[1994] 2 F.C. 574
T-675-92
Edwina Slattery (Applicant)
v.
The Canadian Human Rights Commission (Respondent)
Indexed as: Slattery v. Canada (Human Rights Commission) (T.D.)
Trial Division, Nadon J.—Ottawa, October 6, 1993 and February 14, 1994.
Human rights — Application for judicial review of CHRC’s dismissal, without tribunal hearing of complaints against DND as unfounded — Female, employed at Communications Security Establishment, alleging discrimination based on sex, age — Position disestablished, forced to sign education agreement to upgrade skills, employment terminated as abandoned — Alleging required to work harder than male peers — CHRC accepting investigator’s report — In response, applicant alleging systemic discrimination, evidence to prove allegations protected by secrecy surrounding CSE — (1) Content of duty of fairness — Investigator considering all fundamental issues in complaint — Systemic discrimination allegation not fundamental as not raised until response — Adoption of investigator’s conclusion providing applicant with “broad grounds” of case against her — (2) S. 44(3) giving CHRC wide discretion to decide whether appointment of tribunal warranted — Judicial interference not permitted merely because court might have exercised discretion differently — (3) Finding allegation of discrimination unfounded question of law — Could not be argued finding of fact made in perverse, capricious manner.
Judicial review — CHRC adopting investigator’s conclusion allegation of discrimination unfounded — Duty of procedural fairness requiring disclosure of substance of investigator’s report, provision of opportunity to respond even if only in writing — Underlying assumption adequate, fair basis on which to evaluate whether sufficient evidence to “warrant” appointment of tribunal pursuant to Canadian Human Rights Act, s. 44(3)(a) — Neutrality, thoroughness preconditions to establishing fair basis — If CHRC adopting flawed report without giving reasons, its decision equally flawed — In determining thoroughness required for procedural fairness, complainant’s interest to be balanced with necessity for maintaining administratively effective system — Deference to administrative decision-makers in assessing probative value of evidence — Judicial review warranted where complainants unable to rectify omissions by further submissions i.e. where omission so fundamental merely drawing decision-maker’s attention thereto not compensating therefor, or fundamental evidence inaccessible to decision-maker as protected — Neither situation here established — Allegation of systemic discrimination not fundamental to complaints as not raised until response.
This was an application for judicial review of the Canadian Human Rights Commission’s dismissal of two complaints against the Department of National Defence on the basis that the applicant’s allegations of discrimination were unfounded. That decision was made under Canadian Human Rights Act, subparagraph 44(3)(b)(i) which provides that the Commission shall dismiss a complaint if it is satisfied that, having regard to all the circumstances, an inquiry is not warranted. The applicant was employed by the Communications Security Establishment Division of the Department of National Defence (CSE) from 1956 until she was dismissed in 1988. The CSE is a predominantly male work environment, where a majority of the employees are ex-military members. Prior to the events giving rise to her complaints, the applicant worked as a cryptanalyst. She was vocal and active in promoting women’s issues, recommending increased representation of women in middle and upper echelons at CSE. According to the applicant, her proactive stance caused resentment. After losing a competition for the section head position, the applicant’s performance appraisals deteriorated from 1982 to 1984 until it was suggested that she find a job elsewhere in CSE. In 1985 the applicant’s job was disestablished when the functions of her unit were merged with those of another. The applicant was the only member of her unit who was not offered a transfer to the new unit. She was temporarily assigned to a position two levels below her own, but continued to receive benefits at her level until she left on education leave. In 1987, the applicant signed an education leave agreement retroactive to September, 1986. She said that she had been “compelled” to sign the agreement. When she failed to provide an outline of the courses which she proposed to take, the applicant was informed that she was in breach of the agreement and was asked to return to work. The applicant’s case against the CSE stemmed additionally from a number of events which occurred while she was on leave, i.e. her bilingual bonus was removed, her security clearance was revoked, she was asked to remove her belongings due to space constraints, and she was advised that she could not carry-over her vacation leave. When she failed to comply with instructions to return to work, it was declared that she had abandoned her position, as a result of which she was not entitled to severance pay but only to the return of her superannuation fees. The Public Service Staff Relations Board held that the employer had acted in bad faith in dismissing the complainant and awarded her two years’ salary plus severance pay. Applicant’s submission was that the question of discrimination was not raised before the PSSRB. The applicant filed two complaints with the CHRC alleging discrimination due to age and sex when her position was disestablished and that, in being forced to sign an education agreement to upgrade her skills, she was forced to work harder than her male peers, lost the opportunity to keep current her knowledge of cryptanalysis and signal intelligence, and was disadvantaged as to pension and the right to early retirement. She also alleged that she had been discriminated against, based on her sex and age, when her employment was terminated as abandoned. A Human Rights Officer recommended that the complaints be dismissed as unfounded. The applicant responded that the investigation was narrowly focussed on isolated incidents, rather than dealing with the context which brought about the signing of the agreement and in which allegations of abandonment were made. She argued that the CSE had a practice of hiring ex-military men and younger men, and that the few women at CSE were victimized by a sex-segregated work environment in which those positions occupied by women were perceived as less important. The applicant submitted that military men were parachuted into higher positions, thereby blocking the normal progression of women into those positions. She also submitted that the job classification scheme was discriminatory and expert evidence would be necessary to identify the bias at CSE, which by its nature was insidious. The applicant referred to the difficulty of proving systemic discrimination and alleged that a significant part of the evidence needed to substantiate her claim was protected by the “secrecy surrounding CSE”. After considering the complaints, the investigator’s report, and the applicant’s response, the CHRC dismissed the applicant’s complaints without proceeding to a request for a full tribunal hearing, holding that the allegation of discrimination was unfounded.
The issues were: (1) what was the content of the duty of procedural fairness in the context of a CHRC decision to dismiss a complaint pursuant to an investigation and whether this standard was met; (2) whether the CHRC erred in law in concluding that there was insufficient evidence to justify taking the applicant’s complaint to the Tribunal; (3) whether the CHRC’s conclusion that the allegation of discrimination was unfounded was a finding of fact made in a perverse or capricious manner or without regard for the material before it, and therefore subject to judicial review according to subsection 18.1(4) of the Federal Court Act.
Held, the application should be dismissed.
(1) There were no grounds to review the CHRC’s decision based on violation of the rules of procedural fairness. Procedural fairness requires that the CHRC inform the parties of the substance of the evidence obtained by the investigator, which was put before it, and give the parties the opportunity to respond to the evidence and make all relevant representations in relation thereto, even if merely in writing. At first blush, it would appear that by providing the applicant with a copy of the investigator’s report and by allowing the applicant to respond to the report, the CRHC met the above requirements. Underlying these requirements is the assumption that another aspect of procedural fairness—that the CHRC had an adequate and fair basis on which to evaluate whether there was sufficient evidence to warrant appointment of a tribunal existed. To establish such a fair basis, the investigation must satisfy two conditions: neutrality and thoroughness.
With regard to neutrality, if the report which the CHRC adopted in making its decision is flawed, it follows that the decision itself is equally flawed.
There is essentially no legislative guidance regarding the conduct of investigations. In determining the degree of thoroughness of investigation required to comply with the rules of procedural fairness, one must be mindful of the interests that are being balanced: procedural fairness and maintenance of a workable and administratively effective system. Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not. Judicial review was warranted only where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence. Where there is a legal right to make submissions in response to an investigator’s report, as in this case, the parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Judicial review would be warranted only where complainants are unable to rectify such omissions. While not an exhaustive list, circumstances where further submissions cannot compensate for an investigator’s omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker’s attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
The complaints herein were framed exclusively in terms of discrimination suffered by the applicant personally. There were no allegations in the particulars of the complaints of systemic discrimination or unequal pay for work of equal value at CSE generally. A concern as to the systemic nature of discrimination at CSE appeared for the first time in the applicant’s responding submission. As such, it was not “fundamental” to the complaints. The applicant had failed to establish that, due to the secret nature of CSE, there were serious limitations concerning the information that she could disclose prior to the formal appointment of a tribunal and that only a human rights tribunal could obtain access to certain classified information which would support her allegations. The applicant failed to demonstrate what aspect, if any, of this inaccessible evidence that was not obtained by the investigator, and was therefore not before the CHRC, was fundamental to the outcome of her case. All of the fundamental issues contained in the applicant’s complaint, including the section head’s treatment of her, were considered by the investigator. That there was no analysis of certain specific allegations in the investigator’s written report or in the CHRC’s reasons for dismissal did not indicate that these allegations were not considered by the investigator and was not a ground for review. There is no general common law duty for administrative bodies to give reasons for their decisions and the Act is silent with regard to the necessity for written reasons. The CHRC’s adoption of the investigator’s conclusion was more than sufficient to provide the applicant with the “broad grounds” of the case against her, given the detailed description of the evidence of the case that was contained in the report. That the investigator did not interview every witness and that the conclusion did not address every alleged incident of discrimination were not of themselves fatal, particularly when the applicant had an opportunity of filling in gaps left by the investigator by 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 was warranted only where the investigation had been clearly deficient. The investigator had not failed to address any fundamental aspect of the applicant’s complaint, nor were any other more minor but relevant points inadequately dealt with that could not have been covered by the applicant’s responding submissions.
(2) The CHRC did not err in law by concluding that there was insufficient evidence before it to justify taking the applicant’s complaint to the tribunal stage. Assuming that a sufficiently thorough and neutral investigation is found to exist, the next step is for the CHRC to evaluate whether appointment of a tribunal is “warranted” pursuant to subsection 44(3). Subsection 44(3) does not allow the CHRC to completely divorce such decisions from the merits of the complaint. If purely administrative considerations (i.e. cost, time) were allowed to prevail, it is conceivable that a person’s entitlement to relief under human rights legislation would be dependent on the ease of proving human rights violations. Such an approach would be inconsistent with the justice-based purpose of the Act of giving effect to the principle of equal opportunity. Administrative agencies must, in exercising discretionary power, pursue purposes that in no way offend the spirit of the enabling statute. On the other hand, the applicant’s submission, that judicial review of the exercise of discretion is warranted for CHRC dismissals of complaints each time that, in the opinion of the reviewing court, the complainant took his case out of the realm of conjecture, went too far the other way. Deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3). As the power vested in the CHRC by subsection 44(3) is discretionary, a court should not interfere merely because it might have exercised the discretion differently.
The CHRC did not fail to consider the material that was contained in the applicant’s submission, nor was the decision to dismiss the complaint the result of bad faith, irrelevant considerations or improper purposes. The decision was not unreasonable in light of all the material that was before it. The CHRC simply exercised its discretion and made a decision that was open to it to make based on the evidence before it.
(3) The CHRC’s finding, that the applicant’s allegation of discrimination was unfounded, was a question of law and it could not be argued that it was a finding of fact made in a perverse or capricious manner or without regard for the material before it.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 11, 13.1 (as enacted by S.C. 1980-81-81-83, c. 143, s. 7), 33, 36(3)(b).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 3(1), 7, 10, 41(e), 42(1), 43(1),(2),(2.1) (as am. by R.S.C., 1985 (lst Supp.), c. 31, s. 63), (4), 44 (as am. idem, s. 64).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 7, 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 28 (as am. idem, s. 8).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 45.
Privacy Act, R.S.C., 1985, c. P-21.
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; Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471; (1993), 93 CLLC 12,104; Canadian Broadcasting Corporation v. Canadian Human Rights Commission, T-1578-91, Noël J., judgment dated 15/12/93, F.C.T.D., not yet reported; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; (1979), 105 D.L.R. (3d) 609; 79 CLLC 14,223; 28 N.R. 494 (C.A.); Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; (1984), 14 D.L.R. (4th) 78; 9 Admin. L.R. 261; 9 C.C.E.L. 6; 6 C.H.R.R. D/2831; 84 CLLC 17,029; 55 N.R. 384; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 149 N.R.1; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.); N.S. Forest Industries v. N.S. Pulpwood Marketing Board (1975), 12 N.S.R. (2d) 91 (S.C.); Mercier v. Canada (Human Rights Commission) (1991), 7 Admin. L.R. (2d) 58; 51 F.T.R. 205 (F.C.T.D.).
DISTINGUISHED:
Onischak v. British Columbia (Council of Human Rights) (1989), 10 C.H.R.R. D/6290 (B.C.S.C.); Cook v. B.C. Council of Human Rights (1988), 26 B.C.L.R. (2d) 52; 9 C.H.R.R. D/4967 (S.C.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
REFERRED TO:
R v Gaming Board for Great Britain, ex parte Benaim, [1970] 2 All ER 528 (C.A.); Re Glendenning Motorways, Inc. and Royal Transportation Ltd. et al. (1975), 59 D.L.R. (3d) 89 (Man. C.A.); Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1976), 14 O.R. (2d) 49; 73 D.L.R. (3d) 18 (C.A.); Padfield v. Minister of Agriculture, Fisheries and Food, [1968] 1 All E.R. 694 (H.L.); Associated Provincial Picture Houses, Ld. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.); Hall& Co. Ltd. v. Shoreham-by-Sea Urban District Council, [1964] 1 W.L.R. 240 (C.A.).
AUTHORS CITED
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, vol. 4, 2nd ed., Toronto: Carswell, 1990.
Méndez, Miguel Angel. “Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases” (1980), 32 Stan. L. Rev. 1129.
Tarnopolsky, Walter Surma. Discrimination and the Law, revised by William F. Pentney, Don Mills (Ont.): Richard De Boo, l985.
Wade, H. W. R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.
APPLICATION FOR JUDICIAL REVIEW of the CHRC’s decision to dismiss, without a full tribunal hearing, two complaints against the Department of National Defence in that the allegations of discrimination were unfounded. Application dismissed.
COUNSEL:
Andrew J. Raven for applicant.
William F. Pentney for respondent.
SOLICITORS:
Raven, Jewitt & Allen, Ottawa, for applicant.
William F. Pentney, General Counsel, Canadian Human Rights Commission, Ottawa, for respondent.
