Ottawa, Ontario, August 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] Whether a complaint is valid or invalid, threats and intimidation, before, during or after a complaint is lodged, would render the complaint process itself meaningless.
The very purpose for the human rights legislation would be lost if it were not to ensure that a voice is given to those who would otherwise remain voiceless. Whether what is said is credible or not is a matter for the consideration of the Canadian Human Rights Commission (Commission); and even at the risk of groundlessness, a cry of wolf must, at the very least, be investigated by the Commission to determine if it is so or not.
JUDICIAL PROCEDURE
[2] This is a judicial review of a decision of the Commission which, on November 2, 2004, dismissed the Applicant, Ms. Suzanne Dubois' complaint against the Canadian International Development Agency (CIDA). In her complaint, she alleged discrimination on the grounds of sex and perceived mental disability.
BACKGROUND
[3] On December 6, 2002, Ms. Dubois filed a complaint with the Commission in which she alleged that CIDA discriminated against her on the grounds of sex and perceived disability. She also alleged that CIDA retaliated against her contrary to section 14.1 of the Canadian Human Rights Act[1] (Act).
[4] Ms. Dubois alleged that Messrs. Paul Hitchfield, Robert Derouin, Réjean Hamel and Raphael Salituri discriminated against her in the course of her employment. The particulars of her allegations are as follows. Between August 1998 and August 2000, Mr. Hitchfield was overly critical of Ms. Dubois' work, denied her a request for leave, micro-managed her and underutilized her as a resource. Mr. Derouin did not invite Ms. Dubois to extended lunches or to the local bar
because she is a woman. Mr. Derouin questioned her ability to perform work-related duties and
suggested that she undergo a medical assessment in an e-mail he sent to a number of CIDA
managers. Mr. Salituri became Ms. Dubois' manager and direct supervisor in 2002. Ms. Dubois alleged that Mr. Salituri tore her request for paid leave for the purpose of meeting an agent of the Commission. Mr. Salituri was critical of Ms. Dubois' work and made veiled threats about terminating her employment.
[5] In December 2001, Ms. Dubois had filed a complaint containing these same allegations against Messrs. Hitchfield and Derouin pursuant to CIDA's policy on conflict and harassment. An independent investigator concluded that the complaint was without merit.
[6] The Commission appointed an investigator and asked CIDA to provide a response to Ms. Dubois' allegations. CIDA's response was forwarded to Ms. Dubois on October 27, 2003. On December 1, 2003, Ms. Dubois replied to CIDA's submissions. On April 15, 2004, Ms. Dubois replied to the investigator's request for additional information. The investigator interviewed 16 persons, including Ms. Dubois, her supervisors, colleagues and clients, and wrote a 21-page report dated July 8, 2004. This report was subsequently forwarded to the parties.
[7] The investigator recommended, pursuant to section 41(1)(e) of the Act, that the Commission not deal with allegations against Mr. Hitchfield as they were based on acts which occurred more than one year before receipt of the complaint. The investigator also concluded that the evidence did not support Ms. Dubois' remaining allegations and recommended that they be dismissed pursuant to section 44(3)(b) of the Act.
[8] On August 4, 2004, Ms. Dubois filed submissions in response to the investigator's report. On September 17, 2004, CIDA filed submissions in response to Ms. Dubois' response to the investigator's report.
DECISION UNDER REVIEW
[9] On November 2, 2004, the Commission decided, pursuant to section 41(1) of the Act, to deal with the allegations in the complaint except for those based on acts which had occurred more than one year before receipt of the complaint. The Commission dismissed the complaint pursuant to section 44(3)(b) of the Act because the evidence did not support the complainant's allegations that CIDA "treated [Ms. Dubois] in an adverse differential manner and failed to provide her with a harassment free environment because of her sex, disability (perceived mental illness) and retaliation". The Commission did not further explain its reasons but indicated that it had come to its decision after having had reviewed the investigator's report and the submissions filed in response to the report.
ISSUES
[10] 1. Was the Commission's decision not to deal with the allegations which were out of time patently unreasonable?
2. Was the Commission's decision to dismiss the other discrimination allegations patently unreasonable or in violation of natural justice?
3. Was the Commission's decision to dismiss the retaliation allegation correct?
ANALYSIS
1. Was the Commission's decision not to deal with the allegations which were out of time patently unreasonable?
[11] A decision to dismiss a complaint pursuant to section 41(1)(e) of the Act, i.e. when more than one year has passed since the occurrence of the last alleged discriminatory act, is reviewable on a patent unreasonableness standard (Price v. Concord Transportation Inc.[2]).
[12] Ms. Dubois argues that the Commission should have dealt with these allegations in spite of the delay because the Treasury Board harassment policy encourages employees to seek internal redress before seeking other recourses. The Court notes that the Treasury Board policy merely advises employees that they have the right to file a complaint with the Commission if it is based on a prohibited ground of discrimination. However, if the employee chooses to file a complaint with
the Commission, the complaint process under the Treasury Board policy will be stayed. This policy avoids duplicative procedures, but does not encourage one particular recourse over that of another.
[13] In the case at bar, the last discriminatory act alleged against Mr. Hitchfield is dated June 27, 2000. Ms. Dubois filed her complaint with the Commission on December 6, 2002, or 18 months after this incident. In addition, these allegations had already been subject, in accordance with CIDA's harassment policy, to an investigation on the merits and rejected. In these circumstances, the Commission's decision to dismiss this part of the complaint is reasonable.
2. Was the Commission's decision to dismiss the other discrimination allegations patently unreasonable or in violation of natural justice?
[14] According to the Federal Court of Appeal in Elkayam v. Canada(Attorney General)[3], a decision to dismiss a complaint pursuant to section 44(3)(b) of the Act, i.e. that having regard to all the circumstances of the complaint, an inquiry is not warranted, is, in and of itself, reviewable on the basis of patent unreasonableness standard.Similarly, in Bourgeois v. Canadian Imperial Bank of Commerce[4], the Federal Court of Appeal found that the Commission is entitled to a very high degree of deference unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supported on the evidence before the Commission.
[15] The Commission agreed with its investigator's conclusion that the evidence did not support the allegations against Messrs. Derouin and Hamel. Having read all the pertinent documents, the Court agrees that these findings are reasonable and supported by the evidence.
(i) Allegations against Mr. Derouin
[16] Ms. Dubois alleges that Mr. Derouin treated her in an adverse manner on the basis of sex and perceived disability by not inviting her to lunches and after work drinks on Fridays, sending an e-mail to CIDA managers in which he suggested that she undergo a medical evaluation, and promoting a male colleague to the position of acting director.
[17] The investigator interviewed 16 persons in the course of his investigation, including Ms. Dubois' colleagues, supervisors and clients. The evidence contradicted Ms. Dubois' assertion that Mr. Derouin invited his male colleagues as no invitations were made for these informal gatherings, and they included women. Furthermore, the evidence disclosed that there were no work-related discussions that could affect Ms. Dubois' career.
[18] On June 4, 2002, Mr. Derouin sent an e-mail to a number of senior managers at CIDA. Mr. Derouin informed them of problems Ms. Dubois was facing in her work performance and suggested that she undergo a health evaluation in order to assess her capacity to work at CIDA and arrange for more suitable work conditions, if necessary. Ms. Dubois alleges that Mr. Derouin sent this e-mail to harass her, because she is a woman. She adds that she was forced to undergo a psychological evaluation to prove her fitness to work when there was no evidence of mental disability. After interviewing Ms. Dubois' colleagues and clients, the investigator concluded that Ms. Dubois was having difficulty managing her files. There was ample evidence to suggest that Ms. Dubois was slow in returning phone calls and e-mails, and that her files were progressing slowly. Moreover, some witnesses described instances where Ms. Dubois' behaviour was inappropriate, such as dropping to her knees and acting sarcastically when receiving her 25 year public service award or storming into the Minister's office after misinterpreting an e-mail she had perceived as an insult to her work.
[19] Ms. Dubois alleged that Mr. Hamel was promoted to the position of acting director instead of her because he was a man. The investigator found that Mr. Hamel's promotion was not related to the fact that he was a man. Rather, Mr. Derouin's policy was to appoint the next most senior person in terms of CIDA experience and level as acting director. In addition, in Mr. Derouin's view, Ms. Dubois could not handle the added responsibility of managing the section considering her problems managing her own files. Finally, Mr. Derouin named Sylvie Groulx, a woman, as Director following Mr. Hamel.
(ii) Allegations against Mr. Hamel
[20] Ms. Dubois alleges that Mr. Hamel micro-managed her. Ms. Dubois's co-workers André Leroux, Laden Amirazizi and Louis Lacasse informed the investigator that Mr. Hamel's management style was more involved than Mr. Derouin's. All interviewed reported that Mr. Hamel monitored their work closely and that they reported to him on a weekly basis. Ms. Dubois argues that the investigator is not entitled to make credibility findings and should have recommended that the matter be referred to a Tribunal given the conflict between her allegations and the evidence of her colleagues. Specifically, Ms. Dubois alleges that she was to report to Mr. Hamel on a daily basis whereas the investigator accepted Ms. Dubois' colleagues' evidence that all employees were to report to him on a weekly basis. In Dawe v. Canada(Royal Canadian Mounted Police)[5], this Court held that an investigator of the Commission is entitled to make findings of fact and accept the evidence of the respondent over that of the applicant. Similarly, in Bourgeois[6], the Federal Court of Appeal upheld a decision of the Commission dismissing a complaint pursuant to section 44(3)(b) of the Act in the face of conflicting versions of events:
In the case at bar, the investigator was confronted with conflicting reports as to what had actually happened. He preferred the version brought forward by the Bank and by Ms. Guillemette to that of the appellant. He relied, more particularly, on the evidence of seven trainees who had been in the same group as Mr. Bourgeois. These co-trainees could simply not confirm the version of events given by the appellant. It may well be that a full inquiry would have resulted in a different finding, but that is a risk inherent in any screening process. I understand Mr. Bourgeois' frustrations in having been denied the opportunity of a full inquiry, but in the circumstances the Commission cannot be blamed for not having gone further.
[21] Here, the investigator was also confronted with conflicting reports regarding the frequency of Mr. Hamel's reporting system. He was entitled to accept the unanimous testimony of Ms. Dubois' colleagues over hers.
[22] Ms. Dubois also alleges that the Commission's investigation was procedurally unfair in that it lacked thoroughness. In particular, she alleges that the investigator failed to interview
Ms. Ok-Kyung Pak.
[23] In Singh v. Canada(Attorney General)[7], this Court notes 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 Slattery v. Canada(Human Rights Commission) (T.D.)[8], this Court also stated that the Commission is master of its own procedure and judicial review of an allegedly deficient investigation should be warranted only where the investigation is clearly deficient, for example if the investigator "failed to investigate obviously crucial evidence".
[24] Ms. Dubois filed the affidavit of Ms. Pak in support of this application. When called upon, Ms. Pak advises CIDA managers on gender issues which may be involved in some projects. She does not affirm that she was a witness to any discriminatory act against Ms. Dubois. Rather, that she was consulted by Ms. Dubois on a complex file involving Belize. Ms. Pak does not have a supervisory role over Ms. Dubois, yet she believes that the delays she incurred "do not represent any negative performance issues on her part".
[25] This evidence does not establish that the investigator's report lacked thoroughness. Ms. Pak's affidavit does not meet the "obviously crucial evidence" test. On the contrary, the investigator's report was thorough, having conducted interviews with 16 persons and analyzed every one of Ms. Dubois' allegations.
[26] The Court does not find that the Commission made a reviewable error in dismissing the discrimination allegations nor that natural justice had been breached.
3. Was the Commission's decision to dismiss the retaliation allegation correct?
[27] Ms. Dubois alleges that she requested one day of paid leave to meet an agent of the Commission on February 25, 2002 to deal with a work-related matter. She alleges that Mr. Salituri, her supervisor at the time, tore up her request in order to prevent her from filing a complaint with the Commission. Mr. Salituri would have also made veiled comments, in which he insinuated that filing a complaint against the respondent could lead to difficulties and had in fact resulted in negative consequences for certain employees.
[28] The investigator refused to investigate this incident since the alleged act occurred before the filing of the complaint on December 6, 2002. In doing so, he relied on a strict interpretation of section 14.1, which seems to provide that retaliation can only happen after a complaint has been officially filed. The Commission adopted the investigator's conclusion on this point. Section 14.1 of the Act reads:
[29] The question before the Court, at present, has uniquely to do with the interpretation of section 14.1 of the Act, i.e. whether this section should be read as encompassing incidents of retaliation which occurred before the filing of the complaint despite the words "filed" and "has been filed" used in the past tense. In such matters, in treating solely the interpretation of legislation, the standard of review is correctness. By analogy, reference is made to Canada(Human Rights Commission) v. Canadian Airlines International Ltd. (F.C.A.),[9] wherein section 11 was analyzed in the framework of statutory interpretation and thus, the standard of review of correctness was applied As will be seen below, the past tense used must be analyzed in the spirit or the essence of the provision. Otherwise, its very meaning would have no bearing.
[30] Ms. Dubois argues that this section should be interpreted liberally and should not require that a complaint actually be filed with the Commission before retaliation can take place. The Respondent argues that, based on the basic principle of statutory interpretation that words in a statute must be given their plain and ordinary meaning, the choice of the past tense is indicative of the legislator's intent to define retaliation as an act which occurs after a complaint has been filed. The Respondent therefore argues that the investigator's interpretation of this section is reasonable.
[31] The Court notes that there is no decision by this Court or by the Federal Court of Appeal on whether retaliation at section 14.1 of the Act encompasses acts that happened before the complaint was officially filed before the Commission. The Court accepts Ms. Dubois' submissions on this single point. The language of section 14.1 of the Act, while different from its sister provision under the Ontario Human Rights Code[10], has been found in decisions of the Canadian Human Rights Tribunal[11] to have effectively the same purpose, i.e. prohibiting reprisal against an individual for exercising his or her rights under the Act. The significance of the protection offered by section 14.1 of the Act in the context of the exercise of rights under the Act extends beyond the limited process
of filing a complaint and includes behaviour that is consistent with claiming or asserting one's rights as protected by the Act. Viewed in this light, the process of meeting with the Commission in furtherance of protecting or promoting rights as guaranteed by the Act would fall within the ambit of section 14.1 of the Act. The alternative interpretation, i.e. that section 14.1 protection is only guaranteed after a human rights complaint is approved by the Commission, signed by the complainant on the required form and served upon the respondent(s) is out of touch with the reality of the exercise of human rights in the workplace and runs counter to the purpose of the Act as articulated under section 2 and the broad and liberal interpretation with which human rights legislation is to be read generally so as to maximize the protection of rights protected by statute (Canadian National Railway Co. v. Canada (Human Rights Commission)[12]). If section 14.1 of the Act were to be interpreted otherwise, then any intimidation with respect to retaliation if successful prior to the actual filing of a complaint would silence the complainant whose complaint would never see the light of day.
[32] It is clear that the investigator, and the Commission which adopted the investigator's finding on this point, made a reviewable error in relying upon a narrow and inappropriate interpretation of section 14.1 of the Act. Accordingly, the question of retaliation should be remitted to the Commission to be investigated and only, subsequently, further to such investigation decided upon, bearing in mind the above comments.
CONCLUSION
[33] For these reasons, the Court answers the first two questions in the negative and the third one in the affirmative. Consequently, the application for judicial review is dismissed with respect to the discrimination allegations, but is allowed with respect to the retaliation allegation. This later allegation is remitted for investigation and decision by the Commission in accordance with the reasons herein.
ORDER
THIS COURT ORDERS that
1. the application for judicial review be dismissed in regard to the discrimination allegations, but be allowed with respect to the retaliation allegation. The latter allegation be remitted for investigation and decision in accordance with the above.
2. due to the Court's reasoning, no determination be made as to costs at this time.
Obiter dictum
With reference to Larsh v. Canada (AG) (1999), 166 F.T.R. 101 at paragraph 36, wherein Evans J. (as he then was), stated:
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.
It is recalled that in that case, Evans J. held that the Commission does not have the obligation to send a matter to an oral hearing where there is an issue of credibility, nevertheless, that issue of credibility, in and of itself, must be indicated.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2172-04
STYLE OF CAUSE: SUZANNE DUBOIS
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 8, 2005
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Mr. Yavar Hameed FOR THE APPLICANT
Mr. Alexandre Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. YAVAR HAMEED FOR THE APPLICANT
Ottawa, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General
[1] R.S.C. 1985, c. H-6.
[2] [2003] F.C.J. No. 1202 (F.C.) (QL) at paragraph 42.
[3] [2005] F.C.J. No. 494 (F.C.A.) (QL) at paragraph 4.
[4] [2000] F.C.J. No. 1655 (F.C.A.) (QL) at paragraph 3.
[5] [2003] F.C.J. No. 1102 (F.C.) (QL) at paragraph 38.
[6] Supra at paragraph 6.
[7] (2001) 201 F.T.R. 226, [2001] F.C.J. No. 367 (T.D.) at paragraph 26.
[8] [1994] 2 F.C. 574, [1994] F.C.J. No. 181 (T.D.) (QL) at paragraph 56.
[9] [2004] 3 F.C.R. 663, [2004] F.C.J. No. 483 (QL) at paragraph 7:
The parties agree that the appropriate standard of review to be applied to the Tribunal's decision is correctness. The Tribunal was engaged in an issue of statutory interpretation-the meaning of establishment in subsection 11(1) of the Act and what the statute and the Guidelines required or permitted the Tribunal to consider to determine if employee groups are in the same establishment. Curial deference does not apply to a tribunal's interpretation of human rights legislation. See Canada (Attorney General) v. Public Service Allianceof Canada, [2000] 1 F.C. 146 (T.D.), at paragraph 73, per Evans J. (as he then was).
[10] R.S.O. 1990, c. H-19, s. 8.
[11] See, for example, Wong v. Royal Bank of Canada, [2001] C.H.R.D. No. 11 at paragraph 218.
[12] [1987] 1 S.C.R. 1114, [1987] S.C.J. No. 42 (QL) at pages 1132-1138.