Judgments

[1994] 3 .F.C. 3

A-1095-91

Brigitte Mercier (Appellant) (Applicant)

v.

Canadian Human Rights Commission (Respondent) (Respondent)

and

Attorney General of Canada (Mis en cause) (Mis en cause)

Indexed as: Mercier v. Canada (Human Rights Commission) (C.A.)

Court of Appeal, Desjardins, Décary and Létourneau, JJ.A.—Montréal, March 15; Ottawa, March 22, 1994.

Human rights — Practice — CHRC must disclose to party comments received from other party subsequent to investigation report if containing facts differing from those set out in investigation report and which adverse party would have been entitled to rebut at investigation stage — Matter of procedural fairness to allow parties fair opportunity to meet whole of contrary case — CHRC encouraged to adopt new procedure, requiring parties to exchange respective comments, “losing” party to submit comments first, “winning” party then allowed to reply — Mandamus unavailable as Act giving CHRC discretion to dismiss complaints — CHRC not required to give reasons for decision made under Act, s. 44(4).

Judicial review — Prerogative writs — Certiorari — Human Rights Commission’s failure to disclose to complainant comments received subsequent to investigation report from other party outside time limit and after complainant informed investigator had recommended appointment of conciliator constituting denial of procedural fairness, especially when comments attacking complainant’s credibility and alleging facts differing from those set out in investigation report and which complainant would have been entitled to rebut at investigation stage — Matter of procedural fairness to allow parties fair opportunity to meet whole of contrary case — Commission encouraged to adopt new procedure, requiring parties to exchange respective comments — Mandamus unavailable as Act giving Commission discretion to dismiss complaints.

The appellant filed a complaint with the Canadian Human Rights Commission, alleging that while she was employed with the Canadian Penitentiary Service she had been subject to discrimination based on sex and mental disability. The investigator who conducted the investigation upheld her allegations and made the appropriate recommendation to the Commission. The Commission informed her of those conclusions and gave her thirty days to present any comments. The appellant replied, expressing joy that her allegations had been upheld.

Outside the thirty-day time limit and without notifying the appellant, the Service filed detailed comments, attempting to refute certain findings and conclusions in the report and questioning the appellant’s credibility, based in some cases on facts which were not included in the report. Without informing the appellant of these comments, the Commission informed her that in view of all the circumstances, no further action was warranted and the file was closed. The Commission did not file reasons for its decision.

This was an appeal from the Motions Judge’s decision dismissing an application for certiorari and mandamus against the Commission.

Held, the appeal should be allowed with respect to certiorari only, with costs both on appeal and at trial.

In accordance with Federal Court case law, counsel for the Commission was not allowed to defend it against the allegations that the rules of procedural fairness had been breached. The Attorney General defended the Commission’s actions.

It was well established that the Commission was subject to the rules of procedural fairness. Generally speaking, fairness requires that a party have an adequate opportunity of knowing the case to be met, of answering it and of putting forward the party’s own position. In the present case, the complainant was entitled to know both the rules of the game and the substance of the evidence before the Commission, which included the additional evidence submitted by the Service in its comments.

While the rules of procedural fairness do not require that the Commission systematically disclose to one party the comments it receives from the other, they do require this disclosure when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the investigation stage. It would be in the Commission’s interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. And it would seem to be more logical and more practical to ask the “losing” party to submit its comments first, and then to allow the “winning party” to reply.

The failure to give reasons did not constitute in itself a breach of the rules of procedural fairness, since the Commission was not expressly required by the Act to give reasons in the circumstances of this case.

Mandamus was not available herein because it was clear from subsection 44(3) of the Act that the Commission had the discretion to dismiss complaints.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 41, 42, 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44(3) (as am. idem), (4).

Federal Court Rules, C.R.C., c. 663, Part V.1 (as enacted by SOR/92-43, s. 19).

CASES JUDICIALLY CONSIDERED

APPLIED:

Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241; affg (1986), 16 C.C.E.L. 275; 9 C.H.R.R. D/4922; 90 N.R. 16 (C.A.); Labelle v. Canada (Treasury Board) (1987), 25 Admin. L.R. 10; 9 C.H.R.R. D/5042; 76 N.R. 222 (F.C.A.); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; (1992), 89 D.L.R. (4th) 218; 3 Admin. L.R. (2d) 242; 133 N.R. 345; Lever v. Canada (Canadian Human Rights Commission) (1988), 10 C.H.R.R. D/6488 (F.C.A.); Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386; (1986), 30 D.L.R. (4th) 157; 26 C.R.R. 152 (C.A.); Merck & Co., Inc. v. Apotex Inc., [1994] 1 F.C. 742 (C.A.).

REFERRED TO:

Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Cashin v. Canadian Broadcasting Corporation, [1984] 2 F.C. 209; (1984), 8 D.L.R. (4th) 622; 8 Admin. L.R. 161; 5 C.H.R.R. D/2234; 84 CLLC 17,009; 55 N.R. 112 (C.A.); Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; Ferguson Bus Lines Ltd. v. Amalgamated Transit Union, Local 1374, [1990] 2 F.C. 586; (1990), 65 D.L.R. (4th) 699; 43 Admin. L.R. 18; 108 N.R. 293 (C.A.); Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., [1988] 2 F.C. 493; (1988), 84 N.R. 81 (C.A.); Moosehead Breweries Ltd. v. Molson Companies Ltd. and Registrar of Trade Marks (1985), 63 N.R. 140 (F.C.A.); Vancouver Wharves Ltd. v. International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514, A-918-84, Mahoney J.A., judgment dated 13/3/85, F.C.A., not reported; Demercado v. Canada (Public Service Staff Relations Board), A-774-84, Heald J.A., judgment dated 13/12/84, F.C.A., not reported; Kiely v. Canada (Veterans Appeal Board), A-484-90, Mahoney J.A., judgment dated 30/1/91, F.C.A., not reported; Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (C.A.).

APPEAL from a decision of the Motions Judge (T-1742-91, Pinard J., order dated 4/10/91, F.C.T.D., not reported) dismissing an application for certiorari and mandamus against a decision of the Canadian Human Rights Commission dismissing the appellant’s complaint of discrimination based on sex and mental disability lodged against the then Canadian Penitentiary Service. Appeal allowed with respect to certiorari only.

COUNSEL:

James R. K. Duggan and Marie-Hélène Verge for appellant (applicant).

François Lumbu for respondent (respondent).*

Rosemarie Millar for mis en cause (mis en cause).

SOLICITORS:

Donald, Duggan, Montréal, for appellant (applicant).

Canadian Human Rights Commission, Ottawa, for respondent (respondent).

Deputy Attorney General of Canada for mis en cause (mis en cause).

The following is the English version of the reasons for judgment rendered by

Décary J.A.: On January 25, 1988, the appellant filed a complaint with the Canadian Human Rights Commission (the Commission) against the Canadian Penitentiary Service (now Correctional Service Canada) (the Service). In it, she claimed that while she was employed with the Service she had been subject to discrimination [translation] “based on sex and mental disability.”

In May 1989, the Commission ordered that an investigation be conducted, in accordance with section 43 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63] of the Canadian Human Rights Act[1]

On October 5, 1990, the investigator filed a long report, the conclusions and recommendations of which were as follows:[2]

CONCLUSION AND RECOMMENDATION

99.     According to the mis en cause, the complainant did not respond properly when inmates engaged in behaviour of a sexual nature toward her. Her supervisors’ testimony indicated that in a majority of cases the complainant responded inappropriately. While she could not have put an end to all behaviour of a sexual nature directed at her, we would also note that even a committee composed of six persons (including the supervisor of residential units) could not do so.

100.   At the time of the alleged incidents of discrimination, the mis en cause had known of the sexual and sexist nature of the attitudes and behaviour of inmates toward female personnel for some time; no training had been provided to assist female officers who were facing additional difficulty in the workplace in comparison to their male colleagues and to male officers. In addition, nothing had been done by the mis en cause to put an end to the sexual tactics used by inmates against female officers, although those tactics were designed to increase familiarity between female personnel and inmates and such familiarity should be avoided.

101.   No diagnosis of any pathology has been made by the psychologists and psychiatrists who were asked to examine the complainant, including the experts of the mis en cause; the disagreements between the experts of the mis en cause and the psychiatrist and psychologist of the adverse party arise more from the interpretation of the complainant’s work situation than from differences of medical opinion, properly speaking.

102.   We would note that the mis en cause did not address the sexist and sexual harassment of female officers by inmates for what it was, that is, a management problem that could affect all personnel and the operation of the institution, but treated it as if it were rather a problem concerning only women in the prison environment.

103.   We recommend that the Commission appoint a conciliator to attempt to reach a settlement of this matter.

On November 28, 1990, the Commission informed the appellant of the conclusions of the investigator’s report, particularly the recommendation that a conciliator be appointed, and invited her to submit her comments, as follows:[3]

[translation] Dear Madam:

The investigation concerning the complaint that you filed against the Correctional Service Canada alleging that you were subject to discrimination based on sex and mental disability has been completed. It will therefore be recommended that the Commission appoint a conciliator to attempt to reach a settlement of the complaint. The Commission may accept, modify or reject this recommendation.

You will find enclosed a copy of the documents that will be submitted to the Commission. You have the right to present your comments in writing so that they may be considered by the Commission at the same time as the investigation report.

Your comments must reach us within 30 days of the date of receipt of this letter. This time limit will be strictly enforced so that the processing of the complaint is not delayed. Documents received more than thirty days after the date of receipt of this letter will not be filed with the Commission and it will therefore be unable to take them into consideration in making its decision.

When the Commission has made its decision you will be notified.

On December 22, 1990, within the thirty-day time limit the Commission had imposed, the appellant, who was representing herself, sent her comments to the Commission; these in fact amounted simply to an expression of the joy she had felt in learning that an investigator had upheld her allegations.

On February 14, 1991, outside the thirty-day time limit and without the knowledge of the appellant, the Service filed detailed comments in which it attempted to refute certain of the findings and conclusions in the report and to question the appellant’s credibility, based in some cases on facts which were not included in the report.

On April 18, 1991, the Commission informed the appellant of the decision, as follows:[4]

[translation] Dear Madam:

The Canadian Human Rights Commission has studied the complaint (Q11563) filed by you against the Canadian Penitentiary Service on January 25, 1988, alleging discrimination based on sex and disability in employment. The Commission has also noted your comments dated December 22, 1990.

The Commission has decided pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act that in view of all the circumstances surrounding the complaint no further action is warranted.

The Commission has accordingly closed the file.

On July 2, 1991, after trying in vain to obtain reasons for the Commission’s decision, the appellant filed a notice of motion in the Registry of the Federal Court [Mercier v. Canada (Human Rights Commission), T-1742-91, Pinard J., order dated 4/10/91, F.C.T.D., not reported] seeking a writ of certiorari and mandamus against the Commission. The Attorney General of Canada was named as mis en cause.[5]

On September 24, 1991, the secretary of the Commission filed an affidavit in which she listed the documents that were in the Commission’s file at the time the Commission examined the complaint. Among these documents were the [translation] “comments of the Correctional Service Canada relating to the investigation report.”[6] It was at this point that the appellant discovered that the Service had filed comments and that she became aware of the substance of those comments.

Before the Motions Judge, counsel for the appellant argued that there had been a breach of the rules of procedural fairness, first, because the Commission had not disclosed the comments of the Service, and second, because the Commission erred in the circumstances by not giving reasons for its ultimate decision, since that decision was contrary to the investigator’s recommendation.

The Motions Judge dismissed the application, essentially stating that he was of the opinion that the rules of procedural fairness as defined by Sopinka J. in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission)[7] (SEPQA) had been duly observed. He further concluded that the Commission had no duty to give reasons for its decision. The appellant has appealed that decision.

At the hearing, the Court did not allow counsel for the Commission to defend it against the allegations that the rules of procedural fairness had been breached. In accordance with the jurisprudence of this Court, inter alia in Labelle v. Canada (Treasury Board),[8] the Attorney General defended the Commission’s actions in that regard in this Court.

It will be useful at the outset to recall the remarks of Sopinka J. in SEPQA, at pages 899 and 900:

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) [now 44(3)(b)] that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission’s function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion…. In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.

and at pages 902 and 903:

2.   Reviewable Error

Although it is not, strictly speaking, necessary to decide this issue in view of the conclusion reached above, the matter was dealt with extensively in the Court of Appeal and was fully argued here. It is therefore appropriate to observe that had I determined that the decision of the Commission was reviewable, I would have concluded as Marceau J. did that the Commission committed no reviewable error. I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.

The Commission was entitled to consider the investigator’s report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

Two matters require special comment. First, it is submitted that failure to give reasons is itself a basis for review. Assuming without deciding that this is so in the absence of a statutory requirement to give reasons (compare Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684, at p. 706, and Lamer J. in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at pp. 500-501), in my opinion there is no basis for such review in this case. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the very extensive report of the investigator which the Commission adopted. This, the Commission was entitled by statute to do. The report which it adopted was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission’s decision. There is, therefore, no ground for suggesting that there was any denial of natural justice or procedural fairness in this regard.

The appellant submitted, apparently for the first time in this Court, that it was not apprised of the Commission’s interpretation of s. 11 of the Act. While I agree with Wilson J.’s statement in Re Downing and Graydon, supra, that this is an aspect of the duty of procedural fairness to inform a party of the case to be met, I am satisfied that the appellant was expressly advised of the manner in which s. 11 was being applied by the Commission.

As Lord Denning noted, that which procedural fairness requires depend on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. Cory J. recently recalled the applicable principles, as follows:[9]

This Court has repeatedly recognized the general common law principle that there is “a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual” (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party’s own position.

The Motions Judge erred, in my opinion, when he stated, based on the decision of the Supreme Court of Canada in SEPQA:[10]

It sufficed for the investigation report to be given to the applicant before the Commission’s decision was made; it was therefore not necessary for the comments of Correctional Services Canada on the report to be given to her as well.

In SEPQA, and this is information that I am taking from reading the reasons of Marceau J.[11] whose decision was affirmed by Sopinka J., only the complainant had filed comments relating to the investigation report, which was unfavourable to it. The complainant, which had that report in its hands, was therefore aware of the case it had to meet, and the Commission had not based its decision on documents of which the plaintiff had not been apprised.

Moreover, when Sopinka J. stated that he was “satisfied that [the complainant] was expressly advised of the manner in which s. 11 was being applied by the Commission” and adopted the opinion of Wilson J. that “this is an aspect of the duty of procedural fairness to inform a party of the case to be met”,[12] he confirmed that a complainant is entitled to know both the rules of the game and the substance of the evidence before the Commission, which in my view includes, where applicable, additional evidence submitted by an adverse party in its comments.

In the case at bar, the appellant certainly was never in a position to foresee, a fortiori to counter, the decision the Commission was going to make, nor to know or even suspect the grounds on which it would decide not to follow its investigator’s recommendation. The investigation report was in fact favourable to her. The Service’s comments were filed without her knowledge and outside the time limit which the Commission had imposed and described as mandatory. These comments were much more than argument based on the facts set out by the investigator in his report; on the contrary, they were replete with facts that did not appear in the file that had until then been before the Commission, and went so far as to attack the appellant’s credibility.[13] Moreover, in the Commission’s decision of April 18, 1991 it misled the appellant by suggesting to her that it had before it only the comments filed by her on December 22, 1990, so that in fact the appellant would have had to bring legal proceedings to learn what the evidence was that had apparently led to the Commission’s about-face.

I am not saying that the rules of procedural fairness require that the Commission systematically disclose to one party the comments it receives from the other; I am saying that they require this when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the stage of the investigation, properly speaking. I recognize that it will not always be easy to determine when comments cease to be “argument”, to use the words of Sopinka J., and become new allegations that must be brought to the attention of the other party; if the Commission were to decide to continue its general practice of not disclosing comments, it will still have to examine each case individually and practise great vigilance so as to avoid a party in a particular case, such as the case at bar, not receiving disclosure of comments that are such as should have been brought to that party’s attention. It would seem to me that it would be in the Commission’s interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. Otherwise, and here I am adopting the views of Mahoney J. in Labelle, the Commission will always be exposed to an application for judicial review “because it will always be prima facie arguable that the complainant was not made aware of, and hence was denied a fair opportunity to meet, the whole of the contrary case.”[14]

I note in passing that it does not seem to me to be very useful, when the investigation report adopts the argument made by one party, to ask that party to submit its comments immediately. What kind of comments can the “winning” party make when it does not even know whether the report will be contested by the other party, and when it undoubtedly has no idea of what aspects of the report will be subject to dispute, if any? In such cases, it would seem to me to be more logical and more practical to ask the “losing” party to submit its comments first, and then to allow the “winning” party to reply.

With respect to the failure to provide reasons for a decision where there is no statutory requirement to do so, the jurisprudence of this Court is to the effect that the Commission is not required to give reasons for a decision it makes under subsection 44(4) of the Act.[15] The appellant relies on the later decision of the Supreme Court of Canada in SEPQA in support of her argument that failure to give reasons may constitute a breach of the rules of procedural fairness.

The situation presented in SEPQA was different. The Commission’s refusal was based on the recommendation to that effect made by the investigator, so that the complainant was in a position, based on the investigation report that was in its hands, to understand the reasons for the decision, although reasons were not given. The Supreme Court rightly refused to decide the issue relating to the failure to give reasons. Here, the Commission’s refusal is contrary to the investigator’s recommendation, and in the absence of reasons the complainant, who was not aware of the existence of the Service’s comments, could not even suspect what had caused the Commission not to act on the recommendation.

Does this mean that in the case at bar the failure to give reasons constitutes in itself a breach of the rules of procedural fairness? I do not believe so.

Had reasons been given for the Commission’s decision, it would nonetheless have been fundamentally vitiated in view of the Commission’s failure to inform the appellant of the substance of all the evidence in the record. If the appellant had been informed of the substance of all the evidence in the record, she could not have complained of the absence of reasons, as the Commission would presumably have rejected the investigator’s recommendation for the reasons set out in the Service’s comments. It does not appear to me to be possible to dissociate the failure to give reasons from the failure to inform and to make the first failure, in the absence of the second, a breach which supports an application for judicial review. The duty to give reasons has been imposed by Parliament in certain specific cases, including the situation covered by subsection 42(1) of the Act which applies where the Commission decides not to deal with a case for the reasons set out in section 41. I would hesitate to use the rules of procedural fairness to impose a burden that Parliament imposes only sparingly in very specific cases.

In conclusion, I am of the opinion that because the Commission did not disclose the Service’s comments to the appellant, she was not treated by the Commission in a manner that complied with the rules of procedural fairness, in the circumstances. Moreover, we need only examine the affidavit that the Court allowed the appellant to file in the Court of Appeal, which contains the reply that she would have made to the Service’s comments, had she known of them in time, to be satisfied that the appellant did not have sufficient opportunity to know the case she had to meet.

It is impossible to allow the application for a writ of mandamus. Such an application can be allowed only if the authority against which it is sought had a duty to make the decision it is asked to make[16] and in the case at bar it is clear from subsection 44(3) [as am. idem] of the Act that the Commission has the discretion to dismiss a complaint.

The appeal should be allowed in part, the decision of the Motions Judge on the application for a writ of certiorari reversed, the decision of the Commission dated April 18, 1991 set aside and the matter referred back to the Commission to be re-examined taking into consideration such reply to the Service’s comments as the appellant may wish to submit to it.

The appellant will be entitled to costs both on appeal and at trial.

Desjardins J.A.: I concur.

Létourneau J.A.: I concur.

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