Date:
20080604
Docket:
T-1631-06
Citation:
2008 FC 704
Toronto,
Ontario, June 4, 2008
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
STEPHEN LEUNG
Applicant
and
CANADA REVENUE AGENCY
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application made by Stephen Leung, the Applicant,
pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7,
for judicial review of the decision by the Canadian Human Rights Commission
(the “Commission”) to dismiss that Applicant’s complaint that the Canada
Revenue Agency (the “CRA”) failed to promote him in retaliation for his filing
a human rights complaint.
BACKGROUND
[2]
The Applicant is a person of Chinese origin. He has been employed
with the Respondent, CRA, for over twenty-five years.
[3]
In 1989, Mr. Leung assumed the position of Assistant Director at
the FI03 level. He was responsible for financial and administration activities
in the Toronto region. In 1994, following a
reorganization, Mr. Leung became the Assistant Director in Finance and
Administration at the AS06 level. In this position he was responsible for
finance, administration and human resources in two tax service offices in Toronto.
In 1997, following a second reorganization, Mr. Leung’s AS06 position became
redundant. At that time Steve Hertzberg was Director, Finance and
Administration for the Southern Ontario
region. Mr. Leung reported to Mr. Hertzberg.
[4]
Mr. Leung requested appointment to a new FI03 or a new AS06
position but his request was not accepted. As a result Mr. Leung filed a human
rights complaint alleging discrimination on the basis of race, national or
ethnic origin.
[5]
In April 2001, the CRA placed Mr. Leung into the FI03 position.
He was now responsible for resource management and financial services supervising
finance officers and financial clerks. Shortly thereafter, after a third
reorganization all positions became redundant including Mr. Leung’s FI03
position. All of the redundant positions were to be reviewed by Classification
Review Committees to determine whether they would be upgraded to higher
positions. As a result of a national job review process, a new FI04 Regional
Comptroller position, subsequently renamed Assistant Director Finance, came
into effect on July 1, 2001. Mr. Leung was appointed to the FI04 position on
an acting basis for one year.
[6]
By mid-September 2001, a Classification Review Committee had reviewed
redundant positions and determined that thirty of thirty-three positions should
be upgraded including Mr. Leung’s FI03 position. In June 2002, Mr. Leung’s
acting F104 Assistant Director Finance appointment was extended.
[7]
On June 17, 2002, the Commission recommended that Mr. Leung’s initial
human rights complaint be dismissed.
[8]
On August 21, 2002, Mr. Hertzberg advised Mr. Leung that the FI04
position in which he was Acting Assistant Director Finance would be staffed by
competition. This was because the CRA had classified the FI04 position as a
new position with no significant link to Mr. Leung’s FI03 position and because staffing
directives dictated that new positions be filled via a competition. On
September 17, 2002, the Agency initiated a competition to staff the FI04
position. Mr. Leung did not participate in the competition as he believed it
was in retaliation for his filing the human rights complaint.
[9]
On October 19, 2002, Mr. Leung filed a retaliation complaint with
the Commission. The CRA took the position that the Commission ought not to
deal with the retaliation complaint on the basis that Mr. Leung should first exhaust
internal CRA grievance procedures.
[10]
On September 30, 2004, the Commission investigator released the
contents of the investigation report on the retaliation complaint to Mr. Leung
and the CRA. The investigator recommended that, pursuant to s. 41(1) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”), although the
retaliation complaint was not trivial, frivolous or made in bad faith, the
Commission should not deal with the complaint as Mr. Leung ought to exhaust internal
grievance or similar procedures otherwise reasonably available. On December
14, 2005, after a further submission by Mr. Leung, the Commission accepted the
investigator’s recommendation and decided not to deal with Mr. Leung’s
complaint at that time.
[11]
On June 24, 2005 the Commission assigned a second investigator to
conduct an investigation as to whether other redress procedures had addressed
the matters set out in Mr. Leung’s retaliation complaint. On October 5, 2005,
the investigator recommended that Mr. Leung’s retaliation complaint be dealt
with because the investigator was not satisfied that internal CRA procedures
were available to address Mr. Leung’s complaint. The Commission re-opened Mr.
Leung’s file on November 30, 2005 and began a third investigation.
[12]
On December 13, 2005 the Commission began the investigation that
underlies this application for judicial review. A third investigator was
assigned to the file and her report was completed on March 24, 2006. The report
was disclosed to Mr. Leung and the CRA for comment and submission. The
response submission by Mr. Leung was provided by the Commission to the CRA on
June 6, 2006. The CRA did not comment or respond to the disclosed investigator’s
report but it did respond to Mr. Leung’s submission to the Commission.
[13]
On August 11, 2006 the Commission decided to dismiss Mr. Leung’s
retaliation complaint because, as it stated in its letter to him:
·
the
evidence does not support the complainant’s allegation that he was retaliated
against for filing a human rights complaint;
·
the
complaint form does not establish a link between the alleged incidents and grounds
of discrimination based on race and national/ethnic origin, pursuant to section
7 of the Act;
·
the
complaint form does not raise any policy issues pursuant to section 10 of the Act.
(Tab 50, p. 239, Application Record Volume II)
DECISION
UNDER REVIEW
[14]
As the Commission did not give reasons in deciding to dismiss Mr.
Leung’s retaliation complaint, it is deemed to adopt the investigator’s report
as its reasons. The pertinent issue before the investigator was whether the
CRA Director, Mr. Hertzberg, retaliated against Mr. Leung by denying him a
promotion without competition and also by interfering with his authority as a
result of the Applicant filing a human rights complaint. The investigator
concluded that Mr. Leung was not promoted without competition into the FI04
Assistant Director Finance position as a result of a national job review
process and not because of retaliation by his Director.
ISSUES
[15]
In my view the four issues that need to be considered in this
application for judicial review are as set out below.
- Did the Commission
breach its duty of procedural fairness when it relied on an investigation
report that investigated the Applicant’s Director rather than the CRA for
retaliation?
- Was the
investigator partial towards the CRA as exhibited by the manner in which
the investigation was undertaken?
- Did the
investigator fail to investigate the CRA’s decision not to link the Applicant’s
old FI03 position to the new FI04 Assistant Director Finance position which
would have resulted in the Applicant’s promotion without competition?
- Did the Commission
err when it relied on an investigation report that applied the wrong legal
test for retaliation?
STANDARD OF
REVIEW
[16]
This Court has held that when a tribunal accepts the
recommendation of an investigator with little or no reasons, then the
investigator’s report is considered the Commission’s reasons. The Commission,
in dismissing the Applicant’s complaint, adopts the reasons of the investigator
as contained in her report. It then follows that if the report is flawed, so
to is the Commission’s decision to dismiss the Applicant’s complaint (Gainer
v. Export Development Canada, 2006 FC 814 at para.11).
[17]
Procedural fairness concerns the manner in which the investigation
was conducted. The Court’s task is to determine whether the process followed
by the investigator, and by extension, the Commission, satisfied the level of
fairness required in all of the circumstances. If the Commission breached its
duty of fairness, the decision under review should be set aside (Sketchley
v. Canada (Attorney General),
2005 FCA 404 at paras. 52-54).
ANALYSIS
Did the Commission breach its duty of procedural fairness when it
relied on an investigation report that investigated the Applicant’s Director
rather than the CRA for retaliation?
[18]
The Applicant submits that the investigator’s failure to conduct a
thorough investigation is indicated by the fact that she investigated the wrong
respondent. The Applicant argues that although his complaint of retaliation
was made against the CRA and not his Director, the investigator’s report states
that the only issue in the complaint is “whether the [Applicant’s] director
retaliated against him for filing a complaint with the [Commission] by denying
him a promotion without competition” (Investigator’s Report at para. 1). The Respondent
replies that for all intents and purposes, the retaliation complaint made by
the Applicant was directed at his Director.
[19]
The actions complained of by the Applicant in his complaint
submitted to the Commission were directed against his Director. The Applicant
has not established that other CRA managers involved in the classification
process had involvement or knowledge of the Applicant’s human rights complaint.
Retaliation can only be committed if one has knowledge of the Applicant’s
human rights complaint.
[20]
I find that the investigator did not err by focussing her investigation
on the question of retaliation by the Applicant’s Director as opposed to retaliation
by the CRA as an organization.