The following are the reasons for order rendered in English by
Nadon J.: This is an application by Ms. Edwina Slattery (the “applicant”) for judicial review, pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], of a decision of the Canadian Human Rights Commission (the “CHRC”), dated February 21, 1992. The decision, made under subparagraph 44(3)(b)(i) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64] of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended (the “Act”), was to dismiss two complaints (numbers H30995 and H31558) against the Department of National Defence on the basis that the applicant’s allegations of discrimination were unfounded. The applicant seeks an order to set aside the CHRC decision of February 21, 1992 and to remit the matter back to the CHRC with the direction that it be referred to the Canadian Human Rights Tribunal for a hearing, or, in the alternative, that the investigation conducted in the matter be reopened.
FACTS
The applicant was an employee of the Communications Security Establishment Division of the Department of National Defence (CSE) from 1956 until she was dismissed on May 4, 1988. The CSE is a predominantly male work environment, where a majority of the employees are ex-military members.
Prior to the particular events which gave rise to the applicant’s complaint to the CHRC, she worked as a cryptanalyst, at CO-4 level.
While serving as an employee at the CSE, the applicant was active and vocal in promoting women’s issues. She originated and pioneered the Equal Opportunity for Women project in CSE. In February 1977, the applicant became the Special Advisor/Equal Opportunities for Women for CSE. This position culminated in a report that was drafted by the applicant in 1978 that examined the situation of women at the CSE and which made eight specific recommendations aimed, in particular, at increasing the representation of women in middle and upper echelons at CSE.
The applicant filed a number of complaints of discrimination with the CHRC. The first complaint (1982) was apparently not accepted by the CHRC in order to maintain the security of the CSE. The second (1985), which pertained to a training film used at the CSE entitled “The Human Touch Performance Appraisal”, was examined by the CHRC. On August 25, 1986, the CHRC sent a letter to the CSE, advising, inter alia, that “the video portrays women negatively while men are seen as competent and adept at managing.” While the CHRC recommended that the film was not an appropriate tool to use for training, it held that “it would be difficult to determine whether there is reasonable ground to believe the use of this video is discriminatory.”
The applicant’s proactive stance at the CSE, according to her, caused resentment. Indeed, the applicant submits that much of the alleged discrimination that she encountered at the CSE may be explained by resentment of her active role in promoting women’s issues.
In 1981, the applicant took over the position of Unit Head for the 01B unit. Later that year, she competed against Mr. Tom Johnston, who was then 01A Unit Head, for the 01 section head position, which exercised authority over the 01A and 01B groups. She lost the competition.
Over the subsequent years, several incidents of turbulence occurred between the applicant and her peers at the CSE. During an interview, Mr. Johnston described a “pattern of resistance that he continues to encounter from E. Slattery—constant questioning of his decisions.” The applicant, for her part, perceived that her authority was being undermined by Mr. Johnston and that there was a general lack of respect for her as an individual and for her position. In particular, it appears from the documentary evidence submitted by the applicant that she was denied crypt training in England on three separate occasions in 1981, 1982 and 1983. The explanation given for this refusal was that the training was of a “basic” nature and that as a unit head, she was not entitled to it.
The applicant also believes that she did not receive due recognition for her efforts in promoting equality. In particular, Ms. Patricia Badiet was named Affirmative Action Coordinator for CSE despite the applicant being the woman with the most union training. In addition, the applicant was not included as a member of the planning group for a woman’s issues conference which was held on October 22, 1985 and was organized by a committee headed by Ms. Badiet. Furthermore, in a questionnaire circulated by Ms. Badiet in May 1985, no reference was made to the prior work of the applicant. In the words of the applicant, “she [Ms. Badiet] seemed to be excluding my work by setting the clock back to 1976.”
When these allegations were investigated by the CHRC, it was found that the applicant had in fact received some recognition for her work in the form of letters of appreciation from the former chief of the CSE in 1978 and from the Director General of Administration in 1981.
Prior to 1982, the appraisals that the applicant received from her supervisors for her work were “outstanding”, “very good”, etc; however, from 1982 to 1984, these appraisals deteriorated from “fully meets requirements” to “meets minimum requirements”. After receiving the latter evaluation, the applicant entered Mr. Johnston’s office with a union official, demanding to discuss the appraisal. Mr. Johnston admitted telling the applicant that such incidents are not conducive to a good working relationship and suggested that she find a job elsewhere in the CSE.
The specific events which give rise to the complaints in the case at bar stem from a reorganization of the applicant’s work group that was undertaken in 1984. In 1985, the applicant’s job was disestablished when the functions of her unit, 01B, were merged with another unit, M4B10 (the latter apparently being part of the “M” group). The applicant’s position was most seriously affected by this reorganization, since she was the only member of her unit who was not offered a transfer to the “M” group, which was apparently given jurisdiction for cryptanalysis. According to the applicant, her position was disestablished because Mr. Johnston wanted to get rid of her. The explanation offered by the CSE is entirely different. According to the submission made to the CHRC by S. P. Hunter, the Human Rights Coordinator of the Department of National Defence, during this same period, a Cray computer was obtained for the “M” group, for which special knowledge in mathematics and computer science was required. The applicant did not have a degree or the mathematics skills to operate the Cray computer.
Prior to the disestablishment of the applicant’s position, the Director of Personnel offered her a position as a training coordinator, level CO-4. Following the disestablishment, another training coordinator position, at the same level, was offered to her. On both occasions, the applicant refused the offers, reiterating that she wanted to continue working in cryptanalysis. She was therefore temporarily assigned to a position in V-group, two levels below CO-4 group, but she received benefits at CO-4 level, until she left on education leave.
There is a difference of opinion as to whether the request for education leave was initiated by the applicant or by her employer; regardless, in the spring of 1986, both parties entered negotiations for an agreement for education leave for the applicant. During this period, the applicant requested, and obtained, special leave with pay, which, she submitted, was essential in light of the stress that she had been experiencing at the CSE. Although an agreement was apparently reached in August 1986 between the CSE and the solicitor who was acting on the applicant’s behalf, the applicant refused to accept the terms of the agreement, and enrolled in courses of her own choosing at the University of Ottawa.
An agreement was actually finalized between the parties on February 26, 1987. According to the terms of the agreement:
1. The leave was to apply retroactively to September 8, 1986 and was to last up to 4 years;
2. During the period of the agreement, the applicant was to receive full salary and benefits, including reimbursement for tuition and course-related expenses;
3. Subsequent to completion of the leave, the applicant was to continue her employment with CSE until at least 1994;
4. The applicant was to register as a full-time student and take 11 identified courses. At the end of each semester, the applicant had to provide a copy of her transcript to her employer as well as a list of the next courses to be taken;
5. The CSE was free to terminate the agreement if, based on the applicant’s marks and the opinion of the university, she would not be able to complete her course of study within the allotted 4 years. No reimbursement was due if the leave was terminated; and
6. Upon successful completion of the leave, the applicant was free to return to the CSE at C0-4 level.
According to the applicant she was “compelled” to sign this agreement and the agreement forced her to work twice as hard as her male peers in making her “begin again”. It was further submitted that the terms of the agreement removed from her the opportunity to keep up-to-date her knowledge of cryptanalysis and signal intelligence and adversely affected her pension and right to early retirement. For its part, the CSE argued with respect to the agreement that “not only did it not adversely affect Ms. Slattery’s career, it clearly provided her with an opportunity to function as a working cryptanalyst.”
