Elkayam v. Canada (Attorney General), 2004 FC 909

Date: 20040625

Docket: T-1097-03

Citation: 2004 FC 909

BETWEEN:

AMRAM ELKAYAM

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

[1]        Amram Elkayam (the applicant) is challenging, by an application for judicial review filed pursuant to section 18.1 of the Federal Courts Act, a decision of the Canadian Human Rights Commission (the Commission) on May 30, 2003, made pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act (the Act), to dismiss his complaint on the ground that:

[TRANSLATION]

(1)           the additional evidence does not support the complainant's allegations that he was treated unfairly in his employment on account of his religion and age; and

(2)           the mis-en-cause did everything possible to resolve the matter.

[2]        Paragraph 44(3)(b) of the Act reads as follows:

Facts

[3]        On May 15, 2000, the applicant filed a complaint with the Commission against the Department of National Defence (the Department) in which he alleged (applicant's record, page 22):

[TRANSLATION]

National Defence acted in a discriminatory manner toward me by not taking effective action regarding the harassment to which I was subjected and treating me unfairly in my employment on account of my religion (Jewish) and my age (61 years old), contrary to sections 7 and 14 of the Canadian Human Rights Act. [My emphasis.]

[4]        His complaint indicated the following facts:

            (1)        since December 1995 he has worked intermittently as an electrician in the electro-mechanical department of the Longue Pointe Base administered by the Department: he worked an average of six months a year, the Department giving him contracts of that length;

            (2)        he ascribed the origin of his problems to the arrival in August 1998 of a new head of the electro-mechanical department at Longue Pointe, who only gave him six-week contracts while some less experienced electricians with less seniority were given contracts of several months: he alleged that he had to fight for an extension each time;

            (3)        on Monday, August 2, 1999, he was working with a fellow electrician who in the afternoon hailed him with "Heil Hitler"; Mr. Elkayam told his colleague not to use these insulting words again; the next day, the other electrician gave him another "Heil Hitler"; the applicant said he mentioned this incident to the new head of the department a few minutes later, but the latter did not reprimand the individual;

            (4)        a few days after the incident, the applicant contacted an officer of the Commission to tell him he was thinking of filing a complaint for harassment and discrimination: the agent referred him to Capt. Lapointe, with whom he met and whom he told of the incidents and his feeling that he was being treated unfairly in his employment, as he did not have the same opportunities as other electricians with less experience and seniority : he said Capt. Lapointe told him she would hold a sensitivity meeting with the electricians; this meeting took place shortly afterwards;

            (5)        despite these clarifications, the applicant alleged he continued to be the subject of differential treatment and abuse of power to disrupt him in his work: he mentioned that in early October 1999 he ordered electrical parts, the usual waiting time for which was about a week; he complained that in early January 2000 he still had not received the parts ordered;

            (6)        he said he was the subject of anti-Semitic comments throughout 1999 and 2000;

            (7)        on January 24, 2000, he gave Capt. Lapointe a letter in which he stated his desire to file an internal complaint with the Department for harassment against two of his colleagues and the head of the department; this was filed on February 3, 2000; Maj. Daniel Ferland ordered an investigation: he called in an outside firm, Textus Inc.; the investigators submitted their report to Maj. Ferland on March 30, 2000;

            (8)        on April 6, 2000, Maj. Ferland wrote the applicant telling him the conclusions of the investigation report: Textus found some of the applicant's allegations of harassment valid and others without foundation;

            (9)        he alleged he noticed no significant change following the conclusions of the report;

            (10)      he alleged that following the Textus report he was the subject of reprisals: he was watched and he was forced to work in unhealthy and dangerous locations;

            (11)      in the meantime, his work contract was extended from August 13, 1999 to February 11, 2000, and subsequently extended to April 11, 2000, finally being moved to June 9, 2000, which was his last day of work;

            (12)      he complained that other younger temporary electricians with less seniority and experience continued to work on a regular basis.

Commission's investigation procedure

            (1)        First investigation report

[5]        The Commission appointed an investigator who signed her report on June 11, 2001, in which she recommended pursuant to subparagraph 44(3)(b)(i) of the Act that the Commission dismiss the complaint, on the ground that based on the evidence the allegation of discrimination against the Department was without foundation (applicant's record, page 41).

[6]        The investigator accurately summarized the main aspects of the applicant's complaint.

[7]        She summarized the Department's defence in these words (applicant's record, page 42):

[TRANSLATION]

7.     The mis-en-cause denied acting in a discriminatory way toward the complainant. An anti-Semitic act was confirmed in the internal investigation and the employee was reprimanded. The employees and supervisors were met and the policy on harassment given to them. The mis-en-cause denied that the complainant was assigned to duties in unhealthy locations and was the subject of constant surveillance. The mis-en-cause maintained that the complainant was not liked by his work colleagues.

[8]        She noted that a team of full-time electricians was located at the Longue Pointe Base, but the Department hired temporary term employees to handle additional requirements and urgent work.

[9]        The investigator referred to the Textus report. The individual who was responsible for the anti-Semitic act was verbally reprimanded and a disciplinary letter placed in his personal file for two years. The Textus investigators also concluded that the Department should make changes to the procedures for ordering parts and recommended, with a view to uniformity, that the Department organize a competition that would allow an eligibility list based on merit to be drawn up for the awarding of term contracts to electricians. According to the investigator, the Department implemented the Textus recommendations.

[10]      The investigator questioned the head of the department and Capt. Lapointe. She said the head of the electro-mechanical department at Longue Pointe confirmed that the applicant had in fact complained to him of the anti-Semitic act committed by one of his colleagues. He said he spoke to both of them: they agreed to end the working day together. After that, they never worked with each other again. Mr. Trottier, the department head, told the investigator that the applicant had never complained of incidents or of the behaviour of his colleagues until the complaint was filed with the Commission.

[11]      In her report the investigator wrote that Capt. Lapointe confirmed that the applicant had never complained of other anti-Semitic comments and had never consulted her, though she had suggested he do so if anyone said or did anything unpleasant. Capt. Lapointe described her sensitivity meeting with the employees. She also said she pointed out the importance of zero tolerance to the personnel supervisor in the unit: the Department's policy on harassment was distributed to all employees.

[12]      The report of June 11, 2001, also mentioned the investigation into the following matters: the ordering of equipment; temporary contracts; working in teams of two; and the allegations of being spied on and forced to work in unhealthy locations. The Department's representatives were questioned on these points.

[13]      The investigator reported that the Department maintained that it was the applicant who was responsible for following up his own orders if a part was not received in the next week. The Department noted that over three months elapsed without the applicant checking on his order. The Department subsequently altered its follow-up procedure. Follow-up is now the responsibility of supervisors.

[14]      The applicant insisted to the investigator that the neglect of his orders was deliberate: his skills were not recognized and the intention was to humiliate him. The person responsible for orders was questioned and denied he acted in this way, as it would have made him look bad.

[15]      The Department explained the awarding of temporary contracts to the applicant. It asserted that the applicant was a good electrician and had a competence card which few people possessed. The Department denied that the awarding of contracts was based not on merit and skill but on favoritism and allegiance.

[16]      The investigator analyzed in the same way the practice of working in teams of two and the allegations of surveillance, a conspiracy against him and working in unhealthy locations. She questioned the Department's representatives and obtained the applicant's comments.

[17]      She drew the following conclusions (applicant's record, page 45):

[TRANSLATION]

36.     The evidence was that as soon as the mis-en-cause was informed that an anti-Semitic act had been committed against the complainant, action was taken. An internal investigation was held and the employee reprimanded. All employees were subsequently called to a meeting and the policy on harassment issued to them. The complainant was told to consult his supervisor if any further incident occurred. The complainant has never mentioned he was dissatisfied with the action taken by the mis-en-cause and has never complained of any other anti-Semitic act or comment being made regarding him.

37.     The investigation was conducted in terms of religion and the complainant did not provide comments regarding age.

38.     The evidence was that the complainant was not unfairly treated in his employment. It was established that the complainant is competent, but he has difficulty working as part of a team.

            (2)        Supplementary report of August 24, 2001

[18]      As required by the rules of procedural fairness, the investigation report of June 11, 2001, was given to the parties for comment. The applicant submitted his comments on July 9, 2001: he noted that the investigator had not questioned his former supervisors.

[19]      The investigation was widened: the investigator submitted a supplementary report on August 24, 2001, and reported on the additional testimony:

            (1)        a former supervisor of the complainant mentioned he had never had any problems with the applicant and had never had any complaints by other employees about him;

            (2)        another supervisor stated that the employees did not want to work with the applicant because he was stubborn and said he was more qualified than the others: the supervisor arranged a rotation between employees in assigning them to the applicant;

            (3)        another former supervisor related that he had never had any complaints about the applicant from other employees and that he was he who did not want to work with certain individuals;

            (4)        one of the applicant's former work colleagues was also questioned: he maintained that the applicant often made negative comments about other employees; everything had to be done his way; he did not accept any other work methods than his own; it was difficult to reach agreement with him and as soon as there was a problem he felt he was being persecuted (applicant's record, page 58).

