Date: 20000721
Docket: A-992-96
(T-698-95)
CORAM: STRAYER J.A.
ISAAC J.A.
SHARLOW J.A.
B E T W E E N:
BOBBI STADNYK
Appellant
" and "
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION
Respondent
HEARD at Saskatoon, Saskatchewan on Friday, May 26, 2000
JUDGMENT delivered at Ottawa, Ontario on Friday, July 21, 2000
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: ISAAC J.A.
SHARLOW J.A.
Date: 20000721
Docket: A-992-96
(T-698-95)
C O R A M: STRAYER J.A.
ISAAC J.A.
SHARLOW J.A.
B E T W E E N:
BOBBI STADNYK
Appellant
" and "
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
[1] This is an appeal from a decision of Rothstein J., as he then was, as a judge of the Trial Division, in which he dismissed an application for judicial review of a decision of a Review Tribunal under the Canadian Human Rights Act. The Review Tribunal decision under review was an appeal from a Human Rights Tribunal sitting under the same Act, which heard and dismissed a complaint by the appellant that she had been discriminated against by the Canadian Employment and Immigration Commission on the basis of sex in that she had been subjected to differential treatment and harassment in the course of a job interview and had been refused employment on grounds of gender, all as contrary to sections 7 and 14 of the Canadian Human Rights Act.
[2] The relevant sections provide as follows:
| 7. It is a discriminatory practice, directly or indirectly,
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:
|
| 14(1) It is a discriminatory practice . . . |
14(1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait de harceler un individu . . . |
|
|
| to harass an individual on a prohibited ground of discrimination. (2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination. |
(2) Pour l'application du paragraphe (1) et sans qu'en soit limitée la portée générale, le harcèlement sexuel est réputé être un harcèlement fondé sur un motif de distinction illicite. |
Facts
[3] It is important to note the procedural history of this matter because it affects in important ways the issues that are properly before the Federal Court of Appeal at this time.
[4] The appellant first entered the Public Service of Canada in 1981 and was employed by Transport Canada at the Regina airport as a fire fighter. She eventually filed complaints with the Canadian Human Rights Commission and the Public Service Commission alleging sexual harassment and wrongful dismissal. These complaints were substantiated , and she was reinstated in August, 1988 and returned to employment at the Regina airport. She continued to find her work situation intolerable and the Public Service Commission sought to find her another position in the federal Public Service. At that time, in early 1989, the respondent Canada Employment and Immigration Commission ("CEIC") was seeking to fill two positions in Regina classified as IS-2, namely posts as Regional Information Officers. Ms. Susan Hogarth, the Regional Manager of Public Affairs for Saskatchewan at CEIC was asked to interview the appellant as a candidate for one of these posts. The appellant had, during her years of conflict with federal agencies over sexual harassment at the Department of Transport, become well known to the media and, according to the evidence, had initiated various approaches to the media for the public ventilation of her problems with harassment. Shortly before she was to be interviewed by Ms. Hogarth she had been the subject of a further article in the Regina Leader Post by a reporter named Ann Kyle. Ms. Hogarth had read and clipped this article before the interview, which took place on January 25, 1989.
[5] What exactly transpired at the interview was the subject of considerable controversy at the hearing of the appellant's complaint by the Human Rights Tribunal. The Tribunal heard evidence for seven days. In a careful analysis of the evidence, the Tribunal concluded that where there were differences between the appellant's version of the interview, and Ms. Hogarth's version, it believed the latter. In doing so it had the benefit of hearing both participants as witnesses, the evidence of Ms. Hogarth lasting for three days (one day of examination- in-chief and two days of cross-examination). The version of events accepted by the Tribunal, after making its findings of credibility, was generally as follows. The interview took about forty-five minutes. It began with a discussion regarding the position available, in which Ms. Hogarth described the role of an Information Officer and the relationship of an Information Officer with the media. She then discussed the problem of conflict of interest, asserting that an Information Officer's private interest could not conflict with the Department's interests. She referred to the article by Ann Kyle and the problems that could arise if the appellant continued her dealings with the media in a manner to attack her employer while at the same time bearing the responsibility, as an Information Officer, to explain and defend the employer's position in all matters. She pointed out that Ann Kyle was also the Leader Post reporter responsible for covering employment issues concerning the CEIC. She suggested that, given the appellant's well-known position on sexual harassment, there might be those at the CEIC who would try to exploit it with potential new problems of harassment arising.
[6] At this stage of the discussion, which the Tribunal found after hearing all the evidence to have arrived after about 70 per cent of the interview had been completed, Ms. Hogarth posed two questions to the appellant. It is important to quote the actual findings of the Tribunal, the primary fact finder, in the face of conflicting evidence.
| At this point, Ms. Hogarth posited two questions in the area of harassment. Ms. Hogarth indicated that she had experience or knowledge of the two situations. She asked Ms. Stadnyk how she would handle each of the two situations. Ms. Hogarth paraphrased the first question as follows: |
| "You were at the photocopier and an office boy, and I'm very specific in the sense that I used the word 'office boy', comes by and rubs up against you, the 'Xerox body rub'. What would you do?" |
| The Complainant's response was apparently to minimize the incident " to suggest that it was an accident, that the space was not large enough. Ms. Hogarth indicated that such was not the case " this was in fact a case of sexual harassment; it was offensive. The Complainant indicated that she knew the difference between an accident and harassment but she never did provide an answer. |
| The second situation posited was paraphrased by Ms. Hogarth in the following manner: |
| "You have made a presentation that you have worked very hard and long on. It was to members of the management group. One of them, instead of commenting on the presentation, remarks that you have nice legs. What would you do?" |
| The Complainant's response to the second situation was that she could take a joke. She then went on to say that she would talk directly to the individual. |
[7] According to the Tribunal, at this stage Ms. Hogarth still thought that the appellant if hired could be trained to avoid conflicts of interest in dealing with the media. However the appellant then volunteered that she intended to collaborate on a book with a well-known journalist and author, Maggie Siggins, about her experience with sexual harassment in the Public Service. At this point, according to the Tribunal, Ms. Hogarth really came to the conclusion that the appellant did not want the position but wished to maintain her freedom publicly to attack government employment policy.
[8] After discussions between Ms. Hogarth and her superiors in the CEIC the appellant was rejected as a candidate for one of the IS-2 posts.
[9] Some five months later the appellant made a complaint to the Canadian Human Rights Commission as indicated above. The Commission appointed a Tribunal which held its hearing in 1992. At the outset of that hearing, the respondent CEIC conceded that sections 7 and 14 of the Canadian Human Rights Act in referring to "employer" and "employment" included a prospective employer and prospective employment, thus it applied to the conduct of an employer during a job interview. It also conceded that the CEIC would be responsible for harassment committed by its employee and that sexual harassment could occur between members of the same sex. Thus the issue before the Tribunal was essentially whether what transpired during the interview amounted to sexual harassment. This obviously had both a factual and a legal component.
[10] With respect to the factual component, as has been noted above the Tribunal after hearing evidence of the two participants in the interview preferred the version related by Ms. Hogarth. Her explanation of the two questions which proved to be so controversial was that she was seeking in an indirect way to discern how the appellant would react to future situations where she might be faced with sexual harassment at the CEIC. Would she pursue the established remedies within the Public Service for the resolution of such problems, or would she go to the media to make her complaints public? If the latter, Ms. Hogarth considered this a legitimate concern for her employer as potentially creating a conflict of interest between her role as Public Information Officer for the CEIC, and her private interest in pursuing remedies for her own personal grievance. The Tribunal considered arguments put forward on behalf of the appellant that the Conflict of Interest Guidelines of the Public Service, which might inhibit an Information Officer "going public" with such complaints, were themselves unacceptable restraints imposed by the employer on an employee seeking protection from the illicit activity of sexual harassment. It was also argued on behalf of the appellant (whose case at this time was being carried by the Canadian Human Rights Commission) that the Guidelines might even be in conflict with guarantees of freedom of expression under the Canadian Charter of Rights and Freedoms. The Tribunal did not consider that the Charter argument had been properly and adequately put before it (there was apparently among other things, no notice of a constitutional issue served on the attorneys general). Thus the Tribunal did not give much consideration to the Charter issue other than to say that, if the issue were properly raised, the Conflict of Interest Guidelines clearly imposed a reasonable limitation on freedom of expression within section 1 of the Charter. Beyond that, the Guidelines were considered permissible and appropriate and not truly an inhibition on the appellant seeking remedies for sexual harassment within the procedures provided under the Public Service Employment Act and the Canadian Human Rights Act.
