Herbert v. Canada ( Human Rights Commission )
A-712-96
Linden J.A., Isaac C.J. (dissenting)
20/1/98
14 pp.
Appeal from Trial Division decision allowing judicial review application against CHRC dismissing complaint against RCMP-Appeal dismissed (Isaac C.J. dissenting)-Per Linden J.A.: Trial Division disposition agreed with, Commission's reasons disagreed with-Counsel agreed no duty on Commission to inform complainant it had legal authority to dismiss complaint pursuant to Act, s. 44(3)(b)(i)-No disagreement with principle no obligation on Commission to follow investigator's recommendation to appoint conciliator pursuant to Act, s. 47(1)-Main issue whether, on particular facts of case, denial of procedural fairness by Commission-Complainant, who wore pacemaker, denied opportunity to apply for RCMP on basis of its outdated view of existing medical knowledge-After complaint to CHRC, RCMP eventually (5 years later) acknowledged error and offered settlement: complainant allowed to apply for membership and offered $2000 in damages-Complainant, who had by then entered new career, felt amount offered insufficient and asked to appear before Commission personally (at no time during proceedings before Commission was complainant represented by counsel)-After investigator submitted report recommending appointment of conciliator, Commission decided no further proceedings warranted-In specific circumstances of complex and confusing case, fairness demanded that true situation be explained to complainant and opportunity to make representations be provided to him following that explanation-Standard of fairness not complied with-Reasons herein not meant to affect at all decision of Trial Division in Fortin v. Canadian Pacific Ltd. (1996), 116 F.T.R. 225, facts of which differ considerably from present case, and under appeal to F.C.A.-Commission, even though procedure wanting, acted in good faith throughout-Parties urged to reach agreement; if cannot, Commission will undoubtedly, upon reconsideration in light of present reasons, accept recommendation contained in Report and appoint conciliator-Per Isaac C.J. (dissenting): appeal should be allowed-Why should Commission appoint conciliator pursuant to Act, s. 47(1) for purpose of attempting to bring about settlement when cause of complaint had been removed and only monetary compensation remained to be resolved-Furthermore, obvious that neither party prepared to yield on issue of compensation-Commission's decision only rational one open to it in circumstances, since RCMP had removed cause of respondent's initial complaint and since possibility of monetary settlement satisfactory to respondent seemed unlikely at best-Commisssion's decision neither unreasonable nor unfair either procedurally or in substance-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 44(3)(b)(i) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 47(1).