Docket: T-910-15
Citation:
2015 FC 1355
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, December 8, 2015
PRESENT: Madame Justice St-Louis
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BETWEEN:
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LYNE BRASSARD
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Applicant
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and
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ATTORNEY GENERAL OF CANADA,
JIRKA DANEK AND YVON PARIZEAU
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
Lyne Brassard, the applicant, is seeking
judicial review of a decision rendered May 12, 2015, based on paragraph 41(1)(d)
of the Canadian Human Rights Act, RSC 1985, c H-6 [Act], reproduced in
the Appendix, in which the Canadian Human Rights Commission [CHRC] refused to deal
with three complaints she had filed. Ms. Brassard asks the court to allow and
approve the judicial review and to order the CHRC to review her complaints.
[2]
For the reasons set out below, the Court allows,
in part, this application for judicial review.
II.
Relevant facts
[3]
On August 23, Ms. Brassard was appointed as
administrative assistant (AS-02) at the Information Technology Services
Directorate at Public Works and Government Services Canada [PWGSC] and reported
to Jirka Danek, one of the co-respondents, and Yvon Parizeau, another co‑respondent.
Ms. Brassard was subject to a one-year probation period, ending August 23,
2011.
[4]
In October and December 2010, and in January and
April 2011, Ms. Brassard met with her management team about her performance; in
short, a performance evaluation was given to her and an action plan was
developed.
[5]
On May 16, 2011, Ms. Brassard filed an
internal harassment complaint against Messrs. Danek and Parizeau regarding
her working conditions and micromanagement; later, she added allegations of
gender-based harassment to this complaint.
[6]
This complaint was filed with the manager of the
Prevention of Harassment in the Workplace team at PWGSC's Labour Relations
Division, Alexandre Picard, who was replaced shortly thereafter by Laura Milsom.
Ms. Milsom met with Ms. Brassard many times between June 7 and 13, 2011, and
obtained additional information. In July 2011, John Rath-Wilson, Chief
Operating Officer at the Information Technology Services Branch of PWGSC, began
a [translation] "internal
fact-finding process" that he led himself with the support of the labour
relations group. Mr. Rath-Wilson conducted an investigation that concluded
in September 2011. The information from Mr. Rath-Wilson is limited to two
emails he sent on September 9, 2011, one to Mr. Danek and one to Mr. Parizeau,
to confirm with each that he had met with them and the matter was concluded.
[7]
The Court notes that it has no information about
the above-noted internal fact-finding process, Mr. Rath-Wilson's mandate, the
nature of the related investigation, which the parties confirmed was conducted,
the manner in which the investigation was conducted, the witnesses who were
met, or even the conclusions Mr. Rath-Wilson reached. Moreover, the parties
confirmed that Ms. Brassard was not informed of this investigation, was not met
by Mr. Rath‑Wilson and was not informed of his findings.
[8]
On June 28, 2011, before the end of her
probation period, Ms. Brassard was dismissed because, according to the
employer, she did not meet the requirements of the position.
[9]
On July 5, 2011, Ms. Brassard, assisted by her
union, filed a grievance challenging her dismissal. In it, she did not mention
being subject to harassment or discrimination, but made such allegations at the
hearing.
[10]
On December 20, 2011, the Senior Assistant
Deputy Minister, Projects and Client Services, dismissed Ms. Brassard's
grievance at the final level of the grievance process. He concluded that Ms.
Brassard's dismissal took place during her probation period and was the result
of management's dissatisfaction with her work, which was related to her
reliability, her incompatibility with coworkers and her manager, and her
inability to meet the requirements of the position. He made note of the
corrective measures Ms. Brassard and her union representative requested at the
hearing, including providing a harassment-free workplace or finding that the impugned
acts constituted a violation of the Act.
[11]
Ms. Brassard's union did not support sending the
grievance to adjudication, but in October 2012, eight months later, Ms. Brassard
took the initiative to send it to the Public Service Labour Relations Board
[PSLRB]. On September 9, 2013, the PSLRB dismissed the request for referral on
the ground that it was past the deadline and Ms. Brassard did not provide a
clear, logical and convincing reason to justify the delay.
[12]
In January 2012, Ms. Brassard requested the
re-activation of her three distinct harassment and discrimination complaints
before the CHRC. One targets PWGSC, another Jirka Danek and the last, Yvon
Parizeau.
[13]
The first complaint was filed January 27, 2012,
and bears the file number 20110861. Ms. Brassard alleges that PWGSC committed
gender-based employment discrimination by failing in its duty to provide her
with a harassment-free workplace and by dismissing her, contrary to sections 7
and 14 of the Act.
[14]
The second complaint was filed January 23, 2012,
and bears number 20110864. Ms. Brassard alleges that Mr. Danek harassed
her because of her sex, contrary to section 14 of the Act.
[15]
The third complaint was also filed on January
23, 2012, and bears number 20110865. Ms. Brassard alleges that Mr.
