Date: 20100917
Docket:
T-290-09
Citation: 2010
FC 935
Ottawa, Ontario,
September 17, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JAIME
H. ORTIZ
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
For many
years Mr. Ortiz provided Spanish-English translation services to the
Immigration and Refugee Board (IRB). He worked in Greater Toronto, primarily at
two detention centres. He signed a series of one-year contracts, the last for
the calendar year 2006. However, he was not provided with any work that year.
This led him to eventually complain to the Canadian Human Rights Commission
that he was a victim of age discrimination. The Commission appointed an
investigator who reported that in her opinion the evidence did not support his
contention. Rather than appoint a conciliator or refer the matter to the
Canadian Human Rights Tribunal for a full hearing, the Commission endorsed that
report and dismissed the complaint. Mr. Ortiz has sought a judicial review of
that decision.
[2]
The
investigator took jurisdiction on the grounds that whether Mr. Ortiz was an
employee as he asserted, or an independent contractor as the IRB asserted, his
services had been employed and so the issue of discrimination could be
examined.
[3]
There are
two grounds on which Mr. Ortiz seeks judicial review. The first is that the
manner in which the investigator went about her business was procedurally
unfair. The second is that the decision of the Commission to dismiss his
complaint was unreasonable.
[4]
Mr. Ortiz,
who was self-represented, did not have a clear idea of the remedies available
to him on judicial review. He asked for costs including the monies he would
have earned from January 2006 through to the date he signed his memorandum of
fact and law, which was in June of this year. I explained to him that if I
granted his application the remedy would be to refer the matter back to the
Commission for a fresh investigation. Costs in this Court do not extend to
income allegedly lost.
[5]
The basis
of the procedurally unfair submissions is that the investigator interviewed
seven witnesses proposed by the IRB, and only one of the four Mr. Ortiz
proposed. Mr. Ortiz was interviewed by telephone. He submits he should have
been interviewed face to face. In addition, he was not given a fair opportunity
to respond to the position taken by the IRB. Had there been a more fulsome
examination, the investigation should have concluded that he had been the
victim of adverse discrimination.
[6]
The short
answer is that even if the investigation was procedurally unfair, and I
specifically find that it was not, the outcome of another investigation could
only be the same. It is an undeniable fact that Mr. Ortiz, who was in his
mid-50s, was one year younger than the average age of interpreters used by the
IRB at the time (Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202, 163 N.R. 27). Whatever discrimination
there may have been could not have been based on age.
[7]
Mr.
Ortiz’s real complaint is that he has been victimized by Ms. Rita Prashad, the
Head of the Interpreters and Recordings Unit of the Central Region of the IRB,
who did not like him personally, and because he attempted to act as a union organizer.
It was she who directed that he be given no more work. Even if such be true, such
remedies as may be available to Mr. Ortiz do not include intervention by the Commission.
The bases of the Commission’s jurisdiction are grounds of discrimination which
are prohibited under the Canadian Human Rights Act, i.e. “race,
national or ethnic origin, colour, religion, age, sex, sexual orientation, marital
status, family status, disability and conviction for which a pardon has been
granted” (section 3).
[8]
Matters
came to a head in December 2005 when, according to the IRB, Mr. Ortiz did not
show up at a detention hearing. He claims that he was led to understand that as
a result his employment was terminated. The coordinator is said to have
informed him that Ms. Prashad had instructed him not to call him for future
work assignments. Mr. Ortiz called Ms. Prashad, and this is his recollection of
the conversation:
Ms. Prashad stated to me that”The
suspension was going to be a lengthy one” and when I asked her again the reason
Ms. Prashad said, “You’re always late, maybe if you were younger things
would be different”.
[Mr. Ortiz’s emphasis.]
Ms. Prashad denies making any comment with respect to age.
Although he was given no work for a while, he was offered and signed a new
contract for 2006. The IRB say they called him for work, but he never
responded. He denies being called but on the other hand concedes that he never
called the IRB for work in 2006.
[9]
The
investigator concluded that Mr. Ortiz’s lack of employment opportunities during
the year 2006 resulted from his consistent breaches of contract in arriving for
work late, or not showing up at all, and his failure to advise as to his
availability to work. The investigator’s conclusions rested in large measure on
credibility findings and there is nothing in the record to suggest her
conclusions were not thought out and reasonable. Mr. Ortiz simply wants the
Court to reweigh the evidence.
[10]
The IRB’s
position is that commencing in 2003 and 2004, as a result of complaints of
interpreters showing up late, ten interpreters, including Mr. Ortiz, were
cautioned. He was cautioned in September 2004. While Mr. Ortiz recalls a
meeting at that time, he said that a caution was not on the agenda.
[11]
From then
until 20 December 2005, he was late 41 times and did not show up twice. The
culminating event was the failure to show at a detention centre on 20 December
2005. He says that he did but that the centre was subject to a lock-down and he
called the IRB to report same. The person he says he called does not recall one
way or another. The IRB’s records indicate that he was supposed to be at
another centre and that the only required interpretation at the detention
centre he said he presented himself at was Polish-English and that it proceeded,
i.e. there was no lock-down.
[12]
While Mr.
Ortiz admits that he may have been late on a few occasions, he said that the
sign in records that show him late some 40 times were falsified. In particular
he says it was a requirement that he personally sign the sign-in sheets. The
sheets in question were not signed. However, a witness whose name he submitted
supported the IRB’s position that interpreters sometimes sign in, and sometimes
were signed in. Although Mr. Ortiz had an opportunity to contest the accuracy
of the records, he did not produce his own diary for the days in questions.
[13]
As to the
lack of work in 2006, the IRB contends that it would call interpreters and vice
versa. Mr. Ortiz claims that the policy was “don’t call us we’ll call you”.
However, the witness whose name he proposed confirmed the IRB’s position.
[14]
As to the
three other potential witnesses identified by Mr. Ortiz, as indicated by the
investigator in her report, they were either reluctant to talk or set out
impossible conditions. Even if Mr. Ortiz is correct that they were afraid of
reprisals on the basis that there were too many interpreters and not enough
work, and that favouritism played a role, again the Human Rights Act is
not engaged.
[15]
The
investigator enjoys considerable latitude in the manner in which she went about
her work. The authorities were recently reviewed by Mr. Justice Zinn in McFadyen
v. Canada (Attorney General), 2009 FC 78, 340 F.T.R. 221 and Tinney
v. Canada (Attorney General), 2010 FC 605, [2010] F.C.J. No. 744 (QL). I
cannot improve upon what Mr. Justice Zinn said at para. 45 of McFadyen:
Fifth, the applicant alleges
that the investigation was not thorough as the investigator failed to interview
“a number of vitally connected decision makers” at CRA. This cannot be sustained.
First, I find that the investigator did question those at CRA who had been the
most critical decision- makers, namely Ms. McGetchie and Ms. McKenny and, in
addition, had an interview with Ms. Erskine who was a senior Rulings Officer at
CRA. Justice Nadon of the Federal Court – Trial Division, as he then was,
in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, at
para.69, has observed that the fact that an investigator has not interviewed
every witness that an applicant would have liked to be interviewed is not
necessarily fatal to the validity of the report. The investigator is the
master of his or her own process. The investigators are experienced and
knowledgeable in this area and ought to be accorded wide latitude in how they
conduct their investigations. When, as here, the key witnesses are
interviewed, the Court should exercise restraint in finding that the
investigation was flawed because others were not investigated, unless there is
clear and cogent evidence that those not interviewed had critical evidence to
offer. There is no such evidence here, and I find that the decision of
the investigator as to whom she would interview was reasonable.
[16]
As
is the practice of the Commission, the investigator’s report and the comments
of the IRB had been circulated and Mr. Ortiz was given a full opportunity to
respond.
[17]
To
summarize, the investigator went about her work in a fair and reasonable way. Her
report and the conclusions therein were well thought out and reasoned, as was
the decision of the Commission to dismiss the complaint rather than entertain
it further or to refer it to the Tribunal.
[18]
With
respect to costs, during the hearing I pointed out to both parties that the
Court much prefers to award lump sum costs and worked out figures should the
judicial review be granted or dismissed.
[19]
Mr.
Ortiz took the position that if it were dismissed that he had been penalized
enough. Even if there were merit to this position, he certainly was not
penalized by the Commission. I award the respondent lump sum costs of $1,500,
which are quite modest in that a full taxation would undoubtedly result in a
higher award.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that this application for judicial review is dismissed with
costs in the favour of the respondent in the lump sum of $1,500.
“Sean Harrington”
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