Docket: T-127-15
Citation:
2015 FC 1080
Toronto, Ontario, September 15, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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RONALD PHIPPS
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the Canada Human Rights Commission’s [Commission] decision, pursuant to
subparagraph 44(3)(b)(i) of the Canada Human Rights Act, RSC 1985, c H-6
[CHRA], to dismiss the applicant’s complaint against Canada Post Corporation
[CPC]. The Commission found that the evidence did not support the applicant’s
allegations of discriminatory treatment and harassment pursuant to sections 7
and 14 of the CHRA.
[2]
For the reasons that follow the application is
dismissed.
I.
Background
[3]
The applicant is a self-represented litigant who
identifies himself as an African Canadian male. The respondent employed the
applicant as a letter carrier commencing in December of 2002. The applicant was
a member of the Canadian Union of Postal Workers [CUPW]. CPC and the CUPW are
parties to a collective agreement which sets out wages and working conditions
for unionized employees.
[4]
On November 8, 2013 the applicant resigned from
CPC. On or about November 28, 2013, the applicant filed a complaint with the
Commission alleging that in comparison to Caucasian and Asian employees of CPC
he was treated in an adverse and differential manner by supervisory personnel
and subjected to harassment in the workplace. The applicant's complaint alleges
discrimination from 2002, but primarily focuses on alleged discriminatory
conduct between February 2012 and November 2013. He alleged seven specific
instances of discrimination in the initial complaint and during the
investigation:
1.
a supervisor made comments to the applicant that
were libelous and slanderous when he inquired about overtime pay on April 30,
2013 but that CPC supervisors took no such exception to Asian and Caucasian
employees booking overtime in similar circumstances;
2.
he was called to a disciplinary meeting on April
19, 2013 for alleged misplacement of mail when Asian and Caucasian employees
were not subject to supervisory intervention in similar circumstances;
3.
he was directed by his supervisor on March 28,
2013 not to be in possession of mail while riding his bike when Caucasian peers
were permitted to use bicycles, personal cars, or golf carts to assist them in
the performance of their mail delivery duties;
4.
CPC failed to address numerous acts of vandalism
committed with respect to cars the applicant had parked on CPC property prior
to 2012, and that post 2012 he alleged he had five bicycles vandalized in the
parking lot at his place of employment;
5.
he was subjected to excessive work hours and
paid less than his Caucasian and Asian peers;
6.
he was tricked into resigning from his employment
on November 8, 2013 when, a CPC manager led him to believe, at a meeting on
October 7, 2013, that CPC would accept his proposal to resign and settle all
outstanding grievances in exchange for a cash payment from CPC; and
7.
he was subjected to racial and intra-racial
slurs in the workplace and, despite complaints to both CPC and CUPW, no action
was taken.
[5]
CPC provided a written response to the
applicant’s complaint. The applicant subsequently provided the Commission with numerous
written submissions between March, and September 2014.
[6]
On May 21, 2014, a Commission Investigator wrote
to the applicant advising that she would be investigating the applicant’s
complaint. In conducting the investigation the Commission Investigator reviewed
the applicant’s and respondent’s written material, interviewed the applicant,
and interviewed the following additional individuals: (1) CPC Supervisor,
Michael Mak; (2) CPC Human Rights and Legislated Programs Officer, Kelly
Edmunds; (3) the applicant's CPC Supervisor, John Jackson; (4) the CPC Manager
of Delivery Operations, Joseph Mateus; (4) CPC Letter Carrier, Jeffrey
Chaisson; and (5) CUPW Grievance Officer, Learie Charles.
[7]
On November 6, 2014, the Commission Investigator
issued an Investigation Report recommending the dismissal of the applicant’s
complaints pursuant to subparagraph 44(3)(b)(i) of the CHRA because the applicant
failed to bring evidence demonstrating: (1) adverse differential treatment due
to his national/ethnic origin, colour or sex; (2) the termination of his
employment; or (3) that he experienced harassment at the workplace due to his
national/ethnic origin, colour or sex.