The evidence indicates that on at least five separate occasions, between August 31, 1987 and October 19, 1987, the CSE made written requests for an outline of the courses which the applicant proposed to take. No response was received; thus, in the final letter, the applicant was informed that she was in breach of the agreement and was asked to return to work. The applicant submitted to the CHRC that she provided the CSE with “information” on the program she was taking as well as a course calendar on October 3, 1986. She claimed that she chose not to communicate the requested information because she perceived that the CSE had no intention of honouring the agreement.
The applicant’s case against the CSE appears to stem additionally from a number of events that occurred while she was on leave. In the first place, her bilingual bonus was removed shortly after she started the education leave, pursuant to a CSE policy. It is noteworthy, however, that the applicant was notified of this policy prior to her taking the leave and she even launched an unsuccessful challenge of that policy in a grievance procedure. (May 6, 1987).
Furthermore, pursuant to CSE policy, the applicant’s security clearance to CSE premises was revoked during her education leave. Other employees in a similar position (i.e. on leave for more than three months) did not appear to have these privileges revoked. CSE attributed this discrepancy to an “administrative oversight”.
The applicant was also apparently sent notice, during her leave, by CSE’s Security Officer, that her belongings at the CSE would have to be vacated due to space constraints. As no response was received from the applicant, the possessions in question were packed and itemized and numerous attempts were made to contact the applicant to arrange for their delivery. They were then sent to the applicant’s home on or after June 18, 1987. According to the applicant, she was never contacted about the removal of her belongings and was “devastated” to find them in her driveway.
It was apparently the practice of the applicant to “carry-over” her vacation leave, without objection by the CSE. On May 12, 1987, however, the Deputy Chief wrote to the applicant that she would not be allowed to “carry-over” her accrued 36 days of leave and advised her to schedule leave time or he would do so on her behalf. The applicant’s lawyer responded to this notice on June 4, 1987, referring to her unchallenged tradition of “carry-over”. The Deputy Chief replied that he was authorized to deny carry-over for all managers according to the collective agreement. While this conflict was in process, on May 28, 1987, the Deputy Chief circulated a memo informing all managers that this policy was going to be strictly enforced.
After the applicant was notified of the termination of the agreement and was ordered to return to work, she submitted a written complaint to the Deputy Minister of Defence. When the Deputy Minister decided to close his file on the matter, the Deputy Chief of the CSE sent two letters instructing the applicant to report to work on April 25, 1988 and May 2, 1988, respectively. On May 4, 1988, after the applicant did not show up at the CSE, the Deputy Chief sent her a letter, declaring her to have abandoned her position. Due to the nature of the termination of employment, the applicant was not entitled to severance pay and was only entitled to the return of her Public Service Superannuation fees.
The applicant attempted, on October 26, 1987, to initiate a complaint with the CHRC with regard to the events which gave rise to the complaints in the case at bar. The applicant only succeeded in filing the complaints with the CHRC on February 19, 1988 and October 6, 1989; these complaints were numbered H30995 and H31558 respectively. In the meanwhile, the applicant was told that the Public Service Staff Relations Board (PSSRB) was the appropriate forum for her case. PSSRB hearings were held, although the applicant submits that she did not raise issues of discrimination with the PSSRB, as the CHRC was the appropriate forum for such issues. The PSSRB deliberated on the case for over 25 days, from November 30, 1988 to October 19, 1989 and rendered its decision on March 12, 1990. In this decision, it was held that the respondent acted in bad faith in dismissing the complainant, and that the respondent’s actions were tantamount to de facto dismissal of the applicant. The applicant was granted two years of salary as damages as well as severance pay.
Complaint H30995 was filed pursuant to section 7 of the Act and section 13.1 [as enacted by S.C. 1980-81-82-83, c. 143, s. 7] of Canadian Human Rights Act, S.C. 1976-77 c. 33, as amended. In that complaint, the applicant alleged that discrimination due to age and sex occurred when her position was disestablished and she was forced to sign an education agreement in order to upgrade her skills. According to the applicant, this agreement required her to work harder than her male peers, removed from her the opportunity to keep current her knowledge of cryptanalysis and signal intelligence and adversely affected her pension and right to early retirement. In addition, she argued that the CSE did not respect the terms of the agreement and harassed her with respect to the agreement.
In complaint number H31558, which was filed pursuant to section 7 of the Act, the applicant alleged that she had been discriminated against, based on her sex and age, when her Deputy Chief terminated her employment on May 4, 1988, claiming that the position had been abandoned. According to the applicant, she was authorized to be away from her work until 1990 under the terms of the education agreement.
On May 2, 1988, the CHRC appointed a human rights officer to investigate the merits of the first complaint. This officer was replaced by Lisa Quiring on September 28, 1990, who investigated both complaints. Most investigatory activity appears to have been conducted within a period of 3 days (October 30 to November 1), and the applicant complained that a number of people on the list that she submitted to the investigator as witnesses on her behalf were not interviewed or were only partially interviewed. In her report, dated December 13, 1991, Ms. Quiring recommended that each of the complaints be dismissed, as the allegations of discrimination could not be founded on the evidence.
The applicant was given a copy of the investigator’s report and was permitted to respond to the report. She submitted this response on February 6, 1992.
The applicant made it clear from the outset in her response that she was not satisfied with the manner in which the investigation had been conducted. In the words of the applicant:
It would appear that the investigation was very narrowly focused on isolated incidents rather than dealing with the context which brought about the signing of the agreement and in which allegations of abandonment of position were made. These events are merely the conclusion to a very long-standing problem at CSE. The issue to be determined is not only whether these events were discriminatory in and of themselves but also whether or not they were precipitated by previous discrimination on the part of the employer.
The applicant went on to argue that the CSE had a practice of hiring ex-military men and younger men. The few women that were on CSE’s payroll were, according to the applicant, victimized by a sex-segregated work environment where the jobs of women were perceived as less skilled and less important. The applicant submitted that military men were “parachuted” into higher positions, thereby blocking the normal progression of women into those positions.
It was also submitted by the applicant that professional segregation existed between the 01A (predominantly male) and 01B groups (predominantly female), as 01B jobs were undervalued. The Unit Head of group 01B was a CO-4 and the workers were CO-3’s. Meanwhile, the Unit Head of 01A was a CO-5 while the workers were CO-4’s. As such, the job classification scheme at the CSE was discriminatory and expert evidence would be necessary to identify the bias at the CSE, which, by its nature, was insidious.
The applicant’s submission noted other incidents of alleged isolated discrimination. In particular it was described how Mr. Tom Johnston told the applicant that he was not in favour of hiring Christina Sattler because she was a single mother with two children, and if the kids got sick, she would be off work. Once Ms. Sattler was hired, she did not receive the same training as her male counterparts in 01A.
With respect to proof of discrimination, the applicant submitted that there was “more than enough evidence to convince a reasonable commission that on a balance of probabilities there is enough evidence to proceed to the next stage.” This was particularly so in the case at bar given that the nature of the discrimination that she alleged to have encountered at the CSE was particularly difficult to prove. Regarding the difficulty in proving discrimination, notably systemic discrimination, she noted:
Discrimination is but rarely overt. One is more likely to find cases in which the discriminatory element is dissimulated, than vice-versa. For example, rather than admit that they refuse to hire or promote blacks or women, respondents might pretend that the candidates lack the necessary qualifications or experience for the job, that they show signs of having a difficult personality and an inability to get along with colleagues etc.[1]
Furthermore, according to the applicant, a significant part of the evidence that the applicant needed to substantiate her claim was protected by secrecy. In the words of the applicant:
Not only is there more information still in our possession, we are still awaiting further responses on privacy requests and because of the secrecy surrounding CSE and its lack of accountability, there is information that can only be obtained by subpoena at a Tribunal hearing.
Some of the documents that we have received have been so censored that there is a need to question whether the material that has been excluded but that has been withheld is really secret.
COMMISSION’S DECISION
The CHRC’s decision to dismiss both of the applicant’s complaints without proceeding to a request for a full tribunal hearing was dated February 21, 1992 and reads as follows:
Dear Ms. Slattery:
The Canadian Human Rights Commission has reviewed the investigation report of your complaints (H30995) and (H31558) against Department of National Defence dated February 19, 1988 and October 6, 1989 respectively, alleging discrimination in employment on the grounds of age and sex. The Commission also reviewed the submission dated February 6, 1992, signed by Lucie Laliberté.
The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaints because on the evidence the allegation of discrimination is unfounded.
As the Commission’s decision is final, we have closed our files on these complaints.
The material referred to by the Commission in reaching its decision is listed in the affidavit of Lucie Veillette, secretary to the CHRC. The material before the Commission and pertaining to complaint number H30995 consisted of:
1) The investigation report dated December 13, 1991;
2) The applicant’s complaint form, dated February 19, 1988;
3) A chronology of the CHRC process regarding the applicant’s complaint;
4) A letter and submissions from counsel for the applicant, made in response to the investigator’s report and dated February 6, 1992; and
5) Two letters from Reagan Walker to Charles Théroux, dated January 22, 1992 and January 9, 1992.
The material before the CHRC, pertaining to complaint number H31558 consisted of:
1) The investigation report dated December 13, 1991;
2) The applicant’s complaint form, dated October 6, 1989; and
3) A chronology of the CHRC process regarding the applicant’s complaint.
Although Ms. Veillette’s affidavit does not indicate that the applicant’s responding submissions of February 6, 1992 were before the CHRC when it reached its decision, I must assume from the fact that the submissions are entitled “Answers to Investigation Reports Regarding Complaints H30995 and H31558” and from the fact that both complaints were dismissed in the same decision, that the submissions were considered by the CHRC for both files.
DECISION
I. Relevant Statutory Provisions
A number of provisions of the Act are relevant to the case at bar. These provisions read as follows [ss. 2, 3(1), 7(a),(b), 10(a),(b), 43(1),(2),(2.1) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44(1), (2)(a),(b), 3(a)(i),(ii),(b)(i),(ii) (as am. idem, s. 64), (4)(a),(b)]:
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 every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member 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, 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, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
…
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.
…
10. It is a discriminatory practice for an employer, employee organization or organization of employers
(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.
…
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.
…
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 complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than 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 President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard 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, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
II. Law
Three issues are raised by this application for judicial review:
i) What is the content of the duty of procedural fairness in the context of an investigation of a complaint and with respect to a CHRC decision to dismiss the complaint and has this standard been met in the case at bar?
ii) Did the CHRC err in law by concluding that there was insufficient evidence before it to justify taking the applicant’s complaint to the Tribunal stage?
iii) Is the CHRC’s conclusion that the applicant’s allegation of discrimination is unfounded a finding of fact made in a perverse or capricious manner or without regard for the material before it, and therefore subject to judicial review according to subsection 18.1(4) of the Federal Court Act?
i) What is the content of the duty of procedural fairness in the context of an investigation of a complaint and with respect to a CHRC decision to dismiss the complaint and has this standard been met in the case at bar?
In the aftermath of the decision of the Supreme Court of Canada in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, the distinction between tribunals exercising their functions in a so-called “administrative” manner, as opposed to a “judicial” or “quasi-judicial” manner in order to determine whether the rules of natural justice apply, is no longer fundamental. Rather, a general duty of “procedural fairness” is to be applied to all administrative decision-making processes, the content of which varies according to the circumstances of the particular instance. In the words of Sopinka J. 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 pages 895-896 [hereinafter referred to as S.E.P.Q.A.]:
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 provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates.
Now that sections 18 and 28 [as am. by S.C. 1990, c. 8, s. 8] of the Federal Court Act have been amended, characterization of decision-making processes as “administrative” versus “judicial” is no longer necessary in Federal Court actions as well. (See inter alia Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, where, prior to the amendment of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], Wilson J., Dickson C.J. and Lamer J. [as he then was] applied this distinction in holding that the Minister’s determination under section 45 of the Immigration Act, 1976 [S.C. 1976-77, c. 52] was not reviewable under section 28.)
What is the content of the duty of fairness in the context of a decision by the Commission to dismiss a complaint pursuant to an investigation? This issue has been addressed in a number of cases, most notably Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.); Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407 and S.E.P.Q.A. (supra).
Latif involved the refusal of the CHRC to exercise jurisdiction over alleged discrimination that occurred against the complainant when he was dismissed by the Department of National Revenue, Customs and Excise. The incident took place prior to the coming into force of the Act and the CHRC hearing and application for judicial review took place prior to the amendment of sections 18 and 28 of the Federal Court Act. It is also to be noted that the CHRC’s decision not to deal with the complaint was justified on the ground that it appeared to be beyond its jurisdiction. Therefore, technically, the complaint was dismissed pursuant to section 33 of the Act (now section 41) as opposed to section 36 (now section 44). Nevertheless, the principles of judicial review enunciated by the Federal Court of Appeal—that since the result of the decision involved a final determination of the complainant’s rights, the complainant must be given the opportunity to be heard, even if merely in writing—are relevant to the case at bar.
In Radulesco, investigation procedures were initiated by the CHRC and the complainant’s case was eventually dismissed as unsubstantiated under subparagraph 36(3)(b) (the equivalent to the current 44(3)(b)) of the Act. Although the complainant in that case was invited to submit comments prior to the CHRC making its final decision, she was only provided with a limited indication of the factual basis upon which the investigator’s recommendations were made. Furthermore, when the complainant requested a copy of the investigator’s report and further information as to its underlying reasons, she was advised that such material would only be available upon approval by the CHRC. The investigator’s reports were not received by the complainant until after the final decision had been made by the CHRC. Lamer J. (as he then was) held that procedural fairness requires that the complainant be provided with an opportunity to make submissions, at least in writing, before any action is taken on the basis of an investigator’s report and, in particular, in order to ensure that such submissions are made on an informed basis, the CHRC must, prior to its decision, disclose the substance of the case against the complainant.
Finally, S.E.P.Q.A. involved a complaint pursuant to the equal pay for work of equal value provisions of the Act (section 11) against the Canadian Broadcasting Corporation. In S.E.P.Q.A., an investigator was appointed by the CHRC, who kept both parties informed of his progress throughout the approximately four-year investigation. The study conducted by the investigator appears to have been thorough, involving testing the CBC’s existing classification levels against classification levels identified by CHRC experts using first the former CBC plan and then a Treasury Board plan, called the Aiken Plan.
The investigator in S.E.P.Q.A. concluded that although some discrepancies in pay levels existed they were attributable to job misclassification and were not significant, having regard to the overall consistency of the ratings. In light of these findings, the investigator recommended that the complaint be rejected by the CHRC as unsubstantiated.
In S.E.P.Q.A. a copy of the investigator’s report, which explained his methodology, was sent to the complainant and the complainant was invited to make written submissions in response to the report prior to the CHRC making its final decision. The CHRC considered the submissions made by the complainant as well as the investigator’s report and decided to dismiss the complaint as unsubstantiated pursuant to subsection 36(3) of the Act.
Sopinka J. held that in order to satisfy the duty of fairness, the CHRC had to inform the parties of the substance of the evidence obtained by the investigator, and which was put before the CHRC. As well, the CHRC was required to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. In making its decision to dismiss the complaint without a tribunal hearing [at page 902]:
The [CHRC] 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.
At first blush, it would appear that the CHRC, by providing the applicant with a copy of the investigator’s report and by allowing the applicant to respond to the report, was in conformity with the formal wording of the requirements set out in the above cases. However, underlying these requirements is the assumption that another aspect of procedural fairness—that the CHRC had an adequate and fair basis on which to evaluate whether there was sufficient evidence to warrant appointment of a tribunal—existed.
In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to paragraph 44(3)(a) of the Act, I believe that the investigation conducted prior to this decision must satisfy at least two conditions: neutrality and thoroughness.
With regard to neutrality, it has been held that if the CHRC simply adopts an investigator’s conclusions without giving reasons, and those conclusions were made in a manner which may be characterized as biased, a reviewable error occurs. In the case of Canadian Broadcasting Corporation v. Canadian Human Rights Commission (Court file no T-1578-91, decision rendered December 15, 1993, Noël J.) [not yet reported], an investigator, on the suggestion of a regional director of the CHRC, added an extra ground of sexual discrimination to a complaint filed against the CBC without initially obtaining a formal ruling under paragraph 41(e) of the Act as to whether the new complaint should be dealt with by the CHRC. A paragraph 41(e) ruling was finally requested by the CBC. The CBC argued that the CHRC should not be able to proceed with the investigation of the amended complaint as it raised new grounds and the events giving rise to the allegation had taken place more than one year before the amendment and, as such, the allegation was time-barred.
The intake officer on the matter was asked to prepare a “prior to investigation report”, for which the investigator assembled supporting documentary evidence. As Noël J. notes, a number of relevant facts, which would have militated against the investigation of the time-barred complaint, and were therefore relevant to the exercise of the CHRC’s discretion under paragraph 41(e) of the Act, were omitted from the report. These facts included the fact that the complainant had submitted and then rescinded her resignation from the CBC around the time of the alleged events.
According to Noël J. the participation of the Regional Director and the investigator, who had predetermined the issue and invited the complainant to go forth on that basis, in the “prior to investigation report”, was such as to give rise to bias. Although Noël J. acknowledged that S.E.P.Q.A. permitted the CHRC to render a decision without reasons, by adopting the conclusions in the investigator’s report, Noël J. refined this analysis to the extent that [at page 20], “If the report which [the CHRC] adopted in making its decision is flawed, it must follow that the decision itself is equally flawed.”
The requirement of thoroughness of investigation stems from the essential role that investigators play in determining the merits of particular complaints. This essential role was recognized by the Supreme Court in the S.E.P.Q.A. case. In the words of Sopinka J. (at page 898):
In general, complainants look to the Commission to lead evidence before a tribunal appointed under [section 49], and therefore investigation of the complaint is essential if the [CHRC] is to carry out this role.
I note that investigators, the CHRC and reviewing courts are essentially without legislative guidance regarding the conduct of investigations. Section 43 of the Act empowers investigators with search and seizure abilities but sets no minimum duties of investigation. Furthermore, except in the limited domains of investigations pertaining to matters of immigration and customs and excise, no investigation regulations have been created despite the provision under subsection 43(4) of the Act for the Governor in Council, inter alia, to make regulations prescribing the procedures to be followed by investigators.
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant’s and respondent’s interests in procedural fairness and the CHRC’s interests in maintaining a workable and administratively effective system. Indeed, the following words from Mr. Justice Tarnopolsky’s treatise Discrimination and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally applicable with regard to the determination of the requisite thoroughness of investigation:
With the crushing case loads facing Commissions, and with the increasing complexity of the legal and factual issues involved in many of the complaints, it would be an administrative nightmare to hold a full oral hearing before dismissing any complaint which the investigation has indicated is unfounded. On the other hand, Commission should not be assessing credibility in making these decisions, and they must be conscious of the simple fact that the dismissal of most complaints cuts off all avenues of legal redress for the harm which the person alleges.
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
In contexts where parties have the legal right to make submissions in response to an investigator’s report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator’s omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker’s attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
In the CBC case, for example, Noël J. noted that one would expect that the CBC, in its representations, would have dealt with the shortcomings of the investigator’s report. However at page 16 of his judgment, Noël J. notes:
… at the time, the CBC was unaware of the involvement of the Regional Director and the investigator in inviting Ms. Paul to proceed with her late filed complaint notwithstanding the requirements of paragraph 41(e). Indeed, it had been misled into believing that Ms. Paul had decided to proceed only after being told that her new complaint was time-barred. While the CBC expressed astonishment with respect to the recommendation embodied in the report, it was not in a position to point out, for the benefit of the Commission, its lack of objectivity. [Emphasis added.]
I also find support for the above approach in the holding of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471. Larocque involved judicial review of a decision of an arbitrator to allow an objection against the admission of evidence. The evidence in question in Larocque would have substantiated the university’s claim that a shortage of funds, which was blamed for the termination of two research assistants, was attributable to the work of the assistants themselves. With such evidence, it could have been possible to justify the termination as attributable to a cause within the employee’s control. The Supreme Court of Canada upheld the decision of a Quebec Superior Court to review the arbitrator’s decision to permit an objection to admitting the evidence. In his reasons for decision, Lamer C.J. stressed that the arbitrator did not necessarily violate the principles of natural justice by erroneously excluding relevant evidence; however where such evidence is significant to the outcome of the case (i.e. in this sense it is fundamental), review would be warranted. In the words of the Chief Justice (at page 491):
A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
One can infer that in the S.E.P.Q.A. case, the Supreme Court was satisfied with the thoroughness of the investigation and the level of interaction between the investigator and the parties during the investigation. The investigator’s report, which was described by Sopinka J. as “very detailed” (at page 903), contained explanations of both the investigator’s methodology and results.
Can it be said that sufficient thoroughness existed in the case at bar and, if not, that the omissions in the investigator’s report could be corrected by the applicant’s responding submission?
I note in the first place that complaints H30995 and H31558 were both framed exclusively in terms of alleged discrimination suffered by the applicant personally. Nowhere in the particulars of either complaint were allegations made regarding systemic discrimination or unequal pay for work of equal value at CSE generally. Indeed, much of the concern over the systemic nature of discrimination at the CSE only appeared in the applicant’s responding submission, which was prepared by Ms. Laliberté and submitted on February 6, 1992. As such, I cannot characterize such evidence as “fundamental” to the applicant’s complaints.
The applicant also emphasized to the CHRC and to this Court that because of the secrecy surrounding CSE, she felt that there were serious limitations concerning the information that she could disclose prior to the formal appointment of a tribunal and that only a human rights tribunal could obtain access to certain classified information which would support her allegations. The applicant has simply failed to convince me on either of these arguments.
It is clear from the documentary evidence accompanying the applicant’s record, particularly the appendix outlining the material that was before the PSSRB hearing, that the applicant has accumulated a vast array of evidence pertaining to job classifications, etc. through voluntary disclosure by the CSE, as well as Access to Information Act [R.S.C., 1985, c. A-1] and Privacy Act [R.S.C., 1985, c. P-21] requests. Although both the Privacy Act and the Access to Information Act exempt disclosure of information which could reasonably be injurious to the conduct of international affairs, or the defence of Canada as well as to the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, there is no evidence that any of her Access to Information Act or Privacy Act requests have been denied. Most importantly, the applicant has failed to demonstrate to me what aspect, if any, of this inaccessible evidence that was not obtained by the investigator (and was therefore not before the CHRC when it dismissed the applicant’s complaints) is fundamental to the outcome of her case.
With regard to the applicant’s submission that the investigator’s conclusion that “the allegations in the human rights complaints were addressed by the PSSRB” was sufficiently deficient so as to constitute an error of law, I conclude that these comments were simply another way of saying that “the allegations in the human rights complaint may give rise to a claim for wrongful dismissal but do not constitute discrimination.” Although the wording of the statement was unfortunate, it certainly does not give rise to a reviewable error.
Finally, the applicant submits that the investigation lacked thoroughness in the sense that some witnesses listed by her in support of the complaint were not interviewed by the investigator. In addition, the applicant submitted that the investigator’s report contained no analysis regarding the role played by the 01 section head in harassing the applicant and in disestablishing her position.
Although the investigation appears to have only been conducted over a period of three days, it appears from the report that all of the fundamental issues contained in the applicant’s complaint, including the section head’s treatment of the applicant, were considered by the investigator. The fact that “no analysis” of certain specific allegations was contained in the written report of the investigator (the investigator’s report contained only a summary of each side’s story) or in the CHRC’s reasons for dismissal of the complaint does not indicate that these allegations were not considered by the investigator and is by no means a ground for review. I find support for this conclusion in the fact that there is no general common law duty for administrative bodies to give reasons for their decisions, (see inter alia R v Gaming Board for Great Britain, ex parte Benaim, [1970] 2 All ER 528 (C.A.); Re Glendenning Motorways, Inc. and Royal Transportation Ltd. et al. (1975), 59 D.L.R. (3d) 89 (Man. C.A.)) and by the fact that the Act is silent with regard to the necessity of written reasons, in contrast to subsection 42(1), which applies to cases in which the Commission finds a complaint inadmissible on one of the grounds listed in section 41. As Mr. Justice Pinard concluded in the case of Mercier v. Canada (Human Rights Commission) (1991), 7 Admin. L.R. (2d) 58 (F.C.T.D.), at page 65: “the absence of reasons for the decision is no more a breach of procedural fairness than of the Act.”
The rules of procedural fairness require merely that a complainant know the essence of the case against him or her. In the words of Lord Denning M.R. in the case of Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.), at page 19, cited by Justice Sopinka in S.E.P.Q.A. (at page 900):
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 of 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.
The investigator’s conclusion in the case at bar stated that:
The evidence shows that the complainant’s position was disestablished due to a reorganization, and that she refused two offers for positions at her CO-4 level because she wanted to continue working in cryptanalysis. In order for the complainant to upgrade her skills in cryptanalysis, she signed an education leave agreement. There was a dispute over the terms and conditions of the agreement, and the complainant was instructed by the respondent to return to work. When the complainant refused to do so, her employment was terminated.
There is no evidence that the complainant was treated differently or harassed because of her age and sex.
It is therefore recommended that the Commission dismiss the complaint because on the evidence the allegation of discrimination is unfounded.
The CHRC’s adoption of that conclusion was more than sufficient to provide the applicant with the “broad grounds” of the case against her, given the detailed description of the evidence of the case that was contained in the report.
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. In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant’s complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant’s responding submissions.
As such, I find no grounds to review the CHRC’s decision to dismiss the applicant’s complaint based on lack of thoroughness of the investigation or any other violation of the rules of procedural fairness.
ii) Did the CHRC err in law by concluding that there was insufficient evidence before it to justify taking the applicant’s complaint to the Tribunal stage?
Assuming that a sufficiently thorough and neutral investigation is found to exist, the next step is for the CHRC to evaluate whether appointment of a tribunal is warranted, pursuant to subsection 44(3) of the Act.
When S.E.P.Q.A., Latif and Radulesco were decided, subsection 36(3) of the Act [S.C. 1976-77, c. 33] required the CHRC to dismiss complaints if the CHRC was of the view that they were not “substantiated”. In S.E.P.Q.A., Sopinka J. made it clear that the decision to dismiss or to go on was intimately linked to the CHRC’s perception of the merits of the case (at page 899):
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 [the Act] is met.
Must such a link exist under the current Act, where a CHRC finding that “inquiry is warranted” is the applicable standard as opposed to “complaints being substantiated”?
In the very least, it appears that the statutory discretion vested upon the CHRC to decide whether a complaint should be dismissed is wider under subsection 44(3) than it was under subsection 36(3)”but that does not mean that it is unlimited. Counsel for the respondent implied in his submissions that the legislative intent motivating this amendment was to give the CHRC the ability to dismiss complaints based on factors that are unrelated to the merits of the case or jurisdiction of the adjudicator. This argument appears to be supported by the following statement made in obiter dictum regarding the use of the word “warranted” as opposed to “substantiated” in the dissenting judgment of Madam Justice L’Heureux-Dubé in S.E.P.Q.A. (at page 920):
… the use of these words by Parliament in amending the Act could not more clearly express an intention to give the Commission sufficient latitude to dispose of complaints otherwise than by a determination of their merit.
I cannot agree that subsection 44(3) of the Act allows the CHRC to completely divorce such decisions from the merits of the complaint. If purely administrative considerations (i.e. cost, time) were allowed to prevail, it is conceivable that a person’s entitlement to relief under human rights legislation would be dependent on the ease of proving human rights violations. Such an approach is clearly inconsistent with the justice-based purpose of the Act, stated in section 2, to give effect to the principle of equal opportunity. There exists ample authority in Canadian law that administrative agencies must, in exercising discretionary power, pursue purposes that in no way offends the spirit of the enabling statute. (See Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1976), 14 O.R. (2d) 49 (C.A.); Padfield v. Minister of Agriculture, Fisheries and Food, [1968] 1 All E.R. 694 (H.L.); general discussion in Dussault & Borgeat, Administrative Law, Vol. 4 (Toronto: Carswell, 1990) at pages 340 ff.)
On the other hand, the submission of the applicant, that judicial review of the exercise of discretion is warranted for CHRC dismissals of complaints each time that, in the opinion of the reviewing court, the complainant took his (or her) case out of the realm of conjecture, goes too far the other way. Counsel for the applicant brought to my attention the case of Onischak v. British Columbia (Council of Human Rights) (1989), 10 C.H.R.R. D/6290 (B.C.S.C.) in support of this submission. In Onischak, Huddart J. relied on the test set out by Wood J. in the case of Cook v. B.C. Council of Human Rights (1988), 26 B.C.L.R. (2d) 52 (S.C.), in dismissing a complaint of discrimination based on the alleged refusal to consider the complainant for a job as a probation officer due to the fact that he was visually impaired and did not hold a valid driver’s licence. According to Huddart J. (at page D/6293):
In view of the provisions of s. 12, any review of the question as to whether or not an investigation had been “completed” necessarily involves an examination of the exercise of the Council’s discretion. The legislature has entrusted the responsibility to deal with human rights to the Council, a specialized body, uniquely qualified to make the assessment as to whether to discontinue proceedings, recommend a settlement, submit a report to the minister or designate one of its members to hear written or oral submissions, as that member specifies, after an inquiry of whatever nature and extent it determines to be appropriate to the circumstances. In these circumstances the only question is whether or not the council acted patently unreasonably in exercising its discretion.
What is patently unreasonable will depend on the circumstances of each case. The evidence uncovered by the investigation was insufficient to raise the inference of discrimination based on a physical disability. Evidence was obtained that the decision to disqualify Mr. Onischak from the employment competition was based solely on facts unrelated to physical disability. In these circumstances it was not patently unreasonable for the Council to conclude the investigation and order that the proceedings be discontinued without further inquiry and further response to the complainant.
The first observation to be made is that Onischak and Cook both involved complaints filed pursuant to the British Columbia Human Rights Act (S.B.C. 1984, c. 22). Nowhere in that Act is the Human Rights Council given the power to dismiss a complaint if it considers that further inquiry is not warranted. Rather, paragraph 14(1)(a) [as am. by S.B.C. 1989, c. 53, s. 5] of the British Columbia Human Rights Act provides no guidance with regard to the standard that the Council must apply in determining whether a proceeding should be discontinued. The provision merely states:
14. (1) On completion of an investigation, the chairman shall
(a) refer the complaint to the council for a determination as to whether the proceeding should be discontinued….
It was therefore open to reviewing courts to refer, inter alia, to paragraph 14(1)(d), which makes the decision of an individual council member to dismiss or not to dismiss contingent on whether the complaint is justified or not (in other words, contingent on the merits of the case) in interpreting paragraph 14(1)(a). This is exactly what the B.C. Supreme Court appears to have done in Cook (at pages 61-62):
When considering whether or not to discontinue proceedings under s. 14(1)(a), it is my view that the council must employ an objective standard. The one that comes readily to mind is that to which the common law has frequent resort, namely, a standard which invokes a test of reasonableness. I conclude that when considering a complaint the council must determine whether there is any evidence upon which either a board of enquiry under s. 16, or a designated member of council under s. 14(1)(d), acting reasonably, could find the complaint to be proved on a balance of probabilities. If so, then it ought not to order proceedings discontinued under s. 14(1)(a), but, instead, it must move on to a consideration of the three remaining alternatives found in that subsection.
Furthermore, the statement of Huddart J., that judicial review of discretion is warranted only under circumstances of “patently unreasonable” exercise of that discretion, is not easily reconcilable with a standard that would allow review every time the court concludes that the evidence uncovered by an investigation raises an inference of discrimination. In the spirit of the Supreme Court of Canada in Mossop, deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3).
In light of the fact that the power vested with the CHRC under subsection 44(3) is discretionary in nature, I must accept the following guiding statement of McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
Canadian courts may also review the exercise of discretionary power where such power has been exercised in a discriminatory, unfair, capricious or unreasonable manner. (See Associated Provincial Picture Houses, Ld. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.); Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council, [1964] 1 W.L.R. 240 (C.A.)). As Coffin J.A. writes in N.S. Forest Industries v. N.S. Pulpwood Marketing Board (1975), 12 N.S.R. (2d) 91 (S.C.), at page 115:
Examples of unreasonableness, include the failure of one exercising discretion to “direct himself properly in law”, to “call his own attention to the matters which he is bound to consider”….
There is no evidence before me indicating that the CHRC failed to consider the material that was contained in the applicant’s submission of February 6, 1992, nor am I convinced that the CHRC’s decision to dismiss the complaint was the result of bad faith, irrelevant considerations or improper purposes. I am furthermore not convinced that the decision was unreasonable in light of all of the material that was before the CHRC. The CHRC simply exercised its discretion and made a decision that was open to it to make based on the evidence before it.
iii) Is the CHRC’s conclusion that the applicant’s allegation of discrimination is unfounded a finding of fact that was made in a perverse or capricious manner or without regard for the material before it, and therefore subject to judicial review according to subsection 18.1(4) of the Federal Court Act?
On this matter, I must disagree with the premise of the applicant, that the conclusion that the issue of the foundedness of the applicant’s allegation of discrimination is a question of fact, as opposed to a question of law. As stated by Professor Wade (Administrative Law, 6th ed., at pages 938-939):
Questions of law must be distinguished from questions of fact, but this has always been one of the situations where the rules have taken different forms under judicial manipulation ….
The simpler and more logical doctrine has been recognised in many judgments. This is that matters of fact are the primary facts of the particular case which have to be established before the law can be applied, the `facts which are observed by the witnesses and proved by testimony’, to which should be added any facts of common knowledge of which the court will take notice without proof. Whether these facts, once established, satisfy some legal definition or requirement must be a question of law, for the question then is how to interpret and apply the law to those established facts.
It is therefore not possible for the applicant to argue that the finding of the CHRC, that the applicant’s allegation of discrimination is unfounded, is a finding of fact made in a perverse or capricious manner or without regard for the material before it, pursuant to paragraph 18.1(4)(d) of the Federal Court Act.
III. CONCLUSION
For the reasons stated above, this application for judicial review is dismissed.
[1] See Méndez, “Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases” (1980), 32 Stan. L. Rev. 1129, at p. 1130.