Date: 20081103
Docket: A-576-07
Citation: 2008 FCA 340
CORAM: DÉCARY
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
GLEN MORRISON
Appellant
and
HSBC BANK OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This is an
appeal of the judgment of Justice Gibson (2007 FC 1232) dismissing the
application of Mr. Glen Morrison for judicial review of a decision of the
Canadian Human Rights Commission that dismissed his discrimination complaint against
HSBC Bank of Canada. For the reasons that follow, I would dismiss this appeal
without costs.
Facts
[2]
Mr.
Morrison is a Canadian citizen of Caribbean descent. Between June of 2004 and September
of 2005 he was a customer of the bank at its branch in Mississauga, Ontario, where he maintained an account in
British currency (a GBP account). At the relevant time, the branch had 9,000
customers, 75 of whom had a GBP account as their only account. The policy of
the bank was not to issue a bank card to a customer whose only account was a
foreign currency account. For that reason, Mr. Morrison had never been issued a
bank card. Nevertheless, Mr. Morrison transacted business at the bank branch many
times without encountering any problems.
[3]
On September
16, 2005, Mr. Morrison went to the bank in person. He says that a number of
customers were there, but he was the only black person. He joined the line of
customers. When it was his turn he approached the counter, gave a customer
service representative his passbook and asked to withdraw $2,500 in cash. Normally,
a customer wishing to withdraw cash is asked to sign a transaction document. A customer
service representative uses the bank’s centralized computer system to check the
customer’s signature and account balance. No sample signature cards are
maintained at the branch.
[4]
However,
the bank’s centralized computer system was not functioning on September 16,
2005. There is a dispute as to whether the customer service representative told
Mr. Morrison that the computer system was down. He says that if he had been
told that, he would have left and come back on another day. In any event, the
fact that the computer was down meant that the customer service representative was
required to use an alternative procedure for verifying Mr. Morrison’s identity.
She asked Mr. Morrison to produce two items of photo identification. He
produced his driver’s license and his citizenship card, which bore his photo
and his signature but had been issued over 30 years ago.
[5]
Mr.
Morrison says that he did not notice any other customers being asked to produce
identification documents. Of course, he cannot have known whether the other
customers had been asked to produce such documents or whether they had a bank
card or were personally known to the bank staff. Nor can he have known whether
they were withdrawing cash of a magnitude comparable to the withdrawal made by
Mr. Morrison.
[6]
Mr.
Morrison’s perception was that the customer service representative scrutinized
his identification documents very closely, “as if she was an immigration
officer at an airport”. She may well have looked at them closely, but that
might have been because she was blind in one eye, a fact that was not known to
Mr. Morrison at the time. In any event, she took his documents and conferred
with another bank employee, subsequently identified as the senior customer
service manager, for a period of time that Mr. Morrison perceived to be
lengthy.
[7]
The customer
service representative returned to the counter and asked Mr. Morrison to sign a
transaction document. He did so. The customer service representative said that his
signature did not resemble the signature on his citizenship card. Although he
pointed out that he had signed his citizenship card some 30 years ago, she was
not satisfied and asked him to sign three more times. By this time, Mr.
Morrison felt that he was the subject of attention from the other customers. He
felt humiliated because he thought he was being treated like someone attempting
to commit a forgery.
[8]
Mr.
Morrison explained to the customer service representative that he had been a
customer of the branch for over 15 months and had been there many times, and
asked for an explanation. He claims that the customer service representative
muttered under her breath “you all look alike”. Later, the customer service
representative was asked about that allegation and denied making that
statement, or anything like it. The customer service representative asked for
another signature, which he refused to give. Finally she gave him his money and
he left.
[9]
Mr.
Morrison attributed his treatment at the bank to his race, colour, or national
or ethnic origin. He decided to complain to the bank. With that in mind, he
returned to the bank a few days later and asked to see the manager. He was told
that the manager was not in. Mr. Morrison expressed his complaint to the senior
customer relations manager, and then closed his account.
[10]
Mr.
Morrison filed his discrimination complaint with the Canadian Human Rights
Commission on September 26, 2005, alleging that the manner in which he was
treated at the bank led him to believe that he had been subject to
discrimination on the basis of race, colour or national or ethnic origin,
contrary to section 5 of the Canadian Human Rights Act, R.S.C. 1985, c.
H-6.
[11]
Mr.
Morrison’s complaint was assigned to an investigator. She interviewed the customer
service representative who dealt with Mr. Morrison on the day in question, the
manager with whom she conferred on that day, the branch manager, and another
customer service representative. The investigator also considered a number of
bank records, including the bank’s business principles and code of ethics, the
bank’s “know your customer” policy, its identification policy, and the
performance reviews of the customer service representative who dealt with Mr.
Morrison.
[12]
In a
report dated August 14, 2006, the investigator reported that, according to the
bank, Mr. Morrison was one of a number of bank customers who was required to
sign documents more than once during the time the bank’s computer system was
down. The bank also said that the customer service representative who dealt
with Mr. Morrison had never been the subject of any similar complaints. The
bank’s position was that the interactions between Mr. Morrison and the customer
service representative on September 16, 2005 were in accordance with the bank’s
policies and procedures. The bank denied that any of the actions taken by the
customer service representative were affected by Mr. Morrison’s race, colour or
national or ethnic origin.
[13]
The
investigator also noted in her report that the evidence does not indicate that Mr.
Morrison suffered adverse consequences as a result of this incident, except
that the withdrawal of his money took longer than normal. Mr. Morrison does not
challenge that conclusion.
[14]
The investigator
concluded that the complaint should be dismissed because the evidence did not
support his allegations of discrimination, or a link between the alleged
incidents and the statutory grounds of discrimination. Mr. Morrison was invited
to comment on the report, which he did on September 5, 2006, submitting among
other things that the investigation was not thorough and did not fairly
consider his complaint. The bank also filed a response.
[15]
By letter
dated November 30, 2006, the Commission advised Mr. Morrison that it had
dismissed his complaint on the grounds stated by the investigator. It is common
ground that, in these circumstances, the Commission is presumed to have adopted
the conclusion and reasoning of the investigator.
[16]
Mr.
Morrison applied to the Federal Court for judicial review of the Commission’s
decision. He questioned the thoroughness and the neutrality of the
investigation. He also argued that the Commission did not correctly apply the
legal test of discrimination, and had made factual errors.
[17]
Justice
Gibson dismissed the application for judicial review. As I read his reasons, he
did so because he concluded, first, that the investigation was thorough and
fair, and second, that it was reasonably open to the investigator, and
therefore the Commission, to find no link between the facts stated in the
complaint and a prohibited ground of discrimination.
Appeal
[18]
The
grounds of appeal as argued by Mr. Morrison’s counsel were somewhat different
from the grounds of appeal stated in the appellant’s memorandum of fact and
law. The respondent did not object to that. The issues will be discussed in the
order in which they were presented at the hearing of the appeal.
(1) Assessment of credibility
by the investigator
[19]
Counsel for
Mr. Morrison argued that the investigator reached her conclusions and made her
recommendation on the basis of her assessment of the credibility of Mr.
Morrison and the bank employees she interviewed, and for that reason the report
and the decision of the Commission cannot stand. This argument is based on the
proposition that it is improper for an investigator to assess credibility. I
express no opinion on whether that proposition is sound as a matter of law. In
my view, this ground of appeal must fail because the report discloses no basis
for finding that the investigator assessed anyone’s credibility.
[20]
The investigator
was required to conduct a fair and thorough investigation to find evidence
relevant to the complaint, and to assess that evidence with a view to
recommending whether the complaint should be dismissed or permitted to proceed
to a hearing. That necessarily required a determination of whether the evidence
was capable of being believed and whether, if believed, it was capable of
proving a fact that was relevant because it could support or defeat the
complaint.
[21]
In the
case of evidence in documentary form, the investigator may consider the
authenticity of the document (an issue that did not arise in this case), and
whether and how the contents of the document were relevant to the complaint.
For example, in this case the investigator considered documents purporting to
represent the bank’s policies in relation to a number of issues, including the
bank’s code of ethics and its instructions to bank staff about the manner in
which the identity of a customer is to be verified. The investigator implicitly
concluded that the documents were relevant because they addressed the standard
by which the bank conducted its affairs, and also the standard by which the
acts of the customer service representative were to be assessed.
[22]
Similarly,
the investigator was required to assess evidence received in the form of the oral
and written statements made to her. In that regard, it was necessary for the
investigator to consider whether the statements of Mr. Morrison and the bank
employees were capable of being believed and whether, if believed, they were capable
of proving a relevant fact.
[23]
In this case,
the investigator was faced with conflicting evidence in relation to two points.
First, Mr. Morrison said that the customer service representative muttered a
comment that Mr. Morrison interpreted as a racial slur, but the customer
service representative denied making the comment. Second, Mr. Morrison said
that he was not told that the bank’s computer system was down, but the customer
service representative says that he was told. It was and remains the position
of Mr. Morrison that the alleged muttered comment was proof that the behaviour
of the customer service representative on the day in question was motivated by
racial prejudice, and that the lack of an explanation offered on that day
supports the same conclusion. It was and remains the position of the bank that the
customer service representative did not make the remark attributed to her, and
that Mr. Morrison was given an explanation for the request for identification
documents and signatures.
[24]
The
investigator described in her report the statements of Mr. Morrison and the
statements of the customer service representative that disclosed the two
factual disputes. She also summarized the evidence about the bank’s computer,
its breakdown for a number of days in September of 2005 (including the day in
question), and the bank’s policies and practices, including its customer
identification policy. However, the investigator did not say or suggest that
she engaged in an assessment of the credibility or Mr. Morrison or the customer
service representative, or that either of the factual disputes should be
resolved in favour of the bank. As I read the investigator’s report, she
decided to recommend the dismissal of Mr. Morrison’s complaint primarily on the
basis of evidence from the bank that, in asking Mr. Morrison for proof of his
identity and for sample signatures, the bank treated Mr. Morrison as they would
have treated any bank customer in similar circumstances.
[25]
The
consequence of the approach taken by the investigator is that the disputed
facts, even if they had been decided in Mr. Morrison’s favour, would not overcome
the bank’s evidence that it was normal, in the circumstances as they existed on
September 16, 2005, for a customer service representative to request and
scrutinize identification documents and sample signatures. It was those
requests that were at the heart of Mr. Morrison’s complaint.
[26]
Justice
Gibson concluded that the recommendation made by the investigator was
reasonably open to her, and that it was reasonably open to the Commission to
accept that recommendation. In my view, his conclusion is not based on any
error of law or any other error that warrants the intervention of this Court.
(2) Thoroughness of the
investigation
[27]
Counsel
for Mr. Morrison argued that the investigator failed to conduct a thorough
investigation because she did not appreciate the significance of the
discourteous treatment of Mr. Morrison, or the significance of the fact
that Mr. Morrison was asked for two items of photo identification, when the
bank’s policy required only one item of photo identification, plus one other
item of identification such as a credit card with a signature. He argued that
the investigator should have attempted to verify Mr. Morrison’s allegation that
no other bank customers were treated as he was, that she should have attempted
to identify other customers who might have witnessed the incident or who might
have been asked for sample signatures while the bank’s computer was down, and
that she should have attempted to find out why the customer service
representative asked for two items of photo identification.
[28]
As I read
the bank’s identification policy, it gave a certain degree of discretion to
customer service representatives. I am not persuaded that it was a breach of
the policy to ask for two items of photo identification.
[29]
As to the
identification of other bank customers, the investigator’s report did not say
whether she asked the bank to identify these other customers. Nor did the report
say or suggest that it would have been difficult or impossible for the bank to
provide that information. Counsel for the bank argued that it could be inferred
that difficulties would have arisen because the computer system was down and
also because disclosing the identities of other bank customers would have raised
difficult privacy questions. I am not prepared to draw any such inference in
the absence of evidence that the question of attempting to identify other
customers was at least raised in the course of the investigation.
[30]
The
question, therefore, is whether the investigation was fatally flawed by the
investigator’s failure to attempt to identify the other bank customers. In my
view, the answer to that question is no.
[31]
It is now
well established that the investigation of a complaint under the Canadian
Human Rights Act must be neutral and thorough. However, the Commission is
entitled to deference in relation to the scope and depth of an investigation. An
investigator is not required to turn over every possible stone, but an investigation
is not thorough if the investigator fails to investigate obviously crucial
evidence: Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574, at
paragraph 55 (affirmed (1996), 205 N.R. 383 (F.C.A.)), Tahmourpour v. Canada (Solicitor General), 2005 FCA 113, at paragraph
8.
[32]
The
investigation of Mr. Morrison’s complaint might well have been more thorough if
the investigator had attempted to identify other customers. However, given the
nature of the complaint and the body of evidence before the investigator, I
cannot conclude that the failure to identify the other customers resulted in an
investigation that lacked evidence that was obviously crucial. I conclude that
Justice Gibson made no error in finding the investigation to be thorough and
fair.
(3) The judge’s comments about another
case
[33]
Justice
Gibson noted in his reasons that, on the day before the hearing of Mr.
Morrison’s application, he heard another application involving a similar
complaint, which he allowed (Powell v. TD Canada Trust, 2007 FC 1227).
He made some comments about the differences between the two applications. It is
argued for Mr. Morrison that it was unfair for Justice Gibson to attempt to distinguish
the two cases on factual grounds without giving Mr. Morrison an opportunity to
make submissions on the point. At the same time, however, counsel for Mr.
Morrison did not suggest that the two cases were so similar that they should
have resulted in the same outcome. I see no merit in this ground of appeal.
Conclusion
[34]
I would
dismiss this appeal. As costs were not sought, none should be awarded.
“K.
Sharlow”
“I
agree.
Robert Décary J.A.”
“I
agree.
J. Edgar Sexton J.A.”
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