Ottawa, Ontario, September 18th, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Mr. Mossadeg Niaki, seeks to overturn a decision of the Canadian Human Rights Commission (the Commission), dated August 17, 2005. The Commission dismissed both of Mr. Niaki’s complaints against the Department of National Defence (the Department) for discriminatory conduct in employment on three separate occasions. He claimed the Department violated sections 7, 8, 10, 14(1)(c) and 14.1 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). Mr. Niaki’s allegations of discrimination on the basis of racial, national or ethnic origin arose from a job interview he had on June 12, 2002, and from two job applications he made in or around April 2003 and September 2003.
[2] The Commission dismissed Mr. Niaki’s two complaints because it concluded the evidence did not support the allegation that the Department had discriminated against Mr. Niaki when it rejected his various applications for employment.
[3] Mr. Niaki submits that the Commission’s decision to dismiss his complaints was erroneous in fact and in law as it did not fully consider the evidence before it and applied the wrong legal principles with respect to the notion of discrimination. He also argues that the Commission denied him procedural fairness by delaying the investigation process, limiting his ability to provide a full response to the investigator’s report and failing to consider the entire body of evidence when it made its decision not to refer the matter to the Canadian Human Rights Tribunal (the Tribunal).
[4] After carefully examining the record and the parties’ submissions, I have concluded that the Commission did not err in dismissing the applicant’s complaints and in closing the files on this matter. The following are my reasons for coming to this conclusion.
BACKGROUND
[5] Mr. Niaki is an Iranian-Canadian who holds a Bachelor and a Masters degree in Mechanical Engineering from the University of Ottawa. On February 28, 2002, he applied for a Maritime Combat System Engineer position with the Department. Mr. Niaki was one of 147 applicants in the competition. Thirty-seven applicants were screened into the competition. Twenty-four were interviewed, including Mr. Niaki.
[6] Mr. Niaki’s interview took place on June 12, 2002. He was interviewed by a Selection Board (the Board) comprised of Mr. Patrick Or, Mr. Greg Walker, Mr. Steve Forman and Mr. Richard Caron. The Board utilized, among other things, a checklist providing questions for the Board to ask. When asked about his French language skills, Mr. Niaki apparently revealed that he was born in Iran and arrived in Canada in 1987 as a political refugee.
[7] At the end of the interview, Mr. Niaki was asked to complete a form authorizing a background verification at the secret level. At that time, Mr. Caron asked Mr. Niaki if he was aware of any factors which would preclude him from getting a security clearance, and inquired about his travel history to any foreign nations, specifically in the Middle East. According to Mr. Niaki, Mr. Caron appeared concerned about his travel history, and also asked him if he carried a valid non-Canadian passport. Mr. Niaki told Mr. Caron that he had an Iranian passport, but that it had expired many years ago and that he would not be able to obtain one anymore due to his political refugee status.
[8] The respondent informed the Commission’s appointed investigator that all candidates were asked if there was anything that would preclude them from obtaining the secret level security clearance required upon appointment. According to the respondent, the discussion that ensued was unintended and resulted more from Mr. Niaki’s response to the questions than from any interest by the Board members.
[9] On July 11, 2002, Mr. Niaki was advised that the Board had concluded he had not met the position’s requirements. One week later, he attended a post-board interview with Mr. Or and Mr. Caron and was told he had been disqualified on the basis of personal suitability. In particular, the Board had determined the position required a person who could work autonomously, with little guidance or supervision, and found the applicant did not meet this requirement. This was apparently corroborated by reference checks.
[10] Mr. Niaki subsequently filed a complaint with the Recourse Branch of the Public Service Commission on October 3, 2002. He alleged that his personal suitability had been improperly assessed by the Board because the results of his reference checks conflicted with his performance appraisals. As a result, a follow-up reference check was conducted with one of the applicant’s references, apparently confirming the Board’s earlier concerns about Mr. Niaki’s motivation, initiative and judgment.
[11] Mr. Niaki then filed a human rights complaint on June 11, 2003. An investigator was assigned to the file on June 20, 2003, and an investigation into the complaint was commenced. Throughout the course of the investigation, Mr. Niaki was given the opportunity to make submissions, to comment on the respondent’s submissions, and to comment on the investigator’s report. In the course of the investigation, the investigator interviewed Mr. Niaki’s references and the Board members, and also reviewed the documents related to the competition as well as email information from the Public Service Commission.
[12] The facts related to the second complaint are somewhat less complex. In April 2003, the applicant applied for a second competition to be a Maritime Combat Systems Engineer with the Department. The job description and requirements for that second competition were, for all intents and purposes, similar to the first one for which Mr. Niaki had applied in February 2002. On August 24, 2003, Mr. Niaki was advised verbally that he had been screened out of the competition for not having one of three required experiential factors. This was followed up with written notification on November 26, 2003 in which Mr. Niaki was advised that it had been determined he possessed none of the three experience criteria required for the competition.
[13] Mr. Niaki also applied in or around September 2003 in a Department competition to work as a Procurement and Supply Officer. Candidates were required to self-evaluate their degree of experience regarding each experience requirement via a customized online application form. As Mr. Niaki indicated he had none of the listed experience factors, his application was rejected. He was sent an electronic notice indicating that his application did not meet the Department’s requirements.
[14] On December 8, 2003, Mr. Niaki filed a second human rights complaint alleging discrimination by the Department for refusing his applications for employment on the grounds of retaliation arising out of the first human rights complaint. The same investigator was assigned to investigate the complaint January 8, 2004.
[15] In the course of this investigation, the investigator interviewed the Board. It was confirmed that this second Selection Board had no knowledge that Mr. Niaki had filed a human rights complaint against the Department.
[16] The investigator released her reports into the two complaints on May 9, 2005, and gave both parties the opportunity to comment on them. Mr. Niaki filed his comments to the two separate investigation reports on June 8, 2005. On August 17, 2005, the Commission informed Mr. Niaki that it had dismissed both human rights complaints.
DECISION UNDER REVIEW
[17] After reviewing the investigator’s reports and the submissions filed in response by the parties, the Commission dismissed the first complaint because the evidence did not support any discriminatory actions by the Board. It also decided that the evidence indicated Mr. Niaki was
found unsuitable for the Eng-04 Maritime Combat Systems Engineer position for reasons not related to his race, national or ethnic origin.
[18] As for the second complaint, it was also rejected because the evidence did not support Mr. Niaki’s argument about retaliation. The Commission also concluded that the evidence indicated Mr. Niaki was screened out of both competitions because of non-discriminatory factors.
[19] In doing so, the Commission merely endorsed the investigator’s recommendations. Since courts have treated an investigator’s reports as constituting the Commission’s reasoning (Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at paragraph 35; Bell Canada v. C.E.P. (1999), 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at paragraph 30 (C.A.); Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at paragraph 43 (C.A.)), it is worth reproducing the analysis portion of the reports.
[20] With respect to the first complaint, the investigator wrote (at paragraph 32 of her report):
The evidence is that some of the questions in relation to the security clearance process and questions of citizenship that are found on the checklist form are intended to ascertain future delays and∕or concerns in carrying out the security clearance process. The evidence is that the answers to these questions might elicit the candidates country of origin, their travel history and citizenship status. The evidence of the complainant is that he perceived Mr. Caron was concerned about his background history and he offered information as it related to the reason he came to Canada. The evidence is that candidates were required to pass the oral interview in order to proceed to the next stage of the competition where reference[s] were checked. The evidence is the complainant proceeded to the next stage by having his references checked. The evidence is that the answers recorded by Mr. Caron and Ms. Durocher to the questions asked of the reference, Mr. Choueiry, were recorded accurately. The evidence of the summary prepared by Mr. Caron indicates the consensus of the selection board that the complainant lacked certain qualities the selection board had deemed essential for the ENG-04 position. The evidence of the selection board members is that they did not feel pressured by Mr. Caron to find the complainant unsuitable, did not find Mr. Caron overly aggressive in his questioning of any candidates and did not observe any behaviour that would lead them to believe he held any racial bias towards the complainant.
[21] The investigator’s analysis of the second complaint reads as follows (at paragraphs 35 and 36 of the report):
The evidence is that the complainant applied for two positions in 2003 with DND. The first competition was for a Maritime Combat System Engineer. The evidence is the selection board members, Mr. Holmes, Mr. Ames and Mr. Nelson had no prior knowledge the complainant had lodged a human rights complaint against DND with regard to the 2002 Maritime Combat System Engineer competition and there was no evidence provided to the contrary. The evidence is the complainant did not meet the required experiential factors when assessed against the information he provided in his resume and covering letter. The evidence also indicates both the job posting and statement of qualifications noted that candidates needed to supply specific examples of how they demonstrated the requisite experience.
