Date:
20130104
Docket: T-556-12
Citation: 2013
FC 2
Ottawa, Ontario,
January 4, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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RAYMOND ALLAN MENARD
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Applicant
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and
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ROYAL BANK OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr
Raymond Menard worked for the Royal Bank of Canada (RBC) from March 2007 until
his dismissal two years later. Due to a gambling problem and symptoms of
Attention Deficit Hyperactivity Disorder (ADHD), Mr Menard manipulated his and
his wife’s bank accounts to cover money he was losing at the casino. He
misappropriated about $40,000 in RBC funds. In 2009, RBC froze his accounts.
[2]
Mr
Menard initially lied to RBC about the reason for his behaviour but, the next
day, he thought better of it and disclosed his gambling problems. RBC suspended
him with pay and then, on March 18, 2009, it terminated Mr Menard for
misappropriation of funds.
[3]
Mr
Menard filed a complaint with the Canadian Human Rights Commission (CHRC)
alleging that he was terminated and treated adversely on the basis of his
disability. The CHRC assigned an investigator to the complaint, who found that
RBC had a reasonable explanation – the misappropriation of funds – for
terminating Mr Menard and that this was not a pretext for discrimination. The
investigator also concluded that Mr Menard had not been adversely treated
because of his disability. She recommended that the CHRC dismiss Mr Menard’s
complaint.
[4]
In
turn, the CHRC accepted the investigator’s recommendation, finding that RBC had
a reasonable basis for dismissing Mr Menard, that RBC did not treat him
differently from other employees, and that further inquiry by the Canadian
Human Rights Tribunal was not warranted.
[5]
Mr
Menard submits that he was treated unfairly, in particular, because the
investigator did not conduct a sufficiently thorough review of the evidence and
because the CHRC apparently failed to consider his comments on the alleged
errors in the investigator’s report. In addition, he argues that the CHRC’s
decision was unreasonable. He asks me to quash the CHRC’s decision and order it
to reconsider his complaint.
[6]
I
am satisfied that Mr Menard was treated fairly and that the CHRC rendered a
reasonable decision. I must, therefore, dismiss this application for judicial
review.
[7]
There
are two issues:
1. Did the CHRC
treat Mr Menard unfairly?
2. Was the
CHRC’s decision unreasonable?
[8]
RBC
raised a preliminary issue about the admissibility of some portions of Mr
Menard’s affidavit, arguing that it included materials that were not before the
CHRC when it rendered its decision. I am satisfied that these materials are
admissible to support Mr Menard’s argument that he was treated unfairly. The
real question is whether those materials actually support Mr Menard’s argument
on that issue.
II. Issue One – Did the
CHRC treat Mr Menard unfairly?
[9]
Mr
Menard argues that the CHRC treated him unfairly in two respects. First, the
investigator failed to conduct a neutral and thorough investigation. Second,
the CHRC failed to consider his concerns about the investigator’s report.
[10]
I
am satisfied that Mr Menard was treated fairly.
[11]
Mr.
Menard suggests that the investigator did not fully appreciate the significance
or the timing of his performance reviews. However, he had an opportunity to
respond to the investigator’s conclusions and put his position directly to the
CHRC.
[12]
Mr.
Menard also maintains that the investigator overlooked or misunderstood significant
evidence about his access to disability benefits. He submits that he requested
access to disability benefits and that RBC turned him down on numerous
occasions: first, because he had been suspended with pay and had no reason to
request benefits; and, second, because he sought benefits after his termination
when he was no longer an employee and, therefore, no longer entitled to
benefits.
[13]
The
investigator acknowledged that there was conflicting evidence on this point.
Yet, she found that Mr Menard had been informed that he could contact an RBC
Employee Helpline to inquire about benefits. In fact, he told his employer that
he intended to do so. However, Mr. Menard maintains that he was referring to a
helpline for employee assistance, not a helpline from which he could access
disability benefits. He pointed out this distinction to the CHRC, but it did
not specifically respond to his submissions.
[14]
If
the CHRC fails to respond to material omissions in the investigator’s report,
it has failed to treat the complaint fairly: Dupuis v Attorney
General of Canada, 2010 FC 511, at para 16. However, I am not satisfied
that Mr Menard’s submissions to the CHRC actually pointed to a material
omission.
[15]
Clearly,
there was a dispute about whether Mr Menard had asked for access to disability
benefits and whether he had the means to do so. However, that was not an issue
at the core of his complaint. He claimed that he was dismissed because of his
disability. That claim was rejected by the investigator and that conclusion is
not seriously challenged here. Mr Menard also claimed that he received adverse
treatment from RBC and points to the evidence of his contacts with RBC relating
to his disability benefits as evidence of discrimination. As mentioned, the investigator
acknowledged the factual dispute yet concluded that Mr Menard had not been adversely
treated because of his disability.
[16]
Therefore,
I see nothing unfair in these circumstances. Perhaps Mr. Menard could have been
treated better when he asked about disability benefits. But I see no evidence
that the manner in which he was treated was different from the treatment of
other employees or that it had anything to do with his disability. Accordingly,
even if Mr. Menard is correct that the investigator was confused and that the
CHRC failed to consider his attempt to correct the investigator’s shortcomings,
no unfairness resulted because the evidence in issue did not support his claim
of discrimination based on disability.
III. Issue Two – Was the
CHRC’s decision unreasonable?
[17]
Mr
Menard argues that the CHRC’s decision was unreasonable, mainly because it
failed to take account of the fact that could not access information about
disability benefits either before his dismissal or after. As mentioned, he
alleges that the investigator had confused the Employee Helpline with the
Employee Assistance Program. The former would have given him information about
his available benefits while the latter afforded him counselling for his
gambling addiction. After his suspension, Mr Menard had access only to the
latter.
[18]
Again,
I am not satisfied that the evidence shows that RBC subjected Mr Menard to
adverse treatment based on his disability. RBC appears to have stated to Mr
Menard that he did not require disability benefits while he was suspended with
pay, nor was he entitled to benefits after he had been dismissed for cause. I
see no evidence that RBC’s position was based on, or connected in any way, to
Mr Menard’s disability. Mr Menard’s disability simply did not appear to be a
factor in RBC’s treatment of him.
IV. Conclusion and
Disposition
[19]
I
am not persuaded that Mr Menard was treated unfairly in the handling of his
complaint. Further, I am not satisfied that the CHRC’s decision not to refer
his complaint for a hearing was unreasonable. The investigator and, in turn,
the CHRC, considered the evidence and concluded that Mr Menard’s complaint was
not substantiated. That conclusion was a defensible outcome based on the facts
and the law and, therefore, was reasonable. Accordingly, I must dismiss this
application for judicial review, with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed with costs.
“James W. O’Reilly”
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