Date: 20091021
Docket: T-1978-08
Citation: 2009 FC 1067
Ottawa, Ontario, October 21,
2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ROYAL
BANK OF CANADA
Applicant
and
MEERA
BHAGWAT
Respondent
and
CANADIAN HUMAN RIGHTS
COMMISSION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application by the Royal Bank of Canada (RBC) challenges a decision by the
Canadian Human Rights Commission (Commission) to refer a complaint by Meera
Bhagwat (the Complainant) to the Canadian Human Rights Tribunal (Tribunal) for
an inquiry. The RBC contends that this decision was made in breach of the
principles of natural justice and procedural fairness and is otherwise
unreasonable.
a.
Background
[2]
The
Complainant is an employee of the RBC who claims to have suffered from
discrimination in the workplace. In the course of the Commission’s
investigation, a request was made to interview a number of RBC employees. This
request was answered by the RBC’s outside legal counsel who asked that she be
permitted to attend the interviews. In a letter dated April 11, 2008, the
Commission denied this request for the following reasons:
The role of the Commission with respect
to the complaints process is to conduct a thorough and fair investigation which
respects the rules of procedural fairness. Procedural fairness requires that
parties know the substance of the evidence before the Commission and that they
have an adequate opportunity to understand the case that must be met, to answer
it and to put forward their own position.
With respect to the conduct of
interviews, the Commission is of the view that procedural fairness does not
require, nor does it provide, an automatic right for a respondent or a
complainant representative to be present during an interview. There is nothing
to suggest that either party would be prejudiced or that the requirements of
procedural fairness would not be met if representatives of either side are
excluded from being present during witness interviews. Information gathered
during interviews is reflected in the investigation report. Therefore, both
sides will have the opportunity to provide comments when the report is
disclosed to them.
It is extremely important that the
Commission ensure that a witness be able to speak freely in an interview. The
presence of a representative of either side could result in a chilling effect
on the witness and could impede the Commission’s ability to gather all relevant
information. Past experience has shown that few employees, for example, will
be comfortable objecting to management representatives being present and,
therefore, the Commission’s policy removes this burden from the witness.
Consequently, a request from a respondent
or a complainant representative to be present during witness interviews will be
denied. An exception may be made if the witness is being interviewed to
clarify a respondent’s policy or the third party is the witness’ personal or
legal representative. In such instances, the third party is present as observer
only.
In conclusion, your request to be present
during the witness interviews in the complaint filed by Ms. Meera Bagwat [sic]
is denied. Mr. Parekh will shortly resume his investigation and I trust
that you will continue to provide your full cooperation in this matter.
[3]
A
further exchange of correspondence ensued, but the Commission remained
steadfast in its refusal to permit RBC’s legal counsel to be present during the
proposed witness interviews. Notwithstanding an explicit warning from the Commission
that it would continue with its investigation without the benefit of this
evidence, the RBC declined to make its two principal witnesses available for an
interview except on condition that its legal counsel be present. There is no
question on the record that it was also the wish of the two employees that the
RBC counsel be present.
[4]
On
August 29, 2008 the Commission’s Investigator recommended that part of the
complaint go forward because of an inability to conduct a thorough and complete
investigation into matters involving credibility. The RBC responded to this recommendation
by asserting that it was legally justified in refusing to make its employees
available in the absence of RBC’s legal counsel.
Notwithstanding that argument, on November
12, 2008 the Commission decided to refer the complaint in its entirety to the
Tribunal for an inquiry for the following reasons:
There are many disputed facts in this
case, many of which turn on the credibility of the Complainant and her
manager. In addition, the statement of several other witnesses may also be
relevant to the determination of this complaint as they may be able to provide
some insight on the working relationship between the Complainant and her
supervisor as well as to situation [sic] in the workplace at the time in
question.
The Commission notes that the the [sic]
Respondent refused to comply with the Commission’s policy on third party
presence at interviews, and did not permit the Investigator to interview the
manager and all other witnesses currently employed with the Respondent. For
this reason, the Investigator was unable to conduct a thorough and complete
investigation.
