NC-113 - Harassment

The Appellant appeals the Respondent’s Decision (Decision) to dismiss his harassment complaint (Complaint) against the Alleged Harasser, who was another member of the Force. 

The Alleged Harasser had reported to superiors that the Appellant had intentionally followed him in his vehicle. The Alleged Harasser also reported to them that the Appellant had previously been directed to have no contact with the Alleged Harasser. The Alleged Harasser later reported the incident, as well as a number of other incidents where the Appellant had allegedly harassed him, to individuals at an external agency. According to one of those individuals, the Alleged Harasser, while expressing his frustration with the situation involving the Appellant, made a comment to the effect that both he and the Appellant carried guns. The Appellant later found out what the Alleged Harasser had said. He filed the Complaint containing two allegations of harassment. One pertained to the Alleged Harasser falsely reporting that the Appellant had followed him in his vehicle. The other related to the Alleged Harasser’s comment regarding guns. The Appellant felt that these actions were meant to discredit, inconvenience and intimidate him. Following an investigation into the Complaint, the Respondent rendered the Decision finding that neither of the two allegations revealed “improper conduct”, one of the criteria required to make a finding of harassment.

The Appellant believes the Decision was rendered in a procedurally unfair manner because insufficient documentation was provided to the Respondent. He also asserts that the Respondent’s finding that harassment did not occur is clearly unreasonable.

The ERC found that the process through which documentation was provided to the Respondent was not procedurally unfair towards the Appellant. The Appellant could have, but did not, use steps within the harassment complaint process to formally request that additional documents be provided to the Respondent before he rendered the Decision. Additionally, because the Appellant had not taken those steps, that documentation was not admissible on appeal.

The ERC found that the Respondent’s Decision regarding the first allegation was not clearly unreasonable. The Respondent explained why the Alleged Harasser’s report of having been followed did not amount to improper conduct. The line of analysis, while very brief, was supported by the record which contained evidence of a perception by the Alleged Harasser that he had indeed been followed. The ERC found, however, that the Decision regarding the second allegation was clearly unreasonable. In finding that a witness had not considered the utterance regarding guns to be of significant concern, the Respondent mischaracterized the evidence. The record showed that the witness had in fact expressed a significant degree of concern regarding the utterance. The witness’ evidence was central to the Respondent’s determination that the conduct was not improper, and the mischaracterization of that evidence was a fundamental flaw in the line of analysis.

The ERC recommended that the appeal be allowed, in part, and that the matter be remitted to another decision-maker for a new decision regarding the second allegation.

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

The Appellant challenged the Respondent’s finding that his harassment complaint was not established.

The Alleged Harasser had informed his superiors and the provincial Serious Incident Response Team (SIRT), that the Appellant intentionally followed him in his vehicle. During the course of his report to SIRT, the Alleged Harasser made a comment to the effect that both parties carried guns as part of their profession. Upon learning of both the Allegation and the comment, the Appellant filed a complaint containing two allegations of harassment. The Appellant felt that both the accusation and the comment were made to discredit, inconvenience, and intimidate him. Following an investigation, the Respondent determined that neither allegation referred to "improper conduct", a criteria of harassment.

The Appellant insisted that the decision was based on insufficient documentation, rendering it procedurally unfair. Moreover, he argued that the Respondent’s finding that harassment did not occur is clearly unreasonable.

The appeal was referred to the ERC. In a Report containing Findings and Recommendations, the ERC concluded that the handling of documentation did not amount to a breach of procedural fairness. The Appellant had the option to formally request additional documents be included in the record but did not. Accordingly, this information was not considered by the Respondent and is not admissible on appeal. Nevertheless, the ERC recommended that the appeal be allowed in part, on the grounds that the Respondent’s findings with respect to Allegation 2 are clearly unreasonable.

In respect to Allegation 1, the ERC found that the Respondent correctly observed there was evidence that the Alleged Harasser perceived he was being followed by the Appellant, whether that was true or not is irrelevant. As for Allegation 2, the ERC found the Respondent relied on erroneous and irrelevant considerations in order to conclude that the "guns" utterance could not be considered harassment. Accordingly, the ERC recommended the matter be remitted to a new decision-maker for fresh consideration.

Having examined the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the ERC findings and allowed the appeal, with respect to Allegation 2. However, the Adjudicator declined to remit the matter for redetermination. The Adjudicator determined that, due to the passage of nearly eight years and the retirement of the Appellant and Alleged Harasser, the redress sought was nor longer viable, and issued an apology without further direction.