Federal Court Decisions

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Federal Court

 

Cour fédérale

Date: 20101117

Docket: T-2136-09

Citation: 2010 FC 1152

Ottawa, Ontario, November 17, 2010

PRESENT:     The Honourable Mr. Justice de Montigny

 

BETWEEN:

 

STACEY GERRARD

 

 

 

Applicant

 

and

 

 

 

THE ATTORNEY GENERAL OF CANADA

 

 

 

Respondent

 

 

 

 

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is a judicial review of a decision made December 9, 2009 by the Canadian Human Rights Commission (the “Commission”).  The Commission decided to dismiss the Applicant’s complaint of discrimination against Justice Canada, her former employer, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.1985, c. H-6 (the “Act”).

 

[2]               The Applicant challenges that decision on a number of grounds, alleging essentially that the Commission breached her right to natural justice and procedural fairness, and erred in the assessment of the evidence.  For the reasons that follow, I am unable to find in favour of the Applicant, as there are no grounds for the intervention of this Court.

 

I.          Facts

[3]               The Applicant, after placing first in a competition, accepted an offer for a one-year contract as LA-01 counsel with the Department of Justice in the Atlantic Regional Office in Halifax, Nova Scotia.  The term began on June 20, 2005 and ended on June 19, 2006.  At the time, she was married with a small child and pregnant with a second one.  In the months following her hiring, two other women candidates, Susan Taylor and Andrea Jamieson, both single with no children, were hired on a similar basis.

 

[4]               On March 7, 2006, the Applicant was given written notice that her term contract would not be renewed.  On the contrary, the contract of Ms. Taylor, who placed second in the competition, was renewed.

 

[5]               In May 2006, the Applicant filed a grievance with the Department of Justice.  The grievance was heard at the first and second level and finally dismissed in January 2007.  The Applicant did not refer her grievance to the Public Service Labour Relations Board.

 

[6]               In August 2006, the Applicant filed a complaint with the Public Service Commission (the “PSC”).  The PSC decided that the complaint did not fall within its jurisdiction.

 

[7]               By letter dated February 1, 2007, the Applicant, with the assistance of her Member of Parliament, requested a Ministerial Inquiry into the decision not to renew her contract.  By letter dated December 21, 2007, the Department advised her that, since the Applicant was still exercising her redress before the Commission, the Department could not comment any further.

 

[8]               In late June 2007, the Applicant filed a complaint with the Commission alleging that the reason behind the non-renewal of her employment contract was her status of married pregnant women and mother of a small child.  Among other things, the Applicant claimed that the decision not to renew her employment was her lower number of billable hours and the fact that she could not work overtime like Ms. Taylor, as a result of her family and marital commitments.

 

[9]               The Commission appointed an investigator, Deidre Hilary, to investigate the complaint.  Ms. Hilary completed her work and filed an investigation report on December 12, 2008.  She recommended to the Commission that it dismiss the complaint on the bases that the evidence gathered did not support the complainant’s allegation of discrimination and did not support the allegation that the Respondent refused to hire or terminated the complainant’s employment on the grounds of sex, family status or marital status.

 

[10]           The Applicant wrote a letter to the Commission complaining, amongst other things, that she was denied an opportunity to provide evidence on many issues and that the investigator had not interviewed several witnesses, including herself, who had evidence to give in support of her complaint.

 

[11]           After a response to the Applicant’s remarks by Justice Canada, the Commission determined in April 2009 that further investigation was required and that interviews with new witnesses should be conducted.  Andrew Sunstrum was appointed to complete the investigation.

 

[12]           In June 2009, Mr. Sunstrum interviewed the Applicant and the witnesses she had listed, including the Applicant’s union representative.  A supplementary investigation report was produced on August 21, 2009 and forwarded to the Applicant on September 8, 2009 for comments.  The supplementary investigation report contained new findings of fact, but did not include new conclusions, summaries or recommendations.  Both parties produced further remarks on that report.

 

[13]           After considering both investigation reports and the submissions of the parties thereon, the Commission decided to dismiss the complaint.

 

II.         The impugned decision

[14]           The impugned decision was communicated to the Applicant by way of letter dated December 12, 2009.  The core of the letter is short enough to be reproduced hereafter:

I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint (20070766) against Justice Canada.

