Date: 20050127
Docket: T-90-04
BETWEEN:
JESSIE LUSINA
Applicant
and
BELL CANADA
Respondent
[1] At 53 years of age, the applicant, Jessie Lusina, had given no thought to retirement. On March 30, 2001, after 31½ years of employment with the respondent, Bell Canada (Bell), her employment was terminated. She was offered an "enhanced" pension package and was escorted from the building. She had one day within which to accept the package. She turned it down.
[2] It is common ground that the termination was without cause. Bell maintains that Ms. Lusina's position had been eliminated. Ms. Lusina claims that it was due to discrimination based on age and a perceived disability - health as a result of a previous heart attack - in contravention of sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). By correspondence dated December 15, 2003, Ms. Lusina and Bell were informed that, on December 1, 2003, the Canadian Human Rights Commission (CHRC) dismissed Ms. Lusina's complaint of discrimination. Ms. Lusina seeks judicial review and asks that I quash the decision and order the CHRC to investigate her complaint.
BACKGROUND
[3] Ms. Lusina retained counsel in relation to the termination of her employment. In May of 2001, negotiations regarding an acceptable severance package began. Ms. Lusina's counsel suggested that 18 - 24 months salary, in lieu of notice, was reasonable. On August 11, 2001, Ms. Lusina wrote to the CHRC alleging discriminatory conduct by Bell. She informed her lawyer that she had done so. On October 19th, she requested that Bell deal directly with her rather than through her counsel. The negotiations continued. On November 26th, Bell presented a "final" offer. On November 29th, Ms. Lusina contacted the CHRC about amending her complaint. She spoke with CHRC counsel, Céline Harrington, and in the course of their discussion regarding potential amendments to her complaint, Ms. Lusina informed Ms. Harrington about the settlement offer and inquired as to whether it could affect her human rights complaint. Ms. Harrington advised that, normally, releases are attached to such packages and Bell would "likely object based on that release". Ms. Harrington also stated that while it is generally the view that one cannot sign away human rights, she could not guarantee that the settlement would not have an impact.
[4] On December 6th, Ms. Lusina accepted Bell's offer subject to clarification on a number of points (none of which are relevant to this matter). It appears that, while dealing directly with Bell, she continued to consult counsel. On December 19th, Ms. Lusina signed her human rights complaint. On December 21st, she and Bell arrived at a settlement, the terms of which were incorporated into an "Acknowledgement, Release and Discharge" (the agreement), subject to final approval by Human Resources (Bell) and Ms. Lusina obtaining legal advice (Bell agreed to pay her legal fees). It seems that counsel who provided legal advice in relation to the agreement was not the same counsel retained by Ms. Lusina in May.
[5] On January 8, 2002, Ms. Lusina contacted the CHRC and advised that her lawyer was satisfied with Bell's final offer and had recommended that she withdraw her complaint before it was mailed to Bell. She again spoke with Ms. Harrington and Ms. Lusina's file was pulled. Ms. Harrington informed Ms. Lusina that she [Ms. Harrington] did not know whether withdrawal of the complaint required the approval of the CHRC and that she would have to speak with her manager. Ms. Lusina told Ms. Harrington that her lawyer wanted the settlement offer accepted "today" and that he believed that service of a human rights complaint might affect the settlement. Ms. Lusina preferred to have more time to think about it. Ms. Harrington advised that she [Ms. Harrington] would keep the file with her until Ms. Lusina made a decision, that Ms. Lusina had one year from the date of the alleged conduct within which to file a complaint and, that if and when she decided to pursue it, the complaint could be amended to explain the settlement and the reasons for pursuing the human rights aspect. In the meantime, Ms. Harrington would make the inquiry regarding whether CHRC approval was required to close the file.
[6] On January 9th, Ms. Lusina signed the agreement and on January 10th, she contacted the CHRC and advised that she wished to proceed with her complaint. No amendments were made to the complaint. At this point, Bell was not aware of Ms. Lusina's dealings with the CHRC.
[7] By correspondence dated January 11th, the CHRC informed Bell of the complaint. There is conflicting evidence as to whether Bell received this correspondence on January 17th or 18th, but it was not later than January 18th, the day that it executed the agreement. By correspondence to Ms. Lusina, dated February 28th, Bell insisted that the human rights complaint be withdrawn and advised that processing of the settlement package would be finalized upon receipt of confirmation in this respect. The manager of alternative dispute resolution at the CHRC subsequently attempted to mediate the humans rights issues. On April 23rd, Bell, without prejudice to its position in relation to the human rights complaint, paid Ms. Lusina her salary for the months of April through December, 2001. The mediation, held in June, 2002, was unsuccessful.
THE AGREEMENT
[8] The pertinent provisions of the agreement are set out below.
ACKNOWLEDGEMENT, RELEASE AND DISCHARGE
WHEREAS the parties agree to settle all outstanding issues related to Ms. Lusina's employment with Bell without any admission of responsibility by one party or the other, the whole according to the terms and conditions outlined hereinafter:
IT IS MUTUALLY AGREED THAT:
1. The preamble is an integral part of this agreement;
[...]
7. Bell agrees to reimburse legal fees incurred by Ms. Lusina as follows:
a) To [X], Barristers & Solicitor, in trust, a maximum amount of $1,262.60, all taxes included;
b) To [Y], Barristers & Solicitors, in trust, a maximum amount of $3,017.40, all taxes included;
8. In consideration of the above, Ms. Lusina hereby grants to Bell, all its affiliates, all its predecessor and successor companies, parent companies and to their directors, officers, employees and/or agents, a full and final release and discharge with respect to any right, action, claim, cause of action or complaint, damage or debt that she has, had or may have against it or them, in respect of her employment with Bell or the termination of that employment and without restricting the generality of the foregoing any claims to salary, benefits, short-term or long-term disability benefits stock options, outstanding vacation, notice, severance or termination payments to which Ms. Lusina may be legally entitled under statute or otherwise;
9. Moreover, Ms. Lusina expressly waives her right to exercise any recourse or to institute any proceeding of any nature whatsoever against Bell, all its affiliates, all its predecessor and successor companies, parent companies and to their directors, officers, employees and/or agents because of her employment or the termination of this employment and the surrounding circumstances;
[...]
11. Ms. Lusina fully acknowledges that she has been represented by Counsel with respect to this Acknowledgement, Release and Discharge. Ms. Lusina recognizes that this Acknowledgement, Release and Discharge has been explained to her by Counsel, that she understands it and that she signs it voluntarily;
[...]
THE PROCESS
[9] The CHRC proceeded to investigate Ms. Lusina's complaint. By correspondence dated June 29, 2002, it advised Bell that an investigator would be designated under Part III of the CHRA to gather evidence. Upon completion of the investigation, the findings would be reported to the members of the CHRC. It requested Bell's position regarding Ms. Lusina's allegations and specifically requested information with respect to: its early retirement policy; its reason (including supporting documentation) for requiring Ms. Lusina's early retirement; its explanation of how she was selected for early retirement; its assessment (including supporting documentation) of Ms. Lusina's performance of her duties; its comments (including supporting documentation) regarding any replacement carrying out Ms. Lusina's former duties; its observation on the "apparent requirement to escort the complainant immediately upon informing her that her employment was terminated"; and its assessment of the possible impact of the state of Ms. Lusina's health and age on its decision to terminate her employment.
[10] Bell submitted its response in correspondence dated September 18, 2002. At the outset, Bell referred to the settlement discussions, the resolution, and the agreement. It specifically noted that, at the time the release was signed, Ms. Lusina failed "to inform Bell that she had filed a human rights complaint and purposely withheld information that was clearly material to severance negotiations". Bell then provided an overview of its past history in relation to separation programs and addressed (with the exception of Ms. Lusina's performance of her duties) the matters particularized by the CHRC. On October 30th, the investigator provided a summary of Bell's responsive submissions to Ms. Lusina. The summary, however, did not mention Bell's allegation that Ms. Lusina had purposely withheld information regarding the filing of the complaint during the settlement negotiations and at the time the release was signed.
