Date: 20070423
Docket: T-1701-04
Citation: 2007 FC 428
Ottawa, Ontario, April 23,
2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
DAVID BIRKETT
Applicant
and
CANADIAN HUMAN RIGHTS
COMMISSION
Respondent
and
SUE GOODWIN
Respondent
REASONS FOR ORDER AND ORDER
[1]
She
said she woke at 3:00 a.m. He was in her bed, naked, caressing her
inappropriately.
[2]
He
said it did not happen that way at all. What happened is that they were
watching television. She asked him to rub her back. She fell asleep. He left. He
was fully clothed at all times.
[3]
Nobody
else knows what really happened in that hotel room that night. There were no
witnesses.
[4]
The
Canadian Human Rights Tribunal sided with Ms. Goodwin. It found that Mr.
Birkett discriminated against her by sexually harassing her in contravention of
the Canadian Human Rights Act. He was ordered to pay her $2,500 in
compensation for her pain and suffering, and a further $2,500 in special
compensation, with interest. This is a judicial review of that decision.
THE FACTS
[5]
Sue
Goodwin and David Birkett worked out of Toronto, as bus
drivers for Penetang Midland Coach Lines. They had worked on several one-day
charters together, and until that fateful day had been on good terms.
[6]
In
August 1999, they were sent to the Canadian Forces base in Petawawa on a
charter which was scheduled to last about one week. They each had a bus and were
required to shuttle Canadian Forces personnel to and from various exercises.
They did not work side by side, but when they had a chance they shared their
meals. They were staying at a local hotel, in separate rooms, across the
hallway from each other. One evening Ms. Goodwin got back to the hotel first.
She changed into a sweatshirt and shorts, and remained in her room. An hour or
so later, Mr. Birkett called to inquire if she wanted to do anything. They
decided to watch television together in her room. According to Ms. Goodwin,
when she woke to his caresses, she told him to stop, and to get out. He laughed
at her but put on his clothes and left. Ms. Goodwin called a friend who advised
her to call the police; however she said she would wait to speak to the
company’s dispatcher. She spoke to him in the morning. He offered to send up
another driver, but she said she could handle matters as the charter was ending
shortly. She said later that morning Mr. Birkett approached her and asked her
if she was “the type of girl who would report this”. She told him to stay away.
[7]
On
her first day back at work in Toronto she spoke to her
supervisor, who asked her to set down her complaint in writing. He convened a
meeting with the branch manager, at which Ms. Goodwin and Mr. Birkett told
their sides of the story. The company arranged assignments so as to ensure that
they did not work together. However she could not help but run into him
occasionally. At one point she said that Mr. Birkett parked his bus in such a
way that she could not exit her car from her parking space. He replied there
was plenty of room. She was calling upon him to back his bus out, which he did
not want to do. She was simply being combative.
[8]
Ms.
Goodwin claimed that Mr. Birkett was making accusations to others that she was
a racist. He is black, she white. She asked the company to fire him. Nothing
happened and finally she resigned; saying in part because she was sexually
assaulted by another worker and nothing was done about it.
THE HEARING
[9]
Following
an investigation, the Canadian Human Rights Commission referred the matter to
the Canadian Human Rights Tribunal. It is important to note that at the outset
the only document the Tribunal had was Ms. Goodwin’s complaint filed with the
Commission. It did not have the Commission’s file. Although the Commission has
standing at the Tribunal’s hearings and usually participates, while the complainant
usually does not, in this case the Commission chose not to participate, except
on one point on which it made written submissions as to whether Ms. Goodwin’s
ex-husband should be called as a witness. Ms. Goodwin, on the other hand, did
participate.
[10]
The
hearing proceeded with neither Mr. Birkett nor Ms. Goodwin represented by legal
counsel. As a result, the tribunal member played a more active role than would
normally have been the case.
[11]
In
addition to explaining the procedure, the Tribunal discussed available
remedies, refused to let Mr. Birkett call Ms. Goodwin’s ex-husband as a witness
on the grounds that she admitted what he would say, and refused Mr. Birkett the
right to deposit a tape recording from a potential witness who could not be
located.
MR. BIRKETT’S
SUBMISSIONS
[12]
Mr.
Birkett, now represented by counsel, made several submissions. Three of them deal
with the Canadian Human Rights Act. The others relate to the hearing
itself.
[13]
He
argues that even if Ms. Goodwin were to be believed, she only tells of a single
incident of touching, without a pattern of conduct involving persistence or
repetition. There was no evidence upon which a finding of sexual harassment in
employment could legally be based. There was no evidence that such a single
incident was severe enough to create a hostile work environment. Furthermore,
although not specifically set out in his written memorandum, Mr. Birkett argued
the incident did not take place at work and there was no master/servant
relationship in that they were co-workers on equal footing. As he had been the
subject of a discipline inquiry by his employers who had power to terminate his
employment, the Tribunal’s decision subjected him to double jeopardy.
[14]
As
to the hearing itself, the Chair:
a) overstepped his jurisdiction by
assuming the role of an advocate for Ms. Goodwin, more particularly by urging
her to make a monetary claim against her will;
b) embarked on an inquiry as to monetary
compensation before finding there had been a violation of the Canadian Human
Rights Act;
c) failed to inform Mr. Birkett of the
consequences of a decision against him, and of his right to be represented by
legal counsel;
d) erred in denying him the opportunity
of introducing a tape recording and from calling Ms. Goodwin’s ex-husband as a
witness;
e) failed to take into account credible
independent testimony, without reason;
f) interrupted and intimidated Mr.
Birkett during his final submissions and prevented him from making his case,
particularly with respect to penalty; and
g) adopted an aggressive attitude that
gave rise to a reasonable apprehension of bias.
DISCUSSION
[15]
As
always, a prime issue is the degree of deference the Court owes the Tribunal.
As noted by Mr. Justice Gibson in International Longshore & Warehouse
Union (Marine Section), Local 400 v. Oster (T.D.), 2001 FCT 1115, [2002] 2
F.C. 430, and the cases cited therein, the Canadian Human Rights Tribunal has
superior expertise when it comes to fact finding and adjudication in a human
rights context. He concluded that the standard of review in respect of
questions of law was correctness, reasonableness simpliciter in respect
of questions of mixed law and fact, and patent unreasonableness in respect of
fact finding. There is nothing in the subsequent decisions of the Supreme Court
in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247, to put the Oster decision into question when it comes to the
pragmatic and functional approach to judicial review in this context.
[16]
However,
natural justice and procedural fairness are another matter all together. The
Court owes the Tribunal no deference (C.U.P.E. v. Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539 and Canada (Attorney General) v. Sketchley,
2005 FCA 404).
FAIR
HEARING AND BIAS
[17]
In this case, the allegation of bias arises from the manner
in which the hearing was held. Mr. Birkett relies on the well-known passage
from Mr. Justice de Grandpré’s reasons in
Committee for Justice and Liberty v. Canada
(National Energy Board),
[1978] 1 S.C.R. 369. He said at page 394:
…the apprehension of bias must be a reasonable one, held by reasonable
and right minded persons, applying themselves to the question and obtaining
thereon the required information. In the words of the Court of Appeal, that
test is “what would an informed person, viewing the matter realistically and
practically - and having thought the matter through - conclude…”
[18]
Fortunately, there is a transcript which covers the entire
two-day hearing. If one were to, as Mr. Birkett did, consider parts of the
hearing in isolation, one might be concerned that the Chair lacked objectivity.
However, the transcript, read as a whole, amply demonstrates that the Chair was
scrupulously fair and helpful to both parties.
[19]
The Chair announced at the outset that he would have to play
a more active role than usual because neither party was represented by counsel,
and as the Commission had decided not to participate. He explained how one could
go about examining one’s self in chief and the right to put leading questions
in cross-examination. At one point during Ms. Goodwin’s evidence in chief, she
looked over to a friend who was accompanying her. The Chair pointed out that
she could not be coached in her evidence. She was also taken to task for not
having sufficient copies of her documents at hand.
[20]
As to the specific issues raised by Mr. Birkett, the matter
of damages came up at the close of Ms. Goodwin’s case, and again during
argument. Ms. Goodwin said she wanted a finding that she had been sexually
harassed and for Mr. Birkett to apologize. The Chair pointed out that even if
the case turned out to be well founded, he could not oblige Mr. Birkett to
apologize. He inquired if she was dropping her monetary claim as she had asked
for damages in her original complaint to the Commission. He stated that in his
experience claimants usually asked for the maximum allowed under the Act - $20,000
in damages, and $20,000 for pain and suffering, plus lost wages if warranted.
[21]
After some to-ing and fro-ing and a recess during which Ms.
Goodwin had the opportunity to discuss the matter with her friend, she came
back and claimed lost wages. The Chair said there was absolutely no basis on
which he could award lost wages as she had led inadequate evidence. She also sought
$5,000, emphasizing that she knew what bus drivers earned and did not want to
bankrupt Mr. Birkett. She also said she would donate the money to charity.
[22]
During his submissions at the close of hearing, Mr. Birkett
suggested that Ms. Goodwin was in it for the money. The Chair pointed out that
she was claiming far from the maximum, and that there were many decisions on
file in which far more than a total of $5,000 had been awarded. While Mr. Birkett
chose not to argue that $5,000 was too high, he had every opportunity to do so.
Indeed, even during the judicial review, it was not argued that the $5,000 was
excessive. Rather it was argued, as it was before the Tribunal, that there was
no basis for holding Mr. Birkett had discriminated against her contrary to law.
[23]
While on this subject, there certainly was no obligation on the part
of the Tribunal to first make a finding on liability and to then discuss
compensation. It pointed out at the very outset that the burden of proof was on
the civil standard of the balance of probabilities rather than the criminal
standard of proof beyond a reasonable doubt. Procedural fairness did not demand
bifurcation. It is trite to say so, but tribunals are masters of their own
procedure, as long as the principles of natural justice are observed. There was
no need to first make a finding as to liability, before turning to remedy.
While sentencing in criminal matters may be considered afterwards, this was a
civil matter. Liabilities and remedies are usually dealt with at the same time.
[24]
As to the potential testimony of Ms. Goodwin’s ex-husband, whom
she only met after this incident, the Commission had written to object to that
evidence on the grounds that it would be both irrelevant and intimidating. The
problem apparently was that Ms. Goodwin had a restraining order against him.
Rather than immediately rule, the Chair said it would be better to wait until
her evidence was heard. Mr. Birkett wanted to call him to establish that Ms.
Goodwin had no difficulty calling the police on him and dragging him through
the courts. To be consistent one would have thought she would have called the
police following the incident in the hotel room, had it actually taken place.
The Chair held that Ms. Goodwin had not put her own character in issue and she
had admitted all that her ex-husband would have said on relevant points. He put it to
Mr. Birkett that all “you intended him to say on specific issues related to the
case has been admitted to by the complainant. Are you o.k. with that?” Mr.
Birkett said: “It’s fine.” This incident does not give rise to judicial review.
[25]
With
respect to the tape recording of a supervisor at the company, both Mr. Birkett
and Ms. Goodwin said they wanted to call him but he could not be located as the
company had gone out of business. The tape recording was not allowed on the
ground that Ms. Goodwin would not have had an opportunity to cross-examine.
This was a perfectly reasonable decision. Furthermore, Mr. Birkett’s point was
that he had not blocked Ms. Goodwin’s car in the parking lot and had only been
told to move it to keep the peace. This is a bit off the mark. The Tribunal was
well within its rights to exclude the tape recording, and the evidence of Ms.
Goodwin’s ex-husband.
[26]
Whether
sitting
in judicial review or in appeal, courts are reluctant to interfere with
findings of fact. As Viscount Sankey said in Powell and Wife v. Streatham
Manor Nursing Home, [1935] A.C. 243 (H.L.(E)):
The judge of first instance is
not the possessor of infallibility and, like other tribunals, there may be
occasions when he goes wrong on a question of fact ; but first and last and all
the time, he has the great advantage, which is denied to the Court of Appeal,
of seeing the witnesses and watching their demeanour.
[27]
In Ryan, above, Mr. Justice Iacobucci said at
paragraph 52 that:
…a
patently unreasonable defect, once identified, can be explained simply and
easily, leaving no real possibility of doubting that the decision is defective.
A patently unreasonable decision has been described as “clearly irrational” or
“evidently not in accordance with reason” (Canada (Attorney General) v.
Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963‑64,
per Cory J.; Centre communautaire juridique de l’Estrie v. Sherbrooke
(City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A
decision that is patently unreasonable is so flawed that no amount of curial
deference can justify letting it stand.
[28]
The decision of the Tribunal is not patently unreasonable.
I would add that the decision was not unreasonable, should that be the standard
of review. In Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, Mr. Justice Iacobucci described the
standard of reasonableness simpliciter as follows:
An unreasonable decision is one
that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion
on the reasonableness standard must look to see whether any reasons support it.
See also Ryan,
above, at paragraphs 48 and following.
[29]
It may well be, of course, that it would have also been
reasonable to find in favour of Mr. Birkett. However, deferential self-discipline
requires that a court not intervene (Ryan, above, at paragraph 46).
[30]
As
to the witness whose evidence was not mentioned, she was a co-worker of Ms.
Goodwin at her next job. Her testimony was to the effect that Ms. Goodwin was
given to exaggeration and could not be trusted. However, she admitted that Ms.
Goodwin had never specifically discussed the hotel room incident with her.
[31]
The reasons for a decision are not a summary of the hearing
itself. It was not necessary to refer to her irrelevant testimony. I am comforted
by the following passage from the decision of Chief Justice Richard in Wagg
v. Canada (Attorney General), 2003 FCA 303 at paragraph 36:
The
burden of dealing with unrepresented litigants falls most heavily on trial
courts. Courts of appeal should be careful not to make this task even more
difficult by being overly critical of attempts to assist the litigants and to
move the process along. The trial judge's overarching responsibility is to
ensure that the trial or hearing is fair. If, after taking into account the
whole of the circumstances, the reviewing court is satisfied that the trial was
fair, it ought not to intervene simply because the trial judge departed from
the standards of perfection at one point or another. This is all the more true
where a matter is resolved by consent. Absent compelling evidence that the
purported consent amounted to no consent at all, a reviewing court should not
be anxious to set aside agreements freely entered into.
[32]
It was obvious that Mr. Birkett did not have counsel. There
was no reason for the Chair to reiterate that he had the right to counsel. The
record shows that the papers that had been sent to Mr. Birkett prior to the hearing
clearly advised him of his rights. This is not a case where access to counsel
was refused.
[33]
I am satisfied that Mr. Birkett had a full and fair
hearing, and that there is no basis for the submission that the Chair exhibited
bias.
[34]
There is absolutely no evidence, as suggested, that the
Chair counselled Ms. Goodwin in Mr. Birkett’s absence. The affidavit from the
registrar at the hearing establishes that fact.
[35]
What it comes down to then is credibility. One point seized
upon by the Chair was that Ms. Goodwin testified clearly that there had been
two beds in the room and that she had removed her suitcase and clothing from
one so that Mr. Birkett could sit on it. Mr. Birkett’s memory was vague. He
suggested at first that there was only one bed and then allowed that he might
be wrong. Findings of fact are not to be disturbed unless patently
unreasonable.
[36]
As
noted by Mr. Justice Evans in Cepeda-Gutierrez
et al. v. Canada (Minister of Citizenship and
Immigration) (1998), 157
F.T.R. 35 at paragraph 14:
It
is well established that s. 18.1 (4) (d) of the Federal Court Act does
not authorize the court to substitute its view of the facts for that of the
Board, which has the benefit not only of seeing and hearing the witnesses, but
also of the expertise of its members in assessing evidence relating to facts
that are within their area of specialized expertise. In addition, and more
generally, considerations of the efficient allocation of decision-making
resources between administrative agencies and the courts strongly indicate that
the role to be played in fact-finding by the court on an application for
judicial review should be merely residual. Thus, in order to attract judicial
intervention under s. 18.1 (4) (d), the applicant must satisfy the court, not
only that the Board made a palpably erroneous finding of material fact, but
also that the finding was made "without regard to the evidence"…
HARASSMENT
IN THE WORKPLACE
[37]
Turning now to the law, Section 14(1)(c) of the Canadian
Human Rights Act provides:
|
14.
(1) It is a discriminatory practice,
[…]
(c) in matters related to employment,
to harass an
individual on a prohibited ground of discrimination.
|
14.
(1) Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite,
le fait de harceler un individu :
[…]
c) en matière d’emploi.
|
[38]
Section 14(2) specifically identifies sexual harassment as
harassment on a prohibited ground of discrimination.
[39]
Note that the discrimination is “in matters related to
employment”, not at the workplace.
[40]
The leading case is Janzen v. Platy Enterprises Ltd., [1989]
1 S.C.R. 1252, where Chief Justice Dickson stated at page 1284:
Without
seeking to provide an exhaustive definition of the term, I am of the view that
sexual harassment in the workplace may be broadly defined as unwelcome conduct
of a sexual nature that detrimentally affects the work environment or leads to
adverse job-related consequences for the victims of the harassment. It
is, as Adjudicator Shime observed in
Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and
academic commentators, an abuse of power. When sexual harassment occurs
in the workplace, it is an abuse of both economic and sexual power.
Sexual harassment is a demeaning practice, one that constitutes a profound
affront to the dignity of the employees forced to endure it. By requiring
an employee to contend with unwelcome sexual actions or explicit sexual
demands, sexual harassment in the workplace attacks the dignity and
self-respect of the victim both as an employee and as a human being.
[41]
In Canada (Canadian Human
Rights Commission) v. Canada (Canadian Armed Forces) (Re Franke), [1999] F.C.J. No. 757 (T.D.) (QL), Madame Justice
Tremblay-Lamer discussed Janzen, above, at length and elaborated on its
test for sexual harassment in the workplace. The Tribunal relied on Justice
Tremblay-Lamer’s findings in Woiden v. Lynn, [2002] C.H.R.D. No. 18 (QL), setting out the test at
paragraph 103:
(i)
The acts that are the subject of the complaint must have been unwelcome. The
Tribunal must therefore look at a complainant's reaction at the time of the incident
and assess whether she expressly, or by her behaviour, demonstrated that the
conduct was unwelcome. The Court recognized that a verbal
"no" is not required in all cases and that a repetitive failure to
respond to suggestive comments constitutes a signal to a harasser that his
conduct was unwelcome. Fear of losing her job, for instance, may
force an employee to endure objectionable conduct. The appropriate
standard against which to assess a complainant's conduct will be that of a
reasonable person.
(ii)
The conduct must be sexual in nature. This encompasses a
broad range of conduct. Requests for sexual favours and
propositioning fall within the ambit of acts that are sexual in nature and that
constitute a psychological form of sexual harassment. Verbal sexual
harassment includes gender-based insults, sexist remarks, comments about a
person's looks, dress, appearance or sexual habits. Physical forms
of sexual harassment include pinching, grabbing, hugging, kissing and leering.
Persistent questioning about an employee's personal sex life has been held to
constitute sexual harassment. [See Note 6 below] The Tribunal's
determination of what is "sexual in nature" should again be assessed
to the standard of a reasonable person in the circumstances of the case,
keeping in mind the prevailing social norms.
(iii)
Ordinarily, harassment requires an element of persistence or repetition,
but in certain circumstances even a single incident may be severe enough to
create a hostile environment. The objective reasonable person
standard is used to assess this factor as well.
[42]
In my opinion, the application of the Tribunal’s findings
of fact to the law was a mixed question. The Tribunal was entitled to deference
on a reasonableness simpliciter standard. It was not unreasonable for
the Tribunal to conclude that Mr. Birkett’s conduct was unwelcome, of a sexual
nature and detrimentally affected Ms. Goodwin’s work environment. She was no
longer comfortable working at the same workplace as him which was one of the
factors leading to her resignation.
[43]
Finally on the question of double jeopardy, which the
respondent characterizes as issue estoppel, Ms. Goodwin was entitled in law to
avail herself of the Canadian Human Rights Act regardless
of whether Mr. Birkett’s employer conducted an inquiry into the issue or not
(see Tweten v. RTL Robinson Enterprises Ltd., [2004] C.H.R.D. No. 14
(QL)).
ORDER
THIS COURT
ORDERS that the application for judicial review be dismissed, with
costs.
“Sean
Harrington”
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