Ottawa, Ontario, February 22, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
Applicant
and
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act R.S.1985, c. F-7 (the Act), regarding a decision of the Canadian Human Rights Commission (the Commission), dated December 3, 2004, which dismissed a complaint made by Mr. Ayman Merham (the applicant) against the Royal Bank of Canada (the respondent).
RELEVANT FACTS
[2] The applicant has been employed by the respondent since September, 1998. He commenced employment as a Co-op Trainee, a contract position, at the Guelph Computer Centre. In about December, 1999, he was offered a position in the "control room" and in March, 2000, he became a full time employee. On August 11, 2000, he was involved in a motor vehicle accident and he has been off on short and long term disability since the accident. He remains an employee of the Bank and continues to receive long term disability benefits.
[3] The applicant filed a complaint with the Commission on December 31, 2001, alleging discrimination on the grounds of race, national and/or ethnic origin and disability. The Commission appointed Deborah Olver to investigate the complaint. She issued a report dated August 5, 2004. The report addressed each and every allegation made by the applicant, including new allegations that were not part of his original complaint.
[4] The investigator's report recommended the following:
It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:
· The evidence does not support that the complainant was treated in an adverse differential manner based on race, ethnicity or disability;
· The evidence does not support that the respondent failed to provide a workplace free of harassment, based on race, ethnicity or disability;
· The evidence does not support the allegation that the respondent failed to accommodate the complainant's disability; and
· The evidence does not support the allegation that the respondent threatened to terminate the complainant's employment because of his race, ethnicity or disability.
(See paragraph 82 of the investigator's report found in the respondent's record at page 25.)
[5] Both parties were given an opportunity to comment on the report before the Commission acted upon it. The Commission considered the complaint, the investigation report and the response of both parties to the report in making its decision.
DECISION OF THE COMMISSION
[6] On December 3, 2004, the Commission adopted the recommendations of the investigator and dismissed the applicant's complaint.
ISSUES
1. Did the Commission breach a duty of procedural fairness in failing to disclose documents requested by the applicant?
2. Did the Commission err in fact and law in its consideration of the evidence?
ANALYSIS
1. Did the Commission breach a duty of procedural fairness in failing to disclose documents requested by the applicant?
[7] In the present matter, the pertinent provisions of the Canadian Human Rights Act are subsection 44(1) and subparagraph 44(3)(b)(i), which state the following:
| 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. (3) On receipt of a report referred to in subsection (1), the Commission (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
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission : 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
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[8] In McFadyen v. Canada(Attorney General), 2005 FC 779, [2005] F.C.J. No. 963, Justice Michael Kelen confirmed that the standard of review to be applied to a decision of the Commission dismissing a complaint pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, is reasonableness simpliciter. He noted the case law which established the aforementioned standard at paragraphs 11 and 13:
In MacLean v. Marine Atlantic Inc. , [2003] F.C.J. No. 1854, Justice O'Keefe, applying the pragmatic and functional approach, concluded that the standard to be applied when the Commission dismisses a complaint under paragraph 44(3)(b) of the Act is reasonableness simpliciter.
A decision that is reviewed on a reasonableness simpliciter standard should only be interfered with if it is not supported by any reasons that can stand up to a somewhat probing examination. Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
[9] The above mentioned standard of review is not applicable if it can be demonstrated that the Commission breached the duty of procedural fairness in making its decision. Procedural fairness questions are not subject to a pragmatic and functional analysis (see CUPE v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100).
[10] The applicant claims that following the disclosure of the respondent's statements, the applicant requested that certain documents bearing directly on the claims of the respondent be disclosed prior to him filing a response. The documents that the applicant claims were never disclosed are listed in a letter, dated October 7, 2003, sent to the investigator by the applicant:
7. Please forward a copy of the alleged review (the QPI Assessment)
12. Please forward a copy of Mr. King's note
14. Please forward a copy of this email correspondence from Mr. Huston regarding his alleged attempts to deliver my review.
16. Please forward a copy of this alleged attempt to provide me with this alleged review
17. Please forward a copy of this alleged attempt to provide me with this performance appraisal
18. Please forward a copy of this alleged attempt to provide me with this alleged performance problems.
19. Please forward a copy of this alleged emails that been mentioned in that paragraph (email from Meg Mackenzie to Fil King and the alleged two hour outage).
20. Please forward a copy of these alleged emails between Mrs. Pineau and me.
21. Please forward a copy of this emails from Meg Mackenzie to Kathy Elliot; Joanne Pineau and to Filemon King; Kathy Elliot; Joanne Pineau
(See applicant's record, tab 7, page 36.)
[11] The applicant submits that the failure to disclose the aforementioned documents prevented him from being aware of the case he had to make in order to establish his claim. The applicant submits that the Commission breached the rules of procedural fairness in failing to disclose or even respond to the request for documents.
[12] The Supreme Court of Canada has said on a number of occasions that the obligations imposed by the duty of fairness vary with the circumstances (see Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 and Baker v. Canada Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at paragraph 21).
[13] In Banks v. Canada Post Corp. 2004 FC 713, Justice James Russell discussed the extent of the duty of procedural fairness concerning decisions taken pursuant to subsection 44(3) of the Canadian Human Rights Act by stating the following at paragraphs 79 and 82:
The jurisprudence of this Court and the Federal Court of Appeal is clear on what the obligations of the Commission are in these circumstances. In Canadian Broadcasting Corporation v. Paul, 2001 F.C.A. 93, at para. 43 and (2001), 198 D.L.R. (4th) 633, at p. 648, the Federal Court of Appeal provided the following guidance:
The Courts, applying the principles of procedural fairness, have imposed additional requirements upon the Commission prior to its taking action under subs. 44(3). The Commission is required to inform the parties of "the substance of the evidence obtained by the investigator" and placed before it. This requirement is met by the disclosure of the Investigation Report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision. It is not required to give formal reasons for its decision. Instead, the Courts have found the Commission's reasons in the Investigations Report itself.
Based upon the Supreme Court of Canada decision in S.E.P.Q.A., supra, at 899-900, I am of the view that the Decision is only reviewable by this Court to ensure that it complied with the Act and the rules of procedural fairness as established by the courts. This means that the Court must satisfy itself that the Applicant was informed of the substance of the evidence upon which the Commission intended to rely in making its Decision and that she was given an opportunity to reply to that evidence and to present all relevant arguments relating to that evidence (see Mercier, supra, at paras. 5 and 14). I believe that this occurred in the case at bar. The Decision was not what the Applicant wanted but I do not believe there was a reviewable error. [Emphasis added.]
[14] In Hutchinson v. Canada (Minister of the Environment) [2003] 4 FC 580, the Federal Court of Appeal concluded that the "right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation". The Court of Appeal, at paragraphs 48-50, outlined the basis for the aforementioned conclusion by making reference to the findings in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 and Madsen v. Canada (Attorney General) (1996), 39 Admin. L.R. (2d) 248:
In Madsen, supra, the Court held that where submissions made in response to disclosure of the substance of the case raised new facts, they should be disclosed to the party opposite to enable them to respond (at paragraph 28):
Applying the Mercier test to the facts in the case at bar, I am of the view that if either party's second submissions contained facts that differed from those set out in the Investigation report, Conciliation Report or earlier submissions, then the rules of procedural fairness may have required the CHRC to cross-disclose the second set of submissions and to permit the parties to file a third set of submissions. However, I must also express my agreement with the Federal Court of Appeal, that the rules of procedural fairness do not require the CHRC to "systematically disclose to one party the comments it receives from the other". [Mercier, at pp. 253-254.] Otherwise, the submissions/reply process could conceivably continue ad infinitum.
It is clear from Madsen and Mercier, that the obligation to disclose submissions arose in the context where those submissions were to be placed before the Commission. The underlying principle was established ten years earlier in Radulesco, supra. There is nothing in any of these cases which would support the proposition [page 605] that every exchange between an investigator and an interested party must be disclosed to the other party. The right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation.
Consequently, the learned Applications Judge erred when he held that the October 22, 1997 letter ought to have been passed on to the respondent so as to allow her to respond. To the extent that the investigation report disclosed information contained in the letter, the respondent amply exercised her right of response. To the extent that information in the letter was not contained in the investigation report, and was not otherwise before the Commission, the right to respond did not arise. [Emphasis added.]
[15] In 1185740 Ontario Ltd. v. Canada(Minister of National Revenue.) [1999] F.C.J. No. 1432, the Court of Appeal stated the following at paragraph 5:
In Canada (Humans Right Commission) v. Pathak, [1995]s 2 F.C. 455 (C.A.) this Court held that only documents which were actually before the Human Rights Commission in making its decision had to be produced. Other documents relied upon by the investigator did not have to be produced in the absence of evidence that the investigator had inaccurately summarized them. To much the same effect is the decision of this Court in Quebec Ports Terminals v. Canada (Labour Relations Board) 17 Admin. L.R. (2d) 16. I accept and follow these decisions. [Emphasis added.]
[16] The rules of procedural fairness do not require the Commission to systematically disclose to one party the comments it receives from the other. The right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation.
[17] The documents requested by the applicant were not put before the decision-maker. The Commission certified which documents were before it when it made its decision. The aforementioned documents are listed as follows:
1. Complaint form, dated December 31, 2001;
2. Investigation report, dated August 5, 2004;
3. Complainant's Response to the Investigation Report, dated August 31, 2004;
4. Reply to the Complainant's Response to the Investigation Report, dated September 27, 2004;
5. Chronology.
(See respondent's record at page 5.)
