Date: 20040519
Docket: T-476-02
Citation: 2004 FC 730
Ottawa, Ontario, this 19th day of May, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
VREGE ARMOYAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Verge Armoyan, the Applicant, sought to make improvements to his waterfront property in Nova Scotia. In December 1999, the Department of Fisheries and Oceans (DFO) served him with a "stop work" order. On October 11, 2000, Mr. Armoyan filed a complaint with the Canadian Human Rights Commission (the "Commission"), alleging that the DFO had discriminated against him because of his colour and national or ethnic origin.
[2] An investigator was assigned to Mr. Armoyan's case and an Investigator's Report was completed on July 10, 2001. In it, the investigator recommended that the Commission, pursuant to section 44(3)(a) of the Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 1. (the "Act"), request the appointment of a Human Rights Tribunal to inquire into the complaint because:
the evidence supports the allegation that the complainant was treated in an adverse differential manner because of his colour and national/ethnic origin with respect to his dealings with the Respondent.
[3] Until this point, no submissions had been made by the DFO to the investigator.
[4] On August 27, 2001, the DFO submitted a 10-page reply to Mr. Armoyan's complaint. This reply was disclosed to Mr. Armoyan who made rebuttal submissions on September 20, 2001.
[5] On February 21, 2002, both parties were informed by letter that upon considering the Investigator's Report and the parties' submissions, pursuant to section 44(3)(b) of the Act, the Applicant's complaint was dismissed. The following reason was given:
[T]he evidence does not support the allegation that the complainant was treated in an adverse differential manner because of his colour and national or ethnic origin.
[6] The Applicant seeks judicial review of this decision.
Issues
[7] Initially, in the application record, Mr. Armoyan raised a number of issues. However, after hearing this matter, it became clear that the only issue is whether the Commission erred or breached Mr. Armoyan's right to procedural fairness by not providing sufficient reasons for its decision.
Analysis
[8] When it receives an investigator's report and submissions, the Commission has two options - to refer the matter to the Human Rights Tribunal for inquiry or dismiss the complaint. That choice is governed by Section 44(3) of the Act, which states:
|
On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or |
|
Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission:
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
|
|
|
|
|
|
(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). |
|
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). |
|
|
|
|
[9] In this case, the Commission's decision was made to dismiss the application pursuant to section 44(3)(b)(i) of the Act.
[10] The decision of the Commission under section 44(3) of the Act is discretionary (Slattery v. Canada (Human Rights Commissison), [1994] F.C.J. No. 181 at paras. 78-9 (T.D.) (QL), aff'd [1996] F.C.J. No. 385 (C.A.) (QL)). Thus, intervention by this Court is warranted only if Mr. Armoyan can demonstrate that the Commission acted in bad faith, breached the principles of natural justice, or relied on considerations that are irrelevant or extraneous to the statutory purpose (Slattery,supra citing Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at 7-8).
[11] Two recent cases of this Court have considered decisions made pursuant to section 44(3)(b)(i) (MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (F.C.) (QL); Gardner v. Canada (Attorney General), [2004] F.C.J. No. 616 (F.C.) (QL)). Justice O'Keefe in MacLean, supra determined (and Justice Gibson in Gardner agreed) that decisions of the Commission should be reviewed on a standard of reasonableness simpliciter. I agree.
[12] On the basis of this standard and having reviewed the material that was before the Commission, I am satisfied that the conclusion of the Commission was reasonably open to it. Submissions made by the DFO at this stage provided further facts and explanations of the events that led Mr. Armoyan to make his complaint. While I might have concluded differently, the decision of the Commission, the expert in these matters, was not irrational or unsupportable by the evidence.
[13] This conclusion, however, does not dispose of this matter. In spite of meeting an applicable standard of review, a tribunal may err by breaching the rules of natural justice. Thus, for example, if Mr. Armoyan had not been afforded an opportunity to make submissions is response to those of the DFO or had not seen documents upon which the Commission relied, the result would be a successful judicial review application. The issue of adequacy of reasons may fall within this category of potential errors.
[14] Mr. Armoyan submits that the Commission was under an obligation, which it failed to meet, to provide reasons for its decision. There are two prongs to his argument.
1. Section 42(1) of the Act requires that reasons be given. This provision states that:
| Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
|
|
Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable. |
|
|
|
|
2. The conclusion of the Commission that "the evidence does not support the allegation . . . "contradicts that of the investigator that "the evidence supports the allegation . . .". In the face of this contradiction, the Commission was obligated to show why it reached this diametrically opposed conclusion.
Does Section 42(1) require reasons?
[15] Mr. Armoyan's argument that section 42(1) obligates the Commission to give reasons is without merit. This provision deals solely with a decision at the screening stage that the Commission will not deal with the complaint. Thus, had the Commission decided that it would not deal with Mr. Armoyan's complaint, reasons would have been required, pursuant to section 42(1), to provide reasons. In contrast, section 44(3) does not include any obligation on the Commission to provide reasons for a dismissal.
Is there, nevertheless, a duty to provide reasons?
[16] The facts of this case are similar to those encountered by Justice Gibson in Gardner, supra. In respect of the complaint filed by the Applicant in that case, there were two investigator's reports. The Commission reviewed the two reports, giving the complainant the full opportunity to make submissions in support of her complaints and to respond to submissions made by the departments of government against which the complaints were made. The first report, recommending that one of the complaints be dealt with, was adopted by the Commission and was not the subject of the judicial review before Justice Gibson. The second report, which considered three separate complaints, concluded with a recommendation that the Commission appoint a conciliator. With respect to the second recommendation, the Commission decided to dismiss the complaints stating simply that "having regard to all the circumstances of the complaints, no further inquiry is warranted". There were no other reasons provided. The Applicant had not requested reasons. Justice Gibson concluded as follows, at paragraph 36:
In the result, I conclude that the Commission did not fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons. I so conclude by reason of the absence of a statutory obligation to provide reasons and also by reason of the Applicant's failure to request reasons following notification of the decision to dismiss her complaints and before commencing this application for judicial review. It follows then that the Commission did not err in a reviewable manner in dismissing the Applicant's complaints, notwithstanding the Applicant's view that, on the evidence before the Commission, it was "plain and obvious" that the Applicant had been discriminated against on the basis of family status and the guarded support for that view expressed in the Investigator's Report.
[17] The facts of the case before me are indistinguishable from those before Justice Gibson, specifically:
· the investigator's reports in both cases recommended that further action be taken by the Commission;
· in each case, the conclusion of the Commission to dismiss the complaint was diametrically opposed to the recommendation to take the further action;
· the Applicant, in each case, was provided with the submission of the respondent and with an opportunity to make reply submissions; and
· both Applicants failed to request reasons for the decision of the Commission.
[18] The facts faced by Justice O'Keefe in MacLean, supra were also very similar.
I adopt the reasoning of my colleagues in both Gardner and MacLean and conclude that here, as in both those cases, the Commission was not under any obligation to provide further reasons.
Conclusion
[19] For these reasons, this application for judicial review will be dismissed, with costs to the Respondent.
ORDER
THIS COURT ORDERS THAT:
1. This Court orders that the application is dismissed, with costs to the Respondent.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-476-02
STYLE OF CAUSE: VREGE ARMOYAN v.
ATTORNEY GENRAL OF CANADA
PLACE OF HEARING: Halifax, Nova Scotia.
DATE OF HEARING: May 13, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. R. Barry Ward FOR APPLICANT
Ms. Melissa R. Cameron FOR RESPONDENT
SOLICITORS OF RECORD:
Kimberly-Lloyd Developments Limited FOR APPLICANT
Halifax, Nova Scotia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada