NC-180 - Harassment

The Appellant had filed a number of grievances before changes were made to the RCMP Act in 2014 (legacy grievances). The Alleged Harasser made a decision collectively dismissing the Appellant’s legacy grievances. The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser.  

An investigation was mandated. Soon after the investigation had commenced, the Respondent issued a Decision stopping the investigation. The Respondent found that the Complaint should not have advanced in the first instance, given that section 3.1.29 of Chapter II.3 of the Administration Manual (AM) entitled, “Grievances and Appeals” states that, “[n]o decision, act, or omission made in good faith by a person acting as an adjudicator, Office for the Coordination of Grievances and Appeals (OCGA) case manager, or officer in charge of the OCGA may be the subject of a harassment complaint or a grievance” (qualified immunity provision) and the alleged incidents were acts that were performed in the capacity of an OCGA employee. The Respondent also found that the allegations in the Complaint did not meet the definition of harassment because the Alleged Harasser was performing her duties as per RCMP policy.

The Appellant appealed the Respondent’s Decision. On appeal, the Appellant argued that the Respondent made an error of law when she applied the qualified immunity provision in her Decision. The Appellant also argued that the Respondent’s Decision was procedurally unfair because the Appellant was not provided a fair opportunity to be heard and that the Decision was clearly unreasonable because the Respondent’s reasons were insufficient.

The ERC found that the Respondent made an error of law when she applied the qualified immunity provision to the Alleged Harasser.

The ERC also found that the Respondent’s Decision was reached in a procedurally unfair manner. The Appellant did not have an opportunity to respond to information regarding the applicability of the qualified immunity provision to the Alleged Harasser’s actions before the Respondent made the Decision to stop the investigation and effectively end the Complaint process. The ERC considered whether the test of inevitability in Mobil Oil Canada v. Canada Newfoundland Offshore Petroleum Board [1994] 1 S.C.R. 202 could be applied to dismiss the appeal despite the breach of procedural fairness and found that it was not inevitable that the Alleged Harasser would benefit from the qualified immunity provision.   

In addition, the ERC found that the Respondent’s Decision was reached in a procedurally unfair manner because the information that was submitted by the Appellant to the harassment investigators was not considered by the Respondent before she applied the elements of the harassment test to the Appellant’s Complaint.

The ERC recommended that the appeal be allowed. 

The Commissioner’s decision, as summarized by his office, is as follows:

The Appellant filed a harassment complaint against the Alleged Harasser for decisions she made in her capacity as Adjudicator for her ongoing grievances. The Respondent issued a Record of Decision where she determined that harassment was not established, citing RCMP policy that prevents the presentation of harassment complaints against adjudicators.

The Appellant appealed the Respondent’s decision, claiming that the decision is clearly unreasonable, is based on an error of law, and was reached in a manner that contravened the applicable principles of procedural fairness.

The appeal was referred to the RCMP ERC and in a Report containing findings and recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision was reached in breach of procedural fairness and was based on an error of law. The ERC recommended that the appeal be allowed and the matter be remitted to a new decision-maker.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator disagreed with the findings of the ERC. The Adjudicator dismissed the appeal concluding that, given the specific circumstances of the complaint and the investigation, the Respondent’s decision to annul the investigation did not amount to a breach of procedural fairness. Furthermore, the Adjudicator found that the decision is not based on an error of law, nor is it clearly unreasonable. The appeal was dismissed.