NC-229 - Harassment

The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser, under whose command she was at the relevant time. In doing so, she alleged two incidents of harassment. The Respondent mandated an investigation and interviews were undertaken with the Appellant and Alleged Harasser. The Alleged Harasser provided a prepared statement in which he denied engaging in harassment, along with several attachments.

The Respondent determined that the allegation was not established on a balance of probabilities.

The Appellant filed her Statement of Appeal with the Office for the Coordination of Grievances and Appeals (OCGA). The Appellant argued that the investigators should have gathered additional information. Furthermore, the Appellant believed that the Decision was based on an error of law and was clearly unreasonable. 

The ERC found that the Respondent did not address the timeliness of the Complaint within the Decision. The ERC also found that the Complaint was not submitted within the one-year time limit required by subsection 2(1) of the Commissioner's Standing Orders (Harassment), nor did the record indicate that the Appellant had requested, or attempted to request, an extension of that limitation period. However, the ERC found that the Respondent, by implication, had granted an extension of the limitation period by mandating an investigation. The ERC also found that it would be highly prejudicial to the Appellant to find that the lack of a written explanation for an extension barred the review of the appeal on its merits.

The ERC considered the admissibility of new evidence on appeal, namely, two documents relied upon by the Appellant. The ERC found that neither of those attachments satisfied the Palmer test.

The Appellant took exception to certain witnesses not being interviewed by investigators. The ERC found that the Appellant had not raised her procedural fairness concerns about the adequacy of the investigation at the earliest practical opportunity. 

The Appellant argued that the Respondent applied irrelevant policy and failed to address policy. The ERC found that the Appellant’s arguments amounted to attempts at re-litigating the harassment allegations that were before the Respondent.

Further, the Appellant argued that the Respondent’s Decision contained inaccurate information, thereby resulting in an error of fact. The ERC found that, although the Respondent’s Decision contained an error of fact, this did not have a clearly unreasonable effect on the Decision.

The Appellant also raised several arguments in relation to the sufficiency of reasons. The ERC found that the Respondent provided a brief rationale with respect to Alleged Behaviour 1. In terms of the sufficiency of that rationale, the ERC referred to the Court’s decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, which confirmed that a decision may be reviewed along with the record for the purpose of assessing the reasonableness of the outcome. In considering the Respondent’s reasoning in light of the record, the ERC determined that the record could shed light on the Respondent’s reasoning for her conclusions regarding Alleged Behaviour 1. In terms of the other arguments raised by the Appellant regarding the sufficiency of reasons, the ERC concluded that one such argument was an attempt at re-litigating her Complaint, and the remaining argument could not be meaningfully assessed.

Lastly, the Appellant argued that the Respondent had erred by not finding that Alleged Behaviour 1 was harassment. The ERC found that the Respondent did not explicitly outline the “reasonable person” test within the Decision. Despite this, the ERC found that the Decision demonstrated the Respondent’s proper application of that test to the facts of the Complaint. Accordingly, the ERC concluded that the Respondent had not applied that test in a clearly unreasonable manner. The ERC also found that aspects of the Alleged Harasser’s information supported a finding that the Respondent did not err by not finding that Alleged Behaviour 1 was harassment.

The ERC recommends that the appeal be dismissed, and the Decision under appeal be confirmed.