NC-076 - Harassment

The Appellant presented a harassment complaint (Complaint) against her Detachment Commander, 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 was making sexual advances towards her.

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, while a couple comments should not have been made, they did not constitute harassment. The Respondent further found that the Alleged Harasser did not make sexual advances towards the Appellant, and that he had treated her no differently than others in the detachment. The Respondent found that the remaining incidents did not meet the threshold for harassment. Finally, the Respondent found that looking at all the allegations as a whole, they did not meet the test for harassment.

The Appellant appealed the Respondent's Decision.

The ERC found that the Respondent applied the wrong test for harassment in his decision and committed an error of law. The Respondent referred to the proper definition of harassment from the RCMP Administration Manual, but when the Respondent identified what is required in order to make a finding of harassment, the test he stated was not consistent with the cited manual. The ERC further found that the Decision was unreasonable as the Respondent did not explain how his finding that in two incidents, the Alleged Harasser should not have said what he did, but that this was not a pattern of harassment. Further, the ERC found that the Respondent had found for one incident, had it been repeated, there could be a different finding relating to harassment, but did not explain why two other similar incidents did not create a pattern for harassment. The ERC also found it was unreasonable to not have an investigation conducted when the Appellant and Alleged Harasser had different accounts of the events that led to the Complaint. There is no analysis to explain these differences, or why an investigation wasn't conducted.

The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker to reassess the evidence, have an investigation conducted, reapply the proper 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:

The Appellant appeals a finding made by the Respondent that her supervisor’s behaviour did not meet the definition of harassment. This appeal is made pursuant to subsection 7(1) of the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints) and paragraph 37(a) of the Commissioner’s Standing Orders (Grievances and Appeals).

The Appellant contends that the decision was reached in a manner that contravenes the applicable principles of procedural fairness and is clearly unreasonable. The Appellant also requests that a full investigation be conducted, inclusive of witness interviews.

Pursuant to paragraph 17(a) of the Royal Canadian Mounted Police Regulations, this appeal was forwarded to the Royal Canadian Mounted Police External Review Committee (ERC) for a Recommendation. In a report issued on July 23, 2021 (ERC C-2020-063 (NC-076)), the ERC recommended that the appeal be allowed, on the basis that the Respondent’s decision contained an error of law due to the application of an improper definition of harassment. The ERC also found that the decision was clearly unreasonable due to the fact that an investigation was not mandated and there were incongruences in the rationale pertaining to the repetitive nature of certain behaviours.

The adjudicator disagreed with the ERC on the standard of review applicable to a question of law but ultimately reached the same conclusion that an error of law had indeed been committed by the Respondent in rendering his decision due to the lack of clarity as to the legal test applied. The adjudicator also found that the Respondent’s decision is clearly unreasonable as the rationale was inconsistent with regard to the repetitive nature of incidents deemed unacceptable by the Respondent.

The adjudicator allowed the appeal and directed the Director General of the Workplace Responsibility Branch to identify an alternate decision maker to render a new decision. The adjudicator left it at the new decision maker’s discretion whether further inquiries are required.