Was the investigator partial towards the CRA as exhibited by the
manner in which the investigation was undertaken?
[21]
The Applicant argues that the investigator lacked neutrality in her
investigation. After the Commission decided to proceed with the investigation,
the investigator invited the CRA to respond to the retaliation compliant. The CRA
filed its submission on December 29, 2005 in response to the Applicant’s retaliation
complaint. The investigator requested further information which was provided on
February 2, 2006. The Applicant was not provided with the CRA submission.
[22]
When the investigator completed her report on the retaliation
compliant on March 24, 2006, she invited the Applicant and the CRA to respond
to the report. The Applicant responded in May 2006. The CRA did not. The Applicant’s
response submission was provided to the CRA. The CRA responded on June 23,
2006 with comment on the Applicant’s response submission. This CRA response
was not provided to the Applicant.
[23]
The Applicant submits that, as a result of the investigator not
disclosing the CRA’s submissions, he was unable to point out material
inconsistencies.
[24]
The Respondent submits that the duty of procedural fairness in the
context of an investigation under the Act only requires that an applicant
be fully apprised of the substance of the case and be given a fair opportunity
to respond (Mercier v. Canada (Human Rights Commission), [1994] F.C.J.
No. 361 at paras. 17-18 (F.C.A); Bradley v. Canada (Attorney General),
[1997] F.C.J. No. 1031 at paras. 52-58). Cross-disclosure of submissions in
response to an investigation report is not required if the material in the
submissions were either mentioned or alluded to in the investigation report or
is not material to the case (Garvey v. Meyers Transport Ltd., [2005]
F.C.J. No. 1684 (F.C.A.)).
[25]
In Miller v. Canada
(Canadian Human Rights Commission) (re Goldberg), [1996]
F.C.J. No. 735 at paras. 9-10, this Court held that an investigation undertaken
by an investigator must satisfy at least two conditions, namely neutrality and
thoroughness. Upon reading the investigator’s reasons, I am satisfied that
these two conditions have been met. There is no indication that the
investigator was partial to the CRA.
Did the investigator fail to investigate the CRA’s decision not to
link the applicant’s old FI03 position to the new FI04 position which would
have resulted in the applicant’s promotion without competition?
[26]
The investigator inquired into the process by which the new F104
position was created. She found that:
·
at
one point in time within the context of the regional reorganization, it was
proposed by management that the substantive position of the complainant, Manager
Finance (FI03), position be reclassified and replaced by the position of Assistant
Director, Finance at the FI04 level;
·
in
July 2001, the final proposed changes submitted to senior management for
approval did not include the proposal. It recommended the creation of a new
FI04 position, along with two new FI03 positions. It was suggested that,
should the new structure be approved, the complainant’s substantive position be
reviewed against the proposed new position descriptions;
·
in
the fall of 2001, as a result of a national job description review, a Classification
Review Committee determined the position Assistant Director, Finance (FI04) was
a new generic national job without any significant link to any former regional
FI positions;
·
in
February 2002, a competitive process was held in the Pacific Region to staff
the new national position of Assistant Director, Finance (FI04);
·
in
July 2002, both the FI03 and FI04 positions were reassessed by an independent
party to determine whether the establishment of a significant link between them
was justified. It was determined that there was no significant link;
·
in
September 2002, Mr. Hertzberg held a selection process to staff the new
national FI04 position in Southern Ontario Region;
·
the
complainant had opportunity to apply for the position. He chose not to; and
·
staffing
of a new position through a selection process is the Respondents generally
accepted best practice.
(Investigator’s Report at para.
34)
[27]
The investigator concluded that decision of the Applicant’s
director to staff the position of FI04 Assistant Director Finance through a
selection process was justified noting that the classification decision was
made by the Classification Review Committee and that the Applicant’s Director
was not a member of the Committee.
[28]
I am satisfied the investigator did not fail to investigate the
CRA’s decision not to link the Applicant’s old FI03 position to the new FI04
Assistant Director finance position. The investigator did investigate and give
reasons for her conclusion.
Did the Commission err when it relied on an investigation report
which applied the wrong legal test for retaliation?