Given that there remain issues of
credibility, which cannot be determined by the Commission, and given the Respondent’s
failure to cooperate in the investigation, by allowing the Investigator to
interview key witnesses without the Respondent being present, and having regard
to all of the circumstances of the complaint, the Commission is satisfied that
an inquiry by a Tribunal into the complaint is warranted.
II. Issues
[5]
(a) Did
the Commission breach its duty of fairness by refusing to conduct employee
interviews in the presence of RBC legal counsel?
(b) Was
the Commission’s decision to refer the complaint in its entirety to the
Tribunal adequately supported by reasons and was the decision reasonable?
III. Analysis
[6]
The
issues of procedural fairness raised in this proceeding must be reviewed on the
basis of correctness and the challenge to the substance of the Commission’s
decision is subject to the deferential standard of review of reasonableness:
see Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 at paras. 40 to 57.
[7]
The
Commission’s denial of the RBC’s request was based on the application of its
procedural policy, the relevant portions of which state:
6.6.3.2
Third
party presence during interviews
The issue of third party
presence during an interview usually arises when:
i.
a witness
wants a companion or advocate to be present;
ii.
a
respondent wants its representative or legal counsel to represent management
employees speaking for the respondent, or wants a representative to accompany
an employee for the purpose of offering explanation of company policy; or
iii.
a
respondent wants its representative or legal counsel to attend or observe all
interviews with current or previous employees who will be interviewed.
The general rule is that third parties
are excluded from witness interviews. The principle behind the rule is to
ensure that witnesses are comfortable to speak frankly and freely. Requests
from a Respondent that their representative or legal counsel attend or observe
all interviews with employees should be denied in all cases.
Exceptions to the general rule may arise
in the following four circumstances:
Situation A:
·
the
witness is a manager or employee of the respondent who has also been named as a
respondent and his or her behaviour is alleged to be discriminatory; and
·
the
individual respondent requests the presence of a third party (his legal counsel
or the corporate respondent’s legal counsel or representative).
Situation B:
·
the
witness is a management representative being questioned on a policy of the
respondent;
·
the
witness gives consent to the respondent representative’s presence; and,
·
the
investigator is confident that this agreement is given voluntary.
Situation C:
·
the
witness requests that an advisor (e.g. shop steward, relative, personal
counselor, friend, etc.), other than a respondent representative or respondent
legal counsel, be present;
·
the
investigator is confident that the request is made voluntarily; and,
·
the
advisor is not a party to the proceedings or is not likely to be interviewed as
a witness or be adverse to the interests of the complainant or witness.
Situation D:
·
the
witness requests that a respondent representative or respondent legal counsel
be present;
·
the
situation is provided for in a regulation adopted pursuant to the Canadian
Human Rights Act.
The conditions under which an interview
takes place, including the location, method of interview (telephone or face to
face) and the possible presence of third parties, should serve to enhance the
witness’ ease and ability to respond openly to the investigator’s questions.
When permitted, a third party must not be allowed to interfere in any way with
the interview process. […]
[8]
The
RBC contends that the Commission erred in denying its request for legal
representation during the Investigator’s proposed interviews with its
employees. This, it says, constituted a breach of procedural fairness because,
as a corporate Respondent and notwithstanding the above policy, it had a
fundamental right to counsel during a process that could affect its rights and
reputation and because the Commission’s policy makes an unfair and arbitrary
distinction between individual respondents and corporate respondents. It also
complains that the Commission’s policy has been inconsistently applied in the
past and that the Commission’s failure to provide it with a complete version of
its policy was unfair because the missing information contained an exception
that would have allowed for the presence of its counsel.
[9]
I
do not agree that the RBC had any right to have its counsel present during
interviews with its employees or that any duty of fairness was breached by the
Commission.
[10]
The
RBC conceded that it had no legal right to impose on this process over the
objections of a witness. It is only where an employee witness requests the
involvement of the RBC’s counsel that the RBC claims this entitlement. This
position is inconsistent with a rule of procedural fairness based on RBC’s corporate
interests as a named respondent. What the RBC is essentially arguing for is
the right of its affected employees to retain counsel of their choosing without
interference from the Commission. The RBC’s claim to protection fails because
in the context of a preliminary investigation neither its rights nor those of
its employees include any rights of representation beyond what is provided for
in the Commission’s policies.
