Docket: T-1426-12
Citation:
2014 FC 865
Ottawa, Ontario, September 11, 2014
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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CLAUDIO LUBAKI
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Applicant
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and
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BANK OF MONTREAL FINANCIAL GROUP
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Mr. Claudio Lubaki (the “Applicant”) seeks
judicial review of the decision of the Canadian Human Rights Commission (the
“Commission”), dismissing his complaint of racial discrimination against his
employer, the Bank of Montreal Financial Group (the “Respondent”). The
complaint was dismissed by the Commission pursuant to subparagraph 44(3)(b)(i)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”).
II.
BACKGROUND
[2]
The following facts are taken from the materials
filed by the Applicant and Respondent, as well as the materials provided by the
Commission pursuant to Rule 317 of the Federal Court Rules,
SOR/98-106 (the “Rules”).
[3]
A Tribunal Record was filed by the Commission
under cover of a letter dated August 23, 2012. According to that letter, the
documents before the Commission, prior to making its decision, were the
Investigation Report, the complaint form and the submissions of the parties in
response to the Investigation Report.
[4]
Upon the written request of Counsel for the
Respondent, the Commissioner delivered a Supplementary Record under cover of a letter
dated November 1, 2012. This Supplementary Record contains “documents” that
were in the possession of the Commission relative to the Applicant’s complaint.
Not all of these documents were before the Commissioner when the decision was
made and this material was not considered for the purpose of the within
proceeding.
[5]
The Applicant is employed by the Respondent in a
Call Centre. He identifies himself as a Black African. He is bilingual and
has assisted customers in French in the course of his employment.
[6]
The Applicant began his employment with the
Respondent in September 2006 as a contractual employee on a temporary basis.
He was hired in July 2007 on a permanent basis as a Call Centre Agent I. The
Applicant characterizes the Agent I post as an entry level position that could
lead to promotion to an Agent II position after 6 – 10 months. According to
the Call Centre career ladder, after holding the position as the Agent II
level, an employee could be promoted to Collector, after approximately four
months.
[7]
By September 2008, the Applicant was still
holding the Agent I position, although others who had been hired at the same
time had been promoted. The Applicant contacted the Human Resources Department
of the Respondent to allege that his lack of promotion was the result of
discrimination.
[8]
The Human Resources Department investigated and
determined that the Applicant was not the victim of discrimination. The Investigator
found that the lack of promotion was attributed to the fact that the Applicant
did not meet the required performance criteria. According to the Applicant, he
was told, after the internal investigation, that he needed to complete Computer
Based Training (“CBT”), after which he would be promoted.
[9]
The Applicant completed the CBT in October
2009. He was not promoted after finishing the training. His work performance
deteriorated in 2010. The Applicant attributes this deterioration to
manipulation of his performance evaluation by his manager.
[10]
The Applicant filed a complaint with the
Commission on August 5, 2010, alleging adverse differential treatment and
denial of an employment opportunity on the basis of his race, colour, or
national or ethnic origin contrary to Section 7 of the Act. He also complained
that his salary was the same as that of the unilingual Call Centre Agents.
[11]
The Applicant alluded to “serious systemic
discrimination” on the basis of race and claimed that black employees were
being “forced” to quit either directly or indirectly. In his response to the
Investigation Report, he also alleged those who wish to progress in the Call
Centre had to “bribe” the manager by bringing gifts and the like, and referred
to “psychological” bribery.
[12]
A corrective action was issued to the Applicant
in September 2010, concerning his work performance. The Applicant alleges that
this step was taken in response to his complaint to the Commission. In any
event, by April 2011, he was promoted to a position as Agent II.
III.
THE INVESTIGATOR’S REPORT
[13]
The Commission investigated the Applicant’s
complaint and interviewed the Applicant as well as employees of the Respondent
including Richard Elliott, legal counsel to the Respondent; Mario Bruno, former
Senior Manager of the Applicant; Andrew Callahan, the Applicant’s current
Senior Manager; Eshwari Sukhdeo, the Applicant’s current Unit Manager; and Mary
Dorn, another Unit Manager in the Call Centre.
[14]
Both the Applicant and the Respondent were given
the opportunity to comment on the evidence, their respective submissions and
the Investigator’s Report. The final Investigation Report was issued on March
12, 2012, recommending that the complaint be dismissed pursuant to subparagraph
44(3)(b)(i) of the Act.
[15]
The Investigator reviewed the evidence of
employee evaluation and performance metrics, the promotion process, the Bravo
Points Incentive System and CBT, as well as the Applicant’s evaluation and
metrics. The Investigator found that it did not appear that the Applicant had been
denied promotion on the basis of discrimination.
[16]
The Investigator reviewed the Applicant’s own
performance metrics and concluded that while he met most of the metrics, his
performance was inconsistent and he did not perform significantly better than his
peers. The Investigator concluded that the Applicant had not met the
performance criteria.
[17]
The Investigator found that statistics submitted
by the Respondent showed that Black or African employees were promoted in a
higher proportion than is representative of the workforce. It did not appear
that a disproportionately high number of Black or African employees resigned or
were terminated by the Respondent.
[18]
The Investigator also commented on the
Applicant’s allegation about other employees who left their employment with the
Respondent as the result of treatment similar to his experiences. The
Investigator concluded that several employees could not be identified and that
there was a reasonable expectation for the departure of other employees. The
Investigator concluded that the evidence did not support the Applicant’s
allegations regarding discriminating treatment of the employees.
[19]
The Investigator found no support for the
Applicant’s claim that the Respondent did not pay a bilingual bonus because
most bilingual employees were Black or African. The Investigator noted that
the Respondent employed bilingual agents who were not Black or African, and in
any event, there was a policy that no employees received bilingual bonuses.
The Investigator found that the evidence did not support the Applicant’s
allegation about non-payment of a bilingual bonus on a prohibited ground of
discrimination.
[20]
Finally, the Investigator found no evidence to
support the Applicant’s claim that promotion required bribery of managers. Accordingly,
the Investigator concluded that the evidence did not establish a finding of
discrimination.
IV.
SUBMISSIONS
A.
The Applicant’s Submissions
[21]
The Applicant now challenges the conduct of the
Investigation and argues that it does not meet the required standards of
neutrality and thoroughness. In particular, he submits that the Investigator
failed to interview witnesses whose names he provided, failed to review
available information about his allegations concerning misreporting to the
managers about certain calls to customers, and failed to sufficiently
investigate his allegations about denial of a promotion.
[22]
The Applicant also argues that the Investigation
is flawed because the Investigator did not thoroughly investigate his complaint
about having been denied a promotion on the basis of a prohibited ground of
discrimination.
B.
The Respondent’s Submissions
[23]
The Respondent takes the position that the
Investigator considered all of the Applicant’s allegations. In spite of the comment
in the Investigation Report that the complaint would be assessed only on the
basis of denial of a promotion, that is, the denial of “an employment
opportunity”, it is clear that the Investigator considered all allegations
raised and indeed, broadened the scope of the investigation to address the
issue of systemic discrimination.
[24]
It submits that the Applicant’s allegation that
his pay was not commensurate with his skill relates primarily to the lack of a
bilingual bonus, and that this issue was addressed by the Investigator.
[25]
The Respondent argues that the Investigator did
not ignore the claim that the Applicant’s managers had improperly reported
conversations with customers but addressed this issue.
[26]
Further, the Respondent submits that if the
investigation was limited, it was in response to the Applicant’s request that
an appropriate remedy would be to promote him with back-pay to 2008 when he
says that he should have been promoted.
[27]
As well, the Respondent argues that in
complaining about the lack of thoroughness in the investigation, the Applicant
is essentially complaining about the investigative process. The Respondent
suggests that this issue should be reviewed on the standard of reasonableness.
[28]
Further, the Respondent submits that the
Commission is entitled to deference in deciding the scope of an investigation.
In light of the Investigator’s conclusion that the Applicant’s performance
metrics did not support a promotion, it was not necessary that the CBT issue be
further investigated.
[29]
The Respondent argues that the Investigator adequately
considered the Applicant’s allegation about the misreporting about customer
calls. The Investigator interviewed a witness whose only evidence would have
been comment on this issue.
[30]
Finally, the Respondent submits that the
Investigator is entitled to deference about the choice of witnesses to be
interviewed. The key witnesses were those employees of the Respondent who were
responsible for assessing the Applicant’s performance and these employees were
interviewed.
V.
