Date: 20040518
Docket: T-2139-02
Ottawa, Ontario, this 18th day of May, 2004
Present: The Honourable Justice James Russell
BETWEEN:
OLIVIA ANN ELIZABETH BANKS
Applicant
and
CANADA POST CORPORATION
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Intervener, the Canadian Human Rights Commission ("Commission") dated November 22, 2002 ("Decision") to dismiss a complaint made by the Applicant, Olivia Ann Elizabeth Banks, against the Respondent, Canada Post Corporation ("Respondent"), that related to the termination of the Applicant's employment with the Respondent.
BACKGROUND
[2] The Applicant was an employee of the Respondent from 1980 until, by letter dated July 15, 1997, she was released from her employment effective August 31, 1997.
[3] The stated reason for the termination was the Applicant's "inability to carry out productive, meaningful work" for the Respondent and, further, that the Respondent had "no information which might support [the Applicant's] ability to return to productive employment." The Respondent relied on the "Release for Incapacity" provisions contained in Article 10.10 of the Collective Agreement.
[4] The Applicant, through her union, the Canadian Union of Postal Workers ("CUPW"), grieved her release through the grievance procedure in the Collective Agreement. With the advice of CUPW, however, she withdrew her grievance on or about September 30, 1997, at least in part so that she could withdraw her superannuation payments prior to her 45th birthday.
[5] The Applicant filed a complaint with the Commission on or about December 16, 1997, alleging that the Respondent "has discriminated against me by terminating my employment because of my disability (left hip injury, pelvic and sacroiliac pain), contrary to s. 7 of the Canadian Human Rights Act" ("Act").
[6] On January 5, 1997, the Applicant filed an unfair representation complaint against CUPW with the Canada Labour Board with respect to her release from employment. The Applicant withdrew that complaint on February 27, 1998.
[7] By letter dated November 20, 1998, Ms. Lucie Veillette, Secretary to the Commission, wrote to the Applicant to advise her that the Commission had "resolved to deal with the complaint... ."
[8] The Respondent applied for judicial review of the November 20, 1998, determination and, by order of Tremblay-Lamer J., dated April 6, 2000, the Respondent's application was dismissed.
DECISION UNDER REVIEW
[9] The Applicant's complaint was investigated by the Commission's investigator, Ms. Ivy Scott ("Investigator"), who issued an investigator's report dated October 30, 2001 ("Investigator's Report"). After reviewing the facts and assertions of the parties, the Investigator recommended "that the Commission appoint a conciliator to attempt to bring about settlement of the complaint."
[10] The Applicant acknowledged receiving and reading the contents of the Investigator's Report.
[11] The complaint was referred to Conciliator, Ms. Penny Goldrick ("Conciliator"), for conciliation in February, 2002. The complaint was not resolved and the Conciliator returned the matter to the Commission for decision. The Conciliator recommended either:
(a) pursuant to section 49 of the Canadian Human Rights Act, that the Commission request the appointment of a Human Rights Tribunal to inquire into the complaint, or,
(b) pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, that the Commission dismiss the complaint because, having regard to all the circumstances of the complaint, an inquiry by a Tribunal is not warranted."
[12] By letter dated September 24, 2002, the Commission sent the Applicant a copy of the Respondent's submissions that followed disclosure of the Investigator's Report. The Commission further invited the Applicant to provide any ensuing comments in writing by October 1 l, 2002.
[13] By letter dated October 10, 2002, the Applicant wrote to the Conciliator with her comments relating to the Respondent's submissions that followed disclosure of the Investigator's Report.
[14] By letter dated November 22, 2002, Ms. Veillette, on behalf of the Commission, wrote to the Applicant and advised her of the Commission's Decision to dismiss the Applicant's complaint pursuant to subparagraph 44(3)(b)(i) of the Act.
[15] On or about December 20, 2002, the Applicant filed and served a Notice of Application seeking judicial review of the Decision.
ISSUES
[16] The Applicant, who is self-represented, raises the following issues:
Canada Post Corporation failed to accommodate in a through (sic) and helpful manner.
Through insincere use of accommodation Canada Post Corporation was responsible for worsening the disability of the Applicant.
When the Applicant became incapacitated Canada Post Corporation failed to provide alternatives.
Canada Post Corporation dismissed the Applicant due to a workplace caused disability.
Canada Post Corporation failed to process the Applicant's severance pay and superannuation contributions in a timely and cooperative manner.
Canada Post Corporation discriminated against the Applicant repeatedly.
Canadian Human Rights Commission exceeded its jurisdiction by failing to consider the complete and correct evidence.
Canadian Human Rights Commission denied the Applicant natural justice.
[17] The Commission says that the issue relevant to its interests is as follows:
Does the Canadian Human Rights Commission have a duty to issue reasons for its section 44 decisions?
ARGUMENTS
Applicant
[1] The Applicant says the Respondent failed to accommodate her in a thorough and helpful manner as outlined in a memorandum dated September 11, 1996, to Gil Hebert, General Manager Mail Operations, from H.R. Sanders, Manager Employee Relations, that was before the Commission but which the Commission did not use as evidence when rendering the Decision.
[2] She says that, through insincere use of accommodation, the Respondent was responsible for worsening her disability.
[3] The Applicant also says that, when she became incapacitated, the Respondent failed to provide alternatives according to Collective Agreement Article 54.02.
[4] She claims that the Respondent dismissed her due to a workplace caused disability.
[5] The Applicant also says that the Respondent failed to process her severance and superannuation in a timely and cooperative manner.
[6] She says that the Respondent discriminated against her by dismissing her from employment before a requested specialized doctor's report was in evidence. Neither the dismissal letter dated July 15, 1997, nor Dr. Wolfgang Shamberger's Medical Report dated July 27, 1997, were used by the Commission as evidence in rendering the Decision, despite the fact that both documents were before the Commission.
[7] The Applicant also says that the Commission used a letter from another person's file in the decision making process.
[8] She says that the Respondent knew she had a disability prior to March 1997. She says she sent a letter dated September 13, 1996, from Dr. D.C. McKenzie of the Allan McGauin Sports Medicine Clinic at the University of British Columbia outlining the nature of the injury and conditions that would worsen the injury. The Applicant notes that the Commission refused this evidence as it was previously submitted in Canadian Human Rights Complaint No. W44388 and also because the letter was written prior to the current investigation before the Commission.
[9] The Applicant suggests that it is unfair that, after five years of hard work, the Commission dismissed the Applicant's claim without disclosing any reasons.
Respondent
General
[10] The Respondent takes the position that the majority of the Applicant's submissions in Part III of her Memorandum of Fact and Law relate to her allegations with respect to the conduct of the Respondent that led to her complaint. The Respondent submits that the substance of these submissions is not properly subject to judicial review, except insofar as they relate to an alleged failure by the Commission to properly reflect such allegations in the Decision.
What is the standard of review to be applied to a decision of the Commission pursuant to s. 44(3)(b)(i) of the Act?
[11] Section 44(1) and (3) of the Act read as follows:
| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
...
(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, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(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, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
...
(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,
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
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,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e). |
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[12] In carrying out its duties under s. 44(3), the Commission is performing an administrative screening function that does not attract the scrutiny given to a judicial or quasi judicial body. As part of the process under s. 44(3), the Commission may decide to either request the establishment of a tribunal to consider the complaint, or it may determine that the establishment of a tribunal is unwarranted and may dismiss the complaint. The oft-cited decision of the Supreme Court of Canada in S.E.P.Q.A. v. Canada (Human Rights Commission_), [1989] 2 S.C.R. 879 discusses this point at pages 899 - 900:
In my opinion, it is the intention of s. 36(3)(b) [now s. 44(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, M.R., 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 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 investigative body itself must come to its own decision and make its own report.
[13] Accordingly, the Respondent argues that a decision of the Commission made pursuant to s. 44(3)(b)(i) should only be reviewed by the Court on the basis of whether it complies with the statute and the rules of procedural fairness as those rules have been expressed generally by the courts.
Is the failure by the Commission to provide written reasons in the Decision a reviewable error and has the Commission otherwise complied with the rules of procedural fairness?
[14] The last three paragraphs in Part II of the Applicant's Record state that the following three points are in issue:
(i) Canadian Human Rights Commission failed to grant the Applicant full and due process;
(ii) Canadian Human Rights Commission exceeded its jurisdiction by failing to consider the complete and correct evidence; and,
(iii) Canadian Human Rights Commission denied the Applicant Natural Justice.
[15] The Respondent points out that, while the Applicant's Memorandum of Fact and Law does not make specific reference to the failure by the Commission to provide reasons, all of the grounds for review listed in her Notice of Application relate to the failure by the Commission to provide reasons in the Decision. Accordingly, the Respondent assumes that the points at issue raised by the Applicant are in reference to the grounds outlined in the Application.
[16] This being the case, the Respondent takes the position that there is no statutory requirement in s. 44(3) of the Act for the Commission to provide written reasons for a decision. Accordingly, the Applicant must establish that such a duty exists under the common law.
[17] The Respondent says that this Court, as well as the Federal Court of Appeal and the Supreme Court of Canada, has had many opportunities to consider the argument raised by the Applicant with respect to the Commission's obligation to provide reasons for a decision rendered pursuant to s. 44(3)(b)(i). It is well established that the failure by the Commission to provide written reasons for a decision is not a reviewable error.
[18] In S.E.P.Q.A., supra, the majority specifically considered this issue with respect to s. 36(3)(b) (predecessor to s. 44(3)(b)(i)), and reasoned as follows, at p. 902:
First, it is submitted that failure to give reasons is itself a basis for review. Assuming without deciding that this is so in the absence of a statutory requirement to give reasons..., in my opinion there is no basis for such review in this case. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the very extensive report of the investigator which the Commission adopted. This, the Commission was entitled by statute to do. The report which it adopted was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision. There is, therefore, no ground for suggesting that there was any denial of natural justice or procedural fairness in this regard.
[19] This issue has received extensive consideration since S.E.P.Q.A.,supra. In Brochu v. Bank of Montreal (1996), 45 Admin. L.R. (2d) 312, the Federal Court granted an application for judicial review of a s. 44(3)(b)(i) decision by the Commission on the basis that the Commission's failure to provide reasons for its decision raised "a strong inference that the decision may have been made on the basis of, or possibly influenced by, those extraneous considerations" (at p. 317).
[20] The Federal Court of Appeal, in Brochu v. Bank of Montreal (1999), 251 N.R. 207, set aside the Federal Court decision and stated the following, at paras. 1 and 2:
... With respect, we believe that the learned judge erred in setting aside the Canadian Human Rights Commission's dismissal of the respondent's complaint based simply on the fact that there were no reasons in support of the notice of dismissal.
Considering the fact that the remedy provided in the Canadian Human Rights Act for those who feel they are victims of discrimination is special and exceptional; considering the role the Commission must fulfill when a complaint is filed, namely that of determining, on the basis of an initial investigation, whether the complaint is serious and whether it should be submitted to the formal sanction of a tribunal; considering the Supreme Court's interpretation of the Commission's role in this regard pursuant to sections 44(2) and 44(3) of the Act and the fact that the case law, following the Supreme Court, has always qualified the decision to dismiss a complaint under the provisions of subparagraph 44(3)(b)(i) or its predecessor as purely administrative and discretionary, while at the same time prescribing strict procedural requirements intended to ensure fairness and impartiality; and last, considering that Parliament did not require the Commission to provide reasons for the decision to decline to investigate some of the complaints before it, no doubt because by their very nature these dismissals are often based on subjective reactions alone which are difficult to put into words, and because the purely personal satisfaction (and not the clarification as for a decision under subsection 42(1) of the Act) a complainant may sometimes find in a detailed explanation cannot outweigh the burden of drafting it. Considering all of the above, we believe that there is no justification for introducing exceptions to the clearly established and oft-repeated rule that the Commission is not required to give reasons when, after observing all of the rules of procedural equity, it dismisses a complaint in accordance with subparagraph 44(3)(b)(i) because "having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted".
[21] Accordingly, the Respondent's position is that so long as the Commission observed all the rules of procedural equity, the absence of reasons in its Decision is not a reviewable error. Other decisions have also reached this conclusion: (Canadian Broadcasting Corp. v. Paul, 2001 FCA 93; Houston v. Air Canada (1998), 144 F.T.R. 152 (T.D.); Mercier v. Canada (Attorney General) (1996), 121 F.T.R. 89 (T.D.)).
[22] The rules of "procedural equity" referred to in Brochu, supra, have been commented on in other decisions of the Federal Court of Appeal and the Federal Court.
[23] In Canadian Broadcasting Corp., supra, the Federal Court of Appeal, relying on S.E.P.Q.A., supra, and Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), made the following comments, at para. 43:
The Courts, applying the principles of procedural fairness, have imposed additional requirements upon the Commission prior to its taking action under subs. 44(3). The Commission is required to inform the parties of "the substance of the evidence obtained by the investigator" and placed before it. This requirement is met by the disclosure of the Investigation Report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision. It is not required to give formal reasons for its decision. Instead, the Courts have found the Commission's reasons in the Investigations Report itself.
[24] The Federal Court of Appeal in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, also relied on S.E.P.Q.A., supra, as well as Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, and commented on the rules of procedural fairness that apply to the Commission's decisions under s. 44(3)(b)(i), at page 12:
As Lord Denning noted, that which procedural fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. Cory J. recently recalled the applicable principles, as follows [at p. 402]:
This Court has repeatedly recognized the general common law principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party's own position.
[25] Pursuant to the above authorities, the Respondent says that the Commission was not required to provide reasons in the Decision so long as it informed the parties of the substance of the evidence obtained by the Investigator. As stated in Canadian Broadcasting Corporation, supra, this requirement is met by the disclosure of the Investigator's Report to the parties. The Commission was also required to provide the parties with the opportunity to make all relevant representations in response to the Investigator's Report and to consider those representations in making its Decision.
[26] Put more generally, as in the Federal Court of Appeal's decision in Mercier,supra, the Commission had to ensure that the parties were informed of the substance of the evidence upon which the Commission intended to rely in making its Decision and that the parties were offered an opportunity to reply to that evidence and to present all relevant arguments relating to that evidence.
The Respondent submits that a review of the record leads to the inevitable conclusion that, in the case at bar, the Commission met all of its obligations in this regard. Specifically, upon receiving the Applicant's complaint, the Commission did the following:
(a) resolved to deal with the complaint pursuant to Section 41(a);
(b) appointed an Investigator who investigated the complaint and issued an extensive Investigator's Report, which was disclosed to the parties;
(c) received a letter from the Applicant responding in writing to this disclosure and stating that she "would like to express [her] appreciation of the thoroughness of the Commission's handling of my complaint", (the Commission also received further submissions from the Respondent);
(d) accepted the Investigator's recommendation and appointed a Conciliator to seek a resolution between the parties;
(e) upon receiving the Conciliator's Report recommending that the complaint either be dismissed or be referred to a Tribunal, disclosed the submissions received following the disclosure of the Investigator's Report to both parties and invited further submissions;
(f) received further submissions from the Applicant in response to the Respondent's submissions following disclosure of the Investigator's Report; and
(g) decided, after reviewing the Investigator's Report, and all submissions based on that Report, that an inquiry by the Human Rights Tribunal was unwarranted.
[27] The Applicant was informed of the substance of the evidence obtained by the Investigator and the substance of the evidence on which the Commission intended to rely in making its Decision.
[28] The Applicant was further provided with the opportunity to make all relevant representations in response to the Investigator's Report and, indeed, in response to all of the Respondent's submissions as well.
[29] Finally, as explicitly stated in the Decision, the Commission considered the representations in making its Decision.
[30] While the Commission did not provide written reasons in the Decision, there is no requirement under either the statute or the common law for the provision of written reasons, as the Commission complied with the relevant rules of "procedural fairness" and/or "procedural equity."
[31] Accordingly, the Respondent urges that the Commission committed no reviewable error and the Application should fail.
If the Commission has committed a reviewable error, what is the appropriate remedy?
[32] In Part IV of her Memorandum of Fact and Law, the Applicant seeks a writ of certiorai and an order "that the court grant an order for the applicant's request for review," an order of costs pursuant to s. 400(1) to (3) of the Rules, and/or an order for "other just, fair and equitable relief as this honourable court may grant."
[33] In her Application filed on December 20, 2002, the Applicant seeks the following:
(1) A declaration that the failure by the Canadian Human Rights Commission to provide reasons denied the Applicant natural justice and was fundamentally unfair.
