Date: 19980602
Docket: T-1369-97
Between:
FRANCE GAGNÉ
Applicant
- AND -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant challenges a decision of the Canadian Human Rights Commission (the Commission) dated May 29, 1997.
[2] In its decision, the Commission dismissed the applicant"s complaint that the Public Service Commission of Canada (the Public Service Commission) had discriminated against him. The applicant alleged that the Public Service Commission had excluded him from employment because of a visual disability. According to him, the Public Service Commission had discriminated in the hiring process.
[3] The Commission"s decision is based on subparagraph 44(3)(b )(i) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the Act), which provides as follows:
| (3) On receipt of a report referred to in subsection (1), the Commission . . . (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or . . . . |
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: . . . b) rejette la plainte, si elle est convaincue : (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié . . . . |
[4] On May 29, 1997, the Commission dismissed the applicant"s complaint as follows:
[TRANSLATION] I am writing you regarding the decision of the Canadian Human Rights Commission in the matter of your complaint against the Public Service Commission (Q34994).
| Before making their decision, the members reviewed the report which was previously disclosed to you, as well as the respondent"s written representations dated April 9, 1997, which were signed by Ruth Hubbard. After reviewing the above-mentioned documents, the members decided to dismiss the complaint. The grounds for the decision are stated as follows: |
| In accordance with subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has decided to dismiss the complaint, for the following reasons: |
| - The evidence does not support the allegations; |
| - The respondent chose the complainant"s name from its inventory and added it to the list of candidates submitted to the employer department; |
| - The respondent attempted to contact the complainant to inform him of the employer department"s refusal to postpone the selection test; and |
| - The complainant"s file remains active in the respondent"s inventory. |
We know that this decision is not what you expected, but let me assure you that the Commission considered your complaint carefully before making its decision.
[5] The applicant seeks to have this decision set aside on the ground that the Commission failed to observe procedural fairness in dismissing his complaint. He submits that the Commission based its decision on an incomplete investigation report by investigator Abdou Saouab dated March 8, 1997. He further submits that the Commission disregarded the fact that he had established a prima facie case that he had been a victim of discrimination.
[6] In my view, the applicant"s second argument is without merit. The authorities on which he relies in making this argument are decisions dealing with the burden of proof in the context of a hearing before a Human Rights Tribunal appointed under section 49 of the Act. The appointment of a Human Rights Tribunal clearly results from a decision by the Commission, pursuant to subparagraph 44(3)(a )(i) of the Act, that an inquiry into the complaint is warranted.
[7] I am also of the view that the applicant"s argument based on a lack of procedural fairness is unfounded. The applicant seeks to have the Commission"s decision set aside essentially on the ground that the investigator erred in law and disregarded a significant portion of the evidence submitted by the applicant. Counsel for the applicant states the following in his memorandum at page 83 of the applicant"s record:
[TRANSLATION] The applicant submits that the Commission failed to observe procedural fairness in dismissing his complaint. It relied on an incomplete report. The facts show that human rights officer Saouab disregarded relevant testimony, did not try to find out who it was who said that the applicant was leaving for Florida, and failed to check everything he was required to check. The report therefore contains a number of omissions and statements of unknown origin.
[8] In deciding as it did, the Commission had before it Mr. Saouab"s investigation report, a copy of which had been sent to the applicant on March 12, 1997. In its letter to the applicant, the Commission informed him that the investigator was recommending that it dismiss his complaint. The Commission also informed the applicant that if he wished to submit written comments, they should reach the Commission no later than April 1, 1997. The applicant filed no written comments after receiving the investigator"s report.
[9] The Commission had to decide, having regard to the relevant circumstances, whether further inquiry into the merits of the complaint was warranted or whether the complaint should be dismissed. After reviewing Mr. Saouab"s investigation report, the Commission concluded that the complaint should be dismissed. In Slattery v. Canadian Human Rights Commission (1996), 205 N.R. 383, the Federal Court of Appeal dismissed an application for judicial review filed by an applicant after her complaint was dismissed by the Commission pursuant to subparagraph 44(3)(b)(i). Mr. Justice Hugessen, writing for the Court, stated the following:
| We are all of the view that the Commission fully complied with its duty of fairness to the complainant when it gave her the investigator's report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. The discretion of the Commission to dismiss a complaint pursuant to subparagraph 44(3)(b)(i) is cast in terms even broader than those which were considered by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) . . . where the content of the duty of fairness in such cases was described as follows by Sopinka J. for the majority: |
I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.
| The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. |
[at page 902]
In our view, the defects which the complainant alleges in the preparation of the investigator's report could not serve to vitiate the Commission's decision as long as these requirements were met.
The appeal will be dismissed with costs.
[10] It can be seen from the decision of Hugessen J.A. that as long as the Commission informs the complainant of the substance of the evidence obtained by the investigator and put before it, and gives the complainant an opportunity to make representations on receipt of that evidence, the Court will not interfere. In other words, the Court will not interfere with the Commission's exercise of its discretion under subparagraph 44(3)(b )(i) unless the Commission fails to comply with the duties referred to by Mr. Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie.
[11] The decision of the Federal Court of Appeal in Linton Roberts v. Canada Post Corporation, October 24, 1997, file No. A-351-96, is to the same effect as that in Slattery. In Roberts, Mr. Justice Strayer stated the following at page 2 of his reasons:
| In making its decision the Commission had before it the reports of its investigator together with the appellant"s lengthy written submission commenting on and objecting to various statements in those reports. It was the duty of the Commission to consider all this material in determining whether an inquiry before a Tribunal would be warranted. We have no reason to think that the Commission did not consider all this material including the appellant"s representations. The appellant asserted before us that there were certain errors in the investigator"s reports and he also had drawn most of these errors to the attention of the Commission. We do not consider any of these errors to be substantive or a basis for setting aside the decision of the Commission. In exercising its jurisdiction to decide whether a Tribunal should be appointed "having regard to all circumstances" the Commission can take into account many factors, including the quality of possible evidence, and it has a wide discretion with which a court should not lightly interfere. The trial judge correctly declined to intervene. |
[12] The errors raised by the applicant in the instant case are not in my view sufficient to warrant my intervention. As Strayer J.A. pointed out in Linton Roberts, the Commission can take many factors into account in making its decision, including the quality of the evidence before it. In other words, if the Commission considers that the evidence submitted is not sufficient to warrant appointing a Human Rights Tribunal, it may dismiss the complaint, which is in fact what it did in the instant case.
[13] For these reasons, the application for judicial review is dismissed.
MARC NADON
Judge
Ottawa, Ontario
June 2, 1998.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1369-97
STYLE OF CAUSE: France Gagné v.
Attorney General of Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: May 28, 1998
REASONS FOR ORDER BY NADON J.
DATED June 2, 1998
APPEARANCES:
François Drouin FOR THE APPLICANT
Rosemarie Millar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Langlois, Boulay
Québec, Quebec FOR THE APPLICANT
George Thomson
Deputy Attorney General of
Canada FOR THE RESPONDENT