[8]
The Commission provided the applicant with an
opportunity to provide submissions on the Investigation Report, which he did on
November 11, 2014. The applicant’s response notes that his ability to defend
himself was compromised by many factors that include; (1) the CPC and CUPW
employees that provided feedback to the Commission were protecting their own
employment and a culture of discrimination; (2) that he was forced to defend
his rights without video or audio tape while also doing his best to protect
former Caucasian and Asian peers he viewed as friends; and, (3) the failure of
the Investigator to review CPC written log books which would have demonstrated
that despite written policies and a collective agreement management frequently
relied on a clause in the collective agreement intended to ensure mail delivery
in adverse circumstances to advance bias and unwritten rules that primarily benefitted
Caucasian and Asian employees. The applicant also expressed concerns with the
Investigator’s apparent failure to contact a list of potential witnesses the
applicant had provided. The applicant further raised a number of fresh
allegations of differential treatment based on race and gender discrimination
by CPC employees and CUPW officers, and stated that his complaint has been
mishandled by various Commission representatives.
II.
Decision
[9]
On January 15, 2015 the Commission dismissed the
complaint and closed the file pursuant to subparagraph 44(3)(b)(i) of the CHRA,
finding an inquiry into the complaint was not warranted. The Commission’s
decision letter advises the applicant that prior to rendering the decision the
Commission reviewed both the Investigation Report and the response provided by
the applicant.
[10]
The Commission’s decision letter does not
provide further reasons in support of the decision. As such, the Investigation
Report itself constitutes the reasons for the decision (Boshra v Canada
(Attorney General), 2011 FC 1128 at para 48, 398 FTR 60).
[11]
The Investigation Report describes the complaint
and the investigation process followed in addressing each of the three areas
where discrimination on a prohibited ground was alleged. In each case the first
step in the investigation was to examine whether there was support for the
applicant's allegation. This involved a consideration of each of the specific
allegations and whether the evidence established the constituent elements of
the alleged discrimination. Step 2, which was to be pursued only where there
was evidence supporting the allegation of discrimination on a prohibited
ground, involved a consideration of whether or not the respondent's actions
could be reasonably explained.
[12]
The Investigation Report set out each of the
applicant's allegations, reviewed the information obtained in the course of the
investigation, and reached a conclusion in respect of each.
A.
Adverse Differential Treatment
[13]
The Commission addressed the five specific
instances cited by the applicant, finding that the applicant failed to
demonstrate adverse differential treatment due to his race, colour, national or
ethnic origin and/or sex.
[14]
First, the Commission found the evidence did
not support the applicant’s contention that a CPC supervisor made a “specific charge of double dipping” against the
applicant after the applicant had requested overtime for preparing unaddressed
mail. The Commission found that the collective agreement between CPC and CUPW
contained a specific process for overtime requests. This process allowed a
supervisor to determine the reason for an employee’s request for overtime. The
supervisor’s use of the expression “double dipping”
in addressing the applicant’s request for overtime was an attempt to impress
upon the applicant that the request was not proper practice as a bonus was paid
for work related to unaddressed flyer preparation under the collective
agreement. Claiming overtime to perform this work would result in an employee
being paid twice. The applicant brought no evidence demonstrating that the CPC
subjected the applicant to an inconsistent process or that Caucasian and Asian
letter carriers were subject to a different process.
[15]
Second, the evidence did not support the
applicant’s reported reason for being asked to attend a meeting relating to
undelivered mail on April 19, 2013. Instead, the Commission found the evidence
demonstrated that CPC had asked the applicant to attend a meeting regarding the
mis-delivery of mail to an address on his route. The applicant did not attend
the scheduled meeting as was his right under the collective agreement. The
Commission found no evidence that the CPC took any specific disciplinary action
against the applicant for either failed delivery and/or his non-attendance at
the meeting. Furthermore, the Commission found that the applicant provided no
evidence to support the allegation that management was negligent in addressing
violations of the collective agreement by unnamed Caucasian and Asian
employees.
[16]
Third, the evidence did not demonstrate that CPC
discriminatorily prohibited the applicant from delivering mail when riding his
bicycle on March 28, 2013. There was evidence that at least two mail carriers
did use bicycles prior to March 2013 but not after that date. The Commission
found that the evidence indicated that health and safety concerns guided CPC's
request that the applicant not use his bicycle to deliver mail. The Commission
also noted that the collective agreement allows a carrier to request the use of
a golf cart or a similar cart to assist in mail delivery. The Commission found
no evidence that the applicant ever requested the provision of a golf or
similar cart to assist him or whether his route could have accommodated such
use.
[17]
Fourth, no evidence supported the existence of
alleged incidents of racially motivated vandalism. The Commission held that
both CUPW and Canada Post Labour Relations have processes to address incidents
of vandalism so long as the complainant brings proof. However, the Commission
found that the applicant never reported incidents of vandalism to CUPW or to
CPC. The Commission held that the failure to report the alleged incidents
precluded a conclusion that the respondent had failed to act. The Commission
also notes that the applicant did not provide any evidence to show the alleged
damage such as pictures or statements.
[18]
Fifth, the Commission found there was no
evidence to support the allegation that CPC refused to adequately compensate
the applicant for assignments that exceeded an eight hour day. The applicant
provided no information respecting financial advantages to the Asian and
Caucasian peers whom he believed had superior advantages to him. The Commission
found that the evidence showed a process existed under the collective agreement
to address employee concerns if he/she believed there had been an undervaluing
of his/her route. The applicant did not pursue this avenue. Furthermore, the
Commission found that when the applicant raised the issue of improper
compensation with his CUPW representative the applicant was unwilling to
provide any specific information. The applicant also alleged a claw back of
wages when an insurer denied a portion of the applicant’s short term disability
claim. The Commission found nothing inappropriate in the CPC recovering the
overpaid funds. The Investigation Report also notes the applicant's position
that the insurer unfairly terminated his sick leave and finds that the
applicant chose not to appeal the insurer’s decision.
B.
Termination of Employment
[19]
The Commission found that the evidence did not
support the applicant's allegation that CPC tricked him into resigning. Rather
the Commission found that the evidence demonstrated that the applicant
voluntarily resigned from his employment to access the commuted value of his
pension which he would not be able to do once he reached 50 years of age. His
50th birthday was approaching. The Commission also noted that the
applicant stated he had financial issues which the denial of sick benefits
exacerbated all of which led him to submit his resignation to access his
pension benefits.
C.
CPC failed to provide a harassment free work
environment
[20]
The Commission found that the applicant did not
have a record of an incident where he alleged being subjected to racial slurs
in the form of a written message on the wall of an apartment building on his
route. The Investigation Report notes that the applicant says that he could not
state whether or not he had reported the incident to management or the CUPW and
the Commission finds that it appears the incident was not reported. As a result
the Commission could not conclude that CPC had failed to act. It also held that
the evidence demonstrates that CPC had a clear policy regarding workplace
discrimination/harassment which outlines the responsibilities of management,
union and employees in addressing issues of this nature. Finally, the
Commission made an alternative finding that the evidence does not support that
this incident occurred.
III.
Positions of the Parties
A.
