Burlacu v. Canada (Attorney General)

Burlacu v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-04-19
Neutral citation
2021 FC 339
File numbers
T-1529-19
Notes
A correction was made on July 14, 2021
Decision Content
Date: 20210419
Docket: T-1529-19
Citation: 2021 FC 339
Ottawa, Ontario, April 19, 2021
PRESENT: Mr. Justice Norris
BETWEEN:
ALEXANDRU-IOAN BURLACU
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. OVERVIEW
[1] The applicant is employed at the Canada Border Services Agency (“CBSA”) as a Senior Program Officer in the Case Review Unit, Inland Enforcement Operations and Case Management Division. In January 2019, he made a complaint of workplace harassment against two senior CBSA labour relations officials. In April 2019, the CBSA Vice-President (Intelligence and Enforcement Branch) determined that the complaint would not be investigated because the conduct complained of did not meet the definition of workplace harassment set out in the Treasury Board of Canada Secretariat’s Policy on the Prevention and Resolution of Harassment in the Workplace. The applicant filed a grievance of this decision. In a decision dated September 12, 2019, the CBSA Vice-President (Human Resources Branch) denied the grievance. The applicant, who is self-represented, now applies for judicial review of that decision under subsection 18.1 of the Federal Courts Act, RSC 1985, c F-7. He contends that the decision should be set aside because it is unreasonable and because the requirements of procedural fairness were not respected.
[2] For the reasons set out below, I do not agree. This application for judicial review must, therefore, be dismissed.
II. BACKGROUND
[3] The timeframe of events giving rise to this application spans from the spring of 2018, when the conduct that is the focus of the harassment complaint occurred, to September 2019, when the applicant’s grievance was denied. While the federal public service policies and procedures protecting employees from workplace harassment and governing the harassment resolution process have been amended since then, the same policies and procedures were in effect throughout the period with which this application is concerned. These policies and procedures are set out in three documents in particular: the Policy on Harassment Prevention and Resolution (effective October 1, 2012) mentioned above (the “Policy”), the Directive on the Harassment Complaint Process (effective October 1, 2012) (the “Directive”), and the Guide on Applying the Harassment Resolution Process (dated December 31, 2012) (the “Guide”). Among other important things, these instruments help to achieve the broader objectives set out in the Values and Ethics Code for the Public Sector (dated December 15, 2011) (the “Code”), including that public servants act and be treated by their organizations in accordance with the values articulated in the Code – namely, respect for democracy, respect for people, integrity, stewardship and excellence.
A. The Definition of Harassment
[4] The Policy defines harassment (harcèlement) as follows:
Improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction).
Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.
[5] The same definition is set out in the Directive.
[6] For its part, the Guide highlights the specific elements of the definition to assist determinations as to whether a complaint of harassment is admissible – i.e. whether the conduct complained of meets the definition of harassment. The Guide states:
For a complaint to be deemed admissible, the different elements of the definition should be present:
• The respondent displayed a potentially improper and offensive conduct;
• The behaviour was directed at the complainant;
• The complainant was offended or harmed;
• The respondent knew or reasonably ought to have known that his or her behaviour would cause offence or harm;
• The behaviour occurred in the workplace or at any location or any event related to work […].
[7] The Guide also states the following with respect to the distinction drawn in the definition between repetitious behaviour and a single event:
It is important to consider the severity and impropriety of the behaviour (act, comment or display) in the circumstances and context of each situation. Essentially, the definition of harassment means that more than one act or event need to be present in order to constitute harassment and that taken individually, this act or event need not constitute harassment. It is the repetition that generates the harassment. In other words, workplace harassment consists of repeated and persistent behaviours towards an individual to torment, undermine, frustrate or provoke a reaction from that person. It is a behaviour that with persistence, pressures, frightens, intimidates or incapacitates another person. Each behaviour, viewed individually, may seem inoffensive, however, it is the synergy and repetitive characteristic of the behaviours that produce harmful effects.
Please note that one single incident can constitute harassment when it is demonstrated that it is severe and has an important and lasting impact on the complainant.
[8] Finally, the Guide provides examples of conduct that does not constitute harassment, examples of conduct that may constitute harassment, and examples of conduct that does constitute harassment: see Annex A of the Guide. These examples would assist not only the officials who are responsible for dealing with harassment complaints but also any federal public service employee who may be considering whether experiences they have been subjected to at work could constitute harassment.
B. The Harassment Complaint Process
[9] The Directive in effect when the applicant submitted his complaint prescribed the minimum requirements of the harassment complaint process and stated “expected results in order to ensure the timely and efficient resolution of complaints” (see paragraph 5.1). To these ends, the Directive outlined five steps for designated officials to follow when resolving harassment complaints:
6.1 The designated officials are responsible for the following:
6.1.1 Ensuring that the harassment complaint process is carried out promptly; respects the principles of procedural fairness towards the complainant, the respondent and all other parties involved; and that it contains the following five steps:
Step 1 – Acknowledging receipt of the complaint while ensuring that:
• employees understand that if a complaint on the same issue is or has been dealt with through another avenue of recourse, the complaint process under this directive will not proceed further and the file will be closed.
• the written complaint is submitted within 12 months of the last incident or event of alleged harassment (unless there are extenuating circumstances); and
• the parties are made aware of the options for informal resolution from the outset and throughout the process.
. . .
Step 2 – Reviewing the complaint to determine whether the allegation(s) meets the definition of harassment as described in this directive (see Appendix A). The respondent is notified of the complaint whether or not the complaint is admissible.
Step 3 – Exploring options for resolving the complaint while ensuring that consideration is given to informal resolution processes. Should there be an investigation, the person conducting the investigation is appropriately qualified and applies the principles of procedural fairness.
Step 4 – Rendering a decision and notifying in writing the parties involved as to whether or not the allegations were founded.
Step 5 – Restoring the well-being of the workplace while ensuring that:
• the work unit manager in consultation with the Informal Conflict Resolution practitioners and other relevant organizational resources addresses the needs of the parties concerned and the work unit throughout the complaint process as well as any detrimental impacts resulting from the incidences of harassment; and
• the work unit manager takes timely corrective and/or disciplinary measures, if warranted, including addressing reprisal or risk of reprisal.
. . .
For additional information on the application of the steps in the harassment complaint process, consult the Guide on Applying the Harassment Resolution Process.
[note and footnotes omitted]
[10] As the foregoing suggests, the Guide provides additional information concerning what is involved in each of these five steps. Notably, the Guide states the following, among other things, with respect to Step 2:
If the person responsible for managing the complaint process determines that the allegations are frivolous or do not satisfy the definition of harassment, he or she informs the complainant that the complaint cannot be accepted and provides the reasons for his decision.
C. The Applicant’s Harassment Complaint
[11] The applicant presented his harassment complaint on January 31, 2019, by way of an email addressed to Jacques Cloutier, the CBSA Vice-President, Operations Branch. The complaint concerned the conduct of two senior labour relations officials at the CBSA. One was the Director General of Labour Relations and Compensation (the “Director”). The other was the Acting Manager of Labour Relations (the “Manager”). Previously during the material time, the Manager had held the position of Labour Relations Advisor, Labour Relations Operations and HR Redress Division, with the CBSA. In their respective roles, both the Director and the Manager had dealt with prior workplace complaints and grievances made by the applicant.
[12] In his January 2019 harassment complaint, the applicant itemized the following specific respects in which he alleged that the Director and the Manager had engaged in conduct that constituted harassment.
[13] First, in the spring of 2018, the applicant had at least four outstanding grievances relating to issues in his workplace. In an email to the Director dated April 4, 2018, the Manager (who at the time was still in her role as Labour Relations Advisor) summarized the history and current status of the four grievances. She then provided some additional observations about the applicant, including that he “often questions management decisions to the point of near insubordination.”
[14] The applicant was not an intended recipient of this email. It appears that he obtained a copy of it through a request under the Privacy Act, RSC 1985, c P-21.
[15] In his harassment complaint, the applicant alleged that the Manager’s statement that he “often questions management decisions to the point of near insubordination” was defamatory of him. He submitted that the statement, standing on its own as well as in the context of the April 4, 2018, email was a “false accusation to destroy [his] reputation” and therefore constituted harassment. (Annex A to the Guide mentions “Comments, repeated insinuations or false accusations to destroy a person’s reputation” as an example of conduct which generally would constitute harassment.)
[16] The applicant was unaware of any response from the Director to this email. This gave rise to the second part of his harassment complaint. The applicant alleged that the Director’s “acceptance of the defamatory e-mail, without any indication of having challenged any of the information he was being presented, and his subsequent failure to recuse himself from being the decision-maker on [the applicant’s] grievances” constituted harassment.
[17] The third part of the harassment complaint relates to a letter to the applicant dated April 17, 2018, from Mr. Cloutier. (As noted above, the applicant submitted the harassment complaint at issue here to Mr. Cloutier; further, as will be seen below, it was Mr. Cloutier who dealt with it in the first instance.)
[18] The letter concerned an earlier complaint the applicant had made about an issue in his workplace. In material part, the April 17, 2018, letter stated the following (bolding in original):
This is further to the allegations of harassment you mentioned during the grievance consultation of December 28, 2017 and in your email sent to your director on April 6, 2018 against your previous and current management team. When allegations of harassment are received, as the delegated manager, I must review the allegations to determine whether they meet the definition of harassment as defined in the Treasury Board of Canada Secretariat’s Policy on Harassment Prevention and Resolution (Policy). A copy of the Policy is attached.
. . .
I wish to assure you that all allegations of harassment are taken very seriously. In order to review your complaint in accordance with the Policy, I require detailed information in order to determine whether the allegations made by you fall within the definition of harassment as per the Policy. Please identify the allegations for each respondent and provide me with the following:
1) date(s) on which the incident(s) occurred and by whom;
2) specific details regarding the incident(s); and
3) any other pertinent information.
Please provide this information no later than April 30, 2018. You can email this additional information to the attention of [. . .], Labour Relations Advisor at the following address [. . .].
Please be advised that if you choose not to provide any additional information by April 30, 2018, I will make a determination based on the information available to me.
. . .
[19] This letter from Mr. Cloutier was cc’d to the Manager (who, at the time, was still in her role as Labour Relations Advisor and, as indicated in the body of the letter, was the suggested point of contact for the applicant in relation to this other complaint). The applicant alleged that the letter had been written by the Manager and was sent to him at her direction. Accordingly, his complaint of harassment was with respect to the Manager rather than Mr. Cloutier. The applicant alleged that the letter constituted harassment because it mischaracterized the concerns he had raised previously as being a complaint of harassment, it stipulated an unreasonably short deadline for his response, and it conveyed an “ultimatum” – indeed, a “threat” (if no additional information was provided by the deadline, Mr. Cloutier would render a decision on the basis of the information available to him, which would presumably be a negative decision). The applicant alleged that the letter caused him “great offence and distress.”
[20] Fourth, the applicant contended that this aspect of the Manager’s alleged harassment of him continued and was compounded by the Manager drafting a follow-up email on June 11, 2018, dealing with the same subject as the April 17, 2018, letter. The draft email suggested that the applicant should be given four days to provide the information that had been requested of him. This email was never sent to the applicant. (It appears that the applicant also obtained this draft email through a Privacy Act request.)
[21] Finally, the applicant alleged that the Manager, now in her role as Acting Manager of Labour Relations, “tolerated her subordinates providing [the applicant’s] managers with advice relating to [his] subsequent labour relations matters that was improper, unfair and disrespectful and caused [him] great offence and harm.” The applicant provided two examples he said demonstrated this. One was a first level response dated September 26, 2018, signed by Jacqueline Frood (Acting Manager, Inland Enforcement, Operations and Case Management) denying a grievance concerning the handling of earlier grievances the applicant had filed. The applicant alleged that the decision was illogical, showed disregard for him and his submissions, caused him “great offence” and had “negatively affected” his mental and physical health.
[22] The second example was an email from Ms. Frood dated May 23, 2018, denying the applicant’s request for the advancement of 162.45 hours of sick leave. The applicant alleged that the decision was inconsistent with applicable policies and practices and that the reasons given for denying his request were a mere pretext.
[23] According to the applicant, the link between these communications and the Manager was that his managers (presumably Ms. Frood, among others) had confirmed to him that they had sought Labour Relations guidance with respect to his grievances; consequently, according to the applicant, the Manager was responsible for the contents of these communications.
[24] In an undated letter to the applicant, Mr. Cloutier acknowledged receipt of the January 31, 2019, harassment complaint and described in general terms the procedure that would be followed in dealing with it. Mr. Cloutier wrote that once he had had the opportunity to review all of the allegations, he would advise the applicant of his decision as to whether the allegations met the Policy’s definition of harassment and if he would proceed with the investigation of some or all of the allegations. Mr. Cloutier also noted the following: “In light of the concerns you raised in your harassment complaint against [the Director] and in the spirit of cooperation in the hopes to resolve this situation, Jacqueline Rigg, Vice-President, Human Resources Branch, has agreed to oversee the National Integrity Centre of Expertise for the handling of this file.” Finally, Mr. Cloutier informed the applicant that the coordinator for the file would be Camille Cloutier-McNicoll, Harassment Prevention and Resolution Advisor, and that the applicant could contact her directly for any further information or clarification that he required. (The record indicates that Ms. Cloutier-McNicoll worked at the National Integrity Centre of Expertise, a section within CBSA’s Labour Relations and Compensation Branch whose mandate includes dealing with workplace harassment complaints.)
D. The Decision Regarding the Harassment Complaint
[25] In a letter dated April 25, 2019, Mr. Cloutier informed the applicant that his complaint of harassment would not be investigated further. The entirety of the substance of the decision is set out in the letter as follows:
Following the letter sent to you on January 21, 2019 where I acknowledged receipt of your harassment complaint against [the Director and the Manager], I have reviewed the allegations that you provided and have determined that the allegations do not fall within the definition of harassment as defined in the Policy. As such, your complaint will not be investigated further.
(I note parenthetically that the date of January 21, 2019, appears to be a typographical error; the applicant did not submit this harassment complaint until January 31, 2019.)
[26] On May 2, 2019, the applicant contacted Ms. Cloutier-McNicoll by email. He stated that he had received Mr. Cloutier’s decision regarding his harassment complaint and noted that “the decision does not state which part of the definition of harassment the allegations do not meet.” The applicant asked Ms. Cloutier-McNicoll to let him know if he “could obtain additional information regarding the decision.” He did not receive a response to this email.
E. The Applicant’s Grievance
[27] The applicant presented a grievance of Mr. Cloutier’s decision under section 208 of the Federal Public Sector Labour Relations Act, SC 2003, c 22 (“FPSLRA”). This provision states:
Presentation
Présentation
Right of Employee
Droit du fonctionnaire
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
208 (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il s’estime lésé :
(a) by the interpretation or application, in respect of the employee, of
a) par l’interprétation ou l’application à son égard :
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(i) soit de toute disposition d’une loi ou d’un règlement, ou de toute directive ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii) a provision of a collective agreement or an arbitral award; or
(ii) soit de toute disposition d’une convention collective ou d’une décision arbitrale;
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
b) par suite de tout fait portant atteinte à ses conditions d’emploi.
[28] Section 209 of the FPSLRA provides that certain types of grievances can be referred for adjudication but the applicant’s grievance did not qualify for this. As well, the parties agreed that the grievance would be taken directly to the final level, as provided for by the Collective Agreement. By the operation of section 214 of the FPSLRA, the decision concerning the applicant’s grievance would be “final and binding for all purposes of this Act and no further action under this Act may be taken on it,” subject only to judicial review.
[29] The respondent submits that the decision maker dealing with the applicant’s grievance was to make a de novo determination of the issues raised in the grievance and no deference was owed to any of Mr. Cloutier’s determinations. The applicant does not dispute this characterization of the decision maker’s mandate when determining a grievance under section 208 of the FPSLRA.
[30] The applicant represented himself in the presentation of his grievance. His point of contact was Isabelle Guay, Senior Labour Relations Advisor, Labour Relations and HR Redress Division, with the CBSA.
[31] The applicant articulated the grounds for his grievance on four separate occasions.
[32] First, in the form he completed on May 7, 2019, to initiate the grievance process, the applicant submitted that Mr. Cloutier’s decision not to investigate the complaint of harassment was made “in a manner that is inconsistent with the requirements of the Policy on Harassment Prevention and Resolution and of the provisions of related instruments.” The applicant also submitted that the decision does not exemplify, with respect to him, “the values of ‘Respect for Democracy’ and ‘Respect for People’, and their respective behaviours, as mandated by the Values and Ethics Code for the Public Sector.” The applicant further grieved the failure of his employer to comply with the requirements of the latter Code by failing to treat him in accordance with the values of the Public Sector and “by failing to take the necessary steps to integrate these values, and their respective expected behaviours,” into the decision made with respect to the harassment complaint and the process used to deal with that complaint. By way of remedy, the applicant requested that the grievance be allowed, that Mr. Cloutier’s decision be set aside, and that the complaint of harassment be submitted to an independent and impartial investigator. The applicant also requested that he “be made whole and be granted any and all other remedies deemed just.”
[33] Second, on May 14, 2019, the applicant provided written submissions in support of his grievance by way of an email to Ms. Guay. In these submissions, he raised the following four points:
a) The applicant had made two inquiries about the status of his harassment complaint (one by email on April 12, 2019; the other by email on April 23, 2019) but he did not receive a response to either.This was contrary to the requirement for the handling of harassment complaints (as set out in the governing instruments and, implicitly, in the Code) that the applicant was entitled to timely communication about the status of his complaint.
b) The Guide states with respect to Step 2 of the process for reviewing a harassment complaint that if the decision maker determines that the allegations do not satisfy the definition of harassment, he or she should inform the complainant that the complaint cannot be accepted and provide “the reasons” for the decision.Contrary to what was required, Mr. Cloutier did not provide any reasons for his determination that the conduct the applicant complained of did not meet the definition of harassment.
c) Mr. Cloutier was in a conflict of interest because the harassment complaint concerned, among other things, a letter (the one dated April 17, 2018) that he himself had signed.According to the applicant, in determining that the conduct complained of did not come within the definition of harassment, Mr. Cloutier was “effectively deciding that he himself had not condoned/facilitated harassment.”
d) Employees of the National Integrity Centre of Expertise who had advised Mr. Cloutier concerning the harassment complaint were also in a conflict of interest because they are “subordinates” of the Director, who was one of the respondents named in the complaint.According to the applicant, no reasonable person would conclude that these employees would be able to provide impartial advice about whether the allegations relating to their “superior” met the definition of harassment.
[34] Third, on May 15, 2019, the applicant attended a grievance presentation meeting with a representative of the decision maker. There is no evidence on the record as to who the applicant met with, how long the meeting lasted, or what occurred during the meeting.
[35] Fourth, on June 14, 2019, the applicant sent Ms. Guay an email raising an additional issue. He stated that the previous day he had received some records he had requested under the Privacy Act. They included an email exchange between Mr. Cloutier and the Manager on September 24, 2018.
[36] By way of background, the applicant had sent an email to Mr. Cloutier on September 12, 2018. That email pertained to records the applicant had obtained from another Privacy Act request which, he submitted in his email to Mr. Cloutier, related to the same matters as had given rise to the April 17, 2018 (see paragraph 18, above). The records the applicant had just received indicated that, at Mr. Cloutier’s request, the Manager had drafted a response to the applicant’s September 12, 2018, email for him.
[37] According to the applicant, this exchange demonstrated that there was a “close working relationship” between Mr. Cloutier and the Manager on harassment-related matters and that this raised “additional concerns” regarding Mr. Cloutier’s impartiality when it came to assessing the applicant’s harassment complaint against the Manager. According to the applicant, Mr. Cloutier was “unable to exemplify, towards [the applicant], the level of fairness required by the Code and the Directive when deciding whether to investigate [his] harassment allegations regarding [the Manager].”
III. DECISION UNDER REVIEW
[38] The decision denying the grievance was communicated to the applicant in a “Reply to Grievance” dated September 12, 2019, signed by Diane Lorenzato, Vice-President, Human Resources Branch, with the CBSA.
[39] In its entirety, the decision states the following:
The following is in response to the grievance you filed in which you alleged that the decision of the Vice-President of Intelligence and Enforcement Branch Jacques Cloutier not to investigate your harassment complaint (2019-NHQ-HC-128813) was inconsistent with the requirements of the Policy on Harassment Prevention and Resolution. As corrective action you requested that your harassment complaint be submitted to an independent and impartial investigator.
I have carefully reviewed the circumstances giving rise to your grievance and have carefully considered the points you raised during the grievance consultation and your written submissions.
I am satisfied that in accordance with the Treasury Board Secretariat’s Directive on the Harassment Complaint Process and the Policy on Harassment Prevention and Resolution, your harassment complaint was properly reviewed and assessed against the definition of harassment and deemed not to meet the definition of harassment. I am also satisfied with the content of Mr. Cloutier’s letter to you dated April 25, 2019 and his decision therein.
As such, I find that the harassment policy and directive, in addition to the Values and Ethics Code for the Public Sector, have been complied with, respected and followed.
Accordingly, your grievance is denied and the corrective action you requested will not be forthcoming.
IV. STANDARD OF REVIEW
[40] As noted, the applicant challenges both the substance of the decision denying his grievance and the process by which that decision was made.
[41] With respect to the substance of the decision, the parties agree, as do I, that it should be reviewed on a reasonableness standard. Reasonableness is now the presumptive standard of review for administrative decisions, subject to specific exceptions “only where required by a clear indication of legislative intent or by the rule of law” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 10). There is no basis for derogating from this presumption here.
[42] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). In determining whether a decision is reasonable, the reviewing court should focus on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (Vavilov at para 83).
[43] The requirement that an administrative decision be reasonable follows from the fundamental principle that the exercise of public power “must be justified, intelligible and transparent, not in the abstract but to the individuals subject to it” (Vavilov at para 95). Thus, an administrative decision maker has a responsibility “to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion” (Vavilov at para 96).
[44] On judicial review, the court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99).
[45] The burden is on the applicant to demonstrate that the decision is unreasonable. He must establish that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).
[46] With respect to process, there is no dispute in the present case about how a reviewing court should determine whether the requirements of procedural fairness were met. The reviewing court must conduct its own analysis of the process followed and determine whether it was fair having regard to all the relevant circumstances, including those identified in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-28: see Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at para 54, and Elson v Canada (Attorney General), 2019 FCA 27 at para 31. This is functionally the same as applying the correctness standard of review: see Dunsmuir v New Brunswick, 2008 SCC 9 at paras 34 and 50; Vavilov at para 54; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. That being said, invoking a standard of review is somewhat beside the point (Canadian Pacific Railway Co at paras 50-55). This is because, at the end of the day, what matters “is whether or not procedural fairness has been met” (Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). The burden is on the applicant to demonstrate that it was not.
V. ANALYSIS
[47] In the specific circumstances of this case, it will be helpful to begin by explaining why I have concluded that the decision to reject the applicant’s grievance is reasonable. Central to my analysis of this issue is the application of the definition of harassment to the conduct complained of by the applicant. This analysis, in turn, will provide a foundation for my conclusion that there was no breach of the requirements of procedural fairness which would warrant reconsideration of the matter.
A. Is the Decision Rejecting the Grievance Unreasonable?
[48] The applicant contends that the decision rejecting his grievance is unreasonable because it lacks justification, transparency and intelligibility. The conclusory statement in the decision that the harassment complaint “was properly reviewed and assessed against the definition of harassment and deemed not to meet the definition of harassment” effectively amounts to no reasons at all for the decision maker’s conclusion. The statement that the decision maker was “also satisfied with the content of Mr. Cloutier’s letter [to the applicant] dated April 25, 2019 and his decision therein” adds nothing to one’s understanding of why the grievance was denied because that letter was equally conclusory and bereft of analysis. Further, as the applicant correctly notes, his concerns about the lack of impartiality in the process are not addressed at all in the decision.
[49] I agree with the applicant that the reasons given for rejecting his grievance leave something to be desired, particularly considering the detailed submissions the applicant provided in support of his grievance. However, I do not agree that this therefore leaves the applicant – or a reviewing court – unable to understand why his grievance was denied on its merits. On the contrary, viewed against the legal and factual constraints on the decision maker – in particular, the circumstances described by the applicant and the definition of harassment – this was the only reasonable result. On the other hand, I do agree with the applicant that the decision does not display the hallmarks of reasonableness when it comes to the issue of impartiality. Whether this entitles him to a remedy is, however, another question. I address this below.
[50] When the decision maker has given reasons for the decision, a reviewing court should begin its inquiry “by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (Vavilov at para 84, internal quotation marks omitted). On review, “close attention” should be paid to a decision maker’s reasons; they “must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made” (Vavilov at para 97). When the reasons are scant or non-existent, this exercise will be of limited utility. Indeed, as the Supreme Court also noted in Vavilov, “an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided” (at para 137). In the present case, while technically reasons were provided for rejecting the grievance, functionally they barely rise above the level of there being no reasons at all. Nevertheless, I “must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable” (Vavilov at para 138).
[51] The majority in Vavilov also made the following important observation: “But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape” (at para 138). The determinative question is whether the outcome – that is, the denial of the applicant’s grievance – is tenable in light of the relevant legal constraints.
[52] As I will explain, I have concluded that the decision maker’s determination that the conduct alleged by the applicant does not come within the definition of harassment is not only a tenable outcome, it is the only tenable outcome. I have also concluded, albeit for slightly different reasons, that there is no basis to interfere with the decision because of the decision maker’s failure to address the applicant’s concerns about a lack of impartiality in the process by which his harassment complaint was assessed.
(1) Is the conclusion that the harassment complaint was reviewed and assessed properly against the definition of harassment reasonable?
[53] To determine whether Mr. Cloutier had reviewed and assessed the applicant’s complaint of harassment properly against the definition of harassment, the decision maker dealing with the applicant’s grievance had to determine for herself whether the conduct complained of by the applicant came within the scope of the definition of harassment. While she might have expressed her finding more directly, it is clear from the Reply to Grievance that the decision maker concluded that the conduct complained of did not come within the definition of harassment. However, while we know what her decision was (the grievance was denied), and we know why she made this decision (Mr. Cloutier had properly found that the conduct complained of by the applicant did not come within the definition of harassment), the decision is silent about how and why the decision maker made this latter determination. Despite the decision maker’s failure to explain how and why she had made this determination, in my view it is the only reasonable conclusion. As a result, while the decision itself could have exemplified the hallmarks of reasonableness better, it is nevertheless justified in relation to the relevant factual and legal constraints that bear on it.
[54] I have reached this conclusion for the following reasons.
[55] First, there is no meaningful sense in which the Director’s failure to respond to the Manager’s email of April 4, 2018 (which included the statement that the applicant “often questions management decisions to the point of near insubordination”) was conduct directed at the applicant. This is a necessary condition for conduct to constitute harassment under the definition in the Policy. The same is true of the Manager allegedly “tolerating” others who in turn provided advice to the applicant’s managers that was “improper, unfair and disrespectful and caused [him] great offence and harm.” Without in any way suggesting that an act of omission could never constitute harassment, I am satisfied that the behaviour of the Director and the Manager identified by the applicant in his complaint could not reasonably constitute harassment in the circumstances of this case. It clearly falls outside the definition of harassment in the Policy.
[56] Second, there is no reasonable basis to conclude that the Manager’s statement in the April 4, 2018, email to the Director that the applicant “often questions management decisions to the point of near insubordination” was conduct directed at the applicant given that it was included in an email that was not intended for him. Even assuming for the sake of argument that the applicant is correct that the comment was improper and unp