Date: 20001004
Docket: A-257-00
CORAM: DÉCARY J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
TODD BOURGEOIS
Appellant
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
PAULE GUILLEMETTE
Respondents
Heard at Halifax (Nova Scotia) on Wednesday, September 27, 2000
Judgment delivered at Ottawa (Ontario) on Wednesday, October 04, 2000
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A
Date: 20001004
Docket: A-257-00
CORAM: DÉCARY J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
TODD BOURGEOIS
Appellant
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
PAULE GUILLEMETTE
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The appellant seeks to overturn the decision rendered by Mr. Justice MacKay on March 27, 20001, whereby he dismissed with costs an application for an order to set aside a decision of the Canadian Human Rights Commission ("the Commission") dated June 17, 1999.
[2] The appellant had filed two complaints of sexual harassment against the respondent bank and Ms. Guillemette, a staff member of the bank. The complaints were investigated by an investigator designated pursuant to section 43 of the Canadian Human Rights Act2 ("the Act"). The investigator recommended that the complaint be dismissed. The Commission was satisfied that having regard to all the circumstances of the complaint, an inquiry into the complaint was not warranted and it therefore dismissed the complaint under subparagraph 44(3)(b)(i) of the Act.
[3] MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission. He came to the conclusion that the circumstances were not such as to warrant the intervention of the Court.
[4] I have not been persuaded, despite Mr. Bourgeois' valiant and courteous efforts, that the learned Motions Judge committed any reviewable error.
[5] It is true, as Mr. Bourgeois argues, that the Commission could have conducted a more thorough investigation and could have sought the testimony of other witnesses. But the Commission cannot be expected at the investigation stage, to do the same exercise as that expected at the inquiry stage. It has, as this Court has said recently in Bell Canada v. Communications, Energy and Paperworkers Union of Canada3, "a remarkable degree of latitude when it is performing its screening function".
[6] In the case at bar, the investigator was confronted with conflicting reports as to what had actually happened. He preferred the version brought forward by the Bank and by Ms. Guillemette to that of the appellant. He relied, more particularly, on the evidence of seven trainees who had been in the same group as Mr. Bourgeois. These co-trainees could simply not confirm the version of events given by the appellant. It may well be that a full inquiry would have resulted in a different finding, but that is a risk inherent in any screening process. I understand Mr. Bourgeois' frustrations in having been denied the opportunity of a full inquiry, but in the circumstances the Commission cannot be blamed for not having gone further.
[7] Counsel for the respondents has asked for costs on a solicitor-client basis. I will not accede to that request. Costs on a solicitor-client basis are awarded on an exceptional basis. Mr. Bourgeois who was acting on his own handled the conduct of his appeal with the typical procedural flaws associated with documents prepared by non-lawyers but as far as I can see from the type of written submissions he made and from his behaviour at the hearing, he was respectful of the authority of the Court. There was no indication of any misconduct on his part in the pursuit of his appeal. Furthermore, Mr. Bourgeois has identified some causes of concern with respect to the way his complaint was handled by the Commission which were legitimate, albeit not, in my view, fatal to the validity of the decision of the Commission. He had the right to appeal, he exercised that right and he exercised it in a reasonable way. He did not deserve to be intimidated by a request for costs on a solicitor-client basis.
[8] Counsel has invited the Court, in the alternative and to avoid further proceedings, to award a lump sum in both Divisions of $5,000.00 in lieu of assessed costs, as provided for in Rule 400(4). I am prepared to award a lump sum, but in my view the appropriate amount would be $500.00 in the Trial Division and of $500.00 in the Appeal Division, inclusive of disbursements.
[9] In the end, I have reached the view that the appeal should be dismissed and that the respondents should be awarded $1,000.00 for their costs in the two Divisions of this Court.
"Robert Décary"
J.A.
"I agree
Karen R. Sharlow J.A."
"I agree
Brian Malone J.A."
__________________1 [2000] F.C.J. No. 388 (QL).
2 R.S.C. 1985, c. H-6, as amemded.
3 [1999] 1 F.C. 113 at 137 (C.A.).