(2) A declaration that there is a triable issue in this Human Rights matter that can only be resolved through appointment of a Human Rights Tribunal to hear and try the matter.
(3) An order, pursuant to section 44(3)(A)(i) of the Canadian Human Rights Act to appoint a Human Rights Tribunal in accordance with section 49 of the Canadian Human Rights Act; to inquire into the Applicant's complaint respecting discrimination on grounds prohibited by the Canadian Human Rights Act as identified in the Canadian Human Rights Commission Investigator's report and additional submissions to the Canadian Human Rights Conciliator.
(4) A determination by a Human Rights Tribunal as to whether the Canada Post Corporation discriminated against the Applicant in a manner prohibited by the Canadian Human Rights Act.
(5) An order, pursuant to section 317(1) of the Federal Court Rules, 1998 requiring the Respondent to furnish and disclose to the Applicant, all material, Federal Court judgments, submissions, files, correspondence, rough notes, meeting minutes, records of telephone conversations, notations, guides, policies or bylaws referred to pursuant to section 37 of the Canadian Human Rights Act, and any and all materials pertaining to this Canadian Human Rights matter.
(6) A determination of costs pursuant to section 400(1) to (3) of the Federal Court Rules, 1998; and
(7) Such other just, fair and equitable relief as this honourable court may grant.
[34] The Respondent submits that, should the Court determine that the Commission committed a reviewable error, the appropriate remedy is to set the Decision aside and refer the matter back to the Commission for re-determination.
[35] The Respondent also submits that it is not within the Court's jurisdiction to direct the Commission to recommend the establishment of a tribunal, to order the establishment of a tribunal, or to make a determination with respect to the ultimate question of discrimination (Mercier,supra, (F.C.A.)).
[36] If the Court determines it has the jurisdiction to make any of the orders sought by the Applicant beyond remitting the matter back to the Commission, the Respondent submits that it should not exercise its discretion to do so.
Item improperly included in Applicant's Record
[37] The Applicant has included in Appendix "B", Tab 1, of the Applicant's Record, documents which apparently came from a Medical Review panel of the British Columbia Workers Compensation Board. The Respondent points out that the inclusion of this document is unsupported by affidavit and is not alleged to have been part of the record before the Commission. Accordingly, the Respondent submits that it should not form part of the consideration of this Application by the Court.
The Commission
[38] The Commission emphasizes that it is an administrative screening body only. It has no duty to issue reasons for its s. 44 decisions. This was Parliament's intent. It is the express scheme of the Act and the Supreme Court of Canada and the Federal Court have consistently so ruled.
[39] Human rights are quasi-constitutional, and no one would dispute their critical importance to all Canadians, but Parliament created a system in the Act whereby there is a two-stage process for adjudication of human rights complaints. The Commission carries out the first "screening" stage only. This Court and the Supreme Court of Canada have consistently held that only limited natural justice obligations should apply. In short, the Commission has a duty to be procedurally fair.
[40] It may seem inconsistent to some that quasi-constitutional, fundamental human rights are
first adjudicated by an "administrative," "screening" body only but, as the Courts have continually recognized, such was the incontrovertible intention of Parliament in the Act (S.E.P.Q.A., supra, at paras. 19-32; Mercier, supra, at para. 13; Nielsen v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 963 (T.D.) at para. 27; Kallio v. Canadian Airlines International Ltd., [1996] F.C.J. No. 725 (T.D.) at para. 11; Hogue v: Canada Post Corp., [1994] F.C.J. No. 1756 (T.D.) at para. 4; Holmes v. Canada (Attorney General), [1999] F.C.J. No. 598 (C.A.) at para. 4, Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at paras. 38, 46; Canadian Human Rights Act, supra, para. 2, ss. 44, 48.9, s. 50).
[41] The Commission points out that the Courts have consistently stressed the raison d'être of administrative decision-makers such as the Commission, have taken judicial notice of their screening workload, and have thereby described the reasons that such institutions are held to duties of procedural fairness only:
...the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal. These tribunals are created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads. It is unrealistic to expect an administrative tribunal...to abide strictly by the rules applicable to courts of law.
International Woodworkers of America Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 (hereinafter Consolidated-Bathurst) at para. 69.
[42] As is often the case with other administrative decision-makers, the Commission has "heavy caseloads," and a "huge volume of matters brought to its attention." (Consolidated-Bathurst, ibid., at para. 69; Kallio, supra, at para. 13):
...in view of the nature of the Commission's function and giving effect to the statutory provisions, it was not intended that the Commission comply with the formal rules of natural justice...(It must only) comply with the rules of procedural fairness.
SEPQA, supra, at para. 27.
"The decision...not to proceed further with a complaint has been defined as an administrative decision. Of course, the rules of fairness must be observed, but it is clear on a reading of the whole statute that the CHRC must have some respect for its public policy role, which is not limited to part and party disputes. The tenets of its administration must avoid a clutter of cases having essentially the same judicial features. It must have regard to administrative efficiency..."
Nielsen, supra, at para. 28. See also Mercier, supra, (C.A.) at paras. 22-23; Slattery v. Canada (Human Rights Commission), [1994] F.C.J. No. 1017 (T.D.); Hogue, supra.
[43] As an administrative decision-maker, the duty of procedural fairness which the Commission owes the parties before it has been described as follows:
Fundamentally there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto.
Mercier, supra, (C.A.) at para. 14, citing SEPQA, supra, at para. 27, citing Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.).
[44] The Commission acknowledges that the parties have the right to know the case that they have to meet when complaints are being decided by the Commission. This right has significant and concrete content for complainants and respondents, but it does not include the right to reasons for s. 44 decisions.
[45] The Commission takes the position that this Court should affirm the uncontradicted jurisprudence of the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada, as well as the legislated scheme of the Act, and find that the Commission--an administrative decision-maker, a screening body--does not owe a duty to issue reasons for its s. 44 decisions.
ANALYSIS
[46] Because she is representing herself in a complex legal dispute, it is perhaps understandable that the Applicant's complaint against the Commission is somewhat lacking in focus. At the hearing of this matter on April 7, 2004, the Applicant raised issues in her presentation that, strictly speaking, were not set out in her application and written submissions. In brief, she argued that, in reaching its Decision, the Commission failed to take into account crucial evidence that supported her position and, further, the Commission sought an outside legal opinion that it relied upon in making the Decision and that was not disclosed to her.
[47] In her Application the grounds for the Applicant's complaint are that the Commission failed to provide reasons for its Decision, failed to provide the factual basis for the Decision, and failed to provide a rationale or disclose the criteria or basis for its conclusion. This was, she says, a breach of natural justice and procedural fairness.
[48] In her written submissions, she makes several complaints about the Respondent, but in relation to the Commission, the issues she raises are as follows:
1. the Canadian Human Rights Commission failed to grant the Applicant full and due process;
2. the Canadian Human Rights Commission exceeded its jurisdiction by failing to consider the complete and correct evidence;
3. the Canadian Human Rights Commission denied the Applicant natural justice.
[49] It is true that in her written arguments, she does refer to a legal opinion "from Andrea M. Wright, legal counsel, Canadian Human Rights Commission, dated January 28, 2003" and a letter from Ms. Wright to the Applicant also dated January 28, 2003, that advises her that she has been given all of the material that was before the Commission when it made its Decision "with the exception of a legal opinion" and further advising her as follows:
Please note that the Federal Court recently rendered a decision in which it judged that the Commission had committed a procedural breach in that case by considering a legal opinion in making its decision, without first advising the parties of the substance of the question which was referred to legal counsel and without providing the parties an opportunity to make submissions on such question. The Commission has appealed this decision. We have enclosed a copy of this decision for your reference.