[11] Also on October 30th, the investigator requested that Bell respond to additional questions concerning Bell's separation program and, specifically, the non-voluntary phase. The investigator explained that because of the allegation that Bell had discriminated in contravention of section 10 of the CHRA, a thorough analysis of its policy was required. To that end, the investigator requested a "full and complete response to each of the following questions":
1. What is the purpose of the Voluntary Separation Program? What is the objective requirement(s) of the position of Call Centre Manager? Please explain whether there is a rational connection between the purpose of the VSP and the objective requirements of the job.
2. Was the adoption of the VSP done with an honest and good faith belief that it was necessary to the accomplishment of its purpose? Please explain.
3. Is the VSP policy reasonably necessary for Bell Canada to accomplish its purpose? Specifically, what other alternatives were explored when the complainant's position was eliminated? Could she have been offered another position elsewhere with the company? Why was this option not explored? Was forcing the complainant into an involuntary retirement the least discriminatory means of addressing the situation? Please fully explain.
[12] On November 20th, Ms. Lusina responded to the investigator's summary of Bell's position. She attached various supporting documents and included a list of suggested witnesses. She amended her witness list in a further letter dated April 16, 2003. Bell, on December 6th, provided its response to the October 30th questions of the CHRC. Although it is not clear at what point the CHRC subsequently asked Bell for further documents, it is evident from Bell's correspondence dated February 27, 2003, that it responded to a further request for additional documentation associated with Ms. Lusina's complaint.
[13] The investigator's report, dated July 28, 2003, recommended that the CHRC not deal with the complaint, pursuant to paragraph 41(1)(d) of the CHRA. A copy of the report was sent to both Ms. Lusina and Bell for review and commentary prior to its submission to the CHRC. Ms. Lusina provided her comments in correspondence dated September 12th, October 1st and 3rd. Bell endorsed the investigator's findings by way of correspondence dated August 12, 2003 and, after review of Ms. Lusina's commentary, provided its response in correspondence dated October 14th.
[14] The CHRC dismissed the complaint. The relevant portion of the letter dated December 15, 2003 states:
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report.
- the complainant has signed a settlement release covering the events alleged in this complaint.
Accordingly, the file on this matter has now been closed.
[15] The Secretary to the CHRC certified that the materials listed below were before the CHRC when it made its decision:
1. Complaint form signed on December 19, 2001 (page 1)
2. Investigator's Report (pages 2 - 5)
3. Acknowledgement, Release and Discharge (pages 6 - 8)
4. Letter dated September 12, 2003 to Ms. Sherri Helgason, Canadian Human Rights Commission from Jessie Lusina (page 9).
5. Response to the Canadian Human Rights Commission Investigator's report from Jessi (sic) Lusina (pages 10 - 15)
6. Letter dated August 12, 2003 to Ms. Sherri Helgason from Dominique Benoît, Bell Canada (page 16).
7. Letter dated October 1, 2003 to Mr. Piero Narducci, Canadian Human Rights Commission from Jessie Lusina (pages 17 - 18).
8. Note to Mr. Narducci from Jessie Lusina (page 19).
9. Letter dated October 3, 2003 to Mr. Piero Narducci from Jessie Lusina (page 20).
10. Letter dated October 7, 2003 to Mr. Piero Narducci from Dominique Benoît, Bell Canada, together with fax cover sheet (pages 21 - 22).
11. Letter dated October 14, 2003 to Mr. Piero Narducci from Dominique Benoît, Bell Canada, together with fax cover sheet (pages 23 - 27).
12. Chronology (page 28).
THE APPLICANT'S POSITION
[16] Ms. Lusina asserts that this is a case warranting the court's intervention. She says that the CHRC has a statutory obligation to deal with a complaint, that it should dismiss only in plain and obvious cases, and that it can dismiss where it finds bad faith, but there is no bad faith here. In general terms, she argues that the CHRC violated procedural fairness, failed to conduct a thorough investigation of her complaint before deciding to dismiss it, and was influenced by false evidence or by misapprehension of the complaint.
[17] Regarding the investigation, it is apparent that Ms. Lusina assumes that the CHRC did not have regard to the merits of her complaint pursuant to sections 7 and 10 of the CHRA. She claims that, although she provided a witness list, none of the witnesses were interviewed by the investigator. She also submits, based on two e-mails and a memorandum from the manager of pay equity to the case support committee, that her complaint was treated as a pay equity case. She finds fault with the failure of the investigator to mention anything in the investigation report that would indicate that her complaint was dealt with on its merits.
[18] Regarding the allegation of false evidence, Ms. Lusina contends that the CHRC was influenced by false information provided by Bell. Bell's representative - who had carriage of the file - falsely stated that she was not aware of the human rights complaint until January 25th, a full week after Bell executed the agreement. Ms. Lusina maintains that the individual knew about the complaint on January 18th, the day the agreement was signed by Bell. The failure of the CHRC to investigate further is, according to Ms. Lusina, a breach of the duty of fairness.
[19] There was a clear violation of the duty of fairness, in Ms. Lusina's view, when the CHRC withheld pertinent information regarding Bell's defence, namely, Bell's allegation that her complaint was vexatious or frivolous or in bad faith in the face of the settlement agreement. She was not aware of Bell's position in this respect until she received the investigator's report in July, 2003. Consequently, she contends that she did not have an opportunity to respond to it before the investigator made a recommendation to the CHRC.
[20] Last, Ms. Lusina argues that the CHRC erred in failing to consider the circumstances under which she signed the agreement. She claims that she was told by Céline Harrington, counsel for the CHRC, that she could not sign away her human rights. She asserts that the agreement was signed for purposes of employment severance and does not, in any respect, affect her right to submit a human rights complaint. Furthermore, Ms. Lusina submits, she signed the agreement under pressure and duress - due to her financial situation - to ensure that she would not jeopardize her pension and to mitigate her losses. Relying on Brine v. Canada (Attorney General) (1999), 175 F.T.R. 1 (F.C.T.D.) and Pritchard v. Ontario (Human Rights Commission) (1999), 45 O.R. (3d) 97 (Div. Ct.) respectively for the propositions that the CHRC has a prima facie duty to deal with a complaint and that a finding of "bad faith" requires satisfaction of a high threshold going beyond bad judgment or negligence, Ms. Lusina argues that it is not plain and obvious that her complaint falls within the bad faith exception under paragraph 41(1)(d) of the CHRA. Accordingly, the CHRC erred in dismissing it.
[21] THE RELEVANT STATUTORY PROVISIONS
| Canadian Human Rights Act, R.S.C. 1985, c. H-6
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.
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. [...]
7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. [...]
10. It is a discriminatory practice for an employer, employee organization or employer organization(a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [...]
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; (c) the complaint is beyond the jurisdiction of the Commission; (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. [...]
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). [...]
(3) No person shall obstruct an investigator in the investigation of a complaint.
(4) The Governor in Council may make regulations (a) prescribing procedures to be followed by investigators; (b) authorizing the manner in which complaints are to be investigated pursuant to this Part; and (c) prescribing limitations for the purpose of subsection (2.1).
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).
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Loi canadienne sur les droits de la personne, L.R.C. 1985, ch. H-6
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant_: le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein 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.
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. [...]
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_: a) de refuser d'employer ou de continuer d'employer un individu; b) de le défavoriser en cours d'emploi. [...]
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale_: a) de fixer ou d'appliquer des lignes de conduite; b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel. [...]
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_: a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; c) la plainte n'est pas de sa compétence; d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances. [...]
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l'enquêteur » , d'enquêter sur une plainte.
(2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4). [...]
(3) Il est interdit d'entraver l'action de l'enquêteur.
(4) Le gouverneur en conseil peut fixer, par règlement_: a) la procédure à suivre par les enquêteurs; b) les modalités d'enquête sur les plaintes dont ils sont saisis au titre de la présente partie; c) les restrictions nécessaires à l'application du paragraphe (2.1).
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_: (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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ISSUE
[22] The applicable jurisprudence is discussed in the analysis portion of these reasons. In my view, the issue is a narrow one. To succeed on her application, Mr. Lusina must establish that the decision of the CHRC was unreasonable or that there exists a breach of procedural fairness such that the decision of the CHRC should be set aside.
ANALYSIS
[23] The decision of the CHRC does not refer to paragraph 41(1)(d) of the CHRA. However, the investigator's report recommends "pursuant to paragraph 41(1)(d) of the Canadian Human Rights Act, that the Commission not deal with the complaint". Although the parties did not address the issue, it appears to me that subparagraph 44(3)(b)(ii) is the operative provision. Once the CHRC designates an investigator to investigate a complaint, it is the role of the investigator to create a record for the CHRC, based on which - along with the responses of the parties - the CHRC will decide either to dismiss the complaint or to ask the tribunal to institute an inquiry into the complaint. Subparagraph 44(3)(b)(ii) mandates that the CHRC shall dismiss a complaint to which the [investigator's] report relates if it is satisfied that the complaint should be dismissed on any grounds mentioned in paragraphs 41(c) to (e).
[24] The investigators - the individual who began and conducted the investigation initially was not the same individual who eventually completed the investigation - made a number of requests for information to Bell. The nature of the requests, the sought-after information, and the responses to the requests are indicative of an investigation into the merits of the complaint. The investigator's report, however, refers only briefly, in the factual portion at paragraph 3 of the report, to the merits. The remainder of the report, including the analysis, addresses the circumstances that give rise to the investigator's conclusion regarding the complaint being vexatious or made in bad faith. The structure of the report, in my opinion, does not mean that a thorough investigation was not conducted. In other words, although the investigator's report appears to have approached the matter as a preliminary screening, the conduct of the investigation - having regard to the nature of the information requested and received by the investigators - suggests otherwise. That said, given the view that I take of the matter, nothing turns on whether the complaint was dismissed on the basis of paragraph 41(1)(d) or subparagraph 44(3)(b)(ii) of the CHRA.
[25] A review of the jurisprudence discloses a number of propositions that are taken to be settled law. Those propositions, distilled, are contained in the paragraphs that follow.
[26] The role and function of the CHRC is to accept, manage and process complaints of discriminatory practices. It is an administrative and screening body with no appreciable adjudicative role. Its function is not to decide if a complaint is made out but to determine if, under the provisions of the CHRA, an inquiry is warranted having regard to all of the facts:
Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854.
[27] In arriving at its decision, the CHRC is entitled to consider the investigator's report, such other underlying material as it, in its discretion, considers necessary and the representations of the parties. The CHRC is then obliged to make its own decision based on this information: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA).
[28] The CHRA grants the CHRC a remarkable degree of latitude when it is performing its screening function on receipt of an investigative report. As a general rule, it may be said that Parliament did not want the Court, at this stage, to intervene lightly in the decisions of the CHRC: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), leave to appeal dismissed, [1999] 2 S.C.R. v (Bell). Thus, the scope for judicial review of the decisions of the CHRC is narrow: Canada Post Corp. v. Canada
(Canadian Human Rights Commission) (1997), 130 F.T.R. 241 (F.C.T.D.) aff'd. (1999), 245 N.R. 397 (F.C.A.), leave to appeal dismissed, [2000] 1 S.C.R. viii (Canada Post).
[29] The Court's task is not to re-examine the evidence and come to its own conclusion. The standard of review of a decision of the CHRC to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the CHRC: Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 388 (T.D.) aff'd., [2000] F.C.J. No. 1655 (F.C.A.) (Bourgeois).
