Date: 20130111
Docket: T-1111-10
T-669-11
Citation: 2013 FC 18
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 11, 2013
PRESENT: The Honourable Madam
Justice Gagné
BETWEEN:
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CHANTAL RENAUD
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Applicant
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and
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Attorney
General
of Canada
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicant, Chantal Renaud, is a former employee of the Financial and
Administrative Services Directorate of the Office of the Privacy Commissioner
of Canada [the Office of the Commissioner, or the employer]. She is seeking
judicial review of a decision of Privacy Commissioner Jennifer Stoddart [the Commissioner]
dated March 18, 2011, by which the Commissioner dismissed two final-level
grievances filed by the applicant under the internal grievance resolution procedure
adopted in accordance with section 208 of the Public Service Labour
Relations Act, SC 2003, c 22 [the PSLRA].
[2]
After
a long investigation, it was concluded, under the terms of the impugned
decision, that two workplace harassment complaints filed by the applicant
against two employees in the directorate to which she reported in the course of
her duties—namely, Patricia Garand, Director, Financial and Administrative
Services; and Tom Pulcine, Director General, Corporate Services—were unfounded.
The applicant is not contesting the merits of the findings of the decision
maker; instead, she argues that the principles of procedural fairness were
breached at various stages in the investigation and handling of her grievances.
[3]
Having
considered the evidence on record and the oral and written submissions of the
parties, and having deliberated on the issues raised by the parties, I conclude
that the intervention of this Court is not required in the present case, although
I am of the opinion that there were certain irregularities in how the
investigation of the applicant’s harassment complaints was handled. Let me
explain.
II. Factual background
[4]
The
applicant was hired in October 2007 to work as a financial officer in the
Financial and Administrative Services Directorate of the Office of the
Commissioner. Her immediate superior at the time was John McKinley, who in turn
reported to Mr. Pulcine.
[5]
The
applicant has been living with chronic juvenile rheumatoid arthritis since the
age of 12. In June 2008, she had to take time off from work because of
problems with her knees, and this time off turned into a period of long-term
sick leave lasting from June 30 to September 30, 2008.
[6]
During
her absence, Mr. McKinley resigned, and his position remained vacant until
October 8, 2008, when it was filled by Ms. Garand. In the interim, Mr. Pulcine
apparently became more involved in managing Financial and Administrative
Services; he retained the services of a consultant, Pamela Grochot, to
supervise the employees until Ms. Garand could assume her duties, and some
employees had to take on new tasks.
[7]
When
she returned to work on October 1, 2008, the applicant handed Mr. Pulcine
a request for reimbursement of tuition fees for a part-time CMA/MBA program, in
accordance with a verbal agreement made with Mr. McKinley when she was
hired, so she claims. Mr. Pulcine asked her to wait until Ms. Garand’s
arrival before submitting all the relevant documentation. It was also at this
time that the applicant learned that the Financial and Administrative Services
Directorate would be restructured and that some changes would be made to her
work description.
[8]
When
she arrived, Ms. Garand was instructed to restructure the Financial and
Administrative Services Directorate of the Office of the Commissioner and to fix
certain problems with operations and interpersonal relations that appeared to
have surfaced after Mr. McKinley left.
[9]
Even
before Ms. Garand arrived, the applicant had expressed her unhappiness
with not having exactly the same work description upon her return to work,
including the supervision of employees, and with the fact that one of the
employees in the group, Caroline Moloughney, was now carrying out certain
duties that had previously been assigned to her and that this same employee had
been promoted from the AS-3 level to the F1-1 level (the applicant was an F1-2
level employee). The applicant even contacted the Office of the Auditor General
to find out whether certain duties now assigned to Ms. Moloughney could
actually be performed by an F1-1 level employee.
[10]
When
she started working in her position on October 8, 2008, Ms. Garand held
a meeting with all employees to introduce herself and tell them about the
nature of her mandate. She informed the employees that until further notice,
the status quo would be maintained and that everyone would be reporting to her.
[11]
Right
from the earliest contacts between the applicant and Ms. Garand, the
question of reimbursing the applicant’s tuition fees was raised. Ms. Garand
asked the applicant questions about this and, after consulting with the
accounting department, determined that this expense had not been approved in
advance, in writing, as required by the policy then in force. Despite Ms. Garand’s
initial refusal, on December 24, 2008, the applicant was reimbursed for
her university fees for the fall 2008 semester, further to the claim she had
submitted on October 1, 2008. However, in December 2008, Ms. Garand
met with the applicant and told her that the employer would be enforcing the existing
policy and would no longer provide financial assistance for her education or
granting her leave to pursue her studies, as had been the case up to that time.
[12]
Furthermore,
at a staff meeting held on October 30, 2008, in connection with the
restructuring project assigned to Ms. Garand, the applicant learned that
certain organizational changes would be introduced in the directorate,
resulting in a new work description for her and for the employees who
previously reported to her. It is alleged that the applicant openly expressed
her dissatisfaction with this, which surprised Ms. Garand and prompted her
to reply that if any employees were not happy, they could send her their
résumés, and she would help them find other jobs in the public service (this
incident will be dealt with later in these reasons).
[13]
The
applicant went on sick leave again from January 14 to February 13,
2009. During her absence, Ms. Garand set up a new Finance Accounting
Operations communication group. The applicant learned through one of her
colleagues that her name was not on the email distribution list for this group.
On January 25, 2009, she sent Ms. Garand an email stating that, given
her varied tasks, she too should be part of this new group. Ms. Garand allegedly
did not respond to this email, so the applicant contacted the information
technology department and asked that her name be added to the list in question.
Shortly thereafter, she noticed that she had been removed from the list again.
[14]
In
February 2009, Ms. Garand asked the applicant to provide more details
about her training and her university diplomas. She also informed the applicant
that her checks had indicated that the applicant’s tuition reimbursement claim included
interest charges for a late payment.
[15]
On
March 4, 2009, the finance group held a meeting, but the applicant was not
invited to take part in it. One employee reportedly asked Ms. Garand why
the applicant was not there and was told that the applicant was too busy to attend.
[16]
The
work environment became increasingly fractious and difficult for the applicant.
She stopped communicating by email with Ms. Garand and refused to meet
with her in person. Near the end of February 2009, she asked Mr. Pulcine
to move her further away from Ms. Garand, but he refused to do so. Mr. Pulcine
had to remind the applicant several times that Ms. Garand was still her
immediate superior.
