Date: 20060503
Docket: T-1034-05
Citation: 2006 FC 554
Toronto, Ontario, May 3, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MS.
DORETTE SUCKOO
Applicant
and
BANK
OF MONTREAL
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Commission dated May 11, 2005 dismissing the complaint of the Applicant
Dorette Suckoo. She complained that she was discriminated against by reason of
race or colour which resulted in her dismissal from the Respondent Bank of Montreal.
[2]
The
Applicant (complainant) began her employment with the Respondent on June 26,
2000 occupying a probationary position in the lending area. She was part of a
team of approximately fifteen persons. For training purposes each team was
assigned a Mentor, Assistant
Team Leader and a Team Leader. The Applicant’s employment was terminated on
June 12, 2001. Notwithstanding a considerable delay on the part of the
Applicant, the Commission agreed in October 2003 to deal with the Applicant’s
complaint.
[3]
An
Investigator was assigned to look into the complaint and produced a Draft
Report dated January 20, 2005 a copy of which was provided to the Applicant for
comments. The Applicant provided written comments dated March 4, 2005. The
Respondent provided comments by letter dated March 29, 2005. The Commission, by
letter dated May 11, 2005, notified the Applicant of its decision, the
substantive portion of which reads:
Before rendering their
decision, the members of the Commission reviewed the report disclosed to you
previously and any submission(s) filed in response to the report. After
examining this information, the Commission decided, pursuant to paragraph
44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
* the
evidence does not support the complainant’s allegation that the respondent
discriminated against her based on race or colour; and
* the
evidence does indicate that there were work performance concerns regarding the
complainant, which did not improve and ultimately resulted in the termination
of her employment.
Accordingly,
the file on this matter has now been closed.
[4]
The
Applicant, in her Memorandum before this Court, raised the following issues for
judicial review:
a)
The
investigation was fundamentally flawed;
b)
The
decision did not reflect the evidence;
c)
Her
witnesses were never interviewed; and
d)
The
investigation was conducted in an incomplete and sloppy manner; therefore the
findings are biased against her.
[5]
At
the hearing, counsel for the Applicant raised a further issue, not in the
Memorandum, namely that the Applicant, being a black person, should have been
treated differently so as to preclude any effect of negative stereotyping.
Degree of Deference
[6]
A
preliminary issue in cases of judicial review is that of the degree of
deference to be afforded to the decision of the tribunal under review.
Applicant’s counsel says that in this case the degree is that of correctness,
but gives no authority for that proposition. Respondent’s counsel says that the
degree is that of patent unreasonableness citing McConnell v. Canada (CHRC)
2004 FC 817 at paragraph 87. In Lindo v. Royal Bank of Canada
[2000] F.C.J. No. 1101 at paragraph 14 the Court concluded that the standard
was that of reasonableness simpliciter. I prefer to follow Lindo
in this regard thus must submit the decision under review to a somewhat probing
examination while giving appropriate deference to the expertise of the
tribunal.
Was the Investigation
Proper
[7]
At
the hearing, Applicant’s counsel’s argument as to the propriety of the
investigation was directed to essentially a single point namely, did the
investigator fail to interview witnesses whose first names only were given by
the Applicant to the Investigator. The Applicant’s counsel relied on Tahmourpour
v. Canada, 2005 FCA 113 at paragraphs 39 and 40:
[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: see, for example, Slattery v.
Canada (Human Rights Commission) at para.
55; Canadian Human Rights Commission, Annual Report for 2001 (Ottawa: Minister
of Public Works and Government Services, 2002), p. 33.
[40]
Nonetheless, I am
satisfied that this is an exceptional case. In failing to investigate and analyse
the statistical data, and to interview other cadets in Mr. Tahmourpour's
troop or Mr. Solomon, the investigator failed to investigate "obviously
crucial evidence". The investigation of Mr. Tahmourpour's
complaint thus fails to meet the test of thoroughness prescribed in Slattery.
Accordingly, the Commission's dismissal of the complaint should be set aside as
being in breach of the duty of fairness.
[8]
These
paragraphs must be read with the paragraphs that precede them in mind, namely
paragraphs 36 to 38 which say:
[36]
Counsel for Mr. Tahmourpour
submitted that the investigator seems to have been troubled by, and to have
attached weight to, the fact that Mr. Tahmourpour
did not complain about harassment until after his employment was terminated.
Counsel infers this from the fact that the report contains four references to
Mr. Tahmourpour's
failure to complain promptly.
[37] Mr. Tahmourpour
responded to the investigator's draft report on March 10, 2003, and stated
that, while still in active training as a member of the troop, he had
complained of harassment to the local Member of Parliament, Mr. John Solomon.
Mr. Tahmourpour
informed the Commission that other cadets who were members of ethnic and other
minorities had also complained to Mr. Solomon about racism and discrimination
in the RCMP. Mr. Tahmourpour
stated that Mr. Solomon had verified these statements to the press.
[38]
If, as seems to
have been the case, the investigator attached importance to Mr. Tahmourpour's
failure to complain before his termination, he ought to have contacted Mr.
Solomon, particularly since Mr Tahmourpour
had advised the Commission that the Member had also received complaints of
discrimination from other cadets.
[9]
In
the present case it is clear that the Investigator made efforts to interview
those persons who were likely to have evidence material to the case. In
paragraphs 12 to 15 of the Report the Investigator says:
12.
For
the purposes of this investigation, the following individuals were interviewed.
Jason Kay, the complainant’s Team Leader; Clementine Sansalone, the
complainant’s Mentor; and Lydia Ridd, a Senior Manager and Mr. Kay’s
Supervisor. None of these witnesses is a racial minority. The complainant’s
Assistant Team Leader at the material time, Harpreet Sandhu is no longer
employed with the respondent and although efforts were made to contact her, she
has moved and her contact information cannot be ascertained.
13.
The
complainant provided the names of two former co-workers, whom she submits would
support her position. Veronica Hill and Marvia Grenville. Neither of these
individuals worked in the same group as the complainant. Veronica Hill, who was
interviewed during the course of the investigation, is still employed with the respondent.
Because Ms. Hill was not in
the same department as the complainant, nor was she on Mr. Kay’s team with the complainant,
she could not comment on the complainant’s allegations regarding Mr. Kay and
her other team members. Attempts were made to contact Marvia Grenville but
proved unsuccessful.
14.
The
complainant provided the names of additional witnesses, specifically white
colleagues whom she alleged were treated in a more favourable manner by Mr.
Kay. However, the complainant was unable to identify these witnesses by their
last names and as such, they could not be located for the purposes of this
investigation.
15.
The
complainant was questioned about the absence of firm witnesses contact
information as concerns her allegations. The complainant however, maintained
her position that she had been treated differentially and dismissed based on
her race and colour.
[10]
Applicant’s
counsel says that the Investigator failed to follow up and determine who the
persons were whose first names only were known to the Applicant, and obtain
their testimony. However, Applicant’s counsel could not say that such evidence
would have been relevant or, if obtained, would even have been of assistance in
arriving at a proper decision. As stated at paragraph 90 of McConnell supra
and in Murray v. Canada (CHRC) 2002 FCT 699 at paragraph 24, affirmed at
2003 FCA 222, the Investigator is not obliged to interview each and every
witness that the Applicant would have liked, nor each and every incident of discrimination.
Unlike Tahmourpour there is no suggestion that critical evidence was
overlooked or an important witness ignored.
[11]
I
find no basis for setting aside the decision on this ground.
Was the Investigator
Sufficiently Sensitive to the Fact that the Complainant was Black
[12]
The
Applicant did not raise this squarely as an issue in her Memorandum. At the
hearing, Applicant’s counsel referred in argument to the Supreme Court of
Canada decision in R. v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 46 for
a proposition that judicial notice must always be taken, where a party is black,
so as to guard against negative stereotyping or systemic prejudice.
46
The reasonable person, identified by de Grandpré J. in Committee for Justice
and Liberty, supra, is an informed and right-minded member of the community, a
community which, in Canada, supports the fundamental principles entrenched in
the Constitution by the Canadian Charter of Rights and
Freedoms. Those fundamental principles include the principles of
equality set out in s. 15 of the Charter and endorsed in nation-wide
quasi-constitutional provincial and federal human rights
legislation. The reasonable person must be taken to be aware of the
history of discrimination faced by disadvantaged groups in Canadian society
protected by the Charter's equality provisions. These are matters of
which judicial notice may be taken. In Parks, supra, at p. 342,
Doherty J.A., did just this, stating:
|
|
Racism, and in
particular anti-black racism, is a part of our community's
psyche. A significant segment of our community holds overtly
racist views. A much larger segment subconsciously operates on the
basis of negative racial stereotypes. Furthermore, our
institutions, including the criminal justice system, reflect and perpetuate
those negative stereotypes.
|
[13]
Further,
in reply Applicant’s counsel referred to Smith v. Ontario (Human
Rights Commission), [2005] O.J. No. 377 at paragraphs 8 and 9:
8
The real issue in the appeal is, therefore, whether the finding that race was
not a factor in the dismissal is sustainable. In determining that issue, it is
instructive to read the Tribunal's language in the context of the undisputed
facts, the objects of the Code and the difficulty recognized in the case law of
proving discrimination.
9
The basis for requiring that race be only a factor in the termination is the
recognized difficulty in proving allegations of race discrimination by way of
direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1)
(1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481: Discrimination is not a
practice which one would expect to see displayed overtly. In fact, rarely are
there cases where one can show by direct evidence that discrimination is
purposely practiced.
[14]
These
paragraphs however, must be read in the context of the preceding paragraph 6:
6 We are
all of the view that the findings made by the Tribunal, which led it to
conclude that Smith was subjected to a poisoned workplace, are inconsistent
with the finding that the respondents were not wilful or reckless in their
infringement of Smith's right to be free from the poisoned atmosphere. Those
findings of subjection to the poisoned atmosphere were grounded on the failure
of an area manager, the directing mind, to do anything about complaints from
Smith that he was the victim of racial slurs. The evidence in support of those
findings was overwhelming. The Tribunal's failure to provide a reason for the
finding that the respondents were not wilful or reckless is an error of law.
See Northwestern Utilities Ltd. v. City of Edmonton, [1979]
1 S.C.R. 684 at 705; Baker v. Canada (Minister of Citizenship and
Immigration), [1999]
2 S.C.R. 817; J.M. Evans et al., Administrative Law: Cases, Text and
Materials, 3rd ed.; and Section 41(1)(b) of the Code. On this record, the only
finding available to the Tribunal was that the respondents were at least
reckless in their infringement of Smith's right to be free from the poisoned
atmosphere. Accordingly, the appeal on this ground must be allowed and the
finding that the respondents were not wilful or reckless set aside.
[15]
In
this case it is clear that the Investigator was aware that the Applicant
(complainant) was a black person, for instance at paragraphs 15 to 19 of the
Report:
15.
The
complainant was questioned about the absence of firm witness contact
information as concerns her allegations. The complainant however, maintained
her position that she had been treated differentially and dismissed based on
her race and colour.
Racial Composition of Lending
Department
16.
The
complainant submits that she was the only black employee in her department at
the material time of the complaint.
17.
The
respondent submits that it does not have formal records, regarding specifically
which employees at the time in question, either within the complainant’s team
or department were black. The respondent submits that it’s formal tracking of
racial minorities is done on a voluntary, self-identification basis and that
this information is only monitored and reported on at the Vice-Presidential level
and higher.
18.
Mr.
Kay, Ms. Sansalone and Ms. Ridd indicated their recollection that the
complainant was not the only black employee in her department. The
complainant’s witness, Veronica Hill indicated that both at the material time
and currently, the respondent’s workforce in her location is racially diverse.
19.
A
workforce profile of the complainant’s department for the year 2000, indicate
that out of fifty employees, nineteen were considered to be racial minorities.
Two of these individuals were on Mr. Kay’s team with the complainant.
[16]
Applicant’s
counsel says that the other employees are described as racial minorities and
not necessarily black. This is not relevant, what is relevant is that it is
clear that the Inspector was aware of and sensitive to the Applicant’s colour.
[17]
The
Investigator in the paragraphs following paragraph 19 which lead to the
recommendation set out in paragraph 103 of the Report, carefully reviews each
and every instance of discrimination and maltreatment raised by the Applicant
(complainant) with great sensitivity. I find that the Investigator was fully
aware of and sensitive to any issues as to colour and race that may have arisen
in this case. Applicant’s counsel could not draw my attention to any matter in
which the colour of the Applicant, or failure to consider that colour, would
have had a material impact upon matters as set out in the Investigator’s report
or the decision of the Commission.
[17A.] During the course of the hearing of
this matter Counsel for the Applicant objected to the evidence of certain
exhibits to the affidavit of Dunnell. I ordered that Exhibit “C” be removed
from the Record.
[18]
Accordingly,
the application for judicial review is dismissed. The Respondent does not ask
for costs, thus none will be awarded.
JUDGMENT
UPON APPLICATION made before
me on the 1st day of May, 2006 for judicial review of a decision of
the Canadian Human Rights Commission dated May 11, 2005 wherein the Applicant’s
complaint as to the basis of her dismissal from the Respondent, was dismissed.
AND upon
reviewing the Records herein;
AND upon hearing
from Counsel for the parties;
FOR the Reasons
provided herewith;
THIS COURT ADJUDGES that
1. The application is dismissed.
2. No costs to any party.
3. Exhibit “C” to the affidavit of
Dunnell be removed from the Record.
“Roger
T. Hughes”
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