Date: 20010319
Docket: T-2259-99
Neutral Citation: 2001 FCT 198
BETWEEN:
SANTOSH K. SINGH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] The applicant seeks judicial review of the November 29, 1999 decision of the Canadian Human Rights Commission (the "Commission"). The impugned decision dismissed the applicant's complaint to the effect that, in refusing to continue to employ her, Human Resources Development Canada ("HRDC") had discriminated against her contrary to section 7 of the Canadian Human Rights Act ("CHRA"). The applicant also argued that HRDC had failed to provide her with an harassment- free work environment, contrary to section 14 of the CHRA. The applicant is a visible minority of East Indian descent who was 51 years of age at the time of the complaint. The grounds of discrimination identified by the applicant were ethnic or national origin and age.
Issue:
[2] The issue at bar is whether or not the Commission considered the applicant's complaint that the respondent's finding that her work performance was unsatisfactory was a pretext to cover up the fact that the people who refused to extend her contract did so because of her age and ethnicity.
Facts:
[3] In December of 1994, the applicant contacted the Commission to register a complaint. Her file was closed, as she was unable to make a link to a prohibited ground of discrimination and she had not pursued other avenues of redress.
[4] HRDC conducted an internal investigation of the applicant's complaints of harassment and abuse of authority, and in April of 1996, concluded that these complaints were unfounded.
[5] The Public Service Commission ("PSC") conducted an investigation and came to the same conclusion in its report, dated May 22, 1997. It should be noted that the PSC made findings regarding abuse of authority and harassment, but the PSC does not have the jurisdiction to deal with discrimination issues, so it did not make any finding in that regard.
[6] For reference, it is important to note that the Treasury Board Secretariat and the PSC have established an agreement regarding the PSC's jurisdiction to investigate issues of workplace discrimination. This policy is found at page 6 of the Treasury Board Secretariat's Harassment in the Workplace Policy as follows:
Under an agreement between the Treasury Board Secretariat and the Public Service Commission, the latter will investigate complaints by Public Service employees about harassment other than harassment on a prescribed ground of discrimination within the meaning of the Canadian Human Rights Act.
The Commission's Investigation Directorate shall deal with any complaints filed with it unless it appears to the Commission that:
the complaint does not relate to harassment as defined in Treasury Board's Harassment in the Workplace Policy;
the complaint is trivial, frivolous, vexatious or made in bad faith;
the complaint is based on acts or omissions the last of which occurred more than one year previously, or for a longer period of time that the Commission considers appropriate in the circumstances before it received the complaint; or
the department has not made significant efforts to resolve the complaint, in which case the Commission will refer the complaint back to the department.
[7] On June 3, 1997, the applicant asked the Commission to reopen her file. On December 2, 1997 the applicant signed her complaint, which alleged that her supervisor and certain of her co-workers had made derogatory comments to her regarding her age and ethnic origin. In addition, the applicant alleged that HRDC had refused to renew her contract on the grounds of her age and national or ethnic origin.
[8] The Commission then conducted its investigation of the complaint. Most of the investigator's report consisted of information taken from the PSC report. The investigator questioned some witnesses directly on the issues of the applicant's alleged work backlog and the allegations of harassment. At paragraph 48 of his report, he summarizes the conclusion of the PSC report. At paragraph 49, the investigator then states his own conclusion as follows:
The evidence shows that the complainant was employed for approximately ten months as a clerk in the Central Registry and Mail Room. She was the only employee of East Indian origin and the majority of employees were under forty. The evidence indicates that the complainant did not object to he derogatory comments made by Jane Daoust, Micheline Bornais and Claude Dufault, who deny making the statements attributed to them, and other employees in the Central Registry and Mail Room could not recall these comments. In earlier investigations conducted by the respondent and the PSC, the complainant suggested that the respondent did not renew her contract in order to avoid the requirement of the Workforce Adjustment Directive, however the evidence indicates that term employment was not extended because of work performance: backlog, unacceptable volume of work completed and complaints from managers concerning delays in the delivery of mail.
[9] The applicant filed responses to both the Investigation Report and HRDC's
submissions regarding her complaint.
[10] At its November 15, 1999 meeting, the Commission considered the complaint. The materials before it included: Complaint Form H45624, dated December 2, 1997; Investigation Report H45663, dated September 23, 1999; Submission letter of the Application, dated October 15, 1999; and Investigation Chronology H45624, undated.
[11] On November 29, 1999, the Commission informed the applicant that it had decided to dismiss her complaint, pursuant to section 44(3)(b)(i) of the CHRA. The Commission's November 29, 1999 letter stated in part:
Pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has decided to dismiss the complaint because:
the evidence does not support that the respondent failed to provide the complainant with a workplace free of harassment and that it failed to continue to employ her because of discrimination related to her national or ethnic origin and her age; and
the evidence supports that the complainant's employment was not renewed for reasons unrelated to her allegations of discriminatory conduct.
