Date: 20000621
Docket: T-931-98
BETWEEN:
OSRA LINDO
Applicant
- and -
ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") wherein the Commission essentially adopted the following proposed resolution:
| The Commission resolves: |
| pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint (T43650) of Osra Lindo of Agincourt, Ontario against the Royal Bank of Canada dated 31 March 1995, alleging discrimination in employment on the grounds of age and colour, because on the evidence the allegation of discrimination is unfounded. |
The decision of the Commission was conveyed to the applicant and the respondent under cover of letters dated the 27th of March, 1998. Those letters read in part as follows:
| Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission[s] filed in response to the report. After examining this information, the Commission decided to dismiss the complaint. The reasons for the Commission"s decision are as follows: |
| Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because: |
| the evidence does not support the allegation that the complainant was discriminated against on the basis of age. The person who replaced the complainant was six years younger than the complainant. |
| the evidence does not support the allegation that the complainant"s manager made derogatory comments about the complainant"s sex and colour, nor that he made derogatory comments in reference to employees who are black. |
the evidence does not support the complainant"s allegations regarding her performance appraisal and her early retirement.
The authority for the Commission"s decision that is under review is found in section 44 of Canadian Human Rights Act1. The relevant portions of that section read as follows:
44. (1)An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
...
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
...
(3) On receipt of a report referred to in subsection (1), the Commission
...
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
...
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_:
...
b) rejette la plainte, si elle est convaincue_:
(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
...
BACKGROUND
[2] No affidavits were filed on this application for judicial review. In the result, the following factual background is drawn from the report of the investigation conducted on behalf of the Commission into the applicant"s complaint of discrimination in employment made against the respondent.
[3] The applicant, apparently at the time of the complaint, 56 years of age, is, in the words of the report "a black woman" who, at that time, had been employed by the respondent for some 30 years, most recently as "Coordinator, Payroll Evenings". Her complaint alleges that the respondent discriminated against her in employment by treating her differently and by refusing to continue to employ her on the grounds of age and colour in that:
| a) Her position was downgraded from pay grade 19 to paygrade 15 and her responsibilities were considerably reduced; |
| b) In August 1993, a new Manager of Client Services, her immediate superior, was appointed and shortly thereafter they had a discussion about management styles during which she said that she hoped there were no liabilities in her management style as far as the new manager was concerned, to which, he replied, "What, that you"re black and you"re a woman?"; |
| c) Her manager treated her in an arrogant manner; |
| d) During a discussion of staff appraisals in October, 1993, the manager said he did not see her as a manager and that she was a nice grandmother; |
| e) She was given an unfair and biased appraisal and went to the Human Resources Department with her allegations of discrimination, as a result of which her appraisal was slightly modified but nothing was done about her allegations of discrimination; |
| f) In December, 1993, she arranged for a black female employee to undertake some training but the manager brought her back; |
| g) In May, 1994, the manager suggested that this same black employee take a developmental assignment and insisted on filling her position behind her so that she would not have a job to return to; |
| h) At a management seminar in June, 1994, personnel were divided into teams designated by coloured balloons, one of which was black, and the manager referred to the team with this balloon as "the nigger team"; |
| i) Around March, 1994, the manager told her, that he considered her the lowest performer of the three Coordinators and that if she didn"t accept the offered retirement package, he would eliminate her position; |
| j) In May, 1994, the complainant accepted the retirement package. She subsequently took sick leave due to stress and her last day of service was October 31, 1994; |
| k) The manager appointed a young white female junior coordinator to the complainant"s position in September, 1994, proving there was never any intention to eliminate her position; |
| l) The complainant states that she took her complaint to the respondent"s internal personnel counsellors but the investigator assigned to her case told her that the respondent was not willing to address her concerns because she voluntarily took a retirement package. |
[4] The respondent denied the allegations of discriminatory conduct and indicated to those conducting the investigation on behalf of the Commission that it is committed to providing its employees with a work environment free from harassment and discrimination.
THE ISSUES
[5] The applicant alleges that she was denied fairness in the conduct of the investigation of her complaint and in the process leading to the decision under review in that, although she was provided with a copy of the investigation report before it was put before the Commission, and was given an opportunity to comment in writing on it, she was denied access to a substantial body of material underlying the investigation report and was therefore substantially limited in her capacity to respond to the report. This concern was the subject of an objection pursuant to Rule 318(2) of the Federal Court Rules, 19982 by the Commission, to the delivery to the Court and to the applicant of background materials. That objection by the Commission was sustained by Order of this Court dated the 25th of January, 1999. That Order was not appealed.
[6] Further issues identified by the applicant on this application for judicial review are the standard of review of the decision of the Commission and whether or not, against the appropriate standard or standards of review, the Commission erred in a reviewable manner in reaching the decision that it did.
THE POSITIONS OF THE PARTIES
[7] Counsel for the applicant urges that, against the appropriate standard or standards of review, the Commission erred in a reviewable manner in concluding, as reflected in its brief reasons, that: the evidence "...does not support the allegation that the complainant was discriminated against on the basis of age" and that the evidence does not support "...the allegation that the complainant"s manager made derogatory comments about the complainant"s sex and colour, nor that he made derogatory comments in reference to employees who are black"; by, in effect, assessing the relative credibility of the evidence of the applicant and her manager without providing a hearing; by failing to properly considered the totality of the evidence before it regarding the performance evaluation of the applicant and regarding the circumstances surrounding her allegedly forced early retirement; by failing to interview a witness identified by the applicant who, in the view of the applicant, was a "key" witness; by failing to address the applicant"s concern regarding the race of the successor to her position; and by inappropriately assessing the age differential between the applicant and her successor in reaching its determination regarding discrimination on the basis of age.
[8] Counsel for the respondent urges that, against the appropriate standard or standards of review, the Commission made no reviewable error.
ANALYSIS
STANDARDS OF REVIEW
DUTY OF FAIRNESS
[9] There was no dispute before me or in written submissions filed subsequent to the hearing of this matter that a duty of procedural fairness applies in respect of decisions of the Commission such as that here under review. In Baker v. Canada (Minister of Citizenship and Immigration)3, (hereinafter "Baker"), Madame Justice L"Heureux-Dubé wrote at page 836:
| The fact that a decision is administrative and affects "the rights, privileges or interests of an individual" is sufficient to trigger the application of the duty of fairness: ... [citation omitted] |
The decision here under review is clearly administrative in nature and there can be no doubt that the interests of the applicant are affected by the decision.
[10] There remains, nonetheless, an issue as to the content of the duty of fairness on the facts of this matter. Once again in Baker, Madame Justice L"Heureux-Dubé wrote at page 837:
| As I wrote in Knight v. Indian Head School Division No. 19, ..."the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: ... [citations omitted] |
Madame Justice L"Heureux-Dubé then went on to review some of the criteria to be used in determining what procedural rights the duty of fairness requires in any given set of circumstances. The criteria that she identified are: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the decision making body operates; the importance of the decision to the individual or individuals affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the decision-making body, particularly when the underlying statute leaves a choice of procedure to it. Madame Justice L"Heureux-Dubé noted that the foregoing criteria do not constitute an exhaustive list.
[11] Based upon the decisions of this Court in Slattery v. Canadian Human Rights Commission4 and Miller v. Canadian Human Rights Commission et al.5, the content of the duty of fairness required of the Commission in respect of decisions such as that here under review is reasonably limited. The investigation conducted on behalf of the Commission must be fair, mindful of the interests of the parties involved, and thorough. It must reflect neutrality. The investigative report must be provided to the parties before it is transmitted to the Commission and the parties must be given a reasonable opportunity to comment in writing on the investigative report. Any comments submitted must be transmitted to the Commission for its consideration in conjunction with the investigative report itself.
[12] I am satisfied that the foregoing description of the content of the duty of fairness in respect of decisions of the Commission such as that here under review is consistent with the guidance provided by the Supreme Court of Canada in Baker.
QUESTIONS OF LAW
[13] The standard of review to be applied to questions of law involved in a decision of the Commission is one of correctness6.
QUESTIONS OF FACT OR INTERPRETATION OF THE TOTALITY OF THE MATERIAL BEFORE THE COMMISSION
[14] On question of fact or interpretation of the totality of the material before the Commission against the applicable law, I am satisfied that, once again against the analysis provided in Baker, the standard of review is reasonableness or, in the words of Madame Justice L"Heureux-Dubé in Baker , "reasonableness simpliciter".
