Federal Court Decisions

 

 

 

Date:  20051012

 

Docket:  T-2336-03

 

Citation:  2005 FC 1383

 

Ottawa, Ontario, October 12, 2005

 

Present:  The Honourable Madam Justice Johanne Gauthier

 

 

BETWEEN:

 

                                                        MICHEL BEAUREGARD

 

                                                                                                                                            Applicant

                                                                           and

 

 

                                                                CANADA POST

                                                                             

                                                                                                                                        Respondent

 

 

                                            REASONS FOR ORDER AND ORDER

 

 

[1]               Mr. Beauregard is asking the Court to review the decision of the Canadian Human Rights Commission dismissing his complaint against Canada Post because, upon investigation, it found that it could not be established from the evidence that there was a connection between the incidents alleged as retaliation in the aforesaid complaint and the complaint that he filed with the Commission in October 1999.

 

[2]               In his memorandum and in his concise submissions at the hearing, the applicant, who represented himself, raised only one issue.  He argued that the Commission had breached its duty of procedural fairness by failing to meet with all the witnesses in the case.  He asked the Court to set aside the decision and order the Commission to complete its investigation.[1]

 

[3]               In this context, it is inappropriate to summarize here all the facts related in the complaint.

 

[4]               I will simply note that the applicant worked for Canada Post from December 1993 to December 1998.  In October 1999, he filed a complaint with the Commission alleging that he was discriminated against on the basis of a disability (reactive depression or adjustment disorder with anxiety and depressed mood) and that Canada Post refused to accommodate him and continue to employ him, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. 6 (the Act).  On January 28, 2004, the Canadian Human Rights Tribunal dismissed the complaint.[2]

 

[5]               As a result of an arbitration decision, he was reinstated on January 2, 2001, to a full-time position as a letter carrier at a different branch than the one where he had worked prior to 1999.  On March 28, 2001, he filed a second complaint, this time alleging that Canada Post had breached section 14.1 of the Act by retaliating against him for having filed his complaint of October 5, 1999 (the text of this provision is included as an annex to these reasons).

 

 

[6]               After a number of disciplinary measures were imposed, he was dismissed again on February 28, 2002.  On March 4, 2003, he filed an amended complaint to include various references to events that had occurred since March 28, 2001.

 

[7]               In a report dated May 22, 2003, after having met with the ten individuals identified by Mr. Beauregard in his amended complaint as the ones who had retaliated against him and a union representative from the Anjou postal station,[3] the Commission investigator recommended that the Commission dismiss the complaint pursuant to paragraph 44(3)(b) of the Act (the text of the provision is included herewith as an annex).

 

[8]               After summing up the evidence, the investigator stated the following:

[TRANSLATION]

111.              This complaint relates essentially to allegations of retaliation against the complainant at the time of the incidents mentioned herein.

 

112.              The ten individuals named in the complaint have been interviewed.  Eight of them did not know, at the time of the incidents of which they are accused, that the complainant had filed a discrimination complaint with the Commission in 1999.  Six of the individuals first heard of this from the investigator herself, or quite recently.

 

113.              Two individuals stated that they knew of the previous complaint at the time of the retaliatory incidents of which they are accused:  Ms. Douville, assigned to staff turnover, and Ms. Lachance, the complainant’s supervisor from April 2001 onward.  From the evidence obtained concerning the allegations regarding the two individuals, it cannot be concluded that they retaliated against the complainant because of his 1999 complaint.

 

114.              A union representative from the Anjou postal station stated that he had never heard anyone discuss the complaint filed by the complainant in 1999.

 

[9]               The report was given to Mr. Beauregard and to Canada Post.  On June 12, 2003, Canada Post submitted its initial comments.  In July 2003, Mr. Beauregard submitted his comments in minute detail (nine legal-sized pages), giving his response to each and every paragraph of the report and indicating which witnesses might support his viewpoint and contradict those offered by the individuals interviewed by the investigator.  He also clearly stated that the investigator had not interviewed his witnesses and that he was afraid the investigation had not been fair and equitable.

 

[10]           On September 8, 2003, Canada Post submitted additional comments, including a copy of an arbitration decision dated July 17, 2003, upholding the validity of Mr. Beauregard’s dismissal and rejecting a number of grievances based on the events described in his complaint, others having been withdrawn by the union.[4]

 

[11]           On November 6, the Commission handed down its decision dismissing the complaint, stating the following:

 

[TRANSLATION]

Before making their decision, the Commissioners examined the report that was released to you earlier, as well as any related comments sent subsequently.  After examining this information, the Commission has decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint, for the following reasons:

 

 It cannot be established from the evidence that there is a connection  between the incidents alleged as retaliation against the complainant in this complaint and the complaint that he filed with the Canadian Human Rights Commission in October 1999.

 

 

ANALYSIS

 

[12]           There is no point in conducting a pragmatic, functional analysis in order to determine the applicable standard of review, as the issue raised is one of procedural fairness.  If a breach occurred, the Court must intervene (Canada (A.G.) v. Fetherston, [2005] F.C.J. No. 544 (QL), at paragraph 16).

 

[13]           It is important to remember that the substance of the duty of fairness is flexible and variable and depends, inter alia, on a given set of circumstances in the case.  The Supreme Court of Canada laid out criteria to guide the courts in this matter in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

 

[14]           In Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574 (affirmed on appeal in [1996] F.C.J. No. 385 (F.C.A.)(QL)), the Court had to examine the substance of that duty in the context of a decision by the Commission to dismiss a complaint after investigation, specifically with reference to the thoroughness of the investigation.

 

[15]           In paragraphs 56 and 57, Nadon J., as he then was, noted the following:

56      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.

57       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.

 

 

[16]           These principles have since been applied by this Court and were upheld quite recently by the Federal Court of Appeal in Tahmourpour v. Canada (Solicitor General), [2005] F.C.J. No. 543 (F.C.A.)(QL).[5]

 

[17]           However, as the Federal Court of Appeal reminds us in paragraphs 34 and 40 of Tahmourpour, supra, the Court must recognize that the Commission is master of its own process and must be afforded considerable latitude in the way that it conducts its investigations. An investigation into a human rights complaint cannot be held to a standard of perfection; the Commission is not required to “leave no stone unturned”. Its resources are limited, and its caseload is heavy. It must therefore balance the interests of complainants who seek the fullest possible investigation against the demands of administrative efficacy.

 

[18]           In Tahmourpour, the Federal Court of Appeal had to rule on a case that it considered special because it came under the exception:  obviously crucial evidence that had clearly been submitted to the investigator should have been investigated more thoroughly.  This objective evidence (statistics) related to a key element of the complaint and was decisive in establishing whether or not the allegation of discrimination against Mr. Tahmourpour related to systemic discrimination on the basis of race (visible minority).

 

[19]           When applying previously developed principles to a given situation, the Court must bear in mind that it is the Commission that decides whether to dismiss a complaint.  It is not obliged to follow the recommendations of its investigator.  The Act simply gives it the power to delegate the investigation to an investigator; ultimately, it is the Commission’s duty to ensure that it has an adequate and fair basis on which to evaluate whether the circumstances warrant the appointment of a tribunal.  While the investigation is a crucial stage in this context, it is not the only stage where the Commission has an opportunity to gather information that, together with the investigation report, will form the basis of its assessment.

 

[20]           In the instant case, Mr. Beauregard did not file evidence to clearly indicate that he had advised the investigator that he had provided the names of the 20-odd individuals[6] to whom he referred in his comments to the investigator or that he had advised her that those individuals had information directly related to the events recounted in his complaint.  We must remember that the investigator’s job is not to gather other people’s opinions on the issue but simply to gather evidence on the relevant facts related in the complaint.

 

[21]           The Court must be circumspect in its analysis of what constitutes obviously crucial evidence in terms of the investigation.  It cannot simply substitute its own or the applicant’s opinion in order to determine whether certain evidence is crucial.  The obviously crucial test implies that it should have been obvious to any reasonable or logical person that the evidence was crucial, given the relevant allegations in the complaint.

 

[22]           In order to answer that question, the Court must also place itself at the time of the investigation and consider the information provided by the complainant to the investigator.  To do otherwise would mean that, after reviewing each investigation report, a complainant could add new witnesses or evidence, and the investigation would never end.[7]

 

[23]           In the circumstances of the present case and in light of the allegations in the complaint and the evidence in the application record, the Court is not satisfied that the investigator failed to examine evidence that was obviously crucial, given the information at her disposal.

 

 

[24]           Of course, the analysis does not end here, since, as the Court has indicated, the investigation is not the only step in the process.

 

[25]           Since it is obvious that Mr. Beauregard has clearly pointed out the investigation’s deficiencies in his comments, the Court must consider whether the Commission was in breach of its duty of fairness when it made its decision without asking that the investigation be reopened.  In other words, given all the information placed before the Commission, including Mr. Beauregard’s comments, did the Commission have a fair and equitable basis for its assessment?

 

[26]           In this case, the Commission had to assess not only whether each and every individual to whom Mr. Beauregard referred in his complaint had been informed of the existence of the 1999 complaint by Mr. Beauregard, as he stated in his comments, but also whether there was sufficient evidence to establish a nexus between the acts alleged in the complaint, including between the dismissal and the filing of the 1999 complaint.

 

[27]           This is made abundantly clear in the investigation report itself since, in the case of those individuals who explicitly confirmed that Mr. Beauregard, not their employer, had informed them of the 1999 complaint,[8] the investigator found that there was insufficient evidence to establish a nexus in terms of retaliation.

 

[28]           If I may explain, let us take the example of Dr. Giasson, a doctor to whom Mr. Beauregard was referred by the Canada Post doctor for a medical examination.  The simple fact that Mr. Beauregard informed Dr. Giasson of his 1999 complaint during the examination, a fact that the latter appears to have forgotten in the meantime, does not in itself establish that, when Dr. Giasson asked Mr. Beauregard to remove his clothing for the examination, he did so to humiliate him and in retaliation for having filed his 1999 complaint.

 

[29]           The grievance adjudicator did, in fact, examine this situation, which Mr. Beauregard claimed was abusive and arbitrary, and dismissed the grievance.[9]  In respect of this incident and others reported in the complaint, it should be noted that, in the investigation before the adjudicator, a number of witnesses to whom Mr. Beauregard referred in his additional comments, including, for example, Mr. Durand, Mr. Brunet and Mr. Vincelette, were introduced by the union in support of Mr. Beauregard’s position.  The adjudicator also heard a number of the individuals who, according to the complaint, had harassed the applicant, including Mr. Laporte and Dr. Giasson.  He even heard Mr. Touchie, the client accused by Mr. Beauregard of trying to intimidate him (see paragraph 16 of the complaint).[10]  While the Commission is obviously not bound by the adjudicator’s decision, it may certainly take the decision into consideration.

 

[30]           In his comments, Mr. Beauregard went considerably beyond simply drawing the Commission’s attention to omissions in the investigation.  He also described in detail information that the witnesses to whom he referred could provide.

 

[31]           Given the content of the comments submitted by Mr. Beauregard to the Commission, and that of the adjudicator’s decision filed by the employer, which also helped to ensure that the decision-maker had access to the evidence necessary in order to assess the complaint, I am satisfied in this case that no obviously crucial evidence was missing from that which was before the Commission when it made its decision.  I find that the Commission did not breach its duty of fairness.

 

[32]           Although Mr. Beauregard did not raise, either in his memorandum or at the hearing, an issue that he included in his notice of application, to wit, that the Commission gave disproportionate weight to the employer’s evidence, the Court considered the issue.

 

[33]           The Commission’s conclusion was examined against the reasonableness simpliciter standard.  On this point, as was noted by the Federal Court of Appeal in Gee v. Canada (Minister of National Revenue) (2002) 284 N.R. 321, 2002 FCA 4 and, more recently, in Gardner v. Canada (A.G.), [2005] F.C.J. No. 1442 (QL), the Court must consider the investigation report in its entirety, as well as any submissions before the Commission, in order to assess whether it had reasonable grounds to conclude that there was insufficient evidence to establish a nexus between the intrigues alleged and the filing of the 1999 complaint.

 

[34]           I am satisfied upon a reasonably thorough examination of the case that, even considering all the evidence led by Mr. Beauregard, the decision of the Commission is reasonable.

 

[35]           The application for review is therefore dismissed with costs.

 

[36]           On this matter, the Court had asked the parties to submit draft bills of costs so that it could exercise its discretion by considering the factors set out in section 400 of the Federal Courts Rules.  Although the respondent is asking for costs of $2,536.50, including disbursements, after considering all the circumstances of the case, the Court sets the costs at $650 overall (including disbursements).

 

ORDER

 

THE COURT ORDERS that:

 

1.                  The application for judicial review is dismissed.

2.                  The respondent is entitled to costs set at a total amount of $650.

 

       “Johanne Gauthier” 

               Judge

Certified true translation

Michael Palles

 

ANNEX

Canadian Human Rights Act, R.S. 1985, c. H-6: 14.1 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. 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).

Loi Canadienne sur les droits de la personne, L.R.C. 1985, ch.-6 : 14.1 Constitue un acte discriminatoire le fait, pour la personne visée par une plainte déposée au titre de la partie III, ou pour celle qui agit en son nom, d'exercer ou de menacer d'exercer des représailles contre le plaignant ou la victime présumée. 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).

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-2336-03

 

STYLE OF CAUSE:

MICHEL BEAUREGARD

 

-and-

 

CANADA POST

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      June 14, 2005

 

REASONS FOR ORDER:               THE HONOURABLE MADAME JUSTICE GAUTHIER

 

DATED:                                             October 12, 2005

 

 

APPEARANCES:

 

Michel Beauregard                                           FOR THE APPLICANT(S)

6080 Goncourt Street

Anjou, Quebec  H1K 3X4

 

Richard Pageau                                                FOR THE RESPONDENT(S)

 

 

 

SOLICITORS OF RECORD:

 

None                                                                FOR THE APPLICANT(S)

 

 

Canada Post                                                     FOR THE RESPONDENT(S)

Legal Affairs

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