Date:
20130626
Docket:
T-1862-11
Citation:
2013 FC 711
Toronto, Ontario,
June 26, 2013
PRESENT: The
Honourable Madam Justice Heneghan
BETWEEN:
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CHRISTINA LOUISE SHAW
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Applicant
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and
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ROYAL CANADIAN MOUNTED POLICE
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
Ms.
Christina Louise Shaw (the “Applicant”) seeks judicial review of a decision
made on October 6, 2011, by the Canadian Human Rights Commission (the “CHRC” or
“Commission”) dismissing her complaint that the Royal Canadian Mounted Police
(the “RCMP” or the “Respondent”) had discriminated against her on the grounds
of disability, contrary to subsection 3(1) and paragraph 7(b) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”).
II. Background
[2]
The
Applicant was employed by the RCMP from an unknown date in 2003 until May 6,
2009. She began her employment on a contract, as a temporary Information Administrator (“IA”). In 2008, she applied for a permanent position as an IA. She
was successful at all stages of the application process, except for negative
performance reviews she received from the individuals whose names she had
provided as references.
[3]
The
Applicant was told on December 17, 2008, that she would be placed on six months
probation. The Respondent was not satisfied that the Applicant’s performance
sufficiently improved during that six month period. In May 2009, her contract
was not extended.
[4]
The
Applicant filed her complaint with the Commission in February 2010, alleging
that she had received adverse differential treatment that resulted in denial of
employment due to her disability. She claimed to suffer from severe migraine
headaches, anxiety and depression.
[5]
The
Commission assigned an investigator to look into the complaint. An investigation
was conducted over the period March 2010 to June 2011. The investigator
prepared a report, dated June 27, 2011, and recommended that the Commission
dismiss the complaint.
[6]
In
a decision dated October 6, 2011, the Commission dismissed the complaint
pursuant to subparagraph 44(3)(b)(i) of the Act, on the basis that the evidence
did not appear to support the allegation that the Applicant had been denied
employment on the basis of disability. The decision provided, further, as
follows that:
…given all of the circumstances of the complaint, an
inquiry into the complaint by the Canadian Human Rights Tribunal does not
appear warranted.
III.
Issues
[7]
The
Applicant addresses three issues in her Memorandum of Fact and Law:
1. Did
the Commission err in law by failing to observe the principles of procedural
fairness?
2. Did
the Commission base its decision on erroneous findings of fact?
3. Did
the Commission err in law by failing to consider the applicable legal
principles?
[8]
The
Respondent proposes a fourth issue: was the Commission’s decision reasonable?
IV. Submissions
(i) The
Applicant’s submissions
[9]
The
Applicant argues that the Commission erred by failing to observe the principles
of procedural fairness and natural justice. First, she submits that it ignored
material conflicts in the evidence before it and points to twenty-three
examples in the investigation report, of what she claims are material conflicts
in the evidence. As one example, she says that one of her former managers was
aware that she had a disability. She further argues that the Commission erred
by simply adopting the flawed investigation report and that its failure to
address the “material omissions” amounts to a breach of procedural fairness.
[10]
The
Applicant submits that the investigation report lacked thoroughness. She says
that the investigator failed to interview key witnesses who were vitally
important to her claim of discrimination and that the Commission failed to
investigate whether the Respondent had presented non-discriminatory reasons for
its decision not to renew her employment contract.
[11]
Finally,
under this heading, the Applicant argues that the Commission did not provide
adequate reasons for dismissing her complaint.
[12]
The
Applicant submits that the Commission based its decision on erroneous findings
of fact made in a perverse and capricious manner without regard to the material
before it. In this regard, she argues that the investigation report and
decision contained internal inconsistencies having regard to the evidence.
[13]
In
particular, the Applicant refers to the allegedly divergent evidence relating
to the Respondent’s claim that the Applicant performed poorly.
[14]
Finally,
the Applicant argues that the Commission erred by failing to consider human
rights jurisprudence, in particular the jurisprudence relating to the impact
that a disability can have on work performance. She submits that since she
indicated that she suffered from a range of symptoms that suggested depression,
the Commission should have considered how these symptoms would have affected her
work performance, as a person suffering from depression. In particular, she
notes that her complaint alleges that there were several individuals at the
RCMP who were aware of her mental illness, for example Inspector Shinkaruk.
(ii) The
Respondent’s submissions
[15]
The
Respondent argues that the investigator’s report and its recommendation
constitute the Commission’s reasons for dismissing the complaint. Referring to
the decision in Slattery v. Canada (Human Rights Commission)(T.D.),
[1994] 2 F.C. 574 at para. 67, the Respondent argues that the Commission is not
required to consider every one of the Applicant’s allegations.
[16]
As
for the arguments concerning an alleged breach of procedural fairness, the
Respondent submits that in assessing these submissions, the Court must consider
the neutrality of the investigation into the complaints, the thoroughness of that
investigation, and whether the parties to the complaint, that is the Applicant
and the employer, were provided with an opportunity to reply to the
investigator’s report.
[17]
In
response to the Applicant’s arguments that there are material conflicts in the
evidence and unreasonable omissions in the Commission’s reasons, the Respondent
submits that those arguments are no more than assertions that are not supported
by the evidence.
[18]
In
particular, the Respondent submits that the Commission did not err in declining
to interview two of the people suggested by the Applicant. It notes that the
investigator heard from eight individuals, including the Applicant, and former
supervisors and coworkers. It argues that the Commission reasonably found that
interviewing two more persons would not have provided any further probative or
new evidence relative to the complaint.
[19]
The
Respondent also submits that the investigator appropriately questioned the
interviewees on the topics of disability and work performance. Concerning
questions about disability, the Respondent provides three examples of direct
questions on the topic. The Respondent notes that the investigator asked
Inspector Shinkaruk about his comments related to sick leave, and also asked
three other individuals about the Applicant’s disability.
[20]
The
Respondent submits that the Commission gave the Applicant an adequate
opportunity to reply to the investigation report. It argues that when the
Applicant did reply, her submissions were a repetition of allegations made in
the original complaint and not substantiated by documentation.
[21]
As
for alleged errors of fact and law, the Respondent argues that the investigator
appropriately reviewed witness statements and documents. While agreeing that
the Applicant received positive performance reviews in the past, the Respondent
submits that this does not conflict with the employer’s later finding that the
Applicant’s work performance was poor.
[22]
The
Respondent says that the investigator adequately canvassed the question of the
Applicant’s disability and reasonably concluded that the reason the Applicant
was dismissed was due to poor performance, rather than her disability.
V. Discussion
and Disposition
[23]
The
first matter to be addressed is the applicable standard of review. Issues of
procedural fairness are reviewable on the standard of correctness; see the
decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para. 129.
[24]
Questions
of fact are reviewable on the standard of reasonableness; see Dunsmuir, supra,
at para. 51. Pursuant to paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7, findings of fact must be made with “regard for the
material” before a tribunal.
[25]
The
Supreme Court in Dunsmuir, supra, para. 62 explained that a
standard of review analysis is not required where the jurisprudence has already
determined the appropriate standard of review. It is settled that the Commission’s
decision to dismiss a complaint is reviewable on the standard of
reasonableness; see the decisions in Vos v. Canadian National Railway (2010),
373 F.T.R. 124 at paras. 45-50, and Balogun v. Canada (Minister of National
Defence) (2009), 345 F.T.R. 67 at para. 55.
[26]
The
first issue raised by the Applicant is an alleged breach of procedural fairness
arising from the failure of the investigator to pay attention to the evidence
submitted. By way of illustration she points to twenty-three examples in the investigation
report that she characterizes as material conflicts in the evidence, including
the “fact” that one of her former mangers was aware that she had a disability.
[27]
I
am not persuaded that the investigator ignored the evidence that was before
him. The investigator is not obliged to refer to all of the evidence that was
submitted. The Applicant has not shown that any evidence was ignored.
[28]
The
Applicant’s submissions about a breach of procedural fairness respecting the
neutrality and thoroughness of the investigation are another aspect of her
argument about a breach of procedural fairness. Insofar as these questions are
to be reviewed independently, the applicable standard of review is correctness.
[29]
The
content of “neutrality” was reviewed in Miller v. Canada (Canadian Human
Rights Commission) (1996), 112 F.T.R. 195 where the Court said the
following at page 202:
…The basic test to insure fairness and to avoid a
reasonable apprehension of bias has been enshrined in the jurisprudence: it is
whether reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information, would perceive bias on
the part of an adjudicator. The grounds of apprehension must be substantial.
Mere suspicions are not sufficient. [Footnote omitted]
[30]
The
Applicant’s complaint about a lack of thoroughness arises from the fact that
two witnesses which she had suggested for interviews were not interviewed by
the investigator.
[31]
In
Slattery, supra, at page 600, this Court considered the requirement
of thoroughness in assessing the completeness of an investigation
pursuant to the Act. Justice Nadon (as he then was) said the following:
In determining the degree of thoroughness of
investigation required to be in accordance with the rules of procedural
fairness, one must be mindful of the interests that are being balanced: the
complainant’s and respondent’s interests in procedural fairness and the CHRC’s
interests in maintaining a workable and administratively effective system.