[30] Procedural fairness dictates that the parties be informed of the substance of the evidence obtained by the investigator which will be put before the CHRC and that the parties be provided the opportunity to respond to this evidence and make all relevant representations in relation thereto: SEPQA, supra. Underlying these requirements is the assumption that another aspect of procedural fairness - that the CHRC had an adequate and fair basis on which to evaluate - exists: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) aff'd. (1996), 205 N.R. 383 (F.C.A.) (Slattery).
[31] To establish such a fair basis, the investigator must satisfy two conditions: neutrality and thoroughness. Where the parties make submissions in response to an investigator's report, the parties may be able to compensate for omissions [in the investigator's report] by bringing such omissions to the attention of the decision-maker. Judicial review is warranted only where complainants are unable to rectify such omissions. Circumstances where further submissions cannot compensate for an investigator's omissions include circumstances where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it: Ibid (Slattery).
[32] Where the CHRC adopts the recommendations contained in the investigator's report and does not provide an extended explanation of its reasons, regard may be had to the investigator's report as the reasons for the decision: SEPQA, supra. The Court must also look at the material that was before the CHRC and the result reached when determining whether there is a rational basis for that result: Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.) (Gee).
[33] With these principles in mind, I turn to the circumstances of this matter. The decision of the CHRC tracks the wording contained in the investigator's recommendation to dismiss: "the complainant has signed a settlement release covering the events alleged in the complaint". In Gee, supra, the Federal Court of Appeal dealt with a situation where judicial review had been granted in circumstances not unlike those that exist here. The CHRC had dismissed a complaint "in view of the agreement reached between the parties". The applications judge characterized the agreement as "contracting out" of the protection of the CHRA, a matter which is prohibited by general principles of law. On appeal, Mr. Justice Strayer, writing for a unanimous court, underscored the importance of the totality of the material before the CHRC and the result reached. He concluded that the CHRC (in Gee) had before it considerable background material that could explain its decision, of which the agreement was, in reality, only one element.
[34] There are a number of similarities between Gee and the case before me. Notably, the CHRC, here, had before it the investigator's report as well as the submissions of the parties in respect of the contents of that report, which they had the opportunity to review before it was submitted to the CHRC. In Gee, there were also other related documents arising out of the long history of the situation. There is, in my view, however, a striking and material distinction between Gee and this matter. In Gee, there is no indication that there was an allegation of, or an argument relating to, a breach of procedural fairness. That is not the situation here.
[35] A review of the material before the CHRC, in this case, reveals that the circumstances surrounding the agreement and the human rights complaint led the investigator to conclude that the complaint was vexatious or made in bad faith. In Pritchard, supra, the term "bad faith" was described as one that normally "connotes moral blameworthiness on the part of the person accused, encompassing conduct designed to mislead or pursued for an improper purpose".
[36] The question of bad faith is one of mixed law and fact. The decision as to whether it exists, in the circumstances of the case, is one for the CHRC to make: Canada Post, supra. Thus, it appears that in only the rarest of cases would such a determination, by the CHRC, warrant the intervention of the Court. This, in my view, is such a case.
[37] I return to the comments of Mr. Justice Nadon, then of the Federal Court Trial Division as it was then constituted, at paragraph 57 of Slattery, supra, where he stated that circumstances - where further submissions cannot compensate for an investigator's omission - include circumstances where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it.
[38] I stated earlier that Bell's first response to Ms. Lusina's complaint provided its detailed position with respect to the merits of the complaint. At the outset, however, it raised the issue of the agreement. When the investigator summarized Bell's position and provided it to Ms. Lusina for her commentary, the summary made no reference to this "defence". Hence, Ms. Lusina, not being aware that Bell had raised it, as an issue, did not respond to it. After Ms. Lusina submitted her commentary, there was a change of investigators.
[39] The record, on this application, discloses further communications between the investigator and Bell. The content of those communications has been reviewed earlier in these reasons. There is no indication of further communication between the investigator and Ms. Lusina. To state the obvious, the investigator's report, which was based solely on the grounds enumerated in paragraph 41(1)(d) of the CHRA, was completed without the benefit of Ms. Lusina's position on that issue. To overstate the obvious, that is, in my view, an omission of a fundamental nature.
[40] Consequently, the investigator's report that was placed before the CHRC - in circumstances where the CHRC did not provide an extended explanation of its reasons - contained a summary of the circumstances regarding the operation of paragraph 41(1)(d) that emanated from Bell. In short, the facts outlined in the investigator's report constitute Bell's side of the story. It seems to me that such an omission falls within the category that Mr. Justice Nadon characterized as being of such a fundamental nature that merely drawing the decision-maker's attention to it cannot compensate for it.
[41] Nonetheless, I have considered that, despite this fundamental omission, Ms. Lusina, upon receipt of the investigator's report, was provided an opportunity to comment and availed herself of that opportunity. In my opinion, at that stage, it was too little, too late. I say this because there is nothing in the material that was before the CHRC that would indicate, or alert it to, the existence of the noted omission. Moreover, there is nothing, in the record before me, to indicate that the CHRC was made aware of the omission. While I recognize and accept that the ultimate decision to dismiss a complaint, pursuant to paragraph 41(1)(d), is for the CHRC to make, surely it is entitled to assume - in the absence of evidence to the contrary - that the investigator's report that is before it has been completed with the benefit of input from both parties. That is the essence of the "neutrality" component discussed in Slattery, supra. Ms. Lusina could not be expected to foresee and remedy all that this entailed. She was entitled to assume that the process in which she was a participant was a fair one.
[42] The situation is further compounded by Bell's misrepresentation - regarding the date it received notice of the complaint - in its response to the investigator's report. That representation was supported by a document which, on the record before me, appears to be a doctored one. While Bell argues that its representation is irrelevant to the issue - Ms. Lusina's disclosure of the human rights complaint to Bell - it seems to me that it is relevant to the extent that it undermined the position taken by Ms. Lusina in her response to the investigator's report. Ms. Lusina took the position that Bell was aware of the complaint prior to executing the agreement. Bell's responses to the complaint [before completion of the investigator's report] allege prejudice arising from non disclosure of the complaint, both with respect to the negotiations and, to a lesser extent, to finalizing the agreement. Bell's representation to the CHRC in this respect left Ms. Lusina powerless because she did not know of Bell's position, nor could she have known. She learned of it only as a result of her preparation for determining whether she would seek judicial review of the impugned decision.
[43] I conclude that Ms. Lusina's opportunity to respond was compromised at both levels - the investigation level and the CHRC level. This constitutes a breach of procedural fairness that vitiates the decision. As a result, the application for judicial review will be allowed and the matter will be remitted to the Canadian Human Rights Commission for redetermination. An order will so provide. I emphasize that my conclusion is confined to the unique circumstances of this matter. It is not my intent to usurp the function of the CHRC to determine which complaints it will accept. It is not, in my opinion, open to me to order the CHRC to do anything other than redetermine the matter. This decision is founded upon the concept of procedural fairness in the process in relation to this particular complaint.
[44] Ms. Lusina has been successful. She is a self-represented litigant and, in accordance with the jurisprudence of this court, is entitled to her taxable disbursements to be paid by the respondent, Bell.
"Carolyn A. Layden-Stevenson" Judge
Ottawa, Ontario
January 27, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-90-04
STYLE OF CAUSE: JESSIE LUSINA
Applicant
- and -
BELL CANADA
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 17, 2005
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Ms. Jessie Lusina
FOR THE APPLICANT
Ms. Sonia Kalia
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Jessie Lusina FOR THE APPLICANT
Pickering, Ontario
(Appearing on her own behalf)
Ms. Sonia Kalia FOR THE RESPONDENT
Hodgson Shields DesBrisay O'Donnell LLP
Toronto, Ontario
FEDERAL COURT
Date: 20050117
Docket: T-90-04
BETWEEN:
JESSIE LUCINA
Applicant
- and -
BELL CANADA
Respondents
REASONS FOR ORDER