NC-133 - Harassment

The Appellant’s harassment appeal concerns a single allegation. The Appellant alleged that the Alleged Harasser asked the Appellant personal medical questions concerning a job posting, and then, without his consent, sent an email that contained his personal medical information to other members of the RCMP. The Appellant submitted that the disclosure of his personal medical information to other members, which included the Appellant’s supervisor, staffing officers, and co-workers, caused him to feel violated. The allegation further alleged that the disclosure of the Appellant’s personal medical information had a tremendous impact on his personal and professional life.

The Appellant filed a separate complaint with the Office of the Privacy Commissioner of Canada (OPC) pertaining to the dissemination of his personal medical information. The OPC found that the dissemination of the Appellant’s personal medical information resulted in a “well-founded” privacy breach. 

The Respondent found that the harassment complaint did not meet the definition of harassment, he did not need to mandate an investigation, and that the Appellant’s harassment complaint was addressed through the “proper process” (referring to the OPC’s finding). As a result, the Respondent determined that the harassment complaint could not be resolved through the RCMP harassment investigative process.

The Appellant appealed the Respondent’s Decision. He submitted that the Respondent had insufficient information to render his Decision, and he maintained that the Alleged Harasser’s conduct had amounted to harassment.

The ERC found that the appeal should be allowed because the Decision is both procedurally unfair, and clearly unreasonable.

The ERC found that the Decision is procedurally unfair because the Respondent failed to obtain sufficient supplemental information from the Appellant about his harassment complaint. Consequently, the harassment complaint was not sufficiently complete for the Respondent to find that an investigational mandate was not required, nor that the harassment complaint does not meet the RCMP definition of harassment. Accordingly, the Appellant was not properly heard.

The ERC further found that the Decision is clearly unreasonable for two reasons. First, the Respondent’s reliance on the OPC’s findings of a well-founded privacy breach as a means to dispose of the Appellant’s harassment complaint. Second, there is no rational and tenable line of analysis to support the Respondent’s finding that the Appellant’s harassment complaint does not meet the definition of harassment, and therefore does not require an investigation. 

The ERC recommended that the appeal be allowed, and the matter be remitted to a new decision-maker with the following directions for rendering a new decision:

    - supplemental information be obtained from the Appellant; and

    - if necessary, an investigation be mandated into the Appellant’s harassment allegations. 

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

The Appellant filed a harassment complaint against the Alleged Harasser. The Respondent issued a Record of Decision wherein he determined that harassment was not established, concluding that the Appellant’s complaint was unfounded and that an investigation into the complaint was not necessary.

The Appellant appealed the Respondent’s decision, claiming that the decision is clearly unreasonable, is based on an error of law, and was reached in a manner that contravened the applicable principles of procedural fairness.

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 basis that the decision was reached in breach of procedural fairness and is clearly unreasonable. The ERC recommended that the Respondent’s decision be set aside and that the matter be remitted to a new decision-maker.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator disagreed with the finding of the ERC. The Adjudicator found that the Appellant’s right to be heard was not breached since the Respondent sought out the material relevant to the complaint and that, although more fulsome reasons would have been preferred, the decision is not clearly unreasonable for lack of a detailed explanation. Furthermore, due to the time elapsed, the Adjudicator found that it would be futile to remit the matter to a new decision-maker given the retirement of the Alleged Harasser. The appeal was dismissed.