Docket: T-98-13
Citation:
2015 FC 78
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 21, 2015
Present: The Honourable Madam Justice Gagné
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BETWEEN:
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CAMILLE DUBÉ
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Applicant
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and
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CANADIAN BROADCASTING CORPORATION
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Respondent
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JUDGMENT AND REASONS
[1]
Camille Dubé, a career sports journalist, is
seeking judicial review of a decision of the Canadian Human Rights Commission [the
Commission] rejecting his complaint of discrimination on the basis of age and
mental disability. The Commission found (i) that the Canadian Broadcasting
Corporation [CBC] had not terminated his employment; and (ii) that, in light of
the investigation report submitted and in accordance with subparagraph 44(3)(b)(i)
of the Canadian Human Rights Act, RSC 1985, c H- 6 [Act], an
inquiry into the applicant’s complaint was not warranted.
[2]
Mr. Dubé is representing himself and
essentially argues that the CBC did not prove beyond a reasonable doubt that in
April 2007, he represented such a danger to CBC staff that the CBC had
good cause to exclude him and ban him from the premises. He also submits that
the CBC has been trying to exclude him for some time now and took advantage of
his absence on short-term medical leave, which began in February 2006, to
do so.
[3]
For the reasons that follow, this application
for judicial review will be dismissed.
I.
Facts
[4]
The applicant was employed by the
French-language service of the CBC (Radio-Canada) from 1969 until his
retirement on December 31, 2009. During his final years with the CBC, he
was a member of the Syndicat des communications de Radio-Canada (FNC-CSN) and
subject to a collective agreement between the Syndicat des communications de
Radio-Canada (FNC-CSN) and the CBC, in force from March 17, 2006, to
March 29, 2009, during which period most of the events relevant to this
case unfolded.
[5]
The applicant began experiencing some problems
in his workplace in 2003. In May of that year, the programming director at RDI,
the CBC’s French-language news channel, allegedly told him that there was no
work for him, and in autumn 2003, he was passed over for the coverage of
the ceremonies at which the Cy Young Trophy was awarded to baseball player Éric
Gagné. In autumn 2005, he was not selected to be part of the team that was
to go cover the Olympic Games in Turin in February 2006 or to host a
special daily series to be broadcast on RDI during the Games. He heard that
people were saying to stay away from him because he was an “écraseur de
relève”, that is, someone who gives younger employees a hard time.
[6]
Such was the situation when, in
February 2006, he took a leave of absence to have surgery on his right
shoulder. During that time, he received short-term disability benefits from
group insurer Great-West Life, and he was expected to return to work on
April 24, 2006.
[7]
His short-term sick leave was extended several
times, and on August 23, 2006, he was placed on long-term disability
leave. He did not return to work before his retirement on December 31,
2009, the year he turned 65.
[8]
In May and June 2006, the CBC offered the
applicant retirement incentive packages, which he refused because he intended
to work until he turned 65.
[9]
In September 2007, the Régie des rentes du
Québec, Quebec’s pension plan, accepted his application for a disability
pension, retroactive to May 2006. He received this pension until his
retirement.
[10]
However, in December 2006, a meeting was
held to discuss the applicant’s eventual return to work. The applicant, his
union representative and some representatives from the CBC and Great-West Life
attended. During the meeting, the applicant was aggressive and rude and
threatened one of his supervisors.
[11]
Given his attitude, Great-West Life asked that
he undergo a psychiatric evaluation to assess his fitness to return to work.
The applicant met with Dr. Bich Ngoc Nguyen on January 16, 2007, and
the doctor submitted her report on January 18, 2007. As she stated in this
report that the applicant should not have any contact with his employer or the
people he had threatened, the CBC decided to ban him from the premises.
[12]
There was no contact between Mr. Dubé and
the CBC in 2007 or 2008.
[13]
In early April 2009, the CBC launched its
voluntary retirement incentive plan [VRIP]. Since the positions of employees on
long-term disability leave cannot be abolished, thereby saving the CBC money,
such employees are not eligible for the VRIP.
[14]
Because the applicant had turned 65 in
December 2009, he stopped receiving disability benefits in the beginning
of January 2010. He took his retirement and signed the documentation
regarding his severance pay.
II.
Impugned decision
[15]
The reasons for the Commission’s decision are in
the investigation report (Canada (Attorney General) v Sketchley, 2005
FCA 404 [Sketchley] at para 37; Din Ali c Canada (Attorney
General), 2013 FC 30 at para 20 [Din Ali], aff’d 2014 FCA 124).
The report states that the applicant complained that the respondent had
initially tried to dismiss him because of his mental disability but in the end
forced him into retirement because of his age.
[16]
The investigator noted that the practices about
which the applicant was complaining, [translation]
“adverse differential treatment” and [translation]
“failure to provide a harassment-free workplace”, are covered by
sections 7 and 10 of the Act.
[17]
The investigator explained that his task was to
examine whether there was sufficient evidence to support the complainant’s
allegations, namely, (i) that he worked for the respondent; (ii) that the
respondent terminated his employment; and (iii) that his dismissal related to
one or more prohibited grounds of discrimination.
[18]
Since the investigator concluded that the
respondent had not terminated the applicant’s employment, he saw no reason to
continue his analysis. In his view, the evidence showed that, after he
underwent a psychiatric evaluation ordered by Great-West Life, the applicant
chose to take advantage of an extended period of disability leave that was
recommended to him.
[19]
The investigator also concluded that the
applicant left his employment voluntarily at the age of 65:
[translation]
The documentary evidence contains numerous
exchanges between the complainant and the respondent regarding the benefits
that he was to receive upon retirement. Although these exchanges illustrate the
complainant’s dissatisfaction regarding the content of the offer, no mention is
made of adverse differential treatment based on his age. Moreover, the
complaint recognizes that he had made clear that he intended to retire at 65
and that he did not ask the respondent, when he was about to turn 65, if he
could continue working beyond that age.
[20]
The Commission’s investigator gathered the
following evidence:
•
A letter from the CBC to the applicant,
containing his retirement incentive offer;
•
Handwritten notes taken by two CBC employees at
the meeting in December 2006. These notes mention the applicant’s rude
remarks regarding his supervisor and state that he threatened him;
•
A summary of that same meeting, prepared by the
representative from Great-West Life, which notes that the insurer [translation] “is
concerned by the insured’s remarks”, that it fears for the safety of
other CBC employees and that it was agreed to [translation] “substantiate the insured’s
fitness for work through an expert psychiatric opinion”;
•
The expert opinion of Dr. Bich Ngoc Nguyen,
which notes, among other things, the complainant’s aggression towards certain
managers, recommends that his disability leave be extended by at least three
months and reports that [translation] “the psychiatric illness (major depression) and the alcohol
abuse justify the disability”;
•
The details of the respondent’s VRIP;
•
A letter from Great-West Life to the applicant,
dated June 29, 2009, informing him that his disability benefits would end
on December 31, 2009, given that he was turning 65;
•
Two letters from the CBC to the applicant, dated
August 25 and September 11, 2009, informing him of the various
employee benefit plans applicable to him upon retirement and passing on to him
the calculations related to his retirement benefits;
•
The notes from the interview between the
investigator and the applicant, which mention that, when he was about to turn
65, the applicant did not ask his employer if he could continue working beyond
that age.
[21]
The report notes that the investigator did not
think it relevant to interview the respondent’s representatives and contact the
eight witnesses who could corroborate the applicant’s statements regarding the
grievances he filed between 2003 and 2006, attesting that he was ready to
return to work after his surgery in February 2006 and regarding his
refusal of the retirement incentive offer made in June 2006. According to
the report, the applicant’s allegations on [translation]
“these points are not in doubt, and the events
forming the basis of the complaint relate more to the complainant’s behaviour
at a meeting after his injury, on December 14, 2006, and are very well
documented”.
III.
Issues and standard of review
[22]
The applicant argues that the Commission made a
reviewable error in rejecting his complaint pursuant to subparagraph 44(3)(b)(i)
of the Act
(1)
because it breached a principle of procedural
fairness in not conducting a sufficiently thorough investigation; and
(2)
because it was unreasonable to conclude that the
applicant had not produced sufficient evidence to justify referring his
complaint to the next level.
[23]
The standard of review applicable to a breach of
procedural fairness by the Commission is correctness (Attaran c Canada (Attorney
General), 2013 FC 1132 [Attaran] at para 39; Sketchley, at
para 53), while the standard applicable to the second issue raised by this
application is reasonableness (Din Ali at paras 10 and 11). The
latter issue concerns the Commission’s decision whether to rule on a complaint
under the procedure set out in subsection 44(3) of the Act, which is a
discretionary decision. The following remarks are helpful (Rabah v Canada
(Attorney General), 2001 FCT 1234):
9 The standard of review of a
decision of the Commission on receipt of an investigation report is a highly
deferential one. The Commission does not have an adjudicative function, but is
an administrative and screening body, whose role it is to decide if an inquiry
is warranted through assessing the sufficiency of the evidence before it . . .
.
IV.
Analysis
A.
Procedural fairness
[24]
The applicant argues that the investigator’s
findings are erroneous because of omissions he made. First, he challenges the
investigator’s finding that he took no action to correct the situation that
gave rise to the complaint and submits, rather, that the investigator had
evidence to the contrary in his possession. Second, the applicant argues that
the investigator telephoned him only once, strictly for the purpose of
questioning him on when he planned to retire. According to the applicant, this
evidence was not relevant to his complaint.
[25]
The respondent, on the other hand, submits that
the investigation process was fair, neutral and thorough and complied in every
respect with the duties of procedural fairness. The investigator had access to
the parties’ written submissions and to an abundance of documentary evidence.
There is nothing to indicate that the investigator disregarded any obviously
crucial evidence.
[26]
I agree with the respondent. In this context,
procedural fairness required that the investigation be neutral and thorough,
and it was. Only where unreasonable omissions have been made, such as the
failure to investigate obviously crucial evidence, is judicial review warranted
(Robinson v Canada (Canadian Human Rights Commission) (1995), 90 FTR 43 at
para 21). The investigator’s report address the fundamental or essential
aspects of the applicant’s complaint, namely, that the respondent allegedly
tried first to dismiss him and then to force him into retirement because of his
age and mental disability.
[27]
The parties were given the opportunity to
comment on the investigator’s report. In Slattery v Canada (Human Rights Commission),
[1994] 2 FC 574 [Slattery] at para 57, this Court concluded that “parties may be able to compensate for more minor omissions by bringing
such omissions to the attention of the decision-maker”. In the case at hand, the applicant submits that the report
does not address the harassment he allegedly suffered, starting in 2003,
whereas the evidence of this is indeed included in the summary of his complaint
to the Commission, dated March 31, 2010. In that complaint, the applicant
alleges that he was humiliated in his workplace, for example, when he was
passed over for assignments that traditionally went to him, or when the
programming director referred to him as a [translation]
“former commentator” in front of his colleagues. The applicant had the
opportunity to comment on the investigation report and any omission made by the
investigator, to which the respondent replied by pointing out the applicant’s
failure to avail himself of the complaint process set out in the
anti-harassment policy, and the fact that the applicant did not raise these
events until several years after the fact. It was therefore entirely reasonable
to conclude that the Commission did indeed consider the applicant’s
harassment allegations but did not think it necessary to investigate them
because they were not central to the applicant’s complaint.
[28]
As my colleague Justice Strickland noted, “[t]his Court is concerned, not with perfection, but with
ensuring that the Applicant was treated fairly in the investigation and his
discrimination complaint was considered” (Attaran at para 100).
She also pointed out that “[t]he Court should not dissect
the investigator’s report on a microscopic level or second-guess the
investigator’s approach to his task”.
[29]
Finally, the fact that the investigator did not
question the witnesses listed by the applicant is not fatal (Slattery at
para 70). The investigator justified his choice in his report, and this
evidence clearly would not have added anything to the debate because the facts
which these testimonies would have concerned were not contested or did not
regard evidence relevant to the applicant’s complaint.
B.
Reasonableness of the decision
[30]
The applicant alleges that the respondent has
not proven beyond a reasonable doubt that, starting in 2007, he was
sufficiently dangerous to warrant being excluded from his workplace. He adds
that it was the respondent who made him ill by humiliating him and falsely
labelling him as dangerous, which constitutes prohibited discrimination within
the meaning of paragraph 7(a) of the Act. He argues that the
respondent used only certain sections of the psychiatric report to exclude him,
and that it deliberately ignored the passages that showed that he was not
dangerous.
[31]
The respondent, on the other hand, submits that
the applicant did not prove prima facie discrimination and that, with
regard to sections 7 and 14, the initial burden of proof lies on the
employee (Bateman v Canada (Attorney General), 2008 FC 393 at para 25).
Contrary to the applicant’s allegations, the investigator consulted an
abundance of documentary evidence and considered the respective positions of
the parties.
[32]
The respondent also argues that it was
reasonable to find the applicant to be dangerous on the basis of his behaviour
at the meeting in December 2006 and the psychiatric report, which it had
to take seriously. The respondent therefore had good reason to restrict the
applicant’s access to the premises and did not rely on a prohibited ground
based on disability to do so. The evidence shows that the applicant was not
dismissed since a person who is not an employee cannot receive short- or
long-term disability benefits. The respondent did not force the applicant to
retire in 2006 when it offered him retirement incentives. This offer could have
been refused, and it was, without any further discussion. Finally, it was the
applicant who asked to take his retirement when he was no longer eligible for
long-term disability benefits.
[33]
I find that the investigator provided a
reasonable explanation as to why he preferred to accept the employer’s version
of the facts and its interpretation (see Dupuis v Canada (Attorney General),
2010 FC 511 at paras 4 and 38). The psychiatric report ordered by the
insurer contains enough information for a reasonable employer, placed in the
same circumstances, to chose to exclude the employee from the workplace, and for
a reasonable insurer to agree to maintain the insured’s long-term disability
benefits. The report states that in summer 2006, the applicant armed himself
and thus represented a risk to himself and certain supervisors. Contrary to the
applicant’s arguments, the proof of his dangerousness, which did not have to be
beyond a reasonable doubt, was based on sufficient evidence to justify the
insurer’s recommendation and the respondent’s decision.
[34]
The Commission’s finding that the applicant was
not dismissed but simply kept on long-term disability leave until he voluntarily
retired is not only reasonable, but well founded. Long-term disability benefits
are not paid unless there is an employment relationship, and the fact that the
applicant was denied access to the CBC’s premises changes nothing.
[35]
When it decided not to refer the applicant’s
complaint to the next level, the Commission properly exercised its discretion
and made a decision based on the evidence before it.
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