DISCUSSION AND DISPOSITION
[31]
The decision in issue here was made pursuant to
paragraph 44(3)(b)(i) of the Act which provides as follows:
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44(3) On receipt of a report referred to in subsection (1), the
Commission
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44(3) Sur réception du rapport d’enquête prévu au paragraphe (1),
la Commission :
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…
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…
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(b) shall dismiss the complaint to which the report relates if
it is satisfied
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b)
rejette la plainte, si elle est convaincue :
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(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is not
warranted, or
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(i) soit que,
compte tenu des circonstances relatives à la plainte, l’examen de celle-ci
n’est pas justifié,
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…
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…
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[32]
The original Summary of Complaint identifies the
grounds of the complaint as discrimination on the basis of race, colour,
national or ethnic origin contrary to Section 7 of the Act, as well as an
alleged practice of adverse differential treatment and denial of employment
opportunity.
[33]
The Revised Summary of Complaint repeats the
claim of discrimination contrary to Section 7 of the Act but the “alleged
discriminatory practice” refers only to the denial of employment opportunity.
[34]
The Act sets out the prohibited grounds of
discrimination in subsection 3(1) as follows:
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3. (1) For all purposes of this Act, the prohibited grounds of
discrimination are race, national or ethnic origin, colour, religion, age,
sex, sexual orientation, marital status, family status, disability and
conviction for an offence for which a pardon has been granted or in respect
of which a record suspension has been ordered.
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3. (1) Pour
l’application de la présente loi, les motifs de distinction illicite sont
ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la
couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état
matrimonial, la situation de famille, l’état de personne graciée ou la
déficience.
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[35]
Section 3.1 is relevant and provides as follows:
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3.1 For greater
certainty, a discriminatory practice includes a practice based on one or more
prohibited grounds of discrimination or on the effect of a combination of
prohibited grounds.
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3.1 Il est entendu
que les actes discriminatoires comprennent les actes fondés sur un ou
plusieurs motifs de distinction illicite ou l’effet combiné de plusieurs
motifs.
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[36]
Section 7 describes “discriminatory practice” as
follows:
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7. It is a discriminatory practice, directly or indirectly,
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7. Constitue un
acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
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(a) to refuse to employ or continue to
employ any individual, or
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a) de refuser d’employer ou de continuer
d’employer un individu;
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(b) in the course of employment, to
differentiate adversely in relation to an employee,
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b) de le défavoriser en cours d’emploi.
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on a prohibited
ground of discrimination.
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[37]
A decision not to refer a complaint to a
tribunal is a discretionary one, reviewable on the standard of reasonableness;
see the decision in Balogun v. Canada (Minister of National Defence)
(2009), 345 F.T.R. 67 (F.C.).
[38]
The content of the standard of reasonableness is
set out in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph
47 as follows:
…In judicial review, reasonableness is
concerned mostly with the existence of [page221] justification, transparency
and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[39]
The Applicant frames the issue in this
application as one of procedural fairness, that is, the failure of the
Investigator to conduct a thorough and neutral investigation. The thoroughness
and neutrality of an investigation are aspects of procedural fairness; see the
decision in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392 (F.C.A.)
at paragraph 112. An investigation will lack thoroughness and breach
procedural fairness where unreasonable omissions are made or fundamental
evidence is ignored or is not accessible; see the decision in Slattery v.
Canada (Human Rights Commission), [1994] 73 F.T.R. 161 (F.C.T.D.) at
paragraphs 55 – 57.
[40]
In general, questions of procedural fairness are
reviewable on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at
paragraph 43.
[41]
In this case, the issue of procedural fairness will
be reviewed on the standard of correctness and the decision under paragraph
44(3)(b) on the standard of reasonableness.
[42]
According to the decision of the Federal Court
of Appeal in Sketchley, supra, an investigation will not meet the
required standard of “thoroughness” if allegations are not investigated. At
paragraph 124, the Court said the following:
The identified investigative omissions are not,
as the appellant argues, merely minor flaws that cannot upset the ultimate
"reasonableness" of the Commission's decision. Rather, the evidence
omitted is so obviously crucial and of such a fundamental nature that the
respondent could not conceivably compensate for its absence through her
responding submissions, although her detailed submissions display a laudable
effort to do so. For example, how could the respondent establish the alleged
failure to accommodate after her leave commenced, when the investigator had not
investigated this allegation at all? Similarly, how could the respondent prove
her allegation that the TB policy was [page445] applied in a discriminatively
strict manner in her case, when the investigator had not investigated how the
policy was applied in the case of other similarly situated employees?
