NC-050 - Harassment

On or about August 16, 2000, while on duty, the Appellant’s firearm was stolen by two women. The Appellant alleged that the women stole the firearm from his vehicle while he was in a restaurant. The women alleged that the Appellant had picked them up and while he was talking with one of them, the other took the firearm.

The Appellant reported the theft and was eventually charged with having conducted himself in a disgraceful manner that brings discredit to the Force contrary to the RCMP Code of Conduct. As a result, an Adjudication Board imposed a reprimand and ordered a forfeiture of five days’ pay. An investigation report describing the uncertainty surrounding the theft of the firearm was produced by investigators but was never provided to the Adjudication Board.

At first, the incident did not negatively impact the Appellant’s career. He has since been promoted twice within the non-commissioned officer ranks and his performance record has been exemplary. In both 2004 and 2009, the Appellant successfully completed the officer candidate program and was placed on the national eligibility list for promotion on both occasions. However, both times, his eligibility expired without ever receiving a commission as an officer.

In 2010, an access to information request revealed that a Superintendent had told the Director administering promotions that there may have been more to the disciplinary matter than what had been disclosed in the Adjudication Board’s decision. Following this, the Appellant began alleging that he was the victim of workplace harassment due to the spreading of gossip relating to the 2000 incident. He filed numerous grievances against members of senior management as a result.

On July 8, 2013, after having received favorable comments from the Federal Court in a judicial review of a grievance, the Appellant wrote to the then Commissioner of the RCMP requesting that he be promoted to the rank of Inspector. On September 13, 2013, the Commissioner rejected the Appellant’s request. The Appellant sought judicial review of the Commissioner’s decision and was successful before the Federal Court. However, the Attorney General appealed the Federal Court’s decision and on June 22, 2015, the Federal Court of Appeal allowed the Attorney General’s appeal; thereby setting aside the judgement of the Federal Court.

By October 2016, the Appellant had not been promoted. As a result, he filed a harassment complaint against the Director General, Executive Officer Development and Resourcing (2015).

The ERC held that the Respondent made a palpable and overriding error in finding that the Appellant’s complaint was unestablished without clarifying information having been sought from the Appellant. This omission prevented the Respondent from making an informed assessment of whether an investigation into the complaint was warranted. As a result, the ERC concluded that the decision on appeal is clearly unreasonable.

The ERC recommended that the appeal be allowed.

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

The Appellant challenged the Respondent's decision that the harassment complaints against the former Commissioner and two Director Generals with the Executive Officer Development Resourcing unit had not been established specifying his appeal on the grounds that the decision was based on an error of law, contravened the principles of procedural fairness and was clearly unreasonable. The Appellant submitted that by failing to mandate an investigation the Respondent did not adhere to policy and as a result, critical information was ignored.

The ERC found that although the decision contained no error in law nor did it violate the rules of procedural fairness, it was clearly unreasonable. The ERC determined that by failing to mandate an investigation, the Respondent did not adhere to policy nor did he have the information required in order for him to establish that it was "inconceivable" that the allegations could be considered harassment.

The ERC further found that the Respondent's decision was clearly unreasonable to have relied on the findings of the Federal Court of Appeal decision. In that decision, the Court found that the former Commissioner did not unfairly exercise his discretion in declining to promote the Appellant. The ERC determined that the Federal Court of Appeal decision had not decided the issue of harassment. The ERC recommended the appeal be allowed but determined that due to the passage of time and other factors, an investigation would be futile and recommended instead an apology to the Appellant.

The Appeal Adjudicator differed, finding that the Respondent's decision was not clearly unreasonable. Though a harassment complaint can merit an investigation, the Appeal Adjudicator found the applicable policy allowed discretion to a decision-maker to proceed in the absence of an investigation in the rare case where there is sufficient information respecting the facts which led to the complaint.

In this case, the Appeal Adjudicator found that the Federal Court of Appeal decision had discussed in detail the past history leading to the complaint and the Court ruled that the former Commissioner and senior management had not abused their authority nor engaged in harassment.

Accordingly, the Respondent's reliance on the Federal Court of Appeal decision made an investigation unnecessary. Moreover, considering the issue again pursuant to this Appeal was determined to be inappropriate and contrary to the principle of issue estoppel. In conclusion, the Appeal Adjudicator found the Respondent's decision was not clearly unreasonable. Therefore, the Respondent's decision was confirmed, and the appeal dismissed.