Date: 19990709
Docket: T-1478-98
BETWEEN:
GINA ATHWAL
Applicant
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CANADIAN IMPERIAL BANK OF COMMERCE
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ATTORNEY GENERAL OF CANADA
Respondents
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CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
REED, J.:
[1] On June 18, 1998, the Canadian Human Rights Commission dismissed the applicant's complaint that she had been discriminated against by her employer the Canadian Imperial Bank of Commerce ("CIBC") because of her race. The Commission dismissed the applicant's complaint pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. That subsection states that the Commission shall dismiss a complaint if it is satisfied that "having regard to all the circumstances of the complaint, an inquiry, into the complaint is not warranted".
[2] The applicant seeks an order quashing the decision dismissing her complaint on four grounds. These can be described in summary as: the Commission failed to have regard to all the relevant evidence; the Commission failed to disclose to her all the relevant material that had been filed by CIBC; the investigator's report was not thorough and neutral; the Commission was estopped from making some of the findings it made by reason of a decision of a Board of Referees on those same factual issues. The grounds as set out more fully in the applicant's memorandum of fact and law are reproduced below with underlining added:
| (a) that the Commission breached its statutory mandate pursuant to Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act") and breached the principles of natural justice and procedural fairness in failing to have regard to all of the evidence and circumstances of the Applicant's Complaint; |
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| (b) that the Commission breached the principles of natural justice and procedural fairness in failing to disclose to the Applicant all of the material which was before it, thereby denying her the opportunity to respond to or to refute the allegations contained therein; |
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| (c) that the Commission breached the principles of natural justice and procedural fairness in that the Investigator's Report (the "Report") on which it based its decision did not fairly, neutrally, accurately and thoroughly summarize the evidence relating to the Complainant, such that the Commission did not make its decision on an adequate and fair basis; and |
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| (d) that the Commission was estopped from concluding that the evidence did not support the Applicant's allegations of harassment, differential treatment and forced resignation on the basis that a Board of Referees of Employment and Immigration Canada ("EIC") had already finally decided these matters in favour of the Applicant. |
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[3] In support of her application to the Court the applicant filed an affidavit that recounts the facts from her perspective and not always in an objective fashion. This affidavit was not evidence before the Commission and the Commission's decision will be reviewed, as it must be, on the basis of the evidence that was before it and the evidence respecting the procedure that it followed.
[4] The role of the Commission in making decisions under subsection 44(3) has been addressed in several cases. In Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at 891, Mr. Justice LaForest described the role:
| The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfils a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899: |
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| The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. [Underlining added.] |
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[5] More recently, in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113, at 136 and 137, the Federal Court of Appeal stated:
| [35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). |
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. . .
| [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 41 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. [Underlining added.] |
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Failing To Have Regard To All The Evidence And Circumstances
[6] The applicant's argument that the Commission failed to consider all the evidence and circumstances of her case has two aspects: (1) all the material she sent to the Commission was not before it when it made its decision; (2) the decision, on its face, contains errors that demonstrate that all the evidence was not considered.
(1) Material Sent To The Commission
[7] The Commission intervened to inform the Court of the procedure that had been followed and to put before the Court the record. The Commission explained that after a complaint has been investigated by a Commission investigator, which involves sending a copy of the complaint to the respondent for comment and conducting such interviews as the investigator considers necessary, the investigator prepares a report. That report contains a recommendation as to what further action should be taken. The report is sent to both the complainant and the responding party for comment. The parties are asked to limit their comments to 10 pages. Any comments received from the parties are reviewed and if new information is contained therein it is cross-disclosed. The material that is put before the Commission, when it considers any given case, includes at least the complaint form, the investigator's report and the submissions thereon received from the parties.
[8] The applicant, in response to the investigator's report respecting her complaint, sent an 11 page memorandum and 37 exhibits, the latter comprising 87 pages. The memorandum was placed in the agenda book that is sent to the Commissioners in advance of the meeting at which decisions are taken. The exhibits were available to them, in the meeting room, at the time they made their decision.
[9] An affidavit describing the Commission's procedure was filed by Christine Gignac and the relevant part is set out in Appendix A to these reasons. That affidavit explains that the Commission usually meets once a month, except in January, July and August. Agenda books are sent to the Commissioners two weekends before a given meeting. These agenda books contain the complaints that have been filed that are to be considered at the next meeting, as well as the relevant investigators' reports and any submissions received on those reports from the parties. This was the procedure followed with respect to the applicant's complaint. Also, as noted, while the exhibits to her submissions were not included in the agenda book, the Commissioners were advised that they would be available at the meeting.
[10] Ms. Athwal's complaint had been placed before the Commission on a previous occasion to that which is the subject of the present review. On that occasion, in May 1998, relevant documents had not been included as part of the record placed before the Commissioners. The June decision was thus a redetermination of the complaint. The opening paragraphs of the first page of the material placed before the Commissioners reads:
| Commission Members will recall that this case was presented to the Commission at its May 1998 meeting. The case is being returned to the Commission as some documents were missing. |
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| All of the materials for presentation in May including the previous cover note are included in the Agenda Book. As was the case in May, the 37 "Exhibits" totalling 87 pages, which accompanied the complainant's undated 11 page submission, is not included in the Agenda Book but will be available to Commission Members at the meeting. |
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[11] The applicant cites Re Munro (1993), 105 D.L.R. (4th) 342 at 351 (Sask. C.A.) as support for her position that all the material she had submitted was not before the Commission. The Munro case is quite different from the present case. In that case, the investigating entity, a discipline committee, reported to the executive of a Teacher's Federation, recommending that Mr. Munro's teaching certificate be suspended for five years. The legislation that prescribed the relevant procedure1 directed that the discipline committee submit a written report of its findings and recommendation to the executive, "together with minutes of the proceedings before the committee and [...] the evidence adduced and all exhibits produced or copies thereof." A copy of the discipline committee's report was not sent to Mr. Munro, nor was he given an opportunity to comment on it. In addition, copies of the exhibits and minutes of the proceedings before the disciplinary committee were not put before the executive.
[12] In the present case, there is no statutory requirement comparable to that which existed in the Munro case. There is no statutory requirement that all the material collected by the relevant investigator be placed before the Commissioners. More importantly, however, the material that was sent by the applicant in response to the investigator's report was placed before the Commissioners. Even though all of that material was not in the agenda book (an understandable decision given its size), the Commissioners were told that the part that was not in the book (the exhibits) was available. The fact that the memorandum and the exhibits were in two physically different places does not mean that all the material was not before the Commissioners.
(2) All The Evidence Was Not Considered
[13] The letter sent to the applicant, dated June 18, 1998, gave four reasons for the dismissal of her complaint. The relevant part of the letter reads:
| the evidence does not support the allegations of harassment, differential treatment, and forced resignation; |
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| the evidence indicates that the complainant was warned on several occasions about her performance and about teamwork; |
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| the training program that had been offered to the complainant was deferred because of the need to consider employees affected by a restricting exercise. A white employee had been offered the same program, and the offer to her was withdrawn for the same reason; |
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| the evidence indicates that the complainant had a difficult relationship with her supervisor, but the evidence does not support the complainant's allegation that her race was the reason for this. [Underlining added.] |
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[14] The applicant contends that in rendering its decision: (a) the Commission ignored the evidence, and particularly a decision of a Board of Referees established pursuant to the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended; (b) the Commission misstated the evidence when it said she had been warned on several occasions about her performance and about teamwork when in fact there had been only one such occurrence; (c) the Commission misstated the evidence when it found that another, white employee, had been withdrawn from the training program "for the same reason", when the reasons were different; (d) the Commission ignored the evidence when it found she had not been subjected to harassment because of her race when there was evidence that she was treated differently and subjected to harassing behaviour.
(a) Board of Referees' Decision
[15] I will consider the relevance of the Board of Referees' decision later.
(b) Performance Appraisals and Teamwork
[16] With respect to the allegation that the Commission erred when it stated that the applicant had been warned on several occasions about her performance and about teamwork, when there had been only one such occasion, the record discloses more than one occasion. Aspects of her performance including teamwork were mentioned in the written documentation extending her probationary period for an additional three months in June of 1991, as noted in the investigator's report. Aspects of her performance including behaviour, while not specifically described as a lack of teamwork but which in substance was such, were detailed in her performance appraisal of November of 1991, by her immediate supervisor, and in February of 1992, by the district manager who reviewed that appraisal report. The applicant's performance was evaluated as being at level 3, on a scale of 1-5.
[17] The applicant received a letter of reprimand in April 1992, as described in the investigator's report, because of work not completed. She describes it as being because filing, not her responsibility, was not completed. The reprimand was more serious than that; it involved, for example, unprocessed RRSPs and delayed processing of VISA cards.
[18] At the same time, she is continually commended by her immediate supervisor and the district manager on her sales performance. It is other aspects of the job that are identified as being in need of improvement. The applicant's 1992 performance appraisal identified areas in which she performed well, as well as those that needed improvement. In December 1992, the district manager, in reviewing the November 1992 appraisal, complimented the applicant on her performance during the November 1991 to October 1992 period, and particularly on the efforts that had been made with respect to teamwork: "a truly successful year which saw unwavering focus on relationship selling and teamwork".
[19] Thus, the Commission is right when it says that on more than one occasion the applicant was warned about her performance and teamwork. The applicant is also right, however, when she says no mention was made of the favourable comments found in her performance appraisals and the comments on her last performance appraisal before she left her employment. She was on that occasion given a grade 4 appraisal.
(c) Another Employee Removed From Training Program List
[20] With respect to the allegation that the Commission erred in stating that another "white" employee was removed from the training program for the same reason as the applicant, the evidence shows that the training program was cancelled or deferred as a result of the employer's downsizing and restructuring. There is also evidence, however, that there was a difference between the treatment of the applicant and that of the other employee. The applicant had been chosen for the training program as the result of an open competition; the other employee had been chosen by a different process. Thus, the applicant was eventually put back on the list while the other employee was not. The statement made by the Commission is correct, from one perspective, but the applicant also is correct in saying that there was a difference between herself and the other employee.
(d) Not Harassed Because Of Race
[21] With respect to the allegation that the Commission ignored the evidence when it found the applicant had not been harassed because of her race, it is necessary to keep in mind that even if there was evidence of harassment, differential treatment or forced resignation, unless that treatment occurred by reason of the applicant's race, there is no factual basis to support further inquiry by the Commission.
[22] As I understand the record, the evidence the applicant primarily relied upon to support her claim of discriminatory treatment, apart from her own assertion that such existed, is that of three co-workers: Carole Guthrie Caldron, Trudy Pacholka, and Mary Murdoch. It would appear that these individuals first gave statements in 1995 to support the applicant's claim for unemployment insurance benefits. These statements attest to the existence of an antagonistic relationship between the applicant and her manager.
[23] The Commission investigator's interview notes recording his interview in November 1998 with Carole Guthrie Caldron report that she was not aware that the applicant was complaining about racial discrimination:
| The witness recalled the complainant and stated that they had worked together for about 9 months. Although the witness was aware of the complaint, she did not know what the contents were as she had not seen the complaint form. An overview of the allegations and cntent [sic] is provided. The witness stated that she did not have any questions, and was not aware that the complaint was about racial discrimination. The witness stated that she thought this was about problems with the manager, Ms Clark. The witness stated that she was not aware of an "ethnic problem", but did recall the complainant was trying to get on a training program and she had complained about the training she was receiving within the branch. |
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Ms. Pacholka made a similar statement:
| The witness stated that she was aware of the complaint, but had not seen it. When asked what she knew of it, the witness stated that the complainant was supposed to go on the IBAM training program, but she and the manager of the branch, Ms Clark, did not get along. The witness stated that she thought it was because of a personality clash between the two. |
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And Ms. Murdoch's evidence was similar:
| The witness stated that she met the complainant after the complainant was hired to work at the branch and the witness was also working there. The witness stated they occupied the same position - teller, before the complainant moved on into a sales position. The witness stated she worked at the branch for approximately _________ before leaving. |
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| The witness stated that she was aware the complainant had approached the Commission, but had not seen a copy of the complaint. The witness stated she was aware of this information following telephone conversations with the complainant. When asked what she knew about the situation, the witness stated the complainant thought that she had been treated wrongly and now she was having trouble finding work because she could not get a reference from her last employer. |
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| When asked if the witness was aware of the allegation of racial discrimination, the witness stated that she was not certain it was because of the complainant's national or ethnic origin, as she believed was a personality conflict between the complainant and the manager. |
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[24] Another witness, an Employee Relations Consultant in Calgary who was at the relevant time responsible for the CIBC training program in British Columbia, was interviewed by the investigator. He reported that the issue of racial discrimination was only raised by the applicant after she had trouble obtaining support from CIBC with respect to her claim for unemployment insurance benefits:
| When asked if the witness was aware of any discriminatory issues being raised by the complainant, the witness stated that the discrimination issue never came up while the complainant was employed by the Bank. After the complainants [sic] U.I. was finally approved, she met with the witness and complained about CIBC's lack of support during her appeal for U.I. benefits and said that since she had lost income, she was going to proceed with a Human Rights complaint against the Bank because she felt she was "owed something" by the Bank. This was the first time she alleged any kind of discrimination. |
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| When asked if there was anything he would like to add, the witness stated that he had concerns about the complainant feeling she had been discriminated against. The witness stated that he had thought he and the complainant had had a good relationship, and would have expected her to mention something to him. The witness added that when he heard about the complaint he found it surprising as he was certain she would have mentioned it to him during her employment when they spoke regularly. |
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[25] It was on the basis of this evidence that the investigator made his report to the Commission. After summarizing the evidence given by these witnesses and others, the investigator wrote:
| 38. Evidence does not support the complainant was discriminated against because of her race. Documentation shows that the complainant had raised issues concerning her manager and the treatment she was receiving. The complainant does not raise racial discrimination issues prior to February 1996 at the time she filed her human rights complaint. |
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| 39. Testimony by witnesses reveals that the workplace was represented by numerous visible minority groups, including 2 other women of East Indian descent, and no one witnessed any type of discriminatory actions or comments. Upon assuming her position, the BM began staffing the branch with individuals from various visible minority groups. This was confirmed by the witnesses and the complainant. |
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| 40. Evidence shows that the complainant did not raise the issue of racial discrimination until lodging her Human Rights complaint, almost 3 years after resigning from her position. Similarly, medical concerns were also not expressed by the complainant for over 2 months after her resignation. Evidence shows that the complainant had been warned, verbally and in writing, on several occasions about her performance and the issue of being a team player. The first written warning took place within 3 months of the complainant commencing her position, and at which time her probationary period was extended. The complainant signed in acknowledgement of the warning, but did not adequately respond to these issues. |
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| 41. Evidence and witness statements revealed that the IBAM training program was deferred as a result of a decision at the regional level. A restructuring exercise was underway and the respondent was addressing the needs of affected employees through an internal policy as well as a change in staffing programming for available positions. Evidence shows these changes were explained to the complainant at the time and again following her raising her concerns with senior management. Witness statements confirm the complainant was also explained the option of applying for positions through the open staffing system. The complainant has confirmed that she felt it was of no use to apply for positions through open staffing, as the EC [Employment Continuity] employees would receive preferential consideration as stated in the policy. |
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| Conclusion and Recommendation |
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| 42. As the evidence does not support the allegations the complainant was discriminated against because of her race, it is recommended that the complaint be dismissed. |
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[26] The applicant asserts that her manager harassed her and treated her in a differential manner because the manager was jealous of the applicant who she perceived would shoot up the hierarchy because of her ethnicity. The applicant asserts that the manager made comments describing herself as an "invisible little blond woman". I cannot find, however, in the evidence that was presented to the Commission (the applicant's complaint, the investigator's report and the applicant's response thereto including the 37 exhibits) support for the allegation that the Commission ignored evidence of racial discrimination. Much of what the applicant now alleges was her manager's motivation for what she characterizes as harassment and differential treatment on racial grounds is not borne out by the documents contemporaneous to the events in question, nor by the evidence of her co-workers. The conclusion reached by the Commissioners was open to them on the record.
Failure To Disclose All Of The Material To The Applicant
[27] The applicant asserts that the decision should be set aside because all the material sent by CIBC, in its initial response to the applicant's complaint, was not disclosed to her. While her affidavit does not identify these non-disclosures, her counsel in argument identified them as: (a) the written comments on the back of the extension of her probation letter, dated June 4, 1991 (Tab 1, p. 3 of the CIBC Record); (b) an e-mail from David Smith (CIBC Employer Relations in Vancouver) to Charles Maclean (CIBC Acting Manager of the B.C. and Yukon region), dated July 13, 1995, in which he recounts a telephone conversation with the applicant (Tab 21, CIBC Record); (c) a letter the applicant had written, dated July 16, 1993, to the relevant employment insurance officer in which the applicant enclosed a medical certificate provided by her doctor and asked for a further consideration of her employment insurance benefits claim (Tab 14, CIBC Record); (d) a document entitled "Human Resources Policy Documentation - Open Staffing - July 1993" which CIBC provided as evidence of its policy with respect to how vacant positions were filled by internal applicants (Tab 28, CIBC Record).
[28] The written comments on the back of the extension of probation letter indicate that the applicant had been praised for some aspects of her performance as of that date, asked to improve on others, and that her interest in Independent Business Account Management would be brought to the attention of the relevant personnel staff at CIBC.
[29] The e-mail of July 13, 1995, recounting a telephone conversation with the applicant, reads:
| Gina says that an "umpire" (federal Judge) has directed the matter back to a 3rd UIC Board. We don't have the UIC documentation yet but Gina says the Umpire ordered the board to consider the aspect that she had to work in an antagonistic atmosphere. If the antagonistic atmosphere was NOT primarily the fault of Gina then the Umpire says she should be granted UIC benefits. |
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| Gina is therefore asking us for a letter stating the antagonistic situation was caused by Bank Management. After a long discussion I tactfully advised Gina that I did not feel she had grounds to say she was constructively dismissed and therefore could not provide such a letter. Gina isn't happy about this and said she may have to think about going to Human Rights. She may also see if she first gets satisfaction from the 3rd Board at UIC. |
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[30] The letter written by the applicant to the unemployment insurance agent, dated July 16, 1993, enclosing a medical certificate, is merely a covering letter to that certificate. The Human Resources Policy Document is supporting evidence for CIBC's position that its policy on transfers was to allow all employees to compete for available positions, and not to transfer individuals from one position to another in response to their request. This position of CIBC was well known to the applicant (see infra para. 55).
[31] The applicant cites Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407, and Re Stumbillich and Health Disciplines Board (1984), 12 D.L.R. (4th) 156 (O.C.A.) as support for her argument there was inadequate disclosure to her. The Kane and Stumbillich decisions both relate to a different type of proceedings from that used by the Commission. The decision-making bodies in both cases chose to proceed by way of a hearing at which oral evidence was taken from the complainant, the respondent and others. In both cases the evidence that was not disclosed to the complainant was evidence that was before the decision-maker. Also, it was evidence the non-disclosure of which created the possibility or likelihood of prejudice for the party who did not have access to it. The Radulesco case dealt with a Human Rights Commission decision. The complainant was refused access to the investigator's report recommending dismissal of her complaints until after the Commission made its decision. The Court held that procedural fairness required substantive disclosure to the complainant before a decision is taken.
[32] The disclosure required by the Commission has been described in a number of cases: Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, Syndicat des employés de production du Québec et de l'Acadie (SEPQA) v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, and Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574, affirmed [1996] F.C.J. 385 (C.A.).
[33] In the Mercier decision, at page 12 the comments of Lord Denning in Selvarajan v. Race Relations Board, [1996] 1 All E.R. 12 (C.A.) were noted:
| Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely. |
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And in referring to SEPQA at page 13:
| The complainant, which had that report [the investigator's report] in its hands, was therefore aware of the case it had to meet, and the Commission had not based its decision on documents of which the plaintiff had not been apprised. |
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And in Slattery (FCA) quoting SEPQA:
| ... the Commission had the duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. |
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[34] The documents that were not provided to the applicant as part of the disclosure of CIBC's response to her complaint are peripheral to her complaint. They were not documents that were placed before the Commission. None contain any evidence of racial discrimination, although the July 3, 1995, e-mail indicates that she was apparently using the threat of a Human Rights complaint as leverage to obtain CIBC support for her unemployment insurance claim. I cannot conclude that the applicant's ability to answer CIBC's response was impaired by the fact that she did not receive copies of these documents. Nor was there a possibility or likelihood of prejudice. The applicant was informed of the substance of the evidence that had been filed in response to her complaint and thus the requirement set out in the jurisprudence was met.
Neutrality And Thoroughness Of The Investigator's Report
[35] I turn, then, to the assertion that the investigator's report was neither thorough, nor neutral and this taints the Commission's decision because the Commission relied upon that report in making its decision. The need for a thorough and neutral investigation is set out in Slattery, supra, and reiterated in Boahene-Agbo v. Canada (Canadian Human Rights Commission), [1994] F.C.J. 1611, (T-101-94, October 31, 1994). The applicant also contends that there is great need for an investigation report that accurately summarizes the evidence because the Commission dealt with a large number of cases at one time (more than 60 over the two day period).
[36] The applicant identifies the following examples of lack of neutrality in the Report: (a) the report states that the middle finger raising incident was jocular, when it was not; (b) the report refers to Ms. Clark's evidence that she did not call ICBC to check up on the applicant but not to that of co-workers who specifically recalled this incident; (c) one of the witnesses the investigator interviewed corrected the investigator's description of the evidence she had given; (d) the report refers to "problems" the applicant was having with her work performance and that she had been warned about not being a team player but ignores the extensive evidence demonstrating her exemplary performance, including an "unwavering focus on [...] teamwork"; (e) the investigator noted that the allegation of racial discrimination was not raised until February 1996, when the applicant's complaint with the Commission was filed, when she submitted evidence that she met with Ms. Doty on two separate occasions to discuss racial comments and harassment on the part of Ms. Clark, and that she also met with two CIBC senior members of management to discuss harassment that she believed to be based on race; (f) the report stated that the applicant "looked down on her colleagues who did not have a university education" but ignored the evidence of her colleagues to the contrary.
a) Middle Finger Raising Incident
[37] The investigator's report states that the applicant's supervisor, Deborah Clark, intended the middle finger raising gesture to be jocular; it does not say that it was jocular or that all the applicant's co-workers perceived it to be such. The statement insofar as it purports only to report what Ms. Clark stated was her intention is accurate. The report's recitation in the sentences that follow, that Ms. Clark subsequently apologized to the applicant both privately and publicly, indicates to a reader that even if the gesture may have been intended to be jocular, it was not perceived by either the applicant or others as such. The report does not include reference to the reactions of those co-workers who considered the gesture not to be funny.
b) Telephone Call To ICBC
[38] The evidence concerning the alleged call by Ms. Clark to ICBC is conflicting. The report sets out both the applicant's version of that incident, as well as that of Ms. Clark, and the results of a phone call made to ICBC seeking information on how such an incoming telephone call would be dealt with. The investigator's report reads:
| 11. The complainant alleges that the BM telephoned her at the Insurance Corporation of British Columbia (ICBC) office during a claims inspection, and asked the complainant to return to a staff meeting. The BM denies making a telephone call to that office, stating she would not know which ICBC branch the complainant would be at first of all. The respondent adds that an ICBC representative has stated that when an adjustor is conducting an interview, telephone calls are directed through the receptionist who screens the calls. The complainant states that the adjustor has advised her that calls are discouraged, but insistent individuals are transferred to the adjustor they are calling. |
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[39] The statements of the three co-workers who gave evidence concerning the telephone call is not referred to by the investigator (see Appendix B for the relevant texts). At the same time, it is not clear to what extent the evidence of those co-workers arises as a result of them having been told by the applicant that the telephone call occurred, as opposed to the telephone conversation having been overheard directly by the co-workers. The investigator, however, does not say that the call was not made, he simply sets out the positions of both the applicant and the respondent as well as the results of the call to ICBC.
c) Correction Of Investigator's Report
[40] With respect to the correction of the investigator's report, the correction reads as follows:
| Mr. Raymond asked me whether Debra corrected anyone else. I said that I remembered Debra correcting another employee Kathryn I did not state it the way it's represented in point 19. His questioning was regarding Debra reprimanding any other employee. I said Kathy made mistakes - I did not say Gina made mistakes. ... |
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[41] The relevant portion of Point 19 of the Report reads:
| ... The BM also issued a letter of reprimand warning the complainant that she must complete the paper work in a timely manner. A witness stated that she could recall another employee who was making numerous mistakes and was told by the BM to correct them and to do better. |
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d) Performance Appraisals
[42] The evidence concerning the applicant's performance appraisals has been dealt with above. The performance was not as "exemplary" as the applicant now asserts. It was mixed; her performance in some areas was evaluated very favourably, while performance in other areas was not as favourable. The investigator's report does not focus on the positive aspects.
e) Date Of First Reference To Racial Discrimination
[43] The statement that the applicant did not raise allegations of racial discrimination until rather late in the day is supported by the evidence, as appears from the description below of her tussle with the Unemployment Insurance Commission. Her assertions that discussions took place with Ms. Doty and other senior CIBC personnel is contradicted by those people. They state that no such allegation was ever raised. The applicant, of course, is correct in saying that there is documentary evidence at least as of July 1995 that she was contemplating a Human Rights complaint. This occurred in her conversation with Charles Maclean, see supra, para. 29. The date of the filing of her complaint with the Commission, February 1996, was not the first occasion on which she had raised this issue.
f) Attitude To Colleagues
[44] Her assertion that the report lacks neutrality because it cites evidence that she "looked down on her colleagues who did not have a university education" when there was evidence to the contrary from those with whom she worked, has to be evaluated in the light of her own statements to the Unemployment Insurance Commission (infra, para. 50). Those statements indicate that she viewed herself as being exploited, as working beneath her potential and with co-workers who did not have her level of education. The material before the investigator contained comments from some of those he interviewed that there was a problem with her attitude in this regard. He also had comments from others to the contrary, to which he did not specifically refer.
[45] In a number of instances there is more behind each incident or issue than the investigator reported in his report. The omission of positive comment, however, is not sufficient to establish bias or a lack of neutrality, particularly when none of the omissions provide evidence of race discrimination. As for the applicant's assertion that the Commissioners must have relied exclusively on the investigator's report in coming to their decision, given the number of cases they considered over the two day period; this argument has been addressed elsewhere. I quote from Mr. Justice Teitelbaum's decision in Boahene-Agbo at paragraphs 87-9, in which he dealt with a similar argument and found it to be without merit:
| The evidence indicates that what was sent to Commission members ... did not contain the binder with the 588 pages of documents submitted by the applicant but did contain all of the other material. The applicant's binder was available at the meeting of the members of the Commission for them to look at if they so wished. I have no evidence that the members of the Commission did not look at this material. |
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| I do not accept submission of counsel for the applicant that I can assume that the Commission did not look at these documents because, on the average, each case before the Commission took 1.4 minutes to reach a decision. |
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| The evidence clearly indicates that the Commission, as master of its own procedure, had what is considered the most relevant information before it. |
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The Commissioners are sent the agenda books ahead of time. One can assume that they have reviewed that material before the meeting. I am not prepared to assume that the only time spent considering the material is when they are meeting together.
Estoppel Created By The Board Of Referees Decision?
[46] The applicant argues that the Commission was estopped from concluding that the evidence did not support the applicant's allegation of harassment, differential treatment and forced resignation because a Board of Referees of Employment and Immigration Canada had already decided to the contrary. (In 1993 when the applicant left her employment the relevant legislation was the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended, and the relevant body was the Unemployment Insurance Commission. In 1996, the legislation was amended to become the Employment Insurance Act and the Commission's name was changed to the Employment Insurance Commission.)
[47] I will first set out the relevant facts. This will involve some duplication of what has already been said. The applicant left her employment with CIBC on April 8, 1993. She made a claim for unemployment insurance benefits on April 14, 1993, stating on the relevant form that her reason for leaving her employment was that she had joined CIBC in March of 1991 and applied for and been selected by her employer for a management training program (for commercial banking) but the program had been cancelled: "the program I had been waiting over a year and a half for (at a low salary) was cancelled".
[48] She answered the question on the form "Did you quit your employment due to health reasons?" with a NO.
