Basudde v. Canada (Attorney General), 2002 FCT 782

Date: 20020711

Docket: T-37-01

Neutral citation: 2002 FCT 782

Ottawa, Ontario, this 11^th day of July, 2002

Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY                              

BETWEEN:

                                                               DR. CRIS BASUDDE

                                                                                                                                                       Applicant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review to set aside a decision dated January 3, 2001 by the Canadian Human Rights Commission ("Commission") which dismissed the complaint filed by the Applicant.

ISSUES

[2]                 What is the standard of review applicable to this decision?

[3]                 Did the Commission violate principles of procedural fairness in reaching its decision?

[4]                 Was the decision of the Commission based on an investigation that lacked thoroughness?

[5]                 The application for judicial review is allowed.

BACKGROUND

[6]                 The Applicant is a visible minority scientist at the Bureau of Veterinary Drugs ("BVD"). The Bureau is part of the Food Directorate of Health Canada ("HC"). He has been employed in this capacity since 1990.

[7]                 The Applicant complains of two incidents which, in his view, were violations of the obligation of HC to provide him with a workplace which was free of harassment. In February 1998, the newly appointed Director of the BVD addressed the staff of that bureau. The Director, Dr. André Lachance, allegedly said "I like visible minorities".

[8]                 The Applicant found this remark offensive and inappropriate. The Commission investigated this incident. It concluded that a majority of the staff members who heard the statement felt somewhat uncomfortable with the remark and felt that the reference to visible minorities was inappropriate. Most of the witnesses indicated that Dr. Lachance was reflecting on the staff of the department for which he had previously worked. That department apparently was open to cultural diversity, which pleased the Director during his time there.

[9]                 Despite the relative lack of harm felt throughout the BVD, Dr. Lachance's supervisor, Dr. George Paterson, made a commitment to provide sensitivity training to BVD managers. Such training was subsequently made available.

[10]            The second incident which the Applicant found offensive occurred in July 1998. The Applicant complained of remarks made to him by his supervisor, Dr. Man Sen Yong. Dr. Yong had allegedly made a reference to "you people" when addressing the Applicant. In a meeting between the Applicant, Dr. Lachance, a representative of the Applicant's union and a representative from Human Resources Services at HC to discuss the complaints against Dr. Yong, Dr. Lachance allegedly stated that "there is a visible minority person mentality that permeates to these things".

[11]            The Applicant voiced his objections to these comments but received no reply from HC to these objections. The Commission determined that no discriminatory act took place as the visible minority hypotheses postulated by Dr. Lachance were immediately ceased after he understood that race and colour had no bearing on the differences of opinion between the Applicant and Dr. Yong.

[12]            The Applicant presented his complaint to the Commission. The Commission conducted its own investigation. In addition, HC conducted a parallel investigation of its own using an independent investigator not otherwise associated with HC.

[13]            The Commission investigated the Applicant's complaints with respect to both incidents, as well as his allegation of systemic discrimination at HC. Ms. Nicole Kennedy, of the Commission, had initially been assigned in February, 1999 to investigate the complaint. This assignment had been transferred approximately three months later to another investigator, Ms. Cindy Read Hartman.

[14]            During the same period in which the Commission's investigation got underway, Mr. Rod Grainger had been retained by HC for its investigation. In September 1999, he presented his final report to HC, in which he stated his view that the evidence did not support the complaint.

[15]            In June 2000, Ms. Read Hartman recommended to the Commission that the complaint should be dismissed. However, the Commission decided in October 2000 to reopen the complaint. The Applicant was informed of this decision but was not asked for additional input. The Commission made its final decision to dismiss the complaint in January 2001.

DECISION OF THE COMMISSION

[16]            The basis for the Commission's decision to dismiss the complaint was the findings of the investigator, which the Commission accepted, that "[t]he evidence does not support the complainant's allegation that the respondent failed to provide him with a workplace free of harassment" (Investigation Report, paragraph 30, filed as Exhibit GG to the Affidavit of Dr. Cris Basudde).

[17]            The Commission's reason quoted above indicated that it was satisfied that an inquiry was not warranted.

APPLICANT'S ARGUMENTS

[18]            The Applicant's first submission was directed at the standard of review that this Court should apply to the Commission's decision. The decision of the Commission was essentially whether or not the evidence presented to it warrants the appointment of a Tribunal to hear the complaint. Although the regular standard of review of a decision to proceed from the investigation stage to the Tribunal stage is reasonableness simpliciter, a correctness standard should be applied here.

[19]            The Applicant's position is that this case is one in which the Commission violated the rules of procedural fairness and that, therefore, the correctness of the decision is subject to judicial review.

[20]            It is argued that procedural fairness was violated in several ways. With regard to the period following the reopening of the investigation, the Applicant produced as Exhibit LL to his affidavit, a letter indicating that this process would "not require additional input" from him. He was given no other indication of the nature of the investigation over the course of this period, at the end of which the report had, according to the Applicant, been returned unaltered to the Commission.

[21]            It is the Applicant's submission that once the Commission indicated that it would reinvestigate his complaint, he had a reasonable expectation that he would be contacted with respect to that investigation and invited to address any issues that would arise therefrom.

[22]            The Commission did not provide reasons for the initial decision of the investigator to dismiss his complaint; that is, the decision which was followed by the reopening of the investigation. In the Applicant's opinion, he did not have an opportunity to address the concerns that the Commission had when rendering that decision in order to attempt to influence the final decision. His right to be heard was therefore violated and that justifies, in his opinion, that the decision be set aside.

[23]            The investigation leading to the decision to dismiss the complaint was not thorough enough to afford procedural fairness to the Applicant, in his view. The Commission focussed entirely on two specific incidents without considering the systemic nature of the discrimination as alleged by the Applicant. The Applicant believes that this approach was incorrect.

[24]            In addition, the investigation with respect to the remarks made by Dr. Lachance in February 1998 considered Dr. Lachance's intent in making the remarks rather than the effect of those remarks on the Applicant. The investigator concluded that the remark did not constitute a discriminatory act. The Applicant argues that the investigator focussed on the wrong aspect of the complaint and therefore failed to investigate it in a thorough and adequate fashion.

[25]            A similar submission is made with respect to the July 1998 remark by Dr. Lachance. The investigator determined that since the subject of race was dropped once it was understood that it was not a factor in the dispute between the Applicant and his immediate supervisor, no discriminatory act took place. The Applicant submits that such an analysis ignores the impact on the Applicant and the possibility that the incident was part of a pattern of harassment or a sign of systemic discrimination at HC.

[26]            The Applicant contends that the reopening of the investigation amounts to an admission that the investigation was incomplete. That no further investigation was in fact carried out prior to the issuance of the second and final decision constitutes grounds for a claim that the investigation was incomplete and therefore sufficiently lacking in thoroughness to be unsupportable.

RESPONDENT'S ARGUMENTS

[27]            The Respondent's position is that the Commission is to be held to a patently unreasonable standard of review, and that its decision should stand because it was not patently unreasonable.

[28]            The Commission provided disclosure of its report and the comments that it had received from HC. It provided an opportunity to the Applicant to respond. It therefore fulfilled its procedural fairness obligations in this regard.

[29]            The Commission addressed the complaint as presented; namely, an allegation of two incidents. The Respondent's view is that the Commission appropriately applied what the Respondent referred to as a subjective test for harassment. It examined whether a reasonable person would have known that the conduct would be unwelcomed or would exhibit bias based on a prohibited ground, and concluded that no inquiry before the Tribunal was warranted.

[30]            The Commission's role at this stage is to decide whether the evidence provides a reasonable basis for proceeding to the appointment of a Tribunal for the resolution of the complaint. They assess the sufficiency of the evidence supporting the complaint rather than assign respective weights to the evidence of the complainant and the respondent. According to the Respondent in this case, this is not a function with which Parliament intended the courts to intervene lightly.

[31]            The investigator conducted a thorough examination of the events, gathering views on the alleged incidents from a significant number of persons involved and keeping in mind the atmosphere of this particular workplace. The Commission was therefore free to conclude that the evidence did not support a claim of harassment. Applying the standard of what a reasonable person making these comments would have believed, the Commission's conclusion was not patently unreasonable and should therefore not be subject to judicial intervention.

[32]            The Respondent contends that the Applicant's expectation to be consulted again further to the decision to reopen the investigation was not legitimate. The Respondent, at paragraph 43 of its Memorandum, suggests that the Applicant was simply hoping for a "second kick at the can".

[33]            It is also the Respondent's submission that the Commission did consider the information that it received which may have indicated that systemic discrimination was present at HC. The Applicant's submission that the investigation lacked thoroughness because this was not considered should therefore fail.

ANALYSIS

1. Applicable Legislation

[34]            The complaint was based on section 14(1) of the Canadian Human Rights Code, R.S.C. 1985, c. H-6 ("Code"). That section provides that:

[35]            Section 44(3)(b) of the Code provides that once the Commission receives the report with respect to the investigation of the complaint, it

2. Standard of Review

[36]            The Applicant submits that a correctness standard should be applied because the decision was rendered in violation of the principles of procedural fairness, which justifies a correctness standard. The Applicant relies on the Supreme Court of Canada's discussion in Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission, [1989] 2 S.C.R. 879 at 899.

[37]            The Applicant also relies on the discussion in Singh v. Canada (Attorney General), [2001] F.C.J. No. 367 as support for the application of a correctness standard. However, Singh, supra, at paragraph 13, stands for the application of a reasonableness simpliciter standard in the review of decisions by the Commission to dismiss complaints.

[38]            The Respondent argues that I should apply the patently unreasonable standard of review. Pushpanathan v. Canada (Minister of Citizenship), [1998] 1 S.C.R. 982 succinctly brings together all of the major case law that preceded that decision with respect to judicial review.

[39]            The determination of the standard of judicial review to be applied is dependent on the legislative intent of the statute creating the Tribunal whose decision is being reviewed (Pushpanathan, supra. at paragraph 26). The pragmatic and functional approach, introduced in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 and further developed in Pushpanathan, requires that this process of statutory interpretation take a range of factors into account. The presence or absence of a privative clause, the expertise of the Tribunal, the purpose of the Act in question as a whole and the provision at issue in particular, and the nature of the problem; that is, whether it is a question of law or fact, are the four key factors that must be examined.

[40]            The decision of Justice McKeown in Singh supports the rule that "[t]he appropriate standard of review of the Commission's decision of whether or not to dismiss a complaint is reasonableness simpliciter" (Singh, at paragraph 13). Singh also dealt with a decision of the Commission whose decision is under review in the instant case.

[41]            The reasonableness simpliciter standard is justified in this case in that the same Act is being applied as in Singh. The absence of a privative clause, the expertise of the Commission, the purpose of the Act and of s. 44(3)(b)(i) in particular are the same in the present case as in Singh, as is the nature of the problem.

[42]            The definition of the reasonableness simpliciter standard was developed in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748. This standard requires a greater degree of crucial deference to be shown to the Tribunal in question than that which would be shown in the case of a correctness standard. Essentially, if a defect is obvious on the face of the decision, then that defect renders the decision patently unreasonable. If some probing is required to uncover the defect, then the decision is simply considered unreasonable (Southam, supra, at paragraph 57).

[43]            In a review based on the reasonableness standard, the decision must be examined to see if the decision can be supported by reasons that stand up to a somewhat probing examination. A flaw in the evidentiary basis for the decision or in the process by which conclusions were sought to be drawn from it is the type of error which would only become visible by means of a probing examination and would render a decision unreasonable, but not patently unreasonable (Southam, at paragraph 56).

[44]            I will therefore apply the reasonableness simpliciter standard.

3. Procedural Fairness

[45]            For the purpose of discussion, it is necessary to reproduce the letter sent by the Commission to the Applicant on October 4, 2000.

I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint (H48496) against Health Canada.

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 to return the complaint to investigation.

The investigator will be in touch with you shortly to explain the next steps in the process. [emphasis added]

[46]            There is an admission by both counsels that the Applicant was never contacted after October 4, 2000. Even though the record shows that no further investigation or evidence was contemplated by the Commission, I am of the opinion that the Applicant had a reasonable expectation that the investigator would be in touch with him before the Commission renders its decision. I therefore find that there is a breach of procedural fairness here.

4. Thoroughness of the Investigation

[47]            The Applicant submits that the Commission's decision was not sufficiently thorough and that it therefore constituted a violation of procedural fairness.

[48]            In my opinion, the thoroughness of the investigation is an issue that concerns the determination of whether or not the decision was reasonable for the purpose of judicial review.

[49]            The investigation lacked thoroughness in that it examined two specific incidents and ended with a conclusion that no discriminatory act took place since there was no intent to discriminate. It has long been established in Canadian law that an intent to discriminate is not a necessary element for a finding that a discriminatory act took place. This was established by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.

[50]            A reading of the record indicates that much was said about the adverse working conditions and organizational culture at HC. While it is not the province of a court undertaking a judicial review to revisit the weight given to the elements that the Commission considered in making its decision, the court is free to consider whether there were flaws in the basis for the decision, as discussed in Southam, supra.

[51]            As mentioned in Simpsons-Sears, supra, intent is not a necessary precondition to a finding of harassment. As such, the investigator ought to have probed further into the impugned comments in order to determine what they meant to the Applicant. By analysing the complaint with respect to the statements made by Dr. Lachance without adequately considering the context in which they were made and the overall impact of those words and that context on the Applicant, the Commission is responsible for that omission.

[52]            In_Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), Nadon J. (as he was then) stated that deference should be given to the investigator with respect to his or her assessment of the probative value of evidence. According to Nadon J., it is only where the investigation's omissions cannot be rectified by the responding submissions of the complainant that a court should intervene in the decision (Slattery, supra, at page 600).

[53]            The case at bar is arguably such a case. The record discloses that the Applicant made reference to systemic discrimination and a poisoned work environment at HC. The investigation does not evince adequate consideration of the Applicant's claims in this regard. This suggests that the investigation and, in turn, the Commission's decision, were based on an investigation that was insufficiently thorough. Given that the conclusion can be attacked based on its evidentiary bases and the process by which that conclusion was reached, the decision of the Commission is unreasonable.

CONCLUSION

[54]            The application for judicial review is allowed. The decision of the Commission dismissing the complaint of the Applicant is set aside and the matter is referred back to the Commission for a new inquiry by another investigator. The inquiry should address the context in which the remarks were made. Such a study of the context should give consideration to the views of the Applicant and other witnesses with respect to the systemic discrimination that was prevalent at the Applicant's place of work.

[55]            The judicial review is allowed with costs.

                                                  ORDER

THIS COURT ORDERS that:

1.                    The application for judicial review is allowed. The decision of the Commission dismissing the complaint of the Applicant is set aside and the matter is referred back to the Commission for a new inquiry by another investigator. The inquiry should address the context in which the remarks were made. Such a study of the context should give consideration to the views of the Applicant and other witnesses with respect to the systemic discrimination that was prevalent at the Applicant's place of work.

2.                    The judicial review is allowed with costs.

(signed) Michel Beaudry

Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-37-01

STYLE OF CAUSE :                                        DR. CRIS BASUDDE and

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING :                                  Ottawa, Ontario

DATE OF HEARING :                                    May 27, 2002

REASONS FOR ORDER :                           THE HONOURABLE JUSTICE BEAUDRY

DATED :                     July 11, 2002

APPEARANCES :

David Yazbeck                                                     FOR THE APPLICANT

Alain Préfontaine                                                 

Department of Justice                                           FOR THE RESPONDENT

SOLICITORS OF RECORD :

David Yazbeck                                                     FOR THE APPLICANT

Ottawa, Ontario

Morris Rosenberg                                                 FOR THE RESPONDENT

Deputy Attorney General of Canada                  

Toronto, Ontario