Temate v. Public Health Agency of Canada

Temate v. Public Health Agency of Canada
Collection
Canadian Human Rights Tribunal
Date
2022-09-27
Neutral citation
2022 CHRT 31
File number(s)
T2526/8320
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
31
Date:
September 27, 2022
File No(s).:
T2526/8320
[ENGLISH TRANSLATION]
Between:
Cyrille Raoul Temate
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Public Health Agency of Canada
Respondent
Ruling
Member(s):
Gabriel Gaudreault
Table of Contents
I. Background to Motions 1
II. Issues 1
III. Legal Basis 1
A. Expanding Scope of Complaint and Striking Allegations 1
B. Principle of Proportionality 4
IV. Analysis 6
A. Summary of Parties’ Positions 6
(i) Respondent 6
(ii) Commission 9
(iii) Complainant 10
B. Analysis – Sections 7 and 14.1 and Paragraph 14(1)(c) of CHRA and Issue of Prejudice 14
(i) Allegations under Section 7 of CHRA – Discrimination in Course of Employment 15
(ii) Allegations under Section 14.1 of CHRA – Retaliation 17
(iii) Allegations under Paragraph 14(1)(c) of CHRA – Harassment in Matters Related to Employment 18
(iv) Prejudice 19
C. Analysis Regarding Striking or Expanding Certain Allegations 23
(i) Paragraphs 10 and 11 23
(ii) Paragraph 12 25
(iii) Paragraph 13 26
(iv) Paragraph 14 28
(v) Paragraphs 15 and 21 30
(vi) Paragraph 19 31
(vii) Paragraph 20 33
(viii) Paragraphs 22, 28 to 30, 39, 73, 75 to 77 and 93 to 96 34
(ix) Paragraph 35 40
(x) Paragraph 39 41
(xi) Paragraph 47 42
(xii) Paragraph 50 43
(xiii) Paragraphs 54 to 57 44
D. Analysis of Allegations Related to Mediation (paragraphs 30 and 70 to 72) 46
V. Orders 48
I. Background to Motions
[1] This proceeding is still at an early stage. The Complainant, Cyrille Raoul Temate (“Mr. Temate”), and the Canadian Human Rights Commission (“Commission”) filed their Statements of Particulars (“SOPs”) a few months ago.
[2] Before it even filed its own SOP, the Respondent, the Public Health Agency of Canada (“Agency”), filed a motion with the Canadian Human Rights Tribunal (“Tribunal”) asking it to strike several allegations in the Complainant’s SOP.
[3] The Commission and Mr. Temate object to that motion. In so doing, they have asked the Tribunal to instead expand the scope of the complaint to add new facts, a new prohibited ground of discrimination, namely, disability, as well as new discriminatory practices, namely, harassment in matters related to employment and retaliation under paragraph 14(1)(c) and section 14.1 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) respectively.
[4] The Tribunal has already informed the parties that it will deal with the two motions jointly because the motion to expand the complaint and the motion to strike allegations are closely related. The Tribunal finds that it is much more efficient and consistent to deal with the two motions together.
II. Issues
[5] The Tribunal must decide whether it should strike all or part of certain allegations in Mr. Temate’s SOP at the Respondent’s request and limit the scope of the complaint, or whether it should expand its scope at the request of the Commission and Mr. Temate and authorize the amendments requested.
III. Legal Basis
A. Expanding Scope of Complaint and Striking Allegations
[6] In Levasseur v. Canada Post Corporation, 2021 CHRT 32 (CanLII) [Levasseur], the Tribunal wrote that the legal foundation for determining the scope of a complaint is inevitably the same as that applied to dealing with motions to strike (Levasseur, at para 7). In other words, regardless of whether the Tribunal is dealing with a motion to strike allegations in an SOP or a motion to expand the scope of a complaint, the same legal principles apply (AA v. Canadian Armed Forces, 2019 CHRT 33 (CanLII), at para 55 [AA]).