Applicant
[21]
The applicant asserts that the Commission’s
decision to dismiss his complaint is not worthy of any deference. His
memorandum of fact and law reasserts the complaints and allegations advanced in
his initial complaint, and advances additional allegations of discriminatory
conduct by CPC employees. In oral submissions the applicant describes the
Commission as being almost relentless in their attempts to direct the applicant
back to CPC to address allegations of discrimination. He states that his verbal
and written communications with the Commission were improperly interpreted by
Commission employees and that interaction with the Commission investigator by
telephone was combative on the part of the investigator. The applicant’s record
discloses the following bases upon which the Commission’s decision is being
challenged:
(1)
Procedural Fairness
[22]
The applicant implies that the Commission
breached its duty of procedural fairness by limiting the length of his
submissions in advancing his original complaint and in responding to the
Commission’s Investigation Report. He argues that these limitations were very
detrimental to attaining a just result. He further alleges ongoing
communication problems with Commission employees that left him with no choice
but to support his position with additional documents, emails to the Commission
and telephone calls.
(2)
Failure to interview all witnesses and review
all documents
[23]
The applicant also argues that the Commission
improperly failed to interview all of the individuals the applicant identified
as witnesses in his various communications with the Commission and to review
relevant records and documents.
(3)
Findings Unreasonable
[24]
The applicant advances various allegations in
his submissions to support the argument that the Commission’s decision to
dismiss his complaint was unreasonable. These allegations are not all found in
the original complaint and in many cases it is unclear when they occurred
relative to the time period addressed in the applicant's complaint. The
allegations include:
1.
Caucasian letter carriers were allowed to book
over-time, regardless of the protocols in place but that he and another dark-skinned
letter carrier were forced to comply with CPC protocols;
2.
A situation involving a CPC supervisor who made
racist remarks about Black males, including the applicant. The applicant’s
submissions also indicate that this individual’s employment was subsequently
terminated by CPC for inappropriate workplace conduct in relation to a female
African-Canadian employee;
3.
CPC management’s failure to take action against
a CPC employee who used racial slang in front of Caucasian and Asian
Supervisors and CUPW Representatives and referred to the applicant in a
derogatory manner. The applicant further alleges this individual spat in his
face during a dispute over the return of another employee’s overtime form and
no action was taken; and
4.
CPC management’s failure to take action in
response to an incident where the screws from the stool at the applicant’s
workstation were removed, causing the stool to collapse with injury to the applicant
when he attempted to sit down.
(4)
Remedies
[25]
The applicant is seeking relief in the form of
monetary damages and what is described as a public service remedy to address
the overlap between municipal bodies, tribunals and commissions that lack the
authority to handle legal complaints against federal regulated entities and or
companies and organizations with a unionized workforce.
(5)
Additional written material
[26]
At the outset of his oral submissions the
applicant sought to put a lengthy written document before the Court containing
his oral arguments and submissions. The respondent objected to the document and
the Court denied the request. The applicant presented the full contents of the
document to the Court as his oral submission.
B.
Respondent
[27]
The respondent argues that the Commission’s
decision to dismiss the complaint in this case engages questions of mixed fact
and law. The respondent notes that previous jurisprudence has adopted
reasonableness as the appropriate standard of review where a complaint has been
dismissed by the Commission pursuant to subparagraph 44(3)(b)(i) of the CHRA.
The respondent submits that the Commission’s decision in this case should be
reviewed on a reasonableness standard.
[28]
The respondent undertakes a point-by-point
summary of the Commission’s decision and submits that each finding was
supported by the evidence and reasonable.
IV.
Issues
[29]
After reviewing the applicant’s record and
hearing his oral submissions, I would frame the issues raised as follows:
1.
Did the Commission improperly limit the length
of the applicant’s written submissions in making his initial complaint and in
responding to the Investigation Report?
2.
Did the Commission err in not interviewing all
identified witnesses and considering documents identified by the applicant?
3.
Was the Commission’s decision to dismiss the
applicant’s complaint reasonable?
V.
Analysis
A.
Standard of Review
[30]
The applicant’s arguments relating to Commission
imposed limitations on the length of his written submissions, as well as the
decision not to interview all of the applicant’s proposed witnesses engage the
question of whether or not the Commission conducted a thorough and neutral
investigation; meaning was the Commission’s process procedurally fair (Slattery
v Canada (Canadian Human Rights Commission), [1994] FCJ No 181 at paras 49,
69, 73 FTR 161 (TD), aff'd [1996] FCJ No 385, 205 NR 383 (CA)) [Slattery]).
I will discuss this duty of procedural fairness later in these reasons. Alleged
breaches of procedural fairness are to be reviewed on a standard of correctness
(Mission Institution v Khela, 2014 SCC 24 at para 79, [2014] 1 S.C.R. 502; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR
339).
[31]
The decision to dismiss the applicant’s
complaint engaged questions of mixed fact and law that involves the exercise of
discretion. This is a question to be reviewed by this Court using the standard
of reasonableness: (Lubaki v Bank of Montreal Financial Group, 2014 FC
865 at para 37; Shaw v. Canada (Royal Canadian Mounted Police), 2013 FC
711 at para 24, 435 FTR 176).
[32]
In reviewing the decision of the Commission I am
also mindful that Parliament intended to extend a significant degree of
latitude to the Commission in the performance of its functions. As noted by
Justice Robert Décary in Bell Canada v Communications, Energy and Paperworks
Union of Canada, [1998] FCJ No 1609, 13 Admin LR (3d) 64 (CA) [Bell
Canada] at para 38:
[38] The Act grants the Commission a
remarkable degree of latitude when it is performing its screening function on
receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41
and 44 are replete with expressions such as “is satisfied”, “ought to”, “reasonably
available”, “could more appropriately be dealt with”, “all the circumstances”, “considers
appropriate in the circumstances” which leave no doubt as to the intent of
Parliament. The grounds set out for referral to another authority (subsection
44(2)), for referral to the President of the Human Rights Tribunal Panel
(paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve
in varying degrees questions of fact, law and opinion (see Latif v. Canadian
Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain
J.A.), but it may safely be said as a general rule that Parliament did not want
the courts at this stage to intervene lightly in the decisions of the
Commission.
[33]
I therefore will apply the correctness standard
of review in addressing Issues 1 and 2. Issue 3 will be reviewed on a standard
of reasonableness, recognizing the broad degree of latitude the language of
section 44 of the CHRA extends to the Commission in making decisions on the
referral or the outright dismissal of complaints.
B.
Role of the Commission
[34]
Before addressing the decision of the Commission
there is value in considering the role and function of the Commission in the
complaint process established under the CHRA.
[35]
The Commission is established under section 26
of the CHRA and consists of a Chief Commissioner, a Deputy Chief Commissioner
and three to six members. Section 32 provides for the appointment of such
officers and employees as necessary for the proper conduct of the work of the
Commission in accordance with the Public Service Employment Act, SC
2003, c. 22, ss 12, 13.
[36]
Complaints alleging discriminatory practice are
received by the Commission and, with exceptions, where the Commission has
reasonable grounds to believe a person has engaged or is engaging in a
discriminatory practice, as defined in the CHRA, the Commission may initiate a
complaint (section 40). Where a complaint is initiated, the Commission may
designate a person to investigate the complaint (section 43(1)). The
Investigator shall investigate and submit a report to the Commission (section
44(1)).
[37]
Upon receipt of the report the Commission will
dispose of the complaint in one of three manners: (1) refer the complaint to an
appropriate external authority where the Commission is of the opinion that the
complainant ought to exhaust grievance or review procedures otherwise
reasonably available or the complaint could be more appropriately dealt with by
means of a procedure provided for under an Act of Parliament other than the
CHRA; (2) where the Commission believes an inquiry is warranted, refer the
complaint to the Canadian Human Rights Tribunal requesting the Chairperson to
institute an inquiry under section 49 of the CHRA; or (3) where the Commission
is satisfied that an inquiry into the complaint is not warranted, having had
regard to all of the circumstances, dismiss the complaint.
