Gosal v. Canada (Attorney General)

Gosal v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-05-18
Neutral citation
2011 FC 570
File numbers
T-378-10
Decision Content
Federal Court
Cour fédérale
Date: 20110518
Docket: T-378-10
Citation: 2011 FC 570
Ottawa, Ontario, this 18th day of May 2011
Present: The Honourable Justice Johanne Gauthier
BETWEEN:
PAULINE KAUR GOSAL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Ms. Pauline Kaur Gosal, who represents herself, seeks judicial review of the decision of the Canadian Human Rights Commission (the Commission) dismissing her complaint against the Royal Canadian Mounted Police (the RCMP) pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, RSC 1985, c H-6 (the Act) on the basis that the evidence did not support the allegation that the RCMP failed to provide a harassment-free work environment nor did it support the allegation that the complainant was refused employment because of her sex and/or national or ethnic origin.
[2] For the reasons that follow, the Court finds that the decision is reasonable and that the applicant has failed to establish a breach of procedural fairness.
[3] I have no doubt the applicant will be deeply disappointed by my findings. She may not fully appreciate that the Commission can only focus on conduct based (even if only in part) on a prohibited ground of discrimination (sections 7 and 14 of the Act). Furthermore, the Commission’s role is not to review generally matters that fall outside of her current complaint. This means that even if she, and others like Corporal (Cpl) Dave Reichert, may have been “rejected by certain individuals at Port Mann” and subjected to a “vindictive” work environment, such difficulties unrelated to her complaint, which alleged that her application to become a Regular Member of the RCMP was rejected on prohibited grounds of discrimination in the Act, are not relevant.
I. Background
[4] The applicant has worked as a Federal Public Service employee (“PSE”) since 1990 (Canada Customs). She has been a PSE with the RCMP since April 1995, working in various administrative positions in different departments such as: the Integrated Proceeds of Crime Unit, the “E” Division Staffing and Personnel (recruiting clerk) and at the Border Integrity Unit (support clerk) where she remained for more than three years. She voluntarily transferred, in December 2002, to the Lower Mainland District Traffic Services – Port Mann Freeway Patrol Office as a detachment clerk (CR‑04 classified position) and worked there until February 2006. The applicant also worked as an active peace officer with the Surrey RCMP Auxiliary Constable Program since 2000.
[5] As mentioned above, the applicant alluded to the fact that she experienced much stress and difficulties at Port Mann. Since in her October 2009 submissions to the Commission, she mingles the internal complaint that she filed against a female co-worker in December 2004 with the racist and sexist comments disclosed in her complaint to the Commission, it is worth saying a few words about this situation. Obviously, it is not my intention to fully describe everything that the applicant went through during that period.
[6] It appears that for some time, there were operational difficulties at Port Mann in that there was enough work for two full-time CR‑04 positions, if not three. For various reasons, the applicant became overloaded and had issues with co-workers particularly Ms. Bobbi Bodden, also a CR-04, who used to be assigned to the tasks now performed by the applicant. In early December 2004, the casual PSE clerk working with the applicant indicated that she could no longer work with her. Then, the area service manager, Staff Sergeant (S/Sgt) Jim McVey, allegedly received a report from Informatics showing that Port Mann had a very high error rate in the OSR reports (later in the CPICs) which prompted him to attend Port Mann on December 13, 2004 to meet with all those concerned including the applicant, who was involved in such tasks. During this meeting, Ms. Gosal allegedly raised the issue of unfairness in the work distribution.
[7] On December 17, 2004, the applicant wrote to S/Sgt McVey to formally complain about her work situation and more particularly the fact that she was being bullied by Ms. Bodden who, according to her, was obsessed that she complete her work in the exact same way Ms. Bodden used to perform these tasks.[1] She further indicated that problems between her and the casual clerk referred to above were in fact the result of interference by Ms. Bodden. After explaining in detail the situation prevailing at Port Mann, the applicant asked S/Sgt McVey to put an end to the bullying by Ms. Bodden which, in her view, also impacted on other PSEs, by relocating Ms. Bodden to the Surrey office where her direct line supervisor was located (Inspector (Insp.) Derek Cooke). According to later comments on file from Insp. Cooke, this was not possible because of lack of space in Surrey and the fact that Ms. Bodden’s job related to a whole area, where Port Mann was centrally located and one of the busiest units in the said area.
[8] According to the documents filed by the applicant, Port Mann was determined, at the beginning of 2005, to be the fifth worst unit in “E” Division and the fifteenth worst in all of Canada in respect of current OSR error reports, a task for which the applicant was responsible at least in part, as mentioned above. It is worth noting here that it also appears that the applicant had not received any particular training for this task,[2] and that after receiving some support from Informatics she quickly improved and materially reduced the level of errors within a few months.
[9] However, the difficulties experienced by the applicant with Ms. Bodden did not go away. She states that after she filed her complaint against Ms. Bodden, even the demeanour of her direct line supervisor (acting Sgt (Cpl) Robert Nordlund)[3] changed, when previously the applicant did not find him to be “particularly unpleasant or disagreeable” (Applicant’s affidavit at paragraph 21). After Insp. Cooke listed all the options open to Ms. Gosal to address this situation, and only in an effort to settle the matter, the applicant accepted Insp. Cooke’s offer to transfer her to a new unit in Langley. This is the background which led to the applicant’s voluntary transfer to the unit under the command of Sgt Jim Dallin, who later intervened to seek a review of her recruitment application file.[4]
[10] In her November 28, 2005 e-mail to Insp. Cooke regarding this transfer, she notes that she still feels strongly that even after her departure “a review of the unbalanced duties for the two CR­-04 positions is still imperative.” Again, this aspect is clearly not a matter that the Commission was asked to investigate.
[11] While the above was going on, in September 2004, the applicant applied to become a Regular Member of the RCMP, a fact she did not publicize. On October 19, 2005, she was notified that her application had been rejected.
[12] It is not clear exactly when she learned from two former colleagues at Port Mann, Constable (Cst) Marvin Wawia and Cst Ken McKinny,[5] that Sgt Nordlund had made sexist and racist comments about her in November 2004. Certainly, there is no mention of such conduct in her exchange with Insp. Cooke at the end of November 2005. Nevertheless, she notes in her written complaint to the Commission that these comments were brought to her attention around November 2005.
[13] Be it as it may, on May 1, 2006, the applicant filed a formal harassment complaint with Insp. Cooke in respect of Sgt Nordlund’s conduct.
[14] In September 2006, the applicant first contacted the Commission about the matters that would later become the subject of the complaint at issue here, but she was advised that she should first exhaust the grievance or review procedures otherwise available to her (see paragraph 41(1)(a) of the Act). A year later, after pursuing the internal mechanisms available to her, she contacted the Commission again. On January 29, 2008, the Commission sent a letter acknowledging that it would deal with her complaint.
[15] Although there were not many details, either before the decision-maker or before the Court, concerning the complaints or grievances Ms. Gosal filed, it appears from her complaint to the Commission that at least two of the five complaints[6] she made within the RCMP were found to be substantiated enough to warrant an internal investigation by the Assistant Commissioner and ultimately resulted in a reprimand to Sgt Nordlund, a recommendation for special sensitivity training and finally the loss of his job at Port Mann.
[16] On November 23, 2007, the applicant filed the complaint that started the process ending with the decision under review.
[17] In the said complaint against the RCMP, the applicant notes that while working she was “subject to discrimination and harassment due to my sex and ethnic background [self-identified as East Indian].” She states that she feels “that these derogatory, racial and sexual comments … were made against [her] gender, against [her] ethnic background, and against [her] personally”.
[18] The applicant then refers to her work at Port Mann Traffic Service in Burnaby where, for the most part of her four years’ employment she was under the direct supervision of Sgt Nordlund. She then refers to her September 2004 application to become a Regular Member of the RCMP and the fact that it was rejected in October 2005. She further notes that in November 2005 she canvassed numerous co-workers and previous line supervisors for reference letters to “re-savor” her recruitment file. This was allegedly done in the hopes of having a full review of her application file. She then states, as discussed above, that around November 2005, she learned from the two colleagues mentioned earlier that Sgt Nordlund had made “racial and direct sexual comments about [her] in around November, 2004.” After quoting the said remarks, she adds:
I believe these malicious, demeaning, distasteful racial and sexual comments and the baise [sic] opinion of my line supervisor subsequently quashed my career opportunity in becoming a member of the Royal Canadian Mounted Police.
[19] The applicant goes on to note that she has now exhausted all the internal avenues and alternate redresses within the RCMP and refers specifically to the two complaints that were investigated. She mentions that in April 2007 she was only informally advised by e-mail from the investigator that “Sgt Nordlund was given a formal reprimand (written) with a recommendation for specialized training.” She further mentions that “her concerns for personal recourse” had not been addressed by the RCMP in relation to Sgt Nordlund’s conduct given that no damages were awarded to her. In that respect, she says:
In its completion of these two investigations, the RCMP has not addressed the corrective action that I was seeking. The ever presence of the environment attitude lead me to suffer psychological and financial hardship. My character has suffered irreparable damage, consequently due to these false and malicious comments made by this individual who held a position of power of authority. As a result of this inflicted damage it has greatly affected my views of RCMP management practices.
My experiences in this Detachment has left me very unhappy, discouraged, lack of self-esteem and confidence has been greatly been affected. Harassment, racism, discrimination, and personal vendetta appear to be tolerated and even supported by the RCMP.
As of this date, there has been no correspondence of any sort nor any communication as to how I may be compensated.
[20] On May 8, 2008, the parties were informed that the Commission would investigate the complaint.
[21] The report of this investigation was issued on October 2, 2009 and circulated to the parties on October 8, 2009. As the applicant contests the results of the investigation and the treatment given to her comments to the Commission after receiving a copy of the report, the Court will describe in some detail the investigation and the applicant’s response to it.
[22] The investigator interviewed the following six witnesses: Ms. Gosal; Cst Richard Chow, the person from the “E” Division Recruiting Unit who reviewed Ms. Gosal’s application file; Inspector Davis Wendell, Commander of the Pacific Region Recruiting Section; Sgt Robert Nordlund; and Cpl Dave Reichert and Cst Patricia Yiendrys, two witnesses cited by Ms. Gosal.
[23] In his report the investigator lists the documentation received from the respondent. The investigator also consulted “documents provided by the complainant in support of her position, mainly exchange of correspondence, work assessments, positive comments from various individuals, and personal notes.”
[24] It appears from the applicant’s affidavit that the investigation file comprised about 800 pages including all the material she had sent to the first investigator.[7]
[25] The analysis is under two distinct headings: whether the respondent failed to provide a harassment-free work environment; and whether the complainant was refused employment because of her sex and/or national or ethnic origin.
[26] In the section dealing with the harassment, the investigation into the conduct itself was limited given that the RCMP acknowledged through its various internal investigations that the conduct had taken place. The words used by Sgt Nordlund left no doubt that they were based on a prohibited ground.
[27] Thus, pursuant to subsection 65(2) of the Act, the real issue left to be determined was whether the RCMP, Sgt Nordlund’s employer, could be exempted from responsibility for the act or omission of its employee. To benefit from such exemption, the RCMP had to establish that (a) the act took place without the employer’s consent;[8] (b) the employer exercised all due diligence to prevent the act or omission; and (c) the employer subsequently exercised all due diligence to mitigate or avoid the effect thereof. From the documentation referred to above including particularly the report of the two investigations carried out by Sgt Nelson Aranguiz as well as the measures taken (letter of reprimand, further sensitivity training and ultimately removal of Sgt Nordlund from his Port Mann office), the investigator concluded that the employer’s reaction “appears to be prompt, effective and proportional to the particular situation of harassment.”
[28] On this basis, he recommended that this part of the complaint (the racial sexual comments made in November 2004 by Sgt Nordlund) be dismissed because the evidence gathered did not support the allegation that the employer failed to provide a harassment-free work environment within the meaning of section 65.
[29] In her ten-page reply submissions filed on October 28, 2009, the applicant addresses her comments to the paragraphs of the investigation report. The comments most relevant to this first issue are those in respect of paragraphs 12 to 30, 50 and 53. After raising some questions as to the meaning of paragraph 14, the applicant focuses on the fact that the investigator should have interviewed additional witnesses, and strongly disagrees with the finding that the RCMP took appropriate action to deal with the conduct.
[30] This is where the applicant inter-mingles the complaint made on May 1, 2006 with the bullying reported to S/Sgt McVey on December 17, 2004. She also notes that all employees of the RCMP had to take an online harassment workshop course along with a test and so she questioned what “other specialized training course” would Sgt Nordlund have had to complete considering that this general course basically covers all aspects of harassment, discrimination and sexual conduct. Moreover, she notes that the fact that he was removed from office had no effect on her given that she had already left the office at Port Mann. Finally, with respect to the reprimand, she notes that this would only have an impact if Sgt Nordlund applied for a promotion or a transfer to a new unit. It did not translate in any loss of wages or monetary hardship for him. The applicant also adds as mentioned that the other complaints she made within the RCMP process, that were found to be unsubstantiated and therefore not investigated, should have been investigated by the Commission. She then refers to parties nowhere mentioned in her complaint, such as Cpl Paulo Baptista[9] and Cpl Dan Boyer, alleging that both gentlemen were found guilty of complaints by third parties.[10]
[31] Under the heading “Was the complainant qualified or otherwise eligible for the employment?”, the investigator notes that the applicant stated that Sgt Nordlund encouraged other members to negatively influence her effort to become a regular RCMP member. She adds that he was very influential on the recruiting file so much so that all positive reports from other members at Port Mann and all positive reports from previous units she had worked with were ignored.
[32] Ms. Gosal apparently identified the following individuals as having detrimentally affected her application process under the influence of Sgt Nordlund: S/Sgt McVey, Cst Richard Chow, Acting Sgt Joe Lew and Inspector Sutherland. In her rebuttal to the RCMP submissions to the investigator, it appears that Ms. Gosal also cited negative comments made by the individuals mentioned above that were part of the field investigation done to assess her suitability. The investigator mentions that she insisted on saying that her assessment was based solely on comments from this small group of individuals.[11]
[33] After reviewing the details of the first investigation into the applicant’s suitability (a crucial step in the application process), the investigator states that the retired member of the RCMP who carried out this investigation had interviewed 38 individuals. Excluding those mentioned by the applicant as having detrimentally affected her application, the investigator notes that 17 individuals raised issues either with her work performance or as a character witness that could impact on the applicant’s overall suitability.[12]
[34] He then considered the review of the applicant’s application filed by Cst Chow on November 2, 2005 (approved by A/Sgt Lew, a gentleman assumed by Ms. Gosal to be an acolyte of S/Sgt McVey, and therefore of Sgt Nordlund, because he signed one e-mail addressed to the said S/Sgt McVey with the following remark: “Joe (the rookie back in 1995 at Coquitlam)”).
[35] The investigator also interviewed Cst Chow who explained the various steps and the independent reviews during the selection process as well as the overall picture emanating from the comments made by a large number of witnesses that led him to the conclusion that the applicant was not suitable for enrolment as a Regular Member. During his interview, Cst Chow stated that he knew Sgt Nordlund by name and did not know S/Sgt McVey or Cpl Boyer. The investigator then consulted the report of the final review of Ms. Gosal’s application file conducted by Cpl Lana Jardine who was appointed by Inspector Wendell to review this matter again in April 2007.[13] Inspector Wendell explained to the investigator among other things, that Cpl Jardine had been chosen because she was new to the Recruiting Section and therefore totally uninvolved with the prior investigations.
[36] The two witnesses interviewed by the investigator, because according to Ms. Gosal they could support her allegation, were found to offer only general and vague comments in so far as this particular aspect of the case was concerned. Cpl Reichert explained having experienced “a treatment similar to that of the complainant in that he was ‘rejected’ by certain individuals at Port Mann, namely Sgt Nordlund, S/Sgt McVey and Cpl Boyer” and was falsely charged with not showing up for work because Cpl Boyer allegedly “wanted his job”. His views that this group was “dysfunctional” and “very vindictive” were duly acknowledged, but the investigator notes that he could not provide any evidence relating to the potential influence of these individuals on the selection process. Similarly, Cst Yiendrys could not provide such evidence. She mentioned that she had a “perception” that a group of individuals was “setting [Ms. Gosal] up to fail” and that both she and the complainant were under a lot of stress. Most of what she related was hearsay coming from the complainant.
[37] The investigator concluded from his analysis of the material and the initial assessment and the two reviews of the application file all signed by different individuals, that the application was denied because of work performance and a discrepancy in Ms. Gosal’s security/reliability interview. Based on his own analysis of the supporting documents and the interviews he conducted, the conclusions in the above-mentioned reports appeared to be supported, whereas the complainant could not offer evidence of her allegation that the initial investigation was based entirely on the comments made by the “Nordlund clique”.
[38] The bulk of Ms. Gosal’s submissions to the Commission deal with this section of the report. She says and repeats several times that the investigator was not fair and unbiased nor were the individuals who signed the various reports relating to her failed application. In her view, the investigator was naïve in accepting the new and false reasons concocted by Inspector Wendell to make good on his promise to his superior that the RCMP stood on solid grounds vis-à-vis her complaint.[14]
[39] She also mentions the unfairness of the investigator who failed to provide her with a copy of some documents listed in the report – namely the Pacific Region Recruiting Section Attrition Tables (paragraph 10 j.) and the Applicant Selection Process Maps (paragraph 10 k.). She also attacks the fairness of the investigation in that it was incomplete for the investigator did not interview all the witnesses she referred to in the extensive material submitted. She claims that he obviously did not look at this documentation before concluding that “she was unable to offer evidence to support her position”. She also requested copies of the assessment conducted by Sgt Ferguson dated December 5, 2007 (paragraph 10 h.) and the General Applicant File Summary provided by Inspector Wendell (paragraph 10 i.) both documents she argued were produced recently and are intended to distort the original reasons for why her application was denied. Ms. Gosal then goes into the details of her understanding of what really went on and how the comments of Sgt Nordlund and his clique impacted on the initial assessment of her application. In her remarks she essentially covered all the grounds that she presented to this Court in respect of the lack of thoroughness and unreliability of the decision except for the fact that she added in her affidavit in support of this application, that the investigator was biased in light of his background as a career officer in the Canadian Forces. Among other things, Ms. Gosal refers to a series of e-mails that were originally forwarded to the first investigator to support her allegation that Sgt Nordlund and S/Sgt McVey through Alex Bodden (husband of Ms. Bobbi Bodden) and members of the Recruiting unit prevented her from going to Depot (getting accepted to train to become a Regular Member).
[40] In its own submissions to the Commission (December 4, 2009) the respondent stated that no new evidence was introduced in Ms. Gosal’s response letter to shed further light on her case and it clarified certain paragraphs: i) that becoming a Regular Member was not a promotion within the RCMP, ii) the distinctions between the work of Auxiliary Constables and Regular Members of the RCMP, iii) the fact that disciplinary actions taken are confidential and the details would not normally be disclosed.
[41] The respondent also referred to the various review and accountability checks in place within the Recruiting unit and clarified the fact that Ms. Gosal’s transfer out of Port Mann was subject to Treasury Board policies and collective agreements whereas transfer of Regular Members of the RCMP are dictated primarily by operational means. This would presumably explain the alleged delay in her transfer.
[42] On February 3, 2010, the Commission issued its decision. As usual, it is brief. It refers to the submissions received but does not deal expressly with any of the issues commented upon by Ms. Gosal. It essentially adopts the conclusions of the investigation report.
II. Analysis
[43] Ms. Gosal raised the following issues:
The Commission breached procedural fairness by providing inadequate reasons and relying on an investigation that was not thorough. Moreover, the investigator was not neutral. The Commission’s decision is unreasonable when one considers all the evidence before the investigator.
[44] The relevant provisions of the Act are attached in Annex A.
[45] At the beginning of the hearing, the defendant objected to numerous paragraphs in Ms. Gosal’s affidavit on the grounds that they were based on hearsay, conjecture and speculation and to the consideration of the exhibits filed in support of her application. The Court ruled that all the exhibits that were before the investigator could be considered (this excludes Exhibit W and the work assessments dated after the investigation report was issued in Exhibit S) to determine if there was a breach of procedural fairness particularly in respect of the thoroughness of the investigation. They could not normally be considered in assessing whether the overall decision was reasonable (Niaki v Canada (AG), 2006 FC 1104 at paras 25-26; Canadian Broadcasting Corporation v Paul, 2001 FCA 93 at para 69; Canada (Human Rights Commission) v Pathak, [1995] 2 FC 445 (CA) at para 12). That said, to prevent any injustice and to properly assess the material relied upon by Mr. Beitel, the retired member of the RCMP who assessed Ms. Gosal’s application file in August 2005, before making his recommendation to reject her application for recruitment, and referred to in paragraph 35 of the investigation report, the Court did consider the exhibits mentioned above.
[46] The case law is clear that the Commission’s power to dismiss a complaint pursuant to subsection 44(3) of the Act is discretionary and that its decisions should be afforded a high degree of deference. The Court will apply the standard of reasonableness to determine the validity of the decision based on the overall evidence before it, for it involves a mixed question of fact and law (Niaki, above, at para 31; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51, 53).
[47] With respect to the alleged breach of procedural fairness, the standard of review is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 and Dunsmuir, above).
A. Breach of procedural fairness
Principles
[48] It is trite law that the content of the duty of procedural fairness is variable and depends on the context. In Sketchley v Canada (AG), 2005 FCA 404, a brief decision contained in a letter such as the one issued in this case constituted valid reasons when supplemented by the investigation report. When the investigator’s conclusions are adopted by the Commission, the report forms part of the Commission’s reasons for the purpose of subsection 44(3) of the Act (Sketchley at para 37).
[49] It is not disputed that where a party’s submissions to the Commission pertaining to an investigator’s report allege substantial and material omissions in the investigation and provide support for that assertion the Commission must refer to those discrepancies and indicate, even briefly, why it is of the view that they are either immaterial or insufficient to challenge the investigator’s recommendation (Herbert v Canada (AG), 2008 FC 969 at para 26).
[50] The decision in Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 (TD), was cited as the leading case on the duty of the Commission to act fairly by the Federal Court of Appeal in Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at para 8. In Slattery, Justice Marc Nadon analyzing the content of the duty of fairness set out by Justice Sopinka in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), [1989] 2 SCR 879 [S.E.P.Q.A.] concluded that the parties must be informed of the investigation and have an opportunity to respond and the Commission, in making its decision, is entitled to consider the investigation report, the parties’ submissions and any underlying material as deemed necessary in its discretion. In his opinion:
In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to paragraph 44(3)(a) of the Act, I believe that the investigation conducted prior to this decision must satisfy at least two conditions: neutrality and thoroughness. [para 49]
[51] The test for neutrality “is not whether there exists a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator approached the case with a ‘closed mind’” as was confirmed by Justice Anne Mactavish in Sanderson v Canada (AG), 2006 FC 447 at para 75 (see also Zündel v Canada (AG) (1999), 175 DLR (4th) 512 at paras 17-22).
[52] In determining the degree of thoroughness of the investigation required to meet procedural fairness obligations, Justice Nadon in Slattery said at paragraph 55:
… one must be mindful of the interests that are being balanced: the complainant’s and respondent’s interests in procedural fairness and the CHRC’s interests in maintaining a workable and administratively effective system. …
[53] The view expressed by Justice Nadon in describing what might constitute thoroughness was accepted in Sketchley, above at para 121, as an appropriate description of the content of the procedural fairness. The following two paragraphs from Slattery, which have been followed thereafter, give additional guidelines to determine whether a particular investigation gives raise to a breach of procedural fairness:
56 Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
57 In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
[My emphasis]
[54] In Beauregard v Canada Post, 2005 FC 1383, this Court recognized that the “obviously crucial test” requires that it should have been obvious to a reasonable person that the evidence an applicant argues should have been investigated was crucial given the allegations in the complaint (at para 21). To determine whether the evidence was obviously crucial, the Court must place itself at the time of the investigation and consider the information provided by the complainant to the investigator.
[55] That said, it is worth noting that the Court’s function is not to assume the role of the investigator and that the investigator does not need to interview each and every witness that the applicant would have liked him or her to interview (Slattery, above, at para 69).
[56] In Tahmourpour, above, Justice John Evans writing for the Court identified the matter before it as an “exceptional case” where the failure of the investigator to interview certain witnesses was simply unjustifiable.
[57] In that respect and given the arguments raised by the applicant, the Court also notes that an investigator’s failure to interview the complainant does not in itself reflect on the thoroughness of the investigation if an applicant had ample opportunity to both make her primary case and to respond to the investigator’s understanding of her situation (see Best v Canada (AG), 2011 FC 71 at paras 22-23).
[58] Finally, in respect of the obligation to provide to a particular complainant every piece of documentation exchanged between an investigator and an interested party, the Federal Court of Appeal in Hutchison v Canada (Minister of the Environment), 2003 FCA 133 at paras 49-50, made it clear in reviewing the past jurisprudence that
[t]here is nothing in any of these cases which would support the proposition that every exchange between an investigator and an interested party must be disclosed to the other party. The right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation.
To the extent that the investigation report discloses information contained in a letter or document, the applicant amply exercised her right of response. To the extent that information in a letter or document was not contained in the investigation report, and was not otherwise before the Commission, the right to respond did not arise.
[59] In the same vein, the Federal Court of Appeal in Gardner v Canada (AG), 2005 FCA 284 at paragraph 18, indicated:
In any event, the Commission was not obliged to produce the new evidence to Ms. Gardner simply because it was never put to the Commission itself. What Ms. Gardner was owed and that which she was accorded, was the opportunity to comment on [the] Treasury Board’s submissions which as it turned out, contained the substance of the information in the new evidence.
[60] Finally, administrative tribunals such as the Commission are presumed to have considered all the evidence submitted and are not required to expressly refer to all pieces of evidence upon which their reasons were founded. That said, the more important the evidence that is not specifically mentioned in the tribunal's reasons, the more willing a court may be to infer that the tribunal made an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35, at paras 14-17).
Application of the Principles
[61] With these principles in mind, the Court has carefully reviewed each and every one of the documents produced by Ms. Gosal in support of her allegation that the investigation was not thorough and that the investigator was not neutral.[15] In fact, the Court read and re-read several times the information that was submitted.
[62] First, it is important to establish what the investigator had to concentrate on. His task was to verify whether there were grounds for the applicant’s allegation that the RCMP’s rejection of her application in October 2005 was made on the basis of her sex and/or her ethnic origin. As a first step, he had to determine if the applicant was indeed suitable or eligible for the job. The investigator did not have to investigate the ambiance or work atmosphere at Port Mann, he was not concerned with whether or not there were grounds for her complaint that Bobbi Bodden bullied her or that Sgt Nordlund was trying to get rid of her as a CR­-04 PSE or whether she was given too much work and too little training to do her job at Port Mann. He also did not have to investigate other complaints filed through her union that are unrelated to the complaint filed against Sgt Nordlund.
[63] In her written submissions to this Court, the applicant only refers to the failure of the investigator to interview Cst Wawia and Cst McKinny. It is thus not clear whether she still insists on the argument raised in her submissions to the Commission that the said investigator should also have interviewed Monalee Rendall or Melissa Bell.
[64] From the material produced by Ms. Gosal, it appears that the investigator had a copy of the letters Cst Wawia, Cst McKinny and Monalee Rendell supplied after her application was rejected. It is not clear what more they could have added. It is also worth mentioning again that both Cst Wawia and McKinny were the individuals who appraised the complainant of the discriminatory comments made by Sgt Nordlund. This aspect of their potential evidence had been fully acknowledged and did not need to be further substantiated by the investigator.
[65] There is absolutely no evidence (none was referred to in the submissions to the Commission) that either of these gentlemen or these two ladies would have had anything of value to add in respect of the application process per se. In fact, it appears from the documentation provided that these individuals were not interviewed by Mr. Beitel, who carried out the suitability investigation in the summer of 2005. There is no indication that any of these individuals had been asked to provide negative comments to Mr. Beitel. What their evidence appears to relate to are matters, as mentioned above, which were not relevant to the RCMP’s refusal of the applicant as a cadet for Depot.
[66] Having carefully considered all that is known about these four witnesses, the Court is not satisfied that the investigator failed to investigate obviously crucial evidence.
[67] As to Sgt Dallin, he also was not involved in the application’s investigative process. His intervention on behalf of the applicant was well documented even in Inspector Wendell’s summary of Ms. Gosal’s file. Once again, considering the guiding principles applicable here, the Court cannot conclude that there was a breach of procedural fairness by failing to interview this witness who did not even know the applicant at the time her application was rejected by the RCMP.
[68] Finally, although once again this is not raised in her submissions but only in her affidavit, the Court considered the applicant’s allegation that the investigator was careless given that he only interviewed her for 15 minutes. The applicant does not give any detail as to what facts or arguments she wished to raise that would have been essential and that were not already before the investigator given that she had, as mentioned, spoken to the previous investigator on several occasions and provided much documentation, which formed part of the 800 pages of material in her file.
[69] This is not a case where the applicant did not have the opportunity to fill in gaps (or deemed gaps) as discussed in Niaki, above, and the applicant simply failed to provide any information which would suggest that the investigation was highly deficient. The cases relied upon by Ms. Gosal such as the decisions of Justice Roger Hughes in Egan v Canada (AG), 2008 FC 649, and Justice Russel Zinn in Herbert, above, are distinguishable on their facts.
[70] Considering all of the above, the Court is satisfied that this case is not one where procedural fair