[49] She explained further with respect to the training program:
| This program and was told in early 1992 that everything was on track and that the program would commence in the next fiscal year (Nov./92). In Nov./92 CIBC started reorganizing it's [sic] commercial banking section and I was told that the program was further put on hold. In March I learned (both from my manager and from the district manager) that this management training program has been cancelled and that it would not re-commence for at least one more year. |
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| I left my position at CIBC as it was very difficult for me to go for interviews - (I was trying to interview at 700am, Saturdays, 500 pm etc. and felt I was missing good opportunities) and also was being exploited by CIBC at my present position (my colleagues just have high school education & experience as tellers only!) |
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[50] Shortly thereafter the applicant's manager at CIBC, Deborah Clark, was contacted by telephone by an unemployment insurance officer for her explanation as to why the applicant quit. The officer's report of the information that was received over the telephone is:
| Employer states clt [claimant] was hired as a teller/banking representative. Clt made repeated requests to move into the Management Training Program and clt was informed she would be a suitable candidate for such a program. |
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| However, clt was not promised the training on a specific timetable, only that when and as soon as possible, training would commence when a position(s) became available. Due to restructuring and downsizing in the organization, no position has yet become available. |
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| Clt was tired of frustration and resigned for this reasons. |
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[51] Since employees who voluntarily leave their employment without just cause are not entitled to employment insurance benefits, the applicant was denied benefits. She then wrote to the Chairman and CEO of CIBC, Mr. Flood, on June 18, 1993. In that letter she stated that Ms. Clark had made inaccurate statements to the Unemployment Insurance Commission and this had made it impossible for the applicant to receive benefits. She also alleged numerous conflicts with Ms. Clark. With respect to the alleged inaccurate statements made by Ms. Clark to the Employment Insurance Commission the applicant wrote:
| I resigned from CIBC in April 1993 because the Independent Business program that I was selected for in fall 1991 had been continuously deferred. As the program continuation appeared too uncertain, I could not continue waiting for it while working under what I considered to be intolerable conditions at my branch. |
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| The following are my comments related to Ms. Clark's statement to Employment and Immigration Canada (exhibit 1): |
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| - I did not make repeated requests to move into the Management Training program. I responded to one posting for Independent Business Account Management trainees (exhibit 2). |
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| - I was informed that I was one of two candidates selected from the BC/Yukon region by Peter Beckford (now Human Resources Consultant - Alberta) and Ann Doty (District Manager) not merely a suitable candidate as stated. |
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| - at different times, I was told by Ms. Clark, Joan Shumka (Human Resources Officer) and most recently by Ms. Doty that there was no program in the foreseeable future. |
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| - upon receiving my resignation, Ms. Clark stated "it is just as well you are leaving because there is no training program". This is contrary to her statement to Employment and Immigration that "when and as soon as possible, training would commence when a position(s) became available." |
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| While it is true I "was tired of waiting" for the training program, I felt I could not continue to work at that branch. In 1992 I made three requests to my District Manager to transfer to any other location and was told by her that because the program might commence at any time, other branches would not consider me as a suitable employee. I also applied directly to a another branch for a lateral move to a temporary position (exhibit 3). More recently, I was told by Ms. Clark that candidates for employment continuity have preferred status over someone in my situation. |
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| In summary, I left CIBC in frustration. I felt disillusioned at the articles presented by head office publications such as "The Way Forward" and felt that your comments filtered down to my level as nothing more than rhetoric and ideological ash. I felt my success at this organization had no correlation to my education, experience, performance and level of customer satisfaction. I endured an intolerable working situation for as long as I possibly could. |
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| I want a CIBC representative to correct the information given to Employment and Immigration Canada and to acknowledge the mismanagement that occurred in my case. I require the unemployment benefits that I am due so that I may locate suitable employment. [Underlining added.] |
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[52] The applicant in her letter to Mr. Flood quoted Ms. Clark's statement out of context. She did not include the words that preceded those she quoted "clt was not promised the training on a specific timetable, only that when and as soon as possible, training would commence when a position(s) became available" (emphasis added). Nor did she quote the sentence that follows: "Due to restructuring and downsizing in the organization, no position has yet become available" (emphasis added). When the whole of what the insurance officer recorded is read, the meaning is not significantly different from the applicant's description of the training program as having been "continuously deferred" or that "there was no program in the foreseeable future."
[53] The applicant subsequently received a reply to her June 18, 1993 letter to Mr. Flood. It was signed by a Mr. Corinaldi and was dated July 15, 1993. The letter stated that both the applicant and Ms. Clark's versions of what had occurred insofar as the deferral or cancellation of the training program was concerned were accurate, the events were being perceived from different points of view. It was pointed out that while the initial decision to offer the training program had been made in good faith, the bank had been faced thereafter with restructuring and downsizing that had meant it would now have a surplus rather than a shortage of employees trained in the relevant area. The letter ended by advising the applicant that CIBC was willing to confirm to the Unemployment Insurance Commission that her version of what had transpired was a reasonable and accurate description of events. The letter made no specific comment on the "clashes" between the applicant and Ms. Clark mentioned by the applicant in her letter, but the applicant was advised to send a copy of her June 18, 1993, letter to the Unemployment Insurance Commission as an explanation of what had occurred. The applicant's June 18, 1993, letter does not allege racial discrimination.
[54] The applicant responded to Mr. Corinaldi's letter by seeking further clarification and in particular she asked: (1) whether the training program had been cancelled or her commencement of it indefinitely deferred; (2) whether there were absolutely no positions available to which she could have been transferred; (3) whether she had just cause for resigning. Mr. Corinaldi's response, dated August 9, 1993, was that: (1) it was more accurate to say the program had been indefinitely deferred rather than cancelled; (2) the bank uses an open staffing policy that requires all positions to be posted for which employees apply and, therefore, individuals are not transferred as a result of requests to move to another position; (3) her frustration at the delays in the training program were understandable but whether this constituted "just cause" for voluntarily leaving was not something about which the bank was in a position to offer an opinion.
[55] The applicant's appeal of her claim for unemployment insurance benefits had been heard and denied on June 24, 1993, the text of the decision is found in Appendix C. Her appeal was reheard by a Board of Referees on March 10, 1994. It was again found that the applicant had voluntarily left her employment without just cause and, therefore, was not entitled to benefits. The applicant appealed this decision to an Umpire. The Umpire's decision is a public document, reported in the same way that decisions by judges are reported. It was rendered on June 12, 1995 and is CUB 28393.
[56] The arguments put before the Umpire by the applicant were that she had "just cause" for leaving her employment under paragraphs 28(4)(d)(h) and (j) of the Unemployment Insurance Act. There was no allegation that the reason for leaving employment was because of discrimination on a prohibited ground set out in the Canadian Human Rights Act.
[57] The relevant provisions of the Unemployment Insurance Act state:
| 28. (1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause. |
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| (4) For the purposes of this section "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the following circumstances, the claimant had no reasonable alternative to leaving the employment: |
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| (a) sexual or other harassment; |
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| (b) obligation to accompany a spouse or dependent child to another residence; |
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| (c) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act; |
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| (d) working conditions that constitute a danger to health on safety; |
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| (e) obligation to care for a child or a member of the immediate family; |
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| (f) reasonable assurance of another employment in the immediate future; |
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| (g) significant modification of terms and conditions respecting wages or salary; |
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| (h) excessive overtime work or refusal to pay for overtime work; |
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| (i) significant changes in work duties; |
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| (j) antagonistic relations between an employee and a supervisor for which the employee is not primarily responsible; |
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| (k) practices of an employer that are contrary to law; |
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| (l) discrimination with regard to employment because of membership in any association, organization or union of workers; |
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| (m) undue pressure by an employer on employees to leave their employment; and |
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| (n) such other reasonable circumstances as are prescribed. [Underlining added.] |
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[58] The applicant now asserts that she did not raise the allegation of discrimination earlier because she needed CIBC's support in order to obtain benefits and thus did not want to offend them. This is not convincing. Her employer had made it clear, it was neither supporting, nor contesting, her benefit claim. (Although, I can understand that had she made the allegation that she left because of racial discrimination, CIBC might have felt it had to participate in the proceedings before the Umpire and the Board of Referees to defend its reputation.)
[59] In any event, the Umpire decided that the applicant's appeal of the Unemployment Insurance Commission's decision should be referred back to another Board of Referees for reconsideration, on the basis of new medical advice the applicant had now obtained, and the evidence that had been submitted concerning the applicant's antagonistic relationship with her immediate supervisor, Deborah Clark.
[60] The Board of Referees, on August 18, 1995, rendered its decision:
| We accept that there was a serious antagonistic relationship between the manager and the appellant; this is borne out by the new facts (Ex. 35.5, 35.6, 35.7 and 36) and also reflected in the medical report. |
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The decision is set out in full in Appendix D.
[61] It is the applicant's argument that this decision operates as an estoppel so that the Commission cannot now find that there was no harassment, differential treatment, or forced resignation of the applicant by CIBC. The decision in Hough v. Brunswick Centres (1997), 28 C.C.E.L. (2d) 36 (Ont. Ct. J.) and Rhandawa v. Everest & Jennings Canadian Ltd (1996), 22 C.C.E.L. (2d) 19 (Ont. Ct. J.) are relied upon. In the first case, a decision by the Unemployment Insurance Commission was found to create issue estoppel with respect to certain issues of fact that had been determined, however, no estoppel was created with respect to the conclusions to be drawn therefrom (the just cause issues raised in the civil action), nor were the parties prevented from adducing evidence to put those facts in context.
[62] In the Randhawa case, issue estoppel was held to exist as a result of a decision of a Board of Referees that had dismissed the employer's appeal of a decision by the Commission to grant the employee unemployment insurance benefits. The employer argued before the Board of Referees that the employee had voluntarily left his employment. The factual issue in dispute was whether the employee had attempted to give notice of his absence from work due to illness in accordance with the employer's instructions. The Board found that he had attempted to do so:
| The Board finds the claimant did not lose his employment because of the alleged offence of not reporting to work. The claimant attempted to follow the steps provided by the employer but was unable to make contact with the correct individual. The employer was unaware of his calls and sent the termination telegraph to a wrong address. The use of the incorrect address as well as the unanswered calls precipitated the firing. Both parties wanted a positive decision but due to the poor communications practised, this did not happen and the claimant lost his job. |
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[63] Mr. Justice Sharpe found that the same factual issue was before him in the wrongful dismissal claim as had been before the Board of Referees:
| While the legal characterization of the issue to be addressed by the Board of Referees is not identical to the issue raised by the pleadings here, it is clearly similar in law. Factually, it is identical, namely did the plaintiff voluntarily leave his job or did he misbehave in failing to notify his employer for the reasons of his absence. |
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Mr. Justice Sharpe held that the employer was precluded from rearguing the same factual issue in the context of the employee's wrongful dismissal claim.
[64] It is appropriate to make some observations on the proceedings before what was the Unemployment Insurance Commission, and is now the Employment Insurance Commission, and Boards of Referees. Judges of this Court are uniquely placed to do so since they are also Umpires under the Employment Insurance Act. When an applicant applies for employment insurance benefits, he or she files the requisite forms and an insurance agent may then investigate the claim. While the applicant may be interviewed in person and asked to write down, or at least approve, a written version of the facts that are being asserted by the applicant, the employer or relevant staff member thereof is likely to be interviewed only by telephone and what appears on the EIC record is the insurance officer's accounting of what was said. The fact finding process is fraught with difficulty.
[65] If the Commission decides that the individual, in its opinion, is not entitled to benefits, that individual may appeal the decision to a Board of Referees. Employers have the opportunity to attend that hearing and participate in that hearing, but often do not, taking the position that the matter in issue is between the applicant and the Commission. The decision given by a Board of Referees can be appealed to an Umpire. Umpires are either judges or deputy-judges of the Federal Court Trial Division. The appeals are closer to being a judicial review of the Board of Referees' decisions than to a full appeal thereof.
[66] While the Hough case seems to indicate that the employer has an interest in these proceedings, the employer's "interest" only arises where the applicant has been paid unemployment insurance benefits by the Commission, and it is subsequently found that those benefits have to be repaid. Wrongful dismissal settlements or awards pursuant to a Court order have several components. One is an amount that is paid by the employer to the ex-employee in lieu of the wages that would have been earned had proper notice been given by the employer to the wrongfully dismissed ex-employee. It is this amount that is relevant to the repayment of unemployment insurance benefits. If benefits were paid for the period of time to which the amount that is now received in lieu of wages applies, both the employer and the ex-employee are liable to the Commission for the repayment. The employer's interest then is to know whether it should pay all of the amount it owes as a result of the successful wrongful dismissal claim to its ex-employee or it should pay part of that amount to the Commission to reimburse the Commission for benefits already paid to the employee. This is not the kind of "interest" that operates to make the employer a party to the Commission's decisions when the employer does not take an active part in those decisions.
[67] As noted, a person who is denied benefits by the Commission can appeal that decision to a Board of Referees. The Commission prepares submissions for the Board setting out why it made the decision that the individual is not entitled to benefits. The individual puts forward his or her position to the contrary. Thus, at this point, the opposing parties are the Commission and the claimant, rather than the employer and the claimant. At the same time, the employer is given notice of the hearing that is to be conducted before the Board of Referees and has the opportunity to appear and participate in that proceeding if it wishes to do so. In the present case the employer, CIBC, did not exercise that option.
[68] I turn then to the circumstances of the present case. The relevant tests for issue estoppel as set out in the Randhawa case, at 935 quoting both Rasanen and the decision to which it refers, Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2) (1966), [1967] 1 A.C. 853 (H.L.) are:
| 1. That the same question has been decided. |
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| 2. That the judicial decision which is said to create the estoppel was final; and, |
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| 3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. |
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[69] In the present case, CIBC was not a party before the Board of Referees. The evidence on which the Board's decision was based came from Ms. Athwal only (this included a revised medical opinion letter from her doctor and I am assuming the statements from her co-workers that subsequently became part of the evidence filed with the Canadian Human Rights Commission). CIBC did not contest her claim for unemployment insurance benefits; it provided no evidence of its own, from its staff members or otherwise; it did not cross-examine or otherwise seek to question, clarify or amplify the evidence put before the Board by Ms. Athwal. The Human Rights Commission investigator, on the other hand, sought evidence from both Ms. Athwal and those who supported her version of the events, as well as evidence from CIBC and its staff members who did not. He had evidence and documentation from both sides. Thus, it was open to him and to the Commission to reach the conclusion that there had been no harassment, differential treatment or forced resignation, because there was different evidence available than had been before the Board of Referees. Furthermore, the Board of Referees did not decide that there had been harassment, differential treatment and forced resignation. Rather it concluded that there was a serious antagonistic relationship between the applicant and her manager such that it constituted a danger to the applicant's health, giving her no reasonable alternative but to leave her employment. The Commission's decision refers to the antagonistic relationship that existed but concludes that it did not arise because of race:
| ... the evidence indicates that the complainant had an antagonistic and stressful relationship with her supervisor, but there is no evidence that her race was the reason for this. |
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I cannot conclude that there is issue estoppel in this case.
Conclusion
[70] I cannot conclude that the Commission failed to have regard to all the material before it and to all of the circumstances of the applicant's complaint. The procedure it followed was appropriate, and in accordance with the jurispurdence. Its decision, in its essential element, that there was a lack of evidence of racial discrimination, is the only one that could have been made on the basis of the record. The applicant was informed of the substance of the CIBC reply to her complaint. The documents of which she did not receive copies were peripheral to her claim. The investigator did select certain parts of the evidence for inclusion in his report and omit others. Such a process is inevitable when anyone summarizes evidence. The selection is one the applicant perceives to be unfair because it contained many references to the evidence that did not support her position, and fewer to the evidence that did. The focus of that report, despite its coloration, however, was on the absence of evidence, apart from the complainant's own rather late in the day assertions, of racial discrimination. The investigator concluded that the "[e]vidence does not support the allegations that the complainant was harassed or treated differently because of her race". This is a conclusion open to the investigator on the basis of the record that was before him. The Board of Referees' decision does not create an issue estoppel insofar as the Commission and the CIBC are concerned. It is only necessary to note that neither was a party to the procedure that led to the Board's decision.
[71] Accordingly, for all the reasons given the applicant's application must be dismissed.
Judge
OTTAWA, ONTARIO
July 9, 1999
A P P E N D I X A
| 1. I am the Analyst in the Access of Information and Privacy Branch to the Canadian Human Rights Commission and as such I have personal knowledge of the matters hereinafter deposed. |
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| 2. The human rights complaint filed by the Applicant was considered by the Canadian Human Rights Commission at its meeting of June 15 and 16, 1998. |
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| 3. With the exception of the months of January, July and August the Commission does meet each month. |
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| 4. It is my understanding of the Commission's procedures that cases are reviewed at various stages by Commission's staff including after the investigation report has been disclosed to the parties to the complaint. Any submissions received from the parties are reviewed to determine whether they contain any new information. When they do they are cross-disclosed. |
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| 5. Pursuant to Commission's general instructions and subject to specific directives from the Chief Commissioner, each month the Anti-Discrimination Branch staff determines which cases are ready to be submitted to the Commission. |
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| 6. The cases are organised in binders on the basis of the ground alleged in the complaint. In general the cases consist of the complaint form, the investigation report and\or the conciliation report, the memorandum of the Director of Compliance to the Commission, the legal opinion of General Counsel, the written submissions of the parties. |
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| 7. The binders are sent two week-ends before the meeting to the Commissioners. |
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| 8. At the Commission's meetings, cases are introduced briefly to the Commissioners by the Director of Compliance. |
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| 9. Invariably, the Investigation Report or the Conciliation Report and\or the memo to the Commission of the Director of Compliance contain(s) one or more proposed resolution(s). |
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| 10. Once a case has been introduced the Chief Commissioner or in his absence the Deputy Chief Commissioner, invites comments from the members in attendance. The discussion that ensues tends to be brief when the Commissioners agree with the proposed resolution(s) whilst it may be fairly long when they disagree with the proposed resolution(s). |
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| 11. After the Commission meetings, it is one of my responsibilities to supervise the preparation of the Commission's record of proceedings and to advise by letter the parties to the complaint of the Commission's decision. |
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| 12. To the best of my recollection, the meeting of the Commission in June of 1998, was conducted in the manner described in this affidavit. |
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| 13. Also, at its meeting on June 15 and 16, 1998, the Canadian Human Rights Commission considered Complaint filed by Gina Athwal ("complainant") against C.I.B.C. ("respondent"). |
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| 14. The material which was before the Commission for its consideration in respect of this complaint consisted of the following: |
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| - Case description: Athwal v. Canadian Imperial Bank of Commerce |
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| - Case description: Athwal v. Canadian Imperial Bank of Commerce |
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| - Complaint form signed by Gina Athwal on February 6, 1996 (W10508) |
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| - Investigation Report signed and dated April 30, 1998 |
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| - Document: Complainant's comments on Investigation Report |
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| - Letter from Joan A. Sale (CIBC) to Ms F. Girard (CHRC) dated April 16, 1998 |
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| 15. I am advised, and do verily believe, that the documents listed in paragraph 14, above, and attached as Exhibit "A" to this my affidavit, were all of the documents placed before the Commissioners for their consideration in coming to a decision in respect of complaint at the Commission meeting in June of 1998. |
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| 16. Also available for the Commissioners were all the following exhibits and documents provided by G. Athwal as described in the case description letter and attached as Exhibit "B" to this my affidavit: |
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| - Letter dated April 21, 1998 from complainant to Françoise Girard (CHRC) |
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| - Letter dated April 27, 1998 from complainant to Françoise Girard (CHRC) |
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| - Exhibit 1: Excerpt from the Bank's response sent by CHRC |
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| - Exhibit 2a: Affidavit of Carol Guthrie (page 1) |
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| - Exhibit 2b: Affidavit of Carol Guthrie (page 2) |
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| - Exhibit 2c: Exhibit A to Carol Guthrie affidavit (page 1) |
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| - Exhibit 2d: Exhibit A to Carol Guthrie affidavit (page 2) |
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| - Exhibit 2e: Exhibit A to Carol Guthrie affidavit (page 3) |
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| - Exhibit 2f: Exhibit A to Carol Guthrie affidavit (page 4) |
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| - Exhibit 2g: Exhibit A to Carol Guthrie affidavit (page 5) |
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| - Exhibit 2h: Exhibit A to Carol Guthrie affidavit (page 6) |
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| - Exhibit 3a: Affidavit of Trudy Pacholko (page 1) |
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| - Exhibit 3b: Affidavit of Trudy Pacholko (page 2) |
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| - Exhibit 3c: Affidavit of Trudy Pacholko (page 3) |
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| - Exhibit 4a: Affidavit of Mary Murdoch (page 1) |
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| - Exhibit 4b: Affidavit of May Murdoch (page 2) |
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| - Exhibit 4c: Affidavit of Mary Murdoch (page 3) |
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| - Exhibit 4d: Affidavit of Mary Murdoch dated August 10, 1995 (page 1) |
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| - Exhibit 4e: Affidavit of Mary Murdoch dated August 10, 1995 (page 2) |
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| - Exhibit 4f: Affidavit of Mary Murdoch dated August 10, 1995 (page 3) |
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| - Exhibit 5a: Letter dated June 18, 1993 from Gina Athwal to Mr. A.L. Flood (page 1) |
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| - Exhibit 5b: Letter dated June 18, 1993 from Gina Athwal to Mr. A.L. Flood (page 2) |
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| - Exhibit 5c: Letter dated June 18, 1993 from Gina Athwal to Mr. A.L. Flood (page 3) |
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| - Exhibit 5d: Letter dated June 18, 1993 from Mr. A.L. Flood (page 4) |
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| - Exhibit 6: Letter dated June 21, 1993 from Mr. A.L. Flood to Gina Athwal |
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| - Exhibit 7: Letter July 15, 1993 from C.H. Corinaldi to Gina Athwal |
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| - Exhibit 8: Letter October 28, 1991 from Gina Athwal to Anne Doty |
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| - Exhibit 9: Medical opinion from Verity Livingstone U.B.C. |
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| - Exhibit 10: Medical opinion dated April 29, 1994 from Verity Livingstone, U.B.C. |
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| - Exhibit 11: Medical opinion dated April 16, 1998 from Verity Livingstone, U.B.C. |
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| - Exhibit 12: Estimate Report on Vehicle Damage |
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| - Exhibit 13a: Application for employment from Gina Athwal (page 1) |
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| - Exhibit 13b: Application for employment from Gina Athwal (page 2) |
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| - Exhibit 14: Curriculum vitae of Gina Athwal |
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| - Exhibit 15: Letter dated April 14, 1998 from CHRC to Gina Athwal |
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| - Exhibit 16a: Employee achievement measure Gina Athwal (page 1) |
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| - Exhibit 16b: Employer achievement measure Gina Athwal (page 2) |
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| - Exhibit 16c: Employee achievement measure Gina Athwal (page 3) |
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| - Exhibit 16d: Employee achievement measure Gina Athwal (page 4) |
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| - Exhibit 16e: Employee achievement measure Gina Athwal (page 5) |
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| - Exhibit 16f: Employee achievement measure Gina Athwal (page 6) |
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| - Exhibit 16g: Employee achievement measure Gina Athwal (page 7) |
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| - Exhibit 16h: Employer achievement measure Gina Athwal (page 8) |
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| - Exhibit 16i: Employee achievement measure Gina Athwal (page 9) |
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| - Exhibit 16j: Employee achievement measure Gina Athwal (page 10) |
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| - Exhibit 16k: Employee achievement measure Gina Athwal (page 11) |
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| - Exhibit 16l: Employee achievement measure Gina Athwal (page 12) |
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| - Exhibit 17: Letter dated December 22, 1995 from Hamish Angus |
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| - Exhibit 18a: Letter dated June 4, 1991 to Gina Athwal extending probationary period (page 1) |
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| - Exhibit 18b: Letter dated June 4, 1991 to Gina Athwal extending probationary period (page 2) |
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| - Exhibit 19a: Circular memoranda dated May 24, 1991 from J.J. Quinn (page 1) |
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| - Exhibit 19b: Circular memoranda dated May 24, 1991 from J.J. Quinn (page 2) |
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| - Exhibit 19c: Independent Business positions questionnaire Gina Athwal |
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| - Exhibit 20: Letter dated July 8, 1991 form Gina Athwal to Anne Doty |
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| - Exhibit 21a: Letter dated July 23, 1991 from M.A.G. Stevenson to Gina Athwal |
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| - Exhibit 21b: Letter dated November 4, 1991 to Peter Beckford from Gina Athwal |
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| - Exhibit 22a: Employee Achievement measure Gina Athwal (page 1) |
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| - Exhibit 22b: Employee Achievement measure Gina Athwal (page 2) |
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| - Exhibit 22c(i): Gina Athwal: Team Report (page 1) |
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| - Exhibit 22c(ii): Gina Athwal: Team Report (page 2) |
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| - Exhibit 22d: Gina Athwal: Team Report (page 3) |
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| - Exhibit 22e: Gina Athwal: Team Report (page 4) |
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| - Exhibit 22f: Letter dated May 19, 1992 from Brenda Horn to Debra Clark |
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| - Exhibit 22g: Letter dated February 28, 1992 from Karen Wudrick to Debra Clark |
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| - Exhibit 22h: Outcome of achievement plan dated November 2, 1992 |
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| - Exhibit 22i: Performance summary dated December 7, 1992 |
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| - Exhibit 22j: Employee's comments dated November 5, 1992 |
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| - Exhibit 23a: Letter dated April 2, 1993 to Harnek S. Mann from C.r. Maclean |
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| - Exhibit 23b: Letter from Harnek S. Mann to C.R. Corinaldi |
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| - Exhibit 23c: Copy of a fax dated April 9, 1998 from Harnek Mann to Gina Athwal (page 1) |
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| - Exhibit 23d: Copy of a fax dated April 9, 1998 from Harnek Mann to Gina Athwal (page 2) |
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| - Exhibit 24: Letter dated October 12, 1992 from Gina Athwal to Gordon Stromberg |
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| - Exhibit 25: Letter dated September 3, 1993 from Charles R. Maclean to Gina Athwal |
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| - Exhibit 26: Excerpt of defense sent to CHRC |
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| - Exhibit 27a: Excerpt of defense sent to CHRC |
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| - Exhibit 27b: Excerpt of defense sent to CHRC |
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| - Exhibit 28a: Communication record Gina Athwal, September 29, 1992 (page 1) |
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| - Exhibit 28b: Communication record Gina Athwal, September 29, 1992 (page 2) |
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| - Exhibit 28c: Communication record gina Athwal, September 29, 1992 (page 3) |
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| - Exhibit 29: Copy of the Globe and Mail, Monday November 14, 1994 |
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| - Exhibit 30: Account Manager |
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| - Exhibit 31a: Board of referees decision dated August 18, 1995 Gina Athwal (page 1) |
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| - Exhibit 31b: Board of referees decision dated August 18, 1995 Gina Athwal (page 2) |
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| - Exhibit 32a: Excerpt from complainant's lawyer's submission |
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| - Exhibit 32b: Excerpt from complainant's lawyer's submission |
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| - Exhibit 32c: Excerpt from complainant's lawyer's submission |
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| - Exhibit 33: Excerpt from complainant's lawyer's submission |
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| - Exhibit 34: Excerpt from complainant's lawyer's submission |
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| - Exhibit 35: Excerpt from complainant's lawyer's submission |
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| - Exhibit 36: Supplementarty Record of Claim Gina Athwal |
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| - Exhibit 37: Letter form Noreen Marshall U.B.C. Human Rights Commission to Gina Athwal |
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A P P E N D I X B
The three statements are:
| I also told Mr. Raymond about an incident with Debra and ICBC when she called Gina there to return to the branch for a weekly meeting. I recall a comment in the background while I was working that Gina will be back. I called her and I'm sure it was Debra. At the end of the meeting someone asked Gina how come she was there they thought she had a car appointment to which Gina replied - she called me at ICBC to return here. |
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. . .
| ... Debra Clark also phoned I.C.B.C. to check out that Gina was there, and then demanded of Gina that she return to the branch to attend a routine weekly meeting. The meeting was almost over by the time Gina returned ... |
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. . .
| In regard to the "ICBC incident", the witness stated that this was an "odd thing". The witness recalled that the branch was having a general meeting, nothing important and Ms Clark telephoned the ICBC to track the complainant down. Ms Clark told the complainant that she wanted her back to the branch for a meeting. The meeting, the witness added, was nothing important or required the complainant to be there. The witness stated that the complainant was upset as she felt she was being tracked down and for no reason. |
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A P P E N D I X C
On June 24, 1993, and again on March 10, 1994, a Board of Referees found that the applicant was not entitled to benefits because she had voluntarily left her job:
| The claimant stated she was forced to leave her job after finding out her management program course had been cancelled. She tried to change jobs within C.I.B.C. but was told her request for a transfer was impacted by the employment continuity program. |
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| The claimant said her health was a major factor for her leave when she did. |
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| The Board must note that the claimant could have requested a medical leave of absence and continue to look for suitable employment. The claimant's physician does not say that there was medical advice given to the claimant to quit her job. |
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| The Board agrees that the claimant has not proven that the conditions at work were so intolerable that she was forced to quit when she did. |
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| The Board concludes the claimant made a personal choice to quit and that just cause has not been proven. |
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A P P E N D I X D
Decision of the Board of Referees, dated August 18, 1995:
UNANIMOUS
Issue: Voluntary Leaving - Act 28, 30.1; Reg. 59.1(1)
The appellant, Gina Athwal attended along with her representative, Ms. Carol Pakkala and the hearing was taped.
The issue as set by the Umpire is "whether her relations with her manager was antagonistic after considering the totality of the evidence in regard thereto, and whether that created a work place condition so severe that it constituted a danger to the claimant's health giving her no reasonable alternative to leaving her employment". (see Umpire's decision on Exhibit 34).
Facts:
Medical information has been submitted (Exhibit 13.1 - 13.2). Stress caused ulcer.
Findings:
The appellant with her representative, Ms. Carol Pakkala appeared presenting Exhibits 35.1 to 35.7 and 36.
The Board asked the appellant a question regarding the negative answer to Q. 8 - block 3C3 (Exhibit 3.1). The Board noted that in Exhibits 3.1, 3.3, 3.4 no mention was made of these antagonistic relationship with the manager. The appellant states categorically that she did not want to leave the CIBC but she had to get out of the Branch because her health was affected. She could have worked anywhere else in the bank system. No Branch transfer was available. The appellant stated that she had been picked for a course; there was resentment because the manager who had been at the bank a number of years had not been chosen for this course and felt slighted because she thought the appellant only got accepted because of her ethnic and visible minority status. Affidavit was submitted (Exhibits 35.5 to 35.7 and 36). The appellant also stated that the manager picked on her continually, would not give her help; made rude gestures and generally 3rode3 her and made her life miserable.
The District Manager was aware of the problem and the affidavits confirm this as to medical reports.
The Board, noting the Umpire's direction, and the new Exhibits submitted confirming the antagonistic attitude of the Branch Manager to the appellant and this caused great stress and resultant health problems (Exhibit 27.5). The appellant's legal representative was concerned that the previous Board did not let the appellant adjourn her hearing to obtain this and other medical evidence.
We accept that there was serious antagonistic relationship between the manager and the appellant; this is borne out by the new facts (Exhibits 35.5, 35.6, 35.7 and 36) and also reflected by the medical report.
Decision: The appeal is allowed.
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1 S. 37(c) of the Teachers' Federation Act , R.S.S. 1978, c. T-7.