T. D. 7/ 92

Decision rendered on July 3, 1992

THE CANADIAN HUMAN RIGHTS ACT R. S. C. (1985), c. H- 6 as amended

HUMAN RIGHTS TRIBUNAL BETWEEN:

ROBERT LE BLANC Complainant

- and

CANADIAN HUMAN RIGHTS COMMISSION Commission

- and

CANADA POST CORPORATION Respondent

DECISION OF THE TRIBUNAL TRIBUNAL:

John I. Laskin - Chairman

Jane Banfield - Member

Jacinthe Théberge - Member

APPEARANCES:

Peter Engelmann Counsel for the Canadian Human Rights Commission

Graham Howard Counsel for the Complainant

Ross Dumoulin Counsel for the Respondent

DATE AND PLACE OF HEARING: February 18 and 19, 1991, March 11 to 13, 1991 and August 14 to 16, 1991 Ottawa, Ontario

I. OVERVIEW

This is an unusual and difficult case. The complaint is based on marital status and family status discrimination. The complainant, Robert Le Blanc ( Le Blanc), was a supervisor in the Ottawa mail processing plant ( O. M. P. P.) of Canada Post Corporation ( Canada Post) in Alta Vista. Some witnesses referred to it as The Zoo. In 1984, Le Blanc started to go out with Marie Louise Larocque ( Marie Louise). At the time, Marie Louise was a mail sortation clerk in the Alta Vista plant and a member of the Canadian Union of Postal Workers ( C. U. P. W.). Although Marie Louise worked on a different floor and on a different shift than Le Blanc, this fraternization between a management employee and a union employee was not warmly received in the workplace. The two were the subject of numerous taunts, both verbal and written. One poster referred to them as the turkey and the turkette.

Eventually, in early December 1985, Marie Louise filed her own human rights complaint against Canada Post. Later that month, she and Le Blanc were married. In May 1986, Marie Louise filed two further human rights complaints, one against a shop steward and the other against C. U. P. W. In June 1986, she took early maternity leave and left the O. M. P. P., never to return. We were told that her human rights complaints were settled, although the details of the settlement were not disclosed to us. We are also told that the shop steward against whom one of her complaints was filed, together with another shop steward, were prosecuted and convicted under the no intimidation provisions of the Canadian Human Rights Act (the Act), now section 59.

Meanwhile, in April 1985, Le Blanc received a promotion, albeit on an acting basis, to a new supervisory position. In March 1986, Canada Post removed him from this acting position and returned him to his former job. Shortly afterward, Le Blanc received a less than flattering rating on his annual performance appraisal. An addendum to his appraisal indicated that if Le Blanc had not been indirectly involved in his wife's human rights complaint, his performance may have received a higher rating.

On December 22, 1986, Le Blanc filed the complaint which led to the proceedings before us. It alleges both marital and family status discrimination contrary to section 7 of the Act. In essence, Le Blanc claims that Canada Post discriminated against him because he was married to Marie Louise and because of her activity in filing a human rights complaint. Le Blanc points to his removal from his acting assignment and his rating on his performance appraisal as clear evidence of Canada Post's discrimination.

The respondent, Canada Post, strongly disputes Le Blanc's allegations. His employer says that Le Blanc was evaluated on one basis only and that is performance. Canada Post claims that Le Blanc's performance deteriorated, especially in respect of his labour relations with his employees. This alone, the respondent says, caused Le Blanc's removal from his acting supervisory position and resulted in his relatively poor assessment on his appraisal. Canada Post asserts that the addendum to Le Blanc's performance appraisal was written at Le Blanc's request, in a sense as a favour to him, to explain to future managers the reasons for Le Blanc's rating. Finally, the respondent says, even if all of the complainant's allegations are true, they do not make it a case of discrimination under the Act. Canada Post contends that the definition of marital status does not embrace the identity and activities of one's spouse.

As this overview suggests, a good deal of the evidence on material points was conflicting. Where the evidence itself was not in dispute, often the inferences to be drawn were. Even if Le Blanc and the Canadian Human Rights Commission succeed in making out their case on the facts, they face the further hurdle of demonstrating that the complaint is covered by the Act. Indeed, the interpretation and scope of marital status discrimination under the statute was very much in issue in this hearing.

II. THE PROCEEDINGS

We were appointed a Human Rights Tribunal to inquire into Le Blanc's complaint in July 1990. The hearing itself commenced on February 18, 1991 and took place over eight days ending in August 1991.

It can be seen that some five years elapsed between the time the events in question took place and the time that the various witnesses testified to these events before the Tribunal. Counsel for the respondent, Mr. Dumoulin, commented more than once during the hearing as to the impact of this five- year period on the recollections of the witnesses. We have considered Mr. Dumoulin's observations in our assessment of the credibility of the testimony that we heard.

Mr. Dumoulin also objected to the introduction of certain evidence which Commission counsel, Mr. Engelmann (who also acted for the complainants, save on the issue of remedy), wished to lead. The objection arose in the following circumstances: On the complaint form itself, Le Blanc alleges that Canada Post has engaged in a discriminatory practice on or about March, 1985 and ongoing [emphasis added]. He then provides the following particulars of the complaint:

"Canada Post Corporation has discriminated against me because of my family & marital status in employment in violation of Section 7 of the Canadian Human Rights Act. On or about April 1, 1985 I was appointed to a PO- SUP- 3 position on an acting basis. On March 24, 1986 superintendent P. Lanthier advised me that I had been removed from my acting position and transferred to a PO- SUP- 2 position because of my wife's Human Rights complaint. He claimed this complaint had put stress on me. My performance appraisal dated May 4, 1986 rated me as acceptable & stated I was removed from the acting position because of my wife's Human Rights complaint. I believe I should have been rated fully satisfactory."

At the beginning of the hearing, Mr. Engelmann indicated his intention to lead evidence of other incidents of alleged discrimination which occurred in 1986 and which were not set out in the complaint form. Mr. Dumoulin objected to this evidence.

We determined to hear the evidence. We concluded at the time that the evidence appeared to be the continuation of the story of Le Blanc's complaint of adverse treatment by his employer. While it would have been preferable if the Commission had provided the respondent with particulars of every incident of discrimination being relied upon in the complaint form, in an administrative hearing such as this one, the Commission and the complainant are not necessarily restricted to the four corners of the complaint form. The Divisional Court of Ontario in a professional discipline proceeding took a similar view: see Re Cwinn and Law Society of Upper Canada (1980), 28 O. R. (2d) 61.

In our judgment, the new evidence should be considered in light of the fairness or unfairness of admitting it. In this case, the complaint form at least referred to alleged discrimination from March 1985 and ongoing so that the respondent could not be taken completely by surprise. Those persons in the employ of the respondent who are involved in the incidents particularized in the complaint form were also involved in the incidents not particularized. The new incidents also covered roughly the same time period. We were of the view that the respondent knew the case it had to meet. Thus, on balance, we concluded that the evidence should be admitted although, as we observed at the time, its late introduction may affect the weight that we give to it. We should also add that we gave counsel for the respondent a fair opportunity to meet the additional allegations, including deferral of his cross- examination of the complainant.

Before leaving this section of our reasons, we think it appropriate that we record our appreciation to both counsel for the diligence and ability with which they conducted this hearing on behalf of their respective clients.

III. THE BURDEN OF PROOF ON THE COMPLAINANT

This complaint was brought under section 7 of the Act which provides:

"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."

Since Le Blanc was not terminated by Canada Post, the complaint is really founded on section 7( b) of the Act. Both marital status and family status are prohibited grounds of discrimination under section 3( 1) of the statute. As we view it, marital status is the ground that is relevant to Le Blanc's complaint. Neither it, nor for that matter family status, is defined under the statute.

There are two well- established principles in human rights jurisprudence that govern proceedings alleging a violation of section 7. They are as follows:

1. The complainant bears the initial onus of establishing a prima facie case of discrimination, that is a case which covers the allegations made and which, if the allegations are believed, is sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. The burden then shifts to the respondent to establish on the balance of probabilities justification for its treatment of the complainant: see Holden v. C. N. R. (1990), 112 N. R. 395 (F. C. A.); Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S. C. R. 202 at 208; and Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S. C. R. 536 at 558; and
2. The complainant need only show that the prohibited ground of discrimination relied upon was one of the factors in the respondent's adverse treatment of him. It need not be the only factor. There may well be other reasons unrelated to the Act that caused the respondent to treat the complainant as it did; so long as the prohibited ground was a basis for the adverse treatment, the complainant will have made out a breach of the Act. See, for example, Canadian Employment and Immigration Commission v. Lang and The Canadian Human Rights Commission, [1991] 3 F. C. 65 (F. C. A.) and Foster Wheeler Limited v. Ontario Human Rights Commission (1987), 8 C. H. R. R. D/ 4179 (Ont. D. C.) at paragraph 33020.

These two principles have, of course, guided our consideration of this case.

IV. THE EVIDENCE

Le Blanc's Acting Assignment Le Blanc began working for Canada Post in 1977. From February 1983 until the end of March 1985 he worked on the second floor of the Alta Vista plant in a department known as city sortation. He was a supervisor with the classification SUP- 2. At the beginning of April 1985, Le Blanc was made acting general supervisor for all first floor operations on shift number 1, the all night shift (11: 00 p. m. to 7: 00 a. m.) at the O. M. P. P. The first floor was known to those who worked there as the dock.

The duration and purpose of acting assignments vary at Canada Post. Usually they are for six months or less (the relevant collective agreement called for four months) but in Le Blanc's case the assignment lasted much longer. In some cases, a person is put into an acting assignment while the incumbent is away, for example, on a training course. In other instances -- and this was the situation in Le Blanc's case -- the acting assignment is preliminary to a management reorganization. As matters turned out, for reasons unrelated to this complaint, Canada Post determined it did not need a general supervisor and abolished the position at the end of July 1986.

Le Blanc was given the classification acting SUP- 3. In this acting position, Le Blanc was responsible for three different sections -- mail transfer, parcel post and priority services. Each section was directly supervised by a supervisor with the classification SUP- 2. In the period April 1985 to March 1986, these three supervisors were Jean Desjardins, Aubrey Callan and Patrick Welch (Callan was on the dock only from November 1985 onward). Welch testified on behalf of the complainant at the hearing; Callan was called by the respondent; Desjardins did not testify.

The bargaining agent for the employees on the dock who were not part of management was C. U. P. W. Several witnesses testified that C. U. P. W. was a militant union and that the dock was not an easy place in which to work.

Le Blanc and the Commission contended that the acting SUP- 3 position was a promotion for Le Blanc. This was disputed by the respondent. We are satisfied that in April 1985 Le Blanc received a promotion, even though there was no guarantee the position would be a permanent one. The acting SUP- 3 position carried with it more pay (to the extent of $102.40 per month) and more responsibility than Le Blanc's SUP- 2 classification. In fact, commencing in April 1985, Le Blanc was supervising employees with a SUP- 2 classification who, the month before, would have been his co- supervisors.

From the beginning of his acting assignment on the dock until mid- February 1986, Le Blanc reported directly to Michael Maloney. In mid- February 1986, Maloney received a promotion and was replaced by Pierre Lanthier. Le Blanc reported to Lanthier until Lanthier removed Le Blanc from his acting assignment on March 24, 1986. Shortly afterwards, Le Blanc was returned to his former SUP- 2 position on the second floor. In August 1986, Le Blanc transferred out of the O. M. P. P. to the Ottawa City Station. In May 1990, he received a promotion to station manager. As of the hearing, Le Blanc was still employed by Canada Post. Maloney put Le Blanc into the acting assignment and supervised him for almost all of his stay in the position. Maloney testified that he chose Le Blanc because he wanted a person who could follow a plan, who could work with Maloney's objectives, and who had the ability to analyze and write up problems that might occur in the workplace.

Maloney also testified that he felt there were risks in putting Le Blanc into the acting assignment but that the risks were well worth taking. The evidence indicates that Le Blanc supervised employees strictly in accordance with workplace rules. Several witnesses referred to him as a book man. Maloney may well have chosen Le Blanc because he wanted a supervisor who went by the book. Aubrey Callan's evidence was that Maloney, while the shift superintendent on shift #1, was enforcing rules and regulations more strictly than the superintendents responsible for the other two shifts.

Certainly Le Blanc's record prior to April 1985 suggested that he did not always get along with all of the employees who were working under him. As far back as at least 1983 he had been criticized for poor labour relations; he invariably received many more grievances than other supervisors; and his performance appraisal for the fiscal year April 1984 to March 1985 for which he received a Satisfactory rating stated in part:

"Rob attempts to provide a two way avenue of communication but due to his dominating attitude of viable communication channel that is not always achieved."

and "Rob displays all the traits and potential to be a highly successful supervisor but it would be in his best interest to develop a more harmonious rapport between himself and his employees by attempting to overcome his curtness and lack of tact."

Maloney and Canada Post were aware of these facts when they made the decision to give Le Blanc the job of acting general supervisor in April 1985.

Le Blanc's Performance as an Acting General Supervisor There is little dispute that at least for the first six months and probably for the first nine months of his acting assignment Le Blanc performed well. He reduced absenteeism which had been a significant concern of management; he increased productivity on the dock; he reduced overtime; and he showed a keen interest in health and safety issues at the plant.

His first quarter, second quarter and even third quarter appraisals were complimentary. They were each written by Maloney and provided as follows:

1st Quarter "Rob is progressing well as the General Supervisor in the Mail Transfer Section. He reduced absenteeism through detrimed [sic] application of the Absenteeism Program. Rob is enthusiastic and hard working. He is co- operative with his superintendent and has met deadlines imposed on him. Mr. Le Blanc is strong willed and not proned to be easily discouraged with a difficult problem. He has instituted safety, work, reporting, and training programs that have resulted in a better organized shop. Rob requires more refinement as a General Supervisor but clearly possesses the necessary qualities to be fully qualified as a General Supervisor and his potential for solid management is excellent."

2nd Quarter "Mr. Le Blanc guides and directs in a manner which stimulates goal attainment. His team has been able to met [sic] the goal in attendance management for the last quarter. Productivity is at an acceptable level, however goals will be upgraded. Safety goals have been met, lost time due to injuries sustained on duty was nil. Written communications are timely but tend to be to wordy. Mr. Le Blanc in his capacity as a General Supervisor has improved in the last quarter. He has a much clearer understanding of the role and has developed the ability to meet deadlines. Areas where improvement can be made are to develop a closer liaison with the co- ordinator, expeditor, fellow GS' and supervisors. Rob has a tendency to try and take on challenges himself without utilizing the resources of others. Rob has performed well in the last quarter and is improving each quarter. One area where Rob excels is his ability to meet established deadlines."

3rd Quarter "Mr. Le Blanc is a hard working General Supervisor. He has the proven ability to meet establish deadlines. His report writing is a strong point much appreciated by his Superintendent. An improvement has been made over the last quarter whereby it was identified that Rob must develop a closer liaison with the co- ordinator, expeditor, fellow G. S. 's and supervisors. I feel that this is an area Rob has worked on and shown much improvement.

Areas where improvements would be needed are, achieving a high level of composure in stressful situations (labour relations). Further, recognizing through discussions with staff on an informal basis underlying problems and dealing with the same prior to negative labour reactions.

Rob has taken on the difficult role of being the Team leader of the shift one Safety and Accident Prevention Team. This project is difficult to administrate however I have every confidence Mr. Le Blanc will succeed. The performance of his team will be evaluated at the next appraisal in April, 1986. As part of his responsibility in this project, Rob will be giving Back Care seminars to all shift one employees. Rob is further displaying his commitment to a better O. M. P. P."

These assessments gave Le Blanc every reason to believe that at the end of the year he would receive at least a Fully Satisfactory, if not better, annual performance appraisal.

January to March 1986 What apparently changed all of that was the fourth quarter, the period from January to March 1986. This was the period in which Le Blanc alleged that the discrimination against him began. It was also the period in which management claimed his work performance deteriorated to such a degree that he had to be removed from his job.

Le Blanc testified that at the beginning of January (which was shortly after his marriage and after Marie Louise filed her own complaint) he was harassed in the workplace because of his relationship with Marie Louise. When he went into the cafeteria he was taunted with the words gobble, gobble, gobble.

A poster with a drawing of two birds and the words The Turkey and The Turkette, What a lovely couple and Smells bad was left on a bulletin board. He and his wife received anonymous phone calls on weekends in the early hours of the morning. This harassment became quite vicious as evidenced by a poster which appeared on the dock around March 20. It read:

"TO ALL C. U. P. W. MEMBERS Did you know that we have another useless supervisor on the all- night- shift. His name is; ROBERT THE TURKEY LEBLANC [sic].

Even though his brain is the size of the bird's brain, management encourages him to act like a turkey.

Doctor Lanthier and the TURKEY are recommending a 5- day suspension (to C. LARENTE, manager) for Aimé Paquette (shop steward on M. T. S. section a/ n) because he punched somebody else's card by mistake.

If a 5 day suspension is issued, we should consider a massive slow down to support Aimé Paquette.

P. S. MR. LEBLANC [sic], REMEMBER WHAT HAPPENED TO YOUR PARROT, THE SAME THING CAN HAPPEN TO YOU .....

COMMITTEE FOR MILITANT ACTION."

It was no coincidence that Le Blanc had a pet bird which had recently died.

Both Marie Louise and Le Blanc reported these incidents to Canada Post management. In the case of Le Blanc's complaints it seems that his employer did little if anything about them. In the case of Marie Louise's complaints, Maloney and Simon Ouellette, Canada Post's human rights officer, conducted an internal investigation. They apparently concluded there was no conclusive evidence to support her allegations. No employees were disciplined by Canada Post for their treatment of Le Blanc or Marie Louise. Maloney was a witness for the defence in the retaliation charges against the two shop stewards arising out of Marie Louise's human rights complaint. Le Blanc testified -- and we accept his evidence on this point -- that Maloney indicated that both Le Blanc and Marie Louise deserved what was happening to them and that if she dropped her human rights complaint things would blow over in three to six months. Sometime later, Pierre Lanthier also told Le Blanc he and his wife were getting what they deserved for their actions.

