Grover v. National Research Council of Canada

Grover v. National Research Council of Canada
Collection
Canadian Human Rights Tribunal
Date
2009-01-06
Neutral citation
2009 CHRT 1
File number(s)
T1242/5407
Decision-maker(s)
Hadjis, Athanasios
Decision type
Ruling
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
CHANDER PRAKASH GROVER
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
NATIONAL RESEARCH COUNCIL OF CANADA
Respondent
RULING
2009 CHRT 1 2009/01/06
MEMBER: Athanasios D. Hadjis
I. Background
A. Complaint #1 - Remedial issues arising from the Tribunal decision
B. Complaints #2 and #3
C. Complaint #4
D. The investigation of Complaints #2 and #3 after the 2001 Federal Court decision
E. Circumstances since Complaints #2, #3 and #4 were referred to the Tribunal
II. Analysis
A. Prejudice to the fairness of the hearing caused by the delay
B. How has the NRC been prejudiced by delay in the present case?
C. Has the NRC's ability to provide an answer to the allegations been impaired?
D. Must the delay be unacceptable or undue to justify the dismissal of the complaint?
E. Is the prejudice of sufficient magnitude to impact on the hearing's fairness?
F. Would dismissing the complaints at this time be premature?
G. Would dismissing the complaints send an inappropriate message to other parties before the Tribunal?
III. Conclusion
[1] The National Research Council (NRC) has made a motion to dismiss the human rights complaints of Dr. Chander Prakash Grover. The NRC argues that the delay in the hearing of these complaints has significantly prejudiced the NRC in its ability to effectively respond to the allegations, and that the hearing of the complaints would bring the human rights system into disrepute and constitute an abuse of process.
[2] The NRC filed affidavits from nine persons in support of its motion. Dr. Grover and the Commission opted to cross-examine seven of the affiants on their affidavits over the course of a four-day hearing before me. In addition, Dr. Grover testified regarding some of the issues raised in this motion.
I. BACKGROUND [3] Dr. Grover is a person of East Indian origin who is a research scientist in the field of modern optics. He was employed by the NRC from 1981 to 2007. Between 1987 and 1998, he filed four human rights complaints against the NRC, alleging discrimination on the basis of race, colour, and national or ethnic origin. The Canadian Human Rights Tribunal ruled on the first complaint (Complaint #1), on July 29, 1992. The Tribunal found that the complaint had been substantiated.
[4] Dr. Grover had in the meantime filed a second complaint, on December 23, 1991 (Complaint #2), and a third complaint on July 14, 1992 (Complaint #3). Complaint #2 dealt with incidents that allegedly occurred between 1987 and September 1991. Complaint #3 referred to events occurring between June 1991 and June 1992.
[5] On July 27, 1998, Dr. Grover filed his fourth complaint (Complaint #4), in which he refers to discriminatory practices that allegedly occurred from July 1992 until March 1994.
[6] On August 1, 2007, the Canadian Human Rights Commission (Commission) informed the Tribunal that it was referring select allegations from Complaints #2, #3 and #4 to the Tribunal for inquiry. It is these three complaints that the NRC is seeking to dismiss with its present motion.
[7] In order to better comprehend the circumstances giving rise to the motion, I have summarized in some detail the course that all four complaints have followed over the years. Since there was some overlap in the progress of each complaint, the following recap is occasionally presented out of chronological order.
A. Complaint #1 - Remedial issues arising from the Tribunal decision [8] Dr. Grover had alleged in Complaint #1 that from September 1986 onwards, his directors had ignored him and denied him managerial and promotional opportunities. He also alleged that they had systematically removed his managerial and research responsibilities from him. He claimed that his race, colour and national origin were factors in this treatment.
[9] The Tribunal found that his complaint was substantiated. In its decision, the Tribunal ordered the NRC to place Dr. Grover in a Group Leader or Section Head position within the organization. Accordingly, a few weeks after the release of the Tribunal decision, the NRC appointed Dr. Grover to the position of Group Leader, Optical Components Research Group, within the NRC's Herzberg Institute of Astrophysics (HIA). Dr. Grover objected to this appointment believing that it did not accord with the Tribunal's order. He brought the matter back before the Tribunal, which in turn rendered an initial decision in his favour on February 17, 1994.
