Date:
20130710
Docket:
T-2240-12
Citation: 2013
FC 759
Ottawa, Ontario, July 10, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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BARBARA DUNKLEY-CHIEFFALLO
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Applicant
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and
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CANADA POST CORPORATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Barbara Dunkley-Chieffallo has worked at Canada Post Corporation (CPC) since
2000. In 2009, she complained to the Canadian Human Rights Commission (CHRC)
about discriminatory treatment she experienced at CPC over the years. She
alleged differential treatment based on her race, national and ethnic origin,
and disability. In particular, she claimed that one of her superiors had
harassed her, and another had unfairly disciplined her for taking an extended break.
She also contended that a fellow employee refused to pick up mail that she had
sorted. Finally, she maintained that a human resources official had improperly
reprimanded her for absenteeism after she returned to work from stress leave.
[2]
The
CHRC appointed an investigator to look into Ms Dunkley-Chieffallo’s complaint.
The investigator reviewed the written submissions of Ms Dunkley-Chieffallo and
CPC, and spoke with Ms Dunkley-Chieffallo’s supervisor. She concluded that CPC
had not discriminated against Ms Dunkley-Chieffallo. The employer did not
engage in any differential treatment of her; indeed, it was entitled to record
the fact that she had taken an extended break without notifying her supervisor,
and to encourage better attendance at work by meeting with an employee who was
returning from leave. The supervisor had instructed other employees to be sure
to pick up the mail Ms Dunkley-Chieffallo had sorted.
[3]
The
investigator recommended that the CHRC dismiss Ms Dunkley-Chieffallo’s
complaint because it did not merit further inquiry by a tribunal. CPC and Ms
Dunkley-Chieffallo made further submissions to the CHRC in response to the
investigator’s report.
[4]
In
turn, the CHRC appointed a conciliator to try to resolve the dispute. However,
the parties failed to settle. CPC offered to assist Ms Dunkley-Chieffallo in
finding an alternative assignment, but refused to grant the other remedies she
was seeking – an apology, reimbursement of sick leave, and substantial monetary
damages. The parties provided additional submissions to the CHRC to accompany
the conciliator’s report.
[5]
In
2012, after considering the investigator’s report, the parties’ submissions,
the conciliator’s report, and CPC’s offer to find Ms Dunkley-Chieffallo
alternate employment, the CHRC decided to dismiss Ms Dunkley-Chieffallo’s
complaint because, “having regard to all of the circumstances of the complaint,
an inquiry into the complaint [was] not warranted” (relying on s 44(3)(b)(i)
of the Canadian Human Rights Act, RSC 1985, c H-6; see Annex).
[6]
Ms
Dunkley-Chieffallo argues that the CHRC treated her unfairly and failed to take
account of the evidence in her favour. She asks me to quash the CHRC’s decision
and order it to reconsider her complaint.
[7]
I
can find no basis on which to overturn the CHRC’s decision. In my view, the
CHRC gave Ms Dunkley-Chieffallo a full opportunity to participate in the
process leading to its decision. She made numerous detailed submissions and
commented both on the investigator’s and the conciliator’s reports. The CHRC took
those submissions into account before reaching its decision.
[8]
Further,
the CHRC based its conclusion in large part on the investigator’s
recommendations. The investigator’s report sets out a reasonably thorough and
balanced account of the evidence and submissions, and provides an adequate
justification for the CHRC’s conclusion.
[9]
Therefore,
I must dismiss this application for judicial review.
[10]
There
are two issues:
1. Did the CHRC
treat Ms Dunkley-Chieffallo unfairly?
2. Was the
CHRC’s decision unreasonable?
II. Issue One – Did the
CHRC treat Ms Dunkley-Chieffallo unfairly?
[11]
Ms
Dunkley-Chieffallo submits that the investigator’s report was one-sided and
unfair. She also contends that the CHRC’s decision contains no rationale for
dismissing her complaint.
[12]
I
disagree.
[13]
The
CHRC has a duty to ensure that an investigator’s report is neutral and
thorough, to communicate to the parties the essence of the evidence obtained by
the investigator, to give the parties an opportunity to respond to the
investigator’s report, and to consider the parties’ submissions (Slattery v
Canada (Canadian Human Rights Commission), [1996] FCJ No 385 (CA), at paras
1-2).
[14]
Here,
the investigator reviewed all of Ms Dunkley-Chieffallo’s allegations and
arrived at a conclusion based on the evidence. She considered the evidence put
forward by both parties; I see nothing that indicates any bias against Ms
Dunkley-Chieffallo or in favour of CPC.
[15]
Further,
the CHRC provided the investigator’s report to the parties and invited their
submissions on it. They also had an opportunity to comment on each other’s
representations.
[16]
While
Ms Dunkley-Chieffallo disagreed with some of the investigator’s findings, she
did not identify any substantial omissions or errors in the report. Therefore,
the CHRC had no obligation to comment explicitly on her submissions (Herbert
v Canada (Attorney General), 2008 FC 969, at para 26).
[17]
Finally,
since Ms Dunkley-Chieffallo had been intimately involved in the process that
resulted in the CHRC’s decision, she would have been aware that the CHRC’s
decision relied on the investigator’s conclusions and understood the basis for
its decision (Gardner v Canada (Attorney General), 2005 FCA 284, at para
28). Therefore, while the CHRC’s decision sets out few explicit reasons for its
conclusion, the underlying rationale is clearly set out in the record.
[18]
I
find that the CHRC treated Ms Dunkley-Chieffallo fairly and provided an
adequate explanation for its conclusion.
III. Issue Two – Was the
CHRC’s decision unreasonable?
[19]
Ms
Dunkley-Chieffallo has raised the following concerns about the CHRC’s decision:
• It
was unreasonable for the CHRC to rely on the investigator’s report for its
conclusion since, after receiving the report, it referred the matter to a
conciliator; obviously, the CHRC did not find the report persuasive.
• The
investigator and, in turn, the CHRC found that CPC’s conduct toward her did not
amount to differential treatment. However, the investigator relied on CPC’s
employment policies instead of the Canadian Human Rights Act.
• The
CHRC relied on CPC’s offer to try to find Ms Dunkley-Chieffallo another
position, yet it did not impose any time limit on CPC. As it turns out, CPC has
not yet identified any alternate assignment and has given Ms Dunkley-Chieffallo
contradictory information about how to apply for a transfer.
[20]
The
CHRC must act in good faith, consider the evidence before it, and discard
irrelevant considerations and improper purposes (Slattery v Canada (Human Rights
Commission), [1994] FCJ No 181 (FCTD), at para 81). I can see no basis for
concluding that the CHRC violated any of these requirements.
[21]
Regarding
Ms Dunkley-Chieffallo’s specific allegations, the fact that the CHRC referred
her complaint to a conciliator should not be interpreted as a lack of faith in
the investigator’s report. The CHRC has explicit authority to promote
conciliation of complaints (s 47). Its efforts in that regard do not
necessarily reflect on the strength or weakness of the complaint.
[22]
The
investigator noted that Ms Dunkley-Chieffallo had taken an authorized absence,
in the form of an extended break, contrary to CPC’s “Team Leader’s Guide to
Labour Relations”. She found that Ms Dunkley-Chieffallo’s supervisor had not
treated her differentially when he documented her absence since CPC’s
guidelines are neutral; they apply to all employees. I cannot see anything
unreasonable about that finding. There was no evidence that CPC applied the
guidelines in a discriminatory way.
[23]
I
cannot see any basis for finding that the CHRC’s decision was unreasonable.
However, I agree with Ms Dunkley-Chieffallo that CPC’s offer to find her an
alternate position figured in the CHRC’s decision to dismiss her complaint. I
assume that offer remains open. At a minimum, if it has not already done so, I
would expect CPC to provide Ms Dunkley-Chieffallo with clear instructions on
how to arrange a transfer.
IV. Conclusion and
Disposition
[24]
The
CHRC treated Ms Dunkley-Chieffallo fairly throughout the various stages of
considering her complaint. She had a full opportunity to make her case and to
respond to the other materials that were before the CHRC. Further, the CHRC’s
decision not to refer her complaint to a tribunal was a defensible outcome
based on the facts and the law. It was not unreasonable. I must, therefore,
dismiss this application for judicial review.
[25]
CPC
has asked for costs based on the mid-point of Tariff B. Before making any cost
award, I would ask CPC to serve and file a bill of costs, or a statement of a
fixed amount of costs, within 10 days of this judgment.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
Canada
Post Corporation is asked to serve and file a bill of costs, or a statement of
a fixed amount of costs, within 10 days of this judgment.
“James
W. O’Reilly”
Annex
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Canadian
Human Rights Act,
RSC, 1985, c H-6
Report
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.
…
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
…
(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.
Appointment
of conciliator
47.
(1) Subject to subsection (2), the Commission may, on the filing of a
complaint, or if the complaint has not been
(a) settled in the
course of investigation by an investigator,
(b) referred or
dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or
46(2)(a), or
(c) settled after
receipt by the parties of the notice referred to in subsection 44(4),
appoint
a person, in this Part referred to as a “conciliator”, for the purpose of attempting
to bring about a settlement of the complaint.
Eligibility
(2) A person is not eligible to act as a conciliator in respect of a
complaint if that person has already acted as an investigator in respect of
that complaint.
Confidentiality
(3)
Any information received by a conciliator in the course of attempting to
reach a settlement of a complaint is confidential and may not be disclosed
except with the consent of the person who gave the information.
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Loi
canadienne sur les droits de la personne, LRC, 1985, ch H-6
Rapport
44.
(1) L’enquêteur présente son rapport à la Commission le plus tôt possible après
la fin de l’enquête.
[...]
Idem
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission
:
[…]
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.
Nomination
du conciliateur
47.
(1) Sous réserve du paragraphe (2), la Commission peut charger un
conciliateur d’en arriver à un règlement de la plainte, soit dès le dépôt de
celle-ci, soit ultérieurement dans l’un des cas suivants :
a) l’enquête ne mène pas à un règlement;
b) la plainte n’est pas renvoyée
ni rejetée en vertu des paragraphes 44(2) ou (3) ou des alinéas 45(2)a)
ou 46(2)a);
c) la plainte n’est pas réglée
après réception par les parties de l’avis prévu au paragraphe 44(4).
Incompatibilité
(2) Pour une plainte donnée, les fonctions d’enquêteur et de conciliateur
sont incompatibles.
Renseignements
confidentiels
(3)
Les renseignements recueillis par le conciliateur sont confidentiels et ne
peuvent être divulgués sans le consentement de la personne qui les a fournis.
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