Date: 20050509
Docket: T-1426-04
Citation: 2005 FC 654
Ottawa, Ontario, May 9, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
YIQUN WANG
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Canadian Human Rights Commission (Commission) dated July 6, 2005. In its decision made under subsection 44(3) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act) the Commission dismissed the applicant's complaint of discrimination and harassment on the basis of race, colour or national/ethnic origin by an agent of the respondent in contravention of sections 5 and 14 of the Act.
ISSUES
[2] The issues are as follows:
1. Did the Commission commit an error in rejecting the recommendation of the Investigator to appoint a Human Rights Tribunal to inquire into the applicant's complaint?
2. Did the Commission deny the applicant procedural fairness:
a) by failing to disclose a further response from the respondent and thereby depriving the applicant the opportunity to respond to the respondent's argument?
b) by failing to provide sufficient reasons for dismissing the applicant's complaint?
3. Did the Commission err in law by applying the wrong legal test to determine whether the evidence established a reasonable basis of discrimination to justify sending the complaint to a Human Rights Tribunal?
[3] For the following reasons, I must answer these questions negatively. Therefore, this application for judicial review should be dismissed.
BACKGROUND
[4] The applicant is an immigrant of Chinese origin who came to Canada as a landed immigrant on July 17, 2000. On December 13, 2001, the applicant returned to China to visit her parents who were both gravely ill. While in China, both of her parents passed away.
[5] On March 13, 2002, the applicant flew back to Toronto via the United States. While she was going through Canada Customs, the applicant was referred for a secondary examination. The applicant believes that she was referred to secondary examination because of her race and ethnic background. She further alleges that she was discriminated and harassed by the Customs Officer who conducted the secondary search. More precisely, she submits that the Customs Officer searched her personal belongings in a very disrespectful manner, that she grabbed her wrist when she tried to reach out to retrieve some of her personal belongings, that she used profanity when the applicant requested interpretation services in Chinese and that she seized certain personal effects without any proper legal grounds.
[6] The respondent submits that the Canada Customs and Revenue Agency (CCRA) followed its policy for selective referrals when it referred the applicant to secondary examination. She was referred to secondary examination not because of her race or colour but because she declared that she had not properly completed her declaration card. The respondent denies that the applicant was discriminated against and harassed by the Customs Officer who conducted the search.
[7] After this incident, the applicant sought assistance from the Metro Toronto Chinese & Southeast Asian Legal Clinic (Clinic) to help her file a human rights complaint against CCRA and against the Customs Officer in question. On June 3, 2002, the applicant filed a complaint with the Commission.
[8] Based upon subsection 43(1) of the Act, the Commission designated Ms. Asira Shukuru (the Investigator) as the investigator to look into the complaint. In April 2004, the Investigator released her report (the Investigator's Report). She concluded that the evidence indicated that the Customs primary inspector referred the applicant to a secondary examination because her declaration card was not completed. She noted that, according to the respondent's policy, all travellers who cannot make a complete Customs declaration because of their inability to communicate in one of the two official languages are subject to mandatory referral. With respect to the other issues, the Investigator noted conflicting evidence. Since credibility was a central issue, she concluded that only a tribunal could make a proper decision and therefore recommended that the Commission appoint a tribunal to inquire into the applicant's complaint.
[9] The respondent and the applicant were both provided with a copy of the Investigator's Report and given the opportunity to make submissions. On April 7, 2004, the applicant submitted a letter to the Commission in response to the Investigator's Report. On May 3, 2003, the respondent did the same. Each party was provided with the opposing party's submissions and was allowed to make further submissions, which the applicant and respondent did on May 11 and May 17, 2004, respectively.
CONTESTED DECISION
[10] By letter dated July 6, 2004, the Commission advised the applicant that it had decided to dismiss her complaint in the exercise of its discretion under subparagraph 44(3)(b)(i) of the Act, on the basis that:
- the evidence does not support the allegation that the decision to refer the complainant to a secondary search was based on a prohibited ground of discrimination; and
- the evidence does not support the complainant was treated adversely or harassed in provision of a service because of her race or colour.
RELEVANT PROVISIONS
| Discriminatory Practices
Denial of good, service, facility or accommodation
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Harassment
14. (1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
Sexual harassment
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.
Report
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
(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). |
|
Actes discriminatoires
Refus de biens, de services, d'installations ou d'hébergement
5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public :
a) d'en priver un individu;
b) de le défavoriser à l'occasion de leur fourniture.
Harcèlement
14. (1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait de harceler un individu :
a) lors de la fourniture de biens, de services, d'installations ou de moyens d'hébergement destinés au public;
b) lors de la fourniture de locaux commerciaux ou de logements;
c) en matière d'emploi.
Harcèlement sexuel
(2) Pour l'application du paragraphe (1) et sans qu'en soit limitée la portée générale, le harcèlement sexuel est réputé être un harcèlement fondé sur un motif de distinction illicite.
Rapport
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) 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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ANALYSIS
Standard of review
[11] When dealing with an application for judicial review, the Court must first address the question of the appropriate standard of review. The standard of review is determined by applying the four factors of the pragmatic and functional approach as established by Mr. Justice Iacobucci in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 26:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors : (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and that provision in particular; and (4), the nature of the question: law, fact, of mixed law and fact. [...]
[12] Recently, in MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (T.D.) (QL) paragraphs 36 to 42, O'Keefe J., by reference to Dr. Q., supra, applied the pragmatic and functional approach in the following manner:
The presence or absence of a privative clause or statutory right of appeal
The Act does not contain a privative clause or a statutory right of appeal. Silence in the statute is neutral and does not suggest a more or less searching standard of review.
The expertise of the tribunal relative to that of the reviewing court on the issue in question
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.
The purpose of the legislation and the provision in particular
Section 2 of the Act states the purpose of the Act to be:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
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.
The nature of the question - law, fact or mixed law and fact
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.
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, 2002 FCA 4).
[13] I adopt Justice O'Keefe's reasoning and conclusion as my own. The standard of reasonableness simpliciter was first reviewed in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, where Mr. Justice Iacobucci held that "an unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it."
[14] In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Mr. Justice Iacobucci gave further guidance as to how to apply the reasonableness simpliciter standard. Reasonableness is not about determining whether the tribunal came to the right result. The Court must look to the reasons, taken as whole, given by the tribunal, and determine whether there is some line of analysis that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. The Court must find the decision to be reasonable if there is a logical explanation for the tribunal's decision, even if this explanation is not one the Court finds compelling.
1. Did the Commission commit an error in rejecting the recommendation of the Investigator to appoint a Human Rights Tribunal to inquire into the applicant's complaint?
[15] It is true that the Investigator's Report dated April 2, 2004 recommended that the applicant's complaint be referred to a tribunal for further inquiry. However, the Commission is not bound to adopt the Investigator's Report since subparagraph 44(3)(b)(i) of the Act permits it to dismiss a complaint if it is satisfied, having regard to all of the circumstances, that an inquiry is not warranted. In Bradley v. Canada (Attorney General) (1997), 135 F.T.R. 105(F.C.T.D.), another case where the Commission's decision differed from the recommendations by the investigator, MacKay J. stated at paragraph 53:
It is true that the CHRC did not accept the investigator's recommendation, that is, that a conciliator be appointed, but the Commission is not bound by any such recommendation. [...] The Commission's decision is not in error because it chose not to follow the investigator's recommendation
[16] It is to be noted that the Commission stated in its decision letter that it considered the Investigator's Report, as well as all submissions filed in response. It is not necessary that the Commission enumerate every document it analyzed in reaching its decision or reiterate the evidence already exposed in the report. Décary J. for the Federal Court of Appeal in Bell Canada v. Communications, Energy, and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) (Bell), stated at paragraph 38:
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
2. Did the Commission deny the applicant procedural fairness:
a) by failing to disclose a further response from the respondent and thereby depriving the applicant the opportunity to respond to the respondent's argument?
[17] I agree with the applicant when she says that procedural fairness requires that the Commission inform the parties of the substance of the evidence obtained by the Investigator and give the parties the opportunity to respond and make all relevant representations (see Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA), at paragraph 33 and Bell, supra at paragraph 43).
[18] In the present case, both parties were provided with copies of the Investigator's Report and were given the opportunity to respond. Both parties seized this opportunity and responded to the report. Upon reception of those responses, the Commission provided each party with the opposing party's response and then gave them the possibility to reply to that. Both parties filed a reply. The Commission examined every argument and comment raised by each party, and then, based on the Investigator's Report, the parties' responses to the Investigator's Report and their replies, decided to dismiss the applicant's complaint. The fact that the applicant was not provided with the respondent's reply does not breach the principles of procedural fairness. After a careful review of the respondent's reply, the letter of May 17, 2004 from the respondent does not contain any new facts or evidence. I believe that the applicant was provided with sufficient opportunity to present and defend her case, and was fully aware of the evidence from the other side.
b) by failing to provide sufficient reasons for dismissing the applicant's complaint?
[19] As mentioned in Gardner v. Canada (Attorney General), [2004] F.C.J. No. 616 (T.D.) (QL) at paragraph 23, "[i]t is trite law that the duty of procedural fairness varies with the circumstances of the case". "However, the question of the duty of the Commission to provide reasons for decisions such as the one under review in the present case has a long judicial history rooted at the highest level in SEPQA, supra. That decision was distinguished by the Federal Court of Appeal in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.), where Justice Décary, for the Court, wrote at paragraphs 21, 22 and 23:
The situation presented in SEPQA was different. The Commission's refusal was based on the recommendation to that effect 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 comment's could not even suspect what had caused the Commission not to act on the recommendation.
Does it 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.
[...]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 no to deal with a case for the reasons set out in section 41. I would hesitate to use the rule of procedural fairness to impose a burden that Parliament imposes only sparingly in very specific cases.
[20] Moreover, in Brochu v. Bank of Montreal (1999), 251 N.R. 207, the Federal Court of Appeal, setting aside the Federal Court's decision, stated the following, at paragraphs 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, as long as the Commission observed all the rules of procedural fairness, which it did in the present instance, the absence of reasons in its decision is not a reviewable error. Other jurisprudence has also reached this conclusion: Canadian Broadcasting Corp. v. Paul, [2001] F.C.J. No. 542 (F.C.A.) (QL), 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.).
3. Did the Commission err in law by applying the wrong legal test to determine whether the evidence established a reasonable basis of discrimination to justify sending the complaint to a tribunal?
[22] The applicant alleges that the role of the Commission at this stage is not to weigh the evidence as would be done at a judicial proceeding, but rather, is to conduct an inquiry as to whether there is sufficient evidence to warrant a hearing. She submits that this test has been described as a "low threshold". In other words, the Commission should ask itself if there is a reasonable basis in the evidence for proceeding to the next stage.
[23] She explains that the Commission decided not to refer the applicant's request to the next step since it felt the evidence did not support the applicant's allegations. However, she argues that there is evidence to suggest that there are reasonable grounds to accept her claim. She more specifically points to the fact that there is evidence showing she lacks fluency in English. In addition, she alleges that when credibility is a main issue, such as in this case, the Commission ought to refer the matter for a full hearing.
[24] I disagree with the applicant regarding this last argument and I adopt Justice Evans' reasoning in Larsh v. Canada (Attorney General), [1999] F.C.J. No. 508 (T.D.) (QL) at paragraphs 18 and 33 :
Despite the attractive manner in which counsel developed her argument, I am not satisfied that it is correct. First, the argument seems to me to give insufficient weight to the broad discretion conferred on the Commission by the wording of paragraph 44(3)(b)(i): namely, that it shall dismiss the complaint "if it is satisfied" that "having regard to all the circumstances of the complaint, an inquiry into it is not warranted". The applicant's contention that whenever credibility is a central issue in a human rights complaint it must be referred to the Tribunal does not seem consistent with the subjective wording of paragraph 44(3)(b)(i), nor with the expertise and experience of the Commission as the specialist agency charged with investigating and screening human rights complaints. [emphasis added]
[...]
Indeed, in my opinion it would be irresponsible of the Commission not to assess the evidence before it simply because the complainant and the person complained against gave contradictory accounts of the events on which the complaint was based. The Commission is entitled and obliged to subject the evidence to a hard look before deciding whether in the circumstances of the complaint a Tribunal hearing is warranted.
[25] In response to the applicant's allegations, the respondent argues that it is the Commission's role to determine, "having regard to all circumstances", whether an inquiry is warranted (see Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, at paragraph 53). It contends that allegation by the applicant of her lack of English fluency does not mean that there is enough evidence to support a complaint of discrimination.
[26] The Commission cannot simply look at one aspect of the evidence; it must look at all the evidence, "having regard to all circumstances". In Tan v. Canada Post Corp., [1995] F.C.J. No. 899 (T.D.) (QL) at paragraph 25, the Federal Court stated that :
[...] while it is clear that the Commission may not divorce itself entirely from the merits of a complaint in determining not to proceed, it is inconceivable that it cannot in its fact finding role come to conclusions as to the probative value of certain evidence or the possibility that some complaints are not worthy of pursuing beyond the investigatory stage due to inherent weakness. As long as the Commission does not arrive at the decision not to proceed by failing to consider the material evidence before it, there are no grounds for judicial intervention on review.
[27] In the case at hand, the applicant makes two different allegations of discrimination. The first allegation purports to her referral to a secondary examination. The second allegation is in relation with the conduct of the Customs Officer who conducted the search where she alleges that she was refused an interpreter, that she was subject to an extensive search that lasted three hours, that some of her personal belongings were seized without legal grounds and that the Customs Officer harassed her.
[28] With respect to the first allegation, the Investigator's Report indicates that the evidence does not support the conclusion that the applicant was referred to a secondary examination because of her ethnic origin. To the contrary, the evidence demonstrated that she was referred to a secondary examination in order to have her declaration card verified since it was not properly completed. Among other things, she had not fulfilled out the section for the declaration of goods acquired while in China. Considering that the evidence indicated that the applicant's referral to a secondary examination was the result of factors other than discrimination, I am of the opinion that the Commission did not commit any unreasonable mistake that would warrant this Court's intervention.
[29] With respect to the second allegation of discrimination, the Investigator's Report states that credibility is a central issue as the evidence is conflicting on several aspects. In fact, the evidence is not clear with regard to the following elements:
- the applicant's level of English fluency;
- the time the applicant was detained during the search,
- the lawfulness of the seizure of certain goods; and,
- the alleged disrespectful conduct and nature of the comments made by the Customs Officer during the search.
[30] The applicant declares in her "Reply Letter" dated May 11, 2004 that the Investigator outlined sufficient bases for this case to proceed to the next stage. I disagree with this position. Not only is the Commission under no obligation to follow the Investigator's recommendation, it has to evaluate the complaint having regard to all circumstances. Faced with conflicting evidence, it was in the Commission's discretion to decide as it did in dismissing the applicant's complaint.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Michel Beaudry"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: YIQUN WANG v.
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Avvy Yao-Yoa Go FOR THE APPLICANT
Sandra Nishikawa FOR THE RESPONDENT
SOLICITORS OF RECORD:
Metro Toronto Chinese & Southeast FOR THE APPLICANT
Asian Legal Clinic
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario