Date: 20020712
Docket: T-38-01
Neutral citation: 2002 FCT 787
Ottawa, Ontario, this 12th day of July, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
DR. SHIV CHOPRA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission ("Commission") dated December 19, 2000, dismissing the complaint of the Applicant.
ISSUES
[2] What is the standard of judicial review applicable to the decision by the Commission to dismiss the complaint?
[3] Did the Commission act in violation of procedural fairness by not getting in touch with the applicant following the letter sent to him in October 2000?
[4] Did the Commission act in violation of procedural fairness by failing to conduct a thorough investigation with respect to the complaint?
[5] Did the Commission improperly apply the relevant burden of proof in assessing the Applicant's complaint?
[6] The application for judicial review is allowed.
BACKGROUND
[7] The complaint on which the case at bar is focussed deals with events that have taken place since 1992. The Applicant had filed another complaint which has since been remitted to the Canadian Human Rights Tribunal ("Tribunal") for rehearing following an order to that effect by this Court (see Canada (CHRC) v. Canada (Department of National Health and Welfare) (re Chopra), [1998] 146 F.T.R. 106, aff'd (1999) 235 N.R. 195 (Fed. C.A.)). That complaint is now before the Tribunal and the facts and allegations specific to it are excluded from the present discussion.
[8] The Applicant, who is originally from India, has been employed by Health Canada ("HC") represented by the Respondent since 1969. He is a scientist in the Bureau of Veterinary Drugs ("BVD").
[9] The Applicant, who is a member of a visible minority group, contends that HC has discriminated against him on the grounds of his race, colour or national origin, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"). The Applicant also submits that he was subjected to systemic discrimination at HC in violation of section 10 of the Act.
[10] The Applicant, in his submissions, asserts several incidents in which he was denied opportunities for promotion. These incidents are described individually below.
[11] In 1993, the Applicant applied for the position of Director, Bureau of Veterinary Drugs (BVD). He was screened out based on a requirement that the successful candidate have "recent" management, media and international experience. The Applicant asserts that he had this experience. The successful applicant was Dr. Tim Scott, who is not a member of a visible minority group.
[12] In 1996, the position of Acting Director, BVD, became available when Dr. Scott left on special assignment. The Director-General of the Food Directorate, appointed himself as acting director rather than open a competition among Bureau staff to fill the position. The Applicant claims that this precluded him and his visible minority colleagues from having the opportunity to apply for this position.
[13] The position of Director, BVD, became available again in February 1998. Dr. André Lachance was deployed directly from Agriculture Canada to fill the position despite his lack of experience with respect to the evaluation of veterinary drugs. Dr. Lachance is also not a member of a visible minority group.
[14] The Applicant declares that no open competition was held within the BVD for the position, and that HC arranged for the transfer of Dr. Lachance from Agriculture Canada in order to preclude visible minorities from advancing to the position. The Respondent argues that this transfer was carried out in the context of a swap program by which Dr. Scott was being transferred to a position to be phased out at Agriculture Canada. This would facilitate Dr. Scott's retirement from the federal public service while ensuring the retention of Dr. Lachance within the public service. In the view of the Respondent, this was in accordance with policies on swapping of employees set by the Treasury Board of Canada, and was not improper.
[15] Following his appointment as Director, Dr. Lachance was introduced to BVD staff at a meeting. In his remarks, Dr. Lachance allegedly said "I like visible minorities". While BVD staff were not unanimous in their ability to recall the exact words used by Dr. Lachance, many visible minority employees asserted that they felt uncomfortable with the references made by Dr. Lachance to visible minorities. Dr. Lachance also, during the same meeting, allegedly lamented that there was "too much visible minority mentality" within HC.
[16] The Assistant Deputy Minister ("ADM") of HC is also accused to have stated that members of visible minority groups do not have the "soft skills" consistent with the North American way of doing business. This implied that they are not suitable for managerial positions.
[17] In May 1999, Dr. Lachance appointed Dr. Ian Alexander as Acting Chief of the Human Safety Division ("HSD") of BVD. The Applicant claims that he was never considered for the acting assignment, despite working in HSD and being equally qualified. At the end of that term, the acting assignment was given to Dr. Kelly Butler. Dr. Butler, also not a member of a visible minority group, had no experience in any division of BVD.
[18] In addition to the above "staffing incidents", as the Applicant describes them, he also claims to have been the target of efforts to discredit him. In 1990, a memorandum of complaint was placed in the Applicant's personnel file. The Applicant did not have any knowledge of this action until December 1993, following an Access to Information request with respect to his file.
[19] The notation was removed in 1995 following a grievance by the Applicant. The complaint had been placed in the Applicant's file notwithstanding the resolution of the complaint in the Applicant's favour in 1990. The memorandum of complaint was invoked in a 1991 performance review by HC.
[20] Despite the removal of the notation, the Applicant claims to have suffered damage to his professional reputation during that time period and is unsatisfied at not having received a remedy for that. He is also dismayed that those responsible for the notation did not have imposed on them any sanctions of which the Applicant is aware.
[21] In 1997, a pharmaceutical company, Elanco, claimed that the Applicant and a colleague conducted themselves in an unprofessional manner during a meeting with the company. The Applicant impugns HC for siding with the company and acting in a manner which supported the impression that the Applicant had acted inappropriately, rather than using discretion and carrying out a full investigation of the incident.
[22] In 1999, the Applicant was suspended for five days by Dr. Lachance. The Applicant believes that this suspension was in retaliation for comments that he had made during a conference on racial discrimination in which he expressed views on the treatment of visible minorities at HC.
[23] It must be noted that in 1997 the Tribunal heard a complaint lodged by the National Capital Alliance on Race Relations ("NCARR"). The Applicant is the President of NCARR and had a major role in bringing that complaint forward. The Tribunal held that HC exercised staffing practices which had discriminatory effects on visible minorities. The Tribunal ordered HC to undertake several measures in order to reverse the effects of its discriminatory practices. These measures included an increase in the number of managerial positions offered to members of visible minority groups. In the instant case, the Applicant and the Respondent disagree on the extent to which HC has complied with the NCARR order since it was released.
DECISION OF THE COMMISSION
[24] The complaint dealt with in the present case was initially lodged in 1998, but the investigation began in the autumn of 1999 following amendments to the complaint in January 1999, which reflected the allegedly discriminatory acts which took place between the launching of the complaint and the commencement of the investigation.
[25] In June 2000, the investigator from the Commission recommended dismissal of the complaint on the grounds that the evidence did not support the allegations that HC either had practices or policies that excluded members of visible minority groups from consideration for management positions or which deprived the Applicant of promotional opportunities because of race, colour or national or ethnic origin.
[26] Following the release of the report, submissions to the Commission were made by the Applicant in July 2000 and, subsequently, by HC. The Commission decided to return the complaint to its investigation stage in October 2000. On December 19, 2000, the Commission issued its decision to dismiss the complaint.
[27] The decision to dismiss was based on the Commission's view that the evidence supported neither the allegation that the Applicant was denied promotional opportunities or treated in an adverse fashion because of his race nor that HC pursued a policy that deprived persons from visible minority groups of promotional opportunities. The Commission was also of the view that HC did not treat the Applicant in an adverse manner by taking retaliatory action against him.
APPLICANT'S ARGUMENTS
[28] The Applicant submits that although case law normally provides for a reasonableness simpliciter standard of review for decisions such as the one at issue in the present case, a standard of correctness should be applied. The correctness standard is, in the Applicant's view, justified by the Commission's alleged breach of procedural fairness in its decision and the process by which it arrived at that decision.
[29] The Applicant also submits that the Act is to be interpreted as broadly as possible given its vocation as a vehicle for the protection of rights and the elimination of discrimination. In the Applicant's view, the intention of Parliament expressed through this Act is to be considered whatever the applicable standard of review may be.
[30] The fact that the Commission's decision is a final decision disposing of a complainant's rights with respect to the complaint means that the Commission must base its decision on a thorough review of the evidence. Judicial intervention is in order in the absence of a proper factual basis for the decision of the Commission.
[31] The burden of proof in the evaluation of human rights complaints requires the complainant to establish a prima facie case. Once that has been demonstrated, it is then incumbent on the respondent to demonstrate, with clear evidence, that there is no basis for the complaint. The Commission must take into account the reality that overt discrimination is rare today. Discrimination is generally subtle in nature. An observation to this effect was made in Basi v. Canadian National Railway Company, [1988] C.H.R.D. No. 2 T.D. 2/88 (Q.L.). The Commission must especially bring an awareness of the covert, subtle nature of discrimination to its analysis of claims of systemic discrimination.
[32] In the present case, the Applicant submits that the decision to dismiss the complaint in December 2000 was inconsistent with its decision to return the complaint to the investigation stage in October 2000. The Applicant claims that the decision to reopen was prompted by the submissions that he made to the Commission in July 2000, that the Commission would contact him for further consultation and would in fact carry out further investigation on the systemic discrimination at HC. The Commission's failure to do so without justification is, in the Applicant's view, a reviewable error.
[33] The Applicant contends that the principles of procedural fairness were violated. The Applicant believes that he had convinced the Commission to investigate the systemic aspect of his discrimination complaint. The Applicant believes that he had a reasonable expectation that he would be consulted prior to any further progress by the Commission with respect to the complaint. He also asserts that he was entitled to respond to the Commission's reasons for its decision to dismiss his complaint following the decision to reopen the investigation.
[34] The Applicant is of the view that the December 2000 decision to dismiss must have been based, at least in part, on arguments, information or evidence that the Commission obtained after its October 2000 decision to reopen the investigation. The Applicant had no opportunity to respond to any of that and, therefore, the Commission committed a breach of procedural fairness.
[35] The Applicant alleges that even if procedural fairness was observed in other respects, the Commission violated principles of procedural fairness by basing its decision on an investigation that was not sufficiently thorough. The investigation's apparent lack of coverage of systemic issues at HC is cited as an element of the alleged lack of thoroughness. The investigator apparently gave weight to decisions of decision makers which had little or no relevance to a discrimination complaint, such as an Appeal Board appointed under the Public Service Employment Act, R.S.C. 1985, c. P-33, s.21.
[36] The investigator improperly decided that some comments which the Applicant found offensive were not discriminatory because no discriminatory effect was intended. The Applicant submits that intent is not a factor in deciding whether an act is discriminatory. Other incidents similarly received no analysis with respect to how they supported the Applicant's complaint.
[37] The investigator also ignored the order of the NCARR case and the actions that HC was to have undertaken in compliance with that order, despite the Applicant's efforts to bring that matter to the attention of the investigator.
[38] The Applicant sums up this portion of his submissions by declaring that when the analysis carried out during the investigation is measured against the allegations and evidence before the investigator, the investigation cannot be said to have been thorough.
RESPONDENT'S ARGUMENTS
[39] With respect to the applicable standard of judicial review, the Respondent is of the view that considerable deference must be given to the decisions of the Commission. Since its decision was essentially an assessment of facts, carried out in the Commission's capacity as a body which screens out unfounded complaints, a patently unreasonable standard of review should be applied. The evidence does not show that the application of a correctness standard was triggered by the failure of the Commission to consider the material before it.
[40] The Respondent argues that the duty of fairness requires only that the parties be informed of the substance of the evidence obtained by the investigator which is placed before the Commission and have an opportunity to respond to that evidence. That obligation to the parties was respected in this case.
[41] With respect to the period between the reopening of the investigation in October 2000 and the decision to dismiss in December 2000, the Respondent points out the Commission's reopening of the investigation was not a "decision" among those that the Act authorizes the Commission to make. It is therefore not subject to comparison with the Commission's actual decision; namely, the one dismissing the complaint in December 2000. The investigation stage remains open until that decision is made. The October letter was therefore part of a continuous process rather than a distinct step in the proceeding subject to scrutiny in its own right.
[42] The Respondent argues that the Applicant had the full opportunity to influence the Commission's decision to dismiss his complaint. The Applicant was able to address all of the evidence, information and arguments that the Commission had before it when it made its decision in December 2000. The doctrine of legitimate expectations does not create a requirement that further investigation be undertaken. The decision as to whether or not to investigate further is strictly within the discretion of the Commission.
[43] The Respondent's submission with respect to thoroughness is that the investigator is not required to analyse every allegation, interview every witness and address every allegation in the preparation of its report to shield it from judicial scrutiny. The argument that there are limits to how thorough an investigation can reasonably be expected to be is based on the comments in this regard in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) at page 600.
[44] The Respondent argues in any event that the investigation was indeed thorough. The Respondent points to the number of witnesses interviewed and the volume of written material reviewed by the investigator. The investigator, according to the Respondent, did give serious consideration to the allegation of systemic discrimination and decided after such consideration that the evidence did not justify an inquiry by the Tribunal into that complaint.
ANALYSIS
1. Applicable legislation
[45] Section 7 of the Act provides that:
| 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. |
|
|
|
|
[46] Section 10 of the Act reads as follows:
| 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. |
[47] The Commission's basis for the decision to dismiss the complaint was section 44(3)(b)(i) of the Act. Section 44(3)(b) of the Act provides that once the Commission receives the report with respect to the investigation of the complaint, it
| [...] 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 [...] |
|
[la Commission] rejette la plainte, si elle est convaincue:
(i) [...] que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié [...] |
2. Standard of Review
[48] The Applicant submits that a correctness standard should be applied because the decision was rendered in violation of the principles of procedural fairness, which justifies a correctness standard. The Applicant relies on the Supreme Court of Canada's discussion in Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission, [1989] 2 S.C.R. 879 at 899.
[49] The Applicant also relies on the discussion in Singh v. Canada (Attorney General), [2001] F.C.J. No. 367 as support for the application of a correctness standard. However, Singh, supra, at paragraph 13, stands for the application of a reasonableness simpliciter standard in the review of decisions by the Commission to dismiss complaints.
[50] The Respondent argues that I should apply the patently unreasonable standard of review. Pushpanathan v. Canada (Minister of Citizenship), [1998] 1 S.C.R. 982 succinctly brings together all of the major case law that preceded that decision with respect to judicial review.
[51] The determination of the standard of judicial review to be applied is dependent on the legislative intent of the statute creating the Tribunal whose decision is being reviewed (Pushpanathan, supra at paragraph 26). The pragmatic and functional approach, introduced in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 and further developed in Pushpanathan, requires that this process of statutory interpretation take a range of factors into account. The presence or absence of a privative clause, the expertise of the Tribunal, the purpose of the Act in question as a whole and the provision at issue in particular, and the nature of the problem; that is, whether it is a question of law or fact, are the four key factors that must be examined.
[52] The decision of Justice McKeown in Singh supports the rule that "[t]he appropriate standard of review of the Commission's decision of whether or not to dismiss a complaint is reasonableness simpliciter" (Singh, at paragraph 13). Singh also dealt with a decision of the Commission whose decision is under review in the instant case.
[53] The reasonableness simpliciter standard is justified in this case in that the same Act is being applied as in Singh. The absence of a privative clause, the expertise of the Commission, the purpose of the Act and of s. 44(3)(b)(i) in particular are the same in the present case as in Singh, as is the nature of the problem.
[54] The definition of the reasonableness simpliciter standard was developed in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748. This standard requires a greater degree of crucial deference to be shown to the Tribunal in question than that which would be shown in the case of a correctness standard. Essentially, if a defect is obvious on the face of the decision, then that defect renders the decision patently unreasonable. If some probing is required to uncover the defect, then the decision is simply considered unreasonable (Southam, supra, at paragraph 57).
[55] In a review based on the reasonableness standard, the decision must be examined to see if the decision can be supported by reasons that stand up to a somewhat probing examination. A flaw in the evidentiary basis for the decision or in the process by which conclusions were sought to be drawn from it is the type of error which would only become visible by means of a probing examination and would render a decision unreasonable, but not patently unreasonable (Southam, at paragraph 56).
[56] I will therefore apply the reasonableness simpliciter standard.
3. Procedural Fairness
[57] For the purpose of discussion, it is necessary to reproduce the letter sent by the Commission to the Applicant on October 4, 2000.
I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint (H47521) against Health Canada.
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided to return the complaint to investigation.
The investigator will be in touch with you shortly to explain the next steps in the process. [emphasis added]
[58] There is an admission by both counsels that the Applicant was never contacted after October 4, 2000. Even though the record shows that no further investigation or evidence was contemplated by the Commission, I am of the opinion that the Applicant had a reasonable expectation that the investigator would be in touch with him before the Commission renders its decision. I therefore find that there is a breach of procedural fairness here.
4. Thoroughness of the Investigation
[59] The failure to take into account the vast body of evidence with respect to systemic discrimination at HC calls into question the thoroughness of the investigation because the NCARR decision, where numerous symptoms of a discrimination-laden workplace in HC staffing practices were uncovered, clearly deserved more consideration in the decision than it received. Nadon J. (as he then was) in Slattery, supra, said at page 600:
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interest in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system. Indeed, the following words from Mr. Justice Tarnopolsky's treatise Discrimination and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally applicable with regard to the determination of the requisite thoroughness of investigation:
With the crushing case loads facing Commissions, and with the increasing complexity of the legal and factual issues involved in many of the complaints, it would be an administrative nightmare to hold a full oral hearing before dismissing any complaint which the investigation has indicated is unfounded. On the other hand, Commission [sic] should not be assessing credibility in making these decisions, and they must be conscious of the simple fact that the dismissal of most complaints cuts off all avenues of legal redress for the harm which the person alleges.
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. [emphasis added]
[60] With these principles in mind, I find that the decision is unreasonable because the analysis on systemic discrimination is not sufficiently thorough. On that basis, procedural fairness was effectively denied to the Applicant.
5. Application of the Burden of Proof
[61] The burden of proof rests initially on the complainant to make out a prima facie case of discrimination, after which the burden shifts to the respondent to prove that there is no basis for the complaint.
[62] It has long been established in Canadian law that an intent to discriminate is not a necessary element for a finding that a discriminatory act took place. This was established by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.
[63] The investigator in the present case erred in deciding that certain statements were not discriminatory because no such intent could be proven with respect to those statements.
[64] As mentioned in Simpsons-Sears, supra, intent is not a necessary precondition to a finding of harassment. As such, the investigator ought to have probed further into the impugned comments in order to determine what they meant to the Applicant. Words which, in the abstract, may have led an impartial observer not to feel offended but in fact to perceive that a genuine concern for historic targets of discrimination was in fact being demonstrated, were perceived as injurious and provoked discomfort in the tense climate at HC. By analysing the complaint with respect to the statements made by Dr. Lachance without adequately considering the context in which they were made and the overall impact of those words and that context on the Applicant, the Commission is responsible for that omission.
[65] I am therefore of the opinion that the Commission incorrectly applied the burden of proof in the case at bar.
CONCLUSION
[66] The application for judicial review is allowed and order is given that the matter be sent back to the Commission for investigation by a new investigator. This investigation should take into account the systemic nature of the discrimination evidence at HC. Consideration should be given to the NCARR decision. The judicial review is allowed with costs.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed;
2. The matter should be sent back to the Commission for investigation by a new investigator. This investigation should take into account the systemic nature of the discrimination evidence at HC. Consideration should be given to the NCARR decision.
3. The judicial review is allowed with costs.
(signed) Michel Beaudry
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-38-01
STYLE OF CAUSE : DR. SHIV CHOPRA and
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING : Ottawa, Ontario
DATE OF HEARING : May 28, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
APPEARANCES :
David Yazbeck FOR THE APPLICANT
David Migicovsky
Perley-Robertson, Hill & McDougall FOR THE RESPONDENT
SOLICITORS OF RECORD :
David Yazbeck FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario