Date: 20090206
Docket: T-717-07
Citation: 2009 FC 124
Ottawa, Ontario, February 6, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KRISTOFER
DRAGUNOWSKI
Applicant
and
ONTARIO POWER
GENERATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, R.S., 1985, c. F-7 of a decision of the Canadian Human Rights
Commission (Commission), dated March 26, 2007 (Decision), wherein the
Commission, pursuant to section 44(3)(b) of the Canadian Human Rights Act, R.S., 1985, c. H-6 (CHRA), dismissed
the Applicant’s complaint because the investigation results did not support the
allegations of harassment to the point of illness and employment termination
because of his age, national or ethnic origin and disability.
BACKGROUND
[2]
The
Applicant arrived in Canada from Poland in 1972.
[3]
At
the time of the complaint, the Applicant was a temporary employee of Ontario
Power Generation (OPG) where he worked from February 19, 2003 to March 31, 2004. He held the
position of “draftsperson” and worked in the Plant Design Pickering B Drawing
Office. He was represented by the Power Workers’ Union (PWU)-the Canadian Union
of Public Employees (CUPE) CLC Local 1000 at all material times.
[4]
The
terms and conditions of employment of temporary employees are governed by the
provisions of the collective agreement between OPG and the PWU. The collective
agreement provides that temporary employees can be employed for 12 months and,
in limited circumstances, can be employed for up to an additional three months.
[5]
Mr.
Lagambina, one of the Applicant’s managers, did not recommend an extension of
the Applicant’s contract after December 31, 2003. However, the Applicant was
hired by the Section Manager, Brian Finnie, who extended the Applicant’s
contract until March 31, 2004. The Applicant’s contract was not extended
beyond March 31, 2004 because the major design projects on which he worked had
ended by the end of 2003.
[6]
The
Applicant alleges that, as a temporary employee, he was subjected to name calling
and harassment by Mr. Lenny Lagambina because of his national and/or ethnic
origin and age. He says this resulted in him being off work in March 2004 due
to stress and depression. He says he was ridiculed with discriminatory remarks
such as “pole,” “stupid,” “slow,” and that Mr. Lagambina also made fun of his dress
and mimicked his Polish accent. It is also alleged that Mr. Lagambina harassed
the Applicant about his lunch breaks and his going home early. He repeatedly told
the Applicant that he would be hard to keep because of his age and that he
could be replaced by a younger and cheaper employee. Mr. Lagambina denies any
and all of the allegations of harassment and/or differential treatment of the
Applicant during his employment with OPG.
[7]
The
Applicant alleges that he was not made aware of employment benefits at OPG. Although
he provided medical reports from his physicians, his employment was terminated.
Since then, he says he has been unable to work due to his disability.
[8]
The
Applicant also alleges that, as a temporary employee, he was not able to file a
grievance under the Collective Agreement. Although he tried to contact the
OPG’s Human Resources Department to file an internal complaint, he did not
receive any response. Ms. Judy Wakeman, an OPG Human Resources Consultant, says
that there is no record of the Applicant’s having contacted the Human Resources
Department regarding harassment from Mr. Lagambina during his employment with
OPG.
[9]
In
or about 2004, the Applicant consulted with OPG’s Ombudsperson who considered
his allegations respecting harassment and discrimination. After looking into
the matter, including interviewing witnesses, the Ombudsperson declined to support
the Applicant’s allegations.
[10]
On
or about September 26, 2004, the Applicant filed a complaint with the Ontario
Human Rights Commission, which was transferred to the appropriate federal
jurisdiction sometime in March 2005.
[11]
The
Respondent addressed the complaint in a letter dated October 6,
2005
and the Commission appointed an investigator to consider the matter. On or
about October 7, 2005, the Commission wrote to the Applicant asking for a
response to the Respondent’s response. The Applicant responded by a letter
dated October 14, 2005.
[12]
In
or about February 2006, an investigator was appointed by the CHRC. On or about February 20, 2006, the
Applicant provided the CHRC with a list of his witnesses. On or about August 1,
2006, the CHRC wrote to the OPG requesting interviews with certain employees
and asked for certain information and documentation to be sent to them. This
request was accommodated by OPG.
[13]
The
investigator interviewed witnesses he identified, as well as those identified
by the Applicant. On or about December 4, 2006, the Commission issued the
report of the investigator, which recommended that the Commission dismiss the
complaint.
