Date: 20101202
Docket:
T-1812-08
Citation:
2010 FC 1220
Ottawa, Ontario, December
2, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MUSTAFA IBRAHIM
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Applicant
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and
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SHAW CABLESYSTEMS G.P. AND
SHAW COMMUNICATIONS INC.
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Ibrahim is a Black Muslim of Somali origin. He has complained to the Canadian
Human Rights Commission that his employers, collectively Shaw, adversely
discriminated against him, failed to accommodate him following a workplace
injury, and eventually fired him because of his race, religion, colour and
disability.
[2]
The
Commission investigated and determined that his complaint should be dismissed.
Mr. Ibrahim has come to this Court for a judicial review of that decision.
The issue is whether it was reasonably open to the Commission to conclude that
there was insufficient evidence to warrant a full inquiry by the Canadian Human
Rights Tribunal. In my opinion it was. The judicial review shall be dismissed
with costs.
[3]
Mustafa
Ibrahim began working as a cable installer for Shaw in October 2001. In April
2003, he suffered a work-related hip, groin and back injury. He went on Workers’
Compensation and only returned to work in February 2005, in a more sedentary
position. In September 2006, he complained to the Canadian Human Rights
Commission that Shaw did not accommodate his disability, and that he was also
discriminated against with respect to certain employee discounts because of the
colour of his skin.
[4]
On
20 February 2007, he was fired, allegedly for cause. The following month he
filed a second complaint with the Commission, based on race, national or ethnic
origin, colour, religion and disability. Mr. Ibrahim complained of adverse
differential treatment, that Shaw failed to accommodate him, failed to provide
a harassment-free work environment and terminated his employment on prohibited
grounds.
[5]
The
Commission first decided not to deal with alleged discriminatory acts which occurred
prior to February 2005. It has discretion pursuant to section 41(1)(e) of the Canadian
Human Rights Act not to deal with complaints based on acts or omissions
which occurred more than one year before the matter was brought to its
attention. That decision was not challenged.
[6]
The
Commission then consolidated the two complaints and appointed an investigator.
In his report, which was circulated to the parties in draft form, and with
respect to which comments were invited, and received, he recommended that the
complaint be dismissed because Mr. Ibrahim’s needs were accommodated, because the
employer took appropriate action to rectify racist graffiti and racist comments
and because his employment was terminated for a legitimate non-discriminatory
reason. The Commission accepted those recommendations and dismissed the
complaint.
[7]
Mr.
Ibrahim’s case is two-fold. He submits that for all intents and purposes there
was no investigation at all. To the extent there was an investigation, it was
superficial and plagued with inordinate delays which led to injustice. In any
event, the Commission’s decision to dismiss his complaint was unreasonable. It should
have referred it to the Canadian Human Rights Tribunal, or, at the very least,
called for a more exhaustive investigation before reaching a decision.
[8]
Mr.
Ibrahim, who is self-represented, prepared a disjointed application record, had
difficulty drawing the line between representations based on the record before
me and testifying anew, and during oral argument did not refer to all the many
points alleged in his written submissions. However I take it he did not resile from
them. Rather, I assume he simply had nothing further to add.
[9]
I
have concluded that the investigation was carried out in accordance with law,
was fair, and that it was reasonably open for the investigator to make the
findings he did. I also find that it was reasonable for the Commission to
accept his recommendations and to dismiss Mr. Ibrahim’s complaint.
THE CANADIAN HUMAN
RIGHTS ACT
[10]
The
purpose of the Act is to give effect, with respect to matters coming within
federal jurisdiction, to the principle that all individuals should have equal
opportunity, and to have their needs accommodated without being subjected to
discriminatory practices based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability or conviction for an offence which has been pardoned.
[11]
The
two sections of the Act at the forefront of Mr. Ibrahim’s application are
sections 7 and 14. Section 7 provides that it is a discriminatory practice to,
among other things, differentiate adversely during the course of employment on
a prohibited ground. Section 14 provides that it is a discriminatory practice
in employment matters to harass someone on a prohibited ground.
[12]
The
Commission was established to deal with complaints. Among other things it may
appoint an investigator who is to submit a report of his or her findings. With
that report in hand, the Commission has a number of options. It may request the
Canadian Human Rights Tribunal to conduct a full inquiry or it may dismiss the
complaint if satisfied that in the circumstances an inquiry into the complaint
is not warranted. It may also appoint conciliators or approve or reject
settlements agreed on by the parties.
[13]
In
cases such as this, where the Commission endorses the investigator’s report
without additional reasons, that report becomes the reasons of the Commission
itself, and is subject to judicial review (Sketchley v. Canada (Attorney
General), 2005 FCA 404, [2006] 3 F.C.R. 392 at paragraph 37).
[14]
In
Syndicat des employés de production du Québec et de l’Acadie v. Canada
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879, [1989] S.C.J. No.
103 (QL), the Supreme Court plumbed Parliament’s intention in the event there
be insufficient evidence to warrant the referral of the complaint by the
Commission to the Tribunal. Mr. Justice Sopinka said at paragraph 27: “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.” Mr. Justice La Forest also noted
in Cooper v. Canada (Canadian Human Rights
Commission), [1996] 3 S.C.R. 854, [1996] S.C.J. No. 115 (QL), at
paragraph 53: “[i]t 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.”
[15]
In
reaching its decision, the Commission must act in accordance with natural
justice. As noted by Madam Justice Layden-Stevenson in Canada (Attorney
General) v. Davis, 2010 FCA 134, 403 N.R. 355, at paragraph 6:
The Commission must act in accordance with natural justice. This
requires that the investigation report upon which the Commission relies be
neutral and thorough and that the parties be given an opportunity to respond to
it: Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392
(F.C.A.) applying Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
See also Slattery v. Canada (Canadian
Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. No. 181 (QL),
affirmed in 2005 N.R. 383, [1996] F.C.J. No. 385 (QL).
[16]
As
also noted in Davis, above, the applicable
standard of review is correctness with regards to natural justice and procedural
fairness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190), and reasonableness on the decision whether or not to refer a
complaint to the Tribunal.
[17]
Although
the relations between Mr. Ibrahim and Shaw had been festering for some time,
there are two overarching circumstances to which most of Mr. Ibrahim’s
complaints relate. The first is the aftermath of his work injury, and the
second is his relationship with coworkers.
[18]
The
work related injury has two major components. The first is that Mr. Ibrahim’s
disability was not accommodated. The second is that in the aftermath he was
denied employee benefits because of the colour of his skin.
[19]
All
of this came to a head in February 2007. Shaw expressed concern both verbally
and in writing that Mr. Ibrahim was failing to properly notify it of doctor
appointments. Since he had stated it took up to three months to get a doctor’s
appointment, Shaw thought he should be able to provide it with appropriate
advance notice to allow it to operate in his absence. It expected at least two
business days notice. If he continued to fail to observe company guidelines
with respect to absences from scheduled shifts, further disciplinary action,
including termination of his employment, might result.
[20]
Mr.
Ibrahim was also surreptitiously recording other employees. He accused one of
making racist statements. Although he said he had a tape recording, initially
he refused to produce it. That employee was transferred elsewhere so he could
have no communication with Mr. Ibrahim.
[21]
Two
other employees, apparently afraid that they were being set up, wrote to the
company to say that Mr. Ibrahim on many occasions had mentioned getting drugs
and smoking pot while at work. They were invited to join him, but refused.
[22]
On
20 February 2007, Mr. Ibrahim was fired for cause “including, but not limited
to, your encouraging your coworkers to partake in illegal narcotics with you in
violation of the Criminal Code, your surreptitiously taping coworkers in
our workplace, your impeding with an investigation into an harassment
allegation, [and] your either hiding or destroying evidence of that
investigation.”
