Date: 20080303
Docket: T-326-06
Citation: 2008 FC 288
Ottawa, Ontario, March 3, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
MARIA
TERESA TAGLIABUE
Applicant
and
MINISTRY
OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a Canadian citizen of Chilean ancestry who worked at the Canadian
Embassy in Buenos
Aires
(the Embassy) as a locally engaged staff member from 1990 to 2000. In February
of 1999, she accepted a position as a level 5 Administrative Assistant to Col.
Richard Ryan. He served as the Canadian Armed Forces Attaché at the Embassy and
the Applicant reported directly to him.
[2]
The
Applicant’s position with Col. Ryan was hybrid in nature in that, although she
was employed by the Respondent (DFAIT), her position was funded by the
Department of National Defence (DND). On July 26, 2000, the Applicant was
terminated effective December 29, 2000 because her position was eliminated by
DND. Thereafter, for one year, she was given priority status which meant that,
as long as she was qualified, she was not required to participate in a
competition to be offered a new position at the Embassy.
[3]
On
July 2, 2003, the Applicant filed a complaint (the Complaint) with the
Canadian Human Rights Commission (the Commission) against DFAIT alleging that
she had been sexually harassed by the Canadian Ambassador to Argentina (the
Ambassador) in December 1999 and February 2000 and that, in a meeting with the
Ambassador on November 10, 2000, she was treated in an adverse
differential manner because of her Chilean ethnicity.
[4]
The
Applicant admits that she did not report the sexual harassment or the
discrimination to management at DFAIT. DFAIT first learned of her allegations
when it was advised of the Complaint. As well, the Applicant did not complain
to workplace colleagues at the time of the alleged events.
[5]
On
January 24, the Commission dismissed the Applicant’s Complaint pursuant to
paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6
(the Act). This application is for judicial review of that Decision.
THE DECISION
[6]
The
Commission’s decision letter of January 24, 2006 (the Decision) mentioned
four conclusions about the sexual harassment aspect of the Complaint. It said:
The evidence establishes that:
·
the
respondent did not consent to the alleged harassment;
·
the
respondent exercised all due diligence to prevent the alleged harassment from
being committed;
·
as the
respondent was unaware of the alleged harassment, it could not mitigate its effects;
and
·
there does
not appear to be a link between the alleged harassment and the termination of
the complainant’s employment.
[7]
As
the Decision shows, the Commission ultimately concluded that the complaint of
sexual harassment had not been made out because the alleged conduct had not
detrimentally affected the Applicant’s employment. Specifically, there was no
link between the alleged harassment and her termination or the fact that she
was not rehired during her one year period of priority status.
[8]
As
well, when it dismissed the Complaint, the Commission dismissed the allegation
that there had been discrimination. This was not specifically discussed in the
Decision but the Investigator’s final report of December 15, 2005 (the
Final Report) says the following at paragraph 105:
Finally, the evidence gathered does not
appear to support that the complainant was treated in an adverse differential
manner because of her national or ethnic origin.
THE ISSUES AND THE
STANDARD OF REVIEW
(i)
The Failure to Interview the Ambassador
[9]
The
Applicant says that the Commission failed to conduct a fair and thorough
investigation because the Ambassador was not interviewed. On this issue of
procedural fairness, no deference is owed. See: Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 at paragraph 100.
(ii) The
Error in Law
[10]
The
Applicant also says that the Commission erred in law when it misapplied
subsection 65(2) of the Act. On this issue, there is no reason to depart from the
normal rule that questions of law will be considered using “correctness” as the
standard of review.
DISCUSSION AND
CONCLUSIONS
Issue 1 The
Failure to Interview the Ambassador
[11]
The
Ambassador first learned of the Complaint when he was contacted by DFAIT on
December 23, 2004. At that time, he was serving as the Canadian Ambassador
to Switzerland. He promptly
provided DFAIT with lengthy and comprehensive written responses to the
Applicant’s allegations. The material he provided included:
·
A
four page chronology and three pages of narrative dated December 31, 2004.
·
A
one page letter of December 31, 2004 dealing with the reasons for the
Applicant’s termination.
·
A
six page response to the Complaint dated January 21, 2005.
·
A
two page letter of February 2005.
This material will be described as the Evidence.
[12]
DFAIT
in turn provided the Ambassador’s Evidence to the Investigator. The record is
not complete as it relates to contacts between DFAIT and the Investigator but
it is clear and the Applicant concedes that, when one reads the material
provided to DFAIT by the Ambassador and compares it to the Final Report, it is
obvious that (except for one immaterial error) the Investigator received a
complete and accurate account of the Ambassador’s Evidence on all the issues.
[13]
In
her Final Report, the Investigator said:
The investigator asked the respondent on
several occasions in July, August and September 2005, for the contact
information for Ambassador Hubert, however, this information was not provided
in time for the completion of this report.
…
The respondent has advised that
Ambassador Hubert is aware of this complaint and they have provided a response
to the allegations on his behalf.
[14]
It
is noteworthy that the Investigator expressed no concern that the Final Report
was incomplete or that her investigation was prejudiced because she did not
speak with the Ambassador. In my view, this is explained by the fact that she
had received the Evidence from DFAIT.
[15]
This
fact also explains why, when the Investigator and her advisory team met to
review a draft of the Final Report (the Draft Report), they agreed that the Final
Report should recommend dismissal of the Complaint even though the Ambassador
had not been interviewed. However, they made the following suggestion:
…Investigator should also continue to
attempt to contact Ambassador Hubert... If no contact by the end of next week,
disclose and note in report that attempts were made to contact him, and outline
them.
[16]
The
Draft Report includes notations which show that, if the Ambassador had been
interviewed, he would have been asked about eight paragraphs in the Draft
Report. Two paragraphs dealt with the Applicant’s termination and one dealt with
the conversation in which the Applicant’s Chilean ancestry was mentioned. Five
of the paragraphs related to the Ambassador’s conduct at the time of the
alleged sexual harassment. These topics were all covered in the Ambassador’s
Evidence and, for the reasons given below, I have determined that it was not
necessary to interview him before the Final Report was released.
The
Termination
[17]
The
Applicant did not work with or for the Ambassador, she worked for Col. Ryan. He was
her direct supervisor and he was interviewed for the Final Report. His evidence
was that the Applicant’s termination occurred because DND had decided that, in
all Canadian Embassies, assistants to Military Attachés would be military
rather than civilian personnel. The Ambassador’s Evidence confirmed Col. Ryan’s
evidence in this regard.
[18]
Col. Ryan
was present when the Ambassador handed the Applicant her termination letter
which said that her position had been cancelled. The letter was signed by the
Ambassador but Col. Ryan said that neither he nor the Ambassador had had any
involvement in making the decision.
[19]
The
Applicant said that, during the termination meeting with the Ambassador and
Col. Ryan, the Ambassador commented that the termination was not because
she was “prettier or uglier”. Col. Ryan did not recall this comment and
the Ambassador denied that it was made.
[20]
Given
that the Investigator had an accurate version of the Ambassador’s Evidence and
that the Ambassador was not the Applicant’s employer and did not decide to
terminate her employment, it is my view it was not necessary to interview the
Ambassador about the Applicant’s termination.
The Alleged
Discrimination
[21]
In
November 2000, before the Applicant’s termination took effect, the Ambassador
offered her a comparable position as a level 5 secretary in the Embassy’s
Immigration Section. This new position involved no change in her salary,
benefits or vacation entitlement. The offer was genuine. The Ambassador
considered the Applicant to be qualified for the position and fulfilled his
obligation to offer it to her by reason of her priority status. According to
the Complaint, the Ambassador told the Applicant that she would have more
responsibilities and opportunities to progress in the Immigration Section.
[22]
However
during his discussion with her, the Ambassador indicated that the move to the
Immigration Section might be particularly good for her because there were
people in the Embassy who did not like her because she was Chilean. In his
Evidence, the Ambassador admitted bringing this fact to the Applicant’s
attention.
[23]
The
Applicant acknowledged in her Complaint that she was already aware of the
problem. She knew that an accountant at the Embassy had said several times that
he hated Chilean people.
[24]
The
Ambassador also told the Applicant that if she did not take the position, he
had someone else in mind.
[25]
These
comments angered the Applicant and she rejected the position. However, the
Investigator concluded that the Applicant had not experienced any
discrimination.
[26]
Against
this background, the question is whether the Ambassador should have been
personally interviewed because he would have offered additional crucial
evidence. In my view, the Final Report shows that the Complainant and the
Ambassador agreed on the text of his comments about Chileans and on the terms
of the offer. In these circumstances, I cannot conclude that any crucial
matters were overlooked in the investigation because the Ambassador’s Evidence was
provided in correspondence rather than in a telephone interview.
The Priority
Period
[27]
The
Applicant alleges that, during her period of priority status from December 2000
to December 2001, she did not obtain a position because she had rejected the
Ambassador’s sexual advances. However, the Investigator discovered the
following:
·
In
November 2000, as described above, the Ambassador offered her a level 5
position which she rejected.
·
In
February 2001, she was offered a position at level 4 which she rejected on the
basis that she was overqualified.
·
The
Complainant said that she was refused four other postings available in June,
July, August and October 2001. The Investigator noted that the Applicant was
not qualified for two of the positions because they were four and five levels
above the position she had held with Col. Ryan. With regard to the third
position, she refused to take a required linguistic test and she failed the
French test for the fourth position.
[28]
The
Investigator noted that the Ambassador left the Embassy on July 5, 2001
for another assignment. This meant that he was not present for the last three
postings.
[29]
The
Investigator concluded that the Applicant’s complaint that she was not rehired
due to her rejection of the Ambassador’s advances was unfounded. In the
circumstances described above, I can see no crucial evidence or area of disagreement
between the Applicant and the Ambassador which might have been explored in a
telephone interview with the Ambassador.
The Sexual
Harassment
[30]
The
Allegations are as follows:
(i)
At
the Embassy Christmas Party in December 1999 (the Party), the Applicant says
that the Ambassador rubbed his leg against her leg while they were seated at a
table and that the Ambassador ran his fingers over her back in a massaging
motion;
(ii)
On
the day of the Party, the Ambassador told her about an affair he had had with a
Chilean woman and described his sexual prowess (the Affair);
(iii)
In
February 2000, the Ambassador complimented the Applicant on her suntan and
asked if it covered her entire body (the Suntan).
[31]
Regarding
the Party, the Ambassador denied the allegations in his Evidence and, since
there were no independent witnesses, the Final Report stated that “This
Investigation has been unable to determine whether these alleged incidents
actually occurred because there were no witnesses.”
[32]
Regarding
the Affair, the Ambassador acknowledged in his Evidence that he might have told
the Applicant about an affair he had had with a Chilean woman named Marilu when
he was a student in Chile in 1965. However, he denied that he had described
his sexual experiences with Marilu. Again, the Investigator was unable to
conclude whether the conversation included sexual content because there had
been no witnesses.
[33]
Regarding
the Suntan, the Ambassador acknowledged that he might have admired her
post-holiday tan and asked it was “bronzage intégral”. His evidence was that he
did not intend his remark to be offensive.
[34]
The
question again is whether a telephone interview with the Ambassador would have
uncovered additional crucial evidence. In my view, the answer is clearly “no”.
Once Col. Ryan’s evidence about the termination by DND and DFAIT’s
evidence about the priority period was accepted, any further evidence from the
Ambassador about the alleged harassment became immaterial. Given that the
Investigator concluded that the Ambassador’s conduct (whatever it might have
been) was not linked to the Applicant’s termination or failure to be rehired, the
sexual harassment Complaint was bound to be dismissed (see Janzen v. Platy
Enterprises Ltd., [1989] 1 S.C.R. at para. 29).
Issue 2 The
Error in Law
[35]
Section
65 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 reads as
follows:
|
65. (1) Subject to subsection (2), any act
or omission committed by an officer, a director, an employee or an agent of
any person, association or organization in the course of the employment of
the officer, director, employee or agent shall, for the purposes of this Act,
be deemed to be an act or omission committed by that person, association or
organization.
(2) An act or omission shall not, by
virtue of subsection (1), be deemed to be an act or omission committed by a
person, association or organization if it is established that the person,
association or organization did not consent to the commission of the act or
omission and exercised all due diligence to prevent the act or omission from
being committed and, subsequently, to mitigate or avoid the effect thereof.
|
65. (1) Sous réserve du paragraphe (2), les
actes ou omissions commis par un employé, un mandataire, un administrateur ou
un dirigeant dans le cadre de son emploi sont réputés, pour l’application de
la présente loi, avoir été commis par la personne, l’organisme ou
l’association qui l’emploie.
(2) La personne, l’organisme ou
l’association visé au paragraphe (1) peut se soustraire à son application
s’il établit que l’acte ou l’omission a eu lieu sans son consentement, qu’il
avait pris toutes les mesures nécessaires pour l’empêcher et que, par la
suite, il a tenté d’en atténuer ou d’en annuler les effets.
|
[36]
The
Applicant’s submission focuses on subsection 2 and the Commission’s conclusion
that DFAIT exercised all due diligence to prevent the alleged harassment. This
conclusion was based on the Investigator’s finding that DFAIT had an
anti-harassment policy which included instructions about how to complain to Ottawa about harassment by an
ambassador.
[37]
However,
the Applicant says that DFAIT was not diligent in responding to the
Commission’s investigation of her Complaint. The Applicant says that DFAIT is
not entitled to the benefit of subsection 65(2) because its failure to treat
sexual harassment and discrimination as serious matters in response to the
Complaint had the effect of suggesting to DFAIT’s employees that they, in turn,
need not treat such issues seriously.
[38]
Without
deciding whether DFAIT was diligent and without considering whether subsection
65(2) applies to an employer’s post-termination conduct, it is my view that, because
proceedings before the Commission are confidential, DFAIT’s employees would
have no means of knowing how it responded to the Applicant’s Complaint. In
these circumstances, the Applicant’s submission is without merit.
[39]
For
all these reasons, this application will be dismissed with costs.
JUDGMENT
UPON reviewing
the material filed and hearing the submissions of counsel for both parties in Toronto on Monday,
December 17, 2007;
AND UPON being advised
at my request in a post-hearing email from counsel for the Respondent that
proceedings before the Commission are confidential.
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that, for the reasons given
above, this application is hereby dismissed with costs.
“Sandra
J. Simpson”
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