With regard to the second competition for the Procurement and Supply Officer competition, the evidence is the Public Service Resourcing System was utilized to screen external applicants. The evidence is the complainant was an external candidate. The evidence is that during the self-assessment phase of the competition, the complainant scored himself zero experience in six areas. The evidence is that candidates needed to score a minimum level of experience in every question otherwise they would automatically be disqualified. The evidence is that as a result of the complainant’s self-assessment, he was disqualified.
THE ISSUES
[22] This application for judicial review raises the following issues:
1. What is the applicable standard of review?
2. Did the Commission err in fact or in law by deciding not to refer the complaints to the Tribunal?
3. Was the applicant denied procedural fairness?
RELEVANT STATUTORY PROVISIONS
[23] A number of provisions in the Act, above, are relevant to the case at bar. For ease of reference, they are appended to these reasons as Schedule “A”.
ANALYSIS
[24] In his written submissions, the respondent’s counsel objected to a number of documents Mr. Niaki filed as exhibits to his affidavit. These documents were either submitted to the investigator but not forwarded to the Commission, or were not submitted to either the investigator or the Commission. The respondent submits it is well established that material which was not before the Commission cannot be introduced before the Court on an application for judicial review absent specific allegations of breaches of natural justice.
[25] Counsel for the applicant has not addressed this issue in his written or oral submissions, but I think the respondent’s position is unassailable. This Court has very recently confirmed that where a party seeks review of a decision not to refer a matter to the Tribunal, the only evidence a judge is obligated to look at is the record of material that was before the Commission when it made the decision under review. As Justice J.D. Denis Pelletier wrote in Hutchinson v. Canada (Minister of the Environment), 2003 FCA 133, [2003]4 F.C. 580, [2003] F.C.J. no. 439 (QL) at paragraph 49, 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.”
[26] The only exception to this general rule, applicable on every application for judicial review, appears to be when the applicant raises an issue of procedural fairness or when the thoroughness of the investigator’s report is at stake. As Justice J. Edgar Sexton wrote in C.B.C. v. Paul, above, at paragraph 69:
It seems clear that the submissions which the parties will be making to the Commission when the matter is remitted will be focused on the issue of the neutrality and thoroughness of the report. In a case such as this, where it is alleged that the Investigation Report submitted to the Commission is biased or incomplete, parties must have the opportunity to provide and comment upon evidence that is relevant to that question. Therefore, in making their submissions, the parties are to be permitted to refer to the summaries of the witness interviews written by the investigator.
[27] In the present case, the material the respondent objects to is not related to the issues of procedural fairness raised by the applicant. Moreover, the additional material filed by the applicant does not support an allegation that the investigator’s reports were not thorough. Rather, it appears the material is designed to restate the applicant’s human rights complaints on their merits. I believe that in reviewing the Commission’s decision not to refer a complaint to the Tribunal, this Court should normally look only at the record that was before the Commission when it made the decision under review. Indeed, we should pay heed to comments made by Justice Barry Strayer in C.B.C. v. Paul, above, at paragraph 78:
I can think of nothing more harmful to the informal, efficient, and timely disposition of complaints by those who believe themselves to be victims of a human rights abuse, including if necessary a fair hearing before a qualified tribunal within a reasonable time after the events in question occur, if the preliminary investigation on which the Commission bases its process is to be subjected to detailed judicial scrutiny before the parties can ever have their “day in court” before a tribunal. I respectfully suggest that more recent jurisprudence of this Court does not require such scrutiny of the investigation stage. I fully accept, of course, that if the matter does go to a tribunal then full judicial review of its proceedings should be and is available.
[28] As a result, I am of the view that the following analysis should proceed on the basis of the material that was before the Commission when it made its decision. This includes the Rule 318 Certificate filed by the Commission, the investigator’s reports, the complaints summaries, the complaint forms, the respondent’s and complainant’s responses to the investigator’s report on the first complaint, and the chronologies for the two complaints. In any event, I should add that the additional material filed by counsel for the applicant was not significantly relied upon at the hearing and does not add much to his arguments.
a) Standard of review
[29] Both parties were in agreement that the proper standard of review to apply when the Commission dismisses a complaint is reasonableness, and rightly so. The Supreme Court of Canada, the Federal Court of Appeal and this Court have all confirmed in the past that the Commission acts as an administrative and screening body when deciding whether a complaint should be referred to the Tribunal for inquiry under sections 44 and 49 of the Act. The Commission does not decide a complaint on its merits at this stage, but determines whether having regard to all the circumstances, it is satisfied that an inquiry into the complaint is warranted. Such a decision is administrative in nature, and therefore discretionary (see Syndicat, above; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at page 891).
[30] Furthermore, it has been held that the Act grants the Commission considerable latitude when performing its screening function. Parliament did not intend courts to intervene in the Commission’s decisions except in the most serious of circumstances. Absent a breach of procedural fairness or an error of law, this Court should intervene only where it is shown that the Commission’s decision is unreasonable. As Justice Robert Décary wrote in Bell Canada v. C.E.P., above, at paragraph 38:
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 at 698, 105 D.L.R. (4th) 609 (F.C.A.), 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.
[31] It is no doubt true that different decisions call for different levels of deference. As a matter of principle, a court reviewing a decision made pursuant to section 44(3) of the Act must apply the pragmatic and functional approach anew instead of relying on precedents. That being said, this exercise has been done in the recent past by a number of my colleagues and by the Federal Court of Appeal, and there is a large consensus that the general standard of review to be applied in a case like this is reasonableness. I myself have reviewed that case law and applied the pragmatic and functional analysis in Bastide v. Canada (Attorney General), 2005 FC 1410, and I can see no reason to stray from these reasons in the present case.
[32] I hasten to say, however, that this standard obviously does not apply when the Commission’s impugned decision raises an issue of procedural fairness. As noted by Justice Ian Binnie in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 102, “[t]he content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.” Since a breach of procedural fairness or of natural justice cannot attract any amount of curial deference, it will normally void the decision under review. I shall thus use this approach to examine the applicant’s arguments alleging a breach of procedural fairness.
[33] One more caveat should be made before embarking on an analysis of Mr. Niaki’s submissions. Both in his oral and written submissions, counsel for Mr. Niaki argued that the Commission based its decision to dismiss Mr. Niaki’s complaints upon the wrong legal principles. More specifically, Mr. Niaki contends that the Commission applied the wrong evidential burden in dismissing the complaints. Instead of deciding whether there is a “reasonable basis in the evidence for proceeding to the next stage” (Syndicat, above, at paragraph 28), the Commission would have purportedly asked itself if a prima facie case had been made out, which is a much more onerous standard. This is clearly a question of mixed fact and law, calling for a fair amount of deference. It might have been different if the Commission had to decide what level of evidential burden to apply before ruling on the complaint. Much like the situation in Sketchley v. Canada (Attorney General), 2005 FCA 404, 263 D.L.R. (4th) 113, where the Commission had to decide whether a Treasury Board policy was discriminatory before assessing a complaint, the Commission would then have had to rule on a fundamental question of law before deciding to dismiss the complaint. To the extent that such a decision would have had precedential value, its decision would have been subject to a less deferential standard of review.
b) Was the Commission’s decision to dismiss the complaints reasonable?
[34] Mr. Niaki alleges three specific errors in the investigator’s reports. First, he submits the investigator failed to note that the questions he was asked about security were not on the question checklist form. The only question pertaining to security found in the checklist was: “Do you know of anything that would preclude you from obtaining a SECRET level clearance?” Mr. Niaki claims the investigator failed to appropriately address the fact that Mr. Caron’s questions related to his citizenship status as an Iranian. He also claims questions about his travel history and passports were not included in the checklist and were not asked of any other candidates. He submits this should have been a clear indication that he was treated in a differential manner because of his ethnic and national origin.
[35] Second, Mr. Niaki claims the investigator failed to probe contradictions between answers given by one of the referees and Mr. Caron’s record of those answers. He also argues the investigator ought to have investigated further contradictions between one of the referee’s original responses and responses given at the time of the second reference check. With respect to his second reference, he submits that the investigator failed to acknowledge the reference was Mr. Niaki’s supervisor and not a former colleague, therefore placing Mr. Niaki at a greater disadvantage since it was a positive reference. By ignoring this second reference’s comments, Mr. Niaki claims the investigator failed to develop a full picture of the discrimination against him.
[36] Finally, Mr. Niaki asserts that the investigator failed to analyze the issue of retaliation with reference to the manner in which Mr. Niaki was interviewed. In examining his second complaint, the applicant is of the view that the investigator did not factor the element of reprisal in her analysis and examined the evidence in a non-contextual manner.
[37] In assessing the decision of the Commission and, indirectly, the investigator’s reports on which it is based, one must bear in mind that the role of this Court is not to determine whether it would have come to the same conclusion, but whether the decision is supported by cogent reasons. As Justice Frank Iacobucci explained in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[38] Having carefully considered the investigator’s reports and the submissions of the parties, I am unable to conclude that the alleged errors warrant this Court’s intervention. The investigator properly conducted the investigation, interviewed every pertinent individual, reviewed relevant documents and took into account all the concerns the applicant raised. There is no evidence that the investigation was not thorough and neutral. Indeed, the summary of the parties’ allegations, and in particular of the applicant’s, captures the essence of his submissions in this Court regarding the Department’s alleged discriminatory practices, and demonstrates that she was clearly alert and sensitive to the applicant’s grounds for complaint.
[39] Most of the alleged errors relate to the discretionary weighing of fact by the investigator in conducting her investigation in this matter. In essence, the applicant disagrees with the manner in which the investigator conducted her questioning and weighed the evidence uncovered through the investigation process. That aspect of the investigation process is clearly entitled to the highest degree of deference.
[40] Indeed, the parties had every opportunity to make submissions in response to the investigator’s report and to bring any omissions to her attention. That being the case, this Court should not intervene unless it is demonstrated that the exercise of that right could not overcome the prejudice caused by the faulty investigation. The comments made by Justice Marc Nadon in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. no. 181 (T.D.) (QL) at page 605 are particularly apposite in the case at bar:
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.
[41] As a result, I can find no basis to conclude that the Commission was unreasonable in deciding to dismiss Mr. Niaki’s complaints.
c) Procedural fairness
[42] Mr. Niaki further claims the Commission denied him procedural fairness by delaying the investigation process, limiting his ability to provide a full response to the investigator’s report and failing to place the entire body of evidence before the Commission at the time it decided not to refer the matter to the Tribunal. With respect to the limitations to provide a response, Mr. Niaki feels it is unfair that he could only provide submissions up to a maximum of ten pages in length and could not include annexes or any information related to confidential settlement discussions. Mr. Niaki also believes the Commission was led to making a patently unreasonable decision as a consequence of not being able to directly review the evidence he and the Department had submitted to the investigator.
[43] There is no statutory prescription for the length of a submission before the Commission. In order to demonstrate that the limitation breached procedural fairness guarantees, the applicant must show some prejudice as a result of the limitation. This he has not done. He was given the opportunity to make submissions regarding his complaint and to review and comment on the respondent’s reply to his complaint, and he did. There is not a shred of evidence that he was unable to make adequate submissions, and Mr. Niaki has not brought forward new or pertinent information which he was precluded from bringing to the Commission’s attention. In the absence of such a prejudice, the mere fact of a limitation on page length does not amount to a denial of procedural fairness.
[44] With respect to the delay in investigating his complaint, it has been held time and again that delay alone is not sufficient to overturn a Commission decision. To succeed in an allegation of delay, an applicant must demonstrate two things: that there has been inordinate delay, and that the applicant has suffered real prejudice as a result of the delay. In this case, the entire process (from the filing of the first complaint to the release of the investigation report) took approximately 23 months. This is certainly a long delay, no doubt occasioned at least in part by the two changes of investigator, but I am not convinced that it is inordinate. In any case, Mr. Niaki has failed to present any evidence that he suffered any real prejudice as a result of that delay. While I am prepared to accept that the applicant may have been under stress during that period, I am not prepare to hold that the delay was abusive and that it caused actual prejudice of such magnitude that it would offend “the community’s sense of decency and fairness,” to use the Supreme Court’s language in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 132.
[45] As to the alleged denial of procedural fairness because the Commission did not review the entire investigation file, the proposition simply has no merit. The only relevant requirement is found in section 44 of the Act, which says the Commission must receive the investigation report once completed before rendering its decision. There is no requirement that the Commission examine the complete record of the investigation, as this Court and the Court of Appeal have held before: Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455, [1995] F.C.J. no. 555 (C.A.)(QL) at paragraphs. 23-24; CBC v. Paul, above, at paragraph 75.
[46] Indeed, I agree with the respondent that the only procedural requirements for the consideration of a complaint before the Commission have been laid out in a number of decisions and summarized by the Federal Court of Appeal in C.B.C. v. Paul, above, at paragraph 43 [Footnotes omitted]:
The Courts, applying the principles of procedural fairness, have imposed additional requirements upon the Commission prior to its taking action under s. 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 Investigation Report itself.
[47] The record indicates that the Commission fully met these requirements. Mr. Niaki was given full disclosure of the substance of the evidence obtained by the investigator. He was given the opportunity to make relevant representations in response and the Commission considered those representations in rendering its decision. Therefore, there is no basis to conclude Mr. Niaki was denied procedural fairness, and the Commission’s decision must stand.
[48] In light of the foregoing analysis, this application for judicial review is dismissed, with costs to the respondent.
JUDGMENT
THIS COURT ADJUDGES THAT:
This application for judicial review be dismissed, with costs to the respondent.
SCHEDULE “A”
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2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. *** 7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. *** 8. It is a discriminatory practice (a) to use or circulate any form of application for employment, or (b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination. *** 10. It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. *** 14. (1) It is a discriminatory practice, (a) in the provision of goods, services, facilities or accommodation customarily available to the general public, (b) in the provision of commercial premises or residential accommodation, or (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination. (2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination. 14.1 It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim. *** 40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission. (2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto. (3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint. (3.1) No complaint may be initiated under subsection (3) as a result of information obtained by the Commission in the course of the administration of the Employment Equity Act. (4) If complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with the complaints together under this Part and may request the Chairperson of the Tribunal to institute a single inquiry into the complaints under section 49. (5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice (a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada; (b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or (c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence. (6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant. (7) No complaint may be dealt with by the Commission pursuant to subsection (1) that relates to the terms and conditions of a superannuation or pension fund or plan, if the relief sought would require action to be taken that would deprive any contributor to, participant in or member of, the fund or plan of any rights acquired under the fund or plan before March 1, 1978 or of any pension or other benefits accrued under the fund or plan to that date, including (a) any rights and benefits based on a particular age of retirement; and (b) any accrued survivor’s benefits. *** 43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. (2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4). (2.1) Subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, an investigator with a warrant issued under subsection (2.2) may, at any reasonable time, enter and search any premises in order to carry out such inquiries as are reasonably necessary for the investigation of a complaint. (2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge’s hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant. (2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. (2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator. (3) No person shall obstruct an investigator in the investigation of a complaint. (4) The Governor in Council may make regulations (a) prescribing procedures to be followed by investigators; (b) authorizing the manner in which complaints are to be investigated pursuant to this Part; and (c) prescribing limitations for the purpose of subsection (2.1). 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. (2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied (a) that the complaint ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint would more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other that this Act, it shall refer the complainant to the appropriate authority.
(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 related is the Commission is satisfied
(i) that, having repard 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).
(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and (b) may, in such manner as it sees fit, noify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
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2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l’égalité des chances d’épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, la déficience ou l’état de personne graciée.
3. (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience.
2) Une distinction fondée sur la grossesse ou l’accouchement est réputée être fondée sur le sexe.
***
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects : a) de refuser d’employer ou de continuer d’employer un individu; b) de le défavoriser en cours d’emploi.
*** 8. Constitue un acte discriminatoire, quand y sont exprimées ou suggérées des restrictions, conditions ou préférences fondées sur un motif de distinction illicite : a) l’utilisation ou la diffusion d’un formulaire de demande d’emploi; b) la publication d’une annonce ou la tenue d’une enquête, oralement ou par écrit, au sujet d’un emploi présent ou éventuel.
*** 10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale : a) de fixer ou d’appliquer des lignes de conduite; b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel. *** 14. (1) Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait de harceler un individu : a) lors de la fourniture de biens, de services, d’installations ou de moyens d’hébergement destinés au public; b) lors de la fourniture de locaux commerciaux ou de logements; c) en matière d’emploi (2) Pour l’application du paragraphe (1) et sans qu’en soit limitée la portée générale, le harcèlement sexuel est réputé être un harcèlement fondé sur un motif de distinction illicite.
14.1 Constitue un acte discriminatoire le fait, pour la personne visée par une plainte déposée au titre de la partie III, ou pour celle qui agit en son nom, d’exercer ou de menacer d’exercer des représailles contre le plaignant ou la victime présumée. *** 40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d’individus ayant des motifs raisonnables de croire qu’une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière. (2) La Commission peut assujettir la recevabilité d’une plainte au consentement préalable de l’individu présenté comme la victime de l’acte discriminatoire. (3) La Commission peut prendre l’initiative de la plainte dans les cas où elle a des motifs raisonnables de croire qu’une personne a commis un acte discriminatoire. 3.1) La Commission ne peut prendre l’initiative d’une plainte qui serait fondée sur des renseignements qu’elle aurait obtenus dans le cadre de l’application de la Loi sur l’équité en matière d’emploi. (4) En cas de dépôt, conjoint ou distinct, par plusieurs individus ou groupes de plaintes dénonçant la perpétration par une personne donnée d’actes discriminatoires ou d’une série d’actes discriminatoires de même nature, la Commission peut, pour l’application de la présente partie, joindre celles qui, à son avis, soulèvent pour l’essentiel les mêmes questions de fait et de droit et demander au président du Tribunal d’ordonner, conformément à l’article 49, une instruction commune. (5) Pour l’application de la présente partie, la Commission n’est validement saisie d’une plainte que si l’acte discriminatoire : a) a eu lieu au Canada alors que la victime y était légalement présente ou qu’elle avait le droit d’y revenir; b) a eu lieu au Canada sans qu’il soit possible d’en identifier la victime, mais tombe sous le coup des articles 5, 8, 10, 12 ou 13; c) a eu lieu à l’étranger alors que la victime était un citoyen canadien ou qu’elle avait été légalement admise au Canada à titre de résident permanent. (6) En cas de doute sur la situation d’un individu par rapport à une plainte dans les cas prévus au paragraphe (5), la Commission renvoie la question au ministre compétent et elle ne peut procéder à l’instruction de la plainte que si la question est tranchée en faveur du plaignant. (7) La Commission ne peut connaître, au titre du paragraphe (1), d’une plainte qui porte sur les conditions et les modalités d’une caisse ou d’un régime de pensions, lorsque le redressement demandé aurait pour effet de priver un participant de droits acquis avant le 1er mars 1978 ou de prestations de pension ou autres accumulées jusqu’à cette date, notamment : a) de droits ou de prestations attachés à un âge déterminé de retraite; b) de prestations de réversion.
*** 43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l’enquêteur », d’enquêter sur une plainte. (2) L’enquêteur doit respecter la procédure d’enquête prévue aux règlements pris en vertu du paragraphe (4). (2.1) Sous réserve des restrictions que le gouverneur en conseil peut imposer dans l’intérêt de la défense nationale ou de la sécurité, l’enquêteur muni du mandat visé au paragraphe (2.2) peut, à toute heure convenable, pénétrer dans tous locaux et y perquisitionner, pour y procéder aux investigations justifiées par l’enquête. (2.2) Sur demande ex parte, un juge de la Cour fédérale peut, s’il est convaincu, sur la foi d’une dénonciation sous serment, qu’il y a des motifs raisonnables de croire à la présence dans des locaux d’éléments de preuve utiles à l’enquête, signer un mandat autorisant, sous réserve des conditions éventuellement fixées, l’enquêteur qui y est nommé à perquisitionner dans ces locaux. (2.3) L’enquêteur ne peut recourir à la force dans l’exécution du mandat que si celui-ci en autorise expressément l’usage et que si lui-même est accompagné d’un agent de la paix. (2.4) L’enquêteur peut obliger toute personne se trouvant sur les lieux visés au présent article à communiquer, pour examen, ou reproduction totale ou partielle, les livres et documents qui contiennent des renseignements utiles à l’enquête. (3) Il est interdit d’entraver l’action de l’enquêteur. (4) Le gouverneur en conseil peut fixer, par règlement : a) la procédure à suivre par les enquêteurs; b) les modalités d’enquête sur les plaintes dont ils sont saisis au titre de la présente partie; c) les restrictions nécessaires à l’application du paragraphe (2.1).
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête. (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) 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).
(4) Après réception du rapport, la Commission : a) informe par écrit les parties à la plainte de la décision qu’elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu’elle juge indiquée, de la décision qu’elle a prise en vertu des paragraphes (2) ou (3); |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1570-05
STYLE OF CAUSE: Mossadeg Niaki v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
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Mr. Kourosh Farrokhzad
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Mrs. Elizabeth Richards
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SOLICITORS OF RECORD:
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Mr. Kourosh Farrokhzad Sack Goldblatt Mitchell LLP Barristers & Solicitors Ottawa, Ontario
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Mrs. Elizabeth Richards Department of Justice |