Date:
20130906
Docket:
T-768-12
Citation:
2013 FC 937
Ottawa, Ontario,
September 6, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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ULYSSE GUERRIER
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Applicant
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and
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CANADIAN IMPERIAL BANK OF
COMMERCE (A.K.A. CIBC)
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Commission dated March 16, 2012, wherein the Commission decided,
pursuant to subsection 44(3)(b)(i) of the Canadian Human Rights Act, RSC
1985, c. H-6, to dismiss the Applicant’s complaint. For the reasons that
follow, I find that the application is dismissed, with costs.
[2]
The
Applicant Ulysse Guerrier worked for the Respondent Canadian Imperial Bank of
Commerce (CIBC) from July 2007 to September 2008 as a bilingual sales and
service specialist in CIBC’s Toronto Visa Centre. He began with a probationary
period, which was twice extended. At the end of the second probationary period
he was made a permanent employee. A few days later he
went on short-term disability. The Applicant resigned in September 2008,
which resignation was accepted by CIBC. The Applicant argues that he was
constructively dismissed.
[3]
The
Applicant filed a complaint with the Ontario Human Rights Commission. That
Commission lacked jurisdiction over the CIBC, a federal bank, whereupon the
Applicant commenced the present proceeding. CIBC unsuccessfully sought to have
this proceeding dismissed, arguing that the matter should be handled through the
collective agreement with the union.
[4]
An
investigation was conducted by an Investigator of the Canadian Human Rights
Commission, who delivered a nineteen-page Report dated 7 December 2011. The
Applicant and CIBC were invited to make submissions respecting that Report, and
did so. The Commission examined that Report and responses and, in the decision
now under review, stated, inter alia:
Before rendering the decision, the Commission
reviewed the report disclosed to you previously and any submission(s) filed in
response to the report. After examining this information, the Commission
decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act,
to dismiss the complaint because:
•
the
evidence does not appear to support that the complainant required accommodation
in the form of lower job standards as a result of a disability,
•
the
evidence suggests that notwithstanding this issue, the respondent appears to
have provided the complainant with reasonable accommodation,
•
the
evidence does not appear to support that the complainant was treated
differently because of his disability, and
•
given
all of the circumstances of this complaint, further inquiry by the Canadian
Human Rights Tribunal does not appear to be warranted.
Accordingly, the file on his matter has now been
closed.
[5]
In
his Memorandum of Fact and Law filed in this Court, the Applicant has stated
the issues to be as follows:
a)
Did
the CHRC error in law by violating section 42(1) of the Act or alternatively,
did it breach the principles of procedural fairness in failing to provide
adequate reasons for its decision?
b)
Did
the CHRC deny the Applicant procedural fairness and natural justice during its
investigative process?
c)
Did
the final decision of the CHRC, dated March 16, 2012, err in law?
d)
Did
the investigator and/or CHRC conduct a neutral and through investigation?
e)
Was
“open-mindedness” lost by the investigator and/or the CHRC?
f)
Did
the investigator’s report err in law and fact?
g)
Did
the CHRC err in law by failing to address the Applicant’s reasonable
apprehension of bias or in the alternative; did the CHRC err in law by
conducting a biased investigation?
[6]
I
accept the distillation of these issues into four issues, as presented in
CIBC’s factum, which reflects the manner in which Counsel for both parties
argued the matter before me. They are:
1.
The
CHRC breached Guerrier’s right to procedural fairness by failing to provide
adequate reasons for its decision to dismiss the complaint;
2.
The
CHRC breached Guerrier’s right to procedural fairness because the investigator
was biased against him;
3.
The
CHRC breached Guerrier’s right to procedural fairness by completing an
investigation which was not thorough; and
4.
The
CHRC “erred” in its decision.
STANDARD OF
REVIEW
[7]
The
Applicant has raised issues of procedural fairness and bias. They must be dealt
with on a correctness standard; that is, was the procedure fair, or not; was
there bias, or not.
[8]
The
Applicant has attacked the merits of the decision itself. Any error of law must
be dealt with on the basis of correctness; otherwise, the decision is to be
reviewed on a standard of reasonableness.
[9]
Justice
Barnes of this Court provided a good analysis as to the standard of review of
the Commission’s decision in circumstances such as the present in Tutty v Canada
(Attorney General), 2011 FC 57. I accept and adopt what he wrote at
paragraphs 12 to 14 of that decision:
12 The Commission's screening function under s
44 of the Act has been compared to the role of a judge presiding over a
preliminary inquiry. The role was described by the Supreme Court of Canada in Cooper v Canada (Human Rights Commission), [1996] 3 S.C.R. 854, 140 DLR (4th) 193 at para 53
as follows:
53 The Commission is not an adjudicative body; that
is the role of a tribunal appointed under the Act. When deciding whether a
complaint should proceed to be inquired into by a tribunal, the Commission
fulfills a screening analysis somewhat analogous to that of a judge at a
preliminary inquiry. It is not the job of the Commission to determine if the complaint
is made out. Rather its duty is to decide if, under the provisions of the Act,
an inquiry is warranted having regard to all the facts. The central component
of the Commission's role, then, is that of assessing the sufficiency of the
evidence before it. Justice
Sopinka emphasized this point in Syndicat des employés de production du Québec
et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R.
879, at p. 899:
The other course of action is to dismiss the
complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur
where there is insufficient evidence to warrant appointment of a tribunal under
s. 39. It is not intended that this be a determination where the evidence is
weighed as in a judicial proceeding but rather the Commission must determine
whether there is a reasonable basis in the evidence for proceeding to the next
stage.
[Emphasis added]
13 In screening complaints, the Commission
relies upon the work of an investigator who typically interviews witnesses and
reviews the available documentary record. Where the Commission renders a
decision consistent with the recommendation of its investigator, the
investigator's report has been held to form a part of the Commission's reasons:
see Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at
para 37.
14 As noted in the above authorities, the
Commission's decision to dismiss or refer a complaint inevitably requires some
weighing of the evidence to determine if it is sufficient to justify a hearing
on the merits. It is this aspect of the process that has been said to require
deference on judicial review. Deference is not required, however, in the
context of a review of the fairness of the process including the thoroughness
of the investigation. For such issues the standard of review is correctness.
Issue #1: Adequacy
of Reasons
[10]
In
the present case, the Commission stated that it had reviewed the Report of the
Investigator, as well as the submissions of each of the parties as to that
Report. The Commission’s four-point conclusions reflect the conclusions
summarized in the Report. As written by Justice Linden for the panel of the
Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005
FCA 404 at paragraph 37, the Court should treat the Report as constituting the
Reasons of the Commission:
37 In my view, the appellant's argument on this
issue must fail. While it is true that the investigator and Commission do have
"mostly separate identities"(Canada (Human Rights Commission) v. Pathak
(1995), 180 N.R. 152, [1995] 2 F.C. 455 at para. 21, per MacGuigan J.A.,
(Décary J.A. concurring)), it is also well-established that, for the purpose of
a screening decision by the Commission pursuant to section 44(3) of the Act,
the investigator cannot be regarded as a mere independent witness before the
Commission (Syndicat des employés de production du Québec et de l'Acadie v.
Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at para. 25 [SEPQA]). The
investigator's Report is prepared for the Commission, and hence for the
purposes of the investigation, the investigator is considered to be an
extension of the Commission (SEPQA, supra at para. 25). When the Commission
adopts an investigator's recommendations and provides no reasons or only brief
reasons, the Courts have rightly treated the investigator's Report as
constituting the Commission's reasoning for the purpose of the screening
decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada
v. Communications, Energy and Paperworkers Union of Canada (1999) 167 D.L.R.
(4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian
Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43
(C.A.)).
[11]
The
Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, per Abella J for
the Court, has stated that perfection is not the standard; the Reasons are not
to be reviewed in a vacuum; rather, they are to be read in the context of the
parties’ submissions and the process. She wrote at paragraph 18:
18 Evans J.A. in Canada Post Corp. v. Public
Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in
reasons upheld by this Court (2011 SCC 57) that Dunsmuir seeks to "avoid
an unduly formalistic approach to judicial review" (para. 164). He notes
that "perfection is not the standard" and suggests that reviewing
courts should ask whether "when read in light of the evidence before it
and the nature of its statutory task, the Tribunal's reasons adequately explain
the bases of its decision" (para. 163). I found the description by the
Respondents in their Factum particularly helpful in explaining the nature of
the exercise:
When reviewing a decision of an administrative body
on the reasonableness standard, the guiding principle is deference. Reasons are
not to be reviewed in a vacuum - the result is to be looked at in the context
of the evidence, the parties' submissions and the process. Reasons do not have
to be perfect. They do not have to be comprehensive. [para. 44]
[12]
Justice
Barnes summarized the point well in Air Canada Pilots Association v
MacLellan, 2012 FC 591 at paragraph 20:
20 The Association's argument that the
inadequacy of the Commission's reasons constitutes a breach of procedural
fairness is also untenable. I accept that where reasons are a procedural
requirement, a breach of fairness may arise where none are forthcoming. But
according to the decision in Newfoundland and Labrador Nurses' Union, above, an argument that a set of reasons is insufficient (ie. lacking justification,
transparency or intelligibility) must be assessed on the standard of
reasonableness and not correctness.
[13]
In
the present case, taking the letter of March 16, 2012, together with the
Investigator’s Report and the parties’ responses to that Report, I find that
the decision is quite clear, intelligible, and addresses the relevant points.
The reasons are adequate.
Issue #2: Procedural
Fairness and Bias
[14]
The
Applicant argues that there was “bias” in that the Investigator did not
approach the matter with an “open mind”. The basis for this argument is that
the Applicant filed his original Complaint with the Commission. The Commission
forwarded that Complaint to the CIBC for its submissions. Those submissions
were received; they constituted submissions from CIBC’s lawyers, as well as a
number of documents. The Manager of Investigations of the Commission passed
this material on to the Applicant’s representative with a five-page summary of
CIBC’s comments. The Manager’s letter concludes with a sentence:
Please note that the respondent [CIBC] has provided
extensive documentary evidence, internal correspondence, e-mails and
performance related documents which appear to support its position.
[15]
The
Applicant’s argument is that the words “appear to support [CIBC’s] position”
reflect a pre-judging of the case and prevent an “open minded” determination on
the merits.
[16]
The
law on this point has been well summarized by Justice Mactavish of this Court
in Hughes v Canada (Attorney General), 2010 FC 837, at paragraphs 22 to
24:
22 The Canadian Human Rights Commission is
clearly subject to the duty of fairness when it is exercising its statutory
powers to investigate human rights complaints: Syndicat des employés de production
du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R.
879 ("SEPQA"). This requires that the Commission and its
investigators be free from bias.
23 That said, because of the non-adjudicative
nature of the Commission's responsibilities, it has been held that the standard
of impartiality required of a Commission investigator is something less than
that required of the Courts. That is, the question is not whether there exists
a reasonable apprehension of bias on the part of the investigator, but rather,
whether the investigator approached the case with a "closed mind":
see Zündel v. Canada (Attorney General) (1999), 175 D.L.R. (4th) 512, at paras.
17-22.
24 As the Court stated in Broadcasting Corp. v. Canada (Canadian Human Rights Commission), (1993), 71 F.T.R. 214 (F.C.T.D.), the test in
cases such as this:
[I]s not whether bias can reasonably be apprehended,
but whether, as a matter of fact, the standard of open-mindedness has been lost
to a point where it can reasonably be said that the issue before the
investigative body has been predetermined.
[17]
In
the present circumstances, I find that the words “appear to support [CIBC’s]
position” as used by the Manager, who was not the person who subsequently
investigated the matter and provided the Report, did not give rise to bias or
lack of open-mindedness on behalf of the Investigator or the Commission. The
word “appear” does no more than serve to alert the Applicant that he should
address the submissions of CIBC and the supporting documents. In fact, he did
so; and after the Investigator made the Report, the Applicant took advantage of
a further opportunity to comment on the matter. I find that a person viewing
the matter reasonably would not consider that there was bias or a lack of
open-mindedness. Further, such person would consider that the Applicant,
through his representative, was given and took advantage of ample opportunities
to address CIBC’s position and the documents provided. The procedure was fair.
Issue #3: Thoroughness
[18]
The
Applicant argues that the investigation was not thorough. In particular, the
Investigator did not interview three persons whom the Applicant named as
persons who would have knowledge of the matter; nor did the Investigator take
any initiative to interview other unnamed persons, such as medical personnel,
who may have knowledge respecting the Applicant’s situation.
[19]
The
Investigator did interview the Applicant himself, as well as his managers at
the CIBC. The Investigator clearly stated in the Report in respect of the three
persons named by the Applicant that a hospital social worker was not
interviewed, since that person would only know what the Applicant told her;
that a relative of the Applicant was not interviewed because that person would only
know what she was told by the Applicant. A third person, identified by the
Applicant as being the person he was speaking to on his cell phone when he was
allegedly yelled at by his manager to get back to work, was not interviewed
because the Investigator determined that the incident was irrelevant to the
issues to be determined.
[20]
As
to other persons that the Applicant argues should have been interviewed, no
names were provided by the Applicant. It must be pointed out that while the
Applicant argues that he was discriminated against because of his medical
condition, the Applicant provided scant evidence as to that condition and what
effect it would have on his performance at work. All that CIBC, and
subsequently the Commission, was told was through the applicant himself. They
were told that he had Sickle Cell Anemia, and that he would periodically
require a day off work, plus a day or so recovery time, to receive blood
transfusions. There was no endeavour by the Applicant to explain what effect,
if any, this condition might have on his work performance, or to identify
persons who could provide appropriate information in this regard. I note that after
the Applicant left CIBC, a letter written by a social worker – not a doctor –
endeavouring to provide some explanation, was filed in evidence in this Court.
That letter is not evidence from a medically trained person, and was written
after the relevant events.
[21]
The
duty of an Investigator to be thorough was reviewed by Justice Martineau of
this Court in Best v Canada (Attorney General), 2011 FC 71. I accept and
adopt what he wrote at paragraphs 19 to 22:
19 The duty of fairness owed to the applicant by
the Commission requires that the investigation be neutral and thorough
(Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 at paragraph
49, affirmed (1996), 205 N.R. 383 (C.A.) and that the parties be informed of
the substance of the evidence obtained by the investigator to be put before the
Commission, as well as given the chance to respond to this evidence and make
all relevant representations thereto (Syndicat des employés de production du
Québec et de l'Acadie v. Canada (C.H.R.C.), [1989] 2 S.C.R. 879 at 902; Deschênes
v. Canada (Attorney General), 2009 FC 1126 at paragraph 10).
20 The applicant makes no allegation of
impartiality against the investigator. Rather, she argues that the
investigation was not thorough, as the investigator failed to interview both
her and her proposed witness, her partner Warrant Officer Doug McQueen, also a
member of the CF.
21 The practical effect of the duty of
thoroughness is canvassed by Justice Nadon in Slattery, above, at paras 56 and
57:
Deference must be given to administrative
decision-makers to assess the probative value of evidence and to decide to
further investigate or not to further investigate accordingly. It should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted. Such an approach is consistent with the deference allotted to
fact-finding activities of the Canadian Human Rights Tribunal by the Supreme
Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
In contexts where parties have the legal right to make
submissions in response to an investigator's report, such as in the case at
bar, parties may be able to compensate for more minor omissions by bringing
such omissions to the attention of the decision-maker. Therefore, it should be
only where complainants are unable to rectify such omissions that judicial
review would be warranted. Although this is by no means an exhaustive list, it
would seem to me that circumstances where further submissions cannot compensate
for an investigator's omissions would include: (1) where the omission is of
such a fundamental nature that merely drawing the decision-maker's attention to
the omission cannot compensate for it; or (2) where fundamental evidence is
inaccessible to the decision-maker by virtue of the protected nature of the
information or where the decision-maker explicitly disregards it.
[Emphasis added]
22 The investigator's duty of thoroughness
clearly does not require the investigator to interview every person proposed by
the applicant (Miller v. Canada (CHRC), [1996] F.C.J. No. 735 (QL), at
paragraph
[22]
I
find that the Investigator’s decision not to interview three witnesses
identified by the Applicant, and not to conduct a further extensive
investigation on her own initiative, was reasonable and provides no grounds for
setting the decision aside.
Issue
#4: Was
the Decision Erroneous?
[23]
No
argument was made by the Applicant that the Commission made some error of law
in its decision. The arguments made before me take issue with the factual
determinations made and whether those determinations, if in error, should
result in the decision being set aside. The standard of review in these
circumstances is that of reasonableness, and in that regard, the well-known
decision of the Supreme Court of Canada in Dunsmuir v New Brunswick,
[2008], 1 SCR 190, is instructive; particularly paragraph 47, where Justice
Abella wrote:
47 Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[24]
The
Applicant in his factum and through Counsel in argument before me took issue
with several determinations by the Investigator as adopted by the Commission,
including:
•
what
occurred at the October 24th meeting between the Applicant and his
CIBC Manager; to what extent did CIBC become aware of the Applicant’s
condition?
•
did
CIBC act fairly or not in respect of the assessment of the Applicant’s
performance as against standards set for such performance?
•
what
was the relevance, if any, of the incident when the Applicant was allegedly
“yelled at” for being on his cell phone during working hours?
•
what
was the effect, if any, of the allegedly “fraudulent” unsigned typewritten
letter of resignation?
•
what
effect, if any, did the alleged “constructive dismissal” of the Applicant have?
[25]
These
and other like determinations are those which the Commission is required to
make in the performance of its duties. It is to be afforded a deferential
latitude of reasonableness. I find no reviewable error.
CONCLUSION AND
COSTS
[26]
In
the result, I find that the Applicant has not demonstrated that there is any
basis for setting aside the Commission’s decision. I must comment that the
Applicant does not appear to have put in a good case before the Commission, nor
has the Applicant put in, in his written material, a good case before this
Court. The Applicant should have been better advised not to seek judicial
review based on the record before me. In awarding costs, I must be mindful not
only of the circumstances of an individual litigant, but also of the need to
provide a clear warning that judicial review should not be undertaken lightly
or without solid, sober thought.
[27]
I
have no evidence before me as to the Applicant’s financial circumstances. His Counsel
asked for $3,500 costs, if successful. CIBC’s Counsel asked for $7,500. I will
fix costs at $5,000.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed; and
2.
The
Respondent CIBC is entitled to costs to be paid by the Applicant fixed in the
sum of $5,000.
“Roger T. Hughes”
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