Federal Court Decisions

Date: 2002080

Docket: T-757-00

Neutral citation: 2002 FCT 848

Ottawa, Ontario, this 9th day of August, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                      EVE KOLLAR

                                                                                                                                                       Applicant

                                                                                   

- and -

                                     CANADIAN IMPERIAL BANK OF COMMERCE

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") dated March 23, 2000, wherein the Commission dismissed the applicant's complaint of sexual harassment relating to an alleged wrongful dismissal by the respondent.

[2]                 The applicant seeks an order quashing the decision of the Commission, and an order directing the Commission to refer the complaint to a tribunal to hold a hearing on the merits.

[3]                 The applicant further seeks the production of all the investigator's interview notes and an order that the Commission fund a lawyer to represent the applicant in any subsequent Commission or Human Rights Tribunal proceedings.

Background

[4]                 The applicant, Eve Kollar, was originally employed by the respondent, Canadian Imperial Bank of Commerce ("CIBC"), for the period from 1990 to February, 1992. In February, 1992, her position was eliminated so her employment was terminated and she received a severance package.

[5]                 The applicant was re-employed by the CIBC in September, 1992 in the subsidiary CIBC Securities Inc. ("CIBC Securities") in Toronto. In 1993, some performance concerns about the applicant were documented and her supervisor sent at least one warning letter to her. There were no allegations of sexual harassment involved.

[6]                 In September, 1993, the applicant was hired as a LAN Specialist for the new CIBC Collection Centre ("CIBC Collections") in Vancouver. The applicant's job classification was increased from level 4 to level 5, and her salary increased by $7,000.

[7]                 While working at the CIBC Collections in Vancouver, the applicant alleges that she was sexually harassed by her senior manager during the period September to December of 1993. The applicant alleges that the sexual harassment stopped in January of 1994, when the harassment changed to verbal abuse and unjust criticism of her job performance.

[8]                 In May, 1994, the applicant confidentially discussed her allegations of sexual harassment by the senior manager with the manager of the CIBC's internal counselling service (INTERCOM).

[9]                 On March 20, 1995, the applicant wrote a memo to her senior manager stating:

Nothing has changed since May of 1994 when I returned from my stress leave and asked you stop with the abusive meetings. I mentioned how I'm feeling about being ostracized since January 1994 by being excluded from meetings, emails and information on the Centre. . . . How you've locked me out of my office, taken my keys and hid them on me . . . not filing all my positive commendations into my personnel file. Playing favourites.

Since January 1994 I have been asking to see support from you. I do not feel support when I'm called into your office or when you charge into mine, lose your temper, use foul language, intimidate and disempower me with destructive criticism, and not providing me with a fair hearing when I ask that the person you are defending come into your office so we can get to the heart of the matter.

My good intentions are twisted around and viewed as defiant or negligent. We have not met ongoingly [sic] nor was I made aware of what issues specifically related to me until you started creating a paper trail. One incident appears to be a reflection of the whole year. I'd like to know what is really going on behind all this? [sic] Does it have anything to do with the way you were toward me in the first three months of my relocation here? I ask this because within those first three months, your lack of sexual integrity made me feel very uncomfortable. A whole change in your attitude toward me commenced in January 1994 when your wife arrived making working conditions intolerable. Is it perhaps the realization that your conduct was inappropriate?

[10]            The applicant subsequently sent a memo to the Vice-President of Collections, Mr. Ross McKay, dated April 24, 1995, to which she attached a copy of her March 20 memo to her senior manager. In her memo to Mr. McKay, the applicant wrote:

When I met with you on April 6^th, there was little discussion around what was going on with me. I had little opportunity to discuss with you any details of my position. I need to open up communication and be forthright. I may not be expected to voice opinions or feelings about what I see happening in my department for the fear of repercussions or a sense that speaking up would do no good, but I still would like to address it.

. . .

I was hoping to have met face-to-face and discuss details which cannot be described through email or memos or over the phone. Let this memo introduce you to the other side of the coin.

Due to the circumstances in my work environment, should people be making negative assumptions or attributions of motive based on limited information, all I can do is my best to ask that you sort out what the truth is from interpretation and grant me the benefit of the doubt.

[11]            The applicant's senior manager was terminated by Mr. McKay, head of CIBC Collections in April, 1995. The respondent does not provide the date for the termination but submits that it was "early April" and prior to the Vice President learning about the applicant's sexual harassment allegations involving the senior manager. The applicant submits that the senior manager was terminated on April 25, 1995, one day after the applicant wrote the memo to the Vice President of Collections, attaching her March 20 memo claiming that the senior manager had a "lack of sexual integrity". The investigator's report says that the "Senior Manager's employment was terminated in early April, 1995" and further states that "the complainant agrees that she did not take her sexual harassment complaint forward to respondent management until after the Senior Manager was gone." As stated above, the applicant disputes the date of the senior manager's dismissal and asserts that she did not agree as alleged by the investigator.

[12]            The CIBC was slow launching an internal investigation into the applicant's allegations of sexual harassment. The respondent submits that this delay was justified as it was not expressly clear to the Vice President that the applicant was making a sexual harassment allegation.

[13]            On December 18, 1995, the respondent reported the findings of an internal investigation into the sexual harassment allegations made by the applicant. The findings included:

Our findings indicate that since May 1994, you have had ongoing contact with INTERCOM department regarding your concerns and received the appropriate support. On several occasions, offers were extended by INTERCOM to facilitate bringing the matter forward on your behalf, and also encouraged you to have the matter investigated. Despite this, you requested, for personal reasons that INTERCOM take no action without your consent, and your decision in this regard was respected.

Our findings confirmed that on April 24, 1995, you sent Ross McKay a memorandum accompanied by a cover page. Ross did not understand from this document that you were complaining of harassment. From our review of the documentation, we believe that his failure to discern your intention was not unreasonable. The memorandum does not specifically address the issue of sexual harassment and does not address any specific expectations that you had.

. . .

Our investigation revealed some problems with [name deleted] style of management. It also concluded that there may have been a strained relationship between the two of you. These factors could have caused you to view any action taken as being unfair. Nevertheless, we are unable to conclude that performance management was retaliatory or otherwise related to sexual harassment.

We discovered that disciplinary action has also been taken by Carol Barthelette and Ross McKay subsequent to [name deleted] departure, based on their observations of your performance. This evidence supports the conclusion that your performance has been sub-standard and you have failed to meet the expectations of your position. Notwithstanding the apparent lack of allegations of sexual harassment by these individuals, you continue to challenge and not accept responsibility for improvement.

There is no corroborative evidence to support that you were singled out in terms of criticism and not being treated the same as others.

. . .

The evidence does support a degree of problems with [name deleted] management style, which included the telling of inappropriate jokes, and use of inappropriate language. Such conduct is not condoned by CIBC and normally would merit some form of disciplinary action, however, this issue is moot in that [name deleted] is no longer an employee of CIBC.

[14]            The applicant was terminated by the CIBC on January 15, 1996, for "substandard performance". The applicant was offered to be maintained on the payroll in inactive status until January 26, 1996 and was offered a lump sum payment worth approximately four months salary.

Human Rights Commission Complaint

[15]            The applicant filed a complaint with the Human Rights Commission ("HRC") on January 18, 1996.

[16]            The HRC had three different investigators assigned to investigate prior to the release of the investigator's report. On March 11, 1997, Mr. Rae Raymond was removed as the investigator and was replaced by Mr. Paul Leroux. Mr. Leroux was criminally charged    sometime in 1997, and the case was transferred back to Mr. Raymond around August of 1997.

[17]            On February 25, 1998, the respondent requested that Mr. Raymond place the investigation in abeyance until a wrongful dismissal action had been determined in British Columbia Supreme Court. The HRC held the complaint in abeyance beginning in March, 1998.

[18]            On February 15, 1999, counsel for the applicant intervened and requested the HRC continue investigating the complaint.

[19]            At some point the investigation was transferred from Mr. Raymond to a third investigator, Ms. Lynda Ackroyd.

[20]            Further interviews and investigations were conducted until September, 1999. On September 16, 1999, Ms. Ackroyd closed the investigation and distributed her investigator's report to the parties.

[21]            The investigator recommended the HRC dismiss the applicant's complaint. The applicant provided rebuttal to the investigator's report, but the HRC proceeded to dismiss the complaint.

[22]            This is the judicial review of the decision of the HRC not to forward the applicant's complaint to the Human Rights Tribunal.

  

Applicant's Submissions

[23]            The applicant submits that the sexual harassment and abuse she experienced from her senior manager created a poisoned work environment, which lead to her ultimate dismissal.

[24]            The applicant submits that the families of her senior manager and two other co-workers socialized regularly, and were influenced by her senior manager to continue a poisoned atmosphere around the applicant in the period following her senior manager's termination.

[25]            The applicant submits that the investigator's comments about witness Will Bentolila suggests that the applicant had a sexual relationship with the harasser. The applicant submits that this is contrary to Mr. Bentolila's evidence.

[26]            The applicant submits that she had positive reviews from three other managers in Toronto prior to leaving in September, 1993.

Respondent's Submissions

[27]            The respondent notes that the applicant has claimed her senior manager "coerced colleagues to find fault with my performance." The respondent submits that the applicant has not provided any particulars of this coercion.

[28]            The respondent submits that only facts that were before the Commission can properly be put before the Court in this judicial review application. The respondent submits that the Court may accept additional evidence concerning the procedure followed if a failure to follow fair process is alleged.

[29]            The respondent submits that the applicant has provided no particulars as to how the new evidence she is seeking to adduce through her affidavit and exhibits would contradict any of the facts reported in the investigator's report.

[30]            The respondent submits that paragraphs 1 through 23 and 32 through 37, along with Exhibits "A" through "W" and "AF" through "AK" of the Kollar affidavit are inadmissible for the reason that they were not before the Commission. The respondent submits that paragraphs 24 through 31 and exhibits "X" through "AE" may be admissible if they are relevant to the applicant's allegation that a fair process was not followed by the Commission.

[31]            Issues

1.          Did the Commission commit a reviewable error of fact and law by ignoring witness evidence indicating that the sexual harassment had occurred?

2.          Did the Commission commit a reviewable error of law by dismissing the complaint in light of the failure of CIBC to react in a timely manner to the applicant's complaint?

3.          Did the Commission exceed its jurisdiction by assessing credibility in rendering its decision?

4.          Did the Commission fail to properly exercise its authority by not challenging the "privileged" status claimed by CIBC regarding its internal sexual harassment investigation?

5.          Did the Commission's delay in investigating the applicant's complaint constitute a breach of natural justice and procedural fairness?

6.          Did the Commission's assignment of the investigation to an investigator who was subsequently criminally charged with offenses cause unreasonable delay?

7.          Did the Commission commit a reviewable error by failing to examine the underlying evidence and contact key witnesses?

8.          Did the Commission display a reasonable apprehension of bias by relying solely on the investigator's conclusions?

9.          Did the Commission breach its duties to the applicant by failing to advise her of the status of the case, without repeated notices and escalating repeated requests to the Commission?

10.        Did the Commission base its decision on an erroneous and perfunctory investigation which was made in a perverse or capricious manner without regard to the material before it?

Relevant Statutory Provisions and Regulations

[32]            The relevant sections of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 state as follows:

(3) No person shall obstruct an investigator in the investigation of a complaint. (4) The Governor in Council may make regulations (a) prescribing procedures to be followed by investigators; . . . 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. . . . (3) On receipt of a report referred to in subsection (1), the Commission    (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or (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 (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

(3) Il est interdit d'entraver l'action de l'enquêteur.    (4) Le gouverneur en conseil peut fixer, par règlement_: a) la procédure à suivre par les enquêteurs; . . . 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.     . . . (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_: (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,    (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);    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,    (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).

Analysis and Decision

[33]            The allegation of the applicant contained in her HRC complaint reads:

I, Eve Kollar, have reasonable grounds to believe that the Canadian Imperial Bank of Commerce (CIBC) has discriminated against me because of my sex, by failing to provide me with a sexual harassment-free work environment and terminating my employment because I rejected sexual advances, contrary to sections 7 and 14 of the Canadian Human Rights Act.

The applicant makes two allegations in her complaint, namely the failure to provide her with a sexual harassment-free work environment and the termination of her employment because she rejected sexual advances.

[34]            The standard of review to be applied to a decision of the Commission when dealing with an investigation report was stated by MacKay J. as follows in Bourgeois v. Canadian Imperial Bank of Commerce [2000] F.C.J. No. 388 (QL) at paragraph 12:

In Bell Canada v. Communications, Energy and Paperworkers Union of Canada,[1999] 1 F.C. 113 (F.C.A.) at p. 15 the exercise of discretion vested in the Commission in dealing with an investigation report is discussed. Mr. Justice Décary, speaking for the Court, notes inter alia:

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. . . . the grounds set out for referral to another authority . . ., for referral to the President of the Human Rights Tribunal Panel . . . or for an outright dismissal . . . involve in varying degrees questions of fact, law and opinion . . ., but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

It is clear that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court to the decision of the Commission unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission.

