Date: 20050517
Docket: T-924-04
Citation: 2005 FC 712
BETWEEN:
DAVID WILLIAM COOKE
Applicant
and
CORRECTIONAL SERVICES OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
INTRODUCTION
[1] Mr. Cooke seeks judicial review of a decision of the Canadian Human Rights Commission (Commission) which dismissed his complaint that Correction Services Canada discriminated against him on the basis of his "disability" (extreme sensibility to smoke) and his religion (sometimes referred to as "born-again Christian").
[2] Mr Cooke's challenge to the Commission's decision is based on the alleged inadequacy of the investigation of this complaint. The essential inadequacy alleged is that the investigator did not interview at least two (2) key witnesses and a possible third witness.
[3] In support of his judicial review, Mr Cooke filed a lengthy affidavit to establish the inadequacy of the investigation and its conclusions. The Respondent challenges the admissibility of much of the affidavit because, it says, the exhibits attached were not before the actual decision-maker.
BACKGROUND
[4] Mr Cooke was employed by the Respondent, as a Corrections Officer since 1994. He developed a hypersensitivity to second hand smoke. He became a born-again Christian in late 1998, which, resulted in him placing more emphasis on religious observance then had been the case previously.
[5] In early 2002, Mr Cooke filed a complaint with the Commission alleging that the Respondent had discriminated against him, contrary to section 7 of the Canadian Human Rights Act (Act). More particularly he alleged that his disability and his religious practices had not been accommodated.
[6] He alleged that his sick leave, due to his disability, had been used against him in his performance assessment. He also alleged that some sick leave was denied to him because the Respondent did not accept that he was disabled. He further alleged that various requests for leave to permit attendance at certain religious observances had not been accommodated by the Respondent.
[7] The Respondent maintained that it accommodated his smoke difficulties as best it could and within the provisions of the Non-Smoker Health Act; that Mr Cooke had been uncooperative, in identifying breaches of employer's non-smoking policy and even to the extent of refusing an opportunity to work in a smoke-free building.
[8] There was conflicting evidence as to the reasons for and extent of sick leave taken. However the Commission's investigator found that the Respondent had tried to accommodate Mr. Cooke's needs and to enforce its non-smoking policy. The investigator also found that Mr Cooke was denied promotion because of his sick leave usage, not because of his disabilities - apparently accepting the Respondent's contention that there was excessive incidents of sick leave.
[9] While the Applicant complained that he was denied accommodation for religious observance, the Respondent confirmed that in a period of 18 months, Mr Cooke made 22 requests for leave for religious observance, of which 16 were approved. Of the 6 requests not granted, one was cancelled due to illness, in two instances insufficient notice was provided and three others fell at peak vacation time and could not be reasonably accommodated.
[10] On this issue the investigator concluded that there had been no discrimination; that the requests for religious observance leave did not appear to be connected to religious holidays per se but the Respondent still attempted to accommodate Mr Cook's religious needs.
[11] Following the investigator's report recommending dismissal of the complaint, Mr Cooke filed a detailed reply with the Commission challenging virtually every adverse aspect of the report, laying considerable stress on the investigator's failure to contact two of Mr Cooke's witnesses - members of the union which had formerly represented certain employees of the Respondent.
[12] The Commission accepted the investigator's recommendation and dismissed the complaint.
[13] In the Notice of Application for Judicial Review, under Rule 317, Mr Cooke requested that the Commission provide certified copies of:
All documents and files submitted by David Cooke (complainant) and Correction Services Canada and a copy of the C.H.R.C. Report and signatory to the decision.
[14] In Mr Cooke's affidavit in support of the judicial review, it is clear that he was challenging the adequacy of the investigation upon which the Commission's decision was based.
[15] Despite the scope of Mr Cooke's request, the Commission certified only the material which was before the actual decision-maker when it made the decision. That material consisted of the complaint, the Investigator's Report, the Summary of Complaint and Respondent's Defence, two letters from Correction Canada, and a Chronology.
[16] The Commission did not file an objection under Rule 318(2) objecting to the provision of the material requested by Mr Cooke.
ANALYSIS
Preliminary Objection
[17] The Respondent seeks to strike out paragraphs 7 to 24 and exhibits referred to in those paragraphs of the Applicant's affidavit filed in support of the judicial review.
[18] The principal grounds for striking are that the materials were not before the individual decision-maker at the time of rendering of the decision. The materials said to have been before that decision-maker when it made its decision are described in paragraph 15.
[19] The Applicant says that the materials in paragraphs 7 - 19 were provided to the investigator; the materials in paragraph 20 - 24 were materials related to the post-investigation period.
[20] The Respondent's preliminary objection is dismissed. The Respondent takes too narrow a view of the application of the principle that on a judicial review the only materials which should be before the Court are those which were before the actual decision-maker. The decision-maker is not the specific individual who decided the case but the tribunal itself. In this case those materials in the hands of the investigator are materials in the hands of the Commission itself and, therefore are materials "before" the Commission or as phrased in Rule 317 ". . . material relevant. . .that is in the possession of a tribunal. . . .".
[21] To adopt the Respondent's position would frustrate the purpose of Rule 317 to ensure that all relevant materials is available on a judicial review. It would interfere with an applicant's right to pursue a challenge to a decision based not only on what the specific tribunal considered but on what it ought to have considered. A tribunal is or should be the repository of all relevant materials and must disclose not only the material it considered but also the relevant material it had in its possession.
[22] I reject any suggestion made by the Respondent that an applicant must use such indirect means as the Access to Information Act to secure materials in a tribunal's possession where the tribunal had failed to meet its obligations under Rule 318(1).
[23] Since the material which is "relevant to an application" is material which may affect the decision that this Court may make; and, in this instance the Applicant clearly attacked the adequacy of the investigation, the material requested by the Applicant under Rule317 should have been provided to him. (CBC v. Paul, [2001] F.C.A. 93).
[24] There is no basis for the Respondent's challenge to paragraph's 7-19 of the Applicant's affidavit. With respect to the post-investigation material, since it may be relevant to the Court's decision it was also proper to include it in the Applicant's affidavit. Therefore all this evidence forms part of the record before this Court.
CHALLENGE TO DECISION
[25] The Applicant's complaint about the investigation is based on (a) the insufficiency of the evidence before the Commission because two witnesses were not interviewed; (b) the lack of thoroughness of the investigation for the same reason; (c) the failure of the Commission to give reasons for not interviewing those two witnesses. The underlying complaint or common theme is that the investigator failed to interview two witnesses.
[26] In Tahmourpour v. The Solicitor General of Canada, [2005] F.C.J. No. 543, the Court of Appeal confirmed that the leading case in respect to the issues raised is Slattery v. Canada (Human Right Commission), [1994] 2 F.C. 574 in which Nadon J. (as he then was) held that an investigation may lack the legally required degree of thoroughness if, for example, the investigator had "failed to investigate obviously crucial evidence".
[27] The Applicant has failed to satisfy me that the failure to interview his two witnesses constituted such a serious failure. The Court accords an investigator a considerable degree of latitude in determining how an investigation should be conducted.
[28] The two witnesses would corroborate the Applicant's complaint without adding new evidence. However the issue in the complaint is not the credibility of the Applicant so mush as whether the Warden of the correctional institution provided reasonable accommodation to the Applicant's circumstances. The Applicant has not shown that these witnesses would be able to assist on this central issue.
[29] A third possible witness was identified as one who should or could have been interviewed. However that witness' possible availability post-dates the investigation and cannot form a basis for attacking the thoroughness of the investigation.
[30] With respect to the sufficiency of the evidence before the Commission, the Applicant was able to submit all of his arguments in respect of each paragraph of the investigator's report. The Applicant raised the issue of failure to interview witnesses and dealt with all issues raised by the investigation. Therefore the Applicant has no basis for this ground that the Commission was not aware of the insufficiency of the evidentiary basis or at least his argument to this effect.
[31] With respect to the thoroughness of the investigation, since this ground is based on the failure to interview witnesses, for reasons already provided, this ground cannot succeed.
[32] With respect to the failure to give reasons for not interviewing the witnesses, there is no obligation to provide such an explanation. These are sufficient reasons given in respect to the substantive decision to dismiss the complaint. The Commission (more particularly neither the investigator nor the particular panel of the Commission) need supply reasons for each step taken or not taken in any investigation.
CONCLUSION
[33] This application for judicial review will be dismissed with costs.
(s) "Michael L. Phelan"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-924-04
STYLE OF CAUSE: DAVID WILLIAM COOKE v. CORRECTIONAL SERVICES OF CANADA
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 5, 2005
REASONS FOR ORDER: Phelan J.
DATED: May 17, 2005
APPEARANCES:
Mr. David William Cooke APPLICANT ON HIS OWN BEHALF
Ms Jessica Harris FOR THE RESPONDENT
u
SOLICITORS OF RECORD:
Mr. David William Cooke
Amherst, Nova Scotia APPLICANT ON HIS OWN BEHALF
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT