OTTAWA, ONTARIO, June 26, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The Applicant made a complaint on November 21, 2003 to the Canadian Human Rights Commission (the "Commission") alleging that her previous employer, Export Development Canada (EDC), had discriminated against her on the basis of sex. She felt there was pay inequity between male and female workers. She also claimed to have suffered from reprisal and harassment after she complained of pay inequities to EDC in December 2001.
[2] EDC provides insurance to Canadian companies against the risk of foreign customers not paying their invoices. It also provides loans to foreign buyers to finance the purchase of Canadian exporter's products. There are two types of sales positions at EDC: Business Development Manager ("BDM") and Senior BDM. The Applicant worked for EDC from 1990 to 1995 as an Account Manager. She was re-hired in 1997 as a BDM and promoted to Senior BDM in 2000. She resigned from EDC in May 2003. From 1998 to 2003, EDC went through structural and organizational changes to BDM positions.
[3] EDC submits that following the issuance of a report dated December 10, 2003 and commissioned by EDC regarding potential pay equity issues at EDC (the "Mercer Report"), it sent a copy of the report to the Applicant's former counsel along with a check representing the gross amount of $2754 that represented adjustments related to 2000, 2001 and 2003 pay discrepancies. Mr. Christie, Vice-President of National Sales of EDC, also apologized in this letter.
[4] On August 20, 2004, the investigator assigned by the Commission to this file (the "Investigator") provided a summary of EDC's position to the Applicant and asked the Applicant to comment by providing any rebuttals, additional information and contact information for witnesses by September 17, 2004. She was then asked on August 25, 2004 to comment or refute findings of the Mercer Report. On September 15, 2004, the Applicant provided a rebuttal with 22 tabs of enclosures that totalled over 180 pages. The Investigator then met with at least 16 individuals. The Applicant was interviewed on February 22, 2005. The Applicant provided additional information on March 22, 2005 that was approximately 60 pages including enclosures.
[5] On June 10, 2005, the Applicant was provided with a copy of the Investigator's report (the "Report"). Her counsel provided a detailed reply consisting of 10 pages plus enclosures on July 7, 2005.
[6] The final investigator's report provided information for each of the seven allegations. The Investigator set out the Applicant's and Respondent's submissions and then provided analysis. He did not believe there was merit in the allegations. The allegations, as stated by the Investigator in his Report, were:
1. In 2001, I received evidence that women were being given higher sales targets than men. I objected to pay discrimination between myself and a male comparator, David Little, Sr. BDM.
2. After complaining about pay equity concerns, my compensation package, relative to others, became worse.
3. I was subject to reprisals, including lower performance appraisals than I deserved in 2001 and 2002.
4. Although the Ontario region was reorganized in January 2003 into 14 supposedly equal territories, in a subsequent further reorganization of the territories, mine was the only territory reduced in size.
5. I was subjected to inappropriate personal attacks in meetings with the Respondent's management.
6. In 2002, I applied for the position of Regional Vice-President, Ontario Region, a position for which I was more than suitably qualified given my demonstrated sales leadership. However, I was not even considered for the position, which remained unfilled until June 2003.
7. I felt that my work environment had become so poisoned and my career prospects so limited that I had to resign from the respondent.
[7] On September 27, 2005, after reviewing the Report and the submissions filed in response to it, the Commission decided to dismiss the complaint for three reasons:
1. a pay equity issue was resolved by the Respondent;
2. based on the Investigator's finding, it did not appear the Applicant was discriminated against due to sex; and
3. further inquiry into the complaint was not warranted.
STANDARD OF REVIEW
[8] The jurisprudence has clearly established that matters of procedural fairness are reviewed as questions of law and accordingly the standard of correctness is applied. However, underlying findings of fact are reviewed on a palpable and overriding error standard (see McConnel v. Canada (Canadian Human Rights Commission), [2005] F.C.J. No. 1906, 2005 FCA 389 at para 7).
[9] As to the standard of review of a decision of the Commission on receipt of an investigator's report, Justice McKeown stated in Rabah v. Canada (Attorney General), [2001] F.C.J. No. 1689, 2001 FCT 1234 at paragraph 9:
The standard of review of a decision of the Commission on receipt of an investigation report is a highly deferential one. The Commission does not have an adjudicative function, but is an administrative and screening body, whose role it is to decide if an inquiry is warranted through assessing the sufficiency of the evidence before it.
[citations removed]
ISSUES
[10] The Applicant raises three issues:
1. Was there a breach of procedural fairness in the failure to conduct the investigation in a thorough and neutral manner?
2. The Commission erred in law by failing to correctly apply s. 11 of the Canadian Human Rights Act, R.S.C. 1985, C. H-6, c. H-6 (the "Act") and the Equal Wages Guidelines, 1986, SOR/86-1082.
3. Did the Commission err by failing to consider, interpret and correctly apply s. 14.1 of the Act?
ANALYSIS
[11] There are two fundamental concepts that are crucial in this case. The first is that when the Commission adopts the recommendations of an investigator with little or no reasons, then the report is considered the reasons. It then follows that if the report is flawed, the Commission's decision is also flawed. (Sketchley v. Canada (Attorney General) [2005] F.C.J. No. 2056 at para 37-38; Kollar v. Canadian Imperial Bank of Commerce, 2002 FCT 848 at para 38).
[12] The second is that the Commission's role pursuant to sections 44(2) and 44(3) of the Act is seen as purely administrative and discretionary, even though strict procedural requirements are included to ensure fairness and impartiality (see Brochu v. Bank of Montreal, [1999] F.C.J. No. 1700)
1. Was there a breach of procedural fairness in the failure to conduct the investigation in a thorough and neutral manner?
[13] The Applicant put forth five reasons for a breach of procedural fairness:
1. The Investigator unreasonably omitted from the Investigator's Report and/or failed to investigate crucial evidence;
2. The Investigator failed to provide the Applicant with necessary particulars;
3. Improper Reliance on the Mercer Report;
4. The Investigator failed to interview critical witnesses; and
5. Other.
[14] I will summarize the Applicant's position for each issue.
1. The Investigator unreasonably omitted from the Investigator's Report and/or failed to investigate crucial evidence
[15] The Applicant claims the Investigator accepted many of EDC's assertions without investigating them. Furthermore, the Investigator did not expressly identify the evidence he relied upon to decide that the Applicant and Mr. Little are not fair comparators for pay equity reasons. He did not consider whether the reasons for differences in compensation constituted reasonable factors per the Guidelines and whether they were applied consistently and equitably.
[16] The Investigator failed to address the discrepancies in EDC's evidence regarding the reasons for the ratings the Applicant received in 2001 and 2002.
[17] The Investigator failed to address the Applicant's assertion that the comment in the 2001 appraisal of "...sometimes her messages are seen as too assertive and leads to conflicts" was relating to her raising pay equity concerns.
2. The Investigator failed to provide the Applicant with necessary particulars
[18] The Investigator failed to provide full particulars of the February 1999 incident involving Debbie Rocha. The Investigation Report states the Applicant did not recall a December 1999 incident where she reprimanded Ms. Rocha regarding leave attendance issues. The reason she did not remember the incident was because the Investigator did not identify when the event occurred. Upon being informed of the date of the incident, she responded to it in her submissions to the Commission. The Applicant submits that an email she provided which summarizes the result of conversations on this topic does not mention the Applicant hitting a keyboard or throwing paper. This documentation was not presented to the Commission.
[19] The Applicant requested particulars, i.e. dates, of alleged incidents that she was asked about during the February 2005 interview. She was told the Investigator was too busy to provide the information but she could respond to the Investigation Report. She was not informed at that time that she would be limited to 10 pages.
[20] The Investigation Report references the Applicant's inability to recollect certain incidents. This is a highly prejudicial comment given that accurate and full particulars were never provided.
3. Improper Reliance on the Mercer Report
[21] This report was not commissioned until 1.5 years after the Applicant first raised concerns of pay equity and after the Applicant has resigned from EDC. The Investigator relied exclusively on the Mercer Report and the Respondent's evidence rather than investigating whether differences in targets were based on factors other than gender and whether the factors were applied in a consistent and equitable manner.
[22] The Mercer Report did not perform any analysis on gender variation in the assignment of BDM point targets and how that affects compensation. The Investigator failed to do an independent analysis of this issue.
4. The Investigator failed to interview critical witnesses
[23] In a memo to the Applicant, Mr. Christie had stated the Applicant had voiced concerns that she was going to be fired to Hal Miller. The Applicant informed the Investigator that Mr. Miller had confirmed to her that instead Mr. Christie had questioned Mr. Miller to which Mr. Miller responded that the Applicant had not said anything to him. Hal Miller was thus a crucial witness as his evidence would directly contradict Mr. Christie's assertion that the Applicant had voiced concerns to Mr. Miller.
[24] Tim Laronde was a crucial witness as his evidence would demonstrate EDC did not have a system of remuneration that compensated employees based on length of service. He could have confirmed that he and the Applicant had the same salary, were the same age and had the amount of work experience. Yet, he was hired at a higher salary than the Applicant.
5. Other
[25] The Respondent's counsel was present for the interviews by the Investigator. The Applicant and/or her counsel were not afforded the same opportunity.
[26] A proper starting point for the analysis of these issues is the Federal Court of Appeal's decision is Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, where Justice Nadon stated there are two requirements for the duty of procedural fairness: neutrality and thoroughness. His description of the content of the duty of fairness for a decision of the Commission to dismiss a complaint at paragraphs 56 and 57, as stated below, and was adopted in Sketchley, supra by the Federal Court of Appeal:
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
[27] I do not find there was a breach of procedural fairness. Applying the factors set out in Sketchley, supra, I fail to see any of the alleged omissions were of such a fundamental nature that their omission was not cured by drawing the Commission's attention to them. This was done in this case through the Applicant's reply of July 7, 2005.
[28] Finally, the Applicant relies on Laroche v. Royal Canadian Mounted Police Commissioner, (1981), 39 N.R. 407 as support for the position there was a breach of procedural fairness because EDC employees were interviewed with only EDC's counsel being present. This case is not on point. Laroche, supra is the judicial review of a decision of the Commission to discharge an RCMP officer. There is no discussion in that case of interviewing witnesses and whether counsel should be present.
[29] It is not unreasonable for an employer to only allow its employees to be interviewed if counsel is present. There is no indication or allegation that counsel interfered with the investigation. Furthermore, there is no indication that the Applicant or her counsel requested to be present during the investigation.
[30] Given these facts, I find there was no breach of procedural fairness.
2. Did the Commission err in law by failing to correctly apply s. 11 of the Act and the Guidelines?
[31] Section 11 of the Act provides:
| (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.
(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.
[...]
|
(1) Constitue un acte discriminatoire le fait pour l'employeur d'instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes.
(2) Le critère permettant d'établir l'équivalence des fonctions exécutées par des salariés dans le même établissement est le dosage de qualifications, d'efforts et de responsabilités nécessaire pour leur exécution, compte tenu des conditions de travail.
[...]
|
| (4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference. |
4) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne en vertu du paragraphe 27(2).
|
[32] The Guidelines prescribe the reasonable factors to be considered for the criteria of equal work as set out in s. 11(2) of the Act. The factors may be used to justify paying male and female employees different wages.
[33] The Applicant made three arguments. First, the Investigator failed to identify which of the reasonable factors were relied upon by the Investigator to justify the differences in wages. Second, he failed to address whether the Respondent's system of remuneration applicable to BDM's provided that they receive periodic increases in wages based on their length of service with the employer. Instead, he simply relied upon statements by EDC that it was Little's greater work experience or years of service that justified his higher salary. Third, the Investigator allegedly failed to determine if the Applicant and Mr. Little performed equal work by applying the criteria of equal work found in s. 11(2).
[34] None of these allegations can be sustained. First, paragraph 26 of the Report refers to equal pay guidelines factors when it quotes, "[a] difference in wages between men and women performing work of equal value in an establishment may be justified by different performance ratings, seniority, red-circling, training and rehabilitation assignments, internal labour shortages and surpluses and regional wage rates." Second, the Applicant acknowledges at paras. 37-38 and 48-52 of her Memorandum of Fact and Law that the Investigator relied upon seniority, work experience and non-sales related responsibilities (e.g. administrative and management functions) as relevant factors. Third, the Report contains an explanation of the different responsibilities and skills required of Mr. Little. The Investigator did not fail to apply the criteria set out in s. 11(2) of the Act as paragraph 25 of the Report states:
The respondent contends that in addition to the above, Mr. Little was asked to provide more administrative and management assistance in 2001, including more of the mentoring function for the team.
3. Did the Commission err by failing to consider, interpret and correctly apply s. 14.1 of the Act?
[35] Section 14.1 of the provides:
It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
[36] In Chopra v. Canada (Department of National Health & Welfare), [2001] C.H.R.D. No. 20 at paragraph 292, the Canada Human Rights Tribunal quite correctly found that a s. 14.1 complaint makes an act of retaliation an independent discriminatory practice.
[37] The Applicant made the following allegations in her complaint regarding reprisals.
5. Not only did my compensation package, relative to other BDMs, become worse rather than improve after I raised the pay equity alarm, management also took a number of reprisal actions against me from January, 2002 to May, 2003. These reprisals included a lower performance appraisal than I deserved in 2001 and a much lower performance appraisal than I deserved in 2002. Both of these appraisals were based on pretextual factors or misinformation as set out in detail below. In 2002 I applied for the position of Regional Vice-President, Ontario Region, a position for which I was more than suitably qualified given my demonstrated sales leadership. I was not even considered for the position, which remained unfilled until June 2003. I was also subjected to inappropriate personal attacks in meetings with EDC management, including criticism for retaining a lawyer and unfounded allegations that my coworkers were complaining about me. Even while senior management was punishing me for raising pay equity concerns, I continued my superior sales performance, and EDC continued to rely on me to motivate and lead the sales efforts of others.
[38] The investigator did not treat these allegations lightly, quite the contrary, he split the reprisal allegations into five separate items and devoted a total of 11 pages (paragraphs 27 to 83 of the Report) to these allegations.
[39] The five allegations as set out in the Report are:
Allegation 2: After complaining about pay equity concerns, my compensation package, relative to others became worse.
Allegation 3: I was subject to reprisals, including lower performance appraisals than I deserved in 2001 and 2002.
Allegation 4: Although the Ontario region was reorganized in January 2003 into 14 supposedly equal territories, in a subsequent further reorganization of the territories, mine was the only territory reduced in size.
Allegation 5: I was subjected to inappropriate personal attacks in meetings with the respondent's management.
Allegation 6: In 2002, I applied for a position of Regional Vice-President, Ontario Region, a position for which I was more than suitably qualified given my demonstrated sales leadership. However I was not even considered for the position, which remained unfilled until June 2003.
[40] There are three areas in which the investigation into a possible s. 14.1 violation is deficient.
Deficiency No. 1
[41] The report on allegations 3, 4 and 5 is exhaustive and well-reasoned. However, the conclusion drawn from the discussion of these allegations show a certain disconnect. In his analysis section the Investigator states:
88. The evidence does not support that the complainant's performance appraisals in 2001 and 2002 were adversely affected by her sex.
89. The evidence does not support that the reorganization of the complainant's territory in April 2003 was related to the ground of sex.
90. The complainant's allegations of inappropriate personal attacks do not constitute harassment, and there is no link to the ground of sex.
[42] Given that all the analysis is in terms of sex rather than reprisals, this gives rise to the question of whether the Investigator addressed his mind to the issue of reprisal in connection with these allegations at all.
Deficiency No. 2
[43] As to the key allegation, a declining compensation package following the making of the pay equity complaint, the Investigator stated at paragraph 28 of the Report:
The complainant states that in 2002, her targets had increased by 48% over her 2001 target. She further states that she earned an incentive of 22% of base salary, when she met her grossly elevated target, although in 2001 she had an incentive payment of 27% of base salary. The complainant asserts that her 2002 incentive payment was $3516.00 less than her 2001 incentive pay, and her base salary remained unchanged from 2000, even though she had much higher targets in 2002.
(A.R. Vol 1 page 17)
[44] His investigation and documentary evidence led him to conclude that this allegation was without foundation. As he stated in paragraph 29 of the Report:
The Respondent provided the complainant's employment compensation summary. A review of the documentary evidence shows that the complainant received a bonus payout of $15,706.00 in the 2001 calendar year. It also shows that the complainant's bonus payout in the 2002 calendar year was $18,869.00. In 2001, the complainant signed 32 new customers, and in 2002 she signed 40 new customers. In both years she met the sales targets set out for her.
(A.R. Vol 1 page 17)
[45] He also stated in paragraph 32 of the Report that "[m]oreover, the documentary evidence indicates that the complainant's bonus payouts increased to 30% in 2002 from the 25% she received in 2001" (A.R. Vol 2 page 565).
[46] The Applicant, upon receiving the Report, took issue with this finding and made the following representations in her comments on the Report:
The complainant and the Respondent agree that her base salary was $73,750, that her bonus was 25% in 2001 and 30% in 2002 and that she made her sales targets in those years. The report accepts as evidence that her 2001 bonus payout was $15,706 or 21% of her salary and that it was $18,869 or 26% of her salary in 2002. It appears that no accounting was sought by or provided to the investigator as to why the complainant was receiving less than what was promised when the respondent agrees she made target in each of those years. Without this information, this data should not be accepted to refute the statements made by the complainant in point #28.
(A. R. Vol 2 p 378 para 29)
(emphasis added)
[47] There is no reply or rebuttal from the investigator regarding these points. Nor is there any record why the Commission, which had the Applicant's commentary before it when it rendered its final decision, failed to pay any heed to them.
[48] In summary, there is a clear error here. The Investigator suggested that she should have received a 25% and 30% incentive in 2001 and 2002 respectively, yet by his own admission, she received only 21% and 26%. When the Applicant quite understandably doubted these figures and asked for an accounting, her request was ignored.
Deficiency No. 3
[49] The Report further states in paragraph 33:
The complainant contends that in May 2003, she received confirmation that her base salary would not be adjusted. By contrast, she states, her male colleagues who met their incentive targets in 2002, all received increases in their base salary. She notes that she was once again given aggressive targets, but would have had to meet those targets from a smaller territory than the one she had in 2002.
[50] However, this allegation while reported is not addressed. Instead, the report goes into a discussion of a rearrangement of sales territories.
[51] The Applicant, in her commentary on the draft Report, noted this omission. She stated:
The complainant asserts that all her male colleagues who met their incentive targets in 2002 received base salary increases and she did not. The report is silent on whether the respondent provided any evidence to the contrary. Furthermore the report omits the complainant's statements made to the investigator that adjustments in base salary were critical under the compensation framework to avoid having the situation that she describes in point 28, namely of delivering more business and being paid less for doing it.
(A. R. Vol 2 p 379 para 33)
(emphasis added)
[52] Again there is no response from either the Investigator or the Commission and it is not clear whether the allegations of the Applicant are considered to have been rebutted by the Report or are considered to be without merit.
[53] In my view, the soundness of the Investigator's findings are severely compromised by the above mentioned three deficiencies. All these deficiencies were drawn to the Commission's attention by the reply of the Applicant. They are of sufficient gravity that, at the very least, an explanation from the Commission is required as to why they were disregarded. Without such explanation, even under the deferential standard of Rabah, supra, the decision cannot be sustained.
[54] For all these reasons, I find that the conclusions of the underlying Report, as adopted by the Commission, in so far as they relate to the allegations of reprisals do not meet the palpable and overriding error standard.
[55] Accordingly, the decision of the Commission, in so far as they relate to the allegations of reprisals, is set aside and sent back for reconsideration subsequent to an investigation by a different investigator. That investigator shall only focus on the allegations of reprisal made by the Applicant.
ORDER
THIS COURT ORDERS that this application for judicial review be allowed. The decision of the Commission as it relates to the issue of reprisals is set aside. The matter is to be sent back for an investigation by a different investigator solely on the issue of the allegations of reprisal.
"Konrad W. von Finckenstein"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1922-05
STYLE OF CAUSE: LAURA GAINER
Applicant Applicants
-and-
EXPORT DEVELOPMENT CANADA
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 13, 2006
AND ORDER: von Finckenstein, J.
APPEARANCES: Laura Gainer
Barbara McIsaac
SOLICITORS OF RECORD: Laura Gainer
(self-represented litigant)
McCarthy Tétrault
Barristers and Solicitors
Ottawa, Ontario