Date: 20020621
Docket: T-1733-00
Neutral Citation: 2002 FCT 699
BETWEEN:
DOROTHY B. MURRAY
Applicant,
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent.
REASONS FOR ORDER
KELEN J.:
[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 in respect of the decision of the Canadian Human Rights Commission (the "Commission"), dated August 18, 2000, dismissing a complaint against the Department of Revenue Canada (as it was then named).
[2] The issues in this matter are:
- · whether the decision that the evidence does not support the complaint was patently unreasonable; and,
- · whether the delay in investigating and responding to the applicant's complaint constitutes a breach of the principles of procedural fairness or natural justice.
FACTS
[3] The applicant has been employed with Revenue Canada since February, 1986. Her initial position designation was PM-1, and she eventually attained the designation PM-2.
[4] On July 23, 1996, the applicant filed a Complaint with the Human Rights Commission, alleging that her employer had:
"...discriminated against me on the grounds of race, colour (black) and national or ethnic origin (Jamaican), by adversely differentiating against me in employment in contravention of section 7 of the Canadian Human Rights Act."
[5] In the Complaint, the applicant particularizes several incidents where she alleges that Caucasian staff were given preferential treatment.
[6] The applicant alleges that:
- · she was denied opportunities for advancement to a supervisory level;
- · less qualified Caucasian employees were promoted above her;
- · less qualified Caucasian employees were given opportunity for advanced training ahead of her; and,
- · she has been the subject of discriminatory treatment;
Investigator's Report
[7] An investigator for the Commission conducted an investigation of the allegations. By letter dated April 11, 2000, the applicant was informed of the results of the investigation.
[8] The report documents thirteen separate allegations identified by the investigator. Each allegation is set out in detail, as are the steps taken and evidence gathered in the investigation of each allegation. The report concludes that the employees who replaced their supervisor were "rarely given acting pay" so that the applicant's complaint of discrimination is unsubstantiated. Moreover, none of the Caucasian employees named by the applicant have been promoted to the next level above that of PM-2, thus there is no evidence that the applicant has been discriminated against in this regard.
[9] The report reads:
Analysis
102. The evidence gathered at investigation indicates that until recently, PM-2 employees who replaced their supervisor during short or longer absences, were rarely given acting pay. The only exception was when someone acted in a PM-3 capacity for an extended period of times, i.e. a month or more. Recently, this has changed and employees are now paid for acting assignments when they are acting for more than 4 days.
103. As for the complainant's allegations that she was by-passed in favour of lesser qualified Caucasian colleagues on a number of occasions, the investigation was unable to substantiate the specific allegations as most of them took place many years ago and for the most part, concerned one or two days. However, the investigation was able to show that the complainant was called upon to do back-up duties, she did accumulate supervisory hours, on some occasions she was even coded more supervisory hours than her colleagues. Like the other PM-2s in the section, she was not given acting pay. Further, all of the individuals names in the complaint, are still, like the complainant, in PM-2 positions. None of them, including the Caucasians, have been promoted. Therefore, the allegation that these individuals were favoured appears to be unsubstantiated. It should also be noted that all of these PM-2s with the exception of Rudy Poirier were appointed to PM-2 positions prior to the complainant, and as such, had more experience as PM-2s. Therefore, her allegation that some of these individuals were less experienced or qualified than her does not appeal to be substantiated.
Recommendation
[10] The Report recommends that the Commission dismiss the complaint. The recommendation reads:
Recommendation
104. It is recommended that the Commission dismiss this complaint because:
- · the evidence gathered does not support the complainant's allegation that she was denied employment opportunities because of her race, colour, and national or ethnic origin.
Applicant's Response
[11] Upon receipt of the letter and report, the applicant submitted a ten-page letter, dated April 26, 2000, as requested by the Commission, responding to the parts of the investigation with which she disagreed.
Commission's Decision
[12] By letter dated August 18, 2000, the Commission informed the applicant of its decision to dismiss her complaint. The letter reads, in part:
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. After examining this information, the Commission decided to dismiss the complaint. The reasons for the Commission's decision are as follows:
Pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has decided to dismiss the complaint because:
the evidence gathered does not support the complaint's allegation that she was denied employment opportunities because of her race, colour and national or ethnic origin.
STANDARD OF REVIEW
[13] Nadon J. in Slattery v. Canada (Human Rights Commission) (T.D.)[1994] 2 F.C. 574, [1994] F.C.J. No. 181 (F.C.T.D.) affirmed by F.C.A at (1997), 205 N.R. 383, held that judicial review of the Commission's decision is warranted only in cases where the discretion has been exercised in a "patently unreasonable manner". The Court defers to the Commission on matters of fact-finding. The Court should not interfere where the Commission has exercised its statutory discretion in good faith, in accordance with the principles of natural justice and fairness, and where the Commission has made findings of fact based upon relevant evidence and considerations.
[14] Accordingly, the standard of review is that of patent unreasonableness with respect to the Commission's finding of fact that the evidence is insufficient so that the complaint must be dismissed.
[15] Patent unreasonableness is defined by Dawson J. in Canada (Minister of Citizenship and Immigration) v. Owens, [2000] F.C.J. No. 1644 (F.C.T.D.) At paragraph 30:
¶ ¶ 30 A patently unreasonable decision is one which is evidently unreasonable. As the Supreme Court of Canada noted in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at page 777, the difference between an unreasonable and a patent unreasonable decision lies in the "immediacy or obviousness of the defect".
RELEVANT LEGISLATION
[16] The relevant sections of the Canadian Human Rights Act R.S.C. 1985, c. H-6 read as follows:
Investigation
Designation of investigator
43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.
[...]
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
Enquête
Nomination de l'enquêteur
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, "l'enquêteur", d'enquêter sur une plainte.
[...]
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,
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).
[...]
Inquiries into Complaints
Request for inquiry
49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.
Chairperson to institute inquiry
(2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the complaint requires the inquiry to be conducted by three members.
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);
[...]
Instruction des plaintes
Instruction
49. (1) La Commission peut, à toute étape postérieure au dépot de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'instruction est justifiée.
Formation
(2) Sur réception de la demande, le président désigne un membre pour instruire la plainte. Il peut, s'il estime que la difficulté de l'affaire le justifie, désigner trois membres, auxquels dès lors les articles 50 à 58 s'appliquent.
ANALYSIS
Role of Commission
[17] The Supreme Court of Canada in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 per Mr. Justice LaForest at page 891 held that the central component of the Commission's role is "that of assessing the sufficiency of the evidence before it. The Commission is to dismiss the complaint if there is insufficient evidence to warrant the appointment of a Tribunal to conduct an inquiry". In the case at bar, the Commission decided that there was not a reasonable basis in the evidence for proceeding to the inquiry and, for this reason, dismissed the complaint.
Reasonableness of the Assessment of the Evidence
[18] The Commission dismissed the complaint because:
[...] The evidence gathered does not support the complainant's allegation that she was denied employment opportunities because of her race, colour and national or ethnic origin."
[19] The opportunity to respond was afforded to the applicant. She responded with a 10-page document, which was before the Commission when it decided to dismiss the complaint.
[20] The applicant's objections to the report generally amount to refuting the findings of the investigator. The applicant's response to the investigator's assessment of the evidence with respect to the complainant's 13 allegations does not disclose any obvious defect or patently unreasonable assessment of the evidence.
Qualifications of the Applicant
[21] In 1991 and 1992, the applicant's Performance Review and Employee Appraisal at Revenue Canada, Taxation was "fully satisfactory". Her performance assessments confirmed that she "acted as a unit head on various short terms", "played an active role in the effective management of the Counter Enquiry Unit, was "capable of managing a heavy workload", and acted as a group head on occasion.
[22] Based on the Report, it became apparent to the investigator that the promotion process at the Toronto office of Revenue Canada "was not ideal", and that some individuals had been favoured over others. An individual given an acting assignment as a PM-3 over the applicant informed the investigator that the applicant had more experience, and knowledge. The investigator found that while there were problems in that office at that time with respect to the promotion process, there was no evidence that these problems were related to race. Without evidence to substantiate the complaint, the investigator reasonably concluded that the evidence does not support the complainant's allegation.
Rules of Natural Justice and Procedural Fairness
[23] The applicant submits that the investigator's report, upon which the Commission based its decision to dismiss, is biased toward Revenue Canada. There is no ground for alleging bias except that the investigator found that the evidence did not substantiate the complaint. In law, this is not bias. There was no evidence of bias or bad faith on the part of the Commission or the investigator.
[24] The principles of natural justice and the duty of procedural fairness with respect to an investigation and consequent decision of the Commission, are to give the complainant the investigator's report and provide the complainant with a full opportunity to respond, and to consider that response before the Commission decides. The investigator is not obliged to interview each and every witness that the applicant would have liked, nor is the investigator obliged to address each and every alleged incident of discrimination which the applicant would have liked. In this case, the applicant had the opportunity to respond to the investigator's report and to address any gaps left by the investigator or bring any important missing witness to the intention of the investigator. However, the investigator and the Commission must control the investigation and this Court will only set aside on judicial review an investigation and decision where the investigation and decision are clearly deficient. See Slattery, supra. per Nadon J. (as he then was) and at the Federal Court of Appeal per Hugessen J.A. (as he then was).
[25] In the case at bar the investigator addressed in a comprehensive manner the applicant's complaint. The applicant's allegations that the investigator omitted or misrepresented elements of the complaint or did not compare the results of the investigation with the complaint are not substantiated. I am satisfied that the Commission ensured that this complaint was fully and carefully investigated, that the applicant was given a full opportunity to respond to the investigation, and that the Commission considered the response together with the investigator's report when it rendered its decision. In this respect, the Commission rendered its decision in accordance with the principles of natural justice and procedural fairness.
Delays and Duty of Procedural Fairness
[26] The applicant alleges that the delays by the Commission in investigating the complaint caused a breach of the duty of procedural fairness. The chronology of the processing of this complaint suggests an overloaded administrative system with limited resources. The chronology also suggests a bureaucracy where personnel are frequently leaving or being reassigned.
[27] The applicant complains that four different investigators dealt with her file between the complaint being made on June 28, 1996 and the report being filed on April 11, 2000.
[28] In this case, the initial investigator was designated on September 11, 1996. The file was reassigned May 1, 1997, then reassigned again October 29, 1997, and then reassigned again on November 2, 1998. While reassignments are regrettable, they are the reality of the administrative machinery of government. The fact that a file is reassigned does not mean that the progress achieved is not retained.
[29] The applicant submits that the amount of time taken conducting the investigation and coming to a decision afforded the witnesses investigated the opportunity to "state that they did "not remember" ".
[30] In reviewing the investigation report, it is evident that there are at least five instances where persons interviewed could not recall details related to the complaint. There are also instances where persons interviewed outright deny allegations made by the applicant, or recall an incident as being other than how the applicant has alleged. In many cases, individuals interviewed, in spite of not remembering certain facts which the applicant alleged, had very specific recollections of details and related incidents that took place at the same time. As well, many of the instances alleged by the applicant, such as those taking place in 1992, were already years in the past by the time the applicant brought her complaint in 1996. Accordingly, I find that the delay did not prejudice the investigation.
[31] The first interview of witnesses took place in July, 1998, which was two years after the complaint was filed. In the interim, the investigator gathered information from the Department of National Revenue in response to the complaint. While that two year delay in conducting the first interviews of witnesses is too long, the Court is unable to find that this delay constitutes a breach of the duty of procedural fairness.
[32] Regarding a breach of procedural fairness to the applicant resulting from the delays, I refer to the decision of Canada (Attorney General) v. Canada (Canadian Human Rights Commission), [1993] F.C.J. No. 112 (F.C.T.D.) per Teitelbaum J.:
With respect to the question of laches and the breach of procedural fairness, as a result of the Commission delay in proceeding with the compliant, I am compelled to cite the decision of Walsh, J. in Motorways Direct Transport Ltd. v. Canadian Human Rights Commission (1991), 43 F.T.R. 211 where the Court considered an issue which is squarely on all fours with the present case.
Here, Walsh J. considered an application by the employer to quash a decision of the Commission to proceed with a complaint that was filed outside the one year time bar. I am of the view that the decision in this case is highly applicable to the present facts at bar in that Walsh, J. concluded that the Commission will not breach the rules of procedural fairness by its laches and delay in handling a complaint subsequent to its filing where the delay is not unreasonable and handling the complaint will not prejudice the party against whom the complaint is lodged. Of most significance is the reasoning of Walsh J. in regards to what constitutes unreasonable delay. At page 220, Walsh J. states:
In fairness to the Commission it must be stated that they are quite possibly overworked and short staffed, but the delay in proceeding with this matter, not only the initial decision to entertain the complaint notwithstanding the delay in bringing it, but thereafter by change of investigator, and indecision within the bureaucracy of the Commission itself as to whether the complaint should be entertained or not, is extraordinary and unacceptable.
[emphasis added]
[33] The question is whether the delay was unreasonable, and whether prejudice results to the applicant from the delay. I find for the foregoing reasons that no prejudice resulted from the delay. However, I agree with the applicant that the delay was unreasonable.
[34] Even if the delay constituted a breach of procedural fairness, the Commission would reach the same result if this Court directed a new inquiry. The Supreme Court of Canada has held that it is justifiable to disregard a breach of natural justice "where the demerits of the claim are such that it would in any case be hopeless". See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14 (S.C.C.) per Iacobucci J. at paragraphs 53 and 54. It is clear from the investigator's report that the investigation was thorough and well documented. If the report had been conducted without delay, on the balance of probabilities, the result would be the same. Accordingly, the delay is not a basis to set aside the decision in this case.
[35] For the foregoing reasons, this application for judicial review is dismissed.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
June 21, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1733-00
STYLE OF CAUSE: DOROTHY B. MURRAY
Applicant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 28, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN
DATED: June 21, 2002
APPEARANCES:
Ms. Dorothy B. Murray ON HER OWN BEHALF
Ms. Caroline E. Engmann FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Dorothy B. Murray ON HER OWN BEHALF
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada