Ottawa, Ontario, December 15, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this application for judicial review, pursuant to section 18.1 of the Federal Courts Act R.S.C. 1985, c. F-7, the Applicant seeks to reopen his Canadian Human Rights Commission (the Commission) complaint files 2004-1494 and 2004-1732. The Applicant is self-represented.
ISSUE
[2] Should this Court order the Canadian Human Rights Commission to reopen and finalize the Applicant’s two complaint files against Citizenship and Immigration Canada?
[3] For the brief reasons that follow, the response to this question is negative. Consequently, this application for judicial review shall be dismissed.
BACKGROUND
[4] The Applicant is a Canadian citizen from Romania who sought to sponsor his wife to come to Canada from Romania. However, her visa application was initially refused.
[5] The Applicant alleges that he was treated in a humiliating and discriminatory manner by Citizenship and Immigration Canada (CIC) staff at the Canadian Embassy in Bucharest, Romania during his efforts to bring his wife to Canada. In particular, the Applicant states he was treated as a second class citizen, lied to, and denied timely service because he is not a Canadian-born citizen, and is neither of English nor French origin. The Applicant further alleges that he was treated in this unprofessional manner because he was a newly wed or married for less than 18 months. As a result of these frustrations, the Applicant filed two complaints with the Canadian Human Rights Commission, dated November 18, 2004 (2004-1494) and February 11, 2005 (2004-1732), to protest the mishandling of his wife’s visa application.
[6] The Commission decided not to deal with the first complaint because the Applicant had not exhausted the CIC appeal process. On February 28, 2005, the Applicant did successfully pursue the CIC appeal avenues open to him and his wife obtained a visa to join him in Canada, which she did in August 2005.
[7] In spite of the successful conclusion of the matter, the Applicant returned to the Commission on April 12, 2005 and requested that his complaint be reopened. For procedural reasons, a second complaint was opened based essentially on the same facts and parties pursuant to section 5 of the Canadian Human Rights Act (the Act) alleging discrimination on the grounds of national or ethnic origin; family status; and marital status.
DECISION UNDER REVIEW
[8] The Commission investigated the allegations contained in the complaints and found that the evidence available did not appear to support the Applicant’s allegations. Also, the investigator concluded that CIC had provided a reasonable and non-discriminatory explanation for the events that caused the Applicant difficulty and delay.
[9] The investigator recommended that in light of the evidence and the remedy already provided, the complaints did not warrant referral to the Canadian Human Rights Tribunal. Both complaints were therefore dismissed. The Applicant was provided with a copy of the Investigator’s Report and an opportunity to respond.
[10] On September 23, 2005, the Commission decided to close both files, pursuant to paragraph 44(3)(b)(i) of the Act, in light of the substantial remedy that was granted to the Applicant. Notwithstanding, the Applicant insists that his complaints be reopened because he did not file his complaints in order to get his wife to Canada; rather, he wished to pursue CIC for the unprofessional behaviour of its staff.
PERTINENT LEGISLATION
[11] The prohibited grounds of discrimination and the applicability to the provision of services are set out in sections 3 and 5 respectively of the Act.
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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. [. . .] 5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. |
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. 5. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour le fournis-seur de biens, de services, d’installations ou de moyens d’hébergement destinés au public : a) d’en priver un individu;
b) de le défavoriser à l’occasion de leur fourniture.
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[12] Paragraph 44(3)(b)(i) outlines the basis for the Commission’s decision to not deal with the Applicant’s complaints. This passage follows:
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44. [. . .] Action on receipt of report (3) On receipt of a report referred to in subsection (1), the Commission [. . .] (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or [. . .] |
44. [. . .] Suite à donner au rapport (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, [. . .] |
ANALYSIS
Standard of Review
[13] I must first determine the appropriate standard of review that would be applicable to the decision of the Commission to dismiss the complaints under paragraph 44(3)(b)(i) of the Act. An analysis of the four factors established in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 allows us to determine what standard of review to use in similar circumstances.
i) privative clause/right of appeal
[14] The Act does not contain a privative clause or a right of appeal. This factor is thus neutral.
ii) the expertise of the tribunal
[15] The Act confers the investigation of complaints to investigators. Section 43 sets out the broad powers of these investigators who develop a certain skill and expertise in accordance with the Regulations. They gather information from the relevant parties, interview witnesses, provide reports to the parties for written submissions before preparing a Report to the Commission with a recommendation whether to appoint a conciliator to resolve the matter; refer the complaint to a Canadian Human Rights Tribunal; or dismiss the complaint. This factor calls for a high degree of deference.
iii) the purpose of the Act
[16] The purpose of the Act is to ensure that discrimination in the provision of services and employment is prohibited based on statutory prohibitive grounds. The investigator must examine the complaints, assess the evidence and the credibility of witnesses and apply the principles of the Act in order to determine whether the allegations are founded and warrant a referral to the Canadian Human Rights Tribunal. This factor calls for less deference.
iv) the nature of the problem
[17] If on the one hand, the question is purely factual, there will be a strong level of deference with respect to that contested decision. If on the other hand, the question is one of mixed law and facts, deference by the Court would be less pronounced. Finally, if the question is one of law only, the reviewing Court will accord no deference to the decision. In this case, there is no element of law involved as the investigator at this early screening stage is focused entirely on the gathering and reviewing of the facts that constitute the complaint. This factor means that this Court will show a high degree of deference to the decision of the investigator.
[18] In light of this pragmatic and functional analysis, the Court adopts the standard of review of patent unreasonableness because there are no elements of law involved in the investigator’s work of information gathering, assessment and recommendation to the Commission. Moreover, and as a general rule, Parliament did not intend that Courts such as ours in this case should be quick to intervene in decisions of the Commission.
[19] In Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), Mr. Justice Décary stated 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 (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.
Should the Commission re-open the Applicant’s complaints?
[20] In order to answer this question, I must ask myself was the decision of the investigator patently unreasonable when she recommended to the Commission that the Applicant’s complaints be dismissed.
[21] The answer is no. I find nothing within the four corners of both reports that would warrant the Court’s intervention. With respect to the first report, the investigator did not err in recommending that the complaint (2004-1494) be dismissed because the substantial remedy available had already been obtained in this case. Similarly, while it may be regrettable that the Applicant experienced delay and administrative bungling on the part of CIC staff at the Canadian Embassy in Bucharest, the investigator was satisfied that these administrative errors were not based on any prohibitive ground of discrimination such that the matter should be referred to the Tribunal or require the appointment of a conciliator. I find nothing patently unreasonable in this decision either.
[22] I am therefore not satisfied that the Applicant has demonstrated that the investigator arrived at a decision that was patently unreasonable.
JUDGMENT
THIS COURT ORDERS THAT the application for judicial review is dismissed. There shall be no award as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1872-05
STYLE OF CAUSE: DUMITRU COZMA
and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 5, 2006
APPEARANCES:
(self-represented)
SOLICITORS OF RECORD:
Dumitru Cozma FOR APPLICANT
(self-represented)
Edmonton, Alberta
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta