Cerescorp Company v. Marshall

Cerescorp Company v. Marshall
Court (s) Database
Federal Court Decisions
Date
2011-04-15
Neutral citation
2011 FC 468
File numbers
T-1388-10
Decision Content
Federal Court
Cour fédérale
Date: 20110415
Docket: T-1388-10
Citation: 2011 FC 468
Ottawa, Ontario, April 15, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CERESCORP COMPANY
Applicant
and
LINDA MARSHALL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the Decision of an Investigator of the Canadian Human Rights Commission (Commission), dated 27 July 2010, recommending that the Chairperson of the Canadian Human Rights Tribunal (Tribunal) institute an inquiry into the complaint of Linda Marshall (the Respondent or Ms. Marshall) against the Cerescorp Company (the Applicant or Cerescorp) pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act).
BACKGROUND
[2] The Applicant has been providing stevedoring, terminal operations and ancillary services at cruise ship terminals in Vancouver since 2006. These services include the loading, unloading and handling of baggage and stores as well as various ancillary matters. Longshore workers constitute the largest group of workers at the terminals. The Respondent has been a longshore worker and a member of the International Longshore and Warehouse Union Local 500 since 1984.
[3] In 2006 when the Applicant obtained the contract to provide its services in Vancouver, it carried out two sets of hiring for full-time supervisors. The second set of hiring was open to Local 500 members. There were three positions available and, of the 65 candidates, the Respondent was the only female. The superintendent, the manager of stevedoring operations and the superintendent–pier foreman were directly involved in the hiring process. They have admitted that they relied heavily upon their management knowledge of the candidates and their understanding of the job requirements to assess each candidate’s suitability.
[4] The Respondent was not offered a position. The respondent reportedly told the Applicant that she was interviewed as a “courtesy” after the successful candidates had been hired; no formal list of questions was utilized in the interview. The three successful candidates were not submitted to a formal interview process but, according to the Applicant, were hired on the strength of their experience.
[5] On 13 September 2006, the Respondent filed a complaint with the Canadian Human Rights Commission, alleging that the Applicant had discriminated against her on the basis of her sex. She claims that she suffered: the loss of the job and the opportunity to compete for the job; discrimination in her efforts to obtain supervisory experience; and differential treatment, namely being scrutinized and held to a higher standard than her male coworkers. She also alleged that she was blamed for making comments that she did not make.
[6] On 23 April 2007, prior to the Commission receiving submissions on the merits of the complaint, the parties engaged in mediation. They subsequently entered into an Interim Settlement Agreement (ISA), designed to create and implement a development plan to assist the Respondent with promotion to a supervisory position in the future.
[7] In the Respondent’s view, the Applicant did not comply with the ISA. Consequently, on 18 January 2008, she amended her complaint to include additional allegations of discriminatory conduct after the 2006 hiring.
[8] In June/July 2008, the Commission heard the parties’ submissions regarding the enforceability of the ISA, and it decided to conduct an investigation. On 8 April 2010, the Commission Investigator (Investigator) released her report (Report), which recommended that the Chairperson of the Tribunal institute an inquiry into the complaint for the following reasons:
… [A] determination of whether most of the alleged acts occurred rests on the credibility of the parties involved; and there is evidence to suggest that the respondent’s practices may present a systemic barrier to the promotion of women to the position of Supervisor of Longshore workers.
[9] The Commission accepted the Chairperson’s recommendation in a letter dated 27 July 2010. This is the Decision under review.
DECISION UNDER REVIEW
[10] The relevant passages of the Decision are as follows:
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 paragraph 44(3)(a) of the Canadian Human Rights Act, to request that the Chairperson of the Canadian Human Rights Tribunal institute an inquiry into the complaint because:
i. a determination of whether most of the alleged acts occurred rests on the credibility of the parties involved; and
ii. there is evidence to suggest that the respondent’s practices may present a systemic barrier to the promotion of women to the position of Supervisor of Longshore workers.
ISSUES
[11] The following issues arise in this application:
a. Whether the Commission acted reasonably in recommending that the Chairperson of the Tribunal institute an inquiry into the Respondent’s complaint; and
b. Whether the Investigator breached the principles of natural justice or procedural fairness.
STATUTORY PROVISIONS
[12] The following provisions of the Act are applicable in these proceedings:
Report
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
Action on receipt of report
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
Notice
(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
[…]
Request for inquiry
49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.
Rapport
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
Suite à donner au rapport
(2) La Commission renvoie le plaignant à l’autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les recours internes ou les procédures d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
Idem
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de désigner, en application de l’article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d’une part, que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci est justifié,
(ii) d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié,
(ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
Avis
(4) Après réception du rapport, la Commission :
a) informe par écrit les parties à la plainte de la décision qu’elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu’elle juge indiquée, de la décision qu’elle a prise en vertu des paragraphes (2) ou (3)….
[...]
Instruction
49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l’instruction est justifiée.
STANDARD OF REVIEW
[13] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[14] The first issue concerns the Decision of the Commission to recommend that the Chairperson of the Tribunal institute an inquiry into the complaint pursuant to paragraph 44(3)(a) of the Act. This Decision is reviewable on the standard of reasonableness. See Utility Transport International Inc. v Kingsley, 2009 FC 270 at paragraphs 26-27.
[15] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[16] The second issue concerns natural justice and fair process. It attracts the correctness standard. See Khosa, above, at paragraph 43.
ARGUMENTS
The Applicant
The Commission’s Decision Was Unreasonable: Objective Evidence Shows that the Respondent Was Unqualified for the Position
[17] The Applicant argues that an investigation under the Act is an initial screening to determine if there is sufficient evidence to warrant convening a Tribunal. Where such evidence is lacking, the Commission should dismiss the complaint. See Canadian Broadcasting Corp. v Paul (1998), [1999] 2 FC 3, [1998] FCJ No 1823 (QL) (TD) (Paul), at paragraph 62.
[18] The onus is on the Respondent to demonstrate a prima facie case of discrimination. The test applicable to discrimination in hiring decisions was set out by Justice Leonard Mandamin of this Court in Khiamal v Canada (Canadian Human Rights Commission), 2009 FC 495 at paragraphs 57-58:
Generally, in this context, it will be sufficient for the complainant to prove: that the complainant was qualified for the particular employment; that the complainant was not hired; and that someone no better qualified but lacking the distinguishing feature (i.e.: race, colour, etc.) subsequently obtained the position (Shakes v. Rex Pak Limited (1982), 3 CHRR D/1001 at D/1002).
If the employer does provide a reasonable explanation for otherwise discriminatory behaviour, the applicant has the burden of demonstrating that the explanation was pre-textual, and that the true motivation was discriminatory.
[19] The Applicant argues that the Respondent has adduced no direct evidence of discrimination other than her own assertions and that, contrary to the Decision’s finding, this is not a contest of credibility which would justify instituting an inquiry into the matter. In Utility Transport, above, at paragraph 37, I cited with approval the following comments of Justice Barbara Reed in Varma v Canada Post Corp. (1995), 56 ACWS (3d) 1060, [1995] FCJ No 1065 (QL) (TD) at paragraph 13, aff’d (1996) 66 ACWS (3d) 1129 (FCA):
[I]t is important to distinguish between evidence of primary fact and evidence respecting opinions or personal beliefs. In this case, the applicant’s personal belief is that many of the events which occurred were caused because the individuals with whom he was interacting were racially prejudiced. The CHRC, or a Court, cannot act on this kind of assertion or belief unless there is primary fact evidence to support it. Direct evidence specific to the event in question linking it to racial discrimination is necessary. This is necessary to establish that the actions were racially motivated rather than merely being the result of other factors, such as bad temper, frustration, or a personality conflict.
[20] In the instant case, the position of supervisor required “a thorough knowledge of stevedoring equipment as well as the safe work practices associated therewith.” The objective evidence demonstrates that the Respondent’s qualifications for the job were deficient compared to those of the successful candidates. It was for this reason, and not by reason of her sex, that she was not among the successful candidates. The Applicant argues that this direct, objective evidence, which was provided to the Investigator, is a “complete answer” to the Respondent’s allegations of discrimination. In light of such evidence, the Commission could not reasonably have decided to institute an inquiry. The objective evidence is as follows.
[21] First, operation of the gangway is part of daily operations at the cruise ship terminals. It involves significant safety issues. Gangway training is a pre-requisite for a supervisory position, and re-training is required each year. At the material time, the Respondent had not taken gangway training; she did not take it until 2007. The successful candidates, however, had completed the training on many occasions and had operated the gangway “countless times.” Although the Report stated that the Respondent provided the names of two witnesses who could attest to her experience with gangway operations, the Commission did not inform the Applicant of this “very significant assertion” and did not interview the witnesses. The Applicant contends that, as the Respondent did not complete her gangway training until 2007, the alleged experience could only have happened after the job was posted.
[22] Second, the loading, unloading and handling of stores is more complex than the loading, unloading and handling of baggage. A review of the Respondent’s work history demonstrates that her experience in stores was neither as extensive nor as recent as that of each of the successful candidates. The Applicant contends that recent experience in baggage and stores is preferable, given that the personnel, layouts and requirements of the vessels being serviced change over time.
[23] Third, of the two terminals serviced by the Applicant, the Respondent worked almost exclusively at Canada Place. She had worked only twice at Ballantyne between January 2001 and July 2006. The work experience of the successful candidates, in terms of location, was much more diverse than that of the Respondent during the same period.
[24] Fourth, at the material time, the Respondent had never worked “floater” shifts, unlike the successful candidates, who had worked many. These floater shifts provided an opportunity to gain supervisory experience prior to becoming a supervisor. Moreover, the Investigator found that when the Respondent expressed interest in such shifts in 2007, the Applicant provided her with an equivalent number of spare floater shifts as that which was offered to each of her male coworkers. In this way, she was not treated adversely.
[25] Fifth, unbeknownst to the Applicant, during the investigation the Respondent submitted information concerning her work history from 1992 to 2001, which included evidence of additional experience in stores. The Applicant submits that the Investigator acted unreasonably and unfairly in considering the Respondent’s work history data for a 14-year period (1992-2006) but the successful candidates’ work histories for only a 4-year period (2002-2006).
[26] Sixth, the Investigator did not give sufficient weight to the ISA, which required preferential treatment for the Respondent.
[27] Seventh, the Respondent did not challenge the reasonableness of the posted job qualifications, nor did she dispute the Applicant’s assertions that her qualifications were deficient in particular areas. The Investigator made no finding with respect to whether the Respondent met the minimum qualifications required of a successful candidate. In this respect, the Report is deficient.
[28] Finally, although the Respondent’s complaint does not allege systemic discrimination pursuant to section 10 of the Act, the Investigator raised systemic discrimination as a possible consideration in the Report, observing that “subjective methods of assessment disadvantage women in hiring and promotion.” The Applicant relies on Salem v Canadian National Railway, 2008 CHRT 13 at paragraph 63, to argue that all hiring decisions involve subjectivity and that this, alone, does not justify an inference of systemic discrimination:
There is a subjective element in every hiring process. The mere fact that the respondent used subjective criteria to assess the candidates and that it may have erred in doing so does not in itself expose its decision to challenge on grounds of discrimination, even though the existence of subjective criteria may require greater scrutiny of the hiring decision (see Folch v. Canadian Airlines International Ltd. (1992), 17 C.H.R.R. D/261, D/303; Morin v. Canada (RCMP), 2005 CHRT 41, at paragraph 213).
[29] The Applicant contends that there was no reasonable basis for the Commission to refer an allegation of systemic discrimination to the Tribunal. The Respondent made no such allegation, and the job competition in dispute was the first and only such competition involving longshore workers. There is no evidence that the alleged discriminatory practice has continued. Any future allegations that the Applicant’s hiring processes are tainted by systemic discrimination must be dealt with in a new complaint.
[30] In short, the Applicant contends that the Commission erred in taking the Respondent’s baseless allegations at face value. The Commission had an obligation to verify them, particularly in light of the direct evidence refuting them, and to provide the Applicant an opportunity to respond.
The Investigation Was Procedurally Unfair and Biased
[31] The Applicant contends that, in investigating this complaint, the Commission did not fulfill its duty of fairness. Justice Danièle Tremblay-Lamer of this Court summarized this duty in Paul, above, at paragraph 63:
In essence, the investigator must collect the information which will provide an adequate and fair basis for a particular case, and which will in turn allow the Commission to balance all the interests at stake and decide on the next step. No relevant fact should be left out. Omissions, particularly when the information is damaging to the complainant's position, only result in casting serious doubts on the neutrality of the investigator. I realize that this is a difficult task, but it is only in achieving this high standard of fairness that the investigator will help the Commission retain its credibility.
[32] The Applicant argues that the Investigator failed to disclose in full the Respondent’s written submissions, her documentary evidence and her oral submissions, contrary to the guidelines set out in Paul, above, at paragraphs 76-79. The Applicant alleges that the Investigator provided only the amended complaint and a few isolated allegations near the conclusion of the investigation. Such one-sided disclosure indicates bias.
[33] The Applicant was deprived of the opportunity to respond to the Respondent’s documentary and oral evidence. The Investigator accepted the Respondent’s “bare assertions,” including evidence regarding her work experience, without verifying them through interviews with available witnesses (specifically, with the successful candidates) who, in some cases, had conflicting evidence regarding matters central to the disposition of the complaint. For example, the Applicant was never informed of the Respondent’s claim that the strategies employed in baggage are “identical” to the strategies employed in stores, nor of the Respondent’s claim that she had supervisory experience other than in floater shifts. The Applicant contends that this demonstrates a lack of thoroughness and biased decision making.
[34] The Applicant states that, where the Commission does not provide reasons for its decision to refer a complaint to the tribunal, as in this case, the Commission’s reasons are deemed to be the reasons set out in the investigator’s report. See Paul, above, at paragraph 56. If the report is fundamentally flawed, then the decision to refer the matter to a tribunal is itself flawed. See Paul, above, at paragraph 58. The Applicant argues that this is the case here. The Investigator’s Report is biased and based on unfair process. The Commission adopted that flawed Report. Therefore, the Commission’s Decision is tainted.
The Respondent
The Commission’s Decision to Institute an Investigation Was Reasonable
[35] The Applicant claims that there is objective evidence of the successful candidates’ superior qualifications and that this is a “complete answer” to the complaint. In the Respondent’s view, this suggests a narrower dispute than that which was before the Investigator. What the Applicant fails to acknowledge is that the parties disagree both on the requisite qualifications for the job and on whether the Respondent possessed those qualifications.
[36] There was evidence before the Investigator to suggest a possibility of discrimination. For example, the workplace has been identified in the Respondent’s documentary evidence as one that is hostile to women. The Respondent was the sole female candidate for the job. The Applicant’s assessment of the candidates was subjective. The parties disagree as to whether the Respondent was qualified for the job. The Respondent did not get the job. As nothing more than a possibility of discrimination is required post-investigation, it was reasonable for the Investigator to recommend an inquiry.
[37] In deciding whether to institute an inquiry, the Commission acts as a screening body. See Bell Canada v Communications, Energy and Paperworkers Union of Canada (1998), [1999] 1 FC 113, [1998] FCJ No 1609 (QL) (FCA) at paragraph 35. The Act grants the Commission a very broad discretion in the performance of this function. A court should not intervene where the Commission is satisfied that, having regard to all of the circumstances of the complaint, “there is a reasonable basis in the evidence for proceeding to the next stage.” See Bell Canada, above, at paragraph 35. The Court need not agree with the Commission’s opinion, nor should it speculate as to the outcome of the complaint. See Bell Canada, above, at paragraph 36. Intervention is warranted only where it is clear that the Tribunal has no jurisdiction to deal with the matter before it. See Brine v Canada (1999), 175 FTR 1, [1999] FCJ No 1439 (QL) at paragraph 39.
[38] The Applicant relies on Utility Transport, above, to argue that the Decision to institute an inquiry was unjustified because the Respondent could not adduce direct evidence of discrimination, other than her own evidence. The Respondent contends that Utility Transport stands for no such proposition. The complainant in that case had no evidence of discrimination. The Applicant’s suggestion that the Respondent’s uncorroborated evidence leads automatically to the dismissal of the complaint is unsupported by authority and is belied by the great number of complaints that are adjudicated solely on issues of credibility. Moreover, the Utility Transport passage citing Justice Reed in Varma does not assist the Applicant, as it is quoted to establish the kind of evidence that is required to establish a claim, not to move to adjudication, as in the instant case.
[39] The Respondent argues that, contrary to the Applicant’s contention, the following evidence raises a possibility that the Tribunal will infer the taint of discrimination in the hiring process in question, and this is all that is required at the investigative stage.
[40] First, the Respondent works in a male-dominated profession. She was the sole female candidate for the position of supervisor. She provided documentary evidence that “at worst, [the profession] reflects a poisoned work environment that is almost intolerant to the presence of women” and that sexual harassment was, and for years had been, reflective of the culture of the work environment.
[41] Second, the Investigator properly expressed concern regarding the unstructured interviews and the subjective assessment of candidates employed during the hiring process. See Salem, above, at paragraph 63. The Applicant admits that the hiring was based “heavily” on “management knowledge.” This, the Respondent submits, means that the Applicant relied chiefly on what was going on in the minds of the three men who did the hiring; it was not until after the hiring was completed and the sexual discrimination complaint was filed that the Applicant canvassed the differences between the Respondent’s qualifications and those of the successful candidates. The Respondent submits that the Investigator was correct in concluding that adjudication of this dispute turned on credibility and that an inquiry was warranted.
[42] Third, the Respondent alleges that the Applicant has exaggerated the complexity and importance of tasks at which she is less experienced (for example, loading, unloading and handling stores) and diminished the complexity and importance of tasks at which she has considerable experience (for example, loading, unloading and handling baggage). She challenges the Applicant’s claims that her skills on the pallet jack are “average” and that she has no supervisory experience. She views these arguments as attempts to minimize her qualifications. The Applicant has “moved the target” to thwart her efforts to become a supervisor. Again, the dispute involves issues of credibility, which are properly adjudicated by a Tribunal, not by an Investigator, who lacks an adjudicative function.
[43] Fourth, the Respondent alleges that, despite the existence of the ISA, one of her male coworkers informed her that he was being groomed by management for a supervisory position. The Respondent infers from this that the Applicant has no intention of hiring her, despite her qualifications. The ISA, which was created to redress inequities in the workplace, has failed.
[44] Fifth, the Respondent submits that the Investigator had a duty to raise the possibility of systemic discrimination. In Bell Canada, above, at paragraph 45, the Federal Court of Appeal stated:
Where, therefore, an investigator in the course of investigating a complaint is provided with some evidence, not of her making, that there is a possible ground for discrimination which the complaint, as formulated, might not have encompassed, it becomes her duty to examine that evidence, to alert the parties as to the impact of that evidence on the investigation and even to suggest that the complaint be amended.
The Investigator identified these concerns, brought them to the attention of the parties in her Report and provided them with an opportunity to respond. There is no need to initiate a new complaint, and the Applicant’s arguments with respect to mootness are without merit.
[45] The Respondent submits that the Applicant objects to the Decision because the Investigator did not simply accept its post-complaint analysis as a “complete answer” to the complaint and reject the Respondent’s challenges to it. The evidence demonstrates that credibility is at issue in this dispute and, therefore, the matter is properly adjudicated by a Tribunal.
Procedural Fairness Is Limited at the Investigative Stage
[46] At the investigative stage, neither party is entitled to the full range of natural justice. See Tsui v Canada Post Corp., 2010 FC 860 at paragraph 21. In the instant case, the Investigator complied with her duty of fairness. She provided to the parties a copy of her Report. Contrary to its assertions, the Applicant had a full opportunity to respond to the Report and it was informed, for example, that the Respondent claimed that the strategies employed in baggage are “identical” to the strategies employed in stores and that she was experienced in gangway operations. The Investigator considered the parties’ responses in reaching her Decision. See Bell Canada, above, at paragraph 43. The Court’s intervention is justified only where obviously crucial evidence remains uninvestigated or where the “investigative flaws … are so fundamental that they cannot be remedied by the parties’ further responding submissions.” See Hughes v Canada (Attorney General), 2010 FC 837 at paragraph 33-34. That is not the case here.
[47] The Respondent submits that the Investigator’s disclosure was not one-sided. The Applicant received a copy of the Respondent’s post-Report communications to the Commission, which did not include further submissions but rather a correction of errors. Moreover, the Investigator’s failure to inform the Applicant that the Respondent had provided a 14-year work history is immaterial. The issue central in this dispute is whether the Respondent had gained the “core competencies” for a supervisory position and whether the Applicant minimized her skills to thwart her attempts to secure a supervisory position.
ANALYSIS
[48] An investigation under the Act is an initial screening to determine if there is sufficient evidence to warrant convening a tribunal. Where such evidence is lacking, the Commission should dismiss the complaint. See Paul, above, at paragraph 62, overturned in part on other grounds (2001 FCA 93).
[49] Where the Commission does not provide reasons for its Decision to refer a complaint to the Tribunal, the Commission’s reasons are deemed to be the reasons set out in the investigative report. See Paul, above at paragraph 56; and Sketchley v Canada (Attorney General), 2005 FCA 404 at paragraph 37.
[50] If the investigation report is deemed adopted as the reasons of the Commission, and that report is fundamentally flawed, then the decision to refer to the tribunal is itself flawed See Paul, above, at paragraph 58.
[51] Subparagraph 44(3)(a)(i) of the act says that it is sufficient for the commission to be “satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted.” This is a low threshold. See Bell Canada, above, at paragraph 35. All that is required is that the Commission form an opinion, rightly or wrongly, that there was “a reasonable basis in the evidence for proceeding to the next stage.” See Syndicat des employés de production du Québec et de l’Acadie v Canada (Human Rights Commission) (1989), [1989] 2 SCR 879, [1989] SCJ No 103 (QL) at paragraph 27.
[52] In Slattery v Canada (Human Rights Commission) (1994), 81 FTR 1, [1994] FCJ No 1017 (QL), aff’d (1996), 205 NR 383, [1996] FCJ No 385 (QL) (FCA), the Court held that procedural fairness requires that the Commission inform the parties of the substance of the evidence obtained by the investigator, which was put before it, and give the parties the opportunity to respond to the evidence and make all relevant representations in relation thereto, even if merely in writing. The Court further held that, notwithstanding the apparent sufficiency of the above process, procedural fairness also demands that the Commission have an adequate and fair basis on which to evaluate whether sufficient evidence exists to warrant the appointment of a tribunal. To do so, the investigation must satisfy two conditions: neutrality and thoroughness. See Slattery, above, at paragraphs 47-49.
[53] With regard to neutrality, if the Commission simply adopts an investigator’s conclusions without giving reasons, and those conclusions were made in a manner that may be characterized as biased, a reviewable error occurs. See Slattery, above, at paragraph 50.
[54] In Paul, above, at paragraphs 59-60 and 63, Justice Tremblay-Lamer commented as follows on the procedural fairness obligations of the Commission and its investigator:
The Commission is bound by procedural fairness in the investigation of complaints, which means that the matter must be dealt with objectively and with an open mind; that there can be no predetermination of the issue; and that the parties are informed of the evidence put before the Commission so they can make meaningful representations. Put another way, as expressed by my colleague Nadon J. in Slattery, the Commission "must satisfy at least two conditions: neutrality and thoroughness".
The role of the investigator is not prosecutorial. It is not meant to be a fishing expedition.
…
In essence, the investigator must collect the information which will provide an adequate and fair basis for a particular case, and which will in turn allow the Commission to balance all the interests at stake and decide on the next step. No relevant fact should be left out. Omissions, particularly when the information is damaging to the complainant's position, only result in casting serious doubts on the neutrality of the investigator. I realize that this is a difficult task, but it is only in achieving this high standard of fairness that the investigator will help the Commission retain its credibility.
[55] The Commission has an obligation to disclose newly introduced evidence to the other party when such evidence is crucial to the case. See Paul, above, at paragraphs 76-79.
[56] The parties agree, and the Court concurs, that the standard of review in this case is reasonableness as regards the Decision to refer the complaint to a tribunal and correctness as regards the procedural fairness issues raised.
The Decision
[57] The Commission’s Decision to refer the complaint to a tribunal as contained in its letter of 27 June 2010 simply adopts the recommendations contained in the Investigator’s Report and provides no further reasons.
[58] Where the Commission does not provide reasons for its decision to refer a complaint to a tribunal, the Commission’s reasons are deemed to be the reasons set out in the investigator’s report. See Paul, above, at paragraph 56 and Sketchley, above, at paragraph 37.
[59] The Report in the present case identified the following as the Complaint:
The complainant alleges that the respondent denied her promotion to a Foreperson position because she is a woman. She alleges further that, because she is a woman, she was treated differently in that: male employees are preferred over her for Floater positions; she has been “thwarted” in her efforts to get developmental supervisory experience (Floater position) and, she has been singled out for more scrutiny than her male co-workers.
Denial of Promotion
[60] As regards the denial of promotion, Ms. Marshall alleged that she possessed all of the posted qualifications for the foreperson position and had significant experience supervising as well as training new forepersons unfamiliar with the work that she performs.
[61] Notwithstanding Ms. Marshall’s assertion that she possessed all of the posted qualifications:
a. She offered no rebuttal to Cerescorp’s position that, as regards attitude and aptitude for overseeing the operation and movement of product and people in a production oriented environment, she was significantly deficient and lacked interpersonal skills and her behaviour on the job was at times unbecoming. However, Ms. Marshall does appear to dispute this allegation in other of her responses;
b. She offered no rebuttal to Cerescorp’s position that she was significantly deficient in her knowledge and ability to ensure employees’ conformance with safety procedures and regulations;
c. She offered no rebuttal to Cerescorp’s position that she was significantly deficient in her knowledge of stevedoring equipment as well as the safe work practices associated therewith although, once again, she refutes Cerescorp’s position elsewhere;
d. As regards Ms. Marshall’s knowledge of stevedoring equipment and safe work practices associated therewith, Ms. Marshall gave evidence that she had operated the pallet jack throughout her tenure on the docks (Cerescorp said she had limited experience with pallet jacks) and she gave the names of two witnesses who could attest to her experience with gangway operations.
[62] It is difficult to know what Ms. Marshall meant by her experience with gangway operations. Cerescorp pointed out that Ms. Marshall had never taken gangway training and so could not operate a gangway. This means that, at the material time of hiring and interview, Ms. Marshall could not operate or supervise the operation of a gangway which was a key skill for the job. Ms. Marshall has subsequently confirmed that, at the material time, she had not taken the requisite gangway training. It is not possible to work or operate a gangway, without the requisite training and the qualifications.
[63] In its submissions to the Commission on the Report, Cerescorp went to considerable lengths to point out the mistake that had been made in this regard:
The Complainant has never taken any issue with the requirements contained on the job posting. In particular, the successful candidates had to have “a thorough understanding of dock, stevedoring and coastwise operations as they pertain to the products which the company handles”. This is obviously the fundamental minimum qualification for a supervisory position at the Respondent and comparison among applicants. One of the skills required to be a foreperson is operation of the gangway (mechanically operated passageway for passengers and supplies between the vessel and the terminal) which is a “rated” skill by the BCMEA requiring successful completion of training to be repeated each year. There are very significant safety issues related to the operation of the gangway (hence the requirement for re-training each year) and qualification and experience operating the gangway was a pre-requisite to a supervisory position. However, despite the very long time that the Complainant has worked at the cruise ship terminals, she had never chosen to take the gangway training prior to the job selection in 2006. The independent records of the BCMEA indicate that the successful applicants had passed the gangway training as follows: Mr. Buttar: 1995, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006; Mr. Chauhan: 1999, 2000, 2001, 2002, 2003, 2005; an