Date: 20110309
Docket: T-109-10
Citation:
2011 FC 276
Ottawa, Ontario, March 9, 2011
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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GISSY VALOOKARAN
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Applicant
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and
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ROYAL BANK OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant, Ms. Gissy Valookaran, was an employee of the
Respondent, the Royal Bank of Canada, from November 2002 to June 2010. On May 19, 2009, the Applicant filed a
complaint against the Respondent with the Canadian Human Rights Commission (the
Commission), alleging that, between 2005 and 2009, she experienced
discrimination on account of her national or ethnic origin, colour, religion,
family status and disability. She is a South Indian Christian woman who is
married with two children. In a letter dated December 23, 2009, the Commission
advised the Applicant that it had decided, pursuant to s. 41(1)(c) of the Canadian Human Rights
Act, R.S.C. 1985, c. H-6 (the Act), that it would not deal with her complaint
because the allegation “is not based on a prohibited ground of discrimination
identified in section 3 of the Act.” The Applicant asks this Court to quash
the decision.
II. Issues
[2]
The issues raised by this application are
whether the Commission erred by:
·
not providing the Applicant with an opportunity to respond to submissions made by the
Respondent to the Commission; or
·
unfairly limiting the Applicant’s ability to
set out her complaint by setting page length limits; or
·
preventing the Applicant from providing
supporting evidence to her complaint by telling her that she did not need to
provide examples of discriminatory actions based on colour or origin until
after the Commission’s decision was made; or
·
ignoring the Applicant’s November 7, 2009
submissions.
III. Background
[3]
I will begin by outlining the background to
this application for judicial review.
[4]
The Applicant’s complaint to the Commission was made in the form required by the Commission and
was confined to three pages. The events described in the complaint consisted
mainly of a series of negative interactions with her supervisors.
[5]
Following the applicant’s initial complaint of
May 12, 2009, the Respondent was provided with an opportunity to respond to the
complaint. The Early Resolution Services Division of the Commission drafted a Section
41 Report (the Report). The purpose of this Report was to assess whether the
Commission should refuse to deal with the Applicant’s complaint pursuant to
paragraphs 41(1)(c), (d), or (e) of the Act. The Report, which included
statements from the Respondent’s submissions, considered the submissions of
both parties and provided as analysis in respect of each of the statutory
provisions. Key to the application before me, the Report found that the
Applicant had not demonstrated a link to a ground of discrimination in the Act,
as required by s. 41(1)(c). Quite simply, the complaints of the Applicant
disclosed nothing more than an ongoing workplace dispute with no nexus to the
Applicant’s national or ethnic origin, colour, religion, family status or
disability.
[6]
The Applicant was provided with an opportunity
to respond to the Report. An Early Resolution
Analyst advised the Applicant of shortcomings in her response and she was given
“detailed information on redrafting her response”. In a letter dated November 7, 2009, the Applicant provided her response to
the Report which expanded on the allegations in her original complaint. The
Respondent provided its further submissions on November 24, 2009.
[7]
By letter, dated December 23, 2009, the
Commission advised the Applicant that it had decided, pursuant to s. 41(1)(c)
of the Act, that it would not deal with her complaint because the
allegations are “not based on a prohibited ground
of discrimination identified in section 3 of the Act”. The Commission adopted the analysis of the Report under s.
41(1)(c) and declined to address the other issues.
IV. Statutory
Scheme
[8]
It is useful to briefly describe the overall scheme of the Act
in dealing with complaints. Under the Act (see s.3 and s.7), it is a
“discriminatory practice” for an employer to “differentiate adversely in
relation to an employee” on the prohibited grounds of race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, marital status, family
status, disability and conviction for which a pardon has been granted. The Act
is not intended to address employee grievances that do not amount to such
discrimination. In general, individuals who feel that they have reasonable
grounds for believing that an employer has engaged in discriminatory practices
based on one or more of the prohibited grounds may file a complaint with the
Commission (s. 40(1)).
[9]
While s. 41 of the Act mandates the Commission to
“deal with any complaint filed with it”, the Act also provides the
Commission with the ability to screen out certain complaints, prior to any
investigation.
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41. (1) Subject to section 40, the Commission shall deal with any
complaint filed with it unless in respect of that complaint it appears to the
Commission that
. . .
(c) the complaint is beyond the jurisdiction of the Commission;
. . .
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41. (1) Sous réserve de l’article 40, la Commission
statue sur toute plainte dont elle est saisie à moins qu’elle estime celle-ci
irrecevable pour un des motifs suivants :
. . .
c) la plainte n’est pas de sa compétence;
. . .
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V. Standard of Review
[10]
The Federal Court of Appeal has consistently
held that a decision by the Commission to dismiss a complaint pursuant to s. 41
of the Act is to be afforded a large degree of deference and is to be
reviewed on the reasonableness standard (see Balogun v R, 2010 FCA 29,
399 NR 306 at paragraph 6, Corbiere v Wikwemikong Tribal Police Services
Board, 2007 FCA 97, 361 NR 69; Garvey v Meyers Transport Ltd, 2005
FCA 327, 341 NR 102).
[11]
However, the Applicant’s concerns focus on the
question of whether the Commission breached the duty of fairness in the
handling of her complaint. Questions of procedural fairness are reviewable on a
correctness standard (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43).
VI. Analysis
[12]
As noted above, the Commission has a statutory mandate to
receive and deal with complaints of discrimination on the basis of, inter
alia, race, national or ethnic origin, colour, or disability. The role of
the Commission is to deal with the intake of complaints and to screen them for
proper disposition (see Cooper v Canada
(Human Rights Commission), [1996] 3 S.C.R. 854 at paragraph 52). As
noted by the Supreme Court in Cooper, above, at paragraph 53:
It is not the job of the Commission to determine if the
complaint is made out. Rather its duty is to decide if, under the provisions of
the Act, an inquiry is warranted having regard to all the facts. The central
component of the Commission's role, then, is that of assessing the sufficiency
of the evidence before it.
[13]
Moreover, I observe that s. 41(1)(c) of the Act
provides the Commission with considerable discretion. Specifically, s. 41(1)(c)
provides that “the Commission shall deal with any complaint filed with it unless
in respect of that complaint it appears to the Commission that ... the
complaint is beyond the jurisdiction of the Commission” [emphasis added].
The use of the words “it appears to the Commission” infers the exercise of
discretion.
[14]
In sum, the question that was before the Commission was:
did the submissions put forward by the Applicant disclose a link between the
treatment that she received by the Respondent and discrimination on the grounds
of ethic or national origin or disability? Responding to this question required
the Commission to assess the sufficiency of evidence and to exercise its
discretion in doing so. In carrying out this function, the Commission must
comply with the rules of procedural fairness.
[15]
Procedural fairness does not require the Commission to
undergo a lengthy analysis of the complaint at the initial stages. When the
Commission dismisses a complaint prior to an investigation, the substance of the allegations must be accepted as true (see Michon-Hamelin
v Canada (Attorney General),
2007 FC 1258, at paragraph 23). Where it is plain and obvious, assuming
the truth of the allegations, that the complaint falls under s. 41, an
investigation is not required and the Commission may refuse to deal with the
complaint (see Canada Post Corp v Canada (Human Rights Commission) (1997),
130 FTR 241, [1997] FCJ No 578 (QL) (TD) at paragraph 3).
[16]
The Applicant submits that several errors were made in the
processing of her complaint.
[17]
First, she submits that she was not afforded an opportunity
to respond to the submissions of the Respondent.
[18]
The Report clearly put the Applicant on notice of the
potential problems in her submissions. Specifically, the Report stated that the
Act “does not extend to every situation where a person feels that he/she
has been aggrieved… unless that treatment is related to a prohibited ground, it
does not constitute discrimination under the Act”. While
it is true that the Applicant was not provided with a copy of the initial
submission of the Respondent, an accurate summary of that submission was set
out in the Report. The Applicant was given the opportunity
to make submissions on the Report, at which time she could have addressed any
concerns she had with the Report, with Respondent’s submissions (as described
in the Report), or the procedure. She was also given advice on the
shortcomings of her response by an Early Resolution Analyst.
[19]
I cannot find that the Applicant was not given an
opportunity to present her case or respond to the concerns of the Commission or
the Respondent.
[20]
The Applicant also submits that she was limited in her
ability to present her case by the page length limits of the complaint and
response, as well as by the fact that she could not provide supplementary
evidence.
[21]
Like other administrative bodies, the Commission is the
“master of its own procedure” (see Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at paragraph 119). In reviewing that
procedure, the Court should take into account the balancing of interests
between the Respondent and Applicant and the need for an administratively
effective system (see Slattery v Canada
(Human Rights Commission), [1994] 2 FC 574 at paragraph 56 (TD)
affirmed (1996), 205 NR 383 (CA)). Limiting the length
of the submissions and not allowing supporting evidence at the first stage of
the complaint process was within the Commission’s prerogative and there was no
error in doing so.
[22]
At the screening stage, the Applicant is required to set out
her allegations or facts. She is not required to provide the evidence that
would prove those allegations. Moreover, at the screening stage, the
allegations are taken to be true. There is no need to provide supporting
documentation or evidence. Such evidence only becomes necessary if the
complaint proceeds to an investigation. Thus, the Applicant’s complaint that
she was not allowed to submit supplementary documents or evidence is without
merit.
[23]
Finally, the Applicant submitted that the Commission breached
procedural fairness by failing to consider her November 7, 2009 submissions
which were made in response to the Report.
[24]
In her November 7, 2009 submissions, the Applicant added a few more allegations. She stated that in January
2007 she was denied a pay raise as retaliation for disputes over her performance.
In August 2009, the Applicant was interviewed
for an internal Securities Administrator position, but alleges that she did not
receive this position, despite being qualified, due to retaliation by her manager
and supervisor. The Applicant further asserts that she was never paid for
overtime hours worked. With respect to her colour or ethnicity, the Applicant simply reiterates that she is of South Indian origin. In
addition, she makes the following statements regarding colour or ethnicity:
·
she describes that she was reprimanded in May 2005 because
of her colour;
·
she reiterates that she was moved to another job under a
different Supervisor in August 2006 and that this Supervisor didn’t like people
of “brown colour”;
·
she states that she did not receive a raise in seven years
because of her skin colour; and
·
she alleges that the Respondent’s systems were
discriminatory towards people of her colour.
[25]
While the Applicant may have made a few further references
to her colour, these statements were bald and vague assertions and accusations
with no underlying facts to support them. For example, it is insufficient to
claim that the Respondent’s systems were discriminatory without describing of
how this discriminatory practice manifested itself in the workplace. In short,
the November 7 submission failed to provide any clear link between a ground of
discrimination in the Act and the factual incidents she mentions.
[26]
In its decision of December 23, 2009, the Commission states
that it had reviewed the submissions filed in response to the Report. In
addition, the Record of Decision attached to the decision letter explicitly
sets out the November 7 submission as “material that was considered”. The
submissions were not ignored and, given that the additional submissions did
nothing to address the lack of nexus, there was no error in failing to make
more extensive references to the submissions. In the circumstances, it was not,
in my view, necessary for the Commission to engage in a detailed analysis of
the submission. There is no error.
VII. Conclusion
[27]
For these reasons, the application for judicial review is
dismissed.
[28]
The final matter to discuss is costs. The Applicant is
self-represented. At the close of the hearing, the Respondent advised the Court
that it was not seeking costs. In waiving its right to costs (which would have
been substantial), the Respondent is still entitled to its costs for the
preliminary motions. Moreover, if the Applicant chooses to appeal this decision
and loses, she bears the risk of having to pay the Respondent’s costs on
appeal. Because of this risk, I would encourage the Applicant to seek some
legal advice prior to commencing any appeal.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no costs are awarded.
“Judith A. Snider”
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