Date: 20041018
Docket: T-2003-03
Citation: 2004 FC 1439
BETWEEN:
WARREN GIBSON LIMITED
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION and
MICHELLE LARONDE
Respondents
REASONS FOR ORDER
PHELAN J.
Overview
[1] An employee complained that her employer had engaged in sexual discrimination by reason of differentiated punishment meted out to her as a woman. For purposes of assessing whether the employer had engaged in this form of discrimination, the Canadian Human Rights Tribunal (the "Tribunal") compared the female employees' treatment against that of a person who was not an employee of her employer nor were the circumstances used for comparison the same.
[2] This is a judicial review of the Tribunal's finding that this contravention of the Canadian Human Rights Act (the "Act") had been made out and its award of compensation for nine months salary plus $5,000 in special compensation together with interest and out of pocket expenses.
Background
[3] Michelle Laronde ("Laronde") is the complainant. Mike Rumble ("Rumble") was an employee of Allan Downey, a subcontractor to the employer Warren Gibson Limited (the "Company"). These are the principal actors for purposes of this judicial review.
[4] The Company is a large trucking company located in Alliston, Ontario. In its trucking operations, it has four "driver boards" (somewhat akin to business operations): the US board, the Windsor board, the local board and the floater board. Drivers on the US board run cross border from Alliston to the US and return; those on the Windsor board operate from Alliston to Windsor and return; those on the local board, their runs are within Canada, typically a 100 mile radius from Alliston; and those on the floater board are drivers are not assigned to any of the other boards.
[5] The Company has grown over the years and had become the primary carrier of automobile parts for Honda's Alliston assembly plant. Since Honda's operations are based on a "just-in-time" logistics, a critical component of the delivery system involved a "window time". A window time is the time scheduled by which the driver must deliver a trailer to the customer. The phrase "on time, every time" is not only the Company's motto, which is drilled into every driver; it is the basis of its success.
[6] Laronde was hired as a driver on the US board in May, 1994 on probationary status and became a permanent employee in April, 1995. She worked for the Company until October 2, 1996 when she was terminated.
[7] Prior to her termination, Laronde had filed a complaint with the Canadian Human Rights Commission (the "Commission") alleging that she had been more harshly disciplined than male drivers for similar incidents, had been denied promotions in breach of section 7 of the Act, and, had been discriminated against by reason of the Company's failure to provide a harassment-free workplace contrary to section 14 of the Act.
[8] At the Tribunal's hearing, the Commission and Laronde alleged that there were eighteen different incidents that constituted contraventions of the Act. The Tribunal dismissed seventeen of these.
[9] The incidents which formed the basis of the Tribunal's decision of adverse differentiation due to Laronde being disciplined more harshly for similar incidents than male drivers are:
a) On June 6, 1996, Laronde overslept and therefore she was late in meeting her switch - where she would switch her load for that of another driver so that each truck would then take their respective loads to destination - hers being the Alliston Honda plant. Consistent with the Company's progressive discipline policy, she was given a disciplinary notation which constituted a major offence on her record. Her appeal to the management committee was denied.
b) On June 18, 1996, Laronde was significantly late in delivering her load. Again she was given a disciplinary notation which constituted a major offence on her record. She did not appeal to the management committee.
c) On June 27, 1996 Rumble was given an incident record by the dispatcher for being late leaving his originating point. There is no evidence that there was late delivery of the load and there was no customer complaint. It was also the first such incident for Rumble.
[10] Rumble was not an employee of the Company - he was employed by Allan Downey. Downey was a subcontractor who sometimes performed driving services for the company. The nature of the operations conducted by subcontractors was on an "as needs" basis and was described in the evidence as follows:
"MR. SAUNDERS:
Q. We have heard in testimony earlier about Mr. Al Downey with regard to lates (sic). Who is Mr. Downey?
A. Mr. Al Downey was a subcontractor. He was not our employee. He did not run under our CVOR. Mr. Downey belonged to a group we called farmers. Basically that is what their main function was. They were farmers, either cattle or hay. On their off-season they would run for us when we needed extra trucks. The relationship was - there was no contract between the two parties. It was on an as-needed basis, similar maybe to a driver service, but for people with their own vehicles.
THE CHAIRPERSON: They had their own vehicles.
THE WITNESS: Yes. They actually had their own operating rights as well. In the event that something happened, like an accident, it would be their responsibility. Gibson would be totally absolved. They were not subject to the company disciplinary process.
MR. SAUNDERS:
Q. If Mr. Downey was late, what was the ramification there?
A. If one of our subcontractors was not going by policy, the dispatchers would deal with them. If it became abusive, then they just wouldn't use their services. I would not be involved with any of their operations." (Application Record of the Applicant, Vol. 5, pages 1086-1087).
[11] Subcontractors were not subject to the Company's disciplinary process and any issues regarding performance would be dealt with by the Company's dispatcher, not by Company management.
[12] With respect to the incidents in question, the Tribunal held that the comparator for purposes of considering discriminatory treatment was Rumble. The Tribunal held that the Company had the onus to explain why Rumble only received a note to file sanction; the Company did not discharge that onus by referring to the fact that the matter had been dealt with by the dispatcher.
[13] The Company says that the issues in their judicial review are a) the error in the use of Rumble as a comparator; b) the unreasonableness of a 9 months money award for a 2 year employee; c) the unreasonableness of the award of special compensation.
[14] The Commission sees the issues as a) the standard of review; b) the Company's failure to raise the argument of the proper comparator; c) Rumble as an appropriate comparator; d) the reasonableness of the awards of damages and special compensation.
Analysis
Standard of Review
[15] The Company says that the applicable standard of review is that found in paragraph 18.1(4) of the Federal Court Act and in particular subparagraph (d) "based its decision or order on an erroneous finding of fact that it made . . . without regard to the material before it".
[16] The Commission contends that the standard of review is that which was set out in International Longshore & Warehouse Union (Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 in which Gibson J. held that the standard of review of decisions of the Tribunal in these types of matters is "correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness in respect of 'fact finding and adjudication in a human rights context'."
[17] While the Company is correct as to the statutory standard of review, the issue in this case is not that the Tribunal had no regard for the evidence respecting Rumble (there was both evidence and argument) nor is the choice of Rumble as a comparator one purely of fact.
[18] The choice of Rumble as a comparator requires the Tribunal to consider facts and reach a conclusion that, on these facts, Rumble's conduct is the legal criterion on which to assess differentiation. The choice of comparator is a question of mixed law and fact to which the standard of review is reasonableness.
Failure to Raise Argument
[19] There was ample evidence in the record as to Rumble, his non-employee status, and the process for dealing with sub-contractors performance issues. (Applicants' Application Record pages 456, 744-746, 1086-87, 1320-22 are examples).
[20] The issue of the use of Rumble as a valid comparator was raised in argument (see transcript Vol. II, pages 1530-1533). While the issue was not as clearly raised or emphasized as it was in this Court, it was raised. In any event, there is more than a sufficient record on which this issue can be dealt with on judicial review.
Rumble as a Comparator
[21] In order for a comparator to be valid, there must be sufficient similarity between the comparator, their position and circumstances and those of the complainant, to be able to assess the relativity of treatment as between persons in similar situations. The only points of similarity are that both were truck drivers hauling on behalf of the Company.
[22] The fact that Rumble was not an employee of the Company, not subject to the Company's employment policies and outside of the Company's ability to discipline are critical distinctions which go to the root of the validity of Rumble as a comparator. The Company did not have the control over or power to punish Rumble, as it did Laronde.
[23] The Tribunal appears to have ignored or been unmindful of the substantive differences between the comparator's status and that of the complainant for purposes of determining whether the Company engaged in prohibited differentiation. If the Company is unable to punish the two people in the same way, then one cannot compare the respective punishments meted out by or on behalf of the separate employers.
[24] For these reasons I have concluded that the use of Rumble as a comparator was unreasonable. This application for judicial review will be granted and the decision quashed.
Reasonableness of Damages/Special Compensation
[25] In view of the Court's disposition of the main grounds for review, it is unnecessary to decide either of these issues.
[26] In addition, it would not be useful to do so, since any award depends on a review of the conduct of the parties and a characterization of that conduct. It would be academic to speculate as to what the award should be if the facts and matters of mixed law and fact were different.
[27] For these reasons the Court will not make an alternative determination with respect to damages and special compensation.
[28] For these reasons the application for judicial review will be granted, the decision of the Tribunal will be quashed. Costs in this Court shall be in favour of the Applicant.
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2003-03
STYLE OF CAUSE: WARREN GIBSON LIMITED v. THE CANADIAN
HUMAN RIGHTS COMMISSION et al
DATE OF HEARING: June 10, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER: PHELAN J.
DATED: October 18, 2004
APPEARANCES BY:
Mr. Douglas Gray FOR THE APPLICANT
Mr. Philippe Dufresne FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Douglas Gray
Toronto, Ontario FOR THE APPLICANT
Mr. Philippe Dufresne
Canadian Human Rights Commission
Toronto, Ontario FOR THE RESPONDENTS