Date: 19971223
Docket: T-2587-96
OTTAWA, ONTARIO, THIS 23rd DAY OF DECEMBER 1997
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
JEAN BOUDREAULT,
Applicant,
- and -
CANADIAN HUMAN RIGHTS COMMISSION
and ATTORNEY GENERAL OF CANADA,
Respondents.
O R D E R
The application for judicial review is dismissed.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
Date: 19971223
Docket: T-2587-96
Between:
JEAN BOUDREAULT,
Applicant,
- and -
CANADIAN HUMAN RIGHTS COMMISSION
and ATTORNEY GENERAL OF CANADA,
Respondents.
REASONS FOR ORDER
NADON J.:
[1] The applicant is contesting a decision of the Canadian Human Rights Commission (the "Commission") dated October 29, 1996.
[2] In its decision, the Commission dismissed the complaint filed by the applicant on August 30, 1989, alleging that the Public Service Commission of Canada [translation] "has discriminated against me by harassing me in the course of my employment, by reason of my disabilities (prior alcohol dependency and grafted legs) contrary to section 14 of the Canadian Human Rights Act".
[3] The Commission's decision is based on subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, which provides as follows:
| 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, ... |
[4] A brief summary of the facts will be sufficient to dispose of this case. For the purposes of these reasons, I adopt the summary of the facts that appears at pages 2 and 3 of the decision of my colleague Madam Justice Tremblay-Lamer in Jean Boudreault v. Attorney General of Canada, file no. T-1514-94, dated July 11, 1995, at pages 1 and 2:
| In 1983 the applicant began working for the Public Service Commission (his employer) in a clerical capacity. |
| In June 1987 and May 1988 the applicant filed complaints of harassment against his employer. These complaints were dismissed. |
| On August 30, 1989 he filed a formal complaint of discrimination with the Canadian Human Rights Commission ("the Commission"). |
| On February 12, 1990 his employer recommended that he be released. The applicant appealed against this recommendation to an appeal board established under section 31 of the Public Service Employment Act.1 He made essentially the same allegations as he had made in his complaint to the Commission. Following the hearing, the appeal board dismissed the appeal and affirmed the recommendation that the applicant be released. The applicant filed an application for judicial review of this decision but later discontinued it. |
| On November 15, 1993 the Commission decided not to deal with the complaint on the ground that it was prescribed. The applicant applied for judicial review of this decision but discontinued this application on April 14, 1994. |
| Despite its decision not to deal with the complaint, the Commission decided to reconsider the applicant's case. It made a new decision on May 30, 1994 in which it again dismissed the applicant's complaint on the basis that it was unfounded following the appeal board's decision. |
[5] Upon receiving the decision of the Commission dated May 30, 1994, the applicant filed an application for judicial review which was allowed by Tremblay-Lamer J. on the ground that the Commission "did not exercise its discretion reasonably, since it based its decision not on its assessment of the case but on the fact that the appeal board had already dealt with the matter. The Commission therefore committed an error of law by refusing to exercise its jurisdiction in the case at bar".
[6] Accordingly, Tremblay-Lamer J. set aside the decision of the Commission dated May 30, 1994. On October 31, 1995, counsel for the applicant wrote to the Commission asking it to appoint an investigator. On December 6, 1995, the Commission wrote to counsel for the applicant to inform him that Abdou Saouab had been instructed to investigate the applicant's complaint. Mr. Saouab signed his report on July 26, 1996, and on July 29, 1996, the Commission sent a copy of the report to counsel for the applicant. The conclusion in Mr. Saouab's investigation report reads as follows:
| [TRANSLATION] It is recommended that the Commission dismiss this complaint because, based on the evidence, the allegations of discrimination are unfounded. |
[7] On October 29, 1996, the Commission dismissed the applicant's complaint, as follows:
| [TRANSLATION] The Canadian Human Rights Commission has reviewed the investigation report relating to the complaint (H31507) that you filed against the Public Service Commission of Canada on August 30, 1989, alleging discrimination in employment on the ground on disability. The Commission has also read the submissions dated September 3 and 4, 1996, signed by James G. Cameron. |
| Before making its decision, the Commission reviewed the evidence submitted by you and by the intervener relating to the measures that the intervener took to meet your needs for accommodation. In the circumstances, the Commission has decided, under subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because the evidence does not support the allegations in the complaint. Accordingly, we have closed the file on this complaint. |
[8] The applicant is seeking to have this decision set aside on the ground that the investigator committed errors of law and failed to have regard to a significant part of the evidence submitted by the applicant. The applicant's criticisms of the investigator are set out in the letter that counsel for the applicant sent to the Commission on September 3, 1996. That letter comprises the applicant's submissions upon receipt of Mr. Saouab's investigation report.
