Docket: T-1417-17
Citation: 2018 FC 377
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 9, 2018
PRESENT: The Honourable Mr. Justice Martineau
| BETWEEN:
|
| 2553-4330 QUÉBEC INC.
|
| Applicant
|
| and
|
| LAURENT DUVERGER
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The applicant, 2553-4330 Québec Inc. [Aéropro or the employer], challenges the legality of a decision dated August 30, 2017, by the Canadian Human Rights Commission [Commission]. The Commission requests that the Chairperson of the Canadian Human Rights Tribunal [Tribunal] designate a member to inquire into part of the consolidated complaint of discriminatory practices brought against Aéropro by the respondent, Laurent Duverger, on November 26, 2013. We are dealing with allegations of harassment in matters related to employment that the respondent says that he was subjected to in the spring of 2012 because of his national origin and his disability.
[2]
For the reasons that follow, this application for judicial review is dismissed and, as a result, there is no need to set aside the decision under review and refer the matter back for reconsideration, as the applicant requests in the case at bar.
I
Legal framework
[3]
Pursuant to the Canadian Human Rights Act, RSC 1985, c. H-6 [CHRA], national or ethnic origin, as well as an individual’s mental or physical disability, are prohibited grounds of discrimination (subsection 3(1) and section 25). Differentiating adversely in relation to an individual in the course of employment and harassing an individual in matters related to employment, are distinct discriminatory practices, if they are based on a prohibited ground of discrimination (paragraphs 7(b) and 14(1)(c)). Moreover, if the acts in question are committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent, they are deemed to have been committed by that person, association or organization (subsection 65(1)). However, this presumption can be displaced if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof (subsection 65(2)).
[4]
In accordance with the provisions of Part III of the CHRA, the Commission has the power to receive and address discriminatory practice complaints—including any act referred to in sections 5 to 14.1 of the CHRA—unless there is a ground that makes it unable to deal with it (subsections 40(1), (5) and (7) and sections 41 and 42). In particular, the Commission may refuse to deal with a complaint if: (1) the victim has not exhausted all of the recourse available (paragraph 41(1)(a)); (2) the complaint could more appropriately be dealt with under an Act of Parliament other than the CHRA (paragraph 41(1)(b)); (3) the complaint is beyond its jurisdiction (paragraph 41(1)(c)); (4) the complaint is trivial, frivolous, vexatious or made in bad faith (41(1)(d)); (5) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint (41(1)(e)) [grounds for not dealing with the complaint].
[5]
It has been repeated many times, but it is worth reiterating once again: the Commission is not an adjudicative body; rather, its role is to review and screen (see Cooper v Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para 53, 140 DLR (4th) 193 [Cooper with references to SCR]; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 23 [Halifax]). Indeed, even though the Commission may designate a person to investigate a complaint [the investigator] (subsection 43(1)), there is nothing to prevent it, at any stage after the filing of a complaint, from requesting the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted (subsection 49(1)). In the latter case, it may refer to the Tribunal without further investigation (see Canada Post Corporation v Canadian Postmasters and Assistants Association (CPAA), 2016 FC 882 at paras 4, 20–22, 46–47, 78–79, 84–91 [Canada Post Corporation]; Canada (Attorney General) v Skaalrud, 2014 FC 819 at paras 25–30, 39 [Skaalrud]).
[6]
In the event that the Commission has designated an investigator, that investigator submits a report of the findings as soon as possible after the conclusion of the investigation (subsection 44(1)). On receipt of the findings of the investigation, at least three outcomes are possible. Therefore, the Commission may: (1) refer the complainant to another appropriate authority if the complainant ought to exhaust grievance procedures or have the complaint dealt with more appropriately elsewhere (subsection 44(2)); (2) request the Chairperson of the Tribunal to institute an inquiry if it is persuaded that the inquiry into the complaint is warranted and that complaint can be dealt with (paragraph 44(3)(a)); or (3) dismiss the complaint if it is persuaded that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or otherwise cannot be dealt with (paragraph 44(3)(b)).
[7]
To summarize, we can say that “[w]hen deciding whether a complaint should proceed to be inquired into by a tribunal, 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”
(Cooper at para 53). In other words, the Commission does not in fact decide the complaint on the merits (see Halifax at paras 23–24). It must determine whether an inquiry into the complaint is warranted, i.e., “whether there is a reasonable basis in the evidence for proceeding to the next stage”
(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 899, 62 DLR (4th) 385).
[8]
Finally, when the Commission makes a final decision at the end of its inquiry, the reviewing courts will not intervene in the exercise of the discretionary powers set out in section 44 or in section 49 of the CHRA unless there was a breach of a principle of procedural fairness or a reviewable error was otherwise made (see generally: Bell Canada v Communications, Energy and Paperworkers Union of Canada, [1999] 1 FC 113, 167 DLR (4th) 432 (FCA); Canada Post Corporation at paras 26–30; see alse Skaalrud). On this point, it must be presumed that the standard of review that applies to the decision of an administrative tribunal that interprets its enabling statute is that of reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 146 [Dunsmuir]; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 39). The exceptions are the questions that require the application of the correctness standard, including true questions of jurisdiction (see Dunsmuir at para 59).
II
Factual background
[9]
The circumstances surrounding the filing of the complaint are not really the subject of debate.
[10]
The applicant employs more than 250 employees spread all over the province of Quebec. It offers aircraft maintenance and management services, wildlife inventory services, and forest fire detection services. It is also involved in meteorological and upper air observation programs with various partners (e.g. NAV Canada, Environment Canada, and Hydro Québec) and has weather observation stations in Sept-Îles, Gaspé, Chibougamau, Dorval and Québec.
[11]
The respondent is from France. He immigrated to Canada in 2007 with a temporary work permit—which was later renewed. He held the position of weather technician at the Chibougamau weather station from October 17, 2007, until June 21, 2010 [employment period]. In the meantime, he was granted permanent resident status in May 2009 and became a Canadian citizen in July 2013.
[12]
On March 8, 2012, the respondent asked the Commission de la santé et de la sécurité du travail du Québec [CSST] to recognize that he had suffered a psychological employment injury because of the events that occurred during the employment period at the Chibougamau weather station. Shortly after he sent a copy of the claim that he was preparing to send to the CSST (email dated March 26, 2012) in accordance with section 270 of the Act respecting industrial accidents and occupational diseases, CQLR c. A‑3.001, the respondent received several threatening and insulting emails from his former supervisor, Raymond Dallaire. Yet, he had not had any contact with that supervisor since the end of his employment in June 2010.
[13]
Here are a few excerpts from the emails that the supervisor Dallaire sent to the respondent in the spring of 2012:
[TRANSLATION]
You are the biggest idiot that I have worked with in 25 years. Go back to your country because here you are nothing more than a parasite (April 23, 2012)
… You’re just a damned idiot (April 23, 2012)
All that I would give you is a kick in the backside that would send you back to Paris (April 25, 2012)
I suggest that you make your idiot complaint to the UN and if they call me, I will be there (April 25, 2012)
To His Royal Highness; Laurent the First
Seeing that you need to make the most of Quebec’s and Canada’s social programs … I suggest the following to you.
You could find a room in the psychiatric wing of the hospital of your choice. You will be housed, fed, medicated, and treated by a psychiatrist. And all that without it costing you a cent. It’s more lucrative than CSST and it would make you a more honourable citizen who will undoubtedly receive the Order of Canada.
With my deepest respect,
Raymond Dallaire, mere descendent of farmers, from father to son since 1640 … (May 2, 2012)
Go back to your country. To your mommy’s and/or to your daddy’s. Because here you do not have a future and you get depressed without anyone being able to help you (May 7, 2012)
[14]
It is admitted that supervisor Dallaire sent these emails using his employer’s computers and email address. During this time, the respondent forwarded the emails to other Aéropro employees, including to Mr. Dallaire’s superior, Richard Légaré, and Aurèle Labbé, Aéropro’s owner. He did not receive a satisfactory answer and, in fact, the employer did not follow up at all. We will see later on that the failure to resolve the issue of post-employment harassment will become one of the substrates of the consolidated discriminatory practices complaint. Questioned by the Commission’s investigator, the supervisor Dallaire would then justify his behaviour by saying that he believed that the respondent wanted to make him out to be a racist and tried to tarnish his reputation before the CSST, while the Aéropro management considered that it had nothing to do since it no longer employed the respondent.
[15]
On June 21, 2012, following an administrative review, the CSST dismissed the respondent’s claim because it was allegedly filed out of time. However, the Commission des lésions professionnelles [CLP] decided that the claim was admissible. On January 27, it allowed the claim, since the respondent had suffered a psychological employment injury on June 21, 2010, as a result of various events that occurred at work during the employment period (L D et Compagnie A, 2013 QCCLP 3939 [L D]).
[16]
The respondent was therefore entitled to an income replacement indemnity (of more than $100,000 in this case). The fact is that, according to the evidence considered by the CLP, the respondent worked in particularly degrading conditions and had been the victim of mockery, of threats and humiliation on a daily basis at the hands of his work colleagues and in particular at the hands of the supervisor Dallaire. These unlivable conditions let to his resignation and left him with serious psychological sequelae, including a diagnosis of post-traumatic stress and an adjustment disorder with depressed mood. In conclusion, the CLP mentioned in passing that the applicant had clearly breached its obligations to protect the respondent’s health, safety, and integrity, while [translation] “the worker’s fundamental rights … were also denied, as well as his right to the integrity of the person”
(L D at para 62).
[17]
In August 2013, the respondent decided to file a complaint before the Commission. Also, the applicant’s counsel informed the Court at the hearing that the respondent also filed a complaint with Quebec’s Commission des droits de la personne against the supervisor Dallaire personally, but that most recent complaint was suspended while awaiting a final resolution of the consolidated discriminatory practices complaint against Aéropro.
III
History of the file
[18]
The consolidated complaint brought before the Commission by the respondent on November 28, 2013, joins complaints I1301995 and I1302143, dated August 23 and 26, 2013, respectively. The consolidated complaint bears on two distinct discriminatory practices:
(a)
The adverse differentiation that the respondent says that he was subjected to because of his national origin during the employment period with regard to his remuneration and various wage conditions [discriminatory treatment]; and
(b)
The psychological harassment that the respondent says that he was subjected to from supervisor Dallaire because of his national origin and his disability (depression) after he had left his employment in June 2010 and filed a claim for an employment injury with the CSST [harassment in matters related to employment].
[19]
First, the applicant objected to the admissibility of the complaint, alleging that it was trivial, frivolous, vexatious or made in bad faith (paragraph 41(1)(d)), since the CLP had disposed of essentially the same allegations. However, a review of the CLP’s decision does not support this interpretation, or the Commission’s conclusion to dismiss (see Duverger v 2553-4330 Québec Inc. (Aéropro), 2015 FC 1071 at paras 43, 46, 49, 51–53, 59–61 [Duverger 2015]). The Federal Court therefore allowed the respondent’s application for judicial review and referred the file back to the Commission.
[20]
Before the Commission, the applicant raised two new grounds for not dealing with the complaint: (1) the complaint was filed outside the one-year time limit and there is no reason to extend that time limit (paragraph 41(1)(e)); and (2) the Commission does not have the jurisdiction to deal with the allegations of harassment in matters related to employment because the respondent was no longer employed by the applicant at the time that the acts in question were committed by the supervisor Dallaire (paragraph 41(1)(c)). On March 30, 2016, the Commission decided to deal with the complaint: (1) if the applicant suffered irreparable harm from the delay, it could adduce evidence during the investigation; and (2) the applicant could argue as a defence that the alleged harassment does not fall within paragraph 14(1)(c) of the CHRA. On February 2, 2017, the legality of this interlocutory decision by the Commission would be confirmed by the Federal Court (2553‑4330 Québec Inc. v Duverger, 2017 FC 128 [Duverger 2017]).
[21]
On June 9, 2017, the designated investigator, Philipe Harpin, prepared an investigation report setting out his findings and recommendations; a report that the parties had the opportunity to comment on before it was submitted to the Commission with their written submissions.
IV
The impugned decision
[22]
On August 30, 2017, the Commission requested that the Chairperson of the Tribunal institute an inquiry into the complaint regarding the harassment in matters related to employment [impugned decision]. The Commission’s brief reasons must be read in light of the analysis done by the investigator in his report (see Sketchley v Canada (Attorney General), 2005 FCA 404 at para 37).
[23]
First, with regard to the allegations of discriminatory treatment in the course of employment, the evidence does not support the existence of a causal link between any alleged adverse differentiation (e.g. refused wage increases, unpaid overtime and unauthorized deductions) and a prohibited ground of discrimination, the respondent’s national (or ethnic) origin in this case. This conclusion is not being challenged in these proceedings.
[24]
Second, the allegations of harassment in matters related to employment are supported by the evidence in the record. The content of the harassing emails refers to the complainant’s national or ethnic origin and his disability. They were sent following the respondent’s claim to the CSST. The supervisor Dallaire used the employer’s email and the equipment at the weather station. These persistent emails were inappropriate and hurtful. The respondent complained about it promptly by forwarding them to Aéropro’s management (Mr. Légaré and Mr. Labbé). Yet, even though the employer has an internal harassment policy and despite the respondent’s report, no appropriate measure was taken to deal with the harassment and to ensure that it would not continue. An in-depth review by the Tribunal is therefore justified.
[25]
It is this second conclusion that the applicant is challenging today.
[26]
In passing, note that on February 6, 2018, Gabriel Gaudreault, the Tribunal member who was designated by the Chairperson to conduct an inquiry on the part of the complaint regarding harassment in matters related to employment, dismissed Aéropro’s motion to suspend the proceedings. He decided that the Tribunal’s proceedings should follow their course—especially since the consolidated discriminatory practices complaint had been filed with the Commission on November 28, 2013, i.e. more than four years earlier (Laurent Duverger v 2553-4330 Québec Inc. (February 6, 2018), T2230/5217 (CHRT)).
V
Analysis
[27]
This is the third time that this Court has been called to decide on the legality of a decision by the Commission in relation to the consolidated discriminatory practices complaint. Contrary to what the applicant may argue, there is no question of jurisdiction raised in this case, while the Commission did not make a reviewable error and did not otherwise act unreasonably by referring back to the Tribunal the part of the complaint relating to harassment in matters related to employment.
(1)
The Commission had full jurisdiction to deal with the consolidated discriminatory practices complaint
[28]
First, in his written memorandum, the applicant claims that the issue in this application for judicial review is one of “jurisdiction”
, within the meaning of Dunsmuir. It restates the argument that it cannot be dealt with based on the fact that the respondent was no longer employed by it at the time when the alleged harassment took place, such that the Commission exceeded its jurisdiction in making the impugned decision. The standard of review that applies will therefore be the correctness standard.
[29]
In passing, the applicant never argued and is not arguing now that as an employer it is not subject to the CHRA or under any other Act of Parliament in matters related to employment (see Duverger 2015; Duverger 2017; Duverger v 2553-4330 Québec Inc. (Aéropro), 2015 FC 1131, aff’d by 2016 FCA 243; see also Shmuir, William G M v Carnival Cruise Lines, 2009 CHRT 39 at para 7; Canada (House of Commons) v Vaid, 2005 SCC 30 at para 81 a contrario), which may apply concurrently to the compensation schemes for victims of industrial accidents or employment injuries (see Bell Canada v Québec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 at pp 851–52, 51 DLR (4th) 161).
[30]
For his part, the respondent contends that it is appropriate to apply the reasonableness standard—as the jurisprudence has clearly established that the Commission’s decisions whether or not to deal with a complaint are reviewable according to this standard. I agree with the respondent. Indeed, at the opening of the hearing, the applicant’s counsel informed the Court that he was abandoning any argument that the correctness standard should apply to the review of the impugned decision. In fact, any argument that the issue to decide in this judicial review is one of “jurisdiction”
must fail. A similar misconception—that in practice would lead the Court to supplant the Commission—has in fact been rejected by the jurisprudence (see Halifax at paras 19, 33–41, 45–50; Duverger 2015 at paras 17 and 18; Duverger 2017 at paras 44 and 45; Skaalrud at para 30).
[31]
Indeed, in Dunsmuir at paragraph 59, the Supreme Court provided a restrictive definition of the word “jurisdiction”:
“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction …
[32]
Yet, in principle, a federal employer is liable for all the discriminatory practices committed by one of its employees—here the supervisor Dallaire—committed in the context of his employment, unless it establishes that it did not consent to the commission of the act, or that it exercised all due diligence to prevent the act from being committed and, subsequently, to mitigate or avoid the effect thereof (see section 65 of the CHRA; see also Robichaud v Canada (Treasury Board), [1987] 2 S.C.R. 84, 40 DLR (4th) 577 [Robichaud with references to the SCR]). In this case, the Commission had full jurisdiction under sections 40 and 44 of the CHRA to examine the consolidated discriminatory practices complaint, to determine whether it could deal with it, and finally to determine whether or not an in-depth inquiry by the Tribunal was warranted.
(2)
The referral to the Tribunal is an acceptable outcome considering the circumstances of the complaint
[33]
In the alternative, the applicant submits that it is otherwise unreasonable to refer the harassment allegations to the Tribunal because nothing indicates that the scope of the words “in matters related to employment”
, within the meaning of paragraph 14(1)(c) of the CHRA, had been considered by the Commission (or the investigator). Moreover, the investigator did not determine whether the harassment had contributed to create a hostile and poisoned work environment (see for example Siddoo v International Longshoremen’s and Warehousemen’s Union, Local 502, 2015 CHRT 21; Stanger v Canada Post Corporation, 2017 CHRT 8).
[34]
Therefore, according to the applicant, the expression “in matters related to employment”
(“en matière d’emploi”) must be “in the course of employment”
(“au cours de la période visée par l’emploi”) (see also the definition of the word “employment”
– “emploi”
– in section 25 of the CHRA), whereas the employer does not have any legal obligation to protect an individual from the harassment that the individual could face from another employee outside the workplace (see Cluff v Canada (Department of Agriculture) (1993), [1994] 2 FCR 176, 1993 CarswellNat 250F (FCTD) [Cluff referring to CarswellNat]). It is this restrictive interpretation of paragraph 14(1)(c) of the CHRA that the applicant asks the Court to adopt.
[35]
On the other hand, the respondent submits that the impugned decision—which is clear and transparent—falls within the exercise of the discretionary power vested in the Commission pursuant to paragraph 44(3)(a) of the CHRA. The expression “in matters related to employment”
must be interpreted liberally. The expression applies broadly to any harassment on a prohibited ground “in matters related to employment”
, which is supported by the English version of paragraph 14(1)(c) of the CHRA (“in matters related to employment”), as well as jurisprudence (see inter alia Cluff; Robichaud). Accordingly, the referral to the Tribunal is an acceptable outcome under the circumstances.
[36]
In this case, the respondent argues that the harassment on a prohibited ground that he was subject to in the spring of 2012 was in fact “in matters related to employment”
. In fact, the harassing emails from supervisor Dallaire were intended to dissuade him from pursuing his claim against Aéropro before the CSST, by reviving the previous threats and insults of which he had already been a victim during the employment period. Mr. Dallaire is a representative of the employer, whereas management did nothing to prevent the harassment from continuing. It was therefore not unreasonable for the Commission to find that the complaint had merit, especially since the emails with the threats and insults were sent using the employer’s computer and email address.
[37]
I cannot agree with the applicant’s claim that its restrictive interpretation of paragraph14(1)(c) is the only possible outcome.
[38]
First, the jurisprudence is far from being as clear as the applicant would like to suggest. None of the decisions referred to by the applicant bear on similar facts, and they all involve decisions by the Tribunal and not the Commission. In each case, the complainants were still employed by the employer, but had been victims of harassment outside the usual scope of employment. The applicant also points out that the purpose of the harassment legislation is to offer a healthy work environment, but this is not in itself sufficient to restrictively interpret paragraph 14(1)(c) of the CHRA. For example, in Robichaud, which was decided before the adoption of section 65 of the CHRA (formerly subsections 48(5) and (6), added in 1983; see SC 1980-81-82-83, chap. 143, s. 23 as cited in Robichaud at p 87), the Supreme Court found that the CHRA was intended to make employers liable “for all acts of their employees ”
in the course of employment” (“dans le cadre de leurs emplois”), by interpreting this last expression based on the objective of the CHRA, i.e. as meaning “in some way related or associated with the employment”
(Robichaud at p 95).
[39]
Second, in fact, the existence of an employment relationship does not always appear to be necessary for discrimination or harassment: it all depends on the legislative context. Indeed, a restrictive approach based on relationships must be rejected and a contextual approach should be used instead, which takes into account quasi-constitutional human rights legislation and its preventative and remedial nature (see British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 at para 31 [Schrenk]). In this case, subsection 14(1) of the CHRA, which prohibits harassment based on a prohibited ground of discrimination, uses the word “individual”
(“individu”), which suggests that the existence of an employment relationship is not necessary, even if the individual may indeed be in an employment relationship.
[40]
At this stage of the case, the only question is whether it was reasonable for the Commission to find that an in-depth inquiry into the post-employment harassment allegations was warranted—i.e. whether the evidentiary threshold is met to reasonably pursue the investigation (see Halifax at para 21). The investigation report allows us to understand how the respondent’s allegations are supported by the evidence in the record. Despite the break in the employment relationship, the emails sent by the supervisor Dallaire could amount to harassment in matters related to employment, since the supervisor Dallaire used the employer’s computers and email address, after learning that the respondent had filed a claim with the CSST. The persistent emails were inappropriate and hurtful, and referred to the respondent’s national origin and disability, and the employer did not take any action to stop the harassment in question.
