Docket: T-1612-15
Citation:
2016 FC 837
Ottawa, Ontario, July 20, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SOUTHERN CHIEFS
ORGANIZATION INC.
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Applicant
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and
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JESSICA DUMAS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review under
section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a decision
[the Decision] by the Canadian Human Rights Commission [the Commission],
pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act, RSC
1985, c H-6 [the Act], to request that the Chairperson of the Canadian Human
Rights Tribunal commence an inquiry into a complaint [the Complaint] filed by
the Respondent. The Decision is dated August 25, 2015. For the reasons provided
below, the matter will be returned to the Investigator for reconsideration.
II.
Background
[2]
The Applicant, Southern Chiefs Organization
Inc., is a not-for-profit corporation that acts as a political organization on
behalf of its First Nation members.
[3]
The Respondent, Jessica Dumas, was hired in
December 2008 by the Applicant to work as a Community Justice Development
Coordinator. In that role she reported directly to Michael Bear, Chief of Staff
at the time, and ultimately to Morris Swan Shannacappo, the Applicant’s then Grand
Chief. She resigned from her position on July 16, 2012.
[4]
On July 18, 2013, the Respondent filed the
Complaint against the Applicant with the Commission. She alleges that she was
harassed and discriminated against in the workplace by Mr. Bear on the basis of
her age, sex, and marital status. As a result, she suffered anxiety, had to
take a medical leave of absence, and was eventually forced to resign. Though
the Complaint lists both the Applicant and Mr. Bear as respondents, the
Commission processed the Complaint as if only the Applicant had been named.
[5]
On June 25, 2015, the Commission designated an
Investigator to conduct an investigation [the Investigation] into the
Complaint. From June 2014 to May 2015, the Investigator assessed the question
of whether the Complaint ought to proceed to be heard by the Tribunal.
[6]
On May 28, 2015, the Commission released the
Investigation Report [the Report], which recommended that the Tribunal commence
an inquiry into the Complaint. The Applicant submitted a response to the Report
on July 3, 2015 outlining a number of concerns that it had with the Report’s
contents.
[7]
The Commission issued the Decision on August 25,
2015. Since it stated only that, “having regard to all
the circumstances of the complaint, further inquiry is warranted”, the
reasons given by the Investigator in the Report serve as the reasons for the
Decision itself (Cerescorp Company v Marshall, 2011 FC 468 at para 49 [Cerescorp]).
III.
The Complaint
[8]
The Respondent makes four separate allegations
of misconduct in the Complaint:
A.
The South Beach Casino incident: On May 2, 2012, at a breakfast buffet at the South Beach
Casino in Scanterbury, Manitoba, Mr. Bear demanded that the Respondent get him
food. When she refused, he allegedly responded: “don’t
you think she should go and get my breakfast? That’s how you take care of a
man. It’s practice so then maybe you can keep a man”.
B.
The Inappropriate questions about her
relationship status: On several separate occasions
Mr. Bear would ask blunt questions as to whether the Respondent was dating
various male work associates.
C.
The inappropriate staring incident: On June 13, 2012, the Respondent attended a meeting with Mr. Bear
to discuss the performance and attendance of an employee in her department. At
a certain point in the meeting, Mr. Bear moved from his seat across the table
to sit next to her. He then, in her words, “looked at
my head and clearly moved his eyes down my body to my shoes, and then clearly
moved his eyes back up to my head, he would raise his eye brows [sic] as he was
doing this”.
D.
Reprimand without cause: The Respondent states that she was humiliated, demeaned,
and insulted as a result of Mr. Bear’s “inappropriate
gazing and gawking” at the June 13, 2012 meeting. As a result, she began
a medical leave of absence for stress and anxiety. Shortly after she returned
to work on July 16, 2012, she received a letter of reprimand from Mr. Bear for,
in her words, “taking a medical leave at a time when
the justice program was in disarray”. She resigned the same day.
IV.
The Decision
[9]
In the Report which forms the basis of the
Decision, the Investigator first stated that there were two issues to be
assessed:
A.
Whether the Applicant failed to provide a
harassment-free workplace to the Respondent; and
B.
