Lubaki v. Bank of Montreal

Lubaki v. Bank of Montreal
Court (s) Database
Federal Court Decisions
Date
2020-04-16
Neutral citation
2020 FC 526
File numbers
T-2154-18
Notes
A correction has been made on August 6, 2020.
Decision Content
Date: 20200416
Docket: T-2154-18
Citation: 2020 FC 526
Ottawa, Ontario, April 16, 2020
PRESENT: Mr. Justice Russell
BETWEEN:
CLAUDIO LUBAKI
Applicant
and
BANK OF MONTREAL
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 18.1 of the Federal Courts Act, RSC 1985, c F-7, for judicial review of a decision, dated November 21, 2018 [Decision] of the Canadian Human Rights Commission [Commission] to dismiss the Applicant’s complaint against the Bank of Montreal [BMO] pursuant to s 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].
II. BACKGROUND
[2] The Applicant is currently employed as a Grade 4 Collecting Agent at BMO’s Collections Call Centre in Toronto. He first began working at BMO in September 2006 as a temporary employee on contract. He subsequently became a permanent employee in July 2007 in the position of “Call Agent I.” The Applicant was promoted to “Call Agent II” in April 2011, and was promoted to his current position in March 2013. This is considered to be the highest graded position within the division, apart from the Team Leader and Manager positions.
[3] In August 2010, the Applicant filed a previous complaint with the Commission alleging that he had been treated differently and denied employment opportunities due to his race, colour, and national or ethnic origin. This complaint was dismissed by the Commission in June 2012 and the Applicant’s application for judicial review to the Federal Court was dismissed on September 11, 2014. See Lubaki v Bank of Montreal Financial Group, 2014 FC 865.
[4] Meanwhile, in 2014, the Applicant began reporting to a new manager, Ms. Renee Beltran. Ms. Beltran managed the Applicant until 2016, when Mr. Ruben George took over the position.
[5] From 2014 to 2016, the Applicant received “mixed” performance reviews from management. As defined by the Respondent, mixed performance means that:
Employee successfully met some of the expectations of their role this year; however, there are areas in which performance improvement is required. While their performance contribution is valued by the team, their current level of performance falls below that of their peers.
[6] Moreover, the Applicant was placed on corrective action in July 2015, was given a lower incentive payout as compared to a co-worker, and was excluded from grade alignment. The Applicant also claims that he was managed more aggressively by Ms. Beltran and by Ms. Karin Riddell (Senior Manager of Collections), was falsely set up for acts he did not commit, was intentionally portrayed negatively by management, and was denied further employment opportunities within BMO.
[7] The Applicant took a medical leave of absence on March 10, 2016, and returned to work on October 5, 2016. The Applicant says that BMO refused his numerous earlier requests to return to work, notably his request made on August 23, 2016 to return to work on a gradual basis beginning September 6, 2016. Despite not having received authorization, the Applicant returned to work on September 6, 2016, and was advised by Mr. George that he had not yet been cleared to work by Oncidium Health Group [OHG], BMO’s third-party medical claims adjudicator. The Applicant left the building accompanied by Mr. George. Finally, upon his return to work on October 5, 2016, the Applicant says that he was incorrectly paid, although this matter was eventually corrected.
[8] The Applicant states that his adverse treatment by BMO management was retaliation against him for filing his previous human rights complaint in August 2010, and that this differential treatment was discriminatory as it was on the basis of colour, national or ethnic origin, and race. The Applicant self-identifies as “Black-African” born in Angola.
[9] The Applicant filed a complaint on these grounds with the Commission on April 1, 2016, and subsequently amended his complaint on February 1, 2017. The complaint was investigated by Ms. Jennifer Huber [Investigator]. On August 29, 2018, the Investigator issued a report [Report] recommending that the Commission dismiss the Applicant’s complaint. The Applicant and the Respondent each filed submissions responding to the Report on September 30, 2018, and October 15, 2018, respectively. On November 21, 2018, the Commission dismissed the Applicant’s complaint.
III. DECISION UNDER REVIEW
[10] In its Decision dated November 21, 2018, the Commission noted:
Before rendering the decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because having regard to all the circumstances of the complaint, further inquiry is not warranted.
[11] The Investigator found that there was insufficient evidence to suggest that the Applicant was treated differently concerning his performance ratings in 2014, 2015, and 2016, as well as with regard to his applications for other positions within BMO. Moreover, the Investigator found that the evidence did not support the allegation that the Applicant was managed more “aggressively” or “set up” and portrayed negatively by management. The Investigator also concluded that the evidence does not suggest that the Applicant was prevented from returning to work following his leave of absence. Although the Investigator acknowledged that the Applicant’s return was delayed by a month and that there was a payroll error, she noted that there was insufficient evidence to demonstrate that the delay or the error amounted to adverse differential treatment.
[12] With regard to some matters where the Investigator found that adverse differential treatment had occurred, she found that there was insufficient evidence to suggest that this treatment was linked to any prohibited ground of discrimination or to any sort of retaliation for filing a previous complaint. Indeed, the Investigator found that, although the corrective action taken in 2015 and the lower incentive given to the Applicant as compared to a co-worker did treat the Applicant differently from his colleagues and did adversely affect him, it could not be said that these differences arose from any prohibited grounds of discrimination or for any retaliatory reasons.
[13] In producing the Report, the Investigator noted that she had reviewed the parties’ positions, all the documentary evidence submitted, and had conducted telephone interviews with: the Applicant, Ms. Riddell, Ms. Beltran, Mr. Freddy Matondo (Team Lead, Collections), Mr. Oliver Baroum (former New Business Associate at BMO), and Mr. Amit Karia (Team Lead Collections). The Investigator also noted that she had attempted to conduct interviews with all of the Applicant’s witnesses; however, barring Mr. Baroum, the Applicant’s witnesses were either not willing to testify or were unable to be reached by the Investigator despite multiple attempts.
IV. ISSUES
[14] The issues raised in the present application are as follows:
Should the Applicant’s affidavit be struck out in full or in part?
Did the Investigator breach the Applicant’s right to procedural fairness by failing to conduct an unbiased and thorough investigation?
Did the Report, which the Commission relied upon, err in finding that the Applicant did not receive adverse differential treatment as retaliation for his 2010 complaint or on the basis of colour, national or ethnic origin, and race?
V. STANDARD OF REVIEW
[15] The memoranda of the parties in this case were provided prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. At the hearing of this matter, the Court asked the parties whether they wished to modify their submissions on the applicable standards of review in this matter. Neither party suggested that any material modifications were required. I have applied the Vavilov framework in my consideration of the application and found that, in comparison to an analysis under the Dunsmuir framework, the applicable standards of review have not changed in this case nor have my conclusions.
[16] In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52), and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[17] In his memorandum, the Applicant does not explicitly make any submissions on the applicable standard of review in this case. Meanwhile, the Respondent argues that the standard of reasonableness applies to this Court’s review of the neutrality and thoroughness of the Commission’s investigation as well as the investigation’s findings. However, the Respondent adds that should this Court apply the standard of correctness to its review of the neutrality and thoroughness of the Commission’s investigation, the result would be the same.
[18] Regarding the issue of whether the Commission breached the Applicant’s right to procedural fairness by conducting a biased and incomplete investigation of the complaint, some courts have held that the standard of review for an allegation of procedural unfairness is “correctness” (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59 and 61 [Khosa]). The Supreme Court of Canada’s decision in Vavilov does not address the standard of review applicable to issues of procedural fairness (Vavilov, at para 23). However, a more doctrinally sound approach is that no standard of review at all is applicable to the question of procedural fairness. The Supreme Court of Canada in Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 stated that the issue of procedural fairness:
requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation (Moreau-Bérubé, para 74).
[19] As for the standard applicable to this Court’s review of the Report’s findings relied on by the Commission, there is nothing to rebut the presumption that the standard of reasonableness applies in this case. The application of the standard of reasonableness to these issues is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Kirkpatrick v Canada (Attorney General), 2019 FC 196 at para 22, and Holder v UBS Bank (Canada), 2019 FC 1597 at para 34.
[20] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context” (Vavilov, at para 89 citing Khosa, at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (Vavilov, at para 90). Put another way, the Court should intervene only when “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov, at para 100). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it” (Vavilov, at para 101).
[21] For the sake of clarity, no standard of review is applicable to whether the Applicant’s affidavit should be struck out, in full or in part.
VI. STATUTORY PROVISIONS
[22] The following statutory provisions of the CHRA are relevant to this application for judicial review:
Employment
Emploi
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
…
…
Retaliation
Représailles
14.1 It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
14.1 Constitue un acte discriminatoire le fait, pour la personne visée par une plainte déposée au titre de la partie III, ou pour celle qui agit en son nom, d’exercer ou de menacer d’exercer des représailles contre le plaignant ou la victime présumée.
…
…
Report
Rapport
44(3) On receipt of a report referred to in subsection (1), the Commission
44(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
(b) shall dismiss the complaint to which the report relates if it is satisfied
b) rejette la plainte, si elle est convaincue :
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié,
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
The following provision of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] is relevant to this application for judicial review:
Content of affidavits
Contenu
81 (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.
81 (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
Affidavits on belief
Poids de l’affidavit
(2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.
(2) Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables.
VII. ARGUMENTS
A. Applicant
[23] The Applicant argues that the Decision is based upon a flawed Report and, as such, this application for judicial review should be allowed. Notably, the Applicant says that: (1) the investigation into his complaint was conducted by a biased Investigator and lacked thoroughness; and (2) the Report’s findings are grounded in an improper assessment of the evidence as well as a failure to assess critical evidence.
(1) Neutrality and Thoroughness of Investigation
[24] The Applicant argues that the investigation into his complaint was conducted by a biased Investigator and lacked thoroughness.
[25] In essence, the Applicant states that the Investigator was biased as she defended the Respondent and did not impartially investigate the complaint. Specifically, the Applicant notes that the Investigator blindly preferred the testimony of the Respondent’s witnesses, despite the absence of corroborating evidence and their clear incentive to support the Respondent. Indeed, he notes that there was no evidence that the Respondent’s witnesses were telling the truth while he provided many documents to corroborate his testimony.
[26] In addition, the Applicant states that the Investigator revealed her bias when she refused to permit many of the Applicant’s witnesses to testify anonymously. The Applicant states that this led many of his witnesses to refuse to testify for fear that there would be adverse repercussions on their careers.
[27] The Applicant also argues that the investigation was not thorough in that the Investigator failed to cross-examine the Respondent’s witnesses and failed to review the vast majority of the evidence submitted by the Applicant.
(2) Reasonableness of the Findings
[28] The Applicant argues that the Report contains numerous erroneous findings by the Investigator, which result from her ignoring critical evidence submitted and improperly assessing the evidence.
[29] The Applicant says that the discriminatory and retaliatory nature of his “mixed” performance reviews in 2014, 2015, and 2016 demonstrate adverse differential treatment on prohibited grounds given the fact that, prior to those reviews, he had received mostly “solid” performance reviews under different managers. Although the Applicant acknowledges that the Investigator took note of his previous performance reviews, he notes that she erred in accepting the Respondent’s explanation that the previous manager conducted his performance reviews subjectively and did not closely supervise the Applicant. The Applicant says that the Investigator failed to take into account the fact that his previous manager was only in the position for nine months and that other previous managers also gave him “solid” performance reviews. Moreover, the Applicant argues that the Investigator failed to analyze the reason why he was not given a mid-year performance review in 2015 despite having achieved the highest number of restructuring referrals and the highest number of successful restructures.
[30] The Applicant says that the Investigator also erred by finding that the 2015 corrective action against him was not based on retaliation or prohibited discriminatory grounds. The evidence clearly demonstrated that it was not done in good faith. In fact, he notes that the email evidence provided demonstrates that he did not improperly request Mr. Matondo to reinstate a MasterCard but rather asked him to review the account. Given the fundamental flaw in the Respondent’s reasons for taking corrective action in 2015, the Applicant argues that it is clear that this was done in retaliation or on prohibited discriminatory grounds.
[31] Furthermore, the Applicant says that the Investigator unreasonably found that the difference in incentive payments between himself and his colleague, Mr. Karia, who had less seniority and lower performance statistics, was not due to retaliation or discrimination. Given the circumstances, the only substantial difference was that his colleague did not file a human rights complaint against the Respondent.
[32] The Applicant also says that the Investigator erred by failing to address the adverse differential treatment he received with regard to the seating positions of black employees who expressed their opinions to management or complained to the Commission. He notes that the Investigator erred by not properly considering the fact that black employees were segregated from the rest of the group and placed near management and that the vast majority faced corrective action.
[33] In addition, the Applicant says that the Investigator failed to investigate the examples he provided of how he was aggressively managed and “set up” or portrayed negatively by management. In particular, the Applicant notes that the Investigator failed to investigate the false accusation made by Ms. Beltran that he did not transfer a call “warmly to her,” which was later proven false upon reviewing the recording of the conversation. Moreover, the Applicant states that the Investigator erred by accepting Mr. Matondo’s explanation for falsely accusing him of being a security threat without corroborating evidence. This was despite the fact that Mr. Matondo had already misrepresented the Applicant’s request to review a MasterCard account in order to justify corrective action.
[34] Finally, the Applicant states that the Investigator erred by failing to recognize the retaliatory and discriminatory nature of the adverse differential treatment of the Applicant when he returned to work following his medical leave. The Applicant notes that the Respondent never notified him in writing that he could not return to work and escorted him off the premises causing him “total humiliation.” For the Applicant, this is critical evidence that was not properly considered by the Investigator. Moreover, upon his return, the Applicant notes that it took more than one year, and government involvement, to correct the payroll error made by the Respondent. It was therefore unreasonable for the Investigator to simply excuse this error because it was eventually corrected. The Applicant notes that the Investigator also unreasonably omitted to mention the fact that the Respondent refused to pay him his monthly incentive for March 2016.
B. Respondent
[35] The Respondent argues that: (1) the Applicant’s affidavit should be struck out, in full or in part, as it almost entirely consists of opinion, argument, and conjecture; (2) the Investigator thoroughly considered the evidence and submissions in this case and there is no evidence demonstrating that she was biased; and (3) the Investigator’s findings were reasonable, responsive to the submissions of the parties, and defensible in respect of the facts and the law. For these reasons, the Respondent submits that this application for judicial review should be dismissed. Moreover, the Respondent asks for costs given that the Applicant’s current complaint and application for judicial review is largely based on a similar one filed and dismissed a handful of years ago, and given that the Applicant’s affidavit is improper.
(1) Affidavit of Applicant
[36] The Respondent submits that the Applicant’s affidavit is improper as it almost entirely consists of opinion, argument, and conjecture. The Respondent points out that Rule 81 of the Federal Courts Rules makes it clear that affidavits are “confined to facts within the deponent’s personal knowledge.” As such, given that the affidavit is “replete” with improper content, the Respondent asks this Court to strike it in its entirety. See Lostin v Canada (Citizenship and Immigration), 2013 FC 1098 at para 14, and Canadian Tire Corporation v Canadian Bicycle Manufacturers Association, 2006 FCA 56 at paras 7-8 and 15 [Canadian Tire Corporation].
(2) Neutrality and Thoroughness of Investigation
[37] The Respondent argues that the Applicant has failed to provide any basis for his allegation that the Investigator was biased. A thorough assessment of the complaint was undertaken in this case.
[38] The Respondent states that the burden of demonstrating either the existence of actual bias or a reasonable apprehension of bias rests on the person alleging it. This is a high burden and mere suspicion of bias will not suffice. See Hughes v Canada (Attorney General), 2010 FC 837 at para 21 [Hughes]. The Applicant has provided no basis for his allegation of bias. The Investigator properly considered witness evidence in this case and attempted, on multiple occasions, to reach out to the Applicant’s witnesses, who either did not return the Investigator’s calls or, except for Mr. Baroum, refused to testify.
[39] Moreover, the Respondent says that the Investigator satisfied the principle of thoroughness in this case, as she did not make any unreasonable omissions during the investigation. Only where there is a failure to consider “obvious crucial evidence” will judicial review be justified. See Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 at para 69 [Slattery]. In this case, the Applicant simply makes bald assertions that the Investigator did not investigate all the issues raised in his complaint or consider all the evidence he provided. However, it is trite law that an Investigator is not obliged to refer to every allegation or every piece of evidence submitted. See Slattery, at paras 68-70.
(3) Reasonableness of the Findings
[40] The Respondent states that the Report was based on a full and reasonable consideration of the evidence. It was also responsive to the submissions of the parties and is defensible in respect of the facts and the law. This Court has recognized that disagreement with an investigator’s conclusions is not sufficient to quash the Commission’s acceptance of a report. In this case, the Report’s findings are reasonable and this application for judicial review should be dismissed.
[41] More specifically, the Respondent states that the Investigator assessed the failure of management to provide the Applicant with a mid-year performance review in 2015 in favour of corrective action. The Respondent notes that the Investigator did not dispute this fact. However, the Investigator ultimately found that, beyond the Applicant’s own bald assertion, there was no evidence to demonstrate that the corrective action was linked to a prohibited ground of discrimination or was retaliation for his previous complaint. The Respondent says that this was a reasonable conclusion that was based on the evidence before the Investigator.
[42] As regards the Applicant’s assertion that the Investigator failed to find that his lower incentive payment as compared to a colleague was the result of retaliation or discrimination on a prohibited ground, the Investigator made a reasonable finding based on the evidence before her. Beyond the Applicant’s own bald assertion, there was no evidence to demonstrate that the comparatively lower incentive was linked to a prohibited ground of discrimination or was retaliation for his previous complaint.
[43] As regards the Applicant’s return to work, the Respondent notes that the Investigator reasonably concluded that there was no evidence of differential treatment in this case given the short delay after which he was able to return to work and the eventual correction of the payroll error.
[44] With regard to seating arrangements, the Respondent notes that the Applicant has provided no basis for how the Investigator’s findings in this regard were unreasonable. In fact, the Respondent says that the Investigator’s conclusion on this issue was reasonable and entirely defensible in light of the evidentiary record before her.
[45] Finally, regarding the Applicant’s incident with Mr. Matondo, the Respondent argues that the Applicant, other than expressing his disagreement with the conclusion reached, does not indicate how the conclusions of the Investigator on this issue were unreasonable. In sum, the Respondent says that while the Applicant may feel that the conclusions reached by the Investigator in the Report were incorrect, his subjective belief or feeling that discrimination has occurred is not sufficient.
VIII. ANALYSIS
A. Introduction
(1) The Application
[46] The Applicant, who is representing himself in this application, is asking the Court to review the Decision of the Commission not to refer his complaint to the Canadian Human Rights Tribunal for an inquiry. Notwithstanding problems with his written materials, the Applicant is highly articulate and represented himself with conviction at the oral hearing of this matter in Toronto. I am convinced that he genuinely believes he has suffered discrimination in his place of work although, of course, this does not prove that it has occurred or that the Decision under review is biased or unreasonable.
[47] Generally speaking, his complaint is that BMO retaliated against him for filing a previous complaint with the Commission in August 2010, and discriminated against him by treating him in an adverse differential manner on the basis of colour, national or ethnic origin, race, and/or disability.
[48] In the present application before me, the Applicant alleges that the Decision was not impartial, that the investigation that led to the Decision was not sufficiently thorough, and that the Investigator – and hence the Commission – came to unreasonable conclusions.
[49] In his submissions to the Court, the Applicant asserts a general conspiracy theory to the following effect:
a) The issue of retaliation and discrimination within BMO has become an issue of public concern;
b) The concerns of black BMO employees are being silenced by a fear of retaliation; and
c) The complaints of black BMO employees have been dismissed by the Commission because, in most cases, the investigators are not impartial.
[50] These general allegations were not before the Commission in the present case and there is certainly no evidence before me to establish them. Consequently, these are not matters that require review as part of this application.
[51] The Applicant has also filed an affidavit with the present application that is not admissible. It is not confined to facts within the Applicant’s personal knowledge and consists almost entirely of opinion, argument, and conjecture. This is contrary to Rule 81 of the Federal Courts Rules and governing Federal Court jurisprudence. The Applicant does not attempt to provide the Court with relevant facts so that the Court can assess them for itself but, rather, he provides his own assessment of the evidence and states his disagreement with the assessment and the conclusions of the Investigator. See Canadian Tire Corporation. The Applicant’s assessment of the evidence and his views on the mistakes made by the Investigator are not factual evidence and can be made by way of written and oral submissions. Consequently, I have disregarded all portions of the Applicant’s affidavit that contain argument, surmise, conjecture, opinion, and hearsay. Instead, my reliance upon the affidavit is confined to any statements of facts that are within the Applicant’s knowledge.
[52] The Applicant also alleges that the whole Decision is tainted by a lack of impartiality and bias. The Applicant, however, has provided the Court with no evidentiary basis for these serious accusations. He appears to be of the view that because the Investigator did not conduct a thorough enough investigation from his perspective and did not confirm his own views, the whole process was therefore biased.
[53] There is no evidence of actual bias in this case and the test for a reasonable apprehension of bias as set forth in Hughes is as follows:
[20] The test for determining whether actual bias or a reasonable apprehension of bias exists in relation to a particular decision-maker is well known: that is, the question for the Court is what an informed person, viewing the matter realistically and practically - and having thought the matter through – would conclude. That is, would he or she think it more likely than not that the decision-maker, either consciously or unconsciously, would not decide fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394. See also Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 74.
[21] The burden of demonstrating either the existence of actual bias, or of a reasonable apprehension of bias, rests on the person alleging bias. An allegation of bias is a serious allegation, which challenges the very integrity of the decision-maker whose decision is in issue. As a consequence, a mere suspicion of bias is not sufficient: R. v. R.D.S., [1997] 3 S.C.R. 484 at para. 112; Arthur v. Canada (Attorney General) (2001), 283 N.R. 346 at para. 8 (F.C.A.). Rather, the threshold for establishing bias is high: R. v. R.D.S, at para. 113.
[22] The Canadian Human Rights Commission is clearly subject to the duty of fairness when it is exercising its statutory powers to investigate human rights complaints: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (“SEPQA”). This requires that the Commission and its investigators be free from bias.
[23] That said, because of the non-adjudicative nature of the Commission’s responsibilities, it has been held that the standard of impartiality required of a Commission investigator is something less than that required of the Courts. That is, the question 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”: see Zündel v. Canada (Attorney General) (1999), 175 D.L.R. 512, at paras.17-22.
[24] As the Court stated in Canadian Broadcasting Corp. v. Canada (Human Rights Commission), (1993), 71 F.T.R. 214 (F.C.T.D.), the test in cases such as this:
[I]s not whether bias can reasonably be apprehended, but whether, as a matter of fact, the standard of open-mindedness has been lost to a point where it can reasonably be said that the issue before the investigative body has been predetermined.
[54] For reasons that will become clear when I address the reviewable errors alleged by the Applicant, this test has not been satisfied in the present case. There is no evidence that the Investigator improperly favoured management witnesses, disregarded the Applicant’s own evidence or failed to investigate sufficiently because of a reasonable apprehension of bias in favour of the Respondent. The Applicant’s view is that management witnesses cannot be counted on to give truthful evidence because they must support BMO and are inevitably biased. This is, of course, a relevant consideration for the Investigator with regard to evidence from management witnesses in the same way that the Investigator must be wary of the Applicant’s self-interest when assessing his evidence. The Applicant’s view appears to be that BMO witnesses are unreliable and that he is the only one who tells the truth. However, the Applicant has provided no convincing evidence that any BMO witnesses lied or that the Investigator demonstrated actual bias or reasonable apprehension of bias when investigating his complaints. Even if the Investigator made mistakes or acted unreasonably this would not, per se, demonstrate any form of bias.
(2) Specific Allegations
[55] Many of the Applicant’s submissions appear to be attempts to have the Court reweigh and reconsider evidence in order to reach a different conclusion from that of the Investigator. This is not the purpose of judicial review. Consequently, I will only address those instances where the Applicant alleges a reviewable error that is subject to judicial review.
(3) Failure to Investigate
[56] The Applicant says that he was constantly harassed and humiliated by his managers and was sometimes blamed for things he did not do. For example, he says that Ms. Beltran once angrily blamed him for not transferring a call “warmly” to her, which was subsequently proven false when they listened to the monitored call that demonstrated that he did indeed transfer the call “warmly.” He says that the Investigator “didn’t investigate that matter despite the evidence [he] provided to her.”
[57] The “matter” that the Investigator did not investigate is the Applicant’s complaint that his managers were “micromanaging” him in an attempt to intimidate and discredit him as retaliation for his first complaint to the Commission in 2010. He says that their approach amounted to harassment and humiliation that caused mental illness, which forced him to go on short-term disability leave.
[58] The Investigator explicitly set out the Applicant’s allegations that he said demonstrated he had been treated in an adverse differential manner. These allegations include that he was “managed more aggressively” and that he was “set up and portrayed negatively.”
[59] The Decision contains extensive information and description as to how the allegations were investigated and considered by the Investigator. Failing to mention whether the Applicant had spoken “warmly” when transferring a call is not a significant or sufficiently material matter to require mention in the Report as whether the Applicant had spoken “warmly” is a highly subjective question. Moreover, the Investigator is not required to mention every detail, irrespective of its importance and materiality. See Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at para 39; Slattery, at paras 68-70. Regardless, the Applicant has not established before me the evidence to demonstrate that he did speak “warmly” to Ms. Beltran.
(4) Returning to Work
[60] In written submission, the Applicant asserts as follows:
After 6 months of short term disability, I sent to my employer my Doctor’s document stating that I was able to return to work on September 6 2016. On my return, I was shocked to see that my manager not only asked me to go home but also escorted me out of the premises. This was a total humiliation and it was clear message from my employer that I wasn’t welcome. In the first place, my employer shouldn’t ask me to go home because they didn’t comply with the Federal Government employment Law section 34 (3), which states that “Where the employer cannot return an employee to work within 21 days after the date of receipt of the certificate referred to in subsection (1), the employer shall within those 21 days, notify in writing the employee....” (see my affidavit section 2.M Exhibit 12- last page). My employer never notified me in writing the reason why I shouldn’t return to work on September 6. After I was sent home, I had to wait 3 to 4 weeks before I returned to work on October 5. Until now I haven’t got paid yet for the 3 weeks that I stayed home.
[61] In keeping with the general approach of the Applicant’s submissions, he does not state the reviewable error the Investigator committed in dealing with this issue.
[62] As the Decision makes clear, the allegation that, upon his return to work on September 6, 2016, he was escorted from the building by Mr. George in a humiliating way, was investigated as follows:
94. The respondent states that on September 6, 2016 the complainant reported to work and was advised by Mr. George that he was not yet cleared to work and that he should return home pending a confirmation. The complainant was instructed to contact his doctor, obtain medical clearance and submit the documentation to OHG.
95. The respondent denies that Mr. George escorted the complainant out of the building. The respondent states that Mr. George and the complainant continued to chat while walking towards the exit. The respondent states that at no time was it Mr. George’s intention to accompany the complainant for the purpose of ensuring he left the buildi