Date: 19990409
Docket: T-928-98
BETWEEN:
OSVALDO MOSTI
Applicant
- and -
ONTARIO HYDRO
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arrive out of an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") in which the Commission dismissed the applicant's complaint of discrimination in employment against him by the respondent on the grounds of national origin and age. The decision of the Commission is dated the 26th of March, 1998.
[2] The applicant's place of origin is Argentina. He was landed in Canada on the 1st of June, 1987. He is an electro-mechanical engineer. He commenced employment with the respondent at the Bruce Nuclear Power Development on the 20th of November, 1989, as a Probationary Assistant Technical Supervisor. The respondent terminated his employment on the 24th of August, 1990 on the alleged basis that he failed to meet the required performance standards for his position. On that date, the applicant was 48 years of age.
[3] During the course of his employment with the respondent, the applicant was supervised by two supervisors and was provided with a "mentor". He received three performance appraisals which were discussed with him. He was required to keep a daily log book which was reviewed daily by one of his supervisors.
[4] The applicant alleges that, during his period of employment with the respondent, he was subjected to criticism that was out of proportion to what other employees received in similar circumstances, was inappropriately criticized for not working fast enough, was unduly scrutinized, was subjected by his mentor to a discriminatory comment based on his national origin, and was belittled in front of other employees.
[5] The applicant's complaint to the Commission was filed on or about the 28th of June, 1994. The complaint was assigned to an Investigator by the Commission. The respondent was provided an opportunity to reply to the complaint. The applicant was provided an opportunity to respond to the respondent's reply and availed himself of that opportunity by letter dated the 20th of October, 1995. An initial report was prepared by the Investigator. That report was shared with the applicant who once again provided written submissions dated the 8th of April, 1997. Further investigation followed and a revised report was prepared. Once again, the revised report was shared with the applicant and once again the applicant made submissions. The Investigator's final report, together with a covering note, was forwarded to the Commission. On the 9th of July, 1997, the Commission dismissed the applicant's complaint on the basis that there was no evidence to support the applicant's allegation of discrimination on a prohibited ground.
[6] The applicant sought judicial review of the decision of the Commission. On consent, that application was discontinued on the understanding that the applicant would be provided an opportunity to make comments on the covering note that had gone before the Commission. A further Investigator's report was prepared and shared with the applicant. On three occasions in February 1998, the applicant provided response submissions. His solicitor also provided submissions. The matter again went before the Commission resulting in the decision here under review.
[7] The substance of the Commission's decision under review reads as follows:
| 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 s. 44 (3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because: |
| the evidence does not support the allegations that the complainant was treated in an adverse differential manner and that his employment was terminated because of his national or ethnic origin and age. |
| the evidence does not support the allegation that the complainant was treated differently and his employment terminated because of his age (48 years). The complainant was one of 47 individuals hired in November 1989 whose ages ranged from 26 years to 52 years. The complainant's employment was terminated nine months later. Other individuals whose employment was terminated during that period were between 33 and 47 years old. |
| the evidence does not support the complainant's allegations that his work history was inappropriately verified, that he was assigned inappropriate duties and that he was unfairly assessed in performance appraisals. |
| the evidence does not support the complainant's allegation that he was subjected to more supervision than his colleagues. |
[8] The applicant alleges: that the Commission erred in failing to exercise its discretion appropriately in the manner in which it investigated the applicant's complaint; breached the duty of procedural fairness owed by it to the applicant in failing to provide the applicant all of the information requested by him so as to enable him to effectively reply to the Investigator's report and in failing to provide the applicant with an oral hearing to test the respondent's evidence; and based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the totality of the material before the Commission.
[9] Section 43 of the Canadian Human Rights Act1 provides the Commission with authority to designate a person as an "Investigator" to investigate a complaint. That authority was exercised here. A designated investigator is required to investigate the complaint and, by subsection 44(1), to "... as soon as possible after the conclusion of [the] investigation, submit to the Commission a report of the findings of the investigation." Following receipt of the Investigator's report in this matter the Commission acted under subsection 44(3), the relevant portions of which read as follows:
| (3) On receipt of a report referred to in subsection (1) , the Commission ... (b) shall dismiss the complaint to which the report related if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or ... |
(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, ... |
[10] In Slattery v. Canadian Human Rights Commission2, Mr. Justice Hugessen wrote:
| The discretion of the Commission to dismiss a complaint pursuant to s. 44(3)(b)(i)... is cast in terms even broader than those which were considered by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne, et al [1989] 2 S.C.R. 879; ... where the content of the duty of fairness in such cases was described as follows by Sopinka J. for the majority. |
| "I agree with the reasons of Marceau, J., that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. |
| "The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information."... [some citations omitted]. |
[11] In Bell Canada v. Communications, Energy and Paper Workers Union of Canada3, Mr. Justice Décary wrote at page 136:
| It is settled law than when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891). |
I am satisfied that precisely the same low threshold applies when the Commission forms an opinion, rightly or wrongly, that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted.
[12] Mr. Justice Décary continued at page 137:
| The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. |
[13] Against these cautionary words regarding review of decisions of the Commission such as that before me, to paraphrase the words of Mr. Justice Décary in the first quotation from Bell Canada above, the circumstances of this case are such that, I conclude, the Commission could validly form an opinion, rightly or wrongly, that there was no reasonable basis on the evidence before it for referring this complaint to the chairperson of the Canadian Human Rights Tribunal. In so deciding, I conclude that the Commission made no reviewable error of fact or law.
[14] I turn then to issues of procedural fairness. In Slattery v. Canada (Human Rights Commission)4, Mr. Justice Nadon wrote commencing at page 604:
| The rules of procedural fairness require merely that a complainant know the essence of the case against him or her. In the words of Lord Denning M.R. in the case of Selvarajan v. Race Relations Board, [1976] 1 All ER 12 (C.A.), at page 19, cited by Justice Sopinka in S.E.P.Q.A. (at page 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 of 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. |
| The investigator's conclusion in the case at bar concluded that: |
| ... |
| The CHRC's adoption of that conclusion was more than sufficient to provide the applicant with the "broad grounds" of the case against her, given the detailed description of the evidence of the case that was contained in the report. |
| The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant's complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant's responding submissions. |
| As such, I find no grounds to review the CHRC's decision to dismiss the applicant's complaint based on lack of thoroughness of the investigation or any other violation of the rules of procedural fairness.5 |
[15] I reach the same conclusion on the facts of this matter.
[16] In the result, this application for judicial review will be dismissed.
[17] Counsel for the applicant urged that, if I were to conclude as I have, that this application should be dismissed, it is an appropriate case in which to exercise my discretion to make no order as to costs. Counsel for the respondent urged that costs should follow the event.
[18] I am in agreement with the position of counsel for the applicant. The applicant's complaint was first brought, not unreasonably, before the Ontario Human Rights Commission. That proved to be inappropriate. A judicial review was commenced before the Commission and was discontinued when the Commission acknowledged that its process had, to that point, been flawed. In accordance with the rules of this Court that were applicable at the time, the discontinuance was without order as to costs. This application represented a third application for judicial review with attendant expense to the applicant. In the foregoing circumstances, I will exercise my discretion to make no order as to costs.
"Frederick E. Gibson"
Judge
TORONTO, ONTARIO
April 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-928-98
| STYLE OF CAUSE: OSVALDO MOSTI |
| - and - |
| ONTARIO HYDRO |
DATE OF HEARING: TUESDAY, APRIL 6, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: FRIDAY, APRIL 9, 1999
APPEARANCES: Mr. Marshall Swadron
For the Applicant
Mr. Eric R. Finn
For the Respondent
SOLICITORS OF RECORD: Swadron Associates
Barristers & Solicitors
1100-30 Saint Patrick St.,
Toronto, Ontario
M5T 3A3
For the Applicant
| Ontario Hydro |
Office of the General Counsel
Legal Affairs
H18F24-700 University Ave.,
Toronto, Ontario
M5G 1X6
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990409
Docket: T-928-98
Between:
OSVALDO MOSTI
Applicant
| - and - |
| ONTARIO HYDRO |
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. H-6, as amended.
2 (1996), 205 N.R. 383 (F.C.A.).
4 [1994] 2 F.C. 574 (F.C.T.D.), Aff'd: supra , footnote 2.
5 The reference to "S.E.P.Q.A." is to Syndicat Des Employés De Production Du Québec Et De L'Acadie v. Canada (Canadian Human Rights Commission) [1989] 2 S.C.R. 879.