Docket: T-270-13
Citation:
2014 FC 552
Ottawa, Ontario, June 6, 2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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NAVIN JOSHI
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Applicant
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and
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CANADIAN IMPERIAL BANK OF COMMERCE
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Navin Joshi, seeks judicial
review of the decision of the Canadian Human Rights Commission (the
“Commission”) dated October 31, 2012, in which it decided not to refer his
complaint to the Canadian Human Rights Tribunal pursuant to subparagraph
44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6 (the
“Act”), because it found the evidence did not establish that the respondent,
the Canadian Imperial Bank of Commerce [“CIBC”], had failed to provide him with
an employment opportunity or had otherwise terminated or treated him in an
adverse differential manner due to his disability, which was an undiagnosed
back problem.
Overview
[2]
The applicant submits that his application for
judicial review should be allowed because the Commission erred in dismissing
his complaint by: basing its decision on erroneous findings of fact; making an
error of law; failing to observe procedural fairness and principles of natural
justice, including bias; and acting or failing to act by reason of fraud or perjured
evidence.
[3]
The applicant elaborated upon his original
complaint to the Commission in his oral submissions. He now submits that the
Commission did not address his complaints as he described them, and states that
he never complained that he was terminated due to discrimination, only that he
was denied training due to discrimination and that this lack of training led to
his ongoing poor performance which, in turn, led to his termination.
[4]
The applicant submits that the Commission’s
investigation was incomplete and “shoddy” and that the Investigator was biased
against him. He submits that the Investigator preferred the evidence of CIBC
and did not probe further or seek out other witnesses to assess how the lack of
training provided to him affected his performance or to assess whether he had
the skills required for the position of the Financial Analyst which he sought
compared to the skills of those who were offered that position.
[5]
The applicant’s position is that because he was
hired by CIBC after participating in a pre-employment training program for
disabled persons, he has established that he was a member of a protected group.
He argues that membership in a protected group, coupled with the Investigator’s
finding that he was treated in an adverse manner regarding training, should be
sufficient to establish that he was discriminated against on the grounds of
disability.
[6]
The applicant emphatically argued that the
Investigation was not thorough or fair and that the decision of the Commission
was not reasonable. His submissions have been carefully considered, but cannot
succeed.
[7]
The Investigation was procedurally fair and
there is no hint of bias. The Investigator’s Report demonstrates that a
thorough investigation was conducted. The Investigator addressed each
allegation as framed by the applicant in his original complaint along with the
information provided by both the applicant and CIBC, including the additional
responses provided by CIBC to specific questions posed by the Investigator, as
well as the information provided by the witnesses interviewed. The Commission
then considered the Report and the submissions of the parties. The applicant’s
submissions to the Commission were critical of the investigation and expanded
on some aspects of his complaint. The Commission reasonably concluded, based on
the Report and the submissions that the complaint should not be referred to the
Tribunal.
[8]
The applicant cannot simply demonstrate that he
fit into a protected group and that he experienced different treatment than
other employees in order to succeed in a claim under the Act. The evidence must
establish that the differential or adverse treatment is because of a disability
or other prohibited ground. The Commission investigated the complaints, and
found that the applicant did not establish the crucial causal link between
adverse treatment and his disability. Therefore, no discrimination occurred.
[9]
For the more detailed reasons that follow, the
application for judicial review is dismissed.
The Background
The Facts as recounted by the Applicant
[10]
In March 2006, the applicant responded to an
advertisement in his local newspaper by CIBC seeking applications from disabled
individuals to participate in a six-week pre-employment training program run
for CIBC by the Jewish Vocational Service of Metropolitan Toronto [“JVS”]. The
applicant characterised the advertisement as being recruited by the CIBC.
[11]
After successful completion of the program, he
was interviewed by JVS. He submits that JVS determined that he was best suited
for the position of Financial Analyst. He was first offered a temporary
contract position by the respondent, contrary to his expectations. Upon
complaining to JVS, he was offered full-time employment.
[12]
The applicant began his employment on May 6,
2006 but was given odd jobs because there were no opportunities to perform the
specific tasks of an Analyst. A year later he reluctantly took a Security
Analyst position. This required him to review security documents with a high
degree of accuracy. A two week training program was mandatory. However, he
could only attend the training on a part-time basis because he was covering for
a promoted employee as well as performing his regular duties. The applicant
noted that there were other opportunities for the respondent to provide him
with adequate training but it did not do so.
[13]
In December 2009, the applicant filed a
grievance against the respondent. Before the grievance process was concluded,
he was fired for failing to make “significant improvement” to his work. Following
his dismissal, he filed a complaint with the Commission.
[14]
He submits that the respondent misrepresented
his reasons for leaving its employ. Instead of indicating he was terminated,
his record of employment states that he left due to “a leave of absence”, which
was later amended to “retirement”.
The Facts as Recounted by the Respondent
[15]
The respondent submits that many relevant facts
were omitted by the applicant.
[16]
The respondent states that the extent of its
knowledge of the applicant’s disability was that he had a physical restriction
and could not lift more than 20 pounds. This never became an issue as the
applicant was never required to do any lifting during his employment. The
applicant never self-identified as disabled, did not request accommodation, and
did not provide any medical documentation to support his disability. In fact,
his back problem had not been diagnosed by a medical professional and he had
not been given any restrictions or limitations by a medical professional since
1992, more than 10 years before his employment with the respondent.
[17]
The respondent notes that prior to being
terminated, the applicant was given two written warnings about his
unsatisfactory performance. His physical abilities had no relevance to his
responsibilities as a Security Analyst, and his disability was not a reason for
his dismissal. The respondent further highlights that the applicant never
raised his concerns during his four years of employment prior to his human
rights complaint.
[18]
The respondent explained, in response to the
Investigator’s inquiry regarding the notation on his record of employment, that
this record did not indicate he was terminated in order to ensure the applicant
remained eligible for his retiree benefits. However, the respondent provided the
necessary information to the Employment Insurance Officer to permit his
eligibility for those benefits.
The Complaint
[19]
In his oral submissions, the applicant argues
that he made seven complaints. He also now submits that he did not allege that
he was terminated due to discrimination. Given these submissions, it is helpful
to set out exactly what the applicant stated in his complaint to the Commission,
dated June 16, 2010.
[20]
The complaint stated:
1. My name is Navin Joshi and my
complaint is against CIBC. I am a disabled person and I believe I was subjected
to discrimination due to my disability.
2. I have a Bachelor of Commerce degree
in finance and qualified to perform the duties of Risk Analyst. On May 30, 2006
CIBC recruited me from a training program run by JVS Toronto which assists
disabled individuals obtain meaningful employment.
3. The training program commenced on or
around April 16, 2006 and upon successful completion CIBC undertook to offer
the trainees full-time employment based on the trainee’s skills and expertise
which was determined by the JVS instructor.
4. The JVS training instructor
recommended that I be offered the position of Financial Analyst which CIBC
accepted and on that basis made me an employment offer. However, CIBC never
made good on the offer and instead gave me odd jobs here and there. At first I
didn’t mind since there was the prospect of CIBC fulfilling its obligation to
train me for the position of Risk Analyst but it didn’t happen. Despite
numerous vacancies my application for the Risk Analyst position were
continuously rejected by CIBC. Often less qualified applicants from outside
were hired when the normal CIBC practice was to hire from within. Hence, I was
forced to settle for the position of Security Analyst to which I was not suited
resulting in my dismissal. Though CIBC had the option and the duty to offer me
a more suitable position, it fired me on April 8, 2010 yet offered Rhoda
Jno-Baptiste another position when faced with a similar situation.
4. I believe I was denied the position
of Risk Analyst and treated differently because of my disability.
The Commission’s decision
[21]
The Commission dismissed the complaint pursuant
to sub-paragraph 44(3)(b)(i). The Commission found that the evidence did not
support that the respondent failed to provide the applicant with an employment
opportunity, treated him in an adverse manner, or terminated his employment on
the basis of disability or perceived disability. The Commission concluded that
further inquiry into the complaint by the Canada Human Rights Tribunal did not
appear warranted.
[22]
The Commission’s decision was based on the
Investigation Report and the submissions of the parties.
The Investigation Process
and Report
[23]
The Report outlined the investigative process in
detail. The process included a review of the parties’ submissions along with
all documentary evidence provided. The Investigator conducted telephone
interviews with Mr Joshi, the applicant; Mike Leicester, Senior Director at
CIBC; Armando Santos, Manager at CIBC; and Carol Hacker, Director of Disability
Services at JVS.
[24]
The Report noted that both parties agreed that
the Commission should investigate the complaint.
[25]
The Investigator set out the methodology that
would be used to investigate the complaint and set out each question to be
answered. The Investigator then reiterated the process undertaken and the
questions asked, as she addressed each aspect of the complaint, considered the
evidence related to each aspect, and made her conclusions.
[26]
The Investigator set out the key issue in the
first paragraph of the report: whether the respondent failed to provide the
complainant a job, promotion or acting assignment, treated the complainant in
an adverse differential manner, and/or terminated his employment on the basis
of disability or perceived disability (undiagnosed back pain).
[27]
The Investigator reviewed the background, noting
that the applicant participated in the pre-employment training program in April
and May 2006, which CIBC offered with JVS in order to provide persons with
disabilities a chance to obtain employment.
The disability
[28]
The Investigator noted that the applicant’s back
pain has never been diagnosed by a medical professional and that the applicant
has not been given any restrictions or limitations by a medical professional
since 1992. The applicant has never provided the respondent with medical
documentation, and his back problem has never been an issue during his
employment. While the existence of the applicant’s disability was disclosed to
JVS for the 2006 recruitment program, he was not required to provide any
details to JVS in order to participate. The Investigator noted that Mr Joshi
had indicated his back problem was not an issue, he needed only some support in
his chair from time to time and his job did not involve lifting.
The Failure to Receive a Job or Promotion
[29]
With respect to the applicant’s allegation that
the respondent “never made good” on its promise to hire him as a Financial/Risk
Analyst and then, once he was employed, never fulfilled its obligation to train
him for the position, the Investigator found that the applicant answered an
advertisement for a position with CIBC and applied for the job opportunity
under the broad categories of Operator/Processor and/or Analyst. Both CIBC and
JVS denied that a Financial/Risk Analyst was one of the positions advertised.
[30]
The Investigator concluded that while the
applicant was qualified for a job under the Analyst stream because of the
pre-employment training program, CIBC had the final say about which position to
offer, and was not bound by the recommendation of JVS. The Investigator found
that the applicant was ultimately offered the position of Analyst, not
Financial/Risk Analyst.
[31]
The Investigator noted that the applicant did
not provide any documentary evidence to support his allegation that the
respondent had an obligation to train him for the Financial/Risk Analyst
position. The applicant stated that this was the job he was best suited for,
but he acknowledged that no one at CIBC had ever promised him an offer for the
position of Financial/Risk Analyst.
[32]
The Investigator concluded that although Mr.
Joshi did not receive the opportunity he thought he was qualified for, he did
receive full time employment as an Analyst, in line with the pre-employment
training program. Mr Joshi was of the view that he was not doing the actual
work of an Analyst, but he provided no evidence to support this allegation.
Therefore, the Investigator concluded that this allegation would not be
investigated further.
[33]
Regarding the applicant’s allegation that
despite numerous vacancies, his applications for the Financial/Risk Analyst
position were continuously rejected, the Investigator concluded that Mr Joshi
had applied for the position on a few occasions. CIBC advised the Investigator
that Mr Joshi did not possess the skills and abilities required for the
position of Financial/Risk Analyst, as the position was at a higher level than
the position he currently occupied and required a higher degree of
understanding of financial accounting. The Investigator concluded “it appears
that the parties disagree about whether the complainant was qualified or
otherwise eligible for the employment opportunity. As such, for the sake of
thoroughness, the investigation will proceed.”
[34]
With respect to whether the applicant was denied
this employment opportunity on the basis of his disability, the Investigator
considered the evidence and concluded that CIBC hiring personnel would only
have been aware of individuals who self-identify as having a disability for the
job postings that Mr Joshi claims were offered to others; i.e., if those
persons had self-identified as having a disability or made accommodation
requests. The Investigator noted that the complainant had not done either. She
concluded the complainant’s disability or perceived disability was not a factor
in him not being successful in obtaining other positions.
[35]
As a result, the Investigator concluded that
this aspect of the complaint would not proceed further.
Adverse Differential Treatment
[36]
With respect to the key issue of whether the
applicant was subjected to adverse differential treatment due to a disability,
the Investigator addressed each of the applicant’s allegations.
[37]
Regarding the allegation that he was not given
the two-week training required for the position of Security Analyst (which he
assumed in 2007) and that the other six employees had received the training,
the Investigator concluded that the applicant may have been treated in a
different manner compared to other employees.
[38]
The Investigator noted that the parties
disagreed about the value and importance of the training, and concluded that it
was “unclear whether the treatment involved negative consequences for the
complainant or not. As such the investigation into this allegation will proceed.”
[39]
With respect to the fundamental issue—whether
the applicant was treated differently based on characteristics that relate to
one or more prohibited grounds of discrimination—the Investigator concluded
that it did not appear that Mr Joshi received less training due to a disability
or perceived disability. The Investigator found that the lack of training was
due to operational requirements, which prevented him from being relieved from
his prior assignment.
[40]
The Investigator noted Mr. Joshi’s own evidence,
set out in his letter to the Human Resources Development Canada Early
Resolution Officer, stated he did not get the training because he was required
to cover for his colleague, Jennifer Chen. The applicant also set this out in
his letter to Mr Leicester at CIBC, which stated he could not attend the
training because he was covering for Ms Chen.
[41]
The Investigator concluded that it did not
appear that Mr Joshi was treated in an adverse differential manner on the basis
of disability or perceived disability and, therefore, the investigation into
this allegation would not proceed further.
Wrongful Termination of Employment
[42]
The Investigator concluded that Mr Joshi had not
provided sufficient evidence to support his allegation that his employment was
terminated on the basis of disability or perceived disability. However, the
Investigator stated that, “for the sake of thoroughness, the investigation will
proceed to Step 2 in order to provide the respondent an opportunity to explain
its actions.”
[43]
The Investigator then explored whether the
respondent could provide a reasonable explanation for its actions that was not
a pretext for discrimination on a prohibited ground. The Investigator
considered the evidence of CIBC regarding the warnings provided to the applicant
about his performance. This included his performance reviews, two written warnings,
and the evidence of Mr Leicester. Mr Leicester stated that he had worked with
the applicant on these performance issues for more than two years, and that the
applicant made excuses and was not responsive. The evidence of Mr Santos
explained that training is usually done on the job and most employees are able
to advance after about six months. The Investigator also considered the
applicant’s evidence, including that he felt he was better suited for another
position, that he was set up to fail because he was viewed as inferior due to
his entry into employment from a disability program, and was not provided with
the needed training.
[44]
The Investigator concluded that it appears the
respondent terminated the complainant’s employment due to well-documented
ongoing performance issues. There was no pretext for discrimination.
The Applicant’s Position
[45]
The applicant submits that the Commission failed
to observe principles of natural justice and procedural fairness: it failed to
conduct a fair, impartial and thorough investigation; it relied entirely on
perjury and fraudulent claims of the respondent; and it demonstrated bias.