[17]
On
March 11, 2009, the applicant filed her first psychological harassment
complaint against Ms. Garand. In March 2009, the applicant received a
warning from Mr. Pulcine to the effect that it was important that she keep
any discussions regarding this harassment complaint confidential. On several
occasions, the applicant repeated her request to be separated from Ms. Garand
before she went on sick leave again on April 2, 2009. On April 7,
2009, she handed in a doctor’s note recommending that she be separated from Ms. Garand,
and when she returned to work on April 15, 2009, she was assigned an
office on the second floor and was told that she now reported to Mr. Pulcine.
[18]
On
May 4, 2009, the applicant filed a second psychological harassment complaint,
this time against Mr. Pulcine, in which she essentially alleges that he
abused his authority over her, made degrading remarks about the quality of her
work and repeatedly threatened her with disciplinary action.
[19]
On
June 29, 2009, the employer hired Quintet Consulting Corporation [Quintet] to
analyse the applicant’s complaints and allegations in relation to the Policy
on the Prevention and Resolution of Harassment in the Workplace [the Policy];
on November 2, 2009, Quintet was instructed to investigate the
allegations that were deemed admissible. Quintet submitted two preliminary
reports on May 1, 2010, and its final reports on September 30, 2010.
It concluded that all of the applicant’s complaints and allegations should be
rejected.
[20]
On
May 8, 2009, the applicant went on long-term sick leave again, and on
August 6, 2010, at the employer’s request, an occupational health medical
officer from Health Canada assessed her state of health. After conducting this
assessment, Health Canada informed the employer that for purely medical
reasons, the applicant was unable [translation]
“to re-enter the labour force in her former place of work . . .”
but could hold another equivalent position (Letter from Dr. John Given, October 15,
2010). On the day of the hearing before this Court, the applicant had been
working in another position in the public service for more than two years and seemed
perfectly content in this position.
[21]
However,
before leaving her job, the applicant filed several individual grievances against
her employer under subparagraph 208(1)(a)(i) of the PSLRA,
including the two final-level grievances which are the subject of this
application for judicial review.
[22]
The
other grievances concern a complaint against the new work description that was
imposed on her when she returned from sick leave in October 2008 (filed on
December 8, 2008), a complaint against the employer’s initial refusal to
reimburse her tuition fees in November 2008 (filed on March 11, 2009)
and a complaint against a disciplinary action taken against the applicant on
April 1, 2009 (filed on April 24, 2009), on the ground that the
disciplinary action amounted to discrimination on the basis of her disability.
The last grievance was brought before this Court for judicial review after
being rejected by the employer. After the hearing on the merits in
December 2010, the applicant discontinued her application for judicial
review.
[23]
Before
examining the procedure that ended in the rejection of the grievances at issue,
I think it is helpful to briefly review the statutory framework for the
individual grievance process in the public service, as well as the policies
applicable to the present case.
III. Statutory framework governing grievances in
the public service
The PSLRA
[24]
Under the special scheme of the PSLRA, only grievances related to an
arbitral award, the interpretation or application of a collective agreement or
a disciplinary action resulting in termination, demotion, suspension or
financial penalty may be referred to adjudication (section 209 of the PSLRA).
However, subsection 208(1) defines the wide scope of the right of public
service employees to present an individual grievance concerning any other
decision or action by the employer that deals with their conditions of
employment, subject to certain exceptions which do not apply in the present
case. This provision is worded as follows:
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208. (1) Subject to subsections (2) to (7),
an employee is entitled to present an individual grievance if he or she feels
aggrieved
(a) by
the interpretation or application, in respect of the employee, of
(i) a
provision of a statute or regulation, or of a direction or other instrument
made or issued by the employer, that deals with terms and conditions of
employment, or
(ii) a
provision of a collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment
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208. (1) Sous réserve des paragraphes (2) à
(7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il
s’estime lésé :
a) par l’interprétation ou l’application
à son égard :
(i) soit de
toute disposition d’une loi ou d’un règlement, ou de toute directive ou de
tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de
toute disposition d’une convention collective ou d’une décision arbitrale
b) par suite de tout fait portant
atteinte à ses conditions d’emploi
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[25]
As I
have already mentioned, the complaints against Ms. Garand and Mr. Pulcine
were made under subparagraph 208(1)(a)(i) of the PSLRA. The
applicant presented them because she feels aggrieved by the application, in
respect of her, of an instrument made or issued by the employer that deals with
her conditions of employment, specifically, the application of the Policy,
which was not contemplated in the collective agreement covering the applicant
at that time.
[26]
According
to the case law of this Court, there is a “sharp divide between matters that
can be referred to adjudication and those that cannot under the scheme of the
Act” (Boudreau v Canada (Attorney General), 2011 FC 868 at para 20
[Boudreau]). Individual grievances filed under subsection 208(1) of
the PSLRA are heard and decided in accordance with the procedures established
under the policies of the employer that were in force at the relevant time.
This is a purely internal grievance resolution procedure leading to a “final
and binding” decision at the final level, with no further action being allowed
to be taken under the PSLRA. Section 214 of the PSLRA provides as follows:
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214. If an individual grievance has
been presented up to and including the final level in the grievance process and
it is not one that under section 209 may be referred to adjudication, the
decision on the grievance taken at the final level in the grievance process
is final and binding for all purposes of this Act and no further action under
this Act may be taken on it.
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214. Sauf dans le cas du grief
individuel qui peut être renvoyé à l’arbitrage au titre de l’article 209, la
décision rendue au dernier palier de la procédure applicable en la matière
est définitive et obligatoire et aucune autre mesure ne peut être prise sous
le régime de la présente loi à l’égard du grief en cause.
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[27]
In Vaughan
v Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 [Vaughan], the
Supreme Court warned against accessing the courts to short-circuit the
grievance process and avoid having to follow the adjudication provided under
it. It also held that absence of recourse to independent adjudication under
section 91 of the former scheme (now section 208 of the PSLRA) is not
in itself a sufficient reason for the courts to get involved, except on the
basis of judicial review.
[28]
At
paragraph 37 of that decision, Justice Binnie, writing on behalf of
the majority, rejects the idea that this type of internal procedure could raise
concerns regarding the institutional impartiality of the decision maker, in
that case, one of the employer’s senior officials:
. . . Efficient labour relations is
undermined when the courts set themselves up in competition with the statutory
scheme (St. Anne Nackawic, at p. 718; Weber, at
para. 41; Regina Police, at para. 26). I do not agree with the
appellant’s broad suggestion, however obliquely made, that the departmental
procedure reeks of conflict of interest. The appellant’s own success with his
1995 grievance shows this not to be true in practice. The suggestion that
departmental officials have an interest in denying ERI benefits to an employee
who comes within the applicable policies so as to constitute some sort of
institutional bias is simply not credible. If the facts in another case were to
disclose a more particular and individualized conflict problem (as in the
whistle-blower cases) other considerations will come into play.
[29]
The
Federal Court of Appeal, too, addressed the issue of impartiality in Canada (Attorney General) v Assh, 2006 FCA 358,
in which it was asked to identify the criteria to be used to assess potential
conflicts of interest under certain Treasury Board Secretariat policies.
Writing on behalf of the Federal Court of Appeal, Justice Evans held that a
reviewing court must apply a less deferential standard of review to remedy any
injustices that could result from having a public servant’s grievance be
decided by the employer rather than by a third party:
. . . I said in Vaughan (at
paragraph 139) [Vaughan v Canada, [2003] 3 FC 645 (CA)] that
the informal nature of the grievance process under section 91 [now
section 208 of the PSLRA], and the fact that it is not independent of the
employer, suggest that a court should not afford much deference to internal
grievance boards’ decisions on questions that are not purely factual in nature.
As already noted, Mr. Assh had no right to refer his grievance to an
independent Adjudicator under section 92 [now section 209 of the PSLRA].
On the other hand, it is appropriate, in my
opinion, for the Court to give due consideration to the Department’s factual
assessment of the characteristics of their clientele and the nature of the
relationship that they have with Veterans Affairs’ employees.
On balance, this factor suggests that correctness is
the appropriate standard of review on the interpretation of the Code’s apparent
conflict of interest provisions and, subject to the point made in the previous
paragraph, their application to the facts of a particular case.
[Emphasis added]
[30]
Author
Christopher Rootham’s remarks on this subject are also of some interest. In Labour
and Employment Law in the Federal Public Service, Toronto: Irwin Law
(2007), at pages 308‑9, he notes that in the context of access to
information requests, the Supreme Court has already endorsed the approach of Justice Evans
of the Federal Court of Appeal, according to which senior officials of federal
institutions “are likely to have an institutional predisposition towards
restricting the public right of access and construing the exemptions broadly” (see
Macdonell v Quebec (Commission d’accès à l’information), 2002 SCC 71
at para 8). This raises the question of why such institutional biases would
be less likely in an internal grievance procedure where certain relatively
considerable institutional interests would come into play.
[31]
On
this point, I note with respect that I think that the effectiveness and the
legitimacy of the internal grievance procedure provided for under section 208
of the PSLRA will only be guaranteed if the reviewing court exercises its
residual jurisdiction while bearing in mind the particular features of the
statutory scheme, such as the absence of an independent decision maker, for
instance, although this could be a relatively conclusive factor, depending on
the circumstances (Vaughan, above, at para 22).
[32]
Finally,
it should be noted that a recent line of authority in this Court and in the
Federal Court of Appeal points out that section 214 of the PSLRA is a
relatively weak privative clause, and that the absence of an independent
decision maker at the final level of the procedure should be interpreted as a
factor favouring a lower degree of deference (see Appleby-Ostroff v Canada (Attorney
General), 2010 FC 479 at paras 15-16, affirmed on this point in 2011 FCA 84
at paras 20-23; Backx v Canada (Canadian Food Inspection Agency), 2010
FC 480 at para 22).
[33]
As
regards psychological harassment, the respondent submits that the employer is a
third party in relation to the complainant and to the employee or employees
named in the complaint, the ultimate objective of the employer being, rather,
to provide a peaceful and harassment-free workplace. Although this argument may
have some foundation in theory, it must be nuanced where, as in the case of Mr. Pulcine,
the employee named in the complaint is at a hierarchical level close to that of
the senior executives of the department or organization concerned.
Grievance procedure under the Policy on Harassment
[34]
On
June 1, 2002, the Treasury Board, in its capacity as the employer of the
federal public service, introduced a process for ensuring a harassment-free
workplace. The definition and the examples of conduct constituting harassment
within the meaning of the Policy set out a broader concept of harassment than
the grounds of discrimination under the Canadian Human Rights Act, RSC,
1985, c H6, and impose specific requirements designed to foster the
prevention and effective resolution of complaints related to harassment in the
public service.
[35]
The
complaint resolution process includes six steps that must be taken without
undue delay, that is, normally within a period of less than six months: (1) the
complainant files a written complaint with the delegated manager, who is a
senior official who has been designated as the person accountable for handling
the complaint; (2) the delegated manager acknowledges receipt of the complaint
and evaluates its compliance with formal requirements; (3) the delegated
manager reviews the content of the complaint to ensure that it does indeed
concern allegations of harassment; (4) the delegated manager proposes mediation;
(5) if mediation is not undertaken or has not resolved the complaint, an
independent investigator conducts an investigation and prepares a report of the
findings and proposed conclusions; and (6) the delegated manager or the
employer makes a decision or takes corrective action.
[36]
Given
their crucial role throughout the process, the Policy provides that delegated
managers “are expected to be impartial in any complaint process in which they
are involved” and “are expected to apply the established steps in the complaint
process”. As regards investigations, the Policy provides that the delegated
manager is expected to “assign a mandate to the investigator(s) and ensure that
persons conducting investigations are qualified in accordance with the
Competencies Profile for Internal and External Harassment Investigators, that
they are impartial, that they have no supervisory relationship with the
parties, and that they are not in a position of conflict of interest”.
[37]
Investigators
are expected “to abide by their assigned mandate” and “apply the principles of
procedural fairness”. Another obligation that is relevant to the present case
is the investigator’s obligation to have complainants, respondents and
witnesses review “their statement as recorded by the investigator, to confirm
its accuracy, prior to the final report being submitted”. The investigator is
therefore expected to receive written confirmation of the accuracy of the
testimonies and to make any necessary changes to the final report.
