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.
[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.
[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,
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.
[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.
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).
[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
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.
[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.
[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,
the investigator found that there was insufficient evidence to establish a
nexus in terms of retaliation.
[29]
The grievance adjudicator did, in fact, examine
this situation, which Mr. Beauregard claimed was abusive and arbitrary,
and dismissed the grievance.
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).
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
Michael Palles
ANNEX
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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).
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