            (3)        Follow-up - supplementary report of February 3, 2003

[20]      Although it was not clearly indicated by the parties' records, it appears to the Court that the Commission did not accept the investigator's recommendation but decided to appoint a conciliator, whose efforts failed. The conciliator presented his proposals for settlement to the parties on June 13, 2002.

[21]      At its meeting of September 2002, the Commission decided to submit the complaint to an inquiry. Before making its decision on whether to appoint a tribunal to hear the complaint, it wished to obtain additional information on the applicant's performance and his behaviour with his work colleagues prior to August 1998, the date on which his new supervisor, Mr. Trottier, took over.

[22]      A new investigator was appointed and submitted her supplementary report on February 3, 2003. She found that the additional evidence partly supported the recommendation in the first investigation report that the complaint be dismissed.

[23]      The new investigator met with Guy Desgroseillers, who was the applicant's supervisor between 1995 and 1998. It was he who hired him in 1995. Mr. Desgroseillers said that the applicant was special, in that he had his own ideas and his own way of doing things, and that on one or two occasions work colleagues complained to him that the applicant did not work well as part of a team. Despite this situation, Mr. Desgroseillers renewed the applicant's contracts: the applicant was competent and had the knowledge necessary to do his job well. However, in his opinion the complainant worked better alone than as part of a team.

[24]      On December 5, 2002, the investigator renewed contact with the applicant to obtain from him the names of his work colleagues at the time Mr. Desgroseillers was his supervisor. The applicant gave her eight names and all were contacted by the investigator by telephone.

[25]      The following is her summary contained in paragraphs 16, 17 and 18 of her report (applicant's record, page 55):

[TRANSLATION]

16.           The additional evidence obtained indicated that prior to August 1998:

·                        the applicant was competent in his work;

·                        some work colleagues found difficulty working with the complainant as part of a team because he was stubborn, always wanted to be right and it was difficult to understand what he was saying;

·                        the complainant got along better with his work colleagues when he was not part of a team with them;

·                        the complainant worked better alone than in a team; and

·                        at the time this situation did not warrant not re-hiring the complainant, if required.

17.           The additional evidence obtained indicated that after August 1998:

·                        at least two of the complainant's work colleagues got along well with him and two others had no serious problems with him: this contradicts the statement by the mis-en-cause at paragraph 30 of the investigation report, that:

·                        all employees and supervisors unanimously said the complainant did not respect his colleagues, insulted them and did not hesitate to tell them that in his opinion he was more competent than they were.

18.           Consequently, the additional evidence obtained partly supports the statements contained in paragraphs 26, 30, 33 and 38 of the investigation report, that the complainant had difficulty respecting his colleagues and working as part of a team. These statements regarding the complainant's behaviour were not unanimous.

Analysis

            (a)        Certain principles

[26]      The Commission's role in processing complaints is well established. In Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, La Forest J. considered at 890 that the Commission's mandate was to deal with the intake of complaints and to screen them for proper disposition. At paragraph 53, he wrote this:

¶ 53         The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be enquired 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. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in 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:

    The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. [my emphasis.]

[27]      In Bell Canada v. Communications, Energy and Paper Workers Union of Canada, [1999] 1 F.C. 113 (C.A.), Décary J.A. for the Federal Court of Appeal wrote the following at paragraph 38:

¶ 38         The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

[28]      In Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (C.A.), Décary J.A. wrote the following at paragraph 3 of his judgment:

¶ 3           MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission. He came to the conclusion that the circumstances were not such as to warrant the intervention of the Court. [my emphasis.]

[29]      In Murray v. Canada (Canadian Human Rights Commission), [2003] F.C.J. No. 763, Evans J.A. wrote for the Federal Court of Appeal:

¶ 4           We can agree that the investigation and the report have some shortcomings and that it is unacceptable that the investigation and report took four years to complete. Nonetheless, we are not satisfied that the investigation was so defective as to constitute a breach of the duty of fairness (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.)), or that it was patently unreasonable for the Commission to have dismissed the complaint on the basis of the material before it.

¶ 5           Thus, for example, although the investigator's report did not deal specifically with Ms. Murray's complaint of harassment, Ms. Murray conceded that the facts upon which her complaint of harassment rested were essentially identical to those on which she based her claim of discrimination. In addition, if the investigator erred in concluding that in 1996 employees who occupied an acting position for less than one month were not entitled to be paid on the same scale as the person for whom they were acting, the error was immaterial, since the investigator's overall conclusion was that there was no evidence of discrimination against Ms. Murray on the grounds of either race, or national or ethnic origins. To the extent that Ms. Murray alleged that she was entitled to be paid for the time she had performed acting duties, her remedy was a complaint under the collective agreement.

¶ 6           As for the delay in the investigation of the complaint, regrettable as this was, the intervention of the Court at this stage could not rectify any prejudice that the delay may have caused to the investigation.

[30]      I think it is important to clearly define the applicant's complaint against his employer, the Department of National Defence. He is accusing the Department of not having acted effectively to deal with the harassment to which he says he was subjected.

[31]      I note that the applicant did not allege as a basis for judicial review any breach of procedural fairness by the investigator or the Commission, a principle recognized by the Supreme Court of Canada in [1984] 2 S.C.R. 407">Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407, and Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879.

[32]      He also did not argue that the investigation was defective within the meaning of Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.).

[33]      Instead, the applicant made the following points:

            (1)        an unreasonable administrative delay, based on the Supreme Court of Canada's judgment in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, considering that his complaint was filed in early January 2000, he said, and that the Commission took three and a half years to dismiss it;

            (2)        the Commission did not take the Textus report into account;

            (3)        the Commission did not want to accept his complaint on reprisals;

            (4)        the investigators were manipulated by someone high up in the Commission who wanted his complaint to fail;

            (5)        in deciding in favour of the Department the Commission made an arbitrary decision without taking into account the evidence before it: he alleged that the Commission acted in response to the request of the labour relations director general and assistant coordinator of human rights (civil) at the Department;

            (6)        the additional evidence supported his allegations;

            (7)        there was no real investigation;

            (8)        the Commission ignored the fact that his problems began with Mr. Trottier;

            (9)        the Commission misunderstood the basis of his complaint;

            (10)      the Commission made no effort to remedy his situation;

            (11)      the Commission ignored allegations regarding anti-Semitism, racism, discrimination, a conspiracy against him and abuse of authority.

[34]      The applicant's allegations must be dismissed for the following reasons:

            (1)        the applicant submitted no evidence in support of points 4 and 5 listed in the preceding paragraph;

            (2)        points 2, 6, 7, 8, 9, 10 and 11 in the list are without merit: it seems clear to the Court from reading the three investigation reports that the Commission, considering them, came to the conclusion that the evidence was not enough to support convening a human rights tribunal to consider his complaint.

[35]      I am persuaded that the Commission felt that the Department acted quickly and effectively before and after the filing of his internal complaint. It did not accept the applicant's allegations that the anti-Semitism, racism, harassment, conspiracy against him, behaviour of the head of the department and reprisals were supported by the evidence in the record.

[36]      The evidence set out in the investigation reports supports the Commission's conclusion in this regard. In actual fact, what the applicant is asking the Court to do is to substitute its view of the evidence for that of the Commission, an exercise which the Supreme Court of Canada has many times warned that superior courts cannot undertake.

[37]      I will deal briefly with the other points made by the applicant.

[38]      He argued that the Commission's conclusion that the Department had done everything to resolve the problem was contradicted by the fact that the mediation and conciliation did not succeed. I do not accept the applicant's reasoning: there is no evidence to support this argument. Under the Act, the mediation and conciliation remain confidential and cannot be taken into account by the Commission.

[39]      The Commission considered the applicant's grievances regarding the reprisals taken against him, as set out in his complaint, and did not accept them.

[40]      Finally, taking all the circumstances into account, I do not consider the administrative delay unreasonable in the case at bar.

[41]      The applicant said he filed his complaint in early January 2000: what he did not recognize was the fact that he worked with Commission officers to clarify certain aspects of his complaint and it was not until May 15, 2000, that he signed the complaint form.

[42]      The delay can also be explained by the attempts at mediation and conciliation and the Commission's desire, in my opinion fully justified, to ensure that the investigation was complete by obtaining the examination, at various stages, of a large number of individuals whose testimony had to be assessed.

[43]      For all these reasons, this application for judicial review is dismissed.

Ottawa, Ontario

June 25, 2004

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1097-03

STYLE OF CAUSE:                                                   Amram Elkayam v. AGC

PLACE OF HEARING:                                             Montréal

DATE OF HEARING:                                               May 10, 2004

REASONS FOR ORDER:                                        Lemieux J.

DATED:                                                                      June 25, 2004

APPEARANCES:

Amram Elkayam                                                            FOR THE APPLICANT

Mariève Sirois-Vaillancourt                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Elkayam (himself)                                                    FOR THE APPLICANT

64, rue Gauthier

Longueuil, Que

J4L 1Y1

(450) 674-4257

Department of Justice                                                    FOR THE RESPONDENT

Complexe Guy-Favreau

200, boul. René-Lévesque ouest

Tour est, 5^e étage

Montréal, Que

H2Z 1X4

(514) 496-9234

Fax (514) 283-3856