(3)
The Tribunal is the best placed specialized tribunal to decide the issue of the interpretation of the scope of the legislation
[41]
It is not helpful to undertake today the interpretative exercise that the applicant invites the Court to do. It is rather the Tribunal’s place to do so on the merits. The Tribunal’s jurisdiction arises from the Commission’s request for an inquiry into the complaint (paragraph 44(3)(a) or subsection 49(1)). It is therefore the responsibility of the Tribunal member, at the end of the inquiry, to determine whether or not the complaint is substantiated (section 53). That said, without binding the Tribunal in any way at this stage, the interpretation proposed by the respondent does not seem to me to be entirely without legal or factual merit. I would therefore like to make a few general observations.
[42]
First, it is difficult to believe that Parliament intended for the words “in matters related to employment”
in paragraph 14(1)(c) of the CHRA to mean “in the course of employment”
, since these are not the words that it used when it was open for it to do so. In fact, we find the words in the course of employment in paragraph 7(b) of the CHRA. The presumption of consistent wording requires us to presume that Parliament’s intent is to have consistent laws. Parliament therefore uses the same words if it wants two expressions to have the same meaning. Conversely, different language will be used if Parliamentary intent was that the two expressions not be interpreted in the same way (see, generally, Ruth Sullivan, Statutory Interpretation, 3rd ed., Toronto, Irwin Law, 2016 at pp 43–44).
[43]
Second, the respondent properly pointed out that there tends to be a liberal statutory interpretation that considerably broadens the notion of harassment “in matters related to employment”
. For example, in the recent decision in Schrenk, the Supreme Court, called to interpret the scope of the words “regarding employment”
in paragraph 13(1)(b) of British Columbia’s Human Rights Code, RSBC 1996, c. 10, recognized that an employee could be a victim of discrimination at the hands of another employee working at the same workplace but reporting to a different employer.
[44]
Mr. Justice Rowe, speaking on behalf of the majority, clearly states at paragraph 3:
[3] … The scope of s. 13(1)(b) of the Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context.
[Emphasis added.]
[45]
Although the provisions and the facts at issue may be different, the fact remains that the Supreme Court wanted to broaden protection against discriminatory harassment and employer liability for discriminatory practices in matters related to employment by their employees. Therefore, in the absence of a clear interpretation of paragraph 14(1)(c) of the CHRA, and without stating that it is the only possible interpretation, it was certainly not unreasonable for the Commission to infer that that Mr. Dallaire’s alleged acts could be “in matters related to employment”
.
[46]
Third, the applicant relies on a 1993 Federal Court decision in Cluff to suggest that it is the complainant who must be “in matters related to employment”
and not the employer or the [translation] “harasser”
. With respect for the opposing opinion, I read this decision differently. It indicates rather that the employer must be liable for the discriminatory practices of its employees in their employment context. With respect to the issue of whether an employer may be liable for harassment by an employee outside the workplace (here the employer’s email address and computers were used to send the harassing emails), it seems to me that today Cluff’s value as a precedent has been considerably diminished. This is confirmed when we compare the Federal Court’s restrictive view with the broader approach of other courts and tribunals in more recent matters (see, e.g., Simpson v Consumers’ Association of Canada (2001), 57 OR (3rd) 351, 209 DLR (4th) 214 at paras 57-61 (CA Ont); Woiden v Lynn (2002), 2003 CLLC 230-005, 2002 CanLII 8171 at paras 1, 69–71, 86, 104 (CHRT); Syndicat des travailleurs et travailleuses Canam Structal (CSN) et Groupe Canam pour son établissement Structal (CSN), 2016 QCTA 736 at paras 227–234).
[47]
In closing, it must be noted that the application of paragraph 14(1)(c) of the CHRA is inextricably connected to the facts and the law. The existence of a sufficient connection with the employment context falls within the Tribunal’s specialized expertise. This Tribunal is in a better position than the Commission or this Court to make a final decision on the interpretation of the words “
en matière d’emploi
”
(French version) and “matters related to employment”
that were chosen by Canadian Parliament. Indeed, subsection 50(2) of the CHRA enables the Tribunal to decide questions of law and questions of fact in the matters before it, which includes the scope of paragraph 14(1)(c) of the CHRA.
VI
Conclusion
[48]
For these reasons, the application for judicial review is dismissed. The respondent is entitled to reasonable disbursements, which are set at $200.
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