Date: 20090211
Docket: A-360-08
Citation: 2009 FCA 38
CORAM: NOËL
J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
STEPHEN LEUNG
Appellant
and
CANADA REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a decision of Mr. Justice Mandamin of the Federal Court, 2008 FC
704, dated June 4, 2008, which dismissed the appellant’s judicial review
application of a decision rendered by the Canadian Human Rights Commission (the
“Commission”) on August 11, 2006, in respect of a human rights complaint made
against his employer, the Canada Revenue Agency (the “employer”).
[2]
The
appellant’s complaint is that his employer retaliated against him for having
filed a human rights complaint in May 2000. More particularly, he says that his
employer denied him promotion without competition by creating, following a
reorganization which made his existing position redundant, a new finance
position of Assistant Director, Finance (FI-04), in respect of which he was
obliged to compete. The appellant says that he should have been promoted
without competition to the position of Assistant Director, Finance (FI-04)
because the new job was simply a reclassification upward of his substantive
position of Manager, Finance (FI-03).
[3]
In
response, the employer says that a classification review committee decided that
the new position (FI-04) was a newly-created one which had no link to the
appellant’s former FI-03 job. Thus, it was not a reclassification upward and a
competition was necessary to fill the position.
[4]
The
Commission dismissed the appellant’s complaint on the ground, inter alia,
that there was no evidence to support his complaint that his employer had
retaliated against him because he had filed an earlier human rights complaint.
[5]
The
Commission’s letter of August
11, 2006, informing
the appellant that his complaint had been dismissed, reads, in part, as
follows:
Before
rendering their decision, the members of the Commission reviewed the report
disclosed to you previously and any submission(s) filed in response to the
report. After examining this information, the Commission decided, pursuant to
paragraph 44(3)(h) of the Canadian Human Rights Act, to dismiss
the complaint because
§
the
evidence does not support the complainant’s allegation that the respondent
retaliated against him for filing a human rights complaint;
§
the
complaint form does not establish a link between the alleged incidents and the
grounds of discrimination based of [sic] race and national/ethnic
origin, pursuant to section 7 of the Act;
§
the
complaint form does not raise any policy issues pursuant to section of the Act.
[Emphasis added]
[6]
The report
referred to above in the Commission’s letter is the report of an investigator
assigned by the Commission to investigate the appellant’s retaliation
complaint. The report, which the investigator released on March 24, 2006,
recommended to the Commission, pursuant to paragraph 44(3)(b) of the Canadian
Human Rights Act, R.S., 1985, c. H-6, the dismissal of the appellant’s
complaint.
[7]
There can
be no doubt that the Commission adopted in full the recommendations of the
investigator and that the report constitutes the Commission’s reasons for its
decision. In fact, the reasons given by the Commission in its letter of
dismissal are identical to those given by the investigator in her report in
recommending that the complaint be dismissed.
[8]
In my
view, the investigator’s report was flawed in a crucial respect. Specifically,
the report fails to shed any light on the classification committee’s
determination that the new FI-04 job (identified as job F10011) was a new job
with no link to the applicant’s old one and for which he would thus have to
compete. This determination by the classification committee is at the heart of
the appellant’s complaint. In effect, as I have already indicated, the
appellant says that because of an earlier human rights complaint, his employer
retaliated by creating a position said to be new, i.e. without any link to his
former position, rather than reclassifying his former position upward. In the
appellant’s view, as his former position and the new position were substantively
the same, he should not have been obliged to compete for this position.
[9]
Although
the investigator states in her report, on two occasions, that in the fall of
2001, a classification review committee decided that the new position of
Assistant Director had no significant link to any former regional F1 position,
the report provides no details regarding the committee’s deliberations, nor any
details regarding its membership. We do know, however, from the investigator’s
interview notes, that Mr. Ray Leblanc was in charge of the classification committee,
but it does not appear that he was interviewed. That is the extent of the
information regarding those who participated in the committee.
[10]
All there
is in the record is an undated and unsigned document, entitled “Committee
Report and Rationale Job F10011, Assistant Director, Finance, Regional Office,
CRA”, according to which the Committee would have met on September 17, 2001.
Whether the investigator relied on this document or some other documents, I
cannot tell. In any event, the investigative report does not disclose any
information with regard to the meeting which is said to have taken place on
September 17, 2001.
[11]
To
complicate matters, it appears that the above Committee’s decision is at odds
with that of another Committee which recommended that the appellant’s FI-03
position be upgraded to the new FI-04 position. As evidence of this is a
document, referred to at paragraph 29 of the investigator’s report, entitled
“September 19, 2001, AD, F&A Committee Results”, which lists the result of
the review of 33 management positions throughout the country by the
classification review committee in question. Under the FI jobs, the document
reads:
|
JOB
|
CURRENT
CLASS.
|
COMMITTEE
RECOMMENDATION
|
|
Soro
– Manager, Finance
|
FI-3
|
FI-4
|
(See Appeal Book, Vol. 1, p.
94)
[12]
The
investigator questioned Mr. Steve Hertzberg, the appellant’s immediate
supervisor, concerning the above recommendation and Mr. Hertzberg provided the
following answer:
Mr. Hertzberg
was asked if he knew why at some point in time, the FI-03 was recommended by
management for reclassification at the FI04 and in the final submission the FI-04
was proposed as a new position? He believes the document submitted by the
complainant might have been a draft proposal made during the consultation
process which was eventually changed. Mr. Hertzberg does not remember
specifically why and when this would have been proposed.
[See
Investigative Report, p. 6, in Appeal Book, Vol. 1, p. 38]
[13]
That, as
far as the investigator is concerned, appears to have been the end of the
matter. No follow-up questions or investigations were made to determine why a
proposal for reclassification in respect of the appellant’s job was not
followed and that a decision was ultimately made that the FI-04 job would be
considered as a new position requiring competition. Again, there is absolutely no
information regarding those who participated in the decision to recommend
reclassification, nor any information regarding the deliberations of the
decision makers.
[14]
I should
say here that the document referred to at paragraph 11 of these Reasons was
obtained by the appellant through the Access to Information Act, R.S.,
1985, c. A-1.
[15]
Thus, in
my view, the investigator failed to properly investigate an issue that goes to
the essence of the complaint, in that she failed to make a proper inquiry into
the classification process which resulted in the appellant having to compete
for the new position. It is difficult to understand why the record remains
obscure on this matter, considering that the information required to clarify
the matter should be readily available from the employer.
[16]
For
example, what decisions were actually made in the fall of 2001 by one or more
classification committees? Who were the members of these committees, were they
the same persons or different ones? In my view, this information is crucial to
determine whether there was retaliation or not on the part of the appellant’s employer.
[17]
I am
obviously not saying, nor suggesting, that the Commission or this Court have
the power to intrude into the employer’s classification process, nor into the
making of appointments to jobs. However, because the investigator failed to conduct
a proper inquiry, a cloud remains over the legitimacy of the classification
process which led to the creation of a job for which the appellant had to
compete.
[18]
I am
therefore of the view that the Judge ought to have intervened. Consequently,
his decision cannot stand.
DISPOSITION
[19]
For these
reasons, I would therefore allow the appeal with costs, set aside the decision
of the Federal Court and, rendering the decision which ought to have been rendered,
I would allow the appellant’s judicial review application with costs and I
would return the matter to the Commission for reconsideration of the
appellant’s complaint in accordance with these Reasons.
“M.
Nadon”
“I
agree.
Marc
Noël J.A.”
“I
agree.
J.D.
Denis Pelletier J.A.”
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