Date: 20030626
Docket: T-1374-01
Citation: 2003 FCT 783
Between:
Balwant NAIK
Applicant,
- and -
Attorney General of Canada
Respondent.
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Canadian Human Rights Commission (the "CHRC"), dated June 27, 2001, wherein, under subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"), it dismissed a complaint lodged by the applicant against the Department of Citizenship and Immigration, on the basis that the applicant's allegations of discrimination were unfounded.
The applicant is a Canadian citizen who has been residing in Montreal since 1990. The applicant is the only member of his family to reside in Canada, and promised his mother that, according to Indian custom, he would try to find a good husband for his niece, Pannaben Shashivadan Patel ("Ms. Patel").
The applicant met Mr. Uttambhai Patel, a Canadian resident, in Montreal and subsequently introduced him to Ms. Patel. On April 30, 1996, Mr. Uttambhai Patel and Ms. Patel were married in India. The couple lived together in India for one month before Mr. Patel returned to Canada, from where he applied to sponsor his wife to come to Canada. Mr. Patel later revoked the sponsorship and filed for divorce.
The applicant hired a Quebec lawyer to represent his niece in her cross-demand for the divorce case, in order to recover the value of his family's wedding donations.
Ms. Patel made three requests for a visitor's visa in order to attend her divorce hearing in Canada, and received three refusals from the Canadian High Commission in New Delhi, dated September 17, 1998, October 12, 1998, and November 9, 1998.
Further to Ms. Patel's fourth application for a visitor's visa, she was given an interview at the Canadian High Commission in New Delhi on March 8, 1999. Her fourth application was subsequently refused. On March 22, 1999, the Superior Court of Quebec granted the divorce and refused Ms. Patel's cross-demand.
Ms. Patel applied to the Federal Court of Canada for a review of her refusal. Justice Muldoon dismissed Ms. Patel's application on the ground that the issue had become moot, since the divorce hearing was already over.
On November 5, 1999, the applicant filed a complaint of discrimination with the CHRC, on the grounds of family status and gender. In a report dated February 20, 2001, Mélanie Morier recommended the dismissal of the complaint. The CHRC dismissed the complaint in a letter dated June 27, 2001 and addressed to the applicant.
The CHRC gave the following explanation for its dismissal of the applicant's claim:
Before rendering their decision, 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, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
the evidence does not support the allegations that departmental visa officers discriminated against the complainant's niece by (repeatedly) refusing to grant her a visitor visa; and
the evidence shows that the complainant's niece failed to satisfy the visa officers about meeting the requirements of the Immigration Act and Regulations and guaranteeing her return to India after the visit.
The applicant submits that the CHRC refused to exercise its jurisdiction, because it did not render a decision on his complaint of discrimination, but rather appears to have addressed only his niece's allegation of discrimination. However, the CHRC clearly dismissed the applicant's complaint. In doing so, it had to make reference to the alleged discrimination against the applicant's niece since the refusal to grant her a visitor's visa was the basis for the applicant's complaint.
In the alternative, the applicant submits that the CHRC did not give a sufficient and adequate reason for its decision. However, because the CHRC is not required to provide reasons for a decision made pursuant to subparagraph 44(3)(b)(i) of the Act (Brochu v. Bank of Montreal (1999), 251 N.R. 207 (F.C.A.)), the explanation which it did provide in the letter is sufficient. Moreover, although the CHRC does not specifically adopt the investigator's report, which the applicant had in his possession and to which he had responded, its adoption of two of the investigator's recommendations verbatim can reasonably be inferred to be an adoption of the portions of the report relevant to those recommendations. Therefore, the CHRC must be assumed to have adopted the investigator's reasoning in that regard, thus expanding on the limited reasons contained in the dismissal letter (see Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 at 134 (C.A.)).
The applicant also argues that the CHRC failed to assess the complaint fully and in accordance with all provisions of the Act and human rights law, adding that such failure constituted a denial of procedural fairness. He argues that the investigator erred in her interpretation of the case law surrounding the grounds of discrimination which the CHRC had the jurisdiction to investigate. I agree.
The relevant sections of the investigator's report read as follows (pages 122 and 123 of the applicant's record):
However, the Canada (Secretary of State) vs. Menghani and Menghani vs. Canada Employment and Immigration Commission decisions specify that although someone in Mr. Naïk's situation may file a complaint based on family status, the grounds of discrimination linked to the relatives' situation are not to be investigated, since these relatives do not have a legal status in Canada. Therefore, the allegations of discrimination based on sex, marital status (divorced) and national or ethnic origin (Indian) in Ms. Patel's case can neither be considered nor investigated. The only allegation that should be investigated is if CIC's (repeated) refusals to grant the complainant's niece a visitor visa were illicitly based on family status.
[. . .]
It is recommended, pursuant to section 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:
_ the Canada (Secretary of State) vs. Menghani and Menghani vs. Canada Employment and Immigration Commission decisions specify that family status only is to be considered and investigated as a ground of discrimination, since it is the only one to be connected to the person who is lawfully present in Canada and holds the right to file a complaint with the Commission . . .
Nowhere in the above-cited cases does the Canadian Human Rights Tribunal (the "CHRT") or the Federal Court state that only family status is to be considered and investigated as a ground of discrimination. In fact, the CHRT states the following in Menghani v. Canada Employment and Immigration Commission (1992), 17 C.H.R.R. D/236:
[63] The expressed purpose of the Immigration Act of reuniting close relatives does not aim to benefit only the immigration applicant. It is as much a benefit to the assisting or sponsoring relative to be re-united with family from their home country in their new country, Canada. Any act or omission which impedes the ability of an assisting relative to take a role in the application process infringes on the rights and benefits accorded to the assisting relative under the Immigration Act. If the act or omission is found to be discriminating, the assisting relative in Canada would be as much the victim as the applicant. On this interpretation, Jawahar was personally discriminated against by the Immigration requirement and can be classified as a direct victim.
[64] Accordingly the Tribunal finds that Nandlal had imposed upon him restrictive conditions (documentation requirements) that had a disproportionate impact on him because of the special characteristic of national origin (unavailability of documentation) contrary to section 5 of the CHRA. We would conclude that Jawahar was a victim of this discriminatory practice as well and consequently, that this Tribunal has the jurisdiction to make a determination on the Complaint under the CHRA.
(Emphasis is mine.)
The CHRT's decision was upheld on this point by the Federal Court in Canada (Secretary of State for External Affairs) v. Menghani, [1994] 2 F.C. 102 (T.D.). The familial relationship between the applicant for residence (Nandlal) and his brother (Jawahar), a Canadian citizen assisting him in his application, was used to establish Jawahar's status as a "victim" under the Act and, therefore, the CHRT's jurisdiction to investigate his complaint. Although family status was the ground on which Jawahar's complaint was based, discrimination against Nandlal on the basis of national origin had to be investigated in order to determine whether, by extension, there had been discrimination against Jawahar. Similarly, in Naqvi v. Canada (Employment and Immigration Commission and Department of External Affairs) (1993), 19 C.H.R.R. D/139 (C.H.R.T.), the complainants were the sister and brother-in-law of a Pakistani woman, Naz Jaffery, who had been denied a visitor visa to Canada. The CHRT examined not only the grounds of discrimination specified by the complainants, being their race/colour, national or ethnic origin and Naz Jaffery's marital status, but added the grounds of the latter's gender and age in order to determine whether discrimination against her had occurred and whether, by extension, the visa officer had discriminated against her Canadian relatives. Clearly, once it has been established that the CHRT has jurisdiction to hear the complaint under these circumstances, all possible grounds of discrimination against a complainant's relative must be investigated in order to determine whether the complainant was also the victim of discrimination.
The investigator's confusion over this point is echoed in the respondent's misreading of Singh (Re), [1989] 1 F.C. 430 at 442, where the Federal Court of Appeal did not rule that the grounds of discrimination linked to the relatives' situation are not to be investigated or considered. In fact, according to Hugessen J.A., discriminatory practices against relatives may constitute discriminatory practices against Canadian citizens:
I would, however, go a great deal further. The question as to who is the "victim" of an alleged discriminatory practice is almost wholly one of fact. Human rights legislation does not look so much to the intent of discriminatory practices as to their effect8. That effect is by no means limited to the alleged "target" of the discrimination and it is entirely conceivable that a discriminatory practice may have consequences which are sufficiently direct and immediate to justify qualifying as a "victim" thereof persons who were never within the contemplation or intent of its author. Thus, even in the case of the denial of visitors' visas, it is by no means impossible that the complainants in Canada who were seeking to be visited by relatives from abroad should not themselves be victims of discriminatory practices directed against such relatives. A simple example will illustrate the point: could it seriously be argued that a Canadian citizen who required a visit from a sibling for the purposes of obtaining a lifesaving organ transplant was not victimized by the refusal, on prohibited grounds, of a visitors' visa to that sibling?
8 See Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited et al., [1985] 2 S.C.R. 536.
In the case at bar, the investigator clearly based her recommendation on the assumption that the only allegation which could be investigated was that the visa officers' refusals constituted discrimination on the ground of family status. This was an error in law, and by simply adopting the investigator's recommendations, the CHRC based its decision on the same error of law.
I also agree with the applicant's argument that the investigator erred by limiting her investigation only to direct and intentional discrimination. At paragraph 27 of her report, the investigator stated the following:
Thus, it is the motivations of the visa officers, who refused Mrs. Patel a visa because they concluded that granting it would be contrary to the Immigration Act and Regulations that will be examined. . . .
This has the effect, whether intentional or otherwise, of excluding the possibility of both direct unintentional discrimination and adverse effect discrimination from the investigation. Furthermore, the motivations of the visa officers are completely irrelevant to the investigation (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, and Symes v. Canada, [1993] 4 S.C.R. 695), as is their understanding of Indian culture and society. By focussing on these irrelevant considerations, the investigator failed to assess properly whether the refusals of Ms. Patel's applications for visitor visas were discriminatory.
By simply adopting the investigator's recommendations, the CHRC once more based its decision on the same error of law as that made by the investigator.
Consequently, the application for judicial review is allowed, the decision of the CHRC, dated June 27, 2001, is set aside, and the matter sent back to a differently constituted panel of the CHRC for reconsideration in accordance with the above reasons. The costs are adjudicated in favour of the applicant.
JUDGE
OTTAWA, ONTARIO
June 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1374-01
STYLE OF CAUSE: Balwant NAIK v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 27, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: June 26, 2003
APPEARANCES:
Ms. May Chiu FOR THE APPLICANT
Mr. Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. May Chiu FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario