Federal Court Decisions

     T-702-96

BETWEEN:

     JOHN RAE HARDMAN

     Applicant

     - and -

     ATOMIC ENERGY OF CANADA LIMITED

     Respondent

     - and -

     CANADIAN HUMAN RIGHTS COMMISSION

     Intervenor

     REASONS FOR ORDER

RICHARD J.:

    

Nature of the Proceedings

     The applicant has made an application for judicial review under s. 18.1 of the Federal Court Act, requesting:

    

(a)      an order quashing, declaring invalid or unlawful, or setting aside the Canadian Human Rights Commission (CHRC) decision as set out in the CHRC letter dated February 19, 1996, and which was received by the applicant on February 26, 1996. Said letter was signed by Lucie Veillette on behalf of the CHRC and is attached to the affidavit accompanying the notice of motion;

(b)      such other orders as may appear just to this Honourable Court.

     The application is based on the following grounds:

(a)      The CHRC erred in its decision not to pursue the applicant's complaint and that discrimination by AECL on the grounds of disability did in fact occur.

(b)      Errors adverse to the applicant's complaint and comments prejudicial to the applicant's position were made in the CHRC staff documentation sent to the applicant in the CHRC letter dated October 26, 1995 and signed by Mr. Mervyn Witter, Director, Ontario Region. The material attached thereto was represented as material to be presented to the CHRC. Written notification by the applicant to the CHRC in this regard was made in three letters to Mr. Witter dated on or about November 2, 16 and 28, 1996. The CHRC staff refused to amend their comments in their submittal to the CHRC.

     The application was supported by the applicant's affidavit.

     In an order dated April 2, 1997, the Commission was added as an intervenor on terms that it be restricted to oral submissions as to compliance, or otherwise, by the Commission with subsection 42(1) of the Canadian Human Rights Act. The style of cause is amended accordingly.

Background

     The applicant was employeed by AECL for over 22 years in a senior position. In 1992, he sought help for stress related problems. On or about January 13, 1994, AECL placed him on sick leave with full pay. On or about June 30, 1994 he was advised that his sick leave credits had expired and he was placed on intermediate term disability. On July 14, 1994, he was called into his supervisor's office and informed that his employment had been terminated by reason of restructuring. The letter delivered to him reads in part as follows:

As discussed, a restructuring of AECL is essential to the Company's future success. AECL must change quickly and dramatically to survive in a highly competitive business environment. In addition, at AECL CANDU, our business circumstances further support the need to reevaluate and consolidate the management structure and the senior technical expertise.

As a result of this review, and in consideration of your particular situation, I regret to inform you that there is no longer a suitable position available for you in AECL. We have reached this conclusion after a careful examination and review of your circumstances and the positions available. Therefore, employment with AECL CANDU will terminate effective at the close of business today, 1994 July 14.

He received a termination package from AECL. On October 5, 1994, he initiated a wrongful dismissal complaint against AECL with Labour Canada. By letter dated October 2, 1995, he was advised by Labour Canada that its investigation of his complaint was concluded and his file closed when Mutual Life approved the applicant's long term disability claim benefits under the Employee Insurance Plan.

     On July 4, 1995, the applicant complained in writing to the CHRC that he had been discriminated against on the basis of a mental illness disability. The Human Rights Officer found that he had been terminated due to departmental restructuring/downsizing. The officer recommended, pursuant to section 41(d) of the Act, that the Commission resolve not to deal with the complaint because it was without purpose and that, in all the circumstances, no further proceedings were warranted. The applicant was informed in writing of this recommendation and the officer's report prior to investigation, prepared by the officer for the Commission, was made available to the applicant and he was afforded an opportunity to make comments in writing.

Record

     The applicant, who represented himself, filed a record which included a chronology of the events leading to his application and a copy of the full record which was before the Commission when it arrived at its decision.

     The respondent produced an affidavit which sought to further explain the decision it took to terminate the employment of the applicant. Since this information was not placed before the Commission prior to its decision, I ruled that it was not part of the record on this judicial review. ¹

Issues

     The applicant's attacks on the decision of the Commission not to proceed with his complaint of discrimination can be grouped under three headings:

     1) Denial of procedural fairness;

     2) Failure to comply with ss. 42(1) of the Act in not giving reasons; and,

     3) Failure to conduct a thorough and neutral investigation.

Analysis

1) Procedural fairness

     This Court has held² that the Commission owes a duty of fairness to those potentially affected by its decision. The process followed by the investigator and the Commission respected the rules of procedural fairness. The Commission received the complaint and screened it for proper disposition. The applicant and the respondent received a copy of the officer's recommendation and s. 41 analysis and both were afforded the opportunity to comment thereon. The applicant availed himself of this opportunity. The Commission arrived at its decision on the basis of the record before it.

2) Compliance with ss. 42(1) of the Act

     Subsection 42(1) of the Act imposes a statutory obligation on the Commission to set out the reason for refusing to deal with a complaint. It reads as follows:

Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reasons for its decision.

     The Commission's decision dated February 19, 1996 refers to section 41 of the Act. The applicant was made aware earlier³ that the Commission was proceeding under paragraph (d) of section 41, which provides that the Commission may decide not to deal with a complaint if it appears to the Commission that the complaint is trivial, frivolous, vexatious or made in bad faith.

     In circumstances, such as here, where the Commission has accepted the recommendation of the officer, it is appropriate that the officer's analysis and recommendation, both of which were disclosed to the applicant, be considered in determining whether the Commission has complied with ss. 42(1) of the Act. As stated in Allen et al. v. Canadian Human Rights Commission et al.⁴ even if the Commission did not elaborate in detail on its rationale for arriving at this conclusion, the applicant was nevertheless fully informed of the actual reason for the decision made by the Commission.

     In these circumstances, I am satisfied that the Commission has complied with ss. 42(1).

3) Adequacy of the investigation

     The applicant takes issue with the Commission's decision alleging that it is not correct and not supported by the evidence. The applicant also notes that the respondent employer was not interviewed and chose not to comment on the officer's recommendation. However, the officer and the Commission did have a copy of the termination letter delivered to the applicant which the applicant himself produced, and which stated that the reason for his termination was downsizing. The officer and the Commission also considered all the material and information submitted by the applicant. The Commission examined all the circumstances surrounding the claim and reached a decision which was open to it.

Conclusion

     In these circumstances, the application for judicial review is dismissed.

     __________________________

     Judge

Ottawa, Ontario

April 21, 1997

__________________

¹      None of the information in the affidavit was directed at a claim of breach of natural justice or procedural fairness.

²      Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1994), 71 F.T.R. 254.

³      In a letter from the Commission to the applicant dated October 26, 1995 and the attached recommendation

⁴      (1992), 59 F.T.R. 155 at 159.