[46]
The applicant further submits that the
Commission based its decision on an erroneous finding of fact: specifically,
that it disregarded that he was the only one of the seven Security Analysts
hired who did not receive the mandatory two week training, that it instead
chose to justify the discrimination as an operational requirement rather than
acknowledging that the respondent viewed the applicant as an inferior employee
incapable of performing his job due to his disability.
[47]
The applicant submits that he was recruited
under a disability program and was discriminated against from “day one”.
[48]
As noted above, in his oral submissions the
applicant sought to elaborate on his complaint and expand his arguments
regarding the thoroughness of the Investigation and the reasonableness of the
decision.
[49]
The applicant now submits that he had seven
complaints:
1.
CIBC failed to assign him the duties of an
Analyst but gave him odd jobs;
2.
CIBC failed to consider him for the Risk Analyst
position as recommended by JVS;
3.
CIBC treated him differently or wrongfully by
assigning him the duties of two employees;
4.
CIBC wrongfully scheduled his training for two
hours per day rather than the full two weeks required (i.e. CIBC did not
re-assign his other duties to other employees to permit him to go to training);
5.
CIBC failed to provide him with the training
required (even at a later date);
6.
CIBC failed to promote him to the Risk Analyst
position even though two positions became available in 2009-2010; and,
7.
CIBC failed to offer him an alternative position
rather than dismissing him, as it did for another employee, Ms Baptiste.
[50]
Although this description does not mirror his
original complaint set out above at para 20, the Investigator explored all of
this alleged conduct. The Investigator requested the respondent, CIBC, provide
additional information and to respond to several of these allegations, and it
did so.
Issues
[51]
Although the applicant has raised several
arguments, some of which relate to more than one issue, there are three main
issues:
1.
Did the Commission breach its duty of procedural
fairness?
2.
Was the Commission’s investigation of the
complaint thorough?
3.
Was the Commission’s decision reasonable?
Standard of review
[52]
The applicant did not address the standard of
review. He would prefer that the Court provide a forum to reconsider whether
his complaint should be referred to the Canadian Human Rights Tribunal.
However, this is not the role of the Court. The role of the Court is to assess
whether the decision of the Commission is reasonable, and with respect to the
allegations of breach of procedural fairness and bias, whether the Commission’s
process was fair and whether there was bias.
[53]
As I noted at the hearing, the role of the Court
on judicial review where the standard of reasonableness applies is not to
substitute its own decision, but rather to determine whether the Commission’s
decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir] at para 47. The Court does not consider the complaint
anew, does not make credibility findings, nor does it re-weigh evidence. The
Court is focused on whether the Commission’s decision was reasonable. In the
event the Court were to find that the decision was not reasonable, the matter
would be referred back to the Commission for reconsideration.
[54]
It is important to remember that the role of the
Commission is to investigate complaints and determine whether the complaint
should be considered by the Canadian Human Rights Tribunal. In reviewing a
decision of the Commission to refuse to deal with a complaint—in other words,
to not refer the complaint to the Tribunal—the Court can only consider whether
the Commission’s “screening” decision was reasonable.
[55]
As the respondent noted, a good analysis of the
jurisprudence regarding the standard of review of the Commission’s decision in
circumstances similar to this case was provided by Justice Barnes in Tutty v
Canada (Attorney General), 2011 FC 57 (at paras 12-14):
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.
Did the Commission Breach its Duty of Procedural Fairness?
[56]
The applicant submits that the Commission did not
conduct a fair, impartial and thorough investigation of his complaint. The
Commission ignored key material evidence, such as his allegation that two new
recruits for Financial/Risk Analyst positions were less qualified than the
applicant, and that his poor performance as a Security Analyst was because of a
denial of training.
[57]
The applicant also submits that the Commission,
specifically the Investigator, was biased. He asserts that the methodology of
the Investigator was tailored to lead to a pre-determined outcome. He asserts
that the Investigator had a closed mind and ignored evidence in order to deny
him the benefit of the Act. Further, he states the Investigator made excuses
for the conduct of CIBC, including that CIBC was not bound by the recommendation
of JVS regarding his suitability as a Financial Analyst. He also asserts that
the Investigator failed to seek out the truth regarding the qualifications
needed for the position of Financial Analyst and accepted CIBC’s information as
“evidence” yet referred to his information as “allegations”.
[58]
The respondent submits that the Commission
adhered to the principles of procedural fairness. The Investigator gave the
benefit of any doubt to the applicant, for example, by accepting that he may
have been treated differently regarding training and accepting there was a
difference of views regarding the importance of training, and further
considering whether the applicant was qualified for the Financial/Risk Analyst
position. However, his employment experiences did not result from his
disability.
[59]
The respondent notes that the onus of proving
bias rests on the applicant and that the threshold of proof is high, given that
the standard of impartiality of a non-adjudicative investigator is less than
what is required of the courts (Hughes v Canada (Attorney General), 2010
FC 837 at paras 20-23). Given that the Investigator considered the applicant’s
submissions, addressed all his allegations and interviewed him and others, the
respondent submits that the applicant’s allegation of bias is really
dissatisfaction with the outcome.
The Investigation was Procedurally Fair and there was No
Bias
[60]
There was no breach of procedural fairness by
the Commission in the investigation of the complaint, nor was any bias shown.
[61]
The duty of procedural fairness requires that
Commission investigations be neutral and thorough (Slattery v Canada (Human
Rights Commission), [1994] 2 FC 574; affirmed (1996), aff'd 205 NR 383
(FCA)).
[62]
The applicant argues that the investigation into
his complaint was analogous to the decision in Hughes, above, where
Justice Mactavish found that the investigation was not thorough and that the
complaint should, therefore, be re-determined. Although Justice Mactavish also
addressed allegations of bias, no bias was found.
[63]
I do not agree that the facts of the applicant’s
case are analogous to the facts in Hughes. However, the principles set
out by Justice Mactavish with respect to bias and with respect to thoroughness
(which is addressed later in these reasons) provide guidance (Hughes, above
at paras 20-24):
20 The test for determining whether
actual bias or a reasonable apprehension of bias exists in relation to a
particular decision-maker is well known: that is, the question for the Court is
what an informed person, viewing the matter realistically and practically - and
having thought the matter through - would conclude. That is, would he or she
think it more likely than not that the decision-maker, either consciously or
unconsciously, would not decide fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394. See also Wewaykum
Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 74.
21 The burden of demonstrating either
the existence of actual bias, or of a reasonable apprehension of bias, rests on
the person alleging bias. An allegation of bias is a serious allegation, which
challenges the very integrity of the decision-maker whose decision is in issue.
As a consequence, a mere suspicion of bias is not sufficient: R. v. R.D.S.,
[1997] 3 S.C.R. 484 at para. 112; Arthur v. Canada (Attorney General)
(2001), 283 N.R. 346 at para. 8 (F.C.A.). Rather, the threshold for
establishing bias is high: R. v. R.D.S, at para. 113.
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.
[64]
The applicant has not provided any evidence in
support of his allegation of bias. He has not even provided support for a
suspicion of bias. Besides his own bare allegations, he has not shown that the
Investigator predetermined his complaint or had a closed mind.
[65]
His assertion that the methodology employed by
the Investigator was used to reach a predetermined outcome is baseless. The
Investigator painstakingly set out the methodology and proceeded to follow that
methodology and address each issue. The Investigator dissected the applicant’s
complaint and considered all the conduct that the applicant now refers to as
the seven parts of his complaint.
[66]
The Investigator demonstrated an open mind by
accepting the applicant’s allegations, to the extent the evidence allowed,
before concluding that his experiences at CIBC were not in any way connected to
his alleged disability. It was open to the Investigator to reach this
conclusion. The evidence clearly indicated that the applicant’s disability was
not an issue during his employment, particularly since he did not self-identify
as having a disability and did not make accommodation requests.
[67]
The applicant’s concern about the Investigator
referring to his submissions as “allegations” and CIBC’s submissions as
“evidence” is not an indication of bias. The language is customary: the
applicant’s complaint consists of a series of allegations and the information
gathered by the Investigator, including the answers provided by CIBC in
response to specific questions of the Investigator, the information provided by
JVS, and the information provided by the applicant was all referred to as
evidence.
[68]
As noted in Hughes, allegations of bias
are serious allegations which should not be made lightly. In this case there
was absolutely nothing to support such an allegation.
Did the Commission conduct a thorough investigation?
[69]
The applicant submits that the Commission failed
to conduct a thorough investigation as evidenced by its initial reluctance to
conduct an investigation at all, because it attempted to refer the complaint to
the Canada Labour Board [CLB], and only agreed to conduct an investigation at
the insistence of the parties.
[70]
The applicant also argued that the Investigator
failed to address aspects of his complaint, including that he was terminated
rather than offered an alternative position, as was another employee with
performance issues, and further that the Investigator failed to probe further
or interview other witnesses about the need for training, the need for accuracy
by Security Analysts, and the qualifications required for a Financial Analyst.
[71]
With respect to the allegation that the
Investigator did not probe the training issue, the respondent notes that the
Investigator accepted that the applicant may have experienced adverse treatment
related to training, pursued the investigation and concluded that this was not
related to a disability.
[72]
With respect to the allegation that the
Investigator did not delve into the skills required for a Financial/Risk
Analyst, or whether the applicant did not have those skills and whether the
successful candidates did have those skills, the respondent notes that the
Investigator made no findings about the applicant’s skills. Rather, she
accepted that there was a difference of views and continued to investigate and
then concluded that this was not linked to a disability.
[73]
With respect to the allegation that JVS had
recommended that the applicant be hired as a Financial Analyst, the respondent
notes that the evidence is clear that CIBC made the hiring decisions, not JVS.
The letter of offer made no promise of this position. The applicant was hired
as an Analyst. Moreover, the applicant’s own evidence to the Investigator
acknowledged this.
[74]
With respect to the applicant’s assertion that
he was relegated to odd jobs, rather than the jobs of an Analyst in the early
days, the respondent notes that there was no evidence provided to support this.
The terms of his employment were set out in the offer which he accepted.
[75]
With respect to the allegation that the
investigation was shoddy because the Commission would have preferred to refer
the complaint to the CLB, the respondent notes that the investigation was very
thorough and addressed all complaints.
[76]
The respondent submits that there was no flaw in
the investigation that was so fundamental that it could not be remedied by the
applicant's further responding submissions and that the applicant did not
provide any additional facts to the Investigator in his responding submissions.
[77]
Although the applicant now claims that the
Commission investigated the wrong complaints, the respondent submits that the
complaint as submitted framed the investigation and the Commission investigated
that complaint.
The Investigation was Thorough
[78]
The principles governing the Commission’s role,
including the duty of procedural fairness and the duty of thoroughness, were
addressed by Justice Mactavish in Hughes, above at paras 30-34:
30 The role of the Canadian Human Rights
Commission was described by the Supreme Court of Canada in Cooper v. Canada
(Human Rights Commission) (1996), 140 D.L.R. (4th) 193. There, the Supreme
Court observed that the Commission is not an adjudicative body, and that the
adjudication of human rights complaints is reserved to the Canadian Human
Rights Tribunal. Rather, the duty of the Commission "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": at para. 53. See also [Syndicat des employés de production du Québec et de
l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879.]
31 The Commission has a broad discretion
to determine whether "having regard to all of the circumstances"
further inquiry is warranted: Mercier v. Canada (Human Rights Commission),
[1994] 3 F.C. 3 (FCA). However, in making this determination, the process
followed by the Commission must be fair.
32 In Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574; affirmed (1996), aff'd 205
N.R. 383 (F.C.A.) this Court discussed the content of procedural fairness
required in Commission investigations. The Court observed that in fulfilling
its statutory responsibility to investigate complaints of discrimination,
investigations carried out by the Commission must be both neutral and thorough.
33 Insofar as the requirement of
thoroughness is concerned, the Court in Slattery observed that
"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". As a consequence, "[i]t should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted": at para 56.
34 The requirement for thoroughness in
investigations must also be considered in light of the Commission's
administrative and financial realities. With this in mind, the jurisprudence
has established that some defects in the investigation may be overcome by
providing the parties with the right to make submissions with respect to the
investigation report. As the Federal Court of Appeal observed in [Canada (Attorney General) v. Sketchley, 2005 FCA 404], the only errors that
will justify the intervention of a court on review are "investigative
flaws that are so fundamental that they cannot be remedied by the parties'
further responding submissions": at para. 38.
[79]
Although the principles in Hughes apply
to the present case, the facts of this case do not lead to the same conclusion.
[80]
Here, the Investigator conducted a thorough
investigation, including consideration of all aspects of the complaint, the
submissions of the applicant and respondent, the evidence provided by the
parties and the four witnesses who had direct knowledge of the allegations
central to the complaint. Where there were differing views, the Investigator
continued to investigate.
[81]
The Investigator called upon CIBC to respond to
several specific questions arising from the applicant’s allegations, including
his allegation that he was terminated due to his poor performance rather than
being offered a different position, whereas another employee with poor
performance was given a different position. CIBC responded that the two
situations were different; the other employee, Ms Baptiste, was returned to her
previous job where she had performed well, but Mr Joshi had not performed well
and there was no previous job to return him to.
[82]
Further, there was no obligation on the Investigator
to interview all the witnesses proposed by the applicant, given that the four
witnesses she interviewed had direct knowledge of information that would
address all the fundamental issues raised in the complaint.
[83]
As Justice Martineau held in Best v Canada (Attorney General), 2011 FC 71 at paras 21 and 22:
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 byvirtue 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 10). Rather, the investigator must simply ensure
that all of the fundamental issues raised in the complaint were all dealt with
in the report ([Bateman v. Canada (Attorney General), 2008 FC 393],
above, at paragraph 29).
[84]
The applicant had the opportunity to make
submissions in response to the Investigation Report and he did so. The
Commission was aware of those submissions which included his criticism of the
Investigation, the importance of training, his view that operational
requirements were an excuse for discrimination, that JVS had recommended him
for another position he was better suited for, that the Investigator should
have interviewed other witnesses and that the investigation was “fraudulent”.
These are very similar arguments to those he now raises.
[85]
Although the applicant submits that several
other employees should have been interviewed to assess the importance of the
training, and the skills required of a Financial Analyst, the Investigator
reasonably assessed the probative value of the evidence gathered and reasonably
determined that she had sufficient evidence and information to assess whether
the complaint should be referred to the Tribunal or not.
Was the Commission’s decision to dismiss the complaint
reasonable?
[86]
The applicant submits that the Commission
unreasonably disregarded his evidence that he was the only one of the seven
newly hired Security Analysts that did not receive the mandatory training. He
submits that his treatment cannot be attributed to an operational requirement,
because operational requirements were within the control of the respondent and
the respondent could have delayed the transfer of his colleague, Ms Chen, to
avoid the need for him to do the work of two employees during his training. He
submits that he was perceived to be an inferior employee from the beginning,
despite his academic qualifications and credentials.
[87]
The applicant also submits that the Commission
relied on the fraudulent claims of CIBC that the initial training was not
mandatory, and that he was not qualified to perform the duties of a
Financial/Risk Analyst. The applicant submits that he was more qualified than
the candidates who were ultimately chosen for that position.
[88]
The applicant points to what he characterizes as
contradictions between the evidence of Mr Leicester and Mr Santos as noted in
the Investigator’s report, which suggests that the two week training was not
mandatory and that on-the-job training was customary. He submits that this is
“fraudulent” and should have alerted the Investigator to probe further.
[89]
The applicant also submits that the Commission
erred by failing to recognize the discrimination. He provided prima facie
evidence that he was recruited under a disability program and no evidence was
provided by the respondent to show that an able-bodied employee was subjected
to the same treatment. He argues that he was best suited for the Financial/Risk
Analyst position, and he would have excelled, but did not get this position due
to discrimination.
[90]
Although no evidence was provided, the
applicant submits that he asked for training four times. As a result of lack of
training, his performance was poor and he was terminated. He asserts that he
never claimed he was terminated due to his disability, only that he was denied
training and the Financial/Risk Analyst position due to discrimination.
However, he did concede at the hearing that he had alleged that discrimination
contributed to his termination because his poor performance was the result of
lack of training which was due to discrimination.
[91]
The respondent notes that the Investigator
evaluated the evidence and found that the applicant may have been affected by
differential treatment and continued to investigate, but ultimately concluded
that any differential treatment with respect to training was not due to the
applicant’s alleged disability. This analytical approach is reasonable (Canada (Human Rights Commission) v Canada (Attorney General), 2012 FC 445 at para 254
[CHRC v AG]).
[92]
The respondent states that it was the
applicant’s own evidence that he did not attend training due to operational
requirements.
[93]
With respect to not being offered the Financial
Analyst position, the respondent points out that the Investigator did not make
any findings about the applicant’s skills. The Investigator acknowledged that
there were differing views and then considered whether he did not get this
position due to a disability and found that there was no link to a disability.
The evidence of both CIBC and the applicant was that his disability was never
an issue; CIBC was not even aware of his disability following the initial
interview.
[94]
Regarding his allegation that the Investigator
based her findings on fraudulent and perjured evidence provided by CIBC, the
respondent submits that the applicant did not provide clear, cogent and
convincing evidence—or any evidence—to support this serious allegation.
[95]
In response to the applicant’s assertion that he
never complained that he was terminated due to discrimination, the respondent
pointed to the applicant’s own submissions to the Commission and his affidavit
in support of this application for judicial review which alleges that he was
terminated due to discrimination.
The Commission’s decision was reasonable
[96]
As noted above, the Commission’s decision was
based on a thorough evidentiary foundation provided by the Investigator and the
submissions of the parties. The Investigator applied the correct analytical
framework, investigated each aspect of the complaint, requested additional
information from CIBC, and considered all the evidence.
[97]
Although the applicant relied on CHRC v AG,
above at para 254 to support his argument that he was part of a protected group
and that he experienced adverse or differential treatment, he does not
acknowledge the most significant part of the passage he relies on: the
differential treatment must be linked to membership in the protected group.
[98]
In CHRC v AG, Justice Mactavish noted (at
para 253 and 254):
[253] Subsection 7(b) of the Act similarly
makes it a discriminatory practice “in the course of employment, to differentiate
adversely in relation to an employee” on the basis of a prohibited ground
[emphasis added].
[254] In my view, the ordinary meaning of the phrase “differentiate
adversely in relation to any individual” on a prohibited ground of
discrimination is to treat someone differently than you might otherwise have
done because of the individual’s membership in a protected group. This
interpretation is one that accords with the purpose of the Act and the
intention of Parliament in enacting the Canadian Human Rights Act.
[99]
The Investigator reasonably found that the
applicant was not treated differently in terms of training, job promotion or
his termination because of his disability. It is not enough to
establish that he had a disability or that he was a member of a protected group
and that he may have been treated differently. The causal link is crucial. In
this case it simply did not exist.
[100] It was reasonable for the Investigator to conclude that the
applicant was not denied a position as a Financial/Risk Analyst on the basis of
his disability. The Investigator considered the evidence and found that CIBC
hiring personnel would not have been aware of the applicant’s back problem,
since the applicant never self-identified as a disabled person or disclosed the
nature of his back problem, nor did he seek accommodation. The applicant was
referred to CIBC following a program designed to attract disabled persons and
provide pre-employment training. The applicant had acknowledged that JVS did
not ask for any particulars, corroboration or details of his disability as
their policy was not to do so. JVS only informed CIBC that the applicant was
restricted to lifting no more than 20 pounds which was never a job requirement.
The applicant did not raise his disability at any time with CIBC, nor did he
request any accommodation. Although the applicant was hired through a program
which targeted disabled persons, the Investigator determined that once the
applicant was hired, this fact was insufficient on its own to support an
allegation of discrimination.
[101] The Investigator reasonably concluded that the applicant was not
denied training as a Security Analyst on account of his disability, but due to
operational requirements, which the applicant acknowledged in his own evidence.
[102] In addition, the applicant’s allegation that his lack of training
was the cause of his poor performance as a Security Analyst is inconsistent
with the evidence he provided to the Investigator that a Security Analyst was
an inferior position to a Financial/Risk Analyst, and that “you can take any person from the street and make him do
that job [a Security Analyst] like he’s doing hamburgers”.
[103] Although the applicant is now adamant that he never alleged that his
termination was due to discrimination, and that the Investigator focussed on
the wrong issues, he did not raise this issue in his submissions to the
Commission in response to the Investigation Report, which clearly included
findings regarding his termination. His further submissions focussed
extensively on his allegations of lack of training.
