Date: 20110329
Docket: T-208-10
Citation: 2011 FC 376
Ottawa, Ontario, March 29, 2011
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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ANDREA BLACKETT
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Applicant
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and
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PETER BISONETTE, PRESIDENT OF SHAW
CABLESYSTEMS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Ms. Andrea Blackett, is a self-represented litigant who seeks
judicial review of a decision of the Canadian
Human Rights Commission (the Commission). The Commission decided not to deal
with the Applicant’s complaint pursuant to paragraph 41(1)(d) of the Canadian
Human Rights Act (the Act).
[2]
The
Applicant’s complaint was filed with the Commission on May 13, 2009, and relates
to allegations of sexual harassment, invasion of her privacy and failure by her
employer to accommodate a stress-related illness which led to her dismissal all
while in the employ of Shaw Cablesystems G.P. (Shaw). The Commission summarized
the Applicant’s complaint as follows:
The complainant alleges that the
respondent discriminated against her on the grounds of sex (female) and
disability (stress-related illness) by failing to provide her with a
harassment-free work environment, by treating her in an adverse differential
manner, by failing to accommodate her disability, and by constructively
dismissing her. The complainant alleges that she was harassed by supervisors
and managers who made sexually harassing comments towards her at staff parties,
who watched her perform very private acts inside a washroom stall at work
through a video camera and then teased her about it, who monitored her home
digital cable box and teased her about the shows she watched, who read personal
and sexual text messages she sent on her work cell phone, accessed through an
employee at Rogers. The complainant also alleges that she developed a
stress-related illness that the respondent failed to accommodate when it did
not approve her doctor-recommended sick leave, and that the respondent
constructively dismissed her because she “felt forced to quit because of
ongoing sexual harassment”.
The decision under
review
[3]
The
Commission conducted the requisite investigation under the Act. In so doing, it
prepared a Section 40/41 Report dated September 16, 2009 and a Supplementary
Section 40/41 Report dated October 28, 2009. These reports set out information
from the parties relating to the complaint and their respective positions. They
also set out the Commissions analysis on the complaint and options open to it
relating to its disposition of the complaint. Both reports were circulated to
the parties. The Applicant and Respondent responded to both reports and
subsequently provided to their respective responses to the Supplementary Report.
[4]
The
Commission ultimately decided not to deal with the complaint under section
41(1)(d) of the Act, because it found the complaint trivial, frivolous,
vexatious or made in bad faith. The Commission closed the file and provided the
following reasons for its decision:
The complainant was not aware that an
objection under section 41(1(d) would be raised and has not provided a position
on the matter.
The respondent raised its objection in
its October 21, 2009, submission to the Section 40/41Report. Its objection can
be summarized as follows:
- that the complainant’s allegations are
factually baseless;
- that the respondent does not have the
technology to commit the breaches of privacy alleged in the complaint;
- that the complainant filed an internal
complaint which was investigated by the respondent in the spring of 2007 and
was found to be baseless;
- that the complainant failed to bring
any new allegations of harassment to the respondent’s attention after the April
2007 investigation;
- that the complainant was denied
short-term disability benefits because she did not provide medical information
to confirm that she had a disability;
- that senior management for the
respondent did not settle with the complainant in December 2008 because her
concerns were the same as those already brought forward and determined in April
2007 to be unfounded;
- that it is technically impossible for
the complainant’s allegations surrounding her digital cable.
The Commission notes and accepts the
following statements made by the respondent in its November 25, 2009
submission:
Therefore, since the public’s resources
should not be wasted upon a Complaint which, in fact, “’plainly and obviously’
cannot succeed,” we have spoken to the witnesses upon whom she relies, several
of whom no longer work for the Respondent and have no interest in this
investigation. The witnesses, who the Complainant purports to have had
conversations with state not only did they not have such conversations but that
the information the Complainant alleges is false and, in fact, in some cases, technically
impossible.
Based on the objections of the
respondent, and the submissions made, the Commission decides not to deal with
the complain under section 41(1)(d) of the Canadian Human Rights Act,
because it would not be in the public interest to pursue the complaint.
The Issues raised by the
Applicant on judicial review
[5]
The
Applicant appears to argue that the Commission erred in deciding as it did
because it did so by failing to conduct a proper investigation in that it
failed to undertake certain inquiries in relation to various witnesses and
conduct certain investigations to explore the merits of her complaint. In her
application the Applicant sets out the following grounds for the Court’s
review:
(a) The Commission’s failure
to interview the programming department of Shaw to investigate whether Shaw has
technology to view customer’s cable channel, DVD, and music selections;
(b) The Commission’s failure
to investigate whether and how many times the Applicant’s selection of internet
sites was viewed by Shaw through their technology, which the Applicant purports
permits such viewing;
(c) The Commission’s failure
to investigate whether a camera placed in the washroom stall at Shaw’s offices
in Vancouver, which the Applicant alleges was
authorized by Shaw’s employees;
(d) The Commission’s failure
to audit Blackett’s work emails to confirm whether or not meetings were set up
with various employees of Shaw.
The standard of review
[6]
The
applicable standard of
review of the Commission’s decision not to deal with a complaint pursuant to
subsection 41(1)(d) of the Canadian Human Rights Act is
reasonableness. See: Dunsmuir v. New Brunswick,
2008 SCC 9; Morin v. Canada (Attorney General), 2007 FC 1355;
and English Baker v. Canada (Attorney General), 2009 FC 1253.
[7]
Breaches of the duty
of procedural fairness are reviewable on the correctness standard. McConnell
v. Canada (Canadian Human Rights Commission), 2005 FCA 289, at para 7.
Analysis
[8]
The
Commission has the discretion pursuant to subsection 44(3) of the Act to decide
whether a particular complaint warrants a more in-depth investigation. To this
end, it may appoint a Tribunal or it may dismiss a complaint. The Commission’s
discretion is subject to the rules of procedural fairness. It is obligated to inform
the parties of the substance of the evidence obtained by the investigator and
which was put before it and give the parties the opportunity to respond to the
evidence and make all relevant representation in relation thereto. The
Commission is entitled to consider the Report(s) and the underlying material
before it and then render its own decision. See: S.E.P.Q.A. v. Canada (Human
Rights Commission), [1989] 2 S.C.R. 879 at 902.
[9]
In
my view the Commission has complied with the rules of procedural fairness in exercising
it discretion to not deal with the Applicant’s complaint. The Commission
provided the parties with the reports along with the evidence collected on the
investigation and afforded the parties multiple opportunities to respond to
this evidence. It also received the parties’ submissions in response to
arguments made. The Applicant adduced no evidence to support the contention
that the Commission failed in its obligation of fairness relating to its
treatment of the Applicant’s complaint.
[10]
Further,
on a careful review of the record, for the reasons set out below, I am also
satisfied the Commission’s decision is reasonable.
[11]
The
grounds set out in the Application are, in essence, the Applicant’s responses
to materials submitted to the Commission by the Respondent which should have
been made before the Commission at the appropriate time. The Applicant has
adduced no evidence to establish that any of the elements raised in support of
her application were not available to her at the time of the decision.
[12]
The
Applicant submitted three separate written submissions to the Commission, on
October 21, November 13, and December 10, 2009. Those submissions and the
Applicant’s responses to the Respondent’s materials were all considered by the
Commission before it rendered its decision.
[13]
The
Applicant has adduced no evidence to refute the facts set out in the witnesses’
statements as set out in the Respondent’s materials which facts were, without
exception, accepted by the Commission. The very witnesses relied upon by the
Applicant in her claim were approached by the Commission’s investigator. These
witnesses denied the Applicant’s allegations stating these to be false and, in
some cases, technically impossible. The investigator was under no
obligation to interview each and every witness that the Applicant would have
liked, nor is the investigator obligated to address each and every alleged
incident of discrimination which the Applicant would have liked. See: Murray
v. Canada (Canadian
Human Rights Commission), 2002 FCT 699 at para 24. In the
circumstances, it was not unreasonable for the Commission to decide as it did
and close the file. It committed no reviewable error by not furthering its
investigation in the manner suggested by the Applicant.
[14]
This
Court has recognized that the Commission has “considerable expertise in human rights matters and in
balancing the competing interests of the parties to a complaint” and that the
“Canadian Human Rights Act grants the Commission a remarkable degree of
latitude when it is performing its screening functions.” See: Khanna v. Canada (Attorney General) 2008 FC 576 at para 23.
[15]
In the circumstances,
I find that the Commission has properly performed its screening function. Its
decision is reasonable in that it is defensible in respect of the facts and law
and is justified, transparent and intelligible within the prescribed
decision-making process.
Conclusion
[16]
For the above reasons,
the Application for Judicial Review of the January 14, 2009 decision of the
Commission dismissing the Applicant’s claim will be dismissed.
JUDGMENT
[17]
THIS
COURT ADJUDGES that the Application
for Judicial Review of the January 14, 2009 decision of the Commission
dismissing the Applicant’s claim is dismissed.
“Edmond P. Blanchard”
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