[9] In my opinion, the application for judicial review must be dismissed. In concluding as it did, the Commission had before it Mr. Saouab's investigation report and the submissions of counsel for the applicant, which were 8 pages long.
[10] The Commission had to decide whether, having regard to the relevant circumstances, further inquiry should be made into the merits of the complaint or it should be dismissed. After reviewing Mr. Saouab's investigation report and the submissions of counsel for the applicant, the Commission concluded that the complaint should be dismissed. In Slattery v. Canadian Human Rights Commission (1996), 205 N.R. 383, the Federal Court of Appeal dismissed an application for judicial review filed by the applicant in response to the dismissal of his complaint by the Commission under subparagraph 44(3)(b)(i). Mr. Justice Hugessen, who wrote the decision for the Court, stated:
| We are all of the view that the Commission fully complied with its duty of fairness to the complainant when it gave her the investigator"s report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. The discretion of the Commission to dismiss a complaint pursuant to s. 44(3)(b)(i) [see footnote 1] is cast in terms even broader than those which were considered by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l"Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R. (4th) 385, where the content of the duty of fairness in such cases was described as follows by Sopinka J., for the majority. |
| "I agree with the reasons of Marceau J., that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. |
| "The Commission was entitled to consider the investigator"s report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information." (at page 902 [S.C.R.]) [sic ] |
| In our view, the defects which the complainant alleges in the preparation of the investigator"s report could not serve to vitiate the Commission"s decision as long as these requirements were met. |
| The appeal will be dismissed with costs. |
[11] It appears from the decision of Hugessen J.A. that as long as the Commission informs the complainant of the substance of the evidence obtained by the investigator and put before the Commission, and the Commission gives the complainant the opportunity to make representations upon receipt of that evidence, the Court will not intervene. In other words, the Court will not intervene in respect of the Commission's exercise of the discretion it has under subparagraph 44(3)(b)(i) unless the Commission has failed to comply with the duties referred to by Mr. Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie.
[12] The decision of the Federal Court of Appeal in Linton Roberts v. Canada Post Corporation, October 24, 1997, file no. A-351-96, is to the same effect; in that decision, Mr. Justice Strayer stated, at page 2 of his reasons:
| In making its decision the Commission had before it the reports of its investigator together with the appellant"s lengthy written submission commenting on and objecting to various statement in those reports. It was the duty of the Commission to consider all this material in determining whether an inquiry before a Tribunal would be warranted. We have no reason to think that the Commission did not consider all this material including the appellant"s representations. The appellant asserted before us that there were certain errors in the investigator"s reports and he also had drawn most of these errors to be substantive or a basis for setting aside the decision of the Commission. In exercising its jurisdiction to decide whether a Tribunal should be appointed "having regard to all circumstances" the Commission can take into account many factors, including the quality of possible evidence, and it has a wide discretion with which a court should not lightly interfere. The trial judge correctly declined to intervene. |
[13] I am of the opinion that the errors raised by the applicant are not sufficient to warrant my intervention. As Strayer J.A. pointed out in Linton Roberts, the Commission can take into account many factors in making its decision, including the quality of the evidence before it. In other words, if the Commission is of the opinion that the evidence offered is not sufficient to justify appointing a human rights tribunal, it may dismiss the complaint. That is precisely what the Commission did in this instance.
[14] For these reasons, the application for judicial review is dismissed.
"MARC NADON"
Judge
Ottawa, Ontario
December 23, 1997.
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-2587-96
STYLE OF CAUSE: Jean Boudreault
v. Human Rights Commission et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 15, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON
DATED: December 23, 1997
APPEARANCES:
Jean Boudreault THE APPLICANT
representing himself
Linda Wall FOR THE RESPONDENT
SOLICITORS OF RECORD:
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
__________________1R.S.C. 1985, c. P-33.