Date: 19990824
Docket: T-1103-98
BETWEEN:
KATHLEEN HELEN WALKER
Applicant
- and -
JOHN CHRISTOPHER RANDALL, and
THE ATTORNEY GENERAL (CANADA)
Respondents
- and-
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER
TEITELBAUM, J:
[1] On May 29, 1998, the applicant, Kathleen Helen Walker, filed into the Federal Court registry a notice of application for judicial review pursuant to section18.1 of the Federal Court Act in respect of a decision made on or about April 20, 1998 by the Canadian Human Rights Commission (the CHRC) to dismiss the applicant"s complaint of sexual harassment and discrimination by John Christopher Randall and the Federal Department of Justice.
[2] The applicant states in her application for judicial review that:
| [t]he applicant makes application that the Court declare invalid or unlawful, and set aside the decision of the Canadian Human Rights Commission to dismiss her complaint and refer the complaint back for determination before a duly appointed Tribunal and for the Tribunal to inquire into the complaint and give all parties a full an [sic] ample opportunity, in person or through counsel, to appear before the Tribunal, present evidence and make representations to it. |
| [3] The following are the grounds, as listed in the judicial review application, for the making of the present application: |
| 1. The Canadian Human Rights Commission acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction in refusing to carry out the investigation of the complaint in a timely or thorough manner: |
| (a) The applicant has never met or been formally interviewed by an investigator (there have been three, two situated in Ottawa, Ontario and one in Vancouver, British Columbia). |
| (b) The Canadian Human Rights Commission closed its British Columbia offices in July of 1995 and the Applicant was forced to proceed with her complaint through the Ottawa office at her own expense. An investigator was eventually appointed in British Columbia at her insistence but the investigation was reassigned and it returned to Ottawa. |
| 2. The Canadian Human Rights Commission violated the Applicant"s rights under s. 6(2) of the Canadian Charter of Rights and Freedoms in that it did not appoint an investigating officer or maintain an office in the Province of British Columbia. The Respondent Attorney General of Canada and its counsel are situated in Ottawa and therefore the Respondent Attorney General has access to the offices of the Canadian Human Rights Commission that the Applicant does not. |
| 3. The Canadian Human Rights Commission failed to observe a principal of natural justice in that its officers interviewed witnesses and relied on their evidence without identifying them to the Applicant in order that she could respond to their evidence and without permitting the Applicant to subject their evidence to cross-examination. |
| 4. The Canadian Human Rights Commission erred in law in making the decision that it required the eye-witness evidence of other witnesses for a finding of sexual harassment, a position that is not supported by the Canada Evidence Act, case law or on any basis whatsoever. |
| 5. The Canadian Human Rights Commission based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner and without regard for the material before it; in particular but not limited to, their finding that there were no eye-witnesses to the sexual harassment: |
| (a) The Respondent, John Christopher Randall, does not deny that the most serious incident in question took place, therefore he is a witness. The Applicant is also a witness. To require other witnesses to such conduct is patently unreasonable. |
| (b) Further, the Canadian Human Rights Commission failed to give due regard and weight to a Public Service Commission investigation into the same complaint conducted earlier. That Commission concluded that the Applicant had been a victim of offensive and prohibited behaviour and that the Department of Justice officials failed to act to protect her in a manner required by policy. |
| 6. The Canadian Human Rights Commission acted on false evidence from unidentified witnesses with respect to the sexual harassment complaint and with respect to the Applicant. |
[4] The decision of the CHRC of April 28, 1998 was made under the Canadian Human Rights Commission Act (the 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.
Facts
[5] The applicant is presently a lawyer practising the profession of law in the Province of British Columbia. She graduated law school on May 28, 1991. She commenced her articles with the Department of Justice for Canada (DOJ) on May 13, 1991. In the applicant"s affidavit sworn on June 26, 1998, which contains 128 paragraphs, most of which are not relevant for the present judicial review, she states that when she completed her Professional Legal Training course, she was assigned "to the Main Street office" in Vancouver starting July 22, 1991 in her rotation through the criminal section. The applicant states that on August 16, 1991 at approximately 5:00 p.m. "all the prosecutors from the Main Street office went to an after-work social function." The applicant was one of the persons who attended the "after-work social function." By 6:30 p.m., the applicant states she wanted to go home and was offered a drive home by Mr. Randall. She states, in her affidavit, that she declined the offer "several times" but "could not figure an excuse for not accepting a ride from Mr. Randall."
[6] During the ride home, the applicant states Mr. Randall "grabbed my left hand held it on his lap and started fondling and stroking it in a sexual manner." The applicant also states that when Mr. Randall pulled up in front of her townhouse, she tried to jump from the car before it came to a full stop. She states "[h]e continued his grip on my left hand and said "kiss me" in a strange, overbearing voice as if his direction was an order."
The Complaints to the CHRC
[7] On January 30, 1996, some 4" years after the August 16, 1991 incident, the applicant formally filed 2 complaints with the Commission. In her first complaint she alleged that Mr. Randall had engaged in a discriminatory practice in the course of her employment through sexual harassment contrary to section14 of the Act. The applicant alleged that during the summer of 1991, as an articling student with the Federal Crown"s office, she was subjected to improper, unwanted attention by Mr. Randall. She further alleged that on August 16, 1991, Mr. Randall insisted on driving her home and attempted to kiss her.1
[8] In a second complaint, the applicant alleged that the Department of Justice had engaged in a discriminatory practice by not providing her with a workplace free from sexual harassment and by refusing to continue to employ her contrary to sections 7 and 14 of the Act. The applicant alleged that during her articling rotation with the Federal Crown"s office, she did not receive any assistance when she complained of Mr. Randall"s conduct. She further states that she was discriminated against as she was only given a 1 year term position following her articles, treated unfairly, assessed negatively and that her term was not renewed.2
The Investigation
[9] I can do no better than to quote from the respondent"s Memorandum of Fact and Law found at pages 43 and 44 of the respondent"s Application Record, with regard to what took place after the applicant had formally filed her 2 complaints.
| (i) Chronology |
| 6. Following the filing of the Applicant"s two complaints, the Commission appointed an Investigator on March 25, 1996 to investigate the allegations complained of. |
| 7. On April 9, 1996, the Department was notified of the complaint and was asked to respond. The Department replied to the allegations on June 19, 1996. |
| 8. On April 23, 1996, the Respondent Randall was notified of the complaint made against him and was asked to respond. The Respondent Randall replied to the complaint on August 12, 1996. |
| 9. The Applicant was given the opportunity to review and rebut the Respondent Randall and the Department"s responses to the complaints. |
| 10. In April 1997, the Investigator requested witness information from the Applicant, the Respondent Randall and the Department and on October 29, 1997, the Investigator began interviewing witnesses. |
[10] Alternatively, one can refer to pages 11 and 26 of the respondent"s Application Record under the title "Chronology" to see what took place after the filing of the 2 complaints by the applicant.
| CHRONOLOGY Kathleen Walker vs. Chris Randall - H34249
[At page11] |
CHRONOLOGY Kathleen Walker vs. Department of Justice Canada - H34002
[At page 26] |
[11] The person who was assigned to investigate the applicant"s two complaints was Mr. George Kolk who is a human rights officer with the CHRC in Ottawa. On pages 5 to 10 of the respondent"s Application Record is Mr. Kolk"s Investigation Report relating to the complaint made by the applicant concerning Mr. Randall. These pages also contain the position of Mr. Randall as well as that of the applicant. On page 5 are Mr. Kolk"s recommendations to the CHRC.
[12] Pages 6 to 8 inclusively contain the detailed report of the investigation regarding the complaint against Mr. Randall.
[13] Mr. Kolk"s Investigation Report, and recommendations contained therein, concerning the complaint by the applicant against the Department of Justice, can be found at pages 18 to 25 of the respondent"s Application Record.
[14] After the CHRC received the report and the documents submitted with the report, the Commission, on April 20, 1998, decided to deal with the complaints pursuant to paragraph 41(e) of the Act "even though the act complained of occurred more than one year before receipt of the complaint." The Commission, resolved, pursuant to subparagraph 44(3)(b)(i) of the Act to dismiss the applicant"s complaints.
[15] After receiving the decisions of the Commission, and as I have stated, the applicant filed an application for judicial review of the said decisions pursuant to section18.1 of the Federal Court Act.
[16] In support of her judicial review application, the applicant filed her own affidavits sworn on June 26, 1998 and on September 18, 1998. The first affidavit contains, as I have said, 128 paragraphs. The applicant filed a number of exhibits together with her affidavits. Most, if not all, of the exhibits and the allegations in the applicant"s affidavits cannot now be considered by this Court. The allegations were not put to the CHRC investigator and thus not put to the CHRC for their consideration. More on this issue later.
[17] The applicant also filed the affidavits of Raymond Patrick Enright sworn to on July 17, 1998, Mike Brundrett sworn to on June 11, 1998, Dale Edward Walker sworn to on June 25, 1998 and the affidavit of George Kolk sworn to on July 20, 1998.
[18] The respondent also filed the affidavit of George Kolk sworn to on July 20, 1998, as well as his affidavit sworn to on September 25, 1998.
Issues
[19] In the applicant"s written submissions, she lists the issues as:
| Issue I |
| 4. Did the Commission act without jurisdiction, beyond its jurisdiction or fail to exercise its jurisdiction in refusing to carry out the investigation of the Applicant"s complaint in a timely and thorough manner; in failing to address all aspects of the Applicant"s complaints and in adopting the flawed and unfair investigator"s report. |
| Issue II |
| 5. Did the Commission breach the Applicant"s rights under s. 6(2) of the Canadian Charter of Rights and Freedoms by refusing the Applicant access to their services in British Columbia. |
| Issue III |
| 6. Did the Commission fail to provide the Applicant a fair hearing and fail to observe a principle of natural justice by: |
| a. relying on evidence from telephone interviews with unidentified persons and thereby failing to provide the Applicant the opportunity to answer the allegations contained therein or to subject the evidence to cross-examination; |
| b. requiring eye witness evidence of others than the Applicant and Mr. Randall to the sexual harassment; |
| c. failing to consider evidence that the Applicant had reported the incidents to two supervisors immediately following the events in question; |
| d. failing to consider as evidence of admission the fact that Mr. Randall stated that he had apologized to the Applicant for his behaviour; |
| e. disregarding the evidence given by named witnesses in the investigation conducted by the Public Service Commission; |
| f. neglecting or refusing to consider similar fact evidence of the Respondent Mr. Randall"s sexual harassment of other employees; and |
| g. neglecting or refusing to consider evidence of another senior prosecutor in that office that the Respondent Mr. Randall had made lewd comments about the Applicant to that colleague. |
[20] The respondent and the intervener state that the sole issue is to determine whether the CHRC erred in law in dismissing the applicant"s complaints of discrimination.
Motion to Strike
[21] At the commencement of the hearing of the applicant"s judicial review application, the respondent brought a motion to strike "the affidavit of Kathleen Walker sworn June 26, 1998, the affidavit of Raymond Enright sworn June 17, 1998, the affidavit of Mike Brundrett sworn on June 11, 1998 and the affidavit of Dale Walker sworn on June 25, 1998." The respondent lists the following as grounds for the motion to strike3:
| (a) the evidence contained therein is irrelevant as it was not before the Commission when it made the decision under review; |
| (b) the affidavits contain hearsay information; and |
| (c) the evidence is not relevant to the grounds of review invoked by the Applicant in support of her judicial review application. |
[22] I believe I do not have to deal with the motion to strike the above stated affidavits as I am satisfied that even if I were to allow into evidence all that is stated by the affiants in their affidavits, I could come to no other conclusion than that the present judicial review application has no merit and must be dismissed.
[23] Nonetheless, I will address the motion to strike in further detail.
[24] The issue arose, at the commencement of the hearing, as to what is the appropriate time to make such a motion. Should this type of motion be made before the hearing of the judicial review application? Counsel for the respondent submits that the weight of the jurisprudence is such that the appropriate time to make a motion to strike out affidavits is at the outset of the judicial review hearing.
[25] The applicant did not make a submission on this procedural matter except to say that she has no objection that the motion to strike be dealt with at the commencement of the hearing.
[26] On this issue, counsel for the respondent submits two cases for my consideration, the case of Prajapati v. Canada4 and the case of Yazdanian et al. v. The Minister of Citizenship and Immigration.5 In Prajapati, Mr. Justice Muldoon states at page 40:
| [8] Whatever the merits, counsel for the applicant argued that the respondent was simply too late in raising this matter having himself filed the defendant"s affidavit in reply after the filing of the application for judicial review and the impugned affidavit. Counsel cited Binepal v. The Minister of Citizenship and Immigration (Court file Imm-6506-93, August 29, 1995 (unreported) (F.C.T.D.)) where the respondent had raised two preliminary motions at the outset of the hearing of a judicial review application in respect of an immigration matter. McKeown, J., stated: |
| "I am of the opinion that the motions should not be granted. Counsel for the applicant correctly pointed out rule 302(c) of the Federal Court Rules , and I am in agreement that the above matters should have been raised much earlier than now. The respondent had ample time prior to the hearing to address the issues raised in his motions. Rule 302(c) reads: |
| "302. The following provisions apply with reference to formal objections and failures to comply with the requirements of these rules: ... |
| (c) no application to set aside any proceeding for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity;"" |
| By contrast, in this matter, on an application on behalf of the applicant for an order extending the time in which the applicant would be allowed to file his supplementary application record and allowing the applicant to file a further affidavit to support his application as part of the supplementary application record, Rothstein, J., on the 4th day of April 1995, denied the motion and stated: |
| "The filing of material on behalf of the applicant (presumably the supporting affidavit here impugned) was by counsel who should be familiar with the Rules of Court . |
| "The argument as to the propriety or otherwise of the affidavit in question will be argued before the judicial review judge." |
| Clearly Rothstein, J. contemplated the preliminary consideration which came before me and did not regard it as a matter that should have been disposed of in advance of the judicial review hearing. This would appear to accord with the position enunciated by Strayer, J.A., in Pharmacia Inc. v. Canada (Minister of National Health and Welfare) (1995), 176 N.R. 48; 58 C.P.R. (3d) 209, at pp. 214-215, where he stated: |
| "Thus the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." |
| The same could be said here where the challenge to the affidavit in support of the applicant"s application for judicial review is in fact a challenge to the application itself since, if the affidavit is struck, the application is without a supporting factual basis. |
[27] In Yazdanian, John A. Hargrave, Prothonotary, states in paragraphs 2 and 6 of his decision:
| [2] For the sake of efficiency and, as a practical exercise of judicial discretion, parties ought not to be permitted to strike out each others" affidavits. This generality is, of course, subject to special circumstances: for example, where an affidavit is abusive or clearly irrelevant; where a party has obtained leave to admit evidence which turns out to be obviously inadmissible; or where the court is convinced that the matter of admissibility should be resolved at an early date so that a hearing may proceed in an orderly manner. There is case law to this effect in a number of decisions including in Home Juice Company v. Orange Maison Ltd. , [1968] 1 Ex.C.R. 163 at 166 (President Jackett) and in Unitel Communications Co. v. MCI Communications Corporation (1997), 119 F.T.R. 142 at 143. In the latter Mr. Justice Richard (as he then was) noted that the trial judge would be better placed to assess the weight and admissibility of such affidavit material (pages 143 and 145). Of course conjecture, speculation and legal opinion have no place in an affidavit. |
| ... |
| [6] At this stage, before even cross-examination, it is inappropriate to strike out the whole of one affidavit and the meat of the second affidavit. These are matters that should be determined by the Trial Judge for, as Associate Chief Justice Richard put it in Unitel Communications (supra), when faced with an application to strike out an affidavit: |
| "... I have concluded that it would not be appropriate to proceed with the plaintiffs' motion to strike. This is a matter that should be heard and determined, if necessary, by the trial judge both as to weight and admissibility, and in making this ruling I do not prejudice in any way the parties from making such submissions at the appropriate time to the trial judge who will be designated to hear the expedited issues." (page 145) |
| That the hearing in Unitel Communications was to be on an expedited basis is not a reason by which to distinguish the present situation, for the reasons in Unitel Communications are based on the general propositions set out in Home Juice Company (supra). |
[28] I am in agreement with the comments expressed by both Mr. Justice Muldoon and Prothonotary Hargrave. I am satisfied that the issue of the propriety of an affidavit(s) to support a judicial review application should be determined by the judge hearing the judicial review of the application as the affidavit(s) form part of the judicial review application.
[29] Let me reiterate that I am satisfied that whether or not I strike out all of the filed affidavits or only some paragraphs of the said affidavits, it really does not affect the outcome of this judicial review application.
[30] There is simply no merit to the present application.
Evidence Not Before the Decision-maker
[31] The respondent submits that on a judicial review, a Court may consider only evidence that was before the administrative decision-maker when the decision was being reviewed, and not any new evidence.
[32] In the case of Naredo and Arduengo v. Canada6, Mr. Justice Cullen states at page 286:
| [21] Regarding the remaining affidavits at issue, the case law is clear that the court is bound to the record filed before a federal board, commission, or other tribunal [...]. In Rahi v. Minister of Employment and Immigration, Doc. 90-A-1343, May 25, 1990 (F.C.A.), MacGuigan, J.A., dismissed an application for an extension of time to file a supplementary affidavit. Li v. Minister of Citizenship and Immigration, Doc. IMM-466-96, December 20, 1995 (F.C.T.D.), is a similar case. In Owusu v. Minister of Citizenship and Immigration, Doc. A-1483-92 (F.C.T.D.), Reed, J., refused to consider new evidence that was not before the Immigration and Refugee Board (hereinafter, the "IRB"). Most significantly, Reed, J., stated at p. 2: |
| "With respect to the new evidence, I do not think it is open to me to consider it, nor do I think it is open to me to refer the application back for a rehearing so that the Board can consider it. The appropriate avenue is for it to be considered in the back-end humanitarian and compassionate review process. That is the safety valve for dealing with evidence of the type in issue." |
| In Asafov v. Minister of Employment and Immigration, Doc. IMM-7425-93, May 18, 1994 (Fed. T.D.), Nadon, J. comments that the application to introduce into the record new evidence which was not before the Immigration and Refugee Board when it rendered its decision would have the effect of transforming the judicial review process into that of an appeal. |
[33] I agree with the statement made by Mr. Justice Gibson in Lemiecha et al. v. Minister of Employment and Immigration.7
| [4] It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker. It is obvious that Dr. Newhouse"s report post-dated the decision in question and thus constituted evidence not before the decision-maker. I sustained the objection. The judicial review thus proceeded on the basis only of evidence that was before the decision-maker. |
[34] This being the case, the applicant, in filing an application for judicial review cannot, by means of filing affidavits introduce "fresh" or "new" evidence that was not before the CHRC. This, I am satisfied, the applicant is attempting to do.
Discussion
[35] The applicable legislation in the present judicial review application is section18.1 of the Federal Court Act and sections 43, 44 and 49 of the Canadian Human Rights Act.
[36] Section 18.1 of the Federal Court Act reads:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. (3) On an application for judicial review, the Trial Division may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
| (5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate. |
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. (3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_: a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. (5) La Section de première instance peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées. |
| [37] Sections 43, 44 and 49 of the Canadian Human Rights Act read: |
| 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. (2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant. (2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. (2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator. (3) No person shall obstruct an investigator in the investigation of a complaint. (4) The Governor in Council may make regulations (a) prescribing procedures to be followed by investigators; (b) authorizing the manner in which complaints are to be investigated pursuant to this Part; and (c) prescribing limitations for the purpose of subsection (2.1). |
| 43. (1) La Commission peut charger une personne, appelée, dans la présente loi, "l'enquêteur", d'enquêter sur une plainte. (2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4). (2.1) Sous réserve des restrictions que le gouverneur en conseil peut imposer dans l'intérêt de la défense nationale ou de la sécurité, l'enquêteur muni du mandat visé au paragraphe (2.2) peut, à toute heure convenable, pénétrer dans tous locaux et y perquisitionner, pour y procéder aux investigations justifiées par l'enquête. (2.2) Sur demande ex parte, un juge de la Cour fédérale peut, s'il est convaincu, sur la foi d'une dénonciation sous serment, qu'il y a des motifs raisonnables de croire à la présence dans des locaux d'éléments de preuve utiles à l'enquête, signer un mandat autorisant, sous réserve des conditions éventuellement fixées, l'enquêteur qui y est nommé à perquisitionner dans ces locaux. (2.3) L'enquêteur ne peut recourir à la force dans l'exécution du mandat que si celui-ci en autorise expressément l'usage et que si lui-même est accompagné d'un agent de la paix. (2.4) L'enquêteur peut obliger toute personne se trouvant sur les lieux visés au présent article à communiquer, pour examen, ou reproduction totale ou partielle, les livres et documents qui contiennent des renseignements utiles à l'enquête. (3) Il est interdit d'entraver l'action de l'enquêteur. (4) Le gouverneur en conseil peut fixer, par règlement_: a) la procédure à suivre par les enquêteurs; b) les modalités d'enquête sur les plaintes dont ils sont saisis au titre de la présente partie; c) les restrictions nécessaires à l'application du paragraphe (2.1). |