[38]
The
investigation is subject to the requirements set out in the Investigation
Guide for the Policy on Harassment Prevention and Resolution and Directive on
the Harassment Complaint Process [Investigation Guide]. The Investigation
Guide defines five criteria that must be met to justify a finding of workplace
harassment:
To substantiate the allegations, the investigation must demonstrate that,
according to the balance of probability:
a. The respondent displayed an improper and offensive conduct
including objectionable acts, comments or displays, or acts of intimidation or
threats, or acts, comments or displays in relation to a prohibited ground of
discrimination under the Canadian Human Rights Act;
b. The behaviour was directed at the complainant;
c. The complainant was offended or harmed, including the feeling
of being demeaned, belittled, personally humiliated or embarrassed, intimated
or threatened;
d. The respondent knew or reasonably ought to have known that
such behaviour would cause offence or harm; and
e. The behaviour occurred in the workplace or at any location
or any event related to work, including while on travel status, at a
conference where attendance is sponsored by the employer, at employer sponsored
training activities/information sessions and at employer sponsored events,
including social events.
[39]
The Investigation
Guide lays out the seven stages of an investigation. It establishes the
timetable applicable to each of the stages and allows the parties to react as
the investigation unfolds. At the various stages of the investigation, the
investigator is expected to
(i)
accept
the employer’s mandate and “[conduct] an independent investigation in a
thorough, timely, discreet, and sensitive manner”;
(ii)
as a
preliminary step, gather information, review the allegations, clarify them,
corroborate the information with the parties and prepare an investigation plan;
(iii)
interview each party and the witnesses and identify the relevant facts. At
this stage, the Policy provides that the investigator is subject to the
principles of procedural fairness described in Section II of the
Investigation Guide. The investigator is required to, among other things, uphold
the right to be heard and to present evidence, the right to review statements
to confirm their accuracy and the right to
access and rebut the findings;
(iv)
after
having validated the relevant facts with the parties, prepare and present to
the delegated manager and the parties a preliminary summary of facts including
a concise statement of the allegations and a description of the context and the
evidence gathered for each allegation;
(v)
collect
all “additional information” provided by the parties and incorporate it into
the report;
(vi)
determine
whether, on the basis of the “final disclosure of the facts” and on the balance
of probabilities, the alleged behaviour occurred and, if so, whether the
behaviour meets the definition of harassment set out in the Policy; and
(vii)
prepare
the final report relying on the information from the final disclosure of the
facts and make recommendations to the delegated manager regarding the complaint
and the allegations.
IV. Procedure followed in handling the
applicant’s harassment complaints
[40]
In
accordance with the procedure implemented by the Policy, Maureen Munhall, Director,
Human Resources Management, was appointed to manage the process for resolving
the applicant’s harassment complaints. It was Ms. Munhall who gave Quintet
the mandate to investigate the two complaints.
i.
Beginning of the investigation: evaluating the admissibility
of the allegations
[41]
The
initial review of the complaints was assigned to Mr. Morissette from
Quintet. A first meeting was held in August 2009 between Mr. Morissette
and the applicant and her union representative. The purpose of this meeting was
to evaluate the main elements of the two complaints to determine whether the
allegations met the definition of harassment set out in the Policy.
[42]
On
October 22, 2009, a summary and evaluation of the allegations in the
harassment complaints was sent to the applicant. Regarding the complaint
against Ms. Garand, it was decided that there was cause for investigation
into the allegations related to the negative impact of the reorganization of
Financial Services in the Office of the Commissioner, the difficulties
associated with the reimbursement of the applicant’s tuition fees, the problems
with the requests for education leave and other types of leave, and the breach
of an alleged verbal agreement concerning the applicant’s CMA/MBA courses.
[43]
As
for the harassment complaint against Mr. Pulcine, the applicant accused
him of having taken various reprisals against her after she made her complaint
against Ms. Garand, particularly by not keeping to her work schedules, by
making negative remarks about her complaint, by changing her duties and
functions, by keeping Ms. Garand as her immediate supervisor and by
refusing to reimburse her for parking or taxis.
[44]
In
both cases, certain allegations were deemed to be inadmissible, and although
the applicant expressed her dissatisfaction with this at first, she followed
the recommendation of her union representative and waited for the results of
the investigation before filing a grievance.
ii.
Preliminary investigation reports
[45]
On
May 19, 2010, the applicant received copies of the preliminary
investigation reports prepared by Ms. Paradis, regarding her complaints
against Ms. Garand and Mr. Pulcine, respectively. The issues raised
in the complaint against Ms. Garand were summarized by Quintet as follows:
1. Did Ms. Garand
harass Ms. Renaud during the restructuring by excluding her from the
consultation process and taking away some of her responsibilities?
2. Did Ms. Garand harass
Ms. Renaud by breaching the conditions of the verbal agreement between her
and Mr. Kinley regarding her CMA/MBA program?
3. Did Ms. Garand harass
Ms. Renaud by not respecting her absences and leave requests related to
her CMA/MBA program?
4. Did Ms. Garand harass
Ms. Renaud by bullying her and by repeatedly breaching the training
agreement?
[46]
The
issues raised in the complaint against Mr. Pulcine were summarized as
follows:
1.
Did
Mr. Pulcine harass Ms. Renaud by summoning her to a meeting without
considering her working hours or an appointment she had, and by telling her
that he would decide the outcome of her complaint and that she would not win?
2.
Did
Mr. Pulcine harass Ms. Renaud by not immediately removing her from Ms. Garand’s
supervision?
3.
Did
Mr. Pulcine harass Ms. Renaud by changing her functions and by taking
other action stemming from these changes, such as restricting overtime,
reminding her to keep the harassment proceedings confidential and prohibiting
her from contacting staff in Finances for advice?
4.
Did
Mr. Pulcine harass Ms. Renaud by refusing to reimburse her for
parking and by denying her leave to prepare for an exam?
[47]
In a
letter appended to the preliminary reports, Ms. Munhall invited the
parties and their witnesses to submit their written comments on the contents of
the reports directly to Ms. Paradis.
[48]
Neither
report contains any conclusions or comments by the investigator. They simply
summarize the testimonies and certain relevant excerpts from the documentary
evidence presented by the applicant, the respondents and the witnesses.
[49]
On
June 14, 2010, the applicant submitted her comments on the preliminary reports
to the investigator. These comments were contained in a 38-page document for
the complaint against Ms. Garand and a 50-page document for the complaint
against Mr. Pulcine. In these comments, she alleges that the investigator
was not impartial, that part of her own testimony was omitted, that the
employer’s evidence consisted of hearsay unsupported by documentary evidence,
and that the investigator placed too much importance on the testimonies of two
external consultants who did not personally witness the events and whose
testimonies had more to do with her abilities than with the facts surrounding
her harassment complaints.
