Date: 19990122
Docket: T-931-98
BETWEEN:
OSRA LINDO
Applicant
- and -
ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] These reasons arise out of a hearing on an objection by the Canadian Human Rights Commission (the "Commission"), pursuant to Rule 318(2) of the Federal Court Rules, 19981. The objection was taken to the provision to the Court, pursuant to a request made under Rule 317, of certain materials allegedly in the possession of the Commission and allegedly relevant to the application for judicial review in which the request for the materials was made. The relevant portions of Rules 317 and 318 read as follows:
| 317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. |
317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral dont l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés. |
| (2) An applicant may include a request under subsection (1) in its notice of application. |
(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande. |
| 318. (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit (a) a certified copy of the requested material to the Registry and to the party making the request; or (b) where the material cannot be reproduced, the original material to the Registry. |
318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l'office fédéral transmet : a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause; b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause. |
| (2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection. |
(2) Si l'office fédéral ou une partie s'opposent à la demande de transmission, ils informent par écrit toutes les parties et l'administrateur des motifs de leur opposition. |
| ... (4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry. |
... (4) La Cour peut, après avoir entendu les observations sur l'opposition, ordonner qu'une copie certifiée conforme ou l'original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe. |
BACKGROUND
[2] By application filed the 30th of April, 1998, the applicant seeks judicial review of a decision of the Commission. The decision sought to be reviewed is dated the 30th of March, 1998. It dismissed the applicant's complaint alleging discrimination in employment on the basis of age and race on the part of the respondent. The applicant, in her application seeks an order:
| (a) requiring the Canadian Human Rights Commission to disclose to the applicant all documents and statements in its possession upon which it based its decision to dismiss her complaint. |
| (b) requiring the Canadian Human Rights Commission to forthwith convene a hearing at which viva voce evidence of the witnesses to the applicant's complaint may be heard and rebutted on the record, in accordance with the requirements of natural justice and fairness, for the purposes of reconsidering the applicant's complaint for the purpose of appointing a Human Rights Tribunal or in the alternative, |
| (c) an order requiring the Canadian Human Rights Commission to forthwith request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with sections 44(3)(a) and 49 of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 as amended ... |
| or in the further alternative to the above requested orders, |
| (a) a declaration that the denial of access to the Human Rights Tribunal for resolution of her human rights complaint is unconstitutional and a violation of the equality and other rights of the applicant, found in sections 15 and 7 of the Canadian Charter of Rights and Freedoms, which cannot be justified under s. 1. |
(b) an order requiring the Canadian Human Rights Commission to forthwith request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with sections 44(3)(a) and 49 of the Canadian Human Rights Act.
[3] The grounds for the applicant's application for judicial review, as recited in the application, are extensive. They are set out in Schedule A to these reasons.
[4] The materials that the applicant requests the Canadian Human Rights Commission to send to the Registry of this Court and to her are extensive, certainly much more extensive than the materials actually filed with the Court and provided to the applicant by the Commission. The materials requested are described in the applicant's application for judicial review and that description appears in Schedule B to these reasons.
[5] The materials actually filed with the Court by the Commission, and certified to comprise all of the materials that were before the Commission when it made its decision that is the subject of the application for judicial review, consist of the complaint form signed by the applicant on the 31st of March 1995; the investigation report prepared by investigators of the Commission and dated the 27th of November 1997; a letter from a former counsel for the applicant dated the 21st of November, 1997; a letter from counsel for the respondent dated the 14th of November, 1997; and, finally, a chronology. These materials constitute some 25 pages but are consecutively numbered as pages 887 to 911. It is thus, not unreasonable for the applicant to assume that the Commission has on its file or files, in relation to her complaint, very substantial additional material.
CONSIDERATIONS
[6] Materials that may be requested of a tribunal such as the Commission, pursuant to Rule 317, are materials that are relevant to the application for judicial review, that are in the possession of the tribunal who's order is the subject of the application and that are not in the possession of the requesting party. Here, there is no issue that the materials requested are in the possession of the Commission and not in the possession of the applicant. Rather, the issue is whether the materials requested are relevant to the application for judicial review. That is the basis of the Commission's objection.
[7] In Canada (Human Rights Commission) v. Pathak2, the Court of Appeal dealt with an appeal from an order of this Division of the Court directing the Commission to file certified copies of certain documents, in essence, rejecting an objection in the nature of that before me. In a brief recital of the facts, Pratte J.A. wrote at page 458:
The Commission, ... designated one Bob Fagan to investigate the complaint. After concluding his investigation, Mr. Fagan prepared a report of his findings which ended with a recommendation that the complaint be dismissed. A copy of that report was sent to [the complainant] for his comments. He answered by sending detailed written representations which the investigator submitted to the Commission together with his report. On March 18, 1992, after considering the report and [the complainant's] representations, the Commission decided pursuant to subparagraph 44(3)(b)(i) ... of the Act "to dismiss the complaint because on the evidence the allegation of discrimination is unfounded." [certain citations omitted]
[8] Precisely the same sequence of events has lead to this application for judicial review.
[9] In Pathak, the applicant for judicial review founded his application on two grounds, namely: that the decision of the Commission was unlawfully made because the Commission ignored relevant evidence, misconstrued the evidence before it and made findings of fact that were so patently unreasonable as to constitute a reviewable error; and that the conduct of the Commission was such that the complainant was denied natural and fundamental justice. Once again, when summarized, the applicant's grounds for seeking judicial review are essentially similar except that here the applicant has added grounds that go to the constitutionality of the Canadian Human Rights Act and the Commission"s processes thereunder.
[10] At pages 460-461 of the Pathak decision, Pratte J.A. wrote:
| If the material is not relevant, the Tribunal is not obliged to produce it. |
| A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent. |
In this case, the decision of the Commissions which the respondent seeks to have reviewed was rendered under subsection 44(3) of the Act on the basis of the report prepared by [the investigator] and the written submissions sent by the [complainant] in answer to that report. Section 44 of the Act clearly contemplates that the decision of the Commission be made on the basis of the investigator's report. This is so because the law presumes that the report of the investigator correctly summarizes all the evidence before him. That presumption must be taken into account in assessing the relevance of the documents requested by the [complainant]. [emphasis added]
[11] Once again, these words are directly applicable to the facts of this matter. Mr. Justice Pratte went on to determine that the materials to which the Commission took objection to producing were not relevant to the application for judicial review. Mr. Justice Décary agreed with the reasons of Mr. Justice Pratte.
[12] Mr. Justice McGuigan, the third member of the Panel of the Court of Appeal, expressed himself as being in full agreement with the reasons of Mr. Justice Pratte. He nonetheless went on "...to add some additional considerations." At page 464, he wrote:
Only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report. These are two different moments of the Commission's life, distinct moments not to be obliterated by a legal fiction. [emphasis added]
[13] Once again, Mr. Justice Décary agreed with the reasons of Mr. Justice McGuigan.
[14] Pathak is binding authority on me. While counsel before me cited many other authorities, in the absence of a basis on which to distinguish Pathak, I am satisfied that I need go no further. I can find no basis on which to distinguish the Pathak decision. The addition of the constitutional grounds to this application for judicial review do not, I am satisfied, make any additional materials, not before the Commission, relevant to the judicial review. If in her application for judicial review, the applicant had alleged bias on the part of the investigators who conducted the investigation leading to presentation to the Commission of a an allegedly biased report, that ground might very well have provided a basis to go behind the report of the investigators, but no such allegation is made. While the applicant has, in fact, alleged that the investigation was incomplete, I am not satisfied that that allegation is different in nature from the allegations that were before the Federal Court of Appeal in Pathak. In fact, an allegation as to an incomplete investigation is in the nature of an allegation of a denial of natural and fundamental justice, an allegation clearly before the Court in Pathak.
CONCLUSION
[15] Based upon the foregoing considerations, the objection of the Commission will be sustained.
[16] One further comment is required. The applicant filed no affidavits in support of her application for judicial review and the time for doing so has now long since expired. Two affidavits, one of Malcolm Davidson and one of the applicant were tendered before me. I agreed to receive them for the purpose of conducting the hearing before me. They remain unfiled. If, at this stage of this proceeding, an application is made for late filing of the affidavits, that application remains to be determined on its merits.
Judge
Ottawa, Ontario
January 25, 1999
SCHEDULE "A"
(See paragraph [3] of the reasons)
The grounds for the application are:
| 1. The applicant was not afforded an opportunity to know the respondent's case against her and to provide full answer and response to that case, in particular, she was not permitted to know the full position and evidence of the individual manager who acted towards her in a discriminatory fashion. |
| 2. In particular, the applicant was denied access to the statements of the witnesses, to an opportunity to hear those witnesses, cross examine them and to bring evidence contradicting those witnesses to the attention of the Commission. Despite being denied this opportunity, the Commission relied upon the statements of these witnesses to dismiss the applicant's complaint. The applicant was thus denied an opportunity to make full answer and response to the evidence upon which the Commission dismissed her complaint. |
| 3. The applicant was further denied access to documentary evidence which the Commission relied upon in dismissing her complaint, and was not afforded an opportunity to make full answer and response to that evidence. |
| 4. The Commission erred in finding that because the applicant's complaint was not confirmed by third party witnesses (there being none to the matters in question), that the complaint was therefore "unfounded". |
| 5. The Commission erred in finding that because co-workers of the applicant denied having experienced discriminatory behaviour themselves, the applicant's complaint was therefore "unfounded". |
| 6. The Commission erred in making findings of the relative credibility of the witnesses without hearing them, comparing their testimony and affording any opportunity to the applicant to properly challenge their evidence. The Commission further erred in basing its decision on such findings of credibility. |
| 7. The Commission erred in attempting to have an officer derive findings of credibility from witness interviews from a number of different officers, interviewing different witnesses at different times. The Commission further erred in relying upon the resulting officer's report to dismiss the complaint. |
| 8. The Commission erred in failing to take into consideration and give proper weight to the full background to the complaint, including the effect of the working environment of the witnesses on their willingness to provided negative information to the Commission about their employer. The majority of the witnesses work or worked for a bank which was downsizing. |
| 9. The Commission erred in failing to take into consideration and give proper weight to the background of the applicant, who had been a loyal and proficient employee of the bank for thirty years before her most recent manager began find [sic] fault with her work. |
| 10. The Commission erred in failing to interview a key witness for the applicant. |
| 11. The Commission erred in failing to have regard to the circumstantial evidence in support of the applicant's complaint, including (but not limited to) the documentary evidence indicating that the manager who acted in a discriminatory manner towards the applicant was also intent in keeping the applicant "focused" on the idea of accepting the bank's severance package, as opposed to the alternative option of another job within the bank. |
| 12. The Commission erred in failing to consider the issue of the mistake in the initial calculation of the applicant's pension under the severance offer, which mistake overestimated her years of credited service by seven and one half. This mistake was not discovered until after the applicant felt compelled to accept the severance offer. |
| 13. The Commission erred in failing to consider the impact of the manager's discriminatory treatment of the applicant on her consideration of the severance package, and state of mind at the time of acceptance of the package. |
| 14. The Commission erred in failing to consider the issue of the threatened elimination of the applicant's position with the bank and the impact of this threat on her consideration of the severance package. The Commission further erred with respect to this issue in failing to take into consideration the fact that once the applicant had taken the severance package, her old position was not eliminated, but was filled by a white woman who was paid at the same rate of pay as the applicant had been. The Commission further erred with respect to this issue in misconstruing overemphasizing the lack of age differential between the applicant and her replacement, rather than their different racial backgrounds. |
| 15. The Commission erred in uncritically accepting the respondent bank's explanations of certain of their actions without due regard for the applicant's contradicting evidence. |
| 16. In these errors, the Commission committed the following reviewable actions: |
| (a) the Commission failed to observe principles of natural justice and procedural fairness which would require it to allow the applicant to know the case being raised against her in defence, in full, and to provide an opportunity to make full answer to it. The Commission failed to give a fair opportunity to the applicant to correct or contradict relevant statements that were prejudicial to her view. |
| (b) the Commission erred in law in failing to have regard to basic principles of evidence, and in failing to have regard to the principles established in human rights jurisprudence with respect to the assessment of evidence proferred to prove discrimination, including (but not limited to) the acceptance of circumstantial evidence, similar fact evidence, and evidence of patterns of behaviour. |
| (c) the Commission based its decision on erroneous findings of fact, made in a perverse or capricious manner without regard for the material before it. The Commission relied on assessments of credibility which were made under circumstances in which credibility would be impossible to assess. |
| (d) the Commission thus erred in law in making its decision to dismiss the applicant's complaint. |
| (e) further, by these errors, the Commission acted in a patently unreasonable manner in dismissing the applicant's complaint. |
| 17. With respect to the Charter issues raised in the within application, the application is based on the following grounds: |
| (a) the requirements of the Canadian Human Rights Act with respect to the filing, investigation and determination of whether a hearing will be held into the complaint are a violation of the applicant's rights to equality under section 15 of the Charter; |
| (b) these requirements effectively bar access to a hearing into a violation of a legal right, except according to the discretionary determination of the Commission, and they bar access to a hearing solely on the basis of the applicant's identity, which can be described on the basis of an enumerated ground: race. |
| (c) these requirements deprive the applicant of the right to have her case determined by a court or tribunal of competent jurisdiction. |
| (d) given the fundamental nature of the human rights sought to be protected under the Human Rights Act, these requirements provide inadequate and incomplete protection to the applicant in respect of her legal rights afforded under the Canadian Human Rights Act. |
| (e) the continuation of the requirement that the Commission must approve any complaint under section 44 of the Canadian Human Rights Act before it goes to a hearing perpetuates discriminatory attitudes about the persons whose rights are to be protected under this legislation by depriving them of the right to direct their own litigation, which right is granted to any other individual claiming a violation of a legal right. |
| (f) the barring of access to a court or tribunal of competent jurisdiction by the requirements of the Canadian Human Rights Act is an infringement of the right to liberty and security of the person, as guaranteed under section 7 of the Charter. |
| (g) the discretion granted to the Commission to withhold access to a tribunal of competent jurisdiction is a violation of the principles of fundamental justice which are required to be observed under section 7 of the Charter. |
| (h) there is no section 1 justification under the Canadian Human Rights Act for this unconstitutional violation of the applicant's Charter rights. |
| 18. The applicant seeks to rely on such further and other grounds as this Court may permit. |
SCHEDULE "B"
(See paragraph [4] of the reasons)
| The applicant requests the Canadian Human Rights Commission to send a certified copy of the record in the applicant"s complaint that is in its possession to the applicant and to the Registry, including but not limited to: |
| All notes, documents, memoranda, correspondence and any materials whatsoever which make up the file, or files, maintained by the Canadian Human Rights Commission in respect of the applicant's complain in Commission File No. T43650, and in particular, but not limiting the foregoing: |
| (a) all witness statements taken by the Commission in the course of investigating the complaint, including the name of the deponent, the date or dates the statement was taken, and the officer or officers taking the statement; |
| (b) all documents relating to the formulation of the report prepared by the officer or officers who created the report in this complaint, forwarded to the applicant from the Commission under cover of letter dated October 28, 1997; |
| (c) all legal memoranda, opinions, correspondence or documents which address the applicant's complaint or issues therein; |
| (d) all documents provided to the Commissioners in order that they could make a determination under s. 44 of the Human Rights Act. |