Date: 20091218
Docket: T-136-08
Citation: 2009 FC 1291
Ottawa, Ontario, December 18,
2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
YURI
BOIKO
Applicant
and
CHANDER
GROVER
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to Section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7,
and Rule 300(a) of the Federal Courts Rules, SOR/98-106,
for judicial
review of a decision by the Canadian Human Rights Commission (the “Commission”),
dismissing a complaint for harassment, on the basis of national or ethnic
origin and marital status, made by Dr. Yuri Boiko (the “Applicant”) against Dr.
Chander Grover (the “Respondent”).
BACKGROUND FACTS
[2]
As
a result of the Respondent’s successful battle before the
Commission and the Canadian Human Rights Tribunal (the “CHRT”), the
NRC created the Radiation Standards and Optics Section with the Institute of
National Measurement Standards, specifically in order to appoint the Respondent
as its Director. The tale was told in some detail by, among others, Justice Sean Harrington in Canada
(Attorney General) v. Grover, 2004 FC 704, [2004] 252
F.T.R. 244; Justice Rutherford in Grover v. Canada (Attorney General),
78 O.R. (3d) 126; and Justice Michel Shore in Canada (Attorney General) v. Grover,
2007 FC 28, 307 F.T.R. 294. These cases arose from further human rights
complaints by the Respondent against the NRC.
[3]
The Radiation Standards
and Optics Section was
comprised of four groups, one of which was the Optics Group. The Respondent was
responsible for hiring for the Optics Group, as well as for another, the
Photonics Group.
[4]
The
Applicant joined the Optics Group as a research officer in November 2001. The
Respondent was his supervisor. The Applicant’s employment was subject to a
probationary period of three years. On July 17, 2004, he was fired by the NRC.
[5]
Over the
course of the Applicant’s time with the NRC, a series of incidents led him to
believe that the Respondent “exhibited racial hatred and contempt towards
whites, Slavic ethnicity and Russians in particular” and also harassed him
because of his marital status (as a single man).
[6]
Following
his firing, on August 13, 2004, the Applicant filed a complaint against the NRC
with the Commission. That complaint is not at issue in this application.
[7]
On October
22, 2004, the Applicant also filed a complaint against the Respondent, alleging
harassment on grounds of national or ethnic origin and marital status, contrary
to paragraph 14(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c.
H-6. The Commission declined to investigate allegations of harassment based on
marital status, but investigated those based on national or ethnic origin.
However, it dismissed the complaint and did not refer it to the CHRT. The
Applicant seeks judicial review of that decision.
[8]
The
Applicant has not included the Commission’s decision itself in the record.
However, the Commission’s investigator’s report (the “Report”) has been filed
and, as the Respondent conceded, the report sets out the Commission’s reason
for decision.
[9]
The Report
sets out both parties’ versions of events that gave rise to the complaint,
where there is dispute as to the facts, as well as both parties’
interpretations of those events.
[10]
On the
subject of the allegations of harassment on the ground of marital status, there
is no dispute about the facts. In all four incidents described, the Respondent
encouraged or required the Applicant to interact with women (whether present or
prospective colleagues or, in one case, a visiting researcher). The Applicant
alleged that these interactions were not necessary or even useful, and claims
that the Respondent’s motive in encouraging them was biased against him as a
single man.
[11]
The
Commission did not investigate these incidents. The Report concluded that they
had no objective link to the Applicant’s marital status, and that even if they
did, a reasonable single man would not have understood them as harassment. The
Report stated that interactions between women and men of the type described by
the complainant are common occurrences in Canadian workplaces. Consequently,
they would not, in all likelihood, cause offence to the average single male.
[12]
The
Commission did investigate the claim of harassment on the basis of race or
ethnicity. The claim was mostly based on comments which the Respondent
allegedly made about Russians and about vodka. The facts, however, were
disputed. The Applicant stated that the Respondent made comments to the effect
that Russians all knew each other, and that in the context in which they were
made, these comments were contemptuous. The Respondent denied making the
comments imputed to him by the Applicant. There were no witnesses to the
incidents in which the comments were allegedly made. The situation is the same
with respect an alleged comment linking the Applicant to vodka because he is
Russian: the Report concluded that “the subject of vodka was raised between the
parties … although their evidence conflicts about who said what to whom;”
again, there were no witnesses.
[13]
The
Commission concluded that evidence was insufficient to demonstrate that the
Responded ever uttered contemptuous comments about Russians. As for the comment
about vodka, even if it was made, it was not serious, and in its context, could
not amount to harassment.
[14]
Another
comment made by the Respondent that the Commission investigated in the context
of harassment based on national or ethnic origin was to the effect that efforts
to “groom” the Applicant had been unsuccessful. The Applicant claimed that the
Respondent was making fun of his national origin and marital status and staging
a failure and undermining his actual performance. The Respondent did not deny
making the comment, but rejected the Applicant’s interpretation of it, stating
that to “groom” the Applicant meant to prepare him for assuming greater
responsibilities at the NRC. The Report concluded that the comment could not
amount to harassment on a prohibited ground as there is nothing to link that
particular comment to the Applicant being either a single man or of Russian
origin.
PRELIMINARY ISSUE
[15]
The
Respondent submits that the Applicant’s record suffers from irregularities and
portions of it should be struck. Specifically, he takes issue with the
Applicant’s affidavit and documents attached thereto, and with significant
portions of the Applicant’s Memorandum of Fact and Law.
[16]
It is
trite law that on judicial review, the Court’s only concern is whether the
Commission’s decision can stand, on the appropriate standard of review, with
regard to the applicable law and the evidence before it. Extrinsic evidence may
be accepted only on issues of jurisdiction or procedural fairness (see e.g.
Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009 FC 710, [2009] F.C.J. No. 876 at
par. 30).
[17]
With respect to the
proceedings in Dr. Zhou’s case, the Respondent
argues that a
court cannot
treat as evidence in the present proceedings what is asserted in another
proceeding unless it be introduced into evidence by the normal means, and
relies on Tekyi v.
Canada (Minister of Citizenship and Immigration), [1995]
28
Imm. L.R. (2d) 60 (F.C.T.D.), [1995] F.C.J. No. 225 (QL). I agree. However, I will
point out that this Court can take notice of the fact that these proceedings
are ongoing, and of Justice Phelan’s conclusion in Zhou, supra,
that the Commission’s decision to refer the matter to the CHRT was not
unreasonable.
ISSUES
1.
Did
the Commission err in not investigating the allegations of harassment based on
marital status?
2.
Did
the Commission conduct a sufficiently thorough investigation of the allegations
of harassment based on national origin?
STANDARD OF REVIEW
[18]
Discretionary
decisions of the Commission are reviewable on the standard of reasonableness,
although issues related to procedural fairness, such as the thoroughness of the
Commission’s investigation in this application, attract review on the standard
of correctness, Canada v. Zhou, 2009 FC 164.
ANALYSIS
1. Did the Commission
err in not investigating the allegations of harassment based on marital status?
[19]
The
Applicant submits that the Commission’s investigator misunderstood his
allegations of harassment based on his marital status and failed to investigate
them for that reason. He claims that he did not object to interaction with females;
rather he objected to “grooming” activities of the Respondent, who
unnecessarily provoked and forced interactions with females resorting to
objectionable methods of accomplishing that.
[20]
The
investigator further misunderstood the significance of the Respondent’s
activities by failing to note that each of the attempts to force the Applicant
to interact with females was followed by a negative evaluation of the
Applicant’s performance.
[21]
Finally,
the Applicant rejects the interpretation of the “grooming” comment as relating
to improvement of performance because in his opinion there were no measures
taken by the Respondent which objectively were favouring working conditions of
the Applicant.
[22]
For his
part, the Respondent submits that the Commission’s investigator’s
decision not to investigate allegations or harassment based on marital status
was reasonable. There was, in fact, no need for an investigation, since the
Report was based on the assumption that the facts as alleged by the Applicant
were true. The reason why the Commission dismissed the Applicant’s complaint on
this point is that the Report established no link between the facts as alleged
and the prohibited ground of discrimination, and further concluded that these
facts could not amount to harassment.
[23]
I agree
with the Respondent’s position on the need for an investigation. Investigating
the Applicant’s allegations on this point would not have helped him, since the
Commission did not actually doubt that the facts that he described took place. The
Commission concluded that the Respondent’s words and actions had nothing to do
with the Applicant’s marital status and that they did not amount to harassment.
In my opinion, this conclusion is not unreasonable.
[24]
I simply
fail to see any objective link between the incidents described by the Applicant
and his marital status. The Applicant did not suggest that the Respondent
actually referred to the fact that the women involved were single, and indeed
there is no proof that all of them were; and even if such proof existed, there
would still be no basis for the inference that the Respondent’s behaviour was
in any way an effort at match-making. The fact that the “grooming” comment was
made in the context of a performance review supports, rather than makes less
plausible, the conclusion that it related to the Applicant’s job performance,
and not to his marital status.
2. Did the Commission conduct
a sufficiently thorough investigation of the allegations of harassment based on
national origin?
[25]
The
Applicant makes several arguments the gist of which is that the Commission’s
investigation of his claims of harassment based on his national origin was not
thorough or disregarded material evidence. Thus the Applicant faults the
Commission for not having met with Phil Chodos, an internal investigator for
the NRC who was familiar with the Applicant’s allegations and had, according
the Applicant, a great deal of relevant evidence.
[26]
The
Applicant further faults the Report for not considering an allegation that
another NRC employee heard the Respondent say that he wanted no more East
Europeans.
[27]
The
Applicant also argues that the Commission disregarded an obvious connection
between his case and that of Dr. Zhou, which also involved allegations of
racial discrimination by the Respondent, and which the Commission decided to
refer it to the CHRT. The Applicant submits that since the NRC’s argument to
the effect that the Commission could not have referred Dr. Zhou’s case after it
had dismissed the Applicant’s was rejected, the reverse reasoning must apply:
having referred Dr. Zhou’s case to the CHRT, the Commission could not dismiss
the Applicant’s.
[28]
Finally,
the Applicant submits that the Commission erred in disregarding false statements
made by the Respondent and accepting those false statements as true.
[29]
With
respect to the Commission’s failure to meet with the NRC’s internal
investigator, the Respondent notes that Mr Chodos was not a witness to any of
the incidents at issue, and that the Applicant could and should have tried to
introduce or rely on the allegedly helpful information gathered by Mr Chodos
before the Commission.
[30]
As for the
claim that another NRC employee heard the Respondent make a derogatory remark
about East Europeans, it is not introduced by way of evidence, and cannot be
considered in the application for judicial review.
[31]
The
Respondent also argues that there is no evidence in the record on the Zhou
complaints, nor is there any affidavit evidence that properly explains how or
why they are connected. The Court, therefore, should not entertain the
Applicant’s argument.
[32]
The
Applicant’s arguments are not persuasive; evidence to support them is lacking,
and their logic is flawed.
[33]
First,
I note that the Applicant did not even mention Mr Chodos as a potential
witness (or indeed at all) in his original complaint to the Commission. He only
brought up the subject in his comments on the Commission’s report. In any
event, Mr Chodos would not have been an important witness, since it is not
alleged that he had first-hand knowledge of any of the incidents on which the
Applicant’s complaint was based. Presumably Mr Chodos spoke to the parties, and
perhaps to other NRC employees who may have witnessed the events. But there is
no reason why the Applicant could not have pointed the Commission to the
persons, if any, who had first-hand knowledge of the events.
[34]
Second,
the claim that the Respondent made a derogatory remark about East Europeans was
also not in the Applicant’s original complaint; the Applicant raised the subject
in his comments on the Report, but did not explain who actually witnessed that
comment, and how the matter could have come to the investigator’s attention
since he himself did not bring it up in his complaint. This allegation
is not supported by evidence before this Court. In any case, the Commission had
no grounds to investigate the matter, and its alleged failure to do so cannot
be said to be a breach of its duty of fairness.
[35]
Third,
with respect to the Dr. Zhou’s case, while the Court can take notice of Justice
Phelan’s decision in Zhou, the logic of the Applicant’s argument is
flawed. As Justice Phelan observed, the two cases are distinct, even though
both involve allegations of discrimination on the same prohibited ground by the
same person. While different decisions in the two cases “may raise questions,
without an assessment of that decision (a matter not before the Court), all
that one can conclude is that in one case the harassment and discrimination may
be linked to human rights grounds; in the other, there was no such link.” (Zhou,
supra, at par. 31.). Each “complaint must stand and be assessed on its
own merits; not ‘piggybacked’ on someone else’s.”
CONCLUSION
[36]
It may
well be, judging by the endless litigation surrounding it, that the atmosphere
at the Radiation
Standards and Optics Section of the NRC’s Institute of National
Measurement Standards is unhealthy. It may yet be proven, in other cases, that
racial discrimination is part of that unhealthy atmosphere.
[37]
But,
unfortunately the Applicant did not submit enough evidence to persuade the
Commission that he may have been a victim of discrimination or harassment, so
that a referral to the Canadian Human Rights Tribunal was warranted. Further,
he also failed to convince this Court that the decision of the Commission was unreasonable.
[38]
For these
reasons, the application for judicial review is dismissed, with costs, for
the application and the remaining motions, fixed at $3,000 payable
forthwith.
JUDGMENT
[39]
THIS
COURT ORDERS that the application for judicial review be
dismissed, with costs, for the application and the remaining motions, fixed at
$3000 payable forthwith.
“Danièle Tremblay-Lamer”
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