Dockets: T-1533-21
T-1534-21
Citation: 2023 FC 311
[ENGLISH TRANSLATION]
Toronto, Ontario, March 6, 2023
PRESENT: The Honourable Mr. Justice Diner
BETWEEN: |
SONIA RICHARD |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
[1] Sonia Richard [applicant] is applying for judicial review of the decision of the Director General of Workplace Management [Director General] of the Department of National Defence dismissing two grievances that she had submitted (LR-GRIEVANCE-000493 and LR‑GRIEVANCE‑000335) against (i) the findings of an investigation into allegations of harassment brought against her and (ii) a disciplinary action subsequently imposed.
I. Background and Facts
[2] Ms. Richard has been a social worker at CFB Bagotville for the Department of Defence [employer] since 2012.
[3] From September 2014 to the summer of 2015, Ms. Richard was the acting team leader of the mental health clinic. As such, Ms. Richard supervised her former colleagues, including Ms. Bouchard and Ms. Gauthier. From October 2017 to April 2018, Ms. Richard was on medical leave.
[4] On November 14, 2017, Ms. Richard filed a workplace violence complaint with the employer against her colleagues, Ms. Bouchard and Ms. Gauthier, as well as her supervisor. The services of ProActive Security were retained to investigate Ms. Richard’s complaint. According to the findings of the investigation report released on February 20, 2019, Ms. Richard’s allegations of workplace violence were unfounded.
[5] On June 20 and 21, 2018, Ms. Bouchard and Ms. Gauthier each filed a formal harassment complaint with the employer against Ms. Richard. Following these complaints, Major Simard conducted an internal review of the allegations.
[6] On October 30, 2018, Major Simard notified Ms. Richard of the results of the internal review. He had determined that the allegations met the definition of harassment and called upon Ms. Richard to respond to them.
[7] On November 27, 2018, Ms. Richard presented Major Simard with her preliminary comments on the harassment complaints made by Ms. Bouchard and Ms. Gauthier.
[8] On February 19, 2019, Major Simard notified Ms. Richard that the services of Mr. Néron of Simner Corporation [Investigator Néron] had been retained to investigate the allegations of harassment made by Ms. Bouchard and Ms. Gauthier.
[9] On July 10, 2019, Major Simard provided Ms. Richard with a copy of Investigator Néron’s interim investigation report [interim report] to get her feedback. On July 26, 2019, Ms. Richard provided her comments on the interim report to Major Simard.
[10] On November 26, 2019, Investigator Néron produced his final report, which found that five of the six harassment allegations made by Ms. Bouchard were well founded and justified [Néron report]. Major Simard closed Ms. Gauthier’s harassment complaint during the investigation.
[11] On December 11, 2019, Major Simard sent the Néron report to Ms. Richard, who was found guilty of workplace harassment. Major Simard also notified Ms. Richard that, as a result, she would be summoned to a disciplinary hearing.
[12] On December 19, 2019, Ms. Richard wrote to the employer to challenge the findings of the Néron report and to inform it that she would forego the disciplinary hearing.
[13] On January 20, 2020, Major Simard nonetheless summoned Ms. Richard to a disciplinary hearing—although she had given notice that she would forego it—to give her an opportunity to make known any mitigating circumstances that she would consider important in determining the appropriate disciplinary action. Ms. Richard did not attend the disciplinary hearing.
[14] On January 21, 2020, Ms. Richard filed an initial grievance form, LR-GRIEVANCE-000335 [grievance 335], challenging the validity and procedural fairness of the Néron report.
[15] On February 19, 2020, Major Simard sent a letter to Ms. Richard informing her of the disciplinary action imposed by the employer following the findings of the Néron report. This disciplinary action consisted of a letter of reprimand dated February 19, 2020 [letter of reprimand].
[16] On March 20, 2020, Ms. Richard filed a second grievance form, lR-GRIEVANCE-000493 [grievance 493], challenging the letter of reprimand.
[17] On May 18, 2021, Ms. Richard and her counsel attended the final hearing for grievances 335 and 493. Ms. Livingston, a National Defence recourse officer from the workplace management team, was present at the hearing and took notes. In accordance with the employer’s grievance procedure, the authority to adjudicate grievances was delegated to the Director General, who, in this case, was Director Hooey. However, the report was prepared by an officer who attended the hearing and was then sent to the Director General in order for him to make a determination on the grievance.
[18] On September 9, 2021, Director Hooey dismissed grievances 335 and 493 at the final level. Director Hooey’s decision to dismiss grievance 335 is the subject of the application for judicial review in docket T-1533-21, and Director Hooey’s decision to dismiss grievance 493 is the subject of the application for judicial review in docket T-1534-21.
II. Preliminary Matters
A. Ms. Richard’s affidavit dated November 8, 2021
[19] The Attorney General of Canada [AGC or respondent] argues that Ms. Richard’s affidavit dated November 8, 2021, contained statements contrary to subsection 81(1) of the Federal Courts Rules, SOR/98-106 [Rules]. The AGC states that paragraphs 21 to 24, 27, 29, 59, 60, 73 and 75 of Ms. Richard’s affidavit went beyond the facts and contained opinions, arguments, hearsay or legal conclusions. The AGC is therefore requesting that the Court strike these paragraphs from the affidavit or disregard them.
[20] The applicant concedes that paragraphs 21 to 24, 27 and 29 of her affidavit contain opinions, arguments, hearsay or legal conclusions and that the Court should disregard them. However, the applicant challenges the AGC’s claims regarding paragraphs 59, 60, 73 and 75 and maintains that these are descriptions of the facts as she perceived them.
[21] The Court accepts the applicant’s arguments regarding her affidavit dated November 8, 2021, and will only strike paragraphs 21 to 24, 27 and 29, which contain statements contrary to subsection 81(1) of the Rules.
B. Attachments to Ms. Richard's memorandum
[22] The AGC argues that several attachments to Ms. Richard’s memorandum were not included in her affidavit, were not the subject of an application under section 317 of the Rules and were not among the undertakings made to Ms. Richard. The AGC is therefore requesting that the Court strike the following documents from the docket:
- Email dated February 27, 2015, between Ms. Richard and Ms. Bouchard;
- Email dated March 5, 2015, between Ms. Richard and Ms. Bouchard;
- Email dated July 30, 2015, between Ms. Richard and Ms. Bouchard;
- Letter of appreciation dated August 4, 2015; and
- Email dated December 21, 2018, from Major Simard.
[23] Ms. Richard insists that she sent the letter of appreciation dated August 4, 2015, to Investigator Néron during the investigation process and that it was unreasonable for him not to have referred to it in his report. Ms. Richard is asking the Court to take the letter of appreciation into account because it was submitted to Investigator Néron and is highly relevant, as it attests to her good faith and credibility at the time of the alleged facts.
[24] The Court will take into account the letter of appreciation dated August 4, 2015, but will strike the emails between Ms. Richard and Ms. Bouchard from the docket, as well as Major Simard’s December 21, 2018, email, as the applicant has failed to establish that these emails met the criteria set out by the Federal Court of Appeal in Namgis First Nation v Canada (Fisheries and Oceans), 2019 FCA 149 (CanLII) at paragraph 10 and applicable to the admission of evidence not available to the administrative decision-maker.
III. Issues
[25] The issues are:
- Was the Director General’s decision to dismiss grievance 335 reasonable?
- Was the Director General’s decision to dismiss grievance 493 reasonable?
- Did the harassment investigation comply with the principles of procedural fairness?
[26] The appropriate standard for judicial review for both of the Director General’s decisions is that of a reasonable decision, in other words, one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law”
(Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraphs 16–17, 85 [Vavilov]).
[27] Where issues of procedural fairness arise, the role of this Court is to determine whether the procedure was fair having regard to all of the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paragraph 54).
IV. Position of the parties and analysis
A. Was the Director General’s decision to dismiss grievance 335 reasonable?
[28] Ms. Richard considers that the Director General’s decisions to dismiss both grievances were not reasonable because they failed to acknowledge that the investigation conducted by Investigator Néron was imperfect and biased on the grounds that (i) Ms. Bouchard’s complaint was time-barred, so the investigation erred in law, and (ii) the investigator failed to consider relevant facts and refused to hear key witnesses proposed by Ms. Richard.
[29] The AGC considers that the impugned decisions were reasonable and that the main thrust of Ms. Richard’s submissions was to have the Court reassess and reweigh the evidence so that it could draw a different conclusion from that of the investigator. However, the AGC argues that, according to the principles cited in Vavilov at paragraph 125, Green v Canada (Aboriginal Affairs and Northern Development), 2017 FC 1121 at paragraphs 50 and 51, and Lewis v Canada (Attorney General), 2021 FC 1385 at paragraphs 42 and 43, it is not for the Court to reassess the evidence considered by an investigator in the context of judicial review.
[30] The starting point of the reasonableness review of a decision is the administrative decision itself and the reasons provided by the decision-maker to explain the decision-making process (Vavilov at paragraph 81). The Director General’s decision to dismiss grievance 335 was reasonable because Director Hooey explained his decision-making process and how he concluded that there was no reason for him to doubt the validity and procedural fairness of the Néron report.
[31] In his letters dismissing grievances 335 and 493, both dated September 9, 2021, Director Hooey explained that, before making his final determinations, he reviewed the Néron report in accordance with the Treasury Board’s Investigation Guide for the Policy on Harassment Prevention and Resolution [Policy] and Directive on the Harassment Complaint Process [Directive]. In his letters dated September 9, 2021, Director Hooey addressed the arguments regarding the Néron report that Ms. Richard’s made in her grievance, namely that (i) the complaint was time-barred, and (ii) Investigator Néron failed to consider relevant facts and key witnesses.
[32] Deference must be shown to administrative decision makers, such as Director Hooey, when reviewing the reasonableness of their decision (Vavilov at paragraphs 12, 13, 75 and 85), and the role of the Court is not to reassess the evidence. Ms. Richard failed to meet the burden of showing that the Director General’s decisions were unreasonable (Vavilov at paragraph 100); Burlacu v Canada (Attorney General), 2021 FC 339 at paragraph 45; Samson v Canada (Attorney General), 2021 FCA 212 at paragraph 7).
[33] The arguments that Ms. Richard presented before the Court essentially repeated those she presented to Major Simard in her letter dated December 19, 2019, and those she presented to Director Hooey in the grievance form filed on January 21, 2020. These two administrative decision-makers considered her arguments and gave her an opportunity to be heard at the disciplinary hearing on January 20, 2020, (which she refused to attend) and at the grievance hearing on May 18, 2021. Major Simard and Director Hooey both concluded that the harassment investigation was properly conducted and that there was no reason to doubt its validity or findings.
i. Ms. Bouchard’s complaint was not time-barred.
[34] Ms. Richard contends that the investigation erred in law and that it was therefore unreasonable for the Director General to concur with the findings of the investigation and to dismiss Ms. Richard’s grievances. She argues that Ms. Bouchard’s complaint was time-barred because the facts underlying five of the six allegations dated from more than 12 months before the date on which the complaint had been filed and because the incident that occurred on August 31, 2017, had been added to the complaint for the sole purpose of complying with the prescribed time limit. Given that this incident was not identified by Investigator Néron as an act of harassment and that all other allegations concerned facts outside the prescribed 12-month time limit, Ms. Richard considers that the complaint should have been dismissed entirely.
[35] Investigator Néron correctly determined that Ms. Bouchard’s complaint was admissible and that the allegations were receivable. In the introduction to his report, he explained that he relied on the Directive to rule on the admissibility of the complaint and therefore rejected Ms. Richard’s interpretation of the prescribed time limits:
[translation]
In this case, it was determined that the August 31 event met, on a prima facie basis, the criteria for filing a harassment complaint. Moreover, this event is the subject of this investigation.
However, the guidelines on the harassment complaint process do not indicate that the last incident must meet, on a preponderance of the evidence, all post-investigation requirements if harassment occurs. It is enough that the last alleged event took place within the 12 months before the complaint was filed.
In this case, the event on August 31, 2017, meets this requirement, as it is the last alleged incident of harassment that Ms. Bouchard alleges against Ms. Richard.
[36] In addition, in his letter, Director Hooey examined the arguments that Ms. Richard raised at the final hearing—the same arguments that she has made before the Court—regarding the prescriptive period:
[translation]
... in accordance with the department’s harassment policy, I find that the six allegations were properly considered by the officer in charge. The final determination of whether each allegation meets the definition of harassment is not used to assess whether the complaint should be retained at the investigation stage.
[37] Investigator Néron and Director Hooey properly applied the relevant provisions of the Directive and Policy. The last incident of harassment alleged by Ms. Bouchard—a team meeting in which Ms. Richard repeatedly insisted that Ms. Bouchard answer a question that she had already answered, then accused her of not being cooperative in front of all her colleagues, forcing her to leave the meeting—took place within 12 months of the time limit and, on a prima facie basis, met the definition of harassment set out in the Policy:
Improper conduct by an individual, that offends another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat.
[38] Director Hooey reasonably supported Investigator Néron’s finding that Ms. Bouchard’s complaint was not time-barred.
ii. Investigator Néron and the administrative decision-makers Major Simard and Director Hooey considered all of the relevant evidence.
[39] Ms. Richard contends that Investigator Néron failed to consider all of the relevant evidence. In her written submissions, Ms. Richard argued that she was on medical leave from October 2017 to April 2018 due to severe adjustment disorder and post-traumatic stress syndrome related to the harassment inflicted by Ms. Bouchard at work and that Ms. Bouchard’s complaint had been filed in retaliation to the workplace violence complaint made by Ms. Richard against her. At the hearing, Ms. Richard’s counsel pointed out that the evidence ignored by Investigator Néron consisted of the witnesses proposed by Ms. Richard and whom the investigator refused to question as well as a letter of appreciation that showed Ms. Richard’s good faith.
[40] I begin by noting that the names of some of the witnesses proposed by Ms. Richard were brought to the Court’s attention for the first time by an affidavit submitted to the Court one working day before the hearing even though the hearing date had been set for more than four months and despite the parties having filed their records more than eight months prior.
[41] Ms. Richard alleges that, during the investigation process, she submitted a list of witnesses to Investigator Néron and that he refused to take it into account, telling her that this was his investigation, not hers. This allegation contradicts the statements made in her letter dated July 26, 2019, in which she commented on the interim report. In that letter, she referred to [translation] “the investigator’s refusal to inform us of the witnesses whom he chose to interview, thereby preventing us from identifying certain other witnesses who could contradict the facts reported by the selected witnesses.”
Ms. Richard mentioned in her letter that she was unable to identify other witnesses for Investigator Néron whereas she stated before the Court that Investigator Néron refused to question the witnesses she had reportedly proposed.
[42] In any case, the selection of witnesses, as indicated in the Policy, is at the investigator’s discretion. Moreover, some of the witnesses on Ms. Richard’s list were not questioned by Investigator Néron, but their roles in the allegations were considered in the investigation through other testimony and documentary evidence.
[43] With respect to Ms. Richard’s medical leave, Investigator Néron writes in his report, [translation] “as confirmed by the Honorable Justice Zinn of the Federal Court of Canada in Shoan v Attorney General of Canada [2016 FC 1003], it is important for an investigator not to extend the scope of the investigation beyond his mandate and to adhere strictly to it”
. Investigator Néron noted Ms. Richard’s medical leave and reasonably determined that those facts exceeded the mandate of his investigation.
[44] In addition, Investigator Néron noted:
[translation]
In other words, it is important to objectively review Ms. Bouchard’s harassment allegations against Ms. Richard without exceeding the mandate or being unfairly influenced by assumptions about Ms. Richard’s management style as alleged by witnesses.
