NC-073 - Harassment

The Appellant presented a harassment complaint (Complaint) against his former Line Officer, the Alleged Harasser. The Complaint contained numerous allegations, including incidents where the Alleged Harasser had made comments which the Appellant perceived as offensive. Other allegations involved the Appellant's belief that the Alleged Harasser interfered in the Appellant's family status accommodation plan and acted unprofessionally in the management of the Appellant's leave related to this accommodation.

The Respondent rendered a Decision finding that the Complaint was not established. In his view, the Alleged Harasser's actions did not amount to harassment. The Respondent found that a manager exercising his managerial duties regarding accommodation and leave could not constitute harassment. The Respondent further found that several of the events occurred prior to the Alleged Harasser having knowledge of the negative impact they had on the Appellant and as a result, they could not be considered. The Respondent found that the remaining incidents did not meet the threshold for harassment. Finally, the Respondent found that one of the incidents could not be found to be directed at the Appellant.

The Appellant appealed the Respondent's Decision.

The ERC found that the Decision was clearly unreasonable for three reasons. First, the ERC held that there is a requirement to make determinations when contradictory evidence is presented to a decision-maker. In this matter, the evidence contained contradictions regarding several incidents; however, the Respondent's decision did not resolve these conflicts. Without these determinations, the reasons for the decision could not be found to be sufficient. Second, while the Respondent properly set out the definition of harassment and the reasonable person test, the Respondent emphasized that the Alleged Harasser could only know of the impact on the Appellant after the problematic behaviour was brought to his attention. This contradicts the reasonable person test which emphasizes whether the Alleged Harasser ought to have known of the impact of his actions. In the same regard, the Respondent took into consideration the Alleged Harasser's willingness to cease his actions had he known of the offence being caused. This reliance on the intent of the Alleged Harasser, and his actual knowledge of the impact on the Appellant, were both found to be incorrect considerations in applying the reasonable person test. Third, the ERC found that the scope of events considered by the Respondent, in deciding whether there was a pattern of harassment, was too limited.

The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker to reassess the conflicting evidence, reapply the reasonable person test, and reconsider whether the incidents establish a pattern of harassment.

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

In September 2015, the Appellant filed a harassment complaint against his Line Officer (the Alleged Harasser) for various interactions and incidents that occurred between 2011 and 2015. An investigation was mandated and statements were obtained from ten individuals, including the Appellant and the Alleged Harasser. On September 1, 2016, the Respondent issued a decision finding that harassment was not established.

On September 14, 2016, the Appellant presented an appeal asserting that the Respondent’s decision was based on an error of law. On July 9, 2021, the RCMP External Review Committee (ERC) found that “the Respondent did not comprehensively assess conflicting evidence, and improperly applied the definition of harassment and the reasonable person test”. The ERC also found that “the Respondent omitted to properly consider whether the incidents as a whole revealed a pattern of harassment”, causing the decision to be clearly unreasonable. The ERC recommended that a new decision maker render a new decision that “properly applies the reasonable person test to the allegations and considers whether the totality of the allegations reveal a pattern of harassment”.

At the final level, the adjudicator found that the only reviewable error in the Respondent’s decision was the application of the reasonable person test. For this reason and in accordance with paragraph 47(1)(b) of the Commissioner’s Standing Orders (Grievances and Appeals), the adjudicator allowed the Appeal, finding that the Respondent’s decision is clearly unreasonable. The appeal was directed to a new decision maker to render a new decision that properly applies the reasonable person test to the allegations and considers whether the totality of the allegations reveal a pattern of harassment.