Federal Court Decisions

Date: 20020410

Docket: T-2223-99

Neutral citation: 2002 FCT 405

Ottawa, Ontario, April 10, 2002

Present:           The Honourable Madam Justice Danièle Tremblay-Lamer

BETWEEN:

                                                         WILLIAM LLOYD HAMILTON

                                                                                                                                                    Applicant

                                                                            - and -

                                             DRIFTPILE FIRST NATION BAND COUNCIL

                                                                                                                                               Respondent

                                                  REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of the Canadian Human Rights Commission ("the Commission") pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA) wherein the Commission dismissed William Lloyd Hamilton's ("the applicant") complaint of discrimination against the Driftpile First Nation Band Council ("the respondent").

[2]                 In October 1995, the applicant submitted an application for three advertised positions with the Driftpile School Division: Director of Education, Principal, and Assistant Principal. He received no response to his application and, despite repeated requests, the respondent refused to explain his lack of success in the competition.

[3]                 On December 16, 1995, the applicant filed a complaint with the Alberta Human Rights Commission alleging that the respondent had discriminated against him on the basis of age and ethnic origin (Metis). As the Alberta Human Rights Commission did not have jurisdiction to deal with this complaint, which came under federal jurisdiction, the file was transferred to the Canadian Human Rights Commission and a formal complaint was filed on June 25, 1996.

[4]                 The Commission appointed Mr. Bob Fagan to investigate the applicant's complaint. By letter dated October 1, 1996, he advised the applicant of the respondent's position that it had not discriminated against him.

[5]                 The applicant responded to this letter on October 8, 1996, attempting to refute the position taken by the respondent.

[6]                 By letter dated November 4, 1996, the investigator provided the applicant with information on the qualifications and age of the individuals selected for the positions at issue.

[7]                 In response to this letter, the applicant, in a letter dated November 6, 1996, purported to make certain changes to the scope of his complaints.

[8]                 On May 5, 1998, the applicant wrote the investigator a letter complaining of the delay in resolving his complaint. Mr. Fagan responded on May 11, 1998, explaining that he had difficulty gathering all of the evidence relevant to his complaint.

[9]                 By letter dated August 26, 1999, the investigator provided the applicant with a copy of his investigation report dated July 30, 1999. The applicant was given thirty days to comment on the report. He did so by letter dated August 31, 1999.

[10]            By letter dated November 24, 1999, the applicant was notified that his complaint had been dismissed.

[11]            The applicant filed the present application for judicial review on December 17, 1999.

RELEVANT STATUTORY PROVISIONS

[12]            Section 44 of the CHRA reads as follows:

Report 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. Action on receipt of report (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. Idem (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). Notice (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).		Rapport 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. Suite à donner au rapport (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. Idem (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). Avis (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

[13]            A decision of the Commission to dismiss a complaint under subparagraph 44(3)(b)(i) of the CHRA is a question of fact and deserves a very high level of deference by the Court. The standard of review in such a case is that of reasonableness, as stated by the Court of Appeal in Bradley v. Attorney General of Canada (1999), 238 N.R. 76 (F.C.A.) and most recently reaffirmed in Gee v. Canada (Minister of National Revenue - M.N.R., [2002] F.C.J. No. 12 (C.A.)).

[14]            It is settled law that the formal rules of natural justice do not apply to a purely administrative decision such as the one in the case at bar. However, the Commission must still adhere to the principles of procedural fairness (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 ("SEPQA")).

[15]            In Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 at pp. 597-98("Slattery"), Aff'd (1996), 205 N.R. 383 (F.C.A.), Nadon J. reviewed the content of procedural fairness owed to a complainant, as identified by Sopinka J. in SEPQA, where the Commission decides to dismiss a complaint:

Sopinka J. held that in order to satisfy the duty of fairness, the CHRC had to inform the parties of the substance of the evidence obtained by the investigator, and which was put before the CHRC. As well, the CHRC was required to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. In making its decision to dismiss the complaint without a tribunal hearing [at page 902]:

The [CHRC] was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information.

[16]            In Slattery, supra at p. 598, Nadon J. also mentioned that the investigation conducted by the Commission to determine whether a tribunal should be appointed must satisfy two conditions: neutrality and thoroughness.

[17]            With regards to the obligation to give reasons for a decision rendered under subparagraph 44(3)(b)(i), the jurisprudence has established that the Commission is not required to give formal reasons.

[18]            This was reaffirmed in Brochu v. Bank of Montreal (1999), 251 N.R. 207 (F.C.A.), and more recently in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at para. 30, where the Court notes that "[...] the reasons for the Commission's decision may be found in the very extensive report of the investigator which the Commission adopted and which was in the hands of Bell".

[19]            I will now consider the applicant's allegations in light of these principles:

                      i)          Reasons

[20]            Mr. Hamilton was provided with a copy of the investigative report, as well as a letter explaining why the Commission had decided to dismiss his complaint. These documents gave the applicant a clear explanation why the evidence did not support a finding that he had been discriminated in the competition. Thus, it cannot be said that the Commission failed to provide adequate reasons for its decision.

           ii)         Allegation of bias

[21]            The applicant's allegation that the investigator eliminated factual documentary evidence is unsubstantiated. It appears that Mr. Hamilton has misinterpreted Mr. Fagan's comments at paragraph 11 of the investigation report where he states that "[t]here is no documentary evidence related to the competition or the screening process." This statement does not stand for the proposition that the investigator eliminated the applicant's evidence. I agree with the respondent that "it is clear from the context of the remark that the investigator was referring to the fact that the respondent had retained no documentary evidence relating to the competition or screening process."

[22]            Given the facts in this case, i.e.,

(1) age and ethnic origin had not disqualified other candidates; (2) the applicant's qualifications were not superior to those of the persons hired; (3) the applicant was not actively employed in the educational field for about four years when he applied for the positions;

there was no evidence to support a finding of discrimination and it cannot be said that the investigator was bias because he did not accept the applicant's evidence.

                      iii)         Investigative thoroughness

[23]            Again, the applicant seems to have misunderstood what the investigator meant by "no documentary evidence." Notwithstanding the unavailability of some documentary evidence (for instance, the short-listed candidates and applications submitted in the 1995 competition), available information pertinent to the applicant's claim was obtained. The age and ethnic heritage of the employees hired were ascertained, the individual who did the screening of the applicants was interviewed, and the applicant's concerns were before the Commission. I find no basis to conclude that these concerns were ignored or given insufficient consideration. I am satisfied that the investigation was sufficiently thorough and that there is no ground for this Court to intervene on that basis.

                      iv)        Delay

[24]            In a recent decision, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 122, the Supreme Court of Canada indicated that "[t]he determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case." Furthermore, this determination "...is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay" (Blencoe, Ibid.).

[25]            Applying those factors to the facts in the case at bar, I do not find that the delay was so inordinate as to amount to an abuse of process. Although it is unfortunate that it took the Commission more than three years to dismiss the applicant's complaint, the applicant's ability to prove his case did not deteriorate over time and he has failed to demonstrate that he has suffered a significant prejudice. Considering the contextual factors in the present case, I am not satisfied that the delay "[...] would offend the community's sense of decency and fairness" (Blencoe, supra at para. 132).

[26]            In conclusion, the rules of procedural fairness require that a complainant know the substance of the case against him or her. The opposing party's comments must be disclosed to the complainant, and he or she must be given an opportunity to respond. In the case at bar, the applicant was kept informed of the ongoing investigation and given many opportunities to respond, as can be seen from the correspondence between him and the investigator.

[27]            The applicant has also raised a constitutional question. In light of the fact that his motion record was rejected by Prothonotary Aronovitch in an Order dated February 8, 2002 for being incomprehensible, the matter is not properly before the Court and I will not address the argument.

[28]            For these reasons, I have come to the conclusion that the Commission's decision was not made in a perverse or capricious manner or without regard to the material before it. The application for judicial review is dismissed.

[29]            The respondent has requested costs for this judicial review in light of the number of hours spent in preparation of his material in response to the numerous issues and large volume of material filed by the applicant, incapable of having any relevance to this proceeding. Pursuant to section 400 of the Federal Court Rules, 1998, SOR/98-106, I have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. I have not been persuaded that the facts of this case warrant any award of costs.

                                                O R D E R

           THIS COURT ORDERS THAT:

[30]            The application for judicial review is dismissed without costs.

                                                                      "Danièle Tremblay-Lamer"

JUDGE