C-067 - Conduct Authority Decision

The Appellant was involved in the intake of a criminal harassment complaint regarding the Complainant’s former spouse. The Appellant decided not to pursue charges against the Complainant’s former spouse. A little while later, the Complainant was found dead and the former spouse was charged with murder. A review of the Appellant’s criminal harassment investigation followed. As a result, a superior officer alleged that the Appellant committed a breach of section 4.2 of the Code of Conduct for the lack of diligence in her investigation of the complaint. The Respondent, as the Conduct Authority, found the allegation to be established and ordered the loss of ten days’ pay. The Appellant appealed the Respondent’s decision, citing numerous procedural shortcomings and unreasonable conclusions reached by the Respondent.

During the appeal, the Appellant sought disclosure of a document she claimed the Respondent relied on in the Conduct Meeting. To illustrate the Respondent’s reliance, she provided an audio recording of the meeting which she had made without the Respondent’s knowledge. The ERC provided the Respondent with an opportunity to disclose the sought-after document. When the Respondent did not provide it, the ERC sought additional arguments from the parties on the admissibility of the secret recording and on how the missing document affected this appeal. 

Disclosure

The ERC found that the secret recording did not meet the requirements for admitting fresh evidence on appeal. As well, it was not in the interests of justice to admit the recording as it was disclosed late, the written submissions allowed for the proper adjudication of the matter, and there could be a negative impact on the workplace if the recording was admitted.  

Procedural Fairness

The ERC found that the Respondent breached the Appellant’s right to procedural fairness by denying the Appellant disclosure of a document relevant to the Conduct Meeting. The document was relevant to the Appellant’s performance, a live issue at the Conduct Meeting. The Respondent did not provide it to the Appellant prior to the commencement of the meeting. This limited the Appellant’s ability to address the evidence prejudicial to her case.  

On appeal, the Respondent again did not provide the document to the Appellant or to the ERC. The Appellant did not have the ability to present the document to the ERC, as it was not in her possession. The absence of this document limited the Appellant’s ability to make arguments on appeal and breached her right to procedural fairness.

The ERC recommended that the appeal be allowed, find the allegation not established, and rescind the conduct measures.   

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

The Appellant appealed the decision of the Respondent. The latter, in his capacity as Conduct Authority, found that one allegation against the Appellant was established, namely that she failed to be diligent in the performance of her duties and the carrying out of her responsibilities, contrary to section 4.2 of the Code of Conduct. Based on that finding, the Respondent imposed as sanction the forfeiture of ten days’ pay.

The Appellant contended that the Respondent improperly denied disclosure, failed to conduct a supplemental investigation as she requested, was biased in that he had predetermined the matter, made erroneous findings and insufficiently explained his decision. She also argued that the conduct measure was unreasonable.

The appeal was referred to the ERC for review. The ERC recommended that the appeal be allowed on the basis that the Respondent breached procedural fairness when he denied the Appellant access to a document. The ERC found that the breach could not be cured on appeal, and recommended that the allegation be found not established.

The Adjudicator determined that the decision was reached in contravention of the applicable principles of procedural fairness due to deficiency in disclosure ahead of the conduct meeting and on appeal. The Adjudicator concurred with the ERC that the breach could not be cured on appeal

Accordingly, the Adjudicator allowed the appeal, quashed the Respondent’s decision and rendered one of his own. Considering the irreparable issue of procedural fairness, the Adjudicator found the allegation not established and directed that the forfeiture of pay imposed by the Respondent be reimbursed to the Appellant.