Date: 20100727
Docket: T-735-08
Citation: 2010 FC 784
Ottawa, Ontario, July 27, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
YURI
BOIKO
Applicant
and
NATIONAL RESEARCH COUNCIL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Dr. Yuri Boiko worked as a research officer at
the National Research Council on a probationary basis from November 2001 to
July 2004, when the Council dismissed him. Prior to his dismissal, Dr. Boiko
had complained that he had been harassed by his supervisor. Ultimately, in
2008, the Council dismissed his complaint, mainly on the grounds that it was
moot, given that both Dr. Boiko and his supervisor no longer worked at the
Council.
[2]
Dr. Boiko also maintains that he was wrongly dismissed,
but that issue is before another decision-maker. There was some confusion about
whether Dr. Boiko was seeking judicial review of that decision, too, but he
made clear at the hearing that he was not. Therefore, the sole issue before me
is whether the Council erred when it dismissed Dr. Boiko’s harassment
complaint. I have concluded that the Council treated Dr. Boiko fairly and did
not render an unreasonable decision. Therefore, I can find no basis for
overturning the Council’s decision and must, therefore, dismiss this
application for judicial review.
II.
Factual Background
[3]
Dr. Boiko filed a formal harassment complaint on
September 12, 2003. Shortly thereafter, he and his supervisor participated in a
process aimed at resolving the matter by mediation, but it failed. In January
2004, the Council engaged an independent investigator. The investigator
interviewed Dr. Boiko for close to eight full days. Dr. Boiko supplied the
names of witnesses and about 70 documents that he said supported his complaint.
The investigator also interviewed Dr. Boiko’s supervisor, but the interviews
could not be completed because the supervisor was on sick leave.
[4]
Near the end of June 2004, the investigator made
another attempt to mediate the complaint. He failed. On July 15, 2004, the
Council dismissed Dr. Boiko on the grounds of his allegedly unsatisfactory
performance on probation.
III.
The Council’s Decision
[5]
By way of a letter dated April 11, 2008, the
Council dismissed Dr. Boiko’s complaint. In the same letter, the Council dismissed
Dr. Boiko’s grievance arising from his dismissal on probation. As mentioned,
that part of the decision is not before me.
[6]
In the letter, the Council explained that its
decision was delayed due to the unavailability of Dr. Boiko’s supervisor. The
supervisor was on extended sick leave and, ultimately, the Council dismissed
him. The Council had originally undertaken to keep Dr. Boiko’s complaint active
and to complete the investigation when the supervisor returned to work.
However, given that the supervisor never did return to work (except for a few
days), and that Dr. Boiko had also been terminated, the Council concluded that
the complaint was moot. It explained that the purpose of resolving complaints
was “to ensure that the harassment does not continue”. As the parties were no
longer present in the workplace, that purpose had already been served.
IV. Did the Council Err?
[7]
Dr. Boiko contends that the Council erred in two
respects: by treating him unfairly, and by concluding unreasonably that his
complaint was moot. I can find no unfairness in the process leading to the
Council’s decision, and cannot conclude that the decision was unreasonable.
[8]
Dr. Boiko argues that the Council treated him
unfairly by relying on the tentative conclusions of the investigator, without
providing him an opportunity to make further submissions. He bases this
argument on a statement of the Council’s Director of Labour Relations, Mr.
Steve Blais. Mr. Blais states in his affidavit that the investigator informed
him in June 2004 that, based on his thorough investigation up to that point,
Dr. Boiko’s complaint was unsubstantiated. It remained for the investigator to
conclude his interviews of Dr. Boiko’s supervisor. As mentioned, the supervisor
remained on sick leave (except for some 30 days of sporadic attendance). As a
result, the interviews were never concluded.
[9]
I see nothing unfair in this process. First, notwithstanding
what the investigator may have said to Mr. Blais in 2004, the Council dismissed
Dr. Boiko’s complaint on the sole basis that it was moot. There is no
indication that the merits of the complaint were taken into account. Second, at
the time he spoke to Mr. Blais, the investigator had not yet arrived at a
conclusion. He could only have stated a preliminary point of view. Further, he
had spent considerable time interviewing Dr. Boiko, had reviewed his documents,
had spoken to witnesses, and had begun his interviews of the supervisor. I can
see nothing unfair about this process. Had the investigator completed his
interviews of the supervisor, he may well have invited Dr. Boiko to comment on
the supervisor’s statements before arriving at his final conclusion. But that
stage of the investigation was never reached and no final conclusion was ever
made about the substance of the complaint.
[10]
As for the Council’s decision on mootness, Dr.
Boiko argues that his complaint should not have been considered moot because
the circumstances giving rise to it were bound up with the Council’s assessment
of his performance during his probationary period. Essentially, he says that
his performance was rated poorly in part because he was being harassed by his
supervisor. Therefore, the Council should have completed its analysis of his
harassment complaint so that it could be taken into account in deciding whether
his dismissal on probation was justified. The fact that the supervisor was on
sick leave complicated the investigation but it did not, according to Dr.
Boiko, render the complaint moot.
[11]
I understand Dr. Boiko’s concern that his
allegation of harassment and his dismissal on probation are connected. If they
were treated in complete isolation, he would lose the opportunity to argue that
his performance reviews were tainted by the harassment. At the extreme, he
observes, if harassment complaints were rendered moot whenever complainants had
left the workplace, employers could freely harass and then dismiss employees
with impunity.
[12]
In my view, however, the fact that Dr. Boiko’s
complaint may be relevant to his performance appraisals (and his challenge to
his dismissal) does not mean that the Council erred in concluding that the
complaint itself was moot. Dr. Boiko’s complaint related to the conduct of a
single individual who, for reasons apparently unconnected with the complaint or
the facts surrounding it, no longer worked at the Council. In the
circumstances, it was reasonable for the Council to conclude that there would
be nothing gained in deciding the merits of a dispute between two former
employees.
[13]
It remains open to Dr. Boiko to argue before
another decision-maker that the Council’s decision to dismiss him was
unreasonable and, more particularly, to support his challenge by referring to
the harassment he allegedly endured. However, I can find no error in the
Council’s conclusion that his formal harassment complaint was moot.
V.
Conclusion and Disposition
[14]
The Council’s conclusion that Dr. Boiko’s
harassment complaint became moot after both Dr. Boiko and his supervisor
stopped working at the Council was not unreasonable. Further, Dr. Boiko was
treated fairly throughout the investigation of the complaint. Accordingly, I
must dismiss this application for judicial review. The Council presented a bill
of costs totalling $7,760.41 in fees and disbursements. Dr. Boiko maintained
that he does not have the financial resources to pay costs on that scale
because he is currently pursuing further studies and has an outstanding student
loan. In the circumstances, I would fix costs in the amount of $1,500.00.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is dismissed.
2.
Costs
in the amount of $1,500.00 are awarded to the respondent.
“James
W. O’Reilly”
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