Whether the Applicant terminated the
Respondent’s employment on the basis of her age, sex, or marital status.
[10]
The Investigator then outlined the investigation
process, asking whether there is support for the Respondent’s allegation of
harassment and then whether the Applicant was or should have been aware of the
harassment and, if so, what steps were taken.
[11]
After providing some background and discussing
preliminary objections raised by the Respondent, the Investigator then
described her methodology. The Investigator noted that she spoke with the
Respondent and four witnesses who all had at one time been employed by SCO, but
none of whom were employed at the time of the investigation. These individuals
were Shirli Ewanchuk (former Director of Health); Ellen Contois, (former
Administrative Support); Crystel McLean-Grisdale (former Assistant Justice
Coordinator); and former Grand Chief Morris Swan Shannacappo.
[12]
The Investigator stated that she made repeated
unsuccessful attempts to locate Mr. Bear for an interview. She also attempted
to interview Denice Perswain, employed by the Applicant as Finance
Administrator, as Ms. Perswain was the sole witness present for the South Beach
Casino incident. Ms. Perswain declined to participate, however, as she was
still an employee of the Applicant.
A.
Is there support for the Respondent’s allegation
of harassment?
[13]
The Investigator addressed the Respondent’s
allegations as follows:
A.
The South Beach Casino incident: the Investigator concluded that “[t]he
evidence suggests that Mr. Bear asked the [Respondent] to bring him food and
made comments about the [Respondent] ‘taking care of’ and ‘keeping’ a man”.
The Investigator based this conclusion on the evidence of Ms. Ewanchuk, who
joined the Respondent and Ms. Perswain shortly after the incident and was
immediately told about it.
B.
Inappropriate questions about her
relationship status: the Investigator found that
the “evidence suggests that Mr. Bear inquired about the
complainant’s personal life”. Again, the Investigator reached this
conclusion on the basis of Ms. Ewanchuk’s evidence – that Mr. Bear had asked
Ms. Ewanchuk on several occasions about the Respondent’s marital or
relationship status and that, when Ms. Ewanchuk informed Mr. Bear that these
were inappropriate questions, he would laugh.
C.
The inappropriate staring incident: the Investigator concluded that “[t]he
evidence indicates that Mr. Bear stood close to the complainant as she worked
and made comments about her physical appearance”. This conclusion was
based on the evidence of Ms. Ewanchuk, who stated that she often saw Mr. Bear
stand close to the Respondent as she worked, that Mr. Bear often did the same
to Ms. Ewanchuk, that he seemed to lack “physical
boundaries”, and that Mr. Bear often commented to Ms. Ewanchuk on the
Respondent’s physical appearance and “appeared to be
romantically interested” in her. The conclusion about Mr. Bear’s
inappropriate comments was also based on the evidence of Ms. Contois, who
recalled the Respondent stating that she felt “creeped
out” by how Mr. Bear looked at her and who also recalled one instance,
sometime shortly before the Respondent went on leave, where the Respondent
approached Ms. Contois after a meeting with Mr. Bear, began to cry, and told
her that Mr. Bear’s gaze “creeped her out” and
that she “[couldn’t] take it anymore”.
D.
Reprimand without cause: based on documentary evidence submitted by the Applicant, the
Investigator determined that the Respondent was not reprimanded for taking
medical leave but rather for failing to return work-related materials to the
Applicant, a request to which she had not adhered.
[14]
Finally, the Investigator noted that Ms. McLean-Grisdale
provided evidence of “other associated behaviour”
on the part of Mr. Bear – that he was aggressive, that the Respondent was
uncomfortable in his presence, and that on one occasion Mr. Bear pretended to
run Ms. McLean-Grisdale and the Respondent down with his car in the parking lot
adjacent to the Applicant’s offices. This evidence, according to the
Investigator, “provides further context to Mr. Bear’s
demeanour and interactions with the [Respondent]”.
