Date: 20091028
Docket: T-1580-08
Citation: 2009
FC 1103
Ottawa, Ontario, October 28,
2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MAHALINGAM
SINGARAVELU
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Canadian
Human Rights Act prohibits discrimination within the federal domain. An
employer may not discriminate in matters related to employment on the basis of race,
national or ethnic origin, colour, disability or other enumerated grounds.
Section 14.1 goes on to provide that it is an additional discriminatory
practice for a person against whom a complaint has been filed to retaliate or to
threaten retaliation. Mr. Singaravelu complained to the Canadian Human Rights Commission
that his employer, Correctional Services Canada, discriminated against him on
grounds of race, national or ethnic origin while he was employed at their Bath Institution.
While that complaint was under investigation, and after Mr. Singaravelu was
transferred to his employer’s Joyceville Institution, he complained of
retaliation. The Commission ultimately dismissed the discrimination complaint
and then the retaliation complaint. This is a judicial review of the latter
decision. Mr. Singaravelu is of the view that the Commission should not have
dismissed the complaint but rather should have referred it to the Canadian
Human Rights Tribunal for a full inquiry.
BACKGROUND
[2]
After
spending many years with the Department of National Defence, Mr. Singaravelu
began working as an engineering supervisor at the CSC’s Bath Correctional
Facility. Over the next two years he filed a number of Treasury Board workplace
discrimination harassment complaints against several of his supervisors, and a
number of grievances with his union. On the other hand, a number of harassment
complaints were filed against him by his subordinates.
[3]
During his
time at Bath he was on sick leave for some
time, apparently as a result of work-related stress. CSC transferred him to its
regional headquarters (Staff
College) and then in July 2006 to the
Joyceville Institution. The timeframe of his retaliation complaint is from the
commencement of his employment at Joyceville in July 2006 through to September
2006.
THE COMMISSION’S METHODOLOGY
[4]
Although
there are a number of options open to it in accordance with section 41 and
following of the Act, the Commission appointed one of its investigators to look
into the complaint. In accordance with its standard operating procedure, a copy
of the complaint was sent to the CSC for comment, documents were collected and
reviewed, and a number of individuals were interviewed. The investigator issued
a report in which she recommended that the complaint be dismissed rather than
be referred to the Canadian Human Rights Tribunal. That report was circulated
to Mr. Singaravelu and to the CSC for comment. Mr. Singaravelu commented
through his solicitors and the CSC commented as well. The Commission decided to
endorse the investigator’s report and so dismissed the complaint.
[5]
Mr.
Singaravelu filed an application for judicial review and called upon the
Commission, in accordance with the rules of practice of the Federal Courts
Rules, to produce the record on which it based its decision. He is of the
view that some of the documents so provided, particularly email exchanges which
passed amongst various CSC employees, strengthen his position that he was the
subject of retaliation. He believes that he was a subject of an all
encompassing conspiracy.
JOYCEVILLE – JULY TO SEPTEMBER 2006
[6]
Mr.
Singaravelu’s case is based in part upon facts which are in no way in
controversy and in part on inference (or speculation) drawn from those known
facts.
[7]
It is a
fact that that when Mr. Singaravelu arrived for his first day of work, his bag
was searched and he had to wait for his immediate supervisor to fetch him.
[8]
It is a
fact that within a few days he filed a harassment complaint against his
supervisor, a complaint the CSC refused to consider.
[9]
It is a
fact that he was given the same office his predecessor had, which was located
by a boiler room, and was given access to the same working tools including a
telephone and computer. Mr. Singaravelu complained that the phone was not
equipped with a direct outside line; that he had to go through the
prison operator. He was not content having to share the computer with others.
[10]
In
accordance with the job description, which had been in place for almost twenty
years, he was called upon to fulfil five tasks which fell within that
description. He complained that no one man could do that work. Two of the tasks
were removed. Still the remaining three tasks were too much. Finally he was
asked to carry out one of those three tasks, a task of his choosing. The CSC
says that he refused. He said he did not, but that he needed an army of
subordinates to carry out the work.
[11]
He was
away most of this time on sick leave. Going back to his time at the Bath
Institution, Health Canada had declared that he was fit
for work but needed a few weeks at half time and another week at three quarter time.
CSC says that this build up had been accomplished before Mr. Singaravelu’s
arrival at Joyceville.
[12]
It is
significant that he is not directly alleging that his employer failed to
accommodate a disability, but rather alleges that his disability, which seems
to be his inability or unwillingness to do the work the job required, was not
accommodated as part of CSC’s retaliation against them.
[13]
He left
Joyceville, and is on leave.
[14]
A number
of emails from the regional supervisor at the Staff College to the Warden at Joyceville and
to others were sent even before Mr. Singaravelu’s arrival at Joyceville. The
thrust of these emails is that Mr. Singaravelu was an extremely prickly
individual who had to be treated with kid gloves. These emails do not lend
themselves to the proposition that the CSC was intent on a course of
retaliation. Rather they indicate that every effort should be made to deal with
his every whim as otherwise complaints would be forthcoming. The prediction
turned out to be true.
[15]
One would
expect a prison warden to have seen the wild side of life. Nevertheless,
palpable frustration leaps from this email she sent to regional headquarters:
On three separate occasions we have tried
to assign him duties and he continues to create scenarios which prevent him
from taking on the duties.
July 17/18
Refused to sign the memorandum of
agreement from his assignment.
Sent home until we could get
clarification from rhq
July 24/25
Again refused to sign agreement
Attempted to assign 5 duties
He refused by continued arguing
Tried to assign him one duty of his
choosing
He agreed to that then refused
Sent home again
July 31 ordered back to work
Files a harassment complaint
Goes home again
Complaint screened out
Directed back to work [S]ept 27/28
Sept 29 off sick
Claiming workplace stress
We have met all the obligations of the
gradual return to work plan when he worked for [J]ohn [O]ddie and then [J]ulia
[H]obson
He is refusing to take on any tasks
At this point I wonder if demotion is even
an option
In 2003 when it was obvious he could not
manage as a supervisor he could have been demoted then but there was no support
for that then
He cannot perform any duties unless he
works in isolation, and he does not have to take direction from anyone
She concluded that he outright refused to work.
[16]
The
Commission’s investigator was extremely thorough in her report. Mr. Singaravelu
was of the view that his work environment was poisoned at the get-go by having
the guard search him. I would be appalled if someone showed up at a prison and
was not searched. When he stated that he did not believe that fire chief duty
should form part of the duties contained in his job description, he was given
the option of demoting himself. It was established that his complaints that his
workplace was dangerous had no basis in fact.
[17]
The
investigator was satisfied that CSC had surpassed what had been medically
recommended, but not necessary. There were repeated noise level checks, air
quality checks. Maintenance and repair to ceiling tiles were carried out and a
boiler analysis and similar activities were conducted in a fruitless effort to
satisfy the complainant.
[18]
Her
conclusion was that there was no evidence to support his complaint that he was
discriminated against, harassed or treated in an adverse differential way
either because of retaliation for having filed the previous complaint or for
any other reason based, in whole or in part, on a prohibited ground. In the 15
weeks between Mr. Singaravelu’s scheduled first day of work and his last day of
work he only attended a total of 16 working days. The remainder of the time he
was at home on various leaves with pay. In every instance when he returned to
work from sick leave he was always medically assessed as being fit to return to
work without limitation or restriction.
[19]
In January
2007, Health Canada was of the view that he
should not return to CSC, but he was assessed fit for work without restrictions
or limitations in another federal government department. The warden referred
him to numerous departments and agencies, wrote letters, emails, forwarded his
resume and assisted him in securing employment within the federal public
service, without success.
THE LAW
[20]
In Syndicat
des employés de production du Québec et de l'Acadie v. Canada (Human Rights
Commission), [1989] 2 S.C.R. 879, the Supreme Court plumbed Parliament’s
intention in the event there be insufficient evidence to warrant the referral
of the complaint by the Commission to the Tribunal. Mr. Justice Sopinka said at
page 899: “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.”
[21]
In Bell v. Canada (Canadian Human
Rights Commission);
Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, Mr. Justice La Forest noted at para. 53 that the Commission is
not an adjudicative body. In determining whether a complaint should be referred
to the Tribunal, it carries out a screening analysis somewhat analogous to that
of a judge at a criminal preliminary inquiry.
[22]
The
vetting duty of a judge at a preliminary inquiry in criminal law was summarized
by the Supreme Court in R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54
at paras. 21-23. The question to be asked is whether or not there is any
evidence upon which a reasonable jury properly instructed could return a
verdict of guilty. The judge must commit the accused to trial if there is
admissible evidence which could, if it were believed, result in a
conviction. Then there is the question whether the evidence is direct or
circumstantial. If circumstantial, some limited weighing is permitted to assess
whether the evidence is reasonably capable of supporting the suggested
inferences.
[23]
In this
case the evidence is all circumstantial. Adapting the principles from Arcuri
to this context, the question facing the Commission was whether there was
evidence reasonably capable of supporting an inference that Mr. Singaravelu was
retaliated against such that, if it believed that evidence, the Tribunal could
find that CSC retaliated against him. Mr. Singaravelu submits that the
evidence indicates a conspiracy against him. The Commission found
that the circumstantial evidence was not reasonably capable of supporting an
inference of a conspiracy. I find that that conclusion was reasonable (Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). There is no evidence of a conspiracy. His belief derives
from outright speculation, not from reasonable inference derived from proven
facts.
[24]
It follows
that the decision of the Commission
not to refer his complaint to the Commission was reasonable. This
application for judicial review is dismissed.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that
1. The application for judicial review is dismissed
with costs.
“Sean Harrington”
Email this Content