Date: 20090216
Docket: T-199-08
Citation: 2009 FC 164
Ottawa, Ontario, February 16, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NATIONAL
RESEARCH COUNCIL OF CANADA
Applicant
and
MING
ZHOU
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review is a challenge by an employer to the Canadian Human Rights
Commission’s (CHRC) decision to refer a complaint of discrimination against an
employee to the Canadian Human Rights Tribunal (Tribunal). The issues in this
matter are 1) the absence of reasons by the CHRC, and 2) the insufficiency of
evidence against the Applicant employer to support a referral to the Tribunal.
II. BACKGROUND
[2]
There
is a bit of history behind this case. In 1992 the Tribunal found that the
National Research Council (NRC) had discriminated against a Dr. Grover. As a
result, Dr. Grover was promoted to the position of Director, Radiation
Standards and Optics at the NRC. The Respondent’s complaint of discrimination
centres on the conduct of the same Dr. Grover in his new capacity.
[3]
Dr.
Grover was put in charge of four groups, and for two of them he held the direct
hiring responsibility. One of these two groups is Photonic Systems, of which
Dr. Zhou was a member. The other group is Optics of which a Dr. Boiko was a
member.
[4]
In
late 2004 and shortly after, Dr. Zhou filed two separate but related
complaints; one against the NRC and one against Dr. Grover, both for harassment
on the basis of race and national or ethnic origin (Chinese). Sometime earlier
(August) in 2004, Dr. Boiko of the Optics group had filed a CHRC complaint
against the NRC alleging workplace harassment and discrimination based on race
(Caucasian) and national or ethnic origin (Russian/Slavic).
[5]
Dr.
Zhou’s complaints were against Dr. Grover personally and against the NRC, both
on the basis that Dr. Grover had personally harassed him and that Dr. Grover
had specifically hired an all-Chinese unit because they would tolerate his
abuse. These complaints were investigated concurrently.
[6]
On
December
21, 2007,
the CHRC issued two decisions. Firstly, it dismissed Dr. Boiko’s complaint
because the evidence did not support the allegations. Secondly, the CHRC
decided to refer Dr. Zhou’s complaint against the NRC and against Dr. Grover to
the Tribunal (if the parties could not settle the matter within 90 days of
receipt of the decision letter).
[7]
The
decision to refer the complaints to the Tribunal emanate under s. 44 of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (Act).
|
44. (1) An investigator
shall, as soon as possible after the conclusion of an investigation, submit
to the Commission a report of the findings of the investigation.
(2) If, on receipt of a report referred to in subsection (1), the
Commission is satisfied
(a) that the complainant ought to exhaust
grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more
appropriately be dealt with, initially or completely, by means of a procedure
provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a
report referred to in subsection (1), the Commission
(a) may request the
Chairperson of the Tribunal to institute an inquiry under section 49 into the
complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is warranted,
and
(ii) that the complaint to which the
report relates should not be referred pursuant to subsection (2) or dismissed
on any ground mentioned in paragraphs 41(c) to (e); or
(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. (1)
L’enquêteur présente son rapport à la Commission le plus tôt possible après
la fin de l’enquête.
(2) La Commission renvoie le plaignant à l’autorité
compétente dans les cas où, sur réception du rapport, elle est convaincue,
selon le cas :
a) que le
plaignant devrait épuiser les recours internes ou les procédures d’appel ou
de règlement des griefs qui lui sont normalement ouverts;
b) que la
plainte pourrait avantageusement être instruite, dans un premier temps ou à
toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(3) Sur réception du rapport d’enquête prévu au
paragraphe (1), la Commission :
a) peut
demander au président du Tribunal de désigner, en application de l’article
49, un membre pour instruire la plainte visée par le rapport, si elle est
convaincue :
(i) d’une part, que,
compte tenu des circonstances relatives à la plainte, l’examen de celle-ci
est justifié,
(ii) d’autre part,
qu’il n’y a pas lieu de renvoyer la plainte en application du paragraphe (2)
ni de la rejeter aux termes des alinéas 41c) à e);
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).
[Emphasis added]
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[8]
The
decision letter of December 21, 2007 is brief and provides no extensive
reasons. The Investigator’s Report, on which the decision was based, is lengthy
and detailed.
[9]
The
salient points of the Report are as follows:
a.
there
were difficulties obtaining evidence because of witnesses’ fear of reprisal and
because of Dr. Grover’s absence and refusal to make full submissions to the
investigator.
b.
Dr.