[43]
Upon reviewing the Record and the submissions of
the parties, I am satisfied that the investigation was sufficiently thorough.
I reject the Applicant’s argument that the Investigator did not consider the
complaint about differential treatment.
[44]
Although much of the investigation related to
denial of promotion, the Applicant also complained about differential
treatment, including the allegation that he was paid less than other people
holding the Agent II position. While the Investigator did not specifically
identify this issue as one of differential treatment on a prohibited ground, I
am satisfied that this aspect of the complaint was investigated and considered.
[45]
The allegation about prohibited differential
treatment in the course of his employment is founded upon the allegation of
discrimination on the basis of race. This element of the Applicant’s complaint
relates to his claim that he was not promoted for racial reasons, that he did
not receive a bilingual bonus for the same reason, and that he did not receive
a salary commensurate to his abilities on the basis of race.
[46]
The matter of salary is inextricably related to
the complaint about lack of promotion and the lack of a bilingual bonus. The
Applicant sought, as a remedy, a promotion to the position of Collector,
together with retro-active payment to 2008, the time he says that he should
have been promoted.
[47]
In finding that there was no discrimination relative
to the non-promotion of the Applicant, in my opinion, the Investigator also
addressed the complaint of differential treatment on a prohibited ground. It
seems to me, having regard to the record, that the Investigator investigated
all aspects of the complaint by reference to race, including the complaint of
differential treatment.
[48]
The Investigator made the following statement at paragraph 3 of the
Investigation Report:
It appears that the whole of the complainant’s allegations
concern his lack of promotion. Even though the complainant identified
differential treatment in his complaint form, the issues will be examined only
through the lens of denial of an employment opportunity.
[49]
In my opinion, the Investigator implicitly explored and considered the
allegation of differential treatment in addressing the issue of denial of
promotion. Both complaints are grounded in race or national origin, as the
prohibited ground of discrimination.
[50]
In Canadian Human Rights Commissioner v. Canada (Attorney General) et
al (2012), 411 F.T.R. 14 (F.C.), Justice Mactavish, at paragraph 358,
commented on the meaning of “differentiate
adversely” in subsection 5(b) of the Act as follows:
The ordinary meaning of the phrase "differentiate adversely in relation
to any individual" on a prohibited ground of discrimination is to treat an
individual or group differently than one might otherwise have done on the basis
of a prohibited ground.
[51]
Section 5 of the Act addresses discriminatory practices in the provision
of goods, services, facilities or accommodation available to the general
public. Section 7 of the Act refers to discriminatory practices in the area of
employment. Subsection 7(b) uses the words “differentiate adversely”.
[52]
Insofar as the Applicant’s complaint of differential treatment in the
matter of his employment with the Respondent is based on race, a prohibited
ground of discrimination, I am satisfied that this aspect of his complaint was
addressed by the Investigator according to the required standards of neutrality
and thoroughness. The substance of the Applicant’s complaint about
differential treatment was addressed, as per the decision in McNabb v.
Canada Post Corp. (2006), 300 F.T.R. 57 (F.C.) at paragraph 63. The
Investigator specifically found that there was no discrimination relative to
payment of a bilingual bonus since the Respondent did not pay such a bonus.
[53]
There is no support in the record for allegations of bias or partiality.
[54]
I am satisfied that the Investigator conducted a
neutral and thorough investigation into all grounds raised by the Applicant in
his complaint. There was no breach of procedural fairness.
[55]
The Investigator concluded that the Applicant’s complaint of denial of a
promotion for discriminatory reasons, that is race, was not established. This
conclusion is reviewable on the standard of reasonableness, that is it must be
justifiable, transparent and intelligible; see Dunsmuir, supra,
at paragraph 47.
[56]
Having regard to the record, I am satisfied that the Investigator’s
conclusion meets the reasonableness standard. It follows that there is no
basis to intervene in the Commission’s decision regarding the complaint of
discrimination. That complaint was fully investigated and the Investigator’s
conclusion is reasonable.
[57]
The recommendations of an investigator, when adopted by the Commission,
become the reasons of the Commission in making a decision pursuant to paragraph
44(3)(b); see Sketchley, supra, at paragraph 37.
[58]
In the result, the application for judicial review is dismissed with
costs to the Respondent.
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