This you deserve what you get attitude on the part of management was a misguided response to the campaign that had obviously been directed against Le Blanc and his wife.

Regrettably, it also reflected Canada Post's unwillingness to address a situation that cried out for action from the respondent. These incidents undoubtedly caused Le Blanc a good deal of stress and he admitted as much in his evidence.

There is conflicting evidence on the extent to which labour relations on the dock deteriorated in the first three months of 1986 and on the extent to which Le Blanc was at fault for what occurred.

It appears that Le Blanc was genuinely despised by a number of employees and the campaign against Le Blanc arising out of his relationship with Marie Louise was undoubtedly played out on the shop floor in one form or another. Le Blanc received more and more grievances as the year wore on. Many were nonsensical and were apparently designed to get rid of him or to retaliate against him. We heard evidence of work slowdowns and of threatened walkouts directed at Le Blanc. Maloney referred to several incidents in his evidence to support his contention (which subsequently appeared on Le Blanc's performance appraisal) that a breakdown in labour relations caused missed commitments in the last quarter.

Le Blanc did some things which could only have exacerbated the difficulties he was having. He seemed to carry a chip on his shoulder for certain employees. He either reported or threatened to report to Revenue Canada one employee on the dock who was running a canteen without a municipal licence. He reported another employee to the housing authorities. In the case of another employee, admittedly a problem employee, but one who had just returned to work after 5½ months off for triple- by- pass surgery, Le Blanc called him in and accused him of excessive sick leave. Such incidents as these could hardly be expected to further good relations between Le Blanc and his employees.

Still, many witnesses referred to Le Blanc as firm but fair. Even Maloney in his testimony, while first denying that Le Blanc was fair, eventually conceded on cross- examination that overall he was fair. Patrick Welch at one point in his testimony said that during the last part of Le Blanc's acting assignment labour relations were terrible, but at another point in his evidence Welch said Le Blanc's work performance did not change during the year. Aubrey Callan, another line supervisor who worked directly under Le Blanc, but only from November 1985 to March 1986 (i. e. the period when Le Blanc's labour relations were allegedly deteriorating) assessed Le Blanc's performance as Fully Satisfactory.

Whatever may be said of Le Blanc's difficulties with his employees, some of the problems were certainly not of his own making. There had been difficulties on the plant floor between management and union members well before Le Blanc arrived. There were operational difficulties and there were policy issues such as the use of casuals that contributed to the labour problems on the dock. The evidence at the hearing suggested that the employees who gave Le Blanc the most problems were in the mail transfer section. These employees were directly supervised by Desjardins. There was evidence that Desjardins (who as we said earlier was not called to give evidence) sought to undermine Le Blanc's relationship with the employees in the mail transfer section.

Pierre Lanthier took over from Michael Maloney as the shift superintendent on the dock for shift #1 on February 17, 1986. A little over a month later on the evening of March 23 or the morning of March 24 Lanthier removed Le Blanc from his acting assignment. Le Blanc had received no prior warning and he had not been previously disciplined. Lanthier told Le Blanc he was being removed because otherwise there might be a labour walkout on the first floor, because Le Blanc handled grievances improperly and because Canada Post wanted to remove the stress on Le Blanc. In his evidence, Lanthier also acknowledged that the poster from the Committee for Militant Action (referred to earlier) had an impact on his decision.

Canada Post called no independent evidence to support Lanthier's claim that a labour walkout was imminent. Nor was there any independent evidence to suggest Le Blanc handled the grievances improperly; if anything, the evidence was to the contrary. Le Blanc was both surprised and upset by the decision of his employer to terminate his acting position. He booked off sick between March 24 and March 28.

Le Blanc's Performance Appraisal It was not until early May that Le Blanc received his performance appraisal for the year ending March 1986. What of course was key for Le Blanc, or for any employee for that matter, was the final rating. On the performance appraisal form used by Canada Post there were five different ratings available. In descending order of excellence they were: Outstanding, Superior, Fully Satisfactory, Acceptable and Unsatisfactory. Le Blanc's rating was Acceptable, the second lowest category. An Acceptable rating was considered by most witnesses to be ordinary or even below average. With an Acceptable rating, an employee could not transfer out of the plant.

The performance appraisal was signed on behalf of Canada Post by Maloney on May 4 and by Lanthier on May 6. Le Blanc refused to sign his appraisal and eventually grieved it.

Both Maloney and Lanthier testified that they met and discussed the rating Le Blanc was to receive. According to their evidence, they both agreed on the category Acceptable.

Maloney, who by then had been promoted and was out of the plant, wrote up Canada Post's evaluation of whether or not Le Blanc had met or not met a series of previously defined key goals and objectives. Maloney, rather than Lanthier, undertook this task because he had supervised Le Blanc for the bulk of the year. We have previously referred to the separate quarterly appraisals for the first three quarters. These formed part of the performance appraisal document but there was no separate fourth quarter assessment. There were some 53 key goals and objectives identified on the performance appraisal organized under 14 different categories. In most instances the appraisal was either silent or indicated that Le Blanc had met the goal or objective in question. There were, however, some not mets and thus some criticisms of his performance. Most of the not mets focused on labour relations difficulties. For example, the following appeared on the appraisal:

"Mr. Le Blanc does have compassion for people. Throughout the fiscal year he has spoken to his staff and supervisors in a caring way but failed to meet the necessary goal of obtaining good labour relations;"

and under the goal of Leadership and the training of supervisors

"Not met. A large component of leadership is the ability to motivate supervisors and staff. Due to the failure in this regard within the final quarter this goal is not met;"

and under the goal Insistence on higher level of productivity ... Met with the exception of a poor labour climate in the last quarter.

Both Lanthier and Maloney testified that although Le Blanc had achieved many of the objectives set for him, they could not give a better rating to an employee experiencing such poor labour relations with his employees. Both denied that either Le Blanc's marital status or Marie Louise's human rights complaint was a factor in the Acceptable rating they awarded Le Blanc.

The Addendum to the Appraisal Le Blanc was clearly upset with his appraisal. He testified that soon after receiving it he met with Lanthier to discuss it. Lanthier, in his evidence, did not recall such a meeting but we are satisfied the meeting occurred. At the meeting, Lanthier presented Le Blanc with an addendum to his appraisal. The addendum states as follows:

"Because Rob was indirectly involved with a Human Rights complaint, case which involved his wife (who is also an employee of the Corporation), the climate on the 1st floor was disrupted; that is why Rbo [sic] was removed and returned to his substantuative [sic] position on City floor.

Also, because of the extraordinary stress that this placed on Rob, his performance level decreased. His aggressiveness at this point lead [sic] to a form of harassment to other employees that were indirectly involved in the Human Rights case an [sic] mentioned above.

If Rob had not been indirectly involved in that case, his performance may have been fully satisfactory."

The Discussion About the Appraisal and the Addendum The meeting with Lanthier did nothing to resolve the situation as far as Le Blanc was concerned. He requested a second meeting with the shift manager on shift #1, Roy Kieswetter, who was Lanthier's direct supervisor. Everyone agreed that such a meeting took place on or about May 21 and that Lanthier, Kieswetter, Le Blanc and Robert Tongue were in attendance (Tongue was a friend of Le Blanc's, a supervisor who had worked under him and was at the meeting as a witness). What is disputed is what was discussed at the meeting.

Le Blanc's evidence was that he went to the meeting determined to discuss his appraisal point by point and to ask what was meant by the addendum but that Kieswetter dominated the meeting. According to Le Blanc, the first question Kieswetter asked was how much Le Blanc was involved in his wife's human rights complaint. He then asked whether Le Blanc was pushing his wife to pursue her complaint. Kieswetter said you are not dealing with the CR union [another union which represents certain Canada Post employees and apparently not known for its militancy] or words to that effect, inferring that C. U. P. W. is a militant union. Le Blanc testified that Kieswetter also asked whether Le Blanc realized he could be in a conflict of interest because he was part of management and his wife was an employee.

This version of events is disputed by Lanthier and by Kieswetter. Both indicated that the purpose of the meeting was to discuss the appraisal and that there was no addendum in existence at the time. Kieswetter denied he said the words attributed to him by Le Blanc. Rather, his evidence and Lanthier's evidence was that Le Blanc had indicated his performance was affected because of the stress of his wife's human rights complaint. As a result of this comment, Kieswetter offered to add an addendum to the appraisal. Both Lanthier and Kieswetter maintained that if Le Blanc had not mentioned anything about his wife's human rights complaint they would not have offered the addendum. Both said in substance that the addendum was a favour to Le Blanc, designed to help Le Blanc later in his career to explain his low rating. Both said Le Blanc appeared more relaxed once the explanatory addendum was suggested to him. Le Blanc acknowledged that he raised his wife's human rights complaint at the meeting as being a source of stress in the workplace, but only after he was questioned on his involvement in the complaint by Kieswetter. Le Blanc said he already had the addendum when he went to the meeting and that he objected to its contents.

We have considered carefully the evidence that related to this important meeting on May 21, 1986 and have concluded that the evidence of Le Blanc as to what took place ought to be accepted and the evidence of Lanthier and Kieswetter rejected.

There are a number of reasons for our conclusions. First, we find Le Blanc to have been a more credible witness than either Lanthier or Kieswetter. The complainant gave his evidence in a sincere and straightforward manner. He described clearly what he had said and heard and on many material points his evidence was confirmed by other witnesses who worked with him or by written evidence. The evidence of Lanthier and Kieswetter, by contrast, was vague and inconsistent in several instances. Lanthier, in particular, was in our view prone to exaggeration and selective memory. Second, Le Blanc's evidence of the discussion at the meeting was confirmed by Tongue. Third, Le Blanc made notes of his discussion at the time. The notes were reviewed by Tongue who signed them. Both the evidence of Le Blanc and the evidence of Tongue at the hearing were consistent with the other.

Significantly, the notes indicated as Le Blanc had testified, that the addendum was in existence at the time of the meeting and was discussed at the meeting. Fourth, this meeting which Le Blanc said was his second meeting to discuss his appraisal (the first being with Lanthier alone) was consistent with the procedures at Canada Post for disputing a performance appraisal.

Fifth, we cannot accept Canada Post's explanation that the addendum was offered to Le Blanc as a way to help him in his career. The addendum is even more critical of Le Blanc than the appraisal itself. For example, it refers to Le Blanc's harassment of other employees, a serious allegation that is not found in the appraisal itself. Le Blanc was distraught by the language of the addendum. Canada Post knew this and yet even though Kieswetter and Lanthier maintained the addendum was intended to help Le Blanc, they refused to remove it. On this issue, their evidence is simply internally inconsistent.

Le Blanc, having not received a satisfactory response from his employer at the May 21 meeting, demanded a third meeting with the plant manager Claude Larente, who had died by the time of this hearing. A meeting did take place in June -- Le Blanc, Tongue, Lanthier and Larente were present. Le Blanc wanted to discuss the appraisal item by item, but Larente focused the discussion on the addendum. He said he would not change its intent, but would take out the reference to Le Blanc's wife's name and her complaint. Le Blanc was unwilling to accept this proposal and insisted the addendum remain in its original form.

In mid- July, Le Blanc had a meeting with Maloney. Patrick Welch and another Canada Post employee, Tim Larmer, were present. Again, Le Blanc wanted to discuss his appraisal item by item, but Maloney, like the others before him, was unwilling to do so.

Other Matters Le Blanc grieved his performance appraisal and the grievance was ultimately sustained at the third level. His rating was changed to fully satisfactory. Neither Lanthier nor Kieswetter nor Maloney was consulted on the changed rating and all of them voiced their disagreement with the change. There was some dispute as to whether, as a result of the grievance, Le Blanc's performance appraisal contained a revised addendum (as the respondent contended) or no addendum at all (as Le Blanc contended). In our view, nothing turns on this dispute.

Le Blanc also continued to take further time off. He took 11 days off work sick after his meeting with Lanthier and Kieswetter on May 21. On June 22, he asked for 2½ days sick leave which Lanthier denied and instead handed Le Blanc a 24- hour notice of misuse of sick leave. Subsequently, Le Blanc's sick leave was honoured, but his employer sent him for a medical assessment.

Le Blanc argued that the manner in which Canada Post dealt with his sick leave requests was further evidence of discriminatory treatment. We do not accept this argument. While Le Blanc was under great stress as a result of what had happened to him, we suspect at least some of the sick leave he took was not entirely justified. Whether or not that is true, what is clear is that Canada Post took a very tough stance on absenteeism, particularly by supervisors whose attendance should set an example for employees. The treatment of Le Blanc for his absenteeism, whether fair or unfair, was not unusual at Canada Post. Indeed, Robert Tongue received worse treatment than Le Blanc for fewer days away.

Finally, Le Blanc complained that a 24- hour notice of disciplinary interview he received in the summer of 1986 for discussing an operational change with his employees was further evidence of a pattern of discrimination on the part of Canada Post. This aspect of Le Blanc's complaint in our view was not substantiated.

V. THE MAIN EVIDENTIARY ISSUE

The crux of this case (at least insofar as the evidence is concerned), is whether Le Blanc's relationship with Marie Louise together with her active pursuit of her own human rights complaint was a factor in Canada Post's decision to remove him from his acting assignment and to give him an acceptable rather than a Fully Satisfactory performance appraisal. In our judgment, it was, and we are of the view it was, a significant factor.

In making this finding, we are not to be taken as indicating that Le Blanc was an ideal supervisor or that he had an enlightened view of how to manage employees. Any supervisor who would go out of his way to report employees to government authorities, however difficult those employees may be, still has much to learn about good union- management relations. We accept that Le Blanc's poor labour relations, even his deteriorating labour relations, with his employees played a part in the decisions of Canada Post that are complained of in the hearing.

In our view, however, Le Blanc's relationship to Marie Louise, a union employee who was pursuing her own human rights complaint, also played a part and an important part in Canada Post's treatment of Le Blanc. Our reasons for reaching this conclusion are as follows:

1. There was, no doubt, a bad feeling on the dock between Le Blanc and his employees. Le Blanc, a supervisor and thus part of management, had married an employee who was a member of the union. In this workplace there were sharp differences between management and labour on the shop floor. Marie Louise was pursuing a human rights complaint because of harassment towards her from fellow employees. The union was known to be militant at times. Some union members sought to retaliate against Le Blanc. Canada Post, instead of trying to eliminate the harassment to which Le Blanc and Marie Louse were subjected, took the view that they got what they deserved. Eventually, Canada Post saw that the easiest way to deal with the problem was to eliminate the source and Lanthier took Le Blanc out of his position.
2. Canada Post's reliance on Le Blanc's poor labour relations as a reason to remove him was exaggerated. In one sense, Canada Post knew exactly what it was getting when it made Le Blanc acting general supervisor. He had a history of a large number of grievances and problems in dealing with his employees. All that really changed in the 1985- 86 fiscal year was Le Blanc's marriage and Marie Louise's complaint.
3. There was no real evidence to support Lanthier's stated reasons for removing Le Blanc. No other witness said the employees were about to walk out on March 24, 1986. No employees were called to give that evidence. Maloney testified he didn't even know Le Blanc had been removed for this alleged reason; he thought it was as a result of a reorganization. Frank Ciancullio, Canada Post's labour relations officer who met with Lanthier and Le Blanc on March 24, knew nothing about a potential walkout; in fact he didn't even know Le Blanc was being removed. In our opinion, the allegation of a walkout or a mini- war on the dock was at least in part a pretext for other reasons which motivated Canada Post to terminate Le Blanc's acting assignment.
4. The addendum to the performance appraisal is a significant piece of evidence in this case. The reasons why the addendum came into existence are not entirely clear. As we have indicated, however, we reject the explanation proffered by the respondent. The addendum was already in existence when Lanthier and Kieswetter, according to their evidence, offered to create it. The addendum was in certain respects more damaging to Le Blanc than the appraisal itself, even though the respondent claimed it was designed to benefit Le Blanc. And despite this, when Le Blanc complained about the addendum, the respondent would not willingly remove it. Having rejected the respondent's explanation for the addendum, what then do we make of it? In our judgment, it provides a clue to the real motives of Canada Post, both in removing Le Blanc from his job as acting general supervisor and in giving him only an Acceptable rating. The addendum on its face and viewed in this light supports Le Blanc's case. The addendum states in part:

   "Because Rob was directly involved with a Human Rights complaint which involved his wife (who is also an employee of the Corporation) the climate on the first floor was disrupted; that is why Rob was removed... ."

   and later: "If Rob had not been directly involved in that case, his performance may have been fully satisfactory." [emphasis added]

The phrase indirectly involved is used twice, both in the part of the addendum dealing with Le Blanc's removal and in the part dealing with his appraisal rating. Lanthier acknowledged he and Kieswetter used this phrase to indicate Le Blanc was only involved because he was married to someone who did have a human rights complaint at the time. And if as the addendum suggests, Le Blanc's indirect involvement disrupted the climate on the dock, it is no answer to a discrimination complaint for Canada Post to yield to the situation and remove the person who was being victimized.

(e) We recognize that Maloney had nothing to do with the addendum and that he nevertheless agreed with the Acceptable rating for Le Blanc. He did, however, discuss the rating with Lanthier; and he told Le Blanc that he and Marie Louise deserved what was happening to them and that if she dropped her case things would be fine again in three to six months. It is certainly reasonable to infer from this evidence that Maloney's treatment of Le Blanc was in part motivated by his objection to Marie Louise's complaint.

(f) While not conclusive, Aubrey Callan's evidence is relevant. He supervised Le Blanc for part of the 1984 fiscal year and rated him Satisfactory striking out the word fully on the appraisal form. Then for the late part of the 1985- 86 fiscal year he was in turn supervised by Le Blanc. The respondent called Callan to testify and he said that while he had some concerns about Le Blanc's labour relations, Le Blanc still deserved a Fully Satisfactory rating.

(g) Finally, as we have indicated earlier, we found Le Blanc to be a credible witness and where his evidence and the evidence of Lanthier, Kieswetter and Maloney differ on material points, we accept Le Blanc's evidence.

VI. THE MEANING OF MARITAL STATUS DISCRIMINATION

Our factual finding does not resolve this case. We still have to address Mr. Dumoulin's submission that even if every fact is found against Canada Post, in law there is no discrimination on the basis of marital status. As we have observed, the Act does not define marital status. The jurisprudence indicates it at least includes the status of being married or living in a common- law relationship. If the scope of marital status is limited in this way then the complainant cannot succeed in this case. There is no suggestion that Canada Post discriminated against married people or persons living together outside of marriage. Further, no anti- nepotism policy of the kind, for example, at issue in Brossard v. Quebec, [1988] 2 S. C. R. 279, is alleged against the respondent. What was put to us was that the definition of marital status is wide enough to embrace discrimination by an employer arising out of being married to a particular employee who in turn is pursuing her own human rights case against the employer. The Commission argued that it is both the particular spouse and her activity that triggered the adverse treatment of Le Blanc. Put in these terms, the case may in one sense be viewed as one of retaliation or reprisal but there are no administrative proceedings at all provided under the Act for a reprisal complaint (compare section 8 of the Ontario Human Rights Code, R. S. O. 1990, c. H- 19) let alone for reprisal not against the original complainant but against her spouse.

Thus the question here is whether this case is one of marital status discrimination under section 7( b) of the Act. The scope of marital status discrimination has been the subject of some discussion in recent cases. In Cashin v. CBC, [1988] 3 F. C. 494 the Federal Court of Appeal considered a case under the Act in which the CBC had refused to renew the contract of a reporter after her husband was appointed a director of a Crown corporation on the ground that her objectivity might be suspect. The case was argued on the basis that the applicant reporter was discriminated against not because she was married per se but because she was married to a particular public figure. The Federal Court of Appeal was required to consider whether spousal identity was included in the concept of marital status. The case law at the tribunal level on this issue was conflicting. Some decisions confined the definition of marital status to the status of being married, single, widowed, divorced or living in a common- law relationship. Other human rights board decisions have extended the concept of marital status discrimination and held that it includes cases where an employer discriminates against a person on the basis of her being married to a particular person even though the employer does not discriminate against married persons generally. MacGuigan J. who wrote the majority judgment in Cashin, carefully considered these conflicting authorities and concluded as follows at 504:

"In my opinion, the first respondent has the stronger case on a literal meaning approach. Marital status normally does mean no more than status in the sense of married or not married and is not considered to include the identity and characteristics of the spouse."

and at 506: In fine, what the Act discourages is discrimination against an individual, not in his/ her individuality, but as a group cypher, identified by a group characteristic. Consequently, the identity of a particular spouse cannot be included in the notion of marital status because it is a purely individual rather than a group aspect of life. However, it seems to me that a general no- spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, may well fall under marital status. As in Mark or the American cases it follows, it is not a particular spouse that is brought into question, but any spouse of any existing employee. The approach I adopt might perhaps be thought of as an intermediate position between a broad and a narrow one. In reaching this conclusion he recognized that human rights legislation has almost constitutional status and that it must be given a broad interpretation. Nonetheless, in reference to section 2 of the Act he said at 505: It is important to note that the principle of unhindered equal opportunity which is set forth is not a total guarantee against discrimination in life but rather one against certain specified forms of discrimination, all of which are based on group membership of some kind, whether in natural groups like race and colour or in freely chosen groups like marital status.

Although finding against the applicant reporter on the scope of marital status, the Federal Court of Appeal upheld her complaint finding marital status discrimination on the narrower group that her employer differentiated between women who did and did not adopt their husband's surname. Mahoney J., in separate concurring reasons, referred at 497 to:

"... that undisputed evidence which, in my opinion, supports both the conclusion that the discrimination here was based on her marital status and not simply on the fact that Rosann Cashin was married to a particular person."

Cashin was considered by the Supreme Court of Canada in the Brossard case which dealt with a municipality's anti- nepotism policy. The Court held that the Town of Brossard's hiring policy constituted discrimination in employment based on marital status contrary to the Quebec Charter. Beetz J., who wrote for the majority, referred to MacGuigan J. 's reasons in Cashin and said at 298- 99:

"It is sufficient, for the purposes of the case at bar, to limit the meaning of civil status to an exclusion practised against an individual identified by a group characteristic to use the expression employed by MacGuigan J. The exclusion established by the respondent's hiring policy can be said to create such a group characteristic: all immediate relatives, including spouses, of full- time employees and town councillors are excluded from consideration. To paraphrase MacGuigan J. for the purposes of the case at bar, a general no- relative, no- spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, does fall into civil status.

It is not necessary in this instance to decide whether the identity of a particular spouse is included in the notion of marital or civil status and I refrain from so doing.

I am inclined, however, to think that in some circumstances the identity of a particular spouse might be included in marital or civil status. Sometimes an employer may exclude an individual because of the identity of his or her spouse without acting on an explicit nospouse rule, leaving the court with the sometimes difficult and not always useful task of inferring a group category. A nospouse rule may be applied unevenly by the employer and thereby lose its generality. In Cashin, for example, Mahoney J. remarked that the C. B. C. tolerated the fact that certain employees did have high profile political spouses. Furthermore, an employer may exclude a candidate for employment because of the employer's particular animosity for the spouse of the candidate. Thus the candidate is excluded because of the particular identity of his or her spouse and for no other reason. This might well be discrimination based on marital or civil status but I repeat that it is not necessary to decide this question to dispose of this appeal."

While Beetz J. raises doubt as to whether MacGuigan J. A. 's definition of marital status discrimination in Cashin is wide enough, his observations are certainly obiter and he makes it clear the issue of spousal identity was not before the Court in Brossard.

We are then left with the judgment of the Federal Court of Appeal in Cashin. Since the applicant in that case succeeded in any event, on one view of the decision it might be thought that that part of the judgment which addressed whether spousal identity is included in marital status is not binding on us. We do not believe, however, that we have the right to depart from a principle of law which the Federal Court of Appeal thoroughly considered and determined, even if we were otherwise minded to do so. Sitting as a Tribunal of first instance, we are of the view that we ought to adhere to the principles set out in Cashin. We cannot help but observe that when the present complaint was filed, the decision in Cashin was pending before the Review Tribunal, and the Human Rights Tribunal concluded (as did the Review Tribunal subsequently) that the concept of marital status included spousal identity.

In light of Cashin, is this then a case of marital status discrimination? We think it is. The fact that Marie Louise was a unionized employee and that Le Blanc was a supervisor for the same employer at the same workplace was instrumental in the discrimination that occurred. It is true that Le Blanc's relationship with Marie Louise began in 1984 and that he did not allege any discrimination against him until after Marie Louise filed her human rights complaint in December 1985.

But while Marie Louise's activity in pursuing her complaint undoubtedly triggered the respondent's adverse treatment of Le Blanc, such adverse treatment would not have occurred without the relationship between a management employee and a union employee at the same place of employment. This is quite a different case than Cashin. There is a group concept involved here within the intermediate position referred to by MacGuigan J. A. In human rights proceedings based on marital status discrimination, we believe it is important to be especially sensitive to the possibility of such discrimination occurring when both spouses have a common employer and when one is part of management and the other is a member of the bargaining agent. On the facts in this case, a finding of discrimination under the Act is within the broad principles in Cashin, and is consistent both with the observations of Beetz J. in Brossard and the requirement to give the statute a liberal interpretation. Thus we find the complaint of marital status discrimination has been substantiated.

VII. LE BLANC'S COMPENSATION CLAIMS

The remedies section of the Act is section 53. The provisions relevant to Le Blanc's claims are sections 52( b), (c) and (d) and section 53( 3) which provide the following:

"53( 2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

. . . (b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;

(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and

(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.

(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that

(a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or

(b) the victim of the discriminatory practice has suffered in respect of feelings or self- respect as a result of the practice,

the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine."

It goes almost without saying that the employer is liable for the discriminatory acts of its employees committed in the course of their employment. See Robichaud v. The Queen, [1987] 2 S. C. R. 84.

Le Blanc claimed he was entitled to compensation for what he termed direct losses and indirect expenses. We address his claims as he has categorized them.

Direct Losses (a) Loss of Acting Pay Le Blanc claimed the difference in pay between a SUP- 2 position and an acting SUP- 3 position from the time he was removed from his acting assignment until the position was abolished in July 1986. The difference is $102.40 per month for four months or a total of $409.60. Le Blanc is clearly entitled to recover this sum given our finding of discrimination.

(b) SUP- 5 Pay from July 1986 to May 1990 Le Blanc claimed that had he received a Fully Satisfactory appraisal, he would have received a promotion to a SUP- 5 position in 1986. He thus claims the difference between SUP- 2 and SUP- 5 pay from 1986 until 1990 when he was promoted, an amount which he calculated to be $14,602.00. Undoubtedly the Acceptable rating which he received denied Le Blanc his opportunity for the promotion. But neither he nor the Commission led any evidence to suggest Le Blanc would have received the promotion even with a Fully Satisfactory rating. The qualifications of the 19 other candidates were not before us nor any details about the selection process for the positions in question. In order to succeed under this head of compensation, Le Blanc must at least have demonstrated on the evidence that he would have had a reasonable possibility of obtaining the promotion absent discriminatory treatment. In our view he has failed to meet this onus and we therefore dismiss this claim for compensation.

(c) Sick Leave, Annual Leave and Compensatory Leave Le Blanc claimed the restoration of 29½ days of sick leave credits, 13½ days of annual leave credits and 2 days of compensatory leave. These were credits he had used up and had been paid for. The respondent strenuously disputed that any of the time off which Le Blanc took arose from Canada Post's treatment of him. Quite apart from that issue, the difficulty the complainant has is that the Act does not confer jurisdiction on a Tribunal to grant this head of relief. See A- G Canada v. McAlpine, 12 C. H. R. R. D1253 (Fed. C. A.). In our opinion, neither section 53( 2)( b), (c) nor (d) is wide enough to permit a Human Rights Tribunal to restore used- up benefits or credits.

(d) Hurt Feelings Le Blanc also claimed compensation for hurt feelings under section 53( 3)( b) of the Act. The statutory limit for such an award is $5,000. Le Blanc has clearly suffered as a result of what has occurred to him. The maximum permissible award under the Act for this head of damages is not large and we are of the view that on the facts of this case Le Blanc ought to receive the full $5,000.

Indirect Expenses Le Blanc also sought compensation for what he called indirect expenses. He testified that under the financial arrangements he and Marie Louise had, she paid 45% of their living expenses and he paid 55%. He claimed that when Marie Louise left work in June 1986, Le Blanc had to shoulder the entire financial burden of the marriage and that he should be compensated for the 45% contribution his wife could no longer make. This sum he calculated to be $38,855.89.

As we view it, this claim does not arise out of any adverse treatment of Le Blanc. This is a loss of income claim that belongs to Marie Louise. Her evidence was that she had intended to take maternity leave in November but took it earlier because of the emotional stress on her. She apparently had planned to return to work in February 1987 but did not do so according to Le Blanc because of her fear of some of her co- workers. Marie Louise pursued and settled her own human rights complaints. Any income loss suffered by her ought to have been addressed in those proceedings, not this one.

Interest

The Tribunal has jurisdiction to award interest [see Attorney General v. Rosin, [1991] 1 F. C. 391 and in our judgment the complainant is entitled to interest on the amounts ordered under heads (a) and (d) above. The only questions are for what period of time and at what rate. This complaint has been outstanding since December 22, 1986. There has been no suggestion in the record that the delay in bringing the proceedings before the Tribunal was attributable to the respondent. Nonetheless, interest is intended to be compensatory and the respondent has had the use of the money in issue for the entire period. Thus, we believe interest should run from the date the complaint was filed. The bank rate has varied considerably over the past 5½ years and we think it is appropriate to use an average rate which we fix at 11%.

In the result, we award Le Blanc the sum of $5,409.60, together with interest at the rate of 11% from December 22, 1986.

June, 1992

John I. Laskin

Jane Banfield

Jacinthe Théberge