Date: 20000619
Docket: T-157-97
BETWEEN:
J. JAGIR SINGH
Applicant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION and
CANADA POST CORPORATION AND ARBITRATOR
Respondents
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision of the Canadian Human Rights Commission dated June 20, 1996. The Commission dismissed the applicant's complaint that Canada Post had discriminated against him on the basis of race and national or ethnic origin. The Commission found that the applicant's allegation of discrimination was unfounded.
Commission Procedure
[2] Some of the arguments made by the applicant are based on a lack of familiarity with the procedure the Commission follows. I will describe that procedure.
[3] Sections 3 and 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, are relevant to the mandate of the Commission:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
7. It is a discriminatory practice, directly or indirectly,
| (a) to refuse to employ or continue to employ any individuals, or |
| (b) in the course of employment, to differentiate adversely in relation to an employee, |
on a prohibited ground of discrimination.
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
| a) de refuser d'employer ou de continuer d'employer un individu; |
| b) de le défavoriser en cours d'emploi. |
[4] The Act provides that the Commission is to investigate any complaint filed with it, unless the complaint falls within one of the categories described in section 41:
41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
| (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; |
| (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; |
| (c) the complaint is beyond the jurisdiction of the Commission; |
| (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or |
| (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
41. Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants :
| a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; |
| b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; |
| c) la plainte n'est pas de sa compétence; |
| d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; |
| e) la plainte a été déposée plus d'un an après le dernier des faits sur lesquels elle est fondée. |
[5] Section 40 outlines the general provisions for the filing of a complaint with the Commission on the grounds that a person has engaged in a discriminatory practice. If the Commission determines that a complaint falls within section 41, no investigation of the complaint is undertaken.
[6] When an investigation is to be undertaken, an investigator is designated pursuant to section 43 of the Act. That investigator prepares a report after seeking information from relevant sources, including, in a case such as the present, the employer. The report, prepared pursuant to subsection 44(1), contains the investigator's recommendation to the Commission respecting the disposition of the complaint. Upon receipt of the report, the Commission has the option under section 44, to either dismiss the complaint, because further inquiry is not warranted, or to refer the complaint to the Canadian Human Rights Tribunal for further inquiry:
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.
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
. . .
. . .
(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 |
(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) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
| (i) d'une part, que, compte tenue des circonstances relatives à la plainte, l'examen de celle-ci est justifié, |
| (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 |
| (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) shall dismiss the complaint to which the report relates if it is satisfied |
| b) rejette la plainte, si elle est convaincue : |
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
| (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, |
| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
| (ii) soit que la plainte doit être rejetée par l'un des motifs énoncés aux alinéas 41c) à e). |
Informal Discussion Before Filing of the Complaint
[7] In this case, Mr. Singh had an informal discussion with a Commission staff member, Human Rights Officer, Ms. Green-Davies before he filed his complaint. She advised him, on the basis of what she understood, at that time, that if he filed a complaint "this office would recommend to the Commission that your complaint not be dealt with ..." (i.e., pursuant to section 41). In a letter dated March 20, 1995, Ms. Green-Davies expressed the view that she expected staff would make such a recommendation to the Commission because she did not believe the management of Canada Post had discriminated against the applicant, and his termination from employment had been reviewed by an independent and impartial third party adjudicator (a labour arbitrator). She noted that the arbitrator had upheld Canada Post's decision, despite the applicant's long years of service, and his assertion that the allegations against him and his dismissal had been racially motivated. She also explained that if the applicant decided to file a complaint, he could make submissions to the Commission in response to any section 41 report that was prepared by staff.
[8] On April 28, 1995, the applicant filed his complaint with the Commission.
Section 41 Report
[9] On June 2, 1995, a Human Rights Officer wrote to the applicant indicating that the staff member who had been assigned to handle his complaint was Sandra Choquette. He was also informed that a report had been prepared, dated April 30, 1995, recommending to the Commission that it not deal with the complaint as it fell within paragraph 41(d) of the Act. A copy of that report was sent to him. (That report has not been put before the Court for the purposes of this judicial review.) The letter informed Mr. Singh that the Commission could "accept, change or reject" the staff's recommendation, and it sought any response to the report that Mr. Singh might wish to make. The letter also informed Mr. Singh that any responses to the report that were filed either by him or Canada Post, would be considered by the Commission when making its decision.
[10] Mr. Singh's counsel responded, and sent submissions dated June 28, 1995. These state that the complaint should not be dismissed pursuant to section 41 and that an investigation should be conducted.
Section 44 Report
[11] The record of the Commission proceedings that was placed before the Court is incomplete, but it is clear that the Commission did not accept the staff recommendation and that an investigation was conducted. An investigator's report was sent to the applicant under cover of a letter dated November 29, 1995. That report recommended that the complaint be dismissed pursuant to section 44 of the Act because the allegation of discrimination was unfounded. (That report was not made part of the record before the Court.)
[12] The applicant sent submissions dated December 30, 1995, which describe the errors he considers the labour arbitrator made (e.g., he erred in believing the four complainants over the applicant; he ignored the applicant's long years of responsible and honest service.). The applicant's counsel sent submissions dated January 3, 1996. They are identical to those submitted earlier, dated June 28, 1995, in response to the section 41 recommendation.
Evidence Requested Re: Severity of the Penalty
[13] The Commission apparently considered the November 1995 report and the submissions of the parties relating to the report, in March of 1996, but did not make a final determination at that time. The Commission sought evidence relating to the severity of the penalty that had been imposed on the applicant compared to that imposed on other supervisors found guilty of sexual harassment. Comparative information was provided by Canada Post on May 8, 1996. An investigator, Anne Rooke, prepared a report dated May 10, 1996, with respect to this new information. That report together with the information received from Canada Post on May 8, 1996, was sent to the applicant on May 10, 1996. He responded on May 27, 1996.
Allegation that Commission Staff Exceeded Their Jurisdiction (Pre-Determining the Issue; Weighing the Evidence)
[14] I note, first of all, that the applicant's argument that the Commission exceeded its jurisdiction by writing the March 20, 1995, letter is not well founded. A distinction must be made between the recommendations of staff and the decision by the Commission. Ms. Green-Davies was doing her job when she responded to Mr. Singh, giving him a provisional opinion as to how Commission staff would likely respond. Ms. Choquette was doing her job in summarizing the evidence before her and making a recommendation to the Commission, to which the applicant was given an opportunity to respond before the Commission made a decision.
[15] The applicant's argument that the investigator (Anne Rooke), in her report of May 10, 1996, exceeded her jurisdiction by evaluating the evidence, and deciding that his complaint would not be successful at a Human Rights Tribunal, is not supported. That report reads, in part:
| The respondent was asked to provide a brief summary of all sexual harassment complaints resolved between 1991 and 1996 and indicate ethnic origin of the alleged harassers and the discipline imposed on them. Their response indicates that complaints against nine (9) supervisors/managers were deemed to be founded. In seven (7) of those cases, the penalties applied ranged in severity from a verbal reprimand with awareness training to a five (5) day suspension with a letter of reprimand placed on the personnel file. In the case where the five (5) day suspension was applied, two complainants alleged that a superintendent paid unwelcome attention to them in the form of notes, letters, phone calls and persistent invitations. In the first of the remaining two cases, a supervisor tendered his resignation when confronted with the allegations. In the second, a postmaster was discharged for having made an unwanted sexual remark to a customer. One of the nine cases involved an East Indian who was alleged to have directed inappropriate comments and gestures towards women. He received a verbal reprimand and attended sensitivity training. While the allegations against the complainant involved 4 complainants and were more serious than those in the above mentioned cases, they were similar to those made against the superintendent who received the five (5) day suspension. However, there is evidence that the complainant had previously been warned, in writing, about inappropriate behaviour in the presence of a female employee and that he had been provided with training on harassment. |
| The recommendation to the Commission to dismiss the complaint because the allegation of discrimination is unfounded remains unchanged. [Underlining added.] |
[16] The role of investigators under the Canadian Human Rights Act was described in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879:
| The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others. |
[17] In this same case, at page 902, the procedure followed whereby the investigator's report is sent to the parties for comment, and then both that report and the parties' comments thereon are placed before the Commissioners for consideration is described:
| ... I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which ... [is] put before the Commission. Furthermore, it ... [is] incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. |
| The Commission ... [is] entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission ... [is] then obliged to make its own decision based on this information. ... |
[18] Ms. Rooke's report describes the evidence of the employer, notes that the case most similar to the applicants was one in which a five day suspension was the penalty imposed, and makes a recommendation. The report was sent to the applicant who responded with comments thereon, including pointing out that the investigator's statement that he had received a written warning was not correct. The procedure followed was correct.
[19] The applicant referred to the case of Thibodeau v. Prince Edward Island (Human Rights Commission) (No. 2) (1996), 26 C.H.R.R. D\132. In that case, a provincial Human Rights Commission exceeded its jurisdiction when it decided that the complainants would not be successful at a board of inquiry, if one were appointed. (The P.E.I. Commission in that case had the role that investigators play under the federal Human Rights Commission legislation, and the Minister had the role that Commissioners play under the federal system.) The Court held that:
| The Commission should have confined itself to determining whether there was sufficient evidence of discrimination to merit a board of inquiry. It was the role of the Commission to investigate and evaluate so as to be able to make an informed report to the Minister. [Para. 45.] |
| . . . |
| ... Its role is to investigate and to report. Obviously, there is fairly broad latitude for the content of its report. It must include sufficient information from the Commission's investigation to enable the Minister responsible for human rights to make an informed, as opposed to arbitrary, decision whether to convene a board of inquiry. Beyond reporting its findings, it is permissible, but not required, that the Commission make a recommendation. ... [Para. 51.] |
[20] The Thibodeau case is not of assistance to the applicant. Ms. Rooke provided a description of the evidence and her recommendation. This was provided to the Commissioners together with Mr. Singh's comments thereon. Ms. Rooke did not tell the Commissioners how they must decide, or opine on what a Human Rights Tribunal might or might not do, should the Commissioners send the complaint forward to the Tribunal for further inquiry.
[21] I will turn next to the applicant's claim that the investigator and the Commission ignored relevant evidence and misconstrued the evidence.
Circumstances of Mr. Singh's Dismissal
[22] It is necessary, first, to describe the circumstances that led to Mr. Singh's dismissal. He appears to have had a very unfortunate habit of scratching his genitals. This disquieted at least one co-worker, Ms. Wood, who complained about it in September/October 1993. Mr. Singh's boss, Mr. Brown, did not document that complaint because he did not consider the conduct to be sexual harassment, but he spoke to Mr. Singh about it. Mr. Singh appears to have attempted thereafter to refrain from this conduct, at least in the presence of Ms. Wood.
[23] In early May 1994, Ms. MacGregor filed a sexual harassment complaint against Mr. Singh stating that on April 29, 1994, when she had met with him, alone in his office, he had touched and rubbed his genital area "the whole time". Mr. Singh was moved from the Langley Post Office to the Abbotsford Post Office, pending further investigation of this complaint, and an interview with him, with respect to the complaint, was scheduled for May 13, 1994.
[24] The removal of Mr. Singh from the Langley Post Office, and the knowledge that Ms. MacGregor had made a sexual harassment complaint against him, unleashed disclosure by four young women that they had been sexually harassed by Mr. Singh. These complaints were not based on his habit of scratching his genitals; they were of quite a different order.
[25] The four individuals were asked to reduce their complaints to writing. They all worked out of the Langley Post Office. The complainants described unwelcome comments that had been made to them such as calling them beautiful or gorgeous, unwelcome touching such as stroking their hair, their backs, the side of their body, attempted hugs, leering, unwelcome questions about their personal life, repeated invitations to go for beer, standing too close to them in confined areas. The evidence given by one of the complainants is described by the labour arbitrator:
| ... he would come close to her - so close that she would have to back up. She felt very uncomfortable and when that happened she would try to turn her back to him. He would rub her back, touch her hair, hug her and slide his hand down the side of her body. |
| That happened "quite regularly" when no one else was around in the sortition case. She felt uncomfortable and humiliated. Mr. Singh was her boss and she did not want to lose her job. He made her feel "dirty". |
[26] The applicant was dismissed by Canada Post on May 26, 1994. Mr. Singh had been given copies of the written statements that had been received from the four rural route contractors, outlining the specific allegations each had made against him. These were provided to him prior to his interview with Canada Post management, with respect to those allegations, held on May 19, 1994. Mr. Kirk, the Zone Manager of Canada Post who conducted the interview, concluded that the claimants were credible and that Mr. Singh knew what constituted sexual harassment because he had had training in that area.
Grievance of the Dismissal
[27] The applicant grieved his dismissal and the grievance was heard by an arbitrator over the course of six days (October 5, 6 and 7, December 13, 14 and 15, 1994). The four complainants gave oral evidence at the hearings and were subject to cross-examination.
[28] In addition to the evidence of the four complainants, the arbitrator heard evidence from Linda Rempel, a co-worker who worked beside one of the complainants. Ms. Rempel described the conduct she observed. The arbitrator also heard evidence from the mother of one of the complainants, who also worked as a rural route contractor. At first, she thought her daughter was over-reacting but changed her opinion after she started to watch Mr. Singh:
| ... She saw him around her daughter long after his shift ended, for no good reason. He was in her work space without any reason to be there. He would stand much closer to her than necessary. She heard him call her "blondie" and that her hair was "nice and long". She also heard him ask Angela to go out with him for beers. That happened more than once and she recalled Angela's responses as "don't be ridiculous" or "not likely" or she would just ignore him. That happened almost daily. |
[29] Another witness, who was formerly a Human Resources Management Officer, testified as to the training given to supervisors between March 1989 and July 1994, with respect to sexual harassment. Training that the applicant attended in 1991. Also, Mr. Kirk testified that the applicant was in a position of power, and that the applicant's behaviour towards the four employees amounted to coercion and deception.
[30] The arbitrator concluded:
| Finally, I return to Mr. Singh's evidence as to what he thought could have motivated the four complainants as noted at the outset of this decision. There was absolutely no evidence that any of the four complainants were "out to get" Mr. Singh. In effect, he is suggesting a conspiracy amongst the four complainants and the other witnesses who testified against him in these proceedings to cause him to lose his employment. I find no credence in such a suggestion. It amounts to nothing less than a last desperate attempt by the grievor to try and save his job. Nor am I persuaded there is any truth in the allegation that the complainants embellished their stories for the same purpose. While in many instances they all complained of the same kind of inappropriate treatment from Mr. Singh, it was his misconduct that brought about the "stories" of the complainants. |
| As to his assertion that the complainants had racist views towards him as a supervisor, there is not a scintilla of evidence to support that proposition. So too, his comments that the complainants are immature and unbalanced is entirely without foundation. To the contrary, the courage they displayed in their testimony before me showed a great deal of maturity and understanding that they no longer had to endure the kind of harassment they had been subjected to for many months by the grievor. As to the suggestion that somehow the Canadian Union of Postal Workers was behind their complaints, that is nothing but a fantasy in the mind of Mr. Singh. That assertion needs no further comment. |
| Beyond any doubt, in my judgment, he was guilty of the kinds of inappropriate behaviour specifically outlined in the corporation's Harassment Policy. [Underlining added.] |
Applicant's Submissions Re: Investigator's Report and Commission Decision
[31] The applicant's arguments, filed in writing for the purpose of this judicial review, allege that the Commission failed to have regard to the totality of the evidence before it because it relied on the investigator's report, and that report: (1) failed to consider Mr. Singh's submissions respecting errors in the arbitrator's decision; (2) failed to consider Mr. Singh's representations of June 28, 1995, and January 3, 1996; (3) erroneously stated that "the complainant had been previously warned in writing" when he had not; (4) failed to consider the conversation the investigator had had with another Canada Post supervisor who was of the opinion that the Canadian Union of Postal Workers and Canada Post were acting in concert to have Mr. Singh terminated; (5) failed to consider the evidence that Mr. Singh had not been adequately represented by his union, the Association of Postal Officials of Canada, at the arbitration hearing; (6) failed to refer to the incorrect evidence had been provided to it by Canada Post with respect to the data on sexual harassment cases; (7) failed to consider that the penalty that had been imposed on Mr. Singh was excessive when compared to that imposed on others who were also found guilty of sexual harassment; (8) failed to consider Mr. Singh's exemplary employment record and his character references.
[32] When evaluating whether a decision-maker has made a decision that is not based on the totality of the evidence, or is based on a mischaracterization of the evidence, the ignoring or the mischaracterization of evidence must relate to crucial evidence. Quarrelling with nuances or minor details does not create a basis upon which a decision can be overturned. In Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574, aff'd (1996), 205 N.R. 383, Nadon J. wrote as follows:
| Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. [Underlining added.] |
(1) Failure to Consider Arbitrator's Errors
[33] The evidence does not support the allegation that both the investigator and the Commission failed to consider the alleged errors in the arbitrator's decision. The alleged errors were listed in the applicant's submissions of January 3, 1996. There is no reason to think that these were not considered. The Commission apparently did not find them convincing. This is not surprising. They are assertions by Mr. Singh's lawyer recounting Mr. Singh's identification of errors. There is no independent evidence to support many of them, and some of them are clearly not in accord with the evidence. For example, Mr. Singh asserts that the arbitrator failed to note that his comment to Ms. Fontaine, "I don't get mad, I get even ...", was made when he did not know that she had spoken to Mr. Brown. But the arbitrator makes it very clear that no specific information had been disclosed by Mr. Brown to Mr. Singh, at that time. The arbitrator did not fail to notice that fact.
[34] A second example of an alleged error by the arbitrator, that is not such, is Mr. Singh's statement that the finding of the arbitrator that he "did not feel any remorse" was incorrect. He asserts that he apologized three times. Mr. Singh's description, however, is not an accurate description of the evidence. He apologized three times with respect to his habit of rubbing his genitals, and agreed he would try to do better to curb that habit. He did not exhibit remorse with respect to his sexual harassment of the four young rural route complainants. He stated that they were lying, they were immature, they were part of a conspiracy to get him. He admitted that he had called them beautiful, commented favourably on their appearance, but asserted that he had only touched them on appropriate occasions (e.g., to console them) and in appropriate ways. He denies the conduct that the arbitrator found he had engaged in. This is not evidence of remorse.
[35] Another alleged failure is that while the complainants stated that they were in fear of losing their jobs and, therefore, did not complain earlier, Mr. Singh states that he was not their supervisor. Canada Post management and the arbitrator described him as a person in a position of authority. He may not technically have been in a direct line position with the rural route contractors, but Canada Post's description in May 96 was:
| Mr. Singh held a position of power over these women as the Canada Post representative in the office who would provide feedback to the contractor on their performance. |
[36] The conclusion one draws when considering these arguments is that the applicant is quibbling with details in the decision, in order to build a case, where one does not really exist.
(2) Failure to Consider Representations of June 28, 1995 and January 3, 1996
[37] The applicant asserts that the Commission failed to consider his submissions of June 28, 1995 and January 3, 1996, because they were not mentioned in the decision letter of June 20, 1996. The Commission referred, in that letter, to the applicant's submissions of May 27, 1996. The May 27, 1996 submissions were the last to be provided to the Commission. They relate to the comparative information that had been provided by Canada Post in response to the Commission's request. In the absence of the complete Commission record, I am not prepared to accept the applicant's argument that the earlier submissions were not considered because they are not referred to in the June 20, 1996 letter. This is particularly so, when there is evidence on the file that there had been an initial consideration by the Commissioners of the applicant's complaint in March of 1996. In any event, the June 28, 1995 submissions are not relevant because they relate to the section 41 report.
(3) Not Previously Warned in Writing
[38] The applicant states that the investigator erred when she stated that "the complainant had been previously warned in writing". He also finds it strange that he was not warned in writing about his conduct, in 1993, when one of the eventual four complainants raised the matter of his conduct with the applicant's boss, Mr. Brown.
[39] In September of 1993, the individual spoke to Mr. Brown about the applicant's harassing conduct. At the same time, she insisted that Mr. Brown not tell the applicant what she had said, because she was concerned she might lose her job. Mr. Brown respected that request, but it also meant he could do nothing specific about the allegations. He, therefore, spoke to all the supervisors individually concerning Canada Post's harassment policy and prepared a letter and put it in the notice book. At the time, the applicant asked Mr. Brown if he was alluding to anything specific, but Mr. Brown gave him no further information. The applicant argues strenuously that this was inappropriate, that he should have been given notice, at that time, of the inappropriateness of his conduct and, thereby, given a chance to modify his behaviour.
[40] Mr. Brown's reaction to the complainant's request that her disclosure be kept confidential was entirely appropriate. Mr. Brown was not obligated to breach that confidence. He was also entitled to expect that Mr. Singh, along with the other supervisors, understood the no-harassment policy. This is particularly so after he had spoken to each individually.
[41] The only written notice placed on the applicant's file was a letter of May 15, 1994, with respect to Ms. MacGregor's complaint. Canada Post stated, before the arbitrator, that it was not relying on this letter for the purposes of establishing just cause for the dismissal. The arbitrator noted that that letter was, by agreement, not considered by him. Also, it could not be relevant as a prior warning before his dismissal because it is too close in time to the dismissal to allow for any modification of behaviour. The investigator's report, then, is in error when it says that "the complainant had previously been warned in writing".
[42] I must consider whether that error is crucial, particularly in light of the applicant's submissions to the Commission of May 27, 1996, in which he clearly points out that the statement was erroneous. The decision letter refers to his submissions of May 27, 1996, and states that they were considered by the Commission.
[43] While the incomplete record does not disclose a written warning to the applicant, it does disclose, as noted above, that the applicant, as a supervisor, had been given training on the definition of sexual harassment. Mr. Kirk, in the dismissal letter of May 26, 1994, noted that Mr. Singh had attended a sexual harassment workshop for supervisors, which defined what constitutes sexual harassment. He stated that Mr. Singh had assisted in investigating a sexual harassment complaint, and had received several copies of the Corporate Policy on Human Rights and Employment Equity. In addition, there had been Mr. Brown's initiative of September 1993. The arbitrator pointed out that Mr. Singh knew that his conduct was unwelcome, caused humiliation, and embarrassment. The applicant's conduct in only harassing the young ladies when there was no one else around shows that it was surreptitious, and conscious wrongdoing on his part. This is not a situation in which an individual made a crude or insensitive remark out of ignorance (in which case a warning before any more severe penalty is imposed is justified). Given the extensive evidence that Mr. Singh was well aware of what constituted sexual harassment, and was well aware of the employer's policy in this regard, and his obvious disregard for it, the fact that the investigator stated that he had been given a written warning, when he had not, must be treated as an inconsequential error.
(4) Evidence of a Fellow Supervisor
[44] With respect to the alleged failure to consider the evidence of a fellow supervisor, who was of the opinion that CUPW and Canada Post were acting in concert to terminate Mr. Singh's employment, no witness appeared before the arbitrator to support this allegation, or Mr. Singh's allegation of racial discrimination. The arbitrator, as noted above, found the allegation was a fantasy in Mr. Singh's mind. The only evidence presented to the Commission investigator is found in the record of a telephone conversation the investigator had with a Mr. Ewasiuk:
| He said re: J. Singh: |
| It is quite obvious that the union & employer got together to put the complaints in. Believe it was a conspiracy because the incidents were supposed to have happened at different times but all complaints were sent in at the same time with union urging. |
| He has never heard from mgt. or employees that they were trying to get rid of East Indian supervisors. |
| He does not have any fact to back up his conspiracy theory - it's just a feeling he has. |
[45] This is not evidence that supports a conclusion that discrimination was involved. It is unsupported speculation by one person. Also, there is a clear explanation on the record as to why all four complainants came forward at one time, in May of 1994, even though the sexual harassment had occurred earlier, and at different times and places: Mr. Singh had been removed from the Langley Post Office at that time, and another person, Ms. MacGregor, had already initiated a complaint. It is a completely natural reaction, that once Mr. Singh was no longer working on the premises, the complainants were willing to talk about what had happened, when they had not been willing to do so earlier.
(5) Representation by Association of Postal Officials of Canada.
[46] There is no evidence to support the allegation that the applicant's union, the Association of Postal Officials of Canada, did not represent him properly. The only foundation for this allegation is based on Mr. Singh's assertion that he was discriminated against. But no objective evidence exists to support that allegation. The Association cannot be faulted for refusing to pursue a cause if it decides that there is no evidence to support the allegation that is being made.
(6) Erroneous Information
[47] Canada Post informed the Commission staff that some of the information it had provided respecting the penalties imposed on other employees had been improperly included. The request had been for information concerning cases in the Pacific region; two of the cases that were listed had occurred in Ontario. Canada Post offered to amend the information that had been sent. The Commission investigator said that this would not be necessary, because it would not change the recommendation she was making.
[48] As noted above, the comparative data that was sent shows penalties less severe than discharge. The deletion of two cases from the list is not going to change that fact. The investigator did not rely on the comparative information to explain the severity of the penalty imposed on the applicant. The explanation was that his infractions were more serious than any of those described in the comparative materials, and he knew and understood what was required by the no harassment policy. The inclusion or exclusion of the two Ontario cases is not significant.
(7) Penalty Excessive
[49] The allegation that the investigator and the Commission failed to consider that the penalty imposed on Mr. Singh was excessive, when compared to that imposed on others, is not supported by the evidence. The Commission directed that comparative evidence be obtained. In general, it showed that lesser penalties had been imposed on others (one of the others being an Indo-Canadian). The comparative data, however, does not list any cases where unauthorized touching of the kind Mr. Singh engaged in, is described. Canada Post's position was that the severe penalty was justified because the nature of Mr. Singh's harassment was extreme, ranging from unwelcome remarks and invitations to touching and grabbing clothing: "[t]hese actions took place when these individuals were alone with Mr. Singh, behind closed doors in his office ... in [one] instance, he occupied one person's vehicle without permission." Canada Post noted that "[t]he harassment was directed at four young, vulnerable women who worked for a contractor. They had no union-representation and genuinely feared they would lose their jobs." Canada Post also commented that as employees became more aware of what was required by the no harassment policy, Canada Post moved to a "zero tolerance" policy. Thus, the penalties that had been found to be appropriate at an earlier time were no longer so.
[50] I was initially struck by what appeared to be undue severity in the penalty imposed on Mr. Singh in comparison with the penalties that had been imposed on others. A careful reading of the material, however, discloses that the severe penalty was imposed because Canada Post took the position that Mr. Singh knew that what he was doing was improper. As noted, the conduct was not merely a series of off-hand, insensitive and offensive acts. It was purposive and it was surreptitious. The employer described it as a breach of trust, as did the arbitrator, a breach that irrevocably severed the employment relationship. There is a concept in employment law that when an employer justifiably decides that trust in the employee has gone, the employment relationship is irrevocably broken. That is what occurred in this case. It was the breakdown of the relationship that led to the severe penalty.
[51] A notation was made by a Commission staff member (Mr. Theroux) on an internal memorandum indicating that even if the penalty was too severe there was still no evidence that its imposition was racially motivated. A review of the material that was presented to the Court supports that conclusion.
(8) Character References - Long Service
[52] Lastly, the applicant argues that his long service with Canada Post, occupying positions of increasing responsibility, being reliable for so many years, and the numerous letters attesting to his character, that are on the record, were ignored.
[53] The arbitrator expressly referred to the applicant's lengthy service with Canada Post, but stated that despite that, there was nothing that persuaded him that a lesser penalty than discharge was appropriate. The March 20, 1995, letter of Ms. Green-Davies referred to the arbitrator's reference to the applicant long years of service, as did the submissions of the applicant's counsel to the Commission.
[54] Fundamentally, however, this evidence is only peripherally relevant to the applicant's case. The applicant may indeed have performed exceedingly well in his job; he may have been well respected in the community and by many of those for whom he worked, and who worked for him. This does not mean, however, that his behaviour towards the four young women was not as they described it. It merely means that in other circumstances he acted in a more responsible and caring fashion.
Conclusion
[55] The applicant asserts that the evidence given by the four complainants was untrue, and was contrived in order to have him dismissed - there was a conspiracy against him because he was Indo-Canadian. He asserts that CUPW took action to encourage the four complainants to speak out, even though they were not members of that union, and this was racially motivated, because that union wanted to see all Indo-Canadian supervisor's terminated. He alleges that his employer Canada Post discriminated against him on racial grounds, when it terminated his employment rather than imposing some lesser penalty. He alleges that his own union, the Association of Postal Officials of Canada, failed him when it advised him to resign rather than grieve the discharge, and when it refused to pursue before the arbitrator his claim that Canada Post's decision to discharge him had been racially motivated. He asserts that the arbitrator's finding, that there was not a scintilla of evidence to support the applicant's claim that his discharge was racially motivated, was in error and made without regard to the evidence before the arbitrator. He asserts that the Commission investigators came to the wrong conclusion when they concluded that his allegation of racial discrimination did not warrant further inquiry. He alleges that the Commission erred when it found that his allegations of racial discrimination were unwarranted. The conclusion is inescapable that the applicant finds it difficult to accept responsibility for his inappropriate behaviour, and instead, the applicant alleges racial discrimination and conspiracy.
Respondents
[56] One further comment on this application is required. There has been no active respondent. The applicant points to this as evidence that his challenge to the Commission decision must be correct because no one appeared to defend that decision. I do not accept that argument. The challenge to the decision must be assessed on its merits, with or without the appearance of a respondent.
[57] I attribute the unsatisfactory state of the record that was placed before the Court to the fact that no active respondent was involved. I considered whether to order the production of the whole Commission record. I proceeded, however, on the basis of the information that the applicant chose to place before the Court.
[58] Insofar as the named respondents are concerned, the arbitrator is clearly not a proper party. It is not his decision that is the subject of the present judicial review. If substantial errors had been apparent in his findings or conclusions, these would be relevant to the extent that the Commission investigator relied upon those findings, but this does not make the arbitrator a proper respondent in his own right.
[59] The Commission sent the Administrator of the Federal Court a letter indicating that, in accordance with the jurisprudence of this Court, it was not a proper respondent and accordingly would not be appearing:
| Pursuant to the decision of the Federal Court of Appeal in Canada (Human Rights Commission) v. Canada (Attorney General) and Bernard [1994] 2 F.C. 447, while the Commission is not properly a party to judicial review proceedings brought in respect of one of its decision, the Commission can be granted intervenor status under such terms and conditions as are appropriate in the circumstances of the particular case. Therefore, although the Commission is named as a respondent in the application for judicial review of the applicant, it is not properly a party as it did not seek intervenor status. |
| Consequently, the Commission will not appear at the hearing of the judicial review application of the applicant, J. Jagir Singh. |
[60] A notation appears on the Court file, made October 13, 1999, indicating that a Registry Officer spoke to counsel for Canada Post, to ascertain the availability of counsel for the judicial review hearing. Canada Post advised that it considered the matter to be of primary interest to the Commission, not to Canada Post.
[61] The Attorney General of Canada was served with the application, when it was filed, as required by the then Rule 1604 of the Federal Court Rules, but chose not to involve herself in the file.
[62] This is most unsatisfactory. One or other of the Commission, Canada Post or the Attorney General should have been an active respondent. As noted, however, the absence of an active respondent is not a ground for setting aside a decision.
Judge
OTTAWA, ONTARIO
June 19, 2000