Parizeau harassed her because of her sex, contrary to section 14 of the Act.
[16]
On May 12, 2015, the CHRC wrote to Ms. Brassard
informing her of its decision to not deal with her complaints under paragraph
41(1)(d) of the Act. It stated that it reviewed the reports previously
disclosed to Ms. Brassard and all the related observations transmitted at a
later date.
[17]
With its transmission letter, the CHRC enclosed three
papers supporting the decision in each of the above-noted complaints. In
essence, the three decisions confirm the documents that were reviewed at the
time the decision was made and the reasons for the decision.
[18]
Each decision confirms that the CHRC reviewed
the complaint form, the section 40/41 report dated December 30, 2014, the
complainant's and the respondent's written submissions and the complainant's
and respondent's written submissions from cross-disclosure.
[19]
Each of the decisions adopts findings as stated
in each of the reports on sections 40/41 that, essentially, Ms. Brassard's
allegations are vexatious since they have already been addressed through the
grievance process or through the internal harassment process. The CHRC
therefore decided to not deal with the complaints pursuant to article 41(1)(d)
of the Act.
[20]
Ms. Brassard is applying for judicial
review of the CHRC decision to refuse to deal with her complaints.
III.
Issues
[21]
The Court must first determine the appropriate
standard of review and then determine whether the CHRC committed a reviewable
error by refusing to deal with Ms. Brassard's complaints.
IV.
Parties' positions
A.
Ms. Brassard's arguments
[22]
Essentially, Ms. Brassard argues that the CHRC
erred by referring to paragraph 41(1)(d) of the Act and qualifying her
allegations as vexatious because this term, in her opinion, implies (1) bad
faith or a malicious intent, which she did not have, and (2) a lack of
seriousness, which is not the case.
[23]
She also argues that the CHRC violated the
principle of procedural fairness in its decision-making process and in
particular, she challenges the internal investigation process because she was
not informed of it and nobody met with her.
[24]
Ms. Brassard argues that there is dysfunction
and complacency in the CHRC hierarchy, which explains why her complaint was not
handled properly, and that the CHRC review mechanism is not sufficiently
independent to assess a harassment situation.
B.
Respondents' arguments
(1)
Preliminary issue
[25]
First, the respondents submit that the Attorney
General of Canada should be named as a respondent and not his departments or
agencies, in accordance with subsection 303(1) of the Federal Courts Rules,
[the Rules] SOR/98-106. The designation of PWGSC should therefore be replaced
by the Attorney General of Canada. The Court agrees.
(2)
Standard of review
[26]
According to the respondents, the decisions
rendered by the CHRC pursuant to paragraph 41(1)(d) of the Act must be
reviewed on a standard of reasonableness (Morin v Canada (Attorney General),
2007 FC 1355 at paras 22-25).
(3)
Decision is reasonable
[27]
The respondents submit that Ms. Brassard
filed an internal harassment complaint and a grievance against her dismissal
during her probation period and that these two processes reviewed her
allegations regarding human rights; these allegations were presented again in
her complaint before the CHRC. The complaint is vexatious because Ms. Brassard
is asking the CHRC to consider issues already considered by competent
organizations.
[28]
The respondents submit that it was reasonable
for the CHRC to refuse to deal with the complaints and the fact that issues
that have already been decided are being raised again could constitute an abuse
of process (Exeter v Canada (Attorney General), 2011 FC 86 at para 22).
[29]
The respondents submit that the doctrine of issue
estoppel, supported in particular by the Supreme Court in Penner v Niagara (Regional
Police Services Board), [2013] 2 S.C.R. 125, cited at para 27 in the report on
articles 40/41 of file 20110861, at para 13 of file 20110864 and para 25 of
file 20110865, applies to the CHRC decision because Ms. Brassard's
complaints had already been received a final decision, and because the parties
to the previous decision are the same.
[30]
According to the respondents, to determine
whether there is issue estoppel, the CHRC must decide (i) the nature of the
issue raised, (ii) the finality of the decision, (iii) the parties involved in
the various cases and (iv) the circumstances of the case presented to the CHRC,
which it did.
(a)
Estoppel of grievance process
(i)
Nature of the issue raised
[31]
As to the nature of the issue raised in the CHRC
decision, the respondents submit that the CHRC considered the following:
-
The grievance was filed after Ms. Brassard was
dismissed;
-
During the hearing of the grievance, Ms. Brassard
and her union representative alleged that Ms. Brassard had been subject to
discrimination and harassment;
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During the hearing, Ms. Brassard and her
union representative requested many corrective measures including the right to
claim financial compensation on the grounds that that the impugned acts
constituted a violation of the Act;
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The decision-maker was a senior assistant deputy
minister with the jurisdiction to decide human rights issues;
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The decision-maker determined that reason for Ms. Brassard's
dismissal was her inability to meet the requirements of the position, her lack
of reliability and her incompatibility with her coworkers.
(ii)
The finality of the decision
[32]
As to the finality of the decision, the
respondents submit that the CHRC considered the following:
-
Ms. Brassard could have requested
adjudication of her grievance before the PSLRB but her union chose not to send
the grievance to adjudication;
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Ms. Brassard filed the grievance to adjudication
herself, but the PSLRB chose not to consider it, because of the time frame;
-
The senior assistant deputy minister's decision
was therefore the final decision.
(iii)
The parties involved
[33]
As to the parties involved, Ms. Brassard's
grievance was directed against PWGSC; Mr. Danek and Mr. Parizeau were
the subject of an internal complaint process.
(b) Estoppel of internal complaint process
[34]
Moreover, the respondents submit that to
determine the application of estoppel to the internal complaint process, the
CHRC considered the following, among others:
-
They were harassment complaints against Messrs.
Danek and Parizeau;
-
Ms. Brassard's complaints were reviewed in
an internal fact-finding process that addressed all the allegations;
-
The internal process was led and conducted by Mr.
Rath-Wilson, with the support of labour relations, who has the jurisdiction to decide
human rights issues;
-
Mr. Rath-Wilson led an investigation
regarding the allegations, which concluded in September 2011;
-
Mr. Rath-Wilson had a frank discussion with Mr.
Danek and Mr. Parizeau about the allegations and discussed expectations
regarding appropriate behaviour in the workplace, including appropriate
language, and labour relations concluded the matter after this process;
-
There is no indication that Ms. Brassard
was informed of the conclusion of the process and Mr. Rath-Wilson acknowledged
that it was a regrettable error.
[35]
The respondents submit that it was therefore
reasonable for the CHRC to find that Ms. Brassard's allegations had
already been addressed in the grievance process and the internal complaint
process.
(c) Circumstances of the case presented to the CHRC
[36]
As for the circumstances of the case, the
respondents submit that the CHRC must establish whether the decision made was
procedurally fair and whether it would be unfair to end the new proceeding,
using the results of the previous process.
[37]
To determine whether it would be unfair to not
reconsider the complaint, the CHRC considered the following:
-
For both processes, there was no indication or
motive to believe that the decision-maker was not objective;
-
For both processes, the parties were advised of
the issues to be decided and they had the opportunity to address them;
-
There is no significant difference between the
grievance process and the CHRC complaint process;
-
There are negligible differences between the
internal harassment process and the CHRC complaint process.
[38]
The CHRC reasonably determined that it was not
unfair to consider that the allegations regarding human rights arguments had
already been addressed in the grievance process and the internal complaint
process. It was therefore reasonable to not deal with the complaint before the
CHRC.
V.
Standard of review
[39]
The Court agrees with the respondents' position
and shall review the CHRC decision on a standard of reasonableness (Khaper v
Air Canada, 2015 FCA 99 at para 16).
[40]
The decision is reasonable if it 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 at para 47). On this, the Court is aware of the need to defer to the
decision-maker, the CHRC, considering its expertise and experience interpreting
and applying the statute and considering it exercises a discretionary power (O’Grady
v Bell Canada, 2012 FC 1448 at paras 27 and 36).
VI.
Analysis
[41]
The Court is satisfied that the CHRC decision
regarding complaint no. 20110861, related to Ms. Brassard's grievance, is
reasonable. The Court subscribes to the respondents' position on this, being
satisfied that (1) the grievance process addressed the allegations of
discrimination, human rights and harassment in Ms. Brassard's workplace, (2)
the grievance process is fair and (3) the decision rendered is final. The Court
is satisfied that for this complaint, the allegations have been determined and
it is not unfair to not reconsider this complaint.
[42]
However, the Court cannot come to the same
conclusion regarding the internal complaints against Messrs. Danek and
Parizeau. The internal fact-finding process Mr. Rath‑Wilson conducted
does not meet the so-called estoppel criteria because the process does not seem
fair.
[43]
As noted by the Court above, the record contains
no information on Mr. Rath-Wilson's mandate, the nature of the related
investigation, which the parties confirmed was conducted, the manner in which
the investigation was conducted, the identity of the witnesses who were met, or
even the conclusions Mr. Rath-Wilson reached. Additionally, the parties
confirmed that Ms. Brassard was not informed that this investigation occurred,
was not met by M. Rath-Wilson and was not informed of his findings.
[44]
The Court is aware that the level of procedural
fairness varies depending on many factors, including, among others, the nature
of the decision being made, the importance of the decision to the individual
affected and the legitimate expectations of the person challenging the decision
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paras 23-27).
[45]
In the present case, the internal fact-finding
process and related investigation did not provide an adequate level of
procedural fairness to Ms. Brassard. It would be unfair to not reconsider
these complaints and the CHRC’s decision to not deal with complaints 20110864 and
20110865 under paragraph 41(1)(d) of the Act is unreasonable.
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