BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER
[1] In this application for judicial review, the applicant is seeking to set aside a decision of the Canadian Human Rights Commission rendered April 29, 2004 wherein it recommended, pursuant to subsection 44(3) of the Canadian Human Rights Act, that a tribunal be appointed to enquire into the complaint of the respondent Doug Humber.
[2] On April 28, 2005, the Canadian Human Rights Commission sought and was granted intervener status.
[3] Essentially, the Attorney General of Canada, representing the Canadian Forces, is seeking to set aside the decision of the Commission to appoint a tribunal by attacking the report submitted by an investigating officer in which he recommended that a tribunal be appointed to look into the complaint.
[4] The respondent was a member of the Canadian Forces since 1978. In April 2000, he suffered a heart attack and was hospitalized; on May 2, he suffered a further heart attack and, following surgery, suffered a right shoulder injury when his hand and arm got caught between a handrail and the bed which extended the arm and injured his shoulder. After three months of recovery, he returned to work at a desk job and subsequently was moved to perform technician duties. He continued to experience pain in his shoulder and it was not until June 2003 that it was discovered that shoulder surgery was required and subsequently performed.
[5] The respondent was advised by physicians that he would require extensive rehabilitation and physiotherapy which would continue for a period of 6 to 24 months. He was medically discharged effective August 2003; no position was made available to accommodate him. It was the respondent's view that there was no shortage of desk jobs to accommodate him. He sought an extension to stay in the military during his recovery and rehabilitation period. Once discharged, he was put in the position of getting his own physiotherapy and was forced to use retirement leave as well as accumulated annual leave for rehabilitation. He would therefore not be in a position to use his retirement and annual leave for transition to civilian life which was normally provided after service in Regular Forces.
[6] The respondent's complaint dated July 2, 2003 concluded as follows:
"I believe that the Canadian Forces discriminated against me by refusing to accommodate my disability by medically discharging me effective August 7, 2003, and by refusing to delay my release until I have completed the physiotherapy required following extensive shoulder surgery."
[7] The matter was referred by the Commission to an investigating officer who, after reviewing Corporal Humber's complaint and conducting an investigation, submitted a recommendation to the Canadian Human Rights Commission on April 29, 2004 that a tribunal be appointed to enquire into the complaint.
[8] Following receipt of the investigator's report, on May 26, 2004 the Canadian Forces forwarded a letter to the Commission outlining its criticism of the investigator's report, detailing alleged inaccuracies in the report and finally submitting that the complaint should be dismissed.
[9] Following the disclosure and after having received the submissions from the applicant, the Commission, having all the required material before it, made its decision to refer the complaint to a tribunal for further enquiry.
[10] The applicant submits that there were a number of significant factual errors in the investigator's report; that the investigator considered new allegations which were not included in the respondent's complaint to which they were not given an opportunity to respond. More particularly, it attacks the finding in the report that the Canadian Forces have a standard three year accommodation policy; it is argued that no such policy exists. A further submission was to the effect that the Commission committed a reviewable error by considering new allegations found in the report. Finally, the applicant submits that the Commission failed to provide the Canadian Forces with the written reasons for its decision.
[11] Dealing first with the final issue raised by the applicant, that no written reasons were provided by the Commission when it rendered its decision to refer the matter to a tribunal. Pursuant to subsection 44(3) of the Act, the legislation does not impose an obligation to provide reasons either to recommend the appointment of a tribunal or to dismiss a complaint outright. This was recognized by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada(Human Rights Commission), [1989] 2 S.C.R. 879 ("SEPQA") as well as by this honourable court in Mercier v. Canada(Human Rights Commission), [1994] 3 F.C. 3 ("Mercier"):
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.
[12] Similarly, there is no common law duty upon the Commission to provide reasons for its decision to refer a case to a tribunal. The Supreme Court of Canada has recently held that, in certain specific circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. However, the Court did not extend this duty to all administrative tribunals but rather indicated that it would apply in certain circumstances such as those where the decision has important significance for the individual or where there is a statutory right of appeal.
[13] I have carefully reviewed the submissions of the applicant with respect to his allegation of significant factual errors and I have not been persuaded that any of these alleged inaccuracies are of any merit. Emphasis and argument centered on the allegation that the Commission failed to provide the Canadian Forces with written reasons for its decision "and based its decision on a finding that the Canadian Forces have a standard of three year accommodation policy when in fact no such standard accommodation policy exists" is purely speculative. As I have written previously, the Commission is under no obligation to provide written reasons and if the investigator may have obliquely alluded to the existence of such a policy without any specific attempt to interpret it, he cannot be faulted since it is referred to in the Queen's Regulations and Orders at paragraph 6 of Reference: 5077-3 (6 December 1994) which states as follows:
When the decision is made to accommodate a member, that accommodation period will bring the member to the end of current term of service or be of a duration of three years, whichever comes first. The member may choose to reject the offer. Such periods of accommodation are renewable, subject to periodic reassessment, until CRA or until accommodation is no longer possible or until the member is not selected for conversion of terms of service.
The applicant in his reply to the report was at liberty to outline a more forceful rebuttal with respect to its interpretation of the policy.
[14] It was also submitted that new allegations were included in the investigator's report which did not form part of the respondent's complaint. Further emphasis and submissions on this issue were directed primarily to the suggestion by the complainant that other members of the Armed Forces in similar circumstances have been dealt with more favourably. In his report, the investigator, writing on this topic, suggested that accommodation was provided for three other members of the Forces which he named. This is not a new issue upon which Mr. Humber was basing his complaint of discrimination. Had the Canadian Forces wish to challenge this aspect of the report, they were given the opportunity to do so. These named individuals were certainly in their domain and particularized rebuttal was available to them.
[15] After a total review of the submissions directed at inaccuracies as well as the allegation that the investigator may have gone beyond the bounds of his mandate and the terms of the complaint, I am satisfied that they are without merit. The onus was on the applicant to satisfy me that the investigating officer acted in bad faith. He submitted, as I see it, a very objective report on findings of fact. I do not discern any bias, nor was I persuaded that he deviated from his responsibility of neutrality and thoroughness.
[16] Now turning to the decision rendered by the Commission. This was purely an administrative decision and is bound by the duty of fairness. Such decisions are generally given the highest level of deference, as the Board has a high level of expertise in the area for which the decision is made. Much like the economic expertise of the Competition Tribunal (Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748) the current Board has expertise in the area of Human Rights, and a decision to refer a complaint to a Tribunal is an administrative decision that should acquire a high amount of deference. In Pushpanathan v. Canada(M.C.I.), [1998] 1 S.C.R. 982, at para 33, the Supreme Court noted, while considering the pragmatic and functional approach:
The court must characterize the expertise of the tribunal in question, it must consider its own relative expertise to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.
[17] The other three aspects of the pragmatic and functional approach are the existence of a privative clause, the purpose of the statute, and the nature of the decision (fact, law, or mixed fact and law). Before the Court is a discretionary decision to refer the matter to a tribunal, the statutory questions are not relevant, and the issue is a question of fact, which attracts the highest amount of deference. A discretionary decision is generally only invalid if the decision-maker acted in bad faith.
[18] The general rule for discretionary decisions is that they will only warrant judicial review if there is clear evidence of mala fides.
[19] In Mount Sinai HospitalCentre v. Quebec(Minister of Health and Social Services), [2001] 2 S.C.R. 281, the court noted at para 58:
¶ 58 Decisions of Ministers of the Crown in the exercise of discretionary powers in the administrative context should generally receive the highest standard of deference, namely patent unreasonableness. This case shows why. The broad regulatory purpose of the ministerial permit is to regulate the provision of health services "in the public interest". This favours a high degree of deference, as does the expertise of the Minister and his advisors, not to mention the position of the Minister in the upper echelon of decision makers under statutory and prerogative powers.
[20] In Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, the Supreme Court complicated the concept of discretionary decisions slightly, at paras 53-54:
¶ 53 Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of "unreasonableness" has also sometimes been applied to discretionary decisions: Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.). In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. [page854] Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).
¶ 54 It is, however, inaccurate to speak of a rigid dichotomy of "discretionary" or "non-discretionary" decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making. To give just one example, decision-makers may have considerable discretion as to the remedies they order. In addition, there is no easy distinction to be made between interpretation and the exercise of discretion; interpreting legal rules involves considerable discretion to clarify, fill in legislative gaps, and make choices among various options. As stated by Brown and Evans, supra, at p. 14-47
The degree of discretion in a grant of power can range from one where the decision-maker is constrained only by the purposes and objects of the legislation, to one where it is so specific that there is almost no discretion involved. In between, of course, there may be any number of limitations placed on the decision-maker's freedom
(emphasis is mine)
[21] Pursuant to the Baker decision, this case warrants considerable deference, as the matter involves the referral of a report to a tribunal. Even under Baker, which slightly alters the 'only in bad faith' rule, the decision-makers have considerable discretion as to the remedies they order. The current case deals with a discretionary decision to refer the complaint to a Tribunal. As L'Heureux-Dubé J. pointed out in Baker, this type of decision, regarding the remedy ordered by a Board, will attract considerable deference.
[22] The case law states that an administrative decision will attract a duty of fairness. The expertise of the agency to define the procedure creates a presumption that the decision should be left to the agency (see Baker supra). Generally, unless the administrative decision is rooted in bad faith, the duty of fairness is met for an administrative discretionary decision.
[23] The pragmatic and functional approach also results in the conclusion that a high degree of deference is owed to the agency in the case where an administrative, discretionary decision is undertaken. The relative expertise of the Board suggests to the Court that it regularly makes such decisions, and is in a better position than the Court to make the determination. The exception here, once again, is where there is bad faith, or if the decision was so unreasonable as to warrant judicial interference.
[24] Finally, the fact that the decision was discretionary further supports a considerable amount of deference. The Board is a specialized agency, which regularly renders this type of discretionary decision and such decisions will rarely attract judicial review. The Supreme Court in Baker noted a few circumstances where the courts may review a discretionary decision and gave as an example an analogous type of decision that would attract considerable deference.
[25] For all of these reasons, the application for judicial review is dismissed with costs.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1625-04
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA and DOUG HUMBER and THE CANADIAN HUMAN RIGHTS COMMISSION
PLACE OF HEARING: EDMONTON, Alberta
APPEARANCES:
Mr. Kevin Staska FOR APPLICANT
Ms. Ritu Khullar FOR THE INTERVENER
SOLICITORS OF RECORD:
John H. Sims,
Deputy Attorney Genera of Canada FOR APPLICANT
Canadian Human Rights Commission FOR THE INTERVENER