Indeed, the following words from Mr. Justice Tarnopolsky’s treatise Discrimination
and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally
applicable with regard to the determination of the requisite thoroughness of
investigation:
With the crushing case loads facing Commissions, and
with the increasing complexity of the legal and factual issues involved in many
of the complaints, it would be an administrative nightmare to hold a full oral
hearing before dismissing any complaint which the investigation has indicated
is unfounded. On the other hand, Commission should not be assessing credibility
in making these decisions, and they must be conscious of the simple fact that
the dismissal of most complaints cuts off all avenues of legal redress for the
harm which the person alleges [sic].
[32]
The
Applicant, as complainant, had no right to choose the witnesses to be
interviewed. She had the right to a thorough investigation. In McConnell
v. Canada (Human Rights Commission), 2005 FCA 389 at para. 8, aff’g (2004),
51 C.H.R.R. D/228 (F.C.), the Federal Court of Appeal stated that:
With respect to the alleged breach of procedural
fairness by the Commission, I am of the opinion that the Applications Judge
committed no reversible error in her analysis. The Applications Judge began her
analysis of this issue by observing that “[t]he requirements of procedural
fairness are to be assessed relative to the nature of the decision in issue”
(para. 89). She then correctly identified the content of the duty of fairness
appropriate in this case, as follows:
90 In the present case, the
decision in issue is the discretionary, administrative decision of the
Commission to dismiss the Applicant’s complaint, following an investigation.
The investigation was undertaken pursuant to section 41 of the Act. The
investigation process is not intended to provide the full range of natural
justice to a complainant. There is no obligation to interview each witness
proposed by the Applicant or to permit cross-examination of witnesses or to
choose the Investigator. There are procedural matters and the Commission is
entitled to control its own process subject to the requirements of fairness.
[33]
In
this case, the investigator interviewed seven witnesses, including one witness
who was suggested by the Applicant. The Respondent submits that the investigator’s
decision not to interview other persons suggested by the Applicant was
reasonable since those persons could not have provided new and probative
evidence. In the circumstances of this complaint that decision was reasonable.
[34]
The
Applicant’s argument that the investigator failed to address whether there was
contradictory evidence regarding a record of “poor performance” is also
rejected. There are several examples in the investigation report where the investigator
asked interviewees directly about their awareness of the Applicant’s alleged
depression. I refer to the interviews conducted with Inspector Shinkaruk, Mr.
Holmes and Corporal Allemekinders.
[35]
In
my opinion, the interviewees showed that they were aware that the Applicant was
undergoing some personal trouble but their evidence does not suggest that they
had particular knowledge of any medically confirmed depressive state of the
Applicant nor that such knowledge affected their negative performance reviews
of the Applicant.
[36]
The
Applicant also had the opportunity to reply to the investigation report, which
she did on August 19, 2011.
[37]
In
the result, I am satisfied that the investigation report was conducted with an
adequate degree of thoroughness.
[38]
The
Applicant further argues that the Commission erred in making a decision that
contained fundamental internal inconsistencies relative to the evidence before
it. She relies on the decision in Kennedy v. Canadian National Railway Co.,
2006 FC 697, to argue that the Commission cannot rely on a report that is
internally inconsistent.
[39]
In
my view, this decision does not assist the Applicant. In Kennedy, supra,
the Court found that the report recorded that Mr. Kennedy held more seniority
than those he was seeking to replace, while at the same time the investigator
found that Mr. Kennedy had less seniority.
[40]
In
any event, an inconsistent finding about seniority is objectively different
from an apparently inconsistent performance review. The positive performance
reviews provided to the Applicant are not truly inconsistent with the negative
performance reviews in the present case.
[41]
Any
positive performance reviews that the Applicant received in the past in
connection with other positions are not inconsistent with the investigator’s
finding that when the Applicant was under consideration for the IA position,
her supervisors found her performance was poor. Although the Applicant received
positive feedback from one trainer during the probationary period, this one
e-mail does not overshadow the other negative reviews.
[42]
The
decision of the Commission meets the standard of reasonableness, that is one
that “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”; see Dunsmuir, supra,
at para. 47.
[43]
I
am satisfied, on the basis of the record, that the investigator conducted a
neutral and thorough investigation of the Applicant’s complaint, including
interviews of people who were familiar with the substance of the complaint and
review of relevant documents. The investigator reasonably concluded that there
was no basis for referring the complaint to the Commission.
[44]
In
its decision in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R.
392 at paras. 36-37, the Federal Court of Appeal held that the recommendation
of the investigator concerning dismissal of a complaint can be adopted as the
reasons of the Commission in its decision to dismiss a complaint. Having regard
to the record before me and the submissions of the parties, I am satisfied that
the Commission’s decision here meets the relevant standard of reasonableness
and discloses no breach of procedural fairness or other error of law.
[45]
In
the result, the application is dismissed with costs to the Respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed with costs
to the Respondent.
“E. Heneghan”
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