[10] Other issues regarding the implementation of the Tribunal's remedial order developed thereafter, so Mr. Grover petitioned the Tribunal for another hearing. The Tribunal reconvened in May 1996. By then, the NRC had a new president, Dr. Arthur J. Carty. Outside the hearing room, he and Dr. Grover took the opportunity to try settling the dispute. They successfully negotiated an agreement on all issues relating to Complaint #1 and the implementation of the Tribunal order. The terms of their agreement were read into the Tribunal's hearing record on May 21, 1996.
B. Complaints #2 and #3 [11] Dr. Grover filed Complaint #2 on December 23, 1991. In January 1992, the Commission wrote to the NRC seeking its position regarding the allegations in the complaint. The NRC initially sought some clarification from the Commission about the scope of the complaint but ultimately gave its reply on April 1, 1992. I have no evidence of any further activity in the Commission's investigation of this complaint until March 1994.
[12] Dr. Grover filed Complaint #3 on July 14, 1992. In August 1992, the Commission requested that the NRC respond. It appears that some of the issues raised in Complaint #3 were also the subject of a grievance that was pending before the Public Service Staff Relations Board (PSSRB) at the time. The NRC sought and obtained from the Commission an extension to file its response after the grievance was heard. In the end, the PSSRB decided, on January 7, 1994, to adjourn its hearing sine die pending the outcome of the Commission's investigation into Complaint #3. As a result, on February 21, 1994, the NRC provided its response to Complaint #3. Thereafter, the Commission began investigating the two complaints jointly.
[13] In March 1994, Dr. Grover and his lawyer met with a Commission investigator to provide their comments regarding the NRC's responses to both complaints. However, within a matter of weeks, Dr. Grover and the NRC had opened discussions with a view to settling these two complaints. Consequently, the Commission investigator cancelled a follow-up meeting that had been scheduled with Dr. Grover and his counsel.
[14] There is no evidence before me of any Commission activity regarding these complaints over the following 12 months. On April 7, 1995, however, the Commission contacted the NRC and informed it that a new investigator had been assigned to the complaints.
[15] The evidence shows no further activity regarding the two complaints for the following 15 months, although as I mentioned earlier the parties were still involved in their protracted dispute with respect to Complaint #1. Apparently, after Complaint #1 was settled (May 1996), Dr. Grover asked the Commission to pursue Complaints #2 and #3 anew. At the same time, he also requested the involvement of Commission counsel in discussions to settle these complaints. In a letter dated July 11, 1996, the Commission informed Dr. Grover that Commission counsel would not be involved in any settlement discussions. The Commission wrote that the best course of action, given the age of the complaints would be to complete the investigations. The Commission added that it was therefore seeking Dr. Grover's cooperation in bringing the investigation of the complaints to a timely conclusion.
[16] About seven months later, on January 23, 1997, Dr. Grover provided the Commission with his rebuttal to the NRC's position in respect of Complaints #2 and #3. From January to March 1997, the Commission investigator requested a number of documents from the NRC, which the NRC promptly provided. On April 28, 1997, the investigator issued her investigation report recommending the dismissal of the complaints. The Commission invited the parties to provide their submissions on the report.
[17] The NRC filed its reply on April 30, 1997, concurring with the investigator's recommendations. The NRC noted that the allegations had been outstanding for several years and many NRC employees and former employees have waited patiently to have the accusations made against them resolved.
[18] On July 14, 1997, Dr. Grover filed extensive submissions in respect of the investigation report's findings. He challenged the investigator's findings and argued that they contradicted the Tribunal's previous findings regarding Complaint #1. He urged the Commission to reject the investigator's recommendations and, given the age of the complaints, to limit the conciliation process to two months, after which the case would be referred to the Tribunal.
[19] Following up on Dr. Grover's submissions, the Commission informed the parties, on July 23, 1997, that there were areas where further investigation was required. On August 28, 1997, the NRC filed a rebuttal to Dr. Grover's submissions, urging the Commission to reject them and bring closure to the matter.
[20] Nevertheless, on September 16, 1997, the Commission investigator wrote to the NRC seeking responses to a number of questions. The investigator noted that her letter was further to the Commission's decision to stand down the complaints for further investigation.
[21] By November 1997, the Commission investigator had completed her follow-up investigation and submitted it to the parties for comment. The NRC replied within days, while Dr. Grover sought and obtained permission to file his reply by January 5, 1998. On February 27, 1998, the Commission issued its decision dismissing Complaints #2 and #3.
[22] On April 1, 1998, Dr. Grover commenced an application for judicial review of the Commission's decision. The Federal Court heard the application in March 2000 and rendered its decision on June 21, 2001. The Court allowed the application, concluding that the Commission had failed in its obligation to conduct a thorough investigation by not interviewing Dr. Jacques Vanier, an NRC manager who was vitally connected to the alleged discriminatory action. The matter was remitted back to the Commission to complete its investigation.
C. Complaint #4 [23] At the motion hearing, Dr. Grover testified that he contacted the Commission on March 17, 1994, in order to file a fourth complaint, regarding what were then fresh incidents of discriminatory conduct. He claims that the Commission told him that a formal complaint would not be accepted from him regarding these events until his other complaints (#1, #2 and #3) had been resolved.
[24] More than two years later, on July 5, 1996, Dr. Grover spoke to a Commission employee about formally filing Complaint #4. However, the Commission replied that it would not entertain a new complaint until the investigations into Complaints #2 and #3 were completed.
[25] The following year, on August 27, 1997, Dr. Grover informed the Commission that he was still engaged in negotiations with the NRC (namely, with Dr. Carty) to settle any outstanding issues. Consequently, on September 10, 1997, the Commission wrote a letter to Dr. Grover advising him that his file concerning a potential complaint of discrimination against the NRC (i.e. Complaint #4) had been closed pending the outcome of the discussions. Dr. Grover was also invited to contact the Commission in the event that the outstanding issues were not resolved to his satisfaction.
[26] The parties did not end up settling Complaints #2 and #3. On June 25, 1998, Dr. Grover met with the Commission to discuss filing Complaint #4. Following the meeting, the Commission prepared the formal complaint, which Dr. Grover signed on July 27, 1998. It was forwarded to the NRC, which provided its written response on November 3, 1998.
[27] There are no documents in the record before me to explain what transpired in the months thereafter. However, in an affidavit signed by Lorna Jacobs, a Human Resource Generalist with the Human Resources Branch of the NRC, dated November 10, 2008, she states her belief that all submissions in respect of Complaint #4 had been filed with the Commission by January 1999. Ms. Jacobs was not cross-examined on her affidavit.
D. The investigation of Complaints #2 and #3 after the 2001 Federal Court decision [28] As mentioned earlier, on June 21, 2001, the Federal Court found that the Commission failed in its obligation to conduct a thorough investigation by neglecting to interview Dr. Vanier, who was, between 1990 and 1993, the Director-General at the Institute of National Measurement Standards (INMS) of the NRC, where Dr. Grover was working in 1991 when he filed Complaint #2. The Court returned the matter to the Commission to be dealt with in a manner not inconsistent with the reasons set out in the judgment.
[29] By mid-July 2001, a Commission investigator began trying to locate Dr. Vanier in order to interview him. The NRC was initially unable to be of any assistance in finding him. Dr. Vanier had retired and left the NRC in 1994. The NRC was able to provide his last known address by late August 2001. On September 18, 2001, a credit agency hired by the Commission found Dr. Vanier's new address. The Commission investigator contacted him shortly thereafter. Dr. Vanier retained a lawyer to represent him during the investigation. There were some discussions between the Commission and Dr. Vanier's counsel regarding how the interview would be conducted, including whether NRC documents regarding Dr. Grover's employment could be released to Dr. Vanier so that he could refresh his memory. The Commission investigator finally conducted her interview of Dr. Vanier on March 18, 2002.
[30] The investigator prepared a summary of the interview, which she submitted to Dr. Vanier for comments and signature. He returned it to her on April 22, 2002. The document was then forwarded to Dr. Grover on May 9, 2002. By November 2002, Dr. Grover had apparently failed to provide his comments on the interview, prompting the investigator to call Dr. Grover's counsel and request the response as soon as possible so that she could move ahead. Dr. Grover apparently replied with a request that the Commission place all of the complaints (#2, #3 and #4) in abeyance pending the outcome of litigation that he had recently initiated against the NRC before the Ontario Superior Court.
[31] On December 11, 2002, the investigator sought the NRC's position on Dr. Grover's request. The NRC had, by March 20, 2003, still failed to reply. In any event, it seems that the Commission decided not to keep the files in abeyance, and on May 26, 2003, the investigator issued her report, in which she recommended that the Commission refer all three complaints to the Tribunal. This, of course, included Complaint #4 regarding which the Commission had not formally completed its investigation or prepared a report.
[32] By July 11, 2003, both the NRC and Dr. Grover had made their submissions to the Commission regarding the investigator's recommendations. On September 16, 2003, the Commission decided to refer all three complaints (#2, #3 and #4) to the Tribunal. On October 17, 2003, the NRC applied to the Federal Court for judicial review of the Commission's decision. The Court issued its judgment on May 14, 2004. It found that the Commission had given insufficient reasons to support its decision regarding Complaints #2 and #3, and that the referral of Complaint #4 was premature given the Commission's failure to complete its investigation into that complaint. The Court set aside the Commission's decision and ordered that the Commission complete a thorough, neutral evaluation before reaching a decision regarding Complaint #4. The Commission was also ordered to provide a more reasoned decision with respect to Complaints #2 and #3.
[33] I have no evidence before me of whether the Commission, in the immediately ensuing months, proceeded to complete Complaint #4's investigation or prepare a reasoned decision regarding the other complaints. Instead, on October 15, 2004, (i.e. five months after the Federal Court decision), Commission counsel met with NRC counsel to discuss a number of issues including the possibility of initiating an early resolution process that could result in the settlement of the complaints. By March 16, 2005, the Commission had held a similar discussion with Dr. Grover.
[34] It is unclear what the outcome of these initiatives was, but by November 22, 2005, the record shows that the Commission had retained the services of a lawyer in private practice to conduct a supplementary investigation into Complaints #2 and #3, and to complete the investigation into Complaint #4. It took some time apparently for the lawyer's contract with the Commission to be finalized, prompting the Commission to advise the parties on May 2, 2006, that the investigations were being placed on hold for a very short period of time until that process was completed.
[35] The record then shows that on January 3, 2007 (i.e. eight months later), the investigator contacted NRC counsel for assistance in locating a number of former NRC employees mentioned in Dr. Grover's complaints, who the investigator wanted to interview. Their whereabouts were confirmed and the investigator began interviewing them by March 12, 2007.
[36] The investigator issued the supplementary report of Complaints #2 and #3 on February 28, 2007, and her investigation report regarding Complaint #4, on March 22, 2007. On July 31, 2007, the Commission released its decision regarding all three complaints. The Commission concluded that several of the allegations should be dismissed, but it also decided to refer to the Tribunal the remaining allegations, arising from all three complaints. The Commission sent its letter of referral to the Tribunal the following day, August 1, 2007.
E. Circumstances since Complaints #2, #3 and #4 were referred to the Tribunal [37] As part of the Tribunal's case management process, Dr. Grover was to provide his disclosure documents by February 29, 2008. He actually only did so on April 15, 2008. The NRC responded by filing a motion on June 5, 2008, to strike a number of the allegations in Dr. Grover's statement of particulars. In a ruling dated August 21, 2008, the Tribunal agreed that several paragraphs must be struck, principally because many of these issues had already been addressed in the Tribunal's decisions regarding Complaint #1.
[38] The NRC then brought the present motion on September 15, 2008.
II. ANALYSIS [39] The NRC contends that there has been an unacceptable delay in the hearing of the three complaints, the first of which was filed 17 years ago. It argues that it is therefore significantly prejudiced in its ability to respond to the complaints, and in the alternative, that the hearing of these complaints would bring the human rights system into disrepute and constitute an abuse of process.
A. Prejudice to the fairness of the hearing caused by the delay [40] The principles of natural justice and the duty of fairness are part of every administrative proceeding (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 102). As the Supreme Court noted in Blencoe, these principles include the right to a fair hearing, which, for respondents, encompasses the ability to make a full answer and defence to the allegations made against them. This entitlement finds its expression in s. 50(1) of the Canadian Human Rights Act, which directs Tribunal members to give all parties ... a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
[41] As Blencoe, ibid, further states, where delay impairs a party's ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of administrative proceedings and provide a remedy.
[42] Section 41(1)(e) of the Act provides that the Commission has the discretion not to deal with a complaint that is based on acts or omissions that occurred more than one year before receipt of the complaint (or such longer period of time as the Commission considers appropriate in the circumstances). In the present case, at least one of the complaints (#4) was formally filed with the Commission over four years after the last of the incidents alleged therein. The Commission decided to deal with this complaint. The Canadian Human Rights Tribunal does not have the jurisdiction to review this Commission decision, a power that rests exclusively with the Federal Court (I.L.W.U. (Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.) at paras. 25-31). However, if the entire pre-hearing delay, from the earliest discriminatory acts until the hearing is so long that the respondent's right to a fair hearing is compromised, the Tribunal has the authority to remedy the situation (Gagné v. Canada Post Corp., 2007 CHRT 18 at para.8; Desormeaux v. Ottawa Carleton Regional Transit Commission (2002 July 19) T701/0602 (C.H.R.T.) at para. 13).
[43] The Supreme Court pointed out in Blencoe at para. 101, that delay, without more, will not warrant a stay of proceedings. The delay must be such that it would necessarily result in a hearing that lacks the essential elements of fairness. Evidence must be brought to bear demonstrating prejudice of sufficient magnitude to impact on the fairness of the hearing (Blencoe at para. 104; Ford Motor Co. of Canada v. Ontario (Human Rights Comm.), 1995 CanLII 7431 (Ont. S.C.) at para. 16).
B. How has the NRC been prejudiced by delay in the present case? [44] Complaint #2 contains a list of ways in which the NRC allegedly discriminated against Dr. Grover. Aside from the first clause simply claiming that he was denied salary increments since 1987, the remainder of the allegations refer to a period commencing in August 1990 and ending on September 18, 1991. Complaint #3 contains a similar list of discriminatory practices (16 in total), which are alleged to have occurred from June 1991 to the date of the complaint, July 14, 1992. Complaint #4's list is 51 paragraphs long but some of the alleged discriminatory practices (from July 1992 to March 1994) are described over several paragraphs.
[45] In any event, as a result of the Commission's decision to refer to the Tribunal only several of the complaints' allegations, and the Tribunal's ruling in August 2008 striking out a few of those allegations as well, the number of alleged discriminatory practices at issue were significantly pared down. They are now best identified through Dr. Grover's Amended Statement of Particulars, which he filed on September 15, 2008. I describe each of the alleged discriminatory practices below and summarize the evidence of prejudice to which the NRC claims it is subject because of delay in this case.
[46] Alleged discriminatory practice #1
Dr. Grover claims that in January 1991, the NRC's Information Services Office selected him to prepare a holography display that would be included in the NRC's 75th Anniversary Exhibit. He claims that his Director General, Dr. Vanier, interfered in the process and as a result, Dr. Grover was told that his display was no longer being considered. Dr. Grover claims that Dr. Vanier took this action to damage his career and self-esteem, and that Dr. Vanier was motivated by discriminatory considerations.
[47] Dr. Vanier signed an affidavit on which he was cross-examined at the motion hearing. He states in the affidavit that he was Director General of INMS until March 5, 1993, and that he remained at the NRC thereafter as an employee fulfilling international engagements until January 4, 1994, at which time he retired. He is 73 years old today. He claims to have no independent recollection of the event nor can he elaborate on two memos prepared in February 1991, one by him and another by a colleague, Dr. Ronald Bedford, which apparently relate to the event. The cross-examination of Dr. Vanier did not yield any variation in his evidence. He does not recall the NRC ever having asked him prior to 2008 for his version of the alleged events.
[48] Dr. Bedford also signed an affidavit and was cross-examined. He was a director within INMS in 1991. He was employed by the NRC between 1955 and 1995, when he retired. He is 78 years old. He states in his affidavit that he has no recollection of the alleged incident involving the holography display nor can he elaborate on discussions that he may have had with Dr. Vanier beyond what is referenced in the two February 1991 memos. In cross-examination, he was unable to recall any additional information. He testified that no one from NRC had ever spoken to him about these allegations before his retirement in 1995 or thereafter. When the NRC contacted him in 2008 prior to the preparation of his affidavit, he viewed the matter as coming at him out of the blue.