[50]
On that same occasion, the applicant asked that signed copies of the
statements of four witnesses she had called, namely, Lise Fecteau and Marielaine Hang (co-workers),
Johanne Séguin (Support Officer, Technology Management) and Julie Latour (Workplace
Health and Safety Officer), be sent to her. According to the applicant, their
version of the facts as summarized in the preliminary reports did not
accurately reflect the testimonies given. The applicant repeated her request in
writing on October 3 and again on October 10, 2010, before finally
being told that she could not have access to the witnesses’ written statements
before the end of the investigation, on the ground that the investigation file
belongs to the employer.
[51]
In the months from June to December 2010, the applicant
was unsuccessful in obtaining copies of the witnesses’ statements despite her
efforts and her repeated requests to the investigator and the employer.
Finally, in response to a formal access to information request, the applicant
was informed that her witnesses had not signed their statements and that
Ms. Fecteau and Ms. Hang, after reading the preliminary reports, had
asked by email that corrections be made to their statements.
iii.
Dismissal of grievances regarding the preliminary reports
[52]
On
June 14 and 20, 2010, the applicant filed two grievances against Ms. Paradis,
one for each of the preliminary investigation reports. Ms. Munhall
rejected both grievances at the first and second levels because the
investigation process was still ongoing and no decision had been made yet. Ms. Munhall
added that the reports in question had been sent out simply to allow the
parties to comment on the evidence that had been presented.
[53]
The
applicant did not wait until the end of the investigation. By application for
judicial review, dated July 13, 2010, she asked this Court to intervene
with regard to Ms. Munhall’s decisions to refuse to accept her grievances
(docket T-1111-10).
[54]
In
support of her application for judicial review, the applicant relies on the
same grounds as those rejected by Ms. Munhall. She confirmed at the
hearing that this application was not moot, since neither the final reports nor
the third-level decision corrected the problems with the preliminary reports.
iv.
Final reports and rejection of grievances
[55]
The
final investigation reports were completed on September 30, 2010. By
letter dated October 19, 2010, Commissioner Stoddart notified the
applicant that her complaints had been rejected on the basis of the conclusions
of the final reports by Quintet.
[56]
In
these reports, Quintet concludes that the applicant’s main allegations against Ms. Garand
and Mr. Pulcine were unfounded, either because the evidence did not
establish the likelihood that the alleged behaviour occurred, or because the
alleged behaviour was not “harassment” within the meaning of the Policy. On
this point, the investigator states that only the factual observations of the
parties and witnesses, not their hypothetical analyses or conclusions sought,
were considered in the final reports.
v.
Third-level decision by Commissioner Stoddart
[57]
On
November 22, 2010, the applicant filed another individual grievance under
subparagraph 208(1)(a)(i) of the PSLRA regarding the decision of Commissioner Stoddart
to reject her harassment complaints on the basis of the final reports. The
applicant felt aggrieved by an incorrect application of the Policy in respect
of her. She submitted that, among other things, the investigator was not
impartial and fair, did not comply with the principles of procedural fairness,
was biased and did not make sure that each person was heard and had fair
opportunity to present his or her position, in accordance with the Policy. She
added that the investigator did not meet the criteria set out in the
Competencies Profile for Internal and External Harassment Investigators, to
which the Policy refers.
[58]
The
applicant argues that her complaint was rejected on the strength of erroneous
testimonies, as the investigator refused to correct the statements by Ms. Fecteau,
Ms. Hang and Ms. Latour that she had recorded. In support of this
argument, the applicant filed affidavits by Ms. Fecteau,
Ms. Hang and Ms. Latour, sworn in December 2010. Copies of these
affidavits were allegedly hand delivered to Commissioner Stoddart for the
grievance hearing.
[59]
The
testimonies of Ms. Fecteau, Ms. Hang and Ms. Latour basically concern
the meeting held on October 30, 2008, at which Ms. Garand allegedly
said that if the employees were unhappy with their new duties, they could send
her their résumés so she could help them find another job in the public
service. The applicant alleged in her harassment complaint against Ms. Garand
that this remark was aimed at her personally.
[60]
According
to the preliminary and final reports on the complaint against Ms. Garand, none
of the witnesses could remember what exactly Ms. Garand had said. However,
Ms. Fecteau, Ms. Hang and Ms. Latour state in their affidavits that
they remember the meeting and what Ms. Garand said perfectly, and that
after they received the preliminary report, they sent the investigator their
comments and asked her to change their stories with regard to this point. The
final report does not reflect the requested changes.
[61]
The
applicant adds that the investigator censored and falsified the testimony of Ms. Latour,
and that she failed to consider Ms. Séguin’s testimony, which was favourable
to the applicant. We will return later to the content and relevance of these
testimonies.
[62]
The
final-level grievance hearing was held on February 8, 2011, before
Commissioner Stoddart. In her final-level grievance, which is the subject
of this application for judicial review, the applicant challenged the
conclusions of the two final investigation reports on which the Commissioner
had relied in rejecting her harassment complaints on October 19, 2010.
Basically, the applicant alleged that the investigator had not acted
impartially and fairly towards her and had breached the principles of
procedural fairness.
[63]
The
grievance was rejected in its entirety by letter dated March 18, 2011. The
reasons for this decision are terse, but Commissioner Stoddart states that
she considered all the documents filed by the applicant and that Quintet’s
representatives were consulted for additional information regarding the
questions raised by the grievance. Concerning the new versions of the
testimonies of Ms. Fecteau, Ms. Hang and Ms. Latour, Quintet’s
representatives state that they did not have any impact on the conclusions of
the investigation. Commissioner Stoddart adds that, having reviewed the
documents submitted, she is satisfied that the investigation was conducted in
accordance with the Policy and that the investigator did not breach the
principles of procedural fairness. She therefore upheld her decision of
October 19, 2010.
[64]
On
April 18, 2011, the applicant filed an application for judicial review of
the Commissioner’s decision to reject her final-level grievance (docket T-669-11).
On May 16, 2011, Madam Prothonotary Tabib ordered that the two
applications for judicial review (dockets T-1111-10 and T-669-11) be heard
jointly. These reasons contain the
relevant facts, the analysis and the Court’s decision regarding the two
applications for judicial review made under section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
V. Issues
[65]
Although
the parties have framed them differently, the issues raised in this case may be
summarized as follows:
1.
Which
decision(s) should this application for judicial review concern?
2.
What
is the appropriate standard of review?
3.
Did
the investigation process meet the requirements set out in the Policy on
harassment?
4.
Did
the Commissioner breach the principles of procedural fairness in rejecting the
applicant’s third-level grievance?
5.
Preliminary
issue: Which decision(s) should this application for judicial review concern?
[66]
The
applicant is self-represented. Convinced that her harassment complaints are
well founded, she is asking this Court to appoint a new investigator to conduct
a new, impartial and competent investigation that respects the principles of
procedural fairness. She is also asking that her file be referred back to a
delegated manager appointed by the Labour Relations Board. Finally, she is
seeking monetary compensation for the investigator’s alleged breaches of the
principles of procedural fairness, as well as lost wages and benefits.
[67]
The
applicant’s cause of action is limited to the breaches of procedural fairness.
She accuses the Commissioner of failing to comply with the requirements of the
Policy and of not trying to correct the procedural irregularities that occurred
at various stages of the investigation, but she is also challenging, more
generally, the conclusions of the final investigation reports, as well as the
summary of the testimonies and the framing of the issues. The applicant submits
that from the beginning of the investigation process, Mr. Morissette refused
to hear all the events of the complaint chronologically because, she claims, he
wanted to protect the respondents. She further submits that Ms. Munhall was
not impartial in her work as delegated manager because she refused to hear her
grievance against the preliminary investigation reports, and that Ms. Paradis
breached in a number of respects the procedural fairness duties which all
investigators have under the Policy and the Investigation Guide.
[68]
The
respondent is of the opinion that the conclusions of the investigation reports
should not be attacked directly by application for judicial review, given that
these conclusions could be, and in fact were, challenged in a grievance under
section 208 of the PSLRA.
[69]
The
respondent’s argument that, in principle, the Court should limit this judicial
review to the decisions rendered by the administrative decision maker at the
final grievance level is correct.
[70]
Thus,
the decisions of Ms. Munhall finding that the applicant’s grievances of
June 14 and June 21, 2010, regarding the preliminary report, were
inadmissible so long as a final decision had not been made are not directly
subject to judicial review. At this stage of the proceedings, the application
for judicial review was clearly premature.
[71]
It
is therefore the decision of Commissioner Stoddart rejecting the
applicant’s final-level grievance which must be reviewed. However, since the
Commissioner and the delegated manager seem to rely essentially on the
conclusions of the investigation reports in their decisions, and given the
brevity of the reasons given by the Commissioner, I am of the opinion that it
is up to the Court to more closely examine the procedure followed, including
the conduct of the investigation that led to the rejection of the applicant’s
harassment complaints.
[72]
The
individual grievance presented to the Commissioner concerned the application of
the Policy and the Investigation Guide in respect of the applicant, and this is
what the Court must review. It would be impossible for the Court to review the
Commissioner’s final decision independently of the investigation process and
its conclusions since the Commissioner has given no reasons for decision and
has essentially adopted Quintet’s conclusions.
VI. Applicable standard of review
[73]
The
question of which standard of review should apply to the substantive
conclusions of the impugned decision is not in issue here since, as was
mentioned above, the applicant’s arguments are limited to breaches of
procedural fairness.
[74]
The parties
agree that the standard applicable to questions of procedural fairness is the
correctness standard of review (Sketchley
v Canada, 2005 FCA 404 at paras 46 and 111; Hagel v Canada (Attorney
General),
2009 FC 329, at
para 28 [Hagel]). However, they did not address
the issue of the nature and scope of the duty of fairness that applies in the
context of a workplace harassment grievance.
[75]
It
has been trite law since Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 [Baker], that the duty of procedural fairness is
flexible and variable and depends on an appreciation of the context of the
particular case. The Supreme Court of Canada has set out the following
non-exhaustive list of factors to be considered: (1) the nature of the decision
being made and the process followed in making it; (2) the nature of the
statutory scheme and the terms of the statute pursuant to which the
decision-making body operates; (3) the importance of the decision to the
individual or individuals affected; (4) the legitimate
expectations of the person challenging the decision; and (5) the
choices of procedure made by the decision-making body.
[76]
Weighing
the factors that are the most relevant to the present case, I come to the
conclusion that the duty of procedural fairness lying on a decision maker in
the context of a grievance that includes allegations of harassment is a heavy
one. First, a decision made in response to a workplace harassment complaint clearly
may have serious consequences for everyone involved (not only the alleged
victim, but also the respondents) and may compromise their respective personal
and professional interests. On this point, I adopt the following remarks of
Justice Gibson in Puccini v Canada (Director General, Corporate
Administrative Services, Agriculture Canada) (TD), [1993] 3 FC 557, at
para 28:
The laying of an harassment complaint is a serious matter. It exposes the
complainant to serious prejudice. The laying of the complaint will inevitably
become known in the workplace. The atmosphere there will inevitably become
difficult. Sides will be taken. Relationships will be strained. . . .
In each case of abuse of authority there is by definition a power imbalance.
The complainant risks further abuse, however subtle, of that imbalance. On the
other side, the alleged harasser will also suffer in terms of prestige,
reputation, possible loss of authority and respect. It is therefore important
that steps be taken to mitigate the negative effects and to deal with the
complaint quickly. But it is at least equally important that the complaint be
dealt with fairly, both in terms of the complainant and the alleged harasser.
[77]
Several
characteristics of the statutory scheme governing non-adjudicable individual
grievances, such as the skeletal nature of the procedural protections afforded
by the PSLRA in this type of grievance, the absence of an independent decision
maker and the “final and binding” nature of the decision, subject to the
availability of judicial review, also favour finding a heavy duty of procedural
fairness (see Hagel, above, at para 34).
[78]
Although
the process provided for in the Policy is an informal administrative process,
it is not unthinkable that the duty of fairness would be of the same intensity
in a workplace harassment grievance as it is in a classification grievance (see
Hagel, above, at para 35).
The Policy describes in detail the various steps to be taken and the rules that
apply when presenting a harassment grievance, while a designated manager of the
employer manages the complaint and follows up on the investigation in
accordance with the grievance resolution mechanism under section 208 of
the PSLRA. All this creates, in my view, a legitimate expectation (in terms of
fairness and transparency in the decision-making process) on the part of the
complainant, who is entitled to expect that the procedure set up by the
employer is followed in every respect.
[79]
I
now turn to the applicant’s arguments concerning, directly or indirectly, the
Commissioner’s decision to reject the grievances at issue.
VII. Did the
investigation process meet the requirements set out in the Policy on harassment?
[80]
The
applicant is challenging several aspects of the process followed in handling
her harassment complaints. Having heard the applicant’s oral arguments, I am of
the opinion that, on the whole, the investigation was conducted impartially and
fairly, but that, in a number of instances, the process fell short of meeting
the specific requirements of the Policy and the investigator and the employer
were somewhat less than transparent.
[81]
The
arguments of the applicant are as follows, in chronological order.
Investigation and
investigation reports
[82]
The
applicant submits that right from the first stage of the investigation, Quintet
refused to investigate the 15 allegations she made with the help of her
union representative. She also says that Ms. Munhall and
Commissioner Stoddart both refused to listen to her when she wrote to them
on this subject. Although those decisions are not the subject of the present
judicial review, I am of the opinion that there was no wrongdoing in the
preliminary assessment of the allegations. The fact that the applicant’s many
allegations were whittled down to four main ones against each of the
respondents does not mean the applicant did not have the opportunity to be
heard. The purpose of her meeting with Mr. Morissette was to verify all
the allegations and to determine whether they met the definition of harassment
set out in the Policy. All this is perfectly consistent with the procedure
established under the Policy and the Investigation Guide. Having read the
decisions dated October 22, 2009, of Ms. Munhall, I find that many of
the alleged facts were grouped together under other allegations, as opposed to
ignored, as the applicant claims. Moreover, these conclusions regarding the
lack of factual evidence and the absence of a prima facie case for
investigation are clear and exhaustive. This argument is, in my view, without
merit.
[83]
The
applicant submits that the investigator did not meet the criteria listed in the
Competencies Profile for Internal and External Harassment Investigators, but
she does not specify the criteria that Ms. Paradis allegedly does not meet,
nor does she offer any evidence supporting this allegation. This argument, too,
is without merit.
[84]
The
applicant raised several questions regarding the testimonies of
Ms. Fecteau, Ms. Hang and Ms. Latour, as they are
summarized in the investigation report concerning the complaint against Ms. Garand,
and regarding the fact that the investigator did not consider the testimony of Ms. Séguin.
To sum up, the applicant accuses the investigator of
1.
not
ensuring that her witnesses had access to a summary of their testimony so that
they could certify its accuracy by signing and dating a written copy of the
statements taken (see Section II, Stage 2 of the Investigation Guide).
The investigator was able to get the respondents’ witnesses to sign, so she
should have been able to do the same with the applicant’s witnesses;
2.
not
incorporating the changes requested by Ms. Fecteau, Ms. Hang and Ms. Latour into the final investigation report;
3.
failing
to incorporate part of the testimony of Ms. Latour into the investigation
report, when this testimony was relevant and favourable to the applicant;
4.
failing
to include Ms. Séguin’s testimony in the final investigation report, when
this testimony was relevant and favourable to the applicant;
5.
failing
to disclose to the applicant the relevant information she requested; and
6.
not
ensuring that Mr. McKinley testified for the purposes of the
investigation, as the applicant requested.
[85]
The
applicant submits that some of the comments she made to the investigator after
reading the preliminary reports were not incorporated into the final reports.
As was mentioned above, the applicant filed two documents totalling
88 pages of comments. Upon reading these documents, it becomes clear that
the applicant’s comments are not restricted to the version of the facts that
she provided but also extend to the versions of the facts given by the
respondents and other witnesses. It is also clear that there are more arguments
than there is relevant factual evidence in these documents. It appears that the
applicant wants control over the evidence considered by the investigator, which
is something that she obviously cannot do.
[86]
Regarding
the testimony of Ms. Séguin, the investigator explains that she did not
refer to it because it had nothing to do with the applicant’s allegations. This
explanation is reasonable, in my opinion, since that testimony was given in
relation to an allegation that was deemed to be inadmissible.
[87]
As
for the fact that Mr. McKinley did not give testimony for the
investigation, the applicant alleges that after she learned that he had not
returned the investigator’s telephone calls, she insisted that the investigator
keep trying to reach him, since his testimony was the key to proving a number
of allegations concerning the verbal agreement to reimburse her tuition fees.
[88]
The
investigator had a duty to interview all the witnesses concerned (see Investigation
Guide, Stage 4), conduct an exhaustive investigation and verify any gaps
or inaccuracies with the witnesses (see Annex 7 of the Investigation Guide).
However, the testimony of Mr. McKinley would only have confirmed the
existence of a verbal agreement between him and the applicant regarding the
reimbursement of her fees, education leave, etc. Since I am of the opinion
that the question of whether or not there was a verbal agreement is not
determinative in the circumstances, I cannot conclude that the investigator
breached her duty to conduct an exhaustive investigation, notwithstanding the
fact that no other witness could corroborate the applicant’s testimony on this
point. In other words, the applicant could have been the victim of harassment
even if there were no verbal agreement, but just because there allegedly was
such an agreement, that does not mean that the fact that it was repudiated for
being against the employer’s policy must necessarily be regarded as workplace
harassment. Rather, it is the overall circumstances that must be considered.
[89]
The
applicant submits that the investigator did not follow the Investigation Guide when
interviewing Ms. Simoneau and Ms. Grochot, two external consultants
who did not witness the facts alleged by the applicant. The applicant argues that
their testimonies contain falsehoods and derogatory comments about her
abilities and should not have been accepted by the investigator.
[90]
I do
not agree with the applicant that the investigator failed in her duty to
distinguish between facts and opinion and to focus on direct, first-hand
evidence of relevant facts, not hearsay (see Annexes 6 and 7 of the Investigation
Guide). I also do not agree that the testimonies of the consultants should have
been left out of the report because they are not directly related to the
applicant’s allegations (see Section II, Stage 2 of the Investigation
Guide). There is nothing in the analysis section of the final report to
indicate that the investigator based her conclusion regarding the first
question on the consultants’ testimonies. These testimonies were used, rather,
to place the analysis in the context of the events of October 2008, particularly
the changes to the applicant’s duties, of which the consultants had personal
and direct knowledge. The applicant’s abilities, as well as the degree of the
employer’s satisfaction with her performance, are definitely relevant facts
that may justify certain administrative action taken by the employer. This
evidence was even more relevant in the context of the mandate given to Ms. Garand
to restructure the directorate and make it more harmonious and effective.
[91]
In
light of the sworn affidavits that were filed in the Court record (and before Commissioner Stoddart),
it seems clear that the final report concerning the complaint against Ms. Garand
does not accurately reproduce the versions of Ms. Fecteau, Ms. Hang and
Ms. Latour, and that the investigator breached her duty to validate the
facts by having all the witnesses sign written copies of their statements. The
investigator refused to make the changes requested by the witnesses, on the
ground that she doubted their credibility. She took notes during the interviews
with the witnesses and preferred to rely on those instead of a version approved
by the witnesses. However, the Investigation Guide is clear on this.
This is an informal hearing, witnesses do not take an oath, and their depositions
are neither recorded nor taken down by a court reporter. The investigator could
choose either to have her interview notes approved and signed or to send a
statement for approval and signature. She could not substitute her own
assessment of a witness’s version of the facts for an approved version.
[92]
However,
the corrections that the investigator allegedly did not take into account
essentially concern what Ms. Garand said at the meeting on October 30,
2008. Ms. Garand herself confirmed having mentioned, in response to some
negative comments from certain employees, that [translation]
“if they were not happy, they could give her their résumés and she would
see to circulating them among her colleagues working in finance in the federal
government” (final report on harassment complaint against Ms. Garand, at p 11
of 37). Since Ms. Garand admitted having said this, the question of
whether the versions of the other witnesses regarding this subject were
corrected has little impact.
[93]
One
may well wonder why the applicant had so much difficulty in obtaining from the
investigator and the employer the comments made by her witnesses regarding the
preliminary report on the complaint against Ms. Garand, and in finding out
that the witnesses had not approved and signed their statements as required by
the Investigation Guide. Over a period of several months, the applicant
tried to have this cleared up, without success. She had to make an access to
information request, and an ad-hoc commissioner had to be appointed before she
could finally access the information to which she was entitled.
[94]
This
lack of transparency, although it had no impact on the outcome of this case,
definitely contributed to convincing the applicant that the investigator and
the delegated manager could not be impartial.
Delegated manager
[95]
The
applicant submits that Ms. Munhall was in a conflict of interest when she
agreed to testify for the purposes of the investigation while she was at the
same time acting as delegated manager. The applicant adds that the delegated
manager, as Director of Human Resources, reported to the respondents and was
not impartial. Finally, she submits that Ms. Munhall was not impartial in
the investigation because she refused to accept the applicant’s complaints
without doing the required checks after the preliminary reports were received.
[96]
For
the reasons that follow, I find that none of these allegations is founded in
the present case.
[97]
First,
Ms. Munhall had no personal interest in the applicant’s complaints. Such
would be the case, for example, if the delegated manager had been personally
involved, directly or indirectly, in one of the events that gave rise to the
applicant’s allegations. Nor are there any grounds to suspect that
Ms. Munhall had an institutional interest in seeing the applicant’s
complaints rejected. Moreover, the delegated manager did not make decisions on
the merits of the complaints for which she was responsible. Her role was
limited to managing the complaint (see the Treasury Board guide Harassment: dealing
with the complaint process, Role and expectations of the delegated manager), which further reduces
the chances of any conflict of interest in the circumstances.
[98]
The
applicant questions the impartiality of the delegated manager, given the close
relationship between the Director of Human Resources Management and Mr. Pulcine.
However, there is simply no evidence before this Court, other than the
applicant’s general accusations, supporting a finding of institutional bias or
any lack of independence.
[99]
This
is also reflected in the testimony of Ms. Munhall as it appears in the investigation
reports. Ms. Munhall spoke to the facts of which she and she alone had
knowledge. Regarding the complaint against Ms. Garand, she testified that
she contacted Mr. McKinley in February 2009 to ask him for details
about the applicant’s education agreement, and that Mr. McKinley confirmed
having agreed to extend an existing agreement that the applicant had with her
former employer. This testimony confirmed the applicant’s position.
[100] Regarding the complaint
against Mr. Pulcine, Ms. Munhall testified that she had received only
one claim from the applicant for reimbursement of parking fees, dated
April 24, 2009. While the applicant accused Mr. Pulcine of harassing
her by refusing to reimburse her parking expenses, Mr. Pulcine claimed
that he had not been involved because the applicant’s parking expenses claim
had been authorized in advance by Ms. Munhall. It therefore seems to me
the testimony of Ms. Munhall on this point actually favours the applicant.
[101] On the whole, the
applicant has not proved that the testimony of Ms. Munhall was more
favourable to the respondents’ position. As regards the duties of delegated
managers, I find that the duty to be impartial is not incompatible with giving
testimony on facts of which a delegated manager has personal knowledge, except
of course if it shows bias in favour of one party or the other. That is not the
case here.
VIII. Did
the Commissioner breach the principles of procedural fairness in rejecting the
applicant’s third-level grievance?
[102] Despite the fact that the grievance
process has multiple levels, after the applicant’s complaints had been
rejected, it was decided that her grievance should be referred directly to the
final level. Neither the decision maker nor the respondent could explain the
reasons for this decision.
[103] It is important to note that the
applicant is not accusing Commissioner Stoddart of breaching the
principles of procedural fairness in the handling of her third-level grievance.
She is essentially accusing her of not remedying the irregularities in the
investigation and the breaches of the investigator’s duties in conducting the
investigation. More specifically, the applicant argues that the Commissioner should have
made the necessary inquiries with the employees concerned (that is, the applicant’s
witnesses) to ensure that their testimonies were accurately reflected in the final
reports, as opposed to casting doubt on their credibility.
[104] For these reasons, I am
of the opinion that there is no evidence that the procedural irregularities
could have had any impact whatsoever on the outcome of the applicant’s
complaints on the merits. Accordingly, even if the Commissioner had taken the
necessary steps to remedy the investigation’s shortcomings, her third-level
decision on the applicant’s grievances would still have been correct. The
applicant’s application for judicial review will therefore be dismissed.
IX. Costs
[105] In light of the special
circumstances of the case, particularly the lack of transparency on the part of
the investigator and the employer, there will be no award as to costs.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that:
1.
The applications for
judicial review in dockets T-1111-10 and T-669-11 are dismissed.
2. Without costs.
“Jocelyne Gagné”
Certified true translation
Michael Palles
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