PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
SHAW CABLESYSTEMS G.P.
and MEL TUGADE
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission (CHRC or the Commission) dated February 26, 2004, in which the Commission dismissed Ms. Maria Assunta Pezzente's (the applicant) sexual discrimination complaints against Rogers Communications Inc. (Rogers), Shaw Cablesystems G.P. (Shaw) and Mr. Mel Tugade (collectively the respondents) contrary to sections 7 and 14 of the Canadian Human Rights Act (CHRA or the Act).
RELEVANT FACTS
[2] The applicant was hired by Rogers Cable Inc. (Cable) to begin work on October 4, 1999, as a customer service consultant. She alleges that on September 7, 2000, she was sexually harassed by Mr. Mel Tugade, a senior customer service representative who worked for Rogers AT & T Wireless (Wireless). She claims that on more than one occasion, he made lewd comments towards her, grabbed her breasts and asked her to sleep in his bed. She also claims to have been harassed by other men on her floor who would send her sexually explicit emails.
[3] On September 15, 2000, she complained to Rogers' Human Resources Department about the situation. She claims that shortly after her complaints, her managers started to treat her differently and that she received an inferior performance review.
[4] On November 1, 2000, Shaw acquired the assets of Cable and as a result, the applicant's employment was terminated on November 21, 2000. Shaw claims to have terminated her employment as her records indicated a continuous string of sub-par performances.
[5] On June 1, 2001, the applicant then decided to file complaints with the Commission against Rogers and Mr. Mel Tugade. On July 31, 2001, she also filed a complaint against Shaw. A full investigation was conducted, and a preliminary report was given to the applicant and the respondents for them to respond to. Once all responses were considered by the Commission, in a letter dated February 26, 2004, it dismissed all of the complaints and decided not to refer the matter to the Human Rights Tribunal.
ISSUES
[6] 1. What is the standard of review to be applied in a judicial review of the
Canadian Human Rights Commission's decision to dismiss a human rights complaint pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act?
2. Did the Commission breach the rules of procedural fairness in its investigation of the applicant's complaints with respect to:
a) The witness list provided by the applicant?
b) The delay in issuing its final report to the applicant?
3. Did the Commission commit a patently unreasonable error in dismissing the applicant's complaints?
ANALYSIS
- What is the standard of review to be applied in a judicial review of the Canadian Human Rights Commission's decision to dismiss a human rights complaint pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act?
[7] The standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court (Hutchinson v. Canada(Minister of the Environment), 2003 FCA 133, [2003] 4 F.C. 580 (C.A.). In cases where there is no breach of the principles of procedural fairness, the applicable standard of review of the CHRC's decision not to refer the complaint to the Canadian Human Rights Tribunal is one of patent unreasonableness:
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), 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. [my emphasis]
(Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 [1998] F.C.J. No. 1609 (C.A.) at paragraph 38)
We can agree that the investigation and the report have some shortcomings and that it is unacceptable that the investigation and report took four years to complete. Nonetheless, we are not satisfied that the investigation was so defective as to constitute a breach of the duty of fairness (see Slattery v. Canada(Human Rights Commission), [1994] 2 F.C. 574 (T.D.), or that it was patently unreasonable for the Commission to have dismissed the complaint on the basis of the material before it. [my emphasis]
(Murray v. Canada(Canadian Human Rights Commission), 2003 FCA 222, [2003] F.C.J. No. 763 at paragraph 4)
[8] However, the Hutchinson v. Canada, supra, case also stated that in some cases, the standard of review could be that of reasonableness. I find that once the issue of procedural fairness is dealt with separately, the remaining issues will be reviewed on the basis of patent unreasonableness, as the arguments raised by the applicant deal with the approach and methodology used by the Commission and its investigators in dismissing the complaints.
The law on the standard of review for these types of decisions is that different standards will apply to different types of decisions. Where the challenge is based on fairness/denial of natural justice, no deference is owed. Where the challenge relates to decisions by an investigator as to how to investigate a complaint, who will be interviewed or whose evidence is credible -- all of which affects the Commission's ultimate determination -- there will be the highest deference accorded. In this case, and for reasons similar to Hutchinson, supra, I am satisfied that where a standard of review is applicable, the decision meets the less deferential standard of reasonableness. [my emphasis]
(Murray v. Canada (Revenue Agency), 2004 FC 1541, [2004] F.C.J. No. 1874 at paragraph 11)
[9] However, in issues dealing with procedural fairness, I am simply to determine whether or not those principles were breached:
Procedural fairness questions are not subject to a pragmatic and functional analysis. The courts are to provide the legal answer to such questions (see CUPE v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100 per Binnie J.).
(Canada(Attorney General) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 at paragraph 6)
- Did the Commission breach the rules of procedural fairness in its investigation of the applicant's complaints?
[10] I will begin my analysis by determining whether the Commission adhered to the principles of procedural fairness, while keeping in mind that the powers exercised by the Commission under section 44(3) of the Act are an administrative screening function and therefore do not attract the scrutiny given to a judicial or quasi judicial body (Banks v. Canada Post Corp.), 2004 FC 713 [2004] F.C.J. No. 923, at paragraph 29).
[11] The applicant has alleged that the investigation was seriously flawed and that the investigators assigned were not thorough in their duties. Among her many reasons given, the applicant claims that the Commission did not interview any of her witnesses in order to establish a sexualized work environment. The courts have recognized that the deference to be accorded to the Commission is relatively high:
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 investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. 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.
(Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. No. 181, aff'd [1996] F.C.J. No. 385 at paragraph 69) (See also Murray v. Canada(Canadian Human Rights Commission), 2002 FCT 699, [2002] F.C.J. No. 1002 at paragraph 24.)
[12] Nonetheless, I do not believe that the Commission met this fairly low threshold. I find that the principles of procedural fairness were breached when the Commission failed to interview even a single witness proposed by the applicant. Secondly, I find that the Commission failed to deal with the applicant's complaints as a whole, choosing rather to deal with one of the many issues raised. Furthermore, I find that the delay in investigating the three complaints was unduly long. Finally, I also find that the Commission committed a patently unreasonable error in its evaluation of the evidence presented to it.
a) The witness list provided by the applicant.
[13] From the evidence before me, it is clear that the Commission did interview Sherry Kelly, Lisa Vermeer, Bob Leslie, Jeffrey Mehr and the applicant. With the exception of the applicant, these witnesses were all representatives of Shaw or Rogers and were interviewed as per their requests. The applicant also provided the Commission with her own list, which included seven different witnesses; from that list, not a single witness was interviewed by the Commission. It is important to mention that three of the suggested witnesses were individuals whom the applicant felt had contributed to the highly sexualized environment. They were not necessarily listed to bolster her claim of having been sexually harassed, bur rather, to paint a truer picture of what the work environment was like. The witnesses may have denied any wrongdoing, or may have admitted to contributing to it. Had the Commission met with these individuals, it would have been able to better evaluate the degree of sexual harassment prevalent in the office.
[14] In a letter sent to the applicant by the Manager of Investigations at the Commission near the end of March 2002, it was stated :
We have already requested that the respondents provide their position regarding the allegations and will inform you of that position once it is received. In the meantime, please provide the names and telephone numbers of individuals whom you would like us to contact as witnesses in support of your allegations. [my emphasis]
(Page 35 of the applicant's supplementary record)
[15] In a follow-up letter sent by the applicant on March 28, 2002, it was stated that she wanted to clarify some aspects of her particulars in that the internal investigation summary completed by Rogers did not address the workplace atmosphere that existed at that time. The applicant therefore provided the names of seven witnesses who would be able to give evidence concerning that claim.
[16] While I am mindful of the Slattery v. Canada, supra, decision, this is not a case where only some of the witnesses offered were interviewed. Rather, not a single one of them was contacted by the Commission, even though the Commission had specifically asked the applicant to submit the names of witnesses which would support her claims against Rogers which read as follows:
Rogers Communications Inc. has discriminated against me in employment on the grounds of sex by failing to provide a harassment-free work environment, by treating me differently, and by terminating my employment, in contravention of Section 7 and 14 of the Canadian Human Rights Act. [my emphasis]
(See the complaint form against Rogers Communications Inc. filed on June 1, 2001)
[17] As is noted above, one of the complaints against Rogers was its failure to provide the applicant with a harassment-free work environment. Although the report of the investigator includes two pages of analysis under that heading, it fails to actually address it. Rather, the analysis given revolves almost solely around the incident of September 7, 2000, involving Mr. Tugade and states that the internal investigation had resulted in disciplinary action having been taken against Mr. Tugade, and that the matter was considered to have been dealt with adequately.
[18] The investigation into the Rogers complaint was too focused on what had occurred between the applicant and Mr. Tugade, completely dismissing the environment in which the applicant worked on a daily basis. The only mention of the general atmosphere is under the title "Offensive electronic mail messages" and is dismissed by stating that an internal investigation by Rogers revealed that no offensive emails could be found and that the claim of a sexualized environment was not justified. I find that the Commission erred in relying solely on the internal investigation and in adopting Rogers' conclusion as its own, seeing as to how it did not itself proceed with a diligent investigation of the applicant's allegations.
[19] The Commission has a duty to investigate all complaints brought before it and it failed in that duty by not interviewing any of the applicant's witnesses who could have corroborated her claim of the failure by Rogers to provide a harassment-free work environment. I do not believe that a fair and impartial investigation was completed, as all of the witnesses on the applicant's list were simply dismissed.
[20] In the recent case of Tahmourpour v. Canada(Solicitor General), 2005 FCA 113, [2005] F.C.J. No. 543, the Court of Appeal dealt with a dismissal by the Commission of the applicant's claims of having been harassed, discriminated against, and ultimately terminated on account of his religion, or his national or ethnic origin. In that case, the applicant was one of 24 cadets in his troop. Although the applicant felt that some of the cadets should have been interviewed, the investigator had decided not to:
In my opinion, the investigator's failure to interview any of the other cadets in the troop about the above allegations is unjustifiable, since they were potentially such an important source of information. Counsel for the Minister suggested that the problem was the passage of time. The incidents in question had occurred in the summer and fall of 1999, and the investigation was conducted approximately three years later. Meanwhile, cadets from Mr. Tahmourpour's troop would have dispersed and would not be available for interview. And, even if they could be tracked down, counsel said, they were unlikely to remember the incidents.
I do not agree. Since the investigator made no attempt to contact any of the cadets, it cannot be said that they could not be located, or would not remember the incidents in question. This is speculation. I would note that the officers involved in the incidents, and their colleagues, remembered enough to deny Mr. Tahmourpour's allegations. [my emphasis]
(Tahmourpour v. Canada, supra, at paragraphs 34 and 35)
[21] Similarly to the above mentioned case, I find that in failing to interview any of the applicant's witnesses, the investigator failed to investigate obviously crucial evidence :
As noted in the accompanying reasons, the Federal Court of Appeal has held that procedural fairness does not require that members of the Commission examine the complete record of the investigation. Rather, they are entitled to rely upon the investigator's report so long as the investigator's report is disclosed to the parties, the parties are provided with the opportunity to make all relevant representations in response to the investigator's report, and those responsive representations are considered by the Commission when it makes its decision. In addition, the investigator who prepares the report must conduct a thorough investigation. Interference is warranted on judicial review where an investigator fails to investigate obviously crucial evidence. [my emphasis]
(Tse v. Federal Express Canada Ltd., 2005 FC 598, [2005] F.C.J. No. 740 at paragraph 20)
[22] The investigation of the applicant's complaints thus fails to meet the test of thoroughness prescribed in Slattery v. Canada, supra. Accordingly, the Commission's dismissal of the complaint should be set aside as being in breach of the duty of fairness solely on this point.
b) The delay in issuing its final report to the applicant.
