PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
FISHERIES AND OCEANS CANADA, BRIAN REID,
MARC WHITTINGHMAN, GEORGE DAPONT, SUE MOLINSKI,
ALAIN LARIVIÈRE, JOHN LARK, MARTIN ZABLOCKI,
KAREN DOHERTY
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of thirteen decisions of the Canadian Human Rights Commission the results of which were all communicated to the Applicant in a single letter dated December 14, 2004 wherein the Commission declined to refer any of the Applicant's complaints against the Respondents to an inquiry under section 44(3)(b) of the Canadian Human Rights Act.
[2] The Applicant was hired on a one year contract as a junior Review and Audit Officer with the Department of Fisheries and Oceans commencing on August 30, 2001. That engagement was extended for a further six months, until the end of February 2003, but was not thereafter renewed. The Applicant's employment was, in fact, terminated near the end of January 2003. This termination, the Applicant alleges, was caused by complaints that she had filed in August 2002. Further complaints were filed in February 2003 and June 2003. In all, thirteen complaints were filed alleging discriminatory treatment on the basis of race and ethnicity, and based on alleged harassment and management retaliation.
[3] The Commission engaged investigators to look into these complaints, the Applicant retained counsel to represent her. Reports were filed as to the investigations made, Applicant's counsel filed submissions in respect thereof. The Commission deliberated these matters and on December 14, 2004 advised the Applicant that, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act it decided to dismiss all complaints. Whereupon this judicial review was commenced.
[4] At the outset of the hearing the Respondents made two applications. Once was directed to the fact that the Application was directed to thirteen different complaints, not one. After discussion with counsel for both the Applicant and the Respondents, it was Ordered, as provided by Rule 302, that the matter could proceed and if any one or more of the decisions were determined to be stuck out and sent back, that would not affect the others.
[5] The second preliminary was as to the admissibility of the affidavit of the Applicant herself filed with the Court. Much of it was said simply to reiterate facts already of record, however in an argumentative way, the balance was said to relate to the issue of procedural fairness. Again, after discussion with counsel, it was Ordered that paragraphs 2 to 48 would be admitted, subject to weight. The balance of the affidavit was admissible as it was directed to the issue of procedural fairness.
[6] On the substantive matters, counsel for the Applicant very helpfully summarized the Applicant's case as being based only on the grounds of alleged lack of procedural fairness. Counsel limited the argument to five alleged procedural unfair allegations, one, that of alleged failure to provide a proper opportunity to rebut, was the principal ground upon which counsel spent any amount of time on in argument. These grounds as alleged, are:
1. Failure to provide a proper opportunity to rebut.
2. The fact that a multiplicity of investigators investigated the complaints.
3. Portions of the record were missing from materials provided to the Applicant.
4. Restricting the Applicant to communicating with the Commission only in writing.
5. Failure of the Commission to account properly for the Applicant's mental disabilities.
[7] As to procedural fairness or lack thereof, the parties are agreed that if a Tribunal conducted itself in such a way as to deprive a party of procedural fairness, then the matter should be sent back for re-determination in a proper manner. The question as to degree of deference does not arise. The Federal Court of Appeal in Sketchly v. Canada(Attorney General)(2005), 263 D.L.R. (4th) 113, in referring to the CUPE case in the Supreme Court of Canada [2003] 1 S.C.R. 539, said at paragraph 53:
CUPE directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act of omission relevant to procedural fairness. This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.
[8] Therefore examination of each of the alleged acts of procedural unfairness must be made.
1. Failure to provide a proper opportunity to rebut
[9] The history of the files in respect of each of the complaints indicates that the Applicant (complainant) filed a written complaint and a written defence was received from the employer. The Applicant was afforded an opportunity to file a rebuttal in each case but none was received, File 20030082 contains the Investigator's Report as to what transpired:
6. On December 19, 2003 the complainant was requested to submit a rebuttal by January 19, 2004. On December 5, 2003 she advised the Commission that she was in the process of retaining counsel. On July 16, 2004 the investigator wrote to the complainant advising her that, in light of the fact that her rebuttal had not been received, he would submit his report to the Commission without her further input if he did not hear from her by July 31, 2004. Canada Post provided evidence that this letter was delivered to the complainant, but she did not reply to it.
7. When the investigator called to interview the complainant on August 6, 2004, she said that she had some rebuttals, but did not specifically mention this complaint. She said that she had returned from vacation on July 26, 2004, and had read the letter of July 16, 2004, but she had been busy with lab reports and needed a couple of extra days to submit her rebuttal. She was granted until the close of business on Monday, August 9, 2004, to submit her rebuttal. She said that she could handle this deadline. Early on that Monday, she called to say that she needed still further time. A further extension was not granted, but she was told that any material she submitted before the investigation report was submitted would be read. At the time of writing this report, a rebuttal had not been received.
8. During the above telephone conversation, when the investigator pointed out to her that she had been given eight months to submit her rebuttals to various complaints, the complainant said that she had been seeing a Psychiatrist and that she had been diagnosed with a mental condition. The investigator advised her that he would inform the Commission of this and she raised no objection.
[10] While no rebuttal was received, the Records indicate that Applicant's counsel received the Investigator's Report and made fulsome remarks as to that Report. None of these remarks were directed to any alleged failure to provide a proper opportunity to provide a rebuttal at an earlier stage in the process. Even in this application, the affidavit of the Applicant which sets out various allegations as to procedural unfairness, does not mention any alleged failure to provide an adequate opportunity to file a rebuttal.
[11] The record shows that the Applicant was eight months delinquent in filing a rebuttal, then was given a few more days to do so. She said "she could handle" that, yet failed again. Even then the Applicant could file a rebuttal before the Report was submitted, and failed to do so.
[12] An opportunity to rebut was in any event afforded once the Report was issued. The Applicant, through counsel, took advantage of that opportunity, not once mentioning there, or in her affidavit here, that failure to afford more time to file rebuttal, was an issue.
[13] Applicant's counsel argues before this Court that, once sensitized to the Applicant's allegations as to mental illness, the Commission had a duty to inquire into that matter and afford appropriate further indulgences to the Applicant. I disagree. The Applicant had been afforded ample opportunity already, and even further opportunity than she could "handle". Until counsel made this an issue, neither the Applicant nor her pervious counsel seemed troubled by the matter. In any event, Applicant's former counsel, in responding to the Report, had a full opportunity to raise any points that could have been raised in the rebuttal.
[14] I find no procedural unfairness as to this issue.
2. The fact that a multiplicity of investigators investigated the complaints
[15] The Record shows that three investigators, over the period of time that the thirteen matters took, investigated the matter with another in a supervisory role. The evidence shows that this arose because, during that period, two investigators moved on to other jobs for personal reasons.
[16] The Applicant has failed to allege or demonstrate that any actual or possible unfairness arose and I find none. There is no procedural unfairness in this respect.
3. Portions of the record were missing from materials provided to the Applicant
[17] The evidence shows that two or three pages from the totality of the Records as to the thirteen complaints were missing when the material was provided to the Applicant for comments by her counsel. The evidence shows that counsel was not concerned and was apparently quite content and able to make submissions on the basis of what he had.
[18] No procedural unfairness has been demonstrated on this ground.
4. Restricting the Applicant to communicating with the Commission only in writing
[19] Counsel for the Commission was permitted by a previous Order of the Court to intervene on this issue.
[20] The evidence shows that after the Applicant filed her initial complaints with the Commission she engaged in telephone conversations with staff members where she would demand immediate responses and provision of documents in a tone so demanding and shrill that it left the staff members visibly shaken, but apparently able to carry on her duties. At one point the Applicant called a Commission staff member a "fucking bitch". During a meeting with a staff member the Applicant slammed a telephone on the desk, breaking it, and threw a pen at a security officer.
[21] A staff manager met with the staff members and, after careful consideration, determined that while the Applicant should continue to have a right of access to the Commission staff and communicate with them, an appropriate step, in order to avoid harassment of Commission staff, was to require that communications be in writing. Thereafter the Applicant complied with this request by communicating in writing including by e-mail and through her counsel.
[22] No evidence was led to show that, by carrying on communications in this way that the Applicant suffered any actual prejudice. Notwithstanding the lack of actual prejudice, can it be argued that prejudice nonetheless exists in this case? The Commission can set its own procedures, so long as a fair opportunity is provided to a person to participate. Oral communication is not essential, written communication is sufficient.
[23] As Lord Denning said in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 at page 19 in a passage approved by the Supreme Court of Canada in SEPQA v. Canada (CHRC), [1989] 2 S.C.R. 879 at 900:
"...The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only..."
[24] No procedural unfairness or prejudice has been made out on this ground.
5. Failure of the Commission to properly account for the Applicant's mental disabilities
[25] This issue has been largely dealt with in respect of the failure to allow appropriate opportunity for rebuttal. To the extent that it goes beyond that argument, no evidence has been led to show that there was at any point something that the Commission should have done, or failed to do, in this regard.
[26] The Applicant did not, in her affidavit in support of this application, speak to any instances where her alleged mental illness gave rise to any circumstance upon which procedural unfairness is alleged to have occurred. Counsel, in argument gave this point almost no attention.
[27] No procedural unfairness has been shown on this ground.
In Summary
[28] The Applicant, through counsel, has restricted grounds for judicial review on the basis of alleged procedural unfairness. Five grounds of such unfairness were alleged, only one, alleged failure to provide for adequate time for rebuttal, was given any weight in argument. I find that no procedural unfairness, on any ground, has been made out. The application will be dismissed with costs at the middle of Column III. No costs will be awarded for or against the Intervener.
JUDGMENT
UPON APPLICATION made to this Court on Tuesday, the 6th day of June, 2006 for judicial review of thirteen decisions made by the Canadian Human Rights Commission dated December 14, 2004 dismissing the Applicant's complaints;
AND UPON reviewing the Records filed herein and hearing counsel for the parties and for the Intervener Canadian Human Rights Commission;
AND FOR the Reasons provided herein;
THIS COURT ADJUDGES THAT:
1. This Application as it relates to thirteen different complaints by the Applicant before the Canadian Human Rights Commission, shall, with leave given under Rule 302 of this Court, be heard in a single Application;
2. The affidavit of the Applicant submitted in support of this Application is admitted into evidence with paragraphs 2 to 48 thereof subject to weight;
3. The Application as it relates to all thirteen decisions of the Canadian Human Rights Commission, is dismissed;
4. The Respondents are entitled to their costs from the Applicant to be taxed at the middle of Column III; and
5. No costs shall be awarded for or against the Intervener.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-83-05
STYLE OF CAUSE: ROHMA CHAUDHARY v. FISHERIES AND OCEANS CANADA AND OTHERS
PLACE OF HEARING: OTTAWA, ONTARIO
APPEARANCES:
| YAVAR HAMEED
|
|
| CHRISTOPHER RUPAR
|
|
| PHILIPPE DUFRESNE |
FOR INTERVENOR
|
SOLICITORS OF RECORD:
| YAVAR HAMEED, OTTAWA
|
|
| JOHN H. SIMS, DEPUTY ATTORNEY GENERAL OF CANADA
|
|
| CANADIAN HUMAN RIGHTS COMMISSION |
FOR INTERVENOR |