Date: 19980917
Docket: T-57-95
BETWEEN:
GILLES CHARLEBOIS
Applicant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
and
OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION
Respondents
REASONS FOR ORDER
CAMPBELL J.
[1] Mr. Charlebois has complained that his employer and his union have engaged in discriminatory practice against him based on his disability. The central judicial review issue respecting these complaints is whether they were properly investigated by the Canadian Human Rights Commission ("CHRC") under the Canadian Human Rights Act R.S.C. [1985] c.H-6.
[2] As is set out below, on an intricate factual background, the separate complaints are closely connected. Accordingly, although not formally joined, the separate judicial review applications respecting the CHRC"s investigation of the actions of the employer [T-57-95] and the union [T-2314-96] were heard together. Thus, this single set of reasons applies to both applications.
I. Factual Background and the Complaints
A. Factual background
[3] Mr. Charlebois started working for Ottawa-Carleton Regional Transit Commission ("OC Transpo") as a bus driver in July, 1980 and became a member of the Amalgamated Transit Union, Local 279 ("ATU") at that time. Throughout his employment with OC Transpo, Mr. Charlebois participated in a number of efforts to have the ATU replaced by another bargaining unit. During the time that Mr. Charlebois was represented by the ATU, he filed approximately 15 grievances against OC Transpo.
[4] Mr. Charlebois was first terminated by OC Transpo on December 12, 1990 for alleged "gross insubordination". He was represented by the ATU with respect to this dismissal and was reinstated and returned to work on or about January 28, 1991.
[5] Over the course of his employment, Mr. Charlebois experienced a number of health problems caused by stress related to both his professional and personal life. On February 7, 1991, he began a lengthy and certified medical leave. On May 31, 1991, Mr. Charlebois provided OC Transpo with a doctor"s certificate which authorized medical leave from February 7, 1991 to June 3, 1991 on the basis that he was suffering from major unipolar depression [Tab 6, Application Record, T-2314-96].
[6] On June 3, 1991, Mr. Charlebois returned to work and immediately took a one-week vacation which he had previously scheduled months before. On June 10, 1991, Mr. Charlebois returned to work and was summoned to a disciplinary meeting with management that same day. On June 12, 1991, Mr. Charlebois was terminated on the basis that he had failed to meet the conditions of his reinstatement and failed to maintain an adequate level of performance. His dismissal letter [Tab J, Supplementary Application Record, T-57-95] reads, in part, as follows:
This letter will confirm that on June 12, 1991 your employment with OC Transpo was terminated due to your failure to meet the conditions of your re-instatement and to maintain an adequate level of performance. Specific recent issues includes absenteeism, insubordination and unco-operative behaviour. These were culminating incidents in a history of poor performance.
[7] The ATU filed a grievance on behalf of Mr. Charlebois and represented him in relation to the June 12th dismissal; however, OC Transpo refused to reinstate Mr. Charlebois.
[8] On November 12 and November 13, 1991, Mr. Charlebois" grievances were placed before the general membership of the ATU for a vote, in accordance with the practice of the ATU that the membership must vote on whether to refer grievances to arbitration.
[9] Consistent with the ATU"s policy, the opinion of the ATU"s lawyer was solicited with respect to the likelihood of Mr. Charlebois" grievance being successful if it were to proceed to arbitration. The opinion of the ATU"s lawyer [Tab 7, Application Record, T-2314-96] reads, in part, as follows:
Therefore, assuming that the appropriate medical opinions can be obtained from the physicians to whom Mr. Charlebois has referred me, I would recommend that Mr. Charlebois' grievance proceed to arbitration. I would place Mr. Charlebois' chances of success in the 60 - 70% range, provided, once again, that the appropriate medical opinions can be obtained.
[10] At the ATU membership meeting this letter was read to the members present, Mr. Charlebois responded, other comments were voiced, and then the matter was taken to a vote. The membership voted against referring Mr. Charlebois" grievances to arbitration. Mr. Charlebois" complaint respecting this outcome is that he was subjected to verbal abuse during the meetings and the leadership tried to sway the members to vote against him.
[11] The negative membership vote instigated Mr. Charlebois to file three complaints: a complaint against the ATU with the Canada Labour Relations Board (the "CLRB") under s.37 of the Canada Labour Code with respect to the duty of fair representation; a complaint against OC Transpo with the CHRC; and a complaint against the ATU with the CHRC.
B. CLRB complaint
[12] With respect to the complaint filed with the CLRB, Mr. Charlebois alleged that the ATU"s handling of his grievances was arbitrary, discriminatory, in bad faith and violated the ATU"s duty of fair representation of its members.
[13] Following a three-day hearing, the CLRB rendered a decision on February 3, 1993 wherein it dismissed Mr. Charlebois" complaint [Tab 32, Application Record, T-2314-96]. In its decision, the CLRB found that there was no evidence that the decision not to refer Mr. Charlebois" grievances to arbitration was based on arbitrary, discriminatory or bad faith considerations. The CLRB also found no evidence that the ATU leadership displayed any bias against Mr. Charlebois at the November 12 and 13, 1991 general membership meetings, or that they encouraged the membership to vote against him. Subsequent appeals of the CLRB decision by Mr. Charlebois were all unsuccessful.
C. The CHRC complaints
[14] On November 28, 1991, Mr. Charlebois filed two complaints with the CHRC; one against the ATU and one against OC Transpo.
[15] Essentially, Mr. Charlebois argues that the investigations carried out with respect to both of these complaints were not thorough. With respect to his complaint against the ATU, Mr. Charlebois argues that the CHRC fettered its discretion by placing undue reliance on the decision of the CLRB instead of conducting an independent investigation.
1. OC Transpo complaint
[16] On January 2, 1992, Mr. Charlebois filed a Complaint Form [Tab 4, Supplementary Application Record, T-57-95] with the CHRC against OC-Transpo on the basis that OC Transpo had discriminated against him for the following reasons:
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The Ottawa-Carleton Regional Transit Commission (OC Transpo) has discriminated against me by refusing to continue to employ me because of my disability, contrary to section 7 of the Canadian Human Rights Act. |
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I started working with OC Transpo in July 1980 as a bus operator. I suffer from anxiety and situational stress. |
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On March 6, 1991, my doctor indicated that I was totally disabled to do any professional activities, and this until further notice. On May 31, 1991, my doctor indicated that I was ready to resume my professional duties on a half time basis, from June 3, 1991, to June 17, 1991, and that I would be able to resume fulltime duties thereafter. |
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On June 12, 1991, C. Walton, Head of Operating Personnel, advised me by letter that my employment was terminated due to my failure to meet the conditions of my re-instatement "and to maintain an adequate level of performance. Specific recent issues includes absenteeism, insubordination and unco-operative behaviour". |
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I believe that I have a good driving record and that OC Transpo is refusing to continue to employ me because of my disability and the amount of sick leave days I had to take because of it (463 days in eleven years of employment, 260 or so of them were taken in the last three years).
[17] During the subsequent investigation, a CHRC investigator sent a letter dated April 14, 1993 to the Human Resources Department of OC Transpo requesting the following information [Tab X, Supplementary Application Record, T-57-95]:
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1. In the letter of termination dated June 12, 1991, the reasons for termination are cited as Mr. Charlebois" failure to meet the conditions of his reinstatement and failure to maintain an adequate level of performance. |
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What were the conditions of his reinstatement and where are they specifically stated? How did he fail to meet these conditions? In what way did Mr. Charlebois fail to maintain an adequate level of performance? Does documentation exist to corroborate this? |
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2. Please provide a synopsis of Mr. Charlebois' discipline record and the results of any grievances that were filed. |
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3. Was Mr. Charlebois previously disciplined for absenteeism? With what result? Were doctor"s notes provided for absences which he claimed were due to situational stress and anxiety? Were these accepted by O-C Transpo? |
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4. Please provide a summary of Mr. Charlebois' attendance record. |
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5. Did Mr. Charlebois ever file a claim for W.C.B. or any other health benefit which would indicate that he was disabled? Did O-C Transpo dispute or contest any of these claims? |
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6. Did Mr. Charlebois ever fail to attend disciplinary or performance review meetings? How many times/dated? What reasons were given for failure to attend? Were these reasons acceptable to O-C Transpo? Was Mr. Charlebois told that his reasons were unacceptable? If so, how was he informed? |
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7. Are there any other cases within O-C Transpo of operators diagnosed with situational stress and/or anxiety? How have these operators been dealt with? |
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8. Does O-C Transpo have an E.A.P. program? Was Mr. Charlebois aware that this program existed? How was he made aware? |
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9. On May 31, 1991, Dr. A.J. Carre indicated that Mr. Charlebois could resume his duties on a half-time basis from June 3, 1991 until June 17, 1991 and on a full-time basis thereafter. |
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What specific incidents between May 31, 1991 and June 12, 1991 led to the letter of termination dated June 12, 1991? |
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10. O-C Transpo"s correspondence indicates that Mr. Charlebois was paid his sick leave benefits for the period December 22, 1990 through to January 28, 1991. |
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11. Please indicate the current status of Mr. Charlebois" grievance regarding his termination. |
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Once again, thank you very much for your cooperation in providing this information as it is crucial to a complete investigation of Mr. Charlebois" complaint.
[18] In a series of letters sent from OC Transpo to the CHRC [Exhibits Z, AA, BB & CC to the Supplementary Affidavit of Gilles Charlebois, Supplementary Application Record, T-57-95], OC Transpo took the position that it was not required to answer the questions asked until the hearings before the CLRB, and any subsequent appeals of its decision, were complete. But, the questions asked of OC Transpo in the April 14, 1993 letter were never answered even after the CHRC rendered a final decision.
[19] In the context of his complaint against OC Transpo, on October 26, 1993, Mr. Charlebois had a lengthy conversation with Ms. Séguin, an investigator from the CHRC. Ms. Séguin recorded what was discussed in this conversation in a memorandum dated the same day, which reads, in part, as follows [Exhibit KK to the Supplementary Affidavit of Gilles Charlebois, Supplementary Application Record, T-57-951]:
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I informed him that I was the newly assigned investigator and provided him with my telephone number. I told him that I received the file yesterday, had reviewed it and that I wanted to provide him with an update of the current situation. I informed him of the reasons why the respondent wants the Commission to discontinue the investigation of the complaint and hold it in abeyance (the objection to the disability which is not a disability per section 3 of the CHRA and the objection to pursue the investigation before the complainant"s Section 28 appeal to the Federal Court is heard). |
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The complainant spoke to me in French during the rest of the telephone conversation... |
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He asked me if, after reading the complaint, I could tell him if he [translation] "had a good case" and if he had [translation] "a good chance of winning". He asked me if he had [translation] "a good case", assuming that all the information in the complaint proved to be true and verifiable. I replied that I never gave my personal opinion and that I did not know what the investigation would uncover. I then explained the conduct of the investigation up to the writing of the report of the findings of the investigation, as well as the types of recommendations I might issue. |
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I informed the applicant that I was going to request a legal opinion because the respondent has objected to the investigation of this complaint. I told him that he would certainly have to wait awhile because the opinion would not be issued for several weeks. He stated that he understood. |
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The complainant stated that his complaint referred to incidents relating to his dismissal, alleged harassment by a certain Ms. Whelan and alleged harassment by a certain Mr. Walton. As I did not remember these last two allegations, I reread the contents of his complaint form to him, and it did not include any allegations against Ms. Whelan. Mr. Walton is named in the complaint as the person who gave him the letter of dismissal. He stated that Mr. Sharpe (the Complaints Clearance Project investigator) told him not to worry about it because the Commission deals with only one ground for complaint at a time and that an investigation into the other allegations would begin only once the investigation into the dismissal had been completed. I explained to him that the Commission did not work that way and that if an investigation were held, it would be limited only to the allegations found in the form he had signed. I asked him why he had not mentioned these allegations to Ms. Wankam, the intake officer. He stated that he did not remember why and that he thought the intake officer was Ms. Hebert, the first investigator assigned to his case. |
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I asked him for particulars of the allegations concerning Ms. Whelan. He started by saying that all the evidence I needed could be found in a letter from Ms. Whelan dated March 4 (he did not remember the year) and in two other letters from Mr. Walton. According to the complainant"s account, the complaint appears to be one of personal harassment. The complainant confirmed that it concerns personal harassment. I therefore explained the scope of our Act to him and told him that this type of harassment is not a ground. |
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The complainant then stated that he was dismissed because he was on a "black list". He said that his name was the third on this list and that the respondent had dismissed the two men above him. I asked him to explain this black list allegation. He stated that he was actively involved in an attempt to organize and replace the respondent"s current union (ATU, LOCAL 279), which is a U.S.-based union, with the ICTU, which is a Canadian-based union. He said that the respondent did not like this. I asked him to explain. He stated that his active participation in union activities was the principal reason for his dismissal by the respondent. I asked the plaintiff to confirm this statement several times, each time he told me that this was the real reason. |
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The complainant cited two examples to support the ground of union involvement. First, he stated that a colleague, Marjorie Jackson, suffered from stress and severe depression and must have taken 4.5 months of sick leave. He described Ms. Jackson as a person who showed little interest in union activities at the respondent"s place of business. He said that she was recalled for work by the respondent and was not given any trouble. He also mentioned the example of one of his good friends whom he did not wish to name. He called him Paul P. The complainant stated that in four years of work for the respondent, Paul P. was absent from work on sick leave for at least 3.5 months. The complainant described Paul P."s absenteeism as atrocious and added that he was involved in several accidents while driving buses for the respondent. The complainant stated that Paul P. was recalled for work by the respondent and was not given any trouble. He stated that the respondent [translation] "wrote him a love letter" so that Paul P. would return to work. The complainant added that Paul P. was not involved in any union activities. |
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He stated that the respondent will never admit that he was dismissed for his participation in union activities, which is why it stated he was dismissed because of his disability. I explained to the complainant that if he thought that the ground for his complaint was his union involvement rather than his disability, it was not a ground covered by our Act. I asked him if he had discussed this with an intake officer and he replied that he did not remember. I tried to make him understand that this type of complaint was beyond the Commission"s jurisdiction. The complainant did not seem to understand that he did not have a ground for his complaint. He said that this is what he believed the respondent thought and that he only admitted this [translation] "between the two of us". I said what the respondent thought did not matter very much, that he was the one filing the complaint and that he alone had to state the ground for his complaint: if he told me the true ground was his union affiliation, it was not a ground the Commission could deal with. |
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He did not seem to understand, and as he insisted that the investigation into the complaint resume as soon as possible, I told him that I would discuss the information he had just given me with my supervisor (who was present during this telephone conversation). I told him that a legal opinion might no longer be necessary in light of the facts he had just stated and that I would call him back.
[20] In subsequent conversations between Mr. Charlebois and CRHC officials the apparent reasons for Mr. Charlebois" termination as opposed to any underlying cause were further canvassed. However, these conversations did not add any pertinent new information about the true reason for the dismissal.
[21] An Investigation Report, dated November 25, 1994, [Tab 4, Supplementary Application Record, T-57-95] recommended that Mr. Charlebois" complaint be dismissed because, on the evidence, the allegation of discrimination was unfounded. The Report reads as follows:
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Canadian Human Rights Commission |
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Complaint date: January 2, 1992 |
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Grounds: Disability (anxiety and situational stress) |
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Complainant"s Name & City: Gilles Charlebois, Plantagenet-Nord, Ontario |
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Respondent"s Name and City: Ottawa-Carleton Regional Transit Commission (OC Transpo), Ottawa, Ontario |
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1. The complainant, who is suffering from anxiety and situational stress, alleges that the respondent discriminated against him by terminating his employment because of his disability in contravention of section 7 of the Canadian Human Rights Act. |
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2. The respondent denies discriminating against the complainant on the ground of disability. It states that the complainant"s employment termination was the culmination of a number of years of progressive discipline which included counselling, warnings, reprimands, absenteeism, insubordination and suspension for poor work performance. It adds that the complainant"s employment was terminated because he failed to meet the condition of his re-instatement and to maintain an adequate level of performance. |
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3. The evidence shows that the complainant was first dismissed in December 1990 for insubordination, and that he then went on sick leave in January 1991 but did not provide a medical certificate until March 1991. It shows that he failed to attend disciplinary meetings in February and March 1991, and that he was dismissed a second time in June 1991 because he could not maintain an adequate level of performance. It does not support the complainant"s allegations that he was dismissed because of a disability. |
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3. The evidence also shows that the complainant himself admitted that he felt he had been dismissed because of his participation in union activities and not because of his disability as originally alleged. |
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4. The complainant has appealed the decision of his union not to send his grievance to arbitration. The Federal Court has already dismissed his appeal. Even if the Supreme Court were to grant him leave to appeal and if he were to win his case at arbitration, it would remain that the complainant has admitted that disability was not the reason for his dismissal. |
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5. It is therefore recommended that the complaint be dismissed because on the evidence, the allegation of discrimination is unfounded. |
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pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint (H32473) of Gilles Charlebois of Plantagenet-Nord, Ontario, against the Ottawa-Carleton Regional Transit Commission dated 2 January 1992, alleging discrimination in employment on the ground of disability because on the evidence the allegation of discrimination is unfounded.
[22] Finally, in a letter dated December 15, 1994, [Tab 4, Supplementary Application Record, T-57-95] Mr. Charlebois was informed that his complaint against OC Transpo was dismissed as follows:
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The Canadian Human Rights Commission has reviewed the investigation report of your complaint (H32473) against Ottawa-Carleton Regional Transit Commission dated January 2, 1992, alleging discrimination in employment on the ground of disability. The Commission also reviewed your submission dated November 9, 1994. |
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The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence the allegation of discrimination is unfounded.
[23] Attached to the decision was a copy of the Investigation Report, dated November 25, 1994, and a copy of his Complaint Form, dated January 2, 1992.
2. The ATU complaint
[24] The CHRC initially declined to accept Mr. Charlebois" complaint against the ATU but later indicated that it was willing to re-examine it if he provided more information. Mr. Charlebois provided the information requested of him to the CHRC on August 15, 1995.
[25] The information submitted by Mr. Charlebois was reviewed by Ms. Anick Hébert in a memorandum dated August 24, 1995 which is addressed to Mr. Stewart, Supervisor of Investigations with the CHRC [Tab 40, Application Record, T-2314-96], and states as follows:
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I also think that you should not take this complaint because it does not seems [sic] that he have [sic] a ground of discrimination. He alleged that because of his disability ... but what he provided is not strong enough to take a complaint. I think that if we take it, it will end by no further proceedings and he will go to federal court anyway. |
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Some information may let us think that we should take his complaint. Yellow paper #4. A lot of people signed for him...But that happened four years ago so I think it is hard for them to remember. |
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I think that the Canadian Labour Relations Board decision is really important. The duty of representation was not violated. He acknowledged that he was dismissed because of his participation in union activities and not because disability...He confirmed that again during the Review of the Canadian Labour Relations Board decision...
[26] The review of this information resulted in a personal meeting between Mr. Charlebois and Mr. Stewart. As a result, in a letter dated November 23, 1995, Mr. Charlebois was advised by Mr. Stewart that the CHRC was of the opinion that he did not have reasonable grounds to file a complaint of discrimination against the ATU [Tab 17, Application Record, T-2314-96]. As did Ms. Hébert"s memorandum, the letter referred to statements of witnesses to the November 1991 union membership meetings and minutes of those meetings, and expressed the following opinion:
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In the signed declarations you have provided, although some members state their opinion that the President treated you unfairly, there is no evident link to your disability. The declarations were prepared some three and a half years after the events in question; I note that several of the witnesses mention the difficulty of recalling the events. |
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The Canadian Labour Relations Board found that the duty of fair representation was not breached. I do not believe that an investigation under the Canadian Human Rights Act would add anything to this.
[27] Despite this advice, Mr. Charlebois filed a formal complaint with the CHRC on December 19, 1995, and an investigation into his complaint was initiated. In his Complaint Form dated April 3, 1996 [Exhibit Y to the Affidavit of Gilles Charlebois, T-2314-96], Mr. Charlebois alleged the following:
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I have been a member of good standing of Local 279, Amalgamated Transit Union, since July 1980. |
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My employment was terminated by my employer on December 12, 1990, for the first time, for a disciplinary matter. [false accusation report] I grieved that decision and it was revoked. Rather, I was assessed a ten (10) days suspension without pay on file, a thirty-six (36) days with Sick Benefit payment at 90% of regular salary, for a period of which I was terminated and a right to grieved [sic] the ten (10) days suspension for the period of December 12, "90 till December 21, 1990. I returned to work as early as January 28, 1991. On January 28, 1991, I filed a grievance for lost wages. On February 7, 1991, I proceeded on a lengthy certified sick leave. My employment was terminated again on June 12, 1991, as my employer considered, in part, that I was abusing sick leave. [O.C. Transpo"s remark...real or imagined] I filed a grievance against the second termination of my employment. |
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During the course of both grievances, I was assisted by Paul Jolicoeur, a union representative. He counselled me to accept a proposition from the employer which would result in loss of pay for me. I refused. Furthermore, on the first grievance (December 12, 1990) he counselled me to accept a proposition from the employer which would allowed [sic] my return to work. [on January 9, 1991] also it would allow me the right to file a new grievance for any lost wages. I was coerced to accept. |
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On October 24, 1991, Jolicoeur told me nothing, instead he was excused for a phone call, called out by the secretary Paul McDonnell, at which point Randy Graham (President) cursed and yelled at me about the Sick Benefit cheque and informed me at that time (prior to Legal Opinion letter) that I had put myself into this situation with no chance of arbitration. The latter goes for both grievances he implied. The question of arbitration for both grievances was placed and conspicuously underlined on both, the Union Notice Boards and on the agenda at the union membership monthly meeting of November 12 and 13, 1991. I was not made aware in writing that the issues would be put to a vote by the membership at that meeting. The turn out appeared larger than usual and I noticed several unknown faces (including Para Transpo drivers) in the crowd. The agenda called for a secret ballot on whether or not my first or my second grievance should be supported to arbitration. The local"s legal counsel (Mr. David Jewitt) was of the opinion, November 7th and 8th, 1991; that I had a 60-70% chance of winning, perhaps not clearly speculating which one of the grievances. However, the local executive failed to provide its support on either grievance and that one secret ballot for both grievances [discriminatory practice] turned against me. |
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I believe that the respondent did not fairly represent me, solely because of my disability, both in its handling of my (two) grievances and in not supporting a decision, on either, to take one or/and two grievances to arbitration.
[28] Following further investigation, on July 29, 1996, the CHRC released its Investigation Report referred to the February 3, 1993 findings of the CLRB [Exhibit Y, Affidavit of Gilles Charlebois, T-2314-96]. This report reads as follows:
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Canadian Human Rights Commission |
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Complaint date: April 3, 1996 |
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Grounds: Disability (anxiety and situational stress) |
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Complainant"s Name & City: Gilles Charlebois, Plantagenet-Nord, Ontario |
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Respondent"s Name and City: Amalgamated Transit Union, Ottawa, Ontario |
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1. The complainant, an employee of OC Transpo from 1980 to 1991, alleges that the respondent failed to represent him fairly because of his disability in that it did not support him at the time of a membership vote in on whether to submit his last two grievances (loss of wages and termination of employment) to arbitration. He alleges that the respondent erred in combining both grievances in one vote on arbitration held in November 1991. |
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2. The respondent denies discriminating against the complainant. |
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3. It states that it represented the complainant in numerous grievances during the course of his employment, spending "countless hours and tens of thousands of dollars" in the process. |
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4. The complainant had an opportunity to present his case for arbitration before the membership, and the opinion of the respondent"s lawyer recommending arbitration was read out to the membership. However, the membership voted 63 to 36 to not send the grievances to arbitration. The respondent was bound by this decision. |
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5. Following the respondent"s decision not to send the complainant"s grievances to arbitration, he brought an action against the respondent before the Canada Labour Board (CLRB) which was dismissed as were subsequent appeals of that decision. That action alleged that the respondent had failed to fairly represent the complainant. |
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6. Prior to the termination of his employment, the complainant had been involved in a series of campaigns by another union to replace the respondent as bargaining agent. |
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7. The complainant agrees that he filed many grievances and that most were successfully resolved at the step II level with the assistance of the respondent. |
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8. The complainant acknowledges his participation in all of the raids by a competing union against the respondent. He states this is a motive for the union"s "hate-rage" towards him. |
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9. When negotiations were taking place with the employer regarding lost wages and termination of his employment, the union president angrily told the complainant that he had been off work a lot, and the union agent said that the complainant had been the cause of his own trouble. Yet, the complainant had provided a medical certificate every time he had booked off work. The union agent, who was most familiar with his grievances was not present at the vote meeting. A union member had asked for the vote meeting to be postponed because of this, but the union president had ignored this claiming he himself had full knowledge of the grievances. |
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10. By not having a separate vote on each grievance, the union violated the complainant"s rights under the local by-laws. At the November 1991 meeting to vote on his grievances, the union president was wrong in ignoring the unruly behaviour of some of the members against the complainant, and in encouraging the members to vote against sending the grievances to arbitration, even though the union lawyer had recommended arbitration. |
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11. Following the respondent"s decision to not send the complainant"s grievances to arbitration, he filed an action against the respondent with the CLRB. The CLRB dismissed the action as having no basis. |
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12. In its decision of February 3, 1993, the CLRB found no evidence of bias by the respondent against the complainant or that they ran the meeting in November 1991 or conducted the vote on the grievances in anything but a neutral way. The Board noted that the complainant was made aware in October 1991 by the union President that the grievances would likely be referred to vote at the November membership meeting. The Board concluded that the actions of the union in suggesting that the complainant accept the employer"s terms for re-instatement, and in suggesting to the complainant that his grievances would likely not succeed at the arbitration level, were not improper. The Board did not consider the union"s decision to combine his two grievances in one arbitration vote to be a violation of its duty to fairly represent the complainant. |
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13. The complainant unsuccessfully appealed that decision to the Federal Court of Appeal and to the Supreme Court of Canada. |
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14. Prior to December 1991, the complainant had been represented by the respondent with regard to 15 grievances he had filed during his period of employment, which had been resolved to his satisfaction. During the same period, he had participated in a number of membership raids against the respondent. He is of the view that this was a motive for the union"s "hate-rage" against him. |
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15. His last two grievances were presented to the membership for a vote as to whether or not they should be supported to arbitration. The complainant had the opportunity to present his case at the meeting. The membership voted against such a decision. The respondent was bound by this decision as per its established procedures. |
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16. The complainant"s grievances were not taken to arbitration because the members voted against doing so. The respondent was bound by this decision. |
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Conclusion and Recommendation |
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17. It is recommended that the Commission deal with the complaint even though the act complained of occurred more than one year before the receipt of the complaint. |
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18. It is recommended that the complaint be dismissed because on the evidence, the evidence of discrimination is unfounded. |
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pursuant to paragraph 41(e) of the Canadian Human Rights Act, to deal with the complaint (H33968) of Gilles Charlebois of Plantagenet-Nord, Ontario against Amalgamated Transit Union dated 03/04/96, alleging discrimination in the provision of services, on the ground of disability, even though the act complained of occurred more than one year before the receipt of the complaint. |
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pursuant to subparagraph 44(3)(b)(I) of the Canadian Human Rights Act, to dismiss the complaint (H33968) of Gilles Charlebois of Plantagenet-Nord, Ontario, against Amalgamated Transit Union dated 03/04/96, alleging discrimination in the provision of services on the ground of disability, because on the evidence the allegation of discrimination is unfounded. |
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(dated 29.7.96)
[29] The CHRC invited Mr. Charlebois to make further submissions with respect to the Investigation Report, which he did on July 11, 1996 [Exhibit Z, Affidavit of Gilles Charlebois, T-2314-96]. A portion of his submission reads as follows:
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I have read over and over again, the content of the investigation report and I became flabbergasted on how bewilder [sic] this Commission has improperly perceived this legitimate complaint by making a serious mistake. |
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(My complaint against the Union is not based on their erroneous behaviour regarding the combination of both grievances into one vote; my complaint focuses on the personal attack {discriminatory practice} made on me by the Union"s President during the (November) general monthly meeting, concerning my sick leave record, which is reflected in the minutes of the meeting, already submitted to the Commission).
[30] In a letter dated September 20, 1996, the CHRC advised Mr. Charlebois that his complaint was dismissed pursuant to s.44(3)(b)(i) of the Canadian Human Rights Act because, on the evidence, the alleged discrimination was unfounded [Exhibit AA, Affidavit of Gilles Charlebois, T-2314-96].
II. Analysis
A. The test for a proper investigation
[31] The Canadian Human Rights Act makes complaint procedures available to any individual who has reasonable grounds to believe that he or she has been a victim of another person"s discriminatory practices.
[32] By operation of s.41(1) and s.43(1), the CHRC has discretion to refer a complaint to an investigator for investigation. Once this discretion is so exercised, under s.43(1), the provisions of s.44(1) apply as follows:
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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. |
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(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied |
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(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or |
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(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, |
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it shall refer the complainant to the appropriate authority. |
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(3) On receipt of a report referred to in subsection (1), the Commission |
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(a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied |
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(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
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(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 |
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(b) shall dismiss the complaint to which the report relates if it is satisfied |
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(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
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| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
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[33] Both parties to this judicial review accept that the standard established by this Court for a proper investigation is neutrality and thoroughness. Respecting this test, and the deference to be shown to the CHRC in exercising its discretion to investigate, Wetston J. in Jennings v. Canada (Minister of National Health and Welfare) (1995), 97 F.T.R. 23 at 29 quotes Nadon J. in Slattery v. Canadian Human Rights Commission [1994] 2 F.C. 574 at 600 and 605 as follows:
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In determining the degree of thoroughness of investigation required to be in accordance with the rule of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interest in maintaining a workable and administratively effective system. |
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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 of Canada in the case of Canada v. Mossop. |
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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.
[34] The test with respect to the thoroughness required of an investigation by the CHRC is also set out in the following passage of Dubé J."s decision in Miller v. Canadian Human Rights Commission (1996), 112 F.T.R. 195 at 201:
The SEPQA decision has been followed and expanded upon by several Federal Court decisions. These decisions are to the effect that procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal. The investigations conducted by the investigator prior to the decision must satisfy at least two conditions: neutrality and thoroughness. In other words, the investigation must be conducted in a manner which cannot be characterized as biased or unfair and the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response.
B. The thoroughness and neutrality of the OC Transpo investigation
[35] During argument, counsel for OC Transpo confirmed that a primary motivation for Mr. Charlebois" termination was that he was a difficult employee. Nevertheless, in implementing its dissatisfaction, OC Transpo must not engage in a discriminatory practice. The only evidence of OC Transpo"s reasons for the termination is found in the letter of termination itself. On its face, a question certainly arises as to whether Mr. Charlebois" legitimate disability resulting in sick leave was improperly used against him. Obviously, the investigator who asked the questions in the April 14, 1993 letter to OC Transpo thought so as well since the letter concludes with the words "once again, thank you very much for your cooperation in providing this information as it is crucial to a complete investigation of Mr. Charlebois" complaint".
[36] During the investigation, Mr. Charlebois expressed a belief that there was an underlying unexpressed reason for his termination. On the evidence, this belief is used as a rationale for dismissing Mr. Charlebois" complaint on the basis that it conclusively undermines his allegation of discrimination on the ground of disability. However, during argument, counsel for the CHRC agreed that Mr. Charlebois" opinion should be viewed only as a fact to be considered with other available evidence respecting the reasons for his termination. I agree with this position.
[37] Mr. Charlebois" opinion is merely evidence respecting OC Transpo"s motivation, and is certainly not conclusive evidence of what, in fact, occurred. That is, Mr. Charlebois" belief certainly does not obviate the need to investigate the reasons for his dismissal, given the cogent evidence that the termination might have been implemented in contravention of the Canadian Human Rights Act , regardless of the true motivation for the action.
[38] Obviously, clarification is required. In fact, the Commission initially asked for an answer to critical questions, but never got a reply. Nevertheless, the CHRC went ahead and concluded its investigation. The fact that no answer was given does not make the questions any less relevant. In my opinion, without the answers to the questions posed, the investigation of this complaint was not thorough. Accordingly, I find that the CHRC"s decision to dismiss this complaint is made in reviewable error.
C. The thoroughness and neutrality of the ATU investigation
[39] On the ATU complaint, Mr. Charlebois received very careful attention from the CHRC, even to the extent of being provided with a personal interview with the Supervisor of Investigations and the provision of an informal opinion by him. As to the requirement of neutrality, however, Mr. Charlebois argues that Mr. Stewart"s opinion constitutes evidence of impairing bias on the part of the investigator. I do not agree.
[40] In the course of the formal investigation, Mr. Charlebois was accorded usual if not attentive consideration. There is absolutely no evidence of any bad faith or bias on the part of anyone who acted in this case. Accordingly, I give no weight to the bias argument.
[41] As to the requirement of thoroughness, Mr. Charlebois argues that the Investigation Report discloses a fettering of discretion because weight is placed on the results of the CLRB decision. I do not agree.
[42] In my opinion, the CLRB decision is a fact which deserves weight. In the detailed and carefully worded decision, critical findings of fact were made on issues which are the subject matter of the Canadian Human Rights Act investigation. I find it is entirely reasonable for the investigator to place weight on the findings respecting the actions of union personnel at the November 12 and 13, 1991 meetings.
[43] I do not believe that where a full evaluation of evidence has occurred by an independent tribunal on particular pertinent factual issues, as is the case here, it is necessary to duplicate that activity simply because the tribunal"s jurisdictional focus is somewhat different. The question is, what facts were found, on the basis of what evidence, regardless of jurisdictional power to act on such facts? If the facts found are on the basis of the same evidence, and the findings are made in a credible way, these findings can, and should, be accepted to maintain an efficient and cost effective investigation service.
[44] Before the investigator were witness statements, a few of which, at their best, could be taken as some evidence that Mr. Charlebois was very unpopular with certain members of the union, and, as a result, he was given short shrift. It was not necessary for the investigator to interview these, or any, witnesses to substantiate this conclusion. In Mr. Stewart"s opinion, whatever might be the negative attitude towards him, Mr. Charlebois failed to connect it with his complaint of discrimination. I agree.
[45] I do not find any deficiency in the manner in which this investigation was conducted, and I do not see any error in the conclusion reached by the investigator that this complaint of discrimination is unfounded. Accordingly, I find no reviewable error in the CHRC"s decision to dismiss this complaint.
III. Relief
[46] For the above reasons, respecting the judicial review of the CHRC"s dismissal of the OC Transpo complaint [T-57-95], I set aside this decision and refer the complaint back to a different investigator for further investigation and report. Respecting this further investigation, I direct that every effort be made to obtain answers to the questions set out in the April 14, 1993 letter to OC Transpo, and that any recommendation and decision made include consideration of the answers obtained.
[47] Also for the above reasons, respecting the judicial review of the CHRC"s dismissal of the ATU complaint [T-2314-96], I dismiss the application.
Judge
OTTAWA, Ontario
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1 Except for the first paragraph, this exhibit is in French. By agreement of counsel, following the hearing it was officially translated to English at my request. The following is the official translation.
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