Date: 20010531
Docket: T-1360-99
Neutral Citation: 2001 FCT 561
Ottawa, Ontario, this 31st day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ALAN JAMES MORAN
Applicant
- and -
HER MAJESTY THE QUEEN
as represented by INDUSTRY CANADA
Respondent
[1] This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, (the "Act") in respect of a decision of the Canadian Human Rights Commission (the "CHRC"), dated October 15, 1998.
Background Facts
[2] The applicant is currently employed as a Complex Case Officer by what was Revenue Canada - Taxation. In 1991, he applied and placed fifth on the eligibility list for the position of Senior Bankruptcy Officer (PM4) with Consumer and Corporate Affairs (now Industry Canada). The applicant was not offered an intermediary position due to fiscal restraints at the time and was seconded to the position of Senior Bankruptcy Officer in February, 1993.
[3] In 1994, the applicant participated in another competition to staff a Senior Bankruptcy Officer position and placed second out of two qualified candidates. The first ranked candidate accepted the job.
[4] On May 29, 1995 the applicant suffered a minor stroke and was for the most part, away from work until October, 1995, when he returned on a part-time basis. In October, 1995 the secondment the applicant was employed at was terminated due to fiscal restraints and he returned to his previous position at Revenue Canada - Taxation. The applicant's hours increased gradually until he reached full-time status in February, 1996.
[5] On April 29, 1996 the applicant noticed an Industry Canada competition poster for another Senior Bankruptcy Officer position. The 1994 eligibility list for that position had expired on March 31, 1996. Had the eligibility list not expired, but been extended to September 28, 1996 (to the maximum of two years), the applicant would have been appointed to the position as he was the only remaining name upon it. The applicant did not compete in the 1996 competition.
[6] The applicant filed a complaint with the CHRC alleging that the respondent "discriminated against [him] in employment on the ground of disability (minor stroke) by refusing [him] a higher level job contrary to section 7 of the Canadian Human Rights Act." The applicant alleges the respondent did not extend the 1994 eligibility list and held the 1996 competition because the respondent did not want to hire him inasmuch as he was disabled as a result of the stroke.
[7] The CHRC appointed an investigator to investigate the applicant's complaint. The investigator's report recommended the appointment of a conciliator to try to settle the complaint. The investigator also concluded that the applicant's failure to enter the 1996 competition did not affect the merits of his complaint.
[8] The report was sent to both parties to comment upon before it was submitted to the CHRC. Both parties provided written submissions on the report which were before the CHRC when it rendered its decision. The CHRC decided to dismiss the complaint on October 15, 1998. In dismissing the complaint, the Commission stated:
Before rendering the decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided to dismiss the complaint. The reasons for the Commission's decision are as follows:
Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because:
the evidence does not support the allegation that the respondent discriminated against the complainant because of his disability;
there is no evidence to link the complainant's stroke with the decision not to extend the eligibility list;
the complainant was eligible to apply on the 1996 competition, but chose not to compete.
[emphasis in original]
[9] Issues
1. Did the CHRC render its decision in breach of the rules of procedural fairness?
2. Did the CHRC have the authority to dismiss the applicant's complaint?
Applicant's Submissions
[10] Standard of Review
The applicant submits that the standard of review should be correctness.
The CHRC's Decision to Dismiss the Applicant's Complaint
The applicant submits the CHRC did not have the authority to dismiss his complaint. Specifically, he submits the CHRC could not have found insufficient evidence to warrant referring the matter to a tribunal and therefore, the CHRC could not have dismissed the complaint. The applicant also submits the CHRC relied on irrelevant considerations in basing its decision on the fact that he did not enter the 1996 competition. The applicant argues that the three reasons given by the CHRC in dismissing his complaint are insufficient and attacks the CHRC decision from three different perspectives.
1. The applicant argues the CHRC was required to follow the legal principles governing the burden of proof in human rights cases when assessing the evidence before it. According to the applicant, these principles dictate:
(a) The complainant must first establish a prima facie case of discrimination.
(b) If established the burden shifts to the respondent to provide "on clear and cogent evidence, that there is no basis for the case."
The decisions of Basi v. Canadian National Railway Company, [1988] C.H.R.D. No. 2 T.D. 2/88 and Ontario Human Rights Commission v. Simpsons-Sears and O'Malley, [1985] 2 S.C.R. 536 (hereinafter "O'Malley") are offered by the applicant in support of the above submission.
The applicant argues that a prima facie case in support of his complaint was set out for the following reasons: he was qualified for the position (ranked on the eligibility list for the same position twice before); the respondent intentionally elected not to extend the 1994 eligibility list depriving him of the right to be appointed to the position; and the only material fact to change between his earlier qualification and the decision not to extend the list was his stroke (of which the respondent was aware).
The applicant submits the respondent (by stating in essence, that the list was not used/extended because there was no reason to do so) did not show clear and cogent evidence that the decision was not a pretext for discriminating against him. The applicant argues there were reasons for the respondent not to use/extend the list in support of his complaint.
The applicant also adds that by recommending conciliation, the investigator must have found that the respondent was unable to rebut the prima facie case.
2. Since the CHRC disagreed with the investigator, it must have had additional evidence provided to it in the parties' submissions on the investigator's report. Since the CHRC did not cross disclose these submissions, it must have considered that they did not add anything new to the evidence before the investigator. The applicant argues there was insufficient evidence before the CHRC to allow it to disagree with the findings of the investigator.
3. The CHRC breached the rules of procedural fairness by not cross disclosing the parties' submissions to the CHRC with respect to the investigator's report.
The Respondent's Submissions
[11] Appropriate Standard of Review
The respondent submits that the standard of review in considering the discretionary decision of the CHRC not to refer a complaint to a tribunal is one of reasonableness, while the standard of review in matters concerning the jurisdiction of the CHRC is that of correctness.
[12] The CHRC's Decision to Dismiss the Applicant's Complaint
The respondent submits that the statutory discretion to dismiss a complaint lies solely with the CHRC and that the CHRC has broad discretion when acting as an administrative screening body to decide if a complaint should be referred to a Human Rights Tribunal. The respondent submits the CHRC is not bound by the investigator's recommendation and acted reasonably in reaching its conclusion based on the evidence before it.
[13] The respondent argues that in considering the fact that the applicant chose not to compete in the 1996 competition, the CHRC did not act unreasonably or in bad faith or in a perverse or capricious manner, given its obligation to review the material before it and its wide discretionary screening function.
[14] The respondent further submits that in any event, if the CHRC considered an irrelevant factor, this does not constitute a reviewable error as the CHRC's decision indicates it would have reached the same conclusion (as it decided there was no evidence linking the applicant's stroke to the expiry of the eligibility list).
[15] Alleged Breach of Procedural Fairness
The respondent submits that the applicant was not denied procedural fairness in the CHRC's assessment of his complaint, and that the applicant had an opportunity to address the respondent's submission that his stroke was not a factor in deciding to let the eligibility list expire.
Relevant Statutory Provisions
[16] Subsection 18(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended states:
| 18. (1) An appointment under this Act made to a position by competition shall be made from an eligibility list in accordance with the regulations of the Commission. |
18. (1) Les nominations à des postes pourvus par voie de concours sont effectuées d'après la liste d'admissibilité conformément aux règlements de la Commission. |
|
Subsection 14(1) of the Public Service Employment Regulations, 1993, SOR/93-286, (revoked SOR/2000-80) states:
| 14.(1) Subject to subsections (2) and (3), where an eligibility list has been established for a position and an appointment to that position, other than an acting appointment, is to be made, the eligibility list must be used or exhausted before an appointment is made as a result of any other process of selection . . . |
14.(1)Sous réserve des paragraphes (2) et (3), lorsqu'une nomination, autre qu'une nomination intérimaire, est prévue à un poste pour lequel une liste d'admissibilité a été établie, celle-ci doit être utilisée ou épuisée avant que la nomination soit faite selon un autre mode de sélection. |
|
The relevant sections of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 state:
| 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. |
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience. |
|
| 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. |
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_: a) de refuser d'employer ou de continuer d'employer un individu; b) de le défavoriser en cours d'emploi. |
|
| 44.(3) On receipt of a report referred to in subsection (1), the Commission (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted . . . (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted . . . |
44.(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue: (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié . . . b) rejette la plainte, si elle est convaincue_: (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié . . . |
|
| 47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been (a) settled in the course of investigation by an investigator, (b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or (c) settled after receipt by the parties of the notice referred to in subsection 44(4), appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint. |
47. (1) Sous réserve du paragraphe (2), la Commission peut charger un conciliateur d'en arriver à un règlement de la plainte, soit dès le dépôt de celle-ci, soit ultérieurement dans l'un des cas suivants_: a) l'enquête ne mène pas à un règlement; b) la plainte n'est pas renvoyée ni rejetée en vertu des paragraphes 44(2) ou (3) ou des alinéas 45(2)a) ou 46(2)a); c) la plainte n'est pas réglée après réception par les parties de l'avis prévu au paragraphe 44(4). |
|
Analysis and Decision
[17] Issue 1
Did the CHRC render its decision in breach of the rules of procedural fairness?