PROCEDURAL FAIRNESS
[23]
Mr.
Ibrahim complains that the investigator did not interview two potential
witnesses he identified, and did not go out in the Somali community in Winnipeg to speak to
the people and to soak up the atmosphere. Had he done so, he would have
realized that the allegation that he consumed narcotics at work or encouraged
others to do so was simply impossible, with no basis other than the colour of
his skin. What he did consume at work was a prescription drug, Nabilone, which
to some extent mimics marihuana. These pills had been prescribed for his back
pain. However, the two witnesses identified worked with Mr. Ibrahim in 2003,
before his injury. The events investigated only began in 2005. The investigator
set out in considerable detail the documents reviewed and identified the
persons interviewed. The Commission enjoys considerable latitude in the way it
carries out its business. What was at issue was what went on at work, not any
presumption, as alleged by Mr. Ibrahim, that people on the streets of Winnipeg think
that someone of Somali origin is a drug dealer.
[24]
In
my opinion the investigation was complete, neutral and fair. The results of an
investigation are not, as Mr. Ibrahim suggest, a scorecard. Since the
investigator found in favour of Shaw on all points, he must have been biased.
Allegations like this are not helpful.
[25]
In Syndicat
des employés de production du Québec, above, Mr. Justice Sopinka adopted
the following statement of Lord Denning in Selvarajan v. Race Relations
Board, [1976] 1 All. E.R. 12 where he said at page 19:
In
recent years we have had to consider the procedure of many bodies who are
required to make an investigation and form an opinion . . . . In all
these cases it has been held that the investigating body is under a duty to act
fairly; but that which fairness requires depends on the nature of the
investigation and the consequences which it may have on persons affected by
it. The fundamental rule is that, if a person may be subjected to pains
or penalties, or be exposed to prosecution or proceedings, or deprived of
remedies or redress, or in some such way adversely affected by the
investigation and report, then he should be told the case made against him and
be afforded a fair opportunity of answering it. The investigating body
is, however, the master of its own procedure. It need not hold a
hearing. It can do everything in writing. It need not allow
lawyers. It need not put every detail of the case against a man.
Suffice it if the broad grounds are given. It need not name its
informants. It can give the substance only. Moreover it need not do
everything itself. It can employ secretaries and assistants to do all the
preliminary work and leave much to them. But, in the end, the
investigating body itself must come to its own decision and make its own
report.
DISABILITY ACCOMMODATION
[26]
It
is not in dispute that Mr. Ibrahim required accommodation following his
workplace injury. Shaw worked closely with the Workers’ Compensation Board to
accommodate his needs when he returned to work in February 2005. The Board
wrote a year later to Shaw stating that Mr. Ibrahim was capable of
returning to his old job as a cable installer. Mr. Ibrahim disputed that opinion
and following receipt of a medical certificate from his physician Shaw
continued to accommodate him in a more sedentary position. The investigator
determined that although Mr. Ibrahim may not have been satisfied with his
modified duties, the evidence was that Shaw accommodated his needs at all
times. That decision was reasonable.
RELIGIOUS ACCOMMODATION
[27]
Mr.
Ibrahim stated that Shaw was aware that he was a Muslim and needed his lunch
break from 13:00 to 13:30 to allow him to pray. His lunch break was originally
from 12:30 to 13:00. However, on his request the timing of his lunch break was granted.
As his supervisor stated: “What Mustafa wanted Mustafa got.” The investigator reasonably
found that the evidence did not support the allegation that Mr. Ibrahim was
refused religious accommodation. Mr. Ibrahim also complained that one year he
did not receive a personal invitation to the firm’s Christmas party. However
that was because no one received a personal invitation. Rather, the invitation
was posted on a bulletin board.
ADVERSE
DIFFERENTIAL TREATMENT IN THE PROVISION OF EMPLOYEE BENEFITS
[28]
Mr.
