NC-159 - Harassment

The Appellant filed a harassment complaint against an RCMP member. The Appellant alleged several incidents of harassment by a senior RCMP member (Alleged Harasser), claiming that he had cancelled the Appellant’s previously approved transfer and refused to release the Appellant to a position he was awarded with, without any explanations. The Appellant also alleged that the Alleged Harasser made harassing comments and failed to check in on the Appellant’s wellbeing following a high-risk situation. The Office for the Coordination of Harassment Complaints (OCHC) recommended that a limited investigation be conducted. The Respondent outlined the allegation, and set out the alleged behaviours. The Respondent determined that the Alleged Harasser’s behaviour was not improper, offensive or harmful when considered in accordance with the definition of harassment. In the Respondent’s view, the Alleged Harasser was, at times, merely fulfilling managerial duties. The Respondent stated with certainty that the alleged behaviours did not meet the policy definition of harassment. Accordingly, the allegation was not established and the Respondent concluded that a harassment investigation would not be mandated.

The Appellant appealed, claiming that the Respondent’s Decision was arrived at in a procedurally unfair manner, and was clearly unreasonable. In the Appellant’s view, the alleged incidents would constitute harassment, and the Respondent’s Decision was erroneous for several reasons. The Appellant took exception to the Respondent’s determination that a finding of harassment was unsupported, pointing out that there was no attempt to speak to any witnesses that could provide evidence of harassment. As redress, the Appellant requested that an investigation be mandated and that numerous witnesses be interviewed to confirm that the alleged incidents were not speculation.

The ERC found that the Decision was clearly unreasonable. The Appellant alleged several incidents of harassment by the Alleged Harasser, and an investigation was not mandated when one should have been. The Respondent did not have the full story to render the Decision, and the Respondent erred by issuing the Decision without mandating an investigation to meaningfully assess the alleged incidents. The ERC also found the Respondent’s statement, that they could say with certainty that the definition of harassment was not met, to be troubling because the absence of an investigation rendered it unknown whether the definition of harassment was met.

The ERC found that the policy definition of harassment, on its face, could capture all of the alleged incidents. Further, it was not clear how the Respondent could have reached certain conclusions, in the absence of an investigation.

While the ERC recommends that the appeal be allowed on the basis that the Respondent erred by not mandating an investigation, the ERC also found that other aspects of the Decision were erroneous. The Respondent did not consider the alleged incidents holistically as required by the relevant test, and had used wording in the Decision which referred to the Alleged Harasser’s intent. The ERC found that both aspects could amount to errors of law.

The ERC acknowledged that investigations into harassment complaints do not have to occur in all circumstances, but in this case, an investigation was required.

The ERC recommends that the appeal be allowed on the basis that the Decision was clearly unreasonable, and that the matter be remitted to a new decision-maker with directions to mandate an informed investigation and render a new decision after considering the alleged behaviours in detail on their own and together.