NC-139 - Harassment

The Appellant appealed the Respondent’s decision that the Alleged Harasser did not engage in harassment. She argues that the Respondent’s decision was clearly unreasonable.

The ERC found that that the Respondent’s decision was clearly unreasonable due to insufficiency of reasons. The ERC noted that the reasons provided need to be “proper, adequate and intelligible” and enable the parties concerned to evaluate whether there are grounds of appeal. The ERC relied on Supreme Court of Canada (SCC) jurisprudence which held that reviewing bodies must be able to “trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic.” The reasons must also reveal a rational chain of analysis that could reasonably lead the reviewing body from the evidence to the outcome. The ERC found that it was this rational chain of analysis that was absent from the Respondent’s decision. Although the Respondent accurately referred to the reasonable person test to be applied in order to determine whether a person ought reasonably to have known that his conduct would cause offence or harm, she did not explain how she applied this test to the facts in this matter. The SCC has emphasized that “[r]easons that simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion will rarely assist a reviewing court in understanding the rationale underlying a decision and are no substitute for statements of fact, analysis, inference and judgment.”  

The ERC recommended that the appeal be allowed and that the matter be remitted to a new decision-maker for redetermination.

The Adjudicator agreed with the ERC Findings and Recommendations and as such, adopted the ERC Findings and Recommendations in their entirety as their reasons for concluding for that this appeal be allowed, the Respondent’s decision be set aside and the matter be remitted to a new decision-maker for a new decision.