Wilson v. Bank of Nova Scotia

Wilson v. Bank of Nova Scotia
Collection
Canadian Human Rights Tribunal
Date
2022-10-19
Neutral citation
2022 CHRT 34
File number(s)
T2570/12720
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Ruling
Decision status
Interim
Grounds
Colour
Disability
Family Status
Marital Status
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
34
Date:
October 19, 2022
File No.:
T2570/12720
Between:
Shawna Wilson
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Bank of Nova Scotia
Respondent
Ruling
Member:
Kathryn A. Raymond, K.C.
Table of Contents
I. Overview of Decisions 1
II. The Bank’s Motion About the Scope of the Complaint 1
A. Issues 1
B. The Facts 2
C. The Legal Context 3
D. The Parties’ Positions 5
The Respondent’s Position Respecting Scope of the Complaint 5
The Complainant’s Position in Response 6
The Commission’s Position in Response 7
E. Analysis & Findings 9
Introduction 9
What is Not in Issue 9
Implications for the Legal Arguments 10
Re-Framing the Issues 11
The Murray Decision is Relevant 12
The Key Point 13
Implications for Systemic Discrimination Claim 15
Can the Disputed Content Be Used for Purposes Beyond Liability? 17
Addressing Concerns About Prejudice 21
F. Addressing October 2011–2014 Events 21
G. Conclusion respecting 2010–2011 Allegations 22
III. Disclosure Motion 23
A. What Disclosure is Requested 23
B. Issues 23
C. Analysis & Findings 24
Working Using Other Staff Terminals or IDs 25
Ms. Wilson’s Employee ID 29
Employee ID and Accessing Documents 30
Witness Contact Information 31
IV. Orders For Both Motions 33
I. Overview of Decisions
[1] The Tribunal provides two preliminary rulings. The first confirms the existing scope of the allegations in the complaint; the second requires further disclosure by the Bank of Nova Scotia.
[2] The Bank of Nova Scotia seeks to strike portions of Ms. Wilson’s Statement of Particulars (“SOP”) and witness will-say that address allegations prior to November 24, 2014. The Bank says that the complaint that was referred to the Tribunal for inquiry by the Commission only involves allegations from November 24, 2014 to January 19, 2015. The Bank submits that this is because, in 2017, the Commission made a decision to deal only with the allegations in the complaint that span from November 24, 2014 to January 19, 2015.
[3] The Tribunal agrees that the allegations in the complaint are limited to those in the 2014–2015 period. Evidence of relevant events prior to November 24, 2014 may potentially be used as background narrative, context and/or substantive assessments respecting the 2014–2015 allegations to the extent and for the purposes consistent with this ruling. Issues respecting the relevance and admissibility of evidence prior to November 24, 2014 will be determined based upon the evidentiary record and submissions at the hearing. The key point is that any prior evidence offered must be relevant to the 2014–2015 allegations.
[4] The disclosure requested by Ms. Wilson that is required to be produced by the Bank of Nova Scotia is contact information for potential witnesses and certain documents relating to the use of her Employee ID. The latter requires the Bank to conduct a search that includes a search for electronic documents. The Tribunal has given preliminary directions respecting the parameters of the documents to be produced and offered suggestions about a methodology for the electronic search in the interests of the efficiency and proportionality of the electronic search.
II. The Bank’s Motion About the Scope of the Complaint
A. Issues
A) What is the scope of the complaint that the Commission referred to the Tribunal?
B) Can allegations from 2010–2011 included in Ms. Wilson’s SOP and will-say be determined by the Tribunal?
C) If the Commission did not refer the 2010–2011 allegations to the Tribunal for inquiry, can the disputed content still be considered for another purpose such as narrative information?
B. The Facts
[5] Shawna Wilson worked at the Bank of Nova Scotia as a customer service representative. The Bank of Nova Scotia (the “Bank”) alleged that she was involved in procedural irregularities contrary to the Bank of Nova Scotia’s Guidelines for Business Conduct and accordingly terminated Ms. Wilson. In contrast, Ms. Wilson alleges that the reason for her termination was based on protected grounds – in particular, her family or marital status, race or colour, and disability. In this case, the Tribunal will ultimately need to decide if any of these protected characteristics were a factor in Ms. Wilson’s termination.
