Date:
20130812
Docket:
T-2092-12
Citation:
2013 FC 858
Ottawa, Ontario, August 12, 2013
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
|
|
RAVI RALLY
|
|
|
|
Applicant
|
|
and
|
|
|
TELUS COMMUNICATIONS
INC.
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Ms. Ravi Rally, challenges the legality of a decision of the
Canadian Human Rights Tribunal [tribunal], rendered by tribunal member Wallace
Gilby Craig, dismissing her complaint of discriminatory conduct against the
respondent, Telus Communications Inc., leading to the present judicial review
application.
[2]
The
applicant’s complaint alleges a discriminatory conduct based on her disability.
Under the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], the
disability of a person constitutes a prohibited ground of discrimination, and
it is a discriminatory practice, directly or indirectly, in the course of
employment, to differentiate adversely in relation to an employee, on such
prohibited ground: subsection 3(1) and paragraph 7(b) of the CHRA.
[3]
On
or around October 26, 2009, the applicant filed a complaint with the Canadian
Human Rights Commission [Commission] based on the respondent’s conduct from
October 2007 onward, essentially alleging that following her absence caused by
a clinical depression, she was subjected to harassment and discriminatory
treatment because of her disability. On September 28, 2011, the Commission
referred the matter to the tribunal to institute an inquiry into the
applicant’s complaint.
[4]
A
two-week hearing was scheduled for October 9 to 12 and 22 to 26, 2012. The
first day, the tribunal disposed of the preliminary motions and received an
opening statement from respondent’s counsel but not from the applicant, after
which the applicant testified and filed a number of documents. On the fourth
day, following the applicant’s testimony and her cross-examination,
respondent’s counsel asked the tribunal to decide whether the applicant had
established a prima facie case [the motion for dismissal]. Respondent’s
counsel made arguments, but not the applicant.
[5]
At
the end of the fourth day, the motion for dismissal was taken under reserve
while the tribunal also disposed of the applicant’s request to force the
attendance of a certain witness on the second week of the hearing. I pause to
mention that although the applicant had been represented by counsel throughout
the tribunal proceedings – that is by Mr. Joe Coutts who acts as the
applicant’s counsel in this proceeding – she chose to represent herself during
the first week of the hearing before the tribunal. However, Mr. Coutts was
present on October 22, 2012, when the hearing resumed and the impugned decision
was delivered orally by the tribunal member.
[6]
The
tribunal decided that the applicant had failed to establish a prima facie case
of a discriminatory practice [the prima facie issue], finding in this
regard that the respondent’s arguments were “persuasive” (later edited and
referenced 2012 CHRT 27). The applicant now submits to the Court that the
tribunal breached the principles of procedural fairness, and she also makes
arguments that, although framed as a breach of procedural fairness, ultimately
question the merits of the tribunal’s decision.
THE PROCEDURAL
ISSUES
[7]
The
first issue to be decided is whether the tribunal has breached natural justice
or procedural fairness. There has been no suggestion in this case that the
behaviour of the tribunal member raises a reasonable apprehension of bias.
Procedural fairness and bias issues are reviewable against the standard of
correctness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 [Dunsmuir];
and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
SCJ No 12; Sketchley v Canada (Attorney General), 2005 FCA 404, [2005]
FCJ No 2056.
[8]
The
applicant submits that she was prevented from making an opening statement and
also that, right after the prima facie issue submissions of the
respondent had been taken under reserve, the tribunal refused to assign a
proposed witness (Ms. Shaine Rajwani), but her most important reproach concerns
the fact that the tribunal did not hear any argument from the applicant on the prima
facie issue, which proved to be decisive (see paragraphs 33 to 36 of the
tribunal’s decision). Accordingly, the applicant submits that the Court should
intervene: Iossifov v Canada (Minister of Employment and Immigration) (1993), 71 FTR 28, [1993] FCJ No 1318 at paras 2-4; and First
Nations Child and Family Caring Society of Canada v Canada (Attorney General),
2012 FC 445, [2012] FCJ No 425 at para 192 [First Nations Child and Family
Caring Society].
[9]
On
the other hand, the respondent submits that the applicant has waived her right
to seek judicial review over any breach to natural justice or fairness by her
silence or failure to speak-up in a timely manner. She should have raised the
breaches she now complains of at the “earliest practicable opportunity” as
required by the jurisprudence: Canada (Human Rights Commission) v Taylor, [1990] S.C.R. 892, 1990 CanLII 26 (SCC) at para 175 [Taylor]. It is patent
that following the adjournment of October 12, 2012, neither the applicant nor
her counsel asked to make or submit submissions, and that her counsel who
appeared before the tribunal on October 22, 2012, did not outright ask for
leave to make submissions or to present another witness before the tribunal
would render its decision on the motion to dismiss made by the respondent.
[10]
The
specific content of procedural rights afforded to unrepresented parties is
“context-dependant” as explained by Justice Danièle Tremblay-Lamer who
summarized the general principles in Law v Canada (Minister of Citizenship
and Immigration), 2007 FC 1006, [2007] FCJ No 1303 at paras 14-19:
14 In determining the content of
participatory rights, L'Heureux-Dubé J. noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL), at para.
21, that "the concept of procedural fairness is eminently variable and its
content is to be decided in the specific context of each case." She went
on to indicate at para. 22 "[...] that the purpose of the participatory
rights contained within the duty of procedural fairness is to [provide] an
opportunity for those affected by the decision to put forward their views and
evidence fully and have them considered by the decision-maker."
15 Thus, the IAD is to be shown much
deference in its choice of procedure so long as that procedural choice permits
those who are affected by its decision to present their case.
16 Specifically, in the context
of the procedural rights afforded to a self represented party, this Court has
held that an administrative tribunal has no obligation to act as the attorney
for a claimant who refused counsel, and that:
[...] it is not the obligation of the
Board to "teach" the Applicant the law on a particular matter
involving his or her claim. (Ngyuen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (QL),
at para. 17)
17 However, while administrative
tribunals are not required to act as counsel for unrepresented parties, they
must still ensure that a fair hearing takes place. In Nemeth
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 590,
[2003] F.C.J. No. 776 (QL), at para. 13, O'Reilly J. asserted:
[...] But the
Board's freedom to proceed in the absence of counsel obviously does not absolve
it of the over-arching obligation to ensure a fair hearing. Indeed, the Board's
obligations in situation where claimants are without legal representation may
actually be more onerous because it cannot rely on counsel to protect their
interests.
18 It has also been recognized that an
unrepresented party "[...] is entitled to every
possible and reasonable leeway to present a case in its entirety and that
strict and technical rules should be relaxed for unrepresented litigants [...]" (Soares v. Canada (Minister of Citizenship and Immigration), 2007 FC 190, [2007] F.C.J. No. 254 (QL), at
para. 22).
19 Therefore, it is evident that the
specific content of procedural rights afforded to unrepresented parties is context-dependent.
The paramount concern is ensuring a fair hearing where the unrepresented party
will have the opportunity to fully present their case.
[11]
I
am satisfied that sufficient guidance was offered by the tribunal member to the
applicant and that she had full opportunity to present her evidence at the
hearing. That said, by no means, I condone any unfortunate or paternalistic
comment on the part of the tribunal member, which I venture to note, are
isolated and do not alter my general conclusion that there has been a “fair
hearing” with respect to the specific allegations of breach made by the
applicant.
[12]
I
will first deal with the specific reproach made by the applicant that she was
not allowed to make an opening statement. It is unclear to me how this has
prejudiced her in practice. At the tribunal’s direction, the applicant and the
respondent had filed their respective Statement of Particulars months before
the actual hearing (on February 15 and March 14, 2012 respectively). The
tribunal already knew the applicant’s position and had a general knowledge of
her testimony and proposed evidence.
[13]
Be
that as it may, after having closely read the transcripts of the October 9,
2012 hearing (pages 19-20), it appears that the applicant was offered the possibility
– although it would have been after respondent’s counsel had made his opening
statement – to make her opening statement, but implicitly declined to do so at
the tribunal member’s suggestion as appears from the exchange below:
Member
Craig: And you know, he’s being very generous, he’s being very detailed and
he’s being very precise in putting you in a position where you lack
credibility. That is, you were, as he called it, AWOL. You didn’t -- so you’ve
been forewarned. And when he comes to his opportunity to cross-examine you, he
will be as forceful in his cross-examination, I’m sure, as he was in making his
statement about the fact that Telus has an answer to everything that you’ve
done. And that’s the -- what’s what he’s communicated to me, that Telus has an
answer to everything.
And
you must understand, you’re not here to have a debate with him in -- from the
witness box. What you have to do is give me evidence and tell me under oath
what your case is and if you can establish on a likelihood, that is the
reference he used is a prima facie case. The burden on you is to
establish simply that it’s likely that it happened, the occurrence that is your
-- the discriminatory practice. It’s a standard of proof that’s very low
but having said that, even if you establish a prima facie case, Telus is
entitled to put witnesses in the box, as you heard, they’re going to come,
several of them, and they will testify -- testify to relevant aspects of your
claim and if they establish there is a response on a likelihood, if they
satisfy either that the discrimination didn’t occur or that your testimony is
not believed, then they will succeed. So you have the burden initially to
establish a prima facie case that is likely but they then have a similar
opportunity to establish that they have a defence to it. Do you understand?
Ravi Lally: Yes, I understand. Could
I --
Member
Craig: So you’re the prime witness and you -- are you prepared to go over here
and work from there or do you want to stay where you are?
Ravi Lally: I’d prefer to stay
here but could I also have 10 minutes of the court’s time to say my opening
statements that I’ve prepared?
Member
Craig: Sure, you can, but you might be better off to do it under oath
through evidence. It’s up to you. Go ahead. He’s had the opportunity.
Ravi Lally: Okay.
Member
Craig: But I don’t make notes of this because look, none of what he said, I
don’t -- he’s competent counsel. He has witnesses. But in the normal course of
events, there’s no point in me making notes until I actually start hearing the
evidence and that’s oral testimony and documents that come in. And so I’ll
ask you to go ahead and tell me but this doesn’t - this doesn’t advance your
case. It just simply illuminates it a little. And you alert counsel to where you’re
going.
What
I’m saying to you is you can’t -- once you’re in the witness -- I don’t make
notes of what you’re going to say because once you’re in the witness box, I
will make notes and you can’t read your testimony, you have to give it from
memory. Where your memory fails and you want to refer to a document, you’ll
have that opportunity. So you’ll be able to get through your evidence in chief
and then you’ll be cross-examined. So which way would you like to go?
Ravi
Lally: I’d like to do it from here but when I had contacted the CHRC
they had advised that I could keep some notes because I actually made my own
leading questions, my questions that I need to tell the story, to trigger it
and because I don’t have anyone else to -- a lawyer here to do that. So they
said I could have some notes of my own so that I can get through the four or
five years of events that have taken place. Because I don’t have a lawyer to
tell me, okay [indiscernible/overlapping voices] --
[emphasis
added]
[14]
The
applicant also complains that the tribunal member refused to allow her to make
oral submissions on the prima facie issue because she was not
represented by counsel or because of time constraints stemming from the
tribunal’s decision to adjourn the hearing at 15h00 at the end of the first
week. The tribunal member also refused to assign Ms. Rajwani for improper
reasons, a point which will be re-examined as well as when we examine the
merits of the impugned decision.
[15]
The
relevant passages of the hearing transcripts of October 12 (pp 101-102) read as
follows:
Member Craig (to counsel for the respondent): ... I
have nothing more to hear from you. I appreciate very much your argument, it’s
a powerful one. It’s going to cause me concern to work through it. I don’t
need her to respond because she’s not going to make a response that a lawyer
would. I’ll hear from you when we start again a week Monday. But that was –
I appreciate your submission. It’s got me thinking. But I wont deal with the
motion until we come back on the, whatever date it is.
Mr. Heywood: So how do you –
The Clerk: The 22nd.
Mr. Heywood: – just to say that happened – I mean [indiscernible] on Monday. So
we’ll hear the complainant –
Member Craig: The first thing you’ll get from me is the ruling on your
motion.
Mr. Heywood: Oh, okay.
Member Craig: And you have to – unfortunately, I can’t tell you what it is
because I don’t know yet. And when you get here you’ll have your witnesses and
they may well have to start testifying or they may not.
Mr. Heywood: All right.
Member Craig: And that would be easier for you on either eventuality than it
will be with respect to the complainant because that’s a personal involvement.
I don’t mean that Telus isn’t concerned about these things but they – you’ll
work it through with them as to what might happen on the next time we sit.
Ravi Rally: May I make a submission?
Member Craig: No, I don’t need to hear from you
on the –
Ravi Rally: No, it’s regarding the witness for next
week.
Member Craig: Pardon me?
Ravi Rally: It’s a Telus employee, Shaine Rajwani. We
had subpoenaed her during the –
Member Craig: I don’t know what authority I have to order that person to be
arrested. I’m not a Superior Court judge and I don’t see that person being
brought before me.
Ravi Rally: Okay.
Member Craig: There is obviously unwillingness on the part of that person,
for whatever reasons, to appear. I don’t think it’s critical to your case.
Ravi Rally: Okay.
[emphasis
added]
[16]
I
find the applicant’s silence problematic. Context is very important in this
case. The prima facie issue came as no surprise to the applicant.
Although there was no formal motion in writing, respondent’s counsel promptly
informed the tribunal, in his opening statement, that the respondent would ask,
after the applicant’s cross-examination would be over, to rule on whether the
applicant had established a prima facie case of discrimination against
the respondent. This is what effectively happened on the fourth day of the
hearing.
[17]
Although
she had prepared her own submissions and, her counsel, on October 11, 2012, had
prepared written arguments and a case brief, the applicant, did not raise these
at any point in the hearing. Moreover, the motion to dismiss was not decided on
the day it was presented; it was taken under reserve. Accordingly, the
applicant had a whole week after the hearing was adjourned on October 12, 2012
to communicate with the tribunal and express any desire she had to make
submissions or present another witness after she had declared that it was
“Okay” (transcript, page 102). There has been no serious attempt before me to
explain this long silence and this must be held against the applicant.
[18]
It
is clear that a party should not be allowed to hold a procedural fairness
concern in reserve only if the outcome of her case turns out badly, whether it
concerns an apprehension of bias or a breach of procedural fairness: Taylor,
above at para 175; Eckervogt v British Columbia (Minister of
Employment and Investment), 2004 BCCA 398, [2004] BCJ No 1492 at
paras 46-48; Gutierrez v Canada (Minister of Citizenship and Immigration),
2008 FC 1391, [2008] FCJ No 1753 at para 69); Yassine v Canada (Minister of
Employment and Immigration) (1994), 172 NR 308, [1994] FCJ No 949 [Yassine];
Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA
1991, [2001] FCJ No 916 at paras 22-26; Stetler v Agriculture, Food and
Rural Affairs Appeal Tribunal (2005), 76 OR (3d) 321, [2005] OJ No 2817.
[19]
Accordingly,
on the basis of the evidence before the Court, I find that the applicant had
renounced the opportunity to make an opening statement and submissions on the prima
facie issue, and to assign another witness before the prima facie
issue would be decided by the tribunal. This is fatal to the applicant’s claim
that the Court should now intervene because there was a breach of procedural
fairness.
THE MERITS OF
THE IMPUGNED DECISION
[20]
The
second issue to be decided by the Court concerns the merits of the impugned
decision, as the tribunal found that the applicant had failed to establish a prima
facie case of a discriminatory practice contrary to section 7 of the CHRA,
engaged in by the respondent during the period of October 16, 2007 to October
20, 2009 [the prima facie issue].
[21]
While
the legal test respecting
the requirement for prima facie discrimination should be correctly adopted by the
tribunal, it is not disputed here that “[t]he
standard of review applicable to the Tribunal’s finding of prima facie
discrimination necessarily involves application of the law to the facts, a
question of mixed law and fact,” which invokes a standard of reasonableness: Johnstone
v Canada (Border Services), 2013 FC 113, [2013] FCJ No 92 at paras 92-98.
[22]
In
Willoughby v Canada Post Corporation, 2007 CHRT 45 at para 50, the
tribunal defined a prima facie case of discrimination as follows:
A prima facie case of
discrimination is one which covers the allegations made and which, if they are
believed, is complete and sufficient to justify a verdict in the complainant’s
favor, in the absence of an answer from the respondent employer. The
respondent’s answer is not to be considered when determining whether a prima
facie case has been made out. (O’Malley v. Simpson-Sears Ltd. [1985],
2 S.C.R. 536 at para 28, see also Dhanjal v. Air Canada, (1997)
139 F.T.R. 37 at para. 6 and Moore v. Canada Post Corporation and
Canadian Union of Postal Workers, 2007 CHRT 31 at para. 85). A
complainant is not required to prove that discrimination was the only factor
influencing the conduct which is the subject of the complaint. It is sufficient
that a complainant make out a prima facie case that discrimination is a
factor. (See Basi v. Canadian National Railway Company, (1988) 9
C.H.R.R. D/5029).
[23]
In
the case at bar, there is no allegation that the tribunal applied the wrong
test. As the Supreme Court of Canada explained in Dunsmuir, above, at
para 47, reasonableness is concerned with “the existence of justification,
transparency and intelligibility within the decision-making process” as well as
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[24]
The
applicant essentially submits that the tribunal relied on the respondent’s
arguments and justifications as evidence in reaching its decision to
dismiss the applicant’s complaint. This is not the case in my opinion when the
decision is read as a whole and in light of the totality of the evidence on
record. The applicant also questions the deficiency or lack of reasons, particularly
the last part of the impugned decision (paragraphs 33 to 36). In this respect,
I see nothing objectionable in summarizing the arguments of the respondent and
then finding that they are “persuasive”, as long as there is evidence on the
record to support these arguments and that the Court can understand why the
tribunal has found them “persuasive”.
[25]
In
this respect, I am satisfied that the tribunal considered the totality of the
evidence on record. The applicant began her testimony by affirming the truthfulness
of her complaint (Exhibit C -1) and this was specifically acknowledged by
the tribunal (paragraph 31), subject to its stated reserves with respect to the
applicant’s interpretations or conclusions derived from these facts (paragraph
32). It is apparent in reading the reasons that the tribunal did not consider
that the facts proven by the applicant amount, prima facie, to
“discriminatory practices regarding her employment”. The reasons could have
been more articulated or detailed but they are generally transparent and
provide intelligible reasoning and rationale for accepting the respondent’s
arguments for dismissal.
[26]
In
particular, the tribunal specifically examined the evidence that the applicant
considered to be “the core element of her complaint” (paragraph 31). According
to the evidence presented by the applicant and summarized by the tribunal in
its decision, the applicant started to work for Telus in 1989 as a telephone
operator and eventually worked her way up to the accredited status of project
manager. In March 2007, the respondent’s acting vice-president, Mr. Brett Holt,
who had the experience of working with the applicant in Telus’ Small Business
Solutions division in 2003, asked the applicant to work on a special project,
code-named Project Clearwater, which was going to be managed by Mr. Holt under
the direction of Mr. Dan Goldberg, senior executive. The said project was
accomplished between March and October 2007 and consisted of an unusual
strategy intended to create greater sales potential. It essentially involved
the consensual termination of at least twenty of the most underperforming sales
managers and sales employees in exchange for an advantageous severance package.
Four severance packages were intended to be paid to terminated sales managers
and sixteen were intended to be paid to unionized sales employees.
[27]
The
applicant’s testimony and documentary evidence produced at the hearing shows
that the employer was entirely satisfied by the applicant’s performance during
the Project Clearwater (Exhibits C-6 and C-7), and also that people depended on
her in another project which involved a floor move and was not yet completed.
Be that as it may, the applicant testified that she accepted the assignment to
work on Project Clearwater, allegedly in view of securing one of the designated
severance packages, and only after receiving Mr. Holt’s oral assurance that she
would receive a management severance package once Project Clearwater was
finalized in October 2007. The applicant testified that although she reminded
Mr. Holt of the mutual understanding regarding the severance package, during
this period, Mr. Holt avoided any conversation about this issue. On October 16,
2007, Mr. Holt telephoned to inform her that she would not be given a severance
package: “we don’t pay good people to leave”.
[28]
By
itself, assuming that one entirely believes the applicant, her testimony and
evidence on Project Clearwater does not prima facie support any claim
that she was subjected to a discriminatory practice based on disability when
Mr. Holt informed her she would receive a severance package. Accordingly, the
tribunal did not act unreasonably in accepting the respondent’s argument in
this regard (paragraph 33). It was sufficient for the tribunal to endorse the
respondent’s argument that there was simply no nexus between the
termination of any such agreement and the applicant’s disability. I simply fail
to see how Mr. Holt’s change of mind about the agreement has anything to do
with the applicant’s later diagnosed disability.
[29]
Incidentally,
the tribunal earlier noted in its decision (paragraph 16) that Mr. Holt’s
promise regarding the applicant’s potential entitlement to a severance package
resulted from a “private, unenforceable bargain” that would have terminated the
applicant’s employment if it had come to fruition. The tribunal blamed the
applicant for her “failure to understand the ramifications of this unsanctioned
under-the-table agreement including the possibility it might be construed as an
attempt to defraud Telus of a significant sum of money.”
[30]
The
tribunal further stated at paragraph 18:
[I]f I am wrong in characterizing Ms. Lally’s
severance package deal as an act of malfeasance, then in the least she revealed
herself to be dishonest in entering into an unsanctioned bargain. In this
regard, it is significant that Ms. Lally neglected to ascertain whether Mr.
Holt had been authorized by Telus to reward her if the project was successful.
At the very least she ought to have queried Mr. Holt whether he had Mr. Goldberg’s
assurance that a package would be set aside for her.
[31]
Those
comments by the tribunal member are totally gratuitous. Mr. Holt never
testified, nor did any other Telus employee, about this agreement or their
knowledge of it. At this point, it was highly improper for the tribunal to
make, in passing, the comments or findings above. After all, the tribunal was
not asked to determine specifically whether there was a breach of contract, but
to determine whether there were, prima facie, any discriminatory
action taken by Telus as a result of the applicant’s disability. I find that
there is no reason to intervene in view of the other findings made afterwards
by the tribunal in its decision and which sustains its ultimate conclusion to
dismiss the complaint (paragraphs 19 to 37).
[32]
This
brings us to the crux of the complaint made to the Commission which naturally
called for an assessment of the applicant’s credibility. The tribunal
considered the applicant’s testimony and evidence in this regard (see paragraphs
19 and following). The applicant testified at the hearing that, at that time,
she was going through a difficult period and had family issues, she was
emotionally fraught with a rebellious teenage son and a seriously ill mother.
In particular, the tribunal specifically noted (paragraph 22) that “[i]t is
likely that Ms. Rally was at the ultimate point of her mental endurance when
Mr. Holt telephoned her and callously dashed in illusory expectation of a
severance package.”
[33]
The
applicant also alleged that she began to be harassed because of her disability
on October 26, 2007. The tribunal specifically considered the applicant’s
testimony and evidence with respect to her “clinical depression” which was not
immediately diagnosed (paragraphs 23 to 30) and it was not unreasonable for the
tribunal to accept the respondent’s arguments that she was not subjected to
adverse differential treatment because of her disability during the period that
followed the October 16, 2007 conversation with Mr. Holt (paragraphs 33 to 35).
[34]
The
applicant testified that she was scheduled to take vacation, in mid to late
October 2007, and then starting November 2nd until the end of the
month. The applicant stated that she consulted her family doctor on October 22,
2007 as her stress and anxiety were worsening. She testified that on October
23, 2007, she left Ms. Kert a voicemail advising her that she was ill and
requesting the employer to provide her with the necessary forms to apply for
medical leave. The applicant alleges that despite the voicemail, she received
two letters from Telus on October 26, 2007 (dated October 25 and October 26,
2007) accusing her of being absent from work with no prior authorization.
[35]
However,
the respondent has always maintained that it was only on October 29, 2013 that
it became aware of the fact that the applicant was sick and asked medical proof
from the applicant. The applicant was submitted to a severe cross-examination
by respondent’s counsel and the applicant confirmed that she had not spoken
personally to Ms. Kert on October 23, 2007 and did not know if she had actually
listened to her voicemail. The applicant testified that she contacted Telus’
workplace department on October 29, 2007, indicating that she was ill and was
feeling harassed by the respondent’s attempts to get in touch with her.
[36]
At
paragraph 32 of the impugned decision, the tribunal deals specifically with the
applicant’s credibility and notes in this regard:
Ms. Lally’s viva voce evidence and tendering
of documents amounted to an orderly assertion of the details of her complaint.
However, under rigorous cross-examination concerning attempts by manager Joni
Kert to contact her in the weeks following October 17, 2007, Ms. Lally claimed,
speciously, that she was being subjected to harassment therefore
discrimination. Though framed in blunt and insensitive language, the
communications express Telus’ right to know the reason for Ms. Lally’s absence
and I conclude they were not harassment, neither were they acts of
discrimination within the reach of s. 7 of the CHRA. I make the same
determination in connection with the bureaucratic manner in which Telus
employees facilitated Ms. Lally’s entitlement to short and long-term disability
payments and ultimately to coverage by Sun Life Assurance.
[37]
The
applicant’s learned counsel invited the Court to reweigh the totality of the
evidence, and notably to infer that, on October 23, 2007, Ms. Kert had actually
received and listened to the voicemail advising her that the applicant was ill
and asking for the required forms to apply for medical leave. However, it is
not the role of the Court to substitute itself for the tribunal, and in any
event, I do not find the alleged failure to consider the voicemail left for Ms.
Kert on October 23, 2013 as a determinative error. The sending of the voicemail
in question does not prove that Ms. Kert had personally received it, but more
importantly, according to the applicant’s own evidence, she had not been yet
diagnosed as suffering from “major clinical depression”. The applicant’s
testimony regarding when and how the applicant informed Telus of her diagnosis
of depression supports the tribunal’s acceptance of Telus’ argument that “it
was unaware that the Complainant was disabled by clinical depression until
October 29, 2007” (paragraph 33).
[38]
Indeed,
the evidence on record contains an email from the complainant to Adriana Eanga,
Catherine McColl and Mr. Holt, dated November 2, 2007, with the attached
doctor’s note also dated November 2, 2007, wherein Dr. Gnui, the applicant’s
family doctor, certified that she was “suffering from severe mental and
physical stress and [was] not able to continue to work.” Dr. Gnui was again
consulted on November 13, 2007, to complete Telus’ “Practitioner’s Assessment
Form” [PAF] wherein he stated that the applicant was ill with “major clinical
depression” and “unfit to work” and recommended that she consult psychological
services available through work or a psychiatrist (Exhibit C-37).
[39]
With
respect to allegations of differential treatment based on her disability, the
applicant’s evidence is scarce and inconclusive at best, if not totally
inexistent. There has been no serious argument made before me by applicant’s
counsel that in making the requests for additional medical information or proof
of the disability, the applicant has been subjected to adverse treatment
because of her disability. What the evidence on record merely demonstrates is
that there were long delays and administrative errors in the processing of the
medical claims. However, what needed to be proved by the applicant was that she
was discriminated by her employer (not a third party, like the insurance
company) notably because of her disability.
[40]
On
a balance of probability, the tribunal could reasonably find that there was
insufficient proof to demonstrate a prima facie case of discrimination
notably based on disability. In doing so, the tribunal notably considered the
fact that the email exchanges on record show that the applicant’s PAF and leave
request were only assessed by the respondent from November 16 to November 19,
2007 (Exhibit C-38). The evidence indicates that the employer was unsatisfied
with the applicant’s medical evidence and sought to clarify the applicant’s
health status with an independent specialist. On January 25, 2008, Telus
requested that Ms. Lally undergo an independent medical assessment, to which
the applicant consented.
[41]
Before
me, applicant’s counsel explained that Ms. Shaine Rajwani of Telus’ Health
Services was in charge of arranging an independent medical examination for the
applicant. The applicant alleges that Ms. Rajwani falsely told the independent
medical examiner that the applicant was not meeting the employer’s work
objectives and requirements, and that her work performance was poor. However, this
had no effect whatsoever on her medical evaluation and claim. Thus, the
tribunal did not need to consider the applicant’s allegation and it was not
unreasonable to mention to the applicant at the hearing that Ms. Rajwani’s
testimony was not “critical to [her] case”.
[42]
The
tribunal also considered the fact that on February 6, 2008, Dr. Claman, a
Clinical Associate Professor, Department of Psychiatry, UBC, issued a ten-page
report detailing his interview with the applicant on the same day and
confirming her previous diagnosis of major depressive disorder [MDD] although
the applicant’s family doctor used the more inclusive term of “clinical
depression.” As a result of the independent medical exam the applicant’s pay
was re-established. The respondent again stopped paying the applicant in June
2009. On September 28, 2009, the respondent informed her that she owed them
over $78,000.00 because she was overpaid as a result of not having applied for
long term disability benefits [LTDB] through the insurance agent, Sun Life.
Again, the applicant had to prove some sort of differential treatment based on
her disability.
[43]
The
tribunal rejected the applicant’s complaint regarding Telus’ errors in
overpayment of salary to the applicant and the manner in which the applicant’s
request for LTDB with Sun Life was handled by Telus employees, including its
failure to ensure that she made a timely application to receive extended
coverage from Sun Life, which the tribunal qualified as merely “bureaucratic”
errors. Telus acknowledged these errors but stated that they were immediately
corrected where possible. Telus argued that the test for discrimination is not
whether the employer acted perfectly in its dealing with a disabled
employee but whether it acted reasonably and did not differentiate
adversely against the employee by reason of her disability. Again, the tribunal
found the respondent’s arguments to be persuasive and I see no reason to
interfere with that part of the tribunal’s decision.
[44]
Applicant’s
counsel submits that the tribunal was too “quick” in accepting the respondent’s
arguments on the issue of overpayment. However, he has failed to convince me
how any such error affects the result. Mere assumptions or accusations of
discrimination are not to be equated with the establishment of a prima facie
case of discriminatory conduct. This requires from the complainant the
showing of some discriminatory behaviour based on a prohibited ground of
discrimination. Here, I fail to see in the evidence presented by the applicant,
the required nexus that would allow the applicant to succeed in her
complaint of discrimination based on her disability.
[45]
On
the whole, the decision is based on the evidence on record and its conclusion
to allow the motion for dismissal comes within the range of acceptable outcomes
in light of the law and the facts of this case.
THE
EXERCISE OF THE COURT’S DISCRETION IF REVIEWABLE ERRORS WERE MADE BY THE
TRIBUNAL
[46]
Overall,
I find there is no reason to intervene.
[47]
In
the alternative, if I am wrong in finding that the applicant has effectively
waived her right to complain of the alleged breach to procedural fairness, this
is a case where it would be justifiable not to set aside the decision and refer
the matter for redetermination because “the demerits of the case are such that
it would be in any case hopeless”: First Nations Child and Family Caring
Society, above, at para 203; W. Wade, Administrative Law (6th ed
1988) at 535, as cited in Mobil Oil Canada Ltd Et al v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at 228,
[1994] SCJ No 14; and Yassine, above, at para 9.
[48]
There
has been no allegation of bias made against the tribunal member. In such a
case, the matter would be simply referred back to the same member. The
applicant has already testified and been cross-examined. The only additional
witness to be heard would possibly be that of Ms. Rajwani. In my humble
opinion, there is no reasonable prospect that the result would be different.
[49]
The
fundamental problem in this case is the establishment of a nexus which
requires a proof of differential treatment based on the applicant’s disability.
[50]
In
this respect, the applicant has failed to demonstrate how the proposed
testimony of Ms. Rajwani would support the claim that she was discriminated on
the basis of her disability. I am ready to accept that Ms. Rajwani was
instructed by the employer to advise the independent medical examiner that the
applicant was not meeting the employer’s work objectives and requirements and
that she had poor performance at work. If proven, this would certainly be
improper conduct, but the fact is that the independent medical report
corroborated the diagnosis of depression.
[51]
The
applicant complained that she should have been allowed to make an opening
statement and to make oral submissions with respect to the prima facie issue.
This supposes that the tribunal member reassesses the evidence in light of the
applicant’s representations. In this respect, the applicant’s chances of
convincing the tribunal that there is an objective nexus between her
disability and the employer’s conduct during the whole period of time before
her complaint are non-existent or almost nil.
[52]
Finally,
many of the issues raised in the October 29, 2009 complaint have already been
settled or will be pursued by the parties in another competent forum which is
not the tribunal in this case. That would be a further ground for the Court to
refuse to refer the matter back for redetermination by the tribunal.
[53]
With
respect to the “administrative errors”, it appears that in November 2009, the
applicant’s application for LTDB was denied by Sun Life because the time limit
to apply had expired and it was unsupported by sufficient medical information.
The applicant appealed Sun Life’s decision in April 2010. On August 14, 2012,
the applicant was informed by Sun Life that no response to her appeal had been
provided by her employer. Be that as it may, the applicant’s LTDB application
was ultimately approved. This renders that part of the applicant’s complaint
certainly academic today.
[54]
It
is also important to underline that this is not a case of differential
treatment based on refusal to accommodate, because of ones disability. The
applicant never returned to work and apparently does not wish to work again for
the respondent, a point which was well taken by respondent’s counsel in his
exchanges with the tribunal. Apart from damages the applicant would wish to
have as a result of the mental distress, she alleges to have suffered, counsel
for the applicant was unable to indicate to the Court what other remedies the
applicant would seek from the tribunal.
[55]
I
was also informed by counsel that the applicant’s employment was terminated in
November 2012, apparently for “frustration of contract”, and that the legality
of her termination of employment is currently before the Supreme Court of
British Columbia, as well as the respondent’s claim to recover the sums of
money allegedly overpaid ($78,000) to the applicant.
[56]
Even
assuming that reviewable errors were made by the tribunal, the factors noted
above would justify this Court not to exercise its discretion to set aside the
impugned decision and to refer the matter back for redetermination by the
tribunal.
CONCLUSION
[57]
For
all these reasons, I would dismiss this application for judicial review.
Despite the result is in favour of the respondent, this is an appropriate case,
where in the exercise of my discretion and having considered all relevant
factors, there should be no costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
dismissed without costs.
“Luc Martineau”
Email this Content