Communiqué - October to December 2022

Between October and December 2022, the RCMP External Review Committee (ERC) issued the following 22 Findings and Recommendations:

C-063 – Conduct Authority Decision

The Appellant principally appeals the Respondent’s decision to give him a conduct measure comprising a transfer to a larger post, at the discretion of Career Development and Resourcing.

The process that gave rise to this appeal unfolded as follows. The RCMP alleged that the Appellant committed discreditable conduct by pursuing a romantic relationship with a vulnerable person, contrary to section 7.1 of the Code of Conduct. After an investigation and a conduct meeting, the Respondent found the allegation to be established and ordered conduct measures. They included multi-day forfeitures of pay and leave, a reprimand, and the above-noted transfer. The Respondent explained why he imposed the transfer. The key reason was that the Appellant could no longer serve at his post, given that it was in a small community with which the RCMP’s relationship might otherwise be harmed beyond repair. The Respondent added that a transfer to a larger post would give the Appellant the best opportunity for continued success.

The Appellant believes the inclusion of a transfer makes his conduct measures too punitive. He raises several grounds of appeal. They boil down to two key positions: the decision to impose a transfer alongside the other conduct measures was rooted in bias; and is unreasonable.

ERC Findings: The ERC found that there was no reasonable apprehension of bias staining the Respondent’s decision to impose the conduct measures in general, and the transfer specifically. The Appellant did not supply any evidence to rebut the strong presumption that the Respondent decided the case impartially. The ERC further found that the Respondent’s decision did not give rise to any of the limited situations in which interfering with a conduct measure was appropriate. Rather, the Respondent’s decision to impose the conduct measures was supported by evidence in the record and/or consistent with relevant legal authorities. 

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

C-064 – Conduct Authority Decision

A Level III RCMP Conduct Authority (Respondent) found that Appellant had engaged in workplace harassment contrary to section 2.1 of the Code of Conduct. The Respondent imposed a financial penalty of 15 days and an ineligibility for promotion for one year. The Appellant appealed the decision and the conduct measures imposed by the Respondent.

The Appellant appealed the Respondent’s Decision on Allegations 2 and 3 on several grounds. The Appellant argued that the Respondent failed to explain his credibility findings or provide sufficient reasons in the decision. The Appellant argued that the Respondent erred in law by applying the wrong test for harassment to the facts. Finally, the Appellant asserted that if the actions of the Appellant were harassment, the Respondent’s imposition of conduct measures was clearly unreasonable.

ERC Findings: The ERC found that the Respondent did not sufficiently explain his findings on credibility and harassment and the decision was clearly unreasonable. The ERC further found that the Respondent’s decision did not properly assess whether the Appellant’s actions were harassment.

ERC Recommendations: The ERC recommends that the Commissioner allow the appeal and conduct a new assessment of the allegations. The ERC further recommends that the Commissioner find that Allegation 2 is established, but Allegation 3 is not. The ERC recommends seven days financial penalty and reprimand. 

NC-106 – Harassment

The Appellant filed a harassment complaint (Complaint). He asserted that the Alleged Harasser denied him overtime opportunities and said offensive things to him. The last alleged incident of harassment predated the Complaint by more than two years. The Appellant explained that there were extenuating circumstances that justified his late presentation of the Complaint. Namely, he said he raised concerns with superiors and others, but nobody helped him until it was too late.

The Respondent decided to dismiss the Complaint (Decision). He reasoned that the Appellant lodged the Complaint beyond the time limit specified in the RCMP Harassment Policy (Policy), which was within one year of the last alleged incident of harassment. He also reasoned that the Appellant’s choice to raise concerns with superiors outside the harassment complaint process was not an extenuating circumstance that prevented a timely submission of the Complaint. The Respondent noted that an extenuating circumstance was one over which someone had little or no control. In his view, the Appellant had ample time and opportunity to bring a timely complaint.

The Appellant appealed the Decision. He felt it was reached in a procedurally unfair manner. He also thought it was clearly unreasonable, for three reasons. First, the Respondent dismissed the Complaint on a technicality. Second, the Respondent rejected his reason for filing the Complaint late. Third, the Respondent failed to realize that the Alleged Harasser’s actions were harassing.

ERC Findings: The ERC found that the Appellant did not explain, and that it was otherwise unclear how the Decision was reached in a procedurally unfair manner. The Appellant was invited to, and did, set out in writing the extenuating circumstances that he believed prevented him from filing the Complaint on time. The Respondent considered the Appellant’s explanation, disagreed with it, and issued a Decision containing reasons in support of his conclusion. There is no evidence that the Respondent lacked objectivity or independence in so doing.

The ERC also found that the Decision was not clearly unreasonable. The Respondent provided rational lines of analysis in support of his conclusions that the Complaint was untimely, and that there was no reasonable justification for its late submission. He did this by applying the RCMP Policy to the facts before him, and by making findings that were consistent with the Policy, the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints), and an applicable RCMP Guidance Document. Having found that the Complaint was untimely, and that there were no extenuating circumstances, the Respondent came to the Decision. It was final. He no longer had authority to decide if the Alleged Harasser’s behaviours were harassing.

The ERC commented on the manner in which the Appellant’s superiors appeared to treat him. It was up to the Appellant to know and assert his rights under RCMP harassment authorities. However, if the superiors with whom he allegedly raised concerns of harassment did not direct him on how to address those concerns, then they disregarded a key obligation under the Policy.

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

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

The Appellant, a member of "X" Division, encountered issues with a constable who had authority to schedule overtime. As a result of these issues, the Appellant claimed that the constable stopped offering him overtime opportunities. The Appellant raised his concerns to his immediate supervisor and two superiors. Over a year later, the Appellant lodged harassment complaints against all four members (Alleged Harassers) alleging that the constable’s actions constituted harassment, and none of his superiors did anything to rectify the situation.

The Respondent issued four decisions concluding the harassment complaint process because the Appellant failed to file his complaints within the one-year time limits prescribed by the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints).

The Appellant presented four appeals disputing the Respondent’s decisions on the grounds that they contravened the applicable principles of procedural fairness and are clearly unreasonable. The appeals were subsequently referred to the ERC. The ERC determined that the Respondent provided a rational line of analysis to support the conclusion that the complaints were files outside the prescription period and that there were no exceptional circumstances that justified the late presentation. The ERC recommended that the appeal be denied.

After examining the facts, applicable policy, statutory provisions, and relevant jurisprudence, the Adjudicator agreed with the ERC recommendation and dismissed the appeals. 

NC-107 – Harassment

The Appellant filed a harassment complaint (Complaint). He mainly asserted that the Alleged Harasser continuously failed to help him deal with a member who was mistreating him. The last alleged incident of harassment predated the Complaint by almost two years. The Appellant explained that there were extenuating circumstances that justified the lateness of the Complaint. Namely, he said he raised concerns with superiors and others, but nobody helped him.

The Respondent decided to dismiss the Complaint (Decision). He reasoned that the Appellant lodged the Complaint beyond the time limit specified in the RCMP Harassment Policy (Policy), which was within one year of the last alleged incident of harassment. He also reasoned that the Appellant’s choice to raise concerns with superiors outside the harassment complaint process was not an extenuating circumstance that prevented a timely submission of the Complaint. The Respondent noted that an extenuating circumstance was one over which someone had little or no control. In his view, the Appellant had ample time and opportunity to bring a timely complaint.

The Appellant appealed the Decision. He felt it was reached in a procedurally unfair manner. He also thought it was clearly unreasonable, for three reasons. First, the Respondent dismissed the Complaint on a technicality. Second, the Respondent rejected his reason for filing the Complaint late. Third, the Respondent failed to realize that the Alleged Harasser’s actions were harassing.

ERC Findings: The ERC found that the Appellant did not explain, and that it was otherwise unclear how the Decision was reached in a procedurally unfair manner. The Appellant was invited to, and did, set out in writing the extenuating circumstances that he believed prevented him from filing the Complaint on time. The Respondent considered the Appellant’s explanation, disagreed with it, and issued a Decision containing reasons in support of his conclusion. There is no evidence that the Respondent lacked objectivity or independence in so doing.

The ERC also found that the Decision was not clearly unreasonable. The Respondent provided rational lines of analysis in support of his conclusions that the Complaint was untimely, and that there was no reasonable justification for its late submission. He did this by applying the RCMP Policy to the facts before him, and by making findings that were consistent with the Policy, the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints), and an applicable RCMP Guidance Document. Having found that the Complaint was untimely, and that there were no extenuating circumstances, the Respondent came to the Decision. It was final. He no longer had authority to decide if the Alleged Harasser’s behaviours were harassing.

The ERC commented on the manner in which the Appellant’s superiors appeared to treat him. It was up to the Appellant to know and assert his rights under RCMP harassment authorities. However, if the superiors with whom he allegedly raised concerns of harassment did not direct him on how to address those concerns, then they disregarded a key obligation under the Policy.

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

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

The Appellant, a member of "X" Division, encountered issues with a constable who had authority to schedule overtime. As a result of these issues, the Appellant claimed that the constable stopped offering him overtime opportunities. The Appellant raised his concerns to his immediate supervisor and two superiors. Over a year later, the Appellant lodged harassment complaints against all four members (Alleged Harassers) alleging that the constable’s actions constituted harassment, and none of his superiors did anything to rectify the situation.

The Respondent issued four decisions concluding the harassment complaint process because the Appellant failed to file his complaints within the one-year time limits prescribed by the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints).

The Appellant presented four appeals disputing the Respondent’s decisions on the grounds that they contravened the applicable principles of procedural fairness and are clearly unreasonable. The appeals were subsequently referred to the ERC. The ERC determined that the Respondent provided a rational line of analysis to support the conclusion that the complaints were files outside the prescription period and that there were no exceptional circumstances that justified the late presentation. The ERC recommended that the appeal be denied.

After examining the facts, applicable policy, statutory provisions, and relevant jurisprudence, the Adjudicator agreed with the ERC recommendation and dismissed the appeals. 

NC-108 – Harassment

The Appellant filed a harassment complaint (Complaint). He asserted that the Alleged Harasser did not help him deal with a member who was mistreating him. The last alleged incident of harassment predated the Complaint by almost two years. The Appellant explained that there were extenuating circumstances that justified his late presentation of the Complaint. Namely, he said he raised concerns with superiors, including the Alleged Harasser, but nobody helped him.

The Respondent decided to dismiss the Complaint (Decision). He reasoned that the Appellant lodged the Complaint beyond the time limit specified in the RCMP Harassment Policy (Policy), which was within one year of the last alleged incident of harassment. He also reasoned that the Appellant’s choice to raise concerns with superiors outside the harassment complaint process was not an extenuating circumstance that prevented a timely submission of the Complaint. The Respondent noted that an “extenuating circumstance” was one over which someone had little or no control. In his view, the Appellant had ample time and opportunity to bring a timely complaint. The Respondent added that, although the Appellant went off duty sick (ODS) at one point, he could have accessed resources on how to present a harassment complaint while he was ODS.

The Appellant appealed the Decision. He felt it was reached in a procedurally unfair manner. He also thought it was clearly unreasonable, for four reasons. First, the Respondent dismissed the Complaint on a technicality. Second, the Respondent rejected his reason for filing the Complaint late. Third, the Respondent wrongly believed the Appellant had access to resources that could have helped him submit a harassment complaint while he was ODS. Fourth, the Respondent failed to realize that the Alleged Harasser’s behaviours were harassing.

ERC Findings: The ERC found that the Appellant did not explain, and that it was otherwise unclear how the Decision was reached in a procedurally unfair manner. The Appellant was invited to, and did, set out in writing the extenuating circumstances that he believed prevented him from filing the Complaint on time. The Respondent considered the Appellant’s explanation, disagreed with it, and issued a Decision containing reasons in support of his conclusion. There is no evidence that the Respondent lacked objectivity or independence in so doing.

The ERC also found that the Decision was not clearly unreasonable. The Respondent provided rational lines of analysis in support of his conclusions that the Complaint was untimely, and that there was no reasonable justification for its late submission. He did this by applying the RCMP Policy to the facts before him, and by making findings that were consistent with the Policy, the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints) (CSO (Harassment)), and an applicable RCMP Guidance Document. The Respondent was correct in observing that there were helpful resources the Appellant could have consulted while he was ODS. One resource was the CSO (Harassment), which was publicly available. Another was the Harassment Policy, which was available on the RCMP Infoweb and through the RCMP Office for the Coordination of Harassment Complaints, a Member Workplace Representative, or even a colleague. Those two authorities made it clear that a harassment complaint had to be presented in accordance with the RCMP harassment complaint and investigation process. They also described how the process worked, and detailed a complainant’s rights and obligations. Having found that the Complaint was untimely, and that there were no extenuating circumstances, the Respondent came to the Decision. It was final. He no longer had authority to decide if the Alleged Harasser’s behaviours were harassing in nature.

The ERC commented on the manner in which the Appellant’s superiors appeared to treat him. It was up to the Appellant to know and assert his rights under RCMP harassment authorities. However, if the superiors with whom he allegedly raised concerns of harassment did not direct him on how to address those concerns, then they disregarded a key obligation under the Policy.

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

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

The Appellant, a member of "X" Division, encountered issues with a constable who had authority to schedule overtime. As a result of these issues, the Appellant claimed that the constable stopped offering him overtime opportunities. The Appellant raised his concerns to his immediate supervisor and two superiors. Over a year later, the Appellant lodged harassment complaints against all four members (Alleged Harassers) alleging that the constable’s actions constituted harassment, and none of his superiors did anything to rectify the situation.

The Respondent issued four decisions concluding the harassment complaint process because the Appellant failed to file his complaints within the one-year time limits prescribed by the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints).

The Appellant presented four appeals disputing the Respondent’s decisions on the grounds that they contravened the applicable principles of procedural fairness and are clearly unreasonable. The appeals were subsequently referred to the ERC. The ERC determined that the Respondent provided a rational line of analysis to support the conclusion that the complaints were files outside the prescription period and that there were no exceptional circumstances that justified the late presentation. The ERC recommended that the appeal be denied.

After examining the facts, applicable policy, statutory provisions, and relevant jurisprudence, the Adjudicator agreed with the ERC recommendation and dismissed the appeals. 

NC-109 – Harassment

The Appellant filed a harassment complaint (Complaint). He asserted that the Alleged Harasser improperly oversaw some of his overtime opportunities, scheduling, and leave. The last alleged incident of harassment predated the Complaint by almost two years. The Appellant explained that there were extenuating circumstances that justified his late presentation of the Complaint. Namely, he said he raised concerns with superiors and others, but nobody helped him.

The Respondent decided to dismiss the Complaint (Decision). He reasoned that the Appellant lodged the Complaint beyond the time limit specified in the RCMP Harassment Policy (Policy), which was within one year of the last alleged incident of harassment. He also reasoned that the Appellant’s choice to raise concerns with superiors outside the harassment complaint process was not an extenuating circumstance that prevented a timely submission of the Complaint. The Respondent noted that an “extenuating circumstance” was one over which someone had little or no control. In his view, the Appellant had ample time and opportunity to bring a timely complaint. The Respondent added that, although the Appellant went off duty sick (ODS) at one point, he could have accessed resources on how to present a harassment complaint while he was ODS.

The Appellant appealed the Decision. He felt it was reached in a procedurally unfair manner. He also thought it was clearly unreasonable, for four reasons. First, the Respondent dismissed the Complaint on a technicality. Second, the Respondent rejected his reason for filing the Complaint late. Third, the Respondent wrongly believed the Appellant had access to resources that could have helped him submit a harassment complaint while he was ODS. Fourth, the Respondent failed to realize that the Alleged Harasser’s behaviours were harassing.

ERC Findings: The ERC found that the Appellant did not explain, and that it was otherwise unclear how the Decision was reached in a procedurally unfair manner. The Appellant was invited to, and did, set out in writing the extenuating circumstances that he believed prevented him from filing the Complaint on time. The Respondent considered the Appellant’s explanation, disagreed with it, and issued a Decision containing reasons in support of his conclusion. There is no evidence that the Respondent lacked objectivity or independence in so doing.

The ERC also found that the Decision was not clearly unreasonable. The Respondent provided rational lines of analysis in support of his conclusions that the Complaint was untimely, and that there was no reasonable justification for its late submission. He did this by applying the RCMP Policy to the facts before him, and by making findings that were consistent with the Policy, the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints) (CSO (Harassment)), and an applicable RCMP Guidance Document. The Respondent was correct in observing that there were helpful resources the Appellant could have consulted while he was ODS. One resource was the CSO (Harassment), which was publicly available. Another was the Harassment Policy, which was available on the RCMP Infoweb and through the RCMP Office for the Coordination of Harassment Complaints, a Member Workplace Representative, or even a colleague. Those two authorities made it clear that a harassment complaint had to be presented in accordance with the RCMP harassment complaint and investigation process. They also described how the process worked, and detailed a complainant’s rights and obligations. Having found that the Complaint was untimely, and that there were no extenuating circumstances, the Respondent came to the Decision. It was final. He no longer had authority to decide if the Alleged Harasser’s behaviours were harassing in nature.

The ERC commented on the manner in which the Appellant’s superiors appeared to treat him. It was up to the Appellant to know and assert his rights under RCMP harassment authorities. However, if the superiors with whom he allegedly raised concerns of harassment did not direct him on how to address those concerns, then they disregarded a key obligation under the Policy.

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

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

The Appellant, a member of "X" Division, encountered issues with a constable who had authority to schedule overtime. As a result of these issues, the Appellant claimed that the constable stopped offering him overtime opportunities. The Appellant raised his concerns to his immediate supervisor and two superiors. Over a year later, the Appellant lodged harassment complaints against all four members (Alleged Harassers) alleging that the constable’s actions constituted harassment, and none of his superiors did anything to rectify the situation.

The Respondent issued four decisions concluding the harassment complaint process because the Appellant failed to file his complaints within the one-year time limits prescribed by the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints).

The Appellant presented four appeals disputing the Respondent’s decisions on the grounds that they contravened the applicable principles of procedural fairness and are clearly unreasonable. The appeals were subsequently referred to the ERC. The ERC determined that the Respondent provided a rational line of analysis to support the conclusion that the complaints were files outside the prescription period and that there were no exceptional circumstances that justified the late presentation. The ERC recommended that the appeal be denied.

After examining the facts, applicable policy, statutory provisions, and relevant jurisprudence, the Adjudicator agreed with the ERC recommendation and dismissed the appeals. 

NC-110 – Medical Discharge

The Appellant was on approved medical leave since June 2017. The Health Services Officer (HSO) reviewed the Appellant’s medical file and changed the Appellant’s medical profile to a temporary O6. This medical profile meant that the Appellant could not perform any duty within the RCMP on a temporary basis. A few months later, the HSO contacted a medical professional who had attended to the Appellant in June 2017. Upon review of this medical professional’s report, the HSO modified the Appellant’s medical profile to a permanent O6. This designation triggered the medical discharge process.

After receiving the Notice of Intent to Discharge (NOI), the Appellant requested further disclosure and an in-person meeting with the Respondent. He also made several access to information requests. The Appellant was provided with some disclosure he requested while some other were considered irrelevant to the process. The Respondent denied the Appellant’s request for a meeting, explaining that an in-person meeting is not an opportunity for the Appellant to air all his grievances against the RCMP. In his response to the NOI, the Appellant argued that the Force had not met its duty to accommodate him because the HSO’s opinion was not based on his usual health care provider’s assessment. After stating the governing principles regarding non-culpable absenteeism and undue hardship, counsel argued that, by failing to consult with the Appellant’s treating medical professionals, the Force only made negligible efforts to accommodate the Appellant. With his response, the Appellant filed a letter from his treating medical professional which stated that she had not completely ruled out a gradual return to work. However, she recommended a “calm exit” for the Appellant from the RCMP. The Respondent found that there was no evidence that the Appellant could return to duties within the RCMP in the foreseeable future. Both of his health care providers were of the opinion that it would be best for the Appellant not to return to the RCMP.

The Appellant appealed the Respondent’s decision. He reiterated that the Force had not met its duty to accommodate him. During the appeal process, the Appellant made several requests for disclosure, challenged the appointment of the Respondent’s Representative and argued that he was being denied representation to not only address his appeal, but also his medical discharge process. 

ERC Findings: The ERC first found that the hiring of the Respondent’s Representative did not breach the statutory freeze when an employee’s association requested accreditation. Likewise, the Administration Manual – Grievances and Appeals permitted the Respondent to name a representative of her choice. Lastly, because the representative was a non-practising lawyer, her hiring did not breach the Department of Justice’s sole authority to provide legal advice to departments. The ERC found that there was no evidence that the Appellant was barred from being represented. Although his chosen representative did not receive the approval of his Line Officer, the Appellant could have chosen another representative. Further, the Appellant’s response to the NOI and his first submission on appeal were provided by his legal counsel. On the issue of disclosure, the ERC found that the Appellant’s requests for disclosure amounted to a fishing expedition because he had not explained the relevance of the disclosure requested. The ERC found that the Appellant had received the disclosure necessary to respond to the NOI and for the appeal. On the merits of the appeal, the ERC found that, although the Force had not consulted with the Appellant’s actual health care provider, the Appellant had not provided a report by this individual at the time he was informed of the change of medical profile. There was no conflicting medical evidence because both health care professionals opined that the Appellant would benefit from exiting the RCMP. Because the Appellant was unfit for any duty for the foreseeable future, the RCMP did not breach its duty to accommodate short of undue hardship. 

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 Appellant went on medical leave for the final time on June 2, 2017. On January 25, 2018, the Health Services Officer (HSO) changed the Appellant’s medical profile to a temporary O6. Then, on April 13, 2018, the HSO reviewed the Appellant’s medical file and assigned him a permanent O6 – meaning that the Appellant was unfit for any duties in the RCMP within the foreseeable future. Ultimately, the Respondent medically discharged the Appellant, effective February 6, 2019.

The Appellant appealed alleging, inter alia, that the RCMP: denied him representation while the Respondent was represented by someone with legal knowledge; denied disclosure of relevant documents; and, failed to meet the duty to accommodate up to the point of undue hardship. The Appellant also argued that the Respondent’s decision contained errors of law, breached his right to procedural fairness by refusing to hold an in-person meeting with him and demonstrated a reasonable apprehension of bias.

The Adjudicator was not persuaded that the RCMP had failed in its obligation to accommodate the Appellant, and found that there was no breach of procedural fairness or errors of law, and that the decision is not clearly unreasonable. The appeal was dismissed. 

NC-111 – Harassment

The Appellant filed an appeal of the Respondent’s decision to dismiss his harassment complaint 29 days after he received that decision. Under applicable legislation, a member must file his or her appeal within 14 days after the day on which a copy of the decision is served. However, the limitation period may be extended if an extension is deemed warranted in the circumstances.

The Appellant does not contest that he submitted this appeal outside the applicable 14-day statutory time limit. The sole issue to be addressed is therefore whether an extension of the limitation period is warranted. 

ERC Findings: In applying the four-factor test adopted by the Federal Court of Canada in Canada (Attorney General) v. Pentney, 2008 FC 96, the ERC finds that the Appellant has not met his burden in demonstrating that he had a continuing intention to pursue the matter or that there was a reasonable explanation for his delay in filing this appeal. As a result, the ERC concludes that an extension of the statutory limitation period is not warranted and that the appeal should be denied because it is out of time.

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

NC-112 – Medical Discharge

The Respondent ordered the Appellant to be discharged from the RCMP for having a disability as defined by the Canadian Human Rights Act (CHRA). During his time as a police officer for the RCMP and another police force, the Appellant believed he was being racially harassed and racially profiled both on and off duty. This affected his mental health. Both his treating psychologist and the RCMP’s Independent Medical Examiner (IME) recommended that the Appellant be transferred out of the Division where he was working. Further, as late as 2020, the IME was of the view that the Appellant was not delusional, that his judgment was sound and that he was fit to return to full police duties.

The Appellant, while recovering, had two sets of Code of Conduct charges laid against him in relation to interactions with a non-RCMP police force. According to the IME, these interactions were inextricably related to the cause of the Appellant’s medical condition’s downward spiral. The RCMP did not entertain Graduated Return to Work (GRTW) outside of the Division in question.

Because his attending psychologist recommended a six to eight month Off Duty Sick (ODS) period, the HSO recommended, based on this report and the Appellant’s previous ODS history, that he be given a permanent O6 medical profile, meaning that the Appellant was not employable in the RCMP in any capacity.

In response to the Notice of Intent (NOI) to Recommend the Appellant’s discharge, the Appellant provided evidence of: recommendations that he be moved outside of the Division in question; explained why the Appellant was where he was and why in terms of his mental health; that he was a very motivated and good police officer and was simply asking to work in a racial harassment free environment .

The Appellant appealed the Respondent’s decision to discharge him. The Appellant had two main issues with the Decision: that the Respondent did not “grapple” with key evidence; and that the RCMP had not accommodated him up to the point of undue hardship. 

ERC Findings: The ERC found the Decision to be clearly unreasonable. The Respondent failed to grapple and address with key evidence as to the prognosis of the Appellant’s health condition. The two IME letters, both before the Respondent, contained key information relating to his mental health and the requirement for him to be geographically relocated. The Respondent did not give reasons as to why he preferred the recommendation of the HSO, other than the fact that it was recommended the Appellant be ODS for an additional 6-8 months.

The underlying cause of the Appellant’s mental health state, according to the IME, was perceived racial discrimination that he was subjected to by a police force he both worked for (and lived in the area) and by the RCMP. In the IME’s opinion, this necessitated a move outside of the Division, which was not entertained by the RCMP. The ERC found that the RCMP made negligible efforts in finding an accommodation for the Appellant. Consequently, the ERC found that the RCMP had not accommodated the Appellant up to the point of undue hardship.

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

Commissioner of the RCMP Decision: The Appellant withdrew the appeal before the final decision-maker could render their decision.

NC-113 – Harassment

The Appellant appeals the Respondent’s Decision (Decision) to dismiss his harassment complaint (Complaint) against the Alleged Harasser, who was another member of the Force. 

The Alleged Harasser had reported to superiors that the Appellant had intentionally followed him in his vehicle. The Alleged Harasser also reported to them that the Appellant had previously been directed to have no contact with the Alleged Harasser. The Alleged Harasser later reported the incident, as well as a number of other incidents where the Appellant had allegedly harassed him, to individuals at an external agency. According to one of those individuals, the Alleged Harasser, while expressing his frustration with the situation involving the Appellant, made a comment to the effect that both he and the Appellant carried guns. The Appellant later found out what the Alleged Harasser had said. He filed the Complaint containing two allegations of harassment. One pertained to the Alleged Harasser falsely reporting that the Appellant had followed him in his vehicle. The other related to the Alleged Harasser’s comment regarding guns. The Appellant felt that these actions were meant to discredit, inconvenience and intimidate him. Following an investigation into the Complaint, the Respondent rendered the Decision finding that neither of the two allegations revealed “improper conduct”, one of the criteria required to make a finding of harassment.

The Appellant believes the Decision was rendered in a procedurally unfair manner because insufficient documentation was provided to the Respondent. He also asserts that the Respondent’s finding that harassment did not occur is clearly unreasonable.

ERC Findings: The ERC found that the process through which documentation was provided to the Respondent was not procedurally unfair towards the Appellant. The Appellant could have, but did not, use steps within the harassment complaint process to formally request that additional documents be provided to the Respondent before he rendered the Decision. Additionally, because the Appellant had not taken those steps, that documentation was not admissible on appeal.

The ERC found that the Respondent’s Decision regarding the first allegation was not clearly unreasonable. The Respondent explained why the Alleged Harasser’s report of having been followed did not amount to improper conduct. The line of analysis, while very brief, was supported by the record which contained evidence of a perception by the Alleged Harasser that he had indeed been followed. The ERC found, however, that the Decision regarding the second allegation was clearly unreasonable. In finding that a witness had not considered the utterance regarding guns to be of significant concern, the Respondent mischaracterized the evidence. The record showed that the witness had in fact expressed a significant degree of concern regarding the utterance. The witness’ evidence was central to the Respondent’s determination that the conduct was not improper, and the mischaracterization of that evidence was a fundamental flaw in the line of analysis.

ERC Recommendations: The ERC recommends that the appeal be allowed, in part, and that the matter be remitted to another decision-maker for a new decision regarding the second allegation.

D-139 – Adjudication Board Decision

The Respondent brought forward an Allegation that the Appellant had conducted himself in a disgraceful manner that could bring discredit on the RCMP. The alleged conduct related to the Appellant’s behaviour and communications with a former long-term girlfriend, while off duty. Particular 3 of the Allegation, set out in the Notice of Hearing (Notice), referred to the Appellant having “criminally harassed” her. A hearing took place before an RCMP Adjudication Board (Board). As the hearing commenced, the Respondent asked the Board to amend Particular 3 by removing the word “criminally” before the term “harassed”. The Board heard submissions from the parties and granted the amendment. The hearing then resumed, during which the parties called evidence and made submissions. The Board found the Allegation established. As proposed by the parties, the Board imposed a sanction consisting of a reprimand and the forfeiture of five days of pay.

The Appellant appealed the Board’s finding that the Allegation had been established. He raised several grounds of appeal, including two grounds relating to the Board’s decision to amend Particular 3.

ERC Findings: The ERC addressed the two grounds relating to the amendment of Particular 3, as they were determinative of the appeal. The ERC found that the Board had made palpable and overriding errors when it amended Particular 3 of the Notice, contrary to requirements set forth in subsection 45.11(1) of the RCMP Act. That subsection permitted an amendment to correct a technical defect in the Notice that did not affect the substance of the Notice, and that did not prejudice the member’s defence. In this case, the amendment had changed the Appellant’s alleged misconduct from “criminal harassment” to “harassment”. As a result, the ERC found that subsection 45.11(1) was violated; the substance of the Particular was changed, it was not a technical defect in the Notice, and the amendment prejudiced the Appellant in the conduct of his defence. Moreover, the Board had explained that it amended Particular 3 further to subsection 43(5) of the RCMP Act, yet subsection 45.11(1) of the RCMP Act and the jurisprudence did not allow for an amendment under that provision. Finally, the ERC found that the amendment resulted in procedural unfairness. The Appellant had prepared to defend himself against an allegation of criminal harassment. However, at the beginning of the hearing, that allegation was changed from criminal harassment to harassment. The Appellant lost the opportunity to reasonably know and meaningfully respond to the case against him. Based on the foregoing, the ERC found that the Board’s decision could not stand.

ERC Recommendations: The ERC recommends that the Commissioner allow this appeal. Given that the amendment to Particular 3 had tainted the proceedings, the ERC recommends a new hearing. 

G-768 – Private Accomodation Allowances

The Grievor, who intermittently provided relief duties in isolated posts, contested the Respondent’s decision to deny his request for private accommodation allowance (PAA). 

In relying on the Level I decision in a prior grievance (First Grievance), in which it was determined that he was entitled to the PAA for the claims at issue, the Grievor submitted a compilation of his previously denied PAA claims for the period of August 2009 and April 2011, and argued that the Level I decision in the First Grievance should apply. The original Respondent was of the view that the Grievor was entitled to the PAA but said he had had no authority to pay it. At Level I, the subsequent Respondent argued that the grievance, which had been presented on July 27, 2012, had not been submitted within the 30-day statutory time limit as the Grievor was seeking reimbursement for expenses incurred since 2009, and had received the decision in the First Grievance in 2011.

The Grievor argued that he was told to wait to file his grievance by his Staff Relations Representative (SRR) because the question of entitlement of the PAA was being raised nationally, and several SRRs were working directly with [Emplacement A] to try to resolve the issue. The Grievor explained that his SRR subsequently indicated that he had made a mistake in telling him and other members not to flood the grievance system with hundreds of grievances on the same issue. In the Grievor’s view, he should not be penalized for following the advice and direction of his SRR.

The grievance was denied on the preliminary issue of timeliness at Level I. The Level I Adjudicator did not address whether a retroactive extension of the statutory time limit was warranted. At Level II, the Grievor and the Respondent reiterated their Level I arguments.

ERC Findings: The ERC found that the grievance was not timely. The ERC applied the four‑factor Pentney test, and found that the Grievor had a continuing intention to pursue the grievance, that the matter disclosed an arguable case, that the Grievor provided a reasonable explanation for the delay, and that there was no prejudice to the Respondent in allowing the extension of time. The ERC pointed out that the events giving rise to this grievance had occurred during a period of turmoil, when the question surrounding a member’s entitlement to the PAA was being debated nationally, and subsequent policy change and clarification were required to resolve the issue. The ERC found that the Grievor had reasonably relied on the information received from his SRR, whose role it was to provide guidance and accurate information to members, and therefore he should not be penalized for following it. 

ERC Recommendations: The ERC accordingly found that a retroactive extension of the time limit to file a grievance was warranted in the circumstances. As a result, the ERC recommended that the Commissioner obtain submissions from both parties, and that she rule on the merits of the grievance, rather than returning the matter to Level I. The ERC further recommended that the Grievor be asked to submit a compilation of all his outstanding PAA claims in order to expedite the Commissioner’s review of his entitlement, and the reimbursement, if applicable.

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

The Grievor filed three grievances challenging a decision denying his expense claim for the private non-commercial accommodation allowance (PAA). The Level I Adjudicator denied the grievances on timeliness. The ERC determined that a retroactive extension was warranted and recommended that the Commissioner seek submissions and rule on the merits of the grievances. The Commissioner accepted the ERC recommendation and allowed a limited retroactive extension of the prescription period. The Commissioner also determined that the Grievor was entitled to some of his PAA claim and partially allowed the grievances. 

G-769 – Private Accomodation Allowances

The Grievor, who intermittently provided relief duties in isolated posts, contested the Respondent’s decision to deny his request for private accommodation allowance (PAA). 

In relying on the Level I decision in a prior grievance (First Grievance), in which it was determined that he was entitled to the PAA for the claims at issue, the Grievor sought reimbursement for his outstanding PAA claims for the period from August 2009 to April 2011, and argued that the Level I decision in the First Grievance should apply.

The Grievor and the Respondent made no submissions at Level I. In finding that the grievance was substantially similar to companion grievance G-768, the Adjudicator denied the grievance on the preliminary issue of timeliness, without providing the parties an opportunity to address the issue. The Adjudicator did not address whether a retroactive extension of the statutory time limit was warranted.

The Grievor provided submissions on timeliness for the first time at Level II. He explained that he was told by his Staff Relations Representative (SRR) to wait to file his grievance until Management decided the remaining claims. The Grievor explained that his SRR subsequently indicated that he had made a mistake in telling the Grievor to wait, and he had filed his grievance within the time limit advised by his SRR.

ERC Findings: As a result of the Level I Adjudicator’s failure to request submissions from the parties on the issue of timeliness prior to rendering her decision, the ERC found that the Grievor’s procedural right to be heard had been breached. However, the ERC determined that the breach was cured because a Level II review is de novo. In other words, the record and the impugned decision(s) are reviewed afresh, without any deference to the Level I decision. As both parties provided submissions on timeliness at Level II, the ERC found that they had had a full and fair opportunity to address the issue. 

The ERC concluded that the grievance was not timely. However, in applying the four-factor Pentney test, the ERC determined that the Grievor had a continuing intention to pursue the grievance, that the matter disclosed an arguable case, that the Grievor provided a reasonable explanation for the delay, and that there was no prejudice to the Respondent in allowing the extension of time. The ERC pointed out that the events giving rise to this grievance had occurred during a period of turmoil, when the question surrounding a member’s entitlement to the PAA was being debated nationally, and that subsequent policy change and clarification were required to resolve the issue. The ERC further found that the Grievor had reasonably relied on the information received from his SRR, whose role it was to provide guidance and accurate information to members, and therefore he should not be penalized for following it. 

ERC Recommendations: The ERC accordingly found that a retroactive extension of the 30-day statutory time limit to file a grievance was warranted in the circumstances. As a result, the ERC recommended that the Commissioner obtain submissions from both parties, and that she rule on the merits of the grievance, rather than returning the matter to Level I. The ERC further recommended that the Grievor be asked to submit a compilation of all his outstanding PAA claims in order to expedite the Commissioner’s review of his entitlement, and the reimbursement, if applicable.

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

The Grievor filed three grievances challenging a decision denying his expense claim for the private non-commercial accommodation allowance (PAA). The Level I Adjudicator denied the grievances on timeliness. The ERC determined that a retroactive extension was warranted and recommended that the Commissioner seek submissions and rule on the merits of the grievances. The Commissioner accepted the ERC recommendation and allowed a limited retroactive extension of the prescription period. The Commissioner also determined that the Grievor was entitled to some of his PAA claim and partially allowed the grievances. 

G-770– Private Accomodation Allowances

The Grievor, who intermittently provided relief duties in isolated posts, contested the Respondent’s decision to deny his request for private accommodation allowance (PAA). 

In relying on the Level I decision in a prior grievance (First Grievance), in which it was determined that he was entitled to the PAA for the claims at issue, the Grievor sought reimbursement for his outstanding PAA claims for the period from August 2009 to April 2011, and argued that the Level I decision in the First Grievance should apply.

In finding that the grievance was substantially similar to companion grievances G-768 and G‑769, the Level I Adjudicator denied the grievance on the preliminary issue of timeliness, without providing the parties an opportunity to address the issue. The Adjudicator did not address whether a retroactive extension of the statutory time limit was warranted.

The Grievor provided submissions on timeliness for the first time at Level II. He explained that his Staff Relations Representative (SRR) was of the view that being successful in the First Grievance would set a precedent. He therefore advised the Grievor not to file more grievances as the SRR expected that the other claims would be settled. However, that did not happen, and the Grievor was then advised by his SRR to proceed with his other grievances. The Grievor argues that he should not be penalized for the SRR’s error. 

ERC Findings: As a result of the Level I Adjudicator’s failure to request submissions from the parties on the issue of timeliness prior to rendering her decision, the ERC found that the Grievor’s procedural right to be heard had been breached. However, the ERC determined that the breach was cured because a Level II review is de novo. In other words, the record and the impugned decision(s) are reviewed afresh, without any deference to the Level I decision. As both parties provided submissions on timeliness at Level II, the ERC found that they had had a full and fair opportunity to address the issue. 

The ERC concluded that the grievance was not timely. However, in applying the four-factor Pentney test, the ERC determined that the Grievor had a continuing intention to pursue the grievance, that the matter disclosed an arguable case, that the Grievor provided a reasonable explanation for the delay, and that there was no prejudice to the Respondent in allowing the extension of time. The ERC pointed out that the events giving rise to this grievance had occurred during a period of turmoil, when the question surrounding a member’s entitlement to the PAA was being debated nationally, and that subsequent policy change and clarification were required to resolve the issue. The ERC further found that the Grievor had reasonably relied on the information received from his SRR, whose role it was to provide guidance and accurate information to members, and therefore he should not be penalized for following it.

ERC Recommendations: The ERC accordingly found that a retroactive extension of the 30-day statutory time limit to file a grievance was warranted in the circumstances. As a result, the ERC recommended that the Commissioner rule on the merits of the grievance, rather than returning the matter to Level I. The ERC further recommended that the Grievor be asked to submit a compilation of all his outstanding PAA claims in order to expedite the Commissioner’s review of his entitlement, and the reimbursement, if applicable.

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

The Grievor filed three grievances challenging a decision denying his expense claim for the private non-commercial accommodation allowance (PAA). The Level I Adjudicator denied the grievances on timeliness. The ERC determined that a retroactive extension was warranted and recommended that the Commissioner seek submissions and rule on the merits of the grievances. The Commissioner accepted the ERC recommendation and allowed a limited retroactive extension of the prescription period. The Commissioner also determined that the Grievor was entitled to some of his PAA claim and partially allowed the grievances. 

G-771– Legal Counsel at Public Expense

The Grievor and another member within his chain of command became involved in a sexual relationship. Several months later, the member alleged that the Grievor sexually assaulted her and compelled her to continue the relationship. The allegations included an assertion that they misused RCMP resources to conduct their relationship. As a result, the member filed a civil claim against both the Grievor and the Force. The Grievor received Legal Assistance at Public Expense (LAPE) in order to fund his defence to the claim. Shortly thereafter, the Grievor admitted to a breach of the RCMP Code of Conduct and received an agreed-upon sanction. The Grievor then made a request to the Respondent for additional LAPE funding. The Respondent declined the request and the Grievor grieved that decision.

