Ottawa, Ontario, this 8th day of August, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
Applicant
DAN DURRER
Respondent
[1] The Respondent, Mr. Dan Durrer, was an employee of the Applicant, Canadian Imperial Bank of Commerce ("CIBC"), from 1971 until his termination on April 12, 2002. On July 23, 2002, Mr. Durrer filed a complaint with the Canadian Human Rights Commission (the "Commission") alleging that he had been discriminated against in his employment on the basis of his age.
[2] The Commission appointed an Investigator to investigate the complaint. On April 22, 2004, the Investigator filed his report recommending, "pursuant to section 44(3)(b) of the Canadian
Human Rights Act, that the Commission dismiss the complaint." Both Mr. Durrer and the CIBC filed responses to the Report and served copies of these responses on each other. Each party exercised its right to a final right of reply; these replies were not provided to the opposing party and there were no further submissions. In a letter dated July 29, 2004, the Commission stated that it had decided:
. . . pursuant to section 47 of the Canadian Human Rights Act, to appoint a conciliator to attempt to bring about a settlement of the complaint and pursuant to paragraph 44(3)(a) of the Act, to request that the Chairperson of the Canadian Human Rights Tribunal institute an inquiry into the complaint as it is satisfied that further inquiry is warranted into whether the respondent discriminated against the complainant by terminating his employment on the ground of age.
[3] The CIBC seeks judicial review of the decision pursuant to s. 44(3)(a) of the Canadian Human Rights Act, to request that the Canadian Human Rights Tribunal institute an inquiry into the complaint.
Issues
[4] The Applicant identifies the following issues:
- Did the Commission's failure to provide the CIBC with written reasons violate its right to procedural fairness?
- Did the Commission commit a reviewable error in not determining that the complaint should be dismissed, particularly in light of the Investigator's recommendation to dismiss the complaint?
- If the CIBC is successful on either issue, what is the appropriate remedy?
Legislative Framework
[5] Mr. Durrer filed his complaint pursuant to s. 40(1) of the Canadian Human Rights Act which provides that "any individual ... having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission". The Commission designated an investigator to investigate Mr. Durrer's complaint, as provided for in s. 43(1). Under s. 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."
[6] Once parties are provided with an opportunity to respond to the Investigator's report, s. 44(3) and s. 44(4) allow the Commission to take one of the following two routes:
| 44(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). |
|
44( 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: (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) 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). |
|
(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). |
Analysis
Standard of Review
[7] Both parties initially submitted that the appropriate standard of review of the Commission's decision should be reasonableness simpliciter. This conclusion was apparently based on two recent decisions of this Court.
[8] In Gardner v. Canada (Attorney General), [2004] F.C.J. No. 616, at paras. 17 & 18, Justice Gibson accepted the analysis in MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 where, after a pragmatic and functional analysis of the relevant statutory provision, Justice O'Keefe concluded that a standard of reasonableness should be applied.
[9] In Gee v. Canada (Minister of National Revenue), [2002], 284 N.R. 321, at para. 13, the Federal Court of Appeal, without undertaking a pragmatic and functional analysis, concluded that "the standard of review for the exercise of the discretion provided in subparagraph 44(3)(b)(i) to dismiss a complaint is that of reasonableness."
[10] There is, however, a difference between the provision of the statute at issue in both of those cases and the one before me. In those cases, the Court was dealing with the standard of review applicable to a Commission decision to dismiss a complaint made under s. 44(3)(b) rather than a decision to refer a complaint to an inquiry made pursuant to s. 44(3)(a). Neither party referred me to jurisprudence where a court undertook a pragmatic and functional analysis of the decision made under this provision. Accordingly, as taught by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 21, "[i]n every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach". Hence it is appropriate to carry out an analysis. At the conclusion of the hearing, I requested that parties submit further written submissions on the issue of the appropriate standard of review. I have reviewed those submissions.
[11] The standard of review is determined by considering four factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question as being one of law, fact, or mixed law and fact (Dr. Q., at para. 26). I will consider each of these in turn.
(i) privative clause
[12] There is no privative clause in the Canadian Human Rights Act. While the presence of a privative clause may indicate a higher level of deference, its lack is "neutral", meaning that no more or less deference is due to the decision maker (Dr. Q., para. 27).
(ii) expertise of the Commission
[13] No one questions the expertise of the Commission. The Supreme Court of Canada in Bell Canada v. Canadian Telephone Employees Assn., [2003] 1 S.C.R. 884, described the Commission's expertise as follows at para. 41:
The Commission is responsible, among other things, for maintaining close liaisons with similar bodies in the provinces, for considering recommendations from public interest groups and any other bodies, and for developing programs of public education (s. 27(1)). These collaborative and educational responsibilities afford it extensive awareness of the needs of the public, and extensive knowledge of developments in anti-discrimination law at the federal and provincial levels...
[14] This expertise warrants greater deference. As acknowledged in MacLean, the Commission's greater ease than the Court's in fact-finding and screening complaints favours a greater deference on judicial review.
(iii) purpose of the legislation
[15] Analysis of this factor requires that I look at both the general purpose of the statutory scheme and the particular provision to attempt to discern the general intent of the legislature (Dr. Q., at para. 30).
[16] The Canadian Human Rights Act, has been described as remedial, quasi-constitutional legislation. It establishes the Commission and the Canadian Human Rights Tribunal and procedures that ensure that complaints of discrimination are considered fairly. It is self-evident that all parties - both complainants and respondents - to any complaint are accorded fairness and due process. Reviewed on a broad level, I would conclude that this statute requires the Commission and the Tribunal to be concerned with the protection of individual rights. In assigning the Commission its responsibilities, Parliament gave the Commission a great degree of discretion to investigate and consider complaints. This suggests, overall, a high degree of deference.
[17] Of significance is that, under the provisions of the statute in question, while the Commission may conclude that a complaint is to be dismissed, it cannot make a final determination that a complaint has merit. That is the role of the Canadian Human Rights Tribunal.
[18] Thus, I come to the purpose of the provision in question. The decision in question, under s. 44(3)(a), to request the Chairperson of the Canadian Human Rights Tribunal to institute an inquiry, is not dispositive of the matter. The dispute between the CIBC and Mr. Durrer was not resolved by the Commission as a result of this decision. This, in my view, is a critical difference between the decision making function in s. 44(3)(b) where a dismissal of the complaint is (subject to judicial review) a final determination of the complainant's rights under the Canadian Human Rights Act. In contrast, the decision to refer the matter to an inquiry does not end the rights of the parties. The rights of the parties will only be determined after an inquiry by the Canadian Human Rights Tribunal where a full review of all the facts and law related to the complaint will be carried out.
[19] In other words, the function of the Commission under this particular provision is not adjudicative of the parties' rights. This favours a great degree of deference.
(iv) Nature of the Question
[20] The nature of the question is the last of the factors to be considered. The question of whether the facts warrant an inquiry into the complaint is, in my view, one of pure fact. Indeed, the Commission is not, at this stage, bringing a final level of judgment to this fact-finding. It is simply assessing whether facts exist that warrant further investigation.
Summary
[21] Having examined and weighed all of these factors, I conclude that the decision of the Commission made under s. 44(3)(a) is one that attracts the highest standard of review - patent unreasonableness. With this standard of review, as stated in The Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247, at para. 52, I should intervene only where the decision of the Commission is so patently unreasonable that "no amount of curial deference can justify letting it stand".
Issue #1: Did the Commission err in referring this matter to the Tribunal?
[22] The CIBC submits that there is no rational basis for the Commission not to dismiss the complaint (Gee, at para. 15). The CIBC argues that there was no evidence to support a claim of age discrimination. In addition, the other complaint that Mr. Durrer puts forward of his years of pensionable service is, in the CIBC's view, simply not a ground of discrimination under the Canadian Human Rights Act.
[23] From these submissions, it is clear that the CIBC does not believe that there is an arguable case that can establish discrimination. But, disagreement with the conclusion reached by the Commission is not sufficient reason to overturn the decision. It is up to the Commission to weigh the evidence before it. On either a standard of patent unreasonableness or the less deferential standard of reasonableness simpliciter, it is not up to the court to re-weigh the evidence.
[24] The Commission had before it the Investigator's report and subsequently filed submissions of the CIBC and Mr. Durrer. A review of those documents reveals that there are unanswered questions. For example:
- each party has submitted different calculations of what the complainant's pension would be at various ages - it is unclear which is correct;
- it is unclear whether the policy regarding temporary work changed as alleged by the complainant or did not change as alleged by CIBC; and
- there is contradictory evidence regarding whether the complainant had the possibility of further temporary jobs.
[25] In my view, these questions could be seen as relevant to the issue of the alleged age discrimination. Further, while the CIBC sees no link between the claim of age discrimination and lower pension benefits, Mr. Durrer submits that the two are inextricably linked and has provided some rationale for that view. At the inquiry stage, the factual differences and the differing interpretations of how the pension comes into play can be explored with much greater procedural protection for both parties. That is not to say that simply disagreeing with the employer should be reason to refer the matter to an inquiry. But, where there is a legitimate, residual disagreement as to material and relevant facts that could be resolved with further investigation, it is not unreasonable to refer the dispute to a further process. Thus, the decision to refer the matter to an inquiry is not entirely unsupported by the evidence. The decision was not patently unreasonable.
Issue #2: Did the failure to provide reasons amount to a breach of the rules of natural justice?
[26] As noted above, the Commission provided little in the way of reasons for its decision. The Commission did, however, set out sufficient detail to demonstrate that it was aware of the correct provision under which it was acting. The question becomes whether this was, in the circumstances, sufficient.
[27] The CIBC submits that the Commission's failure to provide reasons, especially where the recommendation in the Investigator's report was not followed and even though they were requested by the Applicant to supply reasons, amounts to a breach of the principles of procedural fairness. The Applicant relies on Baker v. Canada, [1999] 2 S.C.R. 817, at para. 43 to say that, where the decision will have an important effect and where there is a statutory right of appeal, this militates strongly towards having reasons provided. The CIBC points out that Baker has been applied by this Court in cases where the Commission does not follow the recommendation of the investigator (Kidd v. Greater Toronto Airports Authority, 2004 F.C. 703; Gardner, supra).
[28] The Supreme Court in Baker stated that the content of a duty of fairness is flexible and variable and must be decided in each case. With respect to the requirement to provide reasons, Justice L'Heureux-Dubé, at para. 43, acknowledged that "in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision". The Honourable Justice identified two situations where reasons would be called for: where the decision has important significance for the individual; and when there is a statutory right of appeal. In conclusion on the need for reasons, she stated that reasons were required in the case of a decision that would result in a deportation of the particular individual on the basis that "It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached".
[29] The situation facing the CIBC cannot be compared to that which was facing Ms. Baker. The significant factors related to the Commission's decision and how they affect the CIBC are as follows:
- the nature of the decision here is a "screening process" to determine whether further inquiry is required and not a final determination of the rights of either of the affected parties;
- the statutory scheme does not require that reasons be given for this decision;
- the statute also provides, at s. 50(1), that the CIBC will have ample opportunity to be present and make representations at the final inquiry;
- while the decision is not convenient for the CIBC and will require the organization to present its case to the Canadian Human Rights Tribunal, it will not affect the CIBC's freedom or ability to carry on its business; it is not "critical to their future"; and
- the decision was reached after a consideration of the Investigator's report and further submission by the parties; there was no breach of procedural fairness in how the decision was reached.
[30] The case at bar differs from both Kidd and Gardner in that, in those cases, the Commission made a decision to dismiss the complaint. As noted earlier in these reasons, those decisions to dismiss a complaint or not proceed further were determinative of the rights of the complainant.
[31] The CIBC argues that, if the Commission does not follow an Investigator's recommendation, the duty to provide reasons is heightened. Where the decision is to refer the dispute for resolution, and not to dispose of the complaint, I do not agree. The Investigator's report plays a valuable role in the Commission's functioning but does not change the Commission's obligation to reach its own conclusion on the basis of all the evidence before it. The limited importance of the Investigator's report is also indicated by the provisions of s. 49(1) of the Act which permits the Commission to request a tribunal review without ever ordering an investigation.
[32] I would comment, however, that better reasons would have assisted all parties and, in particular, the CIBC in understanding what evidence caused the Commission to reject the Investigator's recommendation. The need for this application for judicial review may have been obviated. The lack of reasons may deter employers, in similar situations, from participating fully at the investigative stage. Nevertheless, this is not a factor which causes me to conclude that more complete reasons are required where the Investigator's recommendation to dismiss a complaint is not followed.
[33] In my view, there is no duty on the Commission, in exercising its discretion under s. 44(3)(a), to provide reasons beyond what was provided in this case. Any failure to provide further reasons was not a breach of procedural fairness.
Conclusion
[34] In conclusion, I am not persuaded that the decision of the Commission should be overturned. The application will be dismissed with costs to Mr. Durrer.
ORDER
This Court orders that the application is dismissed with costs to the Respondent.
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1571-04
STYLE OF CAUSE: CANADIAN IMPERIAL BANK OF COMMERCE v.
DAN DURRER
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 21, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: August 8, 2005
APPEARANCES BY:
Mr. Norman Grosman & Mark Fletcher FOR APPLICANT
Mr. David Morin FOR RESPONDENT
SOLICITORS OF RECORD:
Grosman, Grosman and Gale FOR APPLICANT
Toronto, Ontario
Will Barristers FOR RESPONDENT
Huntsville, Ontario