Date: 20050316
Docket: T-1052-04
Citation: 2005 FC 376
Toronto, Ontario, March 16th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
PERBHAKAR AL KRISHNAN
Applicant
and
ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Al Krishnan seeks judicial review of a decision of the Canadian Human Rights Commission (CHRC) dismissing his complaint of discrimination in relation to his alleged wrongful dismissal by the Royal Bank of Canada (RBC). Mr. Al Krishnan contends that he was denied natural justice and requests that I quash the CHRC's decision not to deal with his complaint of discrimination on the basis of sexual orientation. These are my reasons for dismissing the application.
THE DECISION
[2] In its correspondence dated April 27, 2004, the Commission states that, before rendering its decision, it reviewed the investigator's report and any submissions filed in response. In dismissing the complaint, it says - the evidence does not support the allegation that the complainant was treated differently or released from employment on the ground of national or ethnic origin.
BACKGROUND
[3] Mr. Al Krishnan is from Malaysia and is gay. He began working for RBC as a volunteer in January, 2001. In March of the same year, he was hired for an hourly shared resources position (a pool of part-time employees available for relief assignments at RBC branches and locations as needed). In February 2002, he and two other employees (both of whom were Caucasian and had less seniority) applied for full-time positions as business service representatives. There were two positions available and the other employees were chosen to fill them.
[4] On June 14, 2002, Mr. Al Krishnan filed a complaint with the CHRC alleging that RBC discriminated against him on the basis of his national or ethnic origin. An investigation was conducted. The investigator, by report dated January 29, 2004, recommended that a tribunal be appointed to inquire into the complaint. RBC made its responsive submissions regarding the investigator's report on February 20, 2004. The CHRC forwarded a copy of the RBC submissions to Mr. Al Krishnan and requested his written comments regarding the investigator's report and RBC submissions before March 22, 2004. On February 23, 2004, Mr. Al Krishnan informed the CHRC investigator that he had no comments to make with respect to the report.
[5] On March 22, 2004, Mr. Al Krishnan consulted counsel for the first time. Counsel informed him that he ought to have alleged sexual orientation as a basis for the complaint. Counsel, in Mr. Al Krishnan's presence, contacted the CHRC to inquire as to whether the original complaint could be amended to add a new ground of discrimination and whether the CHRC would grant a ten day extension for submission of a commentary regarding the RBC response.
[6] Mr. Al Krishnan understood that the CHRC consented to the requests. The record, however, discloses otherwise. The affidavit of the CHRC manager of investigations reveals that counsel was told that the commentary could be submitted as late as April 8, 2004, but that in relation to an amendment, any allegation of discrimination on the basis of sexual orientation would require a fresh complaint. The ground would be "severely out of time and the CHRC may decide not to deal with it". The contemporaneous notations of the manager confirm the evidence in his affidavit.
[7] Mr. Al Krishnan apparently thought that his counsel was going to provide a responsive commentary to the RBC submissions and was going to amend the complaint to add sexual orientation as a ground of discrimination. In fact, no submissions were made by either Mr. Al Krishnan or counsel. As noted, the CHRC ultimately dismissed the complaint based on national or ethnic origin. It was after receipt of the decision that Mr. Al Krishnan learned that counsel had not forwarded any submissions regarding the ground of sexual orientation to the CHRC. He has since lodged a complaint with the Law Society of Upper Canada regarding counsel's alleged "professional incompetence and/or negligence".
ISSUE
[8] The issue, as framed by Mr. Al Krishnan, is whether the decision of the CHRC not to deal with his complaint of discrimination on the basis of sexual orientation should be quashed on the basis that he was denied natural justice.
STANDARD OF REVIEW
[9] When considering an allegation of denial of natural justice, there is no need to engage in an analysis of the applicable standard of review. Rather, I am required to evaluate whether procedural fairness has been afforded by the tribunal. This necessitates an assessment of the specific circumstances giving rise to the allegation and determining what procedures and safeguards were required in the circumstances in order to comply with the duty to act fairly: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.).
ANALYSIS
[10] As I indicated to counsel at the hearing, the decision under review is the decision to dismiss the applicant's first (and only) complaint of discrimination on the basis of national or ethnic origin. Mr. Al Krishnan has not asked for any relief with regard to this decision. Rather, he asks me to quash a decision of the CHRC not to deal with his new complaint of sexual orientation as a ground of discrimination. No such decision was made.
[11] Specifically, Mr. Al Krishnan does not take issue with the dismissal of his complaint on the basis of national or ethnic origin. There is no suggestion that he was denied the opportunity of an inquiry by the Human Rights Tribunal in relation to his original complaint. He does not contend that counsel ought to have submitted, on his behalf, a response to the investigator's report or to the RBC submissions regarding this complaint. There is neither evidence nor argument that counsel's alleged misconduct denied Mr. Al Krishnan the opportunity for a consideration of the merits of his original complaint.
[12] The only argument is that counsel's failure to file a new complaint on the basis of sexual orientation robbed him of the opportunity of an investigation and consideration of the new ground. This argument is misconceived. By the time counsel advised Mr. Al Krishnan that he ought to have alleged discrimination on the basis of sexual orientation, the investigation into his original complaint has been completed, the investigation report had been circulated, the RBC submissions had been completed and provided to Mr. Al Krishnan and, subject only to his further commentary, the matter was ready for determination.
[13] The complaint of discrimination on the basis of sexual orientation is discrete in that it is distinct from the complaint upon which the CHRC made its decision that is the subject of this application. As yet, no complaint based on sexual orientation has been filed with the CHRC. Consequently, it is not open to Mr. Al Krishnan to suggest that the CHRC failed to consider the exercise of its discretion pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[14] The issue of counsel's incompetence is a matter between the applicant and his counsel. Even if counsel was incompetent (and the record before me does not support such a finding), the CHRC could not have known of it.
[15] The application must therefore be dismissed. In the exercise of my discretion, I decline to award costs.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed without costs.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1052-04
STYLE OF CAUSE: PERBHAKAR AL KRISHNAN
Applicant
and
ROYAL BANK OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 16, 2005
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: MARCH 16, 2005
APPEARANCES:
Nathan M. Ross FOR THE APPLICANT
Douglas K. Gray
Lauri A. Wall FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROSS & ASSOCIATES
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
HICKS MORLEY HAMILTON STEWART STORIE LLP
Barristers & Solicitors
Toronto, Ontario FOR THE RESPONDENT