The grievance process involved a number of preliminary and collateral issues. Most notably, a Level I Adjudicator allowed the Grievor to continue with allegations that the conduct of the Respondent amounted to discrimination and harassment. As well, the Adjudicator ordered the Respondent to disclose documents regarding the complaint and subsequent investigation.

The parties then proceeded to make arguments on the merits. The Level I Adjudicator found that the disclosure process clarified the Respondent’s decision such that the reasons were sufficient. The Adjudicator also found that the Grievor was not entitled to LAPE for the civil litigation because that litigation flowed directly from the Grievor’s actions, which he admitted contravened the Code of Conduct. The Adjudicator held that the previous approval of LAPE did not dictate that the next stage would be approved. Finally, the Adjudicator found that the denial of LAPE did not amount to harassment. Therefore, the Adjudicator denied the Grievance.

ERC Findings: 

Disclosure

The ERC found that the Grievor’s dissatisfaction with the disclosure he had received amounted to speculation regarding the existence of additional documents. The Grievor did not demonstrate that he had not received all of the documents he was entitled to.

Sufficiency of Reasons

The ERC referred to its findings in G-635 that LAPE decisions require written reasons. The ERC observed that the Respondent’s written decision did not provide any reasons. Further, neither the disclosure of materials nor the Respondent’s written submissions could rectify the Respondent’s lack of reasons.

Eligibility for LAPE

The ERC found that admissions that the Grievor made in his Code of Conduct proceeding amounted to the necessary information to rebut the presumption of eligibility in the LAPE policy and established a basis to deny LAPE. Specifically, the Grievor admitted to engaging in a sexual relationship with another member in which he used RCMP resources to advance the relationship. The ERC found that such admissions took the Grievor’s actions outside the scope of his duties.

The Grievor argued that he was automatically entitled to LAPE because he was subject to an unfounded harassment complaint. The ERC found that the Grievor was never subject to a full harassment investigation, and that the complaint could no longer be clearly seen as unfounded in light of the information which came to light during the civil litigation. 

The ERC also concluded that the Grievor had not established that his treatment amounted to discrimination or harassment.

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

G-772– Legal Counsel at Public Expense

The Grievor became involved in a high-profile investigation. In doing so, the Grievor was responsible for the protection of witnesses. After a complaint and a subsequent investigation, the Grievor and two other members were charged with a number of criminal offences and had Code of Conduct contraventions referred to an adjudication board.

On August 25, 2010, the Grievor was approved to receive Legal Assistance at Public Expense (LAPE). The Grievor made a request to receive additional LAPE funding. In November 2012, the Respondent denied the Grievor’s request for additional funding. The Respondent provided a letter stating that he denied the request for LAPE at the trial phase as the Respondent was not satisfied that the Grievor met the three criteria set out in the Treasury Board Policy on Legal Assistance and Indemnification (TB LAPE Policy).

The Grievor then grieved the denial. Initially, the parties reached an impasse regarding disclosure. The matter was referred to a Level I Adjudicator, who denied the Grievor’s request for additional documents. The Grievor then submitted his arguments on the merits, asserting that he was entitled to LAPE as there was no evidence to rebut the presumption of eligibility. The Grievor further emphasized that he met all the requirements of the policy. In the alternative, the Grievor argued that there were exceptional circumstances which allowed for the approval of LAPE. The Grievor also argued the Respondent never provided a proper rationale for the denial, especially in light of the fact that LAPE had been approved before.

The Level I Adjudicator found that the letter denying the Grievor LAPE did not provide sufficient detail as it did not explain why the Grievor did not meet the criteria of the LAPE Policy. However, the Adjudicator found that the subsequent disclosure through the grievance process provided the necessary information to understand why the Respondent made his decision. The Adjudicator found that the Grievor was not entitled to LAPE. She found that the LAPE Policy required a new request to be presented at each stage of a proceeding which allowed for fresh consideration. Previous approvals did not dictate subsequent approvals. The Adjudicator relied on previous findings of the ERC to state that a member could not receive LAPE where their actions were found to violate the RCMP Code of Conduct.

The Adjudicator found that there were no exceptional circumstances to grant the Grievor LAPE as there was no public interest to do so as required by the policy. Therefore, the Adjudicator denied the Grievance.

ERC Findings: 

Sufficiency of Reasons

The ERC referred to its findings in G-635 that LAPE decisions require written reasons. The ERC observed that the Respondent’s decision did not provide any reasons. Further, neither the disclosure of materials nor the Respondent’s written submissions could rectify the Respondent’s lack of reasons.

Denial of LAPE

The ERC found that the Respondent did not properly consider the presumption of eligibility in the TB LAPE Policy and that the presumption does not disappear upon the laying of criminal charges. As well, there was not enough evidence in the record to deny the Grievor LAPE.

Exceptional Circumstances

The ERC did not consider these provisions as based upon the previous findings, the Grievor was entitled to LAPE.

Apprehension of Bias

The ERC found that there was no evidence to support the allegation that the Level I Adjudicator was biased. Furthermore, a reasonable apprehension of bias on the part of the Level I Adjudicator would have been of limited significance because the Level II Adjudicator was entitled to conduct a full de novo review of the grievance. 

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

G-773– Legal Counsel at Public Expense

The Grievor became involved in a high-profile investigation. In doing so, the Grievor was responsible for the protection of witnesses. After a complaint and a subsequent investigation, the Grievor and two other members were charged with a number of criminal offences and had Code of Conduct contraventions referred to an adjudication board. The Grievor then received a number of approvals for Legal Assistance at Public Expense (LAPE). One of the Grievor’s requests for LAPE was denied then reinstated after the Grievor provided a statement to the Commanding Officer of “X” Division.

On May 7, 2012, a document was prepared on behalf of the Grievor to request the Respondent’s approval of LAPE up to $50,000. The Respondent denied the internal request to approve the Grievor’s LAPE and provided the Grievor a letter which stated that he was not satisfied that the Grievor met the three eligibility criteria set out in the Treasury Board Policy on Legal Assistance and Indemnification (TB LAPE Policy).

The Grievor grieved the Respondent’s decision. The arguments centered on: the sufficiency of the Respondent’s reasons, the inconsistency with previous approvals and the potential for the approval to be justified as exceptional circumstances. The Level I Adjudicator found that, even though the decision letter does not explain the basis for the decision, the information that came out through the grievance process clarified the basis for the Respondent’s decision. The Adjudicator found she could infer from the information relied upon by the Respondent that the impugned decision was based on the documents disclosed and that those documents led to a proper decision to deny LAPE. Specifically, the Adjudicator found that the approval of criminal charges against the Grievor meant that LAPE was undeserved. 

ERC Findings: 

Sufficiency of Reasons

The ERC referred to its findings in G-635 that LAPE decisions require written reasons. The ERC observed that the Respondent’s decision did not provide any reasons. Further, neither the disclosure of materials nor the Respondent’s written submissions could rectify the Respondent’s lack of reasons.

Denial of LAPE

The ERC found that the Respondent did not properly consider the presumption of eligibility in the TB LAPE Policy and that the presumption does not disappear upon the laying of criminal charges. As well, there was not enough evidence in the record to deny the Grievor LAPE.

Apprehension of Bias

The Grievor, in his Level II submissions, alleged that the Respondent was biased against the Grievor in his decision to deny LAPE. The Grievor relied on an article available to the Grievor prior to the commencement of the Grievance. As the allegation was not raised at Level I, the ERC found that the allegation could not be considered at Level II. 

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

G-774– Harassment

The Grievor filed a harassment complaint. The Respondent dismissed the complaint on the grounds that some of the allegations were untimely and others did not meet the definition of harassment. This decision led the Grievor to file four grievances. In the Early Resolution Phase, it was agreed that the Grievor would file a new complaint and that the Respondent would review it regardless of the time limit. The Respondent issued a new decision finding that the Grievor’s allegations in the new complaint did not meet the definition of harassment and that no investigation would be mandated.

The Grievor grieved the Respondent’s new decision. Before the Level I Adjudicator, the Grievor alleged a violation of the Canadian Charter of Rights and Freedoms and requested access to documents under the control of the RCMP as well as an investigation and the interviewing of witnesses. The Level I Adjudicator denied the grievance on the grounds that the Respondent’s decision was reasonable. He did not rule on the Grievor’s request for disclosure.

The Grievor submitted his grievance at Level II, where the issue of the time limit to file the grievance at that level was raised. The Respondent also alleged that the Grievor failed to explain how the Level I Adjudicator’s decision was unreasonable. 

ERC Findings: The ERC found that the Grievor had sufficient explanation for his delay in filing his grievance at Level II. The ERC also found that there was no breach of procedural fairness in the Grievor’s alleged failure to receive a copy of certain documents to support the filing of his grievance. Finally, the ERC found that the Grievor, having failed to submit the necessary material, had not discharged his duty to demonstrate the merits of his grievance. 

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

G-775– Harassment

The Grievor filed a harassment complaint. The Respondent dismissed the complaint on the grounds that some of the allegations were untimely and others did not meet the definition of harassment. This decision led the Grievor to file four grievances, including this grievance. In the Early Resolution Phase, it was agreed that the Grievor would file a new complaint and that the Respondent would review each allegation submitted regardless of the time limit. In addition, in the event that the Grievor disagreed with the Respondent’s new decision, the Grievor would have the right to grieve the Respondent’s new decision. The Respondent issued a new decision finding that the Grievor’s allegations in the new complaint did not meet the definition of harassment and that no investigation would be mandated. The Grievor filed a grievance challenging the Respondent’s new decision (related grievance).

Contrary to the agreement reached at the Early Resolution Phase, the Grievor did not withdraw this grievance. Before the Level I Adjudicator, the Respondent filed a motion to dismiss this grievance.

The Respondent submitted that the Grievor no longer had standing since he had signed an agreement to withdraw his grievances, including this grievance, and filed a grievance to challenge the new decision on the new complaint.

The Level I Adjudicator found that the issue in the grievance became moot when the Grievor was granted the remedy he sought: the opportunity to file a new complaint and to receive a new decision on that complaint.

At Level II, the Respondent alleged that the Grievor did not discharge his burden of proving that the Level I Adjudicator erred in his decision. 

ERC Findings: The ERC found that the Grievor did not have standing in this grievance, since the related grievance he filed following the Respondent’s new decision constituted another process under the RCMP Act to address the issues raised in this grievance. 

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

G-776– Harassment

The Grievor filed a harassment complaint. The Respondent dismissed the complaint on the grounds that some of the allegations were untimely and others did not meet the definition of harassment. This decision led the Grievor to file four grievances, including this grievance. In the Early Resolution Phase, it was agreed that the Grievor would file a new complaint and that the Respondent would review each allegation submitted regardless of the time limit. In addition, in the event that the Grievor disagreed with the Respondent’s new decision, the Grievor would have the right to grieve the Respondent’s new decision. The Respondent issued a new decision finding that the Grievor’s allegations in the new complaint did not meet the definition of harassment and that no investigation would be mandated. The Grievor filed a grievance challenging the Respondent’s new decision (related grievance).

Contrary to the agreement reached at the Early Resolution Phase, the Grievor did not withdraw this grievance. Before the Level I Adjudicator, the Respondent filed a motion to dismiss this grievance. The Respondent submitted that the Grievor no longer had standing since he had signed an agreement to withdraw his grievances, including this grievance, and filed the related grievance to challenge the new decision on the new complaint.

The Level I Adjudicator found that the issue in this grievance became moot when the Grievor was granted the remedy he sought: the opportunity to file a new complaint and to receive a new decision on that complaint.

At Level II, the Respondent alleged that the Grievor’s grievances, including this grievance, were moot because the Grievor was awarded what he requested, and that the Grievor did not discharge his burden of proving that the Level I Adjudicator erred in his decision. 

ERC Findings: The ERC found that the Grievor did not have standing in this grievance, since the related grievance he filed following the Respondent’s new decision constituted another process under the RCMP Act to address the issues raised in this grievance.

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

G-777– Relocation

The Grievor was issued a transfer notice for a cost relocation to a new posting. Unable to find a house that fit all of his personal criteria, the Grievor chose to purchase a new residence. He then extended the Planned Implementation Date by almost a month in an effort to reduce the number of days required for interim accommodations.

The Grievor then requested additional reimbursement for relocation expenses under the Integrated Relocation Program (IRP). Specifically, the Grievor sought reimbursement for Interim Accommodations, Meals & Miscellaneous Relocation Allowance expenses beyond the approved 15 days, storage costs for his Household Goods & Effects, and the costs of kennel fees for his pets.

The Respondent denied the Grievor’s request.

The Grievor grieved the Respondent’s decision. His arguments focused largely on the difficulties the move caused him and his family, how common it is for the Respondent to grant more than 15 days interim accommodation, and the definition of “exceptional circumstances” in the IRP.

During the grievance process, the Grievor also requested additional disclosure. He sought a detailed analysis of all similar decisions for the previous five years. The Level I Adjudicator found that the Respondent provided sufficient disclosure, and that the documents the Grievor requested do not exist. 

ERC Findings: 

Disclosure

The ERC found that the Respondent met the duty to disclose. Pursuant to subsection 31(4) of the RCMP Act, the Respondent is required to grant access to such written or documentary information under the control of the Force as the member reasonably requires to present the grievance. The Respondent does not maintain the level of detail that the Grievor requested. Nevertheless, the Respondent made an effort to collect any information available. What the Grievor sought would have required extensive searching and retrieving of information, significant reformatting and transcribing to protect confidential information found in the relocation files, and the creation of new documents, to which he is not entitled.

Exceptional Circumstances

The ERC found that the definition of “exceptional circumstances” was present and sufficiently clear in the IRP, and that the Grievor failed to establish any exceptional circumstances in his case. A Relocation Reviewer may approve an additional 15 days of interim accommodations from the Core Envelope where exceptional circumstances exist. “Exceptional circumstances” is defined in the IRP as “events that are outside the Member’s control. These circumstances are considered rare and should only be considered in cases of extreme and unforeseen situations.” Therefore, reimbursement of the interim accommodations - including additional storage and kennel fees - beyond the initial 15 days would be contrary to the IRP.

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

G-778– Relocation

After being transferred and selling her house at a loss, the Grievor requested financial assistance through the Home Equity Assistance Plan (HEAP), under the RCMP’s Integrated Relocation Program (IRP).

The Respondent denied the Grievor’s request, on the basis that her house was not actively marketed, pursuant to the IRP. The Level I Adjudicator agreed with the Respondent.

In her Level II written submission, the Grievor argued that the Level I Adjudicator erred when applying the criterion of “actively marketed” to a HEAP application, because that term is only mentioned in the section concerning Temporary Dual Residence Assistance.

The Grievor also argued that the Level I Adjudicator should not have considered the Respondent’s written submission, because it was late.

ERC Findings: 

The Respondent’s Late Written Submission

The ERC has previously found that it does not appear reasonable that statutory deadlines may be retroactively extended, pursuant to subsection 47.4(1) of the RCMP Act, but administrative deadlines cannot be similarly extended. Based on considerations of the length of the delay and any prejudice caused to the other party, the ERC found that the Respondent’s written submission was only four days late, and that the Grievor suffered no prejudice from granting an extension and considering the submission.

“Actively Marketed” and the HEAP Criteria

The ERC found that the active-marketing criterion should not be considered in assessing HEAP applications. The criterion of “actively marketed”, as defined in the IRP, is intended to apply to Temporary Dual Residence Assistance. Nevertheless, the difference between the listing price and the RCMP appraisal value may still be considered in the assessment of the member’s responsibility to ensure that all possible effort is made to prevent the need for HEAP, as the IRP requires that members make all efforts to avoid the need for HEAP benefits.

The Grievor’s Entitlement to HEAP

The ERC found that the Grievor accepted unnecessary risk by listing her property well above the RCMP’s appraisal, and not reducing the price when the market conditions indicated that the price was too high. Listing at a price that is consistent with the appraisal and the conditions of the market gives the member better odds of selling early, thereby preventing a slow and steady decline in the asking price and, ultimately, the final selling price. Listing at a price that is in line with the appraisal also helps to reduce the risk of selling later in the event that there is a continuing decline in the market. Therefore, the Grievor did not make all possible efforts to prevent the need for HEAP, as required under the IRP, and is not entitled to the benefits.

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-060 Conduct Authority Decision (summarized in the April– June 2022 Communiqué)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The ERC concluded that the Respondent should have found that:

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

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

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

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

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

The Appellant appeals the decision of the Respondent, who found that two allegations raised against her were established, namely for failing to take appropriate action to aid a colleague exposed to potential, imminent or actual danger, contrary to section 4.2 of the Code of Conduct, and for failing to comply with a lawful direction, contrary to section 3.3 of the Code of Conduct. Based on these findings, the Respondent ordered, collectively, the forfeiture of 56 hours of pay.

The Appellant contends that the Respondent’s decision contravenes the principles of procedural fairness and is clearly unreasonable because the Respondent allegedly predetermined the matter prior to the conduct meeting, prevented the Appellant from making oral submissions on the allegations, and did not provide the Appellant sufficient time to examine late disclosure. The Appellant requests that the decision be vacated and the financial penalties returned.

The ERC recommended that the appeal be allowed based on a breach of procedural fairness. Finding that the Appellant’s right to procedural fairness was irreparably harmed, the ERC recommended that the Allegations be deemed not established upon redetermination.

The adjudicator allowed the appeal on the basis that the Respondent’s actions caused a reasonable apprehension of bias, resulting in a breach of procedural fairness. However, contrary to the ERC, the adjudicator found that the breach could be cured on appeal. The adjudicator then rendered the decision that the Respondent should have made, found the allegations established, and imposed as conduct measures the forfeiture of 24 hours of pay for Allegation 1 and 8 hours of pay for Allegation 2.

C-061 Conduct Board Decision (summarized in the July – September 2022 Communiqué)

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

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

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

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

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

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

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

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

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

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

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

The Appellant faced two allegations under section 7.1 of the RCMP Code of Conduct for engaging in discreditable conduct in a manner that is likely to discredit the Force. The Appellant was accused of initiating unwanted sexual contact and pursuing and engaging in an inappropriate relationship of a flirtatious and sexual nature with a cell block guard, over whom he help a position of authority as cell block sergeant.

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

On appeal, the Appellant argued that the Board: failed to provide any remedy for the admittedly unreasonable delay associated with the conduct hearing; erred in classifying particulars of the Allegations as aggravating factors rather than as essential elements; made findings on credibility that we were unsupported by the evidence; and, erred by relying upon evidence that was not properly before it. Accordingly, the Appellant sought reinstatement.

The appeal was referred to the ERC for review. The ERC found that the Board: did not err by refusing to consider the unreasonable delay a mitigating factor; did not breach the relevant principles of procedural fairness; and, did not render a clearly unreasonable decision.

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

NC-097 Harassment (summarized in the January – March 2022 Communiqué)

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 recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker so that he or she can mandate an investigation. 

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

The Appellant made a harassment complaint against the Alleged Harasser, claiming that the latter spoke to his RCMP appointed psychologist without consent and improperly disclosed private information in a sensitive briefing note, which caused him to be belittled and humiliated as a result.

The Respondent found that the allegation of harassment was not established, concluding that the complaint was unfounded and that the preliminary enquiry undertaken was sufficient. The Respondent determined that no personal information was disclosed; the offending behaviour fell within the scope of the Alleged Harasser’s professional responsibilities; and, her behaviour was compliant with policy.

The Appellant appeals the Respondent’s decision, claiming that it was reached in a manner that contravened the principles of procedural fairness and that it is clearly unreasonable. He advances that a more fulsome investigation into his allegation is necessary because the Respondent simply assumed that no personal information was disclosed, while the evidence would have demonstrated otherwise. Moreover, the Appellant argues that the faulty conclusions with respect to policy, disclosure, and the need for an investigation, demonstrated bias on the part of the Respondent.

The appeal was referred to the ERC and in a report containing findings and recommendations, the ERC recommended that the appeal be allowed on the basis that the decision was clearly unreasonable. While the ERC concluded that no reasonable apprehension of bias existed, the decision was nevertheless clearly unreasonable because the Respondent lacked sufficient evidence or a rational basis for his conclusions and was incorrect to suggest a more fulsome investigation was unnecessary in the circumstances. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision maker.

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

NC-098 Harassment (summarized in the April – June 2022 Communiqué)

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

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

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

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

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

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

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

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

ERC Recommendation: The ERC 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, is based on an error of law, and is clearly unreasonable. The Appellant requests that a thorough investigation be conducted by an external third party.

This appeal was forwarded to the ERC for a Recommendation. The ERC recommended that the appeal be dismissed.

The adjudicator found that an investigation was not necessary in the circumstances, as the record contained sufficient information and that the decision not to order an investigation did not amount to a breach of procedural fairness. 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.

NC-099 Harassment (summarized in the April – June 2022 Communiqué)

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

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

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

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

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

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

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

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

ERC Recommendation: The ERC 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, is based on an error of law, and is clearly unreasonable. The Appellant requests that a thorough investigation be conducted by an external third party.

This appeal was forwarded to the ERC for a Recommendation. The ERC recommended that the appeal be dismissed.

The adjudicator found that an investigation was not necessary in the circumstances, as the record contained sufficient information, and that the decision not to order an investigation did not amount to a breach of procedural fairness. 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.

NC-100 Harassment (summarized in the April – June 2022 Communiqué)

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

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

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

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

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

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

[Translation]

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

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

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

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

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

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

NC-101 Medical Discharge (summarized in the July– September 2022 Communiqué)

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

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

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

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

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

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

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

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

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

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

ERC Recommendation: The ERC 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 went on medical leave in January 2014. In February 2015, she was deemed fit for operational duties, with restrictions and limitations, for the foreseeable future. However, on July 29, 2015, she was deemed temporarily unable to work for the RCMP in any capacity.

In 2016, the Appellant was transferred to a metropolitan area to be closer to her medical professionals; she was provided two years to do so but never reported because she was unable to sell her home without incurring a significant loss.

Meanwhile, in 2017, the Appellant’s medical profile was changed to allow for the accommodation process to resume. The Appellant refused to consider temporary accommodation at her home detachment as she claimed it would be counterproductive to her health. In June 2018, the Appellant also refused graduated return to work options outside her home detachment, inclusive of a Force vehicle, travel time, kennel services, and accommodations. Later, in November 2018, a restriction from working at her home detachment was added to the Appellant’s medical profile.

Based on the difficulty of navigating the Appellant’s limitations and restrictions, the RCMP ordered an independent medical evaluation (IME) in February 2020. The Appellant’s medical profile was changed to reflect that she was permanently unable to return to work with the RCMP, in any capacity, pursuant to the IME report. The Appellant refused to be voluntarily discharged following the examination, so the Respondent subsequently medically discharged the Appellant, effective July 16, 2021.

The Appellant appealed alleging, inter alia, that the Respondent: failed to establish that the RCMP accommodated her to the point of undue hardship; did not consider all facts regarding her medical condition; issued the decision based on an error of law; and, made findings that are clearly unreasonable.

The Adjudicator was not persuaded that the RCMP had failed in its obligation to accommodate the Appellant, and found that there was no breach of procedural fairness or errors of law, and that the decision is not clearly unreasonable. The appeal was dismissed. 

NC-102 Stoppage of Pay and Allowances (summarized in the July – September 2022 Communiqué)

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

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

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

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

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

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

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

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

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

The Final Adjudicator accepted the ERC’s recommendation and dismissed the appeal.

G-767 Private Accomodation Allowances (summarized in the July – September 2022 Communiqué)

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

In November 2010, the Grievor sent the Officer in Charge (OIC) of the team several 1393 forms (expense claim for non-commercial accommodation) claiming an allowance of $50.00 for nights on board the ship spanning from July 2009 to December 2010. The claim was denied by the OIC of the team 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 Grievor was assigned a Team and spent several consecutive days on a 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 ERC’s finding that the grievance is without merit and denies the grievance.