Date: 20080724
Docket: T-1333-07
Citation: 2008 FC 904
Ottawa, Ontario, July 24,
2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
LAURA
GAINER
Applicant
and
EXPORT
DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Laura
Gainer (the Applicant) seeks Judicial Review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7 of a decision by the Canadian Human Rights
Commission (the Commission) dated June 21, 2007 dismissing her complaint
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
1985, c. H-6 (the Act).
[2]
The
Applicant was represented by counsel when she filed her Complaint and during
the preparation of the two applications for Judicial Review described below.
She was only self-represented on the hearing days.
BACKGROUND
[3]
The
Applicant was a Senior Business Development Manager (Manager) for Export
Development Canada (EDC).
[4]
EDC
provides insurance to Canadian companies against the risk of non-payment by
foreign customers and provides loans to foreign buyers to finance purchases of
products from Canadian exporters. Managers market EDC’s insurance and loans.
Senior Managers, such as the Applicant, generally have higher sales targets and
receive higher incentive payments than regular managers.
[5]
In
December 2001, the Applicant began to complain about pay inequity between male
and female Managers. EDC says it looked into her complaints but did not find
any discrepancies. Eventually, in May 2003, EDC commissioned a report by Mercer
Human Resource Consulting which was completed in December 2003. It found
evidence of pay inequity in the years 2000, 2001 and 2003. As a result, EDC
admitted that it had been wrong in its initial assessment of the pay equity
issue, apologized to the Applicant and paid her $2,754 ($1,347.75 after
deductions) to correct the discrepancies.
[6]
The
Applicant said that after she complained to EDC, she was subject to reprisals
and retaliation and that she therefore resigned on May 16, 2003.
[7]
She
subsequently filed a complaint with the Commission dated November 20, 2003
(the Complaint). Therein, she described five events which she alleged were
reprisals for her complaints at EDC about inequity.
[8]
The
Commission investigated and, on June 10, 2005, it released its report
which recommended a dismissal of the Complaint (the First Report). On
September 27, 2005, the Complaint was dismissed (the First Decision).
[9]
The
Applicant applied for Judicial Review of the First Decision (the First Judicial
Review). She raised three issues in her application:
1.
Whether
there had been a breach of procedural fairness in the failure to conduct the
investigation in a thorough and neutral manner;
2.
Whether
the Commission erred in law by failing to correctly apply section 11 of the Act
and the Equal Wages Guidelines, 1986, SOR/86-1082; and
3.
Whether
the Commission erred by failing to consider, interpret and correctly apply
section 14.1 of the Act with respect to five specified allegations of reprisal.
They were:
·
Allegation
2: After complaining about pay equity concerns, my compensations package,
relative to others became worse.
·
Allegation3:
I was subject to reprisals, including lower performance appraisals than I
deserved in 2001 and 2002.
·
Allegation
4: Although the Ontario Region was reorganized in January 2003 into 14
supposedly equal territories, in a subsequent further reorganization of the
territories, mine was the only territory reduced in size.
·
Allegation
5: I was subject to inappropriate personal attacks in meetings with the
respondent’s management.
·
Allegation
6: In 2002, I applied for a position of Regional Vice-President, Ontario
Region, a position for which I more than suitably qualified given my
demonstrated sales leadership. However I was not even considered for the
position, which remained unfilled until June 2003.
[10]
The
Applicant conceded that all these alleged acts of reprisal occurred before she
filed the Complaint.
[11]
Section
14.1 of the Act reads as follows:
|
14.1 It is a discriminatory practice for a person against whom
a complaint has been filed under Part III, or any person acting on their
behalf, to retaliate or threaten retaliation against the individual who filed
the complaint or the alleged victim.
|
14.1 Constitue un acte discriminatoire le
fait, pour la personne visée par une plainte déposée au titre de la partie
III, ou pour celle qui agit en son nom, d’exercer ou de menacer d’exercer des
représailles contre le plaignant ou la victime présumée.
|
[12]
In
his reasons for Order and Order dated June 26, 2006 on the First Judicial
Review, Mr. Justice Konrad von Finckenstein granted the application with
respect to the third issue only. His reasons are reported in Gainer v.
Export Development Canada, 2006 FC 814, 295 F.T.R. 137.
[13]
They
read, in part, as follows:
54
For all these reasons, I find that
the conclusions of the underlying Report, as adopted by the Commission, in so
far as they relate to the allegations of reprisals do not meet the palpable and
overriding error standard.
55
Accordingly, the decision of the
Commission, in so far as they relate to the allegations of reprisals, is set
aside and sent back for reconsideration subsequent to an investigation by a
different investigator. That investigator shall only focus on the allegations
of reprisal made by the Applicant.
ORDER
THIS COURT
ORDERS that this application for judicial review be
allowed. The decision of the Commission as it relates to the issue of reprisals
is set aside. The matter is to be sent back for an investigation by a different
investigator solely on the issue of the allegations of reprisal.
[14]
In
response to Justice von Finckenstein’s decision, a different Commission
investigator (the Second Investigator) conducted an investigation (the Second
Investigation) and prepared a Supplementary Investigation Report dated
March 27, 2007, which dealt only with the question of reprisals and
retaliation. Although the parties were able to make new submissions, the Second
Investigator relied on the evidence the Commission had on file and did not
conduct fresh interviews.
[15]
In
the Second Report, the Second Investigator noted the decision of the Federal
Court of Appeal in Dubois v. Canada (Attorney General), 2006 FCA 127,
346 N.R. 390 (the Dubois Decision) which had not been brought to the attention
of von Finckenstein J. In that decision, Madam Justice Karen Sharlow, speaking
for a unanimous panel of the Federal Court of Appeal, held that section 14.1 of
the Act, as set out above, applies only to events that happen after a complaint
is filed with the Commission. In this case, all the retaliation alleged by the
Applicant pre-dated her Complaint.
[16]
In
light of the Dubois Decision, the Second Report concluded, inter alia, that
the Applicant’s allegations did not constitute retaliation under the Act and on
June 21, 2007, the Commission again dismissed the Complaint (the Second
Decision). The present application is for judicial review of the Second
Decision.
PRELIMINARY ISSUE
[17]
A
preliminary issue is whether, in view of the Dubois Decision, the Second
Investigation should have been ordered.
STANDARD OF REVIEW
[18]
Whether
the Dubois Decision meant that the Second Investigation was unwarranted is a question
of law which, in my view, requires the application of reasonableness as the
standard of review when the Supreme Court of Canada’s decision
in Dunsmuir v. New Brunswick¸ 2008 SCC 9 is applied. In my view, the
implementation of Court decisions dealing with the application of the Act is
within the expertise of the Commission.
DISCUSSION
[19]
The
Dubois Decision makes it clear that, to qualify as acts of reprisal under 14.1
of the Act, retaliatory actions must take place after a complaint is filed with
the Commission. In this case, all the events mentioned in the First Application
for judicial review predated the Complaint. For this reason, the Second
Investigation should not have been ordered and, once underway, could only have
resulted in a dismissal of the Complaint based on the Dubois Decision.
CONCLUSION
[20]
In
view of this conclusion on the preliminary issue, any errors which may have
occurred during the Second Investigation would be immaterial because a decision
dismissing the Complaint was the only possible outcome. In other words, in view
of the Dubois Decision, it was not legally possible to forward the Complaint to
the Tribunal under section 14.1 of the Act.
OTHER ISSUES
[21]
The
Applicant says that once the Second Investigator concluded that the Dubois
Decision applied, an obligation arose to consider whether other sections of the
Act might apply to the acts of reprisal. Section 59 was singled out in oral
submissions as the most relevant provision.
[22]
It
reads as follows:
|
59. No person shall threaten, intimidate or discriminate
against an individual because that individual has made a complaint or given
evidence or assisted in any way in respect of the initiation or prosecution
of a complaint or other proceeding under this Part, or because that
individual proposes to do so.
|
59. Est interdite toute menace,
intimidation ou discrimination contre l’individu qui dépose une plainte,
témoigne ou participe de quelque façon que ce soit au dépôt d’une plainte, au
procès ou aux autres procédures que prévoit la présente partie, ou qui se
propose d’agir de la sorte.
|
[23]
The
transcript of the hearing makes it clear at page 35 that the Applicant never
told EDC that she was going to make the Complaint. The Applicant said that EDC
should have inferred that she would complain to the Commission given the fact
that it knew that she retained counsel when she resigned. However, I do not
think section 59 can be applied based on an inference.
[24]
Further,
as counsel for EDC noted, section 59 is not a provision about a discriminatory
practice that is dealt with during a normal Commission investigation. Rather,
it is a quasi-criminal provision. It would apply following a separate complaint
and only if the Attorney General consented to a prosecution under section 60 of
the Act.
[25]
The
Applicant’s memorandum of argument also suggests that the Commission should
have investigated the retaliatory acts under sections 2 (the purpose clause),
27 (the powers, duties and functions provisions) and paragraph 14(1)(c)
which says that harassment of an individual on a prohibited ground of
discrimination in matters related to employment is a discriminatory practice.
[26]
Section
2 and 27 do not apply but I will consider paragraph 14(1)(c). It reads
as follows:
|
14. (1) It is a discriminatory practice,
…
(c) in
matters related to employment,
to harass an individual on a prohibited ground of discrimination.
|
14. (1) Constitue un acte discriminatoire,
s’il est fondé sur un motif de distinction illicite, le fait de harceler un
individu :
[…]
c) en matière d’emploi.
|
[27]
In
her Complaint (which was prepared with legal assistance) the Applicant used the
terms reprisals and harassment interchangeably in the opening paragraphs. For
example:
Paragraph 1: …My further ground of
complaint is that, after I addressed the issue of pay inequity with the
management of EDC, I was subjected to over a year of harassment, which I
believe was direct reprisal.
Paragraph 2: …My decision to resign
was a direct result of the harassment to which I had been subjected
since January 2002…
Paragraph 3: …and I suffered such
serious reprisals that I was forced to resign. The reprisal and harassment
that I have suffered continued from January, 2002 until May, 2003, when I
resigned from EDC.
[my
emphasis]
[28]
However,
when she provided specifics of the conduct about which she complained, she
described it as reprisals. Paragraph 5 of the Complaint said:
5. Not only did my compensation package,
relative to other BDMs, become worse rather than improve after I raised the pay
equity alarm, management also took a number of reprisal actions against
me from January, 2002 to May, 2003. These reprisals included a lower
performance appraisal than I deserved in 2001 and a much lower performance
appraisal than I deserved in 2002. Both of these appraisals were based on
pretextual factors or misinformation as set out in detail below. In 2002 I
applied for the position of Regional Vice-President, Ontario Region, a position
for which I was more than suitably qualified given my demonstrated sales
leadership. I was not even considered for the position, which remained unfilled
until June 2003. I was also subjected to inappropriate personal attacks in
meetings with EDC management, including criticism for retaining a lawyer and
unfounded allegations that my coworkers were complaining about me. Even while
senior management was punishing me for raising pay equity concerns, I continued
my superior sales performance, and EDC continued to rely on me to motivate and
lead the sales efforts of others.
[my
emphasis]
[29]
These
are the allegations described as numbers 2-6 in the First Report and are those
which Justice von Finckenstein described as the “allegations of reprisals”.
[30]
I
am satisfied that, when read in context, the allegations were in fact of
reprisal and not harassment because no connection was made between the acts of
reprisal and a prohibited ground. I have therefore concluded that the Second
Investigation was not required to consider the Applicant’s Complaint under
paragraph 14(1)(c) of the Act.
[31]
The
Applicant submits that the Dubois Decision is a precedent for ordering an
investigation under 14(1)(c) when retaliation is not shown. However, in
that case it appears that the appeal was dismissed because the Crown
acknowledged that the acts complained of might fall within subsection 14(1).
There is no such acknowledgment in the present case.
MATTERS NOT IN ISSUE
[32]
I
have not considered the Applicant’s submission that the First Investigator
breached Commission Guidelines by interviewing witnesses in the presence of
Respondent’s counsel. In my view, this issue was raised as a fairness question
before Justice von Finckenstein and he ruled that a lack of fairness had not
been shown because “…There is no indication or allegation that counsel
interfered with the investigation” (see paragraph 29).
[33]
I
also explained to the Applicant that allegations which were not before the Commission
could not be considered on judicial review. For this reason, I declined to hear
her fresh submissions about alleged acts of retaliation which occurred after
she made her Complaint.
JUDGMENT
UPON hearing the
submissions of the self-represented Applicant and counsel for the Respondent in
Toronto on
February 14, 2008;
AND UPON reviewing a
post-hearing letter from counsel for the Respondent dated February 14,
2008 dealing with a question posed by the Court during the hearing.
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application for judicial review is dismissed with costs.
“Sandra
J. Simpson”
Email this Content