Tse v. Federal Express Canada Ltd., 2005 FC 599

Date: 20050502

Docket: T-894-04

Citation: 2005 FC 599

BETWEEN:

                                                                    WING TSE

                                                                                                                                            Applicant

                                                                         - and -

                                              FEDERAL EXPRESS CANADA LTD.

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

DAWSON J.

[1]                Mr. Wing Tse brings this application for judicial review of the April 8, 2004 decision of the Canadian Human Rights Commission ("Commission") to dismiss his complaint about his then employer, Federal Express Canada Ltd. ("Federal Express").

BACKGROUND FACTS

[2]                Mr. Tse was hired by Federal Express in October 1989 as a courier. On April 5, 2002, he filed a complaint with the Commission alleging that, contrary to section 14.1 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("Act"), Federal Express had discriminated against him in retaliation for the fact that Mr. Tse had previously filed a human rights complaint against it. Mr. Tse also alleged that, contrary to section 7 of the Act, Federal Express discriminated against him by treating him in an adverse, differential manner because of his national or ethnic origin.

[3]                Specifically, Mr. Tse claimed that all of the following alleged incidents were related to the fact that he had previously filed a complaint with the Commission, or were related to his national or ethnic origin:

1.          On August 16, 2000, his manager, in the presence of two other employees, criticized Mr. Tse's attempt to expedite the delivery of a package. Mr. Tse believed that his manager was trying to provoke him to act in a manner which would lead to the termination of Mr. Tse's employment.

2.          In November 2000, the former Operations Manager refused to reimburse Mr. Tse for one hour's pay so that Mr. Tse could vote in the federal election. Mr. Tse said that the former Operations Manager also failed to pay another employee of Chinese origin on that occasion. Mr. Tse had to seek the assistance of the Vice-President of personnel in order to be paid.

3.          On April 20, 2001, Mr. Tse fell from a broken stool injuring himself and a co-worker. The injury left Mr. Tse unable to work until April 26, 2001. In a memorandum dated May 14, 2001, the former Operations Manager reprimanded Mr. Tse for wilfully using faulty equipment, and stated that Mr. Tse displayed a lack of judgment. Mr. Tse was, as a result, dismissed from the workplace safety committee which he had co-founded.

4.          On April 26, 2001, the former Operations Manager sent Mr. Tse to his physician for a note to return to work. When Mr. Tse returned to work that day he was sent home and so was unable to earn further wages that day. Mr. Tse says that the former Operations Manager had allowed other employees to continue their workdays under such circumstances.

5.          On November 22, 2001, the current Operations Manager wrongly accused Mr. Tse of wasting 24 minutes of company time. An independent third party later determined that this accusation was unfounded.

6.          On January 14, 2002, two white employees and Mr. Tse were falsely accused of verbally abusing a third white employee and, after the matter was resolved, only Mr. Tse was docked wages for the incident.

7.          On January 23, 2002, the same third white employee harassed Mr. Tse. In a letter of warning, dated January 29, 2002, the Operations Manager did not agree that the employee had harassed Mr. Tse and accused Mr. Tse of acting in an intimidating and antagonistic manner toward the employee.

[4]                Federal Express denied that it retaliated against Mr. Tse for his previous complaint, or that it treated him in an adverse, differential manner because of his national or ethnic origin. According to Federal Express, Mr. Tse's complaint was frivolous and should be dismissed.

THE COMMISSION'S DECISION

[5]                The members of the Commission noted that, before rendering their decision, they reviewed the report of the investigator who had looked into Mr. Tse's complaints, together with any submissions filed by the parties in response to the investigator's report. After examining this information the Commission decided, pursuant to paragraph 44(3)(b) of the Act, to dismiss the complaint because "the evidence does not support the allegations that [Federal Express] treated [Mr. Tse] in an adverse differential manner as retaliation for his previously filing a complaint with the Canadian Human Rights Commission, or because of his Chinese national or ethnic origin". Section 44 of the Act is set out in the Appendix to these reasons.

THE ISSUES

[6]                Mr. Tse raises six issues. He says that:

1.          The Commission failed to exercise its authority under section 43 of the Act to relentlessly pursue the facts.

2.          The Commission failed to observe the principle of natural justice and procedural fairness through a continuous lack of comprehension.

3.          The Commission relied solely on the investigator's report without examining the underlying evidence.

4.          The Commission relied solely on the investigator's conclusion, leaving the applicant with a reasonable apprehension of bias.

5.          The Commission based its decision on an erroneous and perfunctory investigation which was made in a dismissive manner without regard for the material set before it.

6.          The Commission's use of power led to an improper purpose and took into account wrong considerations, failed to consider relevant materials, and lacked the requirement of neutrality and thoroughness.

STANDARD OF REVIEW

[7]                The Supreme Court of Canada has repeatedly stressed that, in any judicial review of the exercise of a statutory power by an administrative decision-maker, the starting point is the determination, by the application of the pragmatic and functional analysis, of the appropriate standard of review. However, to the extent Mr. Tse raises issues of procedural fairness, the pragmatic and functional analysis does not apply to questions of procedural fairness. In C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100, the Supreme Court held that questions of procedural fairness are questions of law. Thus, the test to be applied to the review of an alleged breach of the duty of fairness is correctness.

[8]                As to the applicable standard of review to be applied to the remaining issues raised by Mr. Tse, the pragmatic and functional analysis requires a court to weigh a series of factors in order to ascertain whether a particular issue before an administrative decision-maker should receive an exacting review by a court, or undergo "significant searching or testing", or be left to the near exclusive determination of the decision-maker. In every case, the ultimate question to be determined is what level of deference the legislature intended to be afforded to the particular decision at issue. The relevant factors to be considered within the pragmatic and functional analysis are the existence of a privative provision or a statutory right of appeal, the relative expertise of the decision-maker, the purposes of the relevant legislation and the particular provision at issue, and the nature of the question.

[9]                In the present case, the language of the relevant statutory provision, subparagraph 44(3)(b)(i) of the Act, provides that the Commission shall dismiss a complaint "if it is satisfied" that, "having regard to all of the circumstances of the complaint" an inquiry into the complaint "is not warranted". Parliament's language suggests a standard of deference.

[10]            Turning to the specific factors to be considered when applying the pragmatic and functional analysis, first, the Act is silent on the question of review of a decision of the Commission that no inquiry is warranted. There is neither a privative clause nor a specific right of appeal. Silence is a neutral factor.

[11]            Second, concerning the relative expertise of the Commission, an administrative body may be so habitually called upon to make findings of fact in a particular legislative context that it acquires a measure of institutional expertise. I find this to be the case with respect to the determination by the Commission of whether, on the facts before it, an inquiry is warranted. This expertise favours a measure of deference.

[12]            Third, with respect to the purpose of the Act, as stated in section 2 of the Act, the Act's purpose is to give effect to the principle that all individuals should enjoy equal opportunities without hindrance by discriminatory practices. In carrying out this purpose, the Commission is given the discretion to dismiss complaints where it is satisfied that further inquiry is not warranted. In deciding this, the Commission does not weigh evidence as in a judicial proceeding, but determines whether there is a reasonable basis on the evidence before it to justify proceeding to the next stage. The nature of that exercise does not require the Commission to resolve and balance competing policy objectives or to balance the interests of various constituencies. Nor does that exercise engage the Commission in policy issues. Those statutory purposes demand greater deference. In contrast, subparagraph 44(3)(b)(i) is a statutory provision that functions in the context of resolving disputes or determining rights between two parties. That type of legislative provision requires less deference. I conclude that the specific legislative purpose of subparagraph 44(3)(b)(i) requires less judicial deference.

[13]            Finally, as to the nature of the problem, the decision under review is essentially fact driven. Do the facts before the Commission warrant an inquiry? This factor militates in favour of showing more deference to the Commission's decision because, even if the question can be characterized as a question of mixed fact and law, the question is fact intensive.

[14]            On the basis of this analysis, I conclude that the applicable standard of review to be applied to this decision is that of reasonableness simpliciter. This conclusion is consistent with the decision of the Federal Court of Appeal in Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.) at paragraph 13 and the decisions of this Court in MacLean v. Marine Atlantic Inc. (2003), 243 F.T.R. 219 and Gardner v. Canada (Attorney General) (2004), 250 F.T.R. 115.

ANALYSIS

[15]            While Mr. Tse raised six separate issues, in essence he raises two concerns:

1.          Did the Commission fail to afford procedural fairness to Mr. Tse?

2.          Was the Commission's decision so unreasonable that it should be set aside?

[16]            Each concern will be dealt with in turn.

(i)          Did the Commission fail to afford procedural fairness to Mr. Tse?

[17]            Included in Mr. Tse's concerns are whether his claim was properly considered because the Commission "relied solely on the investigator's report without examining the underlying evidence" and whether the Commission based its decision on an erroneous and perfunctory investigation.

[18]            The requirements of procedural fairness are variable, depending in this case upon factors such as the nature of the required investigation, the nature of the legislative scheme contained in the Act, the Commission's choice of procedure, and the consequences of the decision upon Mr. Tse. Procedural fairness generally requires that those affected by a decision must have a meaningful opportunity to present evidence relevant to their case and to have that evidence fully and fairly considered. See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 22, 28 and 32.

[19]            In the context of the Commission and the exercise of its jurisdiction to consider whether an inquiry is warranted, the Federal Court of Appeal has held that procedural fairness does not require that members of the Commission examine the complete record of the investigation. Instead, they are entitled to rely upon the investigator's report. To this are added at least three requirements.

[20]            First, the investigator who prepares the report must be neutral and thorough. Judicial interference is warranted where an investigator fails, in the words of Mr. Justice Nadon in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) at paragraphs 41 through 60; affirmed (1996), 205 N.R. 383 (F.C.A.), to investigate "obviously crucial evidence". See also: Tahmourpour v. Canada (Solicitor General), 2005 FCA 113; [2005] F.C.J. No. 543 at paragraph 8 and following.

[21]            Second, the Commission is required to inform the parties of the substance of the evidence obtained by the investigator and placed before the Commission. This requirement is met by the disclosure of the investigator's report to the parties. See: Canadian Broadcasting Corp. v. Paul (2001), 198 D.L.R. (4^th) 633 (F.C.A.) at paragraphs 39 through 44.

[22]            Third, the Commission is required to provide the parties with the opportunity to make all relevant representations in response to the investigator's report and to consider those responses when it makes its decision. See: Canadian Broadcasting Corp., supra.

[23]            Applying these principles to the present case, the investigator's report sets out separately, and analyses, each of Mr. Tse's allegations. The investigator clearly records the evidence he received regarding each allegation, the relevant witnesses he spoke to, and the conclusion he draws from the evidence with respect to each allegation. The investigator interviewed over a dozen witnesses, and some witnesses were interviewed more than once. The witnesses who were interviewed were not confined to Federal Express managers or supervisors. Mr. Tse's co-workers, who witnessed events, were also interviewed. The investigator obtained and examined relevant information from Federal Express (for example, its policy on allowing employees the opportunity to vote). The investigator examined the Commission's file on the first complaint Mr. Tse made to it in order to ascertain which Federal Express managers or supervisors knew of that initial complaint. Mr. Tse has, in my view, established no basis on which to conclude that the investigation was slipshod, perfunctory, made in a dismissive manner, or ignored crucial evidence. Mr. Tse has, therefore, failed to establish that the investigation was so deficient as to amount to a breach of the duty of procedural fairness. Put positively, the investigator's report provided an adequate and fair basis upon which the Commission could evaluate whether an inquiry was warranted.

[24]            The investigator's report was then provided to Mr. Tse as, subsequently, was the response of Federal Express to the investigator's report. Mr. Tse then provided responsive submissions to both the investigator's report and Federal Express' response. Thus, the second and third requirements referred to above were met.

[25]            I find, therefore, that Mr. Tse was not denied procedural fairness.

[26]            To the extent that Mr. Tse alleges a reasonable apprehension of bias because the Commission relied "solely on the investigator's conclusion", the test for reasonable apprehension of bias is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [a decision-maker], whether consciously or unconsciously, would not decide fairly". See: [1978] 1 S.C.R. 369">Comm. for Justice v. Nat. Energy Board, [1978] 1 S.C.R. 369 at page 394.

[27]            There are, I believe, two answers to Mr. Tse's concern about a reasonable apprehension of bias. First, there is no basis upon which to conclude that the Commission did not consider the responses of Mr. Tse and Federal Express to the investigator's report. Thus, contrary to Mr. Tse's submission, the Commission did not rely solely upon the investigator's report. Second, and more importantly, to the extent the Commission followed the procedure set out in the Act and the jurisprudence, and to the extent that the investigator's report quoted relevant documents and witnesses for the Commission itself to assess, and taking into account the volume of the cases before the Commission, in my view no informed person could reasonably conclude that the Commission would not decide Mr. Tse's complaint fairly because it relied upon the investigator's report and did not examine the entirety of the underlying evidence.

(ii)         Was the Commission's decision so unreasonable that it should be set aside?

[28]            An unreasonable decision is one that is not supported by any reasons that can bear a somewhat probing examination. A decision will be unreasonable "only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived". A decision may satisfy this standard of review if supported by a tenable explanation, even if that explanation is not one that a reviewing court finds compelling. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.

[29]            The Commission did not provide reasons for its decision. However, the Federal Court of Appeal confirmed in Canadian Broadcasting Corp, supra, at paragraph 43, that "the Courts have found the Commission's reasons in the Investigation Report itself".

[30]            Applying the standard of review of reasonableness simpliciter, there was sufficient evidence before the Commission in the investigator's report and in the responsive submissions of the parties to support the conclusion that Federal Express' treatment of Mr. Tse was not retaliation for his prior complaint and was not because of his Chinese national or ethnic origin. Reasons grounded in that evidence were provided by the investigator for his conclusions that the treatment Mr. Tse received was neither retaliatory nor discriminatory on the basis of Mr. Tse's national or ethnic origin. Generally, those reasons were to the effect that Federal Express had provided satisfactory reasons for its series of disciplinary measures against Mr. Tse. Federal Express' position was often confirmed by memoranda prepared at the time of the relevant events and those memoranda were quoted by the investigator in his report.

[31]            I have concluded that the investigator's treatment of the evidence, and the reasons provided for his recommendation to the Commission that the matter not proceed to inquiry, stand up to a somewhat probing examination. The reasons, taken as a whole, are tenable, grounded in the evidence, and support the decision of the Commission that an inquiry was not warranted. The decision was not, therefore, unreasonable.

CONCLUSION

[32]            The application for judicial review will therefore be dismissed.

[33]            While Federal Express sought costs in its written submissions, it made no submissions concerning costs at the hearing. Federal Express shall, therefore, have seven days from the date of receipt of these reasons to serve and file submissions with respect to costs. Mr. Tse shall similarly then have seven days from receipt of Federal Express' submissions to serve and file his responding submissions with respect to costs. Federal Express shall then have four days to serve and file any reply submissions.

[34]            Following consideration of those submissions, an order will issue dismissing the application for judicial review and dealing with the issue of costs.

                "Eleanor R. Dawson"         

Judge

Ottawa, Ontario

May 2, 2005

APPENDIX

Section 44 of the Canadian Human Rights Act:

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-894-04

STYLE OF CAUSE:                          WING TSE

- and -

FEDERAL EXPRESS CANADA LTD.

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      April 5, 2005

REASONS FOR ORDER:               DAWSON J.

DATED:                                             May 2, 2005

APPEARANCES:

Mr. Wing Tse                                                                            on his own behalf

Ms. Andrea L. Zwack                                                               for the Respondent

SOLICITORS OF RECORD:

Mr. Wing Tse                                                                            on his own behalf

Heenan Blaikie LLP                                                                   for the Respondent

Vancouver, British Columbia