[11] The Tribunal addressed the more difficult issue as to the proper test in law for what constitutes sexual harassment. It properly concluded that a complainant need not prove that the respondent intended to harass her. This is well supported in the jurisprudence.1 If intention need not be proved, then is the test for harassment an objective or a subjective one? The Tribunal concluded, and I believe correctly, that the test should be an objective one: it should not, however be the test of the "reasonable man" where the complainant is a woman, but rather the test of a "reasonable woman". In this connection the Tribunal heard evidence of an expert, Professor Alison Heyford, professor of sociology, that men and women see harassment differently and that what to a man may seem to be "normal" interpersonal relations, may be viewed by a woman as threatening or of uncertain implication. The Tribunal relied considerably on a decision of the U.S. Court of Appeals (9th Circuit) in Ellison v. Brady1 which adopted the test of the reasonable woman
| primarily because we believe that a sex-blind reasonable person's standard tends to be male-biased and tends to systematically ignore the experiences of women.1 |
The Tribunal was prepared to go even farther in giving a victim-orientation to the test, at least for the purposes of this case. It said that:
| Even viewing the nature and conduct of the interview from the standard of a reasonable woman who is a previous victim of sexual harassment, I do not find the conduct of the interview, nor the denial of the opportunity offensive. I unequivocably believe that Ms. Stadnyk fits the definition of the "rare hyper-sensitive employee" referred to in the Ellison case. |
In effect the Tribunal concluded that the appellant here, even taking into account that she was a previous victim of harassment and therefore arguably more likely to perceive harassment in the interview situation, was not acting reasonably. The Tribunal concluded on the evidence that the appellant at the time in question was hyper-sensitive and was "emotionally distraught".1 She was thus not perceiving things as a reasonable woman or as a reasonable woman who was a recent victim of harassment.
[12] The Tribunal therefore dismissed the appellant's complaint.
[13] This decision was appealed to a Human Rights Review Tribunal which heard the appeal in January, 1995. The appellant was no longer represented by the Commission but by her own counsel. No new evidence was presented, the case being argued on the basis of the transcripts from the original hearing. There was no dispute about whether the appellant had been denied an employment opportunity: the parties agreed that the only issue was whether or not the appellant was sexually harassed when interviewed by Ms. Hogarth on January 25, 1989. Counsel agreed that on the basis of the jurisprudence1 the role of the Review Tribunal was essentially that of a court of appeal: it was not expected to make its own findings of fact de novo but rather to consider whether the Tribunal had made any palpable or manifest error in its findings of fact or had erred in law. Indeed, according to the Review Tribunal, the parties agreed that the Review Tribunal should accept the findings of fact of the Tribunal but merely see whether the Tribunal had erred in the "inferences and conclusions" drawn from those findings of fact. It appears to me, however, that the Review Tribunal in its disposition of the appeal essentially followed the normal practice of an appeal court in reviewing the findings of fact for palpaple or manifest error.
[14] The Review Tribunal properly did not question credibility assessments made by the Tribunal, as it was the Tribunal which had heard the witnesses. The Review Tribunal could find no manifest error in the Tribunal's findings of fact nor any error in its conclusions of law as to the proper test for determining whether there was sexual harassment. More specifically, it concluded that a public critic of the government could not be an effective and credible Information Officer, that the appellant was not being asked to condone sexual harassment or tolerate it, nor was she potentially being denied recourse to internal procedures available to anyone in the Public Service suffering sexual harassment. It agreed with the Tribunal that anyone who had been as openly critical of the government on any issue, if applying for an Information Officer position requiring dealings with the media, could reasonably expect to be asked about possible conflicts of interest during an interview for that particular employment. The Review Tribunal therefore dismissed the appeal.
[15] The appellant then sought judicial review in the Trial Division. The notice of motion alleged that the Review Tribunal "made a patently unreasonable error of law" by finding no discrimination, and in the alternative that its decision was "in error and incorrect". The appellant represented herself in the hearing before Rothstein J. in November, 1996. I have read the transcript of that hearing and the appellant's arguments ranged over many issues including detailed findings of fact and of credibility. On judicial review, of course, the only issues which were before the Court (there being no issue of natural justice raised in the notice of motion and jurisdiction being raised only indirectly as an alleged consequence of errors of fact) would have been either that the Review Tribunal committed an error of law or made its decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it. Considering that what was under judicial review was the decision of an appellate tribunal with a limited mandate to review only for palpable or manifest error of fact or error of law, the role of the Trial Division on judicial review was limited indeed. In this context, Rothstein J. found that there was evidence upon which the Review Tribunal could decide as it did and that there was no error of law in the test applied for sexual harassment.
[16] The appellant then brought this appeal to the Federal Court of Appeal from the decision of the Trial Division in the judicial review application.
[17] It should be noted that before this Court the appellant, who was on this occasion represented by new counsel, sought to raise new issues. It was contended for the first time that the Tribunal was biassed against the appellant. It was also contended that the decision of the Tribunal infringed the appellant's rights under paragraph 2(b) and sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms. We declined to deal with these issues. With respect to bias, this was not raised in the Review Tribunal nor in the judicial review and there is no adequate factual record to support such a contention even if it were admissible at this late stage. With respect to the Charter issues, these were not seriously argued before the Tribunal and were not raised either before the Review Tribunal or before the Trial Division. Nor has there been any proper notice of a constitutional question. We therefore proceeded to consider the issues appropriate on an appeal from a decision of the Trial Division in a judicial review of an appellate tribunal.
Analysis
[18] It should first be observed that the issues properly before us do not include such questions as: is sexual harassment prohibited by the Canadian Human Rights Act?; is sexual harassment in the Public Service officially sanctioned?; can prospective employees be told that they have to tolerate sexual harassment?; or, is it acceptable in law that departments and agencies of government knowingly tolerate the presence of demonstrated perpetrators of sexual harassment?
[19] While the appellant has sought at times to characterize the issues in this way, it has been apparent ever since the original Tribunal hearing that the essential issue is: what happened during the interview and did those events amount, in law, to sexual harassment? Since the findings of the original Tribunal, the appellant has not properly contested the Tribunal's findings of fact as to what actually happened. Her counsel agreed before the Review Tribunal that the facts were not in dispute, only the inferences that might be drawn from them and the question of law as to whether they amounted to sexual harassment. The notice of motion filed in the Trial Division for judicial review, while alleging that the Review Tribunal had made an error of law or in the alternative that its decision "is in error and incorrect", must be read within the context of section 18.1(4) of the Federal Court Act to invoke only those grounds of judicial review permitted by law and do not authorize the Trial Division to make de novo findings of fact.
[20] This Court in turn, in an appeal from a decision exercising the power of judicial review can only consider whether the Trial Division properly exercised that power as defined by the Federal Court Act. It is now seemingly necessary to dwell at length on the standard of review that the Trial Division should have applied whether the standard of review has been made an issue by the parties or not.1 This standard, in my view cannot be drawn solely from the jurisprudence developed primarily in relation to the exercise by provincial superior courts of common law judicial review in the face of privative clauses, but must also be shaped by the specific powers and responsibilities conferred on the Federal Court by the Federal Court Act which generally (as here) are not restrained by privative clauses. Paragraphs 18.1(4)(c) and (d) gives this Court the right and duty to review decisions where a tribunal has
| (c) erred in law in making a decision or an order . . . |
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit . . . |
| (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it . . . . |
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive or arbitraire ou sans tenir compte des éléments dont il dispose . . . . |
[21] It may be appropriate in defining a standard of judicial review for errors of law to accept that in proper cases the Federal Court should show some deference to the conclusions of law reached by an expert tribunal in the interpretation of its own statute. In relation to judicial review of human rights tribunals, however, a majority in the Supreme Court of Canada has generally taken the view that courts owe little or no deference to determinations of law made by such tribunals.1 Therefore the Trial Division judge here might have erred had he simply deferred to the Review Tribunal's conclusion of law, but I understand his reasons to express his own view on whether at law the conduct complained of could amount to sexual harassment, and in doing so to reach the same conclusion as did the Review Tribunal. In other words, he applied a standard of correctness and this was appropriate.
[22] With respect to review of findings of fact, in my view it is paragraph 18.1 of the Federal Court Act which defines the standard of review exercisable by the Federal Court. It is a relatively narrow basis of review which only permits judicial intervention where this Court concludes that the findings of fact are wrong and that they were made in a perverse or capricious manner or without regard to the material before the Tribunal. As has been pointed out by Hugessen J. in Canadian Pasta Manufacturer's Association v. Aurora Importing & Distributing Ltd. et al,1 this is tantamount to a "patently unreasonable" test espoused elsewhere as a standard of review in matters of fact.
[23] We must then consider whether the learned application judge correctly exercised his powers of judicial review in accordance with these standards.
[24] There has been no coherent argument made to us that the application judge should have found that the Review Tribunal based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[25] The one remaining issue, and it is an important issue, is as to the proper test in law for sexual harassment. I am in full agreement with the Tribunal that, where the complainant is a woman, the test must be at least that of the reasonable woman. I believe that the Tribunal had proper expert evidence before it to confirm that male-female interaction may well be perceived differently by men than by women and that it would be wrong to judge the propriety of such interaction simply on the basis of the so-called "reasonable man", whether that term is taken to include only the male gender or whether it is taken to include people generally. Given this test, which was endorsed in turn by the Review Tribunal and, implicitly, by the Trial Division, there was no basis for the Review Tribunal, the Trial Division, or this Court, to set aside the conclusion of the Tribunal that the events of the interview would not be perceived by a reasonable woman as constituting sexual harassment and therefore did not offend the Canadian Human Rights Act.
[26] I note that the Tribunal went farther, in obiter dicta, by saying that even if the test were that of a reasonable woman recently a victim of harassment, it would still not find the conduct in question here to amount to harassment. I need not specifically decide whether the test should be that of a reasonable woman recently harassed as on these findings of fact it would make no difference in the result.
[27] Having said that, I would join with Rothstein J. in his view that "one might question the necessity of the two hypothetical questions asked by Ms. Hogarth". While it was legitimate for her to inquire as to how the appellant might react, vis-à-vis the media, to future harassment she might encounter in the CEIC, her manner of doing so seems to me maladroit. Nevertheless it is not for the Court to micromanage the conduct of job interviews as long as that conduct falls short of sexual harassment or otherwise prohibited activity.
Disposition
[28] The appeal should therefore be dismissed. In the circumstances no costs should be awarded.
J.A.
__________________
1 See e.g. Action Travail des Femmes v. Canadian National Railway [1987] 1 S.C.R. 1114; Bhinder v. Canadian National Railway Co. [1985] 2 S.C.R. 561.
3 Ibid at 879.
4 See generally Appeal book pages 49-50.
5 See e.g. Cashin v. CBC [1988] 3 F.C. 494 (C.A.).
6 Pushpanathan v. Canada [1998] 1 S.C.R. 982.
7 See e.g. Canada v. Mossop [1993] 1 S.C.R. 554; but cf. L'Heureux-Dubé, "The 'Ebb' and 'Flow' of Administrative Law on the General Question of Law", in Taggart (ed.) The Province of Administrative Law (1997).