[45] His comments attest to his objectivity regarding the assumptions about Ms. Richard’s management style even though he did not mention the letter of appreciation.
[46] Furthermore, it was reasonable for Director Hooey to concur with the Néron report’s findings and to conclude that the investigator had objectively and reasonably considered all of the relevant evidence. A grievance decision maker such as Director Hooey is presumed to have considered all the evidence presented to him (Boulos v Canada (Public Service Alliance), 2012 FCA 193 at paragraph 11; Garcia Cuevas v Canada (Citizenship and Immigration), 2021 FC 1478 at paragraph 28).
[47] Lastly, it is worth bearing in mind that the Court must follow the important principle according to which “[r]easons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16; Vavilov at paragraph 128).
[48] In the present case, the reasons provided by Investigator Néron in his report and by Director Hooey in his letters dated September 9, 2021, were more than sufficient to understand their decision-making process. Indeed, the investigator’s reasons were detailed and examined the major arguments that had been raised while summarizing both the positive and negative points made by the witnesses and key players.
B. Was the Director General’s decision to dismiss grievance 493 reasonable?
[49] Ms. Richard asserts that, in light of the relevant facts that were ignored by Investigator Néron, that the investigation was conducted despite the time-barred complaint and the bias displayed in favour of Ms. Bouchard, the disciplinary action that resulted from the investigation and that was imposed on her constitutes harassment by the employer. Ms. Richard is of the opinion that the Director General’s decision to maintain the disciplinary action and dismiss her grievance was therefore unreasonable.
[50] Given that the Court has determined (i) that Ms. Bouchard’s complaint was not time-barred and (ii) that neither the investigator nor the Director disregarded any relevant evidence, Director Hooey’s decision to dismiss grievance 493 and to maintain the disciplinary measure imposed by Major Simard was reasonable.
[51] Ms. Richard made no argument, aside from stating that she disagreed with it, to establish that the disciplinary action was unreasonable. The disciplinary measure imposed by the employer and upheld by Director Hooey in his decision to dismiss grievance 493, was proportionate to Ms. Richard’s actions, specifically, workplace harassment, because the employer considered mitigating and aggravating factors (Patanguli v Canada (Citizenship and Immigration), 2015 FCA 291 at paragraph 21). The central part of the letter of reprimand containing the disciplinary measures taken against the applicant is reproduced below in Appendix A to these reasons.
C. Did the harassment investigation comply with the principles of procedural fairness?
[52] Ms. Richard alleges that Investigator Néron conducted an investigation that was biased in favour of Ms. Bouchard because he assigned more credibility to her testimony than to Ms. Richard’s. At the hearing, counsel for Ms. Richard also noted that the grievance hearings were held before Ms. Livingston, and therefore Ms. Richard never had an opportunity to be heard by Director Hooey, the administrative decision maker. Ms. Richard asserts that Investigator Néron’s bias and the fact that the grievance hearing was not held before Director Hooey breached the principles of natural justice and procedural fairness.
[53] I do not agree with the applicant’s arguments and find that both the grievance process and the harassment investigation complied with the principles of procedural fairness. Ms. Richard does have a right to be heard. However, she does not have an inherent right to appear before the administrative decision-maker. The principle of natural justice was upheld, and Ms. Richard had the opportunity to be heard on several occasions. She submitted her preliminary comments to Major Simard before the formal investigation began; she provided her comments on the preliminary investigation report prior to the final report’s release, and she challenged the Néron report and the disciplinary action in written submissions and by appearing before a National Defence redress officer from the workplace management team.
[54] As for the apprehension of bias, in Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 S.C.R. 369, at page 394, the Supreme Court of Canada held that:
The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . that test is “what would an informed person, viewing the matter realistically and practically . . . conclude?”
[55] Ms. Richard’s alleged apprehension of bias is unfounded. The Néron report addressed the apprehension of bias and explained that investigator Néron had no reason to favour Ms. Bouchard or Ms. Richard, as he knew neither of them. For each allegation of harassment, the Néron report presented Ms. Bouchard’s, Ms. Richard’s and the witnesses’ perspectives, and summarized and analyzed the evidence to reach a reasonable conclusion.
