Federal Court Decisions

 

 

 

 

Date: 20060922

Docket: T-812-05

Citation: 2006 FC 1130

Ottawa, Ontario, September 22, 2006

PRESENT:     The Honourable Madam Justice Heneghan

 

BETWEEN:

ADRIANNE MCNABB

Applicant

and

 

CANADA POST CORPORATION

Respondent

 

REASONS FOR ORDER AND ORDER

 

I.  Introduction

 

[1]               Ms. Adrianne McNabb (the “Applicant”) seeks judicial review of the decision made on March 24, 2004 by the Canadian Human Rights Commission (the “Commission”), dismissing her complaint, dated November 9, 2003, alleging discrimination contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the “Act”). She seeks an order in the nature of certiorari quashing the decision and an order in the nature of mandamus requiring the Commission to commence an inquiry pursuant to section 49 of the Act; alternatively, she seeks an order declaring the decision invalid and referring the matter back for reinvestigation in compliance with the principles of natural justice and procedural fairness.

II.  Background

[2]               The Applicant is an employee of Canada Post Corporation (the “Respondent”). On November 9, 2003, she filed a complaint against the Respondent, alleging discrimination in the matter of employment, specifically failure to accommodate contrary to section 7 and the imposition of a discriminatory policy contrary to section 10.

[3]               The Applicant began working with the Respondent in 1978. She injured her left shoulder and neck in a work related incident in early 1996 and was subsequently assessed as having a 28% permanent partial disability (“PPD”), resulting in limitations on her activities including a 15 pound lifting limitation and no repetitive neck or shoulder movements. The Applicant says that on February 16, 1998, the Respondent sent her home from work, on the grounds that she could not perform all functions of the job. In response, the Applicant filed a grievance through her union, that is the Canadian Union of Postal Workers, alleging failure to accommodate.

[4]               This grievance was settled in July 2000 and the Applicant was placed in a retail clerk position in Toronto. Subsequently, in August 2001, the Applicant submitted transfer requests to the Respondent for relocation to a number of places across Canada. Upon receiving a letter of interest from Orillia, she relocated to that town with her son. The Respondent refused to allow the transfer and the Applicant commuted from Orillia to Toronto between August 2001 and June 2002 when she returned to the Toronto area, with her son. She says transfer offers were received for Victoria, Bracebridge, Nanaimo and Courtenay; each of these letters of offer from the Respondent asked if she was capable of performing the full duties of the job. She claims that she was turned down by each office on the basis of her restrictions.

[5]               The Applicant grieved these rejections through the Canadian Union of Postal Workers (the “CUPW”). In August 2003, in settlement of her grievance, the Respondent allowed her to transfer and the Applicant transferred to Courtenay, British Columbia where she started work on September 15, 2003.

[6]               The Applicant alleged in her complaint that once she began working in Courtenay, the Respondent failed to accommodate her when it assigned her duties beyond her restrictions. In her complaint form, the Applicant said that on September 18, 2003 she had been called by Mr. Ken McInnes, Courtenay Superintendent, into the office and advised that she had been lifting packages beyond her weight limit. She said that she was told the front counter was not the place for her. In response, the Applicant said that she had been self-monitoring her injury for several years and was well aware of what she could do.

[7]               She alleged that on September 29, 2003, Mr. McInnes and a C. Day again brought her into the office. She said that she was given a history of the office and told that some employees were unhappy with her posting there. She then proceeded to give an account of her accident, her medical problems and the arbitration that led to her being offered the Courtenay position. In her complaint, she said that Mr. McInnes had violated the collective agreement and the Act. Some short while later, Ms. Vera Lebar, Union Education Officer, was brought into this meeting and informed the Applicant that she could not do the full duties of the job. The Applicant was sent home on sick leave.

[8]               The Applicant said, in her complaint form, that on October 2, 2003, the Respondent informed her that she was no longer sick and was to report for work, and to follow the schedule provided. She states that she again informed the Respondent that it was not following the limitations outlined by the Workplace Safety and Insurance Board (the “WSIB”) of Ontario and that she had not been provided with side sortation sheets, an aid to carrying out her employment functions. These were provided one month after her arrival. The Applicant asked that her union set up a meeting with the Respondent and the union refused, saying that she had been accommodated. She asked that the regional union grieve on her behalf and this request was also refused.