[38]
As noted in Bell Canada at para 35 the
role of the Commission is one of “an administrative and
screening body” (citing Cooper v. Canada (Human Rights Commission),
[1996] 3 S.C.R. 854 at para 58 [Cooper]) and does not decide a complaint on
its merits. The primary function of the Commission is the assessment of the
sufficiency of the evidence before it (Cooper at para 53).
C.
Did the Commission improperly limit the length
of the applicant's submissions?
[39]
On the applicant’s complaint form, the
Commission advises that the text setting out a complainant’s allegations must
not be more than three letter-sized pages and goes on to prescribe margin and
font sizes (applicant’s record page 28). However, that same complaint form also
states that further documentation may be sought if the complaint is accepted.
The applicant argues, the respondent was subject to no prescribed limit in the
response provided to the complaint. Similarly, the applicant objects to the 10-page
limit imposed on his submissions responding to the Investigation Report. The
record does not indicate if a similar limit was imposed on the respondent. As a
practical matter, the respondent did not provide any comments on the
Investigation Report.
[40]
In Lee v Bank of Nova Scotia, 2002 FCT
753 at paras 40, 42, 44, 222 FTR 223 (TD) [Lee], Justice Carolyn Layden-Stevenson
held that while an imposed page limit, in and of itself may not be
objectionable, fairness requires that any such limits be applied in an
even-handed manner. I concur.
[41]
In this case the length of the initial complaint
document was limited by the Commission whereas the respondent’s submissions in
response were not. In addressing this question it is necessary to recognize the
purpose of the initial complaint in the Commission's process. The complaint is
an initiating document used to allow the Commission to undertake an initial
assessment as to whether or not the complaint will be accepted. It is not the
sole basis for reaching a final decision on the complaint. This is reflected on
the complaint form which, I repeat, states that further documentation is
receivable if the complaint is accepted.
[42]
The Commission sought input from CPC after it
had determined that the complaint would be accepted and investigated. It is in
this context that CPC was requested to respond to the complaint and provide any
documents supporting the CPC position. The applicant also provided additional
submissions and documentation on numerous occasions after the determination to
accept the complaint was made. The Commission further provided the applicant
with contact information for the Investigator and an invitation to contact the
Investigator. I am satisfied that the applicant and respondent were treated in
an even-handed manner in placing information before the Commission as part of
the investigation process.
[43]
Similarly, there is no indication of uneven or
unequal treatment in respect of the Commission’s direction that the volume of
material to be considered in response to the Investigation Report would be
limited. As noted above, the imposition of a length restriction in and of
itself is not objectionable. It is reflective of the need to consider the
Commission's interest in “maintaining a workable and
administratively effective system” (Canadian Union of Public
Employees (Airline Division) v Air Canada, 2013 FC 184 at para 67, 53 Admin
LR (5th) 1 [Air Canada]).
[44]
Unlike the situation in Lee, this is not
a case where the Commission imposed conditions on one party but not the other.
As noted, the record does not indicate if CPC was given similar direction on
the length limitations in commenting on the Investigation Report, but the
question is moot in that the CPC did not make submissions. As such I find the
there was no error or breach of fairness as a result of the Commission limiting
the length of the applicant’s initial compliant or his response to the
Investigation Report.
D.
Failing to interview all witnesses and consider
all documents
[45]
In determining the nature and extent of its
inquiries the Commission has a procedural duty of fairness in investigating
complaints. Justice Marc Nadon in Slattery determined that the content
of this duty of fairness for such an investigation requires satisfying “at least two conditions: neutrality and fairness” (Slattery
at para 49). However, while the Court reviews the Commission’s ability to meet
this duty of fairness on the standard of correctness, my colleague Justice Anne
Mactavish, discussing Slattery and other case law in Air Canada
emphasized that the Courts should be deferential when reviewing an Investigator’s
decision on whether to investigate a matter further:
[65] Insofar as the requirement of
thoroughness is concerned, the Federal Court observed in Slattery that “deference must be given to administrative
decision-makers to assess the probative value of evidence and to decide to
further investigate or not to further investigate accordingly”. As a consequence, “[i]t
should only be where unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence, that judicial
review is warranted”: at para 56.
