C-028- Conduct Authority Decision

The Appellant was the detachment commander. On April 8, 2015, the detachment sergeant sent an email to the district commander (the Conduct Authority) alleging problems with the Appellant’s temper and interpersonal relationships with his subordinates since 2013 and with the municipal police service. On May 22, 2015, the Conduct Authority ordered a Code of Conduct investigation. The Appellant was served with the mandate letter on June 8, 2015 which included eight (8) allegations. On November 2, 2015, the investigator provided his report to the Conduct Authority. The Investigator had interviewed 17 witnesses and collected further material, including a written statement of facts by the Appellant. The Appellant was served with a Notice of Conduct Meeting dated November 6, 2015 and he provided a binder containing his response to the allegations, evidence as well as letters of support. The conduct meeting was held on December 18, 2015 and the Appellant was accompanied by his member workplace representative.

The Conduct Authority rendered his decision on December 18, 2015. The Conduct Authority found 4 of the 8 allegations were established. The Conduct Authority imposed the following conduct measures: four (4) days forfeiture of pay, three (3) days of forfeiture of leave, a reprimand, continued counselling and the Appellant had to write a letter of apology to the municipal police service.

The Appellant appealed the decision based on the process followed by the investigators and the Conduct Authority. He argued that the Conduct Authority could not proceed as he already had received informal discipline regarding these events in the form of a verbal direction from the District Commander and that some of the events took place more than a year before the conduct measures were imposed. The Appellant further alleged that there were notes from an inspector that he had not seen prior to the decision. The Appellant received these notes when he received the material that the Conduct Authority relied upon. The Appellant argued that the Respondent gathered these notes by himself prior to the conduct meeting and did not disclose them to the Appellant. Thus, his right to procedural fairness was breached. Lastly, the Appellant argued that he was not provided with full disclosure of witness statements and that the Conduct Authority unfairly denied his request for a supplemental investigation.

The ERC first found that the conduct measures were not imposed after the expiry of the one year time limit. The evidence on the record was not clear on whether the Conduct Authority was aware of the Appellant's conduct prior to initiating the Code of Conduct investigation. The allegations were prompted by the detachment sergeant's email to the Respondent on April 8, 2015. The ERC found that the Appellant had not met his burden of demonstrating that the investigation was biased. However, the ERC found that the Conduct Authority contravened procedural fairness by failing to postpone the Conduct Meeting and failed to disclose the Operations Officer's notes to the Appellant. The ERC further found that these breaches had not been cured during the appeal process and that the Appellant's case could not be deemed hopeless. Lastly, the ERC found that verbal guidance by a superior does not equate to informal disciplinary measures; therefore, the Appellant could not be found to have been disciplined twice for the same offence.The ERC first found that the conduct measures were not imposed after the expiry of the one year time limit. The evidence on the record was not clear on whether the Conduct Authority was aware of the Appellant's conduct prior to initiating the Code of Conduct investigation. The allegations were prompted by the detachment sergeant's email to the Respondent on April 8, 2015. The ERC found that the Appellant had not met his burden of demonstrating that the investigation was biased. However, the ERC found that the Conduct Authority contravened procedural fairness by failing to postpone the Conduct Meeting and failed to disclose the Operations Officer's notes to the Appellant. The ERC further found that these breaches had not been cured during the appeal process and that the Appellant's case could not be deemed hopeless. Lastly, the ERC found that verbal guidance by a superior does not equate to informal disciplinary measures; therefore, the Appellant could not be found to have been disciplined twice for the same offence.

The ERC recommended that the appeal be allowed.

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

The Federal Court previously acknowledged in McBain v Canada (Attorney General), 2016 FC 829, that “in certain circumstances, administrative appellate tribunals have been found to have the power to cure procedural lapses or unfairness arising in a subordinate adjudication” (para 46). Accordingly, in my view, the potential to remedy procedural fairness defects in the conduct meeting process on appeal is not as restricted as the Chair suggests given that Parliament purposefully envisioned the possibility of de novo reviews in appeals of conduct authority decisions. That said, I do accept the ERC finding that the undisclosed Operations Officer’s notes required further investigation since they allude to the Respondent’s knowledge and timing of unspecified information related to the Appellant’s impugned behaviour (Material, pages 34-35). I am satisfied that these circumstances represent a breach of procedural fairness that the appeal proceedings have not rectified (Report, paras 171-174). I am therefore compelled to allow the appeal and find the allegations not established. The Appellant clearly has a history of outbursts and yelling in a supervisory role as reflected in the management review and the conduct investigation. He claims that he has changed and learned coping mechanisms to ensure better self-control. I urge him to remain vigilant. The appeal is allowed. The allegations are deemed not established and the conduct measures rescinded.