NC-080)), the Chair of the ERC, Mr. Charles Randall Smith, recommended that the appeal be dismissed on the basis that it was submitted after the expiration of the statutory time limit, and that an extension of the time limit is not warranted in the circumstances.

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 determined that the appeal was filed after the expiration of the statutory time limit and that a retroactive extension of the time limit was not justified in this instance. The adjudicator dismissed the appeal.

NC-081 Stoppage of Pay and Allowances (summarized in the October – December 2021 Communiqué)

The Appellant appealed a decision by the Force ordering the Stoppage of his Pay and Allowances (SPA). The Stoppage of Pay and Allowances Order (SPAO) was imposed as a result of Code of Conduct allegations that had been brought against the Appellant regarding his “sign off” on X’s custodial timesheets for hours she did not work, resulting in the Appellant’s misuse of government funds. A statutory investigation into the Appellant’s alleged fraud was initiated and the Appellant was charged with fraud and breach of trust by a public officer.

The Appellant argued that the Notice of Intent (NOI) to Order a Stoppage of Pay and Allowances was deficient and this resulted in procedural unfairness to the Appellant. The Appellant stated that the NOI was deficient because it did not set out the grounds to order the SPA and the NOI was issued solely because the Appellant was charged with offences under the Criminal Code. The Appellant was of the view that the Respondent’s SPAO was clearly unreasonable because the Respondent failed to show the clear involvement of the Appellant and the Respondent’s reasons were insufficient. The Appellant argued that the Respondent made an error of law by reversing the onus of proof.

ERC Findings: The ERC found that the appeal was referable and was presented within the relevant time limitation period. Regarding the merits, the ERC found that:

• The NOI set out the grounds upon which a SPAO would be made. Procedural fairness was not breached because the Appellant’s ability to respond was not compromised given that the particulars contained in the NOI, read in conjunction with the two investigation reports, provided the Appellant with sufficient notice of the case the Appellant had to meet;
• There was no indication in the NOI that the criminal charges were a focal point considered by the Respondent when issuing the NOI;
• When the SPAO is read in conjunction with the material in the investigation reports, the Appellant’s clear involvement in the alleged misconduct is established. The Respondent’s consideration and rejection of the Appellant’s argument that he was not clearly involved in the alleged misconduct is supported by the evidence in the record;
• The Respondent’s reasons were sufficient because they clarified how the criteria for issuing a SPAO were met. While the SPAO was very brief, it provided a sufficient roadmap that linked the evidence in the investigation reports to the Respondent’s finding that the criterion of clear involvement was met; and
• The Respondent did not impose the onus of proof on the Appellant to show that [X] worked the required minimum hours claimed on her timesheets.

ERC Recommendation: The ERC recommended that the Commissioner dismiss the appeal because the Respondent’s decision to order an SPA did not contain any errors of law, was not clearly unreasonable and was not reached in a manner that was procedurally unfair.

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

The Appellant presents an appeal challenging the decision of the Respondent to issue a Stoppage of Pay and Allowances Order (SPAO) pursuant to paragraph 22(2)(b) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10. The SPAO was imposed by the Respondent following allegations brought against the Appellant that he “signed off” on his wife’s custodial timesheets for hours that she did not work, thereby exhibiting discreditable conduct and inappropriate use of government-issued equipment and property.

The Appellant is appealing that decision pursuant to paragraph 32(1)(c) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291, and paragraph 37(e) of the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289. On his Statement of Appeal form, the Appellant submits that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness, is based on an error of law, and is clearly unreasonable.

In accordance with subsection 33(1) of the RCMP Act and paragraph 17(e) of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, the appeal was referred to the RCMP External Review Committee (ERC) for an independent review. In a report issued on October 13, 2021 (ERC file NC-2021-010 (NC-081)), the Chair of the ERC recommended that the appeal be dismissed.

The adjudicator agrees with the ERC that the Appellant has not demonstrated that the SPAO was issued in a manner that breached procedural fairness, is based on an error of law, or is clearly unreasonable. The adjudicator dismissed the appeal.

NC-082 Medical Discharge (summarized in the October – December 2021 Communiqué)

In August 2014, the Appellant was diagnosed with a medical condition. Between this date and her medical discharge, she was placed off-duty sick (ODS) by her treating physician on multiple occasions. Also during this period, the Appellant engaged in two Graduated Return to Work (GRTW) attempts, both of which were unsuccessful. On October 18, 2017, the Appellant was placed ODS where she remains to this day.

On December 5, 2017, the Appellant's treating physician sent a letter to the Health Services Officer (HSO) indicating that the Appellant's prognosis for a successful return to full-time work was good as long as she resumed therapy. Notwithstanding this evidence, the Appellant was assigned a permanent O6 medical profile on April 23, 2018, meaning she could not to return to any RCMP duties in the reasonably foreseeable future. The Appellant immediately challenged the HSO's prognosis arguing that it was contrary to the one she had received from her physician.

Nevertheless, discharge proceedings were commenced against the Appellant and on December 7, 2018, the latter was served with a Notice of Intent to Discharge (NOI) signed by the Respondent. In her written and oral submissions in response to the NOI, the Appellant expressed her profound disagreement with the HSO's prognosis as well as his decision to proceed with an occupational prognosis assessment even though she had not yet started her treatment plan.

On March 22, 2019, the Respondent issued an Order to Discharge the Appellant, reasoning that her disability would continue to prohibit her from satisfying basic employment obligations and that the RCMP met its duty to accommodate her disability to the point of undue hardship. The Respondent indicated that she accepted the HSO's evidence adding that the Appellant had presented no new information to support the reassessment of her fitness for duty.

The Appellant presented an appeal of the Respondent's decision.

ERC Findings: The ERC found that the Respondent's reasons were insufficient given that they failed to address the key issues and concerns raised by the Appellant and to reveal a coherent and rational chain of analysis between the evidence and the conclusion at which the Respondent arrived. The ERC then found that the Respondent was obligated to provide reasons in support of her decision to defer to the HSO's evidence and that her failure to do so amounted to a clearly unreasonable error. Finally, the ERC took issue with the fact that the Respondent failed to examine and address the evidence provided by the Appellant's physician to the effect that the latter could potentially begin a GRTW after a few weeks of treatment. In the ERC's opinion, the Respondent should have explained why this evidence was too nominal or restricted to warrant a modification or at least a questioning of the HSO's prognosis assessment. The ERC went on to conclude that the Respondent's determination that the Force accommodated the Appellant's disability to the point of undue hardship was clearly unreasonable.

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

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

The Appellant joined the RCMP on September 27, 1993. In August 2011, she was assigned to a special unit.

On June 4, 2014, she was working location A when she investigated the murder and injury of her co-workers and friends. As a result, she suffered from  a medical condition, as diagnosed by her physician on August 29, 2014.

On June 14, 2016, she was placed off duty sick (ODS) by her physician. She was prescribed a graduated return to work (GRTW) on two occasions, from April 4, 2016, to May 24, 2016, and then from February 27, 2017, to October 17, 2017. She did not work again after October 18, 2017.

On May14, 2018, the Health Services Officer (HSO) informed the Appellant that he had assigned her a medical profile of O6, meaning she was unfit to work in any capacity for the RCMP in the foreseeable future. During this time, she was undergoing trauma focused therapy, and her private psychiatrist expressed that her condition may improve to allow her to return to work at some point, however, there was no guarantee as to when.

On December 6, 2018, a Notice of Intent to Discharge was issued, and on March 22, 2019, the Respondent ordered the Appellant’s discharge with written reasons.

The Appellant appealed the discharge on the grounds that the decision contravened the applicable principles of procedural fairness, was based on an error of law, and is clearly unreasonable. The appeal was referred to the RCMP External Review Committee (ERC) for review. The Chair of the ERC recommended that the appeal be allowed primarily on the basis that the decision was clearly unreasonable due to the inadequacy of the reasons. The Adjudicator agreed and allowed the appeal.

NC-083 Harassment / Time Limits (summarized in the October – December 2021 Communiqué)

The Appellant filed a harassment complaint against his Detachment Commander (Alleged Harasser). The Respondent concluded that the elements of harassment were not met because the Alleged Harasser's conduct was not improper to the point where she should have reasonably known that it would cause offence to the Appellant.

The Appellant presented an appeal 68 days after the expiration of the 14-day time limit set forth in section 38 of the Commissioner's Standing Orders (Grievances and Appeals) (CSO (Grievances and Appeals)). Upon request, he explained that his appeal was late because:

• he was initially advised that he could not appeal the Respondent's decision because he was retired;
• he requested assistance in pursuing the appeal, but the assistance provided was insufficient;
• his state of health prevented him from pursuing the appeal in a more timely manner; and
• the time limit unfairly interfered with his ability to pursue the appeal.

The Respondent chose not to make submissions because he did not know what specific information was provided to the Appellant regarding his right to appeal.

ERC Findings: The ERC found that the appeal was untimely. Pursuant to section 38 of the CSO (Grievances and Appeals), the Appellant was required to file his appeal within 14 days after the date upon which he was served with the Decision. He did not do so, and there were no exceptional circumstances warranting an extension of time pursuant to subsection 43(d) of the CSO (Grievances and Appeals). The Appellant was initially advised that he could not appeal because he was retired. However, the Appellant took a month to submit an appeal even after he was informed that he could proceed with the appeal and had noted that he had 14 days to do so. The Appellant did not provide evidence to demonstrate that his state of health affected his ability to file a Statement of Appeal. Since the relevant time limit was described in publicly available regulations, the Appellant's alleged limited access to resources could not explain the delay. Furthermore, the Appellant did not demonstrate that the existing appeal regime unfairly interfered with his ability to pursue the appeal.

ERC Recommendation: The ERC recommended that this appeal be dismissed on the basis that it was initiated after the expiry of the statutory time limit, and an extension of that time limit is not warranted in the circumstances.

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

The Appellant appeals the Respondent’s decision whereby he found that the allegations of harassment, made by the Appellant against his Detachment Commander (Alleged Harasser), were not established

Upon receiving the appeal, the RCMP Office for the Coordination of Grievances and Appeals (OCGA) noted that the Appellant submitted his appeal outside of the statutory 14-day time limit. The Appellant provided submissions in support of his request to have the time limitation retroactively extended. The appeal was forwarded to the RCMP External Review Committee (ERC) for review. In a report containing findings and recommendations, issued on November 3, 2021, (NC-2017-009 (NC-083)), the Chair of the ERC, Mr. Charles Randall Smith, recommended that the appeal be dismissed on the basis that it was submitted after the expiration of the statutory time limit, and that an extension of the time limit is not warranted in the circumstances.

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 determined that the appeal was filed after the expiration of the statutory time limit and that a retroactive extension of the time limit was not justified in this instance. The adjudicator dismissed the appeal.

NC-084 Harassment (summarized in the October – December 2021 Communiqué)

The facts in this case are sparse. As a result of four complaints made against the Appellant, his manager (the Alleged Harasser), conducted a fact-finding exercise. The Alleged Harasser informed the Appellant that he had received these complaints and would be looking into them. At that time, the Alleged Harasser did not provide the Appellant with copies of the four complaints nor did he explain in any detail the nature of those complaints. The Appellant strongly objected in respect to the Alleged Harasser’s decision to look into these matters; the review took too long which affected his stress and mental health both in the workplace and at home; and the Appellant felt that the review was one-sided because he was not interviewed at the time.

The Appellant then filed a harassment complaint against the Alleged Harasser for initiating the fact-finding exercise which ballooned into 11 complaints and eventually a Code of Conduct investigation.

The Respondent decision-maker found that the allegations did not meet the definition of harassment because they were part of the supervisor’s responsibilities. Moreover, the Appellant would have an opportunity to raise these issues within the conduct process. In light of this, the Respondent decided that it was unnecessary to conduct an investigation.

ERC Findings: The ERC made it clear that harassment could occur regardless if a manager is conducting his or her duties. In this case, however, the ERC found that the Respondent did not err in finding that the conduct/behaviours did not fall within the definition of harassment. Having so found, the Respondent’s decision not to mandate an investigation was not clearly unreasonable.

The ERC found that the Alleged Harasser was addressing the complaints received because it was required as part of his responsibilities, and failure to do so could have resulted in a Code of Conduct investigation against him. The ERC also noted that the issues raised in the Appellant’s complaints regarding procedural fairness within the investigation should be raised within the conduct process.

ERC Recommendation: The ERC recommended 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 that contravenes the applicable principles of procedural fairness, was based on an error of law, and is clearly unreasonable. The Appellant requests that a thorough investigation be conducted and his harassment complaint be upheld.

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.

The adjudicator found that the fact that an investigation was not mandated in this case did not amount to a breach of procedural fairness, given the specific particulars that are alleged in this matter. The adjudicator did not find that the Respondent’s decision was tainted by an error of law, nor that it was clearly unreasonable. As such, the adjudicator dismissed the appeal.

D-138 Adjudication Board Decision (summarized in the October – December 2021 Communiqué)

The Appellant, while working an overnight shift, responded to a call alleging an assault by Ms. X. Ms. X was eventually arrested and placed in a cell. Ms. X was perceived to be highly intoxicated and dressed very lightly for the winter weather. At approximately 5:00 a.m., the Appellant retrieved Ms. X from her cell and obtained a short statement. Ms. X was then briefly returned to her cell, while the Appellant assessed her file. At that time, the Appellant decided to release Ms. X. Ms. X was then directed outside of the detachment, while the Appellant ran through to the other side of the detachment to acquire his police vehicle and drive her home. The Appellant and Ms. X then drove towards Ms. X’s residence at inordinately high speeds. The Appellant and Ms. X stopped for several minutes near Ms. X’s residence prior to the Appellant dropping her off at her home. Several days later, Ms. X was arrested again. At that time, she alleged that the Appellant had forced her to perform a sexual act during the stop, while taking her home. An investigation was mandated and two allegations of disgraceful conduct, contrary to the Code of Conduct, were filed against the Appellant.

After the hearing, the Adjudication Board (Board) rendered its oral decision, finding that the Appellant did force Ms. X to perform a sexual act and failed to respect Ms. X’s safety when hastily dropping her off at her home, unaccompanied. Based on these findings, the parties were in agreement that the only possible sanction was an order to resign or be dismissed within 14 days.

The Appellant appealed the Board’s Decision on the allegations. In so doing, he tried to submit two new documents: a doctor’s note; and a Statement of Claim which he suggested assailed Ms. X’s credibility.

ERC Findings: The ERC found that the two pieces of fresh evidence should not be admitted. First, the medical evidence could have been acquired during the years leading up to the hearing, but was not, without a reasonable explanation. Second, the Statement of Claim was unhelpful. It was simply a claim, the accuracy of which would be tested in an alternate process. Moreover, Ms. X’s credibility was thoroughly tested at the hearing and, although the Board acknowledged that her evidence was shaky on certain minor details, it found her evidence about the sexual act to be steadfast and unwavering. The Statement of Claim would not have affected the result of the hearing.

The ERC found that the Appellant had essentially made a number of requests to re-weigh the evidence. However, none of the Appellant’s arguments pointed to a palpable and overriding error. The Board was owed significant deference on its review of findings of fact and the credibility of witnesses. The Board did not err in its findings of fact or assessment of the principal witnesses’ credibility. Therefore, there was no reviewable error.  

ERC Recommendations: The ERC recommended that the Commissioner dismiss the appeal and confirms the Board’s decision.

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

The Appellant appeals the Board’s Decision that the allegations of disgraceful conduct against him were established. The allegations relate to the events that occurred regarding the arrest and release of the Complainant. After regaining her sobriety at the station, the Appellant drove the Complainant home, pulling over and coercing her to perform a sexual act on him. He proceeded to take her home but failed to ensure the Complainant’s safety when he dropped her off on the highway instead of in front of her home. The Board determined that the Appellant’s testimony was not credible with respect to his intent to drive the Complainant home.

The Appellant sought to submit medical documents from his treating physicians as a request to admit fresh evidence. The ERC determined that the Appellant’s medical evidence does not satisfy the due diligence requirement of the Palmer test. The Appellant maintains that the reason why the evidence had not been submitted to the Board at the time of the hearing was his counsel not knowing that the doctor could testify regarding the Appellant’s condition.

The ERC found that the Appellant’s arguments amount to an attempt to reweigh the evidence in order to come to a conclusion that favours his position instead of presenting an argument that would affect the overall finding of the Board.

I agree with the ERC. I do not see any signs of a palpable or overriding error on the part of the Board that would justify my intervention to reweigh the evidence and question the Complainant’s credibility. I will consequently not undertake a redetermination of the evidence. I owe a high degree of deference to the Board, particularly as it pertains to questions of fact. The Appellant has failed to demonstrate that intervention is warranted. The appeal is dismissed.

G-741 Relocation (summarized in the October – December 2021 Communiqué)

The RCMP transferred the Grievor from one location (Old Post) to another location (New Post). However, the RCMP mistakenly checked off the “cost move” box on his Transfer Notice. The Grievor opted to remain in his home at the Old Post and commute to the New Post. The RCMP soon realized its error; the Grievor’s transfer could not be a cost move under the Integrated Relocation Program policy (IRP), since none of the conditions for a cost move were met. The RCMP in turn notified the Grievor that his transfer would be reissued as a no-cost move.

The Grievor grieved the decision to deny him a cost move. However, he mainly alleged that he was not afforded Crown housing at the Old Post and, therefore, that he had higher costs and fewer benefits than his peers in Crown housing. A Level I Adjudicator denied the grievance on its merits, finding that the Grievor had not met any of the IRP requirements for receiving a cost move. The Grievor resubmitted his grievance at Level II. He reiterated that he never had an opportunity to live in government-owned housing, and be treated like his peers, at the Old Post.

ERC Findings: The ERC found that the scope of the grievance was limited to the decision to deny the Grievor a cost move. While the Grievor argued that no Crown housing was assigned to him at the Old Post and that this was unfair, there was no objectively documented or mutually identified decision, act or omission regarding that issue in the record. In fact, the Grievor had housing-related concerns as early as four years prior to filing his grievance, but never submitted a grievance in relation to them. The issue fell outside the four corners of the present grievance.

The ERC noted that, under the IRP, a relocation could be funded by the Crown if the distance between the old and new places of duty was at least 40 km, and the distance between the residence at origin and the new place of duty was at least 40 km. The Grievor did not meet either condition. The IRP also provided that a relocation could be funded by the Crown where: there was a documented requirement for the member to relocate and live near the new place of duty, and the relocation was authorized for operational reasons; or the member had to vacate Crown-owned housing. The Grievor did not satisfy any of those conditions either.

The ERC observed that, years before lodging his grievance, the Grievor filed a written complaint about his perceived inequitable housing situation at the Old Post, but did not receive a response to it. The ERC also observed that, after he initiated his grievance, the Grievor presented a claim for “the difference I’ve paid in regards to my co-workers to live and work in the same community over the previous 4 years”. The ERC further observed that, although the complaint and claim did not fall within the ambit of this grievance, it remained open to the Commissioner to deal with them outside the grievance process if they had not been appropriately addressed.

The ERC apologized to the Grievor for the amount of time it took to process his file.

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 Director, Financial Policy, Corporate Management and Comptollership, that the Grievor’s transfer to his new post was not a “cost move.” 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 applicable policy does not entitle the Grievor to a cost move. The grievance is denied.

G-742 Travel / Private Accommodation Allowance (summarized in the October – December 2021 Communiqué)

The Grievor was deployed to an event. During his entire deployment, the Grievor was housed on a ship that had been leased by the RCMP.

Upon arriving, the Grievor was provided with a room where he spent his first night in single occupancy. The next day, another member arrived, which resulted in the Grievor spending the remaining 25 nights of his stay in double occupancy. 

The Grievor filed a grievance to challenge the Force’s decision to house him in double occupancy. He argued that the RCMP failed to adhere to the single-room accommodation standard as set out in the National Joint Council Travel Directive (NJCTD) and as a result, he was entitled to financial compensation in the form of a Private Accommodation Allowance (PAA).

ERC Findings: The ERC concluded that the Grievor may have been eligible to receive a PAA only if the lodging where he stayed could be found to be a “private non-commercial accommodation” (i.e. “private dwelling or non-commercial facilities where the traveller does not normally reside”). In order to determine whether the ship fell under the NJCTD definition of “private non-commercial accommodation”, the ERC applied the following test: an accommodation may be considered private and non-commercial to the extent that it retains a “private character” as a result of someone living in it. The ERC concluded that the Grievor did not reside in a private dwelling during his stay given that the ship or, more specifically, the room in which he stayed did not have a private character as it was not someone’s permanent residence. As a result, it was determined that the Grievor was not eligible for a PAA. 

The ERC also commented on the issue of financial compensation as a result of a substandard accommodation. It was noted that neither the NJCTD nor the RCMP Travel Directive provides a gateway for financial compensation as a result of a failure to meet a specific requirement or standard under policy and that financial reimbursement is only for reasonable expenses necessarily incurred.

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 deployed to event and spent several consecutive days aboard a ship in double occupancy. He claimed a private non-commercial accommodation allowance (PNAA) of $50 per night aboard the ship. He filed a grievance challenging the decision of the Royal Canadian Mounted Police (RCMP) to house him in a double room while he was deployed to the event. The Level I Adjudicator found that the ship could not be considered a private non-commercial accommodation and that the PNAA did not constitute compensation for unsuitable accommodation. The Commissioner accepts the RCMP External Review Committee’s finding that the grievance is without merit and denies the grievance.

G-743 Travel / Private Accommodation Allowance (summarized in the October – December 2021 Communiqué)

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

The Grievor sent the Officer in Charge (OIC) of the team several 1393 forms (expense claim for non-commercial accommodation) claiming an allowance of $50.00 for nights on board the ship over a certain period. This claim was denied by the OIC and, as a result, the Grievor filed a grievance.

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

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

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

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

ERC Recommendation: The ERC 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 parties were assigned to the Marine Security Enforcement Team at different times in 2010. The Grievors spent several consecutive days on the ship while working their respective shifts. After working on the ship, the Grievors filed a 1393 form to claim a non-commercial accommodation allowance of $50 for nights spent on board the ship. The Grievors each filed grievances disputing the decisions by the Officer in Charge of the Marine Security Enforcement Team to deny their claims for a private non-commercial accommodation allowance for the period during which they were assigned to a Coast Guard ship. The Level I Adjudicator found that the Coast Guard ship could not be considered a private non-commercial accommodation and that the PNAA was not an allowance for unsuitable accommodation. The Commissioner accepts the ERC’s finding, as well as the suggestion that the grievances have no merit. Accordingly, the grievances are denied.

G-744 Relocation / Standing (summarized in the October – December 2021 Communiqué)

The Grievor transferred to an isolated post in another division (new posting), and the RCMP stored his effects in his original location. The Grievor filed a business case proposing that the RCMP ship his effects to his property in a separate province (separate property). He felt this would be a positive move for both sides: the RCMP could save thousands of dollars in storage fees, while he could have his separate property furnished and later move there or near there. The RCMP denied his business case because there was no authority for approval and too many unknowns in the circumstances. The Grievor grieved the RCMP’s decision months after receiving it, in a separate proceeding (old grievance). The Level I Adjudicator, the ERC and the Commissioner all found that the old grievance was time-barred.

The Grievor shipped his effects to his separate property at a cost of roughly $12,000. Years later, the RCMP transferred him from his new posting to a post in a third division. He filed a new business case seeking a reimbursement of the money he had spent to transport his effects from his original location to his separate property. The RCMP denied that business case and the Grievor presented a grievance (new grievance). The Level I Adjudicator denied the new grievance on the basis that the Grievor lacked standing to submit it. She held that the same subject was already heard and decided in the old grievance.

ERC Findings: The ERC found that the Grievor had standing to present the new grievance. He satisfied the first four requirements of the standing test. Specifically, he was a member; he was personally prejudiced (i.e., financial prejudice); the prejudice was a result of a decision to deny his business case; and that decision was made in the administration of the affairs of the RCMP. The final requirement was that there be no other redress process available under the RCMP Act, the 1988 Regulations or the Commissioner’s Standing Orders. The ERC and the Commissioner had previously found that this requirement would not be satisfied where a member was grieving the very same subject that the member already grieved in another RCMP grievance.

However, the Grievor was not grieving the same thing he grieved in the old grievance. In the old grievance, his request for the shipment of his effects to his separate property was principally based on a business case that was grounded on speculation involving how long he would serve in his new posting and where he would transfer to afterwards. The new grievance is different in that he contested the RCMP’s refusal to reimburse the cost of shipping his effects from his original location to his separate property following the completion of his tenure in his new posting, and his confirmed transfer to the third division which was closer to his separate property. He raised a new question involving whether the RCMP must pay the expense of shipping his effects regardless of whether he already shipped them himself; a question he believed Isolated Posts policy answered in the affirmative. The ERC made no findings concerning the soundness or persuasiveness of that argument. It simply observed that the argument, and the facts underpinning it, gave rise to a different grievance than the old grievance.

ERC Recommendations: The ERC recommended that the grievance be allowed. In light of the inordinate passage of time in this grievance, the ERC further recommended that the matter proceed on its merits directly before the Commissioner.

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 claim for reimbursement of certain moving costs. The level I adjudicator found that the Grievor lacked standing as he had other redress available to him, namely, a previous grievance filed in 2008 arising from the same circumstances. The RCMP External Review Committee recommended that the grievance be allowed on the basis that the Grievor demonstrated he had standing by distinguishing this grievance from the one he filed in 2008. The Commissioner agreed that the Grievor has standing and given the passage of time directed the Parties to provide submissions on the merits for a final decision at level II.

G-745 Travel / Private Accommodation Allowance (summarized in the October – December 2021 Communiqué)

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

The Grievor sent the Officer in Charge (OIC) of the team several 1393 forms (expense claim for non-commercial accommodation) claiming an allowance of $50.00 for nights on board the ship over a certain period. This claim was denied by the OIC and, as a result, the Grievor filed a grievance.

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

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

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

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

ERC Recommendation: The ERC 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 parties were assigned to a Team at different times in 2010. The Grievors spent several consecutive days on the ship while working their respective shifts. After working on the ship, the Grievors filed a 1393 form to claim a non-commercial accommodation allowance of $50 for nights spent on board the ship. The Grievors each filed grievances disputing the decisions by the Officer in Charge of the Team to deny their claims for a private non-commercial accommodation allowance for the period during which they were assigned to a Coast Guard ship. The Level I Adjudicator found that the Coast Guard ship could not be considered a private non-commercial accommodation and that the PNAA was not an allowance for unsuitable accommodation. The Commissioner accepts the ERC’s finding, as well as the suggestion that the grievances have no merit. Accordingly, the grievances are denied.

G-746 Travel / Private Accommodation Allowance (summarized in the October – December 2021 Communiqué)

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

The Grievor sent the Officer in Charge (OIC) a 1393 form (expense claim for non-commercial accommodation) claiming an allowance of $50.00 for nights on board the ship over a certain period. This claim was denied by the OIC and, as a result, the Grievor filed a grievance.

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

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

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

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

ERC Recommendation: The ERC 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 parties were assigned to a Team at different times in 2010. The Grievors spent several consecutive days on the ship while working their respective shifts. After working on the ship, the Grievors filed a 1393 form to claim a non-commercial accommodation allowance of $50 for nights spent on board the ship. The Grievors each filed grievances disputing the decisions by the Officer in Charge of the Team to deny their claims for a private non-commercial accommodation allowance for the period during which they were assigned to a Coast Guard ship. The Level I Adjudicator found that the Coast Guard ship could not be considered a private non-commercial accommodation and that the PNAA was not an allowance for unsuitable accommodation. The Commissioner accepts the ERC’s finding, as well as the suggestion that the grievances have no merit. Accordingly, the grievances are denied.

G-747 Relocation (summarized in the October – December 2021 Communiqué)

The Grievor's two relatives financially helped the Grievor buy a home at his post (home). The Grievor's relatives’ names were on the title and mortgage of the home. The Grievor's name was not. The RCMP later transferred the Grievor to another post. Upon consultation with the Relocation Contractor, the Grievor learned that he would be considered a renter instead of a homeowner, given that his name was not on the title or mortgage of the home. As a result, he would not be reimbursed home sale benefits that may otherwise have been payable to him under the Integrated Relocation Program policy (IRP).

The Grievor presented a business case in which he asked to be deemed a homeowner under the IRP, and to be approved for reimbursements of home sale benefits. He indicated that it would not have been possible for him to obtain a mortgage on the home without financial help from his relatives. He attached a written and signed declaration from those two relatives, whom he identified as "the co-owner" of the home, emphasizing that he had bought and carried the home on his own, and that he maintained "sole responsibility" for the home.

The RCMP denied the Grievor's request. It reasoned that he did not satisfy home ownership or co-ownership requirements under the IRP. The Grievor submitted a grievance, which the Level I Adjudicator denied on the merits. The Grievor then resubmitted his grievance at Level II.

ERC Findings: The ERC found that the Grievor had not satisfied a key requirement set forth in the co-ownership provisions of the IRP, namely, that he "co-owns" his home. He therefore could not be deemed an owner or co-owner of the home, or be reimbursed home sale expenses that may otherwise have been payable as part of his relocation. The Grievor argued that the relatives' declaration proved that they were "co-owner(s)" of the home with him, and that his percentage of ownership was 100%. The ERC disagreed. The Grievor did not own any portion of the home because his name was not on the title or the mortgage. The ERC accepted that the Grievor's relatives signed a declaration attesting that he paid the down payment, closing fees, taxes, mortgage and insurance on the home. It also acknowledged their declaration that the Grievor had "sole responsibility" for the home. However, those declarations did not show that the Grievor owned a "legal share" of the home. Carrying and having "sole responsibility" for a home is not the same thing as owning a legal share of a home. As a result, the Grievor had not met a principal condition of the IRP, and could not be deemed a co-owner.

The ERC expressed respect for the fact that, like the Grievor, many members of the RCMP use resourceful means to buy homes. However, those members cannot be considered co-owners of their homes, and receive home sale benefits under the IRP, unless they satisfy the requirements of an applicable co-ownership provision of that policy. Otherwise, the concepts of ownership and title, as contemplated in co-ownership provisions, would have little meaning.

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 the Respondent’s decision denying his request for coverage of expenses under the Integrated Relocation Program (IRP) relating to the residence, legally owned by relatives, which he occupied prior to his transfer. The Grievor argued that he was the owner by way of trust, as he paid all costs relating to the property, including the mortgage, insurance and taxes, occupied it, and his family had only assisted him. The Grievor produced a Declaration signed by himself and his relatives stating that the latter were only involved to financially assist the Grievor. The Respondent denied the expense since the Grievor was not on the legal title to the property, and the relatives providing assistance did not consist of his spouse or parent, and deemed him a renter, determining he did not meet the IRP’s criteria for reimbursement to homeowners. The Level I Adjudicator denied the grievance on the merits. At Level II, the grievance was referred to the RCMP External Review Committee (ERC), and the Chair recommended that the grievance be denied as it was clear that the Grievor did not qualify based on the provisions of the IRP. The Commissioner agreed with the ERC recommendation and dismissed the grievance.