 

Before rendering the 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:

 

1.      The evidence gathered does not support the complainant’s allegation of discrimination; and,

2.      The evidence gathered does not support that the respondent refused to hire, or terminated the complainant’s employment, on the grounds of sex, family status, marital status.

 

Accordingly, the file on this matter has now been closed.

 

 

III.       Issues

[15]           The Applicant, who was self-represented, has raised a number of issues with respect to that decision of the Commission.  I believe all of these issues can be grouped around three themes:

A.                 Did the Commission make erroneous findings of fact, or rely on fraudulent and perjured evidence?

B.                 Did the Commission commit any jurisdictional error?

C.                 Did the Commission breach procedural fairness during its investigation process?

 

IV.       Analysis

A.  Evidentiary Preliminary Issue

[16]           The Applicant made extensive reference to documents excerpted from the investigative record that was provided to her by the Commission under cover of a Supplementary Rule 318 Certificate dated March 25, 2010.  Counsel for the Respondent objected to the admissibility of these documents for three reasons.

 

[17]           First, the Respondent submitted that these documents have not been tendered by way of an affidavit, as required by Rule 306 of the Federal Courts Rules, SOR/98-106.  Second, he contented that the Applicant did not include them in her Application Record.  Finally, these documents were not before the Commission when it made its decision.

 

[18]           The general rule is that a reviewing court makes its decision on the basis of the material that was before the administrative decision-maker.  Exceptionally, additional evidence will be relevant when there is an allegation of breach of procedural fairness or of jurisdictional error committed by the administrative body.  This principle was clearly established by the Federal Court of Appeal decision in Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218, [2002] F.C.J. No. 813 at para. 30:

In contrast, applications for judicial review are normally conducted on the basis of the material before the administrative decision-maker.  However, affidavit evidence is admitted on issues of procedural fairness and jurisdiction.  Supplementary affidavits and cross-examination on them require leave of the Court; Federal Court Rules, rule 312.

 

 

[19]           More specifically, with respect to decisions involving a two-step process where the first one is only investigative, such as it is the case of the Commission, Courts have held that, in general, the production of the documents that were before the Commission (excluding those which were used only during the investigation) is sufficient, because they are the only relevant documents to the judicial review.  The investigation notes become relevant when a party casts doubt on the accuracy and the completeness of the reported summary of the facts: Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.) at paras. 10-12; Assoc. des crevettiers du Golfe Inc. v. Canada (Attorney General), 2009 FCA 229, [2009] F.C.J. No. 861 at paras. 17-18.

 

[20]           In the case at bar, the Commission had before it a list of documents provided to the Court and to the parties on January 15, 2010.  This list included investigation reports, a summary of complaint, the Respondent’s response to the complainant’s allegations dated March 31, 2008, and submissions by both parties in response to each of the investigation reports.

[21]           On March 25, 2010, via an exhaustive Supplementary Rule 318 Certificate, the Commission forwarded all of the documents contained in the investigation file with respect to the Applicant’s complaint.  The Applicant relied on many documents, such as Justice Canada September 2007 defence to the complaint and her rebuttal dated May 14, 2008, which are found in the Supplementary Rule 318 Certificate, but were not before the Commission when it made its decision.

 

[22]           To the extent that the issues and arguments pertain to the accuracy of the investigator’s reports and summaries, or to which they raise procedural fairness and jurisdiction issues, the Supplementary Rule 318 Certificate is relevant for this judicial review and both parties can refer to it.  Otherwise, only the record that was before the Commission can be taken into account.

 

[23]           I realize that the Supplementary Record was not tendered by way of an affidavit.  However, in light of the controversy that has arisen in the Court of Appeal with respect to the proper way to file a tribunal record (see Canada (Attorney General) v. Lacey, 2008 FCA 242, [2008] F.C.J. No. 1221 and Canada (Attorney General) v. Vold, Jones and Vold Auction Co., 2009 FCA 192, [2009] F.C.J. No. 715) – a controversy that was only recently resolved in favour of the rule that a tribunal record, like any documentary exhibits, must be filed by way of affidavit Select Brand Distributors Inc. v. Canada (Attorney General), 2010 FCA 3, [2010] F.C.J. No. 33, at para. 56) –  I am prepared to consider the Supplementary Record for the limited purposes outlined in the previous paragraph.  Counsel were told of my decision at the hearing, and out of fairness for counsel representing the Attorney General, I allowed him to file additional material in response to the Supplementary Record. Counsel for the Respondent declined to file further documents, but instead drew my attention to some documents in the Supplementary Record that were, in his view, of particular interest to fully understand the work of the investigators and to contextualize the Applicant’s arguments.

