Date: 20071214
Dockets: T-67-07
T-68-07
Citation: 2007 FC 1309
BETWEEN:
ABDOURAHMAN
MOHAMED SADICK
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
PINARD J.
[1]
These
are applications for judicial review of two decisions of the Canadian Human
Rights Commission (the Commission). The Commission dismissed the applicant’s
complaints against his employer to the effect that the employer had
discriminated against him.
* * * * * * *
*
[2]
The
applicant was employed as an administrative support officer at the CR-04 level
from August 1, 2001 to May 26, 2004. From August
1, 2001 to June
2, 2003,
he worked under the supervision of Alain Belleville. Following problems
between them and also with another employee, the applicant received a temporary
transfer to the ministerial reports unit, under the supervision of
Ginette Giroux.
[3]
The
applicant was on sick leave from July 23, 2003 to November 16,
2003.
On his return, he was again placed in the public rights administration unit,
under the supervision of Suzanne Cardinal. The applicant went back on sick
leave in February 2004. His contract was not renewed and he has not been on the
employee list since May 26, 2004.
[4]
On
May
26, 2004,
the applicant filed a first complaint with the Commission, alleging that his
employer had discriminated against him based on his race and his national or
ethnic origin.
[5]
On
August 30, 2005, the applicant filed a second complaint with the Commission,
alleging that he had knowledge of new facts and documents and that his employer
had discriminated against him based on his race, his national or ethnic origin
and his disability, which led to his layoff.
* * * * * * *
*
[6]
Louise
Chamberland investigated for the Commission and prepared two investigation
reports on May
26, 2006,
recommending that both complaints be dismissed.
[7]
In
regard to the first complaint, the applicant named 34 witnesses. Of these
witnesses, the investigator consulted those whom she considered the most
relevant as well as several others chosen at random. These witnesses included
the applicant’s supervisor, Diane Burrows, who was the supervisor of
Mr. Belleville, and some of the applicant’s colleagues. The investigator
reviewed the many aspects of the complaint and summarized the submissions of
the applicant, respondent and witnesses whom she had questioned. She determined
that the evidence did not support the applicant’s allegations, but that it
indicated rather that the applicant had performance and work attendance issues,
and that management had done its best to help him improve his performance.
[8]
In
regard to the second complaint, the investigator summarized the submissions of
the parties and the witnesses to determine that [translation] “the evidence established that the complainant
had performance and work attendance issues in the three positions that he
occupied,” and that this was the reason his contract had not been renewed,
rather than race, colour, national or ethnic origin.
[9]
Both
reports were disclosed to the parties and, following their response, the Commission
sent its decisions by letter dated December 12, 2006:
[translation]
. . . the Commission has decided to
dismiss the complaint (20040511) pursuant to paragraph 44(3)(b) of
the Canadian Human Rights Act, because
·
The
evidence does not support the complainant’s allegations to the effect that he
had been subject to harassment and differential treatment based on his race,
his colour and his ethnic origin.
In regard
to the complaint (20051699), the Commission also decided to dismiss the
complaint pursuant to paragraph 44(3)(b) of the Canadian Human
Rights Act, because
·
The
evidence gathered does not support the complainant’s allegation to the effect
that he had been dismissed on the basis of his race, his colour, his ethnic
origin or his disability.
These
decisions are the subject of these applications for judicial review in docket
numbers T-67-07 and T-68-07.
* * * * * * * *
[10]
The
relevant provisions of the Canadian Human Rights Act, R.S.C. 1985,
c. H-6, (the Act) read as follows:
|
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).
|
* * * * * * *
*
[11]
The
applicant is essentially complaining that procedural fairness was not observed
in this matter.
[12]
The
parties agree that when the Commission investigates a complaint, they expect
the Commission to proceed in a neutral and rigorous fashion. No judicial
deference is given to the Commission if it does not act in accordance with the
principles of procedural fairness (see Sketchley v. Canada (Attorney
General),
[2006] 3 F.C.R. 392 (C.A.) and Slattery v. Canada (Human
Rights Commission), [1994] 2 F.C. 574, at paragraph 56).
[13]
In
this case, the applicant claims that the Commission is in default because the
investigator failed to question certain witnesses whom he considered to be key:
the ombudsman, the union representatives, the ministerial representative
responsible for the campaign against harassment in the workplace and two of the
three general directors. Further, the applicant claims that the investigator
did not inquire to determine who made the decision not to renew his contract
and therefore could not determine whether race, national or ethnic origin or
disability may have been factors in that decision.
[14]
I
agree with the respondent that the witnesses proposed by the applicant would
not at all have contributed to the investigation, because they had no direct
knowledge of the facts alleged by the applicant. It is only in exceptional
circumstances that the Court can intervene with a decision by the Commission
based on the lack of an interview (see, inter alia, Tahmourpour v.
Canada (Solicitor General), 2005 FCA 113, [2005]
F.C.J. No. 543 (C.A.) (QL), Grover v. Canada (National Research
Council), 2001 FCT 687, [2001] F.C.J. No. 1012 (F.C.T.D.) (QL)
and Singh v. Canada (Attorney General), 2001 FCT 198, [2001]
F.C.J. No. 367 (F.C.T.D.) (QL)). In this case, the investigator
questioned the witnesses who were directly involved in the events leading to
the applicant’s complaints. The applicant consulted the ombudsman and the union
representatives, but these individuals were not directly involved in the
decisions. Similarly, there is no indication that the general directors, other
than Ms. Burrows, who was questioned by the investigator, had been
involved in the decisions involving the applicant.
[15]
In
regard to whether prohibited grounds played a role in the decision not to renew
the applicant’s contract, it appears that the investigator did not only
investigate the applicant’s performance, but that she also determined that the
prohibited grounds he alleged did not play a role in the decision not to renew
his contract. My review of the record indicates that the investigation was
sufficiently rigorous on this issue.
[16]
Further,
the applicant appears to claim that the investigator did not examine whether
the employer discharged its duty of reasonable accommodation of his disability.
In my opinion, the Commission’s investigation was also sufficiently rigorous on
this issue. Specifically, the investigator makes the following remarks in her
report:
[translation]
The complainant alleges that no measure
was taken by the Department to come to assist him. On February 3, 2004, he found himself compelled
to take a second sick leave on the advice of his attending physician. The
complainant adds that Ms. Cook [Ms. Giroux’ supervisor] and
Ms. Giroux were aware of his problems with Mr. Belleville and
Mr. Virgo [one of the applicant’s colleagues], they told him that their
work environment would be different. He adds that he did not have any problem
in terms of his performance or attendance under the supervision of
Ms. Cook. On November 17, 2003, the complainant had returned to
the public rights
administration branch.
On November 14,
2003, his
physician asked his employer to accommodate him.
According to the mis en cause, in May
2003, the complainant filed a grievance in which he stated he had been harassed
by his supervisor and by some of his colleagues. In order to resolve the
situation, Ms. Burrows offered the complainant a new assignment with the
ministerial report unit, a new supervisor, Ms. Cook, giving her minimal
information about the situation. This assignment began on June 4, 2003, for an
initial three-month period. The same problems in terms of performance and
attendance were soon apparent in this new position . . .
The mis en cause explained that the
complainant returned to work in his former position on November 17, 2003. In order to facilitate his
reintegration, he was assigned new duties and a new supervisor, the same
performance and attendance problems were apparent.
According to the mis en cause, Ms.
Burrows allegedly tried on several occasions to communicate with the
complainant’s physician for details about measures that could be taken to help
the complainant. The physician never returned her calls.
[17]
In
my opinion, this passage tends to establish that the investigator effected the
necessary research on the applicant’s accommodation, which precludes the
intervention of the Court.
[18]
Finally,
the applicant contends that the Commission had an obligation to provide reasons
to explain its decisions, given the deficient investigation, the importance of
the question raised and the long period of time that had elapsed since the
complaints were filed. For his part, the respondent argues that the Act does
not require the Commission to give reasons for its decisions.
[19]
On
this point, the Act is clear that “[w]here the Commission’s decision gives
effect to the investigator’s report, a complainant can reasonably assume that
the Commission adopted the investigator’s reasoning” (Gardner v. Canada
(Attorney General), 2005 FCA 284, [2005] F.C.J. No. 1442
(FCA) (QL), at paragraph 23). As the Federal Court of Appeal properly
noted in Bell Canada v. Communications, Energy and Paperworkers Union of
Canada, [1999] 1 F.C. 113, at paragraph 30: “The Act does not
require the Commission to give reasons and in any event . . . the reasons for
the Commission's decision may be found in the very extensive report of the
investigator which the Commission adopted . . .” In view of the elaborate
investigation reports in this matter, the Commission was not bound to provide
additional distinct reasons.
* * * * * * *
*
[20]
For
all of these reasons, the applications for judicial review are dismissed, with
costs.
“Yvon
Pinard”
OTTAWA, Ontario
December
14, 2007
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content