NC-151 - Harassment

The Appellant was the subject of conduct proceedings as a result of allegations of unwanted physical contact with female colleagues. Subsequently, the Appellant was called as a witness in a trial. In accordance with the disclosure obligations pursuant to section 8 of the “X” Division Operation Manual which relates to “McNeil disclosures”, a member of the Professional Responsibility Unit (PRU) sent a Memorandum to Crown Counsel advising of the ongoing conduct proceedings against the Appellant and this was read in court, which caused the Appellant to feel humiliated. He filed a harassment complaint based on the fact that he was not given notice of the Memorandum and because he maintained that the contents were false. The Respondent dismissed the harassment complaint finding that the Alleged Harasser’s actions did not amount to harassment.

The Appellant appealed the Respondent’s Decision. He argued that his procedural rights were breached because the Respondent was biased since she was involved in the conduct process. Moreover, he argues that the Decision was clearly unreasonable because no investigation was mandated, and because the Respondent misunderstood the legal principles put forth by the Supreme Court of Canada in R. v. McNeil, as well as for several other reasons.

First, the ERC found that the mere involvement of the Respondent in the conduct process is not sufficient on its own to reverse the presumption of impartiality. Relatedly, the Appellant did not demonstrate that the Office for the Coordination of Harassment Complaints (OCHC)’s opinion improperly influenced the Respondent.

Second, the failure to mandate an investigation into the harassment complaint was not clearly unreasonable. While the ERC and the Commissioner have been consistent in saying that the decision to not investigate harassment allegations must be used “sparingly”, there was sufficient evidence before the Respondent to render findings on the allegations in this case because the relevant circumstances of the harassment complaint appeared to have been fully known to, and understood by, the Respondent. There were no factual disputes.

Third, the Decision was not clearly unreasonable based on a misunderstanding of R. v. McNeil because the Respondent did not rely on the case law, but rather on policy.

Finally, the various additional arguments raised by the Appellant do not render the Decision clearly unreasonable because they are mostly assertions with little or no explanation, or they are inaccurate. For example, the argument that the Respondent absolved the Alleged Harasser based on the fact that a subordinate had drafted the Memorandum misrepresents what the Respondent said.

The ERC recommends that the Commissioner dismiss the appeal.