Date: 20040805
Docket: T-1639-03
Citation: 2004 FC 1063
VANCOUVER, British Columbia, Thursday, the 5th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE DOUGLAS CAMPBELL
BETWEEN:
MEDIK MEGERDOONIAN
Applicant
and
CANADIAN IMPERIAL BANK OF COMMERCE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") dated August 1, 2003 made pursuant to the Canadian Human Rights Act, R.S.C. 1985, Ch.H-6 ("the Act"). In its decision, the Commission dismissed Ms. Megerdoonian's complaint against the Canadian Imperial Bank of Commerce ("CIBC") in which she alleged differential treatment in employment on the ground of national or ethnic origin.
A. Factual background
[2] Ms. Megerdoonian, a Canadian citizen of Iranian origin, was employed by the CIBC from May 1985 until April 17, 1999 when her employment was terminated due to a restructuring program; in April 1996 she filed a complaint with the Commission alleging she had been discriminated against for the following reasons:
ALLEGATION
Canadian Imperial Bank of Commerce discriminated against me by treating me differentially in employment on the ground of national or ethnic origin in contravention of section 7 of the Canadian Human Rights Act.
PARTICULARS
I have worked for the respondent since 1985.
In January 1995, I was transferred to the Mortgage Development Manager Support (MDM) group as a Mortgage Support Specialist. I was told by my supervisor that the new position would be at the same pay level as the job I was leaving (level 4). On August 9, 1995, Pam Hayward, my manager in MDM and Connie Davis, Regional Manager, informed me that my position had been assessed at a level 3. The change in level would become effective November 1, 1995, however, I would be administered at a level 4 until 1996. When I accepted the transfer to the new position, management failed to inform me that the level of the position had not yet been established.
In February 1995, I received a performance rating of 3. In June 1995, my performance was reduced to a "developmental 2" level. Hayward told me I made frequent errors and that my productivity was lower than that of my co-workers. This conflicted with information I had been given by the underwriter, who told me that I had the least errors and good productivity. Hayward had complimented my work as recently as May 1995. Hayward and Davis told me that the job was "beyond my scope" and suggested daily and weekly reviews of my work. On August 2, 1995, Hayward urged me to look for another position and told me that I was "struggling" in my current position. At a meeting on August 9, 1995, both managers suggested that I look for another job in the bank. Hayward said that if I stayed in the job until November that it would be "bad for me" and she threatened to put more negative documentation on my file.
Since I have worked in MDM, I have been subjected to other differential treatment by my managers, such as:
In March 1995, Davis announced that a co-worker would be the new Institute of Canadian Bankers Coordinator, providing information to other employees about education courses sponsored by the Institute. I had held that responsibility for three years and was completely unaware that I was being replaced.
In February 1995, Hayward deliberately omitted my name from the list of employees to be honoured at the perfect attendance ceremony day even though I had perfect attendance.
In June 1995, I was singled out for a work-basket audit and humiliated in front of my co-workers as Hayward asked for counts and details.
On July 20, 1995, I was given my interim performance review by Davis. It was inaccurate and not complimentary. When I refused to sign the report at the meeting, she became verbally abusive.
On August 15, 1995, I reviewed my personnel file and noticed that electronic mail messages from supervisors praising my performance in the past years and records of my promotion in 1992 were missing.
Between August 9th and the end of October 1995, my work was monitored daily by a co-worker. Other employees were not tracked this closely. In October, when I was given the opportunity to review the tracking file I noticed it tracked only errors and no positive accomplishments. In addition, the file was inaccurate.
On October 27, 1995, I was given another negative performance evaluation by Hayward and Davis. During the meeting, Davis responded to my questions rudely and with a raised voice.
I have been a responsible and productive employee with the respondent for 11 years and have been honoured with the Senior Vice-President's Award twice. My performance has not deteriorated as indicated by my current managers.
I believe that I was singled out for close supervision and given negative performance evaluations because of my national or ethnic origin.
(Canadian Human Rights Commission Complaint Form, Medik Megerdoonian, File Number H33870, pp. 1-2)
[3] On March 12, 2003, an investigator designated by the Commission to investigate Ms. Megerdoonian's complaint issued an "Investigation Report", and in it recommended that a conciliator be appointed to attempt to bring about a settlement of the complaint. The investigator's analysis of the evidence gathered is as follows:
Analysis
114. At issue is whether the complainant was treated adversely because of her national or ethnic origin. The evidence shows that there are grounds to believe that she was. Out of 5 Mortgage Support Specialists, the complainant was the only one in the section whose position was downgraded to a level III as a result of position ratification. Information provided by co-workers in the section is inconsistent with the supervisor's and respondent's position that there were only two employees affected by the ratification of the Mortgage Support Specialists positions. Testimonial as well as documentary evidence in the form of organizational charts and internal telephone directories confirm that there were 4 to 5 employees holding Mortgage Support Specialists positions before ratification.
115. Testimonial evidence supports the complainant's allegation that she was not informed, prior to being transferred to the Mortgage Support Specialist position, that the new position might be ratified at a lower level. There is no evidence to support the respondent's position that the complainant could have returned to her second last position as Advancing Specialist, level IV; in fact, the option of returning to the second last position was not made to Ms. Johnson either. As well, the supervisor's notes of the meeting she and the Regional Director had with the complainant when they informed her of the position ratification, do not mention that this option was made available.
116. Testimonial and documentary evidence supports the complainant's indication that everyone in MDM made mistakes, including co-workers who had been on the job longer than her. Nonetheless, they were offered underwriting positions while the remaining co-workers were offered equivalent level IV positions. The complainant was the only one negatively affected by the lower job ratification.
117. In the case of the complainant, she was repeatedly told that she could not cope with a position consisting of multi-functional skills which, allegedly, she did not possess. Yet, this individual was responsible for two pilot projects which proved successful, she trained numerous employees for several years, wrote manuals, was known for her expertise, was a winner of two Senior Vice President awards, and was commended by President J.J. Quinn for exemplary work performance.
118. Evidence suggests that the complainant was well regarded at work prior to being transferred to MDM. Although a supervisor said he had to follow-up on the complainant's work, he was not able to provide an example. This same supervisor had granted her authorization to advance mortgages up to $250,000 in 1992. Underwriter Gunderson rated the complainant's work in MDM as average to below average; however, in 1992, she had nominated her for an award and praised her work performance.
119. A witness indicated that management would always offer help if someone was overloaded. However, during the month of May 1995, when two co-workers were on holidays, and on training, the complainant was left doing more than her share of work, with no extra help, which required her to stay after hours.
120. While any employee can have immediate access to review his/her personnel file in the presence of management, the complainant needed to have her request specially approved by the Regional Manager and by her supervisor. It is unclear whether it was because the request was made to someone in an acting capacity.
121. Two Caucasians were omitted from the list for Perfect Attendance Day. In the case of the complainant, even though she worked for a different supervisor in 1994, she was still an employee of the Mortgage Corporation. Payroll, being responsible for compiling employees' names for 100% perfect attendance, had the responsibility of carefully looking into her attendance record to decide whether she deserved an award for perfect attendance for 1994.
122. Although the complainant provided examples of how she met her targets in the performance appraisal of October 1995, her explanations were not deemed sufficient to warrant any change of rating or wording. In the appraisal her supervisor of 10 months remarked that she should not pursue other areas within the Bank. In contrast, Ms. Byron, her long-standing supervisor, and Mr. Timmons, the previous Regional Manager, praise her work performance and unhesitatingly vouch for her as a top performer. While one of them did not think that there was racism involved, both indicated in the course of the investigation that her present work situation could not be the result of a work performance issue.
123. Testimonial evidence from other employees of visible minority groups suggests that there was a sense of unfairness and job uncertainty in their work environment. Several of them were dismissed or ended up taking a severance package.
Recommendation
124. It is recommended, pursuant to section 47 of the Canadian Human Rights Act, that a conciliator be appointed to attempt to bring about a settlement of the complaint because the evidence supports that the complainant was adversely treated on several occasions.
[Emphasis Added]
(Canadian Human Rights Commission Investigator's Report, pp. 19-20, paras. 114-124)
[4] In the course of the oral hearing of the present application, Ms. Megerdoonian argued that she had been the subject of "subtle" discrimination, and referred to the Human Rights Tribunal decision of Grover and the Human Rights Commission and National Research Council of Canada (T.D. 12/92, Decision rendered on August 21, 1992) to show that this type of conduct has been recognized as discrimination. I believe it is fair to say that in the Investigator's Report, while not specifically stated, a finding was made on circumstantial evidence that subtle discrimination on the ground of ethnic origin did occur during Ms. Megerdoonian's employment with CIBC.
[5] The Investigator's Report was submitted to the parties for comment. Both Ms. Megerdoonian and CIBC filed lengthy submissions in response to it and each other. In its submission, CIBC adamantly objected to the investigator's findings as follows:
Casual connection between "unfair treatment" and prohibited grounds
The complainant outlined several areas of alleged differential treatment accorded to the complainant but did not identify any evidence of discrimination on a prohibited ground of discrimination. Moreover, the investigation did not identify any credible evidence that the complainant had been subjected to discrimination on the basis of national or ethnic origin.
In the present case, the evidence reveals that the workplace was very ethnically diverse (see paragraph 4 of the Report), although this fact is not considered by the investigator when analyzing the evidence to determine whether or not there was any discrimination. In addition, in at least two of the incidents relied upon by the complainant, the evidence reveals that the complainant was treated in the same manner as Caucasian employees and very reasonable explanations for the incidents were given by CIBC. CIBC submits that the evidence reveals that these allegations are unfounded.
The other major area of the Complaint related to the performance appraisals conducted by CIBC in the period from June through October, 1995. CIBC submits that a review of the evidence in totality supports the management's view of the complainant's performance was conducted in good faith. Whether or not the investigator was prepared to accept the accuracy of management's assessment of the complainant's performance, there is no credible evidence of any discrimination under the Canadian Human Rights Act (the "Act").
(In the Matter of Medik Megerdoonian, File Number H33870, CIBC's Response to Investigation Report, March 12, 2003, p. 2)
[6] In the result, the Commission did not follow the recommendation in the Investigator's Report, but, instead, decided to dismiss Ms. Megerdoonian's complaint. By letter dated April 1, 2003, the Secretary of the Commission notified Ms. Megerdoonian of the Commission's decision, the pertinent portion of which reads as follows:
Before rendering its decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the reports. After examining this information, the Commission decided, pursuant to sub-paragraph 44(3)(b)(I) of the Canadian Human Rights Act to dismiss the complaint (H33870) because having regard to all of the circumstances, an enquiry by a tribunal is not warranted.
