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Date: 20050318
Docket: T-1776-03
Citation: 2005 FC 391
Ottawa, Ontario, March 18, 2005
Present: Madam Justice Danièle Tremblay-Lamer
BETWEEN:
DIANE POTVIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Commissioner for Federal Judicial Affairs, David Gourdeau (the Commissioner), who dismissed a complaint by the applicant against Messrs. Guenette and Montpetit, respectively the Registrar of the Tax Court of Canada and the Director General, Corporate Services. In that decision, the Commissioner found that there had been no breach of the Prevention and Resolution of Harassment in the Workplace Policy (the Policy) of the Tax Court of Canada.
FACTS AND COMMISSIONER'S DECISION
[2] The applicant has been Director of Strategic Planning and Communications at the Tax Court of Canada since 1997 (an AS-08 position). In November 1998, she joined the Management Orientation Program (MOP) to enable her to become an EX-01.
[3] Toward the end of December 1999, Mr. Montpetit's position was reclassified from EX-01 to EX-02. The applicant argues that Mr. Montpetit's job description now included some duties assigned to her position and that Mr. Montpetit, for reclassification purposes, was taking over some performance initiatives established by the applicant between 1997 and 1999.
[4] She says that in June 2000 she discovered certain anomalies surrounding the reclassification of Mr. Montpetit's position. As a result of this discovery, she filed a complaint on July 7, 2000.
[5] On October 11, 2000, Mr. Guenette gave Mr. Carroccetto, an authorized classification consultant for the Tax Court of Canada since 1990, a document written by the applicant alleging overlap between her duties and Mr. Montpetit's, for his opinion on the matter.
[6] On October 18, 2000, in a memo to Mr. Guenette, Mr. Carroccetto found no such overlap.
[7] On August 21, 2002, the applicant filed with the Commissioner, under the Policy, a complaint of harassment and abuse of authority against Mr. Guenette and Mr. Montpetit.
[8] Carole Piette (the investigator) was instructed by the Commissioner to investigate Ms. Potvin's complaints against Messrs. Guenette and Montpetit.
[9] The Policy provides that complaints based on actions or omissions occurring more than a year previously will be investigated only in exceptional circumstances. Since some of the applicant's allegations of harassment and abuse of authority occurred more than a year previously, the investigator began by affording the parties the opportunity to make representations on the admissibility of these allegations.
[10] On December 20, 2002, the investigator decided that the applicant had not shown any exceptional circumstances. She therefore limited her investigation to the allegations between August 21, 2001, and August 21, 2002. However, she would consider the facts before that date as evidence in support of the allegations that were accepted.
[11] On January 14, 2003, the applicant wrote to the Commissioner to inform him of her dissatisfaction with the investigator's decision not to investigate the events occurring more than a year previously.
[12] On January 22, 2003, the Commissioner replied to the applicant, informing her that he could not intervene in the investigation process at that stage.
[13] On February 18, 2003, the investigator sent the applicant the respondents' replies to her allegations and their written statements and the relevant documents they had provided to her. On March 25, 2003, she invited the applicant to present her observations to her. The applicant gave the investigator 84 pages. The applicant also requested a copy of Mr. Carroccetto's memo in response to her complaint of July 7, 2000, which was mentioned in one of the respondents' replies. She managed to obtain a copy of the document through an access to information request after the Commissioner's decision had been made.
[14] On April 10, 2003, the investigator finished writing her preliminary investigation report. On May 23, 2003, the applicant provided her comments on this report to Mr. Nadeau, Senior Counsel with the Federal Centre for Workplace Conflict Management. On July 4, 2003, Mr. Nadeau submitted the final investigation report to the applicant for her comments, which she as well as the respondents provided.
[15] On July 23, 2003, Mr. Nadeau gave the Deputy Commissioner for Federal Judicial Affairs the final report and the comments of the parties.
[16] On August 28, 2003, the Commissioner informed the parties of his decision. He agreed with the investigator's decision on the admissibility of the allegations and the findings of the final report. According to the Commissioner, the respondents had acted within the boundaries of their management rights and the decisions taken all had an operational justification.
[17] The applicant contends that the Commissioner breached his duty to act fairly by not disclosing Mr. Carroccetto's memo and that his decision not to deal with the out-of-time allegations is patently unreasonable.
ANALYSIS
1. Procedural fairness
(a) Is there an obligation to provide the consultant's memo during the investigation process?
[18] It is trite law that the content of the duty of procedural fairness depends on the circumstances of the case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Several factors are relevant: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself: Baker, supra.
[19] There is no doubt that a decision on an allegation of harassment or abuse of authority may have significant consequences for everyone involved, and this raises the level of procedural fairness required.
[20] Moreover, the procedure established by the Policy reflects the potential gravity of a harassment allegation. The Policy contains a broad definition of harassment;[1] it explains that any allegation of harassment must be examined seriously and describes the responsibilities incumbent upon all parties assigned to process the complaint[2] and the potential consequences of a finding of harassment. Note, in particular, the following passage in paragraph 4.1(h):
Harassment in any form is serious misconduct. Those individuals who fail to conduct themselves as set out in this policy, may be subject to disciplinary action, up to and including termination of their employment.[Underlined in the original.]
[21] On a formal complaint (as in this case), the Policy describes in detail the applicable steps and rules for filing a complaint, review of the complaint by the director general, the appointment of an investigator, the investigation process itself and the decision by the Commissioner. The Policy establishes the time frames for each of the steps and allows the parties to react as the investigation unfolds. Thus, the provisions of the Policy raise a legitimate expectation that the established procedure will be followed.
[22] The Policy protects and facilitates the parties' input into the decision-making process. Section 9.5.4 provides:
During the investigation of a complaint, the investigator will proceed to:
• inform all parties involved of their rights and responsibilities;
• interview all parties concerned and witnesses;
• collect evidence;
• prepare a "protected" preliminary report and send it to the respondent and the complainant. Once received, each party will have ten days to provide their comments on the report to the investigator;
• issue a "protected" final report to both parties, the DG, CS and the Registrar;
• return all information and evidence to the Human Resources Services Division.
All those individuals involved in the investigation will be reminded that all matters relating to the complaint should be treated as confidential and should not be discussed with others outside the process.
Interviewees will be told that any information they provide concerning other individuals may be released to those individuals, in accordance with the provisions of the ATIP legislation specifying individuals' rights to access personal information about themselves.
. . .
[23] I am of the opinion that the Policy codifies the extent of the requirements of procedural fairness in the circumstances.
[24] In this case, the evidence shows that each of these steps was followed. However, the applicant contends that she should have received a copy of the consultant's memo during the investigation process. Under the Policy, the applicant is entitled to information about the complaint, but that does not necessarily mean that all of the evidence gathered by the investigator must be disclosed to her.
[25] I think the description of the procedural protections provided in a human rights investigation closely resembles the process at issue here and, accordingly, that the findings of Décary J.A. in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), at paragraph 43, are fully applicable:
With respect to procedural fairness, the Commission did precisely what the jurisprudence of this Court, as recently as in Slattery v. Canadian Human Rights Commission (1996), 205 N.R. 383 (F.C.A.), has told it to do. The Commission gave Bell a copy of the Draft Investigation Report, of the Investigation Report and of the Revised Investigation Report. It gave Bell the full opportunity to respond to each of these reports and Bell seized the opportunity every time. Following the receipt of the submissions by the parties on the Investigation Report, the Commission circulated each party's submissions to the other parties. Following the release of the Revised Investigation Report, all parties were provided with an opportunity to comment on the submissions of the other parties to the Revised Report. The Revised Report examined each and every argument that had been raised by Bell in its written comments. The Commission considered the Revised Report, Bell's submissions on it and further submissions by Bell before finally reaching its decision. What more could it have done?
[26] In the case at bar, the applicant was informed of "the substance"[3] of the memo's conclusion that there was no overlap between the applicant's duties and Mr. Montpetit's; she was given every possible opportunity to reply to that, and she took those opportunities.
[27] The applicant submits that Mr. Carroccetto's allegation that she was emotional and irrational should have been disclosed to her since the consultant's opinion was prejudicial to her. I do not agree; it is irrelevant to the assessment of the applicant's harassment complaint.
[28] In the present case, the investigator carefully considered each of the applicant's allegations of harassment and abuse of authority, and relied on evidence that did not come from the consultant's memo in rejecting those allegations. She was scrupulous in assessing the evidence on the record for each of the allegations.
[29] By way of example, I have reproduced allegations 1 and 2 against Mr. Guenette, which illustrate the methodology used by the investigator for each of the allegations:
[TRANSLATION]
ALLEGATION 1:
Allegations of abuse of authority and intimidation against the respondent for deliberately delaying my performance evaluation for 2001 (evaluation following the filing of my document of July 7, 2000) due April 31 of each year.
. . .
The evidence shows that the complainant herself submitted her evaluation one month after the date on which her evaluation was due, April 31, 2001. I note that the respondent was frequently absent from the office from July to September 2001. I also note that the complainant was actually absent for a substantial stretch of time. Moreover, I note that another employee had her evaluation on September 21, 2001. It should also be noted that the complainant was given a superior rating for her performance that year. . . .
In my opinion, the delay in the submission of the complainant's performance evaluation is explained by repeated absences on both sides.
A punctual performance evaluation would have been greatly desirable. In practice, owing to scheduling conflicts, the evaluation was delayed until six months after the end of the evaluation period.
On the balance of probabilities, I find no abuse of authority.
. . .
ALLEGATION 2:
Allegations of abuse of authority, blackmail against the respondent in the context of her role as champion of modern comptrollership.
. . .
Although the complainant, in November, was the champion of modern comptrollership, the evidence shows that modern comptrollership was always Mr. Montpetit's responsibility. It was a corporate function. Mr. Montpetit notes that in the summer of 2001, he approached the respondent Guenette to suggest to him that the complainant be offered an EX level term project in order to give her support in connection with the modern comptrollership initiative.
The complainant alleges that the respondent Guenette and Mr. Montpetit concocted this strategy in order to avoid following through on her request of October 9, 2001. However, the fact remains that the complainant never submitted a revised job description as requested in the letter of October 19, 2001. Moreover, with the proposal by Mr. Montpetit, which was accepted by the respondent, the complainant did receive an acting promotion to the EX level for a term. In fact, the complainant reached an agreement with the respondent in which she accepted the EX-01 position. I am of the opinion that there were operational grounds for the respondent's proposal and that it was a justified and appropriate exercise of management rights.
On the balance of probabilities, I find no abuse of authority.
[30] The same goes for the ten allegations against Mr. Guenette. Each finding is based on an analysis of the documentary evidence (other than the consultant's memo) and the assessment by the investigator of the relevant circumstances surrounding each of those allegations. At no time (whether expressly or by implication) did the investigator refer to the applicant's state of mind or to anything else of the sort. I note as well that the investigator's findings are not based on the applicant's credibility.
[31] The analysis of the allegations against Mr. Montpetit yields the same result.
[32] In short, a reading of the investigator's report shows that there is no connection between the investigator's assessment of the applicant's allegations and the conclusions concerning her emotional state. The reason for this is quite simple: the applicant's state of mind is not relevant to the issue of harassment, which issue is central to those allegations.[4] Consequently, in my opinion, the non-disclosure of the opinion of a consultant on the applicant's state of mind several years earlier did not prejudice her in any way and does not constitute a breach of procedural fairness.
(b) Is there a reasonable apprehension of bias?
[33] This second argument concerning procedural fairness raised by the applicant is likewise unfounded. A vague allegation of irregularities in the investigation process, an allegation that is not based on any example other than the non-disclosure of Mr. Carroccetto's memo, which I have already concluded was a decision that was fully consistent with the principle of procedural fairness, could not give rise to a reasonable apprehension of bias according to the meaning given to that expression by the case law.[5] On the contrary, all of the steps in the investigation process provided under the Policy were followed and the applicant's rights to participate in that process were likewise respected.
2. The one-year period for the investigation
[34] The Policy clearly limits the investigation of a harassment complaint to a one-year period, except in exceptional circumstances. The investigator found there were no such circumstances in this case, and the Commissioner supported her conclusion. However, as the memo shows, the investigator did examine some facts preceding the period that might have been relevant to the alleged incidents of harassment occurring within the one-year period.
[35] With the exception of the non-disclosure of the consultant's report, the applicant does not mention any specific factual detail or evidence that might disturb the investigator's decision to apply the general rule in relation to the one-year period. As the respondent notes, the non-disclosure of the memo does not, in itself, constitute exceptional circumstances. Accordingly, I am of the opinion that there is nothing to warrant the Court's intervention, whether the applicable standard of review of this discretionary decision is reasonableness or patent unreasonableness.
[36] For these reasons, this application for judicial review is dismissed with costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed with costs.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1776-03
STYLE OF CAUSE: DIANE POTVIN
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 28, 2005
REASONS FOR ORDER
AND ORDER: Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: March 18, 2005
APPEARANCES:
Annie Berthiaume for the applicant
Alexandre Kaufman for the respondent
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP
1900-66 Slater Street
Ottawa, Ontario
K1P 5H1 for the applicant
John H. Sims
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario for the respondent
[1] Section 6.1 defines harassment for the purposes of the Policy. I would mention, in particular, the statement that "By legal definition, abuse of authority is always considered a form of harassment."
[2] See, for example, sections 7.5 to 7.8 of the Policy.
[3] These are the words used in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, cited with approval in Slattery v. Canada (Canadian Human Rights Commission) (1996), 205 N.R. 383 (F.C.A.), [1996] F.C.J. No. 385 at paragraph 1 (C.A.) (QL).
[4] It is interesting to note that before this Court, the applicant did not challenge in any way Ms. Piette's substantive findings on this issue.
[5] See, for example, Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369.