Date: 20110118
Docket: T-885-10
Citation: 2011 FC 56
Ottawa, Ontario,
January 18, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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KALPANA GUPTA
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Applicant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms.
Gupta asks the Court to review and set aside a decision of the Canadian Human
Rights Commission (CHRC) dismissing her complaint against her employer, Indian
and Northern Affairs Canada (INAC). Ms. Gupta alleges that she was
discriminated against because she was denied employment and training
opportunities and subjected to harassment on the basis of race, national ethnic
origin, colour, and sex.
[2]
The
CHRC appointed an investigator to investigate the applicant’s complaint. After
conducting an investigation, the investigator wrote a report recommending that the
complaint be dismissed. The applicant was provided with a copy of the report
and an opportunity to respond. After receiving additional submissions from the
applicant, the CHRC decided to follow the investigator’s recommendation and
dismissed the complaint pursuant to s. 44(3)(b)(i) of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6, because it was satisfied “that, having
regard to all the circumstances of the complaint, an inquiry into the complaint
is not warranted.”
[3]
I am
not convinced that the decision of the CHRC was unreasonable or that there was
an error of law made in the process leading to its decision; accordingly, for
the reasons that follow, this application is dismissed.
Background
[4]
The applicant began her employment
with INAC in 1998 as a Data Base Clerk CR-04, and from 2005 to 2007 worked as a
Post-Secondary Support Clerk CR-04. She applied for or expressed interest in
nine substantive or acting positions and two training opportunities but says
that her applications were denied as a result of adverse differential treatment
and discrimination. She also says that she was subjected to discriminatory
harassment in the workplace. The investigator found that none of these
allegations were supported by the evidence.
[5]
The investigator did not address
the following issues that had been raised in the complaint due to a lack of
evidence: allegations relating to membership in employee organizations under s.
9 of the Act; allegations relating to discriminatory policies or practices
under s. 10 of the Act; allegations relating to pay equity under s. 11 of the
Act; and allegations of discrimination based on age. No issue is raised by the
applicant with the investigator’s decision in this regard.
[6]
In conducting her investigation,
the investigator interviewed nine individuals, including the applicant and her
representative, Dr. Noel Ayangma, and three other persons suggested by the
applicant. In addition, she also reviewed a large number of documents that are
described in the report. The investigator examined the alleged lost job
opportunities, the alleged lost training opportunities and the alleged
harassment.
Job Opportunities
[7]
The investigator considered, in
some detail, each of the positions which the applicant unsuccessfully expressed
interest in or applied for. In each case, the investigator found that the
evidence did not support a finding that the applicant was treated differently,
as summarized below:
- Compliance Officer PM-02 (September
2004): The investigator found that the competition for this position was
cancelled. The applicant and 47 other applicants for the position were
informed of this fact. The investigator found that “the evidence does not
support [the allegation that] the complainant was treated differently from
other applicants.”
- Compliance Co-ordinator PM-04
(November 2004): The applicant alleged that she was screened-out of the
competition because she was found to lack experience in two areas. She
said that she provided further information regarding her experience that
was not accepted, although further information was accepted from a
Caucasian male. The respondent stated in its response to the complaint
that the Selection Board for the position considered the applicant’s
additional information but that it did not enhance her qualifications.
The investigator found that the applicant was given an opportunity to
provide further information and an opportunity to appeal the hiring
process. The investigator found that “the evidence does not support [the
allegation that] the complainant was treated differently from other
candidates.”
- Compliance Officer PM-02 (February
2005): The applicant was screened-in to write the test for the position
and invited to write an “Officer’s simulation 425 test,” which she
failed. She alleged that the test was similar to the “428 test,” which
some candidates had already written as part of an application for another
position, and that accordingly, other candidates had an advantage. The
officer noted, incorrectly, that the applicant grieved the results of the
425 test to the Public Service Labour Relations Board and the Federal
Court of Appeal.
The investigator noted that, as per the Appeal Board decision, the
candidate who was ultimately successful had not previously written the 428
test. The investigator found that “the evidence does not support [the
allegation that] the complainant was treated differently from other
candidates.”
- Estate and Governance Officer
(anticipatory) PM-02 (May 2005): The applicant placed first in a
competition for this anticipatory position and was placed on an
eligibility list, but the list expired without her being appointed to a
permanent position. The respondent presented evidence that anticipatory
positions are created to staff positions which may become open in the
future, and that in this case the position did not become open. However,
the complainant was selected to occupy this PM-02 position on an “acting”
basis on two occasions on the basis of the eligibility list. The
eligibility list was eventually invalidated under the mandatory provisions
of the new Public Service Employment Act, S.C. 2003, c. 22, ss. 12,
13 [PSEA]. The investigator found that “the evidence does
not support [the allegation that] the complainant was treated differently
from other employees.”
- “Acting” AS-03 position in Lands and
Governance and “Acting” AS-02 position in Corporate Services (May 2006):
The applicant said she was denied appointment to these positions despite
expressing interest. The respondent stated that the applicant, along with
others, was denied the opportunity to work in certain acting positions
because of a “realignment initiative” taking place at the time. The
applicant was appointed to other “acting” positions before and after the
realignment. The investigator found that “the evidence does not support [the
allegation that] the complainant was treated differently from other
employees.”
- “Acting” AS-05 appointment and vacant
AS-02 opportunity (July 31, 2006): The applicant said she was denied
appointment to these positions despite expressing interest. The
respondent provided evidence that it appointed someone to act in the AS-05
position for less than four months, in accordance with its policies, and
stated that the applicant did not apply for either the AS-05 or AS-02
permanent positions. The investigator found that “the evidence does not
support [the allegation that] the complainant was treated differently in
that she was not appointed to the AS-05 or AS-02 position, nor did she
apply.”
- Compliance Officer PM-02 (July 2006):
The applicant said she was denied appointment to this position despite
expressing interest. The respondent provided evidence that while the
hiring process was underway for this position several candidates,
including the applicant, were selected to act as PM-02 Compliance
Officers. The applicant was offered an extension of her position but
refused the offer unless the extension would be for at least two years.
The respondent’s policy provides that acting appointments for more than
one year are advertised and subject to its hiring processes, and
accordingly this demand was denied. The investigator found that “the
evidence does not support [the allegation that] the complainant was
treated differently from other employees.”
[8]
The investigator also considered
the applicant’s allegation that after the eligibility list for the Estate and
Governance Officer position expired, the respondent advertised a Compliance
Officer PM-02 position. The applicant failed the test for this position, but
argued that she should have been appointed nonetheless because she had been
doing similar work in her position as Post-Secondary Support Clerk CR-04 and
was on the aforementioned eligibility list. The investigator determined, based
on the respective job descriptions for the Estate and Governance Officer and
Compliance Officer positions, that the experience and knowledge required for
the positions were different. The investigator also considered the applicant’s
statement that Mr. Kevin McKeever was appointed as a Compliance Officer despite
not participating in the Compliance Officer PM-02 competition, but found that
this was because Mr. McKeever was an aboriginal person appointed under a
specific provision of the PSEA. The investigator reviewed the process
for creating eligibility pools and hiring from different units, but concluded
that she could not link the applicant’s non-appointment to the Compliance
Officer position to the applicant being treated differently than other
employees. The investigator found that she “could not link the complainant’s
lack of appointment to Compliance Officer PM-02 to the complainant being
treated differently from other employees.”
[9]
The investigator considered the
applicant’s complaint that although she was appointed to “acting” positions,
unlike her fellow employees she was never ultimately appointed to indeterminate
or permanent positions. The investigator reviewed the nature of “acting” appointments
in the public service, specifically noting that such appointments serve as
training and professional development opportunities, do not require appointees
to be qualified to “act” in a certain position, and do not guarantee a
permanent position because candidates must still successfully complete job
competitions based on merit criteria.
[10]
The investigator reviewed
organizational charts for the respondent’s Manitoba region and determined
that not every person acting in a position was ultimately permanently appointed
to that position. The investigator found that the applicant was not appointed
to a permanent position from her “acting” positions because these positions
were filled according to the respondent’s hiring practices. The investigator found
that “the evidence does not support [the allegation that] the complainant was
treated differently from other employees.”
Training
Opportunities
[11]
In June 2006, the applicant
requested an opportunity to attend a “train the trainer” session as part of the
First Nations and Inuit Transfer Payment project. She was denied permission to
attend due to realignment issues within the department. The investigator noted
evidence that for a period of four months in 2006, a number of people in the
applicant’s unit were denied training or acting opportunities. The
investigator found that “the evidence does not support [the allegation that]
the complainant was treated differently from other employees.”
[12]
In June 2008, the applicant was
approved to attend the Joint Learning Program (JLP) 5-day workshop aimed at
training participants to act as “facilitators” to improve labour relations
between union members and management in the workplace. However, after
reviewing the applicant’s request, the applicant’s supervisor, Mr. Fred Mills,
denied the request on the grounds that (i) the training was more suited to
human resources practitioners, managers, and union representatives, and (ii)
there was a backlog in the processing of the reports for which the applicant was
responsible. The investigator found that (i) the applicant was treated
differently from other employees in that she was first approved for training
and then denied, and (ii) the treatment involved negative consequences for the
applicant in that she was not able to advance her career aspirations, and
accordingly the investigator proceeded to consider whether the applicant was
treated differently based on characteristics related to one or more prohibited
grounds of discrimination. The investigator reviewed the evidence gathered
from the various witnesses, specifically noting (i) acting and training
requests were often denied during the high business cycle of the unit, (ii) the
decision on whether to approve an employee for participation in the JLP rests
solely with the employee’s supervisor, (iii) according to the applicant there
was always a backlog of work, and the backlog was outside her responsibility
and not within her ability to fix, and (iv) the respondent focused on those
involved with the union in considering JLP requests. Ultimately, the
investigator concluded that “the evidence does not link the denial of the
training to the complainant self-identifying as an East Indian woman.”
Harassment
[13]
The investigator considered the
applicant’s allegations that she was subjected to harassment by her managers,
specifically noting:
- that the applicant’s supervisor
during an “acting” opportunity gave her a poor evaluation, which she had
never had before;
- that during a meeting, the Director
of Funding Services stated that the applicant could not be appointed to
the Compliance Officer PM-02 position from the Band and Estates Governance
PM-02 position because the job criteria were incompatible and because the
applicant had previously failed the applicable test, and that the applicant
found these comments “disrespectful and belittling”; and
- that the applicant’s supervisor’s
manager, denied the applicant’s request to volunteer at a career fair and,
in another incident, questioned her use of time in relation to a
presentation she had given at a conference.
[14]
After reviewing these allegations,
the investigator determined that “the incidents as reported by the complainant
with documentation provided by the complainant supported the respondent’s
assertion that its managers were acting within established guidelines.” The
investigator found that “the evidence does not support [the allegation that]
the complainant was subject to harassment by the respondent’s managers.”
[15] The investigator recommended that the CHRC dismiss the
complaint because:
·
“The evidence gathered does not
indicate the respondent denying the complainant training and career
opportunities is linked to the fact that she is an East Indian woman; [and]
·
The evidence gathered does not
indicate the respondent failed to provide a harassment-free environment.”
[16]
The applicant provided submissions
in response to the investigation report, and after examining both the report
and the submissions, the CHRC dismissed the complaint on the basis that there
was not sufficient evidence to warrant further inquiry by the Canadian Human
Rights Tribunal. The CHRC addressed the applicant’s submission that the report
excluded Dr. Ayangma’s evidence, noting that the Dr. Ayangma was the
applicant’s representative during the investigation and that the applicant did
not fill any gaps in the evidence with information from Dr. Ayangma. The CHRC
also considered the applicant’s correction of the inaccurate information
regarding her grievance included in the investigation report, as reflected at
footnote 1 above, but determined that this information did not form the basis
for its decision to dismiss her complaint.
Issues
[17]
The applicant raises the following
issues:
a.
Whether the investigator exceeded
her jurisdiction by conducting herself as a Tribunal; and
b.
Whether the investigator conducted
a thorough and neutral investigation into the complaint?
[18]
The
parties and the Court are agreed that the standard of review of these issues is
correctness. The thoroughness and
neutrality of an investigator’s report are issues of procedural fairness: Slattery
v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff’d [1996] F.C.J. No.
385 (C.A.). at paras. 48-49; Tahmourpour v. Canada
(Solicitor General), 2005 FCA 113, at
para. 8. Accordingly, this issue is reviewed on the correctness standard. The
jurisdictional issue is a question of law and is also reviewable on the
correctness standard.
Whether the investigator exceeded her jurisdiction by
conducting herself as a Tribunal
[19]
The applicant submits that the
investigator exceeded her jurisdiction by conducting herself as if she were the
Tribunal. She says that neither the Commission nor an investigator has the
power to determine whether discrimination actually occurred, but that the
Commission’s role, and hence an investigator’s role, is only to determine
whether a complaint requires further investigation by the Tribunal. The applicant
says that the questions posed by the investigator purporting to examine the
allegation of adverse differential treatment is equivalent to determining if
the complaint is made out, and therefore made findings on important issues that
should have been left for the trier of fact.
[20]
The questions posed by the
investigator in her report, with respect to discrimination, were as follows:
Investigation
of Alleged Differential Treatment in Employment
Step 1:
The investigation will examine whether there is support for the complainant’s
allegation of adverse differential treatment by considering:
i.
in relation to the conduct complained of, whether the complainant was
treated in a manner different as compared to other employees;
ii.
whether this treatment involved negative consequences for the
complainant;
iii.
whether the complainant was treated differently based on characteristics
that relate to one or more prohibited grounds of discrimination.
Step 2: Depending
on the investigator’s findings, the investigation may also consider:
i.
whether the respondent can provide a reasonable explanation for its
actions that is not a pretext for discrimination on a prohibited ground.
The investigator
provided a similar set of questions with respect to the alleged harassment.
[21]
The applicant also submits that in
concluding that the evidence did not support her allegation that she was
treated differently, the investigator exceeded her jurisdiction since this was
a determination to be made by the Tribunal after weighing the evidence.
[22]
The applicant notes that at the
investigative stage of a proceeding under the Act a complainant need only make
out a prima facie case of discrimination to establish a complaint has
merit, and that an investigator’s assessment of whether the prima facie case
has been established must be made without weighing the evidence. The applicant
submits that to reach the conclusions she did, the investigator must have
weighed the evidence, and that doing so constitutes a reviewable error.
[23]
I find that the investigator did
not usurp the role of the Tribunal in conducting her investigation. Although
the applicant has seized upon language she says indicates that the investigator
acted as an adjudicator by weighing evidence and making final determinations, a
review of the report as a whole does not support this assertion.
[24]
The applicant has failed to
appreciate the important distinction between assessing the weight of evidence
and assessing the sufficiency of evidence. Assessing the weight of evidence
involves assessing the evidentiary value of the evidence – in this exercise the
decision-maker assesses the persuasiveness of particular evidence in
comparison with other evidence. Assessing the
sufficiency of evidence involves considering the probative value of the evidence
– in this exercise the decision-maker assesses whether the evidence has a tendency
to prove or disprove some allegation, such as allegations of discrimination and
harassment. It is generally accepted that it is not within the Commission’s or
the investigator’s authority to weigh the evidence: Syndicat des employés de
production du Québec et de l'Acadie v Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R.
879 [S.E.P.Q.A.]. It is, however, within their power to assess the
probative value of the evidence: Slattery, above, at para. 56; Tan v
Canada Post Corp., [1995] F.C.J. No. 899 (T.D.), at para. 25; Bell
Canada v Communications, Energy and Paperworks Union,
[1997] F.C.J. No. 207 (T.D.), at para. 27.
[25]
When considering whether to refer
a complaint to the Tribunal for an inquiry, the Commission must consider
whether an inquiry is “warranted”; this process involves evaluating the
sufficiency of evidence. It has been analogized to a preliminary inquiry: Cooper
v Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 53, S.E.P.Q.A, above,
and more recently in Herbert v Canada (Attorney General), 2008 FC 969, at para. 16.
[26]
Here, the investigator accepted
the evidence as true but determined that no inference of discrimination could
be drawn from the evidence offered by the applicant. The investigator did not
assign value to the evidence or prefer the evidence of the respondent over that
of the applicant. Rather, she considered all of the evidence and determined
that it was insufficient to support a finding of discrimination. In her
report, the investigator concludes that the evidence “does not support” a
finding of differential treatment, that the evidence “does not identify”
differential treatment, that she “could not link” the evidence to differential
treatment, or self-identification as an East Indian woman, and lastly that the
applicant’s evidence with respect to discrimination supported the respondent’s
position. These findings were all determinations regarding the probative value
of the evidence, not the weight to be given to it. Upon reading the report as
a whole I find that the investigator accepted the evidence presented, but
determined that it did not establish discrimination.
Whether the investigator conducted a thorough and neutral
investigation
[27]
The
applicant submits that there is “ample evidence” that the investigation lacked
thoroughness and neutrality and that the decision was made without regard to
some of her submissions and materials. In particular, the applicant says that
the Commission erred in law by failing to consider or address important issues
raised in her post-investigation submissions, including her allegation that the
investigator exceeded her jurisdiction by acting as the Tribunal, and that such
a failure to address important issues in an applicant’s rebuttal is a
reviewable error: Busch v Canada (Attorney General), 2008 FC 1211,
para. 17.
[28]
Contrary to the applicant’s
submission, I find that the Commission did not fail to consider the issues
raised in her post-investigation submissions. The Commission:
- considered the
applicant’s jurisdictional argument, explained the role of the
investigator and Commission, and explained the requirement that there be
sufficient evidence to support a further inquiry;
- noted that the
report considered each element of the allegations;
- noted that Dr.
Ayangma was the applicant’s representative but found that the applicant
did not fill any gaps in the evidence with information from Dr. Ayangma;
and
- noted the
applicant’s corrections to the information at paras. 36-39 of the report,
and explained that while it may be inaccurate, it formed no basis for the
Commission’s decision to dismiss her complaint.
[29]
Busch, above, is clearly distinguishable. In Busch,
Justice Snider, at para. 11, specifically noted that the Commission’s decision
made no specific reference to Ms. Busch’s response to the report, but was
merely a “boilerplate” statement that her submissions had been considered. Here,
in the four ways noted in paragraph 28, the Commission specifically and
effectively addressed the applicant’s response to the report.
[30]
The
applicant also submits that the investigator erred by failing to consider
relevant information provided to her by the applicant’s witnesses, Dr. Ayangma
and Archie McGillivray. The applicant says that although the investigator
interviewed Dr. Ayangma, her report clearly excludes Dr. Ayangma’s evidence.
[31]
The
investigator did not fail to consider relevant information provided by Dr.
Ayangma or Mr. McGillivray. The investigator interviewed both of these
witnesses. In her report, she noted Dr. Ayangma’s opinion that once the
applicant was given an acting appointment, there was an expectation that she
would be given the job permanently. She also repeatedly referred to Mr.
McGillivray’s evidence. The investigator need not refer to every single piece
of the applicant’s witnesses’ evidence; any omissions were not of a “fundamental
nature” and did not concern “obviously crucial” evidence (Slattery, above).
Much of the “evidence” presented by Dr. Ayangma and Mr. McGillivray was mere
personal belief and was highly circumstantial. Dr. Ayangma was the applicant’s
“advocate” but had no direct or personal knowledge of the circumstances giving
rise to this case, and there is no basis for the applicant’s argument that the
investigator excluded Dr. Ayangma’s evidence because it supported the
applicant’s case. Furthermore, although Mr. McGillivray asserts that the
applicant suffered discrimination, he did not present any evidence of this
discrimination beyond descriptions of what he clearly believed was a flawed
management style employed by managers at INAC.
[32]
The
applicant further argues that the fact that 47 other applicants were also
informed of the cancellation of the Compliance Officer PM-02 competition in
September 2004 was not a sufficient justification for why the competition was
cancelled after she passed a written test or for why the cancellation of the
competition was not discriminatory. The applicant asserts that by failing to
consider this issue further under the test the investigator laid out, the
investigator erred in law and failed to conduct a thorough and neutral investigation.
[33]
I
find this submission to be without merit. The decision the applicant complains
of was the same one that affected all 47 other applicants; because she received
the same treatment as all other applicants, there was no differential
treatment.
[34]
Lastly,
the applicant submits that the investigator’s findings regarding the Compliance
Officer PM-02 competition and the challenge to the competition she launched
were made in total disregard for the material that was before the investigator,
thus raising doubts as to the thoroughness, reliability, neutrality, and
objectivity of the report.
[35]
The errors in the report relating
to the applicant’s earlier challenge to the Compliance Officer PM-02
competition (February 2005) was merely a minor error in detail and did not
affect the decision. The Commission made specific note of this error.
[36]
In my assessment, the report went
into considerable detail and examined all of the incidents of purported
discrimination alleged by the applicant. It was thorough. There is nothing to
support the applicant’s allegation that the report was not neutral.
[37]
For
these reasons this application must be dismissed. The respondent informed the
Court that it was not seeking its costs.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application is dismissed, without costs.
"Russel W.
Zinn"
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