Chaiman Blais should not have been witness and adjudicator
TORONTO – Former Ontario CRTC commissioner Raj Shoan won his first day in court over CRTC chairman Jean-Pierre Blais.
Federal Court justice Russell Zinn on Friday said in a 50-page ruling that having chairman Blais as both witness and adjudicator was unfair and because of that, set aside the finding of workplace harassment found against Shoan. The case was heard in June.
Shoan was originally accused of workplace harassment by former executive director of communications Amanda Cliff in 2014. The case against Shoan was over seven different email threads sent over seven months in 2014 and was investigated by an outside third party firm hired by the CRTC.
After conducting multiple interviews with Commission staff, commissioners and chairman Jean-Pierre Blais (and uncovering a workplace seemingly in turmoil, with plenty of blame to go around, if you read the report, as we have) – the investigator found Shoan had committed workplace harassment. So then, Shoan asked the Federal Court for a judicial review of that finding. (This is the first of three such cases brought by Shoan against the CRTC chairman).
Shoan was dismissed from his position in June, two days after the court hearing, by Heritage Minister Melanie Joly. After his appointment as commissioner was rescinded by the minister, Shoan filed a different judicial review seeking a stay in his removal as commissioner and in that filing made public additional complaints he had earlier registered with the Minister which included shocking allegations of bigotry at the Commission, which were then refuted.
As reported previously, the recommendations of the investigator’s report into the workplace harassment complaint, approved by then secretary-general John Traversy and Blais, meant Shoan had to abide by new rules of conduct set out in the investigator’s April 2015 report: He was to copy all emails he sends to CRTC staff to the secretary general; all phone calls he makes to staff must be co-ordinated through the SG’s office and the content of the planned phone calls must be communicated first; and that Shoan must not communicate with Cliff (who has since retired, as has Traversy).
Today’s judgement speaks of an investigator who overreached on her mandate and had already made her mind up prior to going into the investigation. While the judge rejected Shoan’s claim that chairman Blais had no jurisdiction to launch such an investigation, he had harsh words for the chairman and investigator Diane Laurin.
“I have concluded that an informed person viewing the Investigation and Report realistically and practically… would conclude that the standard of open-mindedness had been lost to the point where on the balance of probabilities it would be said that the issue the Investigator was to determine had been predetermined,” writes Justice Zinn. “In my view, Commissioner Shoan was denied procedural fairness and natural justice.
“No part of the Complaint suggested that Commissioner Shoan had created a toxic work environment and this, in particular, was well outside the scope of the Investigation,” continued the judgement, referencing Blais’ comments in the Investigator’s report that Shoan had made the workplace “toxic.”
“It is impossible to see how, in light of these opinions expressed by the Chairman and summarized in the Report, it could be said that he, whether consciously or unconsciously, could decide the matter fairly,” writes Zinn.
“Not only was expanding the scope of the Investigation procedurally unfair to Commissioner Shoan, it supports the view that the Investigator had a closed-mind; she was following the direction described by the Chairman in his evidence and was not examining the Complaint objectively and fairly.”
Justice Zinn also questioned how some of Shoan’s emails were construed as problematic by the original complainant and the investigator.
About one email exchange he writes: “The Complainant's interpretation of Commissioner Shoan's email as ‘condescending and threatening’ is not one I share, nor I believe is it a reasonable interpretation when one considers his email in its proper context.”
About another, Justice Zinn writes: “it is beyond my comprehension how anyone reading this email would be ‘traumatized’ by it and yet the Investigator never questions the employee nor does she question the evidence of the Complainant. Again, she accepts the Complainant's evidence whole cloth without any critical examination.”
However, that doesn’t mean Zinn didn’t see any culpability on Shoan’s part, writing: “This should not be interpreted as a finding that there were no issues with any of Commissioner Shoan's emails. He has a tendency to use direct and often confrontational language. His detailed analysis of the Complainant's emails on occasion and his copying other Commissioners would not likely be well received by anyone; however, it is not for this Court to determine whether they constitute harassment of the Complainant.”
Finally, he added: “given the Chairman's views of Commissioner Shoan as he expressed them to the Investigator, his involvement in the final decision is procedurally unfair. The failure of procedural fairness by the Investigator and the Chairman make the entire Report and the corrective measures suspect and unreliable.”
Justice Zinn said normally in such cases where a harassment decision such as this is set aside, he would send the matter back to the CRTC to be re-done, but since Shoan is no longer a commissioner, that didn’t make any sense. Zinn also ordered the CRTC to pay $30,000 in legal costs to Shoan.
The Commission responded late Friday afternoon with boilerplate saying: “The CRTC remains committed to a healthy, harassment-free and respectful workplace as stated in the Values and Ethics Code for the Public Sector and the CRTC’s Code of conduct. The Attorney General will be considering the next steps.”
In a statement released Friday, Shoan said: "It was my consistent position over the past two years that the finding of workplace harassment was unfounded and that there were serious procedural flaws in the investigation process that warranted the overturning of that finding. I am grateful for the considered decision of the Federal Court.
"I am currently examining my additional legal options with my team in regard to the harm that I have
suffered as a result of the false allegations and flawed findings made against me," he continued.
"I remain committed to defending the integrity of the CRTC against any activity that undermines its role in serving the public interest or its decision-making process. Today's decision highlights the challenges present at the highest levels of the CRTC. I encourage all stakeholders, licensees, and interested parties to make their concerns known to the government of Canada, the Minister of Canadian Heritage as well as their local MPs."
