Date: 20000327
Docket: T-1327-99
BETWEEN:
TODD BOURGEOIS
Applicant
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
PAULE GUILLEMETTE
Respondents
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order to quash, a decision of the Canadian Human Rights Commission dated June 17, 1999, which dismissed two complaints of the applicant, based on the same alleged incidents, against the respondent bank ("CIBC") and Ms. Guillemette, a staff member of the bank.
[2] The application was heard by video conference with the applicant representing himself together with counsel representing the two respondents in Halifax, and the Court presiding at Ottawa. At the end of the hearing on March 22, 2000, I orally dismissed the application for brief reasons then orally rendered. At that time I indicated that written reasons would be provided, which these now are, and a written Order goes confirming dismissal of the application.
[3] Mr. Bourgeois, the applicant, was engaged by the bank for a probationary training period and he commenced that program in Halifax. The respondent, Ms. Guillemette, was one of the facilitators responsible for the program, particularly its first three weeks in which she was directly involved with the applicant and those in his class of trainees. She was not the facilitator involved in the program in the weeks four to seven. In the course of the program the applicant says that he had four conversations with a staff advisor at the bank, using a confidential employee hotline seeking advice about his concerns. In the eighth week he filed a complaint with the Human Resources Department of the bank alleging that he had been sexually harassed by the respondent, Ms. Guillemette, in the course of the training program. During that program his performance was not judged to meet the bank's standards and a week or so after he had filed his complaint his probationary employment was terminated. He believed that was because of his complaint; the bank says he was let go because he did not meet requirements of the program.
[4] After leaving the bank Mr. Bourgeois filed complaints with the Canadian Human Rights Commission alleging sexual harassment by Ms. Guillemette, and in the case of the bank, failure to provide a workplace free of such harassment and dismissal because he had filed a complaint. On filing his complaints he provided to the Commission the addresses of prospective witnesses, including the employee with whom he had dealt in conversation on the employee hotline for advice, and his mother, whom he claimed had been called by Ms. Guillemette. Neither of those two persons was interviewed by the investigator. A third person, a human resources staff member at the bank, suggested as a prospective witness by Mr. Bourgeois, was interviewed by the investigator of the Commission but she had by that time destroyed her diary and was unable to provide information to the investigator.
[5] The investigator conducted the investigation by telephone, calling prospective witnesses, including fellow trainees of Mr. Bourgeois. None of the witnesses were interviewed face-to-face nor was Mr. Bourgeois or, he believes, Ms. Guillemette, by the investigator. In the course of the investigation by the Commission his complaints were forwarded to the respondents and their written responses were provided to Mr. Bourgeois for comment. He did write his comments and forwarded that to the Commission. The investigator's report when completed was circulated to both of the parties and Mr. Bourgeois had a further opportunity to comment in writing on that report, which recommended that his complaints be dismissed.
[6] I note that the applicant applied for employment insurance benefits after his employment was terminated at the bank and in January 1998 he was informed by Human Resources Development Canada that he was ineligible for benefits because he had not proven he was interested in work while he was engaged in the CIBC training program. He believes that he got a poor reference from the bank because of his complaint about sexual harassment. While this was an aspect of his complaint to the Commission about the bank, there is no evidence in the record that would support this belief that a report by the bank to employment insurance officers was improper and was based on the fact he had filed a complaint of sexual harassment.
[7] The investigator's report about the applicant's complaints went forward to the Canadian Human Rights Commission, together with a copy of the complaint forms completed by Mr. Bourgeois and his written representations concerning the investigator's report. Both the report, of some three and one-half pages, and Mr. Bourgeois' comments, of some five and one-half pages, are detailed.
[8] Following consideration by the Commission Mr. Bourgeois was advised in writing by a letter dated June 17, 1999 that the decision of the Commission to dismiss the complaints was made after the members of the Commission reviewed the reports disclosed to him previously and any submissions he had filed in response to the reports. Acting under subparagraph 44(3)(b)(i) of the Canadian Human Rights Act the complaints were dismissed because the evidence did not support the allegations of the complainant.
[9] The application for judicial review is based upon the applicant's perception that key witnesses were not interviewed face-to-face by the investigator and that key evidence was not reviewed or taken into account. The key witnesses are said to be the staff member at the bank who responded to employees' enquiries on the employee hotline, and the applicant's mother, neither of whom was interviewed. It is not clear how either of them could have given direct evidence of the incidents alleged by Mr. Bourgeois to constitute harassment of him. No particulars of the key evidence said not to have been considered were suggested other than that the views of the applicant were not given sufficient weight in the investigator's report.
[10] The decision of the Commission was made pursuant to subparagraph 44(3)(b)(i) which provides, in part, that after an investigator's report is submitted to the Commission it "shall dismiss the complaint to which the report relates if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted".
[11] In Cooper v. Canada (HRC), [1996] 3 S.C.R. 854 at p. 891, Mr. Justice La Forest, writing for the majority of the Court, stated:
| 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 inquired into by a tribunal, the Commission fulfils 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... |
[12] In Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (F.C.A.) at p. 15 the exercise of discretion vested in the Commission in dealing with an investigation report is discussed. Mr. Justice Décary, speaking for the Court, notes inter alia:
| The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. ...the grounds set out for referral to another authority..., for referral to the President of the Human Rights Tribunal Panel...or for an outright dismissal...involve in varying degrees questions of fact, law and opinion..., 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. |
It is clear 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 to the decision of the Commission 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.
[13] The applicant's complaint is essentially that the investigation conducted by the Commission's investigator was not sufficiently thorough. Yet there is no evidence of a breach of the principles of natural justice or of procedural unfairness. The applicant had the opportunity to comment upon the investigator's report. He did so in writing and those comments were before the Commission, together with the investigator's report, at the time of its decision. The applicant's complaint that certain witnesses were not interviewed was a matter before the Commission as was his concern that prospective witnesses should be interviewed face-to-face. The Commission was aware of these and other concerns of the applicant about the investigator's report. In my opinion, the Commission's decision was supportable on the evidence before it.
[14] The Court's task is not to re-examine the evidence and come to its own conclusion. Parliament has given to the Commission authority to investigate and determine, within its discretion, whether a complaint under the Act warrants consideration by a human rights tribunal, or whether to dismiss a complaint. In the exercise of that discretion the Commission is entitled to a high measure of deference.
[15] In this case there are not circumstances that would warrant intervention of the Court. Thus, the application for an order to set aside the decision of the Commission is dismissed.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
March 27, 2000
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