[6] When complainants file a complaint with the Commission, they are required to identify the “Date of Alleged Discrimination”. Ms. Wilson’s complaint was filed with the Commission on January 18, 2016. It identified two time periods: 1) April 2010–April 2011 respecting alleged harassment based on race; and 2) November 2014–January 2015, related to an alleged discriminatory investigation into fraud and termination from employment, based on race, disability, marital status and family status.
[7] While the complaint identified April 2010 to April 2011 as the first period of alleged discrimination, the detailed description of the allegations within the complaint referenced somewhat different dates. The narrative of the complaint also describes events that occurred after Ms. Wilson went on disability leave in April 2011. Ms. Wilson alleges that, while she was on leave, she was harassed by her managers about taking medical leave and told she had to return to work, or she would be fired. She claims that her managers indicated to the disability benefits insurer that she was faking her disability, which led to a delay in receipt of benefits. She says that she received a letter of termination in September 2011 which was later rescinded by the Bank after she retained legal counsel. It appears that this issue was resolved in October 2011. Ms. Wilson then claims that, when she returned to work in November 2014, she was met with a discriminatory investigation and termination by the Bank. The remainder of the complaint addresses what occurred after she returned to work from medical leave.
C. The Legal Context
[8] The Commission has the authority pursuant to section 41 (1) of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (the “Act”) to screen out all or part of a complaint. This includes the authority to screen out complaints filed more than one year after the acts or omissions in issue.
[9] The Commission decided to screen out the part of Ms. Wilson’s complaint that allegedly occurred in 2010–2011 pursuant to section 41(1). The Commission made the decision that it would only consider and investigate the allegations in the complaint from the period November 24, 2014 to January 19, 2015. It did so for the following reasons:
…the allegations that span from mid-2010 to October 2011 are based on acts which occurred more than one year before the complaint was filed and which are separate and independent of the remaining allegations, and the complainant has not provided a reasonable explanation for the delay in filing.
The significant matters decided by the Commission are: 1) the complaint, which was filed in January 2016, was not filed within a year of the events in 2010–2011; 2) the delay in filing the complaint about these events spanned almost four and a half years from October 2011 to January 2016 and the Complainant provided no reasonable explanation for the delay; 3) the earlier allegations were found to be “separate and independent of the remaining allegations”; and 4) the Commission screened out the allegations from mid-2010 to October 2011.
[10] This decision (the “Section 41(1) Decision”) was communicated to the parties in a letter dated August 8, 2017. The Commission subsequently investigated and considered only the allegations dated November 24, 2014 to January 19, 2015. For reasons that do not need to be explained here, Commission staff subsequently prepared both a Report for Decision and a Supplementary Report for Decision that only dealt with the 2014–2015 allegations (normally only one Report for Decision would be prepared).
[11] The Board of Commissioners of the Commission makes final decisions for the Commission respecting what is referred to the Tribunal for inquiry. After reviewing these reports, the Board decided on November 18, 2020 to refer the complaint to the Tribunal (the “Referral Decision”), which it did pursuant to its authority in section 44(3) of the Act.
[12] The Decision was sent to the Tribunal by letter dated November 23, 2020 (the “Referral Letter”). A “Record of Decision” was attached to the Referral Letter. It consisted of three documents: 1) the Referral Decision; 2) an “Amended Summary of Complaint” form, which stated that November 24, 2014 to January 19, 2015 was the period of alleged discrimination; and 3) the original “Complaint Summary” form, described above, which identified the dates of the alleged discrimination as April, 2010 to April 2011 and November 2014 to January 2015.
[13] Following referral to the Tribunal, the parties were required to file SOPs as part of the Tribunal’s disclosure process. In paragraph 2 of her SOP, Ms. Wilson refers to the 2010–2011 allegations. Paragraph 2 states:
During her employment, Ms. Wilson was consistently harassed based on her race by her manager, Ms. Lamanna. As a result of this harassment, Ms. Wilson went on disability leave for chronic depression and anxiety in or around April 2011. While on disability leave, Ms. Lamanna and the branch manager (Mr. Nelson) continued to harass Ms. Wilson by calling her and telling her to return to work, or she would be fired. Ms. Lamanna and Mr. Nelson also reported to the insurer that Ms. Wilson was “faking” her disability, leading to a significant delay in Ms. Wilson receiving her disability payments.
[14] In paragraph 2 of her will-say statement, Ms. Wilson indicates that she intends to call evidence regarding the harassment she allegedly experienced in 2010–2011. In addition, Ms. Wilson states that she intends to testify that the harassment she experienced continued over the period 2011–2014 while she was on disability leave.
D. The Parties’ Positions
The Respondent’s Position Respecting Scope of the Complaint
[15] The Bank submits that the complaint referred by the Commission for inquiry by the Tribunal is limited to the period from November 24, 2014 to January 19, 2015, following the Commission’s Section 41(1) Decision to screen out the allegations from 2010–2011 and to only consider the allegations arising from the period November 24, 2014 to January 19, 2015. It asks that the content in Ms. Wilson’s SOP at para 2 and in para 2 of her will-say be struck so that these documents only address the allegations from November 2014–January 19, 2015. The Bank implies that, if this relief were granted, it would not permit the earlier allegations to be raised by Ms. Wilson at the hearing.
[16] The Bank filed a reply to clarify that it specifically agrees that events that occurred prior to 2014 and which explain what led to the investigation by the Bank and termination of Ms. Wilson are relevant. The Bank includes here Ms. Wilson’s alleged access to relevant customer information in 2009. The Bank’s objection relates to the inclusion of allegations that the Bank discriminated against Ms. Wilson and/or engaged in harassment on discriminatory grounds prior to 2014. This includes the specific allegations pertaining to the 2010–2011 period included by Ms. Wilson in her complaint, her SOP and the will-say she filed for this proceeding. The Bank also objects to the addition of what it describes as the “new” allegations of discrimination by Ms. Wilson concerning the events Ms. Wilson says occurred after October 2011, while she was on disability leave, and prior to her return to work in 2014.
[17] The Bank says it did not preserve any evidence about the 2010–2011 events because Ms. Wilson did not challenge the Commission’s decision to screen out that part of her complaint. The Bank asserts that it would be prejudiced if allegations which are more than 10 years old are permitted to proceed now, in these circumstances.
[18] The Bank’s submissions have been fully considered. It is not necessary to repeat them all here. The salient points are addressed below, which include two significant cases relied upon by the Bank: Murray v. Canada (Human Rights Commission), [2014] F.C. 139 (CanLII) (Murray) and Kowalski v. Ryder Integrated Logistics, 2009 CHRT 22 (CanLII) (Kowalski).
The Complainant’s Position in Response
[19] Ms. Wilson advances essentially three submissions for her position that the Bank’s motion should be dismissed. Her first submission is that the Tribunal has “broad powers to hear and amend complaints.” She says that the Tribunal can do so in the interests of procedural fairness and is not bound by a decision of the Commission respecting the temporal period of the complaint. Specifically, she submits that the Tribunal is not bound to follow a decision of the Commission respecting an issue of delay, citing Dumont v. Transport Jeannot Gagnon, 2001 CanLII 38314 (CHRT) (Dumont) at paras 11-13 in this regard. She suggests that, similarly, this would apply to the Commission’s Section 41(1) Decision which addresses the temporal period of the complaint. Ms. Wilson further submits that the Tribunal has the authority to amend a complaint post-referral and hear related evidence where fairness requires that result.
[20] Ms. Wilson’s second submission is that the Tribunal should hesitate to strike content from a party’s SOP given that 1) the Tribunal has not heard the evidence, and 2) the Act should be interpreted in a broad and purposeful manner to give full effect to the rights of individuals to live their lives free from discrimination.
[21] Ms. Wilson’s third argument is that she is alleging in her SOP and her will-say that the conduct she complained of was part of a systemic discrimination problem at the Bank. She emphasizes that both background and contextualizing allegations play an important role in cases involving systemic discrimination. She cites Richards v. Correctional Service Canada, 2020 CHRT 27 (CanLII) (Richards) at para 110, for the proposition that the Tribunal is entitled to consider systemic evidence to determine whether a complainant has suffered discrimination. As well, she points out that Richards recognizes that systemic discrimination allegations are “notoriously difficult to prove and often a continuing phenomenon”, at para 107, which further underscores the importance of considering all relevant evidence.
[22] Ms. Wilson argues that allegations of systemic discrimination should not be struck “where they are sufficiently linked to the fabric of the complaints to be within the scope of the inquiry.” Ms. Wilson links the 2010–2011 events and the 2014–2015 complaint in her submissions for the motion, at para 5, as follows:
5. …After being harassed and then placed on disability leave in April 2011, the (sic) Ms. Wilson’s next direct interaction with the Respondent about her employment was the November 2014 interrogation/termination. Those two events are necessarily connected with each other. They are necessarily bound by the prevailing culture within the Respondent prior to 2014 – a culture that Ms. Wilson says is defined by institutionalized discrimination. Ms. Wilson submits that her evidence on the pre-2014 period will influence the Tribunal’s decision on whether discrimination occurred – and its virulence - in the 2014-2015 period. It is evidence that must be heard.
6. Ms. Wilson submits that to do otherwise would be to ignore the “systemic” part of systemic racism. If a claimant can not look at historical at events to contextualize more contemporary examples of intersecting discrimination, then the very concept of systemic racism is of no force for claimants like Ms. Wilson, and of no meaning to the Tribunal.
[23] Ms. Wilson submits that if the Tribunal does not include the evidence and allegations from 2010–2011 in its assessment of liability, its decision will be seriously flawed respecting the issue of whether discrimination occurred in 2014–2015, and whether discrimination is systemic within the Bank.
[24] In addition to these arguments, Ms. Wilson adopts and relies upon the “Law” portion of the Commission’s submissions.
The Commission’s Position in Response
[25] The Commission framed the issues in this motion as being 1) whether the disputed content in the Complainant’s SOP should be struck considering the overall content of the SOP; and 2) whether the content is background and contextual information or a substantially new allegation. The Commission contends that the dates of the complaint do not preclude consideration of evidence that pre-dates or post-dates the period expressly referenced in the complaint. Like Ms. Wilson, the Commission submits that it is premature for the Respondent to object to evidence outside the period in the complaint without a full evidentiary record. The Commission says that the disputed content consists of introductory paragraphs that help explain what led to the period of 2014–2015 that, in turn, led to the alleged discriminatory termination of Ms. Wilson. The Commission urges that this content not be read in isolation.
[26] The Commission further submits that the Act gives the Tribunal a broad discretion to hear complaints, citing sections 48.9(1), 48.9(2), 49 and 50. The Commission relies on Polhill v. Keeseekoowenin First Nation, 2017 CHRT 34 (CanLII) at para 14, citing Canada (Attorney General) v. Parent, 2006 FC 1313 (Parent), as authority for the principle that this includes that the Tribunal has the authority to amend complaints.
[27] The Commission also places notable reliance upon Richards, which it submits summarizes the key principles derived from the case law. The Commission implicitly submits that the key case law is Carpenter v. Navy League of Canada, 2015 CHRT 8 (CanLII) at para 40; AA v. Canadian Armed Forces, 2019 CHRT 33 (CanLII); Connors v. Canadian Armed Forces, 2019 CHRT 6 (CanLII); Desmarais v. Correctional Service of Canada, 2014 CHRT 5 (CanLII) at paras 55-56; Sugimoto v. Royal Bank of Canada, 2006 CHRT 2 (CanLII); Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 at paras 141-142; Casler v. Canadian National Railway, 2017 CHRT 6 (CanLII) (Casler); Parent at para 30; Kanagasabapathy v. Air Canada, 2013 CHRT 7 (CanLII) at paras 29-30; and Gaucher v. Canadian Armed Forces, 2005 CHRT 1 (CanLII) at para 9. The principles in these cases include that the Tribunal will not strike factual assertions that are relevant to the complaint.
[28] On the issue of relevance, the Commission submits that there must be some factual foundation in the complaint that establishes a reasonable nexus with what is in the Statement of Particulars. A brand new allegation not reasonably connected to anything in the complaint, essentially a new complaint, is not permitted. As stated in Casler at para 7, the Tribunal is to ensure that there is a link to the allegations giving rise to the original complaint and that it is not bypassing the Commission’s referral mandate under the Act. In other words, a determination of scope or amendment cannot introduce a substantially new complaint that was not considered by the Commission.
[29] The Commission further submits that the Murray decision relied upon by the Bank is distinguishable and is not applicable to this motion because the impugned content in this case is meant as background contextual evidence.
E. Analysis & Findings
Introduction
[30] What is not in issue in this motion is highly relevant to the Tribunal’s framing of the issues and its ruling about the scope of the complaint. It also is relevant to the Tribunal’s determination of the applicability and usefulness of the case law provided.
What is Not in Issue
[31] It is not disputed that the Commission has the authority to screen out all or part of a complaint pursuant to section 41(1) of the Act. It is not disputed that the mid 2010–October 2011 allegations were screened out by the Commission. There is a final and binding Section 41(1) Decision by the Commission of August 8, 2017 to this effect. Ms. Wilson does not suggest otherwise; rather her submissions relate to fairness, the jurisdiction of the Tribunal to permit the complaint to include what the Commission screened out and the scope of the evidence required to permit the issues in the complaint, including the systemic issues, to be decided.
[32] Motions to clarify the scope of a complaint can arise because there is an ambiguity respecting what was referred to the Tribunal based on the history of the complaint. The Tribunal has ruled that when the Tribunal does need to consider the history of a complaint for purposes of a motion to determine the scope of the complaint, formal, binding decisions of the Commission constitute the history of the complaint: Jorge v. Canada Post, 2021 CHRT 25 (CanLII) at para 225. Formal decisions include, for example, a section 41(1) decision and the Commission’s decision respecting what is referred to the Tribunal. In this case, no ambiguity has been identified about the content of decisions of the Commission respecting what was referred to the Tribunal or otherwise respecting the history of this complaint. This includes that the Commission made no attempt to establish any ambiguity about what it referred to the Tribunal in its submissions.
Implications for the Legal Arguments
[33] Some of the caselaw the Commission and Ms. Wilson rely upon considered ambiguities about what was referred to the Tribunal based on the history of the complaint. Because no ambiguity is alleged here, that case law has limited relevance. It does not address the primary circumstances in this case.
[34] These parties also rely upon case law that permits amendment of a complaint when the proposed new content falls within the scope of the complaint because there is a nexus between the proposed new content and the complaint. The Commission acknowledges that this is to be distinguished from allegations that effectively consist of a new complaint, which is not permitted. In the latter case, the case law is clear that parties are not permitted to circumvent or avoid the Commission’s referral process.
[35] The Commission has exercised its discretion respecting referral in issuing a Section 41(1) Decision that concerns the disputed content in issue here. The Commission’s submissions focus on the law respecting amendments in cases where there is no pre-existing relevant decision of the Commission specifically addressing the content of a proposed amendment. Casler concerned a decision of the Commission pursuant to section 41(1). However, that decision was negated by subsequent decisions on judicial review, and a re-referral of a broader complaint by the Commission. In the result, there was no binding section 41(1) decision that limited the temporal aspect of the complaint. The Commission’s submissions do not explain 1) why Ms. Wilson should be permitted to circumvent the Commission’s Section 41(1) Decision and its referral process; and 2) why Ms. Wilson should be permitted to resurrect “old” allegations that were previously found to be “separate and independent” from the 2014–2015 allegations and dismissed by the Commission.
Re-Framing the Issues
[36] The issue, with respect, is not whether the disputed content in the Complainant’s SOP should be struck considering the overall content of the SOP. This approach fails to consider the existence of the Commission’s Section 41(1) Decision.
[37] Further, the issue is not, as the Commission suggests, whether the content is background and contextual information or a substantially new allegation. It is not the case that the content is only sought to be included for background and context. Ms. Wilson describes the content as “background and contextualizing allegations in the context of cases involving systemic discrimination” (emphasis added). Ms. Wilson takes the position that this content is part of a systemic discrimination issue at the Bank and is highly important such that its omission would constitute a serious flaw in the Tribunal’s decision. Ms. Wilson requests that the Bank’s motion objecting to the disputed content be dismissed in its entirety. This would permit the disputed content to remain and be used for all purposes, including determinations of liability. The Tribunal concludes that the primary intent of the requested inclusion of this content is for purposes of liability. Nor, as the Commission submits, is the issue whether the impugned content a substantially new allegation. The content was addressed by the Commission’s Section 41(1) Decision.
[38] Only the content referencing the bridging period between October 2011 and November 2014 is arguably “new”. It was not mentioned in Ms. Wilson’s complaint. However, this time period is simply referenced in Ms. Wilson’s will-say without any particulars about what allegedly happened that would be arguably relevant to the allegations in 2014–2015. Without particulars from Ms. Wilson, the Tribunal cannot conclude that there is a new allegation within this time period and assess its relevance to the existing complaint, as referred.
[39] As stated at the outset, the issues are properly reframed as:
1) What is the scope of the complaint that the Commission referred to the Tribunal?
2) Can the disputed allegations in 2010–2011 be determined by the Tribunal? and,
3) If the Commission did not refer the 2010–2011 events to the Tribunal, can they still be considered for another purpose, such as narrative information?
The Murray Decision is Relevant
[40] As indicated, the Commission and Ms. Wilson argue that the Murray case relied upon by the Bank should be distinguished and is inapplicable. The Tribunal concludes that Murray is more on point than other case law relied upon in this motion.
[41] In Murray, the Federal Court judicially reviewed a decision by the Commission to dismiss a complaint. The Federal Court decided, based on the parties agreeing to such an order, to refer two issues back to the Commission for further investigation. The Commission then referred the complaint, using broad language, to the Tribunal. The language did not specify that the referral was narrowed to those two issues. A dispute arose before the Tribunal about the scope of the complaint. On judicial review of the Tribunal’s decision on this issue, the Federal Court held that only allegations related to the two issues that were referred back to the Commission could be referred forward to the Tribunal. The court in Murray held that “the Commission’s [referral] letter cannot be disconnected from the long history of the complaint and the context into which the Tribunal was being seized of Mr. Murray’s complaint.” The “long history and context” was a prior decision by the Federal Court that determined that the Tribunal was only seized of two issues and, therefore, could only refer two issues to the Tribunal. In other words, in Murray, the history of the complaint was relevant. What was relevant and appropriate history to consider was the prior decision of the Federal Court to refer two issues to the Commission to reconsider.
[42] Likewise, the history of the complaint is relevant here. That history is the Section 41(1) Decision of the Commission. Both Murray and this case share the commonality of a pre-existing binding decision that must be respected. Murray is relevant to the Tribunal’s consideration of the scope of the complaint referred to it because the court in Murray addressed what was not within the jurisdiction of the Commission in that case.
[43] The cases to which the Commission and Ms. Wilson refer do not involve prior decisions of the Commission to not permit content in a complaint to proceed. They do not involve a Commission’s decision to not refer content in a complaint to the Tribunal. They are, therefore, not particularly helpful to the Tribunal.
The Key Point
[44] The Tribunal understands that Ms. Wilson believes that the Tribunal has the authority and discretion to amend her complaint despite the Section 41(1) Decision by the Commission. Ms. Wilson is adamant that the Tribunal must consider the 2010–2011 allegations to find that discrimination occurred in 2010–2011, to find liability again in 2014–2015, and to provide a foundation for a ruling that systemic discrimination has occurred in her case, as argued in her submissions.
[45] However, and this is the key point of this ruling, the Tribunal does not have the authority to amend a complaint to re-insert content into a complaint that has been lawfully removed by a formal decision of the Commission as an exercise of its statutory authority. Any amendment sought by a party must involve content not previously ruled out by the Commission for the Tribunal to have jurisdiction to amend. Otherwise, the Tribunal would engage in a review of a Commission decision not to deal with part of a complaint pursuant to section 41(1), which it cannot do.
[46] In this regard, the Tribunal does not agree with Ms. Wilson’s interpretation of Dumont. Dumont is distinguishable because it addresses the Tribunal’s continued discretion to address a complaint once it has been referred for an inquiry. In contrast, Ms. Wilson is asking the Tribunal to consider allegations that have been specifically screened out and dismissed by the Commission. That is a decision that ends a matter as opposed to a decision of the Commission that directs that a matter proceeds.
[47] The Tribunal does not have the power to review the way in which the Commission chooses to exercise its discretion to not consider all or part of a complaint pursuant to Section 41(1) of the Act for reasons of delay, fairness or for any other reason. In short, the reasons argued by Ms. Wilson for amendment of the complaint to re-insert content that the Commission screened out are not properly considered by the Tribunal. The Tribunal lacks jurisdiction to do so.
[48] In this regard, it is highly relevant that Ms. Wilson is attempting to re-introduce now the same arguments that were in her original complaint respecting the April 2010–October 2011 period. The factual allegations of harassment prior to her return to work in 2014 in the original complaint are further particularized in paragraphs 7-14. They primarily involve alleged harassment by her managers based on race leading to disability requiring a leave from work, followed by discriminatory interference with her medical leave and benefits. Ms. Wilson continued to explain the relevance of the earlier allegations at paragraphs 20-23 in her original complaint and the continuing nature of her allegations. Her main points are underscored below:
20.Ms. Wilson was terminated and “targeted" at Scotiabank for a series of intersecting reasons: her disability leave, her race, and the identity of her former common-law partner, in violation of 3(1), 7(a) and 14(1)(c) of the Canadian Human Rights Act.
21.First, Ms. Wilson was harassed during her employment on the basis of her race. This long-standing harassment was condoned by Mr. Nelson.
22.Second, Ms. Wilson was harassed while on disability-leave. Her disability was aggravated by receiving calls from Ms. Lamanna and Mr. Nelson telling her to return to work or she would be fired, by the delay in receiving her disability insurance payments, and by learning that this delay was the direct result of Ms. Lamanna and Mr. Nelson reporting that Ms. Wilson was “faking" to the insurer.
23.In the final culminating incident, Scotiabank brought Ms. Wilson in for a meeting to discuss her return to work, and used this meeting to accuse her of fraud without evidence or warning. These allegations were based solely on the identity of Ms. Wilson's common-law partner, who unbeknownst to Ms. Wilson, had been criminally charged with fraud.
24.Scotiabank's desire to “get rid" of Ms. Wilson had already been clearly established through the way in which she was treated during her employment and while on disability leave. Scotiabank used these unsubstantiated allegations of fraud as an excuse to terminate her employment instead of accommodating her return to work. (emphasis added)
[49] The allegations of harassment said to have occurred both before and during her medical leave, up to October 2011, were screened out by the Commission. Ms. Wilson’s SOP and will-say contain nothing substantively new in this regard. The only exception is the addition of the October 2011–2014 allegation for which no particulars or substantive information is provided. The Tribunal does not have the jurisdiction to decide whether to uphold allegations that were expressly excluded from consideration as part of the complaint by the Commission in a decision that was not challenged in 2017 and became final. This is so even if the Commission reached an unreasonable decision. The Tribunal has no jurisdiction to change that result.
Implications for Systemic Discrimination Claim
[50] Before leaving the issue of whether the 2010–2011 allegations are included in the scope of the complaint, Ms. Wilson’s assertion that this is a complaint about systemic discrimination should receive further comment. There is no express mention of systemic discrimination in Ms. Wilson’s complaint, her SOP or her will-say, as there is in the submissions she filed for this motion. However, with regard to the emphasized portion of the quotation above from paras 20-23 of her original complaint, Ms. Wilson asserted what may possibly be a generalized basis for such a claim in her original complaint or aspects of systemic discrimination. She claims that the Bank’s desire to get rid of her had been established in 2010–2011, that her treatment upon her return to work was a “culminating incident”, and that there were intersecting grounds to the discrimination she allegedly experienced. To be clear, the Tribunal is making no decision here about systemic discrimination. It is understood that Ms. Wilson wishes for the Tribunal to make a finding of ongoing systemic discrimination based on a combination of the 2010–2011 and the 2014–2015 allegations and/or on the alleged basis that the discrimination (on different but intersecting grounds) continued over the 2010–2015 period.
[51] The Commission had an opportunity to investigate the facts before making its Section 41(1) Decision and appears to have concluded that the alleged discrimination in 2010–2011 ended in October 2011. Based on the available record, it is possible that this is because the discriminatory actions alleged to have been taken by the Bank respecting Ms. Wilson’s disability appeared to have ceased and/or been corrected by October 2011. It may have appeared to the Commission that Ms. Wilson simply remained on disability leave after October 2011. Ms. Wilson did not file a complaint by October 2012, within the statutory time limit. In her complaint, Ms. Wilson did not allege further discriminatory interaction with the Bank until it became time for her to return to work.
[52] The Commission also had an opportunity to consider the 2014–2015 allegations at the same time it considered the 2010–2011 allegations. This is significant. As noted, the Commission found in its Section 41(1) Decision that the earlier allegations are “separate and independent of the remaining allegations”. It reached this conclusion after presumably considering both sets of allegations in the complaint. The Commission likely turned its mind to whether the alleged discrimination continued from 2011 until 2014, when Ms. Wilson returned to work, to determine whether the discrimination was ongoing, as this is a foundational factual determination when a complaint may have been filed out of time.
[53] Today the Commission’s Section 41(1) Decision, which is based upon its finding that the earlier allegations are separate and independent from the later allegations, has the practical effect of determining that the complaint does not involve a continuation of systemic discrimination spanning the entire period of 2010–2015 based on all allegations of discrimination in the complaint, as filed. The Tribunal is not free to decide for purposes of liability that the earlier allegations are not separate and independent from the 2014–2015 allegations. To do so would be to find that the discrimination alleged in the complaint, systemic or not, was of a related and continuing nature. Such a conclusion would negate the Section 41(1) Decision. Again, even if the Section 41(1) Decision is unreasonable, the Tribunal has no jurisdiction to change that final decision.
[54] However, that does not mean that there can be no claim of systemic discrimination within the permitted time period of the complaint that was referred to the Tribunal. Rather, the effect of this determination by the Commission is to negate potential liability for systemic discrimination over the entire 2010–2015 period by requiring that the 2010–2011 allegations in the complaint not be considered as allegations that can give rise to liability on their own or in addition to the later allegations.
[55] The submissions Ms. Wilson filed for the motion reference systemic discrimination, racial profiling and intersecting grounds of discrimination. It will be appropriate to clarify what legal issues are included in the complaint before the Tribunal. This issue will be addressed in case management.
Can the Disputed Content Be Used for Purposes Beyond Liability?
[56] The Tribunal has considered whether paragraph 2 of the SOP and the corresponding portion of Ms. Wilson’s will-say can remain as narrative. In this context, “narrative” means that the disputed content would remain for purposes of background, to aid the Tribunal’s understanding of the events that occurred and for factual and evidentiary assessments but would not form a basis for a finding of liability against the Bank for the period 2010–2011.
[57] Parties are to include only relevant information in their SOPs. Likewise, evidence presented at the hearing must be relevant. Relevant background and contextual evidence about events that precede the actual allegations in a complaint are regularly permitted in proceedings before this Tribunal.
[58] However, in this case, the Tribunal must consider and reconcile several procedural concerns. For one matter, the Commission’s Section 41(1) Decision must be respected. The Tribunal should not signal that it is possible for parties to “work around” a final and binding decision of the Commission by labelling the content as narrative or contextualizing evidence. This is a concern because the specific facts that give rise to the 2010–2011 allegations in the complaint would likely be asserted at the hearing.
[59] Also, there may be a significant amount of “background information” in this case. Hearing additional evidence that possibly may not turn out to be directly relevant to the issue of liability or that could potentially give rise to further issues would not bode well for the efficiency and focus of the hearing. If the information is permitted as background, the Bank will likely wish to respond because of the subject matter. Given the Tribunal’s direction to the parties respecting the issue of prejudice below, it is reasonable to also anticipate that the Bank, Ms. Wilson or the Commission may wish to address concerns about prejudice at the hearing. This may add considerably to the complexity and length of the hearing.
[60] Of further potential concern, as noted, the dispute over this content extends beyond its use as mere background. The issue of its use to establish liability, including systemic discrimination, for the 2010–2011 alleg