Date: 20010621
Docket: T-586-98
Neutral Citation: 2001 FCT 687
BETWEEN:
CHANDER P. GROVER
Applicant
- and -
NATIONAL RESEARCH COUNCIL OF CANADA
AND ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] Dr. Chander P. Grover (the "Applicant") received a decision from the Canadian Human Rights Commission (the "Commission") delivered February 27, 1998, in which the Commission dismissed two complaints filed by him alleging discrimination in the course of his employment with the National Research Council (the "NRC"). As a result of the Commission's decision, Dr. Grover's complaints were not forwarded to a Board of Inquiry.
[2] Dr. Grover now seeks judicial review of that decision and in particular, an order quashing the decision of the Commission and a further order directing the Commission to refer the two complaints to a tribunal or alternatively, an order directing the Commission to reconsider the complaints in accordance with any directions of the Court.
FACTS
[3] Dr. Grover is a research scientist and has been so employed with the NRC since July 1981. In two complaints filed in 1991 and 1992, he alleged discrimination in the course of his employment on the grounds of race, national or ethnic origin and colour, contrary to section 7 of the Canadian Human Rights Act, RS 1985, c. H-6, as amended (the "Act").
[4] The first complaint was filed on December 23, 1991 setting out several allegations of discrimination on the basis of race, national or ethnic origin and colour. The allegations were as follows:
1. Since 1987, I have been denied salary increments.
2. In August 1990, Dr. Vanier terminated my research program in instrumental optics on the pretext that the lead responsibility for optics lied [sic] with the National Optics Institute. On the other hand, my co-workers who are White [sic], were allowed to continue doing optics work despite the existence of the National Optics Institute.
3. In the fall of 1990, Dr. Vanier removed my name from the telephone directory of the Institute for National Measurement Standards.
4. In November 1990, Dr. Vanier did not appoint me to any of the committees he formed. In October 1991, he did not appoint me to a group leader position. White co-workers less qualified than me were appointed.
5. In early 1991, Dr. Vanier refused to allow me to participate in NRC's 75th Anniversary Program.
6. On June 3, 1991, instead of re-instating me to the previously agreed upon position, Dr. Vanier assigned me to one with inferior responsibilities and duties, disregarding my qualifications and expertise. I do not yet have an approved Work Plan.
7 On June 3, 1991, Dr. Vanier removed the sensitometer project which I had supervised for 10 years and gave it to Dr. Bedford, a White [sic] scientist with no expertise in this field.
8. On June 21, 1991, Dr. Vanier refused to allow me to participate in the International Society for Optical Engineering 1991 Annual Conference in San Diego. It was only because my union intervened that I was able to go.
9. On September 16, 1991, Dr. Bedford, my supervisor, unfairly criticised me for matters relating to the Work Plan, Tax Time Sheets and the Trip Report.
10. On September 17, 1991, I was informed that I was not successful with respect to a competition for a section head position. I believe that Dr. Vanier who was the Chairman of the Selection Board, did not properly assess my experience and qualifications for this position.
11. On September 18, 1991, Dr. Vanier negatively criticized my report on the San Diego trip via a memorandum he sent to Dr. Bedford. As well, he was unjustly critical of my participation in committees of the International society for Optical Engineering.
12. On September 18, 1991, Dr. Vanier instructed my supervisor to have me set aside all activities involving interactions with outside organizations.[1]
[5] A second complaint was filed on July 14, 1992. It also set out several allegations of discrimination on the same grounds, as follows:
1. Dr. Vanier forbade me to work in the field of holography in June and September 1991. However, he is allowing a white scientist to pursue experiments in holography. In March 1992, Dr. Bedford, my section head and supervisor, allowed this white scientist to use the material which I had originally purchased for my experiments in holography.
2. Dr. Vanier has completely ignored the contribution I made with respect to the setting up of the Institute of Optics and did not assign me the work of setting up the metrology laboratory. I learned about the metrology project in the spring of 1992.
3. In March 1992, Dr. Vanier had his secretary send me my 10-year service button without any reference to himself. Normally he presents these service buttons to the recipient.
4. On 27 March 1992, Dr. Bedford gave me a work plan which is only a make-work project. Dr. Bedford advised me on 1 April 1992 that by allowing me to do this project and nothing else, he was only carrying on the instructions given to him by Dr. Vanier. However, white scientists are allowed to work on a number of projects.
5. By memo dated 31 March 1992, I provided to Dr. Bedford my input to my work plan and indicated my serious concerns about it. Dr. Bedford and Dr. Vanier completely ignored my concerns and did not even reply to my memo and forced the work plan on me by writing to me in a memo dated 22 April 1992 "In any event, this will be your work plan." Subsequently in reply to a reminder dated 15 June 1992, Dr. Bedford gave me an irrelevant and evasive response in his memo dated 25 June 1992. On 2 June 1992, Dr. Vanier assigned me without my concurrence an inferior work plan which according to his own document was written up for an entry level research officer. No other senior research officer has been assigned work without his or her concurrence.
6. On 2 April 1992, I learned that Dr. Vanier has classified my position under "section overhead". No other scientist is classified under this code which only applies to secretarial services, telephones, faxes, building and other like services.
7. On 2 April 1992, I examined my personal file and found documents which I had not seen before and which should not have been there. These contain a large number of letters which the National Research Council exchanged with Members of Parliament and ethnic organizations, regarding my dismissal by the Council in May 1991.
8. In a memorandum dated 24 April 1992, Dr. Vanier advised me that I was not considered for promotion in September 1991 and that he was withholding my promotion again effective July 1992. He also informed me that a notification to me from Dr. Bedford dated 5 September 1991 advising me I was not considered for a promotion was never sent to me. I believe that hiding the decision about my promotion from me for almost nine months and denying me promotions in September 1991 and July 1992 are because of Dr. Vanier's prejudice against me.
9. In May 1992, Drs. Vanier and Bedford refused to tell me about the nature of a meeting Dr. Vanier wanted me to attend on 20 May 1992; he did not allow me to bring a representative and refused to meet with me on a one-to-one basis. Dr. Vanier also ignored my suggestions for a meeting with me which I made in my memo to him dated 5 June 1992.
10. In a memo dated 26 May 1992, Dr. Vanier criticised me for not attending the meeting on 20 May 1992, even though I had informed Dr. Bedford I would not attend without a representative.
11. In a memo dated 2 June 1992, Dr. Vanier ordered me to report to Dr. Zwinkels every two months on the progress accomplished on the work plan assigned. Dr. Vanier does not treat white senior scientists in this manner.
12. Dr. Vanier also asked Dr. Zwinkels to verbally state to me in presence of two witnesses what was contained in his memo of 2 June 1992. To the best of my knowledge, Dr. Vanier does not treat White [sic] senior scientists in this manner.
13. In the memo dated 2 June 1992, Dr. Vanier also criticised me for not undertaking the duties assigned to me, and for not giving him my input and agreement on my work plan.
14. The project "Standards and Measurement Techniques - Fibre Optics", which Dr. Vanier assigned to me, has been promoted as a serious and worthwhile new initiative of the Institute for National Measurement Standards (INMS). In June 1992, I found out that this project, contrary to any new initiative, is not part of the 1992-93 Annual Plan of the INMS.
15. The 1992-93 Annual Plan/Business Plan does not include my SPIE Fellowship award which I received on 24 July 1991 in San Diego and my selection in the summer 1991 as Guest Editor for the "Optics in Canada" issue of Optical Engineering. Awards received by other staff members appear in a section to that effect.
16. In the 1992-93 Annual Plan, it is stated "The Optical Engineering Program with the Optical Components Shop will be integrated into the Mechanical Standards Section" of the INMS. The Annual Plan also shows that the optics activities at the INMS have increased. Whereas Dr. Vanier has been constantly increasing the optics activities of white scientists, he has consistently denied me the opportunity to do optics work from June 1991 to the present.
