Docket:
T-550-16
Citation:
2017 FC 633
Ottawa, Ontario, June 29, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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MEI (VICKY)
WONG
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Applicant
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and
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PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision by the Canadian Human Rights Commission [the Commission], dated
February 24, 2016, in which the Commission dismissed the Applicant’s complaint
of discrimination made under section 7 of the Canadian Human Rights Act,
RSC, 1985, c H-6 [the Act]. Section 7 provides that in the course of
employment, it is a discriminatory practice to differentiate adversely in
relation to an employee on a prohibited ground of discrimination. “Sex” [or “gender”] is
one such ground of discrimination.
[2]
The Applicant, a mechanical engineer with Public
Works and Government Services Canada [PWGSC]’s Pacific Region Office,
complained to the Commission that she was discriminated against by her employer
on the basis of her gender since returning from maternity leave in June 2009.
In particular, she complained that when she returned, she was treated
differently with respect to the nature of her duties and workload, her
advancement opportunities and discipline.
[3]
After investigating the matter and
unsuccessfully attempting to settle it through conciliation, the Commission
found that although there was evidence that the Applicant had been treated
differently, a reasonable explanation for the differential treatment that is
not a pretext for discrimination had been provided by the Respondent. As a
result, it dismissed the complaint since it was satisfied, pursuant to
subparagraph 44(3)(b)(i) of the Act, that an inquiry by the Canadian Human
Rights Tribunal was not warranted.
[4]
The Applicant claims that the Commission’s
decision is flawed in three respects. First, she says that she was denied
procedural fairness when the Commission’s investigator refused to interview her
manager, Mr. Ted Leung, as well as some of the witnesses she had identified as
people having relevant evidence regarding the discrimination she experienced.
Second, she contends that the Commission erred in law by improperly applying
the test for a prima facie case of discrimination. Finally, she submits
that the Commission based its decision on erroneous findings of fact.
II.
Background
[5]
The Applicant is a mechanical engineer. She
joined PWGSC’s Mechanical Engineering Group in Vancouver in June 2001. She was
hired as a level 3 junior mechanical engineer [ENG3]. The Applicant is the only
woman engineer in the Mechanical Engineering Group. The Applicant was under the
supervision of Mr. Leung from 2001 until the later went on medical leave in
2011. At the time of his departure, Mr. Leung was the Regional Manager of the
Mechanical Engineering Group.
[6]
In June 2006, the Applicant went on the first of
her two maternity leaves. When she got back to work in June 2007, she returned
to her former position of ENG3 in the Mechanical Engineering Group. Then, in
June 2008, she went on her second maternity leave but before she did, she
requested a job classification desk audit as she thought she was performing the
tasks and duties of an ENG4 level and that her position should be reclassified
accordingly. That request was eventually denied.
[7]
When she got back to work from her second
maternity leave in June 2009, the Applicant claims that although she returned
to her former position, there were significant changes in her duties and
responsibilities. First, she says that she was assigned fewer projects. In
particular, she contends that Mr. Leung refused to reassign projects she was
working on before her maternity leave, including projects of ENG4 level for
which, according to what Mr. Leung allegedly said to her, she needed “re-familiarization”. She further claims that Mr.
Leung assigned new projects to two casual employees hired while she was on
leave instead of to her. As a result, the Applicant contends that she was only
given little work and struggled to meet billable rate targets. As of September
14, 2009, the Applicant had a billing rate of 16.57% compared to billable rates
of 37.2%, 58.13%, 62.54%, 63.21% and 73.57% for the five male engineers within
the Mechanical Engineering Group.
[8]
Second, the Applicant claims she was subjected
to supervision that had not existed prior to her second maternity leave. Third,
she says that the Respondent deliberately denied her work and career
advancement opportunities by having external competitive searches to fill an
ENG4 position when one became available instead of appointing her to the
position without a search.
[9]
Finally, the Applicant alleges that she received
a letter of reprimand in July 2009 for refusing to go to a Corrections Services
Canada [CSC] site as part of an assignment for doing design work for the site.
She says that she had never been disciplined prior to this and that this
disciplinary action was unwarranted.
[10]
The Applicant filed her complaint with the
Commission on December 13, 2012, alleging that these changes in her work
environment and events upon her return from maternity leave in June 2009 were
the result of discrimination based on her gender. Initially, the Commission
declined to deal with the complaint on the ground that the Applicant had
grievance procedures available to her before turning to the Commission. Once
the grievance process was completed, the Applicant requested the Commission to
process her compliant. On August 7, 2013, the Commission agreed to deal with
the Applicant’s complaint and, as empowered by paragraph 43(1) of the Act, assigned
an investigator to the file [the Investigator].
[11]
The Investigator conducted her investigation
throughout the year 2014, interviewing the Applicant and 10 other witnesses in
addition to reviewing the documentation submitted by both parties. On December
5, 2014, she released her investigation report [the Report]. She accepted most
of the Applicant’s claim that she had been treated differently upon returning
from her second maternity leave. However, she found that there was insufficient
evidence to support a finding that the differential treatment was related to
the Applicant’s gender.
[12]
More particularly, the Investigator found that
the Respondent had provided a reasonable explanation for the number of projects
being assigned to the Applicant that is not a pretext for discrimination based
on gender. She relied on evidence that:
a)
CSC projects accounted for a very large portion
of the projects handled by the Mechanical Engineering Group at the time and the
Applicant was unable to work on those projects due to a prior traumatic
experience;
b)
The Mechanical Engineering Group’s business is
cyclical such that it is not unusual for there to be less work in the first few
months of the fiscal year, which begins on April 1st and ends on
March 31st; and
c)
There had been a change in the nature of the
work being done by the Mechanical Engineering Group in that the Group was doing
less design work in-house and more work reviewing the work of consultants
which, in turn, required a higher level of engineer and supervision.
(Applicant’s Record, p. 039, at para 74)
[13]
The Investigator reached a similar conclusion
regarding the level of supervision the Applicant found herself subjected to
when she returned from her second maternity leave. It appeared “more probable than not” to the Investigator that the
reason the Applicant was subjected to more supervision after her return to work
in June 2009 “was because she challenged her level with
the desk audit and later brought a grievance, and the respondent thereafter
wanted to ensure that her work was at an ENG3 level, which does require more
supervision than an ENG4” (Applicant’s Record, p. 040, at para 81).
[14]
With respect to the Applicant’s claim that she
was denied advancement opportunities, the Investigator noted that the Applicant
had not applied for the ENG4 position that became available in 2010-2011 and
declined an offer to be the acting ENG4 in 2012. She also found that the
evidence gathered did not establish a link between the processes chosen by the
Respondent to fill vacant ENG4 positions and the fact the Applicant is a woman.
In particular, the Investigator found that there was nothing about the comment
made by Mr. Leung to the Applicant, when she asked for his support for a
promotion to the ENG4 level in 2007, establishing such a link. According to the
Applicant, Mr. Leung responded to her request by saying “there will be none of this before [my] retirement”
(Applicant’s Record, p. 036, at para 51).
[15]
Finally, the Investigator did not see a link
either between the Applicant’s gender and the letter of reprimand the Applicant
received in July 2009. She noted that the Applicant received that letter
because she had refused to complete a report on a CSC project on the basis that
she believed the technician sent to take measurements was unqualified. The
Applicant had refused to go take measurements herself due to a prior traumatic
experience in July 2007 following which it was agreed that she would no longer
be assigned site visits at CSC facilities. The Applicant grieved that reprimand
letter and the matter proceeded to a grievance hearing on April 26, 2010. The
reprimand letter was upheld.
[16]
The Applicant told the Investigator that this
disciplinary action was discriminatory because her male colleagues were not
being disciplined for what she perceived to be abusive behaviour towards Mr.
Leung such as swearing at him, hitting the back of his head and kicking his
chair.
[17]
The Investigator concluded that a disagreement
between the Applicant and Mr. Leung about the appropriateness of having another
individual complete the drawings for the Applicant’s report appeared to be at
the root of the discipline, not the Applicant’s gender. She also determined
that the reason for the Applicant’s discipline - insubordination - was
sufficiently dissimilar to the other employees’ alleged behaviour toward Mr.
Leung to establish that there was differential treatment linked to the
Applicant’s gender (Applicant’s Record, p. 037, at para 59).
[18]
In the closing paragraphs of the Report, the
Investigator indicated that Mr. Leung was not available to be interviewed for
this investigation but that despite this, she was satisfied that there was
other relevant evidence supporting her conclusions (Applicant’s Record, p. 041,
at para 87). At the outset of the Report, the Investigator noted that both
parties had confirmed that Mr. Leung “went on a
medical leave for a serious illness in 2011 and that he ha[d] not returned to
work” (Applicant’s Record, p. 029, at para 3).
[19]
Both parties responded in writing to the Report’s
findings in January 2015. On March 10, 2015, the Commission appointed
a conciliator pursuant to section 47 of the Act. In the course of the
conciliation process, the Applicant received a settlement offer from the
Respondent. That offer was declined by the Applicant as she felt it did not
compensate her for the extensive discrimination she had allegedly experienced
over the years and for the financial loss she had suffered by the Respondent’s
refusal to pay her at the ENG4 level.
[20]
On February 24, 2016, with the conciliation process
proving unfruitful, the Commission, based on the findings, conclusions and
recommendation of the Report, dismissed the Applicant’s complaint on the ground
that having regard to all the circumstances, no further inquiry into said
complaint was warranted.
[21]
As indicated at the outset of these Reasons, the
Applicant claims that the Commission’s decision shall be set aside on the basis
that the Commission breached the duty of procedural fairness it owed to her
when the Investigator refused to interview some witnesses, including Mr. Leung,
misapplied the test for a prima facie case of discrimination and made a
number of erroneous findings of fact.
[22]
The Respondent acknowledges that the Applicant
has experienced some workplace issues and disputes in recent years. However, it
claims that the evidence that was before the Commission does not support that
any of these issues relate to the Applicant’s gender or return to work from
maternity leave.
III.
Issues and Standard of Review
[23]
The present case raises three issues; namely:
1)
Was the level of procedural fairness owed to the
Applicant met?
2)
Did the Commission apply the correct legal test
in screening out the Applicant’s complaint?
3)
Were the Commission’s findings reasonable?
[24]
The Applicant’s allegations that the Commission
breached its duty of procedural fairness must be review on a standard of
correctness (Tutty v Canada (Attorney General), 2011 FC 57 at para 14 [Tutty];
Mission Institution v Khela, 2014 SCC 24; [2014] 1 S.C.R. 502 at para 79; Joshi
v Canadian Imperial Bank of Commerce, 2014 FC 552, at para 55; Guerrier
v Canadian Imperial Bank of Commerce, 2013 FC 937, at para 7).
[25]
The issue of whether the Commission applied the
correct legal test in deciding whether further inquiry is warranted or not is also
reviewable on a standard of correctness (Walsh v Canada (Attorney General),
2015 FC 230, at para 20).
[26]
As to the third issue, the applicable standard
of review is reasonableness (Ritchie v Canada (Attorney General), 2016
FC 527 at para 28 [Ritchie]; Tutty, at para 14, Dupuis v Canada
(Attorney General), 2010 FC 511 at paras 9-10; Sketchley v Canada
(Attorney General), 2005 FCA 404 at para 47 [Sketchley]). As is well
established, the standard of reasonableness is highly deferential (Ritchie,
at para 28; Rabah v Canada (Attorney General), 2001 FCT 1234 at para 9).
Thus, the Court will only intervene if the Commission’s findings do not fall
within a range of possible, acceptable outcomes (Dunsmuir v New Brunswick,
2008 SCC 9, at para 47 [Dunsmuir]). In a case like the present one, where
the Commission merely advise the parties of its determination, the investigator’s
report is deemed to constitute the Commission’s reasons for decision (Sketchley,
at para 37).
[27]
Before I begin the analysis, it is important to
bear in mind that in reviewing a decision dismissing a complaint on the basis
that no further inquiry is warranted, the Court must be mindful of the
Commission’s role under section 44 of the Act which has long been described as
a screening function (Cooper v Canada (Human Rights Commission), [1996]
3 SCR 854, at para 53, [1996] SCJ No 115 (QL)). This role, in any given
case, is to determine whether an inquiry by the Canadian Human Rights Tribunal
is warranted having regard to all the circumstances of the case, not “to determine if the complaint is made out” (Cooper,
above at paras 52-53; Syndicat des employés de production du Québec et de l’Acadie
v Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp
898-899, [1989] SCJ No 103; Herbert v Canada (Attorney General), 2008 FC
969 at para 16 [Hebert]).
[28]
In exercising that role, the Commission is
entrusted with broad discretionary powers (Halifax (Regional Municipality) v
Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras 21 and 25,
[2012] 1 S.C.R. 364) which were once described as providing it with “a remarkable degree of latitude” (Walsh v Canada
(Attorney General), 2015 FC 230, at para 19, quoting from Bell Canada v
Communications, Energy and Paperworkers Union of Canada, [1999] 1 FC 113
(CA), at para 38).
IV.
Analysis
A.
No Breach of Procedural Fairness
[29]
It is now firmly established that in order to be
procedurally fair, the investigation leading to a decision made under section
44 of the Act must be both neutral and thorough (Slattery v Canada (Canadian
Human Rights Commission), [1994] 2 FC 574, at para 50 [Slattery]).
As to the thoroughness of the investigation, the Court in Slattery
observed that it is only “where unreasonable omissions
are made, for example where an investigator failed to investigate obviously
crucial evidence, that judicial review is warranted”. Evidence is “obviously crucial” in that context where “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], citing Beauregard v Canada Post,
2005 FC 1383, at para 21).
[30]
The Applicant’s main contention in this regard
is the Investigator’s alleged failure to interview Mr. Leung. She says that
without having interviewed Mr. Leung, the Investigator could not have properly
determined what the actual motivating factors and explanations were for her
differential treatment. She claims that the present situation is no different
from those in Sanderson v Canada (Attorney General), 2006 FC 447 [Sanderson]
and Gravelle v Canada (Attorney General), 2006 FC 251 [Gravelle],
where this Court held that the failure on the part of the Commission’s
investigator to interview key witnesses, that is individuals who were “central players” in the events giving rise to the
complaint, resulted in the investigation not meeting the thoroughness
threshold.
[31]
Here, Mr. Leung is no doubt a “central player” in the events that led to the
Applicant’s complaint - the Respondent is not denying it - but it is equally
clear in my view that the circumstances leading to Mr. Leung not being
interviewed differ significantly from those that led the investigators in Sanderson
and Gravelle not to interview key witnesses. Indeed, contrary to what
was the case in Sanderson and Gravelle, the evidence on record
shows that Mr. Leung was simply not available to be interviewed during the
whole time the Investigator conducted her investigation due to a serious
illness. There seemed to be an implied common understanding between the parties
that such was the case when the Investigator noted at the outset of the Report
that “[b]oth parties confirm that [Mr. Leung] went on a
medical leave for a serious illness in 2011 and that he had not returned to work”.
[32]
This, in my view, is reinforced by the fact the
Applicant did not raise the issue that Mr. Leung ought to have been
interviewed in the course of the investigation when she responded to the Report
in January 2015. Rather, she requested to “be given an
opportunity to call evidence and to cross-examine the managers who try to explain
away [her] mistreatment” (Certified Tribunal Record, at p. 56). In other
words, she did not ask or push at the time for the Investigator to interview
Mr. Leung.
[33]
This is further reinforced by the Applicant’s
actual compliant form, dated December 13, 2012, where she indicated
that Mr. Leung was away on sick leave and would be on such leave until his
retirement. One could reasonably infer that the Applicant implicitly recognized
that Mr. Leung would be unavailable for an interview by the Investigator
and that this is why she focussed on other managers in her response to the
Report.
[34]
I believe this inference is confirmed by the
Applicant’s submissions made in the course of the conciliation process held in
2015. Hence, on September 28, 2015, in a letter addressed to the conciliator,
the Applicant asserted that Mr. Leung had fully recovered as evidenced by his
recent attendance to two retirement parties organized by the Respondent, one in
July 2015 and one in September 2015, and his involvement in the Respondent’s
business forums. It is only then that she requested “to
be given an opportunity to call evidence and to cross-examine Mr. Leung and
other managers who try to explain away [her] mistreatment”. It is clear
that the Applicant’s focus changed from simply targeting the “managers who try to explain away [her] mistreatment”
in January 2015 to include Mr. Leung specifically in September 2015 when she
realized that he had recovered.
[35]
However, the fact remains that until September
2015, she had submitted no evidence that Mr. Leung had recovered or that he was
available to be interviewed. Thus, I do not believe that the Investigator
failed to uphold the thoroughness standard established in Slattery in
concluding, in light of the evidence before her, that Mr. Leung was unavailable
to be interviewed in the course of the investigation as he was on sick leave
for a serious medical condition. In other words, the Investigator cannot be
faulted for not interviewing Mr. Leung.
[36]
Furthermore, it was for the Applicant to submit
arguments that Mr. Leung had recovered and was available for an interview
before the Commission rendered its decision on February 24, 2016.
Whereas she raised the issue in her submissions to the conciliator, whose role
is to attempt to bring about a settlement of the complaint, not to assist the
Commission in determining whether further inquiry into said complaint is
warranted, she failed to bring it to the Commission’s attention once the
conciliation process failed.
[37]
One must keep in mind that in determining
whether an investigator failed to investigate crucial evidence, the Court “must place itself at the time of the investigation and
consider the information provided by the complainant to the investigator”
(Gosal, at para 54). As the Respondent correctly points out, the
Investigator, as required by this Court’s jurisprudence, did provide a
reasonable justification for not interviewing Mr. Leung (Utility Transport
International Inc v Kingsley, 2009 FC 270, at para 44). In such context,
she relied on other significant evidence from ten other PWGSC employees which,
despite Mr. Leung not being interviewed, supported, according to her, the
conclusions reached in the Report.
[38]
I am therefore satisfied that neither the
Commission nor the Investigator breached the duty of procedural fairness owed
to the Applicant because Mr. Leung was not interviewed at the investigation
stage of the Applicant’s complaint.
[39]
The Applicant also claims that the investigation
lacked in thoroughness because the Investigator only interviewed two of her
seven witnesses. I cannot agree with this contention as I am not satisfied that
the Applicant has demonstrated that these witnesses would have provided “obviously crucial evidence”. Rather, the Report
indicates that the Applicant herself told the Investigator that all her
witnesses would provide similar evidence.
[40]
As is well established, an investigation will
not lack in thoroughness only because the investigator has not interviewed each
and every person suggested by the parties (Slattery, at para 70)
The requirement for thoroughness in investigations must also be considered in
light of the Commission’s administrative and financial realities, which means,
among other things, that its investigations need not be perfect. As the Federal
Court of Appeal observed in Tahmourpour v.Canada (Solicitor General),
2005 FCA 113:
[39] Any judicial review of the
Commission’s procedure must recognize that the agency is master of its own process
and must be afforded considerable latitude in the way that it conducts its
investigations. An investigation into a human rights complaint cannot be held
to a standard of perfection; it is not required to turn every stone. The
Commission’s resources are limited and its case load is heavy. It must
therefore balance the interests of complainants in the fullest possible
investigation and the demands of administrative efficacy. [Citations omitted]
[41]
But more importantly, as pointed out by the
Respondent, for the Court to intervene, the Applicant ought to have established
that there were fundamental flaws in the Report that could not have been
remedied by her submissions in response to it (Eadie v MTS. Inc., 2015
FCA 173 at para 90). In Slattery, the Court emphasized that the
Commission must be the master of its own procedure and that it ought to
interfere with the way the Commission conducted the investigation only where
the investigation is “clearly deficient”:
70 The fact that the investigator did
not interview each and every witness that the applicant would have liked her to
and the fact that the conclusion reached by the investigator did not address
each and every alleged incident of discrimination are not in and of themselves
fatal as well. This is particularly the case where the applicant has the
opportunity to fill in gaps left by the investigator in subsequent submissions
of her own. In the absence of guiding regulations, the investigator, much like
the CHRC, must be master of his own procedure, and judicial review of an
allegedly deficient investigation should only be warranted where the
investigation is clearly deficient. In the case at bar I find that the
investigator did not fail to address any fundamental aspect of the applicant’s
complaint, as it was worded, nor were any other, more minor but relevant points
inadequately dealt with that could not be dealt with in the applicant’s
responding submissions.
[42]
As the Respondent puts it, the Applicant did not
specify what specific information the non-interviewed witnesses would have
provided nor did she indicate that she could not obtain that evidence herself
from them in order to fill the alleged gaps in her own submissions. Therefore,
I do not believe that the Investigator’s decision to only interview two of the
Applicant’s seven witnesses, in the absence of arguments indicating the “crucial” nature of those witnesses’ evidence or the
Applicant’s inability to deal with that evidence in her responding submissions,
amounts to a breach of procedural fairness.
B.
The Test for Prima Facie Discrimination
[43]
The Applicant submits that the Investigator
failed to properly apply the test for prima facie discrimination. She
claims that all that was required of her was to establish evidence that, if
believed, would suffice to justify a finding of discrimination and that as a
result, the Respondent’s submissions in response to the Report ought not to
have been considered.
[44]
As I indicated in Abi-Mansour v Canada
(Revenue Agency), 2015 FC 883, such contention, in my view, cannot stand
when made in the context of the exercise by the Commission of its screening
function:
[38] First, [the applicant] says that
the Investigator applied the wrong test in determining whether the complaint
gave rise to a prima facie case of discrimination. In particular, he
claims that the Investigator ought not to have considered [the respondent]’s
evidence before determining whether to recommend or not that his complaint be
dismissed.
[39] This argument cannot stand. As I
already indicated, the Commission has a screening function. Its role is to
decide whether a further inquiry into a complaint is warranted or not, based on
the evidence adduced before it by both parties. The Commission’s function, at
this stage, is to conduct an investigation, not to establish a prima facie
case of discrimination, which is the role of the Canadian Human Rights
Tribunal, as evidenced by the Federal Court of Appeal decision in Lincoln v
Bay Ferries ltd, 2004 FCA 204, a case on which the Applicant is relying in
support of his contention.
[45]
Again, the role of the Commission, when
exercising its screening function, is to determine whether an inquiry by the
Canadian Human Rights Tribunal is warranted having regard to all the
circumstances of the complaint. The central component of that role is that of
assessing “whether there is a reasonable basis in the
evidence for proceeding to the next stage”, not “to
determine if the complaint is made out” which is for the Canadian Human
Rights Tribunal to decide (Cooper v Canada (Human Rights Commission),
[1996] 3 S.C.R. 854, at paras 52-53; Syndicat des employés de production
du Québec et de l'Acadie v Canada (Canadian Human Rights Commission),
[1989] 2 S.C.R. 879, at p. 898-899. The issue for the Court in the present matter
is therefore to determine whether the Commission’s decision not to proceed to
the next stage, that is to not refer the Applicant’s complaint to the Canadian
Human Rights Tribunal for further inquiry, was reasonable on all the
evidence before it.
[46]
For the reasons that follow, I find that the
Commission’s decision was reasonable in regard to all the circumstances of the
case.
C.
The Commission’s Decision is Reasonable
[47]
The Applicant claims that despite not
interviewing key witnesses, the Commission improperly concluded that the Respondent
provided a reasonable explanation for its differential treatment towards her
that was not a pretext for discrimination. In particular, she contends that the
acceptance of the Respondent’s explanations resulted in at least four erroneous
findings of fact, that is:
a)
That she was not performing ENG4 level work
prior to her second maternity leave;
b)
That CSC projects accounted for a very large
portion of projects handled by the Mechanical Engineering Group and that she
was unable to work on these projects;
c)
That the nature of the Mechanical Engineering
Group’s business is cyclical such that it is not unusual for there to be less
work in the first few months of the fiscal year; and
d)
That there was a change in the type of work
being done by the Mechanical Engineering Group as it began to outsource
projects instead of doing them in-house, a change which required a higher level
of supervision by higher level engineers.
[48]
The Applicant asserts that the Investigator
arrived at these findings without giving due weight to her evidence. However, I
note that aside from making that assertion, the Applicant has provided little,
if no, details, as to how the Investigator might have erred in this respect.
[49]
It is important to keep in mind at this stage of
the analysis that the role of the Court on judicial review is not to reweigh
the evidence that was before the decision-maker but rather to determine if the
decision-maker’s conclusions fall within a range of possible acceptable
outcomes (Dunsmuir, at para 47). I believe they do here.
[50]
First, regarding the Applicant’s level of work,
it was, in my view, reasonably open to the Investigator to consider - and give
some weight to - the results of the desk audit requested by the Applicant prior
to her departure on her second maternity leave. As indicated previously, that
audit concluded that the Applicant was not performing ENG4 level work prior to
leaving for a second maternity leave although the Investigator noted that the
Applicant had performed some work at that level in an acting capacity. The
Investigator also noted that the Applicant’s union did not grieve the audit
which, as the Respondent suggests, lends support to the outcome of the audit.
[51]
Therefore, I see no reason to interfere with the
Investigator’s finding that the Applicant has failed to show differential
treatment on the basis of her gender with regards to the level of her work
projects as the desk audit the Investigator was entitled to rely on clearly
established that the Applicant was performing work at an ENG 3 level prior to
her second maternity leave.
[52]
Second, with respect to the Investigator’s
finding respecting the significant portion of CSC projects handled by the
Mechanical Engineering Group and the Applicant’s reluctance to work on these
projects, I agree with the Respondent that there is ample evidence on record
supporting that finding. The Investigator had before her evidence from the
acting Regional Manager for the Mechanical Engineering Group, that from 2011 to
2014, 70-80% of the projects assigned to the Group were CSC projects. Further,
it is difficult to give much weight to the Applicant’s contention that CSC
projects did not account for a significant portion of the Group’s workload when
she submitted the Investigator an email, dated June 8, 2009, in which she wrote:
“I understand currently our mechanical group is low in
workload. CSC projects are the only ones that are available. I am sorry that I
can’t help you with these projects”.
[53]
It was therefore reasonably opened to the
Investigator to rely on the acting Regional Manager’s evidence on the CSC
projects issue and to infer from that email that the Applicant was unable to
work on these projects. As indicated previously, there was evidence before the
Investigator that the Applicant had suffered a traumatic experience in July
2007 during a visit at a CSC facility for work related purposes following which
it was agreed that she would no longer be assigned site visits at such
facilities.
[54]
Third, as to the cyclical nature of PWGSC’s
work, the Investigator had evidence before her that there is frequently a delay
to starting projects in the early part of each fiscal year, which extends from
April 1st to March 31st, as government departments
finalize any budgetary issues. A colleague of the Applicant within the
Mechanical Engineering Group, Mr. Patrick Berard, confirmed that work is
typically slow from April to July and that things start to pick up in August
and September as funding comes through the federal government.
[55]
I have not seen any evidence from the Applicant
indicating that the Investigator’s conclusion that her work is cyclical in
nature is unfounded. Quite the contrary, as I cannot help but notice and draw a
negative inference from the fact that in her submissions in response to the
Report, the Applicant agreed with Mr. Preepital Paul, the Regional Manager of
PWGSC’s Architecture and Engineering Group for the years 2010 and 2011, that “the year is off to a slow start and there is not a lot of
work being done in the first quarter such that employees’ billable rate may be
low” (Applicant’s Record, at p 165, at para 68).
[56]
Again, I see no reason to interfere with the
Investigator’s finding regarding the cyclical nature of the Applicant and her
colleagues’ work.
[57]
Finally, respecting the Applicant’s contention
that the Investigator erred in concluding that there has been a change in the
nature of the Mechanical Engineering Group’s work requiring a higher level
engineer as that work - contracted out work - required a higher level of
supervision, I cannot help but notice again that she has not brought forward
evidence supporting her claim. Since there was evidence before the Investigator
that reasonably supported that finding, I see no basis to intervene.
[58]
Again, it is clear from the record that the
Applicant experienced some workplace issues and disputes in recent years with
her supervisors and managers, particularly since coming back from her second
maternity leave in June 2009. However, when it comes to determining whether
these events occurred because of some discriminatory practices, it is important
to distinguish between evidence of primary fact and evidence respecting
opinions and personal beliefs (Varma v Canada Post Corp, 1995
CarswellNat 2383, at para 13).
[59]
Here, I agree with the Respondent’s assessment
that it was reasonably opened to the Investigator, and the Commission after
her, to find that the Applicant provided insufficient evidence to support her
personal belief that she was discriminated against on the basis of her gender.
As a matter of fact, there is evidence on record that shows that the Applicant
acknowledged that there could have been other reasons for being treated
differently at work, the main one being management retaliating against her for
requesting a desk audit and for filing a grievance.
[60]
The following excerpts from the Applicant’s
Record, which are reproduced at paragraph 56 of the Respondent’s written
submissions before this Court, are quite revealing in this respect:
o “She thought there were two possible explanations for Mr.
Leung’s Treatment of her, namely her second maternity leave, or the desk audit
and grievance.” (page 147 of the [Applicant’s Record])
o “Mr. Leung retaliated against me because I have asked for a
promotion to ENENG-4.” (page 155 [of the Applicant’s Record])
o “I grieved, Mr. Leung was upset over my grievance and the desk
audit, and as a result, he was taking steps to deny me work, including the
ENENG-4 work I used to perform and employment benefits.” (page 156 [of the
Applicant’s Record])
o “He retaliated against me for claiming that I should be
employed at the ENG4 level and paid at that level.” (page 163 [of the
Applicant’s Record])
o “Mr. Leung is very adamant on asking me only to work on this
project when I have disability while there are other male engineers (including
casuals) who could also work on this project.” (page 164 [of the Applicant’s
Record])
o “It seems more probable than not that Mr. Leung’s refusal at
that time was because the work was at a higher level and he did not want to
support this as it would contradict the desk audit.” (page 164 [of the
Applicant’s Record])
o “It is clear his actions are retaliatory and his objective is
to discipline me.” (page 164 [of the Applicant’s Record])
o “Mr. Leung deliberately kept projects away from me because I
filed a desk audit.” (page 166 [of the Applicant’s Record])
o “It is clear that Mr. Leung is upset over my grievance and the
desk audit, and as a result, he is taking steps to deny me work, including the
ENG4 work and employment benefits.” (page 167 [of the Applicant’s Record])
o “Due to the desk audit and the grievance, the evidence is
clear that Mr. Leung has retailed against me…” (page 167 [of the Applicant’s
Record])
[61]
Retaliation in the workplace is no doubt an
undesirable and reprehensible practice but it does not necessarily amount to a
discriminatory practice within the meaning of the Act. In light of the evidence
gathered by the Investigator, it was reasonable for the Commission to conclude
that the Applicant’s differential treatment was not the result of
discrimination based on the Applicant’s gender. In other words, this finding
falls, in my view, within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Dunsmuir, at para 47).
[62]
For all these reasons, the Applicant’s judicial review
application is dismissed. Given the outcome of the present proceedings, costs
are awarded to the Respondent in an amount set at $2,240.00, plus reasonable
disbursements, as agreed to by the parties.
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