[15]
In light of all the above, the Investigator
concluded that, other than the reprimand without cause, the alleged misconduct
of harassment had occurred. The Investigator found that the evidence indicated
that Mr. Bear’s inappropriate behaviour was: persistent and repetitious;
unwelcomed; linked to her sex and marital status; may have been linked to her
age; and detrimentally affected the work environment and led to adverse
job-related consequences for the Respondent. However, the Investigator also
concluded that the Respondent’s letter of resignation did not make explicit
mention of the alleged misconduct, nor did she state to the Applicant when she
took her medical leave that she felt the alleged misconduct was the source of
her anxiety and distress.
B.
Was the Applicant aware or should the Applicant
have been aware of the harassment and, if so, what steps were taken?
[16]
The Investigator first observed that the
Respondent’s original position was that she had not told the Applicant about
the harassment or why she had resigned because there was no way to do so, given
the Applicant’s reporting structure, which advises employees to report
harassment either to their immediate supervisor or, where the immediate
supervisor is the source of the alleged harassment, to the Applicant’s Chief of
Staff. The Investigator noted that Mr. Bear was both one of the Respondent’s
immediate supervisors and the Applicant’s Chief of Staff at the time of the
alleged misconduct. The Investigator further noted that the Respondent had
provided conflicting information about whether she had advised Grand Chief
Shannacappo of Mr. Bear’s alleged misconduct.
[17]
The Investigator concluded that it was not
necessary to resolve this issue and the contradiction in the Respondent’s
testimony because of the fact that the Respondent had informed Ms. Ewanchuk,
who the Investigator believed to be the Director of Health at the material time
(i.e. when the incidents took place, between May and July of 2012). As such,
the Investigator concluded that the Applicant should have known about the
harassment since “one of its directors was aware of it
and spoke to Mr. Bear about it, noting to him that it was inappropriate”.
[18]
Finally, the Investigator determined that the
Applicant had not taken appropriate action to deal with the harassment and
found that the Applicant’s personnel policy does not outline management’s
responsibilities when harassment is witnessed or reported. Furthermore, Ms.
Ewanchuk was aware of the alleged misconduct but did not raise it “with management”, and while the Applicant insisted
that it had exercised due diligence throughout, “it did
not provide evidence during the investigation to support this statement”.
The Investigator also noted that the Ms. Ewanchuk had spoken to the Respondent
about Mr. Bear’s conduct and suggested that she not be alone in her office with
him.
[19]
As a result, the Investigator found that the
Respondent’s complaint warranted further inquiry and recommended that, per
paragraph 44(3)(a) of the Act, the Commission request that the Chairperson of
the Canadian Human Rights Tribunal institute an inquiry into the complaint.
V.
Issues
[20]
The Applicant raises the following issues:
A.
Did the Investigator and the Commission breach
the Applicant’s right to procedural fairness by:
1.
failing to conduct a sufficiently thorough
investigation?
2.
failing to be neutral?
3.
failing to assess the Respondent’s credibility?
4.
failing to provide the Applicant with an
adequate response to its concerns about the Investigation and the Report?
B.
Was the Commission’s decision to request further
inquiry unreasonable?
VI.
Standard of Review
[21]
The standard of review applicable to questions
of the Commission and the Investigator’s thoroughness and neutrality is
correctness (Joshi v Canadian Imperial Bank of Commerce, 2015 FCA 92; Big
River First Nation v Dodwell, 2012 FC 766 at para 33).
[22]
The Applicant cites Canada (Attorney General)
v Tran, 2011 FC 1519 at para 19 [Tran], for the principle
that a failure to assess credibility is reviewable on a correctness standard. Tran,
however, suggests that the obligation to assess a complainant’s credibility is
a reviewable on a correctness standard because it is a matter of jurisdiction
(para 18). That conclusion arose from the specific facts of that case – there,
the investigator stated that it could not interview a particular witness
even though that witness was available. Justice Simpson interpreted that as an
incorrect statement that the investigator felt he had no jurisdiction to do so.
In this case, however, the Investigator made no such statement. As such, and as
will be more fully explained below, I think that it is more appropriate to
consider a failure to assess credibility as part of the question of whether the
investigation was sufficiently thorough – which, as noted above, involves
procedural fairness and thus attracts a correctness review.
[23]
Similarly, the question of whether the
Investigator provided the Applicant with an adequate response to its concerns
about the Investigation and the Report is a matter of thoroughness and thus
reviewed on a correctness standard. As noted in Brosnan v Bank of Montreal,
2015 FC 925 at para 22, “[t]horoughness also entails
that the Commission must, as a matter of fairness, respond to any submissions
which go to the heart of the investigator’s findings” (see also Carroll v
Canada (Attorney General), 2015 FC 287 at
paras 68-69).
[24]
Finally, the Commission’s decision to request
further inquiry is reviewable on a reasonableness standard (Cerescorp at
para 14). As such, so long as the decision demonstrates justification,
transparency and intelligibility and falls within a range of acceptable,
defensible outcomes, it should not be disturbed (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
VII.
Analysis
[25]
Before turning to the specific issues raised by
the Applicant, a brief discussion of the Commission’s role in the complaints
process under the Act may be of assistance. As recently explained by Justice
Gleeson in Phipps v Canada Post Corporation, 2015 FC 1080:
[35] The Commission is established
under section 26 of [the Act] and consists of a Chief Commissioner, a Deputy
Chief Commissioner and three to six members. Section 32 provides for the
appointment of such officers and employees as necessary for the proper conduct
of the work of the Commission in accordance with the Public Service
Employment Act, SC 2003, c. 22, ss 12, 13.
[36] Complaints alleging discriminatory
practice are received by the Commission and, with exceptions, where the
Commission has reasonable grounds to believe a person has engaged or is
engaging in a discriminatory practice, as defined in [the Act], the Commission
may initiate a complaint (section 40). Where a complaint is initiated, the
Commission may designate a person to investigate the complaint (section 43(1)).
The Investigator shall investigate and submit a report to the Commission
(section 44(1)).
[37] Upon receipt of the report the
Commission will dispose of the complaint in one of three manners: (1) refer the
complaint to an appropriate external authority where the Commission is of the
opinion that the complainant ought to exhaust grievance or review procedures
otherwise reasonably available or the complaint could be more appropriately
dealt with by means of a procedure provided for under an Act of Parliament other
than [the Act]; (2) where the Commission believes an inquiry is warranted,
refer the complaint to the Canadian Human Rights Tribunal requesting the
Chairperson to institute an inquiry under section 49 of [the Act]; or (3) where
the Commission is satisfied that an inquiry into the complaint is not
warranted, having had regard to all of the circumstances, dismiss the
complaint.
[26]
The Commission is “not
an adjudicative body… [r]ather, the role of the Commission is to carry out an
administrative and screening function” (Canadian Union of Public Employees
(Airline Division) v Air Canada, 2013 FC 184 at paras 60-61 [Air Canada]).
In the words of the Supreme Court in Cooper v Canada (Human Rights
Commission), [1996] 3 S.C.R. 854 at para 53 [Cooper]:
…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.
[27]
This is a low threshold, requiring only that the
Commission determine whether there is a
reasonable basis in the evidence for proceeding to the next stage (Cerescorp
at para 51). Importantly, in suggesting that further inquiry into the complaint
is warranted, the Commission is “not making any
final determination about the complaint’s ultimate success or failure” (Halifax
(Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 24).
[28]
The Commission is also
entitled to a significant degree of latitude in the performance of its
functions: “it may be safely
said as a general rule that Parliament did not want the courts at this stage to
intervene lightly in the decisions of the Commission” (Bell Canada
v Communications, Energy and Paperworks Union of Canada, [1999] 1 FCR 113 at 137 (FCA)).
[29]
Nonetheless, the
Commission must abide by certain principles of procedural fairness. One is that
the investigation be sufficiently thorough (Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 at 600 (FC) [Slattery]).
An investigation is thorough so long as it is not “clearly deficient” or fails
to assess any “obviously
crucial evidence” (Slattery at 600, 605). This is a deferential standard: there is no obligation on the
Investigator to interview every individual suggested by the parties (Bateman
v Canada (Attorney General), 2008 FC 393 at para 29 [Bateman]), nor
is it “the Court’s role either to dissect the
Investigator's report on a microscopic level or second-guess the Investigator's
approach to his task” (Abi-Mansour v Canada (Revenue Agency),
2015 FC 883 at para 21 [Abi-Mansour]), nor must be the investigation be
perfect (Air Canada at para 68). The obviously crucial test “requires that it should have been obvious to a reasonable
person that the evidence an applicant argues should have been investigated was
crucial given the allegations in the complaint” (Gosal v Canada (Attorney General), 2011 FC 570 at
para 54 [Gosal]).
[30]
Thoroughness includes an obligation to
thoroughly review the parties’ submissions, and “where
a party’s submissions to the Commission pertaining to an investigator’s report
allege substantial and material omissions in the investigation and provide
support for that assertion the Commission must refer to those discrepancies and
indicate, even briefly, why it is of the view that they are either immaterial
or insufficient to challenge the investigator’s recommendation” (Gosal at para 49; Herbert v Canada (Attorney General), 2008 FC 969 at para 26). That duty,
however, applies more strictly “in cases
in which the investigator has recommended that the complaint be dismissed” since while “a dismissal brings an end to the matter… [a] referral to the
Tribunal is in no way determinative of the truth of the allegation of
discrimination” (Canada (Attorney General) v Davis, 2009 FC 1104 at
para 56).
[31]
A second applicable principle of procedural
fairness is that of neutrality (Slattery at 600). According to Justice
Gauthier (then of this Court), the test for neutrality is whether the
investigator approached the case with a ‘closed mind’ (Gosal at para
51). The burden of proof for demonstrating a lack of neutrality is high and
requires more than a mere suspicion (Abi-Mansour at para 51).
A.
Did the Investigator fail to conduct a
sufficiently thorough investigation?
[32]
I find that there are several respects in which
the Investigator, while otherwise undeniably diligent, failed to conduct a
sufficiently thorough investigation, rendering it clearly deficient.
[33]
The first flaw in the investigation was the
conclusion that, through Ms, Ewanchuk, the Applicant’s one-time Director of
Health, the Applicant knew of Mr. Bear’s alleged misconduct. This is because
the evidence now before me shows that Ms. Ewanchuk was not actually an employee
of the Applicant during any of the period relevant to the Respondent’s
complaint; while Ms. Ewanchuk was terminated “in or
about March of 2012” (Applicant’s Record at 16 [AR]), the incidents in
question took place between May 2 and June 13, 2012, ending with the
Respondent’s resignation on July 16, 2012.
[34]
While this information appears only to have
surfaced in the principal Affidavit in support of this judicial review (that of
the Applicant’s current Chief of Staff, Donald Courchene), the Respondent took
no issue with its accuracy, nor with the Applicant’s observation that any
attribution of knowledge from Ms. Ewanchuk to the Applicant is problematic
given Ms. Ewanchuk’s departure in 2012. It is clear that the Investigator, at a
minimum, could and should have asked Ms. Ewanchuk about the exact period of her
employment, and presumably would have received the information had she done so.
She did not.
[35]
Even if one puts aside the dates of employment,
given that they were not before the Investigator, it remains unclear whether
Ms. Ewanchuk was sufficiently senior in the Applicant’s organizational
structure to have imputed knowledge to the Applicant through her own awareness
of Mr. Bear’s conduct. She advised the Investigator that she was at the same
level as the Respondent, and not the Respondent’s superior.
[36]
The question of whether the Applicant was aware
or should have been aware of Mr. Bear’s alleged misconduct is central to the
complaint, and Ms. Ewanchuk’s status and knowledge are foundational aspects of
that question, particularly in light of the Investigator’s decision to forego
any inquiry into the inconsistencies in the Respondent’s evidence, or into
whether there may have been witnesses to the incident at the June 13 meeting.
[37]
While it is not the job of the Commission to
determine if the complaint is made out, but rather to determine if an inquiry
is warranted having regard to all the facts (Cooper at para 53), the
foundational evidence by which knowledge was attributed to the Applicant was
flawed. Ms. Ewanchuk may have been aware of the alleged conduct at some point,
but if she was, she was not employed at the time and therefore could not be
said to be in a position to impute knowledge to the Applicant. The
Investigator’s conclusion therefore cannot be upheld.
[38]
Furthermore, four other clear weaknesses must be
revisited by the Commission in deciding anew whether to send this matter to
inquiry.
[39]
First, the Investigator exclusively interviewed
former employees of the Applicant: none of them were still employed by the
Applicant when she conducted her interviews. The only current employee that the
Investigator attempted to contact was Ms. Perswain, who did not accede to the
interview request (although the Court acknowledges that such an interview
request from an Investigator is voluntary, and there was nothing compelling Ms.
Perswain to attend).
[40]
Second, the Investigator did not interview any
witnesses to the June 13, 2012 meeting. As the Applicant explained before this
Court, Mr. Bear had written a memo to the Respondent, dated June 11, 2012,
making it clear that the June 13 meeting was to include, among others, the
Community Justice Committee and the RCMP. The Applicant highlighted this memo
and fact that there may have been witnesses to the alleged June 13, 2012
incident in the July 3, 2015 letter in response to the Report, and strongly
urged the Investigator to speak to someone who actually attended the meeting.
The Investigator is, of course, not obliged to contact every individual suggested
by the parties (Bateman at 29), and simply because the Applicant noted
that others may have been present at the June 13, 2012 meeting does not oblige
the Investigator to interview those individuals. In this case, however, given that there was no corroborating
evidence regarding the claims of harassment at the June 13 meeting, it appears
particularly important for the Commission to have at least attempted to elicit
both sides of the story regarding that meeting.
[41]
The third
area which requires further consideration was whether
the Applicant knew of the conduct, particularly in light of the observations
about Ms. Ewanchuk above. As the Investigator noted, the evidence is on this
point from the Respondent was contradictory. First, the Respondent stated in
her complaint that she never advised the Grand Chief, but later changed her
testimony in her interview. The Grand Chief, on the other hand, was categorical
in his interview that the Respondent did not advise him of any alleged
inappropriate conduct of Mr. Bear, and that he knew nothing of it when the
complaint was filed – in spite of what he reported as “monthly
contact” during the Respondent’s employment.
[42]
The Applicant’s personnel policy is clear that “the Complainant/Employee shall report the harassment to the
Immediate Supervisor at once… If the Immediate Supervisor is the source of the
alleged harassment, the employee shall report the problem to the Chief of
Staff” (AR at 107). The Respondent’s reporting relationships were set
out in her Job Description, stating that she “reports
directly to and is fully accountable to the Chief of Staff and to the Grand
Chief” (AR at 98). The Investigator will therefore need to turn her
mind to whether or not the organization knew of the alleged harassment.
[43]
Fourth, the Investigator will also have to take
into account, in reconsidering the matter, the question of whether the
Respondent’s anxiety and emotional distress resulted from the alleged
harassment, or whether they were the adverse consequences of unrelated issues,
such as the difficult work conditions that she herself alluded to in the
complaint letter when she stated that “the position is
very demanding and there is no ‘appropriate’ time to take time away”; or
that she “could no longer stand to be a part of an
organization that was falling apart and had no support for its staff”;
or that “[t]he structure of [the Applicant] has fallen
apart significantly since Mike Bear has been hired as Chief of Staff” (AR
at 156).
[44]
In conclusion, while appreciating that under
normal circumstances deference is owed to decisions of the Commission, both in
terms of the investigation process selected and the conclusions drawn from the
interviews, where there are fundamental issues with the thoroughness of the
investigation, it cannot stand. This is not to say that the Commission need
determine if the complaint is made out; clearly, that is not the role of an
investigation (Cooper). Rather, it will need to reconsider whether, in
light of the observations above, an inquiry is still warranted. This will
include whether the evidence suggests that the Applicant actually had, or
should have had, knowledge of the allegations.
B.
Did the Investigator fail to remain neutral?
[45]
The Applicant submits that the Investigator
failed to remain neutral in conducting the investigation. The Applicant points
to two facts to support its case on this point. First, the Applicant notes that
the Investigator made no attempt to contact any of the parties mentioned in the
June 11, 2012 memo from Mr. Bear about the June 13, 2012 meeting. Second, the
Applicant notes that the Investigator made no attempt to interview Ms.
Sanderson, Mr. Bear’s executive assistant, who the Respondent allegedly
informed of Mr. Bear’s behaviour. Since the Respondent stated that she did not
believe Ms. Sanderson “would back [her] up”, the
Applicant contends that the decision not to interview Ms. Sanderson, focusing
instead on interviewing a series of individuals that were sympathetic to the
Respondent’s Complaint, demonstrates a lack of neutrality.
[46]
The burden of demonstrating the existence of a
lack of neutrality – in other words, a reasonable apprehension of bias – is
high and it rests on the Applicant. I do not find that the Applicant has met
this high bar.
[47]
First, the Investigator was not obliged to
interview every individual suggested by the parties or to explicitly address
every piece of evidence they made available; failing to have done so alone does
not support a finding of bias.
[48]
Second, the Investigator ultimately found that
one of the four grounds of misconduct raised by the Respondent had no merit, a
strange finding if the Investigator were truly biased in her favour.
[49]
Third, the Investigator provided the Applicant
with an extension of time to raise its concerns, which would also reflect and
approach inconsistent with a biased investigation.
[50]
In my view, these indicia demonstrate that the
Investigator displayed neutrality, including interacting with Applicant’s
counsel and being responsive to communications (see, for instance, a memo from
the Investigator detailing her interactions with counsel, which displayed
impartiality and a willingness to listen to work with the Applicant and
consider its position (Respondent’s Record at 2-3)).
C.
Was the Decision unreasonable?
[51]
The Applicant alleges that there were numerous
errors in the Commission’s decision. Given my findings on the issue of
thoroughness, however, there is no need to examine the reasonableness of the
decision. That assessment can only be made with the proper evidentiary
foundation that a thorough investigation can provide.
VIII. Remedy
[52]
The Applicant has requested that this Court
dismiss the complaint through the issuance of a writ of
mandamus. The Federal Court of Appeal summarized the necessary
criteria to issue a mandamus order in Canada (Attorney General) v
Arsenault, 2009 FCA 300 at para 32:
1. There must be a public legal duty to act;
2. The duty must be owed to the applicant;
3. There is a clear right to the performance of that duty, in
particular:
(a) the applicant has satisfied all conditions precedent giving rise to
the duty;
(b) here was a prior demand for performance of the duty, a reasonable
time to comply with the demand, and a subsequent refusal which can be either
expressed or implied;
4. Where the duty sought to be enforced is discretionary, the following
rules apply:
(a) in exercising a discretion, the decision-maker must not act in a
manner which can be characterized as “unfair”, “oppressive”
or demonstrate “flagrant
impropriety” or “bad faith”;
(b) mandamus is unavailable if the decision-maker’s discretion is
characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;
(c) in the exercise of a “fettered” discretion, the
decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;
(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and
(e) mandamus is only available when the decision-maker’s discretion is “spent”;
i.e., the applicant has a vested right to the performance of the duty;
5. No other adequate remedy is available to the applicant;
6. The order sought will be of some practical value or effect;
7. The court in the exercise of its discretion finds no equitable bar
to the relief sought;
8. On a “balance of
convenience” an order in the nature of mandamus
favours the applicant.
[53]
I do not find that the Applicant has met the
requirements of the third part of this analysis since it is certainly possible
that, once additional evidence is obtained when the matter is returned for
further investigation, the Respondent’s complaint may nonetheless require
further inquiry.
IX.
Conclusion
[54]
This Court will not dismiss the complaint
through the issuance of a mandamus order. Rather, it will, in light of
the above, grant the Applicant its application for judicial review and return
the matter to the same Investigator, given the significant work already done on
the file, assuming her availability.
X.
Costs
[55]
The parties requested reviewing this judgment
before providing their submissions on costs. If the parties are unable to
agree to costs between themselves, they may make brief written submissions on
costs (a maximum of three pages each), within 20 days from the date of this
judgment.
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