Federal court upends Shoan harassment finding

A Federal Court judge has overturned a 2015 CRTC decision that former commissioner Raj Shoan harassed a senior staff member, ruling he was denied procedural fairness in the investigation leading up to the decision. In a Friday decision, judge Russel Zinn approved the judicial review application brought forward by Shoan, who had turned to the courts to fight the finding and subsequent punitive measures levied against him by chairman Jean-Pierre Blais following a complaint by Amanda Cliff, the executive director of communications. “The failure of procedural fairness by the Investigator and the Chairman make the entire Report and the corrective measures suspect and unreliable,” Zinn said in his written decision, adding that “an informed person” would “conclude that the standard of open-mindedness has 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.” The harassment complaint and following investigation by a third party came following a series of email exchanges between Shoan and Cliff over a seven-month period in 2014. After the investigation, Blais signed off on both the mediator’s conclusion that Shoan had committed workplace harassment and a recommended communications protocol that required Shoan to copy the CRTC secretary general on all of his emails to staff as well as have the secretary general’s office co-ordinate all phone calls with staff members. In a statement posted online Friday evening Shoan said he was "grateful for the considered decision of the Federal Court" and that Zinn's ruling aligned with his "consistent position over the past two years" that the workplace harassment finding was "unfounded and that there were serious procedural flaws in the investigation process." Shoan said he is currently examining his legal options "in regard to the harm that has suffered as a result of the false allegations and flawed findings made against " and that he remains "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." He added: "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." During a June 21 judicial review hearing in Toronto, Shoan’s lawyer argued that as a fellow governor-in-council appointee, Blais did not have the authority to reprimand commissioners, despite his position as CEO of the CRTC. In his decision, Zinn disagreed with the notion that only the GIC could handle issues arising with appointees as sending them up to the GIC would only result in appointments being rescinded or continued, and wouldn’t address the day-to-day issue of appointee-employee relations. But when it came to the investigation and subsequent report by Diane Laurin, Zinn agreed that “a harassment investigation has significant consequences for all parties involved, and thus procedural fairness is required.” At the hearing Zinn also called into question the participation of Blais as a witness in the investigation considering he had the final say on the outcome, an issue he covered at length in his written decision. Comments made by the investigator in her report about the status and reputation of Blais as “highly decorated” and “respected” were “very troubling” and supported his finding that the investigator was closed-minded. “It is troubling because… the investigation veered from the initial Complaint to explore whether Commissioner Shoan created a toxic work environment at the CRTC — a view that appears to have been first expressed by the Chairman to the Investigator and then found by her as fact,” Zinn wrote. He added that interviewing of Blais as a witness “went beyond questioning the Chairman as to the ‘facts’ relating to the impugned emails or any actions he took as a consequence of being informed of them. It became an opportunity for the Chairman to express his personal views on Commissioner Shoan’s conduct and behaviour generally.” Zinn noted that his reasons “should not be interpreted as a finding that there were no issues with any of Commissioner Shoan’s emails,” though he did take issue with what appeared to be the investigator’s dismissal of Cliff’s tone and comments in the exchanges. In an email, CRTC spokeswoman Patricia Valladao said “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,” and that “the Attorney General will be considering the next steps.” Friday’s decision sets aside the investigation report, Blais’ decision and the corrective measures against Shoan. When a decision is set aside, Zinn noted, the court can refer the issue back to be decided by someone else “in a proper manner,” but given that Shoan is no longer at the CRTC, Zinn said he saw “no value in making such an order.” Zinn’s decision comes days before a special sitting of the Federal Court in Ottawa on Tuesday to hear an application from Shoan to suspend and appeal the order-in-council terminating his term as CRTC commissioner. The governor-in-council issued an order three days after the hearing removing Shoan from his post as the regional commissioner for Ontario, three years into his five-year term. A notice of application filed by Shoan’s lawyer in July asks for the court’s intervention in the form of an outright appeal of the order-in-council as well as a stay of the order until 10 days after the judicial review into the harassment finding was complete. The decision is the first stemming from a trio of applications Shoan has made to the Federal Court against the CRTC, mainly testing the limits of Blais’ authority as CEO. A judge is scheduled to hear the first application about Blais’ ability to name commissioners to panels on Oct. 24 in Toronto. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Federal court upends Shoan harassment finding

News | September 2, 2016

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Federal court upends Shoan harassment finding

News | September 2, 2016

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