[35]            This decision was affirmed in Bourgeois v. Canadian Imperial Bank of Commerce [2000] F.C.J. No. 1655 (QL). At paragraph 3, Décary J.A. wrote for the Court of Appeal:

MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission.

[36]            The thoroughness of the investigation is discussed in Boahene-Agbo v. Canada (Canadian Human Rights Commission) (1994) 86 F.T.R. 101. Teitelbaum J. stated at pages 120 to 121: 79:

As noted above, the applicant was provided with a copy of the investigator's reports and was given the opportunity to make written submissions, and as such the Commission acted in conformity of the requirements set out in the jurisprudence. However, as noted by Nadon J. in Slattery v. Canada (Human Rights Commission), (1994) 73 F.T.R. 161at page 20, "underlying these requirements is the assumption that another aspect of procedural fairness - that the CHRC had an adequate and fair basis on which to evaluate whether there was sufficient evidence to warrant appointment of a tribunal - existed". In my view, Nadon J. dealt most effectively with the basis upon which the Court should evaluate the Commission's decision at pages 20 to 23 of his reasons, portions of which are reproduced below:

In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to subparagraph 44(3)(a) of the Act, I believe that the investigation conducted prior to this decision must satisfy at least two conditions: neutrality and thoroughness.

With regard to neutrality, it has been held that if the CHRC simply adopts an investigators' conclusions without giving reason, and those conclusions were made in a manner which may be characterized as biased, a reviewable error occurs.

. . .

According to Noel, J. [in Canadian Broadcasting Corporation v. Canadian Human Rights Commission et al., T-1578-91, decision rendered December 15, 1993 [Please see [1993] F.C.J. No. 1334]] the participation of the Regional Director and the investigator, who had predetermined the issue and invited the complainant to go forth on that basis, in the "Prior to Investigation Report", was such as to give rise to bias. Although Noel, J. acknowledged that S.E.P.Q.A. permitted the CHRC to render a decision without reasons, by adopting the conclusions in the investigator's report, Noel, J. refined this analysis to the extent that, "If the report which [the CHRC] adopted in making its decision is flawed, it must follow that the decision itself is equally flawed".

The requirement of thoroughness of investigation stems from the essential role that investigators play in determining the merits of particular complaints. This essential role was recognized by the Supreme Court in the S.E.P.Q.A. case. In the words of Sopinka J.:

In general, complainants look to the Commission to lead evidence before a tribunal appointed under [section 49], and therefore investigation of the complaint is essential if the [CHRC] is to carry out this role. (S.E.P.Q.A. at 898)

. . .

In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system . . .

Therefore, I must now determine whether in the case before me, sufficient thoroughness existed. As part of that determination I must be satisfied that the reports dealt with all of the fundamental issues raised in the applicant's complaint. If there were omissions in the reports, were those omissions capable of being corrected by the applicant's submissions in response to the two investigators reports? (In the case at bar, the applicant submitted extremely detailed responses.) Further, as part of that determination, I must also be satisfied that the omission, if an omission exists, was not significant or fundamental to the outcome of the case. If the omission is a fundamental one, then judicial review would be warranted. (In this regard see Nadon J.'s reference to Lamer C.J.'s comments from Université du Québec à Trois-Rivières v. Larocque (1993) 93 C.L.L.C. 12, 104 (SCC)).

However, in coming to my decision, I should also keep in mind Nadon J.'s comments at page 28 of Slattery, (supra):

The fact that the investigator did not interview each and every witness that the Applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the Applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigators, much like the CHRC, must be master of its own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient.

It is within this framework that the Commission's decision must be reviewed.

[37]            The respondent objected to certain paragraphs of the applicant's affidavit filed with this application. Generally speaking, only evidence that was before the tribunal is admissible on a judicial review of the tribunal's decision. There are certain exceptions to this rule. Because of my finding in this case, it is not necessary that I make a ruling on this objection.

[38]            Issue 1

Did the Commission commit a reviewable error of fact and law by ignoring witness evidence indicating that the sexual harassment had occurred?

The Commission in its decision relied on the investigation report. Therefore, if the investigation is flawed, then the Commission's decision is also flawed. The investigation report contains the following paragraphs:

A colleague who had some contact with the complainant and the Senior Manager during the relevant period (late 1993) states that "the way they were acting, I thought they were having an affair." This witness states that there was a lot of inappropriate sexual innuendo in the Senior Manager's conversation. For example, the witness states that when they were all driving to dinner one evening, the Senior Manager pointed out a woman on the street (apparently a prostitute) who was wearing tall boots and said, "I want those boots on Eve." The witness states that the complainant did not object to such comments, but he (the witness) could not tell if this was because she was not bothered by them or because the Senior Manager was her boss.

The complainant does not cite any other direct witnesses to the alleged harassment and the investigation did not find any such witnesses.

The complainant does state that a woman co-worker told her that the Senior Manager had made sexual remarks concerning the kind of clothes she (the witness) wore. When interviewed, this witness stated that she always had a good rapport and got along with the Senior Manager; however she did recall him making comments that could be seen as inappropriate. Specifically, she states that she wore socks and runners to walk to and from work, and he would say that she looked like "a cute little school girl". She said that she didn't really like these comments, but didn't take it to heart and was not uncomfortable.

In the December, 1995 letter to the complainant with respect to the investigation of her internal complaint, the respondent's Employee Relations Manager states:

"The evidence does support a degree of problems with (the Senior Manager's) management style, which included the telling of inappropriate jokes, and use of inappropriate language. Such conduct is not condoned by CIBC and normally would merit some form of disciplinary action, however, the issue is moot in that (the Senior Manager) is no longer an employee of CIBC."

[39]            The investigation report in this case seems to have focussed not on the above information, but on the applicant's work record when she was employed initially with CIBC then CIBC Securities Inc. and then again with CIBC. It is appropriate to discuss the applicant's work record but the investigation report should also deal with the evidence of alleged sexual harassment. The investigation report does not deal with this evidence. Was the evidence not accepted? I cannot tell from the report or the record. In my opinion, the investigation report did not deal with this evidence and consequently, the investigation report did not deal with the applicant's first part of her complaint which was that the respondent failed to supply her with an harassment free work place. This aspect of the complaint should have been dealt with in the investigation report. In my opinion, the investigation was, in this respect, deficient as it lacked thoroughness.

[40]            The Commission need not accept the recommendations of the investigator but if it does and the investigation is found to be deficient because of a lack of thoroughness, then the decision of the Commission is also deficient and cannot stand. I am of the opinion that the decision of the Commission is in error as it does not deal with the applicant's first ground of complaint, that is that the employer did not provide her with an harassment free work place. For the above reason, I would quash the decision of the Commission and order that a new investigation be completed.

[41]            There was some suggestion that the complaint may have been time barred, but since the Commission dealt with the complaint, I assume that it exercised its authority to do so pursuant to the provisions of the Act.

[42]            Because of my finding, it is not necessary to deal with the other issues raised by this application. I might add, however, that it appears from the record that only the respondent's response to the complaint dated October 5, 1999 was cross-disclosed to the applicant. The response of November 10, 1999 does not appear to have been disclosed to the applicant. I am of the view that since it was accepted by the Commission, it should have been cross-disclosed to the applicant.

[43]            The application for judicial review is therefore allowed and the decision of the Commission is quashed and the matter is referred back for a new investigation.

ORDER

[44]            IT IS ORDERED that the application for judicial review is allowed and the decision of the Commission is quashed and the matter is referred back for a new investigation.

     

                                                           "John A. O'Keefe"             

                                                                            J.F.C.C.                      

Ottawa, Ontario

August 9, 2002

             FEDERAL COURT OF CANADA

                          TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      T-757-00

STYLE OF CAUSE:                           EVE KOLLAR

- and -

CANADIAN IMPERIAL BANK OF COMMERCE

                                            

PLACE OF HEARING:                      Vancouver, British Columbia

DATE OF HEARING:                        Tuesday, February 19, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:         Friday, August 9, 2002

APPEARANCES:

Eve Kollar

On Her Own Behalf

Kitty Heller

FOR RESPONDENT

SOLICITORS OF RECORD:

                        Ms. Eve Kollar

803 - 2045 Nelson Street

Vancouver, British Columbia

V6G 1N8

FOR APPLICANT

Owen, Bird

2900 - 595 Burrard Street

Vancouver, British Columbia

V7X 1J5

FOR RESPONDENT

                                                  

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

  

Date: 20020809

Docket: T-757-00

BETWEEN:

EVE KOLLAR

Applicant

- and -

CANADIAN IMPERIAL BANK OF COMMERCE

Respondent

                                                                                                                              

             REASONS FOR ORDER AND ORDER