Date:
20160315
Docket: A‑262‑15
Citation: 2016 FCA 81
|
CORAM:
|
PELLETIER J.A.
GAUTHIER J.A.
SCOTT J.A.
|
|
BETWEEN:
|
|
MARIE‑ANNE JEAN
|
|
Appellant
|
|
and
|
|
SOCIÉTÉ RADIO‑CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT
SCOTT J.A.
[1]
This is an appeal before the Court from a
decision rendered on April 28, 2015 (2015 FC 541) by Gagné J.
of the Federal Court (the Judge), whereby she dismissed the application for
judicial review of a decision rendered on January 3, 2013, by the Canadian
Human Rights Commission (the Commission) rejecting the complaint filed by Marie‑Anne Jean
(the appellant) under subparagraph 44(3)(b)(i) of the Canadian
Human Rights Act, R.S.C., 1985, c. H‑6. After an investigation,
the Commission dismissed the complaint because the evidence gathered did not
support the claim that the Société Radio‑Canada (Radio‑Canada) had
discriminated against the appellant because of her age when it refused to
consider her for a closed caption editor position in 2007.
[2]
Before the Commission, the appellant submitted,
among other things, that her employer, Radio‑Canada, purposely gave her a
failing grade on her French exam with the complicity of staff from Human
Resources. She submitted that the letter informing her of her results showed
that her marks had been tampered with given the different font used to enter
her grade. She also asserted that some witnesses had lied to the Commission
investigator and that emails had been sent in her name, thereby usurping her
identity. She further claimed that the handwritten notes and exam copies
produced by Radio‑Canada had also been falsified.
[3]
A Commission investigator looked into these submissions
and recommended dismissal of the complaint for the following reasons: i) the
applicants for the position had been evaluated in accordance with the same
criteria; ii) the testimony given by Mr. Tremblay, the manager
responsible for closed caption editing, and by Mr. Bernard, the appellant’s
union representative, contradicted the appellant’s submission that Mr. Tremblay
had admitted that the selection criteria had been changed; iii) the two
emails sent by the appellant on June 20, 2007, after a feedback meeting
with them proved that she had acknowledged her mistakes and that she had
written both emails; and iv) the explanation given by Radio‑Canada
regarding the different font used to enter her grade was plausible. Lastly, the
investigator’s report concluded that the appellant had not shown a connection
between her age and her failure to obtain the position sought.
[4]
Before the Judge, the appellant submitted that
the Commission investigator had breached his duty of procedural fairness
because he had failed to question a key witness in the case, Ms. Tanguay,
who was present at the feedback meeting. She also claimed that he had not
responded to all of her claims or considered certain elements of the evidence
that she had presented. She also alleged that he had failed to disclose all of
the evidence produced by Radio‑Canada as soon as he received it. She
further asserted that the investigator himself had lied by stating that she had
acknowledged writing emails on June 20, 2007, after the feedback meeting.
The appellant also submitted that a decision made on the basis of a deficient
investigation was clearly unreasonable.
[5]
The Judge applied the appropriate standards of
judicial review with respect to the issues raised by the appellant as she addressed
the issue of breach of procedural fairness on the correctness standard and
applied the reasonableness standard to the Commission’s decision to dismiss the
complaint.
[6]
This Court has to determine whether the Judge
correctly applied these standards. To do this, it must focus on the Commission’s
decision (Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45
to 47).
[7]
It is my opinion that the appellant did not offer
convincing evidence to prove the existence of fraud as she argues in this case.
The grounds for appeal as stated by the appellant and her claim of a breach of
procedural fairness cannot succeed because the case law is well settled: an
investigator controls his inquiry insofar as he acts meticulously and
impartially. The investigator had no obligation to immediately share the
evidence that he received from Radio‑Canada or to meet with the witness,
Ms. Tanguay, because the submission of the handwritten notes that she took
at the feedback meeting made it unnecessary for him to do this. The same applies
to the appellant’s claim that he had to confront the Radio‑Canada
representative with each of the allegations contained in the appellant’s
affidavit (see Slattery v. Canada (Human Rights Commission), [1994]
2 FC 574, at pages 600, 601 and 605 (Trial Division),
[1994] F.C.J. No. 181, affd (1996), 205 N.R. 383 (F.C.A.)).
The Commission’s investigation report considered all of the evidence presented
by the parties and the appellant was afforded the opportunity to respond. The
report supports the conclusion of the Judge’s conclusions, who ruled that there
were no breaches of procedural fairness in the investigation.
[8]
The Commission’s decision to dismiss the
appellant’s complaint was reasonable given the investigator’s report and the
parties’ submissions after it was produced. Given the lack of probative
evidence showing that the appellant was not granted the position sought because
of her age, the Commission’s decision to dismiss this complaint falls within
the range of possible outcomes.
[9]
In my view, this appeal should be dismissed with
costs.
“A.F. Scott”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
Johanne Gauthier J.A.”
FEDERAL
COURT OF APPEAL
SOLICITORS
OF RECORD
Email this Content