[18] Only documents which were actually before the Commission when it made its decision had to be produced. Other documents relied upon by the investigator did not have to be produced in the absence of evidence that the investigator had inaccurately summarized them. The applicant has failed to demonstrate that the investigator even used the undisclosed documents in the completion of her report. Further, even if said documents were used, there was no evidence brought by the applicant to demonstrate that those documents were inaccurately summarized or inaccurately interpreted.
[19] In the present matter, the request for documents made by the applicant occurred early on in the investigation of the complaint. It occurred prior to the completion of the investigator's report and prior to the parties getting the chance to respond to the report. Further, the applicant never mentions any concerns regarding the failure of the investigator to disclose certain documents when he was given the opportunity to respond to the investigator's report. Also, in the applicant's response to the report, there is no mention of the applicant not being aware of the substance of the evidence obtained by the investigator and placed before her.
[20] The Commission is required to inform the parties of the substance of the evidence obtained by the investigator and placed before it. This requirement is met by the disclosure of the investigation report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision. In her report, the investigator considered each and every allegation made by the applicant, including the new allegations made that were not part of his original complaint. With respect to each allegation, the report contains an outline of the nature of the allegation, a summary of the evidence both in support of and in response to the allegation, and an analysis by the investigator. As such, I am convinced that the applicant was informed of the substance of the evidence obtained by the investigator. Further, I find that the applicant was given the opportunity to respond to the investigator's report. I find that the Commission did not breach a duty of procedural fairness in failing to disclose documents requested by the applicant.
2. Did the Commission err in fact and law in its consideration of the evidence?
[21] The applicant submits that the investigator erred in fact and law by failing to properly consider significant evidence which demonstrated that the applicant was an outstanding employee and that a particular document was allegedly falsified. As such, he claims that the Commission erred in its reliance on the investigator's report in dismissing the complaint pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act.
[22] In Tse v. Federal Express Canada Ltd. [2005] F.C.J. No. 740, Justice Eleanor Dawson noted that the Commission is under no obligation to examine the complete record of the investigation. She notes the following at paragraph 20:
As noted in the accompanying reasons, the Federal Court of Appeal has held that procedural fairness does not require that members of the Commission examine the complete record of the investigation. Rather, they are entitled to rely upon the investigator's report so long as the investigator's report is disclosed to the parties, the parties are provided with the opportunity to make all relevant representations in response to the investigator's report, and those responsive representations are considered by the Commission when it makes its decision. In addition, the investigator who prepares the report must conduct a thorough investigation. Interference is warranted on judicial review where an investigator fails to investigate obviously crucial evidence. See, for example, Tahmourpour v. Canada (Solicitor General), 2005 FCA 113; [2005] F.C.J. No. 543 at paragraph 8 and following. [Emphasis added.]
[23] Upon review of the present matter, I am satisfied that the investigator conducted a thorough investigation. In her report, the investigator considered each and every allegation made by the applicant, including the new allegations made that were not part of his original complaint. With respect to each allegation, the report contains an outline of the nature of the allegation, a summary of the evidence both in support of and in response to the allegation, and an analysis by the investigator. Further, I am satisfied that the investigator did not "fail to investigate obviously crucial evidence". I am satisfied that the Commission considered all of the material and evidence presented. The conclusion arrived at by the investigator and adopted by the Commission after hearing the submissions of the parties, represents a careful, reasoned treatment of the issues raised in the complaint. I find that the Commission's decision is reasonable.
[24] The respondent claims that the only material properly before this Court is the material that was before the Commission when it made its decision. As previously mentioned, the Commission has certified to the Court the material that was before it. The respondent points out that all of the credibility evidence included in the applicant's affidavit was not part of the certified evidence before the Commission. As such, the respondent argues that such information should not be considered when deciding on whether or not judicial review should be granted.
[25] I disagree with the respondent's position. If the applicant can provide evidence to illustrate that the investigator's investigation was not thorough and neglected crucial evidence, then it is not important whether or not that crucial evidence was before the Commission. If crucial evidence was ignored by the investigator in making her report, then that evidence can be used as an argument for granting judicial review. However, in the present matter, the applicant has failed to illustrate that crucial evidence was neglected and that the investigator was not thorough in her investigation.
JUDGMENT
THIS COURT ORDERS that
· The application for judicial review be dismissed.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-11-05
STYLE OF CAUSE: AYMAN MERHAM
Applicant
and
ROYAL BANK OF CANADA
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2006
REASONS FOR JUDGMENT AND JUDGMENT : BLAIS J.
APPEARANCES:
| Yehuda Levinson
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| Douglas K. Gray Sarah C. Crossley
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SOLICITORS OF RECORD:
| Levinson & Associates Toronto, Ontario
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| Hicks Morley Hamilton Stewart Storie LLP Toronto, Ontario
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