Date: 20110518
Docket: T-378-10
Citation: 2011 FC 570
Ottawa, Ontario, this 18th day
of May 2011
Present: The Honourable Justice Johanne
Gauthier
BETWEEN:
PAULINE KAUR GOSAL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Ms. Pauline Kaur Gosal, who represents herself, seeks judicial
review of the decision of the Canadian Human Rights Commission (the Commission)
dismissing her complaint against the Royal Canadian Mounted Police (the RCMP)
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
RSC 1985, c H-6 (the Act) on the basis that the evidence did not support the
allegation that the RCMP failed to provide a harassment-free work environment
nor did it support the allegation that the complainant was refused employment
because of her sex and/or national or ethnic origin.
[2]
For
the reasons that follow, the Court finds that the decision is reasonable and
that the applicant has failed to establish a breach of procedural fairness.
[3]
I
have no doubt the applicant will be deeply disappointed by my findings. She may
not fully appreciate that the Commission can only focus on conduct based (even
if only in part) on a prohibited ground of discrimination (sections 7 and 14 of
the Act). Furthermore, the Commission’s role is not to review generally
matters that fall outside of her current complaint. This means that even if
she, and others like Corporal (Cpl) Dave Reichert, may have been “rejected by
certain individuals at Port Mann” and subjected to a “vindictive” work
environment, such difficulties unrelated to her complaint, which alleged that
her application to become a Regular Member of the RCMP was rejected on
prohibited grounds of discrimination in the Act, are not relevant.
I. Background
[4]
The
applicant has worked as a Federal Public Service employee (“PSE”) since 1990
(Canada Customs). She has been a PSE with the RCMP since April 1995, working in
various administrative positions in different departments such as: the
Integrated Proceeds of Crime Unit, the “E” Division Staffing and Personnel
(recruiting clerk) and at the Border Integrity Unit (support clerk) where she
remained for more than three years. She voluntarily transferred, in December
2002, to the Lower Mainland District Traffic Services – Port Mann Freeway
Patrol Office as a detachment clerk (CR‑04 classified position) and
worked there until February 2006. The applicant also worked as an active peace
officer with the Surrey RCMP Auxiliary Constable Program since 2000.
[5]
As
mentioned above, the applicant alluded to the fact that she experienced much
stress and difficulties at Port Mann. Since in her October 2009 submissions to
the Commission, she mingles the internal complaint that she filed against a
female co-worker in December 2004 with the racist and sexist comments disclosed
in her complaint to the Commission, it is worth saying a few words about this
situation. Obviously, it is not my intention to fully describe everything that
the applicant went through during that period.
[6]
It
appears that for some time, there were operational difficulties at Port Mann in
that there was enough work for two full-time CR‑04 positions, if not
three. For various reasons, the applicant became overloaded and had issues with
co-workers particularly Ms. Bobbi Bodden, also a CR-04, who used to be assigned
to the tasks now performed by the applicant. In early December 2004, the casual
PSE clerk working with the applicant indicated that she could no longer work
with her. Then, the area service manager, Staff Sergeant (S/Sgt) Jim McVey,
allegedly received a report from Informatics showing that Port Mann had a very
high error rate in the OSR reports (later in the CPICs) which prompted him to
attend Port Mann on December 13, 2004 to meet with all those concerned
including the applicant, who was involved in such tasks. During this meeting,
Ms. Gosal allegedly raised the issue of unfairness in the work
distribution.
[7]
On
December 17, 2004, the applicant wrote to S/Sgt McVey to formally complain
about her work situation and more particularly the fact that she was being
bullied by Ms. Bodden who, according to her, was obsessed that she complete her
work in the exact same way Ms. Bodden used to perform these tasks. She further indicated that problems
between her and the casual clerk referred to above were in fact the result of
interference by Ms. Bodden. After explaining in detail the situation
prevailing at Port Mann, the applicant asked S/Sgt McVey to put an end to the
bullying by Ms. Bodden which, in her view, also impacted on other PSEs, by
relocating Ms. Bodden to the Surrey office where her direct line supervisor
was located (Inspector (Insp.) Derek Cooke). According to later comments on
file from Insp. Cooke, this was not possible because of lack of space in Surrey
and the fact that Ms. Bodden’s job related to a whole area, where Port
Mann was centrally located and one of the busiest units in the said area.
[8]
According
to the documents filed by the applicant, Port Mann was determined, at the
beginning of 2005, to be the fifth worst unit in “E” Division and the fifteenth
worst in all of Canada in respect of current OSR error reports, a task
for which the applicant was responsible at least in part, as mentioned above.
It is worth noting here that it also appears that the applicant had not
received any particular training for this task,
and that after receiving some support from Informatics she quickly improved and
materially reduced the level of errors within a few months.
[9]
However,
the difficulties experienced by the applicant with Ms. Bodden did not go
away. She states that after she filed her complaint against Ms. Bodden,
even the demeanour of her direct line supervisor (acting Sgt (Cpl) Robert
Nordlund)
changed, when previously the applicant did not find him to be “particularly
unpleasant or disagreeable” (Applicant’s affidavit at paragraph 21). After
Insp. Cooke listed all the options open to Ms. Gosal to address this situation,
and only in an effort to settle the matter, the applicant accepted Insp.
Cooke’s offer to transfer her to a new unit in Langley. This is the
background which led to the applicant’s voluntary transfer to the unit under
the command of Sgt Jim Dallin, who later intervened to seek a review of
her recruitment application file.
[10]
In
her November 28, 2005 e-mail to Insp. Cooke regarding this transfer, she notes
that she still feels strongly that even after her departure “a review of the
unbalanced duties for the two CR-04 positions is still imperative.” Again,
this aspect is clearly not a matter that the Commission was asked to
investigate.
[11]
While
the above was going on, in September 2004, the applicant applied to become a
Regular Member of the RCMP, a fact she did not publicize. On October 19, 2005,
she was notified that her application had been rejected.
[12]
It
is not clear exactly when she learned from two former colleagues at Port Mann,
Constable (Cst) Marvin Wawia and Cst Ken McKinny, that Sgt Nordlund had made sexist and
racist comments about her in November 2004. Certainly, there is no mention of
such conduct in her exchange with Insp. Cooke at the end of November 2005.
Nevertheless, she notes in her written complaint to the Commission that these
comments were brought to her attention around November 2005.
[13]
Be
it as it may, on May 1, 2006, the applicant filed a formal harassment complaint
with Insp. Cooke in respect of Sgt Nordlund’s conduct.
[14]
In
September 2006, the applicant first contacted the Commission about the matters
that would later become the subject of the complaint at issue here, but she was
advised that she should first exhaust the grievance or review procedures
otherwise available to her (see paragraph 41(1)(a) of the Act). A
year later, after pursuing the internal mechanisms available to her, she
contacted the Commission again. On January 29, 2008, the Commission sent a
letter acknowledging that it would deal with her complaint.
[15]
Although
there were not many details, either before the decision-maker or before the
Court, concerning the complaints or grievances Ms. Gosal filed, it appears from
her complaint to the Commission that at least two of the five complaints she made within the RCMP were found to be
substantiated enough to warrant an internal investigation by the Assistant
Commissioner and ultimately resulted in a reprimand to Sgt Nordlund, a
recommendation for special sensitivity training and finally the loss of his job
at Port Mann.
[16]
On
November 23, 2007, the applicant filed the complaint that started the process
ending with the decision under review.
[17]
In
the said complaint against the RCMP, the applicant notes that while working she
was “subject to discrimination and harassment due to my sex and ethnic
background [self-identified as East Indian].” She states that she feels “that
these derogatory, racial and sexual comments … were made against [her] gender,
against [her] ethnic background, and against [her] personally”.
[18]
The
applicant then refers to her work at Port Mann Traffic Service in Burnaby where, for
the most part of her four years’ employment she was under the direct
supervision of Sgt Nordlund. She then refers to her September 2004 application
to become a Regular Member of the RCMP and the fact that it was rejected in
October 2005. She further notes that in November 2005 she canvassed numerous
co-workers and previous line supervisors for reference letters to “re-savor”
her recruitment file. This was allegedly done in the hopes of having a full
review of her application file. She then states, as discussed above, that
around November 2005, she learned from the two colleagues mentioned earlier
that Sgt Nordlund had made “racial and direct sexual comments about [her] in
around November, 2004.” After quoting the said remarks, she adds:
I believe these malicious, demeaning,
distasteful racial and sexual comments and the baise [sic] opinion of my
line supervisor subsequently quashed my career opportunity in becoming a member
of the Royal Canadian Mounted Police.
[19]
The
applicant goes on to note that she has now exhausted all the internal avenues
and alternate redresses within the RCMP and refers specifically to the two
complaints that were investigated. She mentions that in April 2007 she was only
informally advised by e-mail from the investigator that “Sgt Nordlund was given
a formal reprimand (written) with a recommendation for specialized training.”
She further mentions that “her concerns for personal recourse” had not been
addressed by the RCMP in relation to Sgt Nordlund’s conduct given that no
damages were awarded to her. In that respect, she says:
In its completion of these two
investigations, the RCMP has not addressed the corrective action that I was
seeking. The ever presence of the environment attitude lead me to suffer
psychological and financial hardship. My character has suffered irreparable
damage, consequently due to these false and malicious comments made by this
individual who held a position of power of authority. As a result of this
inflicted damage it has greatly affected my views of RCMP management practices.
My experiences in this Detachment has
left me very unhappy, discouraged, lack of self-esteem and confidence has been
greatly been affected. Harassment, racism, discrimination, and personal
vendetta appear to be tolerated and even supported by the RCMP.
As of this date, there has been no
correspondence of any sort nor any communication as to how I may be
compensated.
[20]
On
May 8, 2008, the parties were informed that the Commission would investigate
the complaint.
[21]
The
report of this investigation was issued on October 2, 2009 and circulated to
the parties on October 8, 2009. As the applicant contests the results of the
investigation and the treatment given to her comments to the Commission after
receiving a copy of the report, the Court will describe in some detail the
investigation and the applicant’s response to it.
[22]
The
investigator interviewed the following six witnesses: Ms. Gosal; Cst Richard
Chow, the person from the “E” Division Recruiting Unit who reviewed Ms. Gosal’s
application file; Inspector Davis Wendell, Commander of the Pacific Region
Recruiting Section; Sgt Robert Nordlund; and Cpl Dave Reichert and Cst
Patricia Yiendrys, two witnesses cited by Ms. Gosal.
[23]
In
his report the investigator lists the documentation received from the
respondent. The investigator also consulted “documents provided by the
complainant in support of her position, mainly exchange of correspondence, work
assessments, positive comments from various individuals, and personal notes.”
[24]
It
appears from the applicant’s affidavit that the investigation file comprised
about 800 pages including all the material she had sent to the first
investigator.
[25]
The
analysis is under two distinct headings: whether the respondent failed to
provide a harassment-free work environment; and whether the complainant was
refused employment because of her sex and/or national or ethnic origin.
[26]
In
the section dealing with the harassment, the investigation into the conduct
itself was limited given that the RCMP acknowledged through its various
internal investigations that the conduct had taken place. The words used by Sgt
Nordlund left no doubt that they were based on a prohibited ground.
[27]
Thus,
pursuant to subsection 65(2) of the Act, the real issue left to be determined
was whether the RCMP, Sgt Nordlund’s employer, could be exempted from
responsibility for the act or omission of its employee. To benefit from such
exemption, the RCMP had to establish that (a) the act took place without the
employer’s consent; (b)
the employer exercised all due diligence to prevent the act or omission; and
(c) the employer subsequently exercised all due diligence to mitigate or avoid
the effect thereof. From the documentation referred to above including
particularly the report of the two investigations carried out by Sgt Nelson
Aranguiz as well as the measures taken (letter of reprimand, further sensitivity training
and ultimately removal of Sgt Nordlund from his Port Mann office), the
investigator concluded that the employer’s reaction “appears to be prompt,
effective and proportional to the particular situation of harassment.”
[28]
On
this basis, he recommended that this part of the complaint (the racial sexual
comments made in November 2004 by Sgt Nordlund) be dismissed because the
evidence gathered did not support the allegation that the employer failed to
provide a harassment-free work environment within the meaning of section 65.
[29]
In
her ten-page reply submissions filed on October 28, 2009, the applicant
addresses her comments to the paragraphs of the investigation report. The
comments most relevant to this first issue are those in respect of paragraphs
12 to 30, 50 and 53. After raising some questions as to the meaning of
paragraph 14, the applicant focuses on the fact that the investigator should
have interviewed additional witnesses, and strongly disagrees with the finding
that the RCMP took appropriate action to deal with the conduct.
[30]
This
is where the applicant inter-mingles the complaint made on May 1, 2006 with the
bullying reported to S/Sgt McVey on December 17, 2004. She also notes that all
employees of the RCMP had to take an online harassment workshop course along
with a test and so she questioned what “other specialized training course”
would Sgt Nordlund have had to complete considering that this general course
basically covers all aspects of harassment, discrimination and sexual conduct.
Moreover, she notes that the fact that he was removed from office had no effect
on her given that she had already left the office at Port Mann. Finally, with
respect to the reprimand, she notes that this would only have an impact if Sgt
Nordlund applied for a promotion or a transfer to a new unit. It did not
translate in any loss of wages or monetary hardship for him. The applicant also
adds as mentioned that the other complaints she made within the RCMP process,
that were found to be unsubstantiated and therefore not investigated, should
have been investigated by the Commission. She then refers to parties nowhere
mentioned in her complaint, such as Cpl Paulo Baptista
and Cpl Dan Boyer, alleging that both gentlemen were found guilty of
complaints by third parties.
[31]
Under
the heading “Was the complainant qualified or otherwise eligible for the
employment?”, the investigator notes that the applicant stated that Sgt
Nordlund encouraged other members to negatively influence her effort to become
a regular RCMP member. She adds that he was very influential on the recruiting
file so much so that all positive reports from other members at Port Mann and
all positive reports from previous units she had worked with were ignored.
[32]
Ms. Gosal
apparently identified the following individuals as having detrimentally
affected her application process under the influence of Sgt Nordlund: S/Sgt
McVey, Cst Richard Chow, Acting Sgt Joe Lew and Inspector Sutherland. In her
rebuttal to the RCMP submissions to the investigator, it appears that Ms. Gosal
also cited negative comments made by the individuals mentioned above that were
part of the field investigation done to assess her suitability. The
investigator mentions that she insisted on saying that her assessment was based
solely on comments from this small group of individuals.
[33]
After
reviewing the details of the first investigation into the applicant’s
suitability (a crucial step in the application process), the investigator
states that the retired member of the RCMP who carried out this investigation
had interviewed 38 individuals. Excluding those mentioned by the applicant as
having detrimentally affected her application, the investigator notes that 17
individuals raised issues either with her work performance or as a character
witness that could impact on the applicant’s overall suitability.
[34]
He
then considered the review of the applicant’s application filed by Cst Chow on
November 2, 2005 (approved by A/Sgt Lew, a gentleman assumed by Ms. Gosal
to be an acolyte of S/Sgt McVey, and therefore of Sgt Nordlund, because he
signed one e-mail addressed to the said S/Sgt McVey with the following remark:
“Joe (the rookie back in 1995 at Coquitlam)”).
[35]
The
investigator also interviewed Cst Chow who explained the various steps and the
independent reviews during the selection process as well as the overall picture
emanating from the comments made by a large number of witnesses that led him to
the conclusion that the applicant was not suitable for enrolment as a Regular
Member. During his interview, Cst Chow stated that he knew Sgt Nordlund by
name and did not know S/Sgt McVey or Cpl Boyer. The investigator then consulted
the report of the final review of Ms. Gosal’s application file conducted
by Cpl Lana Jardine who was appointed by Inspector Wendell to review this
matter again in April 2007.
Inspector Wendell explained to the investigator among other things, that
Cpl Jardine had been chosen because she was new to the Recruiting Section
and therefore totally uninvolved with the prior investigations.
[36]
The
two witnesses interviewed by the investigator, because according to
Ms. Gosal they could support her allegation, were found to offer only
general and vague comments in so far as this particular aspect of the case was
concerned. Cpl Reichert explained having experienced “a treatment similar to
that of the complainant in that he was ‘rejected’ by certain individuals
at Port Mann, namely Sgt Nordlund, S/Sgt McVey and Cpl Boyer” and was
falsely charged with not showing up for work because Cpl Boyer allegedly
“wanted his job”. His views that this group was “dysfunctional” and “very
vindictive” were duly acknowledged, but the investigator notes that he could
not provide any evidence relating to the potential influence of these
individuals on the selection process. Similarly, Cst Yiendrys could not provide
such evidence. She mentioned that she had a “perception” that a group of
individuals was “setting [Ms. Gosal] up to fail” and that both she
and the complainant were under a lot of stress. Most of what she related was
hearsay coming from the complainant.
[37]
The
investigator concluded from his analysis of the material and the initial
assessment and the two reviews of the application file all signed by different
individuals, that the application was denied because of work performance and a
discrepancy in Ms. Gosal’s security/reliability interview. Based on his
own analysis of the supporting documents and the interviews he conducted, the
conclusions in the above-mentioned reports appeared to be supported, whereas
the complainant could not offer evidence of her allegation that the initial
investigation was based entirely on the comments made by the “Nordlund clique”.
[38]
The
bulk of Ms. Gosal’s submissions to the Commission deal with this section
of the report. She says and repeats several times that the investigator was not
fair and unbiased nor were the individuals who signed the various reports
relating to her failed application. In her view, the investigator was naïve in
accepting the new and false reasons concocted by Inspector Wendell to make good
on his promise to his superior that the RCMP stood on solid grounds vis-à-vis
her complaint.
[39]
She
also mentions the unfairness of the investigator who failed to provide her with
a copy of some documents listed in the report – namely the Pacific Region
Recruiting Section Attrition Tables (paragraph 10 j.) and the Applicant Selection
Process Maps (paragraph 10 k.). She also attacks the fairness of the
investigation in that it was incomplete for the investigator did not interview
all the witnesses she referred to in the extensive material submitted. She
claims that he obviously did not look at this documentation before concluding
that “she was unable to offer evidence to support her position”. She also
requested copies of the assessment conducted by Sgt Ferguson dated
December 5, 2007 (paragraph 10 h.) and the General Applicant File Summary
provided by Inspector Wendell (paragraph 10 i.) both documents she argued
were produced recently and are intended to distort the original reasons for why
her application was denied. Ms. Gosal then goes into the details of her
understanding of what really went on and how the comments of Sgt Nordlund and
his clique impacted on the initial assessment of her application. In her
remarks she essentially covered all the grounds that she presented to this
Court in respect of the lack of thoroughness and unreliability of the decision
except for the fact that she added in her affidavit in support of this
application, that the investigator was biased in light of his background as a
career officer in the Canadian Forces. Among other things, Ms. Gosal refers
to a series of e-mails that were originally forwarded to the first investigator
to support her allegation that Sgt Nordlund and S/Sgt McVey through Alex
Bodden (husband of Ms. Bobbi Bodden) and members of the Recruiting unit
prevented her from going to Depot (getting accepted to train to become a
Regular Member).
[40]
In
its own submissions to the Commission (December 4, 2009) the respondent stated
that no new evidence was introduced in Ms. Gosal’s response letter to shed
further light on her case and it clarified certain paragraphs: i) that becoming
a Regular Member was not a promotion within the RCMP, ii) the distinctions
between the work of Auxiliary Constables and Regular Members of the RCMP, iii)
the fact that disciplinary actions taken are confidential and the details would
not normally be disclosed.
[41]
The
respondent also referred to the various review and accountability checks in
place within the Recruiting unit and clarified the fact that Ms. Gosal’s
transfer out of Port Mann was subject to Treasury Board policies and collective
agreements whereas transfer of Regular Members of the RCMP are dictated
primarily by operational means. This would presumably explain the alleged delay
in her transfer.
[42]
On
February 3, 2010, the Commission issued its decision. As usual, it is brief. It
refers to the submissions received but does not deal expressly with any of the
issues commented upon by Ms. Gosal. It essentially adopts the conclusions
of the investigation report.
II. Analysis
[43]
Ms. Gosal
raised the following issues:
- The Commission
breached procedural fairness by providing inadequate reasons and relying
on an investigation that was not thorough. Moreover, the investigator was
not neutral.
- The Commission’s
decision is unreasonable when one considers all the evidence before the
investigator.
[44]
The
relevant provisions of the Act are attached in Annex A.
[45]
At
the beginning of the hearing, the defendant objected to numerous paragraphs in
Ms. Gosal’s affidavit on the grounds that they were based on hearsay,
conjecture and speculation and to the consideration of the exhibits filed in
support of her application. The Court ruled that all the exhibits that were
before the investigator could be considered (this excludes Exhibit W and the
work assessments dated after the investigation report was issued in Exhibit S)
to determine if there was a breach of procedural fairness particularly in
respect of the thoroughness of the investigation. They could not normally be
considered in assessing whether the overall decision was reasonable (Niaki v
Canada (AG), 2006 FC 1104 at paras 25-26; Canadian Broadcasting
Corporation v Paul, 2001 FCA 93 at para 69; Canada (Human Rights
Commission) v Pathak, [1995] 2 FC 445 (CA) at para 12). That said, to
prevent any injustice and to properly assess the material relied upon by
Mr. Beitel, the retired member of the RCMP who assessed Ms. Gosal’s
application file in August 2005, before making his recommendation to reject her
application for recruitment, and referred to in paragraph 35 of the
investigation report, the Court did consider the exhibits mentioned above.
[46]
The
case law is clear that the Commission’s power to dismiss a complaint pursuant
to subsection 44(3) of the Act is discretionary and that its decisions should
be afforded a high degree of deference. The Court will apply the standard of
reasonableness to determine the validity of the decision based on the overall
evidence before it, for it involves a mixed question of fact and law (Niaki,
above, at para 31; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51,
53).
[47]
With
respect to the alleged breach of procedural fairness, the standard of review is
correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 43 and Dunsmuir, above).
A. Breach of procedural fairness
Principles
[48]
It
is trite law that the content of the duty of procedural fairness is variable
and depends on the context. In Sketchley v Canada (AG), 2005 FCA
404, a brief decision contained in a letter such as the one issued in this case
constituted valid reasons when supplemented by the investigation report. When
the investigator’s conclusions are adopted by the Commission, the report forms
part of the Commission’s reasons for the purpose of subsection 44(3) of the Act
(Sketchley at para 37).
[49]
It
is not disputed that where a party’s submissions to the Commission pertaining
to an investigator’s report allege substantial and material omissions in the
investigation and provide support for that assertion the Commission must
refer to those discrepancies and indicate, even briefly, why it is of the view
that they are either immaterial or insufficient to challenge the investigator’s
recommendation (Herbert v Canada (AG), 2008 FC 969 at para 26).
[50]
The
decision in Slattery v Canada (Human Rights Commission), [1994] 2 FC 574
(TD), was cited as the leading case on the duty of the Commission to act fairly
by the Federal Court of Appeal in Tahmourpour v Canada (Solicitor General),
2005 FCA 113 at para 8. In Slattery, Justice Marc Nadon analyzing the
content of the duty of fairness set out by Justice Sopinka in Syndicat des
employés de production du Québec et de l’Acadie v. Canada (Human Rights
Commission), [1989] 2 S.C.R. 879 [S.E.P.Q.A.] concluded that the
parties must be informed of the investigation and have an opportunity to
respond and the Commission, in making its decision, is entitled to consider the
investigation report, the parties’ submissions and any underlying material as deemed
necessary in its discretion. In his opinion:
In order for a fair basis to exist for
the CHRC to evaluate whether a tribunal should be appointed pursuant to
paragraph 44(3)(a) of the Act, I believe that the investigation
conducted prior to this decision must satisfy at least two conditions:
neutrality and thoroughness. [para 49]
[51]
The
test for neutrality “is not whether there exists a reasonable apprehension of
bias on the part of the investigator, but rather whether the investigator
approached the case with a ‘closed mind’” as was confirmed by Justice Anne
Mactavish in Sanderson v Canada (AG), 2006 FC 447 at para 75 (see also Zündel
v Canada (AG) (1999), 175 DLR (4th) 512 at paras 17-22).
[52]
In
determining the degree of thoroughness of the investigation required to meet
procedural fairness obligations, Justice Nadon in Slattery said at
paragraph 55:
… one must be mindful of the interests
that are being balanced: the complainant’s and respondent’s interests in
procedural fairness and the CHRC’s interests in maintaining a workable and
administratively effective system. …
[53]
The
view expressed by Justice Nadon in describing what might constitute
thoroughness was accepted in Sketchley, above at para 121, as an
appropriate description of the content of the procedural fairness. The
following two paragraphs from Slattery, which have been followed
thereafter, give additional guidelines to determine whether a particular
investigation gives raise to a breach of procedural fairness:
56 Deference must be given to administrative
decision-makers to assess the probative value of evidence and to decide to
further investigate or not to further investigate accordingly. It should only
be where unreasonable omissions are made, for example where an investigator failed
to investigate obviously crucial evidence, that judicial review is
warranted. Such an approach is consistent with the deference allotted to
fact-finding activities of the Canadian Human Rights Tribunal by the Supreme
Court in the case of Canada (Attorney General) v. Mossop, [1993] 1
S.C.R. 554.
57 In contexts
where parties have the legal right to make submissions in response to an
investigator's report, such as in the case at bar, parties may be able to
compensate for more minor omissions by bringing such omissions to the attention
of the decision-maker. Therefore, it should be only where complainants are
unable to rectify such omissions that judicial review would be warranted.
Although this is by no means an exhaustive list, it would seem to me that
circumstances where further submissions cannot compensate for an investigator's
omissions would include: (1) where the omission is of such a fundamental nature
that merely drawing the decision-maker's attention to the omission cannot
compensate for it; or (2) where fundamental evidence is inaccessible to the
decision-maker by virtue of the protected nature of the information or where
the decision-maker explicitly disregards it.
[My emphasis]
[54]
In
Beauregard v Canada Post, 2005 FC 1383, this Court recognized that the
“obviously crucial test” requires that it should have been obvious to a reasonable
person that the evidence an applicant argues should have been investigated was
crucial given the allegations in the complaint (at para 21). To determine
whether the evidence was obviously crucial, the Court must place itself at the
time of the investigation and consider the information provided by the
complainant to the investigator.
[55]
That
said, it is worth noting that the Court’s function is not to assume the role of
the investigator and that the investigator does not need to interview each and every
witness that the applicant would have liked him or her to interview (Slattery,
above, at para 69).
[56]
In
Tahmourpour, above, Justice John Evans writing for the Court identified
the matter before it as an “exceptional case” where the failure of the investigator
to interview certain witnesses was simply unjustifiable.
[57]
In
that respect and given the arguments raised by the applicant, the Court also
notes that an investigator’s failure to interview the complainant does not in
itself reflect on the thoroughness of the investigation if an applicant had
ample opportunity to both make her primary case and to respond to the
investigator’s understanding of her situation (see Best v Canada (AG),
2011 FC 71 at paras 22-23).
[58]
Finally,
in respect of the obligation to provide to a particular complainant every piece
of documentation exchanged between an investigator and an interested party, the
Federal Court of Appeal in Hutchison v Canada (Minister of the Environment),
2003 FCA 133 at paras 49-50, made it clear in reviewing the past jurisprudence
that
[t]here
is nothing in any of these cases which would support the proposition that every
exchange between an investigator and an interested party must be disclosed to
the other party. The right to know the case to be met and to respond to it
arises in connection with material which will be put before the decision
maker, not with respect to material which passes through an investigator's
hands in the course of the investigation.
To the extent that the investigation report
discloses information contained in a letter or document, the applicant amply
exercised her right of response. To the extent that information in a letter or
document was not contained in the investigation report, and was not otherwise
before the Commission, the right to respond did not arise.
[59]
In
the same vein, the Federal Court of Appeal in Gardner v Canada (AG), 2005 FCA
284 at paragraph 18, indicated:
In any event, the Commission was not
obliged to produce the new evidence to Ms. Gardner simply because it was never
put to the Commission itself. What Ms. Gardner was owed and that which she
was accorded, was the opportunity to comment on [the] Treasury Board’s
submissions which as it turned out, contained the substance of the information
in the new evidence.
[60]
Finally,
administrative tribunals such as the Commission are presumed to have considered
all the evidence submitted and are not required to expressly refer to all
pieces of evidence upon which their reasons were founded. That said, the more important
the evidence that is not specifically mentioned in the tribunal's reasons, the
more willing a court may be to infer that the tribunal made an erroneous finding
of fact without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425, 157 FTR 35, at paras 14-17).
Application of the Principles
[61]
With
these principles in mind, the Court has carefully reviewed each and every one
of the documents produced by Ms. Gosal in support of her allegation that the
investigation was not thorough and that the investigator was not neutral. In fact, the Court read and re-read
several times the information that was submitted.
[62]
First,
it is important to establish what the investigator had to concentrate on. His
task was to verify whether there were grounds for the applicant’s allegation
that the RCMP’s rejection of her application in October 2005 was made on the
basis of her sex and/or her ethnic origin. As a first step, he had to determine
if the applicant was indeed suitable or eligible for the job. The investigator
did not have to investigate the ambiance or work atmosphere at Port Mann, he
was not concerned with whether or not there were grounds for her complaint that
Bobbi Bodden bullied her or that Sgt Nordlund was trying to get rid of her as a
CR-04 PSE or whether she was given too much work and too little training to do
her job at Port Mann. He also did not have to investigate other complaints
filed through her union that are unrelated to the complaint filed against Sgt
Nordlund.
[63]
In
her written submissions to this Court, the applicant only refers to the failure
of the investigator to interview Cst Wawia and Cst McKinny. It is thus not
clear whether she still insists on the argument raised in her submissions to
the Commission that the said investigator should also have interviewed Monalee
Rendall or Melissa Bell.
[64]
From
the material produced by Ms. Gosal, it appears that the investigator had a copy
of the letters Cst Wawia, Cst McKinny and Monalee Rendell supplied after her
application was rejected. It is not clear what more they could have added. It
is also worth mentioning again that both Cst Wawia and McKinny were the
individuals who appraised the complainant of the discriminatory comments made
by Sgt Nordlund. This aspect of their potential evidence had been fully
acknowledged and did not need to be further substantiated by the investigator.
[65]
There
is absolutely no evidence (none was referred to in the submissions to the
Commission) that either of these gentlemen or these two ladies would have had
anything of value to add in respect of the application process per se.
In fact, it appears from the documentation provided that these individuals were
not interviewed by Mr. Beitel, who carried out the suitability investigation in
the summer of 2005. There is no indication that any of these individuals had
been asked to provide negative comments to Mr. Beitel. What their evidence
appears to relate to are matters, as mentioned above, which were not relevant
to the RCMP’s refusal of the applicant as a cadet for Depot.
[66]
Having
carefully considered all that is known about these four witnesses, the Court is
not satisfied that the investigator failed to investigate obviously crucial
evidence.
[67]
As
to Sgt Dallin, he also was not involved in the application’s investigative
process. His intervention on behalf of the applicant was well documented even
in Inspector Wendell’s summary of Ms. Gosal’s file. Once again, considering the
guiding principles applicable here, the Court cannot conclude that there was a
breach of procedural fairness by failing to interview this witness who did not
even know the applicant at the time her application was rejected by the RCMP.
[68]
Finally,
although once again this is not raised in her submissions but only in her
affidavit, the Court considered the applicant’s allegation that the
investigator was careless given that he only interviewed her for 15 minutes.
The applicant does not give any detail as to what facts or arguments she wished
to raise that would have been essential and that were not already before the
investigator given that she had, as mentioned, spoken to the previous
investigator on several occasions and provided much documentation, which formed
part of the 800 pages of material in her file.
[69]
This
is not a case where the applicant did not have the opportunity to fill in gaps
(or deemed gaps) as discussed in Niaki, above, and the applicant simply
failed to provide any information which would suggest that the investigation
was highly deficient. The cases relied upon by Ms. Gosal such as the
decisions of Justice Roger Hughes in Egan v Canada (AG), 2008 FC 649,
and Justice Russel Zinn in Herbert, above, are distinguishable on their
facts.
[70]
Considering
all of the above, the Court is satisfied that this case is not one where
procedural fairness was breached, but rather one where the reasonableness of
the decision in light of all of the evidence before the Commission is in
question. This will be reviewed later on.
[71]
With
respect to the lack of neutrality alleged by the applicant, there is no
evidence other than the fact that the investigator was a former Lieutenant
Colonel in the Canadian Forces having served for more than 20 years. It
appears from the submissions made on the remedy sought by Ms. Gosal and
her oral representations that in her view, there is an appearance of bias in
every case when a person having worked either in the military or in any police
force is allowed to review the actions of the RCMP.
[72]
Furthermore
she notes that the investigator’s lack of scrutiny of Inspector Wendell’s
evidence, his naivety and the conclusions he reached indicate that he was
actually biased.
[73]
Here
again the Court simply cannot agree. It takes more than this for a Court to
conclude that the Commission has a closed mind. This Court is certainly not
prepared to say that any person with the background of the investigator in this
case could not investigate in an impartial manner a complaint against the RCMP
or any other police force.
[74]
As
mentioned, it takes more than a reasonable apprehension of bias to meet the
test. As will be discussed later on, the Court finds that the ultimate decision
is reasonable. It can therefore not be used as evidence of a closed mind. The
Court is not satisfied that it can reasonably be said that the issue before the
investigative body had been predetermined (see Zündel, above, at para
21).
[75]
Finally,
the applicant submits that as in Egan, the arguments she raised in her
submissions to the Commission were of such fundamental character that they
should have been dealt with expressly in the reasons. She argues that failure
to do so constitutes either a breach of procedural fairness or a lack of
transparency in the decision.
[76]
As
mentioned the principle set out in Herbert, above (only in obiter in Egan)
is not disputed. What is disputed is that, in this case, the applicant’s
submissions warranted an express response over and above what was said in the
investigation report. In effect, for the respondent, Ms. Gosal’s submissions to
the Commission were simply a restatement of all that she had put before the
investigator during the investigation.
[77]
To
answer this question, the Court does not look at the length or amount of
details contained in one’s submissions. These are not judged by the pound.
Rather, the Court must look at whether the applicant alleges “substantial and material omissions in the
investigation and provide[s] support for that assertion” (Herbert, above,
at para 26).
As mentioned, most of the issues raised did not concern the complaint that was
at the core of the Commission’s mandate. There were no details given to the
Commission that would explain in what way the four witnesses referred to
therein were crucial to the real issues in dispute.
[78]
None
of the documents referred to in the applicant’s submissions (at paragraphs 10
h, i, j and k) were actually before the Commission.
[79]
Ashe
made general allegations of unfairness and impartiality of the investigator,
for which she offered no cogent basis or support in her detailed argumentation.
[80]
With
respect to her personal views and opinions as to the validity of the evidence
of various people including the lack of “independence” of the investigators who
reviewed the original application file such as Cpl Chow and
Cpl Jardine, these were simply not supported by anything tangible, rather
they are mere conjecture or speculation. Here it is important to mention that
the reviews carried out in respect of the decision to reject Ms. Gosal’s
application were not meant to be fresh or new evaluations of her suitability
based on material that included letters sent to “re-savor [her] recruitment
file” after the decision was made in October 2005. It appears to me that the
views expressed in her submissions to the Commission relate in fact to the
weight the investigator gave to this evidence and as such are answered
sufficiently by the Commission’s adoption of the conclusions of the
investigation report.
[81]
In
light of the above, the applicant has failed to convince the Court that the
Commission breached its duty to act fairly or to be transparent.
B. Reasonableness of the
decision
[82]
It
is clear from the investigation report and from the adoption of the
investigator’s recommendations that the Commission refused to get involved in
the interpersonal conflicts and work-related issues other than those especially
referred to in the complaint – the disparaging comments and the RCMP’s refusal
of her application, communicated to the applicant in October 2005.
[83]
Because
of this, the investigation report focuses on the evidence available to the
original decision-maker in 2005. There is no evidence that the original
decision was made on any basis other than the investigation of unsuitability
carried out by Mr. Beitel and his recommendation. There is no evidence that the other
reviews were influenced by anything not included in the application file at
that time or were actually carried out by an investigator who was
closed-minded.
[84]
Ms. Gosal
argues that the approach taken by the Commission’s investigator is simplistic
particularly considering that none of the individuals involved in the
assessment of her application file either in October 2005 or in the subsequent
reviews were unbiased.
[85]
Ms.
Gosal notes that Mr. Beitel, as a retired RCMP officer would feel obliged to
make recommendations based solely on the statements made by Sgt Nordlund and his
clique. According to her, Mr. Beitel still had friends in the force from whom
he hoped to get part-time work. Cst Chow would also have been biased as a
member of the Recruiting team and since he was reporting to A/Sgt Lew, who is
assumed to be part of the “racist clique” simply because he signed an e-mail
directed to S/Sgt McVey “the rookie back in 1995 at Coquitlam”. Finally, with respect to Cpl Jardine and
Sgt Ferguson, Ms. Gosal says that they were under the command of Inspector
Wendell and therefore could not be independent, even if Cpl Jardine was new to
the Recruiting unit. According to her, Cpl Jardine would follow the
instructions received from her superior. Inspector Wendell who again, in the
opinion of Ms. Gosal, was also clearly against her for various reasons
described in her submissions.
[86]
With
all due respect, none of these allegations amount to anything more than
speculation, conjecture or personal opinion. The Court cannot, nor is it
willing to, infer from these allegations that the Commission’s conclusion was
not open to it. This is especially so considering that the investigator
confirmed with Cst Chow in his interview that the latter only knew
Sgt Nordlund by name and did not know Sgt McVey or Cpl Boyer. In
fact, to accept Ms. Gosal’s unwarranted profiling of the investigators involved
in her file would, in my view, be quite improper.
[87]
Ms.
Gosal put much emphasis on the fact that Sgt Alex Bodden recommended to A/Sgt Lew
to interview Sgt Nordlund and S/Sgt McVey. However, it is clear from the
methodology followed by Mr. Beitel that he intended to interview Ms. Gosal’s
supervisors and some of her co-workers in each of the units or divisions in
which she had worked. This would thus necessarily include her direct supervisor
at Port Mann (Sgt Nordlund), where she worked at the time she filed her
application.
[88]
Although
there is some indication that Ms. Gosal did suggest names of co-workers to
be interviewed in the various units or divisions, there is no evidence that she
included any such names or references in respect of Port Mann. There is thus no
evidence that any of her suggestions were overlooked.
[89]
As
mentioned, Sgt Nordlund, who was Ms. Gosal’s supervisor for the last two to
three years before the filing of her application, was bound to be interviewed.
Mr. Beitel did not restrict his investigation to the “Nordlund clique” given
that he also spoke with the gentleman at Informatics who had worked with Ms.
Gosal to rectify the various errors made at Port Mann in early 2005. This
Regular Member totally outside of Sgt Nordlund’s clique said that he would not
support her becoming a Regular Member because, among other things, she did not
meet the requirement to be able to make quick and appropriate decisions.
[90]
Although
Ms. Gosal alleges in her submissions to the Commission that the “cookie-cutter
similarity” of the negative comments made by various individuals about her work
performance at Port Mann is evidence that these individuals were coerced to make such
comments, the Court notes that the statements she
refers to in fact describe the very issues raised by others who worked with her
in other Divisions and who were contacted by Mr. Beitel. Thus the
“cookie-cutter similarity” of the comments may well be due to the fact that
they all describe her accurately.
[91]
There
is clear evidence (excluding the comments of Sgt Nordlund and his so-called
clique) that the applicant had a long history of interpersonal conflicts
particularly with female co-workers. Port Mann was not the first division in
which she filed a harassment complaint or threatened to do so. Also, even in
the Auxiliary Constable Program where the reports were generally positive, she
appears to have had similar conflicts with other Auxiliaries who allegedly
filed complaints against her although they were ultimately found to be
unsubstantiated.
[92]
Again
putting aside the comments of Sgt Nordlund and his clique, there was other
evidence supporting Mr. Beitel’s concern about Ms. Gosal’s suitability (and
this outside of her difficulty with female co-workers). In more than one
Division in which the applicant worked, at least one person raised an objection
as to her suitability as a Regular Member. This includes also Port Mann where,
as mentioned earlier, a Regular Member totally outside Sgt Nordlund’s clique
stated that he would not support her becoming a Regular Member.
[93]
The
applicant’s view that the expression “will resort to the ‘race card’ if
offended by others who are trying to help her” necessarily comes from
Sgt Nordlund is unsubstantiated. In
fact, there is no indication that this expression was used by Sgt Nordlund
during his interview (notes of interview included in evidence) and in fact it
may have been wording chosen by Mr. Beitel himself to refer to the issue of the
applicant’s harassment complaints, which was raised by more than one person
outside of Port Mann.
[94]
In
her written submissions, Ms. Gosal only alludes briefly to the
unreasonableness of the decision. She appears to be concerned that given all of
the evidence on the record, the Commission should have determined that there
was a sufficient basis for proceeding to the next stage. I believe that this
concern is addressed by the fact that it is not so much a question of evidence
that has been ignored, but one of evidence being irrelevant to the complaint
before the Commission.
[95]
The
Court is also satisfied that the comment of Mr. Beitel quoted in paragraph 36
of the investigation report is supported by the comments made by persons
interviewed outside of Port Mann.
[96]
Finally,
Ms. Gosal appears to disagree with the conclusion of the Commission that the
actions taken by the RCMP in respect of the disparaging comments of Sgt
Nordlund were prompt, effective and proportional to the particular situation of
harassment. This is obviously a matter of opinion and the Court has not been
convinced that the conclusion reached by the Commission was not open to it on
the evidence.
[97]
As
explained in Dunsmuir, above, and Khosa, above, when assessing a
decision under the standard of reasonableness, the Court must determine whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. There might be more than one
reasonable outcome and it is not open to a reviewing Court to substitute its
own view as to a preferable outcome. As mentioned earlier, the Court is
satisfied that the Commission’s decision, considering the investigation report,
met the requirements of justification, transparency and intelligibility.
[98]
In
light of the foregoing the Court concludes that the decision contains no
reviewable error. It was reasonable.
[99]
Having
carefully considered the matter, the Court believes that no costs should be
awarded.
JUDGMENT
The application for judicial
review is dismissed.
« Johanne
Gauthier »
ANNEX
The relevant
sections of the Canadian Human Rights Act, RSC 1985, c H-6, in this case
are:
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2. The purpose of this Act is to extend
the laws in Canada to give effect, within the purview of matters coming
within the legislative authority of Parliament, to the principle that all
individuals should have an opportunity equal with other individuals to make
for themselves the lives that they are able and wish to have and to have
their needs accommodated, consistent with their duties and obligations as
members of society, without being hindered in or prevented from doing so by
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 for which a pardon has been granted.
3. (1) For all purposes of this Act, the
prohibited grounds of discrimination are 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.
3.1 For greater certainty, a
discriminatory practice includes a practice based on one or more prohibited
grounds of discrimination or on the effect of a combination of prohibited
grounds.
7. It is a discriminatory practice,
directly or indirectly,
(a) to
refuse to employ or continue to employ any individual, or
(b) in
the course of employment, to differentiate adversely in relation to an
employee,
on a
prohibited ground of discrimination.
14. (1) It is a discriminatory practice,
(a) in
the provision of goods, services, facilities or accommodation customarily
available to the general public,
(b) in
the provision of commercial premises or residential accommodation, or
(c) in
matters related to employment,
to harass an
individual on a prohibited ground of discrimination.
(2)
Without limiting the generality of subsection (1), sexual harassment shall,
for the purposes of that subsection, be deemed to be harassment on a
prohibited ground of discrimination.
44. (1) An investigator shall, as soon as
possible after the conclusion of an investigation, submit to the Commission a
report of the findings of the investigation.
(2)
If, on receipt of a report referred to in subsection (1), the Commission is
satisfied
(a)
that the complainant ought to exhaust grievance or review procedures
otherwise reasonably available, or
(b)
that the complaint could more appropriately be dealt with, initially or
completely, by means of a procedure provided for under an Act of Parliament
other than this Act,
it shall refer
the complainant to the appropriate authority.
(3)
On receipt of a report referred to in subsection (1), the Commission
(a) may
request the Chairperson of the Tribunal to institute an inquiry under section
49 into the complaint to which the report relates if the Commission is
satisfied
(i) that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is warranted, and
(ii) that the
complaint to which the report relates should not be referred pursuant to
subsection (2) or dismissed on any ground mentioned in paragraphs 41(c)
to (e); or
(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).
65. (1) Subject to subsection (2), any act
or omission committed by an officer, a director, an employee or an agent of
any person, association or organization in the course of the employment of
the officer, director, employee or agent shall, for the purposes of this Act,
be deemed to be an act or omission committed by that person, association or
organization.
(2)
An act or omission shall not, by virtue of subsection (1), be deemed to be an
act or omission committed by a person, association or organization if it is
established that the person, association or organization did not consent to
the commission of the act or omission and exercised all due diligence to
prevent the act or omission from being committed and, subsequently, to
mitigate or avoid the effect thereof.
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2. La présente loi a pour
objet de compléter la législation canadienne en donnant effet, dans le champ
de compétence du Parlement du Canada, au principe suivant : le droit de tous
les individus, dans la mesure compatible avec leurs devoirs et obligations au
sein de la société, à l’égalité des chances d’épanouissement et à la prise de
mesures visant à la satisfaction de leurs besoins, indépendamment des
considérations fondées sur la race, l’origine nationale ou ethnique, la
couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état
matrimonial, la situation de famille, la déficience ou l’état de personne
graciée.
3. (1) Pour l’application de
la présente loi, les motifs de distinction illicite sont ceux qui sont fondés
sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge,
le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille,
l’état de personne graciée ou la déficience.
3.1 Il est entendu que les
actes discriminatoires comprennent les actes fondés sur un ou plusieurs
motifs de distinction illicite ou l’effet combiné de plusieurs motifs.
7. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
a) de refuser d’employer ou
de continuer d’employer un individu;
b) de le défavoriser en cours
d’emploi.
14. (1) Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait
de harceler un individu :
a) lors de la fourniture de
biens, de services, d’installations ou de moyens d’hébergement destinés au
public;
b) lors de la fourniture de
locaux commerciaux ou de logements;
c) en matière d’emploi.
(2)
Pour l’application du paragraphe (1) et sans qu’en soit limitée la portée
générale, le harcèlement sexuel est réputé être un harcèlement fondé sur un
motif de distinction illicite.
44. (1) L’enquêteur présente
son rapport à la Commission le plus tôt possible après la fin de l’enquête.
(2)
La Commission renvoie le plaignant à l’autorité compétente dans les cas où,
sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait
épuiser les recours internes ou les procédures d’appel ou de règlement des
griefs qui lui sont normalement ouverts;
b) que la plainte pourrait
avantageusement être instruite, dans un premier temps ou à toutes les étapes,
selon des procédures prévues par une autre loi fédérale.
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président
du Tribunal de désigner, en application de l’article 49, un membre pour
instruire la plainte visée par le rapport, si elle est convaincue :
(i)
d’une part, que, compte tenu des circonstances relatives à la plainte,
l’examen de celle-ci est justifié,
(ii)
d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du
paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
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).
65. (1) Sous réserve du
paragraphe (2), les actes ou omissions commis par un employé, un mandataire,
un administrateur ou un dirigeant dans le cadre de son emploi sont réputés,
pour l’application de la présente loi, avoir été commis par la personne,
l’organisme ou l’association qui l’emploie.
(2)
La personne, l’organisme ou l’association visé au paragraphe (1) peut se
soustraire à son application s’il établit que l’acte ou l’omission a eu lieu
sans son consentement, qu’il avait pris toutes les mesures nécessaires pour
l’empêcher et que, par la suite, il a tenté d’en atténuer ou d’en annuler les
effets.
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