Grievance Case Summary - G-641

In May 2000, the Grievor was travelling on duty as a member of the Prime Minister's Protective Detail team. In June 2003, the Grievor filed a complaint with the Canadian Human Rights Commission (CHRC) containing two allegations that she had been harassed by the Superintendent who had served as the Travel Officer during the May 2000 trip (Alleged Harasser).

In July 2003, the Alleged Harasser advised the Respondent that he was the subject of the Grievor's CHRC complaint. The Grievor did not file either an RCMP harassment complaint or a harassment grievance. The Respondent immediately tasked a Sergeant (the Investigator) with conducting an internal harassment investigation. The Investigator reviewed the RCMP file of the May 2000 trip, interviewed the three witnesses identified in the Grievor's CHRC complaint, the Alleged Harasser, and five additional RCMP members. He also questioned the Respondent about memoranda exchanged between him and the Grievor prior to her 2003 CHRC complaint. According to the Investigator, he made a number of unsuccessful requests to meet with the Grievor. Eventually, in September 2004, the Grievor's lawyer advised the Investigator that the Grievor was unable to participate in the investigation due to her medical condition. The Investigator provided his report to the Respondent which concluded that none of the witnesses corroborated the Grievor's allegations.

In March 2005, the Respondent advised the Grievor that, as all of the witness statements refuted the harassment allegations, he concluded that the allegations were not substantiated.

The Grievor challenged the Respondent's decision on the basis that the Respondent was biased and in a conflict of interest and, therefore, should not have been the decision-maker. As corrective action, the Grievor requested that the Respondent's decision be reviewed.

Between May 2005 and October 2007, the Grievor made six requests for additional relevant documentation. The Office for the Coordination of Grievances (OCG) requested and obtained three disclosure rulings from Level I Adjudicators. The Respondent complied with the disclosure rulings with the exception of an order to create and provide the Grievor with a transcript of the already-disclosed video recording of the interview with the Alleged Harasser. On October 5, 2007, another Level I Adjudicator found that the Respondent was not required to create a transcript of the interview.

The Level I Adjudicator found that all relevant material had been disclosed to the Grievor, concluded that the Grievor had not provided any evidence that the Respondent was in a conflict of interest or biased, and denied the grievance on the merits.

In 2011, the Grievor submitted her grievance at Level II.

The ERC found that the Grievor had not established her grievance.

Respondent's Subsection 31(4) Disclosure Obligations

The ERC found that the Respondent satisfied his disclosure obligations. The ERC observed that subsection 31(4) does not require the Force to create evidence. Further, the Grievor had the video of the Alleged Harasser's interview and did not indicate that it was inaudible or otherwise deficient. As there was no evidence on the record that the Grievor's ability to properly present her grievance was impeded, the ERC found that she did not reasonably require the transcript to do so.

Reasonable Apprehension of Bias and Conflict of Interest

The ERC found that the Grievor did not establish, on a balance of probabilities, that the Respondent had a conflict of interest or that his role as the decision-maker created a reasonable apprehension of bias.

The ERC noted that the jurisprudence is clear that, absent evidence to the contrary, administrative decision-makers are presumed to act fairly and impartially. The presumption is difficult to negate and the burden of establishing a perception of bias lies with the party who asserts it. In this case, as the Grievor did not provide any arguments to support her assertions of bias, the Grievor failed to discharge this burden of proof.

Although the Grievor did not provide arguments to support her allegation of conflict of interest, the ERC noted that the Record contained evidence that the Respondent had discussed the Grievor's harassment allegations with the Alleged Harasser prior to the investigation and that the Respondent himself was questioned during the investigation. The ERC relied on Renaud v Canada (Attorney General), 2013 FC 18, which stated that the duty to be impartial in a harassment investigation is not incompatible with providing evidence in the investigation unless doing so demonstrates bias in favour of one of the parties. In this case, the ERC found no evidence to support a finding that the Respondent was in a conflict of interest.

The ERC recommended that the Commissioner of the RCMP deny the grievance.

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

The Grievor filed a grievance after the Respondent found the Grievor's harassment complaint allegations to be unsubstantiated. The Grievor asserted that the Respondent should not have been the decision-maker due to conflict of interest and bias. Three directions were issues at Level I on the collateral issue of disclosure. The Grievor maintained her request for a transcript of the recorded interview and argued that she could not present her submission until she received all of her requested disclosure. The Level I Adjudicator found the recorded interview to be sufficient and that a transcript was never created or under the control of the Force. Sadly, the Grievor passed away during the presentation of her grievance at Level II. The Commissioner agreed with the Chair of the RCMP External Review Committee that the Grievor failed to establish that the Respondent was in a conflict of interest or biased. The Commissioner denied the grievance.