[14]
The
Applicant was given the opportunity to make further representations in respect
to the investigator’s report and he did so on or about January 14, 2007. On or
about March 26, 2007, the Commission dismissed the complaint because the
investigation results did not support the allegations.
DECISION UNDER REVIEW
[15]
The
Commission dismissed the complaint pursuant to paragraph 44(b) of CHRA because
further inquiry was not warranted. The investigation results did not support
any of the allegations of harassment to the point of illness or employment
termination because of the Applicant’s age, national or ethnic origin and
disability.
Witnesses
[16]
The
Commission interviewed the Applicant’s ten witnesses, nine of whom were his
co-workers (one was also the union steward) and an external witness who was a
friend of the Applicant. None of the nine co-worker witnesses witnessed any of
the alleged remarks made by Mr. Lagambina regarding the Applicant’s national or
ethnic origin, age or any other factor as alleged by the Applicant. None of
them witnessed any harassment of the Applicant by Mr. Lagambina, nor did they
think that he treated the Applicant differently. None of the witnesses
experienced any harassment from Mr. Lagambina because of their national or
ethnic origin, age or any other factor. Eight of the nine witnesses were not
aware that the Applicant was away from work sick until he contacted them and
informed them of his complaint.
[17]
The
Commission notes that Mr. Ed Lau, a union steward, said that the Applicant
chose to approach him about Mr. Lagambina although Mr. Don Picola was the
Applicant’s union steward. The Applicant did not tell Mr. Lau about any of the
alleged remarks, differential treatment and/or harassment by Mr. Lagambina.
Instead, the Applicant stated that “Mr. Lagambina put him down and asked why
Mr. Lagambina treated everyone like shit?” Although Mr. Lau offered to
represent the Applicant to discuss his concerns with Mr. Lagambina and mediate
to resolve any of the alleged treatment by Mr. Lagambina, the Applicant refused
any involvement by the union. The Applicant told Mr. Lau that “as a temporary
employee he did not want to rock the boat.”
[18]
Mr.
Lau said that when the Applicant was no longer an employee, the Applicant
telephoned him and informed him that his employment was terminated and that he
had medical problems caused by the stress of Mr. Lagambina’s treatment of him.
Since it was after the fact and the Applicant’s temporary term had ended, the
union did not file a grievance on his behalf.
[19]
Mr.
Lau’s evidence was confirmed by the chief steward, Mr. Steve Labash. Mr. Picola,
the other union steward, confirmed that the Applicant did not approach him
regarding Mr. Lagambina. Instead, the Applicant called Mr. Picola after his
contract ended and asked him what his rights were under the Collective
Agreement.
[20]
Mr.
Picola says that he was also a First Line Manager Assistant (FLMA) and assigned
work to the Applicant. The Applicant was slow and inaccurate in his work. Mr.
Picola had to check the Applicant’s work quite a bit, and so he gave him small
and simple jobs to do.
[21]
Mr.
Lagambina was described by some of the witnesses as “bossy”. The Applicant’s
nine co-workers testified that the workforce at OPG is diverse. Employees have
various ethnic origins and ages. Also, OPG’s permanent employees are older with
many years of service and are due to retire. The external workers tended to be
younger.
[22]
The
Applicant’s non-co-worker witness stated that the Applicant was stressed out
because of Mr. Lagambina’s treatment of him. As well, he said that the
Applicant’s disposition changed during 2003-2004.
[23]
The
Ombudsperson, Ms. Mundy McLaughlin, was interviewed by the Commission and her
report indicated that the Applicant filed a human rights complaint with the OPG
Ombudsperson after his temporary contract had ended and he was no longer an
employee of the OPG. Ms. McLaughlin investigated the Applicant’s allegations of
harassment and discrimination. The investigation included interviews with Mr.
Lagambina, the witnesses that the Applicant provided to the Commission, as well
as union representatives. Not one of the witnesses supported any of the
Applicant’s allegations. The Ombudsperson’s report found that there was a total
absence of abusive behaviour by Mr. Lagambina. The report also states that the
Applicant’s behaviour changed significantly in early 2003. He became withdrawn,
nervous and distressed. This change coincided with some family problems the
Applicant was having.
Disability
[24]
The
Applicant alleged that his employment was terminated because he was off on sick
leave from March 4, 2004 due to stress at work. The Respondent said that the
Applicant’s employment was not terminated because of his disability. Rather,
his temporary employment ended in accordance with the specific terms of the
Collective Agreement with the PWU that governs temporary employees. Temporary
employees with the OPG are employed for a maximum of 12 months. In limited
cases, employment can be extended for another three months, for a total of 15
months. Once the three-month extension elapses, employees are made either
regular employees or their employment ends.
[25]
Two
Medical Absence Reports (MAR) dated March 8, 2004 indicated that the Applicant
suffered from anxiety and depression. The first MAR, from the Applicant’s physician,
Dr. David Wong, indicated that the Applicant’s diagnosis was “anxiety and
depression” and that the Applicant “was presently unfit for any type of work.”
The second MAR came from a specialist, Dr. Dennis Martin, whose diagnosis of
the Applicant was that he had an “anxiety state with depression entirely work
related” and that the Applicant was “presently unfit for any type of work.”
[26]
The
Commission interviewed Dr. Wong and his interview confirmed the MAR dated March
8, 2004 that the Applicant was diagnosed with anxiety and depression. Dr. Wong
saw the Applicant in October 2004 who indicated that he was better. This was
the Applicant’s last visit with Dr. Wong.
[27]
Dr.
Dennis Martin was also interviewed and he said that the Applicant’s medical
file was given to him when he retired in May 2006. He did not recall seeing the
Applicant before his retirement and, because the Applicant had other problems,
he also could not say that the Applicant’s anxiety disorder was the sole result
of his new boss’s harassment. He recalled that the Applicant was later offered
a job after he left work at OPG but did not accept it because it was too far to
commute.
Employment
Benefits
[28]
The
Commission noted that the Applicant was a member of PWU and free to speak to
his union representative at any time with respect to concerns or questions he
had about the OPG health benefit plan. The Applicant did not discuss the
benefits issue with either Mr. Lau or Mr. Finnie.
[29]
The
Applicant never approached anyone within OPG Human Resources with any questions
or concerns about the health benefit plan. As well, there is an orientation
session at the time employees are hired and their benefits are explained to
them. Temporary employees do get sick leave and vacation and they can purchase
additional benefits at a cost, but this is rarely requested.
Post
Complaint Issue: Denied Security Clearance to Work for External Contractor
[30]
The
Applicant says that sometime in 2005, he was denied a security clearance even
though he had one previously. This meant he could not work for an external
contractor at OPG. Once an employee’s employment is finished with OPG, the
security clearance/pass is revoked because the employee is not active.
[31]
Unsatisfied
with the Ombudsperson’s report, the Applicant wrote to OPG chairman Mr. Jake
Epp expressing his concerns and threatening to take various steps if the matter
was not resolved. The Applicant also alleged that OPG had an unsafe work
environment in Pickering. The Applicant called his colleagues to obtain
information about Mr. Lagambina and OPG. One or more of his colleagues
complained to Mr. Lagambina about the Applicant’s calls.
[32]
The
Respondent told the Commission that Mr. Scott Martin, Director-Corporate Safety,
investigated the matter and found no safety violations. The witness that the
Applicant named who worked for the external contractor did not support the
Applicant’s allegations and attested that OPG’s safety standards and practices
are anything but relaxed. Given these incidents, OPG did not clear the
Applicant. It was not clear whether the Applicant was offered a job by an
external contractor who had a contract with OPG. Based on these incidents, the
Applicant was not given a security clearance by OPG.
Findings of
the Commission
[33]
The
Commission found that the Applicant was hired as a temporary Senior Draftsperson-Electrical
to assist with Electrical Design for a specific period, with an end date which
was extended once. The Applicant’s contract was not extended further when the
work was completed and four temporaries who had not been doing design work were
extended for an additional three months to complete the work.
[34]
Although
the Applicant provided medical reports from his family doctor and a specialist
that he was diagnosed with an anxiety disorder on March 8, 2004, the medical
evidence did not link his alleged disability of anxiety disorder solely to the
alleged stress at work.
[35]
The
Applicant alleges that he was harassed on the job to the point of illness by
his First Line Manager, Mr. Lenny Lagambina, because of his age, national and
ethnic origin and disability. He also alleges that his employment was
terminated because of his disability. The testimonial and documentary evidence,
however, does not support these allegations.
[36]
The
Applicant’s allegation that his supervisor, Mr. Lagambina, harassed him to the
point of illness-anxiety disorder is not supported by the witnesses. The
medical evidence indicates that his diagnosis of anxiety disorder was not
solely linked to the alleged stress at work and that he was also treated for
other problems.
[37]
The
Applicant could not file a grievance at OPG because he was a temporary employee,
and he declined union intervention to resolve the alleged problem with his
manager. The parties did not participate in mediation.
[38]
The
Applicant requests his full benefits and salary until retirement age along with
full medical costs and compensation for pain and suffering totalling over $1,000,000.00,
as he is disabled and unable to work. The Respondent offered $3000.
[39]
The
public interest is engaged in this complaint to the extent that it deals with
the employer’s obligation to provide a harassment-free work environment.
ISSUES
[40]
The
following issues are raised by this application:
1)
What
is the appropriate standard of review?
2)
Did
the Commission commit a reviewable error?
3)
Should
the Court disregard evidence presented by the Applicant that was not part of
the record before the Commission?
STATUTORY PROVISIONS
[41]
The following
provision of the CHRA is applicable in this proceeding:
|
44. (1)
L’enquêteur présente son rapport à la Commission le plus tôt possible après
la fin de l’enquête.
…
(3) On receipt of a report referred to in subsection (1), the Commission
…
(b) shall dismiss the complaint to which the report relates if
it is satisfied
(i) that, having regard to all the circumstances of the complaint, an
inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in
paragraphs 41(c) to (e).
|
44. (1) L’enquêteur présente son rapport à
la Commission le plus tôt possible après la fin de l’enquête.
…
(3) Sur réception du rapport d’enquête prévu au
paragraphe (1), la Commission :
…
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à
la plainte, l’examen de celle-ci n’est pas justifié,
(ii) soit que la plainte doit être rejetée pour l’un des
motifs énoncés aux alinéas 41c) à e).
|
STANDARD OF REVIEW
[42]
The
appropriate standard of review with respect to a Commission’s decision has been
reasonableness simpliciter: Corbiere v. Wikwemikong Tribal Police
Services Board, [2007] F.C.A. 97; Garvey v. Meyers Transport
Ltd., [2005] F.C.J. No. 1684 (F.C.A.) and Lindo v. Royal Bank of Canada,
[2000] F.C.J. No. 1101 (F.C.T.D.) (Lindo).
[43]
In Dunsmuir v.
New Brunswick 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at paragraph 44).
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[44]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[45]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to this issue to be reasonableness. When reviewing a decision on the
standard of reasonableness, the analysis will be concerned with “the existence
of justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at
paragraph 47). Put another way, the Court should only intervene if the Decision
was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[46]
Procedural
fairness issues are reviewed on a standard of correctness: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
ARGUMENTS
The Applicant
[47]
The
Applicant has provided the court with a Memorandum of Fact and Law. However, he
has presented no legal arguments in this memorandum, which is merely a
recitation of the facts in his affidavit.
The Respondent
Reviewable
Error
[48]
The
Respondent submits that the Commission complied with the rules of procedural
fairness. The Commission appointed an investigator who interviewed people
identified by the Respondent and the Applicant. The investigator prepared a
report and allowed both parties to review and make submissions. Before coming
to its final conclusion, the Commission reviewed those submissions.
[49]
The
Respondent states that by providing the investigators’ report to the Applicant,
by allowing him to respond to it, and by considering that response before
reaching its Decision, the Commission complied with its duty of fairness when
dismissing the complaint: Slattery v. Canada (Canadian Human Rights
Commission), [1996] F.C.J. No. 385 (F.C.A.).
[50]
The
Respondent submits that a great deal of deference is usually given to
investigators and to a decision of the Commission. Only where unreasonable
omissions are made is judicial review warranted. The Applicant has not pointed to
any unreasonable omissions made by the investigator or the Commission: Slattery
v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 181
(F.D.T.D.), affirmed [1996] F.C.J. No. 385 (F.C.A.).
[51]
The
Respondent goes on to say that the Applicant’s request that a hearing be held so
that his identified witnesses could testify was before the Commission when it
made its Decision. Further inquiry was not warranted and it is reasonable to
conclude that the Commission took that concern into consideration and dismissed
it: Lindo.
[52]
The
Respondent also submits that the Commission is entitled and obliged to subject
the evidence to a hard look before deciding whether, in the circumstances of
the case, a Tribunal hearing is warranted. The CHRA does not provide for an
automatic right to a hearing: Lindo; Morisset v. Canada (Canadian Human Rights
Commission),
[1991] F.C.J. No. 946 (F.C.T.D.); Williams v. First Air, [1998]
F.C.J. No. 1844 (F.C.T.D.); Syndicat des employés de production du Québec et
de l’Acadie v. Canada (Canadian Human Rights Commission), [1986]
F.C.J. No. 718 (F.C.A.), affirmed by SCC, [1989] S.C.J. No. 103 and Larsh v.
Canada (Attorney General), [1999] F.C.J.
No. 508 (F.C.T.D.).
[53]
The
Respondent submits that the Commission exercised its discretion reasonably and
that this application should be dismissed.
Disregard of Evidence
[54]
The
Respondent submits that a judicial review of a tribunal’s decision is confined
to reviewing a matter on the basis of the material that was before the tribunal
when it made its decision. The post-decision affidavits submitted by the
Applicant should not be referred to in this application. The Certificate of the
Canadian Human Rights Commission is an accurate record of what was before the
Commission: Mianowski v. Ontario (Human Rights Commission), [2003] O.J. No.
3790 (Ont.
Div. Ct.).
[55]
The
Respondent concludes by requesting that this application be dismissed with
costs.
ANALYSIS
[56]
The
Applicant has represented himself throughout in this matter and appeared at the
judicial review hearing in Toronto on December 16, 2008.
[57]
Unfortunately,
the Applicant has misconceived the nature of a judicial review application. He
disagrees with the Commission’s Decision and would like the Court to
investigate the whole matter de novo and reach a conclusion favourable
to him.
[58]
I
have closely reviewed the Commission’s Decision and the evidence and reasons in
the Investigator’s report. I have also carefully reviewed the Applicant’s
written submissions (such as they are) and questioned him in open Court
regarding his dissatisfaction with the Decision and the basis upon which he
would like the Court to intervene and grant him relief.
[59]
The
Applicant says that the Commission only represented the interests of OPG and
completely disregarded all the important facts in his case. He also says that
his witnesses and their testimonies were ignored as well as the medical
evidence. He says that the most important witnesses were not questioned and the
testimonies of the one’s who were “were twisted.” He says that all of the
witnesses were intimidated by OPG management to prevent them from telling the
truth. They were afraid they might lose their jobs.
[60]
Notwithstanding
the Applicant’s dissatisfaction with the whole process, the record shows that
his complaint was investigated, his witnesses were interviewed, medical and
other evidence was reviewed, and the Applicant’s own comments were taken into
account. There is no evidence before the Court that witnesses were intimidated.
In fact the Applicant has filed additional affidavits from two witnesses as
part of this application. Neither witness provides evidence of intimidation and
neither witness provides evidence that undermines the Commission’s Decision.
[61]
The
Applicant has presented nothing to the Court (either in his written or oral
submissions) to suggest that the Decision is unreasonable or that the Court
should intervene for any reason other than his own unproven assertions. The
Applicant’s complaints have been investigated, his witnesses have been
interviewed and he has been given a full opportunity to state his case and
comment upon the report. Naturally, he does not like the Decision because it
deprives him of benefits to which he believes he is entitled. However, he has
presented no basis upon which the Court can intervene or find a reviewable
error in the Decision.
[62]
In Lindo
at paragraph 11, Justice Gibson recited the procedure required for a fair
hearing of a complaint before the Commission:
Based upon the decisions of this Court in Slattery v. Canadian
Human Rights Commission and Miller v. Canadian Human Rights Commission et al.,
the content of the duty of fairness required of the Commission in respect of
decisions such as that here under review is reasonably limited. The
investigation conducted on behalf of the Commission must be fair, mindful of
the interests of the parties involved, and thorough. It must reflect
neutrality. The investigative report must be provided to the parties before it
is transmitted to the Commission and the parties must be given a reasonable
opportunity to comment in writing on the investigative report. Any comments
submitted must be transmitted to the Commission for its consideration in
conjunction with the investigative report itself.
[63]
The
evidence before me is that all of this was done. The Applicant was given the
opportunity to comment upon and criticize the report that went to the
Commission. The Applicant does not like the result, but that does not make the Decision
unreasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The
Application is dismissed with costs to the Respondent, Ontario Power
Generation.
“James
Russell”
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