[66] As to what will constitute “obviously crucial evidence”, this Court has stated that “the ‘obviously crucial test’ requires that it should have been
obvious to a reasonable person that the evidence an applicant argues should
have been investigated was crucial given the allegations in the complaint”: Gosal v. Canada (Attorney General), 2011 FC 570, [2011]
F.C.J. No. 1147 at para. 54; Beauregard v. Canada Post, 2005 FC 1383,
[2005] F.C.J. No. 1676 at para. 21.
[67] The requirement for thoroughness
in investigations must also be considered in light of the Commission’s
administrative and financial realities, and the Commission’s interest in “maintaining a workable and administratively
effective system”: Boahene-Agbo v. Canada (Canadian
Human Rights Commission), [1994] F.C.J. No. 1611, 86 F.T.R. 101 at para.
79, citing Slattery, above, at para. 55.
[68] With this in mind, the
jurisprudence has established that the Commission investigations do not have to
be perfect [emphasis added]. As the Federal Court of Appeal observed in Tahmourpour
v. Canada (Solicitor General), 2005 FCA 113, [2005] F.C.J. No. 543 at para.
39:
Any judicial review of the
Commission’s procedure must recognize that the agency is master of its own
process and must be afforded considerable latitude in the way that it conducts
its investigations. An investigation into a human rights complaint cannot be
held to a standard of perfection; it is not required to turn every stone [emphasis added]. The Commission’s resources are limited and its
case load is heavy. It must therefore balance the interests of complainants in
the fullest possible investigation and the demands of administrative efficacy.
[Citations omitted in original]
[69] The jurisprudence has also
established that some defects in an investigation may be overcome by providing
the parties with the right to make submissions with respect to the
investigation report.
[70] For example, in Slattery,
the Court observed that where, as here, the parties have an opportunity to make
submissions in response to an investigator’s report, it may be possible to
compensate for more minor omissions in the investigation by bringing the
omissions to the Commission’s attention. As a result, “it should be only where complainants are unable
to rectify such omissions that judicial review would be warranted”. This would include situations “where the omission is of such a fundamental nature that merely
drawing the decision-maker’s attention to the omission cannot compensate for
it”. Judicial intervention may also be warranted
where the Commission “explicitly
disregards” the fundamental evidence: all quotes
from Slattery, above at para. 57.
[46]
The applicant identified 25 potential witnesses
in correspondence to the Commission dated September 9, 2014. Some of these
potential witnesses are identified by first name only or by the function they
perform within CPC. The Commission Investigator did interview those individuals
with direct knowledge and information related to the applicant’s specific allegations
or had responsibilities within CPC or CUPW that would have given them knowledge
of the incidents alleged by the applicant had they been reported. These
witnesses were: (1) Mr. Michael Mak, whom the applicant alleged accused him of
double dipping, attempting to call a disciplinary meeting, and clawing back
monies paid to him without authorization; (2) the applicant’s supervisor, Mr. John
Jackson, who instructed the applicant not to ride his bicycle while on his mail
route; (3) Mr. Jeff Chaisson who uses a CPC vehicle or his own motor vehicle
but not a bicycle to deliver mail; (4) Mr. Learie Charles, the applicant’s
union representative who confirmed that the applicant often did not follow the
procedures in making a claim to the CUPW regarding his issues with overtime,
vandalism and harassment; and (5) Kelly Edmunds, the Human Rights
Representative who stated the applicant did not make complaints related to
vandalism and harassment in accordance with CPC's policy.