[49] The Commission's first investigation report regarding Complaints #2 and #3, dated April 28, 1997, dealt with the matter of the 75th Anniversary Exhibit issue. The investigator had apparently spoken at the time to Charles Reynolds, who was the NRC's Chief, Creative Services, when the exhibit was being prepared. The investigator apparently also interviewed an unnamed video coordinator as well as the Trade show / special events coordinator (Suzanne Auger).
[50] Mr. Reynolds signed an affidavit on which he was cross-examined at the motion hearing. He was employed by the NRC from 1988 until November 1997. According to a memo written by Dr. Grover on January 17, 1991, Mr. Reynolds and Ms. Auger had apparently met with Dr. Grover and asked him to prepare a holography display for the exhibit. Mr. Reynolds testified that he remembered visiting Dr. Grover in his lab but that he does not recall what he and Ms. Auger may have told Dr. Grover about their interest in his holography display for the purposes of the exhibit. Mr. Reynolds states that he has no specific recollection of any interference by Dr. Vanier, as alleged by Dr. Grover. With the passage of time, Mr. Reynolds says that has no recollection of a conversation with Ms. Auger in which (according to 1997 findings of the Commission investigation) he purportedly instructed her not to approach Dr. Grover. He has a vague recollection of telling her not to contact any of the NRC research scientists directly for protocol reasons. He testified that he had no independent recollection of having ever met Dr. Vanier. He accepted that a memo from February 1991 suggested that he had spoken to Dr. Vanier, but he maintained that he had no independent recollection thereof. He pointed out that he was involved in a lot of activities at the time and that basically, the events alleged regarding this exhibit were long ago and were not a big deal in his life. The NRC never contacted him about this incident over the years, and he testified that he either destroyed his records regarding the exhibit (as was his usual practice) or left them with the NRC.
[51] Dr. Vanier, Dr. Bedford and Mr. Reynolds were shown, in cross-examination, the memo that Dr. Grover had addressed to Dr. Bedford in January 1991 regarding the holography display issue. It did not trigger in them any memories of the event. No evidence was received from Ms. Auger or the unnamed video coordinator.
[52] Alleged discriminatory practice #2
In February 1991, the International Society for Optical Engineering (known as SPIE) informed Dr. Grover that he would be receiving a prestigious fellowship award at the organization's symposium, which was to be held the following July in San Diego. He submitted a request to his direct supervisor at the time, Dr. Bedford, for funding to travel to the symposium. Dr. Bedford forwarded the request to Dr. Vanier, who allegedly denied the request for funding in June 1991. Dr. Grover claims that his travel funding was eventually approved after his union intervened. He is of the view that the initial refusal was calculated to diminish his career and reputation, and to cause him embarrassment and humiliation.
[53] Dr. Bedford states in his affidavit that he has no recollection of any discussions he may have had with Dr. Vanier about the issue, apart from the March 8, 1991, memo (attached to the affidavit), which he wrote to Dr. Grover confirming that the travel funding request had been forwarded to Dr. Vanier for approval. In his testimony, he elaborated that he recalled Dr. Grover's request, but he could not recall any of the matters referred to in a number of documents put before him at the hearing, including another memo that he wrote to Dr. Grover on June 14, 1991. Dr. Bedford recalls that Dr. Grover ultimately did attend the symposium.
[54] Dr. Vanier stated in his affidavit that he has no recollection of the conference or any conversations he may have had with Dr. Bedford regarding Dr. Grover's attendance. In his testimony, he pointed out that he was refusing many requests for travel funding from research officers at the time due to limited budgets and quotas. However, he had occasion to approve some travel requests upon reconsideration, and he has a vague recollection of Dr. Grover's request being one of them. But he also maintained in his testimony that he did not recall any conversations he would have had with Dr. Bedford or any union representatives regarding Dr. Grover's request. For that matter, he has no recollection of the union ever being involved. Dr. Vanier's memory was not triggered by any of the documents shown to him, none of which he recognized or recalled seeing before.
[55] Alleged discriminatory practice #3
Dr. Grover was away from work over the summer of 1991. When he returned in September, Dr. Bedford delivered a memo to him, advising him to produce a work plan, weekly time sheets, and a trip report regarding the San Diego SPIE symposium. The memo asserted that these items had been previously requested of Dr. Grover. He claims that given that he had just returned to work, the memo was unreasonable, unfair, and delivered with purpose of harassing and causing him distress.
[56] Dr. Bedford wrote in his affidavit that aside from a vague recollection of having asked Dr. Grover for a work plan, he has no specific recollection at all of the events giving rise to, nor any discussions that he may have had, concerning Dr. Grover's production of weekly time sheets and a trip report. Dr. Bedford was not questioned about this matter during his cross-examination on the affidavit.
[57] Alleged discriminatory practice #4
On June 2, 1992, Dr. Vanier wrote a memo to Dr. Grover regarding the development of the latter's project work plan. Dr. Vanier claims in the memo that attempts over the previous year to develop the plan had failed because the NRC had been unable to obtain Dr. Grover's input and agreement. Dr. Vanier therefore imposed a work plan and required that Dr. Grover report to an individual (Dr. J. Zwinkels) every two months on the progress accomplished. Dr. Grover claims that this requirement was discriminatory as white scientists were not obliged to provide such progress reports. He also alleges that Dr. Vanier instructed Dr. Zwinkels and Dr. Vanier's secretary (Angie Loucks) to deliver the memo together to Dr. Grover and read it aloud to him. These actions, according to Dr. Grover, were designed to harass him and cause him distress.
[58] Dr. Vanier states in his affidavit that he does not recall any discussions that he may have had with, or documents received from, Dr. Zwinkels, Dr. Bedford, or from NRC Human Resources regarding this issue. He defers to the content of the memo as well as the CHRC investigator's summary of her interview with him from March 2002 (which I referenced earlier in this ruling). Dr. Vanier had reviewed and commented upon the summary before signing it on April 22, 2002. According to the summary, he had asked for the bi-monthly reports because contact with Dr. Grover had been broken, although he acknowledged that he did not impose a similar reporting requirement on other senior scientists. The summary also stated that he asked for the memo to be hand delivered because, on a previous occasion, Dr. Grover had said that he had not received a document. Dr. Vanier wanted to be certain of delivery this time. The summary reported that Dr. Vanier remembers that Dr. Grover's prior activity reports were inadequate and that he was not being cooperative in preparing a work plan.
[59] During his testimony before the Tribunal in November 2008, Dr. Vanier said that while he remembered that the event in 1992 had happened, he did not remember the details of the exact operation that took place. He no longer has any independent recollection thereof, though he assumes that when he spoke to the Commission investigator in 2002, he still had some independent recollection as reflected in her summary.
[60] Dr. Bedford, for his part, wrote in his affidavit that he did not recall any discussions with Dr. Zwinkels or Dr. Vanier about the circumstances surrounding the June 2, 1992, memo. Dr. Bedford was not questioned on this matter during his cross-examination on his affidavit.
[61] Ms. Loucks had apparently signed an affidavit on February 4, 2008, for the purposes of some other proceedings before the Federal Court. In this affidavit, she stated that she has no recollection of this event or of any discussions with Dr. Zwinkels, Dr. Vanier, or anyone else concerning the matter. Ms. Loucks' employment with the NRC ended in December 1997. Lorna Jacobs, the NRC human resources generalist referred to earlier in this ruling, spoke to Ms. Loucks on October 23, 2008. Ms. Jacobs signed an affidavit on October 30, 2008, regarding this conversation. Ms. Jacobs explained that Ms. Loucks told her she would no longer cooperate regarding these complaints as she had no recollection of these alleged 1992 events. Ms. Loucks referred to her February 4th affidavit, adding that she did not feel she could add anything further to the process and that with her retirement, she had moved on with her life.
[62] Mr. Grover did not ask to cross-examine Ms. Jacobs on her affidavit.
