Date:
20130913
Docket:
T-1443-12
Citation:
2013 FC 951
Ottawa, Ontario,
September 13, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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DENNIS WESTBROOK
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Cheryl Fraser, the
Assistant Commissioner in the Human Resources Branch of the Canada Revenue
Agency, pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c
F-7. The Assistant Commissioner denied the Applicant’s grievance challenging
the response to his harassment complaint as outlined in a letter dated January
27, 2010 from Peter Poulin, Assistant Commissioner, Information and Technology
Branch.
I. Background
[2]
The
Applicant was employed by the Canada Revenue Agency [the Agency] as a Computer
Systems Analyst. Beginning in March 2007, he reported to Beverley Miranda, a
Project Leader.
[3]
On
September 23, 2008, the Applicant filed a complaint which alleged that between
July 2007 and December 2007, he was the subject of harassment by Ms. Miranda.
In his complaint, the Applicant alleges that Ms. Miranda’s management style
constituted personal harassment, as it was “demeaning, offensive, and
aggressive.” The Applicant states that this harassment culminated in his leave
of absence due to illness on October 2, 2007. The Applicant subsequently
expanded on his allegations regarding Ms. Miranda. Of relevance to this
proceeding are five allegations of harassment. In particular, these allegations
are that Ms. Miranda:
i)
Wrongly
accused the Applicant of arriving late to work;
ii) Called
the Applicant and other employees about a workplace barbecue as a guise to see
if they were at their desks, making them feel as though they were being “spied
upon”;
iii) Wrongly
accused the Applicant of spending too much time at work discussing personal
issues;
iv) Demanded
in a disrespectful, irate and unprofessional manner that the Applicant change a
cost estimate, and then physically intimidated him; and
v) Told the
Applicant to go home after stating that he was “no good to her” at work;
[4]
In
February 2009, Susan Palmai from Quintet Consulting Corporation [the
Investigator] was retained by the Agency to conduct an investigation into the
Applicant’s complaint. The Investigator accepted a written response from Ms.
Miranda regarding the Applicant’s complaint and conducted various interviews
between June and August 2009. In November 2009, the Investigator released her
Preliminary Investigation Report, to which the Applicant replied with comments.
On December 23, 2009, the Final Investigation Report was released to the
Agency.
[5]
On
January 27, 2010, Mr. Poulin dismissed the Applicant’s complaint. In response,
the Applicant filed a grievance. A hearing was held on April 30, 2012, in which
the Applicant gave written representations alleging various flaws in the
investigation.
[6]
Following
the hearing, Ms. Fraser rendered a decision on June 20, 2012, which dismissed
the Applicant’s grievance in a one-page letter. Ms. Fraser stated that she
reviewed his grievance, the Investigator’s report and the submissions presented
by the Applicant and his representative at the hearing before concluding that
“the merits of (the Applicant’s) complaint were fairly and thoroughly
considered and that the investigation process was conducted appropriately.”
II. Issue
[7]
The
issue raised in the present application is as follows:
A. Was
the Canada Revenue Agency’s decision reasonable?
III. Standard of review
[8]
Both
parties agree that the standard of review is reasonableness (Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53
at paras 16, 28; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-48; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland and Labrador Nurses Union] ; et al).
IV. Analysis
A. Was the Canada Revenue
Agency’s decision reasonable?
[9]
Canada
Revenue Agency’s Preventing and Resolving Harassment Policy states, in part:
Harassment is defined as:
A form of misconduct/improper behaviour by an
employee, that is directed at and offensive to, another employee, and which
that person knew or ought to have known, would be unwelcome and cause offence
or harm. It comprises objectionable conduct, comment or display that demeans,
belittles or causes personal humiliation or embarrassment, and any acts of
intimidation or threats, which detrimentally affects individual well-being or
the work environment.
[10]
The
Applicant contends that the Investigator’s report was deficient in how it dealt
with the evidence presented concerning Ms. Miranda’s alleged harassment of the
Applicant. Particularly, he submits there were two errors in evaluating the
evidence:
i)
In
assessing credibility, the Investigator failed to properly consider the
unresolved inconsistencies between the Applicant’s testimony and Ms. Miranda’s
testimony; and
ii)
The
Investigator failed to consider the more probable version of events, as
provided by the Applicant and compared against Ms. Miranda’s evidence.
[11]
In
failing to address these deficiencies in the Investigator’s report, the
Applicant’s position is that the Agency’s reasons for its decision were
unreasonable, as the decision and record do not shed light on why the Agency
decided as it did.
[12]
While
not as clear as the reasons for the credibility issues in the decision could
be, I must disagree with the Applicant’s characterization and criticism of the
Agency’s decision as being unreasonable. Moreover, while the Court should not
have to guess as to the reasons or substitute its reasons for those of the
decision maker, that is not the case here.
[13]
It
is not the Court’s role to conduct an in-depth analysis of the record to
justify the reasons underlying the Agency’s decision. That being said, the
record here is relatively clear in showing how the Agency arrived at its
decision. The initial decision of January 27, 2010, references the
Investigator’s report and provides a summary of conclusions reached on the
evidence. The final decision by the Agency on June 10, 2012, likewise
references the Investigator’s report. One is not left to guess at the reasons;
they are articulated in the January 27, 2010 letter, and supported by the
Investigator’s report. In the instant application, it is reasonable to treat
the Investigator’s report and the initial decision as part of the final
decision. To sever the final decision from these components would be artificial
and contrary to the deference accorded to administrative decision-makers on the
reasonableness standard.
[14]
Accordingly,
the reasoning applied by the Agency in reaching its final decision is within
the guidance offered by Newfoundland and Labrador Nurses Union, at para
15, that courts may “… look to the record for the purpose of assessing the
reasonableness of the outcome.” It is reasonable to incorporate the
Investigator’s report and the initial decision within the reasoning of the
Agency’s final decision (Sketchley v Canada (Attorney General), 2005 FCA
404 at para 37; Ralph v Canada (Attorney General), 2010 FCA 257 at paras
14, 16).
[15]
The
Investigator’s report and the initial decision demonstrate that the Applicant’s
complaints were thought to be unfounded for various reasons, including denials
by Ms. Miranda, a lack of corroborative evidence by the Applicant, and the fact
that certain incidences did not meet the definition of harassment. These
reasons allow the Court to understand why the tribunal made its decision (Newfoundland
and Labrador Nurses Union, at para 22), including an assessment of
credibility based on the evidence.
[16]
The
Investigator’s report and the initial decision, in dealing with the five issues
raised by the Applicant in this application, made a number of findings. With
regard to the first and second issue raised by the Applicant, the
Investigator’s report stated at page 29:
Ms. Miranda’s assertion that, as supervisor, she
would walk to the area of the employees she supervises to make contact with
them at the end of the day or at any other time is in no way inconsistent with
her supervisory responsibility.
Furthermore, the initial decision
of January 27, 2010 states at page 2:
The witnesses’ testimonies did not provide evidence
that would suggest that Ms. Miranda exceeded her supervisory role by her
occasional visits to the team’s cubicle area.
[17]
With
regard to the third issue, the Investigator’s report states at page 28:
Ms. Miranda did not deny that she went to his (the
Applicant’s) desk but denied that she asked what he and Mr. Wong talked about”
(page 28).
[18]
At
page 29, the Investigator makes findings relevant to the fourth issue raised by
the Applicant:
There is no witness evidence to suggest that Ms.
Miranda had physically intimidated employees in the workplace.
No one witnessed any physical intimidation and, in
fact, Mr. Tripp said he had concerns about the way in which BCCE team members
treated Ms. Miranda. Mr. Lessard concurred that Ms. Miranda did not use
unprofessional language or yell at her employees.
[19]
In
relation to both the third and fourth issue, the initial decision states at
page 3:
This allegation is therefore deemed to be unfounded
on the basis of a lack of evidence corroborating the allegation.
[20]
Finally,
with regard to the fifth issue, the Investigator’s report states at page 30
that:
Mr. Westbrook provided no evidence in support of his
allegation and did not deny that four days after the alleged 20 September 2007
incident, Ms. Miranda approved his request to attend a seminar on depression.
None of the witnesses had heard or were able to provide reliable evidence that
Ms. Miranda had made the statements alleged by Mr. Westbrook.
At page 4 the initial decision
concludes on the fifth issue by stating:
Given that Mr. Westbrook has not produced evidence
to support his allegation, it is deemed to be unfounded.
[21]
The
cases cited by the Applicant in support of his assertion that credibility must
be assessed are largely inapplicable on the facts of the instant application.
In Canada (Attorney General) v Tran, 2011 FC 1519 at para
19, the concern over a failure to assess credibility arose on the basis of the
investigator’s failure to interview a crucial witness. In 6245820 Canada Inc
v Perrella, 2011 FC 728 at para 56, the failure to assess credibility was
premised on the improper reliance on an outdated principle of interpretation
which gave preference to a positive statement over a negative one. In Yu v Canada (Attorney General), 2011 FC 38 at para 27, failure to assess credibility was
discussed in the context of procedural fairness.
[22]
Furthermore,
Ferguson v Canada (Minister of Citizenship
and Immigration), 2008
FC 1067 at para 27, comments on the need to assess credibility in circumstances
similar to this application:
Evidence tendered by a witness
with a personal interest in the matter may also be examined for its weight
before considering its credibility because typically this sort of evidence
requires corroboration if it is to have probative value. If there is no
corroboration, then it may be unnecessary to assess its credibility as its
weight will not meet the legal burden of proving the fact on the balance of
probabilities.
[23]
In
the instant application, the Investigator interviewed all the relevant
witnesses and based her findings on the circumstances of the case and the
evidence provided from these witnesses, and the Applicant’s concern is in
relation to the adequacy of reasons on substantive review, not the absence of
reasons on procedural fairness grounds.
[24]
The
five central allegations of harassment as alleged by the Applicant were found
not to be substantiated by the Agency on the evidence. While there is no
question that there were personality issues between the Applicant and Ms.
Miranda, the nature of their conflict was not before me to decide, but rather
whether the decision of Ms. Fraser was reasonable or not, based on the record
before me. The findings by Ms. Fraser based on the Investigator report and Mr.
Poulin’s decision are within the range of acceptable outcomes as set out in Dunsmuir.
While the Investigator did not explicitly address credibility in her report,
the reasoning provided was not simply an arbitrary choice to accept Ms.
Miranda’s version over the Applicant’s, but a reasoned finding which looked to
corroborative evidence and the circumstances of the case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for judicial
review is dismissed with costs to the Respondent to be taxed;
“Michael D. Manson”
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