NC-125 - Harassment

The Appellant returned to a position under the supervision of the Alleged Harasser, after a number of years in another unit. The Appellant and the Alleged Harasser had a difficult relationship. As a result, the Appellant again left the unit and filed a harassment complaint against the Alleged Harasser. The Respondent mandated an investigation into the allegations contained in the complaint.

The Respondent ultimately found that the alleged incidents did not meet the criteria for harassment. In making this decision, the Respondent found that the Appellant had not demonstrated how the Alleged Harasser’s actions met the definition of harassment. Specifically, the Respondent did not find that any of the alleged incidents involved improper conduct.

The Appellant appealed the Decision citing, among other things, that the Respondent made an error of law in assigning the onus of proof to the Appellant to prove that the Alleged Harasser had committed harassment.  

Standard of Review

Prior to assessing the Appellant’s arguments, the ERC reviewed the principles surrounding the standard of review for alleged errors of law. The ERC found that the Appeal Adjudicator is not in the same position as a court conducting judicial review and that the principles of judicial review do not apply for internal statutory appeals. Rather, the standard of review must be assessed by applying the principles of statutory interpretation to the relevant legislation. In so doing, the ERC found that the appropriate standard of review for errors of law is correctness.

Onus of Proof

In applying the standard of correctness, the ERC found that the Respondent committed an error of law when assigning the Appellant the onus of proof when assessing the Complaint. The review of a complaint is inquisitorial and involves assessing all of the available evidence to determine what occurred. It is not an adversarial process where the decision-maker is acting as adjudicative body. 

The ERC recommended that the appeal be allowed.

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

The Appellant filed a harassment complaint against his supervisor and an investigation was conducted into the complaint. Once the investigation was completed, the Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant appealed the Respondent’s decision, claiming that the decision is clearly unreasonable.

The appeal was referred to the ERC and in a Report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the ground that the Respondent committed an error of law by improperly placing the burden of proof on the Appellant in his assessment whether a prima facie breach of the RCMP Code of Conduct occurred. The ERC recommended that the Respondent’s decision be set aside and that the matter be remitted to a new decision-maker.

The Adjudicator concurred with the ERC’s conclusion and found that the Respondent unreasonably interpreted the legal requirements pertaining to onus and burden of proof, thereby committing a reviewable error of law. The Adjudicator allowed the appeal and remitted the matter to a new decision maker.