Court File No: T— 17-16 FEDERAL COURT (Forms 66 and 301) eee FEDERAL COURT COUR FEDERALE BETWEEN: t E tL Rate | OF DAWNE KOKE E D FRANK FEDORAK i (LYaNcolveeree AND: SHAW COMMUNICATIONS INC. - and - CHRIS GAILUS RESPONDENTS NOTICE OF APPLICATION ‘TO THE RESPONDENTS: ‘A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page. THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place of hearing will be as requested by the appellant. The appellant requests that this appeal be heard at 701 West Georgia Street, Vancouver, British Columbia. JF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application, or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 508 prescribed by the Federal Court Rules and serve it on the applicant's solicitor, or where the applicant is self- represented, on the applicant, WITHIN 10 DAYS of being served with this notice of application. Copies of the Federal Court Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4288) or at any local office. IF YOU EAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Date: May Hf 2016. ORIGINAL SIGNED BY Issued by: ___ FRANK FEDORAK (Registry ASHGNE L'ORIGINALAddress of Local Office: TO: Pacific Centre, P.O. Box 10065 701 West Georgia Street Vancouver, B.C. V7Y 136 Shaw Communications Inc. Suite 700, 630 - 8" Avenue South West Calgary, Alberta ‘Tae abd Attention; Mr. Bradley S, Shaw, Chief Executive Officer Chris Gailus c/o Shaw Communications Inc. 7850 Enterprise Street Bumaby, B.C. VSA 1V7 Canadian Human Rights Commission 344 Slater Street, 8° Floor Ottawa, Ontario KIA 1E1 Minister of Justice and Attorney General of Canada c/o Deputy Attorney General of Canada Office of the Deputy Attorney General of Canada 284 Wellington Street Ottawa, Ontario KiA 0H8 | HEREBY CERILEY thatthe above document is a true copy ot ‘the origing /out of / filed in the Court en the ay ot YA 12 2016 ap.29__ sate tis aay on__HAY 12 1016APPLICATION (For a judicial Review) This is an application for judicial review in respect of: a decision of the Canadian Human Rights Commission dated April 13, 2016 to close complaint files 20141278 and 20150435. ‘The decision was communicated to the Applicant on: April 15, 2016. ‘The applicant makes application for: 1 4, 5. ‘An otder that the decision of the Canadian Human Rights Commission of April 13, 2016 to close complaint files 20141278 and 20150435 be set aside. ‘Anorder that the Canadian Human Rights Commission add Chris Gailus as a respondent to complaint file 20141276. ‘An order that the Canadian Human Rights Commission proceed forthwith to investigate and prepare a report regarding the merits of the complaints in complaint files 20141278 and 20150435 for consideration by the Commissioner. An order for costs against the respondents. An order for any other relief this Court considers just. The grounds for this application are: 1 The respondent, Shaw Communications Inc,, is a media company operating a television station in Vancouver which prepares and airs a number of news programs (‘Shaw”). The respondent, Chtis Gailus, is an on-air news anchor employed by Shaw Cornmunications Inc. (*Gailus’). “The applicant was employed by Shaw as a make-up artist. Shaw is certified to Unifor (CEP. Media One) and the applicant was covered by a collective agreement between Shaw and Unifor. On October 21, 2014, the applicant filed a complaint under the Canadian Human Rights Act to the Canadian Human Rights Commission (“CHRC”) against Gailus and Shaw, alleging sex discrimination in the form of sexual harassment by Gailus during the period from 2006 to October 22, 2013, and failure by Shaw to follow company policy or a reasonable process in respect of an internal complaint of Sexual harassment to Shaw. This complaint to the CHRC became CHRC complaint file 20141276 In opening this complaint, the CHRC failed to list Chris Gailus as a respondent. In its opening summary for this complaint, the CHRC also failed to recognize that the complaint alleged that Shaw had not followed its own or a reasonable policy in investigating the applicant’s internal complaint of sexual harassment to Shaw.From 2013 until the present, Unifor refused to file a grievance with Shaw regarding the applicant's allegations of sexual harassment by Gailus or the applicant's allegations that Shaw did not follow company policy ot a reasonable process in respect of the applicant’s intemal complaint of sexual harassment to Shaw. On April 27, 2016 the applicant filed a further complaint to the CHRC against Shaw alleging retaliation against her for having filed a human rights complaint, contrary to ss. 14.1 and 59 of the Canadian Human Rights Act. This complaint became CHRC complaint file 20150485. The allegations in the retaliation complaint included: i. that Shaw wrongly sought to interview the applicant about her complaint cof discrimination to the CHRC although she was represented by counsel; ii, that Shaw considered the applicant's refusal to be interviewed insubordinate and a breach of her duty of fidelity to Shaw; iii, that Shaw wrongly claimed that the applicant was satisfied with its response to the applicant's internal complaint and that her complaint to the CHRC was filed for improper motives; iv. that Shaw alleged chat it ws investigating te applicant for harassment after she filed her CHRC complaint but did not provide specifics; vy. that Shaw repeatedly claimed that the applicant was not behaving herself appropriately in the workplace after she filed the CHRC complaint, vi. that Shaw claimed that the applicant had made a negative comment about Gailus online when the applicant was actually agreeing with Gailus; vii, that Shaw refused to provide the applicant's personnel file despite repeated formal requests by counsel; viii, that Shaw ordered the applicant to attend an ME only days after receiving an initial sick leave note; ix, that Shaw improperly used the IME to question the applicant about her CHRC complaint and to intimidate her, and x. that Shaw improperly refused to return the applicant to work when she advised that she was ready to retum on February 28, 2015 From the date of these events until the present, Unifor refused to file a grievance with Shaw regarding the applicant’s allegations of retaliation. In August 2015 the applicant was terminated by Shaw when she failed to return to work after Shaw denied the applicant’s request for a leave of absence until her40. iL, 12. 13. 14, 15, 16. 17, human rights complaints to the CHRC were concluded or resolved. Unifor grieved this termination and the posting of the applicant's position. These two grievances ate limited to whether Shaw had just cause to terminate the applicant and post her position when she refused to return to work. The issues between the applicant and Shaw relating to the sexual harassment, Shaw's internal sexual harassment investigation process, and its retaliation against the applicant are not covered by these grievances. “The jurisdiction of a grievance arbitrator is strictly limited by the terms of the grievance before the arbitrator. An arbitrator is unable to determine or remedy any Other matter. Doing so would be a reviewable error of jurisdiction. An arbitrator hearing the termination and posting grievances will be unable to make binding findings or declarations in respect of the issues in the applicant’s CHRC complaints. Even if incidental findings were made, the arbitrator would be unable to make orders or provide a remedy in respect of issues in the CHRC complaints as they are not formally before the arbitrator in the termination and posting grievances. The only issue before the arbitrator on the termination and posting grievances is whether Shaw had just cause to terminate the applicant. “The right to grieve in a unionized workplace belongs to the union. Unifor has not, and will not, file grievances in respect of the contents of either CHRC complaint. Moreover, any stich grievances would now be out of time and would be successfully opposed by Shaw on this basis. “The union may only file grievances against Shaw as the signatory to the collective agreement. No grievance can therefore be filed against Gailus regarding the applicant's complaint of sexual harassment against him, The respondents requested the CHRC to determine whether complaint 20141278 should be closed pursuant to 85. 41(L)(a) and (2) of the Canadian Human Rights Act on the basis that it was filed in bad faith or for an improper purpose, or that grievance or other review processes reasonably available should be exhausted instead, The applicant requested the CHRC to disclose the respondents’ request. The CHRC denied this request for disclosure. The CHRC further did not provide particulars of the respondents’ claims such that the applicant was able to make Appropriate submissions prior to the completion of the Section 40/41 Report. “The CHRC also requested section 41 submissions from the applicant in relation to the retaliation complaint 20150485. The applicant requested an opportunity to review and respond to the respondent's submissions priot to this report, but the CHIC declined to provide the respondent’s submissions prior to the report and an opportunity to respond to those submissions The CHRC prepared a Section 40/41 Report to the Commissioner tecommending that complaint files 20141278 and 20150435 be closed on the basis that the applicant ought to exhaust grievance or review procedures otherwise available to the applicant18. 19. 20, 21. 22, 23. 24. 25. {As petmitted by the CHRC, the applicant provided submissions to the CHRC both before and after each report was prepared. The applicant formally requested the submissions of the respondent before completing her submissions but this request was refused, An issue in the submissions process was whether Unifor was proceeding with the termination grievance. The CHRC spoke to Shaw which advised that the union was proceeding with the termination grievance. The CHRC prepared its report without confirmation of this from the applicant or Unifor, even though the applicant advised the CHRC that she was not aware that the termination grievance had been filed, let alone whether it was proceeding. The CHRC also spoke to the applicant personally, although it was fully advised that the applicant was represented by counsel In vatitten submissions before and after the Section 40/41 Report was prepared, the applicant submitted that the CHRC could not close complaint 20141278 because Unifor had not and would not grieve the allegations of sex discrimination on the basis of sexual harassment or the failure to follow company policy or a reasonable rocess regarding an internal complaint of sexual harassment. The applicant ther submitted that the CHRC could not close complaint 20150435 because Unifor had not and would not grieve the applicant's allegations of retaliation prior to April 27, 2015. The applicant submitted that it could not close the complaint against Gailus because this complaint could not be grieved. In submissions after the Section 40/41 Report, the applicant further submitted that the union had advised her that it was not proceeding with her termination or posting grievances to hearing. On March 16, 2016, the union advised Shaw that it was proceeding with the termination and posting grievances By decision dated April 18, 2016, the CHRC closed both CHRC file 20141278 and CHERC file 20150435 on the basis that the complainant ought to exhaust grievance or review procedures otherwise reasonably available. The CHRC erred and acted unreasonably when it did not include Chris Gailus as a formal respondent to CHRC complaint file 20141278. “The CHRC erred and acted unreasonably when it failed to record that CHRC complaint file 20141278 included an allegation that Shaw had not followed company policy or a reasonable process in respect of the applicant's internal complaint of sexual harassment. The CHRC denied the applicant natural justice and a fair hearing when it did not disclose to the applicant the respondent's request for the CHRC to conduct a section 40/41 review of complaint 20141278, or provide appropriate particulars of the respondents’ claims in its request such that the applicant was able to provide full submissions prior to the preparation of the Section 40/41 Report. ‘The CHRC denied the applicant natural justice and a fair hearing when it did not disclose to the applicant the respondents’ submissions in a timely way or at allbefore preparing its Section 40/41 Report recommending closure of the complaint, and when it did not permit the applicant to respond to the respondents’ submissions after the Section 40/41 Report was prepared and before the Report was considered by the CHRC. 26. The CHRC denied the applicant natural justice and a fair hearing when it prepared its Section 40/41 Report on the basis of Shaws evidence alone that the termination and posting grievances were proceeding. 27. The CHRC acted unreasonably and made a fundamental error in closing CHRC complaints 20141278 and 20150435 against both respondents even though no grievances exist ot will be filed with respect to the issues covered by these Complaints. The CHRC had evidence before it that no grievance procedures were reasonably available to the applicant with respect to the contents of these complaints since the applicant cannot force the union to proceed with grievances regarding the contents of her CHRC complaints. The CHRC also had evidence before it that no grievance can be filed against Gailus personally as he is not a signatory to the collective agreement. This application will be supported by the following material: 1. Anaffidavit attaching the materials in the possession of the applicant provided to or received from the CHRC and setting out the steps in the CHRC process known to the applicant. 2. Certified materials to be provided by the Canadian Human Rights Commission, ‘The applicant requests the Canadian Human Rights Commission to send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the Canadian Human Rights Commission to the applicant and to the Registry: ft ‘The CHRC’s complete file in relation to complaints 20141278 and 20150435. 2. All comespondence between the respondents and the CHRC in relation to complaints 20141278 and 20150435. All recordings or notes to file by any member of the CHRC in relation to complaints 20141278 and 20150435. 4. All notes of any interviews conducted by the CHRC in relation to complaints 20141278 and 20150435. 5. All materials provided to the Commissioner or the Commissioner's delegates in relation to complaints 20141278 and 20150435. 6. All materials created by the Commissioner or the Commissioner's delegates in relation to complaints 20141278 and 20150485 and/or the CHRC’s decision in relation to these files.Dated at Vancouver this 11" day of May, 2016 | bie ledoke Clea F. Parfitt Applicant's solicitor Name, address, and telephone and fax number of the applicant's solicitor: Clea F. Parfitt 407 - 825 Granville Street Vancouver, British Columbia V6Z1K9 Telephone: 604 6897778 Fax: 604 689 5572Court File No.: FEDERAL COURT BETWEEN: DAWNE KOKE APPLICANT SHAW COMMUNICATIONS INC. - and - CHRIS GAILUS RESPONDENTS NOTICE OF APPLICATION Clea F. Parfitt 407 - 825 Granville Street Vancouver, British Columbia V6Z1K9 Telephone: 604 6897778 Fax: 604 689 5572