Date: 20070905
Docket: T-1209-02
Citation: 2007 FC 884
Ottawa, Ontario, September 5, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
FRANÇOIS
ALAIN MOUSSA
Applicant
and
THE PUBLIC SERVICE COMMISSION
AND
THE IMMIGRATION AND REFUGEE BOARD
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1] François
Moussa, (the applicant) is an employee of the Immigration and Refugee Board
(the IRB) who, in this judicial review application, seeks to set aside three
investigation reports dated June 28, 2002, prepared by an investigator of the
Public Service Commission (PSC) who inquired into and found unsubstantiated his
harassment and other claims against the management of the IRB’s Vancouver
office.
[2] The hearing
of this application was originally scheduled for last year in Vancouver but was adjourned in order to enable the
applicant to retain legal counsel after the counsel who prepared his judicial
review material was allowed to be removed from the record.
[3] The duty to investigate
complaints of personal harassment made by employees of the Public Service of
Canada was tasked to the PSB by Order-in-Council (SI/86–194) made pursuant to
section 5(f) of the Public Service Employment Act of 1986.
[4] The applicant
raises the following grounds to justify the setting aside of the investigator’s
report:
1.
The investigator was biased;
2.
The investigation was carried out in a manner which was procedurally unfair;
3.
His complaints were not mediated;
4. His complaint of discrimination on
account of his race was not investigated;
5. His complaint about being forced to
pay bribes to IRB management in Vancouver should have been
fully investigated.
[5] During his
reply, counsel for the applicant attempted to raise another issue not covered
in his notice of application or in his memorandum of argument. That issue
concerned whether the investigator breached Mr. Moussa’s linguistic rights in
the manner he conducted the investigation. I asked for written representations
and will discuss this matter in these reasons.
[6] The respondent
raised a preliminary issue on the receipt of new evidence not before the
decision-maker.
FACTS
[7] Mr. Moussa
started his employment with the IRB in August, 1999. He had previously worked
in a federal department.
[8] In January of
2001, he filed his first complaint of harassment against his immediate
supervisor. His complaint was filed in accordance with Treasury Board’s Policy
on the Prevention and Resolution of Harassment in the Workplace (the Policy).
In early February, 2001, Gary Larocque was assigned to investigate this
complaint.
[9] For each
relevant federal organization, the Policy is administered by a delegated
manager who is a senior executive accountable to the deputy head for the
harassment complaint process. A delegated manager is expected to assign a
mandate to the investigator (if one is appointed) and ensure such person is
qualified and impartial. A delegated manager is expected to ensure disciplinary
measures are taken where warranted.
[10] If an
investigator is appointed, under the Policy, he/she must provide the delegated
manager with a written report that includes his or her findings and
conclusions. Upon the receipt of the investigator’s report, it is the
delegated manager who reviews the report and decides what action to take (see
respondents’ authorities, Tab 5).
[11] In March of
2001, Mr. Moussa filed a second harassment complaint this time against the
Regional Director and the Regional Human Resources Manager of the IRB in Vancouver, again pursuant to the Policy.
[12] On January 8,
2002, Mr. Moussa responded to a preliminary case report prepared by the
investigator with respect to his harassment complaint against his supervisor.
He alleged in that rebutted improprieties against the three individuals he had
previously complained about. The investigator considered he should investigate
this allegation separately. Mr. Moussa alleged his three superiors at the IRB,
Vancouver lured him to seek employment
there; had required favours of him in the form of gifts of bottles of liquor
and had acted improperly in their treatment of him in his employment at the
Documentation Centre.
[13] As noted, in
early February, 2001, the investigator, Greg Larocque, was appointed. He
investigated the three complaints because of the commonality involved.
However, he produced separate reports one for each complaint determining all
three complaints were unfounded.
