Constantinescu v. Correctional Service Canada

Constantinescu v. Correctional Service Canada
Collection
Canadian Human Rights Tribunal
Date
2020-03-06
Neutral citation
2020 CHRT 4
File number(s)
T2207/2917
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
4
Date: March 6,
2020
File No:
T2207/2917
[ENGLISH TRANSLATION]
Between:
Cecilia Constantinescu
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Correctional Service Canada
Respondent
Ruling
Member:
Gabriel Gaudreault
Table of Contents
I. Background to the motion 1
II. Preliminary Remarks 2
III. Issue 3
IV. State of the law relating to disclosure 3
V. Analysis of the applications 6
A. Application for disclosure filed on September 6, 2018 6
(i) Documents relating to the report of investigators Ms. Poirier and Mr. Anctil 6
(ii) Documents relating to workplace harassment complaints 9
VI. Application regarding the Presidia Report 16
VII. Application regarding the redaction of item #19 from the Respondent’s list of documents 21
VIII. Application regarding a screenshot dated November 6, 2018 29
IX. Application regarding notes from recruits who participated in the September 5, 2018 CTP-5/2014 training 33
X. Application regarding Mr. Ouellet’s fees 37
XI. Ruling 41
I. Background to the motion
[1] This is the sixth written decision of the Canadian Human Rights Tribunal (Tribunal) in this case involving Ms. Cecilia Constantinescu (Complainant) and Correctional Service Canada (CSC or Respondent).
[2] The purpose of this written ruling is to decide in one ruling on six applications for disclosure filed by Ms. Constantinescu.
[3] This issue was addressed in my ruling in Constantinescu v. Correctional Service Canada, 2019 CHRT 49, at paragraph 3:
The Complainant alleges that she was discriminated against by CSC (Respondent) during her CTP-5 training to become a correctional officer. She claims she was the victim of numerous incidents, both at the hands of her colleagues and the Respondent’s managers or instructors. In the end, the Complainant was not given a position as a correctional officer, failing her training. She therefore alleges that she was treated unfavourably during her training (section 7, CHRA) and was harassed (section 14(1)(c) CHRA) on the basis of her sex and national or ethnic origin.
[4] The disclosure process is particularly lengthy and complex in this case (see also Constantinescu v. Correctional Service Canada, 2019 CHRT 49, at paragraphs 4 and 114). It has been ongoing since July 2017, and we are at our 20th case management teleconference. The calls add up to more than 20 hours of management time and there is still a long list of topics to be addressed.
[5] I repeat, the Canadian Human Rights Act (CHRA) requires the proceedings to be conducted as expeditiously as possible. For this reason, the Tribunal is using two parallel tracks to deal with procedural and disclosure issues in this case: (1) teleconferencing and (2) written decisions.
[6] Now, the six applications filed by the Complainant are as follows:
1) Application for disclosure filed on September 6, 2018;
2) Application regarding the Presidia report;
3) Application regarding the redaction of item #19 from the Respondent’s list of documents;
4) Application regarding Mr. Ouellet’s fees;
5) Application regarding a screenshot dated November 6, 2018;
6) Application regarding notes from recruits who participated in the September 5, 2018 CTP-5/2014 training.
[7] The parties’ final representations were filed by Ms. Constantinescu on May 20, 2019. The parties were well aware that the Tribunal would deal with the six applications in a single ruling once all representations were received.
[8] Still, on August 28, 2019, the Complainant filed another application, in which she was requesting that several Tribunal decisions be amended. Because the application was lacking details, the Tribunal asked the Complainant to file a detailed motion, which she did. The parties’ final representations were filed on October 18, 2019.
[9] However, some of the Complainant’s requests overlapped with requests for disclosure that fall within the purview of this ruling. It was therefore necessary for the Tribunal to suspend the processing of the six applications while the motion to amend was being processed, in order to avoid duplicating rulings on the same subjects.
[10] The Tribunal, having dismissed the Complainant’s motion to amend several of its decisions (Constantinescu v. Correctional Service Canada, 2019 CHRT 49), will now deal through this ruling with each of the above applications.
II. Preliminary Remarks
[11] On December 16, 2019, the Tribunal stated in its recent ruling in Constantinescu v. Correctional Service Canada, 2019 CHRT 49, that the Complainant’s vexatious behaviour would no longer be tolerated in Tribunal proceedings.
[12] However, the applications and representations of the parties were filed before the December 16, 2019 ruling was issued and distributed to the parties.
[13] It is clear that several of the representations made by the Complainant in the various applications – which are dealt with in this ruling – are frivolous, irrelevant and inflammatory. The Complainant clearly lacked restraint in her representations, not to mention that she was directly attacking the Tribunal and its rulings.
[14] These behaviours are similar, if not identical to those identified in the recent ruling 2019 CHRT 49. It is not necessary to go over them again in detail. Suffice it to say that given the chronology of events, that is the filing of the application and the distribution of the ruling dated December 16, 2019, the Tribunal will for this time ignore those comments and remarks of the Complainant that amount to abusive and vexatious representations.
III. Issue
[15] The issue is whether the Tribunal should order the Respondent to disclose the documents sought by the Complainant on the basis of their arguable relevance to the dispute.
IV. State of the law relating to disclosure
[16] The principles of disclosure are well established at the Tribunal. As reiterated in Malenfant v. Videotron S.E.N.C., 2017 CHRT 11, at paragraphs 25 to 29 and 36:
[25] Each party has a right to a full hearing. To this regard, the CHRA provides as follows at subsection 50(1) :
50(1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. [Emphasis added].
[26] This right includes the right to the disclosure of relevant evidence in the possession or care of the opposing parties (Guay v. Royal Canadian Mounted Police, 2004 CHRT 34, para. 40). The Rules of Procedure of the Canadian Human Right[s] Tribunal (the Rules) provide as follows in Rule 6(1), and more specifically paragraphs (d) and (e) that:
6(1) Within the time fixed by the Panel, each party shall serve and file a Statement of Particulars setting out,
. . .
(d) a list of all documents in the party’s possession, for which no privilege is claimed, that relate to a fact, issue, or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule;
(e) a list of all documents in the party’s possession, for which privilege is claimed, that relate to a fact, issue or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule;
. . .
[Emphasis added.]
[27] Regarding disclosure, the Tribunal has already ruled several times that the guiding principle is probable or possible relevance (Bushey v. Sharma, 2003 CHRT 5 and Hughes v. Transport Canada, 2012 CHRT 26. See in the alternative Guay, supra; Day v. Department of National Defence and Hortie, 2002 CanLII 61833; Warman v. Bahr, 2006 CHRT 18; Seeley v. Canadian National Railway Company, 2013 CHRT 18). The Tribunal notes that the parties have an obligation to disclose arguably relevant documents in their possession (Gaucher v. Canadian Armed Forces, 2005 CHRT 42, para. 17).
[28] To show that the documents or information is relevant, the moving party must demonstrate that there is a rational connection between those documents or information and the issues in the case (Warman, supra, para. 6. See for example Guay, supra, para. 42; Hughes, supra, para. 28; Seeley, supra, para. 6). Relevance is determined on a case-by-case basis, having regard to the issues raised in each case (Warman, supra, para. 9. See also Seeley, supra, para. 6). The Tribunal notes that the threshold for arguable relevance is low and the tendency is now towards more, rather than less disclosure (Warman, supra, para. 6. See also Rai v. Royal Canadian Mounted Police, 2013 CHRT 36, para. 18). Of course, the disclosure must not be speculative or amount to a fishing expedition (Guay, supra, para. 43).
[29] The Tribunal notes that the production of documents stage is different from the stage of their admissibility in evidence at the hearing. Accordingly, relevance is a distinct concept. As Member Michel Doucet stated in Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services, 2007 CHRT 28 (hereafter TEAM), at para. 4:
[4] . . . The production of documents is subject to the test of arguable relevance, not a particularly high bar to meet. There must be some relevance between the information or document sought and the issue in dispute. There can be no doubt that it is in the public interest to ensure that all relevant evidence is available in a proceeding such as this one. A party is entitled to get information or documents that are or could be arguably relevant to the proceedings. This does not mean that these documents or this information will be admitted in evidence or that significant weight will be afforded to them.
[36] Finally, I would remind the parties that the duty to disclose the documents concerns documents in their possession. Accordingly, the duty does not extend to creating documents for disclosure (Gaucher, supra, para. 17).
[17] However, there are limits to the disclosure of documents, which have been summarized in paragraph 10 of Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2019 CHRT 21, at paragraph 10:
[10] There are also limits to the disclosure of documents, as the Chairperson of the Tribunal, David L. Thomas, explained in Brickner v. Royal Canadian Mounted Police, 2017 CHRT 28, at para. 8. For example, disclosure may be denied if the probative value of evidence would not outweigh its prejudicial effect on the proceedings. It may also be denied if the scope of the search and disclosure is particularly onerous and creates disproportionate costs for one of the parties to the litigation (or a third party, if applicable). Lastly, a motion for disclosure may be denied when the documents concern a side issue rather than the main issues in dispute or if such disclosure would risk adding substantial delay to the efficiency of the inquiry. (Nur v. Canadian National Railway Company, 2019 CHRT 19, at para. 15).
[18] It is with these principles in mind that I will rule on the applications filed by the Complainant.
V. Analysis of the applications
[19] It should be noted that the Complainant’s representations are sometimes difficult to understand and sometimes refer to elements that are not relevant and that do not help the Tribunal in deciding the issues in dispute. This inevitably makes the Tribunal’s task more difficult.
[20] Thus, in the interests of brevity and good understanding, I will not repeat all of the representations of the parties and I will focus only on the arguments that are relevant and useful in deciding the disclosure issues.
A. Application for disclosure filed on September 6, 2018
[21] In the September 6, 2018 application, Ms. Constantinescu is submitting two distinct requests for disclosure. The first request is for documents relating to changes allegedly made to the report of the investigators, Ms. Poirier and Mr. Anctil. The second is for records relating to workplace harassment complaints within the Respondent’s facilities.
(i) Documents relating to the report of investigators Ms. Poirier and Mr. Anctil
[22] First of all, I understand that Ms. Constantinescu was allegedly sexually harassed by a colleague, Mr. Durdu, during her training, while the recruits were conducting a search and pat-down practice.
[23] Ms. Constantinescu’s complaint about this event led CSC to conduct a disciplinary investigation into Mr. Durdu’s actions. A report was produced as a result of that investigation, which was prepared by Ms. Poirier and Mr. Anctil.
[24] The Complainant claims that the Respondent, more specifically the management of Collège de Laval, interfered in the investigation. Following a meeting with the investigators, changes were made to the report. She adds that filing of the report was delayed by two months and that some of the investigation took place without the named investigators having a formal mandate.
[25] She asks the Tribunal for four things in relation to this report:
1) The initial investigation report;
2) Documents showing the date and location of the meeting leading to the changes to the report;
3) Documents showing who was present at that meeting;
4) Documents showing who requested changes to the report;
5) Documents produced following this meeting leading to the changes, such as memoranda, correspondence or notations.
[26] As she argued on multiple occasions, the Complainant believes that the Respondent is concealing evidence, hiding facts and documents from her.
[27] She believes that her request is relevant and legitimate and is asking the Tribunal for the disclosure of these documents.
[28] In an email dated April 8, 2019, the Respondent asked the Tribunal to suspend this request. It explained that those documents and information sought by the Complainant in relation to the disciplinary investigation report concerning Mr.Durdu that do exist, are included in Schedule B of its list of documents. This list of documents is that for which privilege is claimed, as per paragraph 6(1)(e) of the Canadian Human Rights Tribunal Rules of Procedure (03-05-04) (the Rules). The privilege claimed by the Respondent is based on labour relations.
[29] To be clear, when a privilege is claimed, the documents in question are not disclosed to the other parties, despite their arguable relevance to the dispute (subsection 6(4) of the Rules, argument from the contrary).
[30] The issue of the documents for which the Respondent claimed certain privileges is well-contested in this case. The Complainant strongly opposes all privileges claimed by the Respondent. The Commission, which is not participating in the hearing, also wishes to make representations on the matter.
[31] The Complainant responded to the Respondent’s request on April 8, 2019. She reiterated several of the arguments contained in her original application. As to the Respondent’s request for a suspension, Ms. Constantinescu’s representations are deficient and several arguments are irrelevant to determining the issue. Her representations do not address in detail the request for a suspension. Instead, Ms. Constantinescu reconfirmed her objection to the Respondent’s claimed privileges, which is already known.
[32] The Tribunal cannot order the disclosure of documents for which a privilege has been claimed, and rightly so ­– that is the very purpose of privilege. As the Supreme Court of Canada wrote in Lizotte v. Aviva, Insurance Company of Canada, 2016 SCC 52, at paragraph 4 [Lizotte]:
… the latter [privilege] is nonetheless a fundamental principle of the administration of justice that central to the justice system both in Quebec and in the other provinces. It is a class privilege that exempts the communications and documents that fall within its scope from compulsory disclosure, except where one of the limited exceptions to non-disclosure applies. [Emphasis added.]
[33] I would reiterate that in matters of disclosure, disclosure involves documents that are arguably relevant to the dispute and that arise from facts, legal issues or forms of relief related to the complaint.
[34] Once it is determined that a document does in fact exist, the issue is whether the document is arguably relevant to the dispute (i.e., is it related to a fact, a legal issue, a form of relief?)
[35] If the document is arguably relevant to the dispute, it must be disclosed and included in Schedule A, unless a privilege is claimed, in which case the document is not disclosed and is included in Schedule B.
[36] A party can challenge the privilege claimed by another party and it will ultimately belong to the Tribunal to determine the issue.
[37] In this case, the Respondent confirms that documents do exist in relation to Ms. Constantinescu’s request. However, the Respondent is claiming a privilege, which exempts the identified documents from disclosure (Lizotte, supra, at paragraph 4).
[38] In order to decide whether the documents should be disclosed, the issue of privilege must necessarily be addressed, and the issues surrounding the privileges that the Respondent has claimed have not yet been so addressed.
[39] It should be noted that the Respondent is not asking that the Complainant’s application be dismissed; it is asking that the matter be suspended until the debates over privilege are addressed by the Tribunal.
[40] Once the Tribunal has determined whether the documents relating to the changes that were allegedly made to the investigation report of Ms. Poirier and Mr. Anctil are in fact protected by privilege, this request may be consecutively addressed.
[41] I have decided that the debates over privilege be addressed after the other disclosure requests have been satisfied, which is not yet the case. This makes sense because as long as the disclosure is not complete, the Tribunal may still order the parties to search for other documents, which in turn may lead to further disclosure of documents. And the prospect of further disclosure of documents might bring a party to claim other privileges, which may also be challenged.
[42] For these reasons, I am suspending this request and it will be addressed when the debates over privileges are discussed by the parties and the Tribunal.
(ii) Documents relating to workplace harassment complaints
[43] Ms. Constantinescu explains that on September 4, 2018, she learned from an article published in a newspaper that 65 investigations had been initiated within the Respondent’s facilities on the basis of workplace harassment between 2016 and 2018.
[44] She therefore requests the disclosure of:
1) All workplace harassment complaints received by the Respondent since September 15, 2014, including the location and establishment of the Respondent where these complaints were made;
2) The facts alleged in these complaints;
3) The findings in these complaints;
4) The identity of the investigators who inquired into each of these complaints (whether internal or external).
[45] Ms. Constantinescu alleges that this information is relevant to her endeavour to demonstrate that workplace harassment was being experienced within the Respondent’s facilities. She believes that CSC has failed to prevent these discriminatory practices and to protect victims from them.
[46] She also argues that external investigations are not subject to interference by the Respondent, whereas in her case, there would have been interference in the investigation due to the fact, among other reasons, that it was an internal investigation. Specifically, she claims that CSC management has influenced internal investigators by asking them to change their report.
[47] She is asking for access to those documents to find out if the testimony that was gathered in those 65 investigations was altered. In this regard, she believes that, in comparison to the investigation into her allegations, testimony was altered.
[48] She also wants to see whether the investigators, in these other harassment complaints, labelled the victims as “sick”, whether they acted with or without a mandate and whether the deadline for filing the reports was met. She also wants to find out if the external investigators had also said, as they did in her file, that they might submit an incomplete report if they did not get an extension.
[49] She has attached to her request emails exchanged between Ms. Poirier and Ms. Bastien in March 2015, as well as what appears to be a media article dated September 4, 2018.
[50] The Respondent opposes this request on the basis that it does not fall within the scope of the complaint before the Tribunal and that the documents sought are not arguably relevant to the dispute.
[51] It notes that the scope of the complaint is comprised of allegations of sexual harassment related to a shooting practice and a search practice, as well as allegations of discrimination based on discussions with recruits, and based on the grounds of sex and national or ethnic origin. The scope of the complaint was expanded by the Tribunal in Constantinescu v. Correctional Service of Canada, 2018 CHRT 17. The Respondent adds that this is an individual complaint that relates to specific events, not a systemic complaint.
[52] According to the Respondent, the request is beyond the scope of the complaint. It adds that to file all harassment complaints since September 2014, under both internal and external investigations, in order to ascertain why CSC decided to proceed with an internal disciplinary investigation into the allegations of Ms. Constantinescu, is too broad and has no rational connection with the complaint.
[53] Finally, the Respondent notes that the article dated September 4, 2018 published in a media outlet on which Ms. Constantinescu bases her application, deals with harassment investigations whose nature, magnitude or scope are totally unknown. These investigations could also include confidential information.
[54] The Respondent adds that the Complainant’s request is speculative or, as courts and tribunals are prone to say, amounts to a fishing expedition.
[55] The Respondent also relies on the decision of the Tribunal to expand the scope of the complaint, ruling 2018 CHRT 17, at paragraph 28, in which I stated that:
Although I am open to giving the Complainant some flexibility, the parties are advised that the objective of the Tribunal is not to monitor, supervise, review or even reverse the disciplinary investigation conducted at Collège de Laval. The role of the Tribunal is to determine whether there is a discriminatory element in the disciplinary investigation and not to redo the investigation itself. The parties should, in particular, put the disciplinary investigation in context, by explaining the procedure and the choice of internal rather than external investigators. This list is not exhaustive. Through its comments, the Tribunal simply wants to inform the parties that they will have some flexibility in this regard.
[56] The Respondent argues as a result that the documents being sought are unnecessary in order for the Tribunal to perform its function.
[57] Ms. Constantinescu reiterates that, with these documents, she wants to demonstrate that CSC officials could not interfere in investigations or request that investigation reports be changed.
[58] She further wants to demonstrate that the investigators did not approve of the actions allegedly committed by Mr. Durdu and that the audio recordings in other investigations were not altered as they were in the investigation of her allegations. She also wants to know if undated and unsigned written statements have been produced in these other investigations and if the extensions of the investigators’ mandates are consistent.
[59] That said, the Tribunal fails to see clearly how information on the workplace harassment complaints received by the Respondent since September 15, 2014, the location and the establishment, the alleged facts and the outcome of these complaints as well as the office that conducted the investigations (internal or external to the establishment), would allow Ms. Constantinescu to demonstrate the elements listed in the previous paragraph.
[60] In fact, Ms. Constantinescu wants a great deal of information on these complaints and the documents she is asking for probably wouldn’t answer her questions.
[61] What happened in the other eventual harassment complaints has nothing to do with the complaint currently before the Tribunal. The latter is not charged with analyzing and reviewing investigations conducted elsewhere. It is clear that the Tribunal should not act as a royal commission or as an appellate body (see Moore v. British Columbia (Education), [2012] SCC 61, at paragraph 64; Dominique, supra, at paragraph 26).
[62] Rather, the Tribunal’s role is to determine whether there is a discriminatory element in the events that occurred during the training, which includes the disciplinary investigation. It is the Respondent’s conduct that will be analyzed by the Tribunal. The Tribunal will not redo this investigation at the hearing.
[63] In fact, the parties will be able, among other things, to put the disciplinary investigation into context, discuss its progress, explain the choice of investigators, and so on. The Respondent did agree that the choice of investigators for the disciplinary investigation held at the College be included in the subject of the complaint before the Tribunal (2018 CHRT 17, at paragraph 25).
[64] I reiterate that the Tribunal must analyze the general factual framework of this complaint spread over a specific period, which includes the triggers for the complaint (the alleged touching and comments), and also includes subsequent facts, the conduct of the Respondent following these statements (including the investigation), and other elements. It is clear in Ms. Constantinescu's initial complaint filed in October 2015 that she believes she was eliminated from the program as a result of her denunciation, which, she claims, constitutes adverse treatment under the CHRA.
[65] It is in light of this whole factual framework that the Tribunal may decide whether, on the one hand, Ms. Constantinescu has met the burden of proof for her case under sections 7 and 14 CHRA, and whether the Respondent is able to justify its conduct under section 15 of the CHRA. Moreover, the Respondent has an opportunity to refute the presumption set out in subsection 65(1) CHRA (Brunskill v. Canada Post Corporation, 2019 CHRT 22, at paragraphs 64 to 66).
[66] For example, anything that relates to the other harassment complaints allegedly filed since September 2014, including their content (audio recordings, statements), investigators’ mandates, duration and expiry date, all of this is not relevant to the dispute.
[67] The Tribunal also understands the Complainant’s approach: she wants access to documents relating to the other investigations into harassment in order to demonstrate the Respondent’s modus operandi (way of operating). She is trying to demonstrate that harassment, including sexual harassment, was being experienced within the Respondent’s facilities and that the Respondent failed to prevent this harassment and protect victims from it.
[68] While the Tribunal is not at the stage of admitting documents into evidence, one point must be made clear: courts must be careful before admitting so-called similar fact evidence. The purpose of similar fact evidence is to demonstrate past patterns or conduct of a defendant.
[69] Similar fact evidence derives from the criminal law and its admissibility is significantly limited and restricted in both criminal and civil law. As the Tribunal noted in Hewstan v. Auchinleck, D.T.7/97, August 27, 1997, at pages 2 and 3:
Past conduct similar to that at issue in proceedings may be admitted as evidence in proceedings provided its probative value exceeds its prejudicial value, R. v. Morin [1988] 2 SCR 345. Such evidence must be relevant to an issue in the case apart from its tendency to show propensity on the part of the accused, or it may not be received.
[Emphasis added.]
[70] In the present case, the Complainant’s application is too broad and speculative, and the probative value of the information sought does not, in my view, outweigh its prejudicial effect (Brickner, supra).
[71] Indeed, authorizing the disclosure of all workplace harassment complaints since September 2014, and all related documents, would only inundate the Tribunal with documents that would considerably, if not irreparably, complicate its task, without adding anything relevant to the specific situation and the specific allegations raised by the Complainant.
[72] It would also result in lengthy and significant delays in the Tribunal process for these documents to be searched, consulted, disclosed and so on. The disclosure process being already long and complex, there is no justification for further complicating and lengthening the case.
[73] In the same vein, Ms. Constantinescu would also like to draw a comparison between CSC’s actions in her complaint and its actions in other harassment complaints.
[74] The Tribunal notes that in matters of discrimination and under the CHRA, it is well established that comparative evidence is not required in order to establish adverse treatment. The definition of discrimination does not include comparator groups.
[75] Comparator groups are sometimes useful in establishing discrimination, but in some cases, it is sometimes difficult, if not impossible, to identify an appropriate comparator group. For this reason, comparative evidence is not an essential element to prove (First Nations Child and Family Caring Society v. Canada (Attorney General), 2012 FC 445 at paragraphs 290 and 327. See also Dominique, supra, at paragraphs 33 to 35).
[76] Thus the Tribunal is of the opinion that comparative evidence is not required especially in Ms. Constantinescu’s case. First of all, the facts of the case are specific, individual, and involve alleged discrimination and harassment in a very specific context, for a specific period of time: during training at the Collège de Laval in 2014.
[77] Ms. Constantinescu would also like her complaint to be characterized as systemic. I have already ruled on this issue in my 2018 CHRT 17 ruling, at paragraph 38. I still believe that Ms. Constantinescu’s complaint is not systemic.
[78] The allegations made in this complaint are individual, quite particular and specific to the Complainant. Ms. Constantinescu alleges that she was discriminated against and sexually harassed during her training in the CTP‑5 program. And it is the conduct of the Respondent, during that particular period, in this very specific case, with very specific facts, that will be analyzed by the Tribunal. The Complainant’s allegations, in and of themselves, are not systemic in scope and do not need to be compared to other groups in order to be proven.
[79] It is important for Ms. Constantinescu to understand the burden she has to meet, which is specifically related to the facts she is alleging in her complaint: she must demonstrate that (1) she has a prohibited ground of discrimination protected by the CHRA, (2) she was adversely affected and (3) there is a link between the motive and the adverse effect. If these are proven on a balance of probabilities, she meets the burden of proof for her case (Moore, supra). It will then be for the Respondent to justify its conduct and limit its liability, if any.
[80] Finally, it is only if the discrimination is founded and remedies must be ordered that the remedies may be systemic in nature (in this regard, see the Tribunal’s reasons in Dominique, supra, at paragraphs 23 to 26).
[81] For all these reasons, I dismiss the Complainant’s application.
VI. Application regarding the Presidia Report
[82] Presidia Security Consulting (Presidia) was contracted to investigate allegations of workplace harassment at the Edmonton penitentiary. As a result of that investigation, the firm produced reports. The Complainant is seeking disclosure of these reports produced by Presidia.
[83] It is important to note that the Tribunal initially ordered the disclosure of the Presidia reports in an interlocutory decision. The order relied on the same reasoning as that of the TLS Enterprises report (see 2018 CHRT 17, at paragraphs 23 and following), i.e., they were arguably relevant to demonstrate that in the cases of the Presidia and TLS Enterprises reports, CSC had decided to outsource the investigations, whereas in the case of Ms. Constantinescu’s complaint, CSC decided to entrust the investigation to an internal mechanism. The aim was merely to allow the reports, as containers, not their contents.
[84] Moreover, while in the case of the TLS Enterprises report, counsel for the Respondent and the Tribunal had had the opportunity to review the report, this was not the case for the Presidia reports. Indeed, when they made their representations during a conference call, the Respondent’s lawyers had not yet had access to the Presidia report. They therefore made representations based on Ms. Constantinescu’s representations, without really knowing what they were about.
[85] However, when the lawyers gained access to that report, which occurred after I made my interlocutory decision, they made additional representations to the Tribunal to indicate that the content of the reports differed significantly from what they originally thought. The reports contained highly personal and confidential information. In addition, it was no longer a single report, but several reports of alleged incidents of harassment at the Edmonton Institution involving several CSC employees.
[86] As a result of the parties’ representations and the Respondent’s clarification, the Tribunal had to amend its interlocutory decision in light of the new facts provided and the potential harm of disclosing these sensitive reports. The Tribunal therefore suspended its decision pending further debate and analysis of the issue.
[87] Although the Tribunal definitely has the power to amend its interlocutory decisions (Canada (Public Safety and Emergency Preparedness) v. Shen, 2018 FC 636, at paragraphs 49 and following; Ching v. Canada (Immigration, Refugees and Citizenship), 2018 FC 839, at paragraphs 36 and 37 [Ching]; Canada (Border Services Agency) v. C.B. Powell Limited, [2011] 2 R.C.F. 332, at paragraph 32; Constantinescu v. Correctional Service Canada, 2019 CHRT 49, at paragraphs 87 and following), interlocutory decisions are not altered lightly, or simply for the sake of it.
[88] There must be facts, reasons and circumstances that justify their being amended. That was the case here: further to the Respondent’s relevant clarifications, it was necessary to revisit the issue in depth.
[89] When the Tribunal therefore amended its interlocutory decision and suspended its decision on the communication of the Presidia report, it did not categorically decide that the report should never be transmitted; rather, the issue had to be reassessed, with the new information provided by the Respondent. And this is where we are now.
[90] Ms. Constantinescu is still convinced that these reports are relevant. She claims that she was the victim of assault, harassment, discrimination, intimidation, abuse and conspiracy during her CTP­‑5 training at the Collège de Laval. She feels that she has been subjected to the same actions as the Edmonton employees and that the Presidia reports should be made available to the public. She believes that if the government spent public funds to investigate these allegations of harassment, it was not to then hide the findings.
[91] That is why she is asking for the disclosure of the investigation reports produced by Presidia, which relate to the same acts as those alleged in her complaint. Her objective is to demonstrate that CSC officials treated her differently. She agrees to have the names of the victims and the persons investigated redacted.
[92] She specifies that the threshold for arguable relevance is very low and that the tendency is towards more, not less disclosure (Gaucher v. Canadian Armed Forces, 2005 CHRT 42, at paragraph 11).
[93] The Complainant considers that she has a basic right to add all the new elements that have appeared since filing her complaint. She adds that her application is not speculative. She argues that the management of the Collège de Laval did not take appropriate measures in connection with her allegations of harassment.
[94] Ms. Constantinescu believes that the Presidia reports will help uncover CSC’s mentality and its intention to conceal serious facts and differentiate adversely in relation to victims of harassment. She adds that the facts are similar between her complaint and the complaints of other victims at the Edmonton penitentiary and that CSC’s modus operandi (way of operating) is the same.
[95] Finally, the Complainant raises several irregularities in the investigation conducted by CSC into her allegations of harassment, particularly with regard to the investigators, some alleged management interventions and applications for changes to the report. She believes that the disclosure of the Presidia reports will allow her to bring these irregularities to light. However, as I mentioned in the 2018 CHRT 17 ruling, at paragraph 28, Ms. Constantinescu will have to make such arguments at the hearing.
[96] Meanwhile, the Respondent is of the view that the Complainant is attempting to add new elements to her initial complaint, thereby preventing the expeditious resolution of the complaint by the Tribunal. The complaint, it argues, must find its final form so that it can move forward and be resolved (Gergoulas v. Canada, 2018 FC 652, at paragraph 155).
[97] Moreover, there is no rational connection, according to the Respondent, between the initial complaint and the documents sought and that Ms. Constantinescu is continually trying to broaden the scope of her complaint. The Respondent admits that Presidia, an outside firm, conducted an investigation at the Edmonton penitentiary. And that Ms. Constantinescu’s allegations that Mr. Durdu had touched her breasts during her CTP‑5 training prompted the Respondent to not hire an outside firm to investigate the matter.
[98] The Respondent believes it is speculative to say that CSC officials treated Ms. Constantinescu differently when they entrusted the mandate to the outside firm Presidia.
[99] The Respondent further believes that the Tribunal does not need these reports in order to rule on Ms. Constantinescu’s allegations of discrimination and on CSC’s actions in this whole matter.
[100] It adds that the Presidia reports contain personal and confidential information as they relate to specific individuals. Accordingly, the persons named in the reports expect these to remain confidential, in compliance with the Privacy Act.
[101] In light of the parties’ arguments, the Tribunal finds that it is not necessary for Ms. Constantinescu to have access to the Presidia reports to meet the burden of proof for her case. I do believe that the Presidia reports are not relevant or useful to the dispute.
[102] I have already specified in section V(A)(ii) of this ruling (Documents relating to workplace harassment complaints) that comparative evidence is not essential to prove discrimination under the CHRA. Moreover, Ms. Constantinescu’s complaint is not systemic and her allegations are very particular and specific.
[103] The Tribunal also wrote in this ruling about s