Nur v. Canadian National Railway Company

Nur v. Canadian National Railway Company
Collection
Canadian Human Rights Tribunal
Date
2019-02-13
Neutral citation
2019 CHRT 5
File number(s)
T2154/2816
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Ruling
Grounds
Colour
Disability
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
5
Date:
February 13, 2019
File No.:
T2154/2816
[ENGLISH TRANSLATION]
Between:
Mohamed Nur
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian National Railway Company
Respondent
Ruling
Member:
Gabriel Gaudreault
Table of Contents
I. Context 1
II. Issues 3
III. The Commission’s motion and orders sought 4
A. Applicable law regarding disclosure between parties before the Tribunal 4
B. CN policies and procedures existing in 2015 and at present 8
(i) Preliminary considerations 8
(ii) Policies and procedures on accommodation of persons with disabilities 11
(iii) Human rights and discrimination policies and procedures 14
(iv) Harassment policies and procedures 17
C. Training material on the above-mentioned policies and procedures from 2013 to date, in Edmonton, Alberta 21
D. Training records of different individuals 25
E. Emails, memos, notes, minutes of meetings or any other forms of written communications 29
F. Creation and disclosure of a detailed list of documents for which solicitor-client privilege is claimed (Schedule B) 33
G. Written confirmation of the searches conducted, disclosure or non-existence of documents and privilege claimed 38
IV. Mr. Nur’s motion regarding search and disclosure of the contact information of a potential witness 41
V. Orders 55
I. Context
[1] Two motions have been brought before the Canadian Human Rights Tribunal (the Tribunal), one filed by the Canadian Human Rights Commission (the Commission) and the other originating from the Complainant, Mr. Mohamed Nur.
[2] It is not necessary, at this stage, to reiterate Mr. Nur’s complaint in detail. However, we will see later that the Commission’s motion raises an important issue regarding the scope of the complaint.
[3] The Commission’s motion has several purposes. The Commission is seeking an order from the Tribunal requiring the Canadian National Railway Company (the Respondent or CN) to establish and disclose a detailed list of the documents for which it claims solicitor-client privilege (Schedule B). It also asks the Tribunal to issue orders for the disclosure of several documents by the Respondent. In the Commission’s reply, some aspects of its requests have been refined and circumscribed, while others have been abandoned. The Commission has identified these changes clearly. The Tribunal will not address the representations and orders that have been abandoned by the Commission.
[4] This being said, it is sufficient, at this stage, to summarize the requests as follows. The Commission requests the disclosure of documents, including certain policies and procedures of the company regarding harassment, accommodation, anti-discrimination and human rights, training material, different communications of individuals who will be called as witnesses at the hearing, and certain documents concerning training, including training that certain individuals received from the Respondent. Finally, the Commission requests that the Tribunal order CN to confirm in writing that a diligent search has been conducted for the documents, that all documents that could be produced have been produced, and that where documents were not produced, this was due to their non-existence, or because CN claims solicitor-client privilege thereon, in which case the documents must be detailed in its list of privileged documents (Schedule B).
[5] Regarding the Complainant’s motion, he wishes to obtain from the Tribunal an order requiring CN to search for and disclose the contact information of an individual whom he believes worked for or still works for the Respondent, and whom he intends to call as a witness at the hearing.
[6] Let us recall that the Tribunal already rendered a decision dealing with disclosure on June 8, 2018 (see Mohammed Nur v. Canadian National Railway Company, 2018 CHRT 16). The present motions for disclosure were brought a few weeks before the scheduled hearings of February 19 to March 1, 2018. The hearing dates were set during the conference call of July 24, 2018.
[7] The Tribunal asked the parties to participate in a conference call on January 14, 2018. Two of the objectives of this conference call were, on the one hand, to ensure that the Tribunal was in possession of all the parties’ material regarding these two motions and, on the other hand, to obtain the parties’ confirmation that no other issue in dispute remained unresolved.
[8] During this call, the Respondent’s representatives informed the Tribunal that there seemed to be a misunderstanding on the part of the Commission regarding certain documents that were disclosed and on which the name of a law firm appears. The Tribunal invited the parties to discuss the situation with each other in order to elucidate these misunderstandings and, if possible, to resolve the situation. The parties consented to this procedure and proposed to send the Tribunal correspondence that would clarify the situation, and the law firm’s involvement. The issue was important, because the Commission was asking for more details regarding documents for which CN is claiming solicitor-client privilege. This being said, according to the new facts that were promptly raised by the Respondent, the Tribunal could not ignore them. The situation had to be clarified so that an informed decision could be rendered. On January 16, 2019, the Tribunal received a letter from the Commission updating the situation.
[9] The Tribunal received the material from all the parties concerning these two motions, including their submissions, the various documents and attached case law. Mr. Nur did not make specific submissions in relation to the Commission’s motion. He simply mentioned that he supported the motion. Finally, the parties confirmed that no other unresolved issue had to be addressed by the Tribunal at that stage. For the purposes of efficiency and celerity, the Tribunal will address these two motions in a single decision.
[10] For the following reasons, the Tribunal grants the Commission’s motion in part and grants Mr. Nur’s motion.
II. Issues
[11] Regarding the Commission’s motion, the issues for the Tribunal to consider are:
(1) Should the Tribunal order the Respondent to disclose the following documents, based on their potential relevance to a fact, issue or form of relief? The documents sought are:
(i) Versions of the CN policies and procedures that existed in 2015 and those that currently exist in the matter of:
(a) human rights and anti-discrimination;
(b) accommodation of persons with disabilities;
(c) harassment;
(ii) Training material concerning the policies on harassment, human rights, and anti-discrimination, and on accommodation of persons with disabilities, provided to CN human resources personnel, management personnel and employees working in Edmonton, Alberta, from 2013 to date;
(iii) Training records of David Radford, Donna Poburan, Doug Ryhorchuk, Jayson Verbong and Mary Jane Morrison, in relation to their participation in training on harassment, human rights and anti-discrimination and accommodation of persons with disabilities, as well as on the Policy to Prevent Workplace Alcohol and Drug Problems;
(iv) Emails, memos, notes, minutes of meetings or any other forms of written communications of which the following persons are the authors and/or addressees and concerning Mr. Nur, from June 30, 2015 to date: David Radford, Donna Poburan, Doug Ryhorchuk, Jayson Verbong, Mary Jane Morrison, Ken Wilson, Matthew Smith, Natalie Mark, Silvia Michaud, Robbie Kloster, Braiden Pelican, Christine Mitchell.
(2) Should the Tribunal order CN to confirm in writing to the Tribunal and to the other parties that a diligent search was conducted for the documents, that all the documents that could be produced were produced, and that where documents were not produced this was due to their non-existence or because solicitor-client privilege was claimed thereon, in which case these documents must be detailed in CN’s list of privileged documents (Schedule B)?
(3) Should the Tribunal order CN to compile and disclose a more detailed list of the documents for which it claims solicitor-client privilege (Schedule B) and, more specifically, should it order CN to provide more details on its list of documents identified as CNPVR2 – Communications and copies of communications between solicitor and client as contained in counsel’s correspondence file. These details include the date, authors, recipients, title and a brief explanation of the reasons why each document attracts solicitor-client privilege.
[12] Regarding Mr. Nur’s motion, the issues in dispute are as follows:
(1) Does the Tribunal have the jurisdiction to order CN to search for and disclose the contact information of the individual described by the Complainant?
(2) If so, should the Tribunal order CN to conduct such a search and to disclose the contact information in question?
III. The Commission’s motion and orders sought
A. Applicable law regarding disclosure between parties before the Tribunal
[13] Both the Commission and the Respondent cited different relevant decisions of the Tribunal, which squarely address the issue of disclosure, and which clearly summarize the guiding principles (see in particular Guay v. Canada (Royal Canadian Mounted Police), 2004 CHRT 34; Brickner v. Royal Canadian Mounted Police, 2017 CHRT 28). The Tribunal recently reviewed these principles in its decision Malenfant v. Vidéotron S.E.N.C., 2017 CHRT 11, at paras. 25 to 29 and 36, which passages refer to these decisions in particular:
[25] Each party has a right to a full hearing. In this regard, the CHRA provides as follows at ss. 50(1):
50(1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
[Emphasis added.]
[26] This right includes the right to the disclosure of relevant evidence in the possession or care of the opposing party (Guay v. Royal Canadian Mounted Police, 2004 CHRT 34, para. 40). The Rules of Procedure of the Canadian Human Right Tribunal (the Rules) provide as follows in Rule 6(1), and more specifically at paras. (d) and (e):
6(1) Within the time fixed by the Panel, each party shall serve and file a Statement of Particulars setting out,
[…]
(d) a list of all documents in the party’s possession, for which no privilege is claimed, that relate to a fact, issue, or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule;
(e) a list of all documents in the party’s possession, for which privilege is claimed, that relate to a fact, issue or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule;
[…]
[Emphasis added]
[27] Regarding disclosure, the Tribunal has already ruled several times that the guiding principle is probable or possible relevance (Bushey v. Sharma, 2003 CHRT 5, and Hughes v. Transport Canada, 2012 CHRT 26. See in the alternative Guay, supra; Day v. Department of National Defence and Hortie, 2002 CanLII 61833; Warman v. Bahr, 2006 CHRT 18; Seeley v. Canadian National Railway Company, 2013 CHRT 18). The Tribunal notes that the parties have an obligation to disclose potentially relevant documents in their possession (Gaucher v. Canadian Armed Forces, 2005 CHRT 42, para. 17).
[28] To show that the documents or information are relevant, the moving party must demonstrate that there is a rational connection between those documents or information and the issues in the case (Warman, supra, para. 6. See for example Guay, supra, para. 42; Hughes, supra, para. 28; Seeley, supra, para. 6). Relevance is determined on a case-by-case basis, having regard to the issues raised in each case (Warman, supra, para. 9. See also Seeley, supra, para. 6). The Tribunal notes that the threshold for arguable relevance is low and the tendency is now towards more, rather than less, disclosure (Warman, supra, para. 6; see also Rai v. Royal Canadian Mounted Police, 2013 CHRT 36, para. 18). Of course, the disclosure must not be speculative or amount to a fishing expedition (Guay, supra, para. 43).
[29] The Tribunal notes that the production of documents stage is different from the stage of their admissibility in evidence at the hearing. Accordingly, relevance is a distinct concept. As Member Michel Doucet stated in Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services, 2007 CHRT 28 (hereafter TEAM), at para. 4:
[4] …The production of documents is subject to the test of arguable relevance, not a particularly high bar to meet. There must be some relevance between the information or document sought and the issue in dispute. There can be no doubt that it is in the public interest to ensure that all relevant evidence is available in a proceeding such as this one. A party is entitled to get information or documents that are or could be arguably relevant to the proceedings. This does not mean that these documents or this information will be admitted in evidence or that significant weight will be afforded to them.
[…]
[36] Finally, I would remind the parties that the duty to disclose the documents concerns documents in their possession. Accordingly, the duty does not extend to creating documents for disclosure (Gaucher, supra, para. 17). . .
[14] As the Supreme Court reiterated in its decision Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560 (Prassad), it is well recognized that the administrative tribunals are masters in their own house. In so doing, the administrative tribunals are not necessarily guided by the same principles as the law courts concerning the administration of evidence, which depends instead on the discretionary authority of the Panel. They are responsible for determining whether evidence should be admitted or excluded. Nonetheless, these powers are not unlimited and the Panel must comply with the enabling legislation and the rules of the administrative tribunal (see Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24 (Vancouver Airport Authority), para. 30). They will also be guided by the principles arising from the common law, the principles of natural justice and procedural fairness. The Tribunal very recently stated, in its decision Brickner v. Royal Canadian Mounted Police, 2017 CHRT 28 (CanLII) [Brickner] that:
[8] This Tribunal has already recognized in its past decisions that it may deny ordering the disclosure of evidence where the probative value of such evidence would not outweigh its prejudicial effect on the proceedings. Notably, the Tribunal should be cautious about ordering searches where a party or a stranger to the litigation would be subjected to an onerous and far-reaching search for documents, especially where ordering disclosure would risk adding substantial delay to the efficiency of the inquiry or where the documents are merely related to a side issue rather than the main issues in dispute (see Yaffa v. Air Canada, 2014 CHRT 22 at para. 4; Seeley at para. 7; see also R. v. Seaboyer [1991] 2 S.C.R. 577 at 609-611).
[9] It should also be noted that the disclosure of arguably relevant information does not mean that this information will be admitted in evidence at the hearing of the matter or that significant weight will be afforded it in the decision making process (see Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services, 2007 CHRT 28 at para. 4).
[15] As explained in Brickner, other considerations could be taken into consideration to limit disclosure, particularly the long delays occasioned by the request for disclosure, the costs and the scope of such a search, or when the evidence requested concerns a secondary issue in dispute.
[16] It is important to add that in disclosure matters, relevance is assessed in light of the complaint and the statement of particulars, as pointed out by my colleague Sophie Marchildon in her decision Lindor v. Public Works and Government Services Canada, 2012 CHRT 14 [Lindor], at para. 56. Indeed, I agree that the summary of complaint form is not a pleading and is not the one and only element to consider for the purposes of the analysis of relevance.
[17] I also subscribe to my colleague’s words in her decision Syndicat des communications de Radio-Canada v. Canadian Broadcasting Corporation [CBC], 2017 CHRT 5, at para. 36, where she wrote:
[35] For the purposes of disclosure, the complaint, the theory of the case included in the Statement of Particulars and the entire Statement of Particulars in itself, all serve as guides for identifying the potential relevance of the documents. This potential relevance will be analyzed from both the point of view of the complaining party and the respondent or the party representing the public interest, in this case, the Commission. In other words, the documents to be disclosed are not limited to those which support the position of a single party, but the positions of all the parties.
[18] Bearing this guidance in mind, the Tribunal will analyze the Commission’s requests for disclosure.
B. CN policies and procedures existing in 2015 and at present
(i) Preliminary considerations
[19] The Tribunal considers it appropriate to address, in the first place, certain arguments that are present in CN’s representations and that underpin its entire response.
[20] In its representations, the Respondent raises the argument that the Commission’s motion is an abuse of process (see para. 4 of its representations) in that it requests the disclosure of documents that are not relevant to the dispute, that such disclosure will cause significant delays in the proceedings, and that the hearing dates established by the Tribunal will thereby be jeopardized. The Respondent adds that the Commission’s representations had previously indicated its intention not to pursue its request for disclosure dated July 23, 2018 (see CMCC of September 2017).
[21] These arguments, as mentioned previously, are found throughout the Respondent’s representations. It thus becomes necessary and practical to address these arguments first in order to concentrate subsequently on the parties’ other arguments relating to the Commission’s requests for disclosure.
[22] The abuse of process’ argument made by the Respondent is a relatively broad argument that encompasses different factors, particularly the lateness of the motion, the irrelevance of the documents sought, the hearing dates that are jeopardized, and the Commission’s change in position regarding whether the disclosure had been sufficient. This being said, the Respondent does not ask the Tribunal to rule directly on the question of whether the Commission committed an abuse of process in filing its motion. It does not seek any finding in this regard, it has not detailed the guiding principles in matters related to abuse of process, and it has not submitted case law on the issue. Moreover, CN does not request relief in the nature of what was ordered, for example, in the decision Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSSRB 83 (including the order for compensation of legal costs incurred subsequent to the obstruction of the arbitration proceedings, which was upheld by the Federal Court of Appeal; see Tipple v. Canada (Attorney General), 2012 FCA 158, at paras. 20 to 31).
[23] The Tribunal understands the Respondent’s general arguments (lateness, irrelevance, delays occasioned, possible adjournment of the hearing, change of position regarding sufficiency of the disclosure). The Tribunal finds that the Commission’s request does not appear to have been made in bad faith. Nor is it frivolous, because certain elements of the request are found herein to be valid. The request is not vexatious or oppressive. As such, the Tribunal does not consider that the Commission’s motion is an abuse of process.
[24] The Commission had previously stated, during the conference call of September 7, 2018, that it would not pursue a request for disclosure filed on July 23, 2018. This gave the Respondent reason to believe that the Commission was satisfied, on that date, with the disclosure it had received by that date. The fact that the Commission, following an in-depth analysis of its case, made a request on October 24, 2018, for additional disclosure on the part of CN, does not constitute an abuse of process either. The Commission never waived its right to make other requests. The Commission found it necessary, following analysis of its case, to request additional disclosure, as it was of the view that the disclosure thus far was insufficient. This being said, disclosure is not unlimited; limits exist (in particular, see Brickner, supra).
[25] Apart from the key principles regarding disclosure, including arguable relevance (see Rules 6(1)(d) and (e)), it is important that motions be filed with the Tribunal on a timely basis. The CHRA and the Rules of the Tribunal provide that the proceedings must be conducted expeditiously and informally (in particular, see para. 48.9(1) CHRA, and Rules (1)(1)(b)) and Rule 3(1)(a), which provide that a motion must be filed as soon as is practicable.
[26] Regarding the issue of timeliness, and to reiterate CN’s representations in relation to the lateness of the request, it must be clarified that the Commission’s request was sent to the Respondent on October 24, 2018, four months before the February 2019 hearing dates. The Respondent answered this request on November 23, 2018. It took the Respondent one entire month to finally decline the Commission’s request. A few days later, on November 26, 2018, the Tribunal was informed of this request during a conference call.
[27] The Commission then informed the Tribunal and the parties of its intentions to file a motion for disclosure. A tight schedule was put in place to address these requests. All the parties cooperated in order to address this motion speedily, considering the February 2019 hearing dates. The Commission’s motion was filed, according to the schedule, on December 7, 2018. The complete motion materials had been received by January 4, 2018, and a conference call was held on January 14, 2018, to ensure that all the material had been filed, and that no other issue remained unresolved.
[28] This being said, the situation is what it is; a motion has been brought before the Tribunal and it must rule on this motion. Does the lateness of the motion mean that the Tribunal should dismiss the Commission’s motion? I do not hold this opinion. Although, in general, time is running short, the order was issued on January 30 and it appears that the parties had sufficient time to disclose documents without this necessarily resulting in an adjournment of the scheduled dates. The parties have shown that they were able to act expeditiously, and the Tribunal remains confident that the February 2019 hearing dates can be maintained. Thus, lateness and the possibility of adjourning the hearing dates are not determinative factors in this decision.
(ii) Policies and procedures on accommodation of persons with disabilities
[29] The Commission requests the Tribunal to order CN to disclose its policies and procedures on accommodation of persons with disabilities that existed at the time of the 2015 events, and those that exist today. It notes that the complaint alleges that Mr. Nur was dismissed due to his disability, and more specifically, due to his alcohol dependence. The Commission considers that CN’s alleged failure to take accommodation measures is an important issue in its theory of the case.
[30] It adds that one of the public interest remedies it is seeking before the Tribunal consists of training regarding the duty to accommodate. Although CN has provided its Policy to Prevent Workplace Alcohol and Drug Problems, the Commission considers that if a policy on accommodation of persons with disabilities exists, it is also relevant to the case. Access to such accommodation policies and procedures would make it possible to assess whether the deficiencies that might have existed at the time of the events still exist today. The Tribunal could order relief in relation to these policies and procedures. The Commission submits that the Tribunal enjoys flexibility and discretion to fashion relief that is effective, in application of para. 53(2)(a) CHRA.
[31] Consequently, it considers that a link exists between the documents sought, i.e. CN’s accommodation policies and procedures, and the facts and remedies in issue.
[32] The Respondent alleges that the Commission’s request is vague, too broad and irrelevant to the dispute. It considers that the Commission’s Statement of Particulars refers to accommodation only in relation to the application of the Policy to Prevent Workplace Alcohol and Drugs Problems. The issue is whether it failed in its duty to accommodate by dismissing Mr. Nur following the application of this policy. CN argues that the other parties do not refer to other policies in their Statement of Particulars.
[33] CN points out that the remedies sought by the Commission in its Statement of Particulars (para. 60) concerns only this Policy to Prevent Workplace Alcohol and Drugs Problems and no other corporate policy. In subparagraph ii, the Commission requests that this policy be revised in consultation with it. In subparagraph iii, the Commission requests that CN’s human resources personnel receive training on human rights legislation and on the duty to accommodate, with a focus on alcohol dependence and the application of the “Policy”. CN refers to para. 20 of the Commission’s Statement of Particulars, which defines “Policy” as the Policy to Prevent Workplace Alcohol and Drugs Problems.
[34] CN mentions that it has already transmitted documents pertaining to the Policy to Prevent Workplace Alcohol and Drugs Problems and the related training. It specifies that this policy already provides for an accommodation process for employees suffering from drug or alcohol dependence.
[35] It adds that it is difficult to discern what the Commission means by all accommodation policies and procedures, which may include a multitude of documents. This could result in the disclosure of documents that should not be disclosed because they are immaterial to the issue. The Commission specifies, in its reply, that the request concerns all policies and procedures that CN uses to guide its employees and managers in the administration of accommodation of persons with disabilities. According to the Commission, the Policy to Prevent Workplace Alcohol and Drugs Problems provides guidance to the employees as to the employer’s expectations regarding alcohol and drugs in the workplace. This policy is not a guide for determining how accommodation of persons with disabilities will be managed. Therefore, the two policies are necessary and relevant to the issue.
[36] Finally, the Respondent alleges that the Commission’s request is late and that it has not provided the reasons justifying this lateness. It considers that this request should have been made much sooner, taking it for granted that the documents could be potentially relevant. Consequently, the Respondent beliefs that it undermines the Commission’s representations regarding arguable relevance.
[37] Regarding this last argument, the Tribunal finds that it is not particularly convincing. The argument regarding the lateness of the request has already been addressed in Section III, B, (i) – Preliminary remarks. The Tribunal adds that it is indeed preferable that the requests for disclosure be filed as soon as is practicable. This being said, it may happen that requests are filed later in the process. Does this automatically undermine the argument of the arguable relevance of documents? The Tribunal does not hold this opinion and it would be imprudent to make a hasty correlation between lateness and relevance.
[38] This being said, the Tribunal finds that, if policies and procedures on accommodation of persons with disabilities exist, such policies and procedures are indeed arguably relevant to the disputes. If the evidence reveals the existence of discriminatory practices, it must have a fairly clear and complete picture of the situation so that it can, in particular, fashion relief that is viable, useful and effective.
[39] The Tribunal finds that the Commission’s remedy, in para. 60(iii) of its Statement of Particulars, is broad enough to encompass other accommodation policies and procedures. In the Commission’s words it requests the Tribunal to order that the CN’s human resources personnel receive training on human rights legislation and on the duty to accommodate, with a focus on alcohol dependence as a disability, and on the application of the “Policy”.
[40] The Commission not only requests that the personnel receive training on the Policy to Prevent Workplace Alcohol and Drugs Problems, but also on the duty to accommodate in general. This duty to accommodate concerns, in particular, persons with alcohol dependence as a disability. If CN has indeed created policies and procedures on accommodation of persons with disabilities and trains its personnel on this subject, this becomes relevant to the issue. The Tribunal repeats that the arguable relevance threshold is a relatively low threshold.
[41] In its representations, CN reproduced the “Prevention and Assistance” section of the Policy to Prevent Workplace Alcohol and Drugs Problems. It argues that this section provides the accommodation procedure when an employee suffers from alcohol or drug dependence. The Tribunal agrees with the Respondent that this section provides various useful and explanatory information, but the Commission is also right when it states that this does not provide any more details on the manner in which CN and its personnel manage situations necessitating accommodation, particularly of persons with disabilities, including alcohol dependence.
[42] For these reasons, the Tribunal orders the Respondent to disclose its policies and procedures on accommodation of persons with disabilities that it has in its possession, both the version in effect in 2015 and the current version.
(iii) Human rights and discrimination policies and procedures
[43] The Commission, in its Statement of Particulars, states that Mr. Nur’s complaint raises a subtle scent of discrimination based on his ethnic or national origin, colour or race. Indeed, it believes that these prohibited grounds of discrimination against which the CHRA protects were a factor in his dismissal and that lesser disciplinary actions could have been taken by CN.
[44] It adds that Mr. Nur said that he was the subject of inappropriate comments and behaviours during training that were race-related. A CN instructor would have witnessed this. In so doing, the Commission requests that CN disclose all policies and procedures on human rights and against discrimination, particularly based on race.
[45] The Respondent opposes this request, considering that it is vague and too broad and that these policies and procedures are not related to the issue. It alleges that neither in Mr. Nur’s complaint or in the Commission’s Statement of Particulars are there any allegations as to the fact that CN pursued discriminatory practices, particularly due to the Complainant’s race. It adds that neither Mr. Nur nor the Commission has filed a complaint under s. 10 CHRA alleging that its policies or practices are discriminatory.
[46] CN submits that the only mention of racial discrimination in the complaint concerns the fact that one of the persons questioned during the investigation of Mr. Nur’s conduct on June 30 and July 1, 2015, had made inappropriate remarks in relation to his ethnic origin during training and consequently, the investigation would have been compromised, tainted by this individual’s testimony. The Respondent adds that it was informed of these events only after the filing of Mr. Nur’s amended complaint. It therefore considers that no rational connection exists between the requested documents, the complaint or the Commission’s Statement of Particulars.
[47] Once again, CN adds that the request was made late and that the Commission could have raised these issues previously, which undermines its submissions regarding arguable relevance. The Tribunal already took a position on this argument in para. 37 of this decision.
[48] The Tribunal does not agree with the Respondent regarding s. 10 CHRA on discriminatory policies or practices. In fact, it is true that the complaint and the Statement of Particulars of the parties are not fashioned to include s. 10 CHRA. This being said, it is not mandatory for s. 10 CHRA to be included in the complaint for the Tribunal to be able to take cognizance of the policies or practices of an employer, an employer association or a union organization. For example, it is clear that the Tribunal has broad authority regarding the relief it may order, relief that must be practical, useful and effective.
[49] More specifically, para. 53(2)(a) CHRA is written in a broad and non-limiting manner, allowing the Tribunal not only to put an end to the discriminatory act, but also to order relief intended to prevent similar acts. Subparagraphs (i) and (ii) of para. 53(2)(a) CHRA are covered by the word “notamment” in the French version and “including” in the English version, which indicates that this list is not exhaustive in itself.
[50] As such, a company that has not put a policy against discrimination or harassment in place, for example, and has no procedure established for such matters, could be ordered by the Tribunal to implement such policies and procedures if it is proved that it is responsible for the perpetration of a discriminatory act.
[51] It is also the Tribunal’s opinion that Mr. Nur’s complaint and the Commission’s Statement of Particulars include allegations that CN also had discriminatory practices, including based on the Complainant’s race. The Commission refers to the existence of a subtle scent of discrimination based on Mr. Nur’s race in that CN could have taken less drastic disciplinary actions than dismissal of the Complainant. It also expresses concerns about the involvement of an employee in the CN investigation who possibly made inappropriate remarks based on the Complainant’s race. Also in its Statement of Particulars, the Commission submits that Mr. Nur believes that the remarks made by this individual and his view of his Somali origins, combined with the feeling of this person and other employees (who also participated in the investigation) regarding his rapid advancement in the company, caused CN to treat him more severely following the events that occurred in 2015.
[52] The Tribunal also notes that the Respondent states in its summary of the testimony that the instructor Sylvie Michaud, who was present when these remarks were made, did not hear them. If she had heard these remarks during her training, she would have reported them to management so that follow-up would be done. The Tribunal finds that the Commission, in para. 10 of its Statement of Particulars, states that Mr. Nur will testify that Ms. Michaud was present when the remarks were made. At this stage, the role of the Tribunal is not to evaluate the evidence that will be presented at trial. However, there seems to be a certain divergence in the facts.
[53] If the company has adopted policies and procedures regarding human rights and anti-discrimination, it is possible to question, for example, whether the employees or the trainers receive human rights and discrimination awareness raising and training. If a person, a trainer, an employee, witnesses discriminatory remarks against a co-worker or another employee, what is the procedure to follow?
[54] The Tribunal finds that the Policy to Prevent Workplace Alcohol and Drugs Problems, in its “Prevention and Assistance” section, explains among other things the company’s vision regarding alcohol and drugs in the workplace and its expectations regarding employees, encouragement between co-workers, etc. More generally, what about human rights and fighting discrimination in the workplace?
[55] On these grounds, the Tribunal considers that the Respondent’s human rights/anti-discrimination policies and procedures are arguably relevant and orders it to disclose what it has in its possession, both the version in effect in 2015 and the current version.
(iv) Harassment policies and procedures
[56] The Commission, in the second paragraph of its representations, submits that Mr. Nur’s complaint concerns allegations of discrimination and harassment in matters related to employment, in application of sections 7 and 14 CHRA. It adds that in his Statement of Particulars, Mr. Nur alleged that he was the subject of harassment based on his race when he was working for the Respondent.
[57] It mentions that CN’s Statement of Particulars also raises allegations to the effect that Mr. Nur committed sexual harassment against an employee of Canad Inns Playmaker’s Lounge and that this was one of the reasons leading to his dismissal. The Commission believes that CN could have imposed disciplinary actions less drastic than dismissal and is of the opinion that discriminatory factors might have been involved in the application of these measures. In so doing, it judges that a rational connection exists between the complaint and the Respondent’s harassment policies and procedures.
[58] The Respondent submits that neither Mr. Nur’s complaint nor the Commission’s Statement of Particulars is based on s. 14 CHRA concerning harassment. It adds that Mr. Nur did not inform it that he was the subject of harassment, which is confirmed in the Commission’s Statement of Particulars, at para. 11. It repeats that Mr. Nur’s complaint does not give rise to s. 10 CHRA concerning discriminatory policies or practices.
[59] More significantly, the Respondent submits that it has already disclosed its harassment policy to the other parties and refers the Tribunal and the parties to its documents numbered CN00014 and CN00017.
[60] In its reply, the Commission confirms that it received a version of CN’s anti-harassment policy from CN. This version dates from 2012. The Commission therefore infers that this version is the one that existed at the time of the alleged events of 2015 and that it is also the version that is applicable today. If this is not the case, the Commission requests that the current version of the harassment policy be disclosed.
[61] The Tribunal does not intend to create a major debate around the potential relevance of this harassment policy. CN has already disclosed its harassment policy dating from 2012. The Tribunal necessarily infers that CN considered it arguably relevant to disclose it. The procedures that are also connected to this policy are just as arguably relevant.
[62] However, if this harassment policy has been amended and another version exists today, is this version arguably relevant to the dispute? This is where the Tribunal disagrees with the Commission, particularly to the effect that Mr. Nur’s complaint involves harassment in matters related to employm