[11]
A
thorough analysis pertaining to the right to counsel as a principle of
procedural fairness can be found in Irvine v. Canada (Restrictive
Trade Practices Commission), [1987] 1 S.C.R. 181, [1987] S.C.J. No. 7 (QL)
(S.C.C.). That decision recognized that fairness is a flexible concept with a
content that will vary according to the nature of the inquiry and the
consequences for the parties involved. At the stage of information gathering
and where the investigator’s findings are not publicly available, the Court
recognized that full rights of participation and legal representation may not
be required. There the inclination of the court was said to be away from
intervention and in favour of the right of the investigator to control its own
process. These general principles were later applied in Nova Scotia (Human
Rights Commission) v. MacDonald (1999), 180 N.S.R. (2d) 379, 94 A.C.W.S.
(3d) 333 (N.S. S.C.) where the Commission’s decision to exclude the
respondent’s counsel from a witness interview was challenged. In that case as
in this one, the witness had been permitted to retain independent counsel, but
not counsel for one of the parties. After a thorough review of the authorities
Justice Jack Davison upheld the Commission’s decision on the following basis:
23 When you consider these
principles, it is inconceivable to me that the legislature intended a witness
to dictate the procedures the Commission must follow in searching for facts.
The manner in which information is to be furnished under s. 30 (a) is for the
Commission to decide.
24 To suggest a witness could simply
write out a statement or answer programmed interrogatories gives no thought to
the need of the Commission to exercise care in being thorough with respect to
their inquiries. The procedure must be flexible and an interview gives the
Commission opportunity to respond to and follow up the information given by the
witness with further inquiries.
25 In my view the submission of Mr.
Duplak that s. 30 (a) only requires Mr. MacDonald to furnish information in the
manner in which he sees fit to furnish such information or to suggest it be
done by written statement or by interrogatories is, to use the words of Justice
MacIntyre in the Re Ontario Human Rights Commission et al. and Simpson-Sears
Limited case (supra), placing the "narrowest interpretation of the
words employed" in the Act and ignores the remedies intended as expressed
in the context of the Act.
26 In my view, the refusal of Mr. Ian
MacDonald to attend an interview unless Mr. Duplak is present is a refusal to
furnish information under s. 31(1) and an order can issue under s. 31(2) for
Mr. Ian MacDonald to attend for the interview with the right, if he wishes, to
bring counsel who is completely independent of the issues in the proceeding. In
other words, the remedy sought in the originating notice dated September 29,
1999 will be granted.
27 With respect to the remedy sought
in the originating notice dated October 27, 1999, it seems to be a broad
request and perhaps superfluous when it is stated the Commission can adopt its
own procedure for investigating the relevant facts as long as it does not
contravene the Act. I do not grant the remedy set out in the originating notice
dated October 27, 1999.
I agree with this analysis of the law and I
can identify no principled basis in fact or law for distinguishing this
decision. I specifically reject the argument that the MacDonald
decision, above, should be ignored because the RBC is vicariously liable under
ss. 65(1) of the Canadian Human Rights Act for the actions of its
employees and, therefore, its procedural rights at the investigative stage are
elevated. The liability of a corporate respondent can only be established on
the strength of evidence elicited before the Tribunal. The fact that a witness
may have given a preliminary statement does not deprive a respondent of the
full panoply of procedural rights that arise on adjudication.
[12]
I
do agree with counsel for the RBC that there are aspects to the Commission’s
policy regarding the involvement of legal counsel at the investigation stage
that appear somewhat inconsistent or vague.
[13]
For
instance, it is not entirely clear that an employee witness would not be
entitled to the assistance of legal counsel under Situation C provided that the
counsel proposed was not also counsel for the respondent employer. That
guideline does not state that lawyers cannot assist in such circumstances and I
cannot think of any valid reason for denying such legal representation if requested.
Indeed, counsel for the Commission indicated that independent legal assistance
was contemplated by this guideline. However, Situation C has no application
here because these witnesses insisted on the presence of RBC’s counsel and when
that was refused no request was made for independent representation or for some
other permitted form of assistance.
[14]
Similarly,
if the Commission is concerned that the presence of the employer or its legal
counsel might give rise to some unease on the part of an employee or detract
from a frank and free exchange, it is somewhat inconsistent that the policy
permits an employee who is a named respondent to be assisted by the employer’s
legal counsel. The same risk is present in both instances. Nevertheless,
counsel for the Commission justified this distinction by noting that this was
an attempt at balancing competing interests in a situation where the employee,
as a named party, was personally at risk.
[15]
The
only apparent rationale for the inflexibility of the Commission’s current
approach is that it requires a firm position in all situations including those
where the employer’s presence may not be as benign as would be the case here. I
think this is a legitimate concern because the involvement of the employer or
its legal counsel during an employee interview may give rise to pressures,
either unintended or quite deliberate, which the investigator may not perceive
and which may adversely influence the outcome. Even though the guidelines do
allow an investigator in some situations to assess the voluntariness of such a
request, such an evaluation will never be perfect and allowing for more
exceptions can lead to its own set of problems including complaints by
employers of arbitrariness. In addition, the fact that the Commission may not
have universally applied its guidelines in the past is of no legal significance
here where a renewed policy of strict compliance had been implemented. It
should be understood, though, that an ongoing inconsistent application of
procedural policies may give rise to a breach of fairness on the basis of a
party’s reasonable expectations.
[16]
While
there is a certain bluntness to the Commission’s guidelines in situations like
this one, I do not find that their application in this case gave rise to any procedural
unfairness. I doubt whether at common law any obligation of fairness arises in
favour of a non-party witness who is subject to a voluntary interview conducted
at the investigation stage of a complaint under s. 43 of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6. Generally a non-party witness who
testifies under compulsion is only entitled to separate legal representation
where there is a risk of self-incrimination or where the witness’ fundamental
rights might be infringed: see Vapour Canada Ltd. v. MacDonald (No. 2) (1971),
[1971] F.C. 465, 22 D.L.R. (3d) 607 (F.C.T.D.). Even if a duty of fairness does
arise, it is surely satisfied by the fairly generous rights afforded to
employees by Situation C. One can, of course, question whether a blanket
prohibition of corporate legal assistance to a willing employee is strictly
necessary. But this I believe falls within the permissible range of procedural
options that a decision-maker can choose in the control of its own processes.
[17]
The
RBC argues that the Commission had a duty to advise it of the exception to its
policy created by Situation D. That provision, it says, allows for the
attendance of respondent’s counsel at an interview upon the request of a
witness.
[18]
Situation
D in the Commission’s policy states:
Situation D:
·
the
witness requests that a respondent representative or respondent legal counsel
be present;
·
the
situation is provided for in a regulation adopted pursuant to the Canadian
Human Rights Act.
[19]
The
RBC’s argument is premised on a disjunctive interpretation of the above two
clauses which, superficially at least, is supported by the absence of the
conjunction “and”.
[20]
Although
Situation D is poorly worded, the context establishes that the two phrases were
intended to be read conjunctively. Any other interpretation would completely
undermine the qualification in Situation C which expressly disqualifies a
respondent’s legal counsel from acting in such a capacity. It is to be
expected that policies or guidelines of this sort will not always meet the
grammatical standards that one could expect from a statutory instrument and
they should not be read as rigorously as the RBC contends.
[21]
The
RBC also complains that the Commission’s decision to deal with the complaint in
its entirety (notwithstanding the Investigator’s qualified recommendation) is
not supported by adequate reasons and is otherwise unreasonable. I do not
agree.
[22]
The
Commission was entirely justified in finding that the RBC’s lack of cooperation
at the investigation stage was a compelling basis for referring the complaint
to the Tribunal. The RBC took an unjustified position with respect to its
witnesses. While the decision to withhold evidence seems to have been made in
good faith, the RBC, nevertheless, courted the risk that its refusal to
cooperate might attract adverse consequences. A party can hardly expect that
its strategic interests will be enhanced by a decision to withhold evidence
particularly where the witnesses involved are the alleged perpetrators of a
human rights complaint. In this situation many of the Complainant’s
allegations came before the Commission unchallenged and it was not an error to
find that a full hearing was necessary to resolve all of the outstanding issues
of credibility.
IV. Costs
[23]
Neither
party is seeking costs against the other and, in the result, no costs are
awarded.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed without costs.
“ R. L. Barnes ”
Email this Content