NC-162 - Harassment

The Appellant alleged that the Alleged Harasser engaged in a pattern of harassing behaviours against her, including uttering derogatory comments.

The Respondent determined that the comments were directed at the Appellant, made in the workplace, and caused offence or harm to the Appellant. He further found that the comments were not reflective of the professionalism, respect, and support expected from a supervisor in the RCMP.

Nevertheless, the Respondent found that the comments did not constitute “improper conduct” because the Alleged Harasser only uttered them once, concerning a specific incident.

The Respondent determined that, for each of the allegations, the Appellant had failed to establish a prima facie case.

On appeal, the Appellant argued that the Respondent’s decision was clearly unreasonable, as it relied exclusively on the fact that the comments were only uttered once. Moreover, the Appellant noted that, cumulatively, all of the alleged incidents made her feel that she was harassed.

The Decision is Clearly Unreasonable  

The ERC found that the Respondent based his finding regarding “improper conduct” on a single, extraneous criterion – that the comments were only uttered once. The number of incidents is not a consideration set out in the test to determine whether an alleged harasser exhibited improper and offensive conduct. Accordingly, the ERC found no rational or tenable line of analysis that supports the decision that the Alleged Harasser’s comments do not constitute improper conduct.

Errors of Law: Onus of Proof

The ERC has previously found that a harassment complaint is not an adversarial process where an appellant and an alleged harasser are before an adjudicative body, with the person alleging a contravention bearing an onus to prove the allegation. It is an inquisitorial process, where the decision-maker must assess all the necessary information to ascertain whether there is a prima facie contravention of the Code of Conduct.

Because the Respondent placed the onus to prove a prima facie case for every allegation on the Appellant, the ERC concluded that the Respondent erred in law.

The Combined Effect and Repetitive Characteristic of the Behaviours

The ERC has previously found that it is fundamental to a determination of whether harassment has occurred that the decision-maker consider all of the events in question as a series or pattern. In general, it is not sufficient for a decision-maker to review each event individually and make a determination as to whether that event alone constituted harassment, as the Respondent did in his decision.

The ERC concluded that the Respondent erred in law when he failed to consider the cumulative effects of the alleged behaviours on the Appellant.

Failure to Consider Whether a Single Incident Qualifies as Harassment

Finally, the ERC has previously found that, per RCMP policy, decision-makers must consider the possibility that a single incident meets the definition of harassment. A single incident, that is serious in nature and has a long-lasting impact, can meet this threshold.

Given the absence of this consideration, the ERC found that the Respondent erred in law.

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