[56] Director Hooey reasonably supported Investigator Néron’s position on the apprehension of bias by reiterating that the investigator had no reason to be biased in his letters dated September 9, 2021. In light of all the circumstances and the evidence, I find that, realistically and practically, there was no reasonable apprehension of bias. The mere fact that Ms. Richard did not agree with Investigator Néron’s findings is not sufficient to establish a reasonable apprehension of bias.
[57] Lastly, counsel for Ms. Richard argued, for the first time at the hearing in her arguments on procedural fairness, that the grievance reports prepared by Ms. Livingston and submitted to Director Hooey for the final-level decision were only in English. When I asked counsel for Ms. Richard if he was presenting a language law argument at the last minute, he did not elaborate, repeating simply that he noted the fact that the grievances were only in English.
[58] I note that no language law argument was raised either in the notices of application, the briefs or the memoranda throughout the course of this judicial review. Therefore, it is too late for counsel for Ms. Richard to put forward such an argument at the eleventh hour, when concluding his arguments before the court, without explaining the rationale behind that argument, without citing either a statute, bilingualism policy or jurisprudence to support such an argument. I note that the applicant had almost 18 months to amend her notice of application or raise a language law argument since filing her notice of application with the court on October 8, 2021. In this case, this argument appears solely to be a last-chance attempt by counsel for the applicant to argue anything imaginable before the court.
V. Costs
[59] The parties unsuccessfully attempted to reach an agreement as to costs prior to the conclusion of the hearing. The applicant ultimately claimed costs of $5,000, while the respondent claimed costs of $3,500.
[60] Subsection 400(1) of the Rules states that the court has “full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.”
After considering the factors listed in subsection 400(3) of the Rules, and the arguments of the parties, it is appropriate to award costs in the amount of $2,000 to the respondent.
VI. Conclusion
[61] For the foregoing reasons, I am of the opinion that Ms. Richard failed to demonstrate how Director Hooey’s decisions were unreasonable. The decisions, as a whole, have the attributes of a reasonable decision, that is, a decision based on an “internally coherent . . . chain of analysis”
and justified “in relation to the facts and law that constrain the decision-maker”
(Vavilov at paragraph 85).
JUDGMENT in T-1533-21 and T-1534-21
THE JUDGMENT OF THIS COURT is as follows:
The application for judicial review is dismissed.
2. The applicant will pay costs in the amount of $2,000 to the respondent.
“ Alan S. Diner ”
Certified true translation
Sebastian Desbarats
APPENDIX A
Excerpt from the letter of reprimand signed by Major Simard on February 19, 2020,
including the penalty against the applicant
[translation]
XXXXXXXX Therefore, in accordance with the authority delegated to me under paragraph 12(1)(c) of the Financial Administration Act (FAA) and the Guidelines for Civilian Discipline, I have determined that a written reprimand would be an appropriate measure; in addition, I will add the obligation to attend the following training sessions:
Harassment Prevention and Bystander Intervention, offered by the Learning and Career Centre (LCC) http://hrciv-rhciv.mil.ca/fdp-centres-emplacement-valcartier.pue
Communication, Inter-comm, offered by the Personnel Support Program (PSP) https://www.connexionfac.ca/Bagotville/Adulte/Sante/Promotion-de-la-sante/cours-et-ateliers.aspx
In addition, I ask that you familiarize yourself with the DND and CF Code of Values and Ethics, the Values and Ethics Code for the Public Sector, and the expected behaviour. You need to be aware of the seriousness of your conduct and understand that if further misconduct on your part occurs, more severe disciplinary measures, up to discharge, could be taken against you. However, I am confident that such a situation will not happen again.
A copy of this letter will be placed in your personal record and will remain there for a period of two years in accordance with your collective agreement. It could also remain there for a longer period of time if further disciplinary action is taken in your case in the interim.
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