[63] Alleged discriminatory practice #5
Dr. Grover states that although the NRC did not seek judicial review of the Tribunal's decision on the merits of Complaint #1, it never truly accepted the Tribunal's finding of discrimination. He cites, as an example, a September 1992 letter sent to a Member of Parliament (MP) by Dr. Pierre Perron, who served as NRC President between July 1989 and July 1994. Dr. Perron purportedly stated in the letter that the Tribunal decision came as a great shock to the NRC since the Tribunal was able to make this finding in the absence of any evidence to this effect. Dr. Grover describes this propaganda as hurtful and claims it exacerbated the mental suffering he experienced relating to Complaint #1 and the NRC's treatment of him throughout the proceedings.
[64] Dr. Perron signed an affidavit, which the NRC filed in support of its motion. There is no mention of this allegation in the affidavit. However, when Dr. Perron was cross-examined on the affidavit, he recalled receiving a letter from an MP regarding Dr. Grover's case because he also remembered being presented with a letter to sign in reply. He does not recall any details about the letter that he signed. He testified that it was the general practice for the NRC's correspondence directorate to write this type of correspondence and for him to perhaps make some editorial changes before signing it as the agency's head.
[65] Dr. Perron also testified that since leaving the NRC in November 1994 no one had spoken to him about the matter until the end of 2007 when an NRC employee called and asked him to get in touch with NRC's legal counsel in the present case. He claims that the whole matter was news to him, having been away from the NRC since 1994. Dr. Perron is 69 years old.
[66] Alleged discriminatory practice #6
Pursuant to the Tribunal's order in the 1992 decision regarding Complaint #1, the NRC appointed Dr. Grover to a Group Leader position at the HIA. According to Dr. Grover, in order to facilitate this appointment, one of his co-workers (Dr. Ian Powell) was displaced from the same position, which Dr. Powell and his colleagues regarded as a demotion. This caused resentment towards Mr. Grover among the entire group (including Dr. Powell), and fostered negative views of him. It created a poisoned work environment for him. Dr. Grover believes that the NRC knew this would be the likely result of demoting Dr. Powell to appoint him, and did so due to discriminatory considerations.
[67] The letter advising Dr. Grover of his new post was addressed to him by Dr. Perron on September 10, 1992. Dr. Perron wrote in his affidavit that he has no recollection of any discussions held with, or directions given, to any senior management personnel that Dr. Powell was to be demoted or otherwise displaced by Dr. Grover. Dr. Perron added that he does not recollect ever knowing or having met Dr. Powell.
[68] In his cross-examination, Dr. Perron reiterated that he does not recall knowing or meeting Dr. Powell. He added that he does not recall being involved in deciding where Dr. Grover would be appointed, in furtherance of the Tribunal decision, nor does he recall what options may have been considered for the appointment. He does not have any recollection of the letter sent to Dr. Grover, but from the tone of it, Dr. Powell believes that it was not he who drafted it. As was typical of the NRC's bureaucratic process, someone else would have prepared it and presented it to him for signature. He does not recall if any friction developed between Dr. Grover and others, but if there was any, he does not remember. Dr. Perron pointed out that he has been away from the NRC for 14 years and no one had raised with him the issues regarding Dr. Grover prior to 2007.
[69] Dr. Grover's direct supervisor at his new position was Dr. Bryan Andrew. Dr. Andrew was employed by the NRC between 1965 and 1996, when he retired. The NRC filed in evidence an affidavit that he signed in October 2008, on which he was cross-examined at the motion hearing. Dr. Andrew was shown a summary of an interview that a Commission investigator had conducted with him in February 2000. Dr. Andrew had, at the time, reviewed the summary and in fact, retyped it to more accurately reflect his responses. The summary incorporates some fairly detailed answers regarding some of the issues raised in Complaint #4 (which covered the 1992 to 1994 period). In the document, Dr. Andrew states that he recalls Dr. Powell's sense of grievance at having to make room for Dr. Grover's arrival. Dr. Andrew sets out a number of specific observations in this regard. Dr. Andrew testified that he can remember writing the summary, and that in reading it today, he finds most of it meaningful, although he is no longer able to remember the original circumstances related therein. He only recalls that there was friction between Dr. Grover and Dr. Powell, and the general tenor of conversations that he had with them regarding their tension. Dr. Andrew testified that he would hesitate today to say what the source of their friction was, based on his memory.
[70] Dr. Andrew wa