Date: 20080828
Docket: T-154-08
2008 FC 969
Ottawa, Ontario,
August 28, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JOSEPH
G. HERBERT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application to set aside the decision of the Canadian Human Rights
Commission dismissing the Applicant’s complaint. The Applicant submits that
the report on which the Commission based its decision was the result of an
investigation that was not performed thoroughly. Where, as in this case, the
Commission adopts the investigator’s report, the sins of the investigator are
visited on the Commission. In my view, the investigation and resulting report
were flawed to an extent that the Applicant was denied procedural fairness by
the Commission and thus the decision of the Commission must be set aside.
Background
[2]
Mr.
Herbert is a former member of the Royal Canadian Mounted Police. He was hired
as a Constable on March 22, 1991, and was initially posted to the Coquitlam
Detachment in British
Columbia.
In December 1995, he was transferred to the Vancouver Drug Section, where he
was later assigned undercover work as a part of the Street Crew of the
Vancouver Drug Section, in February 1997. He was the only Black member of the
force while in Coquitlam and the only non-white member assigned to the Street
Crew during his tenure.
[3]
On
July 16, 1999, Mr. Herbert filed an internal complaint with the RCMP alleging
racial harassment. This was apparently followed by a formal complaint to the
Canadian Human Rights Commission. As a result of an agreement reached by the
parties concerning this complaint, he was subsequently transferred to “O”
Division in Ontario towards the
end of 2000, where he states that he believed that he would have a “new
start”. Instead, he alleges, he was subjected to further discrimination and
harassment.
[4]
On
November 17, 2004, he filed a complaint with the Canadian Human Rights Commission
alleging that he had been discriminated against on the basis of race, colour
and national or ethnic origin in contravention of the Canadian Human Rights
Act, R.S.C. 1985, c. H-6. Mr. Herbert was dismissed by the RCMP on January
5, 2005, and then amended his complaint to include an allegation that his dismissal
was also discriminatory and added disability as a ground of the complaint.
[5]
A
brief summary of some of the allegations of discrimination asserted by Mr.
Herbert is warranted in order to appreciate his allegation that his complaint
was not thoroughly investigated.
[6]
He
asserts that prior to his transfer from Vancouver to Ontario
he met with his new supervisors who informed him that they had a need for
experienced undercover agents and that he would be used for such operations in Ontario. However,
when he reported to work in January 2001, he was told that he would not be
doing any undercover work and was not given any explanation for the change in
plan. Instead, he was posted to the Executive Diplomatic Protection Service,
which he describes as one of the most undesirable positions within the RCMP.
Mr. Herbert alleges that his race and his previous complaint were factors in
the decision to deny him undercover work and to post him to EDPS.
[7]
In
February of 2001, after having written the Corporal's exam and scored in the
top 11% to 20% of the candidates, he was appointed to the new Canadian Air Carrier
Protection Program, where he completed 260 hours in an Acting Corporal's
position. He says that he received written commendation for his excellent work
and leadership in that position. He asserts that despite this commendation
and the fact that he had logged more hours in the CACPP than any other officer,
he was not selected in July 2001 to staff one of two Acting Corporal positions,
each of which was given to less senior, white Constables, with much less
experience. When he inquired as to the reason why he was not considered for
one of the positions he was told that it was a “discretionary decision".
Mr. Herbert is of the view that his colour or race and his previous complaint
played a part in this decision.
[8]
He
alleges that the work environment continued to deteriorate and that he was denied
basic requests for days off and for approval of overtime. He alleges that such
requests were routinely granted to other officers.
[9]
He
learned through an access to information request that he was being monitored by
supervisors and colleagues and that his immediate supervisor was monitoring his
security pass to scrutinize his comings and goings. As a result of this
alleged harassment, his physician placed him on medical leave on August 27,
2003.
[10]
In
September 2003, he met with his section head to discuss his complaints.
Despite assurances of good faith and promises of changes, he alleges that he
continued to be disciplined without cause. He viewed this as a part of the ongoing
harassment and again, his doctor placed him on medical leave.
[11]
In
December 2003, he was told to return all of his equipment to the RCMP, and
while in their offices to do so, he says he was followed the whole time, and even
watched while he used the urinal. He describes this as “an extremely humiliating
experience".
[12]
In
early 2004, Mr. Herbert took educational upgrade courses in Nova Scotia that were
approved by the RCMP, so that he would be able to apply to attend law school. He
was accepted into law school in Nova Scotia and he applied for
educational leave on September 1, 2004. On September 16, 2004, the RCMP
attended his home and later communicated with his lawyer asking that he attend
a health assessment in Toronto. Less than 24 hours
notice was provided although the document given to him indicated that if he did
not give three business days notice to cancel the appointment, he would be
charged $1,000. On October 7, 2004, the RCMP provided Mr. Herbert's lawyer
with documents denying the request for an educational leave, threatening
discharge proceedings, and ordering that he undergo a health assessment.
Despite having informed the RCMP on a number of occasions that communication to
Mr. Herbert was to go through his lawyer, the RCMP contacted Mr. Herbert’s family
and, on one occasion, his professor. Eventually two RCMP members came to Mr.
Herbert’s school and interrupted one of his classes to serve him with
documents.
[13]
Mr.
Herbert’s complaint was investigated and the investigator made a recommendation
to the Commission that, pursuant to section 44(3)(b) of the Act, the Commission
dismiss the complaint because “the evidence does not support the allegations
that the complainant was denied opportunities, harassed and that he had his
employment terminated on the ground of his race, colour, national or ethnic
origin and disability”. As is its usual procedure, the Commission asked both
parties for submissions on the investigator’s report. While the Respondent
indicated that it had no comment to make on the report other than to concur
with the recommendation, Mr. Herbert provided a full 9 pages of legal-sized
paper, containing some 69 comments in reply to the report.
[14]
The
Commission dismissed Mr. Herbert’s complaints without referring them to an
inquiry by the Canadian Human Rights Tribunal. It is this decision that Mr.
Herbert seeks to set aside.
Issues
[15]
Mr.
Herbert initially represented himself, but retained counsel just prior to the
scheduled hearing of this application for judicial review of the Commission’s
decision. Accordingly, the parties were permitted to file amended materials
and additional issues were advanced in challenge to the Commission’s decision.
Essentially, Mr. Herbert submits that the application raises two issues:
a. Whether the
Commission breached its duty of fairness on the basis that the investigation
was not thorough; and
b. Whether the
Commission erred in interpreting the evidence and applying the appropriate
legal tests in determining whether Mr. Herbert had been subject to
discrimination.
The Obligations of the
Commission in Investigating and Screening Complaints
[16]
Typically,
in more complex complaints such as Mr. Herbert’s, the Commission designates an
investigator pursuant to section 43 of the Act to investigate the complaint and
submit a report to the Commission of the findings of the investigation. The
investigator also typically sends the report to the parties in order that they
may respond to it. The responses of the parties and the report are then placed
before the Commission which must determine whether the complaint is to be
dismissed or whether an inquiry is warranted. This screening function has been
aptly characterized by the Supreme Court of Canada in Cooper v. Canada (Human
Rights Commission), [1996] 3 S.C.R. 854 at paragraph 53, as being akin
to that which a judge fulfills at a preliminary inquiry.
The Commission is not an adjudicative body; that is the role of a tribunal
appointed under the Act. When deciding whether a complaint should proceed to be
inquired into by a tribunal, the Commission fulfills a screening analysis
somewhat analogous to that of a judge at a preliminary inquiry. It is not the
job of the Commission to determine if the complaint is made out. Rather its
duty is to decide if, under the provisions of the Act, an inquiry is warranted
having regard to all the facts. The central component of the Commission's role,
then, is that of assessing the sufficiency of the evidence before it. Justice
Sopinka emphasized this point in Syndicat des employés de production du Québec
et de L'Acadie v. Canada (Canadian
Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899:
The other
course of action is to dismiss the complaint. In my
opinion, it is the intention of s. 36(3)(b) [now s. 44(3)(b)] that this occur
where there is insufficient evidence to warrant appointment of a tribunal under
s. 39 [now s. 49]. It is not intended that this be a determination where the
evidence is weighed as in a judicial proceeding but rather the Commission must
determine whether there is a reasonable basis in the evidence for proceeding to
the next stage.
[17]
Unlike
a preliminary inquiry where it is the role of the Crown to present the evidence
and the judge to perform the screening exercise, in human rights matters the
Commission performs both roles – the evidence is presented through the investigator’s
report and the screening through the Commission’s members. As a consequence,
it is my view that the Commission, when undertaking its screening role, must be
vigilant in ensuring that the report does indeed adduce all of the relevant
evidence. The screening out of a complaint has very significant consequences
for a complainant, who will most often have no other remedy for the alleged
discrimination.
[18]
In
performing its screening function, the Commission is given a very broad
discretion to determine “having regard to all of the circumstances” whether an
inquiry is warranted: Mercier v. Canada (Human
Rights Commission), [1994] 3 F.C. 3 (C.A.). However, the process
it follows in exercising that discretion must be fair. In Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, 2005 FCA 404, the Federal Court of Appeal affirmed at
paragraph 112 that where the investigation is procedurally flawed, then the
decision of the Commission, if it is made in reliance on that report, is
equally flawed:
It is clear that a duty of procedural
fairness applies to the Commission's investigations of individual complaints,
in that the question of "whether there is a reasonable basis in the
evidence for proceeding to the next stage" (SEPQA, supra at para. 27)
cannot be fairly considered if the investigation was fundamentally flawed. As
the Supreme Court of Canada noted in SEPQA, supra, "[i]n general, complainants
look to the Commission to lead evidence before a tribunal appointed under s. 39
[now s. 49], and therefore investigation of the complaint is essential if the
Commission is to carry out this role" (para. 24). This same consideration
-- the indispensable nature of the investigation in the Commission's handling
of each individual complaint -- applies equally to an investigation undertaken
prior to dismissal of a complaint under section 44(3)(b). Where a proper
inquiry into the substance of the complaint has not been undertaken, the
Commission's decision based on that improper investigation cannot be relied
upon, since a defect exists in the evidentiary foundation upon which the
conclusion rests (Singh, supra at para. 7).
The duty of the investigator is to be
neutral and thorough in the investigation. Where that duty has not been met,
procedural unfairness may result. It has been recognized in many decisions, Slattery
v. Canada (Human
Rights Commission), [1994] 2 F.C. 574; affirmed (1996), 205 N.R.
383 (F.C.A.) being one, that the requirement for thoroughness must be
considered within the administrative and financial realities of the
Commission’s work. Accordingly, it has been held that minor omissions in the
investigation may be overcome by providing the parties with a right to make
submissions on the report – a process followed in this instance. However, it
has also been recognized in many cases that the right to make submissions
cannot compensate for a defect in procedural fairness in the investigation
where evidence has been disregarded or ignored: see, as examples, Slattery,
supra; Sanderson v. Canada (Attorney General), 2006 FC 447; Powell v. TD
Canada Trust, 2007 FC 1227; and Egan v. Canada (Attorney General),
2008 FC 649.
Was this Investigation Thorough?
[19]
Mr.
Herbert submits that the investigation and the report were not thorough because
they failed to consider fundamental aspects of his complaint, namely disability
as a ground of discrimination and his allegation of systemic discrimination.
[20]
The
Respondent submits that it is open to an investigator to conclude in the course
of an investigation that there is little or no evidence or basis for a
particular ground of complaint. I agree. This is particularly so where, as
here, the allegations relating to a ground of discrimination are sparse. There
is no mention whatever in the initial complaint filed by Mr. Herbert in 2004
that disability is a ground of complaint. When Mr. Herbert amended the
complaint in 2007 he added the following statement: “I allege that on or about
January 5, 2005 the RCMP terminated my employment on the grounds of my race,
colour, national or ethnic origin and disability”. That is the sole reference
to disability in his complaint. In my view, more than a bald assertion of discrimination
is required before the requirement to investigate the complaint is triggered. At
a minimum a complainant must set out some basis for the allegation being
made before any investigation is warranted. Here there was none.
Notwithstanding the paucity of factual assertions the report does indicate that
the investigator gave some consideration to this ground of complaint and, in
the circumstances, I agree with the Respondent’s submissions that Mr. Herbert
was accorded procedural fairness with respect to his allegation of
discrimination on the basis of disability.
[21]
Mr.
Herbert also alleges that the investigator failed completely to investigate the
allegation of systemic discrimination. Mr. Herbert was somewhat more fulsome
with respect to his allegations in this regard. He writes in his complaint:
I believe that the
differential treatment I have received in the RCMP is indicative of systemic
discrimination regarding the treatment of Black and racialized members of the
RCMP. I understand that Black officers have filed two similar complaints with
the Canadian Human Rights Commission and that one is currently before the
Canadian Human Rights Tribunal.
[22]
The
investigator appears to have given short shrift to this allegation. He
dismissed this complaint in the report in the following manner:
The complainant alleges that
the treatment he received from the respondent is indicative of systemic
discrimination regarding the treatment of Black members of the RCMP. He says
that two other Black constables filed similar complaints with the Commission
against the RCMP. This information does not itself constitute reasonable
ground to believe that systemic discrimination on the ground of colour exists
in the RCMP. For this reason, the allegation will not be explored in this
report.
[23]
While
it is possible that after an investigation of the evidence offered by Mr.
Herbert, an investigator may have concluded that there was insufficient
evidence to support the claim of systemic discrimination, the allegation, in my
view, required more than the cursory dismissal the investigator gave it. In
particular, the investigator fails to reference in the report that one of these
complaints has been scheduled for a Tribunal inquiry, which suggests that the
Commission was of the view that there may be some merit to it. All of the
information regarding these complaints was readily available to the Commission
and its investigator in its own files. The Applicant submits that these two
individuals ought to have been interviewed by the investigator. That may be so
if a review of the complainants’ files indicated that such was warranted.
However, without even examining those complaints, the investigator came to the
view that further inquiry was not warranted. In my view the failure of the
investigator to even review those two complaints and their status results in an
investigation that was less than thorough. This is particularly egregious as
it appears that Mr. Herbert is claiming that these two Black members of the
RCMP have also alleged systemic discrimination on the part of the RCMP against
Black members. The investigation being less than thorough in this regard, it
follows that the Commission did not have all of the relevant information when
it made its decision to dismiss Mr. Hebert’s complaint.
[24]
It
is also very troubling that the investigator appears to have made some
significant errors in some of the facts recited in the report. The Respondent argues
that the submissions made by Mr. Herbert in response to the report are largely
a repetition of the facts as he sees them and do little more than indicate his
disagreement with the facts as found by the investigator. In its written
submission, the Respondent writes:
This Court should not reweigh
the evidence which was before the Commission. It was open to the Commission to
accept the facts as found by the investigator, and its conclusions were
reasonable in light of that evidence. While Mr. Herbert may not agree with the
outcome of Commission’s weighing of the evidence in his case, its conclusion
was reasonable and this Court should not interfere.
[25]
There
is no question that it is not the role of this Court on an application for
judicial review to reweigh the evidence before the Commission. It is certainly
open to the Commission to accept or reject the facts as found in the
investigation report. As has previously been noted, where, as here, the
Commission’s decision is brief and accords with the investigator’s report, the
report becomes its reasons for the conclusion. The Respondent submits that
the reasons for the Commission’s decision are not just the investigator’s
report. It was pointed out that the Commission in its letter to Mr. Herbert
says that “before rendering their decision, the members of the Commission
reviewed the report disclosed to you previously and any submission(s) filed in
response to the report”. Accordingly, the Respondent submits that “when this
court is asked to infer that the Commission’s reasons are identical to those of
the Investigator, it should take account of the whole of the material that was
before the Commission in rendering its decision”. I agree that this Court must
take into account all of the material that was before the Commission when it
reached its decision, not in determining whether the reasons of the report are
the reasons of the Commission, but in assessing the reasonableness of the
Commission’s decision.
[26]
The
jurisprudence is clear that where the Commission provides the complainant what
is essentially a form letter dismissing the complaint for the same reasons set
out in the investigator’s report, then the report does constitute the reasons
of the Commission as to why the complaint was dismissed. If the Commission
chooses to dismiss on some other basis than that advanced by the investigator,
it must state those reasons in its decision. Where the parties’ submissions on
the report take no issue with the material facts as found by the investigator
but merely argue for a different conclusion, it is not inappropriate for the
Commission to provide the short form letter-type response. However, where
these submissions allege substantial and material omissions in the
investigation and provide support for that assertion, the Commission must refer
to those discrepancies and indicate why it is of the view that they are either
not material or are not sufficient to challenge the recommendation of the
investigator; otherwise one cannot but conclude that the Commission failed to
consider those submissions at all. Such was the situation in Egan v. Canada (Attorney
General),
[2008] F.C.J. 816; 2008 FC 649.
[27]
In
Egan the complainant filed a rebuttal submission of some ten pages that
began with the statement: “I have read the report in total disbelief as to how
a less than 10-minute telephone conversation with me and my union reps can
amount to an “investigation”. My colleague, Mr. Justice Hughes, noted:
The Commission's letter does not
specifically address any of the concerns as to the investigation and Report
raised in the Applicant's rebuttal and refers to the rebuttal in such a neutral
way -- "any submission(s) filed in response" -- that one is
left to wonder to what extent, if at all, the Applicant's concerns were even
noted let alone considered.
Justice Hughes concluded, in allowing the
review:
I am satisfied that, in the present case
the issues raised by the Applicant in rebuttal were of such a fundamental
character that they should have been clearly considered by the Commission and a
further or better investigation ordered or clear reasons set out by the
Commission in its decision as to why it did not do so. To simply say that the
Report is the Commission's reasons would be to ignore the rebuttal entirely.
[28]
Much
the same observation is appropriate on the facts of this case. While Mr.
Herbert in his rebuttal submissions claims that the Respondent has either lied
or misrepresented the facts, he also states that he is countering the findings
made with reference to written documents which support his position. He
writes:
I will now fully qualify my
above noted statements [regarding lies and misrepresentations] by going through
this report and again fully substantiating my HRC complaint by clarifying
misstated facts and referring you to documented materials that have already
been submitted to various HRC investigators during the course of this
complaint, but have apparently been overlooked at this stage of the
investigation.
[29]
In
my view, the following are four of the material and fundamental “misstated facts”
Mr. Herbert raises in his rebuttal that would have cried out for consideration
by the Commission.
- The report states
that because Mr. Herbert’s complaint of harassment in 2000 was an internal
complaint and not a complaint under the Act, it cannot form the basis of
an allegation of reprisal under the Act and “therefore the allegation of
retaliation will not be examined”. Mr. Herbert’s rebuttal points out that
while he first made an internal complaint in July 1999, having received no
satisfaction, he filed a formal complaint with the Commission in February
2000. Thus, the foundation for a claim of retaliation is made out.
- The report contains
a recitation of the evidence of the Respondent was to why “normally” Constables
in Ontario do not do undercover work and accepts this as the reason why
Mr. Herbert was not assigned undercover work. The rebuttal establishes
that the assignment to Ontario was not “normal” -
it was part of a mediated settlement of Mr. Herbert’s complaints in Vancouver.
Further, he says that he was specifically told by an officer, who was not
questioned by the investigator, that he would be assigned undercover work.
Without interviewing that officer how can the investigator discount Mr.
Herbert’s evidence?
- The report recites
the evidence of the Respondent that the two non-Black candidates who were
given the Acting Constable assignments were “good solid members with good
files” but fails to note that Mr. Herbert also fell in this category as he
had letters of commendation and supervisory experience in the RCMP, which
neither of the successful candidates had. As was pointed out in the
rebuttal, the investigator fails to analyze why the officer’s exercise of
discretion in these circumstances had nothing to do with race or the
previous human rights compliant.
- With respect to the
denial of leave without pay to attend law school, the report recites the
position of the Respondent that such leaves have not been approved in Ontario for a
decade. Mr. Herbert points out that such leaves with pay have been
approved and that he can name five white RCMP members who have attended
Canadian law schools in the previous ten years on full pay and benefits.
No investigation was made of these claims or why, when Mr. Herbert was on
disability leave, he could not be released at no cost to the RCMP to
attend law school when a number of white members were granted leave with
pay to do so.
[30]
In
my view, each of these issues, among others raised by Mr. Herbert in his
rebuttal, was so significant that the Commission ought to have referred the
matter back to the investigator for further investigation and the preparation
of a new report. If the Commission chose to make a determination based on all
of the evidence before it, including the rebuttal, to dismiss the complaint,
then procedural fairness required that the Commission specifically deal with
each of the issues raised in the rebuttal that were of a fundamental
character. Having failed to do so, the decision of the Commission cannot
stand.
[31]
Accordingly,
this application is allowed because the investigator failed to conduct a
thorough investigation and because the Commission failed to address those
omissions and inaccuracies. This might have been accomplished either by directing
a further and proper investigation, or alternately, by stating why, in the face
of the material issues raised by Mr. Herbert in rebuttal, no further
investigation was necessary, if that were indeed the case.
[32]
Mr.
Herbert advised the Court that he was not seeking his costs in this
application, primarily because of the Respondent’s co-operation when, just
before the scheduled hearing date, he chose to have counsel represent him and
an adjournment and leave to file amended materials was required. In the circumstances
the Court will not award costs against the Respondent.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application is allowed;
2.
The
decision of the Canadian Human Rights Commission dated December 21, 2007 is set
aside and the matter is remitted to the Commission for investigation by a
different investigator and subsequent redetermination by the Commission; and
3.
Each
party shall bear its own costs.
“Russel W. Zinn”
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