Date: 20101126
Docket: T-88-10
Citation:
2010 FC 1194
Ottawa, Ontario, November 26, 2010
PRESENT: The
Honourable Mr. Justice Crampton
BETWEEN:
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DR. NOEL AYANGMA
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is another chapter in a long saga that has involved several proceedings before
this Court, two appeals to the Federal Court of Appeal and two applications for
leave to appeal to the Supreme Court of Canada.
[2]
The
Applicant is a black person who is originally from Cameroon, Central
Africa. He was hired by Health Canada in January 1999. He applied for a number
of more senior positions within Health Canada between 1999
and 2004, but was unsuccessful. Following an audit of his travel claims, he was
dismissed in May 2004. In a complaint filed later that month with the Canadian
Human Rights Commission (the “Commission”), he alleged that certain senior
managers at Health Canada had discriminated against him based on his race, colour,
national or ethnic origin and his culture, contrary to the provisions of sections
7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”).
[3]
In
a decision dated December 23, 2009, the Commission dismissed his claims.
[4]
The
Applicant seeks to have that decision set aside on the basis that the
Commission erred by, among other things:
i.
acting
outside its jurisdiction when it determined that his complaint regarding a competition
for an EX-01 position was res judicata;
ii.
unreasonably
and incorrectly concluding that his complaint regarding the EX-01 competition
had already been addressed by prior decisions of this Court and the Federal
Court of Appeal;
iii.
failing
to investigate his complaints regarding competitions for an EX-02 position and
a PM-05 position, and related matters;
iv.
failing
to refer to the Canadian Human Rights Tribunal (the “Tribunal”) his complaints
pertaining to his suspension and termination; and
v.
breaching the
principles of procedural fairness and natural justice, by failing to conduct a
thorough, fair and neutral investigation and analysis of his complaints.
[5]
For
the reasons that follow, this application is dismissed.
[6]
The
additional errors alleged to have committed by the Commission will be dealt
with in the course of dealing with the alleged errors listed above.
I. Background
[7]
The
errors alleged to have been committed by the Commission relate to three competitions
and the Applicant’s subsequent suspension and termination.
(i) The EX-01 Competition
[8]
The
competition for the position of Acting Assistant Regional Director, an EX-01
position, was held in 2000. The Applicant participated in the competition,
together with several other candidates. However, he was unsuccessful, as the
competition ultimately was won by Ms. Monique Charron, a Caucasian who had held
the position in an acting capacity since 1997.
[9]
The
Applicant appealed Ms. Charron’s appointment to the Public Service Appeal Board
(PSAB) on various grounds. That appeal was partially successful, as the PSAB
determined that the selection board members did not have sufficient knowledge
of French to communicate with the Applicant during his interview, contrary to
subsection 16(2) of the Public Service Employment Act (PSEA), R.S.C.
1985, c. P-33. In response, Health Canada conducted a new
competition with a new selection board, but did not revoke Ms. Charron’s
appointment.
[10]
The
Applicant refused to participate in the new competition unless Ms. Charron’s
appointment was revoked, as he felt that she would have an advantage if she
retained the position during the new competition, even though it was clear that
her appointment would be revoked should she not be the successful candidate.
Once again, Ms. Charron won the competition.
[11]
The
Applicant then filed a statement of claim in this Court alleging, among other
things, that his rights under s. 15 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.) 1982, c. 11, had been violated. That action
was dismissed, as was the Applicant’s appeal to the Federal Court of Appeal and
his request for leave to appeal to the Supreme Court of Canada.
(ii) The PM-05 Competition
[12]
The
Applicant was hired as the Atlantic Regional Project Coordinator, First Nations
and Inuit Health Information System, in January 1999 by Health
Canada’s regional office in Halifax. There were six other
similar Regional Project Coordinator positions across Canada. In February
2000, senior management at Health Canada decided to update the
job description to transform those positions into Program Manager positions.
This would result in the positions being reclassified from a PM-04 level to a
PM-05 level.
[13]
The
first region to make this change was Alberta, where the incumbent
Regional Project Coordinator, a Caucasian, was appointed to the Program Manager
position without a competition. According to the Applicant, the same thing
occurred in the other regions of Canada. However, in Atlantic
Canada, a competition was held for the PM-05 position in March 2003. The
Applicant voiced his objection to the holding of the competition a number of
times, alleging that he should have been appointed to the position like his Caucasian
colleagues in Alberta and
elsewhere. After management initially refused to cancel the competition, the
Applicant withdrew his application in May 2003.
[14]
Despite
withdrawing his application, the Applicant was appointed Acting Program Manager
on May 26, 2003. Ultimately, he was replaced on August 18, 2003 by Ms. Agatha
Hopkins, a Caucasian woman. Ms. Hopkins was appointed to the position through
an interchange agreement. The competition was officially cancelled on September
2, 2003. The Applicant alleges that management discriminated against him by
failing to appoint him to the position without a competition, as was done with
his colleague in Alberta.
(iii)
The EX-02
Competition
[15]
In
2002, a competition was held for the position of Regional Director, an EX-02
level position. The Applicant participated in that competition, but once again
it was won by someone else, Ms. Debra Keays-White, a Caucasian woman. In 2003,
Ms. Sarah Archer was appointed to that position on an acting basis. The
Applicant claims that although he was qualified for the EX-02 position, he was
excluded from the processes that resulted in the appointments of Ms.
Keays-White and Ms. Archer.
(iv) The Applicant’s Suspension and
Termination
[16]
The
remainder of the Applicant’s complaints relate to an investigation into his
travel claims, his suspension without pay effective December 3, 2003 and the
subsequent termination of his employment effective May 7, 2004.
[17]
When
Ms. Hopkins was appointed to the Program Manager position, she became
responsible for approving the Applicant’s travel claims. In September 2003, shortly
after her appointment, the Applicant submitted some travel claims that Ms.
Hopkins considered irregular, so she requested him to provide further
information. He refused to do so. As a result, on October 6, 2003, Ms. Hopkins
requested an internal audit of all of the travel claims submitted by the
Applicant from 1998 to 2003.
[18]
A
few days later, the Applicant sought and was granted a medically approved leave
for six weeks. On December 2, 2003, he indicated his intention to return to work.
However, the following day he was told that he was suspended without pay
pending the results of the review of his travel claims. On May 7, 2004, he was then
terminated based on the findings of that review, which determined that he had (i)
submitted over $28,000 in false travel claims, (ii) failed to report absences
from work, and (iii) used his government cell phone and laptop for
non-government purposes.
[19]
The
Applicant then submitted a grievance with the Public Service Staff Relations
Board (“PSSRB”). Ultimately, an adjudicator (the “Adjudicator”) concluded that
his termination was justified. In his complaint to the Commission, the
Applicant alleged that the investigation into his travel claims was flawed,
biased, discriminatory, unjust and abusive.
(v) The First Commission
Decision
[20]
Upon
receiving the Applicant’s complaint, the Commission appointed an investigator
(the “First Investigator”) to determine whether (i) the Applicant’s complaints had
been made within the applicable one-year limitation period, and (ii) if so, the
complaints would be more properly dealt with through other available avenues of
redress.
[21]
On
September 2, 2004, the First Investigator issued his report. In short, that
report contained the following recommendations:
i.
Pursuant
to paragraph 41(1)(e) of the CHRA, the Commission should rule on the
Applicant’s allegations regarding the EX-01 competition, because there was
evidence that he had contacted the Commission within the applicable one-year
time period.
ii.
Pursuant
to the same provision, the Commission should rule on the respondent’s
submission that the several of the Applicant’s allegations had been made beyond
at one-year time limit, because the Applicant had failed to provide an
explanation for his delay in making his complaints.
iii.
Pursuant
to paragraph 41(1)(b) of the CHRA, that the Commission should decline to deal
with the complaints related to the EX-01 competition at that time, because the
allegations in question could be more appropriately dealt with in other
proceedings. On this point, the First Investigator added that at the end of
those other proceedings, or if it becomes manifest that those proceedings are
not normally open to the Applicant, the Commission may, if the Applicant so
requests, choose to exercise its jurisdiction to rule on those allegations.
[22]
Subsection
41(1) of the CHRA states:
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Commission to deal with complaint
41. (1) Subject to section 40, the Commission shall deal with any
complaint filed with it unless in respect of that complaint it appears to the
Commission that
(a) the alleged victim of the discriminatory practice to
which the complaint relates ought to exhaust grievance or review procedures
otherwise reasonably available;
(b) the complaint is one that could more appropriately be
dealt with, initially or completely, according to a procedure provided for
under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the
Commission;
(d) the complaint is trivial, frivolous, vexatious or
made in bad faith; or
(e) the complaint is based on acts or omissions the last
of which occurred more than one year, or such longer period of time as the
Commission considers appropriate in the circumstances, before receipt of the
complaint.
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Irrecevabilité
41. (1) Sous réserve de l’article 40, la
Commission statue sur toute plainte dont elle est saisie à moins qu’elle
estime celle-ci irrecevable pour un des motifs suivants :
a) la victime
présumée de l’acte discriminatoire devrait épuiser d’abord les recours
internes ou les procédures d’appel ou de règlement des griefs qui lui sont
normalement ouverts;
b) la plainte
pourrait avantageusement être instruite, dans un premier temps ou à toutes
les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n’est
pas de sa compétence;
d) la plainte est
frivole, vexatoire ou entachée de mauvaise foi;
e) la plainte a été
déposée après l’expiration d’un délai d’un an après le dernier des faits sur
lesquels elle est fondée, ou de tout délai supérieur que la Commission estime
indiqué dans les circonstances.
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[23]
In
a short decision dated November 17, 2004, the Commission adopted the First
Investigator’s recommendations.
(vi) The Second Commission Decision
[24]
On
May 6, 2008, after exhausting the other avenues of address available to him,
the Applicant requested that the Commission re-open his complaint. Ms. Louise
Chamberland (the “Second Investigator”) was appointed to prepare a report for
the purposes of giving notice to the parties that a decision would be made by
the Commission pursuant to subsection 41(1) of the CHRA and to identify the
factors that are relevant to that decision.
[25]
The
Second Investigator’s report was issued on December 18, 2008. In brief, that
Report:
i.
Summarized
the Commission’s first decision, dated November 17, 2004, by stating that it
had informed the Applicant that:
·
he ought
to exhaust his other avenues of redress before it would make a determination as
to whether to proceed to consider the allegations that had been made within the
prescribed one-year timeframe with respect to the EX-01 competition; and
·
his other
allegations could not be accepted because he had not provided adequate
justification for the late filing of his complaint.
ii.
Noted
that the Commission would determine whether it would refuse to rule on the Applicant’s
complaint (presumably with respect to the EX-01 competition) pursuant to
paragraph 41(1)(b).
iii.
Summarized
the factors relevant to a decision under paragraph 41(1)(b).
iv.
Invited
the parties to make submissions concerning the allegations related to the
competition for the EX-01 position and the factors that had been identified as
being relevant to a decision under paragraph 41(1)(b).
v.
Advised
the parties that, based on their submissions, the Commission would decide
either to (i) deal with the complaint under subsection 41(1); or (ii) not deal
with the complaint, pursuant to paragraph 41(1)(b), on the basis that the
allegations of discrimination had already been addressed through another
process available to the Applicant.
[26]
On
May 6, 2009, the Commission decided that it would rule on the allegations
regarding the EX-01 competition. That decision was simply a standard form
report in which the Commission checked off two boxes indicating that it would
rule on the complaint because: “the complaint seems to have merit and is
clearly based on certain grounds” (translation). That decision was sent
to the Applicant under the cover of a short letter dated May 19, 2009.
[27]
The
Commission then appointed Ms. Pascale Lagacé (the “Third Investigator”) to investigate
the merits of the complaint. On September 30, 2009, the Third Investigator issued
her report. In short, her recommendations were as follows:
i.
Pursuant
to paragraph 44(3)(b)(ii) of the CHRA, the Commission should dismiss the part
of the complaint concerning the competition for the EX-01 competition on the
grounds set forth in paragraph 41(1)(d) of the CHRA, because the human rights
issues had already been addressed by decisions issued by this Court and by the
Federal Court of Appeal in 2002 and 2003, respectively.
ii.
Pursuant
to subsection 41(1) of the CHRA, the Commission should rule on the part of the
complaint that concerns the suspension and dismissal of the complaint, because
the alternative recourse that had been pursued by the Applicant had not
addressed his allegations of discrimination.
iii.
Pursuant
to paragraph 44(3)(b)(i), the Commission should dismiss part of the complaint
involving the Applicant’s suspension and dismissal because:
·
the
evidence did not support the Applicant’s allegations that he was a victim of
adverse differentiation in the course of employment because of his race, his
colour, his national or ethnic origin; and
·
given
all the circumstances of the complaint, an inquiry by the Tribunal is not
warranted.
[28]
Paragraph
44(3)(b) states:
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44.
(3) On receipt of a report referred to in subsection (1),
the Commission
…
(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).
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44.
(3) Sur réception du rapport d’enquête prévu au
paragraphe (1), la Commission :
...
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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II. The Decision
under Review
[29]
In
a short decision dated December 23, 2009, which essentially reiterated the
Third Investigator’s recommendations verbatim, the Commission adopted those recommendations.
[30]
It is well accepted that when
the CHRC adopts an investigator’s recommendations and provides no, or only
brief, reasons the investigator’s report is treated as constituting the
Commission’s reasoning for the purpose of reviewing a decision made under
section 44. The consequence is that if the report that provided the basis for
the CHRC’s decision is flawed, the CHRC’s decision itself is equally flawed
(see, Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005]
F.C.J. No. 2056 at paras. 37 and 38).
[31]
Following
a brief explanation of the purpose of her report and a brief summary of both
the complaint and the investigative process that she would follow, the Third
Investigator restated the Commission’s initial decision dated November 14,
2004. After observing that the Commission’s decision was not entirely clear,
she stated that a thorough examination of the complaint form and the other
documents in the file indicated that, apart from the allegations concerning the
EX-01 position, the Commission had decided not to rule on allegations relating
to various other matters described in the Applicant’s complaint because (i) those
aspects of the complaint had been made beyond the applicable one-year time
period, and (ii) the Applicant had not provided a valid explanation for his
lateness in contacting the Commission. She noted that she would therefore not
examine those other aspects of the complaint, which included the allegations
relating to the reclassification of the Applicant’s PM-04 position and the
ensuing competition for the PM-05 position, the allegations concerning the
EX-02 position, and allegations concerning incidents that occurred between 1998
and 2000.
[32]
The
Third Investigator added that the aspect of the Applicant’s complaint
concerning the internal audit of his travel expenses and his subsequent
suspension and termination had been submitted within the applicable period and
therefore would be examined as part of her investigation.
[33]
She
then acknowledged the Applicant’s position that his complaint regarding the
PM-05 competition had not been made beyond the one-year time limit because the
competition had not been cancelled until September 2003. However, she rejected
this position on the following three grounds:
i. A thorough
review of the complaint form and the documents submitted by the Applicant
indicated that the alleged discrimination pertained to the holding of
the competition to staff the PM-05 position, which he had been occupying on an
acting basis. The decision to hold the competition was made in March 2003 and
upheld in May 2003, as communicated to the Applicant on May 16, 2003.
ii. Although the
competition had not been cancelled until September 2003, the Applicant had
already indicated in the spring of that year that he refused to submit to the
selection process and was withdrawing his candidacy.
iii. The Applicant
had not provided any explanation for his delay in submitting his complaint in
respect of the PM-05 competition that was initiated in March 2003.
[34]
Based
on the foregoing, the Third Investigator therefore stated that these aspects of
the complaint seemed to have been submitted late and were, in any event,
addressed in the Commission’s decision of November 17, 2004 (which ruled that
those aspects of the complaint had in fact been submitted beyond the applicable
one-year time limit).
[35]
The
Third Investigator then considered the alternative recourse pursued by the
Applicant with respect to the two surviving aspects of his complaint.
[36]
Regarding
the EX-01 complaint, she began by noting that the Applicant had filed various
appeals and proceedings regarding that matter. She then extensively quoted from
Justice Blanchard’s decision in Ayangma v. Canada (Attorney
General),
2002 FCT 707 (“Ayangma 1”), where the Applicant’s action for
damages for a breach of section 15 of the Charter was dismissed. She
also quoted from the Federal Court of Appeal’s decision in that case (Ayangma
v. Canada (Attorney
General),
2003 FCA 149). After noting that those decisions had concluded that the
Applicant had submitted no evidence to support his allegations of
discrimination under section 15 of the Charter, she observed that “it
would seem that we have res judicata on this allegation and that this
part of the complaint is not receivable, as it does not fall within the
Commission’s jurisdiction in light of the decisions of the Federal Court and
the Federal Court of Appeal concerning the impugned competition.”
[37]
Regarding
the complaint about his suspension and dismissal, the Third Investigator
reviewed the decisions of the Adjudicator, the Federal Court, and the Federal
Court of Appeal that were issued in 2006 and 2007 and concluded that none of
those decisions had examined the Applicant’s allegations of discrimination. As
a result, she proceeded to consider that aspect of the Applicant’s complaint.
[38]
After
noting that she had examined all of the documents submitted by the parties and
that she had held many discussions with the Applicant, the Third Investigator
noted that the Applicant had provided a list of five witnesses. She stated that
since none of these witnesses were involved in the decisions to audit the
Applicant’s travel claims, to suspend him, or to dismiss him, she had decided
not to interview any of them because they did not have direct knowledge of the
incidents in the complaint and the subject of the complaint.
[39]
After
then reviewing the evidence submitted by the Applicant in support of his
allegations, the Third Investigator concluded that he had not provided any
evidence that would serve to establish that his treatment by Health Canada was linked
to the grounds cited in his complaint. She further observed that although the
Applicant had represented to the Adjudicator from the PSSRB that he was the
target of a discriminatory conspiracy, he had submitted no evidence to the Adjudicator
establishing a connection between the cited grounds of discrimination and his
treatment by senior management at Health Canada. In
addition, she found that the Respondent had provided a reasonable explanation
for its actions which did not seem to be a pretext for unlawful discrimination
based on the race, colour, or national/ethnic origin of the Applicant.
[40]
Based
on the foregoing, the Third Investigator concluded by making the recommendations
discussed at paragraph 27 above.
III. Standard
of review
[41]
The questions of fact and of mixed fact and law that are at issue
in this case are reviewable on a standard of reasonableness (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51 to 55; Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, at para. 45; and Canada (Attorney
General) v. Davis, 2010 FCA 134, at para. 5). However, the questions that have been
raised with respect to jurisdiction, procedural fairness and natural justice
are reviewable on a standard of correctness (Dunsmuir, above at paras. 55,
59, 60, 79 and 87; Khosa, above, at paras. 42 to 44; and Davis, above, at
para. 6).
[42]
In Khosa, at para. 59, reasonableness was articulated by
Justice Ian Binnie as follows:
[…] Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para. 47). There might be more
than one reasonable outcome. However, as long as the process and the outcome
fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome. (Emphasis added.)
IV. Analysis
A.
Did
the Commission act outside of its jurisdiction in its handling of complaint
regarding the EX-01 competition?
[43]
The
Applicant submits that the Commission erred in law by determining that the
aspects of his complaint relating to the EX-01 competition were res judicata
and that therefore they were beyond the jurisdiction of the Commission. He
asserts that there was in fact sufficient evidence before the Third
Investigator to warrant a further inquiry by the Tribunal, and that therefore
the finding that the Commission lacked jurisdiction to review these aspects of
his complaint constituted an error of law and a failure to exercise its
legislative mandate pursuant to s. 41 of the CHRA.
[44]
I
disagree.
[45]
The
Third Investigator did not recommend that these aspects of the Applicant’s complaint
be dismissed on the ground set forth in paragraph 41(1)(c), which allows
complaints to be dismissed on the ground that they are “beyond the jurisdiction
of the commission.” Rather, after completing her screening of the
allegations and the evidence adduced by the Applicant, she recommended that
those allegations be dismissed on the ground set forth in paragraph 41(1)(d),
which allows complaints to be dismissed on the ground that they are “trivial,
frivolous, vexatious or made in bad faith.” Her explanation for making this
recommendation was that “the human rights issues raised by this allegation have
already been addressed by the Federal Court and the Federal Court of Appeal.”
[46]
In
my view, it is clear from the foregoing, which was repeated essentially
verbatim in the Commission’s decision, and from the context in which the Third
Investigator’s decision was made, that her prior observations, at paragraph 18
of her report, regarding the Commission’s jurisdiction related to its
jurisdiction under paragraph 41(1)(d), as opposed to under paragraph 41(1)(c).
[47]
I
am satisfied that her comment, in that same paragraph, that “it would seem that
we have res judicata on this allegation,” was not intended to be a
conclusion that the Commission had no jurisdiction to consider these
aspects of the complaint based on the legal principle of res judicata.
Given the Applicant’s failure to adduce any evidence in support of his claims,
which had not already been considered in the prior proceedings, the Third
Investigator was simply concluding that the complaint had become trivial,
frivolous, vexatious or made in bad faith, as contemplated by paragraph
41(1)(d). She reached that conclusion after conducting a thorough investigation.
[48]
Given
the underlying history of this aspect of the Applicant’s complaint, this was
precisely one of the findings that were open to the Third Investigator and the
Commission. As discussed at paragraphs 20 to 25 above, the Commission had
previously decided to postpone making a determination on this part of the
complaint because it wanted to wait to see whether the allegations in question
could be more appropriately dealt with in other proceedings.
[49]
When
asked, during the hearing, whether there were any issues or evidence relevant
to these aspects of his complaint that were not considered in the prior
proceedings before this Court and the Federal Court of Appeal in Ayangma
1, above, the Applicant simply replied that Justice Blanchard had
refused to admit as evidence transcripts from two prior proceedings. The first
of those proceedings was a hearing before the Tribunal that was held in 1995
and 1996. That proceeding led to a decision by the Tribunal in March 1997 (National
Capital Alliance on Race Relations v. Canada (Health and Welfare), [1997]
C.H.R.D. No. 3 (the “NCARR decision”)). Justice Blanchard refused to admit the
transcripts from that proceeding on the basis that (i) the Respondent had not
had the opportunity to cross examine on that evidence, (ii) the Applicant was
not a party to those proceedings, (iii) the specific facts of the motion then
before him were not at issue during those proceedings, and (iv) the very
competition which led to the Applicant’s complaint (the EX-01 competition) had
not yet occurred. The second proceedings involved the Applicant’s grievance in
respect of the EX-01 competition before the PSCAB. In Ayangma 1,
above, Justice Blanchard refused to admit the transcripts from that proceeding
on the basis that (i) no evidence of discrimination was led in that proceeding,
and (ii) the procedure did not afford the Respondent the opportunity to
cross-examine the Applicant.
[50]
In
a letter to the Applicant dated August 26, 2010, the Commission confirmed that
these transcripts were included in the investigation file in this matter,
although it noted that they were not before the Commission itself when it
reached the decision under review. I would add that the Applicant did not
adduce those transcripts into evidence, in the case at bar. When asked about
this during the oral hearing before me, he stated that he had the transcripts
with him and would be prepared to provide them to the Court. However, given
that counsel for the Respondent had not been provided with any prior
opportunity to review those transcripts, I ruled that those transcripts were
not admissible at that time.
[51]
Given all of the foregoing, I am satisfied that the Commission did
not err by dismissing, on the grounds set forth in paragraph 45 above, the
aspects of the Applicant’s complaint relating to the EX-01 competition. The
Commission was entitled to dismiss those allegations pursuant to paragraphs
44(3)(b)(ii) and 41(1)(d), on the basis that they had already been addressed by
this Court and by the Federal Court of Appeal in Ayangma 1, above, and
therefore had become “trivial, frivolous, vexatious or made in bad faith.”
[52]
Contrary
to the Applicant’s assertion, the Commission did not fail to exercise its
legislative mandate pursuant to s. 41 of the CHRA. It explicitly did exercise
that mandate, pursuant to paragraphs 44(3)(b)(ii) and 41(1)(d), and conducted a
full review of the substance of the Applicant’s allegations and the evidence
that he adduced. The Applicant has adduced no evidence in support of his
assertion that the record did not support this aspect of the Commission’s
decision, and that there was in fact sufficient evidence before the Third
Investigator to warrant a further inquiry by the Tribunal. When explicitly
asked during the oral hearing before this Court whether he could point to any
such evidence, he simply replied that it is typically difficult to provide
direct evidence of discrimination and that his evidence was circumstantial in
nature. Having reviewed that evidence, I am satisfied that the record does not
support his assertion that there was sufficient evidence before the Third
Investigator to warrant referring this aspect of his complaint to the Tribunal.
[53]
The
Applicant further submits that the Commission erred in dismissing, pursuant to
paragraphs 44(3)(b)(ii) and 41(1)(d), the aspects of his complaint relating to
the EX-01 competition, because it did not have the jurisdiction to revisit its
prior decisions to allow those aspects of his complaint to proceed. He asserts
that in reaching those decisions, the Commission implicitly rejected the
submissions that the Respondent has made from the outset that his allegations
with respect to the EX-01 competition should be dismissed on the basis that
they have already been addressed by this Court and by the Federal Court of
Appeal in Ayangma 1, above. He maintains that the Commission’s previous
decisions to allow these aspects of his complaint to proceed were final
decisions, and that therefore the Commission was functus officio in
respect of those issues. He adds that his position is further strengthened by
the fact that in each of its two prior decisions, the Commission had explicitly
informed the Respondent that it had the right to seek judicial review of its
prior decisions, yet the Respondent did not seek such review.
[54]
I
disagree.
[55]
As
discussed at paragraphs 20 to 22 above, the Commission decided in its first
decision involving the Applicant’s complaint that it would rule on the
allegations pertaining to the EX-01 competition. However, it also decided to
postpone making a determination on this part of the complaint until after the other
avenues of address available to the Applicant had been exhausted and a
determination could then be made as to whether the allegations had been
appropriately addressed.
[56]
As
discussed at paragraphs 23 to 25 above, in its second decision, after those
other avenues of address had been exhausted, the Commission then decided that
it would proceed to make a determination on these allegations, after having
received the parties’ submissions and evidence in respect of the factors that
the Second Investigator had identified as being relevant to a decision under
paragraph 41(1)(b).
[57]
Contrary
to the Applicant’s assertion, the Commission did not at any time prior to the
decision under review make any determination regarding the merits of these
allegations. Its first two decisions were simply procedural in nature, and
served to allow these aspects of the complaint to proceed on the basis that
they had been filed within the applicable one-year time limit and seemed to
have merit and to be clearly based on certain grounds. This explains why the
Third Investigator refused to accept the Respondent’s position that she should
not investigate these allegations because they had already been dealt with
elsewhere. As explained at paragraph 12 of her Report, she decided to proceed
with her investigation of these allegations because the prior proceedings had
never been analyzed by the Commission.
[58]
Accordingly,
the Applicant’s position that the Commission had already made a determination
with respect to the merits of his allegations relating to the EX-01 competition
is without merit. There was no such prior decision in respect of which the
Commission had become functus officio.
B.
Did
the Commission err in concluding that the complaint regarding the EX-01
competition had already been addressed by the Federal Court and the Federal
Court of Appeal?
[59]
The
Applicant submits that the Commission erred in failing to refer his allegations
regarding the EX-01 complaint to the Tribunal, because there was sufficient
evidence before the Third Investigator to warrant a further inquiry by the
Tribunal. This is a question of mixed fact and law in respect of which
considerable deference must be accorded to the Commission’s decision (Davis, above, at
para. 5).
[60]
The
Applicant maintains that the fact that Justice Blanchard rejected, in Ayangma
1, above, his claim that his rights under s. 15 of the Charter had
been breached did not provide a sufficient basis for the Commission to rely
largely on the findings in that case in deciding not to refer his allegations
to the Tribunal.
[61]
Subsection
15(1) of the Charter provides as follows:
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Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age, or mental or physical disability.
|
La loi ne fait acception de personne et
s'applique également à tous, et tous ont droit à la même protection et au
même bénéfice de la loi, indépendamment de toute discrimination, notamment
des discriminations fondées sur la race, l'origine nationale ou ethnique, la
couleur, la religion, le sexe, l'âge ou les déficiences mentales ou
physiques.
|
[62]
In
Ayangma 1, above, at para. 76, after reviewing the jurisprudence
regarding the meaning of discrimination under subsection 15(1), Justice Blanchard
reached the following conclusion:
In this
case, the plaintiff has not provided any factual basis to found a claim of
discrimination. It is therefore not necessary to conduct a comprehensive
assessment of the three broad inquiries set out in Law, supra. The
plaintiff did not establish a differential treatment in the impugned staffing
process that discriminated against him in a substantive sense. The plaintiff
did not obtain the position he applied for because he did not have the
necessary qualifications, not because he was a member of a visible minority.
The Public Service Appeal Board rejected his claim of discrimination and the
plaintiff's application for judicial review of the Appeal Board decision was
discontinued. It is no longer open to the plaintiff to allege discrimination. I
can find no evidence on the record before me and no factual basis for his claim
of discrimination.
[63]
On
appeal, the Federal Court of Appeal in Ayangma 1, above, at para. 33,
reached the following conclusion in respect of the Applicant’s Charter
claims:
The
motions judge did not err when he concluded that the appellant had no provided
any factual basis to found a claim of discrimination under section 15 of the Charter.
The long extracts of the decision of the PSE Appeal Board cited by the
appellant in his memorandum at paragraphs 93 and 94, relate to the selection
process. They do not establish discrimination. The Appeal Board found as a fact
that the appellant did not meet the qualifications for the position.
[64]
The
Applicant’s complaint to the Commission was based on Sections 7 and 10 of the CHRA,
which state as follows:
|
7. It is a
discriminatory practice, directly or indirectly,
(a) to refuse
to employ or continue to employ any individual, or
(b) in the
course of employment, to differentiate adversely in relation to an employee,
on a
prohibited ground of discrimination.
1976-77, c.
33, s. 7.
…
10. It is a
discriminatory practice for an employer, employee organization or employer
organization
(a) to
establish or pursue a policy or practice, or
(b) to enter
into an agreement affecting recruitment, referral, hiring, promotion,
training, apprenticeship, transfer or any other matter relating to employment
or prospective employment,
that deprives
or tends to deprive an individual or class of individuals of any employment
opportunities on a prohibited ground of discrimination.
R.S., 1985, c.
H-6, s. 10; 1998, c. 9, s. 13(E).
|
7.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite, le fait, par des moyens directs ou indirects :
a)
de refuser d’employer ou de continuer d’employer un individu;
b)
de le défavoriser en cours d’emploi.
1976-77,
ch. 33, art. 7; 1980-81-82-83, ch. 143, art. 3.
…
10.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite et s’il est susceptible d’annihiler les chances d’emploi ou
d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour
l’employeur, l’association patronale ou l’organisation syndicale :
a)
de fixer ou d’appliquer des lignes de conduite;
b)
de conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
L.R. (1985),
ch. H-6, art. 10; 1998, ch. 9, art. 13(A).
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[65]
A
discriminatory practice is defined in subsection 3(1) of the CHRA, as follows:
|
3. (1) For all purposes of
this Act, the prohibited grounds of discrimination are race, national or
ethnic origin, colour, religion, age, sex, sexual orientation, marital
status, family status, disability and conviction for which a pardon has been
granted.
|
3. (1) Pour l’application de la présente loi, les motifs de
distinction illicite sont ceux qui sont fondés sur la race, l’origine
nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation
sexuelle, l’état matrimonial, la situation de famille, l’état de personne
graciée ou la déficience.
|
[66]
As
is evident from the foregoing, the types of discrimination alleged by the
Applicant, namely, discrimination based on his race, colour and national or
ethnic origin (including his culture) are addressed in both s. 15 of the Charter
and ss. 3, 7 and 10 of the CHRA. The Applicant did not allege in his complaint
before the Commission a type of discrimination that was not considered and
addressed in the decisions by this Court and the Federal Court of Appeal in Ayangma
1, above.
[67]
The
only relevant evidence that the Applicant was able to identify that was not
considered by Justice Blanchard were the transcripts from the NCARR and PSCAB
hearings, discussed in part IV. A. of these reasons, above. Significantly, he
was unable to identify any relevant issues that were not addressed by Justice
Blanchard. In my view, in these circumstances, it was reasonably open for the
Commission to decide not to refer the Applicant’s allegations regarding the EX-01
complaint to the Tribunal. In these circumstances, the Commission’s decision
not to refer those allegations to the Tribunal was well “within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para. 47). The Commission’s decision was also
appropriately justified, transparent and intelligible.
[68]
In
addition, in these circumstances, the jurisprudence cited by the Applicant with
respect to parallel proceedings under the Charter and the CHRA does not
assist the Applicant. The Commission did not decide to refrain from referring
the Applicant’s allegations to the Tribunal because it believed that it was precluded
from doing so simply because those same allegations had been already
addressed. In fact, it decided to investigate those allegations after
implicitly rejecting the Respondent’s position that those allegations had
already been addressed before this Court and therefore ought not to be
addressed again. However, after the Third Investigator then conducted her
investigation and made her recommendation that the allegations not be referred
to the Tribunal, the Commission adopted her recommendation. It bears
underscoring that this recommendation was made after the Third Investigator’s thorough
review of the evidentiary record and after she had reached the conclusion that
the allegations had become “trivial, frivolous, vexatious or made in bad
faith”, as contemplated by paragraph 41(1)(d) of the CHRA.
[69]
The
Applicant submits that his position is supported by the decisions in Perera
v. Canada, [1997] F.C.J. No. 199 (T.D.) and Ayangma v. Prince Edward
Island Eastern School Board, 2000 PESCAD 12. Those decisions are
distinguishable on the basis that they involved motions to strike a Charter
claim, which is different from the case at bar, which involves the Commission’s
assessment of whether a matter which had already been the subject of
proceedings under the Charter should be dismissed on the basis that the
complaint had become trivial, frivolous, vexatious or made in bad faith.
Similarly, Ayangma v. Eastern School Board, 2009 PESC 20 is
distinguishable on the basis that it involved an (unsuccessful) attempt to
obtain summary judgment on a Charter claim, based on the fact that a
finding of discrimination had already been made in respect of a similar
complaint that the Applicant had filed under the Human Rights
Act, R.S.P.E.I. 1988, c. H-12.
[70]
In
the absence of any evidentiary foundation for the Applicant’s claims under the
CHRA, the jurisprudence cited by him with respect to processes that have been
found to be flawed also does not assist him. In short, notwithstanding that Ms.
Charron’s appointment to the EX-01 position was not revoked after it was
decided to hold a new competition for that position, the fact remained that the
Applicant did not establish any link between the decision to keep her in that
position and his allegations under the CHRA.
C.
Did
the Commission err in failing to investigate the complaints regarding the EX-02
competition, the PM-05 competition and related matters?
[71]
The
Applicant alleges that the Commission erred in failing to investigate the
aspects of his complaint regarding the EX-02 competition, the PM-05 competition
and related matters. He further submits that the Commission erred in law in
accepting the Third Investigator’s findings that the aspects of the Applicant’s
complaint which dealt with these matters had been submitted beyond the
applicable one-year time limit. The related matters included the Applicant’s
allegations with respect to the reclassification of his PM-04 position to a
PM-05 position, the selection process to fill the PM-05 position, the
appointment of Agatha Hopkins to the PM-05 position through an interchange
agreement and the cancellation of the competition for the PM-05 position.
[72]
I
disagree.
[73]
The
conclusive determinations and findings made in respect of all of these matters
were made in the Commission’s decision dated November 17, 2004 and in the
report of the First Investigator, dated September 2, 2004.
[74]
As
noted at paragraph 21 above, the First Investigator recommended that the
Commission rule on the allegations that the Respondent submitted had been made
beyond the applicable one-year time period. In making this recommendation, the
First Investigator stated that “the complainant did not provide any valid
explanation for his delay in contacting the Commission.” This recommendation
was adopted by the Commission in its first decision, dated November 17, 2004.
[75]
The
Second Investigator and the Third Investigator simply confirmed that these
prior findings and decisions had been made. It is for this reason that the decision
under review, made on December 23, 2009, did not address any of these matters.
[76]
In
short, in the initial background section of the Second Investigator’s report,
it was observed that the Applicant had been informed, in the Commission’s first
decision, that the allegations he had made with respect to matters other than
the EX-01 competition “could not be accepted because [he] had not provided
adequate justification for the late filing of his complaint.”
[77]
In
the background section of the Third Investigator’s report, at paragraph 7, it
was observed that the initial decision of the Commission had not clearly
identified which allegations the Commission considered to have been filed late.
In this regard, the principal uncertainty appears to have been with respect to
whether the allegations concerning the internal audit of the Applicant’s travel
expenses, and his subsequent suspension and dismissal, had been made on time.
The Third Investigator clarified that a thorough examination of the complaint
form and the other documents in the file indicated that:
i. the allegations
with respect to these three matters as well as the EX-01 competition had been
made on time; however,
ii. the
Commission had previously determined that it would not rule on the allegations
that had been made with respect to the EX-02 competition, the PM-05 competition
and related matters, because those aspects of the complaint had been filed
beyond the applicable one-year time limit and the Applicant had not provided a
valid explanation for his lateness.
[78]
The
Third Investigator therefore observed that the allegations involving the EX-02
competition, the PM-05 competition, and related matters, would not be examined
by her.
[79]
Based
on the foregoing record, it is abundantly clear that the conclusive
determinations and findings made in respect of all of these allegations were
made in the Commission’s decision dated November 17, 2004 and in the report of
the First Investigator, dated September 2, 2004. The Applicant was explicitly
informed in that decision of the Commission that he could seek judicial review
in respect of that decision. He failed to do so. It is no longer open to him to
seek such review in respect of these allegations. They were not part of the
decision made in the Commission’s decision dated December 23, 2009.
[80]
Given
that the Commission had already decided, in its decision dated November 17,
2004, not to rule on these allegations, it was not an error for the Commission
to fail to rule on those allegations in its decision dated December 23, 2009
and it was not an error for the Third Investigator to fail to investigate those
allegations in her report dated September 30, 2009. The Commission also did not
err in accepting the clarification provided by the Third Investigator with
respect to which allegations had previously been determined to have been made
too late and which allegations remained to be ruled upon. That clarification
was entirely reasonable and, indeed, correct.
D.
Did
the Commission err in failing to refer to the Tribunal the Applicant’s
allegations regarding the investigation into his travel claims, his suspension
and his dismissal?
[81]
The
Applicant submits that the Commission dismissed these allegations on the basis
of the findings of the Adjudicator. He further submits that the Third
Investigator “completely ignored new evidence that was before her,” including
evidence that was not disclosed to the Applicant until after the Adjudicator’s
decision was made on May 29, 2006.
[82]
I
disagree.
[83]
There
is no question that the Adjudicator’s focus was on whether the Applicant had
submitted fraudulent travel claims, rather than on issues related to
discrimination. It is for this reason that the Adjudicator refused to admit
evidence that related solely to the Applicant’s human rights complaint.
[84]
However,
the Adjudicator did review evidence pertaining to the Applicant’s allegation
that certain senior managers at Health Canada had engaged
in a conspiracy against him, insofar as that evidence was relevant to the issue
of his suspension and his termination.
[85]
Accordingly,
the Adjudicator’s findings were relevant to the Third Investigator’s review for
two reasons. First, they had a bearing on whether the Respondent had a
reasonable explanation for initiating the review of his travel claims, and then
suspending and terminating him. Second, they had a bearing on the Applicant’s
claim that the alleged conspiracy formed part of the circumstantial evidence
that he had been the subject of unlawful discrimination.
[86]
In
addition to reviewing the Adjudicator’s findings, the Third Investigator also
reviewed three volumes of information that the Applicant sent to her on August
3, 2009, after she invited him to provide her with documents and other evidence
in support of his allegations. At paragraph 33 of her report, the Third
Investigator stated: “A thorough review of this documentation indicates that,
while it does confirm that the complainant had his travel claims audited, it
establishes no connection between his race, colour and national or ethnic
origin and his treatment by the respondent.” This conclusion was consistent
with a prior, more general, observation made at paragraph 31 of her report,
where she observed that the Applicant had “submitted no evidence in support of
his allegation.”
[87]
Ultimately,
the Third Investigator stated her formal finding that “[a] thorough review of
the evidence submitted for the complainant in support of his allegations
indicates that there is no evidence that would serve to conclude that his
treatment by the respondent was linked to the grounds cited in his complaint.” She
also formally found that the Respondent had provided a reasonable explanation
for its actions. In this regard, she noted that the Adjudicator had determined
that the Applicant had made false travel claims totalling $19,586.26 and that
he had concluded that the Respondent had just cause to suspend and then
terminate the Applicant. She further noted that the Applicant’s application for
judicial review of the Adjudicator’s decision had been rejected by Justice
Phelan, who observed that none of the Applicant’s allegations concerning his
superiors and the Adjudicator “had any basis whatsoever” and that the
“Applicant never substantially challenged the employer’s evidence of
falsification of travel claims” (Ayangma v. Canada (Treasury Board),
2007 FC 780, at paras. 3 and 33).
[88]
Based
on my review of the Third Investigator’s report and the evidence filed in this
proceeding, I am satisfied that this finding was reasonably open to the Third
Investigator.
[89]
In
my view, it was not unreasonable for the Commission to accept her
recommendation to dismiss the aspects of the Applicant’s complaint dealing with
the investigation into his travel claims, his suspension and his dismissal, on
the basis that further inquiry into those matters was not warranted, having
regard to the circumstances of the complaint, as contemplated by paragraph
44(3)(b)(i).
[90]
The
Applicant has not identified any evidence that he was discriminated by reason
of his race, colour, national or ethnic origin, in connection with the
investigation into his travel claims, his suspension and his dismissal. On the
contrary, the evidence demonstrates that the Respondent had a reasonable explanation
for investigating the Applicant’s travel claims, suspending him without pay
and, ultimately, terminating him.
[91]
Having
regard to the foregoing, the Commission’s decision to dismiss these aspects of
the Applicant’s complaint pursuant to paragraph 44(3)(b)(i) of the CHRA was
well “within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above). The Commission’s decision was also appropriately
justified, transparent and intelligible.
E.
Did
the Commission breach the principles of procedural fairness and natural justice
by failing to conduct a thorough, fair and neutral investigation and analysis
of his various complaints?
[92]
The
Applicant submits that the investigation conducted by the Third Investigator
lacked thoroughness, fairness and neutrality.
[93]
In
support of this submission, the Applicant submits that the Third Investigator
failed to:
i.
interview
any of the five witnesses he had identified to her;
ii.
consider
that the discriminatory conduct that he had identified was of an ongoing and
systematic nature and involved other visible minorities, as had previously been
determined in the Tribunal’s NCARR decision;
iii.
consider
new evidence presented to her, including evidence relating to the outcome of
the criminal investigation that had been initiated in respect of the
allegations that he had engaged in fraud; and
iv.
give due
consideration to the First Investigator’s determination regarding which
allegations ought to be ruled upon.
[94]
I
disagree.
[95]
A
judicial review of the Commission’s procedure must recognize that the
Commission is master of its own process and must be afforded considerable
latitude in the way it conducts its investigations (Tahmourpour v. Canada (Solicitor
General),
2005 FCA 113, at para. 39).
[96]
As
to the five witnesses that he had identified, the Third Investigator stated, at
paragraph 25 of her report:
After studying all the documents submitted by the complainant and
the decision of the Public Service Staff Relations Board adjudicator, the
investigator determined that none of these witnesses was involved in the
decision to audit his travel claims or the decision to suspend and dismiss him.
It also appears that none of these persons was involved in the audit or in the
decisions that followed from it. Hence they seem to have no direct knowledge of
the incidents that are described in the complaint and are the subject of the
present investigation. Therefore, they will not be questioned for the purposes
of the investigation.
[97]
The
Third Investigator’s obligation to conduct a thorough investigation did not
require her to interview witnesses who a reasonable person would expect would
not be in a position to provide evidence useful to her investigation (Tinney
v. Canada (Attorney General), 2010 FC 605, at para. 28; Miller v. Canadian
Human Rights Commission (1996), 112 F.T.R. 195, at para. 10; Egan v.
Canada (Attorney General), 2008 FC 649, at paras. 17 and 24). However, she
had an obligation to explain why she did not interview witnesses identified by
the Applicant.
[98]
In
my view, she fulfilled that obligation in the passage quoted above from her
report and her reasons for declining to interview the five witnesses were
justified and sufficient. For the reasons that she articulated, I am satisfied
that a reasonable person would not have expected any of the five witnesses to
be in a position to provide evidence useful for her investigation, particularly
given (i) the extensive documentary and other evidence that she reviewed, (ii) the
fact that she had “many discussions” with the Applicant, (iii) the Adjudicator
had previously determined that the Applicant had submitted fraudulent travel
claims over a significant period of time totalling $19,586.26, and (iv) the
Applicant “never substantially challenged the [Respondent’s] evidence of
falsification of travel claims” (Ayangma v. Canada (Treasury Board),
2007 FC 780, at para. 33). Those witnesses were not involved in the events
forming the subject matter of the complaints and therefore could not reasonably
be expected to have helpful knowledge and information in respect of the issues
in question.
[99]
The
Applicant asserted that one of the witnesses, Mr. Peter MacGregor, his former
immediate supervisor, was particularly well positioned to provide relevant
information to the Third Investigator, as he had been responsible for approving
the Applicant’s travel expense claims prior to the arrival of Ms. Hopkins.
However, the Applicant provided no evidence which might indicate that Mr.
MacGregor was in any way involved with the decisions to audit his travel claims,
to suspend him without pay or to ultimately dismiss him. Given all of the
circumstances described above, I am satisfied that a reasonable person would
not expect Mr. MacGregor to be able to provide information that might (i) be
useful for the purposes of the Third Investigator’s investigation, (ii) help to
address a significant finding of the investigator, or (iii) help to resolve a
controversial and important fact (Busch v. Canada (Attorney General),
2008 FC 1211, at para. 15).
[100] As to the
Applicant’s submission that the Third Investigator failed to consider that the
discriminatory conduct that he had identified was of an ongoing and systematic
nature and involved other visible minorities, as had previously been determined
in NCARR, above, he has consistently been unable to identify any evidence
whatsoever in support of this submission. Indeed, Justice Blanchard found that
the Applicant had failed to establish a breach of the order that was issued in
NCARR, on any of the grounds submitted by him. (Ayangma 1, above, at
para. 55).
[101] Accordingly,
I am satisfied that the Third Investigator did not fail to consider any
relevant information in this regard. At paragraph 31 of her report, the Third
Investigator explicitly acknowledged the Applicant’s allegations that he had
been subjected to discriminatory treatment since the time he was hired by the
respondent and that he was the target of a conspiracy by certain senior
managers at Health Canada. This demonstrates that she was well aware of
those allegations. However, she then stated, after thoroughly reviewing the
documents and other evidence submitted by the Applicant, that she was unable to
find any evidence that would support his allegations.
[102] With respect
to the Applicant’s claim that the Third Investigator failed to consider new
evidence presented to her, this has already been addressed at paragraphs 82 to
88 above. As to the specific evidence relating to the outcome of the criminal
investigation that had been initiated in respect of the allegations that he had
engaged in fraud, I am satisfied that this was not sufficiently relevant or
important to warrant explicit mention in the Third Investigator’s report.
Particularly given the findings of the Adjudicator, discussed above at
paragraph 87, the fact that a criminal investigation into the Applicant’s
conduct in respect of his travel claims had been closed could hardly be considered
to be significant evidence that the Respondent did not have a reasonable
explanation for initiating its internal investigation, suspending the Applicant
and ultimately terminating him.
[103] Finally, the
Applicant’s claim that the Third Investigator failed to give due consideration
to the First Investigator’s findings and recommendations regarding which
aspects of his complaint ought to be ruled upon is without merit. For the reasons
provided at paragraphs 73 to 80 above, I am satisfied that the Third Investigator’s
treatment of those findings and recommendations by the First Investigator were
entirely appropriate.
[104] In summary, based
on the evidence filed by the Applicant in the case at bar, I am unable to find
any basis upon which to conclude that the Third Investigator failed to consider
any evidence, let alone obviously crucial evidence (Tahmourpour, above; Egan,
above, at para. 6), in support of his claims.
[105] The
principle of neutrality requires that the Commission and the investigator upon
whose report the Commission relies not be affected by bias and that it maintain
an open mind (Vos v. Canadian National Railway, 2010 FC 713, at para.
44). The Applicant has not adduced any persuasive evidence that the Commission
and the Third Investigator were biased or did not maintain an open mind in
their review and consideration of his complaints.
[106] Based on the
foregoing, I am satisfied that the Commission did not breach the principles of
procedural fairness or natural justice in any of the ways alleged by the Applicant.
I am satisfied that the Third Investigator’s report, upon which the Commission
relied in reaching the decision under review, was neutral and thorough. In
addition, I am also satisfied that the Applicant was given a fair appropriate
opportunity to respond to that Report, when it was sent to him on September 30,
2009 (Davis, above, at
para. 6). The Applicant then provided his response on October 6, 2009.
V. Conclusion
[107] The application
for judicial review is dismissed with costs to the Respondent. The Applicant’s
request for an Order that the security in the amount of $4,500 that he has
deposited with this Court be paid out of court and returned to him forthwith is
rejected.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review
is dismissed with costs to the Respondent.
“Paul
S. Crampton”
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