[9]               On October 9, 2003, the Applicant was given a third work schedule with different duties. She said she was threatened with dismissal if this schedule was not followed.

[10]           The Applicant further stated that she requested her files through the Privacy Commission. She said she found in those files a union-management agreement to the effect that she was to be by-passed for the Courtenay position due to her limitations. She said this agreement explained why the union did not grieve on her behalf. She noted that the Respondent has a national policy and that the

union and the Respondent have a collective agreement that provides that there will be no discrimination due to a disability.

[11]           In her complaint form, the Applicant alleged that she had been discriminated against in the course of her employment arising from the Respondent’s failure to accommodate and further, that the refusal of her transfer requests shows that the Respondent had a policy to refuse transfers due to a disability.

[12]           According to the chronology which forms part of the certified tribunal record in this matter, the Applicant’s complaint was referred to mediation on February 19, 2004. The complaint was returned to the Investigations Unit on May 26, 2004 and the file was assigned to an investigator on June 11, 2004. The Respondent was requested to provide its defence on June 8, 2004.

[13]           On July 8, 2004, the Respondent submitted its defence. This document is not included in the tribunal record but is referenced in the Investigation Report. According to the Investigation Report, in its defence the Respondent raised the issue of the time limits of the Applicant’s complaint and argued that, pursuant to paragraph 41(1)(e) of the Act, the Commission should not investigate those acts which allegedly occurred before November 2002, that is a year before the complaint was signed. As well, the Respondent argued that the Applicant’s allegations related to questions of labour relations for which she had elected to pursue the grievance procedures provided in the collective agreement and for which resolutions were achieved.

[14]           According to the chronology, the Applicant was advised on July 22, 2004 that she could reply to the Respondent’s submissions. Her rebuttal was received on August 1, 2004.

[15]           The investigation, including interviews, was conducted between November 22 and December 1, 2004, and the Investigator’s Report was disclosed on December 10, 2004. The parties were given the opportunity to respond to the Investigator’s Report and the Applicant did so by a letter received on January 6, 2005. In that letter, the Applicant took issue with the manner in which the Investigator dealt with the accommodation issue and alleged that employees of the Respondent had been dishonest in the manner in which they provided information to the Investigator.

[16]           The Respondent also replied to the Investigator’s Report, in a letter dated January 1l, 2005. In that response, the Respondent agreed with the Investigator’s recommendation that the Commission dismiss the Applicant’s complaint because the evidence did not support the allegations raised by her. The Respondent also repeated its argument that the complaint was untimely and in any event, the subject of the complaint had been addressed under the internal grievance process.

[17]           The Investigation Report was subsequently submitted to the Commission. At paragraphs 35 and 36, the Investigator set out the following recommendations:

35   It is recommended, pursuant to subsection 41(1) of the Canadian Human Rights Act, that the Commission deal with those allegations in the complaint which occurred after November 2002

 

                                                               i.      because they are based on acts which occurred less than one year before the complaint was filed, and

                                                             ii.      because it is not clear that the allegations have been resolved.

36    It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint

-        because, based on the investigator’s findings, the evidence does not support the allegations.

[18]           In a decision dated March 24, 2005, the Commission dismissed the Applicant’s complaint. It dealt with two aspects of the complaint, that is the timeliness of the allegations and the merits of the allegation of discrimination contrary to section 7. On the issue of timeliness, the Commission decided to consider only those allegations that occurred after November 2002 because they were based on acts that had occurred less than one year before the complaint was filed and it was unclear that the allegations had been resolved. In this regard, reference was made to subsection 41(1) of the Act.

[19]           The Commission went on to dismiss the Applicant’s complaint, pursuant to paragraph 44(3)(b) on the grounds that the allegation is unsupported by the evidence.

[20]           In her complaint form, the Applicant had referred to sections 7 and 10 as the basis of her complaint. Section 7 deals with discrimination, in the course of employment, on a prohibited ground of discrimination. Section 10 addresses a discriminatory practice based upon a policy that “deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination”. Section 3 defines prohibited grounds of discrimination for the

purposes of the Act as “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”.

[21]           The Applicant claimed that she was discriminated against, contrary to section 7, on the basis of her permanent partial disability, in particular by a failure to accommodate her. In relation to section 10, she alleged that the Respondent was pursuing a discriminatory policy by refusing the transfer requests that she had made in August 2001, for transfers. The Applicant filed her application for judicial review on May 9, 2005. As part of her application record, she filed her own affidavit, including twelve exhibits.

[22]           These exhibits included correspondence between the Applicant and the Commission as well as, in Exhibit 3, copies of extensive documentation relating to her complaint, including background materials. Extensive material was submitted as Exhibit 5. Exhibit 5 contains a statement entitled “Information since the Nov. 2003 Human Rights Complaint” together with a list of some twenty-five proposed witnesses to be interviewed if the matter could not be resolved by mediation, pursuant to the Act. Exhibit 5 also contains materials relating to the physical assessment of the Applicant by the WSIB following her work-related injury in 1996. This exhibit further contains documentation relating to certain grievances filed by the Applicant between 1999 and 2002.

III. Applicant’s Submissions

[23]           The Applicant argues that the Investigator failed to investigate her allegations of discrimination pursuant to section 10 of the Act. In her complaint she expressed the view that the Respondent has a national policy to refuse transfer requests if the employee has a disability. This point was raised in her complaint, including her written narrative, but section 10 is not referenced in the Investigation Report. The Applicant refers to correspondence that is included in Exhibit 3 of her affidavit where the Commission referred to section 7 of the Act but not section 10.

[24]           On the basis of these examples, the Applicant submits that the Investigator failed to consider her complaint pursuant to section 10 of the Act.

[25]           Next, the Applicant argues that the information provided by the Respondent to the Investigator was unreliable. She submits that the Investigator improperly accepted the Respondent’s information at face value and that none of those statements were corroborated by documentation.

[26]           The Applicant further disputes the Investigator’s characterization of her absence from work as an injury-related leave. She argues that she was able to perform all her job duties in spite of her injury and that she was off work due to an issue of accommodation.

[27]           Next, the Applicant addressed the settlement agreement dated August 8, 2003. She takes issue with the statement in the Investigation Report that neither the Respondent nor the CUPW was able to contact her concerning that agreement. She took the position that an issue as important as accommodation should not be dismissed merely by saying that she did not make herself available.

[28]           As well, the Applicant questions the legality of that agreement as she did not learn about it until after she had filed her complaint pursuant to the Act.

[29]           The Applicant then argues that the information provided to the Investigator by the Respondent concerning the July 2000 arbitration is inaccurate. She argues that none of the people who provided information had any direct knowledge of the events. The Applicant suggests that these individuals misled the Investigator in this regard. She says that an example of such misinformation is the statement that she had asked to be placed in a retail position. The Applicant says that she never made such a request and that the Investigator allowed such erroneous information to influence the final recommendation.

[30]           The Applicant also argues that the Investigator’s suggestion that the she performs tasks beyond her restrictions is erroneous. While she acknowledges that she told her supervisor that she had been self-managing her injuries, she denies that she lifted a 40 lb. box.

[31]           The Applicant further submits that her job duties in Courtenay do not comply with the restrictions set by the WSIB. She argues that a third party should have evaluated her job duties to ensure that they met her restrictions. Such an evaluation was not done and the Investigator did not contact the witnesses suggested by the Applicant to confirm her version of the events.

[32]           The third main argument advanced by the Applicant relates to breaches of natural justice and procedural fairness. The Applicant says that the Investigator did not talk to her about her complaint, failed to address her allegations that she was treated differently from other employees, failed to address her concerns under subsection 7(b) and section 10 of the Act and that on one occasion documents that were supposed to be mailed to the Respondent were delivered to her.

IV. The Respondent’s Submissions

[33]           The Respondent made a preliminary objection concerning the Applicant’s affidavit filed in support of her application. It argues that, contrary to Rule 81(1) of the Federal Courts Rules, SOR/98-106 (the “Rules”), the Applicant did not confine the facts to those within her personal knowledge. The Respondent submits that affidavits that contain expressions of personal opinion, speculation or argument are defective and are inadmissible in a proceeding. In this regard, the Respondent relies on the decision in Bell Canada v. Canada (Human Rights Commission) (1990), 39 F.T.R. 97 (T.D.).

[34]           Accordingly, the Respondent submits that paragraphs 2, 3, 5, 6, 8, 9, 10, 13,14, 15, 16 and 17 of the Applicant’s affidavit should be struck out on the basis that they contain statements of personal opinion, speculation and argument.

[35]           Furthermore, the Respondent argues that many of the exhibits attached to the Applicant’s affidavit were not in evidence before the Commission. It submits that it is not open to the Applicant to introduce new evidence upon an application for judicial review and, in this regard, relies on the

decision in Farhadi v. Canada (Minister of Citizenship and Immigration) (1998), 144 F.T.R. 76 (T.D.).

[36]           The Respondent also argues that the jurisdictional exception to this rule does not apply in this case. The Applicant alleges that the commission lost jurisdiction as the result of purported failure of the Investigator during the investigation. The Respondent says that this allegation is but a variation of the arguments advanced by the Applicant concerning natural justice and procedural fairness.

[37]           Alternatively, the Respondent submits that if the Court allows the Applicant to introduce new evidence, that evidence should be limited to correspondence related to the investigation and documents that were provided to the Investigator.

[38]           The Respondent addresses the applicable standard of review. In its initial written Memorandum of Fact and Law, it took the position that the appropriate standard of review relative to a decision of the Commission to dismiss a complaint is reasonableness simpliciter, relying in that regard on the decisions in MacLean v. Marine Atlantic Inc. (2003), 243 F.T.R. 219 and Gardner v. Canada (Attorney General) (2004), 250 F.T.R. 115, aff’d. (2005), 339 N.R. 91 (F.C.A.), leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 480. In relation to questions of procedural fairness, it argues that the issue of standard of review does not arise and no deference is owed, relying again on Gardner, supra.

V. Further Submissions

A.  The Respondent

[39]           Further to the hearing of the application for judicial review, a Direction was issued, requesting the parties to make further brief submissions on the applicable standard of review in light of the recent decision of the Federal Court of Appeal in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392 (F.C.A.). The Respondent was invited to make the first submissions, followed by the Applicant, and with a right of reply to the Respondent.

[40]           The Respondent conducted a pragmatic and functional analysis and submitted that, on balance, the appropriate standard of review in this case is patent unreasonableness.

[41]           Applying the standard of patent unreasonableness, the Respondent submits that the decision of the Commission meets the standard with respect to the Applicant’s allegations under both subsection 7(b) and section 10 of the Act.

[42]           Furthermore, the Respondent argues that there is no evidence to show that there was any breach of procedural fairness or natural justice. The Applicant had the opportunity to present her case and to respond to the position advanced by the Respondent. The Applicant had the opportunity to comment on the Investigation Report. Relying on the decision in Hutchinson v. Canada (Minister of the Environment) (2003), 302 N.R. 66 (F.C.A.), the Respondent submits that the duty of fairness owed by an investigating body may vary from the requirements of natural justice applicable in other contexts. The Respondent argues that the Investigator’s findings of fact and decision with respect to the conduct of the investigation are entitled to deference.

[43]           As for the Applicant’s argument that the Investigator failed to consider her section 10 complaint, the Respondent argues that this issue was considered and addressed by the Investigator. The narrative of the Investigation Report referred to the Applicant’s allegations concerning denial of transfer requests and the Investigator concluded that this matter had been “resolved”.

[44]           The Respondent argues that the Investigator properly and adequately dealt with the Applicant’s complaint pursuant to subsection 7(b) of the Act. The Investigation Report addressed that issue under the heading “Refusal to Accommodate” in the Investigation Report. The Respondent submits that the absence of a separate analysis of every specific allegation made by a complainant does not mean that those allegations were not considered by the Investigator and in this regard, relies on the decision in Slattery v. Canada (Canadian Human Rights Commission) (1994), 73 F.T.R. 161, aff’d. (1996), 205 N.R. 383 (F.C.A.).

B.  The Applicant

[45]           In her further submissions concerning the applicable standard of review and in response to the Respondent’s further submissions the Applicant took the position that the decision of the Commission discloses errors of law that are reviewable on the standard of correctness. She submits that there was an error of law resulting from the failure of the Investigator to review the issue of accommodation in light of prima facie discrimination. The Applicant makes the same argument with respect to the failure of the Investigator to find the transfer policy to be prima facie discriminatory.

VI. Discussion and Disposition

[46]           This is an application for judicial review pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Section 18.1(4) sets out the grounds of review and provides as follows:

 

[47]           The relief available upon an application for judicial review is described in section 18.1(3) as follows:

 

[48]           The conduct of an application for judicial review is governed by the Rules, Part 3. An application for judicial review is a review that is normally conducted on the basis of the material that was before the decision-maker, in this case, the Commission. In this regard, I refer to Ontario Association of Architects v. Association of Architectural Technologists of Ontario (2002), 291 N.R. 61 (F.C.A.). However, additional evidence may be introduced on issues relating to procedural fairness and jurisdiction.

[49]           In the present case, the record that was before the Commission when it made its decision consisted of the following material:

1.         Investigation Report, dated December 10, 2004;

2.         Complaint Form, dated November 9, 2003;

3.         Complainant’s Response to the Investigation Report, dated January 5, 2005;

4.         Respondent’s Response to the Investigation Report, dated January 11, 2005;

5.         Complainant’s Reply to the Respondent’s Response to the Investigation Report, dated January 31, 2005;

6.         Respondent’s Reply to the Complainant’s Response to the Investigation Report, dated February 9, 2005;

7.         Chronology

This material was produced by the Commission pursuant to Rule 318 of the Rules.

[50]           As noted above, the Respondent objects to certain paragraphs of the Applicant’s affidavit, as well as the inclusion of certain materials as exhibits to that affidavit. The Respondent says that paragraphs 2, 3, 5, 6, 8, 9, 10, 13, 14, 15, 16 and 17 should be struck out because they contain statements of personal opinion, speculation and argument. With respect to the exhibits referred to in these paragraphs, it argues that the Applicant is attempting to introduce evidence in this application for judicial review that was not before the Commission.

[51]           In Farhadi, supra, the Court said the following at paragraph 20 concerning the record that should be before the Court upon an application for judicial review:

20.     It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal. Reviewing court jurisprudence has followed this rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application would effectively be transformed into an appeal or a trial de novo. While I am satisfied that a jurisdictional exception exists to the rule that new evidence is not admissible on judicial review, I am also satisfied that an issue as to jurisdictional error of the tribunals does not arise here. …

[Notes omitted]

[52]           I agree with the submissions of the Respondent concerning the Applicant’s affidavit. Rule 81(1) clearly sets out the contents of an affidavit, as follows:

 

The cited paragraphs go beyond the requirement of personal knowledge and import, as well as speculation and argument. In Deigan v. Canada (Attorney General) (1996), 206 N.R. 195 (F.C.A.), the Court struck out portions of an affidavit that were argumentative and opinionated. In light of Rule 81(1) and the relevant jurisprudence, the impugned paragraphs and the related exhibits will be struck out.

[53]           The role of the Court in this proceeding is to determine if the Commission erred in dismissing the Applicant’s complaint. The first step is to determine the applicable standard of review, having regard to the pragmatic and functional analysis as discussed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Sketchley, supra. The pragmatic and functional analysis requires consideration of four factors: the presence or absence of a privative clause; the relative expertise of the tribunal; the purpose of the legislation and the particular statutory provision in issue; and the nature of the question. The pragmatic and functional analysis is not engaged when questions of procedural fairness and natural justice are involved; see Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (F.C.A.) at 219.

[54]           There is no privative clause in the Act nor a statutory right of appeal for a decision of the Commission pursuant to paragraph 44(3)(b). Silence on the availability of an appeal process is neutral.

[55]           The Commission is authorized to investigate and sanction discriminatory practices based on enumerated factors; see sections 2 and 27. It has relative expertise in assessing acts of discrimination and should be accorded greater deference in respect of its factual determinations. Where the assessment involves the application of the law, less deference should be granted. In this case, the decision to dismiss the complaint was based upon an assessment of the evidence and attracts a high degree of deference.

[56]           The broad purpose of the Act is to protect human rights through the prevention of discriminatory practices. In Sketchley, supra, another case that considered dismissal of a complaint pursuant to the Act, the Federal Court of Appeal said the following at paragraph 75:

75.       The particular decision at issue with respect to the TB complaint occurred in the course of the Commission's screening function under section 44(3) of the Act. For any given complaint, the decision taken by the Commission pursuant to section 44 constitutes an important threshold in accessing the remedial powers of the Tribunal under section 54: a decision at this stage by the Commission not to deal with a complaint is a decision which effectively denies the complainant the possibility of obtaining relief under the Act. The Commission's activities with respect to the investigation of individual complaints and their selective referral to a Tribunal directly engages the individual rights and entitlements of the parties to a particular complaint. This aspect suggests a less deferential standard.

[57]           Further, at paragraph 76, the Federal Court of Appeal observed that the Commission is better placed to assess whether a particular complaint should proceed further, having regard to practical and monetary considerations. On balance, I conclude that this factor favours a standard of reasonableness simpliciter.

[58]           Finally, there is the nature of the problem. Again, I refer to the decision of the Federal Court of Appeal in Sketchley where the Court described the nature of the question to be addressed by the Commission when considering the report of an investigator. At paragraph 77, the Court said the following:

77.      As noted by Sopinka J. in SEPQA, at page 899, at para. 27, the question to be decided by the Commission at the conclusion of the screening process is whether there was "a reasonable basis in the evidence for proceeding to the next stage". The investigator is essentially engaged in a fact-finding mission but the Commission itself, when it takes action on the basis of the investigator's report, is nevertheless applying the facts in the context of the legal requirements of the Canadian Human Rights Act. The resulting decision will in general be one of mixed fact and law, calling "for more deference if the question is fact-intensive, and less deference if it is law-intensive" (Dr. Q., at paragraph 34).

[59]           In the present case, the nature of the question is factually driven; see Ryan, supra, at paragraph 41. Is there enough evidence to send the complaint on for further inquiry? I conclude that this factor, being fact-intensive, invites a higher degree of deference.

[60]           Upon balancing the four factors, I conclude that the decision of the Commission in this case attracts the deferential standard of patent unreasonableness.

[61]           The decision in question was made by the Commission pursuant to paragraph 44(3)(b) of the Act which provides as follows:

 

[62]           The Applicant argues that the Commission erred by failing to consider her allegations of discrimination contrary to section 10, that is with respect to an alleged discriminatory policy of refusing transfer requests from persons suffering from a disability.

[63]           In my opinion, this argument is not supported by the record. The Investigation Report deals with the substance of these allegations although no specific reference is made to section 10. In paragraphs 3 to 11, the Investigator refers to the objection initially raised by the Respondent to the timeliness of the complaint, that is an objection pursuant to subsection 41(1) of the Act. Subsection 41(1) provides as follows:

 

[64]           The Respondent argued that the Commission should not deal with those elements of the complaint that preceded the filing of the complaint by more than one year and further that the

allegations relating to refusal of transfer requests were labour relations matters that had been resolved through the grievance procedures provided by the relevant collective agreements.

[65]           The Investigation Report specifically refers to the pursuit of grievances by the Applicant relative to transfer requests that were refused. The Report also specifically mentions two settlement agreements that were reached between the Applicant and the CUPW in July 2000 and August 2003. Further, in the Analysis section of the Investigation Report the Investigator refers to these settlement agreements relative to the issue of the transfer requests.

[66]           The Investigator made the following recommendation with respect to the issue of timeliness and prior resolution of part of the complaint:

It is recommended, pursuant to subsection 41(1) of the Canadian Human Rights Act, that the Commission deal with those allegations in this complaint which occurred after November 2002

 

                                                               i.      because they are based on acts which occurred less
than one year before the complaint was filed, and

                                                             ii.      because it is not clear that the allegations have been resolved.

[67]           This recommendation was accepted by the Commission. The Commission may adopt the recommendations of the Investigator as its reasons; see Lusina v. Bell Canada (2005), 249 D.L.R. (4^th) 429 (F.C.).

[68]           In my view, the Investigator is here accepting the Respondent’s submissions that the matter of the transfer requests should not be addressed because they had arisen more than one year before the complaint had been filed and had been resolved. Only matters that arose after November 2002, that had not been resolved, would be considered. The only allegation made by the Applicant that could be considered by the Investigator according to these criteria is the allegation regarding section 7 of the Act.

[69]           Having regard to the Tribunal Record, including the Investigation Report, the decision of the Commission to dismiss the Applicant’s complaint under section 10 is not patently unreasonable.

[70]           Next, there is the matter of the complaint pursuant to section 7, that is a refusal to accommodate. This issue is squarely addressed in the Investigation Report. There is evidence referred to in that report that supports the conclusion of the Investigator and ultimately of the Commission. The Investigation Report, at paragraph 29, says the following:

Mr. Woods [CUPW Local President upon the arrival of the Applicant in Courtenay] summarized the complainant’s workplace situation as follows:  ‘She doesn’t have the job she wants, but she has the job she needs.’

[71]           In my opinion, the decision of the Commission to dismiss the Applicant’s complaint is not patently unreasonable, relative to the evidence submitted. It is the role of the Commission, not of the Court, to assess and weigh the evidence. The Commission is entitled to rely upon the report prepared and submitted by the Investigator.

[72]           The Applicant advanced arguments relating to breaches of procedural fairness and natural justice. These issues are not subject to the pragmatic and functional analysis. Briefly put, the Applicant based her submissions with respect to these issues upon perceived inadequacies of the Investigator and the investigation.

[73]           The principal aspect to be acknowledged in discussing the issues of procedural fairness and natural justice is that the requirements may vary, according to the circumstances of a particular case. I refer to the decision in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at 895 where the Court said the following:

Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provision and the nature of the matter to be decided. …

 

[74]           Neutrality and thoroughness are the fundamental requirements for an investigation under the Act; see Slattery, supra. Further, a complainant is to be given the opportunity to respond to the information collected by the investigator, as well as the opportunity to present his or her case; see Hutchinson, supra.

[75]           The record here shows that the Applicant provided substantial information to the Investigator concerning the elements of her complaints. The Investigation Report is six pages long and divided into sections as follows:

a.       Summary of Complaint and Respondent’s Position;

b.      Objections under Section 41(1);

c.       Refusal to Accommodate;

d.      Analysis; and

e.       Recommendation

[76]           Although the Tribunal Record does not contain the documents or notes of interviews that underlie the Investigation Report, that does not mean that the investigation lacked neutrality or thoroughness. The Act confers a broad discretion upon an investigator in the conduct of an investigation. The Applicant was given the opportunity to respond to submissions made by the Respondent in the course of the investigation, according to the chronology that forms part of the Tribunal Record. She availed of those opportunities, according to the same document.

[77]           The Applicant had no right to a personal interview nor to insist that specific individuals be interviewed by the Investigator. Upon considering the contents of the Investigation Report and the chronology, I am satisfied that the required elements of procedural fairness and natural justice were respected. There is no basis for intervention on these grounds.

[78]           In the result, this application for judicial review is dismissed. The Respondent did not seek costs. In the exercise of my discretion pursuant to the Rules, there will be no order as to costs.

ORDER

 

            This application for judicial review is dismissed, no order as to costs.

 

“E. Heneghan”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-812-05

 

STYLE OF CAUSE:                          ADRIANNE MCNABB and

                                                            CANADA POST CORPORATION

 

 

 

 

PLACE OF HEARING:                    Vancouver, B.C.

 

DATE OF HEARING:                      February 13, 2006 – Further submissions received February 24, 2006, March 6, 2006 and March 17, 2006

 

REASONS FOR ORDER

AND ORDER :                                  HENEGHAN J.

 

DATED:                                             September 22, 2006

 

 

 

APPEARANCES:

 

Adrianne McNabb	APPLICANT -- ON HER OWN BEHALF
Muriel R. Henry	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Adrianne McNabb Royston, B.C.	APPLICANT -- (Self-Represented)
Muriel R. Henry Ogilvy, Renault Vancouver, B.C.	FOR THE RESPONDENT