Impartiality, authority of CRTC chairman called into question in harassment review hearing

TORONTO — A reasonable person could make the link between the comments that CRTC chairman Jean-Pierre Blais made as a witness during a harassment investigation concerning a fellow commissioner and bias to his ultimate signing off on the finding of harassment, a federal court justice suggested Tuesday. Judge Russel Zinn pressed Gail Sinclair, the Canadian attorney general's representative, over her arguments that the investigation following a claim by a senior staff member of harassment by commissioner Raj Shoan and the subsequent imposition of five corrective measures on him was impartial and that the decision was reached with an open mind on Blais' part. The investigation was opened following a complaint against Shoan that he had harassed Amanda Cliff, the CRTC’s executive director of communications and external relations, through a series of seven email exchanges over the course of seven months in 2014. "Don't you think a reasonable person would have some concerns and would question the decision reached that someone has engaged in harassing conduct... and that person testified as part of the investigative process that quote: he tries to intimidate and has damaged the relations with key people at the CRTC; the communications group, where the complainant is, is an important and strategic CRTC group; he has made the working environment toxic," Zinn said, reading Blais' comments from the investigator's report during the hearing into the application for a judicial review of the harassment finding at the Toronto court house. "Wouldn't a reasonable person be a little concerned that that person has made up his own mind?" Zinn also pressed Sinclair over her submission that Blais' participation in the investigation as a witness was wholly removed from his role as the person to make the final call on the harassment complaint. "He made the decision to accept the conclusion of an investigator which was in turn accepted by his secretary general, who made the recommendations about the communications protocol," Sinclair said, also noting that the investigator was doing her due diligence in interviewing Blais, as he was copied on some of the emails under scrutiny. But, as Zinn pointed out, as CEO of the commission, Blais didn't have to accept the recommendation. "As Brian Mulroney famously said many years ago, 'he could have said no,'" said Zinn. "Given that he could have said no, and given this evidence, wouldn't a reasonable person think that it was predetermined that he was not going to say no?" The hearing also focused heavily on the argument that Blais did not have the authority to levy any consequences on Shoan, as they are both governor-in-council (GIC) appointees. An informal conflict resolution could have been pursued, argued Shoan’s lawyer Craig Stehr, but “if there had been any legitimate concerns then those concerns ought properly to have been elevated to the governor-in-council.” Stehr added that the GIC has the authority to remove appointees from their positions, but Zinn noted that was a rare scenario. Zinn asked what recourse might be available to staff when faced with “an unruly governor-in-council appointee,” and shouldn't the CRTC chair, in his role as prescribed in the CRTC Act, have the authority to manage the work of the staff and put into place measures that might help shield them from commissioners. Stehr submitted that the scenario was problematic and that the chair would still not have that authority. “Why not? You’re telling me that each and every commissioner is king of his own castle? Can do whatever he chooses to do vis-a-vis staff?” Zinn asked. According to Stehr, any action that would constitute a reprimand would have to come from the GIC and there are no clear rules set out. “If the governor-in-council does not have that authority, I’d argue it’s difficult for a chairperson to have that type of authority over a governor-in-council appointee to reprimand where the governor-in-council is responsible,” Stehr said. At the start of Tuesday’s session, Zinn also lifted a confidentiality order previously agreed to by both parties, stating that he wasn’t convinced the need for confidentiality met the test of the order being “necessary to prevent a serious risk to an important interest.” Sinclair said lifting the order would “have a chilling effect” on future harassment complaints for anyone in the federal public service, as those who would otherwise participate in the process would be put off at the thought of the information becoming public record if it is brought to judicial review. Zinn said he wouldn’t be difficult to convince if the claim dealt with sexual harassment or something salacious. “Notwithstanding what the policy says, which deals with the interim process of the employer, I think it fair to say the employer can go back to blame Justice Zinn because they did everything they could to maintain the confidentiality… I just simply do not see that this falls within the criteria set out by the Supreme Court of Canada,” Zinn said. A decision in the matter may be handed down before September. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Impartiality, authority of CRTC chairman called into question in harassment review hearing

Broadcast | June 21, 2016

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Impartiality, authority of CRTC chairman called into question in harassment review hearing

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