Georgoulas v. Canada (Attorney General)

Georgoulas v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-08-27
Neutral citation
2018 FC 863
File numbers
T-2148-14
Notes
A correction was made on November 2, 2018.
Decision Content
Date: 20180827
Docket: T-2148-14
Citation: 2018 FC 863
Ottawa, Ontario, August 27, 2018
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
OURANIA GEORGOULAS
Applicant
and
ATTORNEY GENERAL OF CANADA
AND
CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES
Respondents
JUDGMENT AND REASONS
I. Nature of the Matter
[1] The Applicant asks this Court to set aside a decision [Decision] of the Canadian Human Rights Commission [Commission] dated September 19, 2014, which dismissed a complaint [the Complaint] that the Applicant made against Transport Canada [TC] dated January 12, 2012. The Complaint was dismissed pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985 c H-6 [CHRA]. The Applicant named the Canadian Association of Professional Employees [CAPE] as a respondent in this Court, even though CAPE was not a party below.
[2] In dismissing the Complaint, the Commission relied upon an Investigation Report [43/44 Report] dated May 16, 2014, which recommended that the Applicant’s Complaint against TC be dismissed. The 43/44 Report was prepared on the basis of interviews with nine individuals including the Applicant, and a review of detailed written material mostly generated by the Applicant. The 43/44 Report concluded: “more importantly, there was no convincing evidence put forward, direct or otherwise, to indicate or even suggest that any of the treatment the [Applicant] received was linked to one or more grounds under” the CHRA. The Applicant challenges this finding in relation to TC, alleging it is flawed by procedural unfairness and unreasonableness.
[3] The Applicant also challenges the Commission’s decision not to add CAPE, the Applicant’s certified bargaining agent, as a party to her Complaint. The Applicant submits it was unreasonable for the Commission not to add CAPE as a respondent. That said, at no time was CAPE a party to the proceedings before the Commission leading to the Decision at issue here. Notwithstanding it was not added as a party by the Commission, the Applicant, quite improperly in my view, unilaterally added CAPE as a respondent to the present Application for judicial review. CAPE participated in this Application to respond to the arguments raised by the Applicant namely that the Commission breached procedural fairness by refusing to add CAPE as a respondent to her Complaint.
[4] The hearing of this judicial review took place over two days; breaks of ten or fifteen minutes were taken every forty or forty five minutes. The Applicant represented herself with the assistance of another person. These accommodations were requested by the Applicant.
[5] For the reasons that follow, the application for judicial review is dismissed with costs.
II. Background and related litigation
[6] The Applicant was a public servant and a non-practising member in good standing of both the Law Society of Upper Canada (now the Law Society of Ontario) and the Barreau du Québec.
[7] From 2007 to 2016, the Applicant was employed as an Aviation Security Policy Analyst for the Aviation Security Policy Branch of the Aviation Security Directorate of TC. The Applicant was on long-term disability from December 2011 until September 2014. Throughout 2013 and much of 2014, TC and CAPE had numerous discussions about how to accommodate the Applicant’s return to work, after which she did return to work in September 2014 for 18 months.
[8] The Applicant has had a number of matters before the Commission and the Federal Court. While this is the third judicial review to be decided by this Court arising out of her employment at TC, this application actually involves the Applicant’s first complaint to the Commission against TC, which she filed on January 12, 2012.
[9] On April 11, 2014, the Applicant made a different complaint to the Commission against TC; on that occasion she named CAPE as a party. That complaint began as file #20140234. The Commission separated that complaint into two files, #20140234 (against TC) and #20140564 (against CAPE). The Commission dismissed her complaint against CAPE under sections 40/41 of the CHRA. However, Justice McVeigh granted the Applicant’s application for judicial review against CAPE in May 2017. Justice McVeigh found the Commission breached procedural fairness by refusing to allow the Applicant to file a separate complaint kit against CAPE: Georgoulas v Canada (Attorney General), 2017 FC 446 [Georgoulas I]. Justice McVeigh otherwise found the Commissions dismissal of the Applicant’s complaint against CAPE was reasonable.
[10] The Applicant’s complaint against TC, #20140234 above, originally bundled by the Applicant with her complaints against CAPE, concerned harassment, discrimination on the grounds of disability and alleged retaliation by TC. The Commission decided to “deal with” this complaint after reviewing a 40/41 Report. The Commission therefore appointed an investigator. The investigator prepared an Investigation Report pursuant to section 43 which recommended the complaint against TC be dismissed. The Commission, pursuant to section 44 of the CHRA dismissed the complaint against TC. The Applicant sought judicial review of both the Commission’s decision to deal with her complaint after the 40/41 Report, and the Commission’s decision to dismiss her complaint under section 44. Judicial review was dismissed in respect of both matters by Justice Kane in Georgoulas v Attorney General of Canada, 2018 FC 652, [Georgoulas II].
III. Issues
[11] The Applicant submits several issues for determination.
Did CHRC err when it refused to:
Exercise its jurisdiction to add and investigate the ground of harassment during the preparation of the 40/41 Report and in the Investigation Report despite the Applicant’s many requests?
Exercise its jurisdiction to allow the Applicant to file a complaint against CAPE and to provide her with a complaint kit to file a complaint against CAPE?
C. Amend the complaint during the preparation of the 40/41 Report and in the Investigation Report to allow the Applicant to add additional retaliatory, harassing and discriminatory incidents against her by TC after she filed the Complaint in January 2012?
2. Did CHRC err when it refused to provide the Applicant procedural fairness when it:
A. Refused to provide her with a complaint kit to file a complaint against CAPE?
B. Refused/denied to accommodate her to communicate with CHRC via email?
C. Took the witnesses’ testimony at face value disregarding the evidence submitted by the Applicant during the investigation of her complaint?
D. Ignored or misconstrued the evidence submitted by the Applicant during the investigation of her Complaint?
Was CHRC neutral or thorough in dealing with the Complaint?
Is CHRC’s decision reasonable?
[12] In my view, these issues should be resolved within the following parameters:
Was CHRC’s decision to dismiss the Complaint against TC reasonable?
In dismissing the Applicant’s Complaint against TC, did CHRC breach procedural fairness?
Was CHRC’s refusal to add CAPE as a party reasonable?
IV. Standard of Review
[13] In Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a standard of review analysis is not necessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” This Court has determined that reasonableness is the standard of review for a decision of the Commission to dismiss an applicant’s complaint: Lafond v Canada (Attorney General), 2015 FC 735 per Bell J at para 15.
[14] In cases such as this, the Court’s role is limited to reviewing the Commissions dismissal of the Complaint with the record that formed the basis of the dismissal. As the Supreme Court of Canada put in Cooper v Canada, [1996] 3 SCR 854: “[T]he 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.”
[15] Therefore, reasonableness is the standard of review for the first and third issues as I have outlined them in para 11.
[16] In Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness of standard of review:
[55] In reasonableness review, the reviewing court is concerned mostly with “the existence of justification, transparency and intelligibility within the decision-making process” and with determining “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14). When applied to a statutory interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute (McLean, at para. 33). Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker (Khosa, at para. 64). At its core, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution.
[17] It is well-established that once the Commission is in receipt of a section 43 investigation report, as in the case at bar, the standard of review is a “highly deferential one” per Lafond at para 15 and Ritchie at para 28. The law is further summarized in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (FCA): Parliament does not want the Courts to intervene lightly in decisions of the Commission at this “screening stage”:
35 It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891).
Exercise of discretion
38 The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
[Emphasis added]
[18] The Supreme Court of Canada also instructs that judicial review is not a line-by-line treasure hunt for errors; the decision should be approached as an organic whole: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. Further, a reviewing court must determine whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
[19] Questions of procedural fairness, including those arising in the context of Commission decisions are reviewed on the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. Correctness is generally accepted as the standard of review for the second issue in para 11 above. That said, I wish to note that in Bergeron v Canada (Attorney General, 2015 FCA 160 at paragraph 69, the Federal Court of Appeal said a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.”
[20] In Dunsmuir at para 50, the Supreme Court of Canada explained what is required of a court reviewing on the correctness standard of review:
When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
V. Complaint to CHRC
[21] I turn to the facts of this case, bearing in mind the legal principles set out above. In this context I will make determinations with respect to the issues raised by the Applicant.
A. Initial inquiries made in 2010 and 2011
[22] The Applicant contacted the Commission in August and October, 2010 with allegations of discrimination against her by TC. However, she asked the Commission to take no steps in the matter. Had she filed a complaint, the Commission would have been bound to advise TC and provide TC with an opportunity to respond. This was not necessary because the Applicant asked the Commission not to file a complaint; at her request, the Commission took no action at that time but did open a file and gave the Applicant a file number. Unremarkably, the Commission closed its file at that time.
[23] About a year later, in August and early September 2011, the Applicant made further inquiries with the Commission, alleging discrimination against her by TC. In response, on September 21, 2011, the Commission wrote the Applicant, providing a copy to TC, and acknowledged that the Applicant had made allegations of discrimination against TC. The Commission’s letter noted that before accepting the Applicant’s complaint, a report under sections 40/41 of the CHRA would be needed.
[24] The Commission in its letter of September 21, 2011, also suggested to the Applicant that she grieve her complaints. This suggestion was reasonable and certainly not objectionable; the Commission may decline to accept a complaint where other avenues of recourse have not been exhausted as set out in subsection 41(1)(a) of the CHRA. In this context it is necessary to recall that the Applicant was a unionized employee who might have had access to grievance procedures under her collective agreement. The Respondent CAPE was her bargaining agent.
[25] The Applicant replied by letter dated October 31, 2011, addressed to the Commission’s Chief Commissioner. In it, the Applicant recounted her dealings and contacts with the Commission. Among other things, the Applicant asked if she could add a complaint for harassment to her complaint for discrimination. She also asked questions about the qualifications of Commission staff, about whom the Applicant was critical.
[26] The Applicant spends a considerable amount of time on her October 31, 2011, letter, alleging several times at the hearing that she never received a response. Upon review, it appears from this letter that the Applicant believed she had filed a discrimination complaint against TC back in 2010. However, she had not. As noted, the Commission closed its file, and did so at the Applicant’s specific request. In this connection, I find as a fact that the Applicant did not file a formal complaint against TC until January 12, 2012.
[27] As noted below, and upon review of the record, I find that the Commission did respond to the Applicant’s letter of October 31, 2011, and did so in the Commission’s letter dated December 31, 2011, which is more fully outlined below. There is no merit to the Applicant’s argument that her letter of October 31, 2011 was never responded to. What she seems to have wanted the Commission to do is to provide her with extraordinary legal support in the matter of filing her Complaint. There is no merit in this suggestion either; the Applicant provided the Commission with no reason to seek any extraordinary accommodation.
B. The Complaint Kit and the Applicant’s Complaint dated January 12, 2012
[28] In response to the Applicant’s numerous contacts and inquiries including her letter of October 31, 2011, the Commission sent the Applicant a Complaint form Kit by letter dated December 13, 2011. The Commission’s letter included instructions on how to file a complaint. The letter directed the Applicant to take the time to read all of the enclosed materials, and follow instructions carefully. The letter included a Complaint Form. To further assist the Applicant, the Commission’s letter also included an instructional document entitled Instructions and Tips Sheet, and a checklist of information she had to provide. In addition, the Commission also sent the Applicant a sample of a completed complaint form. The letter also directed the Applicant to the Commission’s website which was provided at www.chrc-ccdp.gc.ca.
[29] The Commission had alerted the Applicant that before processing the matter further, it wanted to know if her union (CAPE) would grieve the matter, and wanted a statement to that effect in writing. In this connection, Commission Early Resolution staff, before sending the December 13, 2011 complaint kit, had reached out to CAPE. In response, Commission staff obtained an email from CAPE to that effect. In the email, CAPE confirmed it had not grieved the discrimination issue with TC because on the facts known to it, there was nothing to grieve, adding that an informal approach would be preferable to deal with the situation [original text is: “L’ACEP n’a pas accepté de déposer un grief de discrimination au nom de Madame Georgoulas parce qu’à la lueur des faits connus au moment de l’analyse du dossier, l’ACEP a conclu qu’il n’y avait pas matière à grief et que l’approche informelle serait préférable pour régler la situation”].