[104] The applicant’s initial complaint was based on discrimination and
included his complaint that “… I was forced to
settle for the position of Security Analyst to which I was not suited resulting
in my dismissal” [my emphasis].
[105] In his submissions to the Commission in response to the
Investigation report, in September 2011, he stated:
My dismissal occurred because of prior
discrimination which prevented me from getting the Financial Analyst position I
was qualified for. During the pre-employment training program run by JVS in
conjunction with CIBC, in April-May 2006, the instructor identified my skills
to fit the position of Financial Analyst and recommended that I be offered the
position of Financial Analyst. Likewise, that is where my skills and interest
lay as finance major.
[106] In the applicant’s affidavit filed in support of his application for
judicial review, he stated at para 14:
The cumulative effect of persistent
discrimination by CIBC, its failure to provide me the necessary training and
its reckless grading of my work resulted in my performance not meeting its 91%
accuracy level. Hence, I was fired by CIBC.
[107] At para 29, he added:
The two errors I had made during the two-year
period because of the lack of training, CIBC penalized me by withholding my
year- end Christmas bonus for each of the two years. Hence, I was adversely
affected by the discriminatory practice of CIBC when it failed to train me
properly which ultimately led to my dismissal.
[108] The applicant’s complaint clearly included the allegation that his
ultimate termination was due to discrimination. The Commission did not err in
any way in investigating whether his termination was due to discrimination. Nor
did the Commission err in concluding that his termination was not due to
discrimination but rather due to well-documented poor performance.
[109] The Commission explored all three aspects of his complaint: whether
the respondent failed to provide the complainant a job, promotion or acting
assignment, treated him in an adverse differential manner, and/or terminated
his employment on the basis of disability or perceived disability and the
specific allegations.
[110] The applicant’s submission that the Commission focussed on his
termination rather than fully exploring his allegations regarding lack of
training and the qualifications required for the Financial/Risk Analyst
position are without merit and were addressed above regarding the thoroughness
of the Investigation. The conduct the applicant complained about was all
related, and he indicated if he had not been terminated he may not have pursued
this complaint. Moreover, none of the conduct complained of, to the extent it
was differential treatment, was because of his disability. These were
reasonable findings.
[111] Finally, the applicant’s allegation that Commission relied on
fraudulent or perjured evidence provided by CIBC is completely baseless. The
fact that the evidence of two CIBC representatives regarding the training
required is not identical does not mean that it is fraudulent or perjured, nor
does it mean it is inconsistent or contradictory. The evidence provided
addressed two types of training at two different stages of an employee’s
progress. Mr Leicester’s evidence that the applicant did not have the skills
required for the Financial Analyst position was his informed view as the
applicant’s superior. The Investigator noted that the applicant disagreed and
continued to investigate. This evidence can hardly be characterised as
fraudulent or perjured.
[112] Perhaps the applicant is not familiar with the serious nature of
such allegations or of their legal definition, or raised these allegations only
as an additional ground to seek judicial review pursuant to section 18(4) of
the Federal Courts Act, RSC 1985 c F-7, but such bald allegations should
not be made without proof.
[113] As the respondent noted, in Construction and Specialized Workers’
Union Local 611 v Canada (Minister of Citizenship and Immigration), 2013 FC
512, Justice Zinn commented on allegations of misrepresentation, which are
arguably not as egregious as allegations of fraud or perjury, and while noting
that misrepresentation was not pleaded, he stated (at para 90):
[90] Further, even if these affidavits were in evidence, they
would have been given very little weight for the reasons set out in ruling them
inadmissible, namely their hearsay character, their incompleteness, and
concerns regarding the accuracy of the information contained therein. Misrepresentation,
like fraud, requires clear, cogent, and convincing evidence if it is to be
found. The evidence tendered by the Applicants falls well short of that high
standard. [My emphasis]
[114] The applicant did not provide any evidence, but for his submission
that because his position differed from that of CIBC, the Investigator should
have sought out other witnesses to find the truth. This argument was addressed
above regarding the thoroughness of the Investigation.
[115] As noted above, the standard of review of the Commission’s decision
is that of reasonableness. The Commission has a broad discretion to determine
whether further inquiry by the Tribunal is necessary. As noted in Tutty,
above, this requires some weighing of the evidence, and this weighing is owed
deference on judicial review (at para 14). In the present case, the Commission
weighed the evidence and reached a reasonable conclusion that is clearly
supported in well-articulated reasons.
[116] I do not find that the Commission erred in any way. The process
was procedurally fair, there was no bias at all, the investigation was
thorough, and the decision to dismiss the complaint falls well within the range
of possible acceptable outcomes.
[117] For these reasons, the application for judicial review is dismissed.
[118] Costs would normally be ordered against an unsuccessful applicant,
particularly where bare allegations of bias, fraud and perjury are made that
are without merit.
[119] In the present case, Mr Joshi has pursued all available remedies in
his belief that he was treated in an unfair manner. Although the Commission
reasonably concluded that he was not discriminated against, and the respondent
has incurred expenses in responding to this judicial review, an award of costs
against Mr Joshi could be regarded by him as additional unfairness.
[120] I decline to award costs against Mr Joshi in these proceedings.
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