[12] On December 24, 1999, the applicant brought this application for judicial review.
Analysis:
[13] The appropriate standard of review of the Commission's decision of whether or not to dismiss a complaint is reasonableness simpliciter. In making such a decision, the Commission is exercising its discretion under subsection 44(3) of the CHRA. As per the Supreme Court of Canada's decision in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 ("SEPQA"), the Commission must adhere to procedural fairness requirements, but is not obligated to provide the applicant with the full panoply of natural justice. Of course, if the Commission commits a jurisdictional error, then the standard of correctness applies.
[14] The applicant's counsel submits that the Commission's decision was based on a finding against the credibility of the applicant and that in such instances, the Commission must send the matter to an oral hearing before the Tribunal. Both parties raise the case of Larsh v. Canada (AG) (1999), 166 F.T.R. 101. The applicant's counsel cites the statement of Evans J. (as he then was) found at paragraph 35 of the decision:
For the purpose of considering this argument I am prepared to assume that the Commission's decision to dismiss complaints should be subject to closer review than decisions to refer complaints to the Tribunal. A dismissal is, after all, a final decision that precludes the complainant from any statutory remedy and, by its nature, cannot advance the overall purpose of the Act, namely protection of individuals from discrimination, but may, if wrong, frustrate it.
However, in that case, Evans J. held that the Commission does not have an obligation to send a matter to oral hearing when there is an issue of credibility. Indeed, at paragraph 32 he cites Hugessen J. in Miller v. Canada (Attorney General), [1998] F.C.J. No. 1564 (T.D.) (Q.L.) at paragraph 5 as follows:
...it is said that the Commission erred in failing to order an oral hearing because here were issues of credibility involved in the case. The law in my view is clear, that the Commission is under no obligation to order an oral hearing. Where, as here, there is no liberty issue at stake in the investigation being conducted, there is never an obligation in my view to conduct an oral hearing. Indeed, when one looks at the nature of he discretion which is given to the Commission by the text of the statute, it is quite obvious that there will be cases where the Commission can dismiss a complaint because in its view there is insufficient evidence to support the complaint, whereas, if the complaint went forward, there would have to be an oral hearing. To put the matter another way, the discretion which is given the Commission is manifestly a discretion to do away with the requirement of an oral hearing before the tribunal.
In my view, the Commission was acting within its discretion to dismiss the complaint based on the evidence before it, which included statements from several different witnesses contradicting the applicant's allegations and a performance review of the applicant's work while at HRDC.
[15] However, I do agree that the reasons of the investigator seem to rely on credibility findings and that these findings are not spelled out in the investigation report. In my view, consideration should be given to addressing issues of credibility when the matter is reconsidered, if indeed any credibility findings are relied on at that time.
[16] As noted above, the investigator's report relied heavily on the findings and statements made in the PSC report. Counsel for the applicant argues that such reliance poses problems in terms of jurisdiction and thoroughness. First, on the issue of thoroughness, it is my view that the investigator was entitled to make use of the PSC report as evidence concerning the issue of backlog. The Commission has discretion to consider such reports, and there is no requirement placed on the Commission to revisit the backlog issue, as it has already been fully dealt with by the PSC report.
[17] Regarding the issue of jurisdiction, it is an error of law for the Commission's investigator to base his conclusion on that of another board that has already conducted an inquiry involving the same parties and facts. However, these cases are distinguished from the one before me by the fact that in each case, the Commission had stated outright in its report that it was dismissing the complaint because the complaint had already been dismissed by the other board concerned in the matter. For example, in the case of Burke et al. v. Canadian Human Rights Commission [1987], 125 N.R. 239 (F.C.A.), Urie J. held at 239 that the Commission erred by concluding that the complaint should be dismissed because, as the Commission stated, "[the complaint] has been more appropriately completely dealt with by a Classification Review Board under the Authority of the Public Service Staff Relations Act." See also: Pitawanakwat v. Canadian Human Rights Commission et al. (1987), 125 N.R. 237 (F.C.A.) and Boudreault v.Canada (Procureur géméral) (1985), 99 F.T.R. 293 (F.C.T.D.). In the case before me the investigator relied only on certain evidence before the PSC on matters within the jurisdiction of the PSC and did not rely on the PSC's conclusions.
[18] The applicant is primarily concerned with the issue of the thoroughness of the investigation report. Both parties agree that thoroughness is a component of procedural fairness to which the Commission must adhere. However, there is disagreement as to what the Commission was obliged to do in order to meet this thoroughness requirement.
[19] Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 575 (T.D.), stands for the proposition that deference should be afforded to the investigator in terms of its assessment of the probative value of evidence. As Nadon J. writes at 600:
It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court of Canada in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[20] Nadon J. goes on to state that judicial review is only warranted in cases where the investigation's omissions cannot be rectified by the complainant's responding submissions. At 601, Nadon J. Outlines two categories of omission that might warrant judicial interference:
Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
In finding against the applicant in Slattery, supra, Nadon J. writes at 605:
In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant's complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant's responding submissions.
As such, Slattery, supra provides guidance by setting out a test for deciding the question of whether or not, in the matter before me, the report lacked thoroughness.
[21] The investigation report states at paragraph 23 that:
When interviewed, Francine Huneault, a Central Registry supervisor described the complainant as a "good person who did her work but was very slow". She believes that the complainant was let go because of her age. She states that the majority of the employees were between 20 and 30 years of age.
Ms. Huneault made a clear statement concerning one of the grounds upon which the applicant based her discrimination and harassment claims. However, the investigator failed to address this issue any further in his report. This omission might constitute a "fundamental" omission. On the other hand, it might also constitute an example of an omission that the applicant could have dealt with in her response to the investigation report. In the circumstances I do not have to make this determination, as I have found another omission of a more serious nature.
[22] This more troubling omission concerns the applicant's allegation that, after she had left the Department and made a claim against it, the respondent constructed various excuses in order to explain why her contract was not renewed. These alleged excuses included the statement that the applicant performed her work too slowly to be kept on, as well as the alleged statements made by some of the persons involved that the applicant's work status had expired or that she was not kept on because of "shortage of work". In other words, the investigation report fails to deal with the applicant's theory that these statements and alleged statements constituted a pretext that was constructed in order to cover up the fact that her contract was not being renewed based on discrimination against her on the grounds of age and/or ethnicity.
[23] This omission is fundamental because any investigation of discrimination must, at minimum, ascertain who the decision-maker is and contain some inquiry into why that decision-maker decided the way they did. In this case, that would mean that the investigator should have investigated who actually decided not to renew the applicant's contract and why. The decision-maker should have been questioned regarding the applicant's allegations of discrimination and her theory that the Department had constructed excuses after the fact to cover up why her contract had not been renewed.
[24] The respondent's position appears to be that this was unnecessary, as the investigator was in agreement with the PSC report's finding that the decision not to renew the applicant's contract was based on her slow work performance. However, it is a principle of human rights law that discrimination can be found to have occurred even in cases where there exists a primary reason (such as poor work performance) for dismissing an employee (or failing to renew an employee's contract). In the present case, the investigator's report gives no indication of any inquiry as to whether or not there was also an aspect of discrimination involved in the failure to renew the applicant's contract. This is a fundamental omission, and on my view of the test in Slattery, supra, it is not necessary to find that the complainant could have dealt with the omission in her response if the omission is of a fundamental nature.
[25] In questioning the person or persons responsible for the decision not to renew the applicant's contract, the investigator might be well-advised to consider pursuing at least some of the following questions when reconsidering the matter:
Why would HRDC initially indicate to the applicant that her termination was based upon lack of work and subsequently change its mind and rely upon performance issues?
Why were inconsistent positions adopted by HRDC representatives on this very issue?
How could HRDC rely upon the opening of confidential mail issue when it had expressly excused this conduct in respect of the applicant, acknowledging that it was bound to happen?
Why did HRDC management never warn the applicant that her performance was such that the renewal of her term contract was at risk?
Why did several HRDC managers advise the applicant that her performance was good, even great, and yet subsequently decided not to renew her contract for reasons related to performance?
If the applicant's performance was so seriously deficient, why was her contract renewed on two separate occasions?
How could allegations regarding the applicant's performance be sustained when the Department itself admitted that the applicant often provided helpful suggestions, such as stapling applications together, which improved the effectiveness of the section?
How could HRDC rely upon a backlog to justify its treatment of the applicant when it hired 10 to 15 people at the same time to deal with that very issue?
Why did HRDC misrepresent the termination date of the applicant's priority status?
Why did HRDC suggest that renewing the applicant's contract would constitute "illegal" promotion under the Workforce Adjustment Directive?
[26] However, in the interest of clarity, I would also like to reiterate that a CHRC investigation report will not normally be found to violate the thoroughness requirement simply because the applicant thinks that additional witnesses should have been interviewed. In this regard, Gibson J. made the following statement at paragraph 17 of his decision in Lindo v. Royal Bank of Canada, [2000] F.C.J. No. 1101 (T.D.) (Q.L.):
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.
The matter before me involves a more serious omission than that considered by Gibson J. in the Lindo, supra case. The reason that a reconsideration of the decision before me is necessary is due to the fact that this decision involves the failure to conduct inquiries with the person or persons who decided not to renew the applicant's contract on the issue of the applicant's pretext argument.
[27] As such, the application for judicial review is allowed and the matter is returned to the Canadian Human Rights Commission in order to be dealt with in a manner not inconsistent with these reasons.
"W.P. McKeown"
____________________
JUDGE
OTTAWA, ONTARIO
March 19, 2001