[1994] 2 F.C. 176
T-3000-92
Lesley Cluff and Canadian Human Rights Commission (Applicants)
v.
Department of Agriculture and Michael Sage (Respondents)
Indexed as: Cluff v. Canada (Department of Agriculture) (T.D.)
Trial Division, Gibson J.—Ottawa, October 28 and December 21, 1993.
Human rights — Application to review Human Rights Tribunal’s decision lacked jurisdiction to hear complaint — Complainant, employed by Department of Agriculture — Organizing conference for Farm Writers’ Association with approval, authorization of superiors — Hosting hospitality suite as part of conference duties — Alleging sexual harassment by senior Agriculture employee, contrary to Canadian Human Rights Act, ss. 7, 14 at hospitality suite after 2:00 a.m. — Tribunal focussing on whether Department having authority or control over organization of conference, whether complainant’s daily duties required her to organize conference in determining alleged harassment not occurring in course of, or in matter related to, employment — Principal issue question of law — Standard of review correctness — No error in Tribunal’s statement of criteria to determine issue — Erred in application of criteria, but Court arriving at same conclusion — Shortly after hospitality suite effectively closed, complainant ceased to be in course of employment or engaged in matters related to employment — Otherwise, intolerable burden on employers of those who travel, attend conferences.
This was an application for judicial review of the decision of a Human Rights Tribunal that it lacked jurisdiction because the alleged sexual harassment did not take place in the course of employment and/or in matters related to the employment of the complainant, and therefore Canadian Human Rights Act, sections 7 and 14 were not violated. Those sections describe discriminatory practices “in the course of employment” and “in matters related to employment” on a prohibited ground of discrimination i.e. sex. The complainant was a term employee with the Communications Branch, Department of Agriculture. With the approval of her supervisor, she had become active in the Eastern Canada Farm Writers’ Association (ECFWA). She was authorized to organize its 1986 annual conference during working hours, provided that work did not interfere with her normal duties, the preparation of radio programmes. The Department paid her registration fee. As part of her organizational duties, the complainant was required to host the hospitality suite. For practical reasons she was to sleep in the bedroom portion of the hospitality suite. The complainant alleges that she was sexually harassed by a senior employee of the Communications Branch of Agriculture Canada after 2:00 a.m. in the suite. The principal issue before the Tribunal was whether the alleged harassment occurred “in the course of employment” or “in matters related to employment”. The Tribunal held that an “employee is in the course of employment when, within the period covered by the employment, he or she is carrying out: (1) activities which he or she might normally or reasonably do or be specifically authorised to do while so employed; (2) activities which fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it; (3) activities in furtherance of duties he or she owes to his or her employer; or (4) activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.” It focussed on whether Agriculture Canada had authority or control over the organization of the conference, and on whether the complainant’s daily duties required her to organize and attend this event.
Held, the application should be dismissed.
The Tribunal lacked jurisdiction on the specific and unique facts herein.
The principal issue was a question of law involving the interpretation and application of the law to the facts. The standard of review was that of correctness, not reasonability. On that basis, there was no error in the statement of the four criteria to be applied. Although the Court reached the same result as did the Tribunal on these unique facts, the Tribunal erred in the application of those criteria to the facts before it, and thus erred in law. The complainant’s activities in relation to the Conference were normal or reasonable adjunct activities from which the Department and the complainant could both benefit. That Agriculture Canada neither controlled nor influenced the ECFWA was of no consequence. The work undertaken by the complainant may fairly and reasonably be said to be incidental to the complainant’s employment in the Department. Although it was doubtful that the activities fell within the third and fourth criteria, that was of no consequence because the criteria were disjunctive. But the Tribunal’s statement that “an employee is considered to have deviated from the course of his … employment when engaged in those activities which are not related to his … employment or are personal in nature” was of critical importance on the facts herein. What transpired after the hospitality suite can reasonably be inferred to have closed, was not related to the complainant’s employment. At some time before 2:00 a.m., and at or shortly after the time the hospitality suite effectively closed, the complainant ceased to be in the course of employment or engaged in matters related to employment. To conclude otherwise would place an intolerable burden of responsibility on employers of those who travel in the course of their employment, and of those who attend conferences on behalf of their employers.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 7, 14.
CASES JUDICIALLY CONSIDERED
APPLIED:
Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 17 C.H.R.R. D/349; 149 N.R. 1.
CONSIDERED:
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303.
APPLICATION for judicial review of the Human Rights Tribunal’s decision (Cluff v. Canada (Department of Agriculture), [1992] C.H.R.D. No. 13 (Q.L.)) that it lacked jurisdiction to hear a complaint of sexual harassment contrary to the Canadian Human Rights Act, sections 7 and 14 because the alleged harassment did not occur in the course of, or in a matter related to, employment. Application dismissed.
