Docket: A-403-14
Citation:
2016 FCA 278
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CORAM:
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NADON J.A.
STRATAS J.A.
RENNIE J.A.
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BETWEEN:
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EMERENCE
MIAKANDA-BATSIKA
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Appellant
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and
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BELL CANADA
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Respondent
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REASONS
FOR JUDGMENT
NADON J.A.
[1]
Before us is an appeal by the appellant,
Emerence Miakanda-Batsika, of a judgment dated September 3, 2014 rendered by
Mr. Justice Locke of the Federal Court (the Judge) dismissing her judicial
review application which challenged a decision of the Canadian Human Rights
Commission (the Commission) dated August 22, 2013, 2014 FC 840.
[2]
More particularly, the Commission held, pursuant
to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 (the Act) that the evidence before it did not support the
appellant’s complaint of harassment and discrimination against her employer and
that, having regard to all of the circumstances surrounding the complaint,
further inquiry was not warranted. In concluding as it did, the Commission
relied on the investigation report of Deirdre Hilary dated May 17, 2013 and on
the submissions made by the parties in response to the investigation report.
[3]
The complaint before the Commission was that the
appellant had been subject to harassment and discrimination on the basis of
race, national or ethnic origin and colour in the course of her employment with
the respondent, Bell Canada. More particularly, the appellant complained that
the conduct of three of her supervisors, namely Alain Lemay, Lionel
Nicholas-Etienne and Troy Hand, had resulted in adverse differential treatment.
She also complained that because of her supervisors’ conduct, her employer had
failed to provide her with a harassment-free workplace. At paragraph 6 of his
reasons, the Judge sets out the specifics of the appellant’s complaint against
her three supervisors:
EMB [the appellant] alleges that she has
been subject to discrimination and harassment at work since as early as 2006.
The allegations made in her complaint to the CHRC can be divided into the
following categories:
• Denial of a promotion in 2007 by her
then supervisor, Alain Lemay.
• By her next supervisor, Lionel
Nicholas-Etienne (LNE),
○ exclusion from a clique of other employees formed
in 2008,
○ failure in 2008 to recognize EMB’s certification,
○ other disrespectful conduct in 2009.
• By her next supervisor, Troy Hand
(TH),
○ undue
scrutiny given to EMB’s credentials,
○ various
acts of harassment in 2010 and 2011, including yelling at her.
[4]
After summarizing the evidence, the Judge
reviewed both the investigator’s report and the Commission’s decision. He then
dealt with the questions before him, beginning with the issue of procedural fairness.
In his view, the appellant had not been denied procedural fairness by the
investigator. The Judge’s rationale for that conclusion appears at paragraphs
23 to 25 of his decision where, after setting out the appellant’s grounds for
her submission that she was denied procedural fairness by the investigator, he
explains why the appellant’s allegations are without merit. Paragraphs 23 to 25
of the Judge’s reasons read as follows:
[23] As I understand it, there are two
aspects to EMB’s argument that she was denied procedural fairness. Firstly, she
alleges that her input was not properly received by the investigator because of
the difficulty of communication during her interview. Secondly, and also
arising out of the communication difficulties during EMB’s interview, she was
never asked to provide the names that had been requested of the witnesses who
could support her allegations. Without the names of those witnesses, EMB
submits, the investigation of EMB’s complaint was compromised.
[24] In respect of both aspects of
EMB’s concerns about procedural fairness, I am of the view that she was not
denied procedural fairness. Even if she was prevented from providing names of
witnesses during her interview with the investigator, she had an opportunity to
indicate in comments after the issuance of the report any additional
information that she felt were necessary for the CHRC to have, including the
names of witnesses. The information provided in her counsel’s letter of July 3,
2013 was considered by the CHRC but did not change its decision. That letter
did not name any witnesses. Instead, it stated that there were witnesses who
did not wish to be named. Without identification of witnesses, the investigator
could hardly be faulted for failing to interview them. The investigator clearly
indicated that the failure to name witnesses could prevent the matter from
proceeding further, and EMB understood this, as acknowledged in her counsel’s
letter of July 3, 2013.
[25] In her affidavit in support of the
present application for judicial review, EMB identified two witnesses who, I
understand, had not been identified to the investigator. These were Lawrence
Ashimey and Dr. Eddie Lo. At the hearing before me, EMB explained that Mr.
Ashimey is a fellow BC employee with whom she has discussed the events relevant
to the present judicial review. EMB acknowledged that Mr. Ashimey had not
personally witnessed any of the events of which she complains. EMB also
explained that Dr. Lo is a physician who treated her for health problems that she
has suffered during the period addressed in the present judicial review. Though
he might be able to provide information about the state of EMB’s health, he
would not be in a position to assist an investigator in trying to determine
whether any health problems were caused by discrimination or harassment at the
hands of BC or its employees. Accordingly, I conclude that, even if the names
of these witnesses had been given to the investigator during her investigation,
and the investigator had interviewed those witnesses, the recommendation in her
report would not have changed.
[5]
The Judge then turned to the question of whether
the Commission’s decision was unreasonable in light of the evidence gathered by
the investigator. At paragraph 26 of his reasons, he indicated that he was
satisfied that the investigator had properly investigated the appellant’s complaint
and that she had carefully analyzed all of the information submitted to her
both by the appellant and by the respondent.
[6]
In my view, the Judge made no reviewable error
either in respect of the procedural fairness issue or with regard to the
reasonableness of the Commission’s decision.
[7]
In concluding, as I do, that the Judge made no
reviewable error, I have carefully examined the investigator’s report. The investigator
begins her report by identifying the nature of the appellant’s complaint. At
page two of her report, she sets out the complaint in the following terms:
The complainant, who self-identifies as a Black
African woman from the Congo, alleges adverse differential treatment and
failure to provide a harassment-free workplace on the basis of race, colour,
and national or ethnic origin. The complainant has been employed by the
respondent, Bell Canada, since 2003 in several different capacities.
[8]
The investigator breaks down the appellant’s complaint
into two parts, namely adverse differential treatment and failure to provide a
harassment-free environment. With respect to adverse differential treatment,
the investigator examined the treatment which the appellant received from her three
supervisors. She began with the allegation made against Alain Lemay and
concluded that “The complainant did not provide details
about this allegation, and how it could be characterized as differential
treatment. As such, this allegation need not be pursued further”
(paragraph 7 of the report).
[9]
She then turned to the appellant’s allegation
against Lionel Nicholas-Etienne and she concluded that the appellant had not
provided any evidence supporting her allegation that Mr. Nicholas-Etienne had
treated her in a differential manner. Consequently, the investigator concluded
that that allegation would not be pursued.
[10]
Lastly, she examined the allegation made by the appellant
against Mr. Troy Hand, her manager at the time of the complaint. Again, the
investigator concluded that the evidence submitted by the appellant was not
sufficient to support her allegation that she had been treated differently by
Mr. Hand. Thus, the investigator concluded that this allegation would not be
pursued.
[11]
The investigator then turned her attention to
the second part of the appellant’s complaint, i.e., the failure to
provide her with a harassment-free environment. At paragraph 24 of her report, she
sets out her conclusion regarding that part of the complaint:
24. The complainant has not provided any evidence to support her
allegations. Further, the allegations of racial harassment were not raised
until it was suggested to the complainant that her allegations did not appear
to be linked to a ground of the CHRA. The complainant did not provide
supporting documentation, details or witnesses, and in light of the layout of
the workplace, it is unlikely that the allegations occurred as alleged. As
such, the allegations relating to harassment need not be pursued further.
[12]
Then, at paragraphs 25, 26 and 27 of her report,
the investigator sets out her final conclusions regarding the appellant’s
complaint and, at paragraph 28, she sets out her recommendation to the
Commission as to how it should deal with the appellant’s complaint:
25. The complainant alleges that she was harassed and treated in
an adverse differential manner by her managers because she is a black woman
from the Congo.
26. The respondent denies the allegations and states that she was
treated fairly at all times. The respondent denies that there was workplace
harassment.
27. The evidence gathered in investigations does not support the
complainant’s allegations.
28. It is recommended, pursuant to sub-paragraph 44(3)(b)(i)
of the Canadian Human Rights Act, that the Commission dismiss the
complaint because:
− the
evidence gathered does not support the allegations of the complaint; and
− having
regard to all the circumstances of the complaint, further inquiry by the
Canadian Human Rights Tribunal into the complaint is not warranted
[13]
As this is an appeal from a judgment of the
Federal Court pertaining to an application for judicial review, the role of
this Court is to determine whether the Judge identified the appropriate
standard of review and whether he applied that standard to the issue before him
(Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2
S.C.R. 559, 2013 SCC 36, at paragraphs 45 to 47).
[14]
At paragraphs 3 and 4 of his decision, the Judge
indicated that with regard to the issue of procedural fairness, the appropriate
standard was that of correctness and that with regard to the Commission’s
determination of the facts and the sufficiency of the evidence before it, the
appropriate standard was that of reasonableness. There can be no doubt that the
Judge properly identified the applicable standards of review.
[15]
After consideration of the parties’ written and
oral arguments, I come to the view that the Judge made no error in applying the
applicable standard of review to the issues before him. It is clear from the
appellant’s written and oral submissions that she disagrees with the
investigator’s assessment of the evidence gathered during the course of the
investigation and that she is not satisfied with the manner in which the
investigator gathered that evidence. However, in my respectful opinion, her
criticisms find no support in the evidence. The investigator examined the
relevant documents, including the exchange of office e-mails submitted by the
applicant, and interviewed the appellant, Mr. Nicholas-Etienne, Mr. Troy Hand
and Miss Tina Spadafora, a Bell Canada employee who conducted an internal
investigation following a previous harassment complaint made by the appellant
in May, 2011. It is clear from the investigation report that the investigator
was satisfied that the evidence presented to her did not support the complaint.
In my view, in light of the evidence, the investigator’s conclusion is entirely
reasonable.
[16]
I should point out that prior to the filing of her
complaint with the Commission, the appellant had filed a grievance against her
employer alleging that she had been harassed by her supervisors. Following Ms.
Spadafora’s investigation, it was determined that the grievance was unfounded.
Hence, the appellant’s Union decided not to pursue the grievance.
[17]
I should also point out that before the
investigator finalized the report on which the Commission relied for its
decision, both the appellant and the respondent were given ample opportunity to
provide to the investigator information and comments with regard to the matters
under investigation.
[18]
In Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9 (Dunsmuir), the Supreme Court of Canada, at
paragraph 47 of its reasons, explains the concept of reasonableness as follows:
Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility with the
decision-making process. But it is also concerned with whether the decision
falls within the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
[19]
In light of the Supreme Court’s decision in Dunsmuir,
this Court, in Keith v. Canada (Correctional Service), 2012 FCA 117, 431
N.R. 121, at paragraph 48, sets out the approach that the Federal Court and this
Court should take in reviewing a decision of the Commission:
In my view, a reviewing court should defer
to the Commission’s findings of fact resulting from the section 43
investigation, and to its findings of law falling within its mandate. Should
these findings be found to be reasonable, a reviewing court should then
consider whether the dismissal of the complaint at an early stage pursuant to
paragraph 44(3)(b) of the Act was a reasonable conclusion to draw having
regard to these findings and taking into account that the decision to dismiss
is a final decision precluding further investigation or inquiry under the Act.
[20]
When it made its decision to dismiss the
Appellant’s complaint, the Commission, as I indicated earlier, relied on the
investigator’s report and on the submissions made by the appellant and the
respondent in response to the report. After consideration thereof, the
Commission concluded that the evidence did not support the appellant’s
allegations of harassment and discrimination and that, having regard to all of
the circumstances, further inquiry into the appellant’s complaint was not
warranted.
[21]
I see no basis on which I could conclude that
the findings made by the investigator could be characterized as being
unreasonable. Consequently, in relying on the investigator’s report, the
Commission’s decision to dismiss the appellant’s complaint is a decision that
clearly falls within the range of possible acceptable outcomes which are
defensible in respect of the facts and the law. Although the appellant disputes
many of the findings made by the investigator, that is not sufficient to
justify intervention on our part.
[22]
Before concluding, I wish to make the following
remarks. During her oral presentation, the appellant argued that her interview
with the investigator was flawed because she and the interpreter could not
understand each other in the French language. Meanwhile, the investigator notes
at paragraph three of her report that “the report was
filed in English”, while “the interview with the
complainant was conducted in French as requested by the complainant”. As
there is no evidence in the record which shows or tends to show that because of
language issues, the appellant was unable to present proper evidence in support
of her complaint or that she was unable to make adequate submissions in that
regard, I can only conclude that she was not denied procedural fairness by the
investigator by reason of language difficulties.
[23]
Even though, for the purpose of this appeal, we
need only determine whether the investigator’s findings and the Commission’s
decision, which relied on these findings, are reasonable, it is my view that
the evidence clearly does not support the allegations of discrimination and
harassment which the appellant makes.
[24]
Consequently, I would dismiss the appellant’s
appeal with costs.
"M Nadon"
“I agree.
David Stratas J.A.”
“I agree.
Donald J. Rennie J.A.”
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