HUMAN RIGHTS |
Stadnyk v. Canada (Employment and Immigration Commission)
A-992-96
Strayer J.A.
21/7/00
16 pp.
Appeal from Trial Division's ([1996] F.C.J. No. 1709 (QL)) dismissal of application for judicial review of Human Rights Review Tribunal's dismissal of appeal from Human Rights Tribunal's dismissal of complaint of discrimination on basis of sex--In 1988, after complaints of sexual harassment, wrongful dismissal against Transport Canada substantiated, appellant reinstated--When continued to find work situation intolerable, Public Service Commission sought to find her another position--Interviewed for position as Regional Information Officer for CEIC--Appellant well known to media, having publicly ventilated problems with harassment--Shortly before interview, subject of further article in Regina Leader Post--Interviewer referred to article, potential conflict of interest if appellant continuing dealings with media to attack employer while, at same time bearing responsibility as Information Officer, to explain, defend employer's position in all matters--Asking appellant how would respond in two scenarios involving sexual harassment in order to indirectly discern if appellant would pursue established remedies within Public Service, or would she go to media--Appellant rejected as candidate for Information Officer positions--Tribunal hearing expert evidence men, women see harassment differently, and what may seem to be "normal" interpersonal relations to man may be viewed by woman as threatening or of uncertain implication--Relied on Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) where concluded test for harassment, where complainant woman, that of "reasonable woman"--Concluded appellant, even taking into account that previous victim of harassment and arguably more likely to perceive harassment in interview situation, not acting reasonably--Dismissed complaint--Review Tribunal finding neither manifest error in Tribunal's findings of fact nor any error in conclusions of law as to proper test for determining whether sexual harassment--Trial Division finding evidence upon which Review Tribunal could decide as it did, and no error of law in test applied for sexual harassment--Before Court of Appeal only inferences drawn from findings of fact, and question of law as to whether amounted to sexual harassment at issue--In relation to judicial review of human rights tribunals, majority of Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 of view courts owing little or no deference to determinations of law made by such tribunals--As Trial Division Judge expressing own view on whether at law conduct complained of amounting to sexual harassment, and reaching same conclusion as Review Tribunal, Trial Division appropriately applying standard of correctness--With respect to findings of fact, Federal Court Act, s. 18.1 only permitting judicial intervention where Court of Appeal concluding findings of fact wrong, made in perverse or capricious manner or without regard to material before Tribunal--No coherent argument Trial Division Judge should have found Review Tribunal based decision on erroneous finding of fact made in perverse or capricious manner or without regard for material before it--Proper test in law for sexual harassment, where complainant woman, at least that of reasonable woman--Tribunal had proper expert evidence before it to confirm male-female interaction may well be perceived differently by men than by women--As test endorsed in turn by Review Tribunal, implicitly by Trial Division, no basis for Review Tribunal, Trial Division or Court of Appeal to set aside conclusion of Tribunal that events of interview would not be perceived by reasonable woman as constituting sexual harassment, and therefore not offending Canadian Human Rights Act--Appeal dismissed--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 7.