NC-264 - Harassment

The Appellant filed a harassment complaint (Complaint) against his detachment commander (Alleged Harasser). The Complaint pertained to the manner in which the Alleged Harasser exercised his supervisory duties in relation to the Appellant.

Following an investigation, the Respondent issued a Decision, finding that the Complaint was not established. The Appellant appealed the Decision, arguing that the Respondent was biased against him; that the investigation into the Complaint was insufficient; that the Respondent improperly relied on medical information contrary to the Privacy Act; and, that the Decision was clearly unreasonable.

The ERC found that the Decision properly reflected the Appellant’s witness statement. Therefore, the Appellant’s assertion that the Respondent improperly summarized his statement was not made out. As a result, the Appellant did not counter the strong presumption of decision-maker neutrality to establish that the Respondent demonstrated an apprehension of bias.

However, the ERC found that the investigation into the Complaint was insufficient and therefore procedurally unfair. Although decision-makers have discretion to determine the extent of a harassment investigation, decision-makers also have a responsibility to ensure that there are no unreasonable omissions in the investigation. Consequently, the ERC found that the Respondent’s failure to pursue obviously crucial evidence by overlooking important witnesses amounted to an unreasonable omission in the investigation.

The ERC further found that the determination that the Decision was procedurally unfair, and based on an insufficient record, was dispositive of the appeal. Therefore, it was unnecessary for the ERC to consider the Appellant’s remaining arguments. However, the ERC acknowledged that information submitted by the Appellant as new evidence on appeal, from the Office of the Privacy Commissioner of Canada (OPC), indicated that the RCMP, in the course of dealing with the Complaint, contravened the use and disclosure provisions of the Privacy Act.  

The ERC recommended that the appeal be allowed.

The ERC recommended as redress that the Final Adjudicator apologize to the Appellant for contraventions by the RCMP of the use and disclosure provisions of the Privacy Act as identified by the OPC.

The ERC further recommended that the matter be remitted to another decision-maker with a direction to assess the feasibility of supplementary investigation. If feasible, to provide both the Alleged Harasser and Appellant the opportunity to comment on any new information obtained. Additionally, that the new decision-maker be directed to (i) ensure the investigation respects the Privacy Act, and (ii) render a new decision based on the new record.

Alternatively, if supplementary investigation is not feasible, the ERC recommended as redress that the Final Adjudicator apologize to the Appellant for the insufficient investigation into his Complaint.

The Adjudicator agreed with the ERC Findings and Recommendations and as such, adopted the ERC Findings and Recommendations in their entirety as their reasons for concluding for that this appeal be allowed.