[47]
It was open to the Investigator to pursue
further witnesses and information. However, the record reveals that the
applicant was unable to supply direct evidence to support the allegations of
discriminatory conduct. The witnesses interviewed either failed to identify
corroborating evidence of discriminatory conduct or disclosed a
non-discriminatory basis for the alleged actions. In the circumstances I am not
satisfied that the Commission Investigator’s decision to not pursue further
witnesses or documentation constituted an unreasonable omission amounting to a
failure to investigate obviously crucial evidence or otherwise undermined the
thoroughness of the investigation (Air Canada at para 65). It was open
for the Investigator to conclude after having interviewed the above noted
witnesses, considering the documentation provided by CPC and considering the
documentation and submissions of the applicant that further investigation would
not be pursued. The Investigator must balance the interests of the complainant
in the fullest possible investigation and the demands of administrative
efficacy (Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at para
39, 33 NR 60).
[48]
That said, one issue does arise with documents
relating to the incident of the alleged racial slur on a building on his route,
which raises questions on the thoroughness of the investigation and the
reasonableness of the decision, both of which I address below.
E.
Reasonableness of the decision to dismiss the
complaint
[49]
The applicant’s written and oral submissions
advance numerous allegations relating to the Commissions work and CPC. While
the applicant very capably and respectfully advanced his position before the
Court, the fact remains that his arguments do not displace any of the key
findings of the Commission as set out in the Investigation Report and discussed
earlier in these reasons. I am left to conclude that the findings are
reasonable despite the applicant's heartfelt disagreement with the outcome of
the process.
[50]
As mentioned above, I note that there are two
documents in the applicant’s record that suggests that he did bring the
incident involving the alleged racial slur on a building on his route to the
attention of CPC supervisors and CPC’s Human Rights Representative.
[51]
These documents appear in Exhibit C to the
applicant’s affidavit. That affidavit attaches three Exhibits and categorizes
them as follows at page 8 of the application record:
For clarity, my Exhibit Book is presented in
three distinct sections.
A: Data I communicated to the CHRC - and
data I received from the CHRC.
B. Narrative of telephone conversations with
CHRC staff.
C: Information from my Personnel file and delivery
violation material from CPC [emphasis in original].
[52]
This implies that the Exhibit C documents were
not before the Commission Investigator when conducting the investigation,
although the applicant advised in making his oral submissions that these
documents were before the Commission.
[53]
On the matter of the racial slur, the
Investigation Report notes that the applicant could not state whether or not he
had reported the incident to management or the CUPW, “He
states that he did not trust that either would address the matter
appropriately” (Investigation Report at para 96). There is no indication
that the applicant brought this correspondence to the attention of the
Commission during the investigation and there is no independent evidence in the
applicant’s record to confirm the correspondence in question was sent.
[54]
In responding to the Investigation Report, the
applicant does address the Commission’s finding of a lack of evidence to
support the allegations related to the racial slur and vandalism. His comments,
however, do not point to these documents or any other supporting evidence.
Rather he addresses the limitation on the length of his original complaint thus
failing to take the opportunity to shed any further light on his allegation; he
left the Commission with his admitted inability to recall whether he even
reported the incident in question to management or the CUPW. I would also note
that these documents do not amount to evidence establishing that the alleged
event occurred they simply indicate that the applicant may have brought the
alleged incident to the attention of CPC supervisors.
[55]
It would have been preferable, had this
information been before the Commission, for it to have been addressed in the
Investigation Report. However, in and of itself, it does not in my opinion
amount to a failure of the Commission to meet its duty of fairness. Nor does
the lack of mention of this information render the finding of the Commission
that the applicant did not report this incident unreasonable.
[56]
Even if it did render the conclusion on the
incident unreasonable, it does not disrupt the Commission's alternative finding
at para 100 of the Investigation Report that the evidence did not support that
this incident even occurred: “As the evidence does
not support that the incident occurred or that the employer was notified
it cannot be concluded that the employer failed to act [emphasis added].”
[57]
In summary I am satisfied that the Commission’s
decision in this case falls within the range of legally defensible outcomes
based on the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190) and dismiss the application.
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