[14] The investigator
carried out his investigation in accordance with the IRB’s Personnel Management
Manual Policies and Guidelines on harassment (respondents’ record, page 146),
which states the investigation process will normally include the following
steps:
• Consulting and/or communicating with
the complainant to ensure that allegations, circumstances and description of
incidents outlined in the complaint are clear and complete;
• Gathering of evidence and generally
assessing if there is substance to the complaint;
• Giving the respondent the opportunity
to reply to the allegations with an observation the investigator may wish to
disclose a respondent’s reply to the complainant immediately or wait until the
end of the fact-finding phase;
• Interviewing witnesses named by both
the complainant and the respondent or any other person the investigator deems
appropriate;
• Providing both parties with an
opportunity to comment on the findings before the report is finalized;
• Preparing a report and forwarding it to
the delegated anti-harassment coordinator. The report will include all
relevant background information, facts, findings, analysis and conclusions and;
• Forwarding a copy of the final report
to the complainant and the respondent.
[15] The
respondents’ record discloses the investigator generally followed the
guidelines in the conduct of his investigation in respect of Mr. Moussa’s three
complaints. These steps were:
• Step 1 - the receipt of opening
submissions from both Mr. Moussa and the target of the complaint spelling out
the essential allegations of the complainant and the respondents’ reply;
• Step 2 – embarking on the fact-finding
phase of the investigation with the investigator drawing up a list of potential
witnesses to be interviewed from the persons named in the complaint or in the
respondents’ reply coupled with an invitation from the investigator to both
parties for the input of additional names of persons who might be in a position
to provide relevant information to the investigator on the events the
complainant identified as incidents of harassment. The investigator made it
clear that any name selected by him were not the complainant’s witness nor the
respondents’ witness but rather the investigator’s witness;
• Step 3 – individual interviews of the
witnesses selected by the investigator. Each interview was conducted under
oath but not in of the presence of the parties nor their representative;
• Step 4 – each witness was provided by
the investigator with a written statement of his/her interview and was asked by
the investigator to verify the written statement in terms of the accuracy of
what was recorded;
• Step 5 – the preparation by the
investigator for each complaint of a preliminary case report outlining the
complainant’s allegations, the respondents’ reply, the witnesses interviewed,
the submissions of each party with respect to each allegation and the
information provided by each witness in respect of each allegation;
• Step 6 – the forwarding by the
investigator of the preliminary case report to each party with a request they
review the contents of the report and comment on the accuracy of its contents.
For each of Mr. Moussa’s complaints, the investigator received comments from
both parties;
• Step 7- for each complaint, the
finalization by the investigator of a final case report where the investigator
would make changes, if appropriate, to the preliminary case report and would
provide his analysis and conclusion dealing with such matters as the meaning of
harassment, the burden of proof, his analysis of each allegation and his
conclusion in respect of each
allegation.
Analysis
I The
standard of review
[16] The
respondents’ made lengthy submissions on the standard of review citing the
well-known jurisprudence from the Supreme Court of Canada on the four factors
which make up the pragmatic and functional analysis leading to the selection of
one of three standards of review, namely, correctness, reasonableness or patent
unreasonableness.
[17] After
discussion with the Court, the parties recognized the following:
1. No deference is owed to the
investigator where breach of fairness, including bias on the part of the
investigator, is alleged;
2. Where factual findings of the
investigation report are attacked, the standard of review is as set out in
section 18.1(4)(d) “a finding of fact made in a perverse or capricious manner
or without regard for the material before it”, a standard of review analogous
to patent unreasonableness;
3. Where a breach of a statutory
requirement is alleged, such allegation raises an error of law reviewable on
the standard of correctness;
4. Where a question of mixed law and fact
is raised, any alleged error is reviewable on the standard of reasonableness.
2. Discussion
1.
The preliminary issue
[18] I mention
briefly a preliminary objection raised by counsel for the respondents in her
memorandum of argument which she characterized as the introduction by the
applicant, through his affidavit, of new evidence not before the
decision-maker.
[19] In oral
argument, counsel for the respondents nuanced her written argument by stating
the applicant’s affidavit was labelled by the applicant himself as an affidavit
of documents listing “relevant documents that are under the applicant’s
possession, power or control and over which no privilege is claimed.” She
argued the simple listing of documents was unnecessary and superfluous and
should not be given any weight because they were already reproduced in the
certified tribunal record.
[20] I ruled at the
hearing where the documents listed in the applicant’s affidavit labelled
affidavit of documents are merely duplicative of what is contained in the
certified tribunal record, there is no need to refer to the applicant’s
affidavit. To the extent the applicant’s affidavit goes beyond merely listing
documents but offers a commentary on the documents themselves and provided they
are not new evidence not before the investigator which is the normal rule in
the judicial review process subject to specified exemptions, those comments may
be taken into account by the Court.
2. No
mediation
[21] Counsel for the
applicant states Mr. Moussa was never offered mediation of his complaint
against his immediate supervisor despite the requirements of the Policy where
mediation is an integral part of the process of resolving disputes on
harassment in the workplace. He points to the Policy’s expectation that
employees will be encouraged to participate in a problem-resolution process
before proceeding with the complaint process. In terms of the complaint
process, the Policy states as step 4, after a review of the complaint, if the
harassment complaint remains unresolved, the delegated manager must offer
mediation and if the parties agree to mediation, the delegated manager obtains
mediation services as provided for in the Policy.
[22] The record
before the Court reveals Mr. Moussa was offered mediation shortly after he
filed his complaint against his immediate supervisor and before the
investigation started. This offer was made before the investigation started.
At respondents’ record, volume 3, page 816, is a letter to Mr. Moussa dated
January 17, 2001, from the Anti-Harassment Co-ordinator at the IRB in which
such offer was clearly proposed in the last paragraph of the first page. That
offer of mediation remained on the table throughout the unfolding of the
investigation process. This is clear from the sentence appearing at line 2 of
page 2 of that same letter. Mr. Moussa did not take up the offer which by
extension necessarily covers his other complaints.
[23] There is no
substance to Mr. Moussa’s argument on this point.
3.
Failure to consider racial harassment and discrimination
[24] Counsel for the
applicant recognizes when Mr. Moussa filed his first complaint against his
immediate supervisor, the Policy, then in existence, provided the PSC had a
duty to investigate personal harassment complaints other than harassment
covered under the Canadian Human Rights Act. Mr. Moussa was
specifically advised because of the Policy, as it stood, this aspect of his
complaint would not be reviewed by the investigator.
[25] The parties
agree as of June 1, 2001, a new Treasury Board Policy was adopted. By its
terms, an allegation of racial discrimination and racial harassment could be
investigated by the PSC.
[26] Counsel for the
applicant complains the investigator erred in not embarking upon that aspect of
Mr. Moussa’s complaint which related to racial harassment.
[27] Yet, a review
of the record before the Court indicates the preliminary case report issued by
the investigator in all three complaints addressed the issue. The preliminary
case report for the first complaint is dated December 3, 2001; for his second
complaint, the preliminary case report is dated May 6, 2002, and the third
report is dated May 31, 2002. Those preliminary case reports indicate that to
address the issues related to racism, the complainant was offered the
opportunity to have the allegations investigated by the PSC after the new
Policy allowed the PSC to investigate such matters. A statement is made in
each report the complainant did not accept to have the PSC investigate these
issues.
[28] I saw nothing
in Mr. Moussa’s rebuttal statements to the preliminary case reports where he
challenged the investigator’s statement. Moreover it was on July 13, 2001, Mr.
Moussa filed a complaint with the Canadian Human Rights Commission alleging the
IRB discriminated against him on the grounds of race. The CHRC refused to deal
with his complaint on the basis that it could properly be dealt with by a
procedure provided for under another Act of Parliament. That decision was set
aside by my colleague Justice Teitelbaum in a decision dated July 26, 2006,
reported as [2006] F.C.J. No. 1169 with the result the Commission investigated
his complaint of discrimination on account of race.
[29] It is also
noted in the final case reports on Mr. Moussa’s complaints, all dated June 28,
2002, the same statement is made concerning the opportunity offered to Mr.
Moussa to have his racial harassment complaint dealt with by the PSB.
[30] Under the
circumstances, Mr. Moussa has not persuaded me the investigator improperly
declined to investigate the racial harassment aspect of his complaint.
4.
