NC-153 - Harassment

The Appellant appeals the Respondent’s Decision that the Alleged Harasser did not engage in harassment. She argues that the Respondent’s Decision was clearly unreasonable because both the investigation and a witness were “biased”.

The ERC found that the Appellant’s submissions amounted to an allegation that the investigators did not have an open mind when conducting the investigation, and that the Respondent erred in assessing a witness’ credibility. The ERC found that the Appellant’s arguments were not admissible because they were fresh arguments raised for the first time at the appeal stage. The ERC noted that the Commissioner’s Standing Orders (Grievances and Appeals) reflects an intent that new arguments that could have been made before the original decision-maker be generally prohibited on appeal, and that this is consistent with the general principle against new arguments on appeal. The Appellant’s fresh arguments on appeal contained nothing which was not reasonably known to her when she was preparing her rebuttal to the Preliminary Investigation Report, and were therefore inadmissible at the appeal stage.

The ERC further found that even if the Appellant’s arguments are found to be admissible by the Adjudicator, the Appellant has not established that the Respondent’s Decision was clearly unreasonable, because she did not establish a lack of open-mindedness on the part of the investigators, or that the Respondent erred in assessing a witness’ credibility. 

The ERC recommends that the appeal be dismissed.