[7] In Levasseur, the Tribunal summarized those main principles at paragraphs 9 to 17 and 22. It wrote the following:
[9] The principles guiding the Tribunal in this matter are well established (see, for example, AA, at paragraphs 56 to 59; Karas v. Canadian Blood Services and Health Canada, 2021 CHRT 2, at paragraphs 9 to 31 [Karas]; Casler v. Canadian National Railway, 2017 CHRT 6, at paragraphs 7 to 11 [Casler]; Gaucher v. Canadian Armed Forces, 2005 CHRT 1, at paragraphs 9 to 13 [Gaucher]).
[10] The procedure through which litigants can file a complaint regarding discriminatory practices within the purview of matters coming within the legislative authority of Parliament is set out in the CHRA. It is the Commission’s role to, among other things, receive and investigate complaints (subsections 40(1) and 43(1) of the CHRA), a role that distinguishes the Commission from the Tribunal, whose role it is to institute inquiries into the complaints referred to it (subsections 44(3), 49(1) and 50(1) of the CHRA).
[11] The process is triggered by the filing of a formal complaint with the Commission through a specific form. In that form, the complainant describes the events that, in the complainant’s opinion, led to the alleged discriminatory practices. The complainant thus provides a review of their version of the facts leading them to believe that they are, or have been, a victim of discrimination, as of the date of filing of the complaint. The discrimination may be ongoing or persistent, depending on the circumstances described.
[12] After investigating, the Commission determines whether the circumstances justify the complaint being referred to the Tribunal (subsection 49(1) of the CHRA) and, as required, sends a letter to the Chairperson of the Tribunal to that effect. The parties receive a separate letter confirming that the complaint has been referred for inquiry. If the Commission does not express any limitations or exclusions in its letter to the Tribunal Chairperson, and unless the Commission instructs otherwise, the Tribunal assumes that the complaint has been referred in its entirety.
[13] The jurisprudence also recognizes that the Commission’s letter is not the only tool the Tribunal has at its disposal to determine the scope of a complaint. The parties’ statements of particulars, filed right at the beginning of the proceeding before the Tribunal, are the constituent procedural vehicle underlying the complaint. The SOP clarifies, refines and elaborates on the alleged discrimination, and it is inevitable that new facts or new circumstances are revealed after the initial complaint is filed. It follows that complaints can be refined.
[14] Since the SOP is the procedural vehicle used in the Tribunal’s inquiry, the original complaint filed before the Commission and forms such as the complaint summary and other administrative documents are not pleadings as such during the inquiry stage.
[15] It does not follow that an SOP may include aspects that have no logical connection to the complaint filed by the complainant. In fact, the substance of an SOP must reasonably respect the factual foundation and the allegations set out in a complainant’s initial complaint. And when the Tribunal receives a motion to modify, amend or expand the scope of a complaint or, as in this case, a motion to narrow the scope of the complaint or to strike certain items, it must use the tools and the material at its disposal to rule on the issue.
[16] So, to decide on this issue, the Tribunal must necessarily determine the substance and the scope of the complaint before it. It therefore has to examine the material and the submissions it has received, determine the scope of the complaint and reach a conclusion on whether there is a sufficient connection or nexus between the allegations in the SOP and the original complaint filed before the Commission. A complaint should not be unduly restricted by form over substance, thereby limiting the Tribunal’s review of the real and essential matters in dispute, but there must be some factual foundation in the complaint that establishes a reasonable nexus with what is in the SOP. In the absence of a sufficient (or reasonable) nexus with the original complaint, the allegations constitute a completely new complaint.
[17] In determining the scope of a complaint, and depending on the material before it, the Tribunal may consult, among other things, the Commission’s investigation report and the letters sent by the Commission to the Chairperson and the parties, the original complaint and any administrative forms. In other words, “the Tribunal may consider the documents and information made available to it in order to develop an overall understanding of the complaint, its history and the general context. This allows the Tribunal to determine the scope of the complaint before it” (Karas, at paragraph 30).
…
[22] … The Tribunal notes that in the context of this motion, the goal is not to make any findings of fact or to draw any inferences whatsoever regarding the complaint. The Tribunal will not deal with the merits of the allegations (Karas, at paragraph 147; Constantinescu v. Correctional Service Canada, 2020 CHRT 4, at paragraph 204). The Tribunal will be able to make findings of fact and draw inferences from the evidence in the hearing of this matter. …
B. Principle of Proportionality
[8] The Tribunal and the parties involved in a quasi-judicial proceeding like this one must necessarily be guided by the principle of proportionality, which is well established in Canadian law (see, for example, Hryniak v. Mauldin, 2014 SCC 7 (CanLII); Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 (CanLII)).
[9] The principle of proportionality requires that all actors involved in the justice system use it appropriately in order to improve access to that system and must conduct themselves so as to reduce the time and costs associated with legal proceedings as much as possible. These actors include lawyers and litigants, but also the decision-maker, who must manage their proceeding actively and effectively.
[10] The principle of proportionality also requires, for example, that counsel take into account their client’s limited means but also the nature of the file and the dispute and use proportional means to reach a fair and just outcome.
[11] The Tribunal has written little regarding this principle, and its jurisprudence is relatively silent in this regard. However, without naming it specifically, the Tribunal has always been guided by this major principle, which is implicit in its enabling statute. For example, the CHRA requires it to hear complaints as informally and expeditiously as the requirements of natural justice and the rules of procedure allow (subsection 48.9(1) of the CHRA).
[12] The Canadian Human Rights Tribunal Rules of Procedure, SOR/2021-137 (“Rules”) also include the principle of proportionality, specifically, in Rule 5, which refers to the principles of expeditiousness and flexibility in the Tribunal’s proceedings.
[13] The Tribunal finds that, when it deals with a motion filed by a party, including a motion to expand the complaint or to strike allegations, it must necessarily be guided by the principle of proportionality.
[14] Although it has been acknowledged that motions to amend complaints must be analyzed liberally because of the very nature of these files that involve human rights (Gaucher v. Canadian Armed Forces, 2005 CHRT 1 (CanLII), at para 12; Richards v. Correctional Service Canada, 2020 CHRT 27 (CanLII), at para 88 [Richard]), the Tribunal finds that limits may also be imposed.
[15] Thus, in addition to the lack of a sufficient nexus with the original complaint, the principle of proportionality may also warrant imposing limits based on the circumstances of each case.
[16] These limits are rooted in, among other things, the fact that the Tribunal should not engage in analyzing allegations that are bound to fail in practice. Doing otherwise would result in additional costs, time and energy for the Tribunal and the parties alike and would inevitably have impacts on the justice system as a whole and on access to justice for other litigants who are waiting for their cases to be heard.
[17] Without specifically stating that it was applying this principle, the Tribunal has reiterated that, in some cases, a motion to amend may be dismissed when the allegations have no chance of success. In First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2012 CHRT 24 (CanLII) [Child Caring Society 2012], the Tribunal wrote the following at paragraph 7 regarding a motion to amend the complaint to include allegations of retaliation:
… the Tribunal “should not embark on a substantive review of the merits of the amendment”; rather, it should grant the amendment unless it is plain and obvious that the allegations have no chance of success: Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 02, at paragraph 6. While the Tribunal in Gaucher v. Canadian Armed Forces, 2005 CHRT 1, at paragraphs 10 and 12, acknowledged that because the Tribunal’s jurisdiction over a complaint originates from a referral by the Commission, there must be certain limits on the scope of the amendments; this constraint is “only one aspect of the matter” as “human rights tribunals have adopted a liberal approach to amendments” that is in keeping with the remedial nature of the CHRA.
[Emphasis added.]
[18] Similarly, the Tribunal also reiterated this idea in Tracy Polhill v. Keeseekoowenin First Nation, 2017 CHRT 34 (CanLII), at para 31 [Polhill 1], stating that a motion to add retaliation allegations must be defensible and tenable.
IV. Analysis
[19] To deal with these motions as concisely and expeditiously as possible (subsection 48.9(1) of the CHRA), the Tribunal will only address the parties’ arguments that are essential, necessary and relevant to making its decision (Turner v. Canada (Attorney General , 2012 FCA 159 (CanLII), at para 40).
A. Summary of Parties’ Positions
(i) Respondent
[20] The Tribunal notes that the Agency’s arguments can be divided into three main elements: (1) Mr. Temate’s additions were not referred by the Commission and are beyond the scope of the complaint; (2) the additions do not have a sufficient nexus with the original complaint; and (3) some of the additions are bound to fail.
[21] In general, the Agency argues that the complaint filed by Mr. Temate with the Commission under paragraph 7(a) of the CHRA and referred to the Tribunal only specifically concerns the refusal of employment in relation to staffing process AHS-HISIA-NCR-108797, which took place in January and February 2015.
[22] It adds that the only prohibited grounds of discrimination raised by the Complainant that should be analyzed are race, national or ethnic origin and skin colour. Disability was not a ground referred by the Commission. It also argues that several of Mr. Temate’s allegations are bound to fail and should therefore not be analyzed by the Tribunal.
[23] Thus, the Respondent believes that all the elements that exceed or go beyond those specific allegations are not included in Mr. Temate’s complaint, were not referred by the Commission and therefore should not be analyzed by the Tribunal. It submits that the complaint is specific and detailed. It argues that the form the Complainant filed with the Commission was clear and only covered allegations related to paragraph 7(a) of the CHRA and its refusal of employment under staffing process AHS-HISIA-NCR-108797, based on grounds of race, national or ethnic origin and colour.
[24] It adds that the Complainant’s allegations relative to harassment under paragraph 14(1)(c) of the CHRA are implausible, not covered by the CHRA and bound to fail. For example, allegations regarding his personal information or the subject line of internal emails that included Mr. Temate’s last name should not be analyzed by the Tribunal.
[25] Regarding retaliation, the Respondent argues that Mr. Temate’s allegations were not investigated by the Commission and that this issue was not referred to the Tribunal for inquiry. It adds that retaliation related to events that took place before the complaint was filed on May 4, 2016, do not fall within the scope of section 14.1 of the CHRA.
[26] With respect to the Complainant’s allegations concerning retaliation for events that occurred after the complaint was filed, the Respondent believes that those are completely new complaints and that the allegations are implausible and bound to fail, including the allegations related to a staffing process other than AHS-HISIA-NCR-108797, the communications between the Agency and Mr. Temate as well as the impacts on his work environment at the Correctional Service of Canada (“CSC”).
[27] Finally, the Respondent submits that, if Mr. Temate’s additions are analyzed by the Tribunal, this would be prejudicial to it and have impacts on the proceedings, including the cost, complexity and length of the inquiry. Furthermore, the Agency submits that the principle of proportionality should prevail to limit the Complainant’s complaint.
[28] The Respondent did a good job of identifying the specific passages in Mr. Temate’s SOP that it would like to be struck and specifying why. Specifically, it requests that the following elements be struck from the Complainant’s SOP:
· Disability as a prohibited ground of discrimination under subsection 3(1) of the CHRA;
o The following paragraphs of Mr. Temate’s SOP: 22, 28, 29, 30, 39, 73, 75, 76, 77, 93, 94, 95 and 96;
· Harassment in matters related to employment as a discriminatory practice under paragraph 14(1)(c) of the CHRA;
o The following paragraphs of Mr. Temate’s SOP: 13, 14, 20, 47, 54 and 55;
· Retaliation for events that took place before the complaint was filed under section 14.1 of the CHRA;
o The following paragraphs of Mr. Temate’s SOP: 10, 11, 12, 13, 14, 15, 19, 20, 21, 35, 39, 47 and 50;
· Retaliation for events that took place after the complaint was filed under section 14.1 of the CHRA;
o The following paragraphs of Mr. Temate’s SOP: 12, 20, 21, 54, 55, 56 and 57.
[29] The Respondent is also requesting that allegations referring to mediation be struck as they are irrelevant, inappropriate and vexatious and include information that is privileged, in its opinion. Those references are found at:
· The following paragraphs of Mr. Temate’s SOP: 30, 70, 71 and 72.
[30] Following the Tribunal’s request for submissions regarding Mr. Temate’s countermotion to expand his complaint, the Respondent provided additional submissions. The Agency’s reasoning and main arguments remain largely the same as those provided in the motion to strike.
[31] First, it reiterates that the Complainant’s additional allegations have an insufficient nexus with the original complaint, that some allegations constitute new discriminatory practices that were not referred by the Commission and that some allegations have no reasonable chance of success. Second, it alleges that it would suffer prejudice if those allegations were added because, to defend itself, it would have to look for documents that may no longer exist; because witnesses may be difficult to find; and because it would have to invest additional resources to deal with those additions.
(ii) Commission
[32] First, the Commission submits that the Tribunal should hear all the evidence surrounding staffing process AHS-HISIA-NCR-108797 and all aspects related to it to be able to decide Mr. Temate’s complaint.
[33] Although it consents to having the references to mediation removed from Mr. Temate’s SOP, it objects to all the other elements of the Agency’s motion to strike and considers that the Agency will not suffer any prejudice and will have plenty of time to respond to the additions. It submits that the complaint is only a summary of the facts. With respect to the SOP, it states that the parties do not have to agree on all the facts it contains. An SOP is not a joint statement of facts, but presents the important facts on which a party intends to base its arguments. The Commission alleges that the allegations must simply be relevant to the complaint.
[34] It adds that Mr. Temate’s complaint has not only individual but also systemic aspects and that, although the complaint is mainly about staffing process AHS-HISIA-NCR-108797, the events that took place after the process are also relevant. As such, the facts put forward by the Complainant regarding process AHS-HISIA-NCR-108797 in October 2014 and the events that followed that process are related to the complaint.
[35] It believes that, not only should Mr. Temate be able to present a complete and contextualized case for discrimination, but that this new evidence could also show a continued refusal to hire him or even constitute retaliation. The Commission considers that, at this early stage of the proceedings, Mr. Temate should be authorized to add new facts in relation to paragraph 14(1)(c) and section 14.1 of the CHRA because they emanate from the same factual matrix, that is, they are part of staffing process AHS-HISIA-NCR-108797.
[36] It also argues that the facts related to another staffing process that took place after the complaint may show a continued refusal to consider hiring him for a position based on a prohibited ground or even constitute retaliation. The Commission states that, although allegations of retaliation occurring after the filing of the complaint were not analyzed during the investigation, the Tribunal has the authority to amend the complaint to add them. Those allegations also flow from the same factual matrix as the Complainant’s initial complaint, and it would not be in the interests of justice to ask him to file a new complaint regarding them.
[37] Regarding the retaliation allegations concerning events that took place before the complaint was filed, the Commission concedes that they do not meet the strict criteria in section 14.1 of the CHRA but may be admitted for context for allegations related to section 7 of the CHRA.
[38] Finally, the Commission believes that the Complainant’s additional allegations may also be relevant with respect to the remedies the Tribunal may order under subsection 53(3) of the CHRA.
[39] Regarding the prohibited ground of disability, the Commission alleges that there is a connection with Mr. Temate’s taking part in staffing process AHS-HISIA-NCR-108797.
[40] Finally, in its reply to the countermotion, the Commission briefly states that, should the complaint be expanded by adding the new elements raised by Mr. Temate, the Agency would not suffer any prejudice. It claims that the time and resources needed to respond to the allegations are part of the process related to a motion to expand a complaint. The Commission argues that no hearing date has yet been set and that the Agency has been informed of the new allegations and will be able to respond to them, which will therefore cause it no prejudice.
(iii) Complainant
[41] Mr. Temate argues that the Tribunal should not limit his complaint. According to him, some of the Respondent’s actions were discovered after his complaint was filed with the Commission. He submits that, at the investigation stage, he raised only the facts that he knew about at the time. He then learned of new facts as the proceedings progressed and as he was able to access additional documentation, including from the Commission’s investigation and his access to information requests as well as from Federal Court and Tribunal proceedings.
[42] He states that his relationship with the Respondent began when he applied to staffing process 14-AHS-HSI-NCR-108797 to fill position 090777. He therefore considers this relationship to be on a continuum and that all the facts, allegations, events and decisions—even related ones—that he included in his SOP are linked to that staffing process. Mr. Temate argues that the Tribunal should not unduly limit his complaint and should hear all of the contextual elements.
[43] He adds that the Tribunal must hear all the evidence, including all facts connected to staffing process AHS-HISIA-NCR-108797, to determine whether one of the prohibited grounds of discrimination was a factor in not granting him the EC-07 position at the Centre for Emergency Preparedness and Response of the Health Security Infrastructure Branch.
[44] The Complainant adds that, in the course of the motion and this ruling, the Tribunal will also have the opportunity to analyze the evidence he submitted in support of his arguments. The Tribunal will address this argument by Mr. Temate straight away. The Tribunal reiterates that when it analyzes a motion to expand the scope of a complaint, its role is neither to determine the merits of the allegations nor to assess the evidence (Levasseur, at para 22; Karas v. Canadian Blood Services and Health Canada, 2021 CHRT 2 (CanLII), at para 147 [Karas]).
[45] The evidence is admitted and assessed by the Tribunal at the hearing, and it may then draw conclusions about it. It is clear that the Tribunal’s role in this ruling is not to weigh the evidence submitted by Mr. Temate or to draw conclusions about it. It must limit itself to applying the principles stated in section III of this ruling.
[46] Now that this has been clarified, Mr. Temate adds that he also took part in another staffing process in August 2016, namely, process 16-AHS-HSI-IA-NCR-164360, to fill position 090782, among others. He explained that the purpose of applying to that staffing process was to show that the Agency’s order that its staff no longer communicate with him in any way was indeed real. That said, Mr. Temate confirms that he withdrew from the process within 24 hours of filing his application. He actually wanted the Respondent to contact him to inform him that he would then lose privileges regarding potential recourse. He confirms in his submissions that filing a new complaint for this process that he withdrew from [translation] “is simply ridiculous”, to use his own words.
[47] In other words, the Tribunal therefore understands that, according to the Complainant, the Agency’s order to no longer communicate with him resulted from the fallout of events following his being denied a position in staffing process AHS-HISIA-NCR-108797. However, Mr. Temate wanted to verify whether the order was real by applying to a second staffing process, namely, 16-AHS-HSI-IA-NCR-164360. According to Mr. Temate, he wanted to get evidence demonstrating that the Agency and its employees continued to discriminate against and harass him.
[48] Several of Mr. Temate’s other arguments essentially reiterate the Commission’s arguments. He believes that the complaint is only a summary of the facts, that the parties do not have to agree on the allegations stated in the SOP and that the facts in the SOP must simply be relevant to the subject matter of the complaint.
[49] Mr. Temate adds that the Commission did not investigate some elements that he had raised and instead referred the entire complaint to the Tribunal, including retaliation and the other prohibited ground of discrimination, thus enabling the Tribunal to have a broad and unrestricted interpretation of the complaint. He states, however, that he asked the Commission to amend his complaint several times during the investigation, but his requests went unheeded or it was suggested to him to file a new complaint regarding them. Regarding that last argument, the Tribunal must reiterate that it has no jurisdiction to review the Commission’s decisions (Williams v. Bank of Nova Scotia, 2021 CHRT 24, at para 32; Leonard v. Canadian American Transportation Inc. and Penner International Inc., 2022 CHRT 20, at para 61). However, it is certain that the Tribunal has jurisdiction to expand the scope of a complaint and to include elements that had not been investigated by the Commission.
[50] Mr. Temate considers that disability should also be included because it was the Agency that disclosed information about his health condition. He believes that this influenced its decision not to grant him the position even though he was the only qualified candidate. Mr. Temate states that he did not receive information and evidence regarding this until October 2020 when the complaint was referred to the Tribunal. The same is also true for his allegations of harassment and retaliation, which are related to the same factual matrix. According to him, it would not be in the interests of justice to require him to file a new complaint.
[51] He believes that the Respondent would suffer no prejudice if all these elements are added to his complaint because it is aware of his allegations, it has responded to them in various processes involving the parties, and the proceedings are still at an early stage. He reiterates that all of his allegations are related to staffing process 14-AHS-HSI-NCR-108797 posted on October 30, 2014, and to the events that followed the process.
[52] Mr. Temate argues that, should the Tribunal not include his retaliation allegations because they do not meet the requirements of section 14.1 of the CHRA, they must be admissible to demonstrate context and to determine whether there was discrimination under section 7 of the CHRA.
[53] Finally, he believes that several of his allegations, including his participation in the second staffing process, 16-AHS-HSI-IA-NCR-164360, and the order not to communicate with him may also be relevant in determining the remedies to be granted by the Tribunal under subsection 53(3) of the CHRA.
[54] Regarding the allegations related to mediation, Mr. Temate specifies that at no point was there mediation between the parties, but that he is prepared to remove this term from his SOP if necessary.
[55] Regarding Mr. Temate’s reply in his countermotion, the Tribunal will focus solely on the significant arguments he submitted. First, Mr. Temate argues that the Respondent is well aware of his additional allegations included in his SOP because it learned about them several times during other administrative proceedings. Second, he adds that those allegations are necessarily linked to his relationship with the Respondent involving the same parties during the same period and that it is impossible to separate them. Finally, like the Commission, Mr. Temate believes that the Agency would suffer no prejudice should the Tribunal grant the additions and that the additional time and resources needed are not circumstances that are out of the ordinary in dealing with a motion to expand the scope of a complaint.
B. Analysis – Sections 7 and 14.1 and Paragraph 14(1)(c) of CHRA and Issue of Prejudice
[56] As previously mentioned by the Tribunal, it is settled law that, when the Tribunal must determine the scope of a complaint and whether it should be amended, it does not proceed to a substantive review of the merits of the new elements (Levasseur, at para 22; Karas, at para 147. See also Constantinescu v. Correctional Service Canada, 2018 CHRT 17 (CanLII), at para 5; Canadian Association of Elizabeth Fry Societies v. Correctional Services of Canada, 2022 CHRT 12 (CanLII), at para 15 [Elizabeth Fry Societies]).
[57] As described in Levasseur, at paragraph 16, the Tribunal must authorize amendments if
… there is a sufficient connection or nexus between the allegations in the SOP and the original complaint filed before the Commission. A complaint should not be unduly restricted by form over substance, thereby limiting the Tribunal’s review of the real and essential matters in dispute, but there must be some factual foundation in the complaint that establishes a reasonable nexus with what is in the SOP. ...
[58] The Tribunal must also be guided by the principle of proportionality in managing its inquiry, which includes dealing with motions filed by the parties. Thus, the Tribunal may decide not to analyze allegations when it is plain and obvious that they have no reasonable chance of success or, in other words, would be bound to fail or would be neither defensible nor tenable in fact and in law (Child Caring Society 2012 at para 7; Polhill 1 at para 31; Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 2 (CanLII), at para 6).
[59] In light of the original complaint filed by Mr. Temate at the Commission stage, the investigation report, the Commission’s decision to refer the complaint to the Tribunal for inquiry and the Federal Court reasons, which also serve as a guide, it appears that the crux of Mr. Temate’s complaint is clear: the complaint concerns the Agency’s refusal to hire him following staffing process AHS-HISIA-NCR-108797.
[60] That said, the Tribunal notes that several events have unfolded following the refusal. Mr. Temate did not practise restraint in his SOP: his Statement of Particulars is over 90 pages long, which is exceptionally long for an SOP. Mr. Temate decided to describe in great detail all the events that took place in connection with the refusal to hire him. The Tribunal notes that the starting point of the complaint always remains the same, namely, the Respondent’s refusal to hire Mr. Temate. Without that event, the complaint would not exist.
[61] The Tribunal believes that this is where the main difficulty arises in this file. The facts alleged by the Complainant to provide context for his complaint and to explain the refusal to hire, including those that occurred after the refusal, must be distinguished from the allegations that are an actual amendment to the complaint, whether it is adding a prohibited ground of discrimination or a discriminatory practice.
(i) Allegations under Section 7 of CHRA – Discrimination in Course of Employment
[62] To examine this, we must put section 7 of the CHRA into context to understand where Mr. Temate’s allegations might fit.
[63] Section 7 has two paragraphs. The scope of paragraph 7(a) of the CHRA is quite specific. It provides that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual.
[64] Under that paragraph, two options are provided: refusing to employ and refusing to continue to employ. In this case, Mr. Temate was never employed by the Agency. He categorically insists that the only relationship created with the Respondent is that which started on November 14, 2014, when he formally applied to staffing process 14-AHS-HISIA-NCR-108797. Therefore, since he was never employed by the Agency, it cannot have refused to continue to employ him. The second part of paragraph 7(a) of the CHRA, that is, refusing to continue to employ an individual, therefore does not apply. Any argument to the contrary is absolutely bound to fail.
