Date: 20071207
Docket: T-519-07
Citation: 2007 FC 1289
Ottawa, Ontario, December 7,
2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MARJORIE
WALLACE
Applicant
and
SYMCOR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review pursuant to section 18.1 of the Federal Courts Act,
S.C. 2002, c. 8 of a decision of the Canadian Human Rights Commission, dated
February 9, 2007, wherein the Commission dismissed the applicant’s complaint on
the basis that the evidence did not support her allegations and that an inquiry
into the complaint was not warranted.
[2]
Ms. Wallace represented
herself on this application. She describes herself as an African Canadian of
Caribbean origin. In 2003 she was employed from an agency for part time work
at Symcor, a firm which processes financial transactions, such as cheques, for
major Canadian banks. In August 2004, she was hired on a permanent part-time
basis on a 9:00 p.m. to 3:00 a.m. shift. She also worked full-time during the
days for a retail company.
[3]
Ms. Wallace claims that
she was discriminated against at Symcor on the basis of her race or ethnic
origin and treated in an adversely differential manner. Her affidavit in this
proceeding contains a list of allegedly discriminatory treatment by co-workers
and supervisors, which includes comments about her hair, a reference to a
colleague’s black baby sitter, an alleged incident with a co-worker in traffic,
being required to wash dishes after a send-off party, being sent home early and
not being transferred into a different department.
[4]
In
July 2005 Ms. Wallace brought her concerns to the attention of the Chief
Executive Officer of Symcor who immediately arranged to have them investigated
by senior officers of the company. After some discussion, which did not produce
the settlement she was seeking, Ms. Wallace attempted to take short term
disability leave. The benefit
claim was denied by the insurer as Ms. Wallace apparently failed to provide evidence
of a disability and continued to work at her day job. That decision was not
appealed. The respondent states that its officers made efforts throughout the
summer to resolve the situation. Ms. Wallace did not return to work and her
employment was terminated on October 15, 2005 for abandonment of her position.
[5]
In September, 2005, Ms.
Wallace filed a complaint with the Commission. She alleged discrimination on
the basis of race, colour, national or ethnic origin and a failure to provide a
workplace free of harassment. Her complaint details many of the same
allegations as in her affidavit in the current case, plus claims such as
‘physical abuse’ suffered by the throwing of elastics and slapping of backs at
her workplace. Mediation was unsuccessful, and an investigator was assigned.
The Investigator added discrimination on the basis of disability to the list of
complaints to consider, based on a problem which Ms. Wallace says affected her
bowels and breath.
[6]
Both parties filed
responses to the complaint. The Investigator reviewed the allegations of Ms. Wallace
in detail and interviewed eight of the ten people mentioned in her complaint,
four of whom no longer worked for Symcor. In the end, the Investigator found
that there was insufficient evidence to support her claim. There was no
evidence provided by Ms. Wallace to establish that she had a disability, for
example, and all those interviewed expressed a lack of knowledge of such
disability. Ms. Wallace may have expected some of the persons she named to
support her claims of discrimination. They did not do so.
[7]
The Investigator’s
report, dated November 14, 2006, was accompanied by an invitation for further
submissions to be placed before the Commission alongside the report. The
response of Ms. Wallace to the report was filed at the hearing of this matter. The
Commission accepted the Investigator’s recommendation to dismiss the complaint,
and Ms. Wallace filed for judicial review on March 27, 2007.
ISSUES:
[8]
The
issues raised in this matter are:
1. Has the applicant met her onus of establishing a reviewable
error?
2. Was natural justice breached?
RELEVANT STATUTORY
PROVISIONS:
[9]
Subsections 3 and 4 of
section 18.1 of the Federal Courts Act, R.S., 1985, c. F-7, read as
follows:
|
18.1 (3) On an application for judicial review, the Federal Court may
( a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
( b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
( a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
( b) failed to
observe a principle of natural justice, procedural fairness or other procedure
that it was required by law to observe;
( c) erred in
law in making a decision or an order, whether or not the error appears on the
face of the record;
( d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
( e) acted, or
failed to act, by reason of fraud or perjured evidence; or
( f) acted in
any other way that was contrary to law.
|
18.1 (3)
Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut
:
a) ordonner à l’office fédéral en cause
d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont
il a retardé l’exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler,
ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle
estime appropriées, ou prohiber ou encore restreindre toute décision,
ordonnance, procédure ou tout autre acte de l’office fédéral.
(4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le
cas :
a) a agi sans compétence, outrepassé
celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice
naturelle ou d’équité procédurale ou toute autre procédure qu’il était
légalement tenu de respecter;
c) a rendu une décision ou une ordonnance
entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du
dossier;
d) a rendu une décision ou une ordonnance
fondée sur une conclusion de fait erronée, tirée de façon abusive ou
arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une
fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à
la loi.
|
ANALYSIS:
[10]
Procedural fairness is
to be assessed with a critical eye. Following a declaration that the review of
procedural fairness questions is distinct from those in which the pragmatic and
functional test must be applied, Justice Allen M. Linden, in Sketchley v.
Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056, states the
following at paragraph 53:
This procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.
[11]
The Commission’s assessment
of evidence and evaluation of the need for further investigation, however, is
to be accorded deference: Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574, [1994] F.C.J. No. 181.
The appropriate standard of review for this aspect of the Commission’s decision
is reasonableness.
Has the applicant met her onus of establishing a
reviewable error?
[12]
The
onus is on an applicant to show that there exist sufficient grounds under
section 18.1 of the Federal Courts Act to permit the Court to provide
the relief outlined therein. As noted by Justices Louis LeBel and Morris J. Fish
in May v. Ferndale
Institution, 2005 SCC 82, [2005]
S.C.J. No. 84 at paragraph 71, “on judicial review, the onus is on the
applicant to demonstrate that the "federal board, commission or other
tribunal" has made an error: s. 18.1(4) of the FCA”.
[13]
Ms.
Wallace appears not to have understood the admittedly technical difference
between a judicial review, as in the instant case, and an appeal. As was acknowledged
during the hearing she was under the impression that I could examine the
evidence that was before the Commission and arrive at a different conclusion as
to its significance. My role is to examine the means by which the Commission
came to its decision to dismiss the complaint for errors, not to substitute my
opinion for that of the Commission or to sit in judgment on the conduct of
Symcor or any of its employees while Ms. Wallace worked there.
[14]
Ms. Wallace urged the
Court to conclude that the Commission erred in not finding that the evidence
disclosed subtle forms of racial discrimination which may not have been
apparent to other observers, such as the eight persons interviewed. I note that
the allegations made by Ms. Wallace in her complaint were of largely of overt not
subtle acts of discrimination and that Ms. Wallace claimed in her response to
the Investigator’s report that persons interviewed were guilty of fabrication. Ms. Wallace has failed to provide any substantiation
of those allegations and has put forward at this review essentially the same
evidence as was before the Investigator.
[15]
The Commission has
expertise in identifying acts of discrimination, both overt and subtle, and is
entitled to considerable deference from the Court with respect to its findings
of fact in this area. In my view, based on the evidence gathered by the
Investigator, the decision not to proceed with the complaint was reasonable. The
applicant has not met her onus
of showing some reviewable error and is therefore not entitled to relief on
that ground.
Was natural justice breached?
[16]
Ms. Wallace alleges
that the Commission failed to do a thorough job of investigation; that Symcor
was never forthright with the information they provided to the Commission; that
Symcor never attempted to resolve the problem; and, that she was never allowed
to provide a detailed report of what happened to her at Symcor. When asked at
the hearing what it was that she was not allowed to provide she repeated the
claims that are contained in her complaint to the Commission.
[17]
After some exploration
of this question, it appears that Ms. Wallace believes that she was denied fairness
because the Investigator did not interview her to draw out more details about
her experience at Symcor. The investigation was being conducted at the
screening stage of the complaint at which there is no right to an oral hearing:
Grivas v. Air Canada, 2006 FC 793, [2006] F.C.J. No. 1096.
[18]
The applicant also
complained during the hearing that the mediation attempted by the Commission
was ineffective because she considers that she was not allowed to attempt to
negotiate a better settlement from Symcor in that process. That is not a matter
properly before the Court on this review.
[19]
The duty of fairness
owed by the Commission is described in Slattery at paragraphs 48 and 49
to include neutrality and thoroughness. A review of the Investigator’s report
shows that each incident complained of by the applicant was addressed and that
the Investigator’s findings were fully and clearly set out. There is no
evidence that the Investigator was denied access to any information he sought.
None of the witnesses interviewed by the Investigator corroborated the
applicant’s allegations. The Investigator was, on the evidence before me, both
neutral and thorough.
[20]
Furthermore, the
applicant filed her lengthy complaint, took the opportunity to respond to the
respondent’s submission and also commented on the Investigator’s report. She therefore
had several opportunities to provide detailed specifics of her claim, which she
is now asserting were not granted to her. There is no indication of any action
taken by the Investigator or the Commission preventing the applicant from
‘doing justice to her case’. Ms. Wallace’s contention that she was not allowed
to present her full case to the Commission is unfounded on the evidence before
me.
[21]
Finally,
the applicant’s assertion that
Symcor was not forthright is a serious allegation and one which is unsubstantiated
by evidence. Also, the claim that Symcor never attempted to resolve the problem
is both unrelated to any proper ground of judicial review and contradicted by
both the applicant’s affidavit and the documentary evidence. An application for
judicial review in this Court is not the appropriate place to address issues
between the applicant and Symcor. My role is to assess the procedure of the Commission
in coming to its decision, not to reweigh the evidence which was before it.
[22]
I find that the
applicant has not shown that there was a breach of procedural fairness in the
Commission’s handling of her case. I will, therefore, dismiss the application.
[23]
The respondent has
requested costs in order to signal to the applicant that litigation has
consequences. I agree that such a gesture is warranted in this matter as the
application in my view was without merit. I will impose nominal costs against
the applicant in the amount of $100.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application is
dismissed. Costs are awarded to the respondent in the amount of $100.
“
Richard G. Mosley ”
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