[30] This email from CAPE was included with the other material in the complaint kit sent by the Commission to the Applicant dated December 13, 2011.
[31] Upon review, I have concluded that the Commission, by sending the Complaint form and all the related resources to assist her in completing the form by letter dated December 13, 2011, fairly and adequately responded to the many questions the Applicant posed in her letter of October 31, 2011 and elsewhere.
[32] Having received the complaint kit, the Applicant proceeded to complete her Complaint form herself; she signed and dated it January 12, 2012, and filed it with the Commission the next day. The period covered was February 2010 to January 12, 2012. The Complaint included three pages detailing the Applicant’s allegations of discrimination.
[33] Throughout, and in subsequent submissions, the Applicant referred to TC’s conduct as both discriminatory and harassing without distinguishing between the two practices.
[34] The Complaint disclosed numerous incidents over time. The Applicant’s narrative included a dispute over her salary, an alleged denial of a promotion, alleged removal of work, alleged negative performance reviews, alleged negative result on an internal competition, and hostile conduct by various managers at TC.
[35] In my view, a number of points arise out of the Applicant’s Complaint dated January 12, 2012:
The words “discrimination” and “harassment” are used together only three times. Not only are they used without distinguishing one from the other, they are only used together in relation to CAPE’s position on her allegations–which was that the Applicant had nothing to grief. I appreciate the Applicant was unhappy with the level of CAPE’s assistance, but the Applicant never challenged CAPE under the statutory provisions relating to breach of duty of representation under section 187 of the Federal Public Sector Labour Relations Act - S.C. 2003, c. 22.
Unfair representation by bargaining agent
Représentation inéquitable par l’agent négociateur
187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit
187 Il est interdit à l’organisation syndicale, ainsi qu’à ses dirigeants et représentants, d’agir de manière arbitraire ou discriminatoire ou de mauvaise foi en matière de représentation de tout fonctionnaire qui fait partie de l’unité dont elle est l’agent négociateur.
The Complaint does not allege that TC discriminated against her by harassing her, which if believed, would contravene section 14 of the CHRA.
The Complaint form does not allege that CAPE discriminated against her, which if believed, would contravene section 9 of the CHRA.
In my view, the Applicant’s Complaint is fairly described as an allegation of “adverse differential treatment” on the basis of “sex, national or ethnic origin, family status, marital status”, which, if believed, would be contrary to s section 7(b) of the CHRA. This is how the Commission, in my view correctly and reasonably, characterized the Applicant’s Complaint in preparing the Summary of Complaint form.
[36] The CHRA sets out many ways in which discrimination may take place. For the purposes of this case, these different ways are set out in different sections of the CHRA. Three important provisions relevant to this proceeding are subsection 7(b), section 9(1) and subsection 14(1). Each is outlined below.
[37] First, “adverse differential treatment” contrary to section 7(b) of the CHRA is prohibited by subsection 7(b):
Employment
Emploi
7 It is a discriminatory practice, directly or indirectly,
7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects
[…]
[…]
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
b) de le défavoriser en cours d’emploi.
[Emphasis added]
[Nos soulignés]
[38] Second, section 9 of the CHRA prohibits discriminatory practices committed by an employee’s union, such as CAPE, in the following terms:
Employee organizations
Organisations syndicales
9 (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination
9 (1) Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour une organisation syndicale :
[…]
[…]
(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.
c) d’établir, à l’endroit d’un adhérent ou d’un individu à l’égard de qui elle a des obligations aux termes d’une convention collective, que celui-ci fasse ou non partie de l’organisation, des restrictions, des différences ou des catégories ou de prendre toutes autres mesures susceptibles soit de le priver de ses chances d’emploi ou d’avancement, soit de limiter ses chances d’emploi ou d’avancement, ou, d’une façon générale, de nuire à sa situation.
[Emphasis added]
[Nos soulignés]
[39] Thirdly, harassment is made a discriminatory practice and prohibited by section 14 of the CHRA:
Harassment
Harcèlement
14 (1) It is a discriminatory practice,
14 (1) Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait de harceler un individu :
[…]
[…]
(c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.
c) en matière d’emploi.
[Emphasis added]
[Nos soulignés]
[40] In my respectful view, the Applicant could have added allegations of harassment to her complaint if that is what she wished to do. I am not persuaded she was in any way prevented from writing out her complaint to include harassment. The fact is, that is not what the Applicant chose to do; in this respect I see no basis to find the Commission acted unreasonably to this point in time.
VI. Section 40/41 Report
A. The Commission’s section 40 inquiry letter to the parties
[41] As noted, the Commission required a report per sections 40 and 41 of the CHRA. Preparation of this section 40/41 Report was the next step undertaken by the Commission upon receipt of the Applicant’s complaint. This involved input from both the Applicant and the Respondent, and preparation of the 40/41 Report itself. The 40/41 Report once completed would then be sent to the parties so that each had an opportunity to comment on it, prior to it being sent to the Commission for a decision on what should be done with the Complaint.
[42] Thus, by letter dated February 14, 2012, the Commission wrote to the Applicant and TC asking for submissions on issues relating to paragraphs 41(1)(a) and (c) of the CHRA; specifically, to determine whether another complaint or review process could be used to resolve the Complaint (41(1)(a)), and whether the Complaint fell within the Commission’s jurisdiction (41(1)(c)).
B. The Applicant’s response to section 40 inquiry
[43] The Applicant responded with a six page letter dated March 11, 2012. She took the position that the Commission had jurisdiction, and that the Applicant could not grieve her dispute because CAPE would not provide assistance.
[44] In addition to answering the Commission’s section 40/41 inquiry, the Applicant described in further detail various interactions with CAPE. She did so in negative terms. She also elaborated on her treatment by TC, also in negative terms, and in some respects over and above what she reported in her detailed Complaint submissions. In addition, she criticized the Commission staff’s dealings with her up to that point in time. Briefly, the Applicant was critical of TC, CAPE, and the Commission.
[45] Notably, nowhere in the Applicant’s March 11, 2012, response letter to the Commission, did she allege that CAPE had discriminated against her. In my respectful opinion, nothing in this letter, if proven, could form the basis for the Commission reasonably concluding that a section 9 complaint of discrimination was being made against CAPE or that CAPE should be added as a party respondent.
[46] I agree the Applicant said that harassment per subsection 14(1) falls under the Commission’s jurisdiction, which she did, and that elsewhere the Applicant alleged she had “been discriminated against, harassed and subjected to a poisoned work environment.”
[47] However, the Applicant’s letter did not ask to amend her Complaint to include an allegation of harassment discrimination against TC. Moreover, in my respectful view, nothing in the Applicant’s March 11, 2012, letter, if proven, could reasonably form the basis for the Commission concluding that the Applicant wished to add a harassment complaint under section 14 to her section 7(b) adverse differential treatment Complaint against TC.
[48] Commission staff completed the 40/41 Report dated July 19, 2012, and sent it to the parties for review and comment.
VII. The 40/41 Report
[49] The 40/41 Report noted the grounds of her complaint were “sex, national or ethnic origin, family status, and marital status.” These were the grounds raised in the Applicant’s Complaint of January 12, 2012.
[50] The Commission’s staff concluded that “the Applicant had demonstrated a link between alleged practices and grounds which provide her with a reasonable basis to believe she was discriminated against,” and that “she does not have access to a grievance process to deal with the alleged discrimination.” The 40/41 Report recommended that the Commission “deal with her complaint because” it was “not frivolous” and because it was not satisfied “other procedures will address the allegation of discrimination.”
[51] The 40/41 Report said that, “if proven,” the Applicant had provided information to suggest that the alleged conduct of TC that could constitute discriminatory practices related to “her sex, family status and marital status.”
[52] However, the 40/41 Report found there did not appear to be sufficient information to demonstrate how the alleged conduct was related to her “national or ethnic origin.”
A. The Applicant’s response to the 40/41 Report
[53] As noted, the Commission invited the Applicant to respond to the 40/41 Report, which she did.
[54] In fact the Applicant filed three responses. In the first, dated August 10, 2012, the Applicant said she was left in the dark about the process and progress of her complaint. She requested additional information – some of which was provided to her in the Section 40/41 Report.
[55] More materially at this time, and for the first time, the Applicant requested that her complaint be amended to include CAPE as a respondent. In addition she sought information about who was in charge of her complaint against TC. She also asked for copies of all information exchanged between the Commission and TC, and she requested information on procedures to complain against Commission staff.
[56] The Applicant’s second response to the 40/41 Report, dated August 24, 2012, requested among other things that her allegations should also be reviewed on grounds of “National or ethnic origin and harassment” [emphasis in original]. Elsewhere she bolded and underlined the word “harassment”. Thus, it is clear the Applicant wanted her allegation of discrimination on the grounds of national or ethnic origin considered, contrary to the recommendation of the 40/41 Report. And she wanted to add “harassment” as a ground of complaint against TC.
[57] In her response, the Applicant provided very slim details to support her allegations respecting discrimination on the basis of national and ethnic origin.
[58] Her third response was dated September 25, 2012 and took the form of a response to TC’s comments on the 40/41 Report. It was critical of CAPE and the Commission, but I am not satisfied it provided information to the Commission that would have entitled it, acting reasonably, to have added CAPE as a respondent. Nor am I persuaded the Applicant provided anywhere near enough information in her third response to justify the Commission, acting reasonably, to do what the Applicant herself had not done, namely to add harassment or retaliation as additional grounds of discrimination against TC.
[59] With respect, neither the Applicant’s August 10, 2012, August 24, 2012, nor September 25, 2012 letters, taken in the aggregate, provided any reasonably basis upon which the Commission, acting reasonably, could have either added CAPE as a respondent, or added harassment or retaliation as a separate grounds of Complaint against TC.
B. Commission agrees to deal with Complaint by investigation
[60] By decision dated October 10, 2012, the Commission made its decision under section 41(1) of the CHRA: the Commission in fact decided to deal with the Complaint. This is what the 40/41 Report recommended. In broad terms it was also what the Applicant asked for, albeit harassment were not added, and CAPE was not made a respondent.
[61] The Applicant did not seek judicial review of the section 41(1) decision of October 10, 2012, as she could have, notwithstanding the Commission advised her that such was her right. This is an uncontested fact confirmed not only by the Record but in post-hearing submissions of the parties.
[62] In addition, the Applicant did not file a discrimination complaint against CAPE, as she was free to do. She did not file a section 14(1) harassment complaint, and the Applicant did not file a retaliation complaint under section 14.1 of the CHRA.
[63] As matters now stand, and as I understand the Applicant’s submissions, she faults the Commission for failing to add CAPE as a respondent. The Applicant also says that the Commission should have amended her complaint to allege harassment and retaliation against TC.
[64] In my view, and with respect, there is no merit in either submission.
[65] I am not persuaded that the Applicant’s material filed in preparation for the 41/41 Report, or her responses to the 40/41 Report, if proven, provide a basis for amending the Complaint to add allegations of either harassment or retaliation against TC. There was simply insufficient evidence in both respects. Therefore, the Commission’s decision with respect to the 40/41 Report and thus its decision to proceed to the next step are defensible on the record before it. I will consider this issue in the context of the Investigation Report (the 43/44 Report) later in these reasons. Therefore, the answers to the part of Questions 1 and 3 relating to the 40/41 Report are “no”:
Did the Commission err when it refused to exercise its jurisdiction to add and investigate the ground of harassment during the preparation of the 40/41 Report [and in the Investigation Report] despite the Applicant’s many requests?
Did the Commission err when it refused to amend the complaint during the preparation of the 40/41 Report [and in the Investigation Report] to allow the Applicant to add additional retaliatory, harassing and discriminatory incidents against her by TC after she filed the Complaint in January 2012?
[66] In addition, again in my respectful view, neither the Complaint filed by the Applicant, nor her material filed before or after and in relation to the 40/41 Report, if proven, provided a reasonable basis for the Commission to add CAPE as a respondent. Therefore, the answer to the following question (Question 2 below) is “no”:
Did the Commission err when it refused to exercise its jurisdiction to allow the Applicant to file a complaint against CAPE and to provide her with a complaint kit to file a complaint against CAPE?
[67] I have come to the same conclusion regarding the Applicant’s allegation that the Commission breached procedural fairness in not providing her with a complaint kit against CAPE. As such I would answer the following question (Question 4) submitted by the Applicant, in the negative:
Did the Commission err when it refused to provide the Applicant procedural fairness when it refused to provide her with a complaint kit to file a complaint against CAPE.
C. The investigation and the 43/44 Report
[68] After the Commission agreed to “deal with” the Complaint, an investigation ensued pursuant to section 43 of the CHRA. A series of three investigators interviewed nine persons including the Applicant during the course of the investigation. I note that when the Applicant’s file was transferred between the second and third investigators, the third investigator did not receive interview notes regarding two TC managers who were interviewed. As a result, the third investigator re-interviewed those two TC managers. While counsel for TC was, and in my opinion quite properly, present for the first interviews with these two TC managers, TC counsel was not present at their second interviews. The Applicant complains that TC was coaching its witnesses and otherwise obtained an unfair advantage in having its witnesses testify twice; there is no merit or evidence to base either allegation. In my view the process followed to make up for the lack of notes was procedurally fair.
[69] Relatively early in the course of the investigation, on May 10, 2013, the Applicant wrote the Commission and asked about adding CAPE, one of many such letters; just previously the Commission had told her a new complaint was needed. This answer was reiterated. The Applicant also asked if it should be considering issues that had arisen after her Complaint was filed and while she was on sick leave, such as alleged reprisals taken against her by TC. This was also directly responded to: the Applicant was told to contact Early Resolution Staff. This was in my view a reasonable response; the Applicant had filed a Complaint and after a 40/41 Report it had been accepted for investigation. Reprisals had not previously been alleged and formed no part of the Investigator’s terms of reference which was the decision of October 10, 2012. The Applicant decided not to take the Investigator’s advice in this connection. I cannot see how the Commission is to be faulted as acting unreasonable or in breach of procedural fairness in these circumstances. It is also the case that requiring the Commission to consider allegations that post-date an initial complaint could result in potentially never-ending inquiries and would significantly delay investigations. I am not persuaded there is merit in the Applicant’s complaint that alleged retaliation was not investigated.
[70] After the matter was investigated, the investigator prepared a 43/44 Report dated May 12, 2014. This report essentially recommended that the Complaint be dismissed for lack of evidence. As was the case with the 40/41 Report, the 43/44 Report was sent to the parties for comment, before being sent with those comments to the Commission to exercise its screening function and decide if the matter should go to a further step or be dismissed.
VIII. The 43/44 Report
[71] The stated purpose of the 43/44 Report was to assist the Commission to determine: a) whether a conciliator should be appointed to attempt to resolve the Complaint; b) whether further inquiry by a Canadian Human Rights Tribunal would be warranted; or c) whether the Complaint should be dismissed. The Report concluded the Complaint should be dismissed:
The [Applicant] listed a number of incidents that she said occurred between the time she was hired in 2007 and the time she went on leave in December 2011. In some cases, the respondent and witnesses disputed the comments or conduct. In other cases, the comments or conduct were admitted by the respondent or witnesses stated that the complainant had taken the situation out of context, or that she was suggesting a motive that wasn’t present.
The [Applicant] argued that her differential treatment by the respondent was related to a combination of sex, ethnic origin, family status and marital status. She said, “Discrimination and harassment are practiced in a subtle manner therefore, more often than not, direct evidence won’t be available.” However, the evide