Date: 20030627
Docket: T-768-01
Citation: 2003 FCT 799
Ottawa, Ontario, June 27, 2003
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
JEANNE D'ARC VOLLANT
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
and
HEALTH CANADA
and
NOËLLA BOUCHARD
and
REINE PARENTEAU
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated April 6, 2001, by the Canadian Human Rights Tribunal (the Tribunal) dismissing four complaints of discrimination filed by the applicant under the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the Act).
[2] The applicant, Jeanne D'arc Vollant, was employed by Health Canada as a driver/escort/interpreter from 1986 to 1996.
[3] On April 28, 1995, she filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that her employer differentiated adversely in relation to her in the course of employment by reducing her hours of work from forty hours to twenty hours per week. She also alleged that her employer tolerated harassment towards her because of her Aboriginal origin, contrary to sections 7 and 14 of the Canadian Human Rights Act.
[4] Similarly, on May 11, 1995, she filed two complaints with the Commission maintaining that two Health Canada employees harassed her because of her Aboriginal origin, contrary to the provisions of section 14 of the Act.
[5] Lastly, on June 11, 1997, she filed a complaint with the Commission alleging that her employer, Health Canada, discriminated against her by differentiating adversely in relation to her
in the course of employment and by refusing to provide her with employment because of her Aboriginal origin, contrary to section 7 of the Act.
[6] The hearing before the Tribunal took place over several months and was chaired by Roger Doyon.
[7] On April 6, 2001, the Tribunal rendered its decision dismissing the applicant's complaints. It concluded that the facts revealed by the evidence and the balance of probabilities did not establish the merits of the charge of discrimination levelled against the employees, nor did they establish the merits of the complaints against the employer, Health Canada.
[8] That decision is the subject of this application for judicial review.
ANALYSIS
[9] It is appropriate to note at the outset that, in my view, the standard of review applicable to the findings of fact of a tribunal is patent unreasonableness (Canada (Human Rights Commission) v. Canada (Armed Forces), [1999] 3 F.C. 653).
[10] The issue of bias on the part of the Tribunal is a question of law and fact, which is a matter for this Court because it deals with the conduct of the Tribunal and not its decision.
[11] The applicant submits firstly that there was a reasonable apprehension of bias on the part of the Chairperson of the Tribunal.
[12] She contends that the Chairperson made racist comments during a conversation with Mr. Norris, the applicant's representative. The affidavit of Mr. Norris confirms the following:
[TRANSLATION]. . . He added that he owned a cottage near a lake north of Baie Comeau, and that on the drive between his home in Beauce and his cottage on Highway 138, between Forestville and Baie Comeau, he passed the sign for the community of Betsiamites. Mr. Doyon asked me (as a former member of the RCMP who was in charge of the Baie Comeau post) whether he could drive freely around the Indian reserve in question without fearing for his safety.
Applicant's record at page 141.
[13] The applicant submits that the Chairperson's comments reveal an attitude or point of view that casts doubt on the Chairperson's impartiality. This has serious implications because the applicant and her witnesses are of Aboriginal descent.
[14] The respondents maintain that the applicant has not discharged her burden of proving, by means of material and reliable evidence, that the Chairperson's conduct was seriously derogatory. The impugned comments were made during a private conversation between people who were in the habit of chatting with each other about harmless subjects from their personal lives. The words were unimportant and could not suggest that the Chairperson had taken sides or was biased against Aboriginals.
[15] In addition, the respondents state that they find it insidious for the applicant to raise an issue now that she apparently did not regard as serious at the time, because she did not raise it before the Tribunal.
[16] The test to determine whether a reasonable apprehension of bias exists was articulated by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394:
. . . As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that . . . , whether consciously or unconsciously, would not decide fairly.
[17] An allegation of the appearance of bias against a tribunal is a very serious issue that the Court cannot decide lightly. Such an allegation cannot rest on mere suspicion but must be supported by material evidence (Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 (QL)).
[18] Although I am of the view that the Tribunal's practice of talking informally in private with the parties' representatives is inadvisable, the impugned incident in this case is harmless, does not in my view demonstrate a racist attitude and is not by itself sufficient to raise a reasonable apprehension of bias. Moreover, a careful reading of the reasons in this case shows that the Chairperson thoroughly analyzed the evidence and gave a lot of weight to the testimony of the two Aboriginal witnesses.
[19] I also note that the applicant did not raise her apprehension of bias before the Chairperson of the Tribunal. Her failure to do so in a timely manner is now fatal.
[20] The Supreme Court of Canada has determined that a reasonable apprehension of bias must be raised at the earliest practical opportunity, and that failure to do so will constitute a waiver (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892).
[21] With respect to the respondents' submissions that the Commission did not act in the public interest by failing to raise the issue with the Tribunal, I do not believe this to be the case. Counsel for the Commission properly stated that the incident with Mr. Norris and the Chairperson was trivial and did not require any intervention on the part of the Commission. He therefore said to Mr. Norris that he had no intention of raising the issue of bias on the part of the Chairperson and indicated to Mr. Norris that it was open to the applicant to do so because she was a separate party from the Commission. I am satisfied that the conduct of counsel for the Commission was appropriate under the circumstances and that he cannot now be criticized for not acting in the public interest.
[22] With respect to the merits of the Tribunal's decision, the applicant disagrees with the Tribunal's weighing of the evidence and the findings based on it. Analyzing the facts in dispute and assessing the credibility of the witnesses is within the jurisdiction of the Tribunal. In my view, the Tribunal carefully assessed the evidence that it had heard. None of the Tribunal's findings were patently unreasonable. The applicant cannot ask this Court to prefer her interpretation of the facts over the Tribunal's.
[23] After the Commission had closed its case, the applicant asked for an unexpurgated version of the documents that she had obtained a week earlier pursuant to an application under the Access to Information Act and the Privacy Act. She maintains that the Tribunal's refusal to order the respondent to provide the documents resulted in a denial of her right to make full answer and defence.
[24] It is helpful to note at the outset that the burden is on the complainant to establish that her allegations of discrimination have merit. It is not the applicant who has a right to a full answer and defence, but those whom she is accusing of discrimination.
[25] In any event, it is not enough for a party to state that the documents are necessary to cross-examine a witness; the party must satisfy the tribunal that the documents are relevant, and the applicant was unable to do so.
[26] Since the Commission had closed its case, it clearly believed those documents were useless. If it had found them to be relevant, it would have required their production to complete its case. Under the circumstances, it is difficult to see the reasons why the Tribunal should have complied with the applicant's last-minute request. The Tribunal is master of its own procedure and assessing the relevancy of a document is within its discretion.
[27] I am satisfied that the Tribunal properly exercised its discretion.
[28] Lastly, contrary to the applicant's submissions, I am of the view that the Chairperson did not take into account the intentions of those who made the allegedly racist comments. Instead, he asked himself whether a reasonable informed person would have viewed the comments as discriminatory considering the context in which they were made. The Supreme Court of Canada in Prud'homme v. Prud'homme, [2002] S.C.J. No. 86 (QL), recently confirmed the importance of interpreting words in their context to avoid distorting the truth. That is what the Chairperson did. I am satisfied that he correctly applied the applicable law in this case.
[29] For all these reasons, the application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed without costs.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-768-01
STYLE OF CAUSE: JEANNE D'ARC VOLLANT
and
CANADIAN HUMAN RIGHTS COMMISSION and HEALTH CANADA and NOËLLA BOUCHARD and REINE PARENTEAU
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 23, 2003
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Danièle Tremblay-Lamer
DATED: June 27, 2003
APPEARANCES:
Geeta Narang for the applicant
Raymond Piché and
Nadine Perron for the respondents (Health Canada)
Giacomo Vigna for the respondent (Canadian Human Rights Commission)
SOLICITORS OF RECORD:
Geeta Narang
5594 Hutchison Street
Montréal, Quebec
H2V 4B6 for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Quebec Regional Office
Guy Favreau Complex
200 René Lévesque Boulevard West
East Tower, 5th Floor
Montréal, Quebec
H2Z 1X4 for the respondents (Health Canada)
Canadian Human Rights Commission
344 Slater Street
9th Floor
Ottawa, Ontario
K1A 1E1 for the respondent