Date: 20030416
Dockets: T-2085-01
T-2084-01
Neutral Citation: 2003 FCT 439
Ottawa, Ontario, April 16, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
MANON THERRIAULT
Applicant
and
THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
(THE ASSISTANT DEPUTY MINISTER, LANDS AND TRUST SERVICES)
Respondent
REASONS FOR ORDER AND ORDER
[1] These are two applications for judicial review under section 18.1 of the Federal Court Act of decisions by Warren Johnson, Assistant Deputy Minister (Assistant Deputy Minister) of Lands and Trust Services of the Department of Indian Affairs and Northern Development (DIAND), dated October 26, 2001, dismissing, first, grievance number QUE-00-04, and second, grievance number QUE-00-05 of the applicant.
[2] Because these applications for judicial review stem from the same facts, I will deal with them in parallel, distinguishing between them by using their respective grievance numbers. However, there will be one decision alone with conclusions applying to either of the grievances depending on the circumstances and specific references.
FACTS
[3] In April 1998, the applicant obtained a position of manager, Lands and Resources at the DIAND.
[4] On October 4, 1999, Jean-François Neault, the applicant's immediate supervisor, and Diane Miller, the human resources counsellor in the regional office, informed the applicant that a verbal complaint of harassment had been made against her by Sophie Picard, one of her subordinate employees.
[5] During this meeting, the applicant immediately informed Mr. Neault and Ms. Miller that she considered she was the victim of an improper and vexatious complaint and that she wished to file a formal complaint of harassment against Ms. Picard. The applicant alleges that Ms. Miller replied that she had no right to make such a complaint owing to her status as a manager. Ms. Miller, for her part, contends that she never told her that she could not file a grievance, but that she said it was premature to do so, and that in view of her position the union could not represent her. In any event, Mr. Neault refused to follow up on the applicant's complaint.
[6] The next day, October 5, 1999, the applicant's supervisor informed her that he was cutting any line relationship between her and Ms. Picard.
[7] On October 13, 1999, the DIAND informed the applicant that an harassment grievance had been filed against her by Ms. Picard.
[8] On June 6, 2000, a departmental investigator appointed by the DIAND filed a report concerning 20 allegations of harassment, abuse of authority and racial discrimination against the applicant.
[9] In this detailed investigation report, the departmental investigator concluded that each and every one of the seven allegations of sexual harassment brought against the applicant was unsubstantiated.
[10] In the same report, the departmental investigator concluded that 11 of the 12 allegations of psychological harassment brought against the applicant were unsubstantiated.
[11] Ms. Picard also alleged that the applicant had discriminated on the basis of race. But the departmental investigator concluded that this allegation was unsubstantiated.
[12] The only allegation that the departmental investigator upheld was the one dealing with a comment made by the applicant attacking Ms. Picard's credibility and insulting her.
[13] On June 15, 2000, a copy of the investigation report was delivered to the applicant. As well, Mr. Neault and Ms. Miller informed her that she had seven days in which to read this report and inform them of her comments.
[14] It would appear, from the exchange of emails, that by June 16, 2000, the applicant had informed Mr. Neault of her desire to discuss the situation with a counsellor before doing anything.
[15] On the same date, Ms. Miller summoned the applicant in writing to a meeting, which was to be held on June 21, 2000.
[16] On June 19, 2000, upon her return from a sick leave, the applicant sent an email to Mr. Neault and Ms. Miller saying that she was still awaiting a reply to her request for additional time so that her representative would have sufficient time in which to examine the record and assist her in making her comments on the report.
[17] On June 21, 2000, the date of the meeting, while the applicant was at her workstation and meeting with her supervisor on more than one occasion, he at no time indicated to her whether the meeting was to take place that day notwithstanding her request for a postponement.
[18] On June 22, 2000, Mr. Neault informed the applicant that he accepted the conclusion of the investigation report and considered it final.
[19] On June 29, 2000, Mr. Neault gave the applicant a letter of reprimand.
[20] On July 24, 2000, the applicant filed grievance number QUE-00-04 on the ground that the relevant provisions of the applicable collective agreement (clause 19) and the Treasury Board and DIAND policies and guidelines governing her right to a harassment-free workplace had not been complied with following the filing of a complaint by Ms. Picard, which had proved to be defamatory, improper and vexatious.
[21] By filing this grievance, the applicant asked, on the one hand, that the appropriate disciplinary sanctions be taken in regard to the person(s) at fault, and, on the other hand, that she be granted compensatory damages for the non-economic and financial losses she had suffered.
[22] At the same time, the applicant also filed grievance number QUE-00-05, disputing the disciplinary measure that had been imposed on her on June 29, 2000, i.e. the letter of reprimand.
[23] On November 16, 2000, the DIAND sent the applicant the reply at the first level of the grievance procedure, which concluded by rejecting her grievances.
[24] On March 29, 2001, the DIAND sent the applicant the reply at the second level of the grievance procedure, which likewise concluded by rejecting her grievances.
[25] On October 26, 2001, the DIAND sent the applicant the reply at the third level of the grievance procedure, which concluded with the final rejection of her grievances.
[26] It is the latter reply that is the subject matter of these applications for judicial review.
DECISIONS OF THE ASSISTANT DEPUTY MINISTER
[27] The decisions dated October 26, 1999, are both very brief. The least one can say is that the Assistant Deputy Minister did not get lost in the details, although the investigation report of the departmental investigator is more than 60 pages long. Here are the relevant passages of the decision in relation to grievance QUE-00-04:
[translation]
...
I have reviewed closely all of the documents that you and your representative brought to my attention during the hearing of the grievance. You allege that the provisions pertaining to your right to a harassment-free environment were not complied with following the filing of a complaint that you say is improper and vexatious.
The investigator's report on the harassment complaint/grievance filed by Ms. Sophie Picard revealed that there has been harassment. In the complaint by Ms. Picard, there was nothing in either the process or the content of the investigation to indicate that her complaint was improper or vexatious.
...
[Italics added]
[28] Here are the relevant passages from the decision in relation to grievance QUE-00-05:
[translation]
...
I have examined the various arguments that your representative and you presented to me at the hearing of your grievance at the final level, and I have reached the conclusions that the reprimand was justified in the circumstances.
Consequently, the requested relief cannot be granted to you and you are advised of the dismissal of your grievance.
...
[Italics added]
ISSUE
[29] In dismissing the applicant's grievances, did the Assistant Deputy Minister so err in law or in fact as to warrant the intervention of this Court?
RELEVANT LEGISLATION
[30] In Harassment in the Workplace Policy, offenders' rights are determined as follows:
Respondents have the right:
a) to be informed that a complaint has been filed;
b) to be provided with a written statement of the allegations and be given the opportunity to respond to them;
c) to be accompanied by a person of their choice during interviews related to the complaint;
d) to receive fair treatment; ...
e) ...
[31] In its Appendix C, under the title "Investigation Procedures" and subtitle "Redress Procedure", the Policy states:
First and foremost, employees will discuss harassment complaints with the respondents with the aim of finding mutually agreeable solutions.
If unsuccessful in the preceding discussions, employees should discuss harassment complaints with the appropriate management representative(s) with the aim of solving the problems.
...
[Italics added]
[32] In the [translation] Department Guideline on Conflict Resolution and Prevention of Harassment [the Guideline], the possible conclusions following a formal inquiry are outlined:
[translation]
the complaint is substantiated;
the complaint is substantiated, but both sides were found to have harassed each other;
the complaint is not substantiated;
the complaint is vexatious or was made in bad faith.
[33] The human resources officer then canvasses the appropriate remedies in light of this conclusion. If the complaint is not substantiated, the Guideline states:
[translation]
...
With the exception of those cases in which the complaint has been found to be vexatious or in bad faith, there will be no mention of it in the complaint's file if the complaint is dismissed.
[34] If the complaint is found to be vexatious or in bad faith, the corrective measures:
[translation]
... may be any of the following measures: an oral or written reprimand, a financial penalty, suspension without pay, or, in the most serious cases, dismissal. A copy of the notice of penalty will be sent to the harasser and will be placed in his or her file in the Department's personnel department as in the case of any disciplinary offence. Other corrective measures may be apologies [or] participation in a training session on appropriate workplace conduct. Measures may also be taken to correct any false impression left by the complaint, if the person who was the victim consents.
[35] Document I of the Guideline, entitled [translation] DIAND Standards of Professional Conduct, stipulates:
[translation]
...
When, on occasion, an employee's conduct falls short of acceptable standards, the disciplinary process may come into play. It is the supervisor's responsibility to take prompt action in correcting the problem, while respecting the employee's rights. ...
[Italics added]
ANALYSIS
Applicable standard of review
[36] It is my opinion that in the circumstances the Assistant Deputy Minister should have drawn a conclusion on the facts. Here is a passage from Stadnyk v. Canada (Employment and Immigration Commission), [2000] F.C.J. No. 1225, that may shed some light on the matter:
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,8 this is tantamount to a "patently unreasonable" test espoused elsewhere as a standard of review in matters of fact.
Note 8: (1997), 208 N.R. 329 (F.C.A.).
[37] Consequently, I will analyze the decisions of the Assistant Deputy Minister in light of the patently unreasonable standard of review.
In dismissing the applicant's grievances, did the Assistant Deputy Minister so err in law or in fact as to warrant the intervention of this Court?
Grievance QUE-00-04
[38] In the interests of clarity, I am going to divide the analysis of this question into two parts. First, was the applicant denied the right to a hearing? Second, was the Assistant Deputy Minister justified in concluding that there was nothing in the process or the content of the investigation to indicate that Ms. Picard's complaint was improper or vexatious?
Was the applicant denied the right to a hearing?
[39] The rule audi alteram partem, a Latin maxim which translates as the right to be heard, means that:
[translation]
any person who is likely to be affected by an administrative authority subject to a duty to act fairly must, before that decision is made, be informed of the facts and factors that may be prejudicial to him and have a genuine possibility to present his point of view.
The procedure must provide a means by which the interested person can adequately make all of his submissions within a reasonable time. The right of reply normally includes the possibility of contradicting all of the prejudicial documents and testimony.
- Denis Lemieux, "La nature et la portée du contrôle judiciaire", Collection de droit 2001-2002 (Éditions Yvon Blais Inc.), vol. 7, at pp. 18, 183.
[40] In the instant case, a copy of the investigation report was given to the applicant on June 15, 2000. In an email sent to the applicant, Ms. Miller wrote:
[translation]
...
We effectively gave you seven days in which to provide comments to us on the investigation report. You did not report to the meeting of June 21 and you did not provide us with any comment on the report in your emails. Once this period had expired, Jean-François sent you a memorandum advising you that management accepted the report as final and that steps would be taken in light of the information that was available.
...
[41] In other words, the applicant was informed of the conclusion of the investigation report on June 15. On the same day, she was informed that she had seven days in which to present her point of view concerning the investigation report's conclusion that there had been harassment. A meeting was scheduled for the applicant to be heard on June 21, six days later.
[42] Although the investigation process had extended over more than eight months, it seems the managers were, to say the least, in a hurry to bring this matter to a close.
[43] The uncontradicted testimony of the applicant is that she wanted a postponement of the meeting that had been unilaterally scheduled by the managers and that she received no reply from them.
[44] The exchange of emails between the applicant and Ms. Miller is eloquent concerning the reluctance of the applicant to report to the meeting of June 21, 2000. She wanted to obtain the assistance of a representative, Mr. Walter Walling, who was absent in the days following the tabling of the report and who needed some time to decide whether he would agree to represent her.
[45] In the circumstances, the request for time was completely reasonable and justified, especially because the applicant was on sick leave until June 19, 2000, two days before the date scheduled in the notice.
[46] Moreover, the applicant confirms that as of June 21, 2000, she was at work and met with her supervisor on more than one occasion during the day. No one mentioned to her whether her request for a postponement was accepted or not.
[47] I have no hesitation in concluding that both the decision to accept the conclusions of the investigation report made on June 22, 2000, and the decision to issue a letter of reprimand to the applicant on June 29, 2000, were untimely and unreasonable in the circumstances.
[48] It is clear that the lengthy investigation report containing a detailed analysis of the 20 allegations of harassment against the applicant could readily justify the postponement of the meeting scheduled for June 21, 2000, in order to allow the applicant to take stock of the situation and request advice.
[49] The fact that her supervisor did not take account of the applicant's special situation is a flagrant breach of the policy concerning the rights of parties, particularly paragraphs (b), (c) and (d), which provide:
Respondents have the right:
a) to be informed that a complaint has been filed;
b) to be provided with a written statement of the allegations and be given the opportunity to respond to them;
c) to be accompanied by a person of their choice during interviews related to the complaint;
d) to receive fair treatment; ...
e) ...
[50] In these circumstances, it is clear that the applicant was deprived of her right to a hearing. The failure to consider this factor in the review of the grievance, like the lack of discussion of this question in the reasons for his decision, leads me to conclude that the Assistant Deputy Minister did in fact so err as to generally justify the intervention of this Court.
Was the Assistant Deputy Minister justified in concluding that there was nothing in the process or the content of the investigation to indicate that Ms. Picard's complaint was improper or vexatious?
[51] I understand that in considering one by one the allegations contained in Ms. Picard's complaint, the departmental investigator found that 19 allegations were unsubstantiated, as opposed to improper or vexatious. I do not question the validity of the investigator's findings in any way.
[52] Rather, it is the fact that, in light of the characterization of 19 out of 20 allegations as unsubstantiated, the applicant's supervisor and the Assistant Deputy Minister arrived at a conclusion of harassment based on a single negative finding. Once again, it is not the fact that an allegation of attacking Ms. Picard's credibility and insulting her was accepted that bothers me but rather the fact that Ms. Picard's conduct was considered exempt from any criticism.
[53] How many allegations of sexual and psychological harassment must one make against a person before such conduct is characterized as improper? In view of the prejudicial effect that such accusations can have, not only on an individual but on his or her personal and professional reputation, it seems to me that the Assistant Deputy Minister could have examined Ms. Picard's complaint more closely and determined whether, in his opinion, it could be considered improper and vexatious.
[54] Because the applicant's reputation is directly affected by such allegations, they need to be analyzed exhaustively.
[55] In fact, in Attorney General of Canada v. Lieutenant-Colonel Paul R. Morneault, [2001] 1 F.C. 30, [2000] F.C.J. No. 705, the Court of Appeal gave some thought, inter alia, to the possibility of reviewing the findings of the Commission of Inquiry into deployment of Canadian Forces to Somalia in relation to the alleged misconduct of the respondent. The Court (per Stone J.A.) was of the opinion that given the exceptional importance of the Commission's findings as they affected the respondent's reputation, the Court had to be able to determine the validity of these findings. Stone J.A. stated:
[para. 39] [quoting the Motions Judge] ... In addition, the Commission's findings of individual misconduct against named individuals can have grave consequences for the reputations and careers of those individuals. ...
...
[para. 42] ... I am satisfied that the respondent is directly affected by the findings and that they are amenable to review under section 18.1. The findings are exceptionally important to the respondent because of the impact on his reputation. The Court must be in a position to determine whether, as alleged, the findings are not supported by the evidence.
...
[para. 45] If the findings in issue are supported by some evidence, the respondent could not really complain that the findings may have harmed his reputation. On the other hand, if there was no evidence to support the findings, the potential harm to the respondent's reputation would be significant. ... I am satisfied, however, that a case such as this is indeed reviewable on the ground provided in paragraph 18.1(4)(b) so as to ensure that natural justice has been done and that no unjustified harm is caused to the respondent's reputation.
[56] The Assistant Deputy Minister could at the very least have conducted a more detailed analysis of Ms. Picard's allegations, going over them one by one or referring in some way or other to the evidence filed in the course of the investigation.
[57] It is also important to consider that both Mr. Neault, the applicant's supervisor, and Ms. Miller, the human resources counsellor, had insisted that the applicant not file a grievance at the time she learned of the filing of the grievance by Ms. Picard, on October 4, 1999, although the applicant very much wanted to do so.
[58] In addition to constituting an interference with the applicant's fundamental rights, this (likewise untimely) intervention by Ms. Miller, in the presence of the applicant's immediate superior, was an obvious abuse of authority that may have contributed to tainting the entire process that followed.
[59] We may never know whether the findings of the investigation would have differed if the investigator had had to consider not a single complaint but two, and to conduct his investigation in terms of reciprocal allegations of harassment. Overall, the procedure used to resolve the differences between the applicant and Ms. Picard was tainted. When he was presented with the opportunity, the Assistant Deputy Minister could have attempted to correct this procedural defect and obtain a full picture of the dispute before him. He did not think it appropriate to do so.
[60] I conclude from this that the intervention of this Court is warranted in the circumstances.
[61] The applicant found herself in a situation in which she had to reply to some allegations and defend herself, which is quite different from a situation in which she herself could have submitted some allegations.
[62] The filing of the grievance by the applicant after the tabling of the investigation report should have led the authorities to expand the investigation and to check and recheck whether Ms. Picard's allegations, all but one of them rejected, might have constituted harassment.
[63] The lack of factual analysis by the Assistant Deputy Minister and of addition of new facts or factors irremediably coloured the analysis, which could no longer be fair to the applicant.
[64] I would also like to draw attention to the attitude of the appropriate management representatives or the supervisors of the applicant and Ms. Picard.
[65] It appears, in fact, from the affidavit of Jean-François Neault, that from the middle of December 1998, Ms. Picard wanted to meet with him to discuss the situation between her and the applicant. In mid-January 1999, a lengthy process began, one that has now ended up in this Court.
[66] I find it incredible that such a conflict could not be settled earlier. Would not a more rapid and economical process have been justified?
Grievance QUE-00-05
[67] The respondent moved in this Court to have this application for judicial review struck out on the sole ground that the letter of reprimand in question concerning the applicant had been withdrawn from her file. Consequently, the respondent argues, this application is now moot.
[68] By an order dated February 18, 2003, Mr. Justice Pinard dismissed this motion. His reasons were that the applicant was entitled, if she were right, to be restored to the position she was in prior to the imposition of the disciplinary measure, "a valid right distinct from the right of mere automatic withdrawal from her file of the letter of reprimand after two years".
[69] In fact, the disciplinary measure that was imposed on the applicant was so imposed because of the finding by the departmental investigator that she had, on only one occasion, made remarks that meet the definition of harassment in the Policy.
[70] In view of my conclusion that, on the one hand, the applicant was deprived of her right to a hearing, and on the other hand, the Assistant Deputy Minister failed to consider not only Ms. Picard's conduct throughout this process but also the conduct of the appropriate management representatives or the supervisors, I am of the opinion that the written reprimand was not appropriate in the circumstances.
[71] Although this letter of reprimand no longer appears in the applicant's file, she has the right, as Mr. Justice Pinard held, to be reinstated to the status she had before the imposition of the disciplinary measure. The remedy granted is therefore declaratory in nature.
ORDER
THE COURT ORDERS THAT:
- These applications for judicial review are allowed;
- The respondent shall vacate the disciplinary measures taken against the applicant. The decisions of the Assistant Deputy Minister dated October 26, 2001, dismissing the two grievances QUE-00-04 and QUE-00-05 are set aside;
- The Assistant Deputy Minister shall review the grievance process in file T-2084-01 in light of the present decision, ensuring that an independent investigation is carried out into all the circumstances of the allegations made by Ms. Picard; and guaranteeing the fundamental right of the applicant to be heard and to present her own allegations concerning a possible situation of harassment;
- With costs in one case alone, T-2084-01;
- A copy of this order will be placed in both files, T-2084-01 and T-2085-01, the order and the reasons for this order being applicable to both cases.
"Pierre Blais"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKETS: T-2084-01 and T-2085-01
STYLE: Manon Therriault v. The Department of Indian Affairs and Northern Development (Assistant Deputy Minister, Lands and Trust Services)
PLACE OF HEARING: Québec
DATE OF HEARING: April 9, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: April 16, 2003
APPEARANCES:
Yves Picard FOR THE APPLICANT
Guy-A. Blouin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Picard, Sirard, Advocates FOR THE APPLICANT
Beauport, Quebec
Department of Justice - Canada FOR THE RESPONDENT
Ottawa, Ontario