[29]
The Applicant submits that under section 14.1 of the Act,
there are two ways to establish his retaliation claim. The first is where
there is evidence the CRA intended the act to serve as retaliation; and the
second is where the Applicant reasonably perceives the act to be retaliation
for the human rights complaint (Wong v. Royal Bank of Canada, [2001]
C.H.R.D. No. 11 at para. 219).
[30]
The Applicant argues that, in the case at bar, the investigator
failed to undertake any assessment as to whether the Applicant had a reasonable
perception of retaliation when the decision to staff the FI04 Assistant
Director Finance position through competition was made after the Commission
released its report recommending a dismissal of the first complaint.
[31]
Further, the Applicant alleges that the investigator’s examination
of the retaliation complaint focussed on the link between the Applicant’s race
and national/ethnic origin, whereas retaliation is founded on the filing of a
complaint, not on a particular ground of discrimination. As a result, the Applicant
argues that the investigator failed to apply the correct legal test.
[32]
The Respondent acknowledges that the intent to retaliate need not
be established for retaliation complaint to be well-founded. A retaliation
complaint may be well-founded if the complainant reasonably perceived that the
act in question was in retaliation for the human rights complaint. Relying on Wong,
above, at para. 219, the Respondent argues that the reasonableness of the
perception must be measured as respondents ought not to be held accountable for
unreasonable anxiety or undue reaction on the part of the complainant.
[33]
The Respondent argues that the Applicant’s perception cannot be
considered in a vacuum. The perception of the Applicant’s reasonableness
must be considered in light of the CRA’s explanation as to why the FI04
position was staffed via competition.
[34]
The question of the perception of retaliation and the standard to
be used when evaluating the complainant was discussed by the Ontario Board of
Inquiry in Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R.
D/213. The Board of Inquiry set out the standard as follows:
The proper standard under s. 8 is the "reasonable human rights complainant." In assessing the
reasonableness of the complainant's fears and perceptions, boards of inquiry
must be sensitive to the particular difficulties that confront complainants,
many of whom experience great fear and anxiety surrounding the lodging and
pursuit of a human rights complaint. This is exacerbated where the complainant
continues in an ongoing relationship with the respondent, especially where that
relationship is complicated by a differential in power, such as is undeniably
the case in the employer-employee setting.
Although this discussion took
place under the framework of section 8 of the Ontario Human Rights Act,
R.S.O. 1990, c. H.19, the reprisal section, the wording and intent of the
section is similar to section 14.1 of the Act, the retaliation section
of the Act (Bresette c. Kettle and Stony Point First Nation Band
Council), 2004 CHRT 40 at para. 49).
[35]
Upon review, I find there is no evidence on the record to
demonstrate that the investigator was not sensitive to the Applicant’s fears or
that she conducted her analysis of the allegation of the retaliation by
erroneously linking the CRA’s alleged retaliation with the Applicant’s race and
ethnic/national origin. While the reasons do not explicitly state whether the investigator
considered if the Applicant reasonably perceived that the actions of the Director
amounted to retaliation, the investigator does discuss the reasonableness of
the CRA’s decision and provides rationale for her decision.
[36]
The investigator found, at paragraphs 36-37 of her reasons, that
the decision to staff the F104 Assistant Director Finance position through a
selection process was justified. The position had not been deemed by the
Classification Review Committee to be a reclassification upwards of the Mr.
Leung’s substantive position. She also found that the Applicant’s Director was
not a member of the Classification Review Committee and therefore had no
influence over whether the Applicant would be promoted with or without a
competition.
[37]
I agree with the Respondent that Wong, above, at para. 219,
set out the proposition that the reasonableness of a complainant’s perception
of retaliation must be measured. The Applicant has not shown that the
investigator improperly failed to conclude that the Applicant had a reasonable perception
of retaliation. Given the findings and conclusion of the investigator, I find the
Applicant has not demonstrated that his perception of retaliation was
reasonable.
CONCLUSION
[38]
I conclude that the Commission investigator conducted a thorough
investigation of the Applicant’s retaliation complaint and did not breach the
duty of procedural fairness to the Applicant as would be required of an investigative
process.
[39]
The application is to be dismissed with costs to the Respondent.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The application is dismissed.
2.
Costs are awarded to the Respondent.
“Leonard S. Mandamin”
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