Zhou’s complaint concerned Dr. Grover’s public humiliation of him, Dr. Grover’s
criticism of his work, Dr. Grover’s efforts to prevent him from communicating outside
the group and the refusal to upgrade Dr. Zhou to the promised “indeterminate”
status (essentially a permanent position).
c.
aside
from Dr. Grover’s bad manners and possible abusive behaviour, the investigator
found grounds for complaint that Dr. Grover had specifically targeted Chinese
nationals to hire because, for alleged cultural reasons, they could be more
easily dominated. The statistical anomaly of an all Chinese Photonic Systems
group had been noted by NRC staff.
d.
the
investigator noted that one issue for determination was whether the NRC had
taken appropriate action to deal with harassment and to prevent such conduct
continuing.
e.
the
investigator found that the NRC had a “Harassment in the Workplace Policy” but
that the policy was not fully implemented because no corrective action was
taken in this case.
f.
therefore,
there was a recommendation that the matter be referred to the Tribunal.
[10]
As
indicated earlier, the Applicant argues that 1) the CHRC erred by failing to
provide proper reasons for its decision, and 2) the CHRC erred in referring the
complaint against the NRC to the Tribunal in view of the absence of evidence of
discrimination by the NRC.
III. ANALYSIS
A. Standard
of Review
[11]
In
the Applicant’s Memorandum, it seems to argue that the standard of review
should be “correctness” because the lack of reasons is an issue of procedural
fairness and the fact that the decision to refer is “not supportable on the
evidence” disentitles the CHRC to any degree of deference.
[12]
In
oral argument, the Applicant clarified its position that in respect of
procedural fairness, the standard of review is correctness but with respect to
evidence justifying a referral, the matter is of mixed law and fact for which
the standard is reasonableness. The Respondent adopts the same analysis.
[13]
I
concur with the parties as to the standard of review. The reference to Bourgeouis
v. Canadian Imperial Bank of Commerce , [2000] F.C.J. No. 388 (F.C.T.D.)
(QL), as authority for the proposition that the standard is correctness where
“the decision is not supportable on the evidence before the Commission” is not
correct nor is it placed in proper context.
[14]
Justice
MacKay’s comments in Bourgeouis, above, were made against the backdrop
of the three standards of review. His comment was also in reference to whether
a high level of deference was due in instances of natural justice and
non-supportable evidence. Justice MacKay did not hold that in respect of
non-supportable evidence, the standard was correctness or that such an issue
was measured on the same standard as procedural fairness/natural justice.
[15]
The
weight of authority (see Niaki v. Canada (A.G.), 2006 FC 1104 and Sketchley
v. Canada (A.G.), 2005 FCA 404) is that the CHRC’s assessment of evidence
and conclusion to refer is entitled to a high degree of deference. This must be
the case given the low threshold for a referral, being “a reasonable basis in
the evidence for proceeding to the next stage” or evidence sufficient to
suggest the possibility that some discrimination had occurred. For the
Commission to go beyond this threshold and to deal with merits would be to
usurp the Tribunal’s function.
[16]
The
nature of the inquiry, the nature of the CHRC’s decision to refer, and thus the
deference owed is well set out in paragraphs 35 and 38 of Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1
F.C. 13 (F.C.A.):
35 It is settled law that when deciding whether a
complaint should be referred to a tribunal for inquiry under sections 44 and 49
of the Canadian Human Rights Act, the Commission acts "as an
administrative and screening body" (Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not
decide a complaint on its merits (see Northwest Territories v. Public
Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient
for the Commission to be "satisfied that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is
warranted" (subsections 44(3) and 49(1)). This is a low threshold and the
circumstances of this case are such that the Commission could have validly
formed an opinion, rightly or wrongly, that there was "a reasonable basis
in the evidence for proceeding to the next stage" (Syndicat des
employés de production du Québec et de l'Acadie v. Canada (Canadian Human
Rights Commission), supra, paragraph 30, at page 899, Sopinka J.,
approved by La Forest J. in Cooper, supra, at page 891).
[…]
38 The Act grants the Commission a remarkable degree of
latitude when it is performing its screening function on receipt of an
investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are
replete with expressions such as "is satisfied", "ought
to", "reasonably available", "could more appropriately be
dealt with", "all the circumstances", "considers
appropriate in the circumstances" which leave no doubt as to the intent of
Parliament. The grounds set out for referral to another authority (subsection
44(2)), for referral to the President of the Human Rights Tribunal Panel
(paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve
in varying degrees questions of fact, law and opinion (see Latif v. Canadian
Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain
J.A.), but it may safely be said as a general rule that Parliament did not want
the courts at this stage to intervene lightly in the decisions of the
Commission.
B. Procedural
Fairness
[17]
The
Applicant objects to the pro forma decision letter because it alleges it
did not address matters raised in its Rebuttal to the Investigator’s Report.
The Applicant contends that CHRC failed to give reasons why it rejected the
NRC’s submissions.
[18]
The
Applicant was given two formal opportunities to make submissions with respect
to the Investigator’s Report. On October 22,
2007,
the NRC filed a response to the Investigator’s Report. On November 14, 2007, it
was given a further opportunity to respond to the Report. That further response
focused principally on the effect of the dismissal of Dr. Boiko’s complaint. In
addition to these submissions, the Respondent made submissions in respect of
Dr. Zhou’s response to the Report.
[19]
While
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, holds that a party is entitled to reasons for a decision, it also
holds that the adequacy of reasons must be viewed in context. In Baker,
above, a person’s well being and future were at issue for final determination.
In the present case, the most that can be said is that the NRC is merely required
to go on to a further hearing on the merits. There is little parallel in terms
of consequences and finality between this case and that of Baker.
[20]
In
Moore v. Canada (Attorney General), 2005 FC 13,
I held that there had been a breach of natural justice when Moore was not
given the opportunity to address new facts and issues raised by another party.
The decision is of no assistance to this Applicant because it did have the
opportunity to address a new fact - the dismissal of the Boiko complaint. The
Applicant exercised that right in its supplementary submissions.
[21]
Likewise,
the decision in Egan v. Canada (Attorney General), 2008 FC
649, is of no assistance to the Applicant. In Egan, above, the problem
was that the Commission failed to carry out a proper investigation; the problem
was not the failure to articulate reasons.
[22]
The
Applicant’s position that it is entitled to detailed reasons addressing its
rebuttal is tantamount to requiring the Commission to make a finding on the
merits of the Applicant’s position – a function which is more properly to be
performed by the Tribunal.
[23]
Having
regard for the test applicable to the CHRC’s decision to refer – whether it is phrased
as requiring a reasonable basis to refer or as requiring sufficient evidence to
suggest the possibility of discrimination – the Applicant had more than
sufficient explanation in the Report as to the CHRC’s basis for referral. The
CHRC’s decision, read in conjunction with the Report, met the obligation to
provide reasons in this case.
C. Absence
of Evidence
[24]
The
essence of the Applicant’s argument is that there was no evidence of conduct by
the NRC or any policy or other matter which would justify referring the
complaint to the Tribunal. The Applicant pleads that it took all the corrective
action it could, that it could not give Dr. Zhou what he wanted – a permanent
position – and that having dismissed Dr. Boiko’s complaint, it was unreasonable
to proceed with this complaint.
[25]
The
gravamen of the NRC’s position is that it has a good defence to the allegations,
including that of employer’s liability under s. 65 of the Act, which it did not
have a chance to raise. To accept the Applicant’s position is again to address
the merits of the defence – a task neither the CHRC nor the Court, at this
stage, should perform. The Applicant may have an excellent defence but that is
for the Tribunal to decide.
[26]
The
CHRC found that Dr. Grover’s practice of hiring people of Chinese ethnicity for
the Photonic Systems group and the statistical anomaly it produced was known
with the NRC. The Applicant’s witness, Dr. D’Irio, who became the
Director-General of the unit “struggled with the appropriateness” of the hiring
practice. These are facts which raise issues as to NRC knowledge, conduct and
policies relevant to this matter – all of which may be defensible.
[27]
The
Applicant claims that it had no knowledge of Dr. Grover’s motives for hiring
Chinese scientists. However, given the statistical anomaly noted by employees
of the NRC, the issue of knowledge (actual or constructive) is an obvious issue
on a referral.
[28]
The
Applicant denies that it took no corrective steps and it highlights that it had
indicated that it would take corrective action when Dr. Grover returned. It
asks rhetorically what other action it could take. The corrective action the
Applicant addresses is action against Dr. Grover; it does not respond to what
corrective action could be taken for its employee. In light of the purpose of
the remedial provision of the Act and the liability of an employer to address
the alleged “victim’s” circumstances (see Robichaud v. Canada (Treasury
Board),
[1987] 2 S.C.R. 84), this is another item which could form the basis for a
referral.
[29]
The
fact that the complainant may seek a corrective action beyond that contemplated
by the Act is not dispositive of the employer’s obligation to take remedial
steps where required. Even if the NRC could not or would not grant Dr. Zhou
indeterminate status, it may be open to the Tribunal to fashion some relief. It
is not, however, a matter which the CHRC can do. Thus, this is another possible
basis for a referral.
[30]
The
dismissal of Dr. Boiko’s complaint is not necessarily a reason not to refer Dr.
Zhou’s case to the Tribunal. While that dismissal may raise questions, without
an assessment of that decision (a matter not before the Court), all that one
can conclude is that in one case the harassment and discrimination may be
linked to human rights grounds; in the other, there was no such link.
[31]
It
is conceivable that the dismissal of Dr. Boiko’s complaint is incorrect. Dr.
Zhou’s complaint must stand and be assessed on its own merits; not
“piggybacked” on someone else’s.
[32]
There
were more than sufficient reasons for the CHRC to reasonably conclude that
there was a basis for a referral. These include the reason for the exclusive
Chinese hiring, the Applicant’s knowledge and actions or lack thereof, and the
responsibility pursuant to s. 65 imposed on the employer.
IV. CONCLUSION
[33]
Therefore,
this judicial review will be dismissed with costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs.
“Michael
L. Phelan”
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