Ibrahim complained that while he was on sick leave his employee discount for
cable/internet service and employee health care benefits were discontinued and
that work access to the Internet was cut off.
[29]
There
was clearly some confusion here in that Mr. Ibrahim had to pay for part of his
benefits. Although Mr. Ibrahim received the same medical benefits package as all
employees, when an employee goes on Workers’ Compensation, the insurance
company medical benefit is suspended until the employee returns to full-time
work.
[30]
Shaw
admits suspending Mr. Ibrahim’s work internet access for two reasons. The first
was that while he was on sick leave, he came to work to access his Internet.
The second was that his modified duties did not require access to the Internet.
[31]
The
investigator found that there was some administrative confusion as to when his
benefits commenced and ceased. This arose from the fact that he was on and off
work, and collecting Workers’ Compensation benefits, many times between 2003
and 2007. His medical benefits worked hand in glove with Workers’ Compensation.
He was reasonably found to have been treated in the same way as any other
employee.
HARASSMENT – GRAFFITI IN THE WASHROOM
[32]
The
evidence was that on occasion there was graffiti in the men’s washroom linked
to a prohibited ground of discrimination, not necessarily against Mr. Ibrahim. Some
of the remarks were directed to Filipinos. However, the company took all
necessary steps to remove all graffiti from the washroom whenever it appeared.
HARRASSMENT – ALLEGED RACIAL COMMENTS BY A
COWORKER
[33]
There
was an incident involving Mr. Ibrahim and another employee. As soon as Mr.
Ibrahim informed Shaw of the situation, an internal investigation began. The
employee was reprimanded, was asked to write a note of apology which he did,
was removed from the warehouse where Mr. Ibrahim worked and was placed on
other duties.
[34]
Mr.
Ibrahim had taped a conversation with this employee, but refused to provide it.
The investigator found that Shaw dealt with this harassment appropriately and
that Mr. Ibrahim did not cooperate with the investigation.
[35]
Mr.
Ibrahim was also said to have taped other employees making racial comments.
Before me, he denied that he had done so. However a draft of the investigator’s
report in which that statement was made was provided to Mr. Ibrahim, and he did
not comment thereon.
[36]
Mr.
Ibrahim’s practice of tape recording conversations with other employees caused
those employees concern that he was trying to set them up as drug users. Two
employees came forward in writing and alleged that he had asked them to smoke
marijuana with him.
[37]
At
the hearing before me, Mr. Ibrahim accused the two employees of being drug
dealers themselves and toadying up to Shaw to get promotions. As noted earlier,
this was the final straw as far as Shaw was concerned.
[38]
All
and all, the investigator carried out a very thorough and neutral analysis. To
the extent that I have not specifically dealt with other of Mr. Ibrahim’s
complaints, I consider that the investigator’s analysis and conclusion were
reasonable. The investigation report shows that each and every allegation was
fully considered. There had been harassment, but Shaw acted very promptly and
reasonably in dealing with it. There was also some confusion with respect to
employee benefits, but this was administrative in nature and in no way
discriminatory.
COSTS
[39]
Mr.
Ibrahim says that no price can be put on our way of life or on investigations
of allegations of adverse discrimination. The investigator should have come to Winnipeg, and the investigation
should have been faster. However, there are budgetary issues, and cost is a factor.
There is no evidence whatsoever that the result would have been in any way
different had the Commission had many more investigators so that the matter
would have been concluded faster, or had decided that the investigator should
visit Winnipeg.
[40]
There
is no reason why costs should not follow the event. In this case, Shaw retained
its own counsel. However, it did not retain local Winnipeg counsel. It retained Toronto counsel. It had every
right to do so. Costs are, however, a matter of discretion and I see no reason
why Mr. Ibrahim should have to pay for counsel’s travel and accommodation.
[41]
Costs
shall be assessed at midrange of Column 2.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that the judicial review is dismissed, with costs.
“Sean Harrington”
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