Shoan v. Canada (Attorney General)

Shoan v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-09-02
Neutral citation
2016 FC 1003
File numbers
T-668-15
Decision Content
Date: 20160902
Docket: T-668-15
Citation: 2016 FC 1003
Ottawa, Ontario, September 2, 2016
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
BALRAJ SHOAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
Background [1] At all material times, the applicant, Commissioner Shoan, was a member of the Canadian Radio-television and Telecommunications Commission [CRTC], having been appointed by Order-in-Council pursuant to subsection 3(1) of the Canadian Radio-television and Telecommunications Commission Act, RSC 1985, c C-22.
[2] By letter dated September 18, 2014, Amanda Cliff, Executive Director, Communications and External Relations, CRTC, lodged a complaint of harassment [the Complaint] against Commissioner Shoan asking the CRCT to “take further action in accordance with [Treasury Board Secretariat] Policy on Harassment Prevention and Resolution [TBS Policy].”
[3] The Complaint, in relevant part, reads as follows:
Attached is a series of email exchanges in which he makes repeated insinuations and unfounded accusations about me. You will see in the exchanges that I have in the past indicated that I find their contents inappropriate and unfortunate. Commissioner Shoan copies other Commissioners and my staff on his inappropriate email correspondence, which I feel is an attempt on his part to undermine my credibility with my CRTC superiors and staff and to humiliate me in front of colleagues.
By involving my employees, I am increasingly concerned that they could be drawn into this inappropriate situation or be subjected to Commissioner Shoan’s aggressive behavior [sic].
Commissioner Shoan’s inappropriate emails culminate in a message dated September 17, 2014, in which he tries to intimidate and coerce me into doing as he wants by threatening to lodge a complaint about me to the Office of the Commissioner for Public Service Integrity, and by telling me to govern myself accordingly. As a loyal public servant for over 30 years, I take Commissioner Shoan’s attempt to destroy my career and my reputation very seriously.
I have informed you previously of Commissioner Shoan’s inappropriate behaviour and understand that you have raised the issue with him. I appreciate your support, however things have escalated. This harassment is affecting my work and my sense of personal wellbeing, and I request that you take further action in accordance with the TBS Policy on Harassment Prevention and Resolution.
[4] The emails referenced in the Complaint comprised seven email exchanges between Mr. Shoan and Ms. Cliff, from February 22, 2014, to September 17, 2014.
[5] Pursuant to the CRTC Guidelines on Formal Harassment Conflict Resolution Mechanisms [CRTC Guidelines], John Traversy, the Secretary General, was the delegated manager responsible for reviewing and evaluating the Complaint to ensure it complied with TBS Policy, advising the respondent of the Complaint, attempting mediation and, failing resolution, referring the Complaint to an impartial third party for an investigation.
[6] Ms. Cliff refused mediation and accordingly, the Secretary General retained the services of Diane Laurin, LL.B., Med.C. of Laurin & Associates to investigate the Complaint [the Investigation]. It is evident from the record that more than one person was involved in the Investigation; however I shall refer throughout as if there was one investigator [the Investigator]. This is necessary, in part, because the final report does not disclose who conducted the interviews but is written as if Ms. Laurin did them all.
[7] In her report dated March 17, 2015 [the Report], the Investigator concluded that:
[T]he complaint has merit.
a. Mr. Raj Shoan’s behaviour since February 2014 was inappropriate and constituted harassment towards the complainant.
b. He attempted to undermine the complainant’s credibility with her superiors and staff and commissioners.
c. He humiliated the complainant in front of colleagues by sending the emails to her staff, colleagues and Commissioners.
d. Staff was subject to the respondent’s aggressive behaviour.
e. On September 17, 2014, the respondent threatened the complainant so as to try to intimidate and coerce her to comply with his demands. He attempted to destroy her career and reputation.
[8] The Secretary General, by letter dated April 1, 2015, informed Commissioner Shoan that he agreed with the conclusions of the Report. He said that he would be recommending to Jean-Pierre Blais, Chairman and Chief Executive Officer [the Chairman] five “measures to deal with the conclusions” of the Report; namely:
I. With the exception of the Administrative Officer in the Toronto regional office, that you copy me on all e-mails that you initiate and send to Communication staff.
II. With the exception of the Administrative Officer in the Toronto regional office, all calls that you plan on initiating to Commission staff members should be coordinated through my office. You would be asked to call or send my office an e-mail outlining the Commission staff member you would like to talk with and the subject of the call, my office will organize the call.
III. You refrain from any communication with Ms. Cliff.
IV. No changes to the open dialogue that takes place between you and staff during Full Commission Meetings, Broadcasting Committee Meetings, Telecommunication Commission Meetings and panel meetings.
V. That a copy of the report be sent to the Minister for her review and consideration on any further action may be required.
[9] The Chairman, by letter dated April 7, 2015, accepted and immediately put in place the five measures recommended by Mr. Traversy.
[10] Commissioner Shoan initiated this application for judicial review seeking review of the decision of the Chairman which he says in his Notice of Application “accepted the results of an investigation into allegations of harassment against [him], concluding that [he] did commit harassment,” and imposing the five corrective measures. Among other grounds, he alleged that the Chairman had no jurisdiction over him because he was a GIC Appointee and not an employee of the CRTC.
[11] The Crown’s position is that the only decision under review is the decision of the Chairman to impose corrective measures. Commissioner Shoan’s position is that the Investigation and Report leading to the issuance of the corrective measures is also within the scope of his application for review. He submits that bringing this application prior to the Chairman’s decision would have been premature as “it remained for the chairperson to decide to accept, or not, the findings and recommended corrective measures within the process established by the CRTC.”
[12] In my view, the scope of this application is not restricted as the Crown submits. Appendix A to the CTRC Policy provides that the “Complaint process” includes the investigation, the report, the decision on the report, and the measures taken as a result. Accordingly, it is arguable that all these steps constitute but one decision. Appendix A to the CRTC Policy provides:
On the basis of the investigator’s report, the submissions made by the parties to the complaint and possibly the recommendations of Human Resources, the Delegated Manager makes a finding as to whether or not the allegations are founded. He/she communicates his/her decision to the parties and ensures the corrective and/or disciplinary measures are taken, if warranted.
[13] The Secretary General wrote in his letter to Commissioner Shoan that he accepted the conclusions of the Report and that he would be “recommending to the Chair and CEO of the CRTC the following measures to deal with the conclusions of the investigator’s report.” Under the TBS Policy the imposition of corrective measures would have fallen to the Secretary General, and there would have been no dispute that the decision to accept the Report and impose corrective measures constituted a single decision subject to review.
[14] In the present circumstances, and probably because of Commissioner Shoan’s position, the Secretary General referred the question of corrective measures to the Chairman. It was open to the Chairman to accept all, some, or none of the recommendations; regardless, the Chairman had to first consider whether he accepted the Report and its conclusions. If he did not turn his mind to that fundamental question and accept the finding of the Report, his decision to impose any corrective measure would be unreasonable.
[15] In any event, had it been necessary, I would have exercised my discretion under Rule 302 of the Federal Courts Rules, SOR/98-106 and permitted both the decision finding harassment and the decision imposing corrective measures be included in this application. This permits the real issues between the parties to be adjudicated and thus is in the interest of justice. The respondent is not prejudiced as it knew from the filing of the application that Commissioner Shoan was challenging the Investigation, the Report, and the corrective measures, including the question of jurisdiction over him as a GIC Appointee.
Issues [16] Commissioner Shoan raises four issues:
1. What is the appropriate standard of review for the issues raised?
2. Did the CRTC and its Chairman have jurisdiction to investigate the Complaint and impose measures following a finding that harassment had occurred, given that Mr. Shoan is a Governor-in-Council appointee [GIC Appointee] and not an employee of the CRTC?
3. Did the Investigation offend principles of procedural fairness and natural justice?
4. Was the ultimate finding and the imposition of corrective measures reasonable?
Analysis 1. Standard of Review [17] Commissioner Shoan submits that the question of whether the Chairman had jurisdiction over him and issues of procedural fairness are subject to a correctness review and that all other issues are subject to a reasonableness review. The respondent submits that all issues raised are subject to a reasonableness review.
[18] The respondent reminds the Court that the Supreme Court of Canada has indicated that “[t]rue questions of jurisdiction are narrow and will be exceptional:” Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 39, [2011] 3 SCR 654. It was for that reason that the Court went on to observe that decisions of an administrative tribunal interpreting or applying its home statute should be presumed to be reviewable on a reasonableness standard.
[19] Here there is no “home statute” per se but there are policies that applied to the CRTC and the Investigation, and I see no reason why the words of the Supreme Court of Canada should not apply with equal force to decisions and interpretations made by persons authorized to act under those policies.