In order to determine whether or not a breach of procedural fairness occurred in
the present case, it is appropriate to summarize the law relating to procedural fairness in cases dealing with human rights complaints.
In Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 (hereinafter referred to as the "S.E.P.Q.A. case"), Justice Sopinka described the process by which the Commission deals with a complaint. At pages 899 to 900, Sopinka J. stated:
The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, MR, in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:
In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion. . . . In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
[18] Lamer J. (as he then was) in Radulesco v. Canadian Human Rights Commission
(1984), 55 N.R. 384 (S.C.C.) said at pages 387 - 388:
[13] Respondent Commission acknowledges that it must act on a quasi-judicial basis when it decides to dismiss a complaint as unsubstantiated under s. 36(3)(b) of the Canadian Human Rights Act. It also acknowledges that procedural fairness requires that the complainant be provided with an opportunity to make submissions, at least in writing, before any action is taken on the basis of the report; however, a hearing is not necessarily required. Finally, the Commission acknowledges that in order to ensure that such submissions are made on an informed basis, it must, prior to its decision, disclose the substance of the case against the party.
[14] Given the nature and extent of the information which was disclosed to the appellant by the investigator, the respondent Commission acknowledges that the substance of the case against appellant was not communicated to her prior to the decision. The Commission also agrees that, as a result thereof, this appeal should be allowed with costs to the appellant on a solicitor-client basis. Without pronouncing upon all aspects of the standard of conduct the Commission must meet, I agree that the standard enunciated by the respondent is one which must, in all cases, be met. Therefore the failure to meet this standard in this case should result in the appeal being allowed.
[19] The applicant claims that the response of the respondent to the investigator's report contained material including arguments that were not made known to the applicant until after the Commission decided to dismiss his complaint. The new material that he focussed on primarily was the respondent's position that its staffing decision was not based on the applicant's disability. I have reviewed the material initially submitted to the Commission by the respondent and I cannot find any argument relating to the connection between the applicant's disability and the staffing decision in the respondent's defence contained in the investigator's report. Instead, the respondent seemed initially to be taking the stance that the manager did not have the authority to extend the term of the eligibility list. It was only in the May 28, 1998 letter in response to the investigator's report that the issue of the applicant's "alleged disability" rose to the forefront.
[20] In addition, the May 28, 1998 letter from the respondent contained very forceful arguments to the effect that it was the applicant who denied himself potential access to the position because he did not apply in the 1996 competitive process. Granted, the fact that the applicant did not apply in the 1996 competition was referred to in the investigator's report which concluded that the failure to enter the 1996 competition did not affect the merits of his complaint, but the importance of this argument was made very clear by the respondent's May 28, 1998 letter and eventually adopted by the CHRC as one of its reasons for dismissing the applicant's complaint.
[21] The question that now needs to be answered is whether the failure to disclose the respondent's response of May 28, 1998 to the applicant constitutes a breach of procedural fairness. There is no doubt that the dismissal of a human rights complaint has important consequences for the applicant. A dismissal puts an end to the applicant's complaint and the applicant cannot receive any statutory remedy (see Larsh v. Canada (Attorney General) [1999] F.C.J. No. 508, T-1079-98 (F.C.T.D.) at pagraph 36). I recognize that Larsh, supra dealt with the Commission's reasons to dismiss the complaint but it is also important to allow the applicant the opportunity to give full answer prior to the CHRC making its decision, as its decision dismissed the applicant's complaint.
[22] My review of the record and in particular, the investigator's report and the respondent's May 28, 1998 letter to the CHRC, lead me to the conclusion that the letter should have been given to the applicant for his comments. It raised the issue of the applicant's "alleged disability" and also put a much stronger position forward with respect to the applicant's failure to apply in the 1996 competition. In fact, the letter stated that by his not applying in the 1996 competition, he "denied himself potential access to an opportunity". The investigator had stated in his report the failure to apply did not effect the merits of the complaint, yet the CHRC used this failure to apply as one of its basis for dismissing the complaint.
[23] The decision of the CHRC shall be set aside. The matter shall be returned to the Commission for reconsideration in accordance with these reasons.
[24] In light of the decision I have reached on Issue 1, I need not deal with Issue 2.
[25] The applicant shall have his costs of the application.
ORDER
[26] IT IS ORDERED that the application for judicial review is allowed and the decision of the CHRC shall be set aside. The matter shall be returned to the CHRC for reconsideration in accordance with these reasons.
[27] AND IT IS ORDERED that the applicant shall have his costs of the application.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 31, 2001