Singh v. Canada (Senate)

Singh v. Canada (Senate)
Court (s) Database
Federal Court Decisions
Date
2022-06-07
Neutral citation
2022 FC 840
File numbers
T-227-21
Decision Content
Date: 20220607
Docket: T-227-21
Citation: 2022 FC 840
Toronto, Ontario, June 7, 2022
PRESENT: Mr. Justice Diner
BETWEEN:
DARSHAN SINGH
Applicant
and
SENATE OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] At the time of his hiring into the Senate of Canada’s administration as Director of Human Resources in 2013, Darshan Singh was the first person of colour ever to join the Senate’s Executive team. On December 3, 2015, the Senate terminated Mr. Singh’s employment without cause.
[2] Mr. Singh filed a grievance on the basis of unlawful and discriminatory treatment. The grievance was originally heard in 2017 but the adjudicator assigned to hear the matter tragically passed away before a decision was rendered. A new hearing was conducted in February and March 2020 by another adjudicator [the Adjudicator], named by the Federal Public Sector Labour Relations and Employment Board [the Board] to hear Mr. Singh’s grievance, pursuant to s 63 of the Parliamentary Employment and Staff Relations Act, RSC 1985, c 33 (2nd Supp) [PESRA].
[3] Mr. Singh alone testified in support of his grievance. He called no additional witnesses. The Senate called (i) Nicole Proulx, the Senate’s Chief Corporate Services Officer [CCSO] and Mr. Singh’s direct superior at the time of his dismissal; (ii) Jules Pleau, Chief of Staff to Senator Nolin; (iii) Michel Patrice, Parliamentary Counsel; and, (iv) Senator Leo Housakos. The witnesses were excluded from one another’s testimony. Each was rigorously cross-examined.
[4] In a detailed 150-page decision dated January 7, 2021 [Decision], the Adjudicator began by outlining the factual context of the grievance and the opening statements of the Parties, and provided a lengthy summary of the testimony and documentary evidence provided by each witness, beginning with Mr. Singh, and proceeding subsequently with the witnesses for the Senate. The Adjudicator then outlined each side’s legal arguments.
[5] The Adjudicator ultimately dismissed Mr. Singh’s grievance. This is a judicial review of that Decision, brought pursuant to 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Act]. After considering the record and submissions, I find that the Adjudicator made three reviewable errors. As a result, I will grant this judicial review for the reasons that follow.
II. Factual Background
[6] At the time of his termination in December 2015, Mr. Singh was the Director of the Human Resources [HR] Directorate. Prior to joining the Senate, Mr. Singh had occupied senior positions in various departments and agencies across the federal public service including at the Canada Revenue Agency, the Public Service Commission, the Department of Public Safety and Emergency Preparedness, and the Canada School of Public Service.
[7] In October 2013, Mr. Singh began a one-year term as Director of HR at the Senate. His term was extended by six months in August 2014. When he joined, he reported directly to the Clerk of the Senate, Mr. Gary O’Brien, with whom he had a good relationship. At that time, Ms. Proulx was the Director of Finance and Procurement, and Chief Financial Officer.
[8] In November 2014, Mr. O’Brien announced his retirement. This event, along with others that had placed the Senate under public scrutiny, prompted its then-Speaker, Senator Nolin, to implement a new administrative structure. The new structure, implemented in January 2015, included the creation of an executive committee, made up of three sector chiefs: (i) the Clerk of the Senate and the Parliaments, (ii) the Law Clerk and Parliamentary Counsel, and (iii) the CCSO.
[9] At the same time as this corporate reorganization was taking place, Mr. Singh was offered the role of Director of HR on a permanent basis, which he accepted. Where previously the Director of HR had reported directly to the Clerk of the Senate, the new structure meant that Mr. Singh would be reporting to the new CCSO. Ms. Proulx, who had formerly been Mr. Singh’s Director-level colleague in Finance, was promoted to CCSO, meaning that her responsibilities would now include oversight of HR matters and Mr. Singh would report to her.
[10] In addition to the changes to its corporate structure, the Senate also adopted changes to practices pertaining to staff attendance at meetings of the Standing Committee on Internal Economy, Budgets and Administration [the Standing Committee] and the Steering Committee. Whereas previously all directors would attend Standing Committee meetings, the senators decided that only member senators and the new Executive Committee (Messrs. Patrice and Robert, and Ms. Proulx) would attend. This meant that going forward, director-level employees, which included Mr. Singh, would only attend Standing Committee and Steering Committee meetings on invitation from the Chair of the respective committee. Finally, the Standing Committee’s Subcommittee on Senate Estimates decided to request a functional review of the HR Directorate in the spring of 2015, which ended up being conducted that fall.
[11] Over the course of 2015, Mr. Singh’s relationship with Ms. Proulx deteriorated progressively. Mr. Singh felt he was being micromanaged by Ms. Proulx, that she was going around him to his subordinates, and that he was rarely being invited to attend committee meetings. He further felt that Ms. Proulx would not clearly communicate with him about what she was presenting to the committees pertaining to his directorate. He was also surprised to learn that his directorate would be undergoing a functional review.
[12] Mr. Singh felt that Ms. Proulx was treating him differently than other directors who reported to her, on the basis of his race and colour. Mr. Singh is a brown man of South Asian descent. As mentioned above, he was the first, and only, visible minority employed at the Senate’s director-level during the years at issue.
[13] The acrimonious relationship between Mr. Singh and Ms. Proulx came to a head in November 2015 during the budget process. Mr. Singh intended to make a budget request to members of a particular subcommittee. On the morning of November 16, 2015, Ms. Proulx came to his office unannounced with one of his new colleagues and instructed him to remove his items from the budget process. Mr. Singh felt humiliated and upset.
[14] Mr. Singh’s frustrations with the situation culminated when he sent a lengthy email on November 24, 2015 to Ms. Proulx [the November 24 email]. Mr. Singh set out, in detail, the issues he had with his treatment and supervision at the Senate. Mr. Singh’s complaints included allegations that: he was not being properly consulted on HR matters; Ms. Proulx was acting contrary to her role by failing to provide complete and accurate information, and present options to senators; he was not invited to attend committee meetings or made aware of what was being presented on HR matters; and, that it was illogical for Ms. Proulx to have decided to conduct a review of the HR Directorate. He also stated that he felt he was being treated differently by her as a result of his race and colour.
[15] Mr. Singh concluded his November 24 e-mail by formally requesting temporary changes to the corporate structure of the Senate, whereby HR would fall under another member of the Executive Committee. Alternatively, he suggested that going forward, any information provided to the Senate, the Executive Committee or to clients, be assumed not to come from HR unless Mr. Singh signed off in writing. He also requested that a mission statement be communicated to all employees and that the differential treatment he was experiencing cease immediately. Mr. Singh indicated he did not wish to discuss the matter further, and that no response was required, only decisions on his requests.
[16] Ms. Proulx forwarded a copy of Mr. Singh’s November 24 e-mail to the two other members of the Executive Committee, namely Charles Robert and Michel Patrice. On November 25, 2015, a meeting took place between Mr. Singh and Messrs. Robert and Patrice. Mr. Singh testified that he was informed that he would temporarily report to Mr. Robert, and that an investigation would be conducted into the allegations he raised in his November 24 e-mail. By contrast, Mr. Patrice testified that he and Mr. Robert advised Mr. Singh only that they would recommend to the Steering Committee that an investigation be conducted.
[17] Mr. Singh followed up this meeting with an e-mail to Messrs. Robert and Patrice on November 26, 2015 [the November 26 e-mail], in which, among other things, Mr. Singh indicated his understanding that an investigation would be launched, and that per the Senate Policy on the Prevention and Resolution of Harassment [the Policy], the Steering Committee would be informed. He explained that his November 24 e-mail was not presented as a complaint, that he had not requested an investigation, and that he would be open to other means of resolving the matter. However, Mr. Singh noted his familiarity with the complaint process and that if an investigation was to take place, he wished to be involved in defining its scope.
[18] Mr. Singh’s November 24 e-mail to Ms. Proulx was communicated to then-Senate Speaker, Senator Housakos, who determined that a formal investigation was not warranted and decided instead to investigate the allegations himself. Senator Housakos dismissed the allegations regarding attendance at committee meetings and the functional review of HR as baseless, since these were corporate decisions made by him and his Senate colleagues, and not by Ms. Proulx. He also rejected the allegation about Ms. Proulx withholding HR information from senators as baseless, noting that if there were any issue of transparency, it was up to Mr. Singh to raise it with the Speaker directly, which he had never done.
[19] Senator Housakos was nonetheless troubled by the allegations of discrimination. He therefore conducted his own informal investigation to look into the discrimination allegations, speaking with Ms. Proulx, 12 other senators who knew and had worked with her, in addition to some middle managers, including someone senior in the HR Directorate. The Speaker did not consult Mr. Singh. Ultimately, Senator Housakos concluded the discrimination allegations had no merit.
[20] On December 3, 2015, Mr. Singh was dismissed without cause from his position with the Senate, effective immediately. The letter of termination provided the reason as “the breakdown of confidence and trust which are essential to the viability of your employment relationship” and that the loss of confidence and trust was “primarily as a result of your attitude and behaviour towards the [CCSO].”
[21] Mr. Singh’s termination letter also cited his serious allegations of misconduct against Ms. Proulx, including that she misled senators, noting that his attitude and behaviour reflected an unwillingness or inability to accept the supervisory authority of his superior, citing his initiative to remove himself from Ms. Proulx’s purview. The letter indicated that Mr. Singh’s dismissal was not a response to the discrimination concerns he had recently expressed, but rather his attitude and behaviour towards his superior. Specifically, this section of the letter provided:
In anticipation of the possibility that you may believe or claim that the termination of your employment was in response to concerns of discrimination that you recently expressed regarding the CCSO, I assure you that is not the case. The Senate's decision is the result of an assessment of the entire history of your behaviour and attitude since the spring of 2015, and of the cumulative effect of your actions.
[22] The letter indicated that his behavioural problems had begun when Ms. Proulx had investigated the circumstances surrounding the establishment of his terms of employment with the Senate, for which he had been reprimanded in June 2015. I note that Ms. Proulx testified that the Executive Committee never communicated the June reprimand to the senators, and Senator Housakos confirmed in his testimony that he never knew of it.
[23] On December 17, 2015, Mr. Singh filed a grievance pursuant to s 62 of PESRA, contesting his dismissal and the actions surrounding it as unlawful and discriminatory, pursuant to ss 7, 10 and 14 of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].
III. Adjudicator’s Analysis of the Grievance
[24] The Adjudicator acknowledged Mr. Singh’s reference to Canada (House of Commons) v. Vaid, 2005 SCC 30 at paragraphs 82 and 88, where the Supreme Court of Canada [SCC] confirmed that the CHRA applies to the Senate. She noted that Mr. Singh alleged three distinct acts of discrimination: (A) differential treatment and harassment by Ms. Proulx and the Senate, contrary to ss 7 and 14 of the CHRA; (B) a failure to investigate the racial discrimination allegations, contrary to ss 7 and 10 of the CHRA, and (C) the retaliatory termination of employment for raising discrimination allegations, contrary to ss 7 and 14 of the CHRA.
[25] The Adjudicator then outlined the three-part test for establishing a prima facie case of discrimination, citing Shaw v. Phipps, 2012 ONCA 155 at paragraph 14 and Turner v. Canada Border Services Agency, 2020 CHRT 1 at paragraph 45 [Turner]. She also detailed the remedies sought by Mr. Singh, including reinstatement and damages, in addition to aggravated damages for a wrongful termination conducted in bad faith.
[26] After providing a similarly detailed summary of the Senate’s position, the Adjudicator provided reasons for her findings at paragraphs 569 through 731 of the Decision. The Adjudicator began by noting that Mr. Singh had conceded that the Senate had the right to dismiss him with notice or pay in lieu of notice, and that she would focus her reasons on the dispositive issues raised with respect to the CHRA allegations. She ruled on each of the three major grounds raised by Mr. Singh, concerning (A) discrimination, (B) the Speaker’s deficient investigation, and (C) retaliation, as follows.
A. Differential treatment (discrimination)
[27] The Adjudicator considered the differential treatment allegations of Mr. Singh, and determined that those allegations were insufficient to create a prima facie case of discrimination.
[28] The Adjudicator noted that there was no disputing that Mr. Singh’s race and colour are protected characteristics under the CHRA and that he experienced an adverse impact when his employment was terminated. Correspondingly, she noted the only issue was whether Mr. Singh’s race and colour were factors in the decision to terminate him.
[29] The Adjudicator also acknowledged the possibility for both conscious and unconscious discrimination, that there was no requirement to prove intention in order to establish a prima facie case, and that while a single instance could be sufficient, it was also important to look to the entire constellation of events that might lead to a conclusion that discrimination was a factor. She noted that discrimination and racism take place in various workplaces in Canada, but stressed the importance they not be confused with disagreements - even major ones - between an employee and their supervisor.
[30] The Adjudicator found that a great deal of evidence had shown profound disagreements and misunderstandings between Mr. Singh and Ms. Proulx about their work and reporting relationship. However, she observed that while the management style may have been questionable, there was no evidence to support that Mr. Singh’s race or colour played any factor in their acrimonious working relationship or any of the examples of purportedly differential treatment alleged by Mr. Singh. The Adjudicator also noted that Mr. Singh did not call a witness.
[31] The Adjudicator was convinced that the heart of the problem between Ms. Proulx and Mr. Singh was his failure to accept changes to his reporting relationship, and the hands-on management style of his supervisor, which degenerated to the point that the relationship was definitively broken. As a result, the Adjudicator concluded that Mr. Singh failed to meet his burden of establishing a prima facie case in relation to his differential treatment arguments.
B. The failure to investigate
[32] Regarding Mr. Singh’s contention that the Senate failed to investigate his allegations of discrimination, the Adjudicator considered his submissions that (i) the Policy was not followed, (ii) he had not been consulted during Senator Housakos’ informal investigation, and (iii) in that investigation, Senator Housakos had only interviewed white senators.
[33] The Adjudicator considered the relevant parts of the Policy, observing that the process of screening, reviewing and investigating complaints refers to “formal” complaints. She also observed that in his November 26 e-mail, Mr. Singh had indicated he was familiar with how the complaint process worked and that he had neither intended to make a formal complaint, nor had he requested an investigation. The Adjudicator concluded that the evidence did not establish a prima facie case that Mr. Singh had made a complaint about Ms. Proulx, and that under the circumstances, she did not believe there was any obligation for the Senate to investigate. She then reiterated that form should not be an obstacle to substance and noted that in any event, the allegations were in fact, investigated.
[34] Taking into account the finding that there was no (i) obligation to investigate, or (ii) prima facie discrimination, the Adjudicator relied on Scaduto v. Insurance Search Bureau, 2014 HRTO 250 [Scaduto] for the principle that a failure to investigate does not in itself amount to a contravention of the CHRA when there has been no finding of discrimination.
[35] The Adjudicator also found that in any event, Senator Housakos had taken reasonable steps to verify the allegations. She noted that he dismissed three of the four allegations that he personally knew to be baseless. Furthermore, the Adjudicator distinguished these circumstances from those in Payette v. Alarm Guard Security Service, 2011 HRTO 109 [Payette], cited by Mr. Singh. In Payette, no investigation at all had taken place, simply because the respondent in that case was not considered to be the kind of person who would do what was alleged. The Adjudicator found in contrast that Senator Housakos had been troubled by the discrimination allegations, and had chosen to interview both senators and employees, before concluding that these allegations, like the others, had no merit.
[36] The Adjudicator also contrasted the circumstances from those in Nelson v. Lakehead University, 2008 HRTO 41 [Nelson], where a complaint of age discrimination by a professor had been summarily dismissed. In that case, the Tribunal was not convinced that the response was reasonable, as the Dean had acknowledged not knowing about some of the allegations that were made. The Adjudicator stressed that in the present case, on the other hand, Senator Housakos only dismissed out of hand the allegations that he knew personally to be baseless, while he looked into the more serious discrimination allegations.
[37] The Adjudicator concluded that Senator Housakos had shown due diligence under the circumstances and that his approach was sufficiently thorough and reasonable. Furthermore, she noted that while it would have been objectionable for Senator Housakos to purposefully exclude senators who were members of minority groups from his investigation, there was no evidence of that and the evidence had instead shown that that he selected senators who were familiar with Ms. Proulx and who had observed her behaviour. She concluded that a failure to investigate the allegations would not, in and of itself, have amounted to discriminatory action in this case, and that in any event, Senator Housakos had conducted a sufficiently thorough and reasonable investigation having regard to the circumstances.
C. Retaliatory termination of employment
[38] Finally, the Adjudicator turned to Mr. Singh’s argument that the termination of his employment was retaliation for the allegations of discrimination he made in his November 24 e-mail. The Adjudicator accepted that Mr. Singh had provided sufficient evidence to make a prima facie case that the termination of his employment was in retaliation for his having made allegations against Ms. Proulx, but that the Senate’s evidence showed that the decision was not retaliatory.
[39] Instead, the Adjudicator found that there was un-contradicted evidence that Mr. Singh’s termination was actually due to his demonstrated unwillingness to work for Ms. Proulx and to accept the Senate’s new administrative structure. The Adjudicator accepted the Senate’s evidence that Mr. Singh’s November 24 e-mail was understood by the Senate to be an ultimatum, where a choice would need to be made between him and Ms. Proulx. The Adjudicator noted that she did not need to determine whether the Senate was justified in thinking that Mr. Singh was no longer willing to work with Ms. Proulx.
[40] The Adjudicator concluded that Mr. Singh’s prima facie case of discrimination on the basis of retaliation was disproved.
D. The Adjudicator’s Conclusion
[41] The Adjudicator concluded her decision as follows:
[725] This case is about an employee who never accepted a new reporting structure and a new authority.
[726] When Mr. O’Brien was the Senate clerk, Mr. Singh, Ms. Proulx, Mr. Patrice, and Mr. Robert all reported directly to him. It was a flat organization. Mr. O’Brien did not have much time for all his direct reports. Mr. Singh was on equal footing with Ms. Proulx, Mr. Patrice, and Mr. Robert; he also dealt directly with the Standing Committee and the Steering Committee.
[727] At first, things were fine between Mr. Singh and Ms. Proulx. Things then changed in February 2015. Mr. Singh started to report to his former colleague, Ms. Proulx, who was much more hands-on; she wanted to be involved, which he never accepted. To me, his admission to Mr. Patrice that “[i]t used to be the three of you and me. Now it is the three of you without me,” is again very telling about the problematic nature of this case. The new administrative structure put in place at the Senate changed the working relationship between the four players, and Mr. Singh did not accept it.
[728] In my view, this situation is a classic case of a change to a reporting relationship that had a detrimental impact on the supervisor and his or her employee, and Mr. Singh’s race and colour were not factors.
[729] Both Mr. Singh and Ms. Proulx were senior executives, and they appeared very articulate, assertive, and confident. I do not believe that each felt intimidated by the other. It is simply unfortunate that they did not realize that things were deteriorating to the point of no return and that they did not use their human-resources experience and talents to seek help for their relationship. While they had an acrimonious reporting relationship, it did not mean or allow me to conclude that Mr. Singh’s race and colour were factors in Ms. Proulx’s attitude towards him. Again, these allegations were not supported by the evidence.
[730] Mr. Singh had the burden of demonstrating, on the balance of probabilities, a prima facie case of discrimination. He met his burden only with respect to the Senate’s decision to terminate his employment; however, the Senate discharged its burden of disproving that allegation. I therefore find that the Senate did not contravene sections 7-10-14 of the CHRA.
[731] For all of the above reasons, the Board makes the following order:
…
[732] The grievance is dismissed.
IV. Issues and Analysis
[42] Mr. Singh raises three issues in support of the application for judicial review, which are that it was unreasonable for the Adjudicator to find that (i) Senator Housakos conducted an adequate investigation of Mr. Singh’s allegations of discrimination, and (ii) Mr. Singh’s case of prima facie discrimination was rebutted by the Senate. Mr. Singh further argues that the Adjudicator breached his rights to procedural fairness by (iii) failing to make findings on the arguments he presented regarding aggravated damages for a bad faith dismissal.
[43] I agree with Mr. Singh that there were reviewable errors made in each of these three areas, which I will turn to after addressing a pair of preliminary issues which were raised, respectively, in advance of, and at the outset of this judicial review hearing.
A. Preliminary issues
(1) Jurisdiction of the Federal Court
[44] Before the judicial review hearing on the merits under s 18.1 of the Act, , the Court issued a direction to the Parties to consider Rouet v. Canada (Justice) 2021 FC 867 [Rouet], and Lapointe v. Canada (Revenue Agency) 2020 FC 1002 [Lapointe], and whether this application should be transferred to the Federal Court of Appeal (FCA) pursuant to ss 28(1)(i) & 28(1)(i.1) of the Act. The relevant sections of s 28 of the Act provide as follows:
28 (1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:
28 (1) La Cour d’appel fédérale a compétence pour connaître des demandes de contrôle judiciaire visant les offices fédéraux suivants :
…
…
(i) the Federal Public Sector Labour Relations and Employment Board referred to in subsection 4(1) of the Federal Public Sector Labour Relations and Employment Board Act;
i) la Commission des relations de travail et de l’emploi dans le secteur public fédéral visée par le paragraphe 4(1) de la Loi sur la Commission des relations de travail et de l’emploi dans le secteur public fédéral;
(i.1) adjudicators as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act;
i.1) les arbitres de grief, au sens du paragraphe 2(1) de la Loi sur les relations de travail dans le secteur public fédéral;
[Emphasis added]
[Soulignement ajouté]
[45] Lapointe concerned an order of the Board, and Rouet, a decision of a member of the Board acting as an adjudicator. In Rouet, Justice McHaffie considered a series of cases, including Beirnes v Canada (Treasury Board), [1993] FCJ No 970 and Sincère v Canada (Attorney General), 2005 FCA 103, which noted the distinction to be drawn between the Board and members of the Board acting as adjudicators to whom grievances are referred (under what is now s 223(2)(a), (b) or (c) of the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA]). At paragraph 12 of Rouet, Justice McHaffie noted that the Act was amended in 2013 to add paragraph 28(1)(i.1), thereby adding the decisions of adjudicators within the meaning of s 2(1) of the FPSLRA to the list of federal boards, commissions and tribunals over which the FCA has exclusive judicial review jurisdiction.
[46] The Parties jointly responded on January 28, 2022, confirming their view that this Senate matter was properly before the Federal Court pursuant to s 18 of the Act. They acknowledged exclusive jurisdiction of the FCA with respect to decisions of the Board and of adjudicators as defined in s 2(1) of the FPSLRA, due to the 2013 addition of s 28(1)(i.1) in the Act.
[47] However, they submitted that the employment and labour relations of persons employed by Parliament are governed by PESRA, a separate and unique legislative regime, whereby s 63 grants powers and jurisdiction distinct from those conferred to adjudicators hearing grievances under the FPSLRA or the Federal Public Sector Labour Relations and Employment Board Act, SC 2013, c 40, s 365, for most employees of the federal public sector. The Parties also pointed to Volpi v. Canada (Parliamentary Protective Service), 2019 FC 1061 where this Court exercised its jurisdiction to hear judicial review for a PESRA grievance.
[48] Considering that the grievance in the present case was referred to an adjudicator pursuant to s 64 of PESRA and not s 223(2) of the FPSLRA, and considering PESRA provides its own definition of the term “adjudicator”, and considering the joint position of the Parties, I am satisfied that this Court has jurisdiction, pursuant to s 18 of the Act, to hear applications for judicial review arising from grievances heard by an adjudicator of the Board under ss 63 and 64 of PESRA.
(2) Evidence on judicial review
[49] In their written materials, the Parties have each included sworn affidavits that provide divergent versions of the testimony heard by the Adjudicator during the 12 days of hearings over which she presided.
[50] Applications for judicial review are not meant to serve as an invitation for the Federal Court to become a fact-finding forum. Instead, they are supposed to be conducted on the basis of the evidentiary record that was before the decision-maker (Henri v. Canada (Attorney General), 2016 FCA 38 at paras 39-41 [Henri], citing Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20 [Access Copyright]). Affidavits may provide a general background that can be useful to the reviewing Court, or to bring procedural defects to light that would not otherwise be apparent (Henri at para 40; Access Copyright at para 20).
[51] Unfortunately, the Board does not record its hearings. More understandably with respect to the expenses involved, and the need for informality and expedition (Agnaou v. Canada (Attorney General), 2014 FC 850 at para 69) neither does it provide transcripts to the Parties or to the Court on judicial review. In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, the SCC held that principles of natural justice are not infringed by the mere fact of a recording not being kept, but that where the absence of a recording leaves a reviewing court with inadequate information upon which to base its decision, the right to natural justice is infringed by being denied a ground of review (paras 72-83). Nearly 25 years later, and with the advances in digital technology, it is surprising that recordings are not kept as a matter of course to avoid this unfortunate possibility.
[52] Counsel agreed that sorting out the inevitable factual and procedural disputes over what took place during hearings would be greatly simplified by keeping a recording. In some cases, as here, a recording would prevent the need for dueling affidavits to resolve factual disagreements. In others, it might prevent the need for judicial review altogether. This problem is not limited to labour disputes and extends to other administrative law contexts like interviews with visa officers (see for instance, Divya v. Canada (Citizenship and Immigration), 2022 FC 620 at paras 18-20).
[53] Fortunately, counsel for the Applicant retreated from reliance on any contested portion of Mr. Singh’s affidavit, thereby dispensing with the need to decide between inconsistent versions of the testimony. Instead, he limited himself to the portions of the Affidavit that were uncontested or confirmed by the Senate’s affiant, of which only one has a bearing on this decision, namely the fact that both parties agree that Senator Housakos never saw the November 26 e-mail. With that in mind, I have limited myself to the factual findings of the Adjudicator, the summary in her Decision of the testimony that she heard, the documentary record that was before her, and that one fact regarding the non-communication of the November 26 email, which was not mentioned by the Adjudicator, but came out in testimony.
B. Standard of Review
[54] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 16, the Supreme Court of Canada set out a revised framework to determine the standard of review, whereby reasonableness is the presumptive standard with respect to decisions of administrative tribunals.
[55] The Parties agree that reasonableness is the appropriate standard to apply to the adjudicator’s decision. Indeed, there is no reason to depart from the standard previously applied by the FCA when reviewing decisions of adjudicators appointed by the Federal Public Sector Labour Relations Board (Canada (Attorney General) v. National Police Federation, 2022 FCA 80 at para 34; Babb v. Canada (Attorney General), 2022 FCA 55 at para 31; Canada (Attorney General) v. Alexis, 2021 FCA 216 at para 2 [Alexis]).
[56] A court performing a reasonableness review scrutinizes the administrator’s decision in search of the hallmarks of reasonableness – justification, transparency and intelligibility – to determine whether it is justified in relation to the relevant factual and legal constraints that brought the decision to bear (Vavilov, at para 99). Both the outcome and the reasoning process must be reasonable and the decision must be based on an internally coherent and rational chain of analysis, justified in relation to the facts and the law (Vavilov, at paras 83-85).
[57] The parties disagree as to whether the Adjudicator was reasonable in her application of the CHRA. Reviewing courts are accustomed to conducting exercises of statutory interpretation, but these questions are treated differently in a reasonableness review. Reviewing courts are not to undertake an independent analysis of what the correct decision ought to have been. Instead, reasonableness review examines the administrative decision as a whole, including the reasons provided and the outcome (Vavilov, at paras 115-118).
[58] While administrative decision-makers are not required to engage in a formalistic interpretive exercise, their task when interpreting a contested provision is to do so in a manner consistent with its text, context and purpose. Where relevant case law exists for the provision in question, this acts as a constraint on what the decision-maker can reasonably decide, and divergence from binding precedent needs to be explained (Vavilov, at paras 112, 119-121).
[59] Finally, Mr. Singh alleges procedural unfairness. The Federal Court of Appeal has consistently held that questions of procedural fairness are not decided according to any particular standard of review and that they are treated instead as a separate legal question, whereby the Court must consider whether, having regard to all the circumstances, the process was fair and just (Carroll v. Canada, 2022 FCA 5 at para 25; Lipskaia v. Canada (Attorney General), 2019 FCA 267 at para 14).
C. Were the issues reasonably and fairly decided?
(1) Whether the Adjudicator reasonably concluded that an adequate investigation had been conducted into Mr. Singh’s discrimination allegations
(a) The Parties’ positions
[60] Mr. Singh takes the position that there was a failure by the Senate in this case to properly investigate allegations of discrimination. Mr. Singh cites a series of authorities in support of the principle that employers have a duty to investigate discrimination in the workplace, and failure to take appropriate steps to meet this duty may give rise to liability under the CHRA (see Islam v. Big Inc., 2013 HRTO 2009 at para 269-271; Nelson at paras 4, 90, 92-93; and Cybulsky v. Hamilton Health Sciences, 2021 HRTO 213 at para 113).
[61] Mr. Singh further cites the Human Rights Tribunal of Ontario in Ananda v. Humber College Institute of Technology & Advanced Learning, 2017 HRTO 611 at paragraph 121, where the adjudicator stated:
[121] I agree with the statement made in the Scaduto decision that, in order to find a violation of the Code, there must be a basis to support a finding of a violation of one of the rights protected under Part I of the Code. I disagree, however, that a respondent’s failure to appropriately address or investigate a complaint of discrimination or harassment cannot, in and of itself, constitute a violation of a Part I right, even if the underlying discrimination or harassment is subsequently found to be unproven. In my view, there are circumstances where it is inherently discriminatory for a respondent to fail to appropriately address or investigate a complaint of discrimination or harassment, even where the complaint is later found to be unsupported, on the basis that a respondent’s actions in failing to take such a complaint seriously and to properly respond to such a complaint violate the dignity interests of the person making the complaint in a way that is additional to and independent of the underlying allegations raised in the complaint. As a result, notwithstanding that I have ultimately found the applicant’s allegation of age discrimination and harassment to be unsupported by the evidence, I will nonetheless address the allegation that the respondents failed to appropriately respond to his concerns.
[62] Mr. Singh contends that the Senate, by failing to consult with him and instead consulting a sampling of white Senators and Ms. Proulx about the allegations of discrimination, breached its duty to investigate his allegations and that it was unreasonable for the Adjudicator to conclude otherwise.
[63] Relying on Nelson and Payette, as well as on the Policy, Mr. Singh contends that Senator Housakos’ investigation was offensive, and his explanation for interviewing the group of senators that he did was bizarre and implausible given the allegations of racism. Mr. Singh argues that the Speaker’s explanation that he asked twelve Senators who were most familiar with Ms. Proulx’s work simply did not hold water. In her previous capacity as Director of Finance, she had worked with almost every senator in the recent financial audit process that all senators had undergone. He argues that there were certainly visible minority Senators who could also have been questioned.
[64] The Senate counters that the Adjudicator’s analysis was reasonable in that it was sound, clearly articulated, internally consistent, and demonstrably based on the totality of the evidence before her. The Senate reminds the Court that based on the guidance set out in Vavilov, minor missteps and a standard of perfection are not required (Vavilov, at paras 91, 100).
[65] The Senate submits that for this reason, the Court should not interfere with the appropriateness of the findings of the informal investigation – a step the Senate took which, given the circumstances, it was not required to undertake. The Senate argues that Mr. Singh has failed to identify how the reasoning or the outcome of the Decision on the issue of the Senate’s investigation was unreasonable. The Senate points to the Adjudicator’s recognition that Mr. Singh was familiar with the complaint process and that despite this knowledge, he communicated in his November 26 e-mail that he had not requested an investigation.
[66] The Senate also contends that Mr. Singh did not make a formal complaint and that the Adjudicator referred to the relevant paragraphs of the Policy. Paragraph 4.5.1 of the Policy provides that even when a formal complaint is filed, the Senate can nonetheless decide not to undertake an investigation, and instead make a recommendation concerning the complaint, so long as the person responsible for addressing the complaint is satisfied that all of the pertinent facts were known and that the parties had been heard.
[67] As for the jurisprudence, the Senate emphasizes that the Adjudicator had regard to the appropriate case law and test, having specifically considered and distinguished Nelson and Payette, and amply justified her reason for finding that the Speaker’s investigation was reasonable and adequate under the circumstances. The same is true, according to the Senate, with regard to the Adjudicator’s reliance on Scaduto in light of the facts. She reasonably found that under the circumstances, where no formal complaint had been filed, and where several allegations were