NC-186 - Harassment

The Respondent found that the Alleged Harasser had not engaged in harassment towards the Appellant contrary to section 2.1 of the Code of Conduct. The Appellant appealed the Decision, alleging breaches of procedural fairness, reasonable apprehension of bias, errors of law and the decision being clearly unreasonable. 

The Appellant alleges that his right to be heard was breached by the Respondent refusing to have a witness interviewed and that the Respondent was “grossly negligent” by refusing to order further investigation to obtain additional documents related to the Alleged Harasser’s actions. The Appellant argues that the Respondent committed errors of law in his interpretation of policy. The Appellant further argues that his right to reasons and right to be heard were violated by the Respondent’s refusal to order further investigation into third party personal information. Finally, the Appellant alleges that the Decision is clearly unreasonable. The Appellant submitted new evidence with his Appeal submissions. The ERC requested that the Appellant and Respondent provide submissions as to the admissibility of this evidence.

The ERC found that the harassment investigation was not sufficiently thorough as the investigators had not obtained crucial documents. The ERC concluded that this finding was determinative of the appeal.

To assist the new decision-maker on redetermination, the ERC went on to find that it appeared that the Respondent had used a template in describing the harassment test, which was an incorrect statement of the onus of proof. However, on further examination, the Respondent had in fact applied the correct onus of proof in his reasons and had not committed an error of law.

The ERC also found that the Respondent’s decision not to order disclosure of third party personal information was not clearly unreasonable, and the Appellant’s right to be heard and right to reasons were not violated.

The ERC declined to assess the Appellant’s further submissions or whether the Appellant’s new evidence should be allowed on appeal as it was unnecessary.

The ERC recommends that the Commissioner allow the appeal and send the case back for redetermination by a new decision-maker.