 

(1)  Did the Commission Make Erroneous Findings of Fact, or Rely on Fraudulent and Perjured Evidence?

[24]           There is no disagreement between the parties as to the applicable standard of review.  The role of the Commission is not to decide whether a complaint is made out, but whether under the provisions of the Canadian Human Rights Act, an inquiry is warranted having regard to all of the facts: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at paras. 52-53; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899.  It has been decided that such decisions are to be reviewed against a standard of reasonableness: Balogun v. Canada (Minister of National Defence), 2009 FC 407, aff’d 2010 FCA 29, at para. 6; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 at para. 47.  Reasonableness is a deferential standard, concerned with the “existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: New Brunswick v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.

 

[25]           In her Statement of Issues, the Applicant says that the Commission based its decision on an erroneous finding of fact when it relied on a Supplementary Investigation Report that contained factual inaccuracies.  It appears that the inaccuracies to which the Applicant refers relate to the interview with one of her witness by the second investigator.  She stated in her factum that Darlene Lamey contacted Mr. Sunstrum “to inform him that there were “several areas” in the Supplemental Investigation Report where she was misquoted”, and that the information provided “did not accurately reflect the interview”.

 

[26]           This argument is completely unsupported, and as the Applicant herself conceded in her factum, she does not know what the inaccuracies are.  In the absence of any affidavit by Ms. Lamey corroborating the Applicant’s submission, and of any evidence in the record confirming that Ms. Lamey did indeed contact Mr. Sunstrum and complained about the interview, the Court is left to speculate as to what these inaccuracies may have been, if indeed there are such inaccuracies.  Moreover, the Applicant specifically brought that issue to the attention of the Commission in her submissions of September 21, 2009.  Had the Commission considered these alleged inaccuracies fundamental, it could have arranged for further investigation.  Accordingly, there is no basis upon which to conclude that the Commission relied upon an insufficient or deficient investigation report.

 

[27]           The Applicant further submitted that the Commission erred because if failed to provide any findings of fact in its decision.  This argument cannot stand.  Pursuant to subsection 44(3) of the Act, the Commission must decide whether, having regard to all the circumstances of the complaint, an inquiry is warranted.  In making this decision, it does not perform an adjudicative function and is not required to make findings of fact: Cooper, above, at para. 53.

 

[28]           Indeed, it is well established that the Commission, when it adopts the recommendation of the investigation report, need not provide detailed reasoning and reference to the underlying facts. 


The Federal Court of Appeal clearly summarized this principle at para. 37 of its decision in Sketchley, above:

[…] When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the screening decision under section 44(3) of the Act […].

 

 

[29]           Finally, the Applicant says the Respondent made the “perjured and fraudulent submission” that the Public Service Commission found no fault with the decision of the Respondent to renew the term of another LA-01 based on the “right fit” criteria, and alleges that the investigator’s summary of the disposition of her complaint to the PSC was “fraudulently misleading”.  The Respondent conceded that this statement was in error, and that the PSC did not investigate the Applicant’s complaint on the ground that it lacked the jurisdiction to do so. However, there is no evidence that this error was made with fraudulent intent, and the unsworn submissions of a party to an investigatory body such as the Commission cannot, strictly speaking, be considered perjury.

 

[30]           More importantly, the Applicant had many opportunities to address this submission before the Commission and did so repeatedly.  First, she states clearly in her complaint that “the Public Service Commission determined that they did not have the requisite jurisdiction to investigate my complaint”.  Second, in her submission to the Commission of January 9, 2009, she complains that the investigator’s summary of the disposition of her PSC complaint is “incomplete and inaccurately reflected”, alleging that the investigator neglected to review the PSC determination.  She goes on to assert, as she did before this Court, that the Respondent submitted perjured or fraudulent evidence that was ignored by the investigator, specifically referencing her earlier submissions and a letter from the PSC.  Third, she made the same point in her letter of February 20, 2009.  All of these documents were before the Commission.

 

[31]           As for the investigator’s summary, it did not state that the PSC investigated and dismissed her complaint, but that the Applicant was “unsuccessful” before the PSC.  This is technically true, as the Applicant did not succeed in persuading the PSC to investigate her complaint.

 

[32]           In any event, the Respondent’s submission on this point is of little consequence.  It was not the function of the investigator to examine the PSC’s handling of the complaint and there is no evidence that the Respondent’s submission had any bearing on the conduct of the investigation or the decision of the Commission.

 

(2) Did the Commission Commit any Jurisdictional Error?

[33]           The Commission decided to dismiss the complaint because, in its view, the evidence gathered did not support either the Applicant’s allegation of discrimination or her allegation that the Respondent “refused to hire, or terminated the Complainant’s employment on the grounds of sex, family status [or] marital status”.

 

[34]           The Applicant finds fault with the choice of words “refused to hire” and “terminated” and submits, on that basis, that the Commission exceeded its jurisdiction because s. 7 of the Act states that it is a discriminatory practice “to refuse to employ or continue to employ” an individual on a prohibited ground of discrimination.  With all due respect, I fail to see how such an argument can be taken seriously.

 

[35]           While the Commission could have been more careful in its choice of words, it clearly had the authority to make the determination and the investigation it made.  Regardless of the language used in its decision, the Commission clearly understood that the Applicant was alleging that the Respondent refused to continue to employ her within the meaning of section 7 of the Act.

 

[36]           The Commission’s decision was supported by the findings of fact made in two comprehensive investigation reports.  The first investigator understood and fully investigated the Applicant’s complaint that her term was not renewed by reason of discrimination based on sex, family status, and marital status.  She summarized the complaint in these terms:

The complainant began a one-year term contract as counsel…On March 7, 2006, the complainant was given written notification that her term contract would not be renewed and her last day of employment was June 19, 2006.  One of the other women had her contract renewed.  The complainant alleges that her contract was not renewed because she was married, pregnant and had a small child.

 

 

[37]           The investigator went on to determine, on the basis of evidence supplied by the Department of Justice, that the Applicant had not been terminated.  Rather, her term expired and was not renewed.  The investigator then investigated whether the decision not to renew her employment was made on a prohibited ground.  Far from refusing to exercise, or exceeding, its jurisdiction, the Commission properly investigated the complaint tendered by the Applicant before dismissing it.  There is nothing in the record to suggest that the Commission asked itself the wrong question or in any other way misinterpreted the limits of its jurisdiction.

 

[38]           The Applicant also contended, somewhat confusingly, that the Commission acted beyond its jurisdiction and investigated the substantive issues of the complaint, while such an inquiry falls only within the jurisdiction of the Tribunal.  In the Applicant’s opinion, the Commission failed to analyze whether the complaint had reached the threshold of prima facie case of discrimination.  In support of her argument, the Applicant refers to s. 6.1 of an internal manual of the Commission entitled Dispute Resolution: Procedures Manual which mistakenly (in her view) directs the investigator to assess the merits of a complaint.

 

[39]           Once again, this argument cannot hold sway.  First of all, the document to which the Applicant refers is only one chapter of a larger piece and it is, for that reason, difficult to contextualize the particular quote on which the Applicant relies.  In any event, a manual is not a regulation but an internal policy document that is not binding.  Treating such a document as a binding rule would constitute a fettering of the discretion of the administrative body: International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at para. 33.

 

[40]           Moreover, the Applicant did not explain how the Commission exceeded its jurisdiction in the present case.

 

[41]           The Commission must have an adequate and fair basis on which to evaluate whether there is sufficient evidence to warrant appointment of a tribunal.  In order for there to be a “fair basis” the investigation must satisfy at least two conditions: neutrality and thoroughness (Slattery, [1994] 2 F.C. 574 at paras. 48-50).  Determining the required degree of thoroughness involves balancing the complainant’s and respondent’s interests in procedural fairness and the Commission’s interests in maintaining a workable and administratively effective system.  Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate accordingly.  As found by this Court: “It should only be where unreasonable omissions are made, for example where an investigator fails to investigate obviously crucial evidence, that judicial review is warranted”: Slattery,at paras. 56-57.

 

[42]           The first investigation report reveals that an extensive investigation was conducted.  The investigator interviewed Department of Justice seven employees, including the persons who decided not to renew the Applicant’s employment and human resources advisors. She also reviewed and analyzed documents including those tendered during the Applicant’s grievances, the applicable legislation, the business plan, and the Respondent’s submissions. She summarized the evidence provided and she reached logical and reasonable conclusions before making her recommendations. 

 

[43]           The investigator gathered sufficient evidence to support the findings that she made: that the Respondent extended the other employee’s term because she was the “right fit” given her qualifications, experience, and departmental requirements; that the candidates’ billable hours were not considered before the decision was made; and that the Applicant’s pregnancy was not a factor in that decision.

 

[44]           The Applicant insisted that the investigation was insufficient and made representations to the Commission to that effect.  As a result of these representations, the Commission elected to carry out a supplementary investigation.  The new investigator interviewed the witnesses identified by the Applicant, considered the issues raised by the Applicant and made additional findings of fact.  In particular, he investigated the litigation experience and competency of the candidates, the Applicant’s performance, the issue whether the decision to retain Ms. Taylor was made on the basis of billable hours, and the evidence of various employees concerning the balancing of work requirements and family demands. 

 

[45]           Any deficiencies in the first investigation report were fully addressed in the second investigation report.  Moreover, the Commission had before it the Applicant’s submissions respecting the alleged deficiencies of the two reports when it made its decision.  In these circumstances, there is no basis to conclude that the Commission did not have before it an adequate and fair basis in the evidence for making its decision.  Therefore, I find that the Commission responsibly conducted the investigation in accordance with its statutory jurisdiction and could determine, on the basis of the evidence before it that there was no reasonable basis to proceed to the next stage, i.e., to appoint a tribunal.

 

[46]           The Applicant also takes issue with the fact that the investigation report included an analysis of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12-13 and its concept of “right fit”, which in her view is outside the scope of the Commission’s jurisdiction.  Yet she cites no authority in support of that proposition.  It seems to me that investigators must be expected to consider and interpret relevant legislation from time to time to understand the statutory and regulatory framework within which employment decisions are made.  The Applicant does not explain why investigators should be prohibited from interpreting and applying relevant legislation nor how, in this case, the investigator erred in so doing.

 

[47]           Finally, the Applicant submitted that the Commission exceeded its jurisdiction when it ordered a further investigation.  To accept such an argument would be inimical to the whole structure of the Canadian Human Rights Act.  The Commission is master of its own process and must be afforded considerable latitude in the way it conducts investigations.  It does not become functus officio upon delivery of an investigation report.  If that were so, then insufficient investigation reports could never be improved and the Commission would be forever precluded by an insufficient factual record from exercising its discretion to dismiss or refer complaints to the Tribunal.  In particular, the Commission is not restricted to investigating new information that was not previously available.  The policy manual relied upon by the Applicant is a general guideline, not a legal restraint on jurisdiction.

 

[48]           If the Commission has overlooked something or failed to appreciate an argument made by a complainant or a respondent, it is reasonable and appropriate in the interests of justice that it have the authority to reopen the investigation and address the alleged deficiency.  This is especially important where a party draws a decision-maker’s attention to an omission of a fundamental nature: the Commission must have discretion to deal with that omission through further investigation rather than waiting for a judicial direction to that effect.

 

(3)  Did the Commission Breach Procedural Fairness During its Investigation Process?

[49]           There is no question that the Commission’s decision to forward a complaint to the Tribunal or to dismiss it must be made after a thorough and neutral investigation in compliance with the principles of natural justice: Slattery, above, at para. 49.

 

[50]           The Commission did not violate the principles of procedural fairness by conducting the supplemental investigation.  After considering the Applicant’s submissions in relation to the first investigation report, the Commission decided to interview the very witnesses that she complained had not been interviewed.  In so doing, it acknowledged her submissions and took steps to ensure that they were addressed.  In directing further investigation in the present case, the Commission did not breach procedural fairness but, on the contrary, acted to protect the Applicant’s rights and ensure that the investigation had been thorough before coming to its conclusion.

 

[51]           The Applicant also challenged the thoroughness of the second investigation. First, she submitted that Mr. Sunstrum should not have interviewed the witnesses by telephone. Second, she argued that he accepted that the billable hours were the reason behind Justice Canada’s decision but attempted to find evidence that the Applicant’s lower billable hours were not a result of her family and marital status.  Again, these contentions are not supported by the evidence, and the use of the telephone to conduct the interviews does not affect their appropriateness in this particular case.  The investigator’s questions regarding billable hours were appropriate given the Applicant’s complaints about the deficiencies of the first investigation; moreover, the evidence clearly indicated that the candidates’ billable hours were not considered at the time the decision was made not to extend the Applicant’s term of employment.

 

[52]           The Applicant further argues that the investigator did not consider her letter of May 14, 2008.  It is true that the investigator did not refer to it expressly in her investigation report, but many of the submissions made therein are addressed in the report.  In any event, the Applicant addressed all of the points she made in her letter of May 14, 2008 in subsequent correspondence that was before the Commission.  Moreover, an investigator is not required to deal exhaustively with every allegation made by a complainant.  An investigation into a human rights complaint cannot be held to a standard of perfection; it is not required to turn every stone.  An investigation will be flawed only when it fails to address a crucial element or when it contains erroneous fact findings:

The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well.  This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own.  In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient.  In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant’s complaint, as it was worded, or were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant’s responding submissions.

 

Slattery, above, at para. 69.

 

 

[53]           The Applicant also questioned the neutrality of the investigation process and claimed that reasonable apprehension of bias exists.  First of all, because of the non-adjudicative nature of the Commission, it is not bound to the same standard of impartiality as the court.  As the Court said in Sanderson v. Canada (Attorney General), 2006 FC 447, [2006] F.C.J. No. 557 at para. 75, “(…) the question is not whether there exists a reasonable apprehension of bias on the part of the investigator, but rather, whether the investigator approached the case with a “closed mind (…)”.

 

[54]           In any case, the Applicant’s allegations of bias are far from convincing.  The Applicant makes much of her interaction with an intake officer with the Commission, who allegedly told her that she would have a difficult time proving that discrimination occurred with the new legislation “now permitting managers to appoint a candidate on whatever criteria they choose, including the colour of their shoes” (A.R., par. 92).  First of all, that evidence is not properly supported by an affidavit.  Moreover, the mere expression of opinion by a Commission intake officer about the impact of the Public Service Employment Act on the applicant’s proposed complaint cannot be taken as evidence of a lack of neutrality on the part of the Commission.  At this point, the complaint had not been finalized, an investigator had not been appointed and no steps had been taken to investigate or assess the complaint.  There is no evidence to suggest that this opinion, if expressed, was shared by the investigator or the Commission or, more importantly, that it influenced in any way the conduct of the investigation or the decision of the Commission.

 

V.        Conclusion

[55]           For all of the above reasons, I am therefore of the view that the Commission had a reasonable basis in the evidence for making its decision, and did not breach the principles of fairness.  The investigations were thorough and neutral, and the Applicant had every opportunity to make submissions concerning the two investigation reports.  Accordingly, there are no grounds for the intervention of this Court.

 


ORDER

 

THE COURT’S JUDGMENT IS that this application for judicial review be dismissed, with costs in the amount of 1 500$ to the Respondent.

 

 

"Yves de Montigny"

Judge

 

 

 

                 


FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-2136-09

 

STYLE OF CAUSE:                          Stacey Gerrard v. The Attorney General of Canada

 

 

 

PLACE OF HEARING:                    Halifax, Nova Scotia

 

DATE OF HEARING:                      July 14, 2010

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    de MONTIGNY J.

 

DATED:                                             November 17, 2010

 

 

 

APPEARANCES:

 

Stacey Gerrard

 

FOR THE APPLICANT

(ON HER OWN BEHALF)

 

J. Sanderson Graham

FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Stacey Gerrard

Dartmouth, Nova Scotia

 

FOR THE APPLICANT

(ON HER OWN BEHALF)

Myles J. Kirvan,

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT

 

 

 

 

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