[50] This immediately gives rise to the applicability of the decision of Gibson J. in Baltruweit v. Canada (Attorney General) [2002] F.C.J. No. 1615 (T.D.), in which he had the following to say about the failure of the Commission to disclose the substance of the legal opinion to the applicant in that case at paras. 35 - 37:
35. On the facts of this matter, it cannot be disputed that the legal opinion in question was dated the 7th of May, 2001, while the decision under review was made in October, 2001. There was nothing before me that would support an argument that the Commission could not, in the interval between the date of the legal opinion and the time the decision was taken, have disclosed to the applicant, as well as to CSIS, the fact that it had sought a legal opinion on the issues arising in this matter and the substance, not necessarily the exact terms, of the question referred to legal counsel. Such information, combined with an assurance to the applicant and to CSIS that the opinion was sought on the basis of all of the material that eventually went before the Commission, except for the responsive legal opinion itself, and on nothing more, would, I am satisfied, constitute an informing of the applicant and CSIS of, in the words of Justice Décary, "the substance" of the additional evidence on which the Commission considered it might rely in making its decision. It would then have been open to each of the applicant and CSIS to make his and its reply submissions, if any, either through counsel or otherwise, as to what the correct answer to the question posed to counsel should be and as to its relevance, or the lack thereof, to the decision the Commission would be called upon to make. Thus, disclosure would be made "of the substance of the evidence" and, I am satisfied, a satisfactory opportunity to reply would be provided without infringement in any fundamental way of solicitor-client privilege.
36. As to deliberative secrecy, I am satisfied that it is simply not at issue on the facts of this matter.
37. On the foregoing basis, I conclude that the Commission breached its duty of procedural fairness to the applicant by failing, when it had a reasonable opportunity to do so without infringing in a fundamental way any solicitor-client privilege to which it was entitled, to inform the applicant of the substance of the totality of the evidence on which the Commission might have relied in making its decision and to provide the applicant with a reasonable opportunity to comment on that evidence and to present all relevant arguments relating thereto. I am satisfied that the foregoing conclusion not only fully responds to the issues raised on behalf of the applicant regarding the duty of the Commission to inform the applicant of the case to be met and to provide him with a reasonable opportunity to respond thereto, but also preempts the issue raised on behalf of the applicant regarding whether the legal opinion that was before the Commission and the precise question on which it was based must be disclosed to enable this Court to effectively determine this application.
[51] In the case at bar, the Court was faced with the issue of whether there should be legal argument on grounds that were not raised or, at least, not clearly raised by the Applicant in her written submissions. This decision also had to be made bearing in mind that the Applicant has represented herself both in the preparation and filing of her Application and at the hearing.
[52] As regards the Commission's failure to consider the complete evidence, I regard this as appropriate for argument before the Court because, although it is not referred to as a ground in the Application, the Applicant does raise it in the "issue" section of her written memorandum and I feel that the Respondent and the Commission have been given sufficient notice that the issue is on the table.
[53] As regards the failure to disclose the contents of the legal opinion issue, this is not adequately raised by the Applicant as a ground or an issue in her Application or in her written submissions. She mentions that she has heard from Ms. Wright on this issue, but she doesn't claim a lack of procedural fairness as a result of not being advised of the legal opinion, or of not having been given the opportunity to respond to issues in that opinion, in her Application or written materials.
[54] I have in mind that the Applicant is self-represented and that perfection in her materials cannot be expected. On the other hand, the Applicant was specifically advised by legal counsel for the Commission as early as January 28, 2003, that the legal opinion had not been disclosed and that it could be argued that a procedural breach had occurred as a result of the Commission's failure to advise the parties about the substance of that opinion and allowing submissions on the matters referred to before reaching its Decision.
[55] Notwithstanding this advise, the Applicant chose not to seek to amend her materials or to notify the Respondent and the Commission what her position would be on this issue at the hearing. In this regard, the Court was guided by the words of Heneghan J. in Thompson v. Canada (Attorney General), [2002] F.C.J. No. 615 (T.D.) at para. 54:
54. This issue was not raised in the application for judicial review which commenced this proceeding and it was not addressed in the Applicant's Application Record. I declined to entertain submissions on this issue, in the absence of any notice in the Applicant's materials to indicate that bias was a basis for his application for judicial review. The fact that the Applicant was self-represented does not allow the Court to ignore the usual rules of practice and procedure. In this regard, I refer to de Korompay v. Ontario Hydro, [1990] F.C.J. No. 631, [1990] 3 F.C. D-26 (T.D.).
[56] Consequently, the Court took the position that this further ground of complaint was not appropriately before the Court and that the parties should confine their arguments to the grounds of complaint set out in the Application, as supplemented by the issues raised in the Applicant's written materials. No adjournment was requested by the Applicant to allow her to deal with this matter.
[57] The Applicant clarified at the hearing of this matter on April 7, 2004, that the decision she would like the Court to review is the one contained in the letter dated November 22, 2002, to her from the Commission.
[58] In this letter the Commission indicates that it has reviewed the Applicant's complaint against the Respondent and that, after reviewing the report disclosed to the Applicant and any submissions filed in response, it has decided, pursuant to subparagraph 44(3)(b)(1) of the Act, that the Applicant's complaint should be dismissed because, having regard to all the circumstances, an inquiry by a tribunal is not warranted.
[59] The Applicant says this Decision is not adequate: it doesn't set out the facts that led to the Decision; it doesn't say why a tribunal is not warranted; it doesn't provide any rationale for the Decision. She also says that the Commission failed to take into account evidence that supported her position. The Applicant says that these inadequacies amount to a breach of fundamental justice and fairness, a failure to give reasons, and a denial of natural justice. What is more, she says that this is a reviewable error.
[60] Having reviewed the Applicant's written submissions and heard her oral presentation, the Court cannot agree with her.
[61] The Applicant's complaint against the Respondent was investigated in an appropriate manner. The Applicant received a copy of the Investigator's Report and she acknowledged reading it. The Complaint was referred to a conciliator but could not be resolved and the matter was returned to the Commission for a decision. The Commission invited the Applicant to provide comments on the Investigator's Report before making its Decision to dismiss the Complaint.
[62] The jurisprudence of this Court and the Federal Court of Appeal is clear on what the obligations of the Commission are in these circumstances. In Canadian Broadcasting Corporation v. Paul, 2001 F.C.A. 93, at para. 43 and (2001), 198 D.L.R. (4th) 633, at p. 648, the Federal Court of Appeal provided the following guidance:
The Courts, applying the principles of procedural fairness, have imposed additional requirements upon the Commission prior to its taking action under subs. 44(3). The Commission is required to inform the parties of "the substance of the evidence obtained by the investigator" and placed before it. This requirement is met by the disclosure of the Investigation Report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision. It is not required to give formal reasons for its decision. Instead, the Courts have found the Commission's reasons in the Investigations Report itself.
[63] In my opinion, the facts on the record show that the Applicant was informed of the substance of the evidence obtained by the Investigator and was given the opportunity to make any relevant representations that she wanted to in response to the Investigator's Report as well as in response to the Respondents' submissions. It also appears to me that the Commission considered all of the relevant materials and submissions and rendered its Decision accordingly.
[64] In my view, the duty of procedural fairness was met in this case. The substance of the case against the Applicant was disclosed by the Commission and she was given the opportunity to respond. The Commission is not obliged to follow the Investigator's Report (see Houston, supra, at para. 10). To adapt the words of Marceau J.A. for the Federal Court of Appeal in (Brochu, supra, at para. 3) the Decision was "made at the end of a proper investigation, based on information established openly and with the parties' knowledge."
[65] Based upon the Supreme Court of Canada decision in S.E.P.Q.A., supra, at 899-900, I am of the view that the Decision is only reviewable by this Court to ensure that it complied with the Act and the rules of procedural fairness as established by the courts. This means that the Court must satisfy itself that the Applicant was informed of the substance of the evidence upon which the Commission intended to rely in making its Decision and that she was given an opportunity to reply to that evidence and to present all relevant arguments relating to that evidence (see Mercier, supra, at paras. 5 and 14). I believe that this occurred in the case at bar. The Decision was not what the Applicant wanted but I do not believe there was a reviewable error.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There is no order as to costs.
"James Russell"
____________________________________
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:T-2139-02
STYLE OF CAUSE:OLIVIA ANN ELIZABETH BANKS
- and -
CANADA POST CORPORATION ET AL
PLACE OF HEARING:Vancouver, B.C.
DATE OF HEARING:April 7, 2004
REASONS FOR ORDER : RUSSELL, J.
APPEARANCES:
Ms. Olivia BanksFOR APPLICANT
Mr. Craig T. MunroeFOR RESPONDENT
Ms. Andrea WrightFOR INTERVENOR
SOLICITORS OF RECORD:
Ms. Olivia BanksFOR APPLICANT
(appearing on her own behalf)
Farris, Vaughan, Wills & MurphyFOR RESPONDENT
(Vancouver, B.C.)
Legal Counsel - Canadian Human Rights CommissionFOR INTERVENOR
(Ottawa)