[65] As for paragraph 7(b) of the CHRA, it provides that it is a discriminatory practice, in the course of employment, to differentiate adversely in relation to an employee. The Tribunal refers the reader to Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII) [Duverger], at paragraphs 84 to 158, to understand the Tribunal’s interpretation of the words in the course of employment.
[66] It is sufficient to say that in the course of employment equates to during (Duverger, at paras 115 and 116). This implies then that the adverse differentiation takes place during employment and that it may continue for a period of time during the employment relationship between the employee and the employer. But the problem remains: there must still be employment, an employment relationship between an employee and an employer. Once again, Mr. Temate was never an employee of the Agency. It is therefore clear that paragraph 7(b) of the CHRA does not apply and that any argument to the contrary is inevitably bound to fail.
[67] The complaint filed by Mr. Temate under section 7 is therefore based solely on paragraph 7(a) of the CHRT. The refusal to hire him following staffing process 14-AHS-HISIA-NCR-108797 is the basis for the discriminatory practice. And since there is no employment relationship after the refusal, the events following the refusal to hire Mr. Temate cannot in themselves constitute new discriminatory practices under paragraph 7(a) of the CHRA.
[68] Consequently, the Tribunal agrees with the Respondent that some of Mr. Temate’s allegations stemming from the refusal to hire him following staffing process 14-AHS-HISIA-NCR-108797 cannot constitute new discriminatory practices independent from the refusal to hire under paragraph 7(a) of the CHRA.
[69] However, the Tribunal does not agree that they should be struck from Mr. Temate’s SOP. Those additional allegations following the refusal to hire may provide context to help us understand, for example, what led the Respondent to make its decision to refuse employment. The post-refusal allegations may also make it possible to determine whether a ground of discrimination may have been a factor in the refusal to hire.
[70] The Tribunal agrees with Mr. Temate’s explanation that the facts are part of a continuum. Things happened after the Agency refused to employ him. Mr. Temate would like to highlight these allegations to demonstrate that the Respondent made the decision not to hire him for discriminatory reasons.
[71] Now, could some of the post-refusal allegations be considered through the lens of other discriminatory practices under the CHRA such as harassment in matters related to employment or retaliation? Maybe. This is what the Tribunal will address in the next sections of this ruling.
(ii) Allegations under Section 14.1 of CHRA – Retaliation
[72] Regarding retaliation under section 14.1 of the CHRA, it is well established in the Tribunal’s jurisprudence that it is not the prohibited ground of discrimination that is the basis for the complaint, but rather the filing of the complaint itself with the Commission (First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14 (CanLII), at paras 4 and 5; Polhill v. Keeseekoowenin First Nation, 2019 CHRA 42 (CanLII), at para 219 [Polhill 2]).
[73] A complainant must therefore show
1) that they filed a previous complaint with the Commission;
2) that they suffered an adverse impact;
3) and that filing the complaint with the Commission was a factor in this adverse impact.
(Polhill 2, at para 219)
[74] In this case, it appears that Mr. Temate’s complaint was filed on May 4, 2016. If Mr. Temate believes that the Agency retaliated against him because he filed his complaint, the filing of the complaint on that date would then serve as the starting point for the retaliation allegations.
[75] Therefore, any allegations that retaliation under section 14.1 of the CHRA occurred before May 4, 2016, that is, before the complaint was filed, are necessarily bound to fail. Any argument to the contrary is neither defensible nor tenable in fact or in law (Polhill 1, at para 31). This was also conceded by the Commission in its submissions.
[76] Accordingly, there is no need for the Tribunal to consider the retaliation allegations made for events taking place before May 4, 2016. However, Mr. Temate’s allegations that there was retaliation after his complaint was filed may be admissible.
[77] The Tribunal will decide on a case-by-case basis whether these elements need to be added to Mr. Temate’s complaint if there is a sufficient nexus between the allegations in the SOP and his original complaint.
(iii) Allegations under Paragraph 14(1)(c) of CHRA – Harassment in Matters Related to Employment
[78] Regarding harassment, paragraph 14(1)(c) of the CHRA provides that it is a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination. The Tribunal has recently had to interpret the words in matters related to employment in that paragraph.
[79] After conducting a purposive analysis in this