Date: 20040608
Docket: T-57-03
Citation: 2004 FC 817
Ottawa, Ontario, this 8th day of June 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
KATHERINE McCONNELL
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION
and CANADA CUSTOMS AND REVENUE AGENCY
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION:
[1] Ms. Kathleen McConnell (the "Applicant") seeks judicial review, pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Canadian Human Rights Commission ("the Commission" or "CHRC"), dated December 19, 2002. In that decision, the CHRC advised the Applicant that her complaint was dismissed.
BACKGROUND
[2] The Applicant filed a complaint on November 18, 2000, against Canada Customs and Revenue Agency ("CCRA"), alleging discrimination on the basis of race, national/ethnic origin and disability, all in contravention of the Canadian Human Rights Act, R.S.C. 1985 c. H-6 (the "Act").
[3] The Applicant began working with Revenue Canada Customs and Excise in 1990, in Vancouver as a PM-02 Audit Officer. In December 1997, she began working in Calgary, in the Scientific Research and Experimental Development Unit ("SRED"). Pursuant to a Memorandum of Understanding signed by the Applicant on November 2, 1999, she was assigned from her Home Department with the SRED program to the Host Department of Technical Interpretation Unit ("TIS") within the Client Services Division with the Respondent in Calgary. According to the Memorandum of Understanding, which had been signed by Gerry Baker, Assistant Director, Client Services, on September 22, 1999 and Rob Veltri, Manager, Audit Services, on August 9, 1999, the Applicant was to report to the TIS unit, for work. Clause 6 of this Memorandum of Understanding provided that the Applicant could be terminated at any time with the mutual consent of the Host and Home organizations, that is the SRED Unit and TIS Unit, respectively.
[4] The Applicant did not report to the TIS unit until January 10, 2000, following her requests for postponement of the beginning of this secondment. The secondment agreement was cancelled by the two units concerned, pursuant to a letter dated February 9, 2000, signed by the Acting Directors of the V.E.C.R. and Client Services. The letter refers to the Applicant's absence from work as of January 24, 2000, for "up to one month".
[5] By letter dated February 17, 2000, to Mr. J.B. Rooke, Acting Director of V.E.C.R., the Applicant expressed her disappointment and distress upon receiving the letter dated February 9, 2000. She advised that she was under a doctor's care and unable to work, for medical reasons. She also advised of her desire to utilize a grievance procedure pursuant to her collective agreement.
[6] On April 10, 2000, the Applicant submitted a claim for Disability Insurance Form to Betty Oates. Although the letter does not describe the position held by Ms. Oates, the letter is addressed to a Calgary address for the Respondent, that is "720, 200 4th Avenue SE, Calgary, Alberta".
[7] By another letter dated April 19, 2000, to Mr. Barry Rooke, the Applicant indicated her wish to request "acting pay" for the remainder of the time that she was assigned to SRED and her request to be re-assigned to the TIS, in the capacity of a manager, upon her return to work.
[8] On April 26, 2000, the Applicant wrote a letter to the Workman's Compensation Board for Alberta. In this letter, she indicated that she had been effectively demoted from her position with the SRED and was subject to "increasing amounts of pressure" to return to work. She wrote that these events and associated pressures caused her "severe stress, anxiety and depression".
[9] On July 2, 2000, the Applicant wrote Ms. Elaine Routledge, an Assistant Commissioner with the Respondent, with responsibility for the Regional Operations, Prairies and N.W.T. region. In this letter she alleged harassment against her by her employer. She also alleged discrimination, breach of her rights pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter"), abuse of authority and requested implementation of corrective action, including adherence by the employer to its policy against "Harassment in the Work Environment and Canadian Human Rights Commission".
[10] By letter dated September 27, 2000, Ms. Jacinta Bélanger, Human Rights Officer Complaints and Investigations, sent the Applicant a draft complaint form prepared in response to various allegations of discrimination raised by the Applicant against the Respondent on the grounds of race and ethnic origin.
[11] The Applicant finalized her complaint form on November 18, 2000. She alleged discrimination on the basis of race, national/ethnic origin and disability, all in contravention of the Act. The complaint was assigned file number 20000775 and the date of the alleged discriminatory conduct was said to be between 1993 to June 2000. This complaint form and file 20000775 represent a consolidation of four complaints filed by the Applicant against the Respondent, with the CHRC, in 2000.
[12] The Applicant, in the complaint form, describes herself "as a visible minority as defined by section 3 of the Employment Equity Act". She does not provide any details in that regard. She addresses the alleged discriminatory treatment under three headings, as follows:
1. Differential treatment because of race and nationality/ethnic origin and physical disability;
2. Failure to provide a harassment-free workplace because of race/nationality/ethnic origin;
3. The Scientific Research and Development Unit of CCRA pursues a practice which deprives visible minority employees of career advancement.
[13] The Applicant generally alleges that there is a pattern of discrimination manifested by the Respondent in its staffing and management practices, particularly in the Calgary office. She provides details of competition results which, in her opinion, show that unqualified white employees were advanced or promoted, to the disadvantage of qualified employees who are members of a visible minority as defined by section 3 of the Employment Equity Act, S.C. 1995, c. 44, as amended. She speaks of "continuous acts of favouritism" that have led to a "strong perception of ongoing management bias toward the favourable treatment of white staff within the SRED program", and proceeds to provide details.
[14] The Applicant also names other persons whom she says suffered from this biased attitude by certain members of senior management in Calgary. The Applicant says that other employees were specifically disadvantaged in the CO-03 competitive process and makes these general statements:
Other qualified visible minority staff members that have been disadvantaged will be revealed by an examination of the CO-O3 Science Managers lists for other Regions in Canada that Ms. Tackaberry applied to, that were produced at the same time. An examination of these lists and its applicants, will be able to further identify the screened out qualified visible minority applicants and the unlisted otherwise qualified visible minority applicants.
All the unsuccessful qualified visible minority applicants to all the competitive processes held for science positions from 1993 to the present have in fact been discriminated against when unqualified white applicants have been promoted.
[15] The Applicant, in her complaint form, also refers to her invocation of the written grievance procedure, specifically a grievance that she filed seeking recognition by the Respondent that she was, in fact, performing the duties of a CO-03 Science Manager. She says that, up to the date of her complaint to the CHRC, she had not received a response to her grievance request at several levels, ranging from the Manager, Audit Services to the office of Commissioner Rob Wright.
[16] Finally, the Applicant says that "the staffing problems in the SRED Unit have been known to Senior Management for several years and to date have been ignored and unchecked". She characterizes the lack of response as constituting an abuse of authority.
[17] By letter dated April 25, 2001, from Mr. Mark Earle, Investigator with the Investigations Branch, Anti-Discrimination Programs Branch of the CHRC, the Applicant was provided with a copy of the defence by CCRA to her complaint. Although a full copy of that response is not included in the materials filed by the Applicant and the Respondent, extracts of the Respondent's defence are included in the Applicant's documents filed as Exhibits C, D, E and F to the Applicant's affidavit filed in this application for judicial review. In this letter of April 25, 2001, the Applicant was asked to submit her reply by May 25, 2001.
[18] By further letter dated June 13, 2001, Ms. Shawna M. Noseworthy, an Investigator with the Anti-Discrimination Programs Branch of the CHRC, wrote the Applicant and advised that she had been designated as the Investigator to investigate the Applicant's complaint against the CCRA. Ms. Noseworthy identified her mandate in the following terms:
As the investigator, it is my responsibility to gather the facts in relation to the allegations and, once the investigation is complete, to report on my findings to the Members of the Commission.
[19] Ms. Noseworthy went on to advise the Applicant that the Respondent had raised some preliminary objections to the conduct of an investigation into the Applicant's allegations. The first objection raised by the Respondent, according to Ms. Noseworthy, was the purported attempt by the Applicant to advance claims of discriminatory treatment on behalf of third parties, that is unidentifiable visible minority employees. In this regard, the Respondent relied on section 40(2) of the Act which provides that the Commission may decline to deal with a complaint made by someone other than the individual who claims to have suffered from the discriminatory practice to which the complaint relates, in the absence of the consent of the alleged third party victim. According to the Respondent, the Applicant had not provided evidence of being in receipt of such consent.
[20] The second objection raised by this Respondent related to section 41(1)(b) of the Act. That section gives the CHRC a discretion to decline to deal with any complaint where it, the Commission, is of the opinion that the complaint could be addressed, in whole or in part, pursuant to a procedure provided for by another Act of Parliament. In this regard, the Respondent referred to a number of complaints and grievances filed by this Applicant against it, as her employer. The Respondent characterized these other outstanding matters as reflecting the allegations raised in the Applicant's complaint form. The Respondent said that attempts were being made to resolve the outstanding complaints and grievance through internal processes, and also noted that a resolution process was being pursued through Personnel Direction Group Inc.
[21] As well, the Respondent said that the Applicant had raised a number of labour relations issues that would more appropriately be dealt with by the Public Service Staff Relations Board and the Public Service Commission. It said that the Applicant could not use her dissatisfaction with the processes engaged in regulating her employment in the federal public service as a basis for her claim of discrimination.
[22] The Applicant was invited to submit her response to these preliminary objections raised by the Respondent, by August 20, 2001. The Applicant was further advised that her response would be disclosed to the Commission when it considered the report and her submissions may be disclosed "to the other party".
[23] The submissions of the Respondent to the preliminary Investigator's Report refer repeatedly to its initial response to the complaint dated March 31, 2001.
[24] The Applicant submitted her response to the preliminary objections of the Respondent under cover of a letter dated August 14, 2001 together with eight appendices. Her submissions included a number of recommendations. She said that the Respondent's submissions failed to address the jurisdiction issues and merely repeated its initial defence dated March 31, 2001. She noted that since she was raising allegations of discrimination that were personal to her and was representing herself, she required no consent from any unnamed person.
[25] The Applicant accepted the Investigator's summary of the background and highlighted that her allegations of discriminatory treatment are based both on disability and race.
[26] On October 19, 2001, the Commission decided to deal with the complaint because, following its review of the initial report, it found the matter to be within its jurisdiction. The Applicant was advised of this decision in a letter dated October 19, 2001. By the same letter, the Applicant was advised that the officer assigned to investigate would be in contact with her. By letter dated November 20, 2001, Mr. Rod Grainger advised the Applicant that the CHRC had designated him to "complete" the investigation into her complaint and that he was in the process of reviewing her file. The letter provided in part, as follows:
Further to Ms Lucie Veillette's letter to you, dated October 19, 2001, this is to advise you that I have been designated to complete the investigation of your human rights complaint. I am presently in the process of reviewing the six volumes of material which I recently received. Once I have done this, I will be ready to continue the investigation of the complaint. In the meantime, I would appreciate if you did not send me any further material, as this will only delay the completion of the investigation. If I find that I need additional information from you, I will contact you. I expect to be ready to interview you by telephone early in December.
I look forward to your cooperation in the investigation of your complaint.
[27] On November 24, 2001, Mr. Grainger sent an email to the Applicant. The email refers to the letter of November 20, 2001 and further provides as follows:
Attached is a copy of the letter that is on its way to you. You should receive it by Monday.
I was surprised to learn that you still plan to submit a rebuttal of the respondent's defence. My records show that on April 25, 2001, you were asked to submit a rebuttal by May 25, 2001. I note that you plan to submit it soon. Please ensure that it reaches me by December 7, 2001. You should send it to my address, as shown in the letter you received from Mr. Kolk.
Given this delay, I will conduct my interview later in December than I had previously planned. It will be a telephone interview. I will arrange a convenient time with you in advance.
I look forward to your cooperation in the investigation of your complaint.
[28] The Applicant responded to Mr. Grainger by email, saying that she had been repeatedly told not to prepare a rebuttal until the jurisdiction issue was resolved.
[29] On January 2, 2002, the Applicant wrote a letter to Mrs. Helgason of the CHRC, with copies to other persons, including Mr. Kolk, Manager of Investigations with the CHRC. She objected to Mr. Grainger's appointment as an Investigator and claimed that he was biased. She requested that the investigation be assigned to one of her peers, that is a female of a visible minority or at least, a woman. She spelled out a list of her outstanding complaints to the Commission and said that Mr. Grainger was refusing to give her an extension of time to submit her rebuttal, noting that several extensions had been granted to the Respondent in 2001.
[30] Mr. Grainger sent an email to the Applicant on January 3, 2002, concerning a time when she would be available for an interview.
[31] On January 17, 2002, the Applicant wrote to the Chief Commissioner of the CHRC, again stating her preference for the assignment of a female visible minority Investigator. She also asked that Mr. Grainger refrain from writing and telephoning her directly.
[32] On January 18, 2002, the Applicant again wrote to the CHRC and submitted a package of submissions, repeating her request for a "neutral unbiased investigator". The letter, in part, provided as follows:
Instructions to CHRC
1. The enclosed information relates to CHRC investigation #20000775 and to the eight related but separately filed complaints:
2. October 25,2001 Duty to Accommodate
3. October 25,2001 Systemic Discrimination 2001
4. November 1,2001 Discrimination regarding Pickering Investigation
5. November 16,2001 Discrimination regarding Priority Policy
6. November 16,2001 Discrimination regarding Education, Work Experience and Training
7. December 21,2001 -B Failure to follow grievance procedures and respond to grievances
8. December 21,2001 -A Preparation and dissemination of performance review
9. January 1,2002-Complaint regarding discipline
The Applicant also submitted a list of witnesses to be interviewed during the investigation.
[33] By email and letter dated January 18, 2002, Mrs. Helgason advised the Applicant that the complaint was not being assigned to another Investigator. Further, the Applicant was advised that if she chose not to participate, the investigation would be completed without her involvement. The letter provides, in material part, as follows:
I have been asked to respond to your letter of January 17, 2002 to the Chief Commissioner.
In your letter, you ask that the Commission reassign your complaint to another Investigator. We discussed this issue during our January 4, 2002 telephone conversation. I advised you that, considering all the factors, I was not convinced that there was reason to reassign your complaint and delay the investigation process through yet another reassignment, although I would look into the matter in greater detail. I note that your complaint has already been assigned to seven Investigators.
In your letter, you make several allegations about Rod Grainger. Mr. Grainger has completed many investigations over several years for the Commission. To my knowledge, he has always conducted investigations in a professional manner and has never displayed the qualities alleged in your letter. We have discussed your allegations with Mr. Grainger. He reports that, since October 2001, he has been trying to obtain your rebuttal and to interview you, but without success. The Commission first requested your rebuttal in April 2001 and it remains outstanding.
I will, therefore, not reassign the complaint, and would urge you to cooperate in the completion of the investigation. If you chose not to provide input, the investigation will be completed without your participation.
[34] On January 23, 2002, Mr. Grainger received the rebuttal from the Applicant. It comprised forty-three volumes, two diskettes and a CDROM. The Applicant also suggested that at least twenty-five people be interviewed. By email on January 23, 2002, the Investigator asked the Applicant for particulars as to what incidents the potential witnesses "could attest to".
[35] In a letter dated February 3, 2002 to the Chief Commissioner of the CHRC the Applicant said she would not deal with Mr. Grainger. She put her position as follows:
Further to my letters of January 2,17, and 28 2002 to you, several distraught voicemails and several emotionally charged telephone calls with your representatives where I have repeated my distress over Grainger involvement continued involvement, your office has taken no action.
This letter will confirm and formalize previous objections already stated in writing.
As discussed with Ms. Jan Corivo, I will also be filing a formal complaint against the CHRC and Grainger with the Ontario Human Rights Commission as a result of the events of the past few weeks.
I will not deal with Grainger or with anyone who seeks to limit my rights or attempts to marginalize my integrity in this regard.
[36] Unaware of this correspondence, the Investigator sent another email to the Applicant on February 4, 2002, trying to establish a time at which to conduct an interview and again asking for information about the proposed twenty-five witnesses.
[37] On February 5, 2002, Mr. Kolk advised Mr. Grainger that the Applicant had informed the Chief Commissioner that she would not deal with the Investigator. In his affidavit, Mr. Kolk deposes that according to information received from Mr. Grainger, the Investigator finished his report without further participation from the Applicant and on February 6, 2002, the report was submitted to Mr. Grainger's manager for disclosure to the parties and to the Commission.
[38] By letter dated February 7, 2002, the investigation report was disclosed to the Applicant and the Respondent. Each party was asked to provide their submissions up to a maximum of ten pages, by March 8, 2002. As well, the parties were advised that the submissions may be cross-disclosed and that any documents that had already been provided during the investigation would, if re-submitted, not be given to the Commission.
[39] The Applicant, by letter dated March 4, 2002 written to the Chief Commissioner, asked for an extension of time within which to provide her submissions. The basis of her request was ill health. The extension was granted, to each party, and the new deadline for submissions was May 8, 2002.
[40] The Applicant subsequently submitted her final submissions dated May 8, 2002 according to a file memo prepared by Jacinta Bélanger on May 23, 2002. That memo is attached to the affidavit of Mr. Kolk, and there Ms. Bélanger records that she called the Applicant on May 22, 2002 and left a message acknowledging receipt of her submissions. She asked the Applicant to call so that she could explain the next steps in the process. The Applicant returned the call and left a message that she would be out again that day. Ms. Bélanger called again on May 23, 2002 in the afternoon and left another message, advising that she would be disclosing her submissions to the Respondent and would disclose the CCRA's submissions to the Applicant.
[41] The Applicant returned the call, shortly afterward and, according to Ms. Bélanger, objected to the disclosure of her submissions. The memo provides, in part, as follows:
... K McC called. Ms McC said that under no circumstances are we to cross-disclose her submission and rebuttal. She said this is highly unusual. She said it is not fair - CCRA is full of liars and cheats. Disclosing her documents will put people at CCRA at risk. I explained that this is standard procedure - I explained re: procedural fairness also. Ms. McC said that she wants her case heard at the June meeting - she can not accept that she will have to wait until September. She wants one person to see her information - no one else.
[42] On May 24, 2002, Ms. Bélanger called the Applicant again and left a message, acknowledging receipt of a letter sent by facsimile from the Applicant on May 23, 2002 and recording her intention to advise the Applicant of certain options concerning her submissions.
[43] On May 29, 2002, Ms. Bélanger prepared another file memo concerning a telephone message from the Applicant on May 28, 2002 and a telephone conversation with the Applicant on May 29, 2002. In that telephone conversation, Ms. Bélanger identified three options that were available to the Applicant concerning her submissions, as follows:
1. Withdraw her submission altogether;
2. Cross-disclose submission as is (informing CCRA that if they wish to see the rebuttal referred to in her submission, this will be sent to them);
3. Re-do her submission.
[44] As well, Ms. Bélanger advised the Applicant that if she were unhappy with the decision of the Commission, she could seek judicial review. The memo included the following:
Ms. McC refused to accept that her issues with respect to Sherri Helgason have anything to do with the investigation of her complaint. She said that Catherine Barratt told her that if she has a complaint with respect to the Commission she can go to the Ontario Human Rights Commission to complain. She said she wants to deal with the Alberta HRC and they said they will accept her complaint if we give them jurisdiction. I said that I am not familiar with this process. I again explained re: judicial review and how jr also looks at procedural problems with the investigation process. She said she took Sherri Helgason's letter to the Federal Court and they refused to accept her complaint because it was not a decision of the Commission. That is why she wants her complaint concerning her problems with Sherri Helgason to be placed before the Commissioners. I explained that this is not possible. I again explained re: cross disclosure of submissions, procedural fairness and judicial review. Ms. McC was adamant that her complaint re: the Commission and how she has been treated should go before the Commissioners in June.
[45] According to Mr. Kolk's affidavit, the Applicant responded to this advice from Ms. Bélanger with several emails on May 29, 2002. She asked that Ms. Bélanger retain her submissions until those final submissions had been reviewed by Ms. Brazeau, Deputy Secretary General, Operations, with the CHRC. The reason for the Applicant's request in this regard was that she had raised a complaint against the CHRC in her May 8 submissions.
[46] Ms. Brazeau responded to the Applicant in a lengthy email on June 21, 2002. In her email, Ms. Brazeau noted that in making their decision, the Commission has a number of choices, either to dismiss the complaint, refer it to a conciliator for mediation, refer it to a tribunal or return it for further investigation if necessary.
[47] Ms. Brazeau also responded to the allegations raised by the Applicant about an incomplete investigation and bias on the part of Mr. Grainger, the Investigator. She expressed her concern about these allegations. She also commented on the Applicant's request to have the file transferred to another Investigator and noted that there was no basis shown by the Applicant to justify that step. She also said that she was not "convinced" that the Applicant had established a reasonable basis to support a finding of discrimination against the Applicant, by the CHRC, on the basis of a disability.
[48] Finally, Ms. Brazeau pointed out that if the Applicant were dissatisfied with a decision by the CHRC, then the "appropriate recourse" is by way of an application for judicial review to the Federal Court. She requested the Applicant to submit her revised submission by July 31, 2002.
[49] By letter dated July 3, 2002, the Commission sent two volumes of submissions back to the Applicant, pursuant to her request for the return of that material.
[50] The Applicant wrote to the Commission on August 5, 2002, advising that she had not received her submissions back. She also noted that she was unable to prepare any documents for the Commission due to her disability.
[51] The Applicant sent a further letter to the Commission on August 23, 2002, stating again that she had not received her final submissions. By letter dated August 20, 2002, the Commission re-transmitted the Applicant's submissions and stated that the material had been sent earlier to her address and was returned unclaimed.
[52] By memorandum to file dated September 30, 2002, Mr. Kolk recorded that he had called the Applicant on that day and left a voicemail advising that the deadline for her submission was October 18, 2002. According to Mr. Kolk's affidavit, the Applicant did not submit any further submissions or rebuttal. The Investigator's Report was completed on or about February 6, 2002 without further participation by the Applicant.
[53] In his Report, Mr. Grainger provided a brief summary of the positions of the Applicant and Respondent, respectively. He set out the background to the complaint and noted as follows:
The complainant refused to deal with the investigator. She was therefore not interviewed, and the investigator was unable to determine her race or ethnic origin.
[54] The Investigator then proceeded to set out, in greater detail, particulars of the eighteen (18) specific complaints raised by the Applicant. He reviewed the evidence that he had collected and the defences advanced by the Respondent. This portion of his report is set out in paragraphs 13 through to and including paragraph 98.
[55] The analysis section of the Investigation Report is found in paragraphs 95 through to and including paragraph 109. In short, the Investigator concluded that the Applicant had presented no evidence to support her claim that she was disabled but only claimed that "she was ill for a short period". The Investigator found that, in these circumstances, the Commission "lacks jurisdiction to investigate allegations of discrimination based upon a short-term illness".
[56] The Investigator then briefly addressed the lack of evidence relative to the specific allegations by the Applicant that she had been discriminated against on the basis of race or ethnic origin, or that she had been the victim of systemic discrimination on the basis of being a member of a visible minority. The Report concluded with the following recommendation:
It is recommended, pursuant to section 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:
_ no evidence was found to show that the complainant was disabled at the time of the alleged incidents;
_ the investigation found no evidence that the complainant was harassed on a prohibited ground in the workplace or subjected to racial comments;
_ the evidence does not support the complainant's allegation that she was treated differently and,
_ the investigation found no evidence of systemic discrimination.
[57] This Investigation Report was provided to the Respondent. The Respondent sent a letter, dated February 7, 2002, advising that it agreed with the conclusion of the Investigator as recorded in the analysis section and that it agreed with the recommendations.
[58] By letter dated February 7, 2002, a copy of the Investigation Report was sent to the Applicant. The covering letter advised her that she could make comments on the Report by March 8, 2002 by means of a single document no longer than ten (10) pages in length. The Applicant was also advised that documents that had already been provided during the investigation would not be provided to the Commission. As well, the Applicant was advised that her submission may be disclosed to the Respondent.
[59] By letter dated December 19, 2002, the Commission advised the Respondent that the Applicant's complaint had been dismissed. The material part of the letter provides as follows:
Before rendering its decision, 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, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
_ the investigation found no evidence that the complainant was harassed on a prohibited ground in the workplace or subjected to racial comments;
_ the evidence does not support the complainant's allegation that she was treated differently; and
_ the investigation found no evidence of systemic discrimination.
Accordingly, the file on this matter has now been closed.
[60] Although the Applicant did not provide a copy of the correspondence from the Commission to her, advising of the dismissal of her complaint, it appears that she received notice of the decision because this application for judicial review was commenced on January 14, 2003. The opening paragraph of the application states the following:
This is an application for judicial review in respect of a decision of the Canadian Human Rights Commission (the "CHRC"). The Applicant, Ms. Katherine McConnell, issued a complaint to the CHRC that she was discriminated against by the Canada Customs and Revenue Agency ("CCRA") on the basis of disability, race and systemic discrimination favouring non-visible minorities. The complaint was made pursuant to the Canadian Human Rights Act. By letter dated December 19, 2002, the Commission informed Ms. McConnell that her complaint was dismissed.
[61] The Applicant initially named only the Canadian Human Rights Commission as the Respondent. Upon a motion brought by the CCRA to be joined as a Respondent, an Order was granted by Justice Tremblay-Lamer on March 12, 2003, amending the name and style of this proceeding to add the CCRA as a Respondent. The Canadian Human Rights Commission did not participate in this application and remains a nominal party only.
[62] The Applicant now seeks an order to set aside the decision of the Commission and "referring the matter back to the Commission for a hearing". In general, the Applicant alleges breaches of natural justice by the CHRC in the manner in which it dealt with the complaint, including its refusal to remove Mr. Grainger as the Investigator, failure to conduct a "properly independent investigation", failure to interview the witnesses nominated by her, failure to provide the opportunity to cross-examine the witnesses interviewed by Mr. Grainger, and failure to provide "an opportunity to present her case in full".
[63] As well, the Applicant argues that the CHRC erred in law by failing to request a "thorough inquiry" into all elements of the complaint and by failing to find that its decision, made on October 19, 2001 in response to the preliminary objectives of the CCRA, was a commitment to a finding of discrimination.
[64] The Applicant also argues that the Commission erred in law by relying on the Investigator's conclusion that her illness was not protected by the Act.
[65] The Respondent, in brief, submits that the decision under review is not patently unreasonable and consequently, it should remain undisturbed. As well, the Respondent says that no reviewable errors were committed in the course of the investigation or in the manner in which the Commission dealt with the Investigation Report.
DISCUSSION AND DISPOSITION
[66] This is an application for judicial review pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Section 18.1(4) sets out the grounds of review and provides as follows:
| 18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
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18.1(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments don't il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
[67] The relief available upon an application for judicial review is described in section 18.1(3) as follows:
| 18.1 (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
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18.1 (3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut_: a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou don't il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. |
[68] The conduct of an application for judicial review is governed by the Federal Court Rules, 1998, SOR-98/106, as amended (the "Rules"), Part 75. An application for judicial review is a review that is normally conducted on the basis of the material that was before the decision-maker, in this case, the Commission. In this regard, I refer to Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331. However, additional evidence may be introduced on issues relating to procedural fairness and jurisdiction.
[69] In the present case, the record was before the Commission when it made this decision under review consisted of the following material:
1. Complaint Form, dated November 18, 2000;
2. Investigator's Report dated February 6, 2002;
3. Canadian Human Rights Commission Recommendation;
4. Facsimile Transmission to George Kolk, CHRC from Bill Blahun, Director Special Projects, CCRA, Prairie Regional Office dated May 7, 2002;
5. CHRC Chronology.
This material was produced by the Commission pursuant to Rule 317 of the Rules.
[70] Both the Applicant and the Respondent filed affidavits as part of their respective Application Records. The Applicant filed her own affidavit, including several exhibits. Exhibit A is a lengthy document that, according to the Applicant, was submitted to the CHRC in its entirety on May 9, 2002 as the final submission report from the Applicant.
[71] The several documents in Exhibit B were submitted to the CHRC on January 18, 2002 and May 9, 2002 as part of the Applicant's final submission report and rebuttal responses. This material was filed in this application as a separate volume of the Applicant's affidavit.
[72] Exhibit C is described by the Applicant as being "the result of the jurisdiction challenge by CCRA" that she referred to in her final submissions.
[73] Exhibit D is the Applicant's response to the Respondent's defence to the charge of discrimination on the basis of race. This material was submitted to the CHRC on January 18, 2002 and was again referred to in the final submissions that were submitted on May 9, 2002.
[74] Exhibit E is the Applicant's reply to the Respondent's defence of the allegations of discrimination on the grounds of race and systemic discrimination. This material, consisting of thirty-five (35) pages, was submitted in its entirety to the CHRC on January 18, 2002 and was referred to by the Applicant in her final submission report of May 9, 2002.
[75] Exhibit F is a seventeen (17) page response of the Applicant to the Respondent's defence on the issue of discrimination of race and systemic discrimination. This exhibit was submitted to the CHRC on January 18, 2002 and was also referred to in the final submission report that was tendered on May 9, 2002.
[76] These exhibits include selected correspondence and emails from the Applicant to the CHRC and others, as well as certain copies of correspondence and emails from the Investigator and employees of the CHRC to the Applicant. These exhibits also include certain documents obtained by the Applicant pursuant to the Privacy Act, R.S.C. 1985, c. P-21, as amended and decisions rendered in the course of grievances filed by the Applicant pursuant to the legislation governing her employment with the Respondent.
[77] The Respondent filed the affidavit of Mr. George Kolk, Manager of Investigations with the CHRC. Mr. Kolk attached thirty (30) exhibits to his affidavit, including copies of correspondence and emails exchanged between the Investigator, certain employees of the CHRC and the Applicant, and file memoranda that were prepared either by the Investigator or employees of the CHRC.
[78] As noted above, the record that was before the CHRC when it made its decision to dismiss the Applicant's complaint was limited to specific documents. It included the Applicant's complaint form and the Investigator's Report dated February 6, 2002. It is clear that each party has submitted evidence on this application for judicial review that was not before the decision-maker and does not form part of the tribunal record.
[79] Neither party moved to strike out the affidavits, either in whole or in part. In those circumstances, the question becomes what weight is to be accorded these affidavits.
[80] In Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273, the Court declined to strike an affidavit, including exhibits, that referred to material that was not before the decision-maker, when the material was found to be useful background information. However, at page 275, the Court identified circumstances where affidavits have been stricken out, as follows:
This court has struck out affidavits, or portions of them, which are abusive or clearly irrelevant, where a party has filed evidence which in fact is obviously inadmissible or where a court is convinced that admissibility would be better resolved at an early stage so as to allow the hearing to proceed in an orderly manner. The courts have also struck affidavits which contain opinion, argument or legal conclusions or would cause undue delay. [Footnotes omitted]
[81] The affidavit of the Applicant contains, as exhibits, material that is clearly argument and is described as such by the Applicant. That material, including parts of Exhibits A, B, C, D, E and F, is not properly before the Court on this application since these materials were not before the CHRC when the decision in question was made. The Applicant ultimately withdrew her final submissions and chose not to make her arguments in accordance with the process outlined by the Commission in the early correspondence with her. It is not appropriate for the Applicant to file her arguments in this proceeding, with the request that this Court take them into account in adjudicating upon this application for judicial review. This Court is not authorized to decide whether the Applicant has shown that her complaint should be referred to an inquiry, for that is the role of the Commission, pursuant to the Act.
[82] The role of the Court here is to determine if the Commission erred in deciding to dismiss the Applicant's complaint. The applicable standard of review depends upon the nature of the question at issue. According to the decisions of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Court must engage in the pragmatic and functional analysis to determine the appropriate standard of review when reviewing the decision of an administrative tribunal.
[83] In the present case, the decision was made pursuant to section 44(3)(b) of the Act which provides as follows:
| (3) On receipt of a report referred to in subsection (1), the Commission ... (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). |
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(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: ... 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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[84] A decision of the Commission to dismiss a complaint without referring it to a tribunal for inquiry is an administrative decision. It will be reversed where it is demonstrated that the Commission committed an error of a jurisdictional or procedural nature or where the decision is otherwise based upon an error of law. This standard has been established by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 ("SEPQA") where Justice Sopinka said the following at p. 899:
... In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness.
[85] In Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), Justice Décary, speaking for the Court, said the following at p. 136:
It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canada Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891).
[86] Further, in that case, the Court described the high degree of deference given to the Commission when assessing an investigative report. At p. 137 the Court said:
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.
[87] On the basis of these authorities and applying the pragmatic and functional analysis, I conclude that the applicable standard of review is the standard of patent unreasonableness.
[88] The various allegations raised by the Applicant about errors in the decision of the Commission have been classified by the Respondent in the following categories:
a) failure to observe the principles of natural justice, legal positivism, equity and civil liberties protected by the Charter of Rights;
b) reliance on an erroneous investigation report;
c) pursuit of a course of conduct by the Commission and the Investigator which raised a reasonable apprehension of bias; and
d) errors in law or fact.
[89] The Applicant's arguments concerning breach of natural justice and bias relate to the issue of procedural fairness. The requirements of procedural fairness are to be assessed relative to the nature of the decision in issue.
[90] In the present case, the decision in issue is the discretionary, administrative decision of the Commission to dismiss the Applicant's complaint, following an investigation. The investigation was undertaken pursuant to section 41 of the Act. The investigation process is not intended to provide the full range of natural justice to a complainant. There is no obligation to interview each witness proposed by the Applicant or to permit cross-examination of witnesses or to choose the Investigator. There are procedural matters and the Commission is entitled to control its own process subject to the requirements of fairness.
[91] Fairness in this regard includes impartiality. I refer to Miller v. Canada (Canadian Human Rights Commission) (1996), 112 F.T.R. 195 where the Court said the following at p. 202:
The basic test to insure fairness and to avoid a reasonable apprehension of bias has been enshrined in the jurisprudence: it is whether reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, would perceive bias on the part of an adjudicator. The grounds of apprehension must be substantial. Mere suspicions are not sufficient. [Footnote omitted]
[92] The Applicant had no right to choose an Investigator. That point was also addressed in Miller, supra where the Court said, also at p. 202:
Since no regulations to date have been promulgated under subsection 43(4) with reference to the appointment of an investigator, the appointment remains purely in the discretion of the Commission. There are no provisions in the Act granting a complainant the right to influence the selection of the investigator. To give him such a right would run counter to Canada's multicultural and multiracial heritage and would, in effect, result in the imposition of inequality. In short, there is no basis in law for the proposition that an investigator under the Act must be of a specific racial background. To allow a complainant to choose the race or ethnic origin of the investigator would give rise to an apprehension of bias favouring the complainant, thus a clear violation of the duty of procedural fairness owed to persons (such as the respondent Mr. Goldberg) against whom a complaint of discrimination is made.
[93] I conclude that the Applicant has failed to show that she suffered any breach of the procedural fairness to which she was entitled. She was given the opportunity to review the Respondent's defence to her allegations. She was also given the opportunity to reply to the Respondent's arguments. She was given the opportunity to make her case, to the Investigator. The Applicant chose not to use that opportunity.
[94] This leads to the Applicant's allegations that the Commission erred by relying on an incomplete investigation report. It is well established that a complaint under the Act is entitled to a neutral and thorough investigation by the Commission. In this regard, I refer to Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) at p. 600 where the Court said as follows:
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 interests 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 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.
[95] In the present case, the Applicant chose not to participate in the investigation. She declined to make herself available for an interview. She withdrew her final submissions. She challenged the process adopted by the Commission and the Investigator. The result of the steps deliberately taken by the Applicant is that the Investigator was deprived of the Applicant's active involvement in the process.
[96] However, I am not persuaded that the investigation was not neutral or thorough in the prevailing circumstances. The Applicant chose not to participate. She cannot now complain that the investigation report was incomplete. She initiated the investigation process when she filed her complaint. Her deliberate choice to disengage from the investigation process, including her refusal to be interviewed, cannot be used to justify her allegation of an incomplete investigation report. If that report is incomplete, that is a direct consequence of the Applicant's choice to not participate in the process.
[97] The Applicant argues that the Commission had "committed" itself to a finding of discriminatory conduct by the Respondent when it made its decision of October 19, 2001, to refer her complaint for investigation. She says that the Commission erred by failing to apply the principle of res judicata.
[98] This argument of the Applicant cannot succeed. It is based upon a misunderstanding. The decision of October 19, 2001 was a preliminary decision, made pursuant to section 41(1) of the Act. Contrary to the Applicant's view, that decision was in response only to a preliminary objection raised by the Respondent concerning the jurisdiction of the Commission to entertain the complaint. This preliminary objection was resolved in favour of the Applicant but did not represent a determination of the merits of the complaint. A decision made pursuant to section 41 of the Act is part of the screening process used by the Commission in determining whether or not a complaint will proceed further; see Price v. Concord Transportation Inc. (2003), 238 F.T.R. 113 at p. 122.
[99] The Applicant also submits that the Commission erred in part by failing to find that she suffers from a "disability", within the meaning of the Act. The Investigator found no evidence of such a disability. The Applicant has not shown any error on his part, in reaching his conclusion. Receipt by the Applicant of insurance benefits pursuant to an insurance policy or of benefits pursuant to applicable workers' compensation benefits is not determinative of one of the issues raised in her complaint, that is discrimination on the basis of disability.
[100] Again, the lack of evidence concerning the Applicant's personal circumstances is wholly attributable to her decision to not participate in the process engaged under the Act, after she filed her complaint and after the initial, preliminary decision of the Commission on October 19, 2001.
[101] In these circumstances and having regard to the material filed and the submissions advanced by the parties upon the hearing of this application for judicial review, I conclude that this application should be dismissed. The Applicant has not shown that the decision of the Commission is patently unreasonable or that it was based upon a breach of procedural fairness or otherwise, that the Commission committed a reviewable error.
[102] The application is dismissed, with costs to the Respondent, CCRA.
ORDER
The application is dismissed, with costs to the Respondent, CCRA.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-57-03
STYLE OF CAUSE: KATHERINE McCONNELL v. THE CANADIAN HUMAN RIGHTS COMMISSION ET AL
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December 8, 2003
REASONS FOR ORDER
APPEARANCES:
Ms. Katherine McConnell FOR APPLICANT
Mr. Kerry Boyd FOR RESPONDENT
SOLICITORS OF RECORD:
Representing Herself FOR APPLICANT
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice - Canada
Edmonton Regional Office