Date: 19991007
Docket: A-566-96
(T-2821-94)
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN HUMAN
RIGHTS COMMISSION
Appellant
(Intervener)
- and -
FRANÇOIS BROCHU
Respondent
(Applicant)
- and -
BANK OF MONTREAL
Third Party
(Respondent)
Hearing held at Montréal, Quebec on Thursday, October 7, 1999.
Judgment delivered from the bench on Thursday, October 7, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19991007
Docket: A-566-96
(T-2821-94)
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN HUMAN
RIGHTS COMMISSION
Appellant
(Intervener)
- and -
FRANÇOIS BROCHU
Respondent
(Applicant)
- and -
BANK OF MONTREAL
Third Party
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
| on Thursday, October 7, 1999) |
MARCEAU J.A.
[1] We are all of the view that this appeal against a decision of the Trial Division on an application for judicial review must succeed. With respect, we believe that the learned judge erred in setting aside the Canadian Human Rights Commission"s dismissal of the respondent"s complaint based simply on the fact that there were no reasons in the notice of dismissal.
[2] Considering the fact that the remedy provided in the Canadian Human Rights Act1 for those who feel they are victims of discrimination is special and exceptional; considering the role the Commission must fulfill when a complaint is filed, namely that of determining, on the basis of an initial investigation, whether the complaint is serious and whether it should be submitted to the formal sanction of a tribunal; considering the Supreme Court"s interpretation of the Commission"s role in this regard pursuant to sections 44(2) and 44(3) of the Act1 and the fact that the case law, following the Supreme Court, has always qualified the decision to dismiss a complaint under the provisions of subparagraph 44(3)(b)(i) or its predecessor as purely administrative and discretionary, while at the same time prescribing strict procedural requirements intended to ensure fairness and impartiality; and last, considering that Parliament did not require the Commission to provide reasons for the decision to decline to investigate some of the complaints before it, no doubt because by their very nature these dismissals are often based on subjective reactions alone which are difficult to put into words, and because the purely personal satisfaction (and not the clarification as for a decision under subsection 42(1) of the Act) a complainant may sometimes find in a detailed explanation cannot outweigh the burden of drafting it. Considering all of the above, we believe that there is no justification for introducing exceptions to the clearly established and oft-repeated rule that the Commission is not required to give reasons when, after observing all of the rules of procedural equity, it dismisses a complaint in accordance with subparagraph 44(3)(b)(i) because "having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted".
[3] It has been more and more strenuously argued, both by legal authors and in the case law, that despite the common law rule that an administrative tribunal is not required to provide reasons, there may be exceptional circumstances in which the principles of fairness and natural justice require an explanation of the decision.1 We do not have to rule on the validity and application of this proposition here. However, we would have no difficulty in adopting it in certain areas, such as alleged wrongful dismissal and generally in cases in which the adversely affected party would remain unaware of the decision-making process, without being able to understand the meaning of the decision rendered or to infer the reasons behind it, in short without having any points of reference to ensure that the tribunal fulfilled its role reasonably and lawfully. Nevertheless, we doubt that this proposition could ever be appropriate for a purely administrative decision such as that of the Commission under to subparagraph 44(3)(b)(i), which is made at the end of a proper investigation, based on information established openly and with the parties" knowledge and which basically involves a purely subjective assessment of testimony and the facts.
[4] Accordingly, the trial decision will be set aside and the Commission"s decision dated October 21, 1994 will be reinstated.
Louis Marceau
J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: A-566-96
APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DATED June 19, 1996, FILE NO. T-2821-94
| STYLE OF CAUSE: Canadian Human Rights Commission v. François Brochu et al. |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 7, 1999
REASONS FOR JUDGMENT OF THE COURT: Mr. Justice Marceau
Madame Justice Desjardins
Mr. Justice Létourneau
DELIVERED FROM THE BENCH BY: Marceau J.A.
APPEARANCES:
François Lumbu FOR THE APPELLANT
Christian Immer FOR THE RESPONDENT
Vikki Andrighetti
SOLICITORS OF RECORD:
Canadian Human Rights Commission FOR THE APPELLANT
Ottawa, Ontario
Woods & Associés FOR THE RESPONDENT
Montréal, Quebec
__________________1 R.S.C., 1985, c. H-6.
2 These provisions read as follows:
| 44. (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. | 44. (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) 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). | (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). |
3 The latest decision to this effect is that of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, dated July 9, 1999.