[20] In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], the Supreme Court of Canada held that the correctness standard will be applied to constitutional questions, questions of general law that are of central importance to the legal system as a whole and outside the tribunal’s field of expertise, questions regarding the jurisdictional line between two or more competing specialized tribunals, and to true questions of jurisdiction. In my view, the only possible category described in Dunsmuir into which the issue of CRTC jurisdiction to investigate a complaint of harassment against a GIC Appointee might be said to fall is that of a “true question of jurisdiction.”
[21] In Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654, Justice Rothstein, writing for the majority, noted at paragraph 33 that since Dunsmuir, the Supreme Court of Canada had not identified a single true question of jurisdiction. Although Justice Rothstein said at paragraph 42 that he was “unable to provide a definition of what might constitute a true question of jurisdiction” he left the possibility open that counsel might be able to satisfy a court that a true question of jurisdiction exists and applies in a particular case. That being so, he proposed the following two-step approach: (1) when considering a decision of an administrative tribunal interpreting or applying its home statute, there is a presumption that the appropriate standard of review is reasonableness; and (2) as long as the true question of jurisdiction category remains, the party seeking to invoke it has to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.
[22] No such demonstration was made by Commissioner Shoan, and I am unable to see any basis on which it could be said that the suggested immunity of a GIC Appointee from the harassment policies of the organization he is a part of is a true question of jurisdiction. Accordingly, the decision that the CRTC had jurisdiction to conduct a harassment investigation regarding the conduct of the applicant, a GIC Appointee, shall be determined on the reasonableness standard.
[23] In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court of Canada said at paragraph 43, that Dunsmuir affirmed correctness as the standard of review for procedural matters. It reaffirmed this view in Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502 [Khela], and added that some deference should be owed to the administrative decision-maker on some elements of the procedural decision.
[24] I am bound to follow the view of the Supreme Court of Canada in Khela. Accordingly, the correctness standard will be applied where it is alleged that there was a denial of procedural fairness.
2. The Chairman’s Jurisdiction Over Commissioner Shoan [25] Commissioner Shoan submits that as a GIC Appointee he was responsible only to the Governor in Council [GIC], and not to the Chairman of the CRTC or any other governmental agency. He submits that the Chairman’s decision to invoke the TBS Policy and institute a harassment investigation, to accept the conclusion, and to impose corrective measures was a decision made without jurisdiction and therefore, is a nullity.
[26] Commissioner Shoan candidly acknowledges that there is no jurisprudence dealing with the imposition of corrective measures or investigations being taken against GIC Appointees; however, he submits that “there is a well-established body of law which makes it clear that a GIC appointment is accountable to the GIC, particularly where, as is the case with Commissioner Shoan, the appointment is on ‘good behaviour’.” As support for that view, he cites Christopher Rootham, Labour and Employment Law in the Federal Public Service (Toronto: Irwin Law 2007) at 322, and Wedge v Canada (Attorney General), [1997] FCJ No 872, 133 FTR 277 (FCTD).
[27] In my view, these authorities only stand for the rather obvious proposition that having been appointed by the GIC, one may only be removed by the GIC. They do not stand for the overarching principle advanced by Commissioner Shoan that only the GIC may take actions that affect or have an impact on a GIC Appointee. That being said, I do accept that actions taken that materially impair the ability of a GIC Appointee to perform his or her mandated duties and responsibilities do not lie with anyone other than the GIC. In an employment context, such actions would be considered to be a “constructive dismissal” and actions that amount to the constructive termination of a GIC Appointee can only be done by the GIC, and then only to the extent permitted by law. No submission was made by Commissioner Shoan that the corrective measures imposed by the Chairman constituted a constructive termination of his appointment because they prevented him from doing the job he was appointed to do, and I find nothing in the record that would support such a claim had it been made.
[28] I am supported in the view that Commissioner Shoan is not immune from having his actions examined by the CRTC based on the long-accepted principle in human rights law that an employer has a duty to prevent discrimination and harassment of its employees from clients, vendors, service-users, friends and family members of employees, and other non-employees who may be visiting the workplace or affiliated with the workplace: See for example Laskowska v Marineland of Canada Inc, 2005 HRTO 30 at para 57, [2005] OHRTD No 30 (OHRT); Clarendon Foundation v OPSEU, Local 593 (2000), 60 CLAS 129, 91 LAC (4th) 105 at 120 (Ont Arbitration); Lanteigne v Sam's Sports Bar Ltd, [1998] BCHRTD No 40 at para 15, 98 CLLC 230-045 (BCHRT); Jalbert v Moore, [1996] BCCHRD No 37, 1996 CarswellBC 2983 at para 39 (BC Human Rights Council); Milay v Athwal, 2004 BCHRT 132 at para 14, 50 CHRR D/386; Nixon v Greensides, 20 CHRR D/469, 1992 CarswellSask 766 at para 22 (Sask Human Rights Board of Inquiry); Garland and Tackaberry, Re, [2013] MHRBAD No 105 at para 9, 2013 CLLC 230-023 (Man Human Rights Commission).
[29] This enlarged scope is also evident in the Directive on the Harassment Complaint Process issued by TBS pursuant to the TBS Policy, which provides at section 2.4:
In circumstances where an employee files a harassment complaint against an individual who is not an employee as defined in Appendix A, managers must apply the complaint process as established in this directive to the extent possible.
[30] Commissioner Shoan argues that “applying the ‘spirit of the policy’ does not grant a deputy head the authority to make findings in respect of a GIC appointee.” He submits that the Chairman ought to have received the Complaint and then referred it to the GIC, which “would appoint an investigator, determine the scope of the investigation, and then determine whether the appointee breached the principle of good behavior [sic] thus terminating his appointment.” No authority was cited to support that this would be the only or the appropriate or the preferred option.
[31] Indeed, in my view, it is unlikely to be seen as the preferred option because it can achieve only one of two results – the GIC Appointee is terminated or the appointment is retained. It does little to address the real issue of the relationship between the GIC Appointee and the alleged victim of harassment. On the other hand, in utilizing the TBS Policy, as was done here, the person having the ultimate authority over the workplace may impose measures with a view to stabilizing the workplace and eliminating any harassment. It is not within the jurisdiction of the GIC to impose any internal restrictions or obligations on persons other than the GIC Appointee.
[32] For these reasons, I reject Commissioner Shoan’s submission that the Chairman had no jurisdiction to investigate the Complaint and impose measures (within the scope outlined previously) following a finding that harassment had occurred, because Commissioner Shoan was a GIC Appointee.
3. Procedural Fairness and Natural Justice [33] Commissioner Shoan submits that he was denied procedural fairness and natural justice because:
1. Assurance made to him that he would have input into the identity of the investigator were unfulfilled;
2. The Investigator “was biased, and was adversarial with [Commissioner Shoan]” during the Investigation;
3. “The Chairperson was biased, as he participated both as witness in the investigation and as the ultimate arbiter of the complaint” and “his evidence was excessively critical and hostile toward” Commissioner Shoan;
4. The Investigator refused Commissioner Shoan’s request that she review the “Complainant’s own conduct with respect to the impugned email exchanges” as part of the Investigation; and
5. The Investigation was broadened by the Investigator beyond the scope of the Complaint.
[34] In my view, many of these issues overlap, especially those relating to the allegations of bias, the alleged failure to examine the Complainant’s behaviour, and the expanded scope of the Investigation. The procedural fairness issues will be analysed under two headings: issues occurring prior to the Investigation, and issues occurring in the course of or at the conclusion of the Investigation.
[35] Commissioner Shoan submits, and I agree, that a harassment investigation has significant consequences for all parties involved, and thus procedural fairness is required: Puccini v Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] FCJ No 619, [1993] 3 FC 557 at 11, and Potvin v Canada (Attorney General), 2005 FC 391 at para 19, [2005] FCJ No 547.
[36] He further submits that when one considers the factors outlined by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] SCJ No 39, [1999] 2 SCR 817 at paragraphs 23 – 28, the content of that duty is heightened. Those factors are (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself.
[37] I accept that the potential serious and profound impact on the reputations and careers of both the Complainant and Commissioner Shoan in itself is sufficient to put procedural fairness requirements of the Investigation at the upper end of the flexible and variable scale enunciated by the Supreme Court of Canada.
A. Issues Occurring Prior to the Investigation [38] In his affidavit, Commissioner Shoan attests that in the initial telephone call advising him of the Complaint, the Secretary General assured him that the process would be impartial and “to assuage any potential concerns, Mr. Traversy indicated that the Commission would be issuing a Request For Proposal (RFP) for a potential investigator to assist with the complaint’s resolution [and] before settling on an investigator, Mr. Traversy assured me that both the Complainant and I would be provided with a list of potentials and would be provided an opportunity to ‘veto’ candidates with whom we were not comfortable.”
[39] About a month later, Commissioner Shoan received a call informing him that the Investigator had been selected. He complains that there was no explanation offered as to why the process of selection had changed or on what basis the Investigator had been selected.
[40] The Crown provided an affidavit of Helen McIntosh, Director General, Human Resources at CRTC. She attests that the Secretary General tasked her to search for and provide advice as to an appropriate investigator. She says that they could have gone the RFP route, but feared it would delay any investigation by months and might result in elements of the Complaint becoming public. Instead, she looked at the Standing Offer List at Public Works and Government Services Canada, from which to select potential investigators. Persons on that list have already been retained on contract, meet the competency profile, and meet other conditions including security and confidentiality requirements. Ms. McIntosh says that she consulted with colleagues in the Public Service for their experience in dealing with “complaints involving lawyers and high level officials” and based on her review of the list and references provided by colleagues selected four potential investigators. She contacted each as to their availability and approach to conducting an investigation. Three responded, but one of those was unavailable until January 2015. She had telephone conversations with the remaining two, and based on that conversation and a review of Ms. Laurin’s credentials, selected her as the person to recommend to the Secretary General. She attests that in particular she “was satisfied that [Ms. Laurin] complied with the competency profile, she had the appropriate experience dealing with high level government employees, and had a legal background,” such as Commissioner Shoan, and “she was available immediately.” The Secretary General accepted her recommendation.
[41] There is no evidence from the Secretary General regarding the “veto” assurances given Commissioner Shoan and the Complainant or any explanation why that was not ultimately provided.
[42] Based on the record before the Court, including the experience and qualifications of Ms. Laurin, I cannot find that at the time of her selection that she appeared to be anything other than an impartial investigator. The allegation that as the investigation proceeded her impartiality was brought into question is a separate issue.
[43] I further note that Commissioner Shoan has not said that at the commencement of the process, he would have vetoed her selection, nor has he suggested that there was any immediate impact on him or the investigation arising out of the failure to satisfy the assurances he was given.
[44] Absent any prejudice to Commissioner Shoan or adverse impact on the Investigation, the breach is not one that would attract any remedial action by the Court: See Uniboard Surfaces Inc v Kronotex Fussboden GmbH & Co KG, 2006 FCA 398 at paras 24-25, [2007] 4 FCR 101. Accordingly, although the assurances given to Commissioner Shoan were unfulfilled, this alone is not a basis to upset the decision.
B. Issues During and at the Conclusion of the Investigation [45] Commissioner Shoan alleges that the Investigator was biased. He makes this allegation based on his own experience and comments he received from others the Investigator questioned.
[46] Commissioner Shoan has argued that the Investigator exhibited bias, but that is not the test to be used when examining whether an investigation was procedurally fair and proper. Actual bias need not be shown. The test this Court has applied to investigative bodies, such as the Investigator here, is that they must not have a closed mind. Justice Richard in Bell Canada v Communications, Energy and Paperworks Union, [1997] FCJ No 207, 1997 CarswellNat 347 at para 31 (FCTD), articulated the test as follows:
The standard of conduct which is applicable to those performing an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigate function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue. [emphasis added]
[47] In Canadian Broadcasting Corp v Canada (Human Rights Commission), [1993] FCJ No 1334, 1993 CarswellNat 597 at para 47 (FCTD), the Court stated the same test but in slightly different words:
[I]t is 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. [emphasis added]
[48] In matters where claims have been made of an apprehension of bias or a closed mind, the grounds must be substantial; mere suspicions are not sufficient.
[49] The question the Court must ask is this: “Would an informed person viewing the matter realistically and practically, having thought the matter through, conclude that the Investigator had failed to keep an open mind such that the question of whether Commissioner Shoan had harassed Ms. Cliff had been pre-determined by the Investigator?”
[50] In addition to the Investigator being biased, Commissioner Shoan also submits that the Chairman was biased “as he participated both as a witness in the investigation and as the ultimate decision-maker as to whether harassment occurred.” The Chairman was not performing an investigative function, but an adjudicative one, and so the question to ask in that respect is: “Would a reasonable person properly informed apprehend that there was conscious or unconscious bias on the part of the decision-maker?”: See Wewaykum Indian Band v Canada, 2003 SCC 45 at para 66, [2003] 2 SCR 259. The dissenting opinion of Justice de Grandpré in Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 369, 68 DLR (3d) 716 at 735 has become the universally accepted test for reasonable apprehension of bias in Canada. He stated:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.
[51] The best evidence of a closed-mind is found in statements made by the decision-maker during the investigation: See for example Pelletier v Canada (Attorney General), 2008 FC 803, [2008] FCJ No 1006. More usually, a closed-minded determination is deduced from evidence relating to the process and the decision itself.
[52] A closed-mind has been found when there is unequal treatment of a complainant and the respondent. For example in Woolworth Canada Inc v Newfoundland (Human Rights Commission), [1995] NJ No 324, 35 Admin LR (2d) 264 (Nfld CA), the court found that giving the complainant access to the investigator's report and to the memorandum prepared for the Commission by its solicitor and inviting and receiving a lengthy memorandum urging the complainant’s position on the Commission, and not doing the same for the respondent was such that a “reasonable observer could conclude that the decision to appoint a board was a forgone conclusion, and was simply a formality to be effected so that [the complainant] and the Commission could further pursue the complaint against [the respondent].”
[53] A lack of even-handedness has also been found when relevant material information was omitted in the investigative report: Canadian Broadcasting Corp v Paul, [1998] FCJ No 1823, [1999] 2 FC 3 (FCTD). The court there held that the failure was of such significance that it provided evidence of bias rendering an investigation procedurally unfair.
[54] I have concluded that an informed person viewing the Investigation and Report realistically and practically, having thought the matter through, would conclude that the standard of open-mindedness had been lost to the point where on the balance of probabilities it would be said that the issue the Investigator was to determine had been predetermined. In my view, Commissioner Shoan was denied procedural fairness and natural justice. I reach this decision based on the cumulative impact of many aspects of the investigative process and the Report it produced.
[55] Commissioner Shoan filed two affidavits in this application: the first sworn June 8, 2015, and the second sworn on August 20, 2015.
[56] In his first affidavit, he attests that throughout his interview “the investigators were argumentative” and interrupted him. He says that the “body language of the investigators was one of a negative pre-disposition; they shook their heads often and frowned openly.”
[57] While the conduct of the Investigator as described was inappropriate, it cannot be said, without more, that this raises above mere speculation on Commissioner Shoan’s part as to the bias of the Investigator. However, and critically in my view, other witnesses independently came to a similar conclusion based on the Investigator’s interview with them.
[58] Commissioner Shoan attests that Vice-Chairman Tom Pentefountas told him that “in his view, it was clear that the investigators had already made their minds up and that they were ‘unbelievably biased’ against me.” Commissioner Shoan goes on to recount that the Vice-Chairman “warned me that the ‘fix is in’.”
[59] Commissioner Shoan also recounts an SMS [i.e. text message] exchange he had with Vice-Chairman Peter Menzies “who expressed similar concerns following his interview with the investigators, namely that they had clearly made up their minds and that it was a foregone conclusion that they would find me in contravention of the Policy.”
[60] Commissioner Shoan says that Vice-Chairman Menzies also shared his view that the Investigator appeared to be influenced by the reputation of the Chairman:
Later, in person, Vice-Chairperson Menzies expanded upon the experience and indicated that the investigators had dominated discussion during his interview and repeatedly stressed that the Chairperson was a ‘highly decorated’ and ‘respected’ executive in the public service. He also indicated that the investigators appeared to be giving career advice to him such that it was safest for him to not get too involved in the complaint process as, typically, in these situations, the impugned executive was quietly dismissed from their post without much public attention. In the view of Vice-Chairperson Menzies, the investigator seemed inordinately focused on the Chairperson until he commented that the complaint was between myself and Ms. Cliff, at which point the investigators hastily turned their questioning back to the complaint itself. Lastly, Vice-Chairperson Menzies indicated that the investigators appeared resistant to include in his statement his position that a ‘toxic environment’ was already evident at the Commission prior to the raising of my issues with the Chairperson and the Complainant. [footnote - In this respect I note that the investigators redacted this portion of Vice-Chairperson Menzies’ witness statement.]
[61] In his second affidavit he attests that Vice-Chairman Menzies told him that he was also told by Vice-Chairman Pentefountas in January 2015 that “the fix is in” regarding the Complaint and that Commissioner Shoan was “fucked.”
[62] Commissioner Shoan attests that he made an attempt to rebuild his relationship with Commissioner Simpson in light of his “negative witness statement as contained in the Preliminary Statement of Facts.” Commissioner Shoan attests that during their lunch, Commissioner Simpson “indicated that he was pressured by the Chairperson to provide a witness statement in the complaint process that was negative towards me.” He further attests that Commissioner Simpson stated that “the investigators asked ‘heavily leading’ questions during the interview in order to obtain the answers they were seeking.”
[63] These concerns regarding the perceived bias of the Investigator are not of recent origin. Some were raised by Commissioner Shoan with the Investigator on March 13, 2015, in his reply to the Preliminary Statement of Facts:
At my December interview, it was apparent that the investigators had determined my ‘guilt’ prior to the commencement of the meeting. … Throughout the three-hour interview, the body language of the investigators was one of doubt towards me. I was repeatedly interrupted by one investigator when I was speaking to the point where the other investigator asked her to refrain from doing so. Additionally, one investigator would shake her head when I was replying to questions or would frown openly - clear indications that she had pre-determined my guilt in her own mind. In fact, after the completion of the investigators’ initial round of interviews, one Commissioner contacted me to state that they were appalled at the obvious bias of the investigators and warned that the ‘fix is in’.
[64] The Investigator provided her response to these concerns in the Report. As to body language, the Investigator writes that she “makes no comment in this regard as it is the perception of the respondent.” She then goes on to describe, in general terms that investigators are neutral and unbiased, and she made no credibility findings concerning Commissioner Shoan. As to the comment of a Commissioner that the ‘fix is in’ she responds that she “wonders how this Commissioner could make such a remark since the questions put to the witness were based on the emails submitted” and other events.
[65] No affidavit of the Investigator was filed and I find that the response in the Report does not address the principal allegation of Commissioner Shoan that his experience and that of two other witnesses was that the Investigator had made up her mind before all the evidence was in.
[66] The Investigator’s response that no credibility findings were made in the Report is insufficient and does not address at all the concern that Commissioner Shoan’s interview was not done in an impartial and professional manner. Likewise, stating that she “wonders how the Commissioner could make such a remark since the questions put to the witness were based on the emails submitted” and other events does nothing to address their perception following the interview that “the fix is in.” At a minimum, I would have expected the Investigator, having received this information, to return to those witnesses to ask whether this is how they felt and why they had that perception. Instead, the Investigator acted as if these statements were just wrong and the witness had not formed this perception.
[67] The statements made to Commissioner Shoan by his two colleagues is not evidence that the Investigators were in fact biased or that the fix was in; but they are evidence that these statements were made. These statements describe the perception of two witnesses. These are witnesses with no direct involvement in the matters complained of and no interest in the outcome. Given that they would have to continue working with Commissioner Shoan, the Chairman, and the Complainant, I can see no motive either would have to fabricate or exaggerate. I can only conclude that these Commissioners, following their interviews by the Investigator, formed the view that the Investigator had a closed mind.
[68] There is no direct evidence from these Commissioners as to how or why they formed this conclusion, but I do not find that affects the submission of Commissioner Shoan. Would a reasonable person on hearing two impartial witnesses after their interviews say that the outcome has been pre-determined, not conclude that the Investigator has a closed mind? The obvious answer might be otherwise if there was any evidence from which the reasonable person or the Court could conclude that nothing was said or happened in the interviews that warranted these witnesses reaching the view that the fix was in. There is nothing of that sort here.
[69] There are no records before the Court from the Investigator. The Court was informed that the Investigator’s notes were destroyed. Given the potential for a future application for judicial review of the Report’s conclusions, one would reasonably expect that an experienced and impartial investigator would retain his or her notes, correspondence and audio recordings until well after the time limit for such an application. While the Court is not prepared to draw an adverse inference from the destruction of these records, and none was asked to be drawn, in another case such an inference might well be justified.
[70] The comments made by the Investigator to witnesses during the investigation concerning the reputation and status of the Chairman are very troubling and in my view support the closed-mind finding. I can see no reason why any such statement would have been made, and it is not referenced in the Report. It is troubling because, as is discussed below, the investigation veered from the initial Complaint to explore whether Commissioner Shoan created a toxic work environment at the CRTC – a view that appears to have been first expressed by the Chairman to the Investigator and then found by her as a fact.
[71] The comment supports the closed-mi