Date: 20081029
Docket: T-2225-07
Citation: 2008 FC 1211
Ottawa, Ontario, October 29, 2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
PAULINE BUSCH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, Ms. Busch, was employed on a term basis, from 2000 to 2003, by the
Department of Justice (DOJ) as National Coordinator of the Aboriginal Justice
Learning Network (AJLN). On February 3, 2003, Ms. Busch was informed that her
employment was terminated, effective May 9, 2003, because the AJLN was to be
dissolved and her position was to be eliminated.
[2]
On
February 3, 2004, Ms. Busch filed a complaint with the Canada Human Rights
Commission (CHRC or the Commission), in which she alleged discrimination on the
ground of race and national or ethnic origin in the course of her employment
and subsequent termination by the DOJ, contrary to sections 7 and 10 of the Canadian
Human Rights Act, R.S., 1985, c. H-6 (CHRA).
The basis of the claim was that the
Director General of AJLN and the Applicant’s immediate supervisor, Daniel
Watson, denied training and career opportunities, refused to address
discriminatory treatment and a poisoned work environment, and declined to
continue her employment because she is a Traditional Aboriginal woman.
[3]
In
a letter dated November 20, 2007, Ms. Busch was advised that the Commission had
decided, pursuant to s. 44(3)(b)(i) of the CHRA, to dismiss the complaint
because, having regard to all the circumstances, an inquiry by a Tribunal was
not warranted.
[4]
Ms.
Busch seeks judicial review of this decision.
II. Issues
[5]
As
presented during oral submissions, the outstanding issues in this application
may be described as follows:
1.
Did
the Commission breach the principles of procedural fairness in that it did not
conduct a thorough and neutral investigation and analysis of Ms. Busch’s
allegations of discrimination by:
(a)
Failing
to interview members of the AJLN’s advisory committee and other persons
identified by Ms. Busch as having information related to her allegations?
(b)
Failing
to consider evidence provided to it after the completion of the investigation?
III. Process
leading to the decision
[6]
I
will begin by spending some time setting out the process leading to the
Commission’s decision. This is because the alleged errors can readily be seen
in a description of the process in this particular case.
[7]
Ms.
Busch’s complaint was referred to an investigator. Her complaint was forwarded
to the employer, DOJ, who made lengthy representations in response. In summary
form, the response, which was written by Mr. Watson, made the key claim that
the decision not to renew Ms. Busch’s term employment was that “she failed to
deliver a strategic planning document that was key to the successful operation
of the unit for which she was responsible”. Mr. Watson also disputed Ms. Busch’s
claim that the AJLN program did not end as she had been advised. On November 8,
2006, Ms. Busch, through her representative, provided her reply comments. Of
note, Ms. Busch provided a list of 12 possible witnesses; for each, she
described the type of evidence that could be obtained from an interview. Some
were employees who, Ms. Busch asserted, could provide evidence regarding the
working environment. Ms. Busch also identified former AJLN Elders who were
present at a meeting where Mr. Watson made comments regarding Ms. Busch’s
dismissal that were allegedly inconsistent with the stated reasons for her
termination.
[8]
The
report of the investigator assigned to this claim (the Investigator’s Report)
is dated April 5, 2007. Information for the Report was obtained from a
number of interviews and documents. However, of the 12 witnesses identified by
Ms. Busch, it appears that only one was interviewed; that person was questioned
on the very narrow point of whether that witness had been offered the position
of National Coordinator of the AJLN. In her Report, the Investigator stated
that she interviewed a number of current and former employees of DOJ, none of
whom were suggested by Ms. Busch (or by DOJ). Significantly for this judicial
review, the Investigator appears not to have interviewed any of the Elders
identified on Ms. Busch’s list. Throughout the Report are references to the
conflicts between Mr. Watson and Ms. Busch. At one point, with respect to
availability of training, the Investigator acknowledged conflicting evidence
and the fact that “evaluating credibility of the parties was something that the
investigation is unable to do”. A portion of the Report related to the question
of whether Ms. Busch had been replaced as National Coordinator. On this point,
the Investigator found that no one was offered the position of National
Coordinator to replace the Ms. Busch.
[9]
The
Investigator’s Report concluded with a recommendation that the Commission
dismiss the complaint.
[10]
Ms.
Busch and the DOJ were provided with an opportunity to respond prior to the
Commission making a final decision. Only Ms. Busch provided comments. Of
particular importance, Ms. Busch’s representative forwarded copies of a series
of e-mails, that had recently come to light, that appear to suggest that the
AJLN National Coordinator position was filled by secondment and that the work
that Ms. Busch was doing continued to exist.
[11]
In
a letter dated November 20, 2007, the decision of the Commission to dismiss the
complaint was communicated to Ms. Busch. There was no specific reference to the
matters raised in the response of Ms. Busch. There was merely a “boilerplate”
statement that the members of the Commission reviewed the Investigator’s Report
and “any submission(s) filed in response to the report”.
IV. Analysis
[12]
There
is no material disagreement between the parties as to key legal principles
applicable to this decision. In brief:
1.
The
question of whether the Commission’s investigation is thorough is an issue of
procedural fairness. As such, it is reviewed on a standard of correctness.
2.
The
Court is entitled to consider the Investigator’s Report as constituting the
reasons of the Commission (see Sketchley v. Canada (Attorney-General), 2005 FCA
404, [2006] 3 F.C.R. 392 at para. 37).
3.
Investigations
conducted to determine whether a tribunal should be appointed pursuant to
s.44(3)(a) of the CHRA must be neutral and thorough in order to satisfy the
duty of procedural fairness (Slattery v. Canada (Human Rights Commission), [1994] 2
F.C. 574 (T.D.) at para. 49, aff’d (1996) 205 N.R. 383 (F.C.A.), [1996] F.C.J. No. 385 (C.A.) (QL), Public Service
Alliance of Canada v. Canada (Treasury Board), 2005 FC 1297, [2006] 3
F.C.R. 283 at para. 24, Tahmourpour v. Canada (Solicitor General), 2005
FCA 113, (2005) 332 N.R. 60 at para. 8).
[13]
For
a thorough discussion of the obligations of the Commission in investigating and
screening complaints, the reader is referred to the recent decision of my
colleague, Justice Zinn, in Herbert v. Canada (Attorney General) 2008 FC
969, [2008] F.C.J. No. 1209 (F.C.) (QL), at paras. 16-18, which analysis I
adopt.
[14]
Where
the parties disagree is whether the Commission’s investigation was thorough and
neutral and whether the decision was made without regard to certain of Ms.
Busch’s submissions. Having reviewed the record, I am of the view that the
Commission erred in two material aspects.
[15]
First,
in declining to interview 11 of 12 of the witnesses suggested by Ms. Busch, the
Investigator arguably failed to conduct a thorough investigation. This is so,
in particular, with respect to the Elders on the list who may have heard
comments of Mr. Watson that are contradictory – at least to some extent – to
the reasons he gave in his report to the Investigator. The Investigator gave no
reason why the Elders (or other persons on Ms. Busch’s list) were not
interviewed. I accept that not all persons on a complainant’s list of possible
witnesses must be interviewed; an investigator has considerable discretion in
deciding how to conduct an investigation (see, for example, Bateman v.
Canada, 2008 FC 393, [2008] F.C.J. No. 510 (F.C.) (QL) at para. 30, Slattery,
above, at para. 69). However, where a witness may have information that could
address a significant finding of the Investigator and where no one else is
interviewed that could resolve a controversial and important fact, it seems to
me that failure to interview that person may result in an investigation that is
not complete (see Egan v. Canada (Attorney General) 2008 FC 649, [2008] F.C.J.
No. 816 for a similar situation). In this case, the reasons for Ms. Busch’s
dismissal were in question. According to Ms. Busch, Mr. Watson gave
different reasons to the AJLN Advisory Committee for the termination than were
provided to Ms. Busch. In my view, this failure to interview any members of
that advisory body resulted in a Report that was not thorough.
[16]
I
am not as concerned about the failure to interview the former employees suggested
by Ms. Busch. The Investigator did interview a number of former employees
who could give the same evidence as to the work environment as those on Ms.
Busch’s list. Further, as employees suggested by neither party, these witnesses
were likely to give an impartial view. There was no breach of fairness in not
interviewing the former employees suggested by Ms. Busch.
[17]
The
second error involves the e-mail exchange forwarded to the Commission by Ms. Busch’s
representative and referred to in her reply to the Investigator’s Report. The
e-mail describes a secondment of a person to the position of National
Coordinator. The Commission, in its final decision makes no reference to this
new evidence. The subject matter of the e-mails directly affects one of the
Investigator’s findings that Ms. Busch was not replaced. It may be that the e‑mails
can be explained and that one can dismiss them as being unreliable, ambiguous
or unclear. Nonetheless, this is evidence that goes to an important finding of
the Investigator. A failure to address important issues raised by a complainant
in rebuttal has been held to be a reviewable error (see, for example, Egan,
above, at para. 16; Public Service Alliance of Canada, above, at para.
50). With the silence of the Commission’s decision on any of the reply, I am
left wondering if the evidence was considered. Given its close relationship to
the points in issue, the Commission erred by failing to address this evidence.
V. Conclusion
[18]
For
these reasons, the application for judicial review will be allowed, with costs
to the Applicant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for judicial review is allowed;
2.
The decision of the Commission dated November
20, 2007 is set aside and the matter is remitted to the Commission for
investigation by a different investigator and subsequent redetermination by the
Commission; and
3.
The Applicant is entitled to costs to be taxed
at the middle of Column III of Tariff B.
“Judith
A. Snider”
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