NC-099 – Harassment

During an accommodation process that did not unfold as the Appellant had hoped, the Appellant presented a harassment complaint (Complaint) against the Career Development and Resourcing Officer, the Alleged Harasser. The Appellant indicated that the Alleged Harasser sent him three emails that were harassing in nature. In two emails, she allegedly did not answer questions regarding the accommodation process and raised the possibility of an administrative discharge if the Appellant did not accept an offered position. In the other email, she allegedly refused to inquire on the Appellant’s behalf concerning the loss of an accommodation option. The Appellant attached to the Complaint a nine-page document that provided supporting details.

The Respondent rendered a Decision finding that the Complaint was not established and did not require an investigation. He found that the alleged behaviours did not individually or collectively meet the elements of the test for “harassment”. He further explained that the Alleged Harasser had attempted to assist the Appellant find the answers to his questions, and that the Appellant’s lack of cooperation caused the accommodation process to stall.

The Appellant appealed the Respondent’s Decision. He submits that the Respondent erred by failing to order investigations into the Complaint and into his accommodation process. He also submits that the Respondent relied on the wrong version of a policy in discussing the duty to accommodate. He further submits that the Respondent made various other factual errors. 

The ERC found that the Respondent’s decision was not clearly unreasonable.

To begin, this was one of the exceptional cases in which it was reasonable to use discretion to forego a harassment investigation. The Appellant provided a comprehensive overview of the relevant circumstances both in his Complaint and in the nine-page attachment to it. He did not name any witnesses whom he thought could help bring more clarity to the matter. Furthermore, the interactions that formed the basis of the Complaint were contained within emails that were before the Respondent. It is not clear what information an investigation might have helped add to the thorough material that was before the Respondent regarding the alleged harassment.

The Respondent also did not need to order an investigation into the Appellant’s accommodation process. That process was not a live issue in this forum. The Respondent’s task was to decide whether the Complaint was established on a balance of probabilities. He carried out that task.

The Respondent did mistakenly refer to the wrong version of an accommodation policy while he was discussing the Appellant’s obligations to cooperate during the accommodation process. However, this minor mistake had no impact on the ultimate decision that the Alleged Harasser did not engage in harassment.

Lastly, given the high degree of deference owed to the Respondent, the other disputed findings of fact could not lead to a conclusion that the decision was clearly unreasonable. The Respondent reviewed the evidence before him and made findings that were either capable of being supported by that evidence or had nothing to do with the Alleged Harasser’s actions. To reweigh that evidence, or the inferences the Respondent drew from it, would be improper.

The ERC recommended that the Commissioner dismiss the Appeal. 

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

The Appellant appeals a finding made by the Respondent that the Alleged Harasser’s behaviour did not meet the definition of harassment. The Appellant contends that the decision was reached in a manner that contravenes the applicable principles of procedural fairness, is based on an error of law, and is clearly unreasonable. The Appellant requests that a thorough investigation be conducted by an external third party.

This appeal was forwarded to the Royal Canadian Mounted Police External Review Committee (ERC) for a Recommendation. The ERC recommended that the appeal be dismissed.

The adjudicator found that an investigation was not necessary in the circumstances, as the record contained sufficient information, and that the decision not to order an investigation did not amount to a breach of procedural fairness. The adjudicator did not find that the Respondent’s decision was tainted by an error of law, nor that it was clearly unreasonable. As such, the adjudicator dismissed the appeal.