NC-020 - Harassment

The Appellant was the subject of numerous harassment complaints from the complainant. In 2011, the Respondent found that none were substantiated. The complainant filed grievances regarding the Respondent's decisions in her harassment complaints. In 2015, within these grievance processes, the Respondent ordered an independent review of the complaints and investigations to determine whether the complainant's grievances could be resolved. Around the same timeframe, the Appellant learned that the complainant had contacted the Canadian Human Rights Commission (CHRC) regarding a complaint she had made against him.

Upon learning, in November 2015, of the review and the CHRC process, the Appellant filed a harassment complaint against the complainant for allegedly making false and frivolous complaints and subjecting him to “complaint terrorism”. On September 13, 2016, the Respondent denied the complaint, because it was not filed within one year of the last incident of alleged harassment, as there was neither new information provided to the Appellant nor a new complaint to the CHRC. The Appellant appealed this decision and argued that it was his review of all the processes that made him realize he was subjected to harassment. He also argued that the Respondent was in a conflict of interest because of her past involvement in the matters.

The ERC determined that the Appellant's argument of conflict of interest on the part of the Respondent could not succeed as there was no indication that the Appellant raised his concern with the Respondent at the earliest opportunity, prior to this appeal.

On the issue of the timeliness of the harassment complaint, the ERC found that the fact that the independent review and the CHRC process led the Appellant to conduct his review of the complaints more than one year after the last incident of alleged harassment does not bring him within the limitation period of subsection 2(1) of the CSO (Harassment). There was no new information revealed by either process; therefore, the Appellant had all the information necessary to make an informed decision as to whether to file a harassment complaint when those complaints were made, prior to learning of the review and the CHRC involvement. Lastly, the ERC observed that even if the complainant had filed a new complaint with the CHRC, the Canadian Human Rights Act protects complainants from retaliation, like a harassment complaint in a separate process provided by a workplace.

The ERC recommended that the Commissioner deny the appeal.

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

The Appellant was the subject of numerous harassment complaints from the complainant [Constable C]. In 2011, the Respondent found that none were substantiated. The complainant [Constable C] filed grievances regarding the Respondent's decisions in her harassment complaints. In 2015, within these grievance processes, the Respondent ordered an independent review of the complaints and investigations to determine whether the complainant's [Constable C's] grievances could be resolved. Around the same timeframe, the Appellant learned that the complainant [Constable C] had contacted the Canadian Human Rights Commission (CHRC) regarding a complaint she had made against him.

Upon learning, in November 2015, of the review and the CHRC process, the Appellant filed a harassment complaint against the complainant [Constable C] for allegedly making false and frivolous complaints and subjecting him to “complaint terrorism”. On September 13, 2016, the Respondent denied the complaint because it was not filed within one year of the last incident of alleged harassment, as there was neither new information provided to the Appellant nor a new complaint to the CHRC. The Appellant appealed this decision and argued that it was his review of all the processes that made him realize he was subjected to harassment. He also argued that the Respondent was in a conflict of interest because of her past involvement in the matters.

The ERC examined the reasonableness of the decision and recommended the Appeal be dismissed, agreeing with the Respondent that the complaint exceeded the one-year limitation period contrary to subsection 2(1) of the Commissioner's Standing Orders (Investigation and Resolution of Harassment Complaints) and finding the Respondent “made no manifest or determinative error”. On Appeal, the Appellant also argued that the Respondent should have recused herself, contending she was in a conflict of interest due to her past and present active involvement in the complaint and grievance processes. The ERC deemed the objection untimely as there “is no indication that the Appellant raised his concern with the Respondent prior to this Appeal”.

The Appeal Adjudicator found that, before the impugned decision was made, the Appellant had ample opportunity to object to the Respondent being the Decision-maker. Agreeing with the ERC, the Adjudicator dismissed the Appellant's objection. In addition, the Adjudicator deemed the Appellant's concern to have become moot since a new Commanding Officer has assumed command of “[X]” Division thereby becoming the Decision-maker for the Appellant's harassment complaints.

However, the Appeal Adjudicator allowed the Appeal having found that the Respondent had contravened the applicable principles of procedural fairness by dismissing the complaint on timeliness without first providing the Complainant/Appellant the opportunity to be heard on the issue, or on the additional documents placed before the Respondent. This matter is remitted to the new Commanding Officer “[X]” Division who, after obtaining a written submission from the Complainant/Appellant, will render a new decision on the timeliness of the complaint.