Docket: T-1721-15
Citation:
2017 FC 1121
Ottawa, Ontario, December 07, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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KATHARINE GREEN
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Applicant
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and
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ABORIGINAL
AFFAIRS AND NORTHERN DEVELOPMENT CANADA AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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JUDGMENT AND REASONS
[1]
The Applicant, Katharine Green, is the Director of
Research and Policy with the Specific Claims Branch of the Department of
Aboriginal Affairs and Northern Development Canada [AANDC], now the Department
of Indigenous and Northern Affairs. On March 28, 2013 she filed a harassment
grievance against a male colleague (referred to as AW), who was, at that time,
employed as a Senior Policy Advisor with AANDC. On June 9, 2015, Quintet
Consulting [Quintet], an independent investigator retained by AANDC, concluded
that AW’s comments and actions did not amount to harassment under the Treasury
Board Secretariat Policy on Harassment Prevention and Resolution [the Policy].
The Quintet conclusions were endorsed by Joe Wild [Wild], the Senior Assistant
Deputy Minister. On September 11, 2015, also relying upon Quintet’s
conclusions, Hélène Laurendeau, Associate Deputy Minister [Laurendeau],
dismissed Ms. Green’s grievance.
[2]
In this judicial review, Ms. Green argues that
the dismissal of her grievance and the Quintet findings are unreasonable. She
alleges that Quintet misapplied the definition of harassment, failed to make a
finding with respect to one of the more serious allegations of harassment, and
unreasonably concluded that there was no harassment. Ms. Green also alleges
that her procedural fairness rights were not respected in the course of the
harassment investigation which took 27 months to complete.
[3]
This judicial review application was heard with
two related matters filed by Ms. Green being court file numbers T-129-16 and
T-845-16.
[4]
I note that the Applicant has named the
Department of Indigenous and Northern Affairs Canada as a Respondent. Under
Rule 303(2) of the Federal Courts Rules, the proper Respondent in this
case is the Attorney General of Canada, as individual departments cannot be
named as respondents. The style of cause is amended accordingly.
[5]
For the reasons that follow this judicial review
is dismissed.
I.
Background
[6]
On March 28, 2013, Ms. Green filed a harassment
grievance against AW and three others at AANDC regarding events that took place
between 2012 and 2013. Ms. Green alleged that in a discussion with AW, he
stated that he would have other employees’ “guts for
garters.” Ms. Green further alleged that AW sent an inappropriate email
with untrue allegations about Ms. Green and approached Ms. Green to advise her
that she had “serious enemies” who “wanted to eat her liver.”
[7]
In August 2013, the Respondent confirmed that
Quintet had been retained to investigate Ms. Green’s grievance against AW.
[8]
On October 10, 2013, Ms. Green met with Susan
Palmai [Palmai], the investigator for Quintet, and provided documentation to
support her harassment grievance. On October 30, 2013, Ms. Green had an
opportunity to comment on Palmai’s notes from this interview.
[9]
On July 29 and October 23, 2014, AW was
interviewed.
[10]
On March 6, 2015, a preliminary report was
completed by Palmai and submitted to the Respondent for distribution to the
parties for their review and comments. On April 14, 2015, Ms. Green and AW
provided comments on the preliminary report.
[11]
On June 9, 2015 the final Quintet Report [the
Report] was issued.
[12]
The Report framed the incidents of harassment as
follows:
- AW telling a
consultant that sixteen employees left the workplace because of Ms. Green
and telling Ms. Green that “everyone is out to get
you”;
- AW
inappropriately questioning Ms. Green’s assistant regarding Ms. Green’s
cancelled trip to British Columbia, and sending an email to superiors
about the alleged improper planning of the trip;
- AW’s “guts for garters” comments, outlined in Ms.
Green’s original complaint;
- AW spreading
inappropriate rumours about Ms. Green; and
- AW harassing and
threatening Ms. Green by sending a series of untrue, unfounded and
inflammatory remarks to a superior.
[13]
Overall, the Report found that these incidents
did not meet the definition of “harassment” in
the Policy. With respect to the allegations that AW engaged in spreading
false rumors about Ms. Green, the Report concluded that this did not amount to
harassment. Further, regarding the alleged harassment by AW in an email which
outlined personal threats to Ms. Green, the Report concluded that these
allegations were not a personal attack on Ms. Green by AW and therefore did not
constitute harassment. Finally, regarding the various instances of alleged
words and actions which Ms. Green claimed amounted to harassment, the Report
concluded that they, too, did not meet the definition of harassment in the Policy.
[14]
On June 26, 2015, Wild, in a one page letter,
adopted the Quintet Report. Although Mr. Wild noted that the incidents “caused…distress” to Ms. Green, he concluded that they
did not meet the definition of harassment.
[15]
The entire investigative process, from the
submission of her harassment complaint to the decision of Wild took 27 months.
[16]
On July 30, 2015, Ms. Green filed a grievance
under s.208 of the Public Sector Labour Relations Act SC 2003, c 22, s 2
(now the Federal Public Sector Labour Relations Act) in respect of
Wild’s decision.
II.
Decision Under Review
[17]
The decision under review is the September 11,
2015 final level decision of Laurendeau. This decision dismissed the harassment
grievance as unfounded. It also concluded that Ms. Green’s procedural fairness
rights were respected throughout the grievance process, noting that she was
interviewed, had the opportunity to comment on the interim Report, and was
represented by legal counsel throughout. On the issue of the 27 month delay,
the Laurendeau decision accepted that the delays were the result of extenuating
circumstances within the meaning of the Treasury Board Directive on the
Harassment Complaint Process [Directive] which prescribes a 12-month
timeframe for harassment investigations, barring extenuating circumstances.
III.
Issues
[18]
The following issues arise on this application:
- Objections to
the evidence
- Is the decision
reasonable?
- Was there a
breach of procedural fairness?
IV.
Standard of Review
[19]
The standard of review on the merits of the
decision is reasonableness (Marszowski v Canada (Attorney General), 2015
FC 271 at para 37). Here, the Policy and Directive assist in
defining the boundaries of a reasonable decision (Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 72).
[20]
With respect to procedural fairness, this Court
has traditionally applied correctness as the standard of review (Mission
Institution v Khela, 2014 SCC 24 at para 79). However, the Federal Court of
Appeal has recently noted that standard of review on matters of procedural
fairness is in a state of flux (Vavilov v Canada (Citizenship and
Immigration), 2017 FCA 132 at para 11). In some cases, the Federal Court of
Appeal has deferred to the “choice of procedures”
made by administrative decision-makers regarding procedural fairness rights and
therefore have taken a reasonableness approach (Re: Sound v Fitness Industry
Council of Canada, 2014 FCA 48 at paras 39-42).
[21]
This deference is particularly relevant here
where there is discretion in the text of the Directive to extend the
time for an investigation where there are extenuating circumstances.
However for the reasons outlined below, I conclude that Ms. Green has not
established a breach of procedural fairness regardless of the standard of
review applied.
V.
Analysis
A.
Objections to the evidence
[22]
The Respondent objects to this Court considering
various Exhibits attached to the Affidavit of Ms. Green sworn to on November
27, 2015. The Respondent argues that these documents were not before Laurendeau
and are therefore not appropriate to consider on this judicial review.
[23]
As a general rule, on judicial review, the
record for consideration by the court is the same record that was before the
decision-maker (Bekker v Canada, 2004 FCA 186 at para 11) subject to
recognized exceptions (Association of Universities and Colleges of Canada v
Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at
para 20).
[24]
It is recognized that affidavits may sometimes
be necessary to identify procedural defects that cannot be found in the record
(McFadyen v Canada (Attorney General), 2005 FCA 360, at para 15). Here,
Ms. Green makes procedural fairness arguments, and, in order to supplement the
record, the onus is on her to demonstrate how the evidence supporting the
procedural fairness argument was not available at the time of the decision under
review (Bernard v Canada (Revenue Agency) 2015 FCA 263 at para 26 [Bernard]).
[25]
The procedural fairness arguments made by Ms.
Green on judicial review regarding delay are not the same arguments that were
made before Laurendeau, even though the evidence Ms. Green relies upon in
support of these arguments was available to her at the time of Laurendeau’s
decision. The delay had already occurred when Ms. Green made submissions to
Laurendeau. Therefore, these documents do not meet the exception for procedural
matters set out in Bernard, at para 25.
[26]
I therefore agree with the Respondent’s
position, and the following Exhibits and references to those Exhibits in the
paragraphs of the Affidavit of Ms. Green have not been considered for the
purposes of these Reasons:
- Paragraphs 4-26,
inclusive
- Paragraph 35
- Exhibits B-Y,
inclusive
- Exhibit EE
B.
Is the decision reasonable?
[27]
Although the decision under review is the final
level decision of Laurendeau, in reality it is the Report upon which the
Laurendeau decision is based which Ms. Green disputes (Canada (Attorney
General) v Sketchley, 2005 FCA 404 at para 37; Saber & Sone Group v
Canada (National Revenue), 2014 FC 1119 at para 23).
[28]
Although Ms. Green raised a number of issues in
her written submissions, in substance, she focuses on four main issues with
respect to the reasonableness of the Report. First, she argues that the Report
failed to apply the correct definition of harassment. Second, she argues that
the Report failed to make a finding with respect to one of the more offensive
comments made by AW, namely the “eat your liver”
comment. Third, she submits that the investigator’s remaining conclusions that
there was no harassment within the meaning of the Policy are
unreasonable. Finally, Ms. Green alleges that Laurendeau considered irrelevant
factors in her final level decision.
(1)
The Definition of Harassment
[29]
The definition of harassment applied by the
Report is supported by the case law and the Policy itself.
[30]
The definition of harassment in the Policy
is as follows:
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Harassment (harcèlement)
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Harcèlement (harassment)
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improper conduct
by an individual, that is directed at and offensive to another individual in
the workplace, including at any event or any location related to work, and
that the individual knew or ought reasonably to have known would cause
offence or harm. It comprises objectionable act(s), comment(s) or display(s)
that demean, belittle, or cause personal humiliation or embarrassment, and
any act of intimidation or threat. It also includes harassment within the meaning
of the Canadian Human Rights Act (i.e. based on race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability and pardoned conviction).
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comportement inopportun et offensant, d'un individu envers un
autre individu en milieu de travail, y compris pendant toute activité ou dans
tout lieu associé au travail, et dont l'auteur savait ou aurait
raisonnablement dû savoir qu'un tel comportement pouvait offenser ou causer
préjudice. Il comprend tout acte, propos ou exhibition qui diminue, rabaisse,
humilie ou embarrasse une personne, ou tout acte d'intimidation ou de menace.
Il comprend également le harcèlement au sens de la Loi canadienne sur les
droits de la personne (c.-à-d. en raison de la race, l'origine nationale ou
ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle,
l'état matrimonial, la situation de famille, la déficience ou l'état de
personne graciée).
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Harassment is
normally a series of incidents but can be one severe incident which has a
lasting impact on the individual.
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Le harcèlement
est normalement défini comme une série d'incidents mais peut être constitué
d'un seul incident grave lorsqu'il a un impact durable sur l'individu.
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[31]
The Report summarizes the definition of
harassment as follows:
The definition of harassment is fundamental
to the analysis. It means conduct that includes the following necessary
elements:
•
The conduct was improper
•
The conduct was directed at and offensive to the
Complainant; and
•
The Respondent knew or ought reasonably to have
known the conduct would cause offence or harm to the Complainant.
[32]
The Report notes that it considered this
definition, in the context of assessing harassment complaints, as follows:
In order to establish harassment, it is not
enough that the complainant feels harassed…It is important that the evidence
show, on a balance of probabilities, that the complainant has been harassed
according to the definition, and that this would be a logical conclusion of any
reasonable person hearing and viewing the evidence.
Further, it is insufficient that an alleged
conduct may be offensive: it must also be in and of itself improper in the
circumstances…
A certain level of seriousness or repetition
is required to support a conclusion that improper behaviour constitutes
harassment. A single serious incident of improper behaviour, or a series of
less serious incidents, will be found to constitute harassment if a reasonable
person would reach that conclusion. However, an isolated incident of improper
behaviour that is less serious is not likely to constitute harassment.
[33]
It is clear from this analysis that the
investigator considered harassment to have an objective component, and that
harassment is unlikely to be found as a result of an isolated comment.
[34]
Ms. Green argues that this approach to
harassment outlined in the Report is a “watered down”
version of the definition of harassment contained in the Policy.
Therefore, according to Ms. Green, the Report’s entire analysis is flawed.
[35]
It is true that the Report’s definition of
harassment is not a verbatim of the definition of harassment as found in the Policy.
However, the definition in the Report is supported by the case law interpreting
the Policy and similar harassment policies. For example, this Court has
confirmed that harassment contains an objective component. In Ryan v Canada
(Attorney General), 2005 FC 65 at para 29 [Ryan], the Court stated
that all of the allegations in that case had to be considered from a subjective
and objective point of view. In that case, it was “not
enough that Mr. Ryan felt harassed, interfered with, coerced or restricted.”
It was necessary for the Court to take an objective assessment of the
situation.
[36]
Similarly, the arbitral jurisprudence confirms
that harassment is generally a course of conduct viewed objectively rather than
a single act. In Joss v Treasury Board (Agriculture and Agri-Food Canada),
2001 PSSRB 2007 at para 64, the-then Public Service Staff Relations Board
[PSSRB] was faced with arguments pertaining to the definition of harassment in
a previous version of the Policy. The PSSRB concluded that harassment is
generally comprised of “continuous conduct”
which “when regarded in totality are objectionable or
offensive to the person to whom they are directed…” At the same time, as
in Ryan, the PSSRB also concluded that the “objectionable
or offensive nature of the conduct” must be reasonably apparent.
[37]
Considering this case law, the investigator did
not err in concluding that a similar definition of harassment, encompassing an
objective element, applied in this case. The approach to harassment contained
in the Report is further supported by the complexity of the investigation in
this case. Here, the investigator had the contextual dynamic of this work
environment to consider where the superior (Ms. Green) is making harassment
complaints about the conduct of a subordinate (AW).
[38]
The investigator did not err by taking an
approach to the definition of harassment which included contextual factors and
provided an objective orientation for the factors that would be considered in
the course of the investigation. By providing this orientation and contextual
framework, the investigator did not narrow the considerations relevant to a
harassment investigation or narrow the definition of harassment.
[39]
Therefore, as a whole, the Report’s approach to
harassment is reasonable.
(2)
The “Liver”
Comment
[40]
Ms. Green argues that the Report failed to make
a finding with respect to the harassment complaint regarding the “liver” comment.
[41]
In the Report, the “liver”
comment is assessed in reference to Ms. Green’s allegations against AW in the
context of an anonymized email sent in November 2012 to the Minister, the
Deputy Minister, and the Associate Deputy Minister suggesting that Ms. Green
behaved improperly in planning a trip to British Columbia.
[42]
The Report concluded that the evidence did not
establish that AW sent the anonymized email. In reaching this conclusion, the
investigator wrote that AW made the “liver”
comment in the context of telling Ms. Green about this email. Further, the
investigator expressly noted that AW admitted to telling Ms. Green about the “liver” comment, however no finding was made that AW
was the author of the email. Therefore, the Report made a specific finding with
respect to the email. The “liver” comment was
considered in the broader context in which it was made [the anonymized email]. This
allegation was not overlooked by the investigator and is in fact referenced in
the Report.
[43]
Further, Ms. Green herself, in the comments on
the preliminary report, addressed the “liver”
comment in the context of the discussions with AW on the anonymized email. More
importantly, Ms. Green did not specifically address the alleged lack of finding
on the “liver comment” in her grievance
submissions to Laurendeau.
[44]
Furthermore, Ms. Green’s argument that there was
no finding on the “liver” comment is
fundamentally an attack on the adequacy of reasons. The adequacy of reasons is
not a standalone basis for the quashing of a decision (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 17 [Nfld Nurses]. Reasons need not include every
detail that a reviewing judge - or litigant - would prefer (Nfld Nurses,
at para 16).
[45]
The “liver”
comment was investigated and reasonably considered in the Report. The Report
addressed the allegation in the context in which it arose. This does not
constitute reviewable error.
(3)
Remaining Allegations of Harassment
[46]
The Report presents a balanced assessment of the
harassment allegations against AW. The Report notes that AW “used exaggerated and inappropriate language”. With
respect to his conduct, the Report notes that AW “spent
time and energy digging around matters that were not relevant to his duties”.
The Report also notes “substantial and recurring
conflict between Ms. Green and AW.”
[47]
However, the Report states that AW’s comments “were not a personal attack on Ms. Green but rather relate to
his opinion about her performance and style as his supervisor and as such are
not improper.” The Report also concludes that the other allegations
raised by Ms. Green did not constitute harassment under the Policy; in
some cases, (for example, the “guts for garters”
comment) AW’s comments were directed towards others, not Ms. Green. In other
instances, such as the alleged inappropriate questioning of Ms. Green’s
assistant, and other alleged remarks, AW’s comments were not found to rise to
the level of harassing behaviour set out in the Policy.
[48]
These findings are not unreasonable in light of
the definition in the Policy applied by the Report and the expert
methodology of the investigation. Overall, the Report is exhaustive in its
factual findings and in its consideration of the evidence. For each allegation
of harassment, interviews were conducted with the parties involved, and witness
statements were obtained. Ms. Green was given the opportunity to comment on the
preliminary report and augment it with her submissions.
[49]
Considering the magnitude and timeline of the
alleged harassment, as well as the number of people who had to be interviewed,
it is clear that this was a complex and multi-faceted investigation involving
complicated work dynamics. For this reason, it must be remembered that the Policy
prescribes that investigators selected for harassment investigations must have
sufficient expertise and credentials to justify their selection. This Court
typically defers to such expertise, particularly in the context of harassment
investigations (Thomas v Canada (Attorney General), 2013 FC 292).
[50]
Although Ms. Green disagrees with the Quintet
Report and its interpretation of the evidence and the events which transpired
with AW, a disagreement is not a sufficient basis for this court to intervene,
especially in light of the deference owed to the expertise of the investigator.
[51]
Likewise, there is no basis for this Court to
parse each finding and reweigh the evidence in order to substitute its own
findings (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paras 59 and 61). In keeping with Dunsmuir v New Brunswick, 2008 SCC 9
at para 47 [Dunsmuir], the decision is intelligible,
transparent and justifiable. It falls within a range of reasonable outcomes
defensible in respect of the complex facts of this case and the relevant Policy
and law.
[52]
In light of the deference owed to the Report,
the findings contained on the other alleged instances of harassment are
reasonable. Ms. Green simply seeks to revisit the findings. The Court has no
role in doing so on judicial review.
(4)
Consideration of Irrelevant Factors
[53]
Finally, Ms. Green argues that Laurendeau
improperly considered information from a Public Service Labour Relations Board
matter concerning Ms. Green. Although the Respondent acknowledges that
Laurendeau had this information, it argues that it was not a factor considered
by Laurendeau in reaching her decision. Although Ms. Green raises this as a
breach of procedural fairness, it is fundamentally an issue going to the
substance of the decision under review: Canada (Public Safety and Emergency
Preparedness) v Lotfi, 2012 FC 1089 at para 25. A decision cannot be
justifiable, transparent, and intelligible if it is based on irrelevant factors
(Dunsmuir, at para 47).
[54]
However, even if Laurendeau considered
irrelevant factors, this alone does not make the decision unreasonable. Only if
this “irrelevant” information forms the basis
upon which the decision is made, does it render the decision unreasonable (Goodrich
Transport Ltd. v Vancouver Fraser Port Authority, 2015 FC 520). For an
administrative decision-maker’s error to be reviewable, it must go to the heart
of the matter under review (Zhu v Canada (Citizenship and Immigration),
2017 FC 615 at para 23). Here there is no indication that this irrelevant
information, if it was considered, formed the cornerstone of the decision.
[55]
Therefore Ms. Green has not established that
there was an improper consideration of information by Laurendeau.
C.
Was there a breach of procedural fairness?
(1)
Issues Raised For the First Time on This
Judicial Review
[56]
Ms. Green raises three issues with respect to
procedural fairness.
[57]
As a preliminary note, two of these issues
(relating to communication and an opportunity to respond) were not raised
before Laurendeau. These procedural matters are related to the investigative
process itself. They should not be considered for the first time on judicial
review.
[58]
The Supreme Court has held that an applicant is
not permitted to raise new arguments on judicial review: Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 at paras 22-26 [Alberta Teachers]. This is particularly true
where the issue raised pertains to the “tribunal’s
specialized functions or expertise” (Alberta Teachers, at para
25).
[59]
Here, Ms. Green contests specific issues
involving the investigative process, part of the investigator’s expertise. While
the investigative process is defined in the Policy and Directive,
much of the process is also defined by the investigator, who has the necessary
expertise to handle the sensitive matters endemic in harassment complaints.
[60]
As the Supreme Court of Canada indicated in Council
of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15 at paras
230-231 administrative decision-makers have control over their own specialized
functions and procedures, in fact-specific circumstances for good reason. The
investigative process in this case is no different. According to Alberta
Teachers, Ms. Green should have raised these arguments before Laurendeau,
who could have considered the circumstances and perhaps provided appropriate
corrective relief at that point.
[61]
However, Ms. Green did not raise these issues
before Laurendeau, therefore they cannot now be considered on this judicial
review.
(2)
Delay
[62]
Ms. Green argues that the 27 months to determine
her harassment claim as compared to the time prescribed in the Directive of
12 months is a breach of her procedural fairness rights.
[63]
The Directive states that investigations
should “normally” be completed in 12 months,
barring “extenuating circumstances.” When
decision-makers codify such policies, as here, that codification establishes
the basis for procedural fairness (Potvin v Canada (Attorney General),
2005 FC 391 at para 21). Given that the “extenuating
circumstances” proviso is an element of the procedural fairness owed in
this circumstance, this language provides some latitude for an investigation to
be conducted beyond the 12 months if necessary.
[64]
Further, the time frame of 12 months in the Directive
is not necessarily determinative of the timeframe required for an
investigation. A decision-maker cannot bind herself to the terms of the Directive,
thus fettering her discretion to take into account the specific circumstances
of a particular case (Canada (Citizenship and Immigration) v Thamotharem,
2007 FCA 198).
[65]
Ms. Green states that the Respondent has not
justified the delay in this case with valid extenuating circumstances. However,
this was a complex investigation, involving multiple parties, in a difficult
work environment. Owing to this complexity, the Directive states at
6.1.1 that a qualified investigator should be selected to conduct an
investigation, in part to uphold the principles of procedural fairness. In this
case, it took some time for the Respondent to select an appropriately qualified
investigator - approximately five months.
[66]
The conduct of the investigation and the Report
was delayed by the complexity of the facts, which is justified. Considering the
timeframe, the harassment complaint covered, the varied nature of the conduct
at issue, coupled with the intervening health concerns of both Ms. Green and AW
during the investigation, the length of time it took to complete the
investigation and report on Ms. Green’s grievance was not unreasonable or a
breach of procedural fairness.
VI.
Conclusion
[67]
For the above reasons, this judicial review is
dismissed.
VII.
Costs
[68]
The Respondent shall have costs in the amount of
$2,000.00.
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