| 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 Chairperson of the Tribunal to institute an inquiry under section 49 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). |
| 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas_: a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale. (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_: (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e); b) rejette la plainte, si elle est convaincue_: (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e). (4) Après réception du rapport, la Commission_: a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3); b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). 49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. (2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the complaint requires the inquiry to be conducted by three members. (3) If a panel of three members has been assigned to inquire into the complaint, the Chairperson shall designate one of them to chair the inquiry, but the Chairperson shall chair the inquiry if he or she is a member of the panel. (4) The Chairperson shall make a copy of the rules of procedure available to each party to the complaint. (5) If the complaint involves a question about whether another Act or a regulation made under another Act is inconsistent with this Act or a regulation made under it, the member assigned to inquire into the complaint or, if three members have been assigned, the member chairing the inquiry, must be a member of the bar of a province or the Chambre des notaires du Québec. (6) If a question as described in subsection (5) arises after a member or panel has been assigned and the requirements of that subsection are not met, the inquiry shall nevertheless proceed with the member or panel as designated. |
| 49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'instruction est justifiée. (2) Sur réception de la demande, le président désigne un membre pour instruire la plainte. Il peut, s'il estime que la difficulté de l'affaire le justifie, désigner trois membres, auxquels dès lors les articles 50 à 58 s'appliquent. (3) Le président assume lui-même la présidence de la formation collégiale ou, lorsqu'il n'en fait pas partie, la délègue à l'un des membres instructeurs. (4) Le président met à la disposition des parties un exemplaire des règles de pratique. (5) Dans le cas où la plainte met en cause la compatibilité d'une disposition d'une autre loi fédérale ou de ses règlements d'application avec la présente loi ou ses règlements d'application, le membre instructeur ou celui qui préside l'instruction, lorsqu'elle est collégiale, doit être membre du barreau d'une province ou de la Chambre des notaires du Québec. (6) Le fait qu'une partie à l'enquête soulève la question de la compatibilité visée au paragraphe (5) en cours d'instruction n'a pas pour effet de dessaisir le ou les membres désignés pour entendre l'affaire et qui ne seraient pas autrement qualifiés pour l'entendre. |
| [38] A section18.1 application is made by an applicant when that applicant is of the opinion that a decision-maker erred, by making the decision complained of, pursuant to the grounds as found in subsection 18.1(4) of the Federal Court Act. |
| [39] In the present case, as I have said, the applicant filed her section18.1 application in respect of a decision made on April 20, 1998 by the CHRC. |
| [40] In the oral submissions of the applicant regarding the motion to strike, counsel for the applicant states that he believes the decision of the CHRC is correct. On pages 18 and 19 of the transcript of the hearing, the following is said: |
| THE COURT: ... Now, I understand, and I take from what you told me, you"re not using this affidavit evidence in any way to say that the Commission was wrong in what they decided. |
| MR. McINTYRE: Exactly. It goes only to the issue as to whether or not it was a thorough investigation, and whether that information that"s disclosed in these affidavits, especially that of Mr. Enright, could have been available to the applicant at the time she was invited to respond. And it"s quite clear that with respect to what Mr. Enright has to say in terms of his affidavit, in terms of his speaking with the respondent, Mr. Randall, and his conversations with Mr. Randall regarding the applicant, that that is information that the applicant never knew. She didn"t know it until the time of the swearing of the affidavit in June of 1997 -- or June of 1998, excuse me. |
| [41] If, in fact, the complaint is the thoroughness of the Investigation Report, then the present judicial review application must be dismissed. Judicial review is the wrong procedure to attack the "thoroughness" of an investigator"s investigation of a complaint. |
| [42] To contest the Investigation Report for lack of thoroughness, or for any other reason, the complainant must be given a copy of the report with the supporting documents and be given an opportunity to make full submissions before the reports and documents are given to the CHRC for decision as to whether or not it is necessary to appoint a tribunal for a full hearing. |
| [43] In the affidavit of George Kolk, the individual who was assigned to investigate the applicant"s two complaints, sworn on July 20, 1998, he states how the Commission proceeded to investigate the complaints and what the Commission did to give the applicant an opportunity to make submissions as to the thoroughness of the investigation or of the findings. |
| [44] It is apparent from Exhibit "A" to Mr. Kolk"s affidavit that a letter dated December 12, 1997 was sent to the applicant for her submissions with regard to the Investigation Report. The applicant had not received the letter dated December 12, 1997 and enclosed reports. On February 5, 1998, the Commission sent a second letter with the Investigation Report to the applicant and provided the applicant until February 25, 1998 to submit comments. Mr. Kolk, on February 27, 1998, telephoned the applicant, once again, to ask her if she wished to make submissions. The applicant never made any submissions to the CHRC regarding the well-foundedness of the report and its conclusions. The applicant did not make any submission relating to the issue of the thoroughness of the investigation. |
| [45] Surely, the applicant was given ample opportunity to do so. |
| [46] I believe it is important to reproduce Mr. Kolk"s affidavit of July 20, 1998. |
| I, George Kolk, of the City of Ottawa in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS: |
| 1. I am a Human Rights Officer with the Canadian Human Rights Commission in Ottawa, Ontario. I was the officer assigned to investigate the Applicant"s complaints (H34002 and H34249) and as such I have personal knowledge of the matters herein deposed to. |
| 2. The Investigation Reports summarize my investigation into the complaints filed by the Applicant. In the course of my investigation, I spoke with the Applicant and the Respondents and received written submissions from the parties. I also interviewed, by telephone, witnesses who had information relevant to the complaints. The witnesses" statements are summarized in my Investigation Reports. |
| 3. By letter dated December 12, 1997, the Commission advised the Applicant that the investigations into the complaints had been completed and provided her with copies of the Investigator"s reports. She was offered the opportunity to comment on the reports by January 5, 1998. The Applicant was advised that any comments received from either her or the Respondents would be submitted to the Commission along with the Investigation Reports. Attached as Exhibit "A" is a true copy of the December 12, 1997 letter. |
| 4. On February 4, 1998, I received a voice-mail message from the Applicant inquiring as to the status of her complaints. I spoke with the Applicant later that day and she advised me that she had not received the Investigation Reports. Attached as Exhibit "B" is a true copy of my Memorandum to File dated February 4, 1998 documenting my telephone conversations of that day with the Applicant. |
| 5. By Letter dated February 5, 1998, the Commission sent another copy of the Investigation Reports to the Applicant and provided her until February 25, 1998 to submit comments on the Reports. Attached as Exhibit "C" is a true copy of the letter dated February 5, 1998. |
| 6. On February 27, 1998, I telephoned the Applicant to inquire whether she intended to make any submissions on the Investigation Reports since the deadline had passed. Attached as Exhibit "D" is a copy of my Memorandum to file dated February 27, 1998 documenting my telephone message. |
| 7. The Commission did not receive any submissions from the Applicant on the Investigation Reports. The Applicant"s complaints were sent to the Commissioners for their April 1998 meeting for a decision. |
| 8. I swear this affidavit for the purposes of this judicial review application and for no other or improper purpose. |
| [signature of "G. Kolk"] |
| [47] I also believe it important to reproduce the letter of February 5, 1998 sent to the applicant. |
| Dear Ms. Walker: |
| The investigations into the complaints filed by you against the Department of Justice Canada (H34002) and Chris Randall (H34249) alleging discrimination in employment on the ground of sex have been completed. The investigation reports were sent to you on December 12, 1997. On February 4, 1998 you indicated that you did not receive the reports and you requested that they be faxed to your lawyer, Donald Jordan. |
| Copies of the investigator"s reports are attached for your review. These reports will be submitted to the Commission at one of its upcoming meetings, along with any comments we receive from you or the respondents. |
| As you will see from the investigation reports, it is being recommended in each case that the complaint be dismissed as unfounded. The Commission may accept or reject these recommendations. If you would like to comment on the reports, you can do so by writing to the undersigned. Your comments may be up to 10 pages in length, and should be submitted by February 25, 1998. Should you wish to submit them by facsimile, our number is 613-947-7279. If we do not hear from you within this time period, we will proceed on the assumption that you have decided not to submit comments. |
| You will be advised of the Commission"s decisions as soon as they are rendered. If you have any questions on the above or need more information, please do not hesitate to contact the investigator at 613-943-9545. |
Yours Sincerely,
[signature of Françoise Girard, Director, Complaints and Investigations]
[48] It is clear from this letter that the applicant is told that the Investigation Report recommends that the applicant"s complaints be dismissed as unfounded and asks the applicant for her comments. As Mr. Kolk states in his July 20, 1998 affidavit, the applicant did not file any comments.
[49] It is too late to complain about the thoroughness of Mr. Kolk"s investigation after the decision of the CHRC is received. If the applicant was of the belief that Mr. Kolk"s investigation was not thorough or if the applicant believed that there were witnesses who should have been interviewed and were not, it was for the applicant to have made submissions to the Commission when she was asked for her comments. The applicant chose not to. That was her choice. She cannot now submit that the Commission"s investigation was not thorough.
[50] In that the applicant had not made any submission to the Commission and the Commission basing itself on the Investigation Report, on April 28, 1998, the Commission dismissed the applicant"s complaints.
[51] In Slattery v. Canada (Human Rights Commission)8, Mr. Justice Nadon indicates the basis of the standard of review applicable in cases where the Commission decides not to send a complaint for a tribunal hearing. At page 609, he states:
| 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 insofar 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." |
[52] In a recent decision of the Federal Court of Appeal9, where the Commission also refused to refer the matter to a hearing before a Tribunal, Mr. Justice Décary states:
| [para4] In our view, when it is exercising its screening functions, the Commission is vested with a very wide latitude. That has been the law for some time now, and it was stated again by this Court in its recent decision in Bell Canada v. Communications, Energy and Paperworkers Union of Canada in the following words: |
| [35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891. |
[...]
| [38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. |
| [para5] The question before the Commission at this stage was whether, having regard to all the circumstances of the complaint, an inquiry was warranted. The Commission found it was not. There are a number of legitimate reasons or reasonable grounds upon which the Commission could decide the way it did. In reaching a conclusion the Commission is entitled and obligated to have regard to all of the facts and allegations placed before it. In this case, there was sufficient evidence on which the Commission could conclude that further consideration of the matter by a tribunal was not warranted. As was noted by La Forest J. in Cooper v. Canada (Human Rights Commission): |
| [...] It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it |
[53] With this judgment of the Federal Court of Appeal, I am satisfied it is now established that, "at the scrutiny stage" of the investigation, after receiving a complaint of discrimination, the Commission has a "remarkable degree of latitude" as to what kind of an investigation must be made before it can conclude that the complaint should not be sent to a tribunal for a hearing.
[54] It is obvious that on a complaint of sexual harassment the investigation must be complete and thorough before the Commission decides not to send the matter to a tribunal for a hearing. The Commission must be satisfied, after receiving the investigation report, that there is not sufficient evidence to have a tribunal hearing.
[55] In the case at bar, the Commission only had the evidence of the Investigation Report. The Commission did not have before it the evidence contained in the affidavits produced by the applicant in her application for judicial review. They also did not have any submission from the applicant as to the insufficiency of the Investigation Report.
[56] The Commission did not commit any error in deciding to dismiss the applicant"s complaints.
[57] The application for judicial review is denied with costs in favour of the respondents.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
August 24, 1999
__________________1 A copy of this complaint form can be found in the respondent"s Application Record at p. 3.
2 Respondent"s Application Record at p. 15.
3 Respondent"s Application Record at p. 54.
4 Minister of Citizenship and Immigration (1995), 103 F.T.R. 37.
5 An unreported decision dated June 29, 1998 in file no. IMM-4894-97 (F.C.T.D.).
6 Minister of Citizenship and Immigration (1997), 132 F.T.R. 281.
9 Holmes v. Canada (Attorney General of Canada) Docket A-430-97, April 29, 1998 (F.C.A.)