Docket: A-323-13
Citation: 2014 FCA 214
CORAM:
|
NADON J.A.
STRATAS J.A.
SCOTT J.A.
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BETWEEN:
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RAVI LALLY
|
Appellant
|
and
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TELUS COMMUNICATIONS INC.
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Respondent
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REASONS FOR
JUDGMENT
SCOTT J.A.
[1]
This is an appeal from the judgment of Martineau
J. of the Federal Court (the Judge), who dismissed Ms. Ravi Lally’s (the
appellant) application for judicial review of the decision of the Canadian
Human Rights Tribunal (the Tribunal) dated October 25, 2012 (2012 CHRT 27).
[2]
For the reasons which follow, I would dismiss this
appeal.
I.
Facts and proceedings
[3]
The appellant filed a complaint under the Canadian
Human Rights Act, R.S.C. 1985, c H‑6 (CHRA), subsection 3(1)
and paragraph 7(b) against the respondent Telus Communications Inc. She
alleged discrimination based on a disability, namely clinical depression. The
Canadian Human Rights Commission investigated her complaint and referred it to
the Tribunal.
[4]
The appellant alleged discrimination on the
basis of the following events: 1) the respondent’s refusal to pay her a
severance package which had been promised by Mr. Holt, acting vice-president of
the respondent; 2) harassing telephone calls from her immediate supervisor, Mrs.
Joni Kert, when she ceased working; and 3) written comments made to an
independent medical examiner by Ms. Shaine Rajwani, employed in the respondent’s
Corporate Health Services.
[5]
A two-week hearing was scheduled for October 9
to 12 and October 22 to 26, 2012 by the Tribunal. On October 12, immediately
following the appellant’s testimony and cross-examination, the respondent presented
a motion to dismiss for failure to make out a prima facie case of
discrimination. At that time the appellant was not represented by counsel.
[6]
The appellant did not present arguments responding
to the motion. The appellant only asked that Ms. Rajwani be compelled to attend
the Tribunal since she had been properly served with a summons on August 28,
2012. The member was uncertain as to whether he had the authority to compel
that witness to attend. At the end of the day, the appellant did not press the
issue. The Tribunal member then took the motion to dismiss under advisement.
[7]
The hearing resumed on October 22, 2012. At that
time, the appellant was represented by counsel, but he did not present
arguments on the motion either.
[8]
The Tribunal rendered its decision on the motion
to dismiss as neither the appellant nor her counsel had sought to be heard on
that motion. The Tribunal granted the motion because it was not satisfied that
the attempts by the respondent to contact the appellant after she stopped work on
October 17, 2007 constituted harassment or discrimination.
[9]
In addition, the Tribunal found that the
respondent was unaware that the appellant suffered from clinical depression
until October 29, 2007. It hence ruled that there could be no discriminatory
practice based on disability before that date. The Tribunal also concluded that
there was no harassment or discrimination in the manner in which the respondent’s
employees processed the appellant’s entitlement to short and long term
disability.
II.
Federal Court decision
[10]
The appellant filed an application for judicial
review of the Tribunal’s decision in the Federal Court. She raised three issues
pertaining to procedural fairness and also argued that the decision was erroneous
on the merits. The Judge ruled that the standard of review applicable to the
issues of procedural fairness was correctness and reasonableness as for the application
of the law to the facts.
[11]
The appellant alleged that she was prevented
from making an opening statement and that the Tribunal refused her request to compel
the attendance of a proposed witness. She also argued that the Tribunal failed
to hear her argument as to whether she had made out a prima facie case
of a discriminatory practice.
[12]
On the first issue, the opportunity to make an
opening statement, the Judge noted that the appellant was offered such an
opportunity, but that she implicitly declined to do so.
[13]
As for the appellant’s second submission, the
Tribunal’s refusal to compel the witness’ attendance, the Judge concluded that
the appellant had waived her right to call another witness.
[14]
With respect to the appellant’s third issue, the
Tribunal’s refusal to hear her argument, the Judge found, after a detailed analysis
of the evidence presented, that the Appellant had waived her rights.
[15]
The Judge then considered the appellant’s submission
that the Tribunal erred in ruling that she had not made out a prima facie
case of discrimination. The Judge noted that there was no allegation that the
Tribunal applied the wrong legal test. Therefore, it was the application of
that legal test to the facts of the case that was at issue and so the decision
should be given deference.
[16]
The Judge ruled that the Tribunal’s findings
were not unreasonable. More specifically, he noted that the Tribunal accepted
that the respondent was unaware of the appellant’s disability until October 29,
2007. The Judge concluded that, on the balance of probabilities, the Tribunal
could reasonably conclude that there was insufficient proof to make out a prima
facie case of discrimination based on disability.
III.
Discussion
[17]
Before this Court, the appellant repeated in essence the same submissions
that she had presented to the Federal Court, namely: a) that the Tribunal violated
procedural fairness; and b) that it erroneously ruled that she
had failed to make out a prima facie case of discrimination. This second
issue turns more specifically on the question of the adequacy of the Tribunal’s
reasons.
[18]
Having carefully considered the appellant’s oral and written
submissions, the record before us and the Judge’s reasons, I am of the view
that this Court’s intervention is not warranted. On the substantive merits of
the Tribunal’s decision, the Judge identified the proper standard of review and
applied it correctly to the Tribunal’s decision: Agraira v.
Canada (Public Safety and Emergency Preparedness),
2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45-47. I also agree that
there were no violations of procedural fairness.
A.
Procedural fairness
[19]
The appellant submits that the Tribunal violated procedural fairness by:
1) refusing her request to make an opening statement; 2) not affording her the
opportunity to respond to the prima facie issue; and 3) not using its
authority to compel the attendance of a prospective witness who had been served
with a summons.
[20]
I agree with the Judge that the appellant was afforded the
opportunity to make an opening statement but that she declined to do so. I also
reject the appellant’s contention that the Tribunal strongly dissuaded her from
making one, as is evident from this part of the transcript:
Ravi Lally: I’d prefer to stay here but could I also have 10
minutes of the court’s time to say my opening statements that I’ve prepared?
Member Craig: Sure, you can, but you might be better off to do
it under oath through evidence. It’s up to you. Go ahead. He’s had the
opportunity.
Ravi Lally: Okay.
(See Appeal Book, volume III, Transcript of Canadian Human
Rights Tribunal Hearing, page 352, lines 1 to 7)
[21]
After receiving these directions from the Tribunal, the appellant freely
decided to proceed to testify rather than make an opening statement. That was her
personal choice.
[22]
I must also reject the appellant’s allegation that the Tribunal’s
decision should be set aside because it refused to allow her to argue that she
had made out a prima facie case. The appellant benefited from behind-the-scenes
guidance of counsel even though he was not present during the first week of the
hearing. As stated in her affidavit (see Appeal Book, volume I, Affidavit of
Ravi Lally sworn December 18, 2012, page 53, para. 33) and as noted by the
Judge, the appellant had a lawyer prepare a written argument and a case brief
which she reviewed on October 11. The hearing adjourned for ten days, on
October 12, after counsel for the respondent argued his motion to dismiss. The
appellant had ample time to consult her lawyer regarding any concerns she had
with respect to the motion for dismissal, and to raise objections when the
hearing reconvened. She did not.
[23]
Since both the appellant and her counsel failed to raise the issue of
their right to present arguments on the motion to dismiss when the hearing
resumed, I agree with the Judge that the appellant waived her right to do so. Furthermore,
in view of the record, when the appellant asked to make submissions after the
respondent argued his motion, it is apparent from the transcript that she raised
an issue totally different from her right to make a submission (see Appeal Book,
volume IV, pages 817 and 818, lines 44 to 47):
Ravi Lally: May I make my submissions?
Member Craig: No, I don’t need to hear from you on the –
Ravi Lally: No, it’s regarding the witness for next week.
[24]
The Judge was also correct in concluding that the appellant waived her
right to call her witness, Ms. Rajwani. I note that she asked to call her
witness after her case was closed and after the respondent had made submissions
on its motion to dismiss for failure to meet the prima facie test. Furthermore,
the Judge rightly noted that even if the appellant’s witness Ms. Rajwani had
testified, this would not have changed the Tribunal’s conclusions, because the
medical examiner did not take into consideration the negative comments she had
made about the appellant’s work performance.
[25]
Waiver of a right to object can be inferred from a party’s conduct. Where
a party, with knowledge of his or her right, fails to object at the earliest
opportunity, that will be construed as a waiver (see Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, [2001] 4 F.C. 85 at
para. 14).
[26]
In view of the record, the appellant in this instance, though
self-represented, benefited from the guidance of counsel. She had in her
possession a written submission and case brief on the prima facie test
which was prepared by her lawyer. Her counsel was present when the hearing
reconvened after a ten day adjournment. She cannot be said to be unaware of her
right to make submissions on the prima facie case issue, nor of her
right to make an opening statement or to compel the attendance of her witness.
In view of the fact that neither counsel nor the appellant advised the Tribunal
member that they wished to make submissions on these rights, I am of the view that
the Judge correctly ruled that she had waived them.
[27]
Finally, I note in passing that tribunals, such as the Canadian Human
Rights Tribunal, frequently deal with complainants who are self-represented.
Tribunal members need to be alert to the fact that, often, self-represented litigants
are not familiar with the Tribunal’s processes. Hence, it is the responsibility
of members to ensure that self-represented complainants understand the
procedure and rules to be followed from the very commencement of a hearing. In Wagg
v. Canada, 2003 FCA 303, [2004] 1 F.C.R. 206, this Court held, at paragraph
33, that: “A trial judge who is dealing
with an unrepresented litigant has the right and the obligation to ensure that
the litigant understands the nature of the proceedings. This may well require
the judge to intervene in the proceedings”.
[28]
In this case, the Tribunal member did intervene and the appellant was
fully aware of the procedure and rules to be followed, as she had access to
counsel throughout the proceeding.
B.
Adequacy of reasons
[29]
At the hearing, the appellant argued that the Tribunal did not refer to
any portions of her testimony in its decision but improperly relied on her
cross-examination. The appellant submits that the Tribunal did not test her
credibility and only considered the respondent’s arguments. I cannot agree, for
the following reasons.
[30]
The Judge correctly ruled that the standard of review applicable to
questions involving the application of law to the facts, such as the question
of a prima facie case of discrimination, is that of reasonableness. I
also agree with the Judge that it was reasonable in this instance for the
Tribunal to rule that the appellant failed to make out a prima facie
case of discrimination based on her disability.
[31]
The Tribunal heard the appellant’s testimony on the grounds underlying
her complaint. It failed, however, to convince the Tribunal that a prima
facie case of discrimination based on her clinical depression had been made
out. It was open to the Tribunal to consider the respondent’s evidence adduced
through its cross-examination of the appellant. The cross-examination shed
light on the facts alleged by the appellant and whether or not they established
a nexus between the actions of the respondent and the appellant’s medical condition.
[32]
The appellant testified as to actions that she perceived to be
discriminatory based on her clinical depression. The Tribunal considered her
testimony, but concluded that the respondent was unaware of her medical
condition before October 29, 2007 and therefore determined that the appellant
was unable to establish the necessary nexus between the alleged actions and her
clinical depression.
[33]
Although I am of the view that the Tribunal’s reasons could have been
more detailed, the Supreme Court of Canada in Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, at paragraph 15, confirms that a reviewing court may look
to the record to assess the reasonableness of the decision under review. Having
reviewed the record, and in particular the cross-examination of the appellant,
I am of the view that the basis for the Tribunal’s decision is discernable.
[34]
I would, therefore, dismiss the appeal with costs.
"A.F. Scott"
“I agree
M. Nadon J.A.”
“I agree
David Stratas J.A.”