COUNSEL:
Margaret Rose Jamieson for applicant, Canadian Human Rights Commission.
Robert P. Hynes for respondent Department of Agriculture.
No one appearing for respondent, Michael Sage.
SOLICITORS:
Canadian Human Rights Commission, Legal Department, for applicant, Canadian Human Rights Commission.
Deputy Attorney General of Canada for respondent, Department of Agriculture.
Low, Murchison, Ottawa, for respondent, Michael Sage.
The following are the reasons for order rendered in English by
Gibson J.:
NATURE OF APPLICATION AND RELIEF REQUESTED
This is an application for judicial review of a decision of a Human Rights Tribunal (the “Tribunal”) number T.D. 13/92, dated November 12, 1992 [Cluff v. Canada (Department of Agriculture), [1992] C.H.R.D. No. 13 (Q.L.)] whereby the Tribunal granted the motion of the respondents herein and ordered the adjournment of the proceedings before it on the basis that the Tribunal lacked jurisdiction to hear the complaints of the applicant Lesley Cluff (the “complainant”).
The relief requested is a writ of mandamus against the Tribunal, presumably directing it to assume jurisdiction in respect of the complaints of the complainant and to find in favour of the complainant on the merits, or in the alternative, an order setting aside the Tribunal’s decision and referring the matter back to it for determination in accordance with such directions as the Court considers appropriate.
GROUNDS FOR THE APPLICATION
The grounds for the application are set out in the originating notice of motion in the following terms:
1. The Human Rights Tribunal erred in refusing to exercise its jurisdiction when it decided that it lacked jurisdiction to hear the complaints as the alleged sexual harassment did not take place “in the course of employment” and/or “in matters related to employment” of the complainant, Lesley Cluff, and consequently sections 7 and 14 of the Canadian Human Rights Act were not violated, and
2. The Human Rights Tribunal erred in law through its incorrect application of the legal principles and its failure to have regard to the totality of the evidence before it by focusing on whether Agriculture Canada had authority or control over the planning and managing of the 1986 Annual Conference of the Eastern Canadian Farm Writers’ Association and whether the daily duties of the complainant, Lesley Cluff, required her to organize and attend the Conference,
3. The Human Rights Tribunal erred in law when it determined that any remedy for violation of sections 7 and 14 that is available under section 53 of the Canadian Human Rights Act applies only to the employer,
4. The Human Rights Tribunal erred in law when it decided that Michael Sage was not liable under sections 7 and 14 of the Canadian Human Rights Act because he was not the employer of Lesley Cluff,
5. The Human Rights Tribunal failed to exercise its jurisdiction when it failed to address the effect of the employment related context of the activities of the alleged harasser, Michael Sage, on a determination of whether the alleged harassment occurred “in the course of employment” and/or “in matters related to employment”.
Sections 2, 7 and 14 of the Canadian Human Rights Act[1] (the “Act”) read as follows:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
…
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
…
14. (1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.
THE FACTS
The complainant was, at all times relevant to this matter, an Information Officer (IS-02 term employee) in the Communications Branch of the Department of Agriculture of the Government of Canada (“Agriculture Canada”). Her immediate supervisor was the Acting Chief of Media Relations for Agriculture Canada. Her specific area of work was the preparation of radio programmes. With the approval and support of her immediate supervisor and others in the Communications Branch, she had become active on the executive of the Eastern Canada Farm Writers Association (ECFWA). She was responsible for the organization of the ECFWA 1986 annual conference (the “Conference”) and was authorized by her supervisors to carry out the organizational responsibilities during her normal working hours at Agriculture Canada so long as that work did not interfere with her normal assigned responsibilities. Her registration fee for the Conference was paid by Agriculture Canada. Since the Conference was held in Ottawa and her place of residence was in the National Capital Region, that was essentially the only expense related to her attendance.
The complainant chaired the Conference which commenced Friday, December 5, 1986. On the evening of that day, there was a buffet dinner in conjunction with the Conference.
Following the buffet dinner which was held in the hotel where the Conference was taking place, the ECFWA had provided for a hospitality suite in the hotel. Part of the complainant’s responsibilities as organizer and chairperson of the Conference involved hosting in the hospitality suite. Since it was anticipated that her duties would keep her at the hotel until late that night and her activities for the next day would start early in the morning, it was arranged that the complainant would stay overnight at the hotel in the bedroom portion of the hospitality suite which was separated from the rest of the suite only by an archway, not by a locking door. This arrangement for the complainant made good sense given the nature of her organizational and chairing responsibilities and given the fact that the cost of the suite was already covered in the arrangements between ECFWA and the hotel.
Activities in the hospitality suite got under way about 9:00 p.m. By sometime not long after midnight, most people had left. By about 2:00 a.m. on the Saturday morning, the complainant found herself alone in the suite with the respondent Sage, who was also an employee in the Communications Branch of Agriculture Canada (IS-05 permanent employee and therefore significantly senior to the complainant) and another male person who was a delegate at the conference from outside the Government of Canada. Since the complainant was to stay overnight in the suite, she was in a difficult position. Between 2:00 a.m. and shortly after 3:00 a.m., the acts of harassment against the complainant on the prohibited ground of sex allegedly took place.
ISSUES AND ANALYSIS
The principal issue before the Tribunal was whether or not the alleged acts of harassment against the complainant on a prohibited ground of discrimination took place “in the course of employment” within the meaning of section 7 of the Act or “in matters related to employment” within the meaning of section 14 of the Act.
The Tribunal stated:
None of the parties involved in this case disputed that the act of alleged sexual harassment occurred during the night of December 5 and 6, 1986 at the hospitality suite arranged during the Annual Conference of the E.C.F.W.A. However, the almost exclusive issue of their disagreement was whether or not the complainant’s activities related to that Conference were part of Lesley Cluff’s employment with the respondent, Agriculture Canada. Therefore, in our view, the respondent’s preliminary motion predominately [sic] involved the question of facts.
I agree with the Tribunal that the principal issue stated above and paraphrased in the quoted paragraph “predominately [sic] involved the question of facts”, that is to say, turns on an interpretation of the very unique fact situation that was before the Tribunal and that I have described above. That is not to say that the principal issue is itself a question of fact.
In Moreno v. Canada (Minister of Employment and Immigration),[2] Robertson J.A., writing for the Court, stated [at pages 311-312]:
A finding of fact has been described as a determination that a phenomenon has happened, is, or will be happening independent of or anterior to any determination as to its legal effects; see L. L. Jaffe, Judicial Control of Administrative Action, Boston: Little, Brown and Company, 1965, at page 548. A question of law has been defined in many ways; see, for example, P.J. Fitzgerald, Salmond on Jurisprudence, 12th ed., London: Sweet & Maxwell, 1966, at page 10. Perhaps Professor Wade best describes the basis on which questions of law are readily distinguishable:
Questions of law must be distinguished from questions of fact, but this has been one of the situations where the rules have taken different forms under judicial manipulation.
…
The simpler and more logical doctrine has been recognised in many judgments. This is that matters of fact are the primary facts of the particular case which have to be established before the law can be applied, the facts which are observed by the witnesses and proved by testimony , to which should be added any facts of common knowledge of which the court will take notice without proof. Whether these facts, once established, satisfy some legal definition or requirement must be a question of law, for the question then is how to interpret and apply the law to those established facts. [See: Wade, Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988), at pp. 938-939].
On the basis of the foregoing authority, I conclude that the principal issue is a question of law involving as it does the interpretation and application of the law to the facts and allegations that were before the Tribunal and that are now before me.
Having reached the conclusion that the principal question is a question of law, the following quotation from the reasons of La Forest J. in Canada (Attorney General) v. Mossop[3] succinctly states the standard of review in this matter:
The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not a standard of reasonability.
In reviewing the decision of the Tribunal herein “on the basis of correctness”, the following extract from the reasons of La Forest J. in Robichaud v. Canada (Treasury Board)[4] is generally instructive:
The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by discriminatory practices based on certain prohibited grounds of discrimination, including discrimination of the ground of sex. As McIntyre J., speaking for this Court, recently explained in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, the Act must be so interpreted as to advance the broad policy considerations underlying it. That task should not be approached in a niggardly fashion but in a manner befitting the special nature of the legislation, which he described as “not quite constitutional”; see also Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, per Lamer J., at pp. 157-58. By this expression, it is not suggested, of course, that the Act is somehow entrenched but rather that it incorporates certain basic goals of our society. More recently still, Dickson C. J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) (the Action Travail des Femmes case), [1987] 1 S.C.R. 1114, emphasized that the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects.
It is worth repeating that by its very words, the Act (s. 2) seeks “to give effect” to the principle of equal opportunity for individuals by eradicating invidious discrimination. It is not primarily aimed at punishing those who discriminate. McIntyre J. puts the same thought in these words in O’Malley at p. 547
The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant.
Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.
In terms more specifically applicable to this matter, La Forest J. goes on, at page 92 of Robichaud to state:
It would appear more sensible and more consonant with the purpose of the Act to interpret the phrase “in the course of employment” as meaning work- or job-related, especially when that phrase is prefaced by the words “directly or indirectly”. Interestingly, in adding “physical handicap” as a prohibited ground of discrimination in the workplace (s. 3), the phrase used is “in matters related to employment”.
Any doubt that might exist on the point is completely removed by the nature of the remedies provided to effect the principles and policies set forth in the Act. This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the “almost constitutional” nature of the rights protected.
Against the authority of Robichaud, the Tribunal established for itself the following criteria to determine whether or not the alleged act or acts of sexual harassment took place in the course of employment (and, presumably, in matters related to employment) of the complainant:
An employee is in the course of employment when, within the period covered by the employment, he or she is carrying out:
(1) activities which he or she might normally or reasonably do or be specifically authorised to do while so employed;
(2) activities which fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it;
(3) activities in furtherance of duties he or she owes to his or her employer; or
(4) activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.
An employee is still in the course of employment when he or she is carrying out intentionally or unintentionally, authorised or unauthorised, with or without the approval of his or her employer, activities which are discriminatory under the CHRA and are in some way related or associated with the employment. However, an employee is considered to have deviated from the course of his or her employment when engaged in those activities which are not related to his or her employment or are personal in nature.
Against a standard of review of correctness, I find no error whatsoever in this statement of the criteria to be applied. However, while I reach the same result on the unique facts of this matter as the Tribunal reached, I arrive at that result for different reasons. I conclude that the Tribunal erred in applying the foregoing criteria to the facts before it and thus erred in law in determining whether the activities, generally speaking, of the complainant in relation to the organization and chairing of the ECFWA Conference were in the course of her employment or were in matters related to her employment.
The four numbered criteria are disjunctive, not conjunctive. Against the first criterion, I conclude that, generally speaking, the activities undertaken by the complainant in relation to the Conference were what she might normally or reasonably do or be authorized to do while employed in the Communications Branch of Agriculture Canada. It is true that such activities were not at the core of her role in the Communications Branch, but if she was prepared to undertake them, and her superiors were prepared to authorize or encourage her to undertake them, as clearly appeared to be the case, I have no difficulty concluding that they were normal and reasonable adjunct activities from which Agriculture Canada could benefit and from which the complainant’s career could presumably benefit. That Agriculture Canada neither controlled or even influenced ECFWA or its Conference is to my mind of no consequence. I have no doubt that Agriculture Canada stood to benefit through the volunteered contribution of the skills of one of its employees for the organizational work and chairing of the ECFWA Conference.
Against the second criterion, I reach the same conclusion. The work undertaken by the claimant may fairly and reasonably be said to be incidental to the complainant’s employment in the Communications Branch of Agriculture Canada.
Whether the activities in question fall within the third and fourth criteria is of some doubt, but that is of no consequence. As I noted earlier, the criteria are disjunctive.
But that is not the end of the matter. The last sentence of the quoted criteria is of critical importance on the facts of this matter. I quote again: “However, an employee is considered to have deviated from the course of his or her employment when engaged in those activities which are not related to his or her employment or are personal in nature.” Can what transpired after the hospitality suite can reasonably be inferred to have closed, what allegedly transpired in that suite, presumably behind a locked door, be said to be “not related to [the complainant’s] employment” or are those activities simply on a continuum with activities that I have concluded are in the course of employment or in matters related to employment? In posing the question and concluding that I must answer it against the complainant, I am cognizant of my obligation to give to the words of the Act “such fair, large and liberal interpretation as will best ensure the attainment of [its] objects.”[5] Further, I am in no way casting aspersions on the complainant’s comportment, being critical of her conduct or suggesting that she was in any sense an author of the misfortune that she alleges befell her. Perhaps someone let her down. Perhaps someone should have anticipated that she might find herself in the situation that allegedly unfolded between 2:00 a.m. and 3:00 a.m. that night, and should have taken precautions to ensure that, once the hospitality suite was closed, she would be secure in that suite that was to be her accommodation for the night. If someone failed in this respect, I conclude that it was not Agriculture Canada. At some time during the night in question, before 2:00 a.m. and at or shortly after the time the hospitality suite effectively closed, the complainant ceased to be in the course of employment or engaged in matters related to employment. To conclude otherwise would place an intolerable burden of responsibility on employers of those who travel in the course of their employment and of those who attend conferences and the like on behalf of their employers.
CONCLUSION AND FINAL COMMENT
On the basis of the foregoing analysis, I conclude, as did the Tribunal, but for different reasons, that the Tribunal lacked jurisdiction on the specific and unique facts before me. I have therefore dismissed this application for judicial review.
There is one further comment I feel compelled to make. Just before reaching its conclusion, the Tribunal states: “More importantly, Michael Sage was not the employer of Lesley Cluff and is, therefore, not liable under sections 7 and 14 of the CHRA which are the bases of these complaints.” Recognizing that what follows is not in any way essential to my decision herein, I wish to go on record as disagreeing with this conclusion.