Federal Court finds no evidence of bias, unfairness in handling of discrimination complaint
A former bank worker’s appeal of the dismissal of his discrimination complaint has been rejected by the Federal Court – for a second time.
The worker was a financial services representative for the Canadian Imperial Bank of Commerce (CIBC) call centre who was hired in 2014.
After a few months on the job, the worker developed severe throat and vocal cord pain from taking to a high volume of customers on the phone and reciting lengthy legal disclosures to them. In February 2015, the worker submitted a formal request for accommodation to work in any capacity other than on the phone with customers.
CIBC’s corporate physician examined the worker in March and referred him to a specialist, who diagnosed the worker with muscle tension dysphonia. The specialist recommended therapy and frequent breaks at work, along with a suggestion of a full break from being on the phone.
Worker wanted different position
However, the worker wanted to move to a different position, so he felt that CIBC refused his accommodation requests and asked him to go on short-term disability (STD) leave. He also claimed that CIBC cut his pay, denied him bonuses, and threatened discipline for taking medical breaks. He said that he applied for 17 other jobs within CIBC, but the bank refused to employ him in any job but the call centre one.
The worker also said that in September 2015, after he returned from STD, his manager told him that unless the worker joined their “group,” he wouldn’t be successfully in getting accommodation. The manager also said that every male manager was gay or bisexual and that was how young employees with limited qualifications got promoted.
In May 2016, CIBC terminated the worker’s employment. The worker alleged that he was ineligible for employment insurance benefits and couldn’t find another job because CIBC refused to provide a reference and falsified his record of employment, which said that he was dismissed during a probationary period. He also claimed that CIBC did not provide him with severance or retirement pay upon his termination.
The worker filed a human rights complaint in April 2017, alleging that CIBC discriminated against him and terminated his employment on the grounds of his disability and sexual orientation as a heterosexual man.
Investigation of complaint
A human rights officer investigated the complaint, including interviews of the worker and other witnesses and reviewing the documentary record. The officer issued a report in August 2018 recommending that the complaint be dismissed as there was insufficient evidence to warrant further inquiry. The Canadian Human Rights Commission accepted the officer’s findings and dismissed the complaint.
The worker applied for judicial review and the Federal Court found that the commission didn’t conduct a thorough review of the grounds for the complaint. The court returned the matter to the commission for a fresh investigation.
A different human rights officer investigated that complaint and also found that there was insufficient evidence for the complaint to continue. The officer addressed each of the worker’s allegations and found no discrimination or “differentiation of employment.” She also determined that the worker asked for a specific form of accommodation – a different position within CIBC – but did not provide evidence that he needed only that form.
CIBC provided accommodation consistent with the medical information and, when the worker returned for STD, there was no medical evidence of a need for accommodation, the officer concluded.
The officer also found that there was no evidence supporting the allegation that the worker’s sexual orientation was a factor in CIBC’s decisions.
No evidence of bias in investigation
The commission found that the worker had not provided any concrete examples showing that the investigation was biased or unethical, or that the worker explained how he was impacted by any discrimination. It decided that an inquiry wasn’t needed and dismissed the worker’s complaint in March 2022.
The worker applied again for judicial review, contending that the commission violated principles of procedural fairness and natural justice, and the commission was biased against him. He claimed that the officer’s report was unfair and biased and was based on erroneous findings of fact and mixed fact and law.
The worker claimed that the investigating officer tried to “misconstrue” his evidence and acted unethically in her investigation, including revising her notes from his interview to be more in line with CIBC’s version of events. He also said that the officer didn’t consider “important discrimination grounds,” ignored evidence that CIBC refused to offer accommodation unless he joined the “group,” and didn’t look into the falsification of his record of employment and other records.
The court noted that there was a high bar for establishing bias and unethical conduct by a decision-maker as they can impugn the decision-maker’s integrity. In this case, the worker would have to provide clear and cogent reasons to indicated that the investigating human rights officer was predisposed to a certain outcome or failed to investigate properly, the court said.
The court found that the worker did not clearly distinguish examples of bias or procedural unfairness, and the commission’s determination that the officer didn’t show such elements wasn’t bias on its own without proof. The records indicated that the worker was given full opportunity to present his case in the investigating interview and in filing the complaint.
‘Thorough investigation’
The court also found that the investigation was thorough, as “a thorough investigation is one that addressed the fundamental issues raised in a complaint.” The commission was not required to separately address all of the worker’s arguments, which were covered in the officer’s investigation report, the court said.
The court noted that the commission was not required to redo the officer’s investigation or reach its own conclusions on the evidence, and it was entitled to accept the findings of the officer – which showed no bias or unethical conduct.
The court determined that the worker did not establish that the commission’s decision to dismiss his discrimination complaint was unfair, biased, or unreasonable. See Jagadeesh v. Canadian Imperial Bank of Commerce, 2023 FC 1311.