(Affidavit of Medik Megerdoonian, dated December 19, 2003, Exhibit H)
B. Relevant legislative provisions
[7] Section 44(3)(b)(i) of the Act reads as follows:
| Report
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
Action on receipt of report
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
Notice
(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
[Emphasis added] |
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Rapport
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
Suite à donner au rapport
(2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
Idem
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
Avis
(4) Après réception du rapport, la Commission :
a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). |
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C. Standard of review
[8] It is clear that considerable deference must be accorded to the Commission's exercise of discretion under s.44 of the Act. As indicated by the Federal Court of Appeal in Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.) at paras. 13 and 15, the standard of judicial review for the exercise of discretion provided in s.44(3)(b)(i) to dismiss a complaint, instead of appointing a conciliator, is that of reasonableness:
[13] This Court has on various occasions noted the deference which should be shown to the Commission in respect of its decisions, after receipt of an Investigation Report, as to whether to dismiss the complaint or refer it to a tribunal. For example, it was stated in Bell Canada v. Communications, Energy and Paperworkers Union of Canada ([1999] 1 F.C. 113 (C.A.)):
Exercise of discretion
[38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 42 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
More recently this Court in Zundel v. Attorney General of Canada et al ((2000) 267 N.R. 92 at para. 5) endorsed a Trial Division decision ([1999] 4 F.C. 289, at paras. 46-49) that the standard of judicial review of a decision of the Commission under section 44, to refer a matter after investigation to a tribunal, should be that of a determination as to whether there was a rational basis for the decision. In Bradley v. Attorney General of Canada ((1999) 238 N.R. 76) this Court held that the standard of review of a decision taken by the Commission under subsection 44(3) of the Act to dismiss a complaint instead of appointing a conciliator was that of reasonableness. I respectfully concur with my colleagues in this respect and accept that the standard of review for the exercise of the discretion provided in subparagraph 44(3)(b)(I) to dismiss a complaint is that of reasonableness. This is the standard to be applied in the present case. For the reasons which follow, I disagree, with respect, with the applications judge who characterized the decision here of the Commission to dismiss as being a refusal to consider the complaint because it was barred by the Memorandum of Agreement of November, 1995. In his view such agreement was invalid as contrary to public policy, being a "contracting out" of the Canadian Human Rights Act, and the Commission therefore erred in law in giving it any effect. As will be explained, I believe the Commission did have regard to the complaint and therefore we must see if its resulting decision that further action was not warranted had a rational basis.
...
[15] In the absence of clear reasons, however, the Court must look at the material before the Commission and the result reached and see if there is a rational basis for that result. In the present case there was an investigation by a Commission Investigator and a report to the Commission with a recommendation. Attached to that report were submissions made by the parties in respect of the contents of the report, which they had the opportunity to review before it was submitted to the Commission, together with a number of other related documents arising out of the long history of this situation. It will be noted that the Investigator in his recommendations (quoted above at paragraph 7 ) suggested no further proceedings were warranted because "the situation that gave rise to the complaint has been redressed in that a Memorandum of Agreement has been signed . . .". Although the Commission did not adopt the reference to "redress" in its decision it accepted the recommendation. Unless the Court is "to intervene lightly in the decisions of the Commission . . .", a practice which this Court recognized in Bell Canada v. Communications, Energy and Paperworkers Union (supra) was not the intention of Parliament, I do not believe we should set aside the Commission decision just because it is not well expressed.
[9] During oral argument, Ms. Megerdoonian, who was self-represented, voiced the complaint that it was unfair of the Commission to dismiss her complaint without giving reasons. While I can understand her position, given the seriousness with which she holds her complaint, the case law has established that, in circumstances such as those in the present case, there is no obligation on the Commission to provide reasons for the dismissal of a complaint under s.44(3).
[10] In Gardner v. Canada (Attorney General), [2004] F.C. 493, Justice Gibson addressed the question of whether the Commission had failed to observe the principles of procedural fairness by not giving sufficient reasons for a change from the initial investigator's recommendation for conciliation to the Commission's final decision to dismiss the complaints. The facts in Gardiner are similar to those in the present case. In Gardiner, the Commission reviewed two investigator's reports (only one of which was relevant on judicial review), giving the complainant the full opportunity to make submissions in support of her complaints, and to respond to submissions made by the department against which her complaints were made. The relevant investigator's report recommended that the Commission appoint a conciliator. The Commission decided to dismiss the complaints stating simply that "having regard to all the circumstances of the complaints, no further inquiry is warranted". No other reasons were provided, nor had the applicant requested reasons. Justice Gibson concluded at para. 36 as follows:
In the result, I conclude that the Commission did not fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons. I so conclude by reason of the absence of a statutory obligation to provide reasons and also by reason of the Applicant's failure to request reasons following notification of the decision to dismiss her complaints and before commencing this application for judicial review. It follows then that the Commission did not err in a reviewable manner in dismissing the Applicant's complaints, notwithstanding the Applicant's view that, on the evidence before the Commission, it was "plain and obvious" that the Applicant had been discriminated against on the basis of family status and the guarded support for that view expressed in the Investigator's Report.
(See also: Johnson v. Maritime Telegraph and Telephone Co., 2004 F.C. 951 (F.C.T.D.) at paras. 35-37; and Armoyan v. Canada (Attorney General), [2004] F.C. 730 (F.C.T.D.) at paras. 15-18).
[11] I adopt the reasoning of Justice Gibson and find that, in the present case, as in Gardner, the Commission was not under any obligation to provide further reasons.
D. The positions of the parties
[12] Ms. Megerdoonian rejects the Commission's finding and, as her strongest argument, submits that "the Commission exceeded its jurisdiction by not linking the pattern of deliberate and systemic discrimination that thwarted my career and discriminated against me because of ethnic origin (Ms. Megerdoonian's Memorandum of Fact and Law, p. 4, para. 3)."
[13] However, in its argument, CIBC counters as follows:
16. In assessing the reasonableness of the Commission's decision to dismiss the Complaint, we submit it is relevant that neither the Complainant nor the Investigator's Report disclosed any direct evidence of discrimination on the basis of race or ethnic origin. For example, there is no evidence of any racial slurs, inappropriate jokes or other overt racially linked conduct that would normally be associated with a hostile work environment. As a result, Ms. Megerdoonian in the Complaint relied on circumstantial evidence, alleging that she received differential treatment in circumstances where other like employees were treated in a more favourable fashion. While CIBC acknowledges that circumstantial evidence can form the basis of a valid human rights complaint, it is also the case that the Commission, in assessing the validity of such a complaint, must have regard to any explanations provided by the employer that demonstrate that the treatment of the Complaint was not racially or ethnically motivated.
...
22. Most importantly, there is no evidence in the Investigator's Report nor in any of the submissions by Ms. Megerdoonian that her performance appraisal rating was motivated in any way by her race or ethnic origin. Rather, Ms. Megerdoonian's submission cites interpersonal political reasons and expresses the opinion that her supervisor, the individual who provided the performance appraisal, was motivated by her own personal reasons. While CIBC denies there was any improper motivation for the appraisal, the fact that the Complainant asserts that the motivation for her performance appraisal rating was politically motivated rather than racially or ethnically motivated also supports the conclusion that there is a rational basis for a dismissal of the complaint.
23. On the basis of the above, we submit that the Complainant's main piece of circumstantial evidence, being the alleged differentiation of treatment and the coincidence that the Applicant is Iranian, was completely answered by the submissions in response to the Investigator's Report and as a result, the Commission's decision to dismiss the Complaint further cannot be said to have been unreasonable in all of the circumstances.
(Respondent's Memorandum of Fact and Law, pp. 5, 7-8, paras. 16, 22 and 23)
E. Conclusion
[14] From the decision rendered by the Commission as quoted above, it is apparent that, after considering the wealth of evidence on the file, the Commission simply accepted the CIBC's arguments over the recommendation in the Investigator's Report which was supported by Ms. Megerdoonian. I can understand how this could be the result. Given that there is no direct evidence on the record of discrimination on the basis of national or ethnic origin, and given that there is conflicting circumstantial evidence, I find that there was a rational basis for the Commission's decision.
[15] While I know that it will be difficult for Ms. Megerdoonian to accept, I find that there is no way to say the Commission's decision is unreasonable.
ORDER
Accordingly, for the reasons provided, the application is dismissed.
I make no order as to costs.
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1639-03
STYLE OF CAUSE: MEDIK MEGERDOONIAN
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 29, 2004
REASONS FOR ORDER AND ORDER OF: CAMPBELL, J.
APPEARANCES:
MS. MEDIK MEGERDOONIAN for APPLICANT
MR. RANDY KAARDAl for RESPONDENT
SOLICITORS OF RECORD:
Blake, Cassels & Graydon LLP for RESPONDENT
Vancouver, BC