[15] In Holmes v. Canada (Attorney General)7, my colleague Madame Justice Tremblay-Lamer wrote at paragraph 32:
| On the other hand, decisions of the Commission on questions of fact will only be reviewable on a standard of reasonableness. In Ross ...the court indicated that "a finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate". Applying the same reasoning to the facts of the case at hand, I would say that the Commission"s finding that no adverse effect discrimination occurred is just such a finding impregnated with facts and which ought not to be disturbed unless it can be characterized as unreasonable. [emphasis in original, citation omitted] |
[16] In affirming Madame Justice Tremblay-Lamer"s decision in Holmes8, Mr. Justice Décary for the Court of Appeal wrote at paragraph 5:
| The question before the Commission at this stage was whether, having regard to all the circumstances of the complaint, an inquiry was warranted. The Commission found it was not. There are a number of legitimate reasons or reasonable grounds upon which the Commission could decide the way it did. In reaching a conclusion the Commission is entitled and obligated to have regard to all of the facts and allegations placed before it. In this case, there was sufficient evidence on which the Commission could conclude that further consideration of the matter by a Tribunal was not warranted. As was noted by LaForest J., in Cooper v. Canadian Human Rights Commission...: |
| [...]It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission"s role, then, is that of assessing the sufficiency of the evidence before it [...]. |
| [emphasis added, citation omitted] |
FAIRNESS
[17] On the facts of this matter, based upon the Commission record that consists primarily of the investigative report, and written comments thereon on behalf of the applicant and the respondent, I am satisfied that the duty of fairness was met. While the applicant is concerned that the investigation did not extend to an interview of one witness whose evidence the applicant regarded as critical, the applicant"s concern in this regard was before the Commission when it reviewed the investigation report and I must conclude that the Commission took that concern into consideration and dismissed it. I am satisfied that such action was reasonably open to the Commission, given its broad discretion in arriving at the decision under review.
ERROR OF LAW
[18] Counsel for the applicant urges that the reasons of the Commission for the decision under review reflect the fact that the Commission denied procedural fairness and erred in law in improperly assessing credibility without the benefit of a hearing. In Larsh v . Canada (Attorney General)9, Mr. Justice Evans, faced with a similar argument, wrote at paragraphs [25] and [26]:
| Counsel for the applicant relied on the Commission"s statement in its letter notifying the complainant of the decision that there was "no evidence" supporting Ms. Larsh"s allegation. Counsel asked me to infer from this that the Commission must have disbelieved Ms. Larsh, and thus made an adverse finding of credibility, because otherwise her allegations would themselves constitute evidence of their truth. |
| This is too clinical and abstract a parsing of the Commission"s letter. In my opinion, an interpretation that is more consistent with the Commission"s statutory functions is that the Commission was not satisfied there was any evidence on which a Tribunal could reasonably decide on the balance of probabilities that Ms. Larsh"s allegations were true. |
[19] I am satisfied that precisely the same can be said on the facts of this matter in relation to the Commission"s uses of the phrase "the evidence does not support the allegation that ...".
[20] Later, Mr. Justice Evans continued at paragraph [33]:
| Indeed, in my opinion it would be irresponsible of the Commission not to assess the evidence before it simply because the complainant and the person complained against gave contradictory accounts of the events on which the complaint was based. The Commission is entitled and obliged to subject the evidence to a hard look before deciding whether in the circumstances of the complaint a Tribunal hearing is warranted. |
Once again, I am satisfied that precisely the same could be said on the facts of this matter.
ASSESSMENT OF THE TOTALITY OF THE MATERIAL BEFORE THE COMMISSION
[21] Finally, against a standard of reasonableness, I am not satisfied that the Commission erred in its evaluation of the totality of the material before it and, more particularly, regarding the performance evaluation of the applicant, all of the circumstances surrounding her early retirement, and the issues of age and race differential between the applicant and her successor in employment. The applicant"s concerns regarding those aspects of the investigative report were before the Commission together with the report itself and I find no basis on which to conclude that the Commission ignored the applicant"s concerns or gave them insufficient consideration in reaching the conclusion that it did.
CONCLUSION
[22] For all of the foregoing reasons, this application for judicial review will be dismissed.
COSTS
[23] Against the "full discretionary power" vested in the Court with respect to costs by rule 400 of the Federal Court Rules, 199810, I determine that this is not an appropriate case for an Order as to costs, having particular regard to the economic imbalance of the parties and what appeared to the Court to be the obvious sincerety of the applicant in seeking redress against her employer of many years standing when, unfortunately, her employment came to an abrupt and unhappy end.
(Sgd.) "Frederick E. Gibson"
| Judge |
June 21, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-931-98
STYLE OF CAUSE: Osra Lindo v. Royal Bank of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 13, 2000
| REASONS FOR ORDER OF GIBSON, J. |
DATED: June 21, 2000
APPEARANCES:
Ms. Susan Ursel FOR APPLICANT
Ms. E. Jane Richardson FOR RESPONDENT
SOLICITORS OF RECORD:
Green & Chercover
Toronto, Ontario FOR APPLICANT
McMillan Binch
Toronto, Ontario FOR RESPONDENT
__________________4 (1996), 205 N.R. 383 (F.C.A.).
6 See: Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 at 585.
8 Holmes v. Canada (Attorney General) et al. (1999), 242 N.R. 148 (F.C.A.).