Unfairness in the investigation process
[31] The points
raised by Mr. Moussa in support of this allegation were:
• Despite his promise to conduct his interview of witnesses in the
presence of the applicant and the respondents, the investigator changed the
process and excluded his presence as well as the presence of those persons he
complained about. The applicant argues by reference to exhibit 14 to his
affidavit, the investigator was not justified in doing in order to placate the
concerns of reluctant witnesses;
• As a subset to the first point, the applicant argues the procedure
originally established by the investigator contemplated the witnesses giving
oral testimony with the right of cross-examination by the applicant or the
respondents or their representative;
• The investigator failed to interview the persons the applicant had identified
as potential witnesses while favouring interviewing witnesses suggested by the
respondents. The applicant alleged the investigator only interviewed one
person whom he had suggested while interviewing thirteen of the respondents’
suggested witnesses;
• The investigation failed to include him in on a telephone conference
call he had with the respondents on March 1, 2002.
[32] It is trite law
that the content of the rules of natural justice are variable and are to be
determined in the context of each case with the underlying objective being to
ensure that decisions are made using a fair and open procedure appropriate to
the decision being made and respectful of the statutory, institutional and
social context while at the same time providing an opportunity for those
affected by the decision to put forward their views and evidence fully and to
have them considered by the decision-maker ( see the Supreme Court of Canada’s
decision in Baker v. Canada (Minister of Citizenship and Immigration)
[1999] 2 S.C.R. 817 at paragraph 21.
[33] The
investigator had a duty to conduct a fair investigation into Mr. Moussa’s
complaints providing Mr. Moussa with an opportunity to fully present his case.
It is evident that the descriptions of steps 1 through 6 provided Mr. Moussa
with that opportunity. He interviewed the persons the applicant had mentioned
in his complaints.
[34] As a matter of
law, Mr. Moussa was not entitled to be present when each witness was being
interviewed by the investigator: he had no right to an oral hearing before the
investigator where witnesses would testify and be subject to cross-examination
and to the extent the investigator promised to Mr. Moussa he could be present
at the interview, he changed his mind citing concerns expressed to him by
potential witnesses as to Mr. Moussa’s presence during his interview with them,
(see note to file, Respondents’ record, volume 5, page 1371). He explained
this to Mr. Moussa. I do not see how the investigator could be criticized in
terms of fairness by coming to this conclusion.
[35] He was that
master of how he conducted his interview of each witness: the witness
statements were disclosed to Mr. Moussa who commented on each error he saw in
the witness statements.
[36]
There is no substance to Mr. Moussa’s claim the investigator interviewed only
one of the witnesses he suggested, (see note to file, Respondents’ record,
volume 5, page 1371). This was pointed out to counsel for the applicant who
withdrew this point from his argument. In any event, Mr. Moussa did not show
to the Court how the investigator’s failure to interview any specific witness
would have materially affected the investigator’s conclusions. (see, Ruckpaul
v. Department of Citizenship and Immigration 2004 FC 149).
[37] Finally, the
fact Mr. Moussa did not participate in the March 1, 2002, teleconference
appears to be an error in communication, and, in any event, did not affect the
Applicant’s ability to respond since that telephone call occurred after the
issuance of the first preliminary case report and before the issuance of the
second and third report in respect of which the Applicant responded.
[38] As an aside,
the procedure followed by the investigator largely mirrored the procedure which
the Canadian Human Rights Commission follows when it appoints an investigator
to investigate a complaint. The procedure followed has been validated in a
number of decisions by the Supreme Court of Canada, by the Federal Court of
Appeal and by this Court, (see, Slattery v. Canada & Canadian
Human Rights Commission [1996] F.C.J. No. 385 (C.A.), for example and the
cases referred to in Ruckpaul, above).
5.
Bias
[39] Mr. Moussa
alleges the investigator’s reports and the process leading to it demonstrate a
reasonable apprehension of bias on his part. He states the test for reasonable
apprehension of bias is set out in the Supreme Court of Canada’s decision in Committee
for Justice and Liberty v. Canada (National Energy Board)
[1978] 1 S.C.R. 369, where Justice De Grandpré stated at page 394:
“The apprehension of bias must be the
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. Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously would not decide fairly?”
[40] In written
representations, his counsel wrote that the applicant “perceived the
investigator as biased and complained about it”. Counsel adds the selection of
witnesses and the lack of cross-examinations were examples of the
investigator’s bias. Counsel also cites exhibit 66 as further evidence of
bias. Counsel submits exhibit 66 is an E-mail indicating the investigator had
a closed mind and had drawn conclusions based not on the evidence before him
arguing the E-mail was written before the investigator had entered the second
phase of his investigation.
[41] On the other
hand, counsel for the respondents argues the test is not the one set out by the
applicant because the investigator conducting the investigation is required
merely to be “amenable to persuasion or not to have a closed mind and not
appear to have a conflict of interest”. She argues when the nature of the
decision is preliminary, that is, part of the procedure for instituting an adjudication,
making a recommendation, or the taking of a first step by a public official,
the Courts are likely to impose a less demanding standard of impartiality than
that applied to the exercise of “judicial” powers determining the rights of
individuals.
[42] In Newfoundland
Telephone Company Limited v. The Board of Commissioners of Public
Utilities [1992] 1 S.C.R. 623, the Supreme Court of Canada adopted
the “open mind” test as the proper criteria to determine bias in the case of a
Public Utilities Board Commissioner’s public statements during the
investigative process but before the hearing had commenced.
[43] The content of
the “open mind” test has been defined by the Supreme Court of Canada in Old
St. Bonafice Residence Association Inc. v. Winnipeg (City), [1990] 3
S.C.R. at 1170 where Justice Sopinka stated that a party alleging disqualifying
bias: … must establish that there is a pre-judgment of the matter, in fact, to
the extent that any representations at variance with the view, which has been
adopted, would be futile. Statements by individual members of a municipal
council while they may very well give rise to an appearance of bias will not
satisfy the test unless the Court concludes that they are the expression of a
final opinion on the matter, which cannot be
dislodged.
[44] I agree with
counsel for the respondents the test for bias in this case in the closed mind
test. He seeks to quash the investigator’s report to the delegated manager who
is the decision-maker. In any event, he has not made out the more stringent
test of reasonable apprehension of bias.
[45] The evidence
the applicant mustered in support of either test is weak. As indicated, the
selection of witnesses and the lack of cross-examination do not evidence bias
or lack of fairness. Exhibit 66 in context is insufficient to support Mr.
Moussa’s plea. The March 1, 2002 incident has been explained.
5. No
proper investigation on seeking favours
[46] The
investigator’s third report concerns Mr. Moussa’s allegations his immediate
supervisor, the Regional Director and the Manager of Human Resources at the
IRB, Vancouver solicited favours from him. In the written argument prepared by
former counsel she states the investigator “wilfully ignored one aspect of the
solicitation of favours being the solicitation of narcotic substances.”
Current counsel in oral argument pursued this alleged error.
[47] In my view, the
applicant’s claim must be rejected. The certified tribunal record does not
evidence anywhere he made any claim his managers solicited narcotics from him.
It does not appear in his rebuttal to the preliminary case report where no such
claim is identified (see respondents’ records, page 1474 and 1523).
6. Should
this court entertain the applicant’s late claim?
[48] As noted, the
applicant raised for the first time in reply to the respondents’ argument a
breach by the investigator of his linguistic rights.
[49] I agree with
counsel for the respondents it would be improper for this Court to entertain
the applicant’s claim at this late stage for the following reasons:
• The
applicant’s claim came to this Court too late. To entertain it the Court would
be obliged, out of fairness, to call for additional written representations and
hold an additional hearing; in other words, start a new case;
• The
applicant’s judicial review is brought under section 18 of the Federal
Courts Act. Parliament has set up a mechanism in the Official Languages
Act to deal with complaints of breaches of that statute and has prescribed
remedies;
• The
applicant has not demonstrated to the Court there is any merit to his claim on
this score. See the President of the IRB’s letter of January 28, 2002, to the
applicant in which he indicated it was the applicant who asked that the
investigation be conducted in English with an opportunity, if need be, to
sometimes express his concerns in French. The President stated to Mr. Moussa
“to my knowledge you have not been denied such an opportunity.” (See
applicant’s record, page 81). I note the applicant’s reply of February 4, 2002
to the President’s letter.
[50] For all of
these reasons the applicant’s challenge to the investigator’s reports must be
dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES THAT this judicial review
application is dismissed.
“François Lemieux”
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