[23] The applicant further argues that the Commission took an unreasonably long period of time in concluding its investigation. Although all of the respondents argue that the delay did not compromise the fairness of the hearing nor otherwise prejudice the applicant, I find the collective matter in which the investigation was carried out, as well as the fact that much of the delay is attributable to the Commission's mishandling of the case, amount to a breach of procedural fairness. In the case of Hamilton v. Driftpile First Nation Band, 2002 FCT 405, [2002] F.C.J. No. 508, a three year delay in the investigation of a human rights complaint was found not to be a breach of procedural fairness. However, my colleague Justice Tremblay-Lamer came to that conclusion after having considered the contextual factors of that case:
Applying those factors to the facts in the case at bar, I do not find that the delay was so inordinate as to amount to an abuse of process. Although it is unfortunate that it took the Commission more than three years to dismiss the applicant's complaint, the applicant's ability to prove his case did not deteriorate over time and he has failed to demonstrate that he has suffered a significant prejudice. Considering the contextual factors in the present case, I am not satisfied that the delay "[...] would offend the community's sense of decency and fairness". (Blencoe v. British Columbia(Human Rights Commission), [2000] 2 S.C.R. 307 at para. 132) [my emphasis]
(Hamilton v. Driftpile First Nation Band, supra, at paragraph 25)
[24] In the present case, two of the complaints were filed on June 1, 2001 and the third was filed two months later. An investigator was assigned to the case and had begun her investigation; however, on March 5, 2002, a letter was sent to the applicant which read as follows:
Dear Ms. Pezzente:
This is to express my sincere regret for the manner in which your complaint files have been delayed. I am truly sorry for any anxiety and inconvenience that may have resulted from this situation as I know how important these matters are - not only to you but to the Commission. Please be assured I am mindful of this and have done all in my power to address this situation. Again, I am truly sorry.
Sincerely,
Gerry de la Garza
Mediator
(See exhibit O of the applicant's record.)
[25] Although the Commission expresses sincere regret at the delay caused by the mishandling of the applicant's files, and although they state that this matter is important to them and that they will do everything possible to address the situation, the files were further delayed when the Commission decided to replace the first investigator with another, sometime between the summer of 2002 and the winter of 2003.
[26] The matter was further aggravated when the new investigator assigned to the files wrote to the applicant on March 10, 2003, indicating that her final report would be delayed as she was having trouble obtaining documents and contact information for witnesses. I can understand the frustration of the applicant who by this point, had been waiting almost two years for the final report. Now, she was being told that the Commission was having trouble locating witnesses, even though she had on more than one occasion given the names and contact information for witnesses which would provide evidence, but were still not being contacted.
[27] On July 24, 2003, the applicant therefore met with the current investigator and in a follow-up letter sent on July 28, 2003, reiterated that she wished to have witnesses from her list interviewed. Specifically, she included the contact information for Caylene Niddrie, one of her key witnesses, and also attached an email from Mr. Sukh Gill - a co-worker which she had included on her witness list sent previously to the first investigator - in order to demonstrate an example of the type of sexual harassment she was faced with on a daily basis. Not only did the appointment of a second investigator further delay the case, but once again, the witnesses provided were not contacted.
[28] The Commission was well aware of the fact that Shaw had acquired the assets of Cable and that a great deal of turnover was likely within the new entity. Rather than delay its investigation, the Commission should have done everything possible to accelerate the procedure, seeing as to how the possibility of losing potential witnesses increased with every passing month.
[29] By the time the final report was issued to the applicant on February 26, 2004, nearly three years had gone by, and none of the witnesses provided by the applicant had been interviewed. Considering the contextual factors in the present case, I am satisfied that the delay has deteriorated the applicant's ability to prove her case and that the applicant has suffered a prejudice from it. Furthermore, I am satisfied that the delay meets the test set out in Blencoe v. British Columbia(Human Rights Commission), [2000] 2 S.C.R. 307 in that it would offend the community's sense of decency and fairness.
- Did the Commission commit a patently unreasonable error in dismissing the applicant's complaints?
[30] Although I have already determined that the Commission committed a breach of procedural fairness in its handling and investigation of the applicant's complaints, I find that the manner in which the Commission handled the investigation warrants further probing in order to determine whether a patently unreasonable error was also committed.
[31] Having extensively reviewed all of the material before the Commission, as well as the way in which it handled the complaints, I would simply like to point out a few examples of what I believe to be patently unreasonable actions on behalf of the Commission in its gathering of the evidence and its questioning of the different witnesses in regards to that evidence.
[32] The applicant states that on the night of September 7, 2000, she finished work at 8:00 p.m., and that upon leaving the building, Mr. Tugade approached her and offered her a lift to her car. However, the evidence provided seems to indicate that Mr. Tugade finished his shift at 9:00 p.m. that night. A point of contention was whether the applicant waited for Mr. Tugade to finish his shift, or whether he took a break or finished early that day in order to meet the applicant around 8:00 p.m. Documentary evidence was provided to the Commission to show that the applicant logged out at 8:09:05 p.m. I am at a complete loss to understand why it is that similar evidence was not provided to indicate the log in and out times of Mr. Tugade, seeing as to how both parties raised the hour discrepancy during the hearing. It would have been quite simple to obtain these records and provide a clearer picture of what truly happened that evening.
[33] Another example of the poor conduct on behalf of the Commission is its analysis of Mr. Tugade's cellular phone records. The applicant argues that she did not make any calls to Mr. Tugade's cellular phone, but that if she had, then they were work related. Mr. Tugade argues that she placed numerous social calls to him. The phone records were provided by Rogers, and it would have therefore been quite easy to verify the number and length of incoming and outgoing calls between the applicant and Mr. Tugade. This was not done by the Commission and we are left with another gaping void in the evidence.
[34] I would also like to comment on the applicant's dismissal by Shaw. In its submissions, Shaw was adamant about the fact that the employees who reviewed the applicant's file and who determined that her poor performance necessitated her firing, were never made aware of her sexual harassment complaints, nor of the internal investigation being conducted by Rogers' (and subsequently Shaw's) Human Resources Departments.
[35] The Notice of Layoff (Termination) sent by Shaw to the applicant on November 21, 2000, states the following:
As a result of the share swap between Rogers Communications Inc. ("Rogers") and Shaw Communications Inc. ("Shaw"), we have carefully considered our staffing requirements and have concluded that your position is no longer required. Therefore, this letter will confirm that your services will no longer be required effective November 21, 2000.
We regret that this action has become necessary but in our view, it is imperative that we recognize the economies and efficiencies that consolidation will provide in order to ensure the continued viability of our cable operations.
(...)
If you have any questions or concerns, please feel free to contact the Rogers Human Resources Department directly or our Human Resources Department toll free at 1-877-503-9252.
Yours very truly,
SHAW CABLESYSTEMS G.P.
(See Exhibit H of the affidavit of Maria Assunta Pezzente dated April 22, 2004)
[36] The letter makes no mention of the applicant's sexual harassment allegations, nor does it mention her poor performance, which Shaw vehemently argues is the reason for her dismissal. When asked about the fact that the reasoning in the Notice of Layoff was not the same as that being alleged, counsel for Shaw repeated again that the applicant was let go for issues related to her performance, and not for any other reason given:
JUSTICE: So why did you fire her?
MS. IYER: I'll get to that in a moment, My Lord. The short answer to that is exactly as Your Lordship put it. Rogers did not disclose to Shaw -- when the transfer occurred Shaw received the employee files, personnel and performance files from Rogers. Shaw went through and determined what employees it was going to keep and what employees it was going to offer severance to. And it did so on the basis of the performance records in those files.
JUSTICE: This is what you wrote in the letter?
MS. IYER: No, My Lord, that isn't the --
JUSTICE: So the reference of why you fired her is not the reason that was provided to her? This is what you're telling me?
MS. IYER: My Lord, as you said, numbers --
JUSTICE: Is there a question about performance in the letter that you provided to her?
MS. IYER: No.
JUSTICE: But is that the reason why?
MS. IYER: That is what the investigator found.
JUSTICE: So we have to guess. We have to guess. They made a decision based on performance but you didn't tell her. You provided another reason why.
MS. IYER: That is correct, My Lord.
(Transcript of the hearing held May 24, 2005 at page 211)
[37] If I am to accept Shaw's claim that the applicant's employment was terminated based solely on her work performance and that those involved in her dismissal were not aware of the complaints filed by her, then the Human Resources Departments of Shaw and of Rogershave placed themselves between a rock and a hard place.
[38] On the one hand, they claim to have kept the complaints confidential, so as to not have other co-workers or supervisors view the applicant in a different light, and to treat her differently because of it. On the other hand, they did nothing to intervene in the dismissal of the applicant even though they were aware of the circumstances surrounding the applicant and affecting her daily routine.
[39] To add insult to injury, the applicant's notice of layoff states that all questions or concerns about her termination should be directed to the Human Resources Departments of Rogers or of Shaw. The same departments who were supposed to help the applicant cope with her sexual assault and who were therefore aware of the constant stress she had to deal with, are now asked to justify her termination.
[40] In cases where the Human Resource Department is aware of facts which would mitigate the poor performance of an employee who is being laid-off for that very reason, unless the Human Resource Department intervenes and reveals the fact that mitigating circumstances exist, then the internal investigation process meant to help employees is actually harming them.
[41] Although I realize that legislation prevents the disclosure of the internal complaints in order to protect the privacy of those individuals, no good comes of dealing with grievances in a manner completely extraneous to the ongoing activities of that person within the organization. To act in a way other than this would be hypocritical to the complainant and would make a mockery of the organization's own internal investigation procedures.
[42] Nonetheless, I digress from the other numerous mistakes which the Commission made in its evaluation of the evidence and in its conduct of the investigation. The mistakes identified in my analysis above, amount to the Commission having acted in a patently unreasonable manner in its handling of the applicant's complaints.
[43] Having found that the Commission acted in a patently unreasonable manner and having found that the overall mishandling of the applicant's complaints, the delay in issuing a final report and the lack of interviews with any of the applicant's witnesses amount to a serious breach of procedural fairness, I am of the opinion that the three complaints must be sent back to the Commission for re-determination. I therefore grant the judicial review.
ORDER
THIS COURT ORDERS that:
· The application for judicial review be granted;
· The decision of the Commission dated February 26, 2004 be quashed;
· The matter be sent back to the Commission for reconsideration and re-determination of the applicant's complaints on an expedited basis, given the circumstances of her case;
· The matter be heard by an investigator not previously involved with this case.
___________"Pierre Blais"___________
Judge
APPLICABLE LEGISLATION
Canadian Human Rights Act, R.S.C. 1985, c. H-6
| 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.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(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).
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
(2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(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).
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-597--04
STYLE OF CAUSE: MARIA ASSUNTA PEZZENTE and ROGERS COMMUNICATIONS INC., SHAW CABLESYSTEMS G.P. and MEL TUGADE
PLACE OF HEARING: VANCOUVER, B.C.
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
Ms. Maria Assunta Pezzente FOR APPLICANT
Mr. Israel Balter FOR RESPONDENTS
ROGERS COMMUNICATIONS INC.
& MEL TUGADE
Ms. Nitya Iyer FOR RESPONDENT
SHAW CABLESYSTEMS G.P.
SOLICITORS OF RECORD:
Ms. Maria Assunta Pezzente
(appearing on her own behalf) FOR APPLICANT
Lang Michener LLP FOR RESPONDENTS
(Toronto) ROGERS COMMUNICATIONS INC.
& MEL TUGADE
Heenan Blaikie LLP FOR RESPONDENT
(Vancouver) SHAW CABLESYSTEMS G.P.