By not assigning me any meaningful work, Dr. Vanier is humiliating me in order to force me to quit my job. He is forcing an inferior project on me through intimidation and threats of discharge. By not allocating adequate resources, he is also attempting to sabotage my performance and career. Dr. Vanier has created such a stressful and poisonous work environment for me at the work place that it has become necessary for me to stay away from work for health reasons. I was away on sick leave from October 1991 until mid-March 1992, and again at the end of April and beginning of May 1992 for three weeks. In an attempt to force me out of my job, Dr. Vanier has tried to force me to accept long term disability insurance. I believe that I am treated that way because I am of East Indian origin.[2]
[6] In correspondence dated February 6, 1992 and February 13, 1992, counsel for the NRC wrote to the Commission, objecting that the first four allegations in the first complaint should not be investigated since they were included in former complaints which had been referred to adjudication by a tribunal. When the NRC made this objection, the Tribunal adjudicating the Applicant's earlier complaints had not yet reached its decision.
[7] The Commission reviewed the submissions made by the NRC concerning the first four allegations in the 1991 complaint and decided not to investigate these four allegations. The Applicant was not advised of this decision by the Commission until June 17, 1993.
[8] In the meantime, the Tribunal delivered its decision on August 21, 1992. It found that the NRC had discriminated against the Applicant on the basis of race, colour and national origin. It made certain findings which the Applicant claims are relevant to his 1991 and 1992 complaints. These findings are as follows:
(a) Dr. Grover was on a positive career progression with NRC and NOI (National Optics Institute) prior to the start of the NRC's discriminatory conduct. He was an above average scientist with particular expertise in optics;
(b) Dr. Grover was subjected to a course of differential treatment, perpetrated by NRC management, and in particular Dr. Laubitz, Dr. Preston-Thomas, Dr. Bedford and Dr. Vanier [The complaints herein raise further allegations respecting Dr.'s Vanier and Bedford];
(c) The treatment of Dr. Grover by NRC management was calculated to diminish his status as a scientist, reduce his research activities, impede his promotion progression, reduce his ability to develop his scientific career internationally and, lastly, put him through an ill-devised termination process which was both humiliating and stressful;
(d) The conduct of NRC management resulted not only in the destruction of Dr. Grover's career but caused him undue distress and illness, disrupted his family and home life and put unnecessary stress on his family members;
(e) The explanations offered for NRC management's treatment of Dr. Grover, namely budget restrictions, research cutbacks, change of program, personality conflicts, and department reorganization, were pretextual;
(f) The NRC intensified its discriminatory treatment of Dr. Grover when he filed his complaints;
(g) At the time Dr. Grover lodged his complaint with the Commission none of the approximately 43 key management positions at NRC were held by a member of a visible minority; and
(h) The treatment of Dr. Grover was differential and described in detail in the Tribunal's reasons. No other scientist was treated in a similar manner as Dr. Grover, from the time he returned on a full-time basis at NRC in 1986 to the point of his termination on November 7, 1990.[3]
[9] After receipt of the two complaints, investigation files were opened by the Commission. An investigation was conducted into each complaint. The investigation consisted of review of the materials submitted by the Applicant, review of responses provided by the NRC and sharing those responses with the Applicant, meetings between the Applicant and the investigating officers, and interviews conducted by the investigating officers.
[10] Interviews were conducted with co-workers of the Applicant and with other employees of the NRC who had not worked with him. As well, members of an external selection board were interviewed. However, Dr. Vanier, the Director General of the Institute for National Measurement and Standards (INMS) of the NRC, the division where the Applicant worked when the 1991 complaint was filed, was not interviewed.
[11] On April 15, 1997, a summary of the material collected by the Commission was sent to the Applicant with the request that he respond by April 25, 1997. On April 28, 1997, the investigation reports were sent to the parties with the recommendation that the Commission dismiss the complaints. The parties were given the opportunity to make submissions concerning this recommendation.
[12] On April 30, 1997, the NRC submitted a brief reply, concurring with the recommendations of the investigator. On July 14, 1997, the Applicant submitted his reply consisting of a 731 page submission. At the same time, that is on July 14, 1997, the Applicant wrote to the Commission complaining of bias and erroneous findings of fact in the investigation reports.
[13] By further letter dated July 23, 1997, the Commission advised the Applicant that, as a result of his submissions on the investigation reports, there would be a further investigation of his complaints.
[14] By further correspondence dated July 31, 1997 and August 1, 1997, the Applicant wrote the Commission and said that he did not want further investigation but wished the Commission to proceed upon the basis of the investigation reports.
[15] On August 14, 1997, the Secretary General of the Commission wrote the Applicant to say that the investigation reports would be submitted to the Commission in its present form, together with submissions from the parties.
[16] On August 28, 1997, the NRC provided a further brief submission to the Commission about the investigation reports.
[17] On September 9, 1997, the Commission decided to conduct further investigation after its review of the submissions from the parties about the investigation reports. The Commission decided to seek clarification or reconfirmation from the Respondent about issues raised by the Applicant in his commentary.
[18] On September 16, 1997, the investigator wrote to the NRC setting out thirteen categories of questions on which further information was required. On November 13, 1997, a copy of the NRC's reply to this request for further information was disclosed to both the Applicant and the NRC. The Applicant was given the opportunity to make further comments on this material.
[19] On November 17, 1997, the NRC submitted their response to the Commission, concerning the results of the further investigation. On January 5, 1998, the Applicant provided a 57 page response to the results of the further investigation.
[20] On February 17, 1998, the Commission decided to dismiss the two complaints.
[21] In its decision, the Commission identified the materials it had relied on in reaching its decision as follows:
1. The complaint forms dated December 23, 1991 and July 14, 1992;
2. The investigation reports dated April 28, 1997;
3. The submissions of the Applicant dated July 14, 1997, January 5 and January 8, 1998;
4. The submissions of the NRC dated April 30, August 28 and November 17, 1997; and
5. A chronology of events.
[22] The letter issued by the Commission dated February 27, 1998 concerns both complaints filed by the Applicant. Each complaint is addressed independently. Each allegation of each complaint was addressed. The Commission found that the evidence presented did not support the alleged acts of discrimination.
ISSUES
[23] The Applicant raises several issues in this application. He alleges the following errors on the part of the Commission:
(a) That it breached the principles of procedural fairness;
(b) That it based its decision on an investigation which was neither neutral nor thorough;
(c) That it based its decision on an investigation which was conducted in bad faith and in an arbitrary manner;
(d) That it rendered a decision without regard to the evidence before it;
(e) That it improperly refused to exercise its discretion to appoint a tribunal.
[24] The Respondents raise a collateral issue, that is the introduction of new evidence by the Applicant upon this application.
APPLICANT'S SUBMISSIONS
[25] The Applicant argues that there was a significant breach of procedural fairness in the course of the investigation process leading to the Commission's decision to dismiss his complaints. In particular, he argues that he was denied a genuine opportunity to be heard, on the basis that the investigator prejudged the outcome and acted with a closed mind in response to his submissions.
[26] As illustrations of these defects, the Applicant first points to the exchange of correspondence between the NRC and the Commission, without notice to the Applicant. In that correspondence, the NRC objected to consideration by the Commission of the first four allegations in the 1991 complaint on the basis that these matters were the subject of an earlier complaint. It made submissions on this issue to the Commission and the Commission, in turn, obtained an internal legal opinion and decided not to pursue the first four allegations. The Applicant only became aware of the submissions made by the NRC during the course of the investigation into the 1991 complaint, that is in June 1993.
[27] Next, the Applicant says that he was not given the opportunity to rebut witness testimony prior to the investigator's decision to recommend dismissal of his two complaints. The Applicant says that notwithstanding a commitment by the Commission that he would be given an opportunity to provide submissions on the NRC's response to the "further investigation" questions, he was effectively deprived of the opportunity because at the time when he was prepared to make those submissions, the investigator indicated that the decision had already been made to confirm the recommendation that the Commission dismiss the complaint.
[28] Finally, the Applicant says that the investigation reports were drafted prior to the interviewing of any witnesses relevant to the complaint. The Applicant also says that the witness interviews were conducted more than five years after many of the events giving rise to the complaints, suggesting that they were unreliable.
[29] In the same vein, the Applicant submits that the investigator failed to conduct a neutral and thorough investigation. The Applicant claims that the investigator already had pre-determined the outcome of his complaints and conducted only a cursory investigation, without providing the Applicant a real opportunity to make his submissions and without fair consideration of the evidence in a holistic manner.
[30] The Applicant claims that the conclusion of the Commission that there was no evidence to support his allegations of discrimination was an erroneous finding of fact made without regard to the evidence before it. In particular, the Applicant refers to the evidence that he was treated in a different manner than the white scientists employed by the NCR, and suggests that this is evidence of discrimination which was ignored by the Commission.
[31] As well, the Applicant complains of the failure of the Commission to assess credibility. The Applicant argues, in this regard, that where there are conflicts in the evidence presented to an administrative tribunal such as the Commission, there is an obligation upon the Commission to conduct an oral hearing, or at the very least, further investigations to resolve those conflicts and the issue of credibility. The Applicant submits that the failure of the Commission to conduct such oral hearing or further investigation is evidence of a breach of procedural fairness.
[32] Finally, the Applicant argues that the failure of the Commission to take into account the Tribunal decision concerning his earlier complaints in 1991 and 1992, which decision was delivered on August 21, 1992, constitutes further evidence of a breach of procedural fairness towards the Applicant in relation to the complaints now in issue.
RESPONDENTS' SUBMISSIONS
[33] As noted above, the Respondents have raised an issue relating to the Applicant's introduction of new evidence in this application for judicial review.
[34] Secondly, the Respondents have synthesized the various issues raised by the Applicant into one broad issue, that is whether the Commission erred in law in dismissing the Applicant's complaints of discrimination.
[35] With respect to the preliminary issue raised by the Respondents, the argument is that upon an application for judicial review the reviewing court can consider only the evidence that was before the administrative decision-maker in the first place. In support of this proposition, the Respondents rely upon Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 281 at 286 (T.D.) and Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49 at 51 (T.D.).
[36] The Respondents say that Exhibits D, E, F, M, N, Q, and R and the paragraphs in which they are mentioned in the Affidavit of the Applicant sworn March 31, 1998, and the Supplementary Affidavit of the Applicant sworn November 30, 1998, together with all attached Exhibits, should not be taken into account upon consideration of the merits of this application.
[37] Next, the Respondents submit that this application can be dealt with upon the basis of the standard of review applicable to the discretionary decision of a Commission pursuant to section 44(3) of the Act, that is the exercise of its discretion in deciding whether or not to refer a complaint to a tribunal. In this regard, the Respondents rely upon Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.); affirmed, (1996), 205 N.R. 380 (C.A.) and Owen v. Canada (Attorney General) (1995), 105 F.T.R. 22 (T.D.).
[38] The Respondents proceed to argue that because the decision in question is a discretionary one, the Court has no authority to intervene simply because it might have exercised the discretion differently; see Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at 137.
[39] The Respondents deny that there was any breach of procedural fairness as alleged by the Applicant and in particular, note that the Applicant was given every opportunity at every stage of the investigation, to respond to the substance of the evidence collected including the investigation reports, the results of the further investigations and the various submissions made by the NRC. Additionally, the Respondents say that the Applicant engaged in extensive communications with the investigators during the course of the investigations, presenting his opinions and submissions.
[40] The Respondents submit that although the Applicant now alleges bias as an issue in this application, there are no arguments or evidence to support the claim. Furthermore, the test is not whether the Applicant had a reasonable apprehension of bias, but whether a reasonable person would hold such an apprehension under the prevailing circumstances.
[41] The Respondents argue that the investigators did not act with a closed mind nor prejudged the complaints. They further submit that the Applicant was given the opportunity to respond to the witness evidence prior to finalization of the investigation reports but chose not to do so.
[42] The Respondents deny that there was any prejudice to the Applicant arising from the disclosure by the Commission of the Applicant's submissions to the NRC. The Respondents point out that all submissions were exchanged between the parties and that the Applicant was in receipt of the arguments presented by the NRC.
[43] The Respondents deny that the draft investigation reports were completed prior to the conduct of any witness interviews. Furthermore, the Respondents invite the Court to draw an adverse inference from the failure of the Applicant to include the draft investigation reports in his Application Record, particularly since he now argues that the draft reports demonstrate pre-judgment of his complaints.
[44] The Respondents argue that the decision of the Commission against re-investigation of the previous complaints which had been considered by the Tribunal was well-founded.
[45] Turning now to the arguments raised by the Applicant as to the lack of neutral and thorough investigation, the Respondents again refer to the applicable standard of review. Specifically, they argue that judicial review is warranted only in the following circumstances:
(i) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to it through further submissions cannot compensate for it; or
(ii) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it. See Slattery v. Canada, supra, at 601 and Jennings v. Canada (Minister of National Health and Welfare) (1995), 97 F.T.R. 23 (T.D.); (1997), 211 N.R. 136 (C.A.); application for leave to appeal dismissed [1997] S.C.C.A. No. 319.
[46] In response to the arguments raised about erroneous findings of fact by the Commission, the Respondents state that there was ample documentation and evidence upon which the Commission could base its decision to dismiss the complaints.
[47] Next, with respect to the alleged relevance of the Tribunal decision, the Respondents argue that the two complaints in issue were properly investigated and that there was no mechanism by which these two complaints could be made part of the process under which the earlier complaints had been adjudicated.
[48] The Respondents also submit that the witnesses interviewed in relation to the present complaints were not the same witnesses who testified before the Tribunal on the other complaints. The Respondents note that the investigators did refer to the Tribunal decision to the extent that they did not want to re-investigate former complaints.
[49] The final argument made by the Respondents relates to the relief sought in the present case, particularly the request that this Court refer the Applicant's complaints to a tribunal. The Respondents note that the powers of the Court upon a judicial review are set out in section 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7. The Respondents submit that where findings of fact remain to be resolved, it is more appropriate for the matter to be referred back to the decision-maker for a new hearing rather than referred to a tribunal. In this regard, the Respondents rely on Turanskaya v. Canada (Minister of Citizenship and Immigration) (1997), 145 D.L.R. (4th) 259 at 262 (F.C.A.).
ANALYSIS
[50] The relevant provisions of the Act for this application are sections 2, 3(1), 7(b), 43(1), (2), 44(1), (2)(a), (b), 3(a)(i), (ii), (b)(i), (ii), (b)(i), (ii), 4(a), (b), as follows:
| 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. |
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de competence du Parliament du Canada, au Principe savant: le droit de thus Les insipidus, dans la measure compatible AEC leers devoirs et obligations au sain de la Société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée. |
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| 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. |
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience. |
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| 7. It is a discriminatory practice, directly or indirectly, (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. |
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_: b) de le défavoriser en cours d'emploi. |
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| 43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. (2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4). |
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l'enquêteur » , d'enquêter sur une plainte. |
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| (2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4).44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. (2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied (a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or (b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act, it shall refer the complainant to the appropriate authority. (3) 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 (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). (4) After receipt of a report referred to in subsection (1), the Commission (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and (b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3). |
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas_: a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale. (3) 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) rejette la plainte, si elle est convaincue_: (u'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). (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). (4) Après réception du rapport, la Commission_: a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3); b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). |
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[51] Although the Act also provides for the making of regulations to govern the investigatory stage, no such regulations have ever been passed by the Governor in Council and there is no legislative framework concerning the conduct of an investigation. The Act provides for conduct of an investigation and upon its completion, for the investigator's report to be reviewed by the Commission which then makes the decision to either dismiss the complaint or to refer it to a tribunal. This authority is conferred on the Commission by section 44(3)(b)(i).
[52] It is well established that a decision of the Commission not to appoint a tribunal to inquire into a complaint is an administrative decision. It will be subject to judicial review where it is shown that the Commission has committed an error of a jurisdictional or procedural nature or where its decision is otherwise founded upon an error of law.
[53] 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 made the following statement:
...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.[4]
[54] 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 as follows:
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).[5]
[55] Later in the same case, the Court spoke about the high degree of deference assigned to the Commission when it deals with an investigation report. At paragraph 38, 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.[6]
[56] In light of these authorities, it is apparent that a decision of the Commission to dismiss a complaint is an administrative, albeit discretionary, decision made within the limits of the Act. It was not intended that the Commission afford the broadest range of natural justice to complainants. Although the Applicant has characterized many of his arguments in terms of breaches of procedural fairness, that characterization is incorrect. In fact, the Applicant is complaining about a lack of recourse to the full range of natural justice, including an oral hearing prior to a decision by the Commission on the investigation reports and findings of credibility by the Commission in its consideration of those reports.
[57] It seems to me that the Applicant's arguments concerning alleged breaches of procedural fairness must fail in that regard. Specifically, the Applicant has not shown that he was deprived of an opportunity to respond to the evidence presented by the NRC. He was not entitled to an oral hearing before the Commission while that body was considering the investigation reports. The Commission is not required to embark upon an assessment of credibility when it reviews investigation reports.
[58] However, my findings concerning the failure of several arguments advanced by the Applicant do not inevitably lead to the conclusion that his present application is without merit. As quoted above, the Supreme Court of Canada in SEPQA, supra, distinguished between the unavailability of compliance with the "formal rules of natural justice" and compliance with rules of procedural fairness, which include the conduct of a neutral and thorough investigation.
[59] The requirements of neutrality and thoroughness have been considered by this Court in Slattery v. Canada, supra, Miller v. Canada (1996), 112 F.T.R. 195 and Charlebois v. Canada (Canadian Human Rights Commission), [1998] F.C.A. No. 1335 (QL) (F.C.T.D.).
[60] In Slattery, supra, Justice Radon commented on the factors to be considered in assessing the completeness of an investigation. At page 600, he 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.
[61] The learned judge went on to comment on the circumstances where a party could successfully challenge the sufficiency of a investigator's report at pages 600-601, as follows:
In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
[62] In Slattery, supra, the applicant alleged that some of the information required to support her complaint, which included a claim of systemic discrimination was difficult to obtain because it was protected by secrecy. She complained that the investigator failed to interview relevant witnesses. The Court reached the following conclusion at page 605:
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.
[63] In Miller v. Canada, supra, Justice Dubé stated the test with respect to the thoroughness of an investigation by the Commission as follows, at page 201:
The SEPQA decision has been followed and expanded upon by several Federal Court decisions. These decisions are to the effect that procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal. The investigations conducted by the investigator prior to the decision must satisfy at least two conditions: neutrality and thoroughness. In other words, the investigation must be conducted in a manner which cannot be characterized as biased or unfair and the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response.
[64] The principles enunciated in Slattery, supra, and Miller, supra, were followed by the Court in Charlebois v. Canada, supra. In that case, there was a question about the motivation of OC Transpo, the employer, in its termination of Mr. Charlebois. The only evidence of the employer's reasons for the complainant's dismissal was found in the letter of termination and that letter itself gave rise to a question whether the complainant's legitimate disability resulting in sick leave was improperly used against him. The investigator into the complaint wrote to the employer and posed certain questions. No reply was received from the employer and the Commission proceeded with its investigation. Ultimately, it dismissed the complaint.
[65] The Court found that the decision to dismiss the complaint was erroneously made. At paragraph 38 the Court said as follows:
Obviously, clarification is required. In fact, the Commission initially asked for an answer to critical questions, but never got a reply. Nevertheless, the CHRC went ahead and concluded its investigation. The fact that no answer was given does not make the questions any less relevant. In my opinion, without the answers to the questions posed, the investigation of this complaint was not thorough. Accordingly, I find that the CHRC's decision to dismiss this complaint is made in reviewable error.
[66] It is clear, on the record, that Dr. Vanier was not interviewed. It is equally clear, in my opinion, that he was a critical witness if the investigation were to be thorough, in the sense of fairly examining both the Applicant's allegations and the NRC's responses to same. The omission of an interview with Dr. Vanier, an important party to the Applicant's employment situation, was of such a fundamental nature that its absence could not be relieved simply by drawing it to the attention of the decision-maker, that is the Commission. That is one of the tests for assessing the thoroughness of an investigation, according to Slattery, supra. In my view, all that would be accomplished in the case by such notification to the decision-maker is the raising of an inquiry as to why Dr. Vanier was not interviewed.
[67] This situation is somewhat analogous to the one considered by Justice McKeown in Singh v. Canada (Attorney General), [2001] FCT 198, [2001] F.C.J. No. 367 (QL). In that case, the complainant filed a complaint alleging discrimination against Human Resources Development Canada for refusing to continue her employment. She based her complaint on the grounds of ethnic or national origin and age. Among other things, the complainant alleged that, following her departure from HRDC and the filing of her claim, the employer created various excuses to explain the non-renewal of her contract. The investigation report failed to deal with the complainant's theory in this regard. The Court made the following statement about this omission at paragraph 23:
This omission is fundamental because any investigation of discrimination must, at minimum, ascertain who the decision-maker is and contain some inquiry into why that decision-maker decided the way they did. In this case, that would mean that the investigator should have investigated who actually decided not to renew the applicant's contract and why. The decision-maker should have been questioned regarding the applicant's allegations of discrimination and her theory that the Department had constructed excuses after the fact to cover up why her contract had not been renewed.
[68] Although the Applicant in this case has not made the same allegations against his employer as occurred in Singh, supra, the fact remains that in both the instant case and Singh, supra, a central figure in the respective applicants' employment relationships was not interviewed.
[69] Here Dr. Vanier was the Director General and the Applicant was subject to his control. The investigation reports dated April 28, 1997 make many references to Dr. Vanier and his significance in the Applicant's employment environment can be inferred. In my opinion, the failure to interview him demonstrates a serious deficiency in the investigative process and the preparation of the reports upon which the Commission relied in making its decision to dismiss the complaints.
[70] In my opinion, not only does the failure to interview this witness constitute a serious deficiency in the investigation process but it is also a serious deficiency in the investigation reports which the Commission relied on in deciding to dismiss the Applicant's complaints. If the reports were defective, it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion.
[71] The broad discretion vested in the Commission in respect of deciding whether to dismiss a complaint or refer it to adjudication before a tribunal does not allow it, in my opinion, to short-circuit the investigative process and ignore a necessary witness. Indeed, the failure to interview a person who is vitally connected to the alleged discriminatory action may lead to the inference of pre-judgment by the investigator.
[72] I find that the Commission failed in its obligation to conduct a thorough investigation when it failed to interview Dr. Vanier.
[73] Having found that the Commission breached its duty of procedural fairness by not providing a thorough and neutral investigation, it is unnecessary for me to comment on whether the Commission erred in law in making a finding that there was insufficient evidence to justify taking the complaints to the tribunal stage (in that regard see Slattery, supra at page 606) or on any other submissions made by the Applicant.
[74] Accordingly, this application for judicial review is allowed. However, the Applicant's request that his complaints be referred directly to a tribunal is dismissed. There is no jurisdiction in the Court to grant such relief.
[75] The matter is returned to the Canadian Human Rights Commission to be dealt with in a manner not inconsistent with these reasons.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
June 21, 2001
[1] Applicant's Application Record, pages 22-23
[2] Applicant's Application Record, pages 25-27
[3] Applicant's Application Record, pages 236-238
[4] SEPQA, supra, at page 899
[5] Bell Canada, supra, at page 136
[6] Bell Canada, supra, page 137