Communiqué - October to December 2021

Between October and December 2021, the RCMP External Review Committee (ERC) issued the following 20 findings and recommendations:

C-052 – Conduct Authority Decision

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 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-053 – Conduct Board Decision

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

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

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

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

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

C-054 – Conduct Board Decision

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

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

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

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

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

C-055 – Conduct Board Decision

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 recommends that the appeal be dismissed.

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 recommends 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.

NC-081 – Stoppage of Pay and Allowances

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 recommends 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.

NC-082 – Medical Discharge

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.

NC-083 – Harassment / Time Limits

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 recommends 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.

NC-084 – Harassment

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 recommends that the Commissioner dismiss the appeal.

NC-085 – Harassment

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

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

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

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

D-138 – Adjudication Board Decision

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 off Ms. X 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 recommends that the Commissioner dismiss the appeal and confirms the Board's decision.

G-739 – Relocation

The Grievor grieved the Respondent's refusal to grant him an extension of time to sell his house and receive relocation benefits following his retirement. Under the relevant policy, the Grievor had two years from the date of his retirement to sell his house, with the possibility of a one-year extension in exceptional circumstances.

In his Level I grievance, the Grievor argued that his request for an extension of time was justified because the real estate market amounted to an economic situation that he had not anticipated and over which he had no control. He explained that the economy in the region where he lived was precarious, that he had put a lot of effort into selling his house and that despite this, he had been unable to sell it. According to the Grievor, the Respondent did not take these circumstances, which were beyond his control, into consideration when refusing to grant an extension of the applicable time limit. A Level I Adjudicator denied the grievance.

At Level II, the Grievor contends that the Level I Adjudicator denied his grievance based primarily on the fact that he took several months to put his house up for sale. The Grievor submits that the Adjudicator failed to rule on the main ground of his grievance, which was the local economy and the very precarious market that were the primary reasons preventing him from selling his house.

ERC Findings: The ERC found that the depressed market associated with a decline in employment in the region where the Grievor lived, along with two purchase offers made to the Grievor that were unsuccessful, constituted a combination of exceptional circumstances. These circumstances justified an extension of the applicable time limit.

ERC Recommendation: The ERC recommended that the grievance be allowed and that the Commissioner order a review of the Grievor's file to determine the benefits that the Grievor is entitled to in accordance with the relevant policy.

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

[Translation]

The Grievor is a retired member who grieved the denial of an extension of time to sell his house in order to receive relocation benefits following his retirement. In denying the grievance at Level I, the Adjudicator found that the reasons for the Grievor's request did not fall within the threshold of what is considered exceptional circumstances in the policy. The matter was referred to the RCMP External Review Committee (ERC), which recommended that the grievance be allowed on the basis that the Respondent had misinterpreted the definition of "exceptional circumstances" in the policy. The Commissioner agreed with the ERC and accepted its recommendation, as the reasons were sufficient to meet the definition of exceptional circumstances.

G-740 – Relocation

The Grievor lived in a city in “X” Division with his spouse, who was also a member of the RCMP. The RCMP granted his spouse's request for a Crown-funded preretirement move. As a result, the Grievor and his spouse moved to a town, as a “member couple”. The Grievor's spouse soon retired from the RCMP. Subsequently, the couple separated. The Grievor continued to serve, and took the title to what had been the couple's home in the town. About two years later, the Grievor sought his own Crown-funded retirement move. The Policy Center responded that the Integrated Relocation Program Policy (IRP) did not permit such a move. The Policy Center noted that a member could take only one Crown-funded retirement or preretirement move, and that the Grievor had already taken a Crown-funded preretirement move with his then spouse.

The Grievor filed a Level I grievance, which was denied on its merits. He then resubmitted his grievance at Level II. He principally argued that that he should no longer be limited by the term “member couple”, regardless of whether he took a member couple preretirement move before his separation. He reasoned that he was a regular member and ought to be treated as one.

ERC Findings: The ERC found that the grievance should be denied on the basis that the IRP did not generally permit a member to take more than one Crown-funded pre-retirement or retirement relocation. There were at least two reasons for this. First, the point of such a move was to help a member who had to leave their “original home community” return home, wherever the member decided home was (subsection 13.04.1(b)). The Grievor and his spouse decided that home was the town they relocated to at Crown expense. The Grievor could not later move “home” for a second time at Crown expense. Second, if the Force permitted members to take multiple paid retirement or preretirement relocations, then the cost to the Crown would not be reasonable (subsection 1.05.1(d)). The IRP carved out one exception to this rule. A member could have a second Crown-funded retirement move if the member was re-engaged for service post-retirement, and required to move for operational reasons (section 13.04.9). However, the Grievor did not fall within that clear and narrow exception. There were no other exceptions.

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 Departmental National Coordinator (DNC), Director of Financial Policy, Corporate Management and Comptrollership, to deny the Grievor's request for a Crown-funded retirement relocation. At Level I, the Adjudicator denied the grievance, finding that the Grievor had not established 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 establish his entitlement to a second Crown-funded retirement relocation. The ERC found that the Grievor had already received relocation benefits, along with his then-member spouse. The Commissioner agreed and dismissed the grievance.

G-741 – Relocation

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 recommends that the grievance be denied.

G-742 – Private Accommodation Allowance

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 recommends that the Commissioner deny the grievance.

G-743 – Private Accommodation Allowance

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 recommends that the Commissioner deny the grievance.

G-744 – Relocation / Standing

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

G-745 – Private Accommodation Allowance

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 recommends that the Commissioner deny the grievance.

G-746 – Private Accommodation Allowance

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 Directivenor the RCMP Travel Directiveprovided for an allowance for unsuitable accommodation.

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

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

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

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

G-747 – Relocation

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.

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 recommends that the grievance be denied.

The Commissioner 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-048 Conduct Board Decision (summarized in the April – June 2021 Communiqué)

The Force (Appellant) appealed the Conduct Board's (Board) sanction decision, seeking a direction for the Respondent to resign, or his dismissal from the Force. The Respondent damaged a police vehicle, lied to his supervisor regarding his whereabouts, left his shift early, and removed a supervisor's comments from two files. While the Force was seeking the Respondent's dismissal, the Board found that all five allegations were established and imposed a reprimand, continued professional medical counselling, and a forfeiture of 10 days' pay. At the time of the incidents, the Respondent was suffering from undiagnosed, work-related, mental illnesses.

As a preliminary issue in the appeal, the Respondent challenged the retroactive extension of the one-year time limit to initiate a conduct hearing, which had been granted to the Appellant by a Director General (DG).

Regarding the merits of the appeal, the Appellant argued that the Board breached procedural fairness by refusing to allow him to call evidence regarding the damage to the police vehicle. He argued that the Board erred in accepting late evidence from the Respondent and in refusing to allow the Appellant an adjournment to respond to the late evidence. Lastly, the Appellant argued that the Board provided inadequate reasons regarding several issues.

ERC Findings: Regarding the preliminary issue, the ERC found that the DG did not err in applying the Pentney test for an extension of time. His retroactive extension of the one-year time limit to initiate a conduct hearing was therefore not clearly unreasonable.

Regarding the merits of the appeal, the ERC found that the Board's refusal to hear evidence regarding the damage to the police vehicle did not breach procedural fairness. The ERC found that a decision-maker can limit the scope of evidence by stipulating certain points that are not in dispute. It was unnecessary for the Board to allow the Appellant to present the proposed evidence because the Board had already found that the particular was established.

The ERC found that the Board did not err in accepting the late evidence from the Respondent. The Commissioner's Standing Orders (Conduct) provides the Board great latitude in directing the hearing, as long as it is in accordance with the principles of procedural fairness. The Board did not breach procedural fairness because the Appellant had ample, timely, expert evidence regarding the Respondent's mental illness to allow the Appellant to prepare for the hearing, present any rebuttal evidence, and be fully heard on this issue. Lastly, the Board provided the Appellant the opportunity to cross-examine the witnesses and indicated that if anything was outstanding after the cross-examination that still required investigation, the Board would grant an adjournment at that time.

The ERC found that a decision-maker is not required to make an explicit finding in his or her decision with respect to every element of the case and every argument made. Further, where certain issues raised by the Appellant were addressed by the Board during the hearing, the ERC found it unnecessary for the Board to repeat his rationale in the written decision. This included the Board's refusal to allow the Appellant to call evidence regarding an allegation that had already been found to be established by the Board, and the Board's refusal to allow the Appellant an adjournment to respond to late evidence.

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

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

The Commanding Officer, “X” Division (Appellant), challenges the conduct measures imposed by the Conduct Board (Board). The Appellant maintained that the conduct measures are insufficient in light of the allegations and argued that the decision was reached in a manner that contravened the applicable principles of procedural fairness was based on an error in law, and is clearly unreasonable .

The Board imposed a reprimand, continued medical counselling, and forfeiture of 10 days' pay. Instead, the Appellant is seeking a direction for the Respondent to resign within 14 days, or otherwise be dismissed from the Force.

I agree with the ERC finding that “the Appellant did not establish that the [Board] rendered a clearly unreasonable decision because of inadequate reasons”.

The Board satisfied all requirements in determining the appropriate sanctions to be imposed by: delineating the range of sanctions available; stating the mitigating and aggravating factors; and, providing a rational explanation for imposing conduct measures outside of the usual range. In sum, the Board's decision must stand.

The Appellant has not persuaded me that the Board made any reviewable errors during the hearing or in imposing conduct measures. The appeal is dismissed and the conduct measures imposed by the Board are confirmed.

NC-074 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints (OCHC). In the complaint, the Appellant alleges that, as he was approaching retirement, the Alleged Harasser initiated his transfer to another section to a position inferior to his qualifications. The OCHC reviewer recommended that a limited investigation be mandated. However, the Respondent did not mandate an investigation and rendered his decision concluding that the Appellant's transfer was not harassment and the complaint should have been handled within a grievance process.

On appeal, the Appellant alleged that a thorough investigation was not conducted: neither he nor the Alleged Harasser nor the potential witness were interviewed. He submits that an investigation would have enabled the Respondent to have a more complete understanding of the facts of the case.

ERC Findings: The ERC found that the Respondent's decision not to mandate an investigation was clearly unreasonable because the facts before the Respondent did not provide a complete version of what had happened. Interviews with the Appellant, the Alleged Harasser and a witness, as well as documentary evidence, might have enabled the Respondent to better assess the allegations of harassment.

ERC Recommendation: The ERC recommended that the appeal be allowed and that the matter be remitted to a new decision-maker for a new decision with the direction to mandate an investigation into the Appellant's complaint, which should include interviews with the Appellant, the Alleged Harasser and the potential witness.

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

[Translation]

While assigned to “X” Division, the Appellant filed a harassment complaint against the Officer in Charge of the unit in which he was working at the time. The Appellant alleged that the Alleged Harasser orchestrated his transfer to a position with requirements below his skills and experience as he was approaching retirement.

The Respondent did not mandate an investigation and dismissed the complaint, finding that the alleged behaviour did not amount to harassment of the Appellant.

The Appellant felt that the Respondent's decision was contrary to applicable principles of procedural fairness and clearly unreasonable and appealed on the ground that the Respondent failed to mandate an investigation to gather the evidence.

The file was referred to the ERC. The ERC first determined that the documents submitted by the Appellant on appeal were admissible. After reviewing the grounds of appeal, the ERC found that the Respondent should have mandated an investigation since some allegations made by the Appellant needed to be verified. The ERC found that the failure to mandate an investigation resulted in the Respondent not obtaining relevant information, making the decision clearly unreasonable. The ERC therefore recommended that the appeal be allowed.

The Adjudicator found that the Respondent should indeed have pursued an investigation to obtain a minimum amount of information and that failing to do so meant that the decision as to whether harassment had occurred on a balance of probabilities was not fully informed. The Adjudicator determined that this omission rendered the decision clearly unreasonable and allowed the appeal. The Adjudicator also found that the documents submitted by the Appellant on appeal were admissible.

Given the retirement of the Alleged Harasser and the complainant, and the time that has elapsed since the complaint was filed, the Adjudicator offers the complainant an apology on behalf of the RCMP for the failure to properly investigate and resolve his harassment complaint.

NC-075 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant was found guilty of a crime and he received a conditional discharge. The same incident led to conduct proceedings, which resulted in conduct measures being imposed on the Appellant. After he returned to work at his section, the Appellant decided to seek a transfer. He accepted a secondment at another section. The Alleged Harasser later removed the Appellant from his secondment.

The Appellant lodged a harassment complaint against the Alleged Harasser's decision to remove him from his secondment. He alleged that the Alleged Harasser's conduct constituted harassment and discrimination based on his conditional discharge. He also contended that the Alleged Harasser perpetuated a smear campaign against him. The Respondent found no harassment. He determined that the Alleged Harasser's decision was based on the Appellant's past discipline, and on the fact that the Appellant was primarily employed with another section.

The Appellant appealed the decision. He submitted that the Respondent failed to consider whether the Appellant had been subject to harassment and discrimination under the Canadian Human Rights Act (CHRA). He further submitted that, in spite of the justifications provided by the Alleged Harasser, the Appellant could have been employed at a different position at the same section instead of being removed from his secondment.

ERC Findings: The ERC concluded that the Respondent's decision was clearly unreasonable. The ERC found that the Respondent failed to properly address the Appellant's substantive arguments regarding harassment within the meaning of the CHRA. The ERC also found that, in light of its recommendations to remit the matter for a further investigation and a new decision, it was unnecessary to consider the Appellant's argument that the Respondent failed to address the Appellant's qualifications for a different position.

ERC Recommendations: The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker with a direction to assess whether it is possible to obtain, through a supplementary investigation, information relevant to whether the Alleged Harasser's decisions were based in part on the Appellant's criminal record. The ERC further recommended that once such an investigation is completed, the decision-maker be directed to render a new decision which properly considers whether harassment had occurred pursuant to the CHRA.

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

In 2010, the Police Service arrested the Appellant at his place of work for a domestic-related offence. He subsequently pled guilty to an unspecified charge and received a conditional discharge. In 2013, he returned to work at his home unit, but felt ostracized by his colleagues and unsuccessfully sought a transfer. In January 2015, after being off-duty sick for approximately one month, the Appellant began a gradual return to work (GRTW). This arrangement was administered by the GRTW coordinator, but without the knowledge of either division’s staffing unit. In April 2015, the Administration and a Personnel Officer for a Division (the Alleged Harasser) learned of the GRTW arrangement. As a result, the Appellant was informed that he could no longer work in that division due to, in part, his discipline record and an agreement.

Following his removal from a Division, the Appellant filed a Form 3919 – Harassment Complaint naming several respondents. This appeal relates to harassment complaint ACMT [###]. The Appellant detailed incidents that allegedly took place between April 2015 and September 2015. He claimed that with his removal from a Division, he was discriminated against contrary to the Canadian Human Rights Act [CHRA], on the basis of a criminal conviction for which a pardon was granted, equating his conditional discharge to a record suspension.

A full investigation was mandated and eleven witnesses were interviewed, including the Alleged Harasser and the Appellant. The Respondent found that there was sufficient information to determine that the Alleged Harasser’s behaviour did not meet the definition of harassment. However, the Respondent did not conduct a CHRA analysis.

On February 28, 2017, the Appellant received the Respondent’s Record of Decision (RoD) and on March 7, 2017, he presented this appeal on the grounds that the decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law, and is clearly unreasonable. He asserted that the Respondent failed to consider the discrimination aspect of his complaint or his qualifications for the job for which he was removed.

The RCMP External Review Committee (ERC) agreed with the Appellant that the Respondent was required to conduct a CHRA analysis and in omitting to do so, the Respondent left a gap in the chain of analysis, rendering the decision clearly unreasonable. Consequently, the ERC recommended a supplementary investigation and for a new decision maker to render a new decision. The ERC did not consider whether a CHRA analysis would have changed the outcome.

The adjudicator determined that a prima facie case of discrimination was not established as the Appellant’s removal from a Division was not based on a protected characteristic. The adjudicator concluded the sensitive nature of the jobs within the Division, a member’s prior misconduct, if disclosed, could pose a serious risk to public confidence in the Force. In accordance with paragraph 47(1)(a) of the Commissioner’s Standing Orders (Grievances and Appeals), the adjudicator found that the Respondent’s decision is not clearly unreasonable and dismissed the appeal.

NC-077 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant is a Corporal with many years of service in the RCMP. For the majority of his career, he pursued part-time education, outside his work hours. In September 2014, his manager at the time authorized him to have a compressed work schedule to allow him to finish his studies. This accommodation allowed the Appellant to complete his work weeks in four days instead of five. Furthermore, overtime hours had regularly been approved for him.

In September 2016, the Appellant had a new manager (the Alleged Harasser). Upon his arrival, the Alleged Harasser told the Appellant that he had to return to a regular work schedule, a “5-2” schedule. The Alleged Harasser also withdrew the possibility of the Appellant working overtime.

On December 3, 2016, the Appellant filed a harassment complaint against the Alleged Harasser that included five allegations. The allegations concerned events that took place from September to November 2016. The Respondent found that the complaint should have been the subject of a grievance and that the harassment complaint resolution process was therefore not appropriate in the circumstances. Consequently, the complaint was dismissed without an investigation being mandated.

The Appellant appealed the Respondent's decision, alleging in particular that the latter erred by failing to consider all of the allegations contained in the complaint and by not mandating an investigation.

ERC Findings: The ERC found that the Respondent's decision not to mandate an investigation was clearly unreasonable, as the evidence on file was insufficient to render a decision. The ERC also found that the failure to consider all of the allegations contained in the complaint constituted an error affecting the reasonableness of the decision.

ERC Recommendations: The ERC recommended that the appeal be allowed and that the matter be remitted to a new decision-maker for a new decision.

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

[Translation]

While assigned to “X” Division, the Appellant filed a harassment complaint against his supervisor in which he claimed that the Alleged Harasser treated him differently and unfairly by no longer allowing him to work overtime and no longer allowing him to work 10-hour shifts and a rotation of four days on/three days off. In addition, the Alleged Harasser refused to accommodate him in his work hours to enable him to complete his studies. The Appellant reported that he was being treated differently from his colleagues and that this was causing him stress and preventing him from completing his studies.

The Respondent did not mandate an investigation and dismissed the complaint, being of the opinion that the alleged behaviour did not amount to harassment of the Appellant and that it was an exercise of management rights. The Respondent stated that the Appellant should have filed a grievance instead because that was the appropriate process for his type of complaint.

Believing that the Respondent's decision contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable, the Appellant appealed the matter.

The case was referred to the ERC. First, the ERC found that the documents submitted by the Appellant in his appeal were inadmissible because some of them were available in the first instance when the harassment complaint was filed, while others were not relevant to the appeal. After reviewing the grounds of appeal, the ERC found that it was erroneous to dismiss the complaint on the ground that it should have been the subject of a grievance because some of its components denounced behaviour that may constitute harassment. In addition, the ERC noted that the Respondent's decision failed to consider two of the allegations made by the Appellant. The ERC also observed that the Office for the Coordination of Harassment Complaints and the Respondent did not appropriately follow up on the complaint and did not offer the Appellant the opportunity to add documents to his complaint. Lastly, the ERC found that the Respondent should have mandated an investigation as certain allegations by the Appellant needed to be verified. The ERC therefore recommended that the appeal be allowed.

Contrary to the ERC, the Final Adjudicator determined that the documents submitted by the Appellant on appeal were admissible. The Adjudicator also determined that the Respondent had indeed failed to consider two of the allegations made by the Appellant. The Adjudicator found that, as a result, the Respondent's assessment of the facts in question, in light of the definition of harassment, was incomplete. The Adjudicator found that this failure rendered the Respondent's decision clearly unreasonable and therefore allowed the appeal.

Considering the Alleged Harasser and the Appellant have retired and considering the time that has elapsed since the complaint was filed, the Adjudicator offered the Appellant an apology on behalf of the RCMP for the fact that his harassment complaint had not been subject to a proper decision-making process.

NC-078 Harassment (summarized in the July – September 2021 Communiqué)

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints (OCHC). In the complaint, the Appellant alleged that he was harassed by being excluded from certain emails, which he should have received, and meetings, which he should have attended. The OCHC reviewer recommended that a limited investigation be mandated. However, the Respondent did not mandate an investigation and made its decision finding that the incidents described by the Appellant did not meet the definition of harassment.

On appeal, the Appellant argues that the Respondent should have investigated his allegations. He also alleges that the Respondent broke the chain of incidents rather than taking into account all of the incidents that demonstrated persistent behaviour by the Alleged Harasser. He also argues that the Respondent was not impartial because the Alleged Harasser reported to the Respondent.

ERC Findings: The ERC found that the Respondent's decision not to mandate an investigation was clearly unreasonable, as the facts available to the Respondent did not allow him to get a complete picture of what had happened. Interviewing the Appellant, the Alleged Harasser and the potential witnesses could have allowed the Respondent to better assess the allegations of harassment.

ERC Recommendations: The ERC recommended that the appeal be allowed and that the matter be remitted to a new decision-maker for a new decision with the directive to mandate an investigation of the Appellant's complaint, which should include interviewing the Appellant, the Alleged Harasser and the potential witnesses.

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

[Translation]

While assigned to “[X]” Division, the Appellant filed a harassment complaint against the Officer in Charge of the group to which the Appellant's service unit reported at the time. The Appellant alleged that the Alleged Harasser excluded him deliberately and without reasonable cause from training opportunities and important communications and discussions regarding investigations, thereby dissociating him from the management team.

The Respondent did not mandate an investigation and dismissed the complaint, finding that the alleged behaviour did not amount to harassment of the Appellant.

The Appellant appealed on the grounds that the Respondent's decision contravened the applicable principles of procedural fairness and was clearly unreasonable. He argued that the Respondent was not impartial, failed to make an overall assessment by dissecting the chain of events and erred in failing to mandate an investigation to gather the evidence.

The file was referred to the RCMP External Review Committee (ERC). After reviewing the grounds of appeal, the ERC concluded that the Respondent should have mandated an investigation to fully understand the situation. The ERC determined that the failure to mandate an investigation meant that the Respondent did not have relevant information, and therefore could not make an informed decision. According to the ERC, this rendered the Respondent's decision clearly unreasonable. The ERC therefore recommended that the appeal be allowed.

The Adjudicator found that the Respondent should indeed have pursued an investigation to obtain a minimum amount of information and that failing to do so meant that the decision as to whether harassment had occurred was not fully informed. The Adjudicator determined that this rendered the decision clearly unreasonable and allowed the appeal.

Given the retirement of the Alleged Harasser, and the time that has elapsed since the complaint was filed, the Adjudicator offers the Appellant an apology on behalf of the RCMP for the failure to properly investigate and resolve his harassment complaint.

G-737 Isolated Post (summarized in the July – September 2021 Communiqué)

The Grievor resided at an isolated post. His pregnant spouse went into labour and she was transported to a hospital. The Grievor followed by car the next day. Due to medical complications, the Grievor's newborn child had to remain at the hospital for several weeks. Over this period, the Grievor completed three round trips between his isolated post and the location of the hospital. The Grievor always travelled with his second child.

After his family returned to the isolated post, the Grievor submitted a travel expense claim, which included hotel costs, mileage, meals and parking expenses. The Respondent approved the claim for a reduced amount. The Respondent refused to cover the Grievor's meals, parking and mileage and the higher kilometric rate. The Grievor's claim was further reduced by a Financial Management Advisor, who concluded that the Grievor did not qualify as an escort because he did not escort his spouse to the hospital.

The Grievor submitted a grievance, requesting to be reimbursed the full amount he had originally claimed. The Grievor argued that all of his expenses were approved by his Human Resources Officer (HRO). Furthermore, the Grievor believed that he was entitled to full compensation under various policies, including the Isolated Posts and Government Housing Directive (IPGHD). The Respondent conceded that the Grievor was entitled to some compensation because of the HRO's preauthorization. However, the Respondent insisted that the Grievor could not claim meal expenses because he failed to submit meal receipts pursuant to the IPGHD. Furthermore, the Respondent contended that the Grievor was not entitled to be reimbursed at the higher kilometric rate because a portion of the trip could have been completed by public transit.

ERC Findings: The ERC recommends that the grievance be allowed. The ERC found that, contrary to the opinion of the Financial Management Advisor, the Grievor qualified as an escort because his trip was approved by the HRO. The ERC further found that the Grievor relied on the HRO's representations in good faith that meal receipts were not required. Therefore, the doctrine of estoppel applied to the RCMP's denial of the Grievor's claim for meal expenses. Finally, the ERC found that the Grievor could claim reimbursement at the higher kilometric rate pursuant to the IPGHD.

ERC Recommendations: The ERC recommended that the Commissioner allow the grievance and reimburse the Grievor for his trip as an escort, for his dependent's travel, for hotel accommodations, meals, incidentals and for mileage at the higher kilometric rate pursuant to the Grievor's original travel expense claim.

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 partial reimbursement of his non-elective medical travel expense claim, made under the Isolated Posts and Government Housing Directive (IPGHD), for expenses incurred when his wife went into early labour and required urgent hospitalization outside the region. He claimed, among other items, the higher kilometric rate for driving expenses, meals without receipts, and parking at his destination. The Level I Adjudicator denied the grievance, finding the Respondent correctly applied IPGHD policy, that the Grievor required receipts for meals, and parking was covered by the incidental allowance and since public transit was available, the lower kilometric rate must be applied. The ERC found that under IPGHD policy, the higher kilometric rate was restricted only when air service was available; that parking was allowed as a travelling expense and having relied upon a manager's representations, all meal expenses ought to be covered under the equitable doctrine of issue estoppel. The ERC recommended that the Commissioner allow the grievance. The Commissioner agreed and ordered the Grievor to be reimbursed the full amount of expenses originally claimed.

G-738 Relocation (summarized in the July – September 2021 Communiqué)

The Grievor relocated to a new post. His family and household effects (HHE) remained at his old post. His residence at the old post was marketed and unsold. After two months, the Grievor's family and HHE arrived at his new post.

The Grievor received Temporary Dual Residence Assistance (TDRA) or similar benefits for the initial two months which preceded the arrival of his family and HHE. After some time, the Grievor submitted an expense claim for an additional seven months of TDRA. The Respondent denied the expense claim on the basis that the Grievor had failed to obtain prior authorization for TDRA pursuant to section 6.02. of the Integrated Relocation Program (IRP).

The Grievor submitted a grievance, requesting that his TDRA claim be approved, and that he receive interest for the period between his claim submission and the resolution of his grievance. The Grievor argued that he did obtain preauthorization. The Grievor relied on authorizations in Form A22-A and on the fact that his new post Commanding Officer (CO) granted TDRA or similar benefits for the initial two months following the Grievor's relocation. The Grievor further submitted that he had fulfilled all requirements for TDRA under the IRP. The Respondent insisted that the Grievor never obtained preauthorization. The Respondent also argued that the Grievor's TDRA claim listed expenses that the Grievor was not entitled to under the IRP.

ERC Findings: The ERC found that the Grievor had not demonstrated that the three individuals listed in section 6.02.3. of the IRP provided prior approval for TDRA. Form A22-A only confirmed that the Grievor's relocation was authorized. It was insufficient to confirm the authorization for TDRA. The fact that the Grievor was reimbursed for the initial two months following his relocation only confirmed, at best, that the Grievor's new post CO authorized TDRA. It did not constitute authorization from the other two individuals listed in section 6.02.3. of the IRP.

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 to deny his request for Temporary Dual Residence Assistance (TDRA). The Level I Adjudicator dismissed the grievance. The ERC recommended that the grievance be denied on the basis that the Grievor did not demonstrate that he was approved for TDRA. The Commissioner agreed that the Grievor did not demonstrate that he received TDRA approval under the RCMP Integrated Relocation Program, and dismissed the grievance.