Ottawa, Ontario, this 9th day of December, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
KENNETH GARVEY
Applicant
and
MEYERS TRANSPORT LIMITED
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Kenneth Garvey, seeks to review a decision of the Canadian Human Rights Commission ("CHRC" or the "Commission") dated April 27, 2004, dismissing the Applicant's human rights complaint (File Number: 20021150) against the Respondent, Meyers Transport Limited ("Meyers Transport"). In that human rights complaint, the Applicant maintained that he had been subjected to discriminatory practices pursuant to section 7 of the Canadian Human Rights Act (the "CHRA" or the "Act").
BACKGROUND
[2] The Applicant argues that the Respondent has discriminated against him during the
course of his employment by proposing to terminate his employment because of his age (63) and by treating the Applicant in an adverse manner because of his disability (a stress-related illness), contrary to section 7 of the Act.
[2] The Applicant had been employed at Meyers Transport since January 11, 1993 and had held the position of Terminal Manager since 1993. In the spring of 2002, the Applicant started getting sudden intense headaches and suffering from insomnia and other stress-related illnesses. He therefore took a three week holiday from August 12 to September 3, 2002. On September 20, 2002, his supervisor, Mr. Slugocki gave the Applicant a letter of termination, with four months working notice of the termination. The letter stated that the Applicant's performance was substandard.
[3] Shortly before the Applicant was terminated, he had several discussions with company officials about his retirement. Meyers Transport offered him the position of Special Project Manager. The Applicant rejected this offer on the basis that it involved a reduction in hours and a corresponding decrease in salary.
[4] The Applicant contacted the Commission and signed a Canadian Human Rights Commission Complaint on December 9, 2002 alleging that Meyers had discriminated against him on the basis of his age and his stress-related illness which constituted a disability. After completing an investigation of the allegations raised by the Applicant, the CHRC Investigator filed a report on February 10, 2004. The Investigator recommended that, pursuant to section 47 of the Act, a conciliator be appointed to attempt to bring about a settlement of the complaint and, pursuant to paragraph 44(3)(a) of the Act. The Investigator also recommended that should the parties fail to reach a settlement, the matter should be referred to the Tribunal.
[5] Both the Applicant and the Respondent were provided with the opportunity to respond to the content of the Investigator's Report and availed themselves of this opportunity. The Applicant submitted letters dated March 4, 2004 and March 14, 2004, and the Respondent submitted letters dated March 1, 2004 and March 18, 2004. In the March 18th letter, the Respondent set out a chain of events over a three-year period that, it asserts, led to the Applicant's termination. The Commission did not disclose this letter to the Applicant, and he was not given an opportunity to comment on it.
DECISION OF THE CANADIAN HUMAN RIGHTS COMMISSION
[6] The Commission dismissed the Applicant's complaint pursuant to paragraph 44(3)(b) of the Act on the basis that the evidence indicated that the Applicant's performance and ability to perform his functions in an efficient and effective manner were a factor in his dismissal, and because the evidence did not support that the Respondent had discriminated against the Applicant on the basis of age.
ISSUES
1. Did the CHRC base its decision to dismiss the Applicant's complaint on the wrong legal principles?
2. Did the CHRC deny the Applicant procedural fairness by failing to cross-disclose the Respondent's March 18, 2004 letter and by denying the Applicant the opportunity to comment upon it?
3. Did the CHRC fail to fully consider the evidence with respect to the Applicant's allegations with respect to disability?
STANDARD OF REVIEW
[7] Both parties agree that for the purposes of this hearing, the standard of review which must be applied is reasonableness simpliciter (see Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748.) In Southam, the Court described the standard of reasonableness simpliciter at paragraph 56:
(a)n 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.
Issue 1: Did the CHRC base its decision to dismiss the Applicant's complaint on the wrong legal principles?
[8] In its Decision, the CHRC set out two reasons for dismissing the complaint:
- the evidence indicates that the complainant's performance and ability to perform his new functions in an efficient and effective manner were a factor in his dismissal, and;
-the evidence does not support that the respondent had discriminated against the complainant on the basis of age.
[9] The Applicant argues that it is implicit in the first bullet of the reasons that the CHRC found discrimination to be a factor in the dismissal, but concluded that it was not a primary or dominant factor. This, in its view, constitutes a reversible error, as there is no need for a finding that discrimination is the dominant or primary factor before referring a case to the tribunal. (See Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at D/5038 and D-5040 and Holden v. Canadian National Railway [1990] F.C.J. No. 414 (F.C.A.)). Such an interpretation is neither implicit in the first bullet nor must it be drawn from the first bullet. Other factors mentioned in the investigator's report were downsizing and reorganization of Meyers Transport, and it could well be that these were the primary factors. A more reasonable reading of the first bullet is that the CHRC merely made a factual finding that the Applicant's performance was a factor in his dismissal. The CHRC then proceeded to clearly address the issue of discrimination in the second bullet of its reasons.
[10] The Canadian Human Rights Act ("CHRA") does not require the provision of reasons, it only requires that the Complainant be notified of the Commission's decision. This Court addressed this issue in Kallio v. Canadian Airlines International Ltd., [1996] F.C.J. No. 725 (T.D.) at paragraph 13:
(i)n 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.
[11] The sparse reasons given in this case are more than sufficient in light of finding in Kallio (supra).
Issue 2: Did the CHRC deny the Applicant procedural fairness by failing to cross-disclose the Respondent's March 18, 2004 letter and by denying the Applicant the opportunity to comment upon it?
[12] The Applicant argues that the March 18th letter contained new material and facts that were vital to the case and, therefore, there was a duty to disclose the letter to the Applicant.
[13] While it would have been preferable to cross-disclose all material to the Applicant, this failure to disclose is not fatal to the CHRC's decision. The content of the duty of fairness was described by Dubé J. in Miller v. Canada (Canadian Human Rights Commission) (1996), 112 F.T.R. 195 (T.D.) at paragraph 22:
(t)he rule of procedural fairness requires that a complainant know the substance of the case against him or her. The complainant is not entitled to every detail but he should be informed of the broad grounds of the case. The complainant is not entitled to the investigator's notes of interviews or the statements obtained from persons interviewed. He must be informed of the substance of the case and he has every right to expect that the investigator's report fully and fairly summarize the evidence obtained in the course of his investigation. He must be given the opportunity to respond. He is also entitled to the disclosure of an opposing party's comments when those comments contain facts which differ from those set out in the investigative report. In order to constitute a reviewable error, the complainant must demonstrate that the information was wrongly withheld and that such information is fundamental to the outcome of the case. [Emphasis added]
[14] The material contained in the March 18th letter was either mentioned or alluded to in the Investigator's Report. None of the facts mentioned in the March 18th letter were fundamental to the decision. None of them were mentioned in this notice of application for judicial review. Accordingly, the Applicant's argument cannot succeed.
Issue 3: Did the CHRC fail to fully consider the evidence with respect to the Applicant's allegations with respect to disability?
[15] The Applicant notes that the CHRC did not deal with disability in its decision. He equates this failure to mention the disability to a lack of consideration of the issue by the CHRC. An examination of the record does not sustain this allegation.
[16] The Investigator's Report pointed out that no medical information was provided regarding the exact nature of the disability or any limitations imposed as a result. In his view, it would appear, there was insufficient evidence on the record to support the Applicant's contention that his dismissal was a result of his disability. Consequently, the investigator felt the evidence was too sparse to warrant a recommendation.
[17] In light of these points, it was reasonable for the CHRC itself not to deal with the allegation of discrimination based on disability.
[18] Since none of the three issues raised by the Applicant have been sustained, this application cannot succeed.
ORDER
THIS COURT ORDERS that:
1. This application be dismissed.
2. There will be no order as to costs.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1055-04
STYLE OF CAUSE: KENNETH GARVEY
and.
MEYERS TRANSPORT LIMITED
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 7, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
DATED: DECEMBER 9, 2004
APPEARANCES:
MS. FREDERICA WILSONFOR THE APPLICANT
MS. RAIJA PULKKINEN
MS. KELLY CHARLEBOISFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ENGELMANN GOTTHEIL FOR THE APPLICANT
OTTAWA, ONTARIO
MILLER THOMSON LLP FOR THE RESPONDENT
TORONTO, ONTARIO