Date: 20040402
Docket: T-1869-02
Citation: 2004 FC 493
BETWEEN:
SHERIDAN GARDNER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") wherein the Commission dismissed three (3) complaints filed under sections 7 and 10 of the Canadian Human Rights Act[1], two (2) against the Department of Foreign Affairs and International Trade ("DFAIT") and one (1) against the Treasury Board Secretariat ("TBS"). Each complaint alleged discrimination on the basis of the prohibited ground of "family status".
[2] The decision under review is dated the 30th of September, 2002.
BACKGROUND
[3] From August of 1992 until August of 1995, the Applicant was posted to Tokyo, Japan as an employee of the Department of National Revenue. The Applicant's spouse and child lived with her in Tokyo during the posting.
[4] The Crown provides accommodation, in most locations around the world, to its employees posted in those locations. The Respondent alleges that every attempt is made to provide accommodation suitable in size and configuration for each employee and his or her accompanying family members. While the Applicant was posted to Tokyo, she and her family were provided accommodation in a building that contained three (3) apartments, each of the same size. DFAIT assigned the apartment and informed the Applicant of the amount of rent she was required to pay. The determination of rent was based on the Foreign Service Directive on Shelter and Costs, established by TBS, which included a Rent Table. The directive provided for rents based on salary and family size in order to reflect, to the extent possible, Canadian standards for accommodation in Ottawa/Hull, now Ottawa/Gatineau. Factors taken into consideration in development of the Rent Table were family size and the income of the person posted with the objective of ensuring that larger families would occupy larger and more costly accommodation and pay higher rents. The Rent Table was based on the results of the 1996 Census which reflected rents paid by renters in Ottawa/Hull by family size and income. Thus, rent paid by federal employee posted abroad did not reflect either the rental value of the accommodation that they occupied nor the size of that accommodation.
[5] The essence of the Applicant's complaints was that the occupants of the other two (2) apartments in the building in which she resided with her family in Tokyo, one of whom lived alone and the other of whom lived with only one other person, and both of whom she believed to be in the same salary range she was in, paid less rent that she did. In the result, she alleged, she was charged rent on the basis of her family status, that is to say the size of her family, rather than on the basis of appropriate rent for the accommodation provided.
THE DECISION UNDER REVIEW
[6] The substance of the decision under review is in the following terms:
I am writing to inform you of the decisions taken by the Canadian Human Rights Commission in your complaints ...against Department of Foreign Affairs and International Trade and ... against Treasury Board Secretariat.
Before rendering its decisions, the Commission reviewed the reports disclosed to you previously and any submission(s) filed in response to the reports.
As your complaint ... against Department of Foreign Affairs and International Trade was not filed within one year of the alleged discrimination as stipulated in subsection 41(1) of the Canadian Human Rights Act, the Commission first had to decide whether or not to deal with the case. After examining this information, the Commission decided, pursuant to subsection 41(1) of the Canadian Human Rights Act, to deal with the complaint because:
· the respondent has not indicated that the delay in the signing of the complaint has prejudiced its ability to mount a defence.
The Commission then considered the merits of the cases of the three complaints ... against Department of Foreign Affairs and International Trade and ... against Treasury Board Secretariat, and decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaints because:
· having regard to all of the circumstances of the complaints, no further inquiry is warranted.
[complaint reference numbers omitted]
RELEVANT STATUTORY PROVISIONS
[7] Subsection 3(1), sections 7 and 10 and subsections 41(1) and 44(3) of the Canadian Human Rights Act are relevant for the purposes of these reasons. Those provisions read as follows:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
...
...
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_:
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
...
...
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale_:
a) de fixer ou d'appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel.
...
...
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_:
a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n'est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
...
...
44.(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
44.(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) 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). [emphasis added]
(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). [je souligne]
THE ISSUES
[8] In her Amended Memorandum of Fact and Law, the Applicant, who very ably represented herself, described the issues in the following terms:
i) Did the Canadian Human Rights Commission err by not finding that the Applicant had given evidence to establish "a reasonable basis" of discrimination based on family status, contrary to the Canadian Human Rights Act to warrant sending the complaint for conciliation or to a tribunal?
ii) Did the Canadian Human Rights Commission fail to observe the principles of fundamental justice and procedural fairness by not giving sufficient reasons for the change from the initial Investigator's recommendation for conciliation to the Commission's final decision to dismiss the complaints on the basis that "no further inquiry is warranted"?
iii) Was the Canadian Human Rights Commission's investigation not sufficiently thorough in examining the extent of systemic discrimination and, therefore, did the decision constitute a violation of procedural fairness?
iv) What remedy should the Applicant be given?
In addition, the Applicant addressed at some length the issue of standard of review in relation to the first issue quoted above and very briefly in relation to the second quoted issue. The third quoted issue was not extensively argued before the Court. At the end of the hearing, the Court briefly spoke to the limited range of reliefs open on a successful application for judicial review, under subsection 18.1(3) of the Federal Court Act[2].
[9] By Order dated the 28th of January, 2003, Prothonotary Aronovitch granted leave to the Commission to intervene in this matter "...on the issue of whether [the] Commission has a duty to provide reasons for its decisions", to file a Memorandum of Fact and Law with respect to that issue and to attend the hearing and present oral arguments on that issue.
ANALYSIS
a) The Investigator's Report
[10] The Certified Tribunal Record provided to the Court by the Commission, discloses that, when the decision under review was made, the Commission had before it a record of sixteen (16) documents consisting of a total of thirty-two (32) pages numbered consecutively from 1,321 to 1,348 with four (4) of the pages being supplementary to the sequential numbering. I am prepared to assume on the basis of the numbering of the pages that were before the Commission that the total investigative phase conducted in advance of the reference to the Commission accummulated substantially more documentary material.
[11] Central to the Tribunal Record are two Investigator's Reports, the first being very brief and concluding with a recommendation that one of the Applicant's complaints be dealt with, notwithstanding that it was late filed. That recommendation was obviously adopted by the Commission.
[12] The second Investigator's Report is much more substantive. It summarizes at some length the complaints and the defences of the departments of government against which the complaints were directed and then concludes with the following analysis and recommendation:
Analysis
19. The respondent's policy is that employees posted abroad pay rent on the basis of their income and family size. The respondent indicates that the purpose of this policy is to ensure that employees pay rent similar to that paid by a family of equivalent size and income in Ottawa-Hull based on census data. However, from the respondent's statements , it is clear that the respondent is unable to match the "size of accommodation" offered to employees and their families who live abroad to that of similar families in the Ottawa-Hull area. This leads to situations where employees live in identical size apartments and pay different rents based on their family size alone.
20. While the respondent's policy appears to be rationally connected to its purpose and, appears to have been adopted with an honest and good faith belief that it is necessary to accomplish the purpose in question, basing rent on "family size" appears unfair given that the respondent can not guarantee accommodation appropriate to the family sizes it encounters. As the complainant points out, in the absence of the respondent's ability to control the "size" of accommodation offered to employees basing rent on "income" alone would appear to be the fairest and the least discriminatory means of determining rents to be paid by employees living abroad.
21. It does not appear that the respondent would face undue hardship in changing its policy to that effect.
Recommendations
22. It is recommended, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act, that the Commission appoint a conciliator to attempt to bring a settlement of the complaint. [emphasis added]
b) Standard of Review
[13] In a recent decision in MacLean v. Marine Atlantic Inc.[3], my colleague Justice O'Keefe addressed the question of the appropriate standard of review of a decision of the Commission to dismiss complaints of an applicant in a matter such as this. By reference to the decision of the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia[4], Justice O'Keefe applied a pragmatic and functional analysis to the determination of the appropriate standard of review. He noted that the Canadian Human Rights Act contains no privative clause in relation to a decision to dismiss a complaint. He noted that the Canadian Human Rights Act contains no privative clause in relation to a decision to dismiss a complaint and commented: "Silence in the statute is neutral and does not suggest a more or less searching standard of review..." .
[14] With regard to the relative expertise of the Commission and a reviewing Court, Justice O'Keefe wrote at paragraph [38] of his reasons:
The issue in question is whether to dismiss the applicant's complaint as not warranting any further inquiry, having regard to all the circumstances. In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the Supreme Court of Canada stated at paragraph 29 that "[a] finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate". In this case, the same reasoning would apply with respect to the Commission's fact-finding in screening complaints based on an investigation report. The Commission's greater expertise in fact-finding and screening complaints favours greater deference on judicial review.
[15] With regard to the purpose of the Canadian Human Rights Act and the particular provision under which the Commission acted in dismissing the complaints before it, Justice O'Keefe, after reciting the purpose set out in section 2 of the Act wrote at paragraph [40] of his reasons:
In carrying out this broad statutory purpose, the Commission has been empowered with the discretion to dismiss complaints where it is satisfied that further inquiry is not warranted. As pointed out by the Federal Court of Appeal in Bell Canada v. Communications, Energy and Paperworker's Union of Canada, [1999] 1 F.C. 113 (C.A.), the choice of language in section 40 of the Act leaves no doubt that Parliament intended reviewing courts to refrain from intervening lightly in the screening decisions of the Commission. This factor also favours deference to the Commission's decision.
[16] Finally, under the heading "The nature of the question - law, fact or mixed law and fact", Justice O'Keefe wrote at paragraph [41]:
The issue to be determined in this case is whether the applicant's complaints warranted further inquiry. The Commission dismissed the complaints as unfounded because, based on its investigation, the Agreement between Marine Atlantic and CAW was not discriminatory. Although this issue is fact-driven, it involves applying facts to the statutory scheme, which is a question of mixed fact and law. The discretionary nature of the complaint screening function and the fact-intensive nature of the question call for greater deference to the Commission's decision.
[17] In the result, Justice O'Keefe concluded at paragraph [42]:
Balancing all of these factors, it is my view that the Commission's decision in this case should be reviewed on a standard of reasonableness simpliciter. This view accords with recent jurisprudence from the Federal Court of Appeal (see Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321,... . [one citation omitted]
I adopt Justice O'Keefe's reasoning and conclusion as my own.
[18] The issue of standard of review simply does not arise in relation to the second and third quoted issue questions each of which concerns alleged breaches of procedural fairness. Except in very rare circumstances, a breach of procedural fairness will void a decision that is under review. In Yassine v. Canada (Minister of Employment and Immigration)[5], Justice Stone, for the Court, in the context of an examination of whether a fair hearing had been provided in circumstances where a fair hearing had been found to be an applicable aspect of the duty of fairness, wrote at paragraph [9] of his reasons:
...I do not suggest that a breach of natural justice does not normally require a new hearing. The right to a fair hearing is an independent right. Ordinarily the denial of that right will void the hearing and the resulting decision. [emphasis added, footnote omitted]
[19] Thus, except in rather extraordinary circumstances, where a breach of an applicable aspect of the duty of fairness is found to have occurred, and no deference is warranted in arriving at such a finding, that breach, in and of itself, is sufficient to warrant relief in favour of the person to whom the duty of fairness was owed.
c) Did the Commission err in a reviewable manner in dismissing the Applicant's complaints when, on the basis of the evidence before it, it was plain and obvious that the Applicant had been discriminated against on the basis of family status.
[20] In the analysis quoted above that was provided by the Investigator and that was before the Commission when it reached the decision here under review, the Investigator expressed the view that basing rent on "family size" appears unfair. She goes on to suggest that basing rent on "income" alone would appear to be the fairest and the least discriminatory means of determining rent and notes that providing for determination of rent on the basis of income alone would appear not to impose undue hardship on those charged with the determination of appropriate rent. In the result, the Investigator recommended conciliation. While the Investigator's analysis and recommendation stopped short of alleging discrimination on a prohibited ground, the analysis and recommendation go a long way to implying that the rental determination scheme in place can result in discrimination on the basis of family size. Further, "family size" might reasonably be argued to be an element of "family status", and "family status" is a prohibited ground of discrimination under subsection 3(1) of the Canadian Human Rights Act. Thus, it is not surprising to the Court that the Applicant expresses some astonishment that her complaints were dismissed in the absence of an explanation, or at least a more fulsome explanation, in support of the decision of the Commission.
[21] The foregoing being said, subsection 44(3) of the Canadian Human Rights Act makes it clear that the Commission has a mandate, indeed an obligation, to dismiss a complaint or complaints where it is satisfied that, having regard to all the circumstances of the complaint or complaints, a further inquiry is not warranted. Those are the only words used by the Commission in its decision letter that might constitute an explanation for the decision. I reiterate that the words of the Act are imperative and thus, where the Commission, having regard to all the circumstances of the complaint is satisfied that an inquiry into the complaint is not warranted, it is obliged to dismiss the complaint and not to refer it to conciliation, notwithstanding that it might be of the view that the Investigator's recommendation in favour of conciliation was a sensible one.
[22] In the result then, this issue question would appear to reduce itself to the following: against a standard of review of reasonableness simpliciter, was the Commission's conclusion, that an inquiry into the Applicant's complaints was not warranted, sustainable? I have carefully reviewed the totality of the material comprised in the Tribunal Record or, put another way, the totality of the material that was before the Commission when it arrived at the decision under review. I am satisfied that the Commission's expertise in the analysis of such factual material is deserving of significant deference. Indeed, the standard of review of reasonableness simpliciter implies a significant degree of deference. To determine that the Commission's decision was not open to it against that standard, I would be required to conclude that, in the absence of further reasons for the decision, the decision is incapable of standing up to a "somewhat probing analysis"[6].
d) Did the Commission fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons?
[23] It is trite law that the duty of procedural fairness varies with the circumstances of the case. The question of the duty of the Commission to provide reasons for decisions such as that here under review has a long judicial history rooted at the highest level in Syndicat des employés de production du Québec et de l'Acadie c. Canada (Human Rights Commission)[7] (hereinafter "SEPQA"). That decision was distinguished by the Federal Court of Appeal in Mercier v. Canada (Human Rights Commission)[8] where Justice Décary, for the Court, wrote at pages 15 and 16:
The situation presented in SEPQA was different. The Commission's refusal was based on the recommendation to that effect made by the investigator, so that the complainant was in a position, based on the investigation report that was in its hands, to understand the reasons for the decision, although reasons were not given. The Supreme Court rightly refused to decide the issue relating to the failure to give reasons. Here, the Commission's refusal is contrary to the investigator's recommendation, and in the absence of reasons the complainant, who was not aware of the existence of the Service's comments, could not even suspect what had caused the Commission not to act on the recommendation.
Does this mean that in the case at bar the failure to give reasons constitutes in itself a breach of the rules of procedural fairness? I do not believe so.
Had reasons been given for the Commission's decision, it would nonetheless have been fundamentally vitiated in view of the Commission's failure to inform the appellant of the substance of all the evidence in the record. If the appellant had been informed of the substance of all the evidence in the record, she could not have complained of the absence of reasons, as the Commission would presumably have rejected the investigator's recommendation for the reasons set out in the Service's comments. It does not appear to me to be possible to dissociate the failure to give reasons from the failure to inform and to make the first failure, in the absence of the second, a breach which supports an application for judicial review. The duty to give reasons has been imposed by Parliament in certain specific cases, including the situation covered by subsection 42(1) of the Act which applies where the Commission decides not to deal with a case for the reasons set out in section 41. I would hesitate to use the rules of procedural fairness to impose a burden that Parliament imposes only sparingly in very specific cases.
[24] Several points are worth noting with respect to the foregoing quotation. First, the facts of this matter are closer to Mercier than to SEPQA in that here the Commission's decision was contrary to the recommendation of the Investigator rather than in conformity with that recommendation; secondly, on the facts of this matter, the Applicant had been informed of the substance of all the evidence in the record and therefore was at least in a position to guess at the reasons for the Commission's decision; and thirdly, the duty to give reasons imposed on the Commission by Parliament in certain specific cases, but not in respect of the decision here under review, continues in law.
[25] The impact of full disclosure of the substance of submissions, which substance in turn formed part of the record before the Commission, was commented on in Kallio v. Canadian Airlines International Ltd.[9], where Justice McKeown, after noting the SEPQA and Mercier decisions, wrote at paragraph [13]:
...Therefore, unlike the situation in Mercier, the applicants were aware of the essence of all of the submissions upon which the Commission made its decision. On the basis of those submissions, the applicants can determine what caused the Commission to make the decision it did. In my view, simply because there is a dispute on the facts between the applicants and the respondents does not mean that the Commission is obliged to send the case to a tribunal; if this were so, virtually every case would have to go to a tribunal and would vitiate subsection 44(3), nor does a factual dispute necessitate reasons for the Commission's decision. The Commission has discretion, and must have discretion, in light of the huge volume of matters brought to its attention, to decide which cases do or do not warrant either further consideration or reasons. This is not one of the extremely rare cases where reasons should be supplied.
Both counsel for the Respondent and counsel for the intervener urged that the foregoing quotation should be applied to the facts of this matter.
[26] In contrast, if the sentence in the foregoing quotation regarding leaving discretion to the Commission as to reasons "...in light of the huge volume of matters brought to [the Commission's] attention..." is to be interpreted as unfettered discretion, one might truly wonder whether such breadth of discretion is consistent with the nature of the mandate afforded to the Commission. It surely must be interpreted to be a mandate that is to be carried out in a manner respectful of those who, in good faith, seek protection against discriminatory practices based on the proscribed grounds of discrimination reflected in subsection 3(1) of the Canadian Human Rights Act.
[27] The decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[10] followed all of the authorities cited, to this point, on this issue. While not a case arising out of a decision of the Commission, the words of Justice L'Heureux-Dubé at paragraphs [43] and [44] of her reasons are instructive. Those paragraphs read as follows:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C [humanitarian and compassionate] decision to those affected, ..., militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, ..., when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision. [emphasis added, citations omitted]
[28] I would find the foregoing directly applicable to the facts of this matter if, as was not in fact the case, the Investigator's Report, including its analysis and recommendation had conformed with the decision under review.
[29] In Marine Atlantic Inc. v. Canadian Merchant Service Guild[11], Justice Rothstein wrote at paragraphs [5], [6] and [7]:
In Liang v. The Minister of Citizenship and Immigration [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:
However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
We agree with Evans J. before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual. [emphasis added]
[30] Finally, in MacLean v. Marine Atlantic Inc.[12], Justice O'Keefe had under review a decision of the Commission for which the following reasons were provided:
The differentiation was justifiable in the circumstances, it is not a discriminatory practice for the respondent to provide different categories of benefits to those employees who were more likely to be more affected than others.
Justice O'Keefe concluded his analysis of the adequacy of the foregoing reasons in the following terms at paragraph [47] of his reasons:
The Commission's reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Borden - Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.
[31] The Applicant urged that the alleged "reasons" of the Commission for the decision here under review were simply pro forma and followed the sterile words of the statutory provision at issue without anything that interrelated the statutory words to the specific facts underlying her complaints or indeed to any of the responses provided to the Commission's Investigator by the departments of government against which the complaints were made. She further urged that she requested reasons, albeit in her application for judicial review and not prior to commencing judicial review. The application for judicial review included the following paragraph:
The Applicant requests that the Canadian Human Rights Commission send a certified copy of all material in its possession regarding the complaints to the Applicant and to the Registry [of this Court].
The Applicant urged that such request encompassed reasons and, if the Tribunal had included a memorandum such as that which Justice L'Heureux-Dubé found in Baker to constitute reasons that might well have been the end of the matter. On the facts of this matter, when the Tribunal Record was disclosed as requested, it clearly evidenced that there was no memorandum equivalent to the memorandum relied on in Baker as constituting reasons.
[32] Further, the Applicant urged that, against the quotation from Marine Atlantic Inc.[13], the circumstances of this matter were such as to disclose that an obligation on the part of the Commission to provide more substantive reasons than it did is so plain and obvious that more substantive reasons should have been provided even if I were to find there not to have been, on the facts of this matter, a timely request for more adequate reasons than those provided. The Applicant suggested that, once again against the quoted words from Marine Atlantic Inc., this is one of the "exceedingly unusual" situations where more adequate reasons should have been provided.
[33] The Court has great sympathy for the position advanced by the Applicant. The Court is satisfied that the "reasons" provided by the Commission to the Applicant were hopelessly inadequate. In the result, she was left, without the aid of counsel, to attempt to extract from the tribunal record, as best she could, a rational explanation as to why the Commission chose to dismiss her complaints rather than to refer the complaints to conciliation as the Investigator had recommended to the Commission in her succinct but reasonably comprehensive Report. Any explanation that might be extracted from the tribunal record would be pure conjecture.
[34] In the result, there existed and continues to exist on the face of the decision letter under review, quoted at length above, a question that cries out to be answered: why? It is supported by a cogent expression of concern that remains unreplied to.
[35] That being said, as Justice Décary noted in Mercier[14] in the quotation from that decision appearing earlier in these reasons, Parliament has chosen to place on the Commission a statutory obligation in certain circumstances and not to impose such an obligation to provide reasons in other circumstances. Decisions such as that here under review are within the category of "other circumstances". Further, I cannot interpret the Applicant's request in her application for judicial review for the complete tribunal record as a request for reasons. It was a request for the Tribunal Record as it stood and the Applicant had no certain expectation that it would disclose the reasons for the decision under review. Against the quotation from the words of Justice Rothstein in Marine Atlantic Inc.[15], I cannot conclude that there was, on the facts of this matter, a request for reasons, and there certainly is none before commencement of this application, disclosed in the material before the Court. Further, I also cannot conclude that the facts of this matter bring it within the range of "exceedingly unusual" situations where the obligation of the Commission to provide reasons is so plain and obvious that it was open to the Applicant to seek recourse to this Court through this application without first formally requesting reasons.
[36] In the result, I conclude that the Commission did not fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons. I so conclude by reason of the absence of a statutory obligation to provide reasons and also by reason of the Applicant's failure to request reasons following notification of the decision to dismiss her complaints and before commencing this application for judicial review. It follows then that the Commission did not err in a reviewable manner in dismissing the Applicant's complaints, notwithstanding the Applicant's view that, on the evidence before the Commission, it was "plain and obvious" that the Applicant had been discriminated against on the basis of family status and the guarded support for that view expressed in the Investigator's Report.
e) An insufficiently thorough investigation of the Applicant's complaints which of itself would constitute a violation of the procedural fairness owed to the Applicant
[37] This issue question was not pursued with particular vigour before the Court. I am satisfied that the lack of zeal exhibited by the Applicant in this regard was well justified. On the totality of the material before the Court, I am satisfied that the Applicant was fully involved in the investigation into her complaints. She was given full opportunity to make submissions in support of her complaints and to respond to submissions made by the departments of government against which the complaints were made. I can find no basis on which to conclude that there exists, on this application for judicial review, a reviewable error in the conduct of the investigation into the Applicant's complaints.
CONCLUSION
[38] In light of the foregoing analysis, the issue of appropriate relief in favour of the Applicant does not arise. This application for judicial review must be dismissed and an order will go accordingly.
COSTS
[39] The Respondent's written material that is before the Court indicates that the Respondent seeks costs of this application. At the opening of his submissions at the resumed hearing of the application, counsel advised the Court that, following consultation with his client, the Respondent would not be seeking costs. The intervener did not seek costs. In light of the foregoing and of the outcome on this application for judicial review, there will be no order as to costs.
_____________________________
J.F.C.
Ottawa, Ontario
April 2, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1869-02
STYLE OF CAUSE: SHERIDAN GARDNER v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: DECEMBER 2, 2003 & MARCH 4. 2004
REASONS FOR ORDER AND ORDER THE HONOURABLE MR. JUSTICE GIBSON
DATED: April 2, 2004
APPEARANCES:
SHERIDAN GARDNER FOR APPLICANT ON OWN
BEHALF
RICHARD CASANOVA FOR RESPONDENT
ANDREA WRIGHT FOR INTERVENOR
SOLICITORS OF RECORD:
SHERIDAN GARDNER FOR APPLICANT ON HER
Ottawa, Ontario OWN BEHALF
MORRIS ROSENBERG FOR RESPONDENT
Deputy Attorney General of Canada
CANADIAN HUMAN RIGHTS COMMISSION FOR INTERVENER
Ottawa, Ontario
[1] R.S.C. 1985, c. H-6.
[2] R.S.C. 1985, c. F-7.
[3] [2003] F.C.J. No. 1854 (QL).
[4] [2003] 1 S.C.R. 226.
[5] (1994), 27 Imm. L.R. (2d) 135 (F.C.A.).
[6] Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at paragraph [25].
[7] [1989] 2 S.C.R. 879.
[8] [1994] 3 F.C. 3.
[9] [1996] F.C.J. No. 725 (QL) (F.C.T.D.).
[10] [1999] 2 S.C.R. 817.
[11] [2000] F.C. J. No. 1217 (QL) (C.A.).
[12] Supra, note 3.
[13] Supra, note 11 and paragraph [29] of these reasons.
[14] Supra, note 8.
[15] Supra, note 11.