HUMAN RIGHTS
Judicial review of Canadian Human Rights Commission (CHRC) decision denying complaint Canadian International Development Agency (CIDA) discriminated against applicant on grounds of sex, perceived mental disability—Applicant further alleging CIDA retaliated, contrary to Canadian Human Rights Act, s. 14.1—Asserting male supervisor Hitchfield overly critical, denied leave request, micro-managed underutilized her; Derouin did not invite her to lunch, bar, sent managers e-mail suggesting she undergo medical assessment; Salituri made veiled termination threats—Commission appointed investigator who conducted numerous interviews, recommended dismissal of allegations as unsupported by evidence—Commission did deal with complaint but dismissed it on evidence—Did not deal with allegations which were out of time—Decision to deny complaint made over year since last impugned act is reviewable on patent unreasonableness standard—Applicant suggesting should have been dealt with as Treasury Board (T.B.) harassment policy encouraging employees to first seek internal redress—But Court noting T.B. policy is intended to avoid duplicative procedures, does not encourage one recourse over another—Applicant filed complaint against Hitchfield 18 months after the last incident, allegation already rejected under CIDA’s harassment policy so Commission’s decision reasonable—Turning to remaining discrimination allegations, F.C.A. held in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (QL), Commission entitled to very high degree of deference unless natural justice, procedural fairness breached or decision not supported by evidence—Alleges e-mail sent by Derouin to harass her because woman—As to complaint Hamel micro-managed her, co-workers explained Hamel monitored their work closely, they reported to him weekly but applicant says she had to report daily—Confronted with conflicting information on frequency of reporting, investigator was entitled to accept unanimous statements of colleagues over that of applicant—Commission is master of own procedure, including which witnesses to interview—Applicant also alleges retaliation, says asked one day’s paid leave to meet Commission agent but supervisor Salituri tore up request, made veiled threats that those who complain against CIDA can face negative consequences—Investigator declined to investigate incident as said to have happened before complaint filed, relied on s. 14.1 for opinion retaliation can occur only after complaint filed—That interpretation of legislation reviewable on correctness standard—Applicant argued for liberal interpretation; Attorney General recommended words be given plain, ordinary meaning, use of past tense suggested legislator’s intent to define retaliation as act after complaint filed—No case law on point but Court accepting applicant’s submissions on this point—Protection offered by s. 14.1 in context of exercise of rights under Act extends beyond limited process of filing complaint, includes behaviour consistent with claiming asserting one’s rights, so meeting with Commission would fall within ambit of s. 14.1—Alternative interpretation is out of touch with reality of human rights exercise in workplace, goes against Act’s purpose as articulated in s. 2 and liberal interpretation with which human rights legislation to be read—If s. 14.1 not liberally interpreted, successful intimidation with respect to retaliation prior to actual filing of complaint would result in complaint never seeing light of day—Commission erred in adopting inappropriate, narrow interpretation of s. 14.1—Question of retaliation remitted to Commission for investigation—Application denied as to discrimination, allowed as to retaliation—Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 14.1 (as enacted idem, s. 14).
Dubois v. Canada (Attorney General) (T-2172-04, 2005 FC 1079, Shore J., order dated 16/8/05, 15 pp.)