Docket: T-1522-13
Citation:
2014 FC 840
Montréal, Quebec, September 3, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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EMERENCE MIAKANDA-BATSIKA
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Applicant
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and
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BELL CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, Emerence Miakanda-Batsika (EMB),
alleges several instances of discrimination and harassment by her employer,
Bell Canada (BC), and several employees of BC. In 2011, she brought these
allegations to the attention of the Canadian Human Rights Commission (CHRC) in
the form of a complaint. In 2013, the CHRC decided to dismiss EMB’s complaint
because:
• the
evidence gathered does not support the allegations of the complaint; and
• having regard to all the circumstances of the complaint,
further inquiry by the Canadian Human Rights Tribunal is not warranted.
[2]
Before me, EMB asks that I set aside the CHRC’s
decision. Her arguments can be broken down into two categories:
(i) she was not given procedural fairness; and
(ii) the decision of the CHRC was unreasonable in
light of the information that had been provided to it.
[3]
Questions involving the fairness of the
procedure adopted by the CHRC in deciding whether to dismiss complaints have
been held by the Federal Court of Appeal to amount to questions of procedural
fairness and subject to the correctness standard of review: Ayangma v Canada
(Attorney General), 2012 FCA 213 [Ayangma] at para 56; El Din Ali
v Canada (Attorney General), 2014 FCA 124 [El Din Ali] at para 11.
[4]
The review of the CHRC’s determination of the
facts and sufficiency of evidence in decisions to dismiss complaints has been
reviewed on a standard of reasonableness: Ayangma at para 56; El Din
Ali at para 11.
[5]
For the reasons set out below, I dismiss this application
for judicial review. The CHRC’s decision should not be set aside.
II.
Background
A.
Facts
[6]
EMB alleges that she has been subject to
discrimination and harassment at work since as early as 2006. The allegations
made in her complaint to the CHRC can be divided into the following categories:
• Denial
of a promotion in 2007 by her then supervisor, Alain Lemay.
• By her
next supervisor, Lionel Nicholas-Etienne (LNE),
o exclusion from a clique of other
employees formed in 2008,
o failure in 2008 to recognize
EMB’s certification,
o other disrespectful conduct in
2009.
• By her
next supervisor, Troy Hand (TH),
o undue scrutiny given to EMB’s
credentials,
o various acts of harassment in
2010 and 2011, including yelling at her.
[7]
On May 23, 2012, the investigator at the CHRC
assigned to investigate EMB’s complaint wrote to both EMB and BC to request
that they provide certain information and documents. She requested a response
by June 23, 2012.
[8]
BC responded by letter dated June 22, 2012. Among
other things, BC’s letter suggested that the investigator communicate with the
following individuals: LNE, TH and Tina Spadafora, another Bell employee who
had investigated a related complaint by EMB.
[9]
From EMB, the investigator requested the
following details:
• the
e-mail in which she alleges others were promoted over her,
• the
clique she claims she was excluded from,
• specific
examples regarding her allegations against LNE,
• specific examples regarding her allegations
against TH, including details of when he yelled at her,
• details of the differential treatment
surrounding BC’s request for information about EMB’s credentials.
[10]
In the absence of a response from EMB within the
requested time, the investigator followed up with a telephone message to her
counsel on June 27, 2012 and a letter on July 9, 2012. In the letter, she
forwarded BC’s response and invited rebuttal and/or comments. She also
indicated that she would call to discuss BC’s response. She also reiterated her
request for details as set out in her letter of May 23, 2012. This time she
requested that the details be provided by August 3, 2012.
[11]
On July 31, 2012, EMB’s counsel submitted 325
pages of documents with a suggestion that the investigator review them and
return them. The investigator tried numerous times thereafter to contact EMB or
her counsel before writing to her counsel on November 20, 2012 to return the
documents and advise that it is EMB’s responsibility to explain the significance
of documents that she cites. In response to this letter, EMB’s counsel advised
that he would respond the following week.
[12]
Still having received nothing from EMB or her
counsel, the investigator wrote again to her counsel on December 6, 2012
advising that, where the CHRC is not able to communicate with a complainant, it
is obliged to complete its investigation without the benefit of the
complainant’s participation.
[13]
This letter finally elicited a detailed
response, also dated December 6, 2012.
[14]
An interview with EMB was arranged for April 8,
2013 and then postponed to April 15, 2013 because EMB’s counsel was stuck in traffic.
The interview was complicated somewhat because EMB preferred to be interviewed
in French and the investigator could not communicate with her in French. A translator
was therefore arranged. EMB alleges that the investigator was upset with the
request for a translator, and that one had to be pulled from his lunch,
unprepared, to participate. EMB also alleges that she had difficulty
understanding the translator and that the translator had difficulty
understanding her.
[15]
At that hearing before me, EMB (representing
herself) explained that it was agreed that the interview would be re-scheduled
for another day. However, no further interview took place and the investigator
issued her report on May 17, 2013.
B.
The investigator’s report and the CHRC’s
decision
[16]
The investigator’s report recommended that the
CHRC dismiss the complaint for the reasons set out at the beginning of this
decision. The letters accompanying the investigator’s report invited comments
by June 13, 2013. EMB’s counsel provided comments in a letter dated July 3,
2013. BC responded to these comments in a letter dated July 15, 2013.
[17]
The CHRC’s decision to dismiss the complaint
(for the reasons recommended by the investigator) was communicated to the
parties by letters dated August 22, 2013. These letters indicated that the CHRC
had taken account of the investigator’s report as well as the submissions of
the parties in response thereto.
[18]
The investigator’s report indicates that the
investigator reviewed a number of documents that were provided to her, and
interviewed the three individuals who were suggested to her by BC. The report
also indicates that the investigator interviewed EMB. There is no indication of
any issue with the interview that would have warranted a follow-up interview.
[19]
The report addresses all of the issues raised in
EMB’s complaint. The investigator deals with the allegations in the following
categories:
• The
denied promotion
• Allegations
against LNE
• Allegations
against TH
• Allegations
of harassment
[20]
With regard to the allegation of a denied
promotion, the report concludes that EMB did not provide details as to how it
could be characterized as differential treatment warranting further
consideration.
[21]
With regard to allegations of adverse
differential treatment by LNE and TH, the report discusses the allegations and
concludes that EMB did not provide evidence indicating that they treated her in
a differential manner.
[22]
With regard to allegations of harassment, the
report notes that they were not raised until it was suggested to EMB that her
allegations did not appear to be linked to a ground within the jurisdiction of
the CHRC. Based on this, as well as the lack of supporting documentation,
details or witnesses, and the layout of the workplace, the investigator concludes
that the harassment likely did not occur.
III.
Analysis
A.
Did the investigation fail to show procedural
fairness?
[23]
As I understand it, there are two aspects to
EMB’s argument that she was denied procedural fairness. Firstly, she alleges
that her input was not properly received by the investigator because of the
difficulty of communication during her interview. Secondly, and also arising
out of the communication difficulties during EMB’s interview, she was never
asked to provide the names that had been requested of the witnesses who could
support her allegations. Without the names of those witnesses, EMB submits, the
investigation of EMB’s complaint was compromised.
[24]
In respect of both aspects of EMB’s concerns
about procedural fairness, I am of the view that she was not denied procedural
fairness. Even if she was prevented from providing names of witnesses during
her interview with the investigator, she had an opportunity to indicate in
comments after the issuance of the report any additional information that she
felt were necessary for the CHRC to have, including the names of witnesses. The
information provided in her counsel’s letter of July 3, 2013 was considered by
the CHRC but did not change its decision. That letter did not name any
witnesses. Instead, it stated that there were witnesses who did not wish to be
named. Without identification of witnesses, the investigator could hardly be
faulted for failing to interview them. The investigator clearly indicated that
the failure to name witnesses could prevent the matter from proceeding further,
and EMB understood this, as acknowledged in her counsel’s letter of July 3,
2013.
[25]
In her affidavit in support of the present
application for judicial review, EMB identified two witnesses who, I
understand, had not been identified to the investigator. These were Lawrence
Ashimey and Dr. Eddie Lo. At the hearing before me, EMB explained that Mr.
Ashimey is a fellow BC employee with whom she has discussed the events relevant
to the present judicial review. EMB acknowledged that Mr. Ashimey had not
personally witnessed any of the events of which she complains. EMB also
explained that Dr. Lo is a physician who treated her for health problems that
she has suffered during the period addressed in the present judicial review. Though
he might be able to provide information about the state of EMB’s health, he
would not be in a position to assist an investigator in trying to determine
whether any health problems were caused by discrimination or harassment at the
hands of BC or its employees. Accordingly, I conclude that, even if the names
of these witnesses had been given to the investigator during her investigation,
and the investigator had interviewed those witnesses, the recommendation in her
report would not have changed.
B.
Was the CHRC unreasonable in assessing the
information provided to it?
[26]
Having read the investigator’s report and EMB’s
comments thereon, I am of the view that the investigation was thorough and the
analysis of the information and documents gathered entirely reasonable. The
investigator adequately identified the various allegations made by EMB, and indicated
the lack of information and details to support the allegations.
[27]
EMB’s counsel’s letter of July 3, 2013
commenting on the investigator’s report essentially details a difference of
opinion over the analysis of information and documents that were gathered by
the investigator and a difference of opinion over how to address the possible
existence of witnesses who could corroborate EMB’s allegations but who did not
wish to be named. I have indicated above why I disagree with EMB on how to
address the possible existence of unnamed witnesses. As regards the
investigator’s analysis of the information and documents provided to her, I
have seen nothing that convinces me that it was unreasonable.
[28]
Before concluding, I feel compelled to raise
another point concerning EMB’s counsel’s letter of July 3, 2013. Having been
unsuccessful in pressing her allegations of discrimination and harassment
against her three successive supervisors at BC during the period from 2006 to
2011, she then turns on her union (alleging that it “joined
the employer to harass her” when it failed to support her complaint) and
on the investigator (alleging repeatedly that she was biased against EMB in her
investigation). This string of allegations gives the impression that EMB is
prepared to level accusations of impropriety against anyone with whom she has a
disagreement.
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