Date: 20100317
Docket: T-805-09
Citation: 2010 FC 307
Ottawa, Ontario, March 17, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
LI
MIN WU
Applicant
and
THE
ROYAL BANK OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision by the Canadian Human Rights Commission (Commission) dated April 21,
2009 dismissing the applicant’s human rights complaint pursuant to paragraph 44(3)(b)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) because
her employment was terminated for non-discriminatory reasons.
FACTS
Background
[2]
The
applicant commenced employment with the respondent, the Royal Bank of Canada, on April 29, 2005, as a Customer
Care Agent and
was terminated on July 12, 2006, for “misappropriation of funds” or “kiting”.
[3]
The
applicant first filed a complaint against the Royal Bank for unjust dismissal
before an adjudicator appointed under the Canada Labour Code. The complaint was
dismissed by the adjudicator and the applicant filed an application for
judicial review of that decision before this Court.
[4]
On
September 18, 2009, Justice O’Keefe of this Court in 45 pages of Reasons for
Judgment and Judgment in Li
Min (“Amanda”) Wu v. Royal Bank of Canada, 2009 FC 933, set out the detailed allegations
and facts involving the applicant’s “kiting” and “misappropriation of funds”
and held at paragraph 128:
¶128 I am obliged to give
deference to the adjudicator’s finding of fact and credibility. He concluded
that the applicant was dishonest and knew that the transactions were against
the Code of Conduct and against her Visa agreement, particularly the 2005
agreement. He also concluded that she would have known that her transactions
exceeded the buffer zone allowed credit card holders over the credit limits
proscribed. I also find the adjudicator’s findings on kiting and
misappropriation as having been encompassed by the Code of Conduct as
reasonable.
[5]
Accordingly,
the adjudicator found that the applicant was “dishonest”, knew that the
transactions were against the Royal Bank’s Code of Conduct, knew that her
transactions exceeded the buffer zone allowed credit card holders and was over
the credit limits prescribed, and knew that she was “kiting” and “misappropriating”
contrary to the Royal Bank of Canada’s Code of Conduct. Justice
O’Keefe upheld these findings by the adjudicator as reasonably open to the
adjudicator.
[6]
However,
Justice O’Keefe allowed this application for judicial review because the
adjudicator did not consider whether the dismissal of the applicant was
proportional to the applicant’s conduct. (This decision is currently under
appeal.)
[7]
The
applicant also filed a complaint before the Canadian Human Rights Commission on
July 10, 2007 alleging differential treatment based on her race (Chinese). The
applicant alleged that the Royal Bank investigator, Mr. Bob Montgomery, paid undue
attention to her Chinese background throughout the investigative process. The
applicant cited three Canada Labour Code adjudication cases where Royal Bank
employees were treated differently:
1. Diana
Lavalee, dismissed in 1987 for kiting, was offered the opportunity to resign
before her dismissal for cause;
2. In the case
of M. v. Royal Bank of Canada, [2000] C.L.A.D. No.
149, Ms. M. was dismissed several months after she was first issued a warning
letter for “kiting”;
3. In the case
of Cowan v. Royal Bank of Canada, [2003] C.L.A.D. No. 292, Ms. Rae Cowan
was offered an opportunity to make explanations to the Royal Bank human resources
before she was dismissed.
The applicant alleges that, compared to the
above mentioned employees, she was summarily dismissed.
[8]
On October
17, 2007, the Royal Bank unsuccessfully objected to the Commission dealing with
the complaint under sections 41(1)(a) and (b) of the Act. On February 11, 2008,
the Commission dismissed the objection and accepted the complaint for the
following reasons:
1. the grievance or review procedures are
not reasonably available to the complainant; and
2. the complaint is not one that could
more appropriately be dealt with, initially or completely, according to a
procedure provided for under an Act of Parliament other than the CHRA.
[9]
The
Commission proceeded to appoint an investigator to investigate the complaint.
Decision under Review
[10]
The
Canadian Human Rights Commission’s investigator determined on January 14, 2009 that
the evidence established that the Royal Bank of Canada considered the
applicant’s conduct to fall within the definition of “kiting” and
“misappropriation of funds” and was, under the Royal Bank of Canada’s Code of
Conduct, grounds for immediate dismissal. The Commission dismissed the
applicant’s human rights complaint and accordingly adopted the investigation
report as its reasons: Gardner v. Canada (Attorney General), 2005 FCA 284, per Justice
Pelletier at paragraph 23.
[11]
The
investigator used the Black’s Law Dictionary definition of “kiting” at
paragraph 22 of the investigative report:
The
wrongful practice of taking advantage of the float, the time that elapses
between the deposit of a cheque in one bank and its collection at another.
Method of drawing cheques against deposits which have not yet been cleared
through the banks. ‘Kiting’ consists of writing cheques against a bank account
where funds are insufficient to cover them, hoping that before they are
presented the necessary funds will be deposited.
[12]
The
investigator accepted Mr. Montgomery’s description of the applicant’s
misappropriation activities at paragraph 10 of the investigative report:
It seems that she [the applicant] was
advancing large funds from her VISA (which has a rate of 1.9% interest) to pay
her [sic] down her line or make purchases through Action Direct. She cash
advances her VISA to pay the line. The funds go in circles through her accounts
to save interest. The rate of her VISA is particularly low for a staff VISA
account.
At paragraph 24 the details of rotating funds was described:
During the course of Ms. Wu’s employment
she received a visa card with a limit of $29,500 with a special introductory
interest rate of 1.9%. On May 29, 2006, Ms. Wu wrote three visa cheques in the
amount of $28, 000, $29,000 and another for $29,000 which she deposited into
her RBC payroll account. The following day she transferred $60,000 from her RBC
payroll account to her Royal Credit Line. On May 31, 2006, she transferred
$94,000 from her RBC payroll account to her visa account. On May 31, 2006, the
visa cheques cleared. A review of the documents show that commencing in March
2006, the same activity is repeated for a total of $716,300 flowing through her
visa account. It would appear that the purpose of these transactions was to
take advantage of the 4 to 7 days it took for the cheques to clear the system
and be posted to her visa account. Each cheque she wrote was slightly below the
authorized limit, the total was well above her available limit.
[13]
The
investigator found that the applicant was aware of and understood the Code of
Conduct and understood that the Royal Bank considered misappropriation and “kiting”
to be immediate grounds for dismissal. The investigator also found that the
applicant had not been treated any differently by the Royal Bank than other
employees of the Royal Bank who had been investigated and found to have
misappropriated funds or were found to have been “kiting”. Every Royal Bank
employee who was caught misappropriating funds or “kiting” was consistently
dismissed for cause.
[14]
The
investigator held that the evidence does not support Ms. Wu’s allegation of
dismissal because of her race and national or ethnic origin.
[15]
The
investigator therefore recommended that that the applicant’s complaint be
dismissed pursuant to section 44(3)(b) of the Act because her employment was
terminated for non-discriminatory reasons. The Commission accepted the
investigator’s recommendation and dismissed the complaint on April 21, 2009.
LEGISLATION
[16]
Paragraph
44(3)(b) of the Act allows the Commission to dismiss
a human rights complaint upon receipt of the investigator’s report:
|
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).
|
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).
|
[17]
Paragraph 41(1)(e) of the Act allows the Commission to decline to
deal with human rights complaints pursuant to certain grounds, one of which
is a lack of jurisdiction:
|
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
…
(c) the
complaint is beyond the jurisdiction of the Commission;
…
|
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 :
…
c) la plainte
n’est pas de sa compétence;
…
|
A finding that the applicant’s employment
was terminated for non-discriminatory reasons deprives the Commission of
jurisdiction as the complaint itself has no basis.
ISSUES
[18]
The
applicant raises a significant number of issues which can be distilled into the
following three questions:
1.
does the
applicant’s record contain inadmissible evidence in this stage of the
proceedings?
2.
did the
Commission breach the applicant’s right to procedural fairness?
3.
did the
Commission reasonably dismiss the applicant’s human rights complaint pursuant
to paragraph 44(3)(b) of the Act?
STANDARD OF
REVIEW
[19]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62
that the first step in conducting a standard of review analysis is to
“ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of (deference) to be accorded with
regard to a particular category of question”: see also Khosa v. Canada (MCI), 2009 SCC 12, per Justice Binnie at para. 53.
[20]
The
standard of review of a decision pursuant to paragraph 44(3)(b) of the Act
where the Commission decides not to refer a complaint to the Human Rights
Tribunal, and instead dismisses it, is reasonableness: National
Research Council of Canada v. Ming Zhou, 2009 FC 164, per Justice Phelan at
paragraphs 11-15; Yuri Boiko v. Chander Grover, 2009 FC 1291, per
Justice Tremblay-Lamer at paragraph 18. Questions of procedural fairness are
reviewable on a standard of correctness: Yuri Boiko, supra, at
paragraph 18.
[21]
In
reviewing the Commission’s decision using a standard of reasonableness, the
Court will consider "the existence of justification, transparency and
intelligibility within the decision-making process" and "whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
para. 47; Khosa, supra, at para. 59.
ANALYSIS
[22]
At
the outset the Court has before it the decision of Justice O’Keefe in Wu,
supra. This case was heard on March 17, 2009 and decided on September
18, 2009. Mr. Justice O’Keefe allowed the application on the basis that the
adjudicator failed to conduct a proportionality analysis. However, the Court
upheld, as reasonable, the adjudicator’s findings of “misappropriation of
funds”, “kiting”, and “dishonesty” on the part of Ms. Wu.
[23]
The issues
before this Court in this application for judicial review arise from a human
rights complaint by the applicant in which she alleged a differential treatment
based on race. However, in reviewing the Commission’s decision, this Court
is guided by Justice O’Keefe determination in Wu, supra, at
paragraphs 128-129, where he found that the adjudicator reasonably found that
the applicant was dismissed for cause, based on her fund misappropriation or “kiting”
activities. There was no allegation of racial discrimination raised by Mrs. Wu
in the adjudication.
Issue No. 1: Does the applicant’s
record contain inadmissible evidence in this stage of the proceedings?
[24]
The
respondent, the Royal Bank, objects to the applicant’s affidavit and related
exhibits and submits that this Court ought to strike it in its entirety.
Alternatively, the respondent submits that paragraphs 2 through 33, 37, 38, 40,
41 and 42 through 59, and exhibit A to H, J and K should be struck as they
contain expressions of personal opinion, speculation or argument, and attempt
to present evidence that was not before the Commission.
[25]
It
is trite law that evidence that was not before the tribunal cannot be
introduced at the judicial review level unless it goes to procedural fairness: McNabb
v. Canada Post Corp., 2006 FC 1130, per Justice Heneghan at paragraph 51.
[26]
Paragraphs
2 through 20 of the applicant’s affidavit describe the dealings between the
Royal Bank and the applicant when she was just a client, and the purposes of
each and every account and the credit line she held and activities she
undertook when using them. This new evidence was not before the investigator,
and as such it is not admissible.
[27]
In
paragraphs 24 and 25 the applicant accuses the Royal Bank investigator of
having manufactured an artificial debt owed by the applicant to the bank. This
is a new allegation that was not before the investigator and, as such, it is
not admissible.
[28]
The
Court is of the view that the remaining paragraphs are admissible as new
evidence with respect to procedural fairness. The applicant dedicates the
rest of her affidavit to disputing the adequacy of the investigator’s
investigation. She is entitled to do so.
Issue No. 2: Did the Commission breach
the applicant’s right to procedural fairness?
[29]
The
applicant submits that the investigator erred by failing to conduct a neutral
and thorough investigation: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574
(T.D.), affirmed (1996), 205 N.R. 383
(F.C.A.), per Justice Nadon (as he then was) at paragraph 49. The
applicant points towards the following investigatory omissions:
1. the investigator
failed to interview four (4) key witnesses, including Mr. Montgomery;
2. the investigator
failed to adequately interview Ms. Echo Wang;
3. the investigator
failed to appreciate the differential treatment between the applicant’s case
and the cases of Diana Lavalee, M. v. Royal Bank of Canada, and Cowan
v. Royal Bank of Canada;
4. the
investigator failed to follow the Commission’s policy on interviews regarding the
right to counsel and right to leave the interview at any time; and
5. the
investigator was biased against the applicant.
[30]
In
Murray v. Canada (Canadian
Human Rights Commission), 2002 FCT 699, I set out at paragraph 24 the
contents of the duty of fairness owed by the Commission to a human rights
complainant:
¶24 The principles of
natural justice and the duty of procedural fairness with respect to an
investigation and consequent decision of the Commission, are to give the
complainant the investigator's report and provide the complainant with a full
opportunity to respond, and to consider that response before the Commission
decides. The investigator is not obliged to interview each and every witness
that the applicant would have liked, nor is the investigator obliged to
address each and every alleged incident of discrimination which the applicant
would have liked. In this case, the applicant had the opportunity to respond to
the investigator's report and to address any gaps left by the investigator or
bring any important missing witness to the intention of the investigator.
However, the investigator and the Commission must control the investigation and
this Court will only set aside on judicial review an investigation and
decision where the investigation and decision are clearly deficient. See Slattery,
supra, per Nadon J. (as he then was) and at the Federal Court of Appeal
per Hugessen J.A. (as he then was). [Emphasis added]
[31]
The
investigator intended to interview Mr. Montgomery, but he in turn refused to be
interviewed by the investigator without the presence of legal counsel. The
investigator did not reschedule a new interview in time to accommodate the
presence of legal counsel. This decision cannot be said to have rendered the entire
investigation deficient.
[32]
The
applicant urged the investigator to interview Mr. Montgomery in order to
establish his undue focus on her Chinese race. The applicant may sincerely
believe that Mr. Montgomery treated her differentially based on her race but
the evidence reveals no such focus. Mr. Montgomery confirmed with the applicant
that her signature was in Chinese. The only other instance of the applicant’s
race coming into play was the applicant’s outburst where she indicated a desire
to return to China.
[33]
The
investigator considered the cases of Diana Lavalee, M. v. Royal Bank of Canada, and Cowan
v. Royal Bank of Canada and noted that there was no mention of the employees’
race in any of the cases. Contrary to the applicant’s submission, the
investigator compared those cases to the applicant’s and concluded that the
Royal Bank has consistently dismissed employees who engaged in misappropriation
or “kiting.”
[34]
The
applicant alleged that the investigator failed to follow the Commission’s
policy on interviews. Suffice to say that this Court has held on many occasions
that administrative tribunals, such as the Commission, are masters of their
procedure and a minor variance from a policy at the fact-gathering stage of a
human rights proceeding will not breach procedural fairness: Royal Bank of Canada
v. Bhagwat, 2009 FC 1067, per Justice Barnes at paragraphs 9-15.
[35]
With
respect to the adequacy of the reasons, it is sufficient to say that in the case
at bar the investigator addressed the applicant's complaint of racial
discrimination in a comprehensive manner. The investigator adequately explained
that the applicant’s complaint should be dismissed because the reason for her
termination related to her misappropriation or “kiting” activities, and
furthermore there was no evidence that the applicant was treated inconsistently
because of her racial background compared with previous employees who engaged in
such conduct. However, there is some evidence that other employees were given a
warning, or an opportunity to resign before being summarily dismissed.
[36]
The
Court cannot conclude that the investigator was biased against the applicant. I am
satisfied that the Commission ensured that this complaint was investigated,
that the applicant was given a full opportunity to respond to the
investigation, and that the Commission considered the response together with
the investigator's report when it rendered its decision. The fact that the
investigator notified the applicant that the evidence indicated that the reason
for her dismissal was her misappropriation and “kiting” activities does not
indicate bias.
Issue No. 3: Did the Commission
reasonably dismiss the applicant’s human rights complaint pursuant to paragraph
44(3)(b) of the Act?
[37]
The
applicant submits that the Commission’s dismissal of her human rights complaint
is unreasonable and not supported by the evidence. The applicant’s submissions
are based on Mr. Montgomery’s alleged focus on her Chinese race and the deprivation
of her right to progressive discipline which was afforded to other similarly
placed employees.
[38]
In Syndicat des employés de production du
Québec et de l'Acadie v. Canada (Human Rights Commission), [1989]
2 S.C.R. 879, Justice Sopinka held at page 899 that in deciding whether to
refer a complaint to the Human Rights Tribunal or to dismiss the complaint
altogether, "it is not intended that this be a determination where the
evidence is weighed as in a judicial proceeding but rather the Commission must
determine whether there is a reasonable basis in the evidence for proceeding to
the next stage."
[39]
There is
no evidentiary basis to allege that the applicant was discriminated against
because of her Chinese racial background. The only reference to the applicant
being Chinese was when the Royal Bank investigators referred to the applicant’s
Chinese signature. In a 41-page transcript of the interview, that is the only
reference to the applicant’s Chinese background. The evidence shows that the
Royal Bank investigator was ensuring that the signature was valid.
[40]
The cases
of Diana
Lavalee, M. v. Royal Bank of Canada, and Cowan
v. Royal Bank of Canada, bear no mention of the employees’ race, nor do
they indicate that the applicant was subject to a materially different treatment
prior to her termination. The Royal Bank consistently dismisses any employee
who engages misappropriation or “kiting”. The Commission’s determination that
the applicant was not discriminated against based on her race in the course of
her termination was reasonably to open to it.
[41]
The evidence establishes that the
applicant was denied the right to legal counsel by the RBC investigator,
who also allegedly did not allow the applicant to leave the interview as she
says she had requested, and as the RBC investigation policy permits. These two
allegations of differential treatment were dealt with by Justice O’Keefe at
paragraphs 113 and 114 of his Reasons for Judgment. These issues were
properly raised by Justice O’Keefe. He questioned the proportionality of the
sanction imposed and the applicant’s misconduct. Justice O’Keefe also noted
that the applicant was given no warnings, no suspensions or other
punishment (or opportunity to resign instead of being fired). Justice O’Keefe
noted that there was no “conclusive evidence of any significant loss or risk to
the bank; only its estimate that it lost $14 a day” (see paragraph 131 of
Justice O’Keefe’s decision.) These issues were properly raised by Justice
O’Keefe in his judicial review of the adjudicator’s decision. These issues are
part of the adjudication. There is no prima facie evidence that this treatment
was because of the applicant’s Chinese background. After hearing the evidence
on this case, I can understand Justice O’Keefe’s rationale for asking the
adjudicator to consider the proportionality of the sanction.
CONCLUSION
[42]
The Court finds, on a
reasonableness standard, that the Commission reasonably held that the applicant
has not established a prima facie case of discrimination based on her Chinese
background. The Court also finds that the applicant has failed to show a breach
of the duty to act fairly in the conduct of the investigation. The applicant
was given a full opportunity to respond to the investigator’s report, and the
Commission considered the response when it rendered its decision.
[43]
The fact that the
investigator did not consider it necessary to interview four (4) witnesses was
within his discretion. The evidence before the investigator was clear that the
applicant had been terminated for misappropriation of funds and “kiting”, and
that her Chinese background did not play any role in the bank’s decision.
Having said that, Justice O’Keefe allowed the application for judicial review
from the adjudicator’s decision because the adjudicator did not consider
whether termination of the applicant’s employment was reasonably proportionate
to the applicant’s misconduct for the reasons which Justice O’Keefe thoroughly
set out.
Costs
[44]
In view of the
applicant’s circumstances, the questions raised by Justice O’Keefe as to
whether termination of employment was the proportionate sanction for the
applicant’s misconduct, and the issues legitimately raised with respect to the
investigation, the Court will make no order as to costs. While the Court has upheld
the Commission’s decision, the applicant raised reasonable questions regarding
the thoroughness of the Commissioner’s investigation and its fairness.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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