Georgoulas v. Canada (Attorney General)

Georgoulas v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-06-22
Neutral citation
2018 FC 652
File numbers
T-102-17
Decision Content
Date: 20180622
Docket: T-102-17
Citation: 2018 FC 652
Ottawa, Ontario, June 22, 2018
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
OURANIA GEORGOULAS
Applicant
and
ATTORNEY GENERAL OF CANADA (AGC)
Respondent
JUDGMENT AND REASONS
[1] The Applicant, Ms. Georgoulas, seeks Judicial Review of two decisions of the Canadian Human Rights Commission [the Commission]. The first is the Commission’s decision to deal with (i.e. investigate) her complaint against her employer, Transport Canada [TC], pursuant to section 41 of the Canadian Human Rights Act, RSC, 1985, c H-6 [the Act]. The second is the Commission’s subsequent decision to dismiss her complaint, pursuant to subparagraph 44(3)(b)(i) of the Act.
[2] As a preliminary matter, the style of cause should reflect that the only Respondent is the Attorney General of Canada. The Commission is not the Respondent.
[3] The Applicant’s complaint against TC relates to its conduct in addressing her request for accommodation upon her return to work, following a period of leave without pay due to an undisclosed medical condition or disability. The Applicant sincerely believes that she was treated in a harassing, discriminatory or retaliatory manner due to her disability, and that TC thwarted her return to work by placing obstacles in her path, rather than accommodating her. The Applicant takes a very rigid interpretation of Governmental human resource policies, Fact Sheets, “Qs and As” and other documents, which she contends were not precisely followed by TC or others. She regards the alleged failures to strictly adhere to particular policies as evidence of harassment, retaliation and/or discrimination (i.e. adverse differential treatment). The Applicant argues that the Commission erred in many ways, first with respect to its decision to deal with her complaint against TC, and second in its decision, following an Investigation Report, that further inquiry was not warranted. The Applicant also argues that the Commission breached its duty of procedural fairness in the manner in which it dealt with her and with her complaint.
[4] For the reasons elaborated on below, the Court finds that the Commission thoroughly addressed the Applicant’s complaint, assessed all the evidence and reasonably concluded that the treatment or conduct alleged was not harassment, discrimination or retaliation. Where the Commission acknowledged “negative” treatment, it reasonably found that TC had a reasonable explanation for the treatment. Moreover, the Commission’s preliminary decision to “deal with” the Applicant’s complaint - which, in any event, benefitted the Applicant - was also reasonable. Lastly, the Commission did not breach the duty of procedural fairness owed to the Applicant in the circumstances.
[5] The reasons for the Court’s decision are lengthy in order to respond to the many arguments raised by the Applicant.
I. Background
A. The Applicant’s Leave Without Pay and Return to Work
[6] The Applicant began her employment with TC in 2007 as a Policy Analyst in its Aviation Security Unit. On March 9, 2012, she began a period of sick leave without pay. On August 28, 2013, the Applicant’s doctor mailed a medical form to TC, which advised TC that the Applicant would remain unable to work until, at least, March 2014. The medical form set out several conditions in order for the Applicant to return to work, including that she not return to the Aviation Security Unit.
[7] In response, Ms. Emilia Warriner (Director, Aviation Security Policy, TC) wrote to the Applicant on September 19, 2013. Ms. Warriner noted that TC had received the medical form from the Applicant’s doctor. Ms. Warriner noted that because the Applicant had been on leave since March 2012, TC was providing her with “Information regarding the options that are available under the Treasury Board’s Directives on Leave and Special Working Arrangements. Appendix B - Leave without Pay”. A copy was provided with the letter. Ms. Warriner explained that Leave without Pay cannot be granted indefinitely and, in accordance with the Directive, should be resolved within 24 months. She added that “all leave without pay is to be terminated through: a return to duty; resignation or retirement; or retirement on medical grounds (subject to Health Canada’s approval)”. Ms. Warriner provided additional information about the options and implications, noting that these were important issues requiring the Applicant’s consideration. She also offered to set up meetings with the appropriate people to provide additional assistance to the Applicant. Ms. Warriner asked the Applicant to respond and indicate her intentions by October 31, 2013.
[8] On December 12, 2013, the Applicant replied to TC by email indicating that she intended to return to work on January 20, 2014. She attached a medical form, which set out several specific accommodation measures (for example, that she not return to her previous unit, or alternatively that she work from home, and that she report to one named supervisor). The form did not, however, explain the reason for the accommodations identified. Subsequently, a “Return to Work” [RTW] plan prepared by Sun Life Financial [Sun Life] was submitted, which also set out specific accommodation measures, including: to report to only one person, receive tasks in writing, not be given short deadlines, and, not have interaction with previous co-workers, along with specific requirements for her office location and set up. The RTW plan did not explain the reason for the required accommodations. TC followed up with a Sun Life representative who indicated that the specifics in the RTW plan were “preferences” rather than “medically required”.
[9] TC found the information received from the Applicant regarding her accommodation measures to be insufficient. TC sought clarification regarding the Applicant’s needs from her doctor. TC noted that the proposed accommodations were very confusing and contradictory, and as a result, TC needed further information in order to understand how best to accommodate the Applicant.
[10] On December 18, 2013, Ms. Warriner wrote to the Applicant regarding her proposed return to work date. Ms. Warriner noted that the letter was for the purpose of providing information to the Applicant with respect to the next steps to take place before she returned to work. Ms. Warriner noted management’s commitment to “finding ways to reintroduce you to work respecting your medical limitations” and explained that the role of the medical practitioner is to identify the disability related needs and restrictions, whereas the role of the employer is to take this information and determine, with appropriate consultation where necessary, whether and how to accommodate those needs. Ms. Warriner then requested additional and specific information from the Applicant’s doctor about her medical limitations. She also noted that TC would seek a “Fitness to Work Evaluation”, or FTWE (i.e. a medical assessment), from the Workplace Health and Public Safety Program (Health Canada) “with a view to determining the best options available in order to ensure a safe and sustained return to full time work”. Ms. Warriner enclosed an Employee Guide regarding the assessment along with the consent form for the FTWE.
[11] TC continued to request that the Applicant’s doctor provide further details of the limitations and accommodations identified. TC eventually received some additional information in June 2014. The Applicant ultimately returned to work in September 2014, without having undergone an FTWE. In March 2016, the Applicant went on medical leave again.
B. The Complaint to the Commission
[12] On April 11, 2014, the Applicant submitted a detailed complaint to the Commission alleging harassment, discrimination on the grounds of disability, and retaliation by TC. The Applicant broadly claimed that TC (and others):
forced her to choose between resigning and retiring, thereby putting her in a “de facto” dismissal situation;
refused to accept her doctor’s medical recommendations regarding her accommodation and return to work plan, and forced her to submit to an FTWE;
delayed the provision of her Record of Employment;
delayed the provision of information to Sun Life when she was applying for Long-Term Disability [LTD] benefits;
improperly disclosed to others that she was receiving LTD benefits;
deducted money from her pay and benefits without explanation; and
retaliated against her for filing an earlier complaint with the Commission (which is unrelated to this Application).
[13] The Applicant also made related allegations against her own union, the Canadian Association of Professional Employees [CAPE], as part of the same complaint. The Applicant had wanted to make two separate complaints against CAPE and TC, but was initially limited to filing one complaint form. The matters were subsequently bifurcated, albeit with the same initiating complaint form. In its determination of the CAPE matter, the Commission determined, pursuant to section 41 of the Act, that no investigation of the complaint against CAPE was warranted. In Georgoulas v Canada (Attorney General), 2017 FC 446, 27 Admin LR (6th) 266 [Georgoulas #1], Justice McVeigh found that the Applicant was denied procedural fairness when she was required to include her allegations against both TC and CAPE in one complaint form, with a three-page limit. Justice McVeigh allowed the application only on the basis that the one complaint form did not allow the Applicant to sufficiently present her case to the Commission, noting that the Applicant was either “not concise” or had a “lot of information to convey”. Although Justice McVeigh found that the decision at issue was otherwise reasonable, she concluded that the complaint should be re-determined due to the breach of procedural fairness.
[14] In the present Application, the Applicant raises many of the same allegations raised in Georgoulas #1. For example, she submits that she should have been given more space, or the opportunity to make separate complaints, to allege misconduct against Sun Life and the Treasury Board [TB]. She also alleges, among other things, that the Commission failed to accommodate her, denied her the ability to communicate by email, and left “threatening” voicemail messages.
[15] In her oral submissions, the Applicant also alleged TC’s retaliatory and harassing conduct continued upon her return to work and that she had attempted to add these incidents to her initial complaint, but was refused.
C. The Decisions Under Review
[16] The procedural history requires some elaboration given the many issues raised by the Applicant.
[17] Upon receipt of the complaint, the Commission first considered whether it should decline to deal with it for any one of the reasons set out in paragraph 41(1) of the Act. The Respondent argued that the Applicant could and should exhaust the grievance or review procedures otherwise reasonably available to her, and therefore paragraph 41(1)(a) applied. Specifically, the Respondent argued that the Applicant could file a grievance under the Federal Public Sector Labour Relations Act, SC 2003, c 22, s. 2, [FPSLRA] and/or file a grievance under TB’s Policy on Harassment Prevention and Resolution [Policy on Harassment].
[18] The Commission directed that a section 40/41 Report be prepared to address the Respondent’s argument.
D. The Section 40/41 Report
[19] The section 40/41 Report, dated January 29, 2015, identified the main issue as whether the Commission should refuse to deal with the complaint pursuant to paragraph 41(1)(a). However, the Report first began with a preliminary procedural matter relating to the contents of the Applicant’s complaint. The Applicant had alleged harassment in her initial complaint, along with retaliation and discrimination. The Commission omitted harassment when it prepared its “Summary of Complaint”. The Applicant requested that the Summary be amended to include harassment. The section 40/41 Report recommended that her request be refused because, on a careful review of the complaint, the conduct alleged could not constitute harassment, even if presumed to be true. Accordingly, the section 40/41 Report only addressed whether the other alleged grounds of discrimination - retaliation and adverse differential treatment - should be dismissed under paragraph 41(1)(a).
[20] The Report noted that the Applicant’s relationship with her union (CAPE) was acrimonious, as she was also pursuing a human rights complaint against them based on almost identical allegations. The Report stated that it would be unfair to require the Applicant to exhaust the grievance process under the FPSLRA in these circumstances. The Report also expressed doubt whether the Applicant could grieve the matter under the TB’s Policy on Harassment, noting that it appeared to apply only to employees on active status, whereas the Applicant was on sick leave. Therefore, the Report recommended that the Commission deal with the Applicant’s complaints of discrimination and retaliation.
[21] The section 40/41 Report was shared with the Applicant, who provided further submissions to the Commission before it rendered its final decision under paragraph 40(1)(a). In her submissions, the Applicant objected to the recommendation not to include harassment as a separate ground. She also argued that Sun Life and TB should be added as respondents to the complaint because they participated in discriminatory conduct, and that the complaint should be amended to add additional incidents.
[22] On May 20, 2015, the Commission rendered its decision to deal with the Applicant’s complaint under subsection 41(1) of the Act. It accepted the section 40/41 Report’s recommendation that it deal with the allegations of retaliation and adverse differential treatment. The Commission also stated that, contrary to the Report’s recommendation, it had “further decided to accept the complainant’s request to amend the complaint to include harassment in the alleged practices of discrimination”. (The Applicant has clearly misread this aspect of the Commission’s decision. She is of the view that the Commission decided to deal only with her harassment complaint, and to dismiss her allegations of retaliation and adverse differential treatment.)
[23] The Commission, having decided to proceed with the entire complaint, then appointed an Investigator to prepare an Investigation Report pursuant to section 43 of the Act.
E. Application for Judicial Review of the Commission’s Section 40/41 Decision to Deal With the Complaint
[24] Despite the Commission’s decision to deal with her complaint, the Applicant sought judicial review of this decision (T-1094-15). In her Notice of Application for Judicial Review, the Applicant alleged errors by the Commission and breaches of procedural fairness. The Applicant sought, among other things, to require the Commission to amend the complaint to add harassment, to add TB and Sun Life as respondents, to amend the complaint to challenge the constitutionality of TB’s Policy on Harassment, and to add other incidents to the complaint. This is the first of two decisions under review in this Application.
F. The Investigation Report
[25] The Investigation Report, prepared pursuant to section 43 of the Act, notes at the outset that its purpose is to assist Commission members to determine whether a conciliator should be appointed to attempt to resolve the complaint, whether further inquiry of the complaint is warranted or whether the complaint should be dismissed.
[26] The Investigator recounted the Applicant’s key allegations. The Investigator noted that she considered all of the parties’ evidence and conducted several interviews, including with the Applicant. She then addressed each of the Applicant’s three grounds: harassment; discrimination (also referred to as alleged differentiation in employment); and, retaliation. The Investigator noted that there was “overlap” in the Applicant’s allegations under each ground.
[27] The Investigator found that the allegations of harassment could not reasonably be described as such, noting that harassment is defined as “any unwanted physical or verbal conduct that offends or humiliates an individual”. The Investigator cited the jurisprudence that has interpreted the definition and provided examples of behaviour that may constitute harassment, including threats, unwelcome remarks or jokes, or unnecessary physical contact. The Applicant’s allegations related to TC’s conduct, including requesting her to attend a FTWE, refusing to accept her doctor’s recommendations for accommodation, delaying her Record of Employment, and making deductions from her pay. The Investigator found that the allegations, even if they were true, did not fall within the definition of harassment. The Investigator also noted that all of the allegations could be thoroughly addressed under the headings of adverse differentiation and retaliation.
[28] With respect to alleged adverse differentiation in employment, the Investigator considered the Applicant’s allegation that she was faced with a “resign or retire” option. The Investigator found that this alleged treatment did not occur. Although TC sent the Applicant a letter which advised her that she was required to make a decision regarding her future employment, the Investigator noted that the Applicant ultimately indicated that she intended to return to work and, eventually, did return. Therefore, she was never forced to “resign or retire”.
[29] With respect to the Applicant’s claim that TC refused her doctor’s recommendations and required a FTWE, the Investigator found that the alleged treatment did occur, because the Applicant was told that she would be required to undergo a FTWE before returning to work. The Investigator also found that this treatment was directly linked to the Applicant’s disability.
[30] The Investigator concluded, however, that TC had a reasonable explanation for this treatment. The Investigator found that TC acted reasonably because: the information provided by the Applicant’s doctor did not explain the Applicant’s cognitive or functional limitations or restrictions; the doctor had not responded to repeated requests for clarification; the list of accommodations was contradictory and confusing; the RTW plan was unhelpful, and appeared to have been “significantly altered with handwritten notes”; TC tried to obtain clarification from the Applicant’s doctor about her medical restrictions and limitations, but waited several months for a response, which was also not clear; and, accordingly, TC requested that the Applicant undergo an independent exam. The Investigator added that TC acted reasonably in pursuing the FTWE given that TC only did so to develop a reasonable accommodation plan for the Applicant to return to work. The Investigator also noted that the Applicant did not undergo the FTWE assessment before returning to work. The Investigator concluded that TC’s decision to request the Applicant to submit to a FTWE - which did not occur in any event - was not a pretext for discrimination.
[31] The Investigator then considered the Applicant’s claim that TC discriminated against her by delaying the provision of her Record of Employment to her, and by delaying the provision of necessary information to Sun Life. The Investigator acknowledged that there were minor delays on the part of TC, but held that, apart from the Applicant’s belief, there was no evidence that this treatment was a pretext for discrimination, or that this was done purposely for any reason. The Investigator noted that TC employees provided reasonable explanations for the short delay in these administrative processes.
[32] Although the Applicant alleged that TC discriminated against her by improperly disclosing that she was receiving LTD benefits and by deducting pay and benefits owed to her without explanation, she acknowledged that she had no evidence to support this. The Investigator concluded that there was insufficient evidence to conclude that the alleged treatment occurred.
[33] The Investigator found that there was no evidence of retaliation by TC against the Applicant due to her previous human rights complaint, as she had alleged. The alleged retaliatory conduct was the same conduct that the Applicant alleged with respect to harassment and adverse differentiation in employment. The Investigator reiterated that there was no evidence to support most of these alleged instances of misconduct, and when there was such evidence, TC had reasonably explained that the conduct was not a pretext for discrimination. More importantly, the Investigator found that the Applicant had provided no evidence to link the alleged mistreatment to the fact that she had previously filed a human rights complaint.
[34] In conclusion, the Investigator recommended that the Commission dismiss the complaint pursuant to subparagraph 44(3)(b)(i) of the Act because, “having regard to all the circumstances of the complaint, further inquiry is not warranted”.
G. The Opportunity to Make Submissions in Response to the Investigator’s Report
[35] On August 19, 2016, the Investigator alerted the Applicant, by email, that she would be disclosing the Investigation Report the following Monday (August 22, 2016) and that it would be sent to the Applicant. The Applicant replied on August 26, 2016 advising that she was out of the country due to a death in her family and would return to Canada on September 21, 2016. The Applicant requested that the Investigation Report be sent to her electronically and that an extension of time be given to her to make submissions in response to the Report, adding “that has to take into consideration the different accommodations provided to me by the Federal Court regarding the files against the Commission”.
[36] On August 29, 2016, the Investigator agreed to send the Report by email upon confirmation that the Applicant accepted the risks associated with email transmission, noting that it was not the Commission’s practice to send confidential reports by email. The Investigator also advised that she did not know what accommodations the Federal Court had provided and asked the Applicant what length of extension she was requesting and why.
[37] A lengthy exchange of email ensued between the Investigator and the Applicant with respect to the request for an extension of time. The Investigator repeatedly asked the Applicant about the length of the extension she required and for further information regarding the extenuating circumstances which could justify an extension. The Applicant took the position that the Investigator’s request was insulting, that the Commission had failed to accommodate her, and that the accommodation provided by the Federal Court was on the Commission’s file.
[38] On September 15, 2016, the Applicant emailed the Investigator stating that she required an extension until December 19, 2016 to make her submissions. The Investigator replied that she could grant an extension until October 21, 2016 (one month after the Applicant’s return to Canada) but could not grant a further extension unless further information regarding the Applicant’s extenuating circumstances was provided. On September 30, 2016, the Applicant replied by email stating that her circumstances had been ignored, her request for an extension had been refused, and as a result, she could not provide her submissions within the imposed time frame. The Applicant did not file any submissions in response to the Investigator’s Report.
H. The Commission’s Decision
[39] The Commission adopted the Investigator’s recommendations, and dismissed the Applicant’s complaint.
I. Consolidation of Two Applications
[40] As noted above, the Applicant sought Judicial Review of the decision of the Commission pursuant to section 40/41 to deal with (i.e. investigate) the complaint and to include harassment in the Summary of Complaint. The Applicant also sought Judicial Review of the Commission’s decision, following the Investigation Report, to dismiss her complaint pursuant to subparagraph 44(3)(b)(i). By agreement, both Applications were consolidated given that they raise basically the same issues and, despite the Applicant’s dissatisfaction with the section 40/41 Report, her complaint was, in fact, investigated.
II. The Applicant’s Overall Position
[41] The Applicant has raised many issues and arguments in support of her overall contention that the decision is not reasonable and that the Commission breached procedural fairness, including by failing to accommodate her and by demonstrating a closed mind or bias.
[42] The Applicant submits that the section 40/41 Report was flawed and incomplete, because the Commission did not permit her to amend her complaint to add parties, or add allegations (including those occurring after the complaint was filed), and also because the Report did not include all the grounds for her complaint. With respect to the Commission’s decision to dismiss her complaint pursuant to subparagraph 44(3)(b)(i), the Applicant submits that the Investigator’s reasons are not adequate, including because they are inconsistent with the Act and with relevant policies, do not set out the principles relied on or refer to the relevant jurisprudence. She also submits that the Commission did not permit her to make submissions in response to the Investigation Report.
[43] Although the Court will address the arguments under broader headings of procedural fairness and reasonableness, for the sake of completeness, all of the Applicant’s arguments are briefly set out below.
[44] The Applicant submits that the Commission erred by:
Refusing to exercise its jurisdiction to add TB and Sun Life as respondents to her complaint;
Refusing to amend the complaint to allow her to add additional retaliatory, harassing and discriminatory incidents which occurred after she filed her complaint in April 2014;
Refusing to include all the grounds set out in the Summary of Complaint in its final decision regarding the section 40/ 41 Report;
Refusing to amend the complaint to challenge the constitutionality of TB’s Policy on Harassment; and,
Adopting the Investigator’s finding that TC had made a genuine attempt to obtain the required medical information and that TC was justified in compelling her to submit to an independent medical examination.
[45] The Applicant also submits that the Commission breached procedural fairness by:
Refusing to provide her with additional complaint kits to add CAPE, Sun Life and TB as parties;
Refusing her request for an extension of time to make submissions in response to the Investigation Report;
Failing to conduct a proper investigation;
Issuing a decision based on the Investigator’s Report with inadequate reasons, which hinders the ability to understand the decision and permit judicial review;
Taking the witnesses’ testimony at face value and disregarding the evidence she submitted during the investigation;
Ignoring or misconstruing evidence she submitted during the investigation; and,
Approaching the Investigation with a closed mind.
[46] The Court notes that the Applicant’s allegations regarding the treatment of the evidence are best characterized as allegations that the investigation was not thorough. The thoroughness of the investigation is an issue of procedural fairness (Joshi v Canadian Imperial Bank of Commerce, 2015 FCA 92 at para 6, [2015] FCJ No 454 (QL) [Joshi]). The Applicant’s allegation regarding the adequacy of the reasons is not an issue of procedural fairness, rather this relates to the reasonableness of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-15, [2011] 3 SCR 708 [Newfoundland Nurses]).
[47] The Court also notes that the Applicant has raised several of the same arguments with respect to both procedural fairness and the reasonableness of the decision.
III. The Respondent’s Overall Position
[48] As a preliminary issue, the Respondent submits that parts of the Applicant’s affidavits are improper as they contain argument and legal opinion, and include evidence about events that post-date the complaint period and that was not before the Investigator, as well as evidence that is irrelevant.
[49] The Respondent submits that the Commission’s decision is thorough, the process was procedurally fair and the decision is reasonable. Perfection is not the standard.
[50] The Respondent notes that the Applicant submitted over 650 pages to the Commission. The Commission considered the key evidence and cannot be expected to mention every document, letter, email, or policy included. The Commission focussed on the elements of the complaint, many of which repeated the same allegations under different headings. The Applicant had an opportunity to make submissions, including to respond to the Investigation Report, but chose not to do so.
IV. The Issues
[51] Although the Applicant has raised many issues, the main issues are:
Whether parts of the Applicant’s three affidavits should be struck;
Whether the investigation was thorough (which is an issue of procedural fairness);
Whether the Commission otherwise breached the duty of procedural fairness; and,
Whether the decision is reasonable.
V. The Standard of Review
[52] The parties agree that the issues of procedural fairness should be reviewed on the correctness standard.
[53] Although previous jurisprudence may have left some uncertainty regarding whether deference plays any role in issues of procedural fairness, the Federal Court of Appeal provided clarity in Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69, [2018] FCJ No 382 (QL) [CP Rail]. In CP Rail, Justice Rennie confirmed, at para 34, that issues of procedural fairness are reviewed on the correctness standard.
[54] Of relevance to the issues in the present Application, Justice Rennie reiterated that the context and circumstances inform the duty, as do the five Baker factors (from Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at 837-841, 174 DLR (4th) 193 [Baker]), one of which is the deference paid to a tribunal’s choice of procedure. At para 56, Justice Rennie emphasized that the fundamental question regarding procedural fairness is whether the applicant “knew the case to meet” and had “a full and fair chance to respond”.
[55] Whether the investigation was thorough is characterized as an issue of procedural fairness (Joshi at para 6).
[56] The other issues raised by the Applicant are reviewable on the reasonableness standard.
[57] Decisions by the Commission whether or not to deal with a complaint pursuant to subsection 41(1), are discretionary and entitled to deference (Zulkoskey v Canada (Minister of Employment and Social Development), 2016 FCA 268 at paras 14-15, [2016] FCJ No 1339 (QL)). The appropriate standard of review is reasonableness.
[58] Similarly, decisions by the Commission to dismiss a complaint under paragraph 44(3)(b) of the Act are reviewed on the standard of reasonableness.
[59] Where the standard of reasonableness applies, the Court determines whether the Commission’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]. This requires the Court to consider “the existence of justification, transparency and intelligibility within the decision-making process” (Dunsmuir at para 47). Deference is owed to the decision-maker, in this case, the Commission. In the event that the Court were to find that the decision was not reasonable, the complaint would be referred back to the Commission for reconsideration.
[60] The inadequacy of the reasons is not an independent ground of judicial review. In Newfoundland Nurses, the Supreme Court of Canada elaborated on the requirements of Dunsmuir, noting at paras 14-16 that reasons are not required to set out all the arguments, statutory provisions, jurisprudence or other details that a reviewing Court might prefer. Nor is the decision-maker required to make an explicit finding on each element that leads to the final conclusion. The reasons are to “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). In addition, where necessary, courts may look to the record to assess the reasonableness of the outcome (at para 15). The Court summed up the key principle at para 16, noting that, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”.
[61] The role of the Commission in circumstances similar to this case has been the subject of considerable jurisprudence. For example, in Tutty v Canada (Attorney General), 2011 FC 57, 382 FTR 227, Justice Barnes noted at paras 12-14:
12 The Commission’s screening function under s 44 of the Act has been compared to the role of a judge presiding over a preliminary inquiry. The role was described by the Supreme Court of Canada in Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854, 140 DLR (4th) 193 at para 53 as follows:
53 The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de L’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899:
The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.
[Emphasis in original]
[62] Justice Barnes added, at para 13, that where the Commission’s decision is consistent with the Investigator’s Report and recommendations, the Report is considered to be part of the reasons (citing Sketchley v Canada (Attorney General), 2005 FCA 404 at para 37, [2006] 3 FCR 392 [Sketchley]).
[63] In Canadian Union of Public Employees (Airline Division) v Air Canada, 2013 FC 184 at paras 60-63, 53 Admin LR (5th) 1 [CUPE], Justice Mactavish also explained the role of the Commission, the governing principles and the standard of review.
[64] As noted above, two decisions have been consolidated in this Application for Judicial Review. The Court has considered whether the decision to deal with (i.e. to investigate) the complaint is reasonable. In addition, the Court has considered whether the Commission’s decision to dismiss the complaint is reasonable. In doing so, the Court has considered whether the Commission’s assessment of the evidence and conclusion that it was not sufficient to warrant further inquiry is reasonable; and, whether the Commission breached procedural fairness, which includes consideration of whether the Investigation was thorough.
[65] Given that the issues and arguments raised by the Applicant with respect to both decisions are related, the Court’s reasons address several of the issues together.
VI. Preliminary Issues
A. The Applicant’s Affidavits
[66] The Respondent argues that significant portions of the Applicant’s three affidavits should not be considered because they include evidence about events which post-date the complaint period; include information that is irrelevant to any issue in this application, and which was not before the Investigator; and, include argument and legal opinion. The Respondent is not asking that the affidavits be struck, rather that the Court attributes the appropriate weight to their contents.
[67] The Applicant responds that her affidavits comply with rule 81 of the Federal Courts Rules, SOR/98-106. In her view, the content of her affidavits provides relevant background information, sheds light on the procedural defects she alleges and does not include argument or legal opinion.
[68] Contrary to the Applicant’s submission, parts of the affidavits clearly contain opinion and argument, albeit arguments which are, to some extent, repeated in her Memorandum of Fact and Law. The affidavits also include information that post-dates the complaint and which was not part of the record before the Investigator. I have taken the same approach to these affidavits as Justice McVeigh did with respect to similar affidavits in Georgoulas #1 at paras 21-22. The reasonableness of the decision will be based on the record that was before the Commission. The content of the affidavits which relate to allegations of a breach of procedural fairness by the Commission will be considered, where relevant.
B. The Respondent’s Memorandum of Fact and Law
[69] At the hearing of this Application, the Applicant raised, as a preliminary matter, her concerns about the content of the Respondent’s Memorandum of Fact and Law, which she argues: misstates some facts, is misleading in parts, and includes evidence given by the Respondent.
[70] I do not find any impropriety in the Respondent’s Memorandum of Fact and Law. The Respondent is entitled to make arguments in response to the Applicant’s allegations. The Applicant had the opportunity to reply to the Respondent’s Memorandum and did so. The nature of pleadings is to set out the respective positions of the parties and the evidence and authorities relied on in support of their arguments.
VII. Did the Commission Breach its duty of Procedural Fairness?
[71] The Applicant alleges that the Commission breached procedural fairness by failing to conduct a thorough investigation and in the manner in which it dealt with her and with her complaint, including by: refusing to provide her with additional complaint kits; refusing to grant her a three-month extension of time to make submissions in response to the Investigation Report; refusing to correspond with her by email; and, addressing her complaint with a closed mind (in other words, showing bias or lack of neutrality).
A. Was the Investigation Thorough?
(1) The Applicant’s Submissions
[72] The Applicant makes several allegations which are best characterized as allegations that the Investigation was not thorough.
[73] The Applicant continues to submit that the Commission erred by omitting “harassment” from its initial Summary of Complaint, and in its subsequent amendments to the summary. As noted above, at the section 40/41 stage, the Commission agreed to “amend the complaint to include harassment” given the Applicant’s request, and despite the section 40/41 Report’s recommendation. The Applicant mistakenly interprets the Commission’s decision to “include harassment” as a decision to exclude the grounds of retaliation and discrimination, which she submits was unlawful. Based on the Applicant’s view that the Commission decided to only proceed with an investigation into harassment, she submits that the Investigator had no authority to consider the other two grounds and