Demitor v. Westcoast Energy Inc. (Spectra Energy Transmission)

Demitor v. Westcoast Energy Inc. (Spectra Energy Transmission)
Court (s) Database
Federal Court Decisions
Date
2017-12-20
Neutral citation
2017 FC 1167
File numbers
T-343-17
Decision Content
Date: 20171220
Docket: T-343-17
Citation: 2017 FC 1167
Ottawa, Ontario, December 20, 2017
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
SUZANNE DEMITOR
Applicant
and
WESTCOAST ENERGY INC.
(O/A SPECTRA ENERGY TRANSMISSION)
Respondent
JUDGMENT AND REASONS
[1] The applicant, Suzanne Demitor, brings a judicial review application, pursuant to sections 18 and 18.1 of the Federal Courts Act (R.S.C. 1985, c. F-7), of a decision made by the Canadian Human Rights Commission [the “Commission”].
[2] The decision, dated January 31, 2017, is made on the basis of 43(3)(b)(i) of the Canadian Human Rights Act (R.S.C., 1985, c. H-6) [the “Act”]. It reads as follows:
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,
In effect, Mrs. Demitor made a complaint to the Commission which was investigated. The investigator, Mr. Stephen Worth [the investigator], submitted his report of the findings of the investigation conducted (subsection 44(1)) and recommended against referring the matter to an inquiry before the Canadian Human Rights Tribunal. The recommendation was endorsed by the Commission in its decision of January 31, 2017:
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 the respondent has provided an explanation for its action which is not a pretext for discrimination on the basis or age and/or marital status.
[3] The Commission serves a screening purpose. The reasons and recommendations of an investigator, when the Commission does not give its own reasons and rather adopts the investigator’s recommendations, are treated as constituting the Commission’s reasoning for the purpose of the screening function (Sketchley v Canada (Attorney General), 2005 FCA 404; 2006 3 FCR 392, at para 37). In this case, the applicant does not take issue with the decision itself, but rather finds fault with the investigation conducted, thus violating procedural fairness principles.
I. Facts [4] The facts of this case are relatively simple.
[5] The applicant is Suzanne Demitor. She is 53 years-old and married with 2 children, ages 11 and 13. The applicant was an employee of the respondent until approximately 1996 when her employment was terminated. Following her termination, the applicant provided services on a continuing basis to the respondent under a series of contracts involving various entities (Cicada Systems Inc., Cicada Systems, Demitor Holdings Inc.) until 2013, when her last contract, presented as that of a consultant, was terminated.
[6] It is that last contract which is the source of the complaint to the Commission made by the applicant. The respondent’s agreement is with Demitor Holdings Inc. DBA Cicada Systems. The agreement included a termination clause at the sole discretion of the respondent, but the applicant claims that she was treated in an adverse differential manner on the basis of her age and her marital status, two prohibited grounds under section 3 of the Act. For our purposes, I will insist on the facts which are directly relevant to the allegations of violations of procedural fairness. Nevertheless, the general context in which these allegations are presented is of some relevance.
[7] In the early 1990s, the applicant started developing with other Westcoast Energy Inc. [Westcoast Energy] workers, including Marion Johansen, a database that would assist to manage the respondent’s waste and chemical inventory. Ms. Johansen would continue to be involved with the applicant both as a co-employee and as the Westcoast Energy’s responsible for managing the contracts that kept the applicant involved until 2013.
[8] From this database, a more robust system was developed in large part due to the expertise of the applicant. This system was referred to as the Environmental Management Information System [EMIS]. Such system proved useful as it enabled the company to satisfy regulatory reporting obligations.
[9] In 2002, the applicant formed Cicada Systems Inc. [Cicada Systems] and she registered the company in the United States in 2011. In 2013, the applicant began contracting with the respondent through Demitor Holdings Inc. The applicant provided services and support of the respondent’s EMIS and Environmental and Chemical Inventory [ECI] system.
[10] In 2004, Westcoast Energy was purchased by Duke Energy, to be shortly thereafter renamed Spectra Energy [Spectra]. Spectra had its own system for tracking the same kind of information, which resulted in the wish for Westcoast Energy to migrate its EMIS system into Spectra’s EPASS. As the transition progressed, all that remained under the management of Westcoast Energy, which is relevant to this case, was the ECI. The applicant was thereafter chiefly involved in the management of the ECI, which had yet to be migrated into EPASS.
[11] Ms. Johansen, who was interviewed by the investigator, explained that the ongoing need for ECI as a stand-alone system diminished over time, and that there were several points where the program appeared to be a casualty of budget restrictions and management decisions. Until 2013, ECI was kept within the division but the migration to EPASS was to continue. That would result in the transfer of the function to the Houston (Texas) headquarters of Spectra.
[12] According to Ms. Johansen, it was the respondent’s intention that the applicant be instrumental in the transition of the program to the Houston headquarters. However, the applicant’s contention that she was being replaced by someone younger than her, one Mr. Moreno, of Houston, was simply untenable given that Mr. Moreno was “in charge” of the entire EPASS system, compared to the applicant’s role which was in helping manage what would have become a single module of the EPASS system.
[13] Understandably, it is in the context of the uncertainty about her future involvement with Westcoast Energy that the events that led to the cancellation of her contract were to take place.
[14] In fact, the applicant spoke at some length to the investigator about the precariousness of her situation going as far back as 2005. Thus, during the period between 2005 and 2013, the respondent was non-committal with respect to the long-term prospects of ECI and her continued involvement. On multiple occasions over this period, she felt she would have her responsibilities removed due to the non-committal approach to the programs in which she was most directly involved.
[15] In the notes of the investigator’s interview conducted with the applicant, it is reported that the applicant’s husband was asking her about what was happening about contracts, and why she was not working. She would be indicating that she would be doing hours of work fighting for her job and the applicant’s husband would vent that too much work was being done without being paid. The applicant thought that her husband would be restless and that he would get in touch with people at the company. Indeed, in her second interview with the investigator, she acknowledged that she knew her husband was speaking with a manager at Westcoast Energy, one Rob Conrad, but did not know that her husband would send the email which resulted in the termination of her relationship with Westcoast Energy. The email is at the heart of this case.
[16] The email sent on July 16, 2013, which is reproduced in his entirety in the Investigation Report (and also reproduced in Appendix A of these reasons) is, in my view, clearly threatening. Mr. Demitor presents himself as a representative of Cicada Systems. The email goes through the history of underfunding for ECI and claims that a proposal developed by Cicada in order to deal with the major deficiencies of ECI and MSDS was not accepted, with the consequence that “Cicada was asked to essentially limp the system along in an attempt to meet NPRI deadlines only”. The email claims that Cicada recommended “resuming reporting as it did with BC Hydro to ensure that the MSDS database was current and credible”. Showing his displeasure with how the matter had been handled, the email continues by stating:
Being that you were responsible for ECI during the period being discussed, I would like to know what members of management were involved in the decision process outlined above and who was given the ECI Executive Summary, dated November 2010, which I have included. Rob is currently working point for ECI and I am confident he has good understanding of what was needed to get things right.
(my emphasis)
[17] Continuing to speak as a Cicada Systems’ representative, the email continues:
As a consultant who specializes in regulatory chemical accountability, part of our function, and responsibility is to inform our clients if they are doing things that would be looked upon unfavourably in the event of a regulatory audit. Part of our due diligence involves assigning accountability to certain decisions regarding regulatory issues so that we can better serve our clients and advised them moving forward.
(my emphasis)
[18] The email then makes things very personal:
Cicada is integral to ECI. Suzanne helped develop it and has the knowledge that is crucial to its success whether or not it remains a stand-alone system. If Spectra’s desire is to integrate ECI into EPASS, having Cicada onboard is essential to avoid development setbacks similar to the ones experienced during air emissions development.
The email then concludes by setting an element of urgency by stating that “(g)iven that budgets are currently being discussed and Matthew was put in charge of evaluating ECI and its possible integration into EPASS, this matter needs to be dealt with immediately so that we can avoid any further setbacks in ECI and MSDS. These systems need to be current and credible, regardless of whether or not ECI is integrated into EPASS.”
[19] This email was cc’d to executives in Houston and it is signed by Tim Demitor, who presents himself as speaking on behalf of Demitor Holdings Inc. DBA Cicada Systems.
[20] When interviewed, Mr. Demitor stated that he sent the email in order to ensure his family’s “financial stability”. He felt that the applicant’s work was being compromised by her manager and he was concerned by her lack of compensation, and the company’s regulatory compliance. He claimed that his goal was to start a dialogue.
[21] Most of the recipients of the email did not know Mr. Demitor as he had had no previous dealings with them. Nevertheless, the email was not well received by the respondent’s representatives. It was seen as accusatory, overreaching and aggressive, to the point of perhaps constituting blackmail. In addition, the respondent claimed that the email meant there had been a breach of the confidentiality obligations by the applicant in view of the information contained in the email. Thus, within a week, the contractual relationship was terminated. It appears that it was one Rob Conrad, an employee of Westcoast Energy, whose responsibility it was to terminate the contractual relationship.
[22] Whether or not this case constitutes a labour law matter or a breach of a contractual relationship leading to liability is not before this Court. Indeed, the applicant did not take issue with the merits of the investigative report, which was endorsed by the Commission. As we shall see, the Commission disposed of the complaint on a narrow basis and that is not disputed. To put it another way, the reasonableness of the decision is not raised as an issue. Rather, the applicant takes issue with the manner in which the investigation was conducted.
II. Preliminary objection [23] The complaint was filed on June 24, 2014, close to one year after the events that concluded in the termination of the contractual relationship, but within the limitation period.
[24] However, the respondent filed a preliminary objection to the complaint, submitting that it was beyond the Commission’s jurisdiction to consider the matter because there was not an employer/employee relationship, but rather the relationship was between two corporate entities. In a letter dated September 8, 2014, the applicant was invited by the Commission to submit her position on the jurisdictional issue.
[25] The September 8, 2014, letter is signed by a Commission’s staff member, Pascale Lagacé, who is presented as an Early Resolution Team Leader. Its purpose is to raise the jurisdictional issue. The complainant, as a corporation, would not have standing to file a complaint. Submissions to address the issue are invited.
[26] Mrs. Demitor contacted Ms. Lagacé the day after she received the notice. In the affidavit before this Court, the applicant claims that she was immediately concerned because she felt Ms. Lagacé had made up her mind without hearing her side of the story. The applicant sent her submissions on the jurisdictional issue on October 20, 2014. She then tried to communicate again with Ms. Lagacé, without success.
[27] It is on February 5, 2015, that they connected. Ms. Lagacé advised that the matter had been referred for a report to another officer, Mr. Jamie Masters. Despite that, Mrs. Demitor sought contact again with Ms. Lagacé. She was successful on March 19, 2015. According to notes made contemporaneously, Ms. Lagacé confirmed that she still thought the Commission did not have jurisdiction but indicated twice that it was her view; that is because the complainant is a corporation as opposed to an individual. The Commission staffer then explained how long the process typically takes if the matter is investigated by the Commission on its merits.
[28] In her own notes, the applicant documents her follow-up conversation with Mr. Masters who, following a cursory review of the file, would be inclined to see the relationship between the applicant and the respondent as a business relationship, contract after contract, with the respondent not exercising control over the applicant; the notes state that Mr. Masters is “not seeing anything that indicates an employee relationship - individual to business” (Suzanne Demitor’s affidavit, exhibit J). Nevertheless, Mrs. Demitor seems to express some optimism because Mr. Masters appears to be sympathetic to her case (“He indicated that based on my surprising rebuttal of their accusations, he is very much interested in investigating”).
[29] Despite the early misgivings of Ms. Lagacé and Mr. Masters, the report on the jurisdictional issue which was issued on August 13, 2015, recommended that the complaint be dealt with on its merits: it was prepared by Mr. Masters, a member of the Resolutions Services Division. The Commission, following submissions by the parties, endorsed the report of Mr. Masters on November 16, 2015.
III. The investigation [30] Followed the investigation of the complaint by Mr. Stephen Worth. Before an interview with the applicant was arranged, the applicant insisted on sending 3000 pages of evidence on September 2, 2016. Counsel for the respondent indicated during the hearing of this case that it has not had access to that evidence; in fact, it was not before this Court. Counsel for the applicant simply noted that the evidence covered the relationship of the applicant with Westcoast Energy. It is not readily apparent why that much “evidence” would be submitted on what is a relatively straight forward matter. As I observed at the hearing of the case, it seems that the parties proceeded as if this is a labour law case or a general breach of contract issue. The reality is that the applicant was arguing discrimination with respect to the termination of the contract on the grounds of age and marital status. That is where one would have expected the focus to be. Following the investigation, the Commission found that “there was no evidence presented which substantiated the allegation that the complainant’s age was a contributing factor to the respondent’s decision to terminate her contract…” (Investigation Report of October 21, 2016, para 35) and that “(o)ther than the complainant’s bald assertion that there is a link between the respondent's actions and her marital status, there is nothing to suggest that the respondent acted in a discriminatory manner” (para 76).
[31] Nevertheless, the applicant faults the investigation for what she alleges are procedural fairness violations.
[32] The investigator interviewed four persons as well as reviewing the documentation submitted by the parties: Mrs. Demitor, Mr. Demitor, Marion Johansen and Bruce Kosugi. Ms. Johansen is the Industrial Waste Specialist for the respondent and worked closely with the applicant while directly employed by the respondent. Later on, she managed contracts with the applicant; she was the prime point of contact between the applicant and the respondent. As for Bruce Kosugi, he was the manager of the EHS system in British Columbia and Ms. Johansen’s manager.
[33] Mrs. Demitor was interviewed twice by telephone: on October 5, 2016, for approximately 30 minutes, and on October 12, 2016, for another 10 minutes. As for Mr. Demitor, he was interviewed for about 20 minutes on October 7, 2016. The interview notes taken by the investigator are on record before the Court. Are also on record the interview notes with respect to the interviews of Ms. Johansen and Mr. Kosugi.
[34] The Investigation Report is dated October 21, 2016, and requires that submissions of the parties on the report be made by November 14, 2016. It is signed by Mr. Worth. However, it was transmitted on October 31, 2016, by Ms. Lagacé who had become “Manager, Investigations” by that time. It appears that Mr. Worth had left the Commission by October 28, 2016.
[35] The parties provided their submissions on two different dates, on November 3 (respondent) and November 14, 2016 (applicant) without having access to each other’s submissions. Thus, the applicant’s submissions of November 14 did not take into account the respondent’s submissions filed 10 days earlier. Similarly, the replies were not coordinated, the respondent’s reply coming on November 30, 2016, and the applicant’s reply on December 9, 2016.
[36] In her submissions of November 14, 2016, the applicant took issue in particular with the allegation that her husband was in possession of confidential information. She stated that she did not have access to the respondent’s confidential information since May 31, 2013, a full six weeks before the July 16, 2013 email which resulted in her contract being terminated. In the applicant’s contention, Mr. Demitor had been speaking with various respondent’s employees before writing his email and he would have been able to gather some information. Nevertheless, the applicant refers to emails received claiming that the respondent was sharing with her confidential information as late as July 15, the day before her husband communicated with various respondent’s officials. The fact that the respondent would be communicating confidential information to her outside secure channels would somehow affect the alleged use of confidential information by her husband (in fact, that may explain why Westcoast Energy quickly resolved after the July 16 email to cut off communications).
[37] Mrs. Demitor also argued that the investigator had overlooked evidence and that the interviews with the Demitors had been rushed, especially that of Mr. Demitor. The applicant also indicated that she would expect Rob Conrad, who would have made the ultimate decision to end the contractual arrangement, to be interviewed. Finally, the applicant attempted to make hay out of her contention that she did not hold her husband out to be her agent until after the email was sent, despite the evidence which indicates numerous conversations between him and Westcoast Energy officials in which, evidently, he would be speaking on her behalf. Mr. Demitor claims his information came from officials, which suggests he was not unknown to Westcoast Energy. Indeed, the contracts with Westcoast Energy were made through corporate entities including Demitor Holdings Inc. and Cicada Systems.
[38] The respondent’s submissions of November 3, 2016, were basically in support of the Investigation Report, although the respondent continued to argue that the applicant was not one of its employees.
[39] The more extensive respondent’s reply to the applicant’s submissions of November 14 goes on to argue that the applicant’s submissions speak of various issues, but do not speak much of the issues germane to the complaint, whether age or marital status were factors in the decision to terminate the contract. Whether the applicant had held Mr. Demitor out to be a representative or not prior to the email of July 16, 2013, is of no significance because he held himself out to be a representative of and speaking for Demitor Holdings Inc. Dba Cicada Systems. It was noted that Mr. Kosugi, of whom the applicant was particularly critical in her complaint to the Commission, had new responsibilities since January 2013, such that he did not have any longer the responsibility for approving or terminating contracts involving the applicant. At the end of the day, the issue is whether age or marital status were factors in the termination, not whether the respondent was right to terminate the contract. Finally, the respondent seized on the applicant’s claim that she did not have system access after May 31, 2013. That claim, said the respondent, was “demonstrably false and, as illustrated below, was known by the complainant to be false”. The point of the matter was that the applicant had indicated on May 31 that she ought to be excluded from having access to the confidential information held in a secure manner, but the access was continued until June 30, 2013.
[40] The applicant had not seen the respondent’s reply of November 30, 2016 when she produced her own reply. She did not know that the respondent had taken issue with the assertion the applicant had lost direct access to confidential information on May 31, 2013. In her reply’s submissions of December 9, 2016, the applicant focused on her alleged status as an employee of the respondent.
[41] It is only on January 5, 2017, when the applicant received the respondent’s reply that she noted that her assertion that she did not have access to the respondent’s information system since May 31, 2013, was inaccurate. Thus, she immediately sought to correct her mistake by sending an email to Ms. Lagacé on January 9, 2017.
[42] In the January 9 email, Mrs. Demitor acknowledges her innocent mistake, noting that the evidence to the investigator showed that she was aware of still having access as of June 30, 2013. That would tend to show that this constitutes an innocent mistake. More importantly for this case, the applicant was adamant that the mistake made “no difference whatsoever to anything else in my submission.” She added that “(j)ust the date needs to be corrected. As to the issues at hand, the date makes absolutely no difference. The change is immaterial to my submission” (Suzanne Demitor’s affidavit, exhibit O).
[43] In spite of an assurance being given by Ms. Lagacé that the correction had been communicated to the Commission, the certified tribunal record did not turn up the email of January 12, 2017. I note, however, in the second supplementary rule 318 certificate of April 18, 2017, two emails, one dated January 9, 2017, and the other dated January 12, 2017, that are instructions given by Ms. Lagacé concerning “date correction to first submission” with as an attachment “Evidence of having system access June 18 - no access June 30.docx”. On January 9, the instruction appears to be to put on file (“svp mettre au dossier”) the email of Mrs. Demitor of the same day. However, the matter is not without some doubt as the time on the emails would require some explanation. As for the instruction given on January 12, it appears to be part of a chain which includes Mrs. Demitor’s email of January 9, and where the instruction is again to put on file the email of January 9, but also that of January 11 where the applicant wishes to have confirmation of the communication of the date correction to the Commission. This second chain of emails include one from Ms. Lagacé to one Julie Fortier and one from Ms. Fortier to one Maria Stokes with the instruction, “Could you please print a copy of this email and the attachment and p/a on file”. The attachment is again identified as “Evidence of having system access June 18 – no access June 30.docx”.
[44] As the Commission did not take part in this Court’s proceedings, the Court does not have the benefit of a complete explanation.
[45] At any rate, the applicant pursued the matter with the manager of the registrar services in February 2017, after the negative decision by the Commission rendered earlier on January 31.
[46] What was a mistake that made “no difference whatsoever to anything else in my submission” and “(a)s to the issues at hand, the date also makes absolutely no difference” before the Commission’s decision seems to have become a matter of significant importance after the decision in the view of the applicant. Indeed, in an email dated February 21, 2017, the applicant sought to have the Commission reverse its decision. She also made allegations about Ms. Lagacé’s “conflicts of interest” and inquired about Commission employees being vetted for conflicts of interest with any federally regulated companies.
[47] That takes us to the proceedings before the Court where the applicant alleges violations of procedural fairness.
IV. The decision under review [48] The Commission endorsed the Investigation Report reaching the conclusion that the explanation given by the respondent for the termination of the contractual relationship with the applicant was not a pretext for discrimination on the basis of age or marital status. The decision is dated January 31, 2017, while the report, signed by the investigator, is dated October 21, 2016. In the period between the report and the decision, the applicant and the respondent offered their submissions and replies to each other submissions.
[49] The preliminary objection to the jurisdiction of the Commission had already been rejected on August 13, 2015, the Commission having concluded that “when examining the relationship between the complainant and the respondent through the control and dependency lens it appears that it could be considered employment for the purposes of the Act.” That is despite having acknowledged that “it is clear that the complainant was not in the traditional employer/employee relationship with the respondent” (para 38).
[50] The jurisdictional issue having been disposed of earlier, the Commission went on to be satisfied, on a low threshold, with the allegation that she was “fired because of [her] husband’s misdeed” as it was acknowledged that the termination involved the complainant’s spouse (para 14). Similarly, the Commission was willing to pursue the analysis further on the low threshold that “a younger employee of the respondent may have been involved in carrying out the duties of the respondent [sic] after her departure” (para 15). Accordingly, the Commission saw enough to take it to the step 2 where a closer examination of the explanation offered by the respondent takes place.
[51] Given that the applicant is not challenging the merits of the Commission’s decision, a close analysis of the decision is not required. It will suffice to say that the Investigation Report/Decision reproduces in its entirety the email sent by Mrs. Demitor’s husband on July 16, 2013. It is literally the centerpiece. The Commission finds that no link to age was established by the applicant as the evidence “would appear to demonstrate that the respondent elected to centralize the management of its environmental chemical inventory with a system that was developed by its parent company” (para 41).
[52] Similarly, the marital status allegation was not established. The Commission was careful not to delve into labour law issues concerning whether or not the termination was justified: that may explain why the issue is decided on narrow grounds. Thus, the motivation for the termination is the respondent’s perception that the email sent on behalf of Mrs. Demitor, or as her representative, was threatening as suggesting that the respondent was in a state of regulatory non-compliance that only the applicant could ensure would be rectified. Moreover, the respondent had a reasonable basis to perceive a breach of the contract because of a breach of confidentiality.
[53] The Commission was interested in assessing whether the termination was discriminatory, not whether it is justified as a matter of labour law or contract law. It did not matter whether or not the information used in the email came from the applicant. The threatening nature of the email with the clear connexion to Mrs. Demitor (“Cicada is integral to ECI. Suzanne helped develop it and has the knowledge that is crucial to its success whether or not it remains a stand-alone system”), together with the perception that confidential information had been illicitly accessed were the reasons for termination, not marital status or age. The outcome would have been the same had a professional written the email. I reproduce in their entirety the crucial paragraphs of the Investigation Report which are the heart of the decision:
[76] It matters not whether Mr. Demitor intended for this email to be threatening, or as he states, an attempt at opening a dialogue with management. The respondent perceived his actions to be threatening, and to be coming from a representative of the complainant. Similarly, whether Mr. Demitor obtained the information he alluded to in the email from his spouse also matters not. The respondent had a reasonable basis to perceive a breach of the terms of the complainant’s contract, and acted in a way it deemed appropriate. Other than the complainant’s bald assertion that there is a link between the respondent's actions and her marital status, there is nothing to suggest that the respondent acted in a discriminatory manner. The respondent acted on the assumption, whether rightly or wrongly, that the complainant breached her confidentiality requirements, and not on the basis of her marital status. This assumed breach created a breach of trust in the employment relationship and the complainant's contract was terminated.
[77] It is not the place of this Commission to investigate whether the complainant was justly dismissed. Rather, the Commission needs only be satisfied that the respondent has not discriminated against the complainant pursuant to a protected ground under the Act. In the present circumstances, whether the respondent’s explanation for its actions is a pretext for discrimination on the basis of marital status is at issue, and it appears as though the respondent’s explanation is reasonable. Were the complainant to have been in a professional rather than personal relationship with the individual that wrote to the respondent's senior managers and suggested the organization was non-compliant with its regulatory requirements, it is reasonable to believe that the respondent would have acted in the same manner. On a balance of probabilities, the respondent's explanation appears to be an accurate account of the events which transpired.
(my emphasis)
In effect, the Commission was interested solely in the reasons for termination. It was enough if there was a reasonable basis for concluding that the email was threatening and used confidential information. If that constitutes the basis for the termination, there is no discrimination. Indeed, there were only bald assertions of discrimination.
V. Standard of review and analysis [54] No one disputes that the standard of review for allegations of procedural fairness violations is correctness (Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502, para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 [Khosa], para 43).
[55] The applicant raises three procedural fairness issues:
a) The commission is in breach of procedural fairness because it failed to consider the date correction made by the applicant after the submissions have been completed;
b) The investigation was not thorough; and
c) Commission staff, and in particular Ms. Lagacé, demonstrated a closed mind.
The Court will address these alleged breaches seriatim.
A. Date correction [56] As pointed out earlier, what was presented as merely a mistaken statement about the date on which the applicant lost access to the respondent’s confidential information became in this Court “critical to the Applicant’s argument in her November 14 Submission that she had no system access in the month her husband sent his email” (memorandum of fact and law, para 41). To say the least, this is completely at odds with the January 9, 2017, email where the applicant says that “I can assure you that the date makes no difference whatsoever to anything else in my submission…the change is immaterial to my submission.”
[57] As the Court heard during the hearing of this case, the applicant did not even copy the respondent on her email of January 9, 2017, which, in the view of the respondent at least, constituted submissions that were not admissible since the exchange of submissions was closed by the end of December 2016: the investigation into the complaint was completed as of December 28, 2016 as the Investigation Report was transmitted to the Commission by staff.
[58] The applicant may well have been right on January 9, 2017, that her mistake made no difference whatsoever to the submission. After all, her point, and it is a limited one, was that her husband did not have access to confidential information because her own access had been denied prior to the email of July 16, 2013. That argument was at any rate a weak one. Whether access was denied on May 31 or June 30, that would not have prevented the applicant from sharing confidential information that would have been used by Mrs. Demitor’s husband. Indeed, the applicant argued that respondent’s officials were in breach of security when they communicated to her on July 15, 2013, confidential information, which goes to show that there was confidential information reaching her the day before the July 16 email was sent. The applicant claimed that the mistake did not change the argument that the husband did not have access to confidential information. Actually, it is difficult to see how sharing confidential information is predicated on losing access to networks shortly before the email was sent unless it is proven that the confidential information used was accessible only in the first two weeks of July 2013. No such evidence was proffered.
[59] The whole confidential information issue is a red herring in view of the Commission’s decision. It did not matter that the information was confidential or that it came from Mrs. Demitor. What mattered, says the Commission, is that the respondent “acted on the assumption, whether rightly or wrongly, that the complainant breached her confidentiality requirements, and not on the basis of her marital status” (Investigation Report, para 76). The merits of the decision are not challenged and the Court takes the decision as it is: the Commission was focused on whether or not there was discrimination. If the respondent terminated the contractual arrangement because of the tone of the email and the reasonable basis to perceive a breach of the contract's terms, the termination was not by reason of the marital status or age. Whether or not the respondent is mistaken in its belief matters not. The Commission opined exclusively on whether the termination involved discrimination. It concluded that the termination was because of the email and the respondent’s belief that some of the information contained therein was its confidential information transmitted to Mr. Demitor. To put it another way, the Commission excluded discrimination as a factor in the termination, whether or not termination was justified.
[60] The same can be said of the attempt made by the applicant to give significance to the fact that the date correction, concerning when access to confidential information was lost, was not communicated to the Commission. It matters not. I accept, for the purpose of the argument, that it is more probable than not that the correction was not communicated to the Commission in spite of the information that the email of January 9, 2017 – that is the email by which Mrs. Demitor corrected the date on which she lost access to confidential information – was filed by Commission’s staff. It is possible that the correction had some importance in the eyes of the applicant because she is concerned with her credibility. The fact remains that the credibility of the applicant was not in issue with the Commission whose intention was focused on whether the respondent had discriminated against the applicant using a pretext. There were no findings about the applicant’s credibility because none was needed. To put it bluntly, it appears that the email of July 16, 2013, did it. The Commission found that it did not matter that it was the applicant’s husband who sent the email. Had it been a professional who would have written the email, suggesting that the organization was not compliant with its regulatory requirements, the result would have been the same. The termination was because of the message and the use of confidential information, not because of the marital status of the sender. The date on which direct access to confidential information was not even alluded to in the October 21, 2016, Investigation Report. It was immaterial.
[61] The applicant relied heavily on the judgment of my colleague Brown J. in Bergeron v Canada (Attorney General), 2017 FC 57 [Bergeron]. In that case, the Commission considered the wrong submissions which had been placed before it. The error was egregious. No wonder the Court found that the parties had not been heard: they had not.
[62] In the case at bar, there is nothing that can be compared to the situation in Bergeron. In Bergeron, it was the whole submission which was not before the Commission because a mistake had been made and, obviously, a party was not heard at all as the proper submissions were not put before the Commission. In my view, the situation in this case is more a matter of a case where there was no effect on the decision made if the date correction did not find its way before the Commission. In Khosa, the majority was commenting on the grounds of review of subsection 18.1 of the Federal Courts Act, the provision invoked in this case.
[63] With respect to paragraph 18.1(4)(b), the majority wrote:
[43] Judicial intervention is also authorized where a federal board, commission or other tribunal
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determi