Federal Court Decisions

             T-2551-95

BETWEEN:

RUBIN ALEXANDER COWARD

    

     Applicant

- and -

ATTORNEY GENERAL OF CANADA

     Respondent

- and -

CANADIAN HUMAN RIGHTS COMMISSION

Intervenor

     REASONS FOR ORDER

MacKAY J.:

     This is an application for judicial review pursuant to s.18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, of a decision of the Canadian Human Rights Commission ("CHRC") dated November 24, 1995, which dismissed the applicant's complaint of discrimination pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended, (the "Act").

     In his Originating Notice of Motion the bases upon which the applicant seeks judicial review may be characterized as falling within the following five grounds:

i)      that the Commission breached its duty of procedural fairness by failing to provide the applicant with a summary of all evidence provided to it;

ii)      that the Commission failed to observe procedural fairness by failing to give careful consideration to the role of the applicant's race, colour and disability in the alleged failure of the Canadian Armed Forced ("CAF") to provide medical services;

iii)      that the Commission failed to observe procedural fairness in relying solely on the evidence gathered by the CAF rather than conducting its own independent investigation;

iv)      that the Commission erred in its consideration of the evidence, in that it failed to consider all the evidence; considered perjured evidence and decided contrary to the evidence;

v)      that the Commission erred in interpreting the Act, failing to give careful consideration to sections 2, 3, 5, 14 and 24 of the Act and to give effect to its broad remedial purpose.1

     By way of relief, the applicant seeks an Order quashing or setting aside the decision of the CHRC, and he seeks a declaration that sections 2, 3, 5, 14 and 24 of the Act apply to render the failure to provide the applicant with services, because of his race and colour, unlawful, discriminatory and contrary to the Act. Finally, the applicant seeks a declaration that the CHRC's decision to dismiss the complaint is unlawful and contrary to the Act.

Provisions of the Act:

     The relevant provisions of the Act are as follows:

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 all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have, consistent with their duties and obligations as members 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, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

...

5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

14. (1) It is a discriminatory practice,

(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,

(b) in the provision of commercial premises or residential accommodation, or

(c) in matters related to employment,

to harass an individual on a prohibited ground of discrimination.

24. (1) The Governor in Council may, for the benefit of persons having any disability, make regulations prescribing standards of accessibility to services, facilities or premises.

...

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.

...

(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 ... to inquire into the complaint ... 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

...

        

Facts:

     The applicant is a former member of the CAF in which he held the rank of Sergeant. He was, at all times material to this review, a serving member of the CAF, however, during the period in question, he was on sick leave, as he suffers from post-traumatic stress disorder. He has since been released from the CAF because of his medical inability to serve.

     On January 18, 1995, the applicant's complaint was filed with the Canadian Human Rights Commission regarding an incident which is alleged to have occurred at the CAF Hospital in Halifax on September 29, 1994. On that date, the applicant states that while seeking medical attention at the hospital he was treated in a discriminatory and humiliating manner by military staff who refused him medical services on the basis of his race and colour, contrary to s.5 of the Act. This allegation is more specifically characterized by the applicant in his complaint to the CHRC as follows:

I allege that the Canadian Armed Forces have refused me critical services; and have treated me differently (with disdain) and adversely in the provision of such services; in fact harassing, embarrassing and humiliating me in the presence of subordinates, specifically because of my race and colour (Black), contrary to section 5 of the Canadian Human Rights Act.

     The particulars of the applicant's allegation are that on the morning of September 29, 1994, as he was experiencing headaches, back and stomach pain, he reported to the hospital seeking medical treatment. He states that after arriving at approximately 10:30 a.m., he was referred by one Sergeant Leahy from the Reception Area to Emergency Services. There he was taken to a treatment room and his vital signs were checked by an unnamed staff person. I note that because of his medical classification, GT(5), the applicant was to receive specialist medical treatment within one hour when he reported illness to CAF medical authorities.

     The applicant was then attended to in the same treatment room by one Sergeant Stobie ("Stobie"), who, according to the applicant, subjected him to what he describes as a humiliating and embarrassing verbal tirade, berating him for appearing for sick parade after the regular 7:00 a.m to 9:00 a.m. hours. The applicant states that when he objected to Stobie's behaviour, the Sergeant became exasperated and told him he would not see a doctor at that time, but instead would first have to see the Master Warrant Officer. The applicant states that when he informed Stobie he was only interested in seeing a doctor when one became available, Stobie demanded he leave the treatment room and wait outside to see the Master Warrant Officer. At that point, the applicant states, he admonished the Sergeant for his unwarranted and unprofessional behaviour, and informed him that he would be filing a harassment and discrimination complaint. This incident, the applicant states, occurred at approximately 10:40 a.m.

     The applicant states that he then returned to his seat in the waiting room, where at about 10:58 a.m. he spoke briefly with another patient, a young female private, who was also awaiting medical treatment. Following the confrontation with Stobie, he states he spoke with the Head Nurse, Captain Corkum, who attempted to explain Stobie's behaviour by stating that the latter had been "having some problems lately".

     According to the applicant, he received no medical attention thereafter, although he remained waiting for almost two hours. At approximately 12:20 p.m., the applicant states that having still not seen a doctor or the Master Warrant Officer, he assumed Stobie was ignoring him. At that time, he states that he returned to the reception area and asked the staff person who had admitted him for the medical chit he had completed. He then left the hospital at approximately 12:25 p.m.

     He believes he was entitled to access to a medical doctor in view of his general position within the CAF and more particularly, because with his medical condition and classification, he was entitled to medical attention within one hour of his reporting difficulties.

     The applicant's complaint is based on his perception that he was refused medical treatment on the basis of his race and colour. This assertion, he states, is substantiated by the fact that during the almost two hours he spent in the waiting room, none of the other patients, who were all white, were treated in the same abusive manner by Stobie, nor were they required to wait as long as two hours to receive medical attention.

     The applicant initially brought a complaint before the CHRC on September 29, 1994 when he wrote to the Commission outlining the incident and the basis for his complaint, that he had received poor treatment on the basis of his colour. The Commission responded by letter dated October 11, 1994 in which the applicant was advised by a Human Rights Officer that the Commission would not be proceeding with the complaint as, in its view, there was nothing in his letter to indicate that the incident complained of was racially motivated.

     On December 1, 1994, the applicant submitted a revised complaint to the Commission. This complaint was subsequently accepted by the Atlantic Regional Office of the CHRC on December 20, 1994, and on January 18, 1995, the applicant signed a complaint form acceptable to the Commission.

     On January 25, 1995, that complaint was forwarded by the CHRC to the CAF for comment. The CAF responded by letter dated March 22, 1995, in which the CAF outlined its version of the events of September 29, 1994, and provided the results of its own internal investigation into the allegation.

     In the letter, the CAF alleged that the complainant had "refused to cooperate with the CAF investigating officer when requested" to provide his statement of complaint and the alleged facts. The letter also suggested that as a result of the CAF's internal investigation, a number of inconsistencies had been identified between the statements of the applicant and those of other witnesses to the alleged incident.

     These inconsistencies, referred to by the CAF in its letter, concerned the time of the incident, the conduct of Sergeant Stobie, the statement of the nurse, Captain Corkum, the evidence of the other patient, Ms. Tanya Oliver, to whom the applicant referred as one who had observed his difficulties, and the purpose of routine hospital procedures which it was suggested may have been misunderstood by Mr. Coward. To elaborate, these inconsistencies were the following.

i)      Time frame of alleged events:

     According to the CAF, its investigation revealed a discrepancy in the time frame of the alleged events. From its investigation the CAF states that the applicant was first referred to the Emergency Department at 11:15 a.m., after which, between 11:15 and 11:35 a.m., he was screened by Corporal Bryson, before being seen by Sergeant Stobie between 11:35 and 11:55 a.m. Between approximately 12:00 and 12:20 p.m., the applicant spoke to Captain Corkum, the duty nurse, after which, at approximately 12:20 p.m., the applicant left the hospital. This, the CAF suggested, differs considerably from the applicant's version of events, that he arrived at 10:30 a.m., was seen by Sergeant Stobie in Emergency at 10:40, and left at approximately 12:25 p.m..

ii)      Conduct of Sergeant Stobie:

     According to the CAF, the evidence of Stobie was that his language, tone and manner were professional at all times. He says the Emergency Department was busy that day and that he only briefly saw the applicant in the examination room before realizing that he required the assistance of a person of more senior rank, who he believed would have greater success communicating with the applicant. According to Stobie, the letter stated, he was not attempting to deny or delay medical treatment, and he was not made aware of the particular nature of the applicant's long term medical condition. The letter of the CAF also stated that the evidence confirmed that after seeing the applicant, Stobie immediately informed the Duty Medical Officer of the applicant's presence.

iii)      Statement of Captain Corkum

     According to the CAF, duty nurse Captain Corkum denies ever stating that Stobie had problems, but stated that she had indicated to the applicant that Stobie was required to look after the problems of other patients. She states that at one point the applicant interrupted her as she spoke with Stobie, and loudly accused Stobie of racism and incompetence, stating that he would "have" Stobie for harassment.

iv)      The evidence of Ms. Oliver

     The CAF internal investigation reported that Ms. Oliver, a member of the CAF awaiting medical attention at the hospital at the time Mr. Coward was present, did not support his claim about the manner in which he was treated by Sergeant Stobie outside the treatment rooms.

v)      Hospital Procedure

     With respect to procedure, the submissions of the CAF note that the CAF Hospital follows a standard "triage process", used in most emergency departments, in which the patients are assessed and prioritized according to the severity of their medical condition. Further, the evidence of Stobie's immediate supervisor was said to be that it is standard practice in the screening process to ask patients why they were unable to attend sick parade during normal hours. This is done, he states, to assess, from the patient's response, the time frame in which the ailment has developed, thereby allowing an assessment of the rate of onset of the condition. The submissions of the CAF state that the applicant appears to have misunderstood the intent of what is essentially a standard screening process, and it is this misunderstanding, the CAF suggests, which lies at the root of the applicant's complaint.

     The CAF summarized the results of its internal investigation as follows:

...

In summation, it is considered that Sgt Coward's allegation that he was refused medical treatment because of his race and colour is unfounded. The statements of a number of witnesses on the timing of events indicate that the complainant was seen by three medical persons during approximately one hour. As well, the Duty Medical Officer was aware of Sgt Coward's presence. It may well have been the case that patients who arrived after Sgt Coward were seen by a doctor before he was; however, this would have been in accordance with the standard triage process.

     ...

The submissions of the CAF conclude by recommending that the complaint be dismissed.

     By letter dated April 5, 1995, the applicant was provided with a summary of the position of the CAF outlined in its March 22, 1995 submissions to the CHRC. The letter also invited the applicant to respond to the CAF's position within 40 days.

     The applicant replied by letter dated May 4, 1995 in which he accused the CAF of fabricating the times, and suggested that several witnesses, in particular, Sergeant Stobie and Captain Corkum, were lying about their evidence. He also denied having behaved in a loud or aggressive manner during the incident in question, and suggested that the CAF was biased or incomplete in gathering evidence. With his letter, the applicant also enclosed copies of his sick report from September 29, 1994 indicating his time of entry to be 10:40, evidence which he states, refutes that of the military regarding the time of the alleged incident.

     Once these submissions had been received, an investigation was conducted on behalf of the CHRC into the applicant's complaint. As part of this investigation, the investigator contacted the same witnesses referred to in the CAF's internal investigation report who had not signed written statements, to verify that the statements reported to be from them were accurate representations of their evidence. An Investigation Report was completed, which, after reviewing the facts, the position of the parties, and the evidence, concluded as follows:

ANALYSIS:

The timing of the events as outlined by the respondent is confirmed by the statement of the female patient. The sick form reflects the time of arrival at the Medical Inspection Room, not the Emergency Department. There are no witnesses to what occurred in the examination room between the complainant and the Sergeant. However, the statements of witnesses, as per the interview memos and signed statements forwarded by the respondent, do not support the complainant's version of the events that occurred outside that room. On the contrary, they indicate that the Sergeant's behaviour was appropriate at all times. Although the complainant did not receive medical treatment within one hour, there is no evidence to support the allegation that he was refused the medical treatment or that he was treated differently because of his race or colour. He chose not to wait any longer and left of his own volition.

CONCLUSION AND RECOMMENDATION:

It is therefore recommended that the complaint be dismissed because, on the evidence, the allegation of discrimination is unfounded.

     By letter dated September 13, 1995, the Commission advised the applicant that the investigation had been completed, and it provided him with a copy of the Investigation Report. The letter stated, in part, as follows:

...

As a result of the investigation, the recommendation to the Commission will be to dismiss the complaint because, on the evidence, the allegation of discrimination is unfounded. The Commission may decide to accept, change or reject this recommendation.

     The letter also advised that the parties were invited to respond to the Investigation Report by making written submissions within thirty days. By letter dated September 28, 1995, the applicant submitted a detailed nine-page written submission to the Commission. The CAF also replied by submitting a one-page letter dated September 29, 1995.

     These submissions, the CHRC Investigation Report, the applicant's complaint, and related correspondence were placed before the Commission when it considered the matter at its meeting on November 20 and 21, 1995.

     By letter dated November 24, 1995, the applicant was notified that the Commission had decided, pursuant to subparagraph 44(3)(b)(i) of the Act, to dismiss the complaint. The letter provided, in part, as follows:

Dear Mr. Coward:

The Canadian Human Rights Commission has reviewed the investigation report of your complaint (A06425) against Canadian Armed Forces dated January 18, 1995, alleging discrimination in the provision of services on the grounds of race and colour. The Commission also reviewed your submission dated September 28, 1995.

The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence the allegation of discrimination is unfounded. Accordingly, the file on this matter has now been closed.

...

     On December 5, 1995, the applicant filed an Originating Notice of Motion with this Court, seeking judicial review of the decision of the CHRC. This application came on before me in Halifax in March, 1997, when, after hearing the submissions of the parties and the CHRC as intervenor, I reserved my decision. I now dismiss the application for the reasons which follow.

Issues:

     As noted, the applicant bases his application for judicial review on five general arguments. These arguments are based on two broad grounds: (1) that the Commission breached procedural fairness, and (2) that the Commission erred in law in the manner in which it reached its decision.

     In relation to the former, the applicant alleges that the CHRC breached procedural fairness by (i) failing to provide him with a summary of all the evidence, (ii) by failing to give careful consideration to the role of his race, colour and disability in the alleged incident, and (iii) by relying on the evidence collected by the CAF itself. The second broad ground advanced by the applicant is that the CHRC in reaching its decision, erred in (i) its interpretation of the Act, and (ii) its consideration of the evidence.

Analysis:

a)      The Duty of Procedural Fairness Owed to the Applicant

     It is a well-established principle that administrative decision-makers are under a general duty of procedural fairness, the content of which depends upon the circumstances under which the administrator operates and the context in which the decision is made.²

     In the context of the Canadian Human Rights Act, the duty of fairness owed to a complainant where the Commission decides to dismiss a complaint has been examined in a number of cases, most notably by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (C.H.R.C.).³

     In that case, the complainant had filed a complaint with the CHRC alleging wage inequity on the basis of gender at the CBC. This complaint was referred by the CHRC to an investigator who, following completion of an inquiry, recommended that the complaint be rejected as unsubstantiated. A copy of the investigator's report was sent to the complainant who was invited to, and did, make submissions before the CHRC made its final decision. After considering the submissions made and the investigator's report, the CHRC dismissed the complaint as "unsubstantiated" pursuant to then s-s.36(3), the predecessor to the current subparagraph 44(3)(b)(i), of the Act. That decision was appealed to the Federal Court of Appeal which dismissed the appeal. The complainant then appealed to the Supreme Court of Canada.

     Writing for the Court, Sopinka J. characterized the decision by the CHRC to dismiss the complaint as an administrative decision, reached by the CHRC on the basis of a reasonable and preliminary assessment of the evidence, and he said:

In my opinion, it is the intention of s.36(3)(b) that [the dismissal of a complaint] occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal.4 ...

     In defining the content of procedural fairness owed by the CHRC in exercising its discretion to dismiss a complaint, Sopinka J. stated as follows⁵:

...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 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.6 ...

     The content of procedural fairness owed to a complainant where the CHRC decides to dismiss a complaint has more recently been examined in the context of the current provision, subparagraph 44(3)(b)(i) of the Act, by the Federal Court of Appeal in Slattery v. Canada (Human Rights Commission).⁷

     In Slattery, the complainant had filed two complaints with the CHRC alleging discrimination in her employment on the basis of sex and age. These complaints were investigated by a Human Rights Officer of the CHRC, who recommended the complaints be dismissed as unfounded. The applicant was notified of the results of the investigation and invited to make submissions, which she did, pointing to shortcomings in the manner in which the investigation was conducted. After considering the complaints, the investigator's report, and the applicant's response, the CHRC dismissed the applicant's complaints without proceeding to a hearing by a tribunal, on the basis that, pursuant to subparagraph 44(3)(b)(i), the allegation of discrimination was unfounded, and further inquiry was not warranted. The applicant sought judicial review of this decision.

     That application was heard by Nadon J.⁸, who determined that there had been no violation of the rules of procedural fairness, in that the Commission had informed the applicant of the substance of the evidence obtained by the investigator, which was before it, and had given all parties an opportunity to respond to this evidence and to make representations in writing before consideration of the matter by the Commission. Furthermore, Nadon J. noted, it could not be said that the investigation was unfair since it was conducted in a manner that was both neutral and thorough.

     The complainant appealed this decision to the Federal Court of Appeal. In upholding the decision of Nadon J. dismissing the application for judicial review, Hugessen J.A., writing on behalf of the Court stated as follows:

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 [S.E.P.Q.A.] ...

...

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 [set out in S.E.P.Q.A.] were met.9

     As indicated by the comments of Nadon J. in Slattery, since S.E.P.Q.A., the content of the duty of fairness owed by the CHRC in reaching a decision under s-s.44(3) has been refined by this Court to require that the investigation upon which this decision is based be both neutral and thorough. This evolution in the jurisprudence was succinctly summarized by Dubé J. in Miller v. Canada (Canadian Human Rights Commission)¹⁰, in which, after canvassing the most recent case law, his Lordship stated as follows:

The SEPQA decision has been followed and expanded upon by several Federal Court decisions. These decisions are to the effect that procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal. The investigations conducted by the investigator prior to the decision must satisfy at least two conditions: neutrality and thoroughness. In other words, the investigation must be conducted in a manner which cannot be characterized as biased or unfair and the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response.11

     Mr. Justice Dubé then went on to characterize the duty of fairness owed by the CHRC in dismissing a complaint pursuant to s-s. 44(3)(b) as follows:

The rule of procedural fairness requires that a complainant know the substance of the case against him or her. The complainant is not entitled to every detail but he should be informed of the broad grounds of the case. The complainant is not entitled to the investigator's notes of interviews or the statements obtained from persons interviewed. He must be informed of the substance of the case and he has every right to expect that the investigator's report fully and fairly summarize the evidence obtained in the course of his investigation. He must be given the opportunity to respond. He is also entitled to the disclosure of an opposing party's comments when those comments contain facts which differ from those set out in the investigative report. In order to constitute a reviewable error, the complainant must demonstrate that the information was wrongly withheld and that such information is fundamental to the outcome of the case.12

     In my view, based on the jurisprudence, there has been no breach of procedural fairness in the present circumstances. The applicant was aware of the substance of the case on the basis of the evidence provided by both parties to the Commission. He was provided with a summary of the CAF's internal investigation, as well as a copy of the CHRC Investigation Report containing the results of the investigator's findings, and was therefore fully apprised of the substance of the evidence before the CHRC. He was given an opportunity to respond to both these documents, and he did so by making detailed written submissions, which were among the documents before the Commission when it made its decision.

     I do not accept the arguments advanced by the applicant that the CHRC breached the duty of procedural fairness (i) by failing to provide a complete summary of the evidence before it, (ii) by failing to give careful consideration to the role of his race, colour and disability in the incident complained of, and (iii) by relying solely on the evidence adduced by the CAF. While certain dissatisfactions for the applicant arose in the course of the investigation conducted by Commission staff, ultimately the investigation as completed by Ms. Choquette did review all of the evidence adduced by both parties. In my view, there is no evidence to suggest that investigation by the Commission staff of the applicant's complaint was conducted in anything other than a fair and thorough manner.

     Although the applicant contends that the CHRC erred in failing to provide him with a complete summary of all the evidence provided to it, the rules of procedural fairness do not require that the CHRC systematically disclose to one party all the comments it receives from the other.¹³ Rather, the duty of procedural fairness only requires that the applicant be fully apprised of the substance of the case and given a fair opportunity to respond to it. This duty was satisfied by the CHRC in the present case. In my opinion, none of the evidence or material information, crucial to the determination by the CHRC, was withheld from the applicant and he had full opportunity to comment on the information in advance of the Commission considering the matter.

     Similarly, I reject the argument raised by the applicant that the CHRC erred by failing to give careful consideration to the role of his race, colour and disability in the events alleged to have occurred on September 29, 1994. He says that he was the only black person present in the Emergency Unit at the hospital and that he was the only patient not treated. This and other factors were addressed in the written submissions of the applicant and his concerns referred to in the investigation report, both of which were placed before the Commission. There is no evidence to indicate these factors were in any manner overlooked or not considered by the Commission in reaching its decision to dismiss the complaint.

     I do not accept the argument advanced by the applicant that the CHRC violated procedural fairness by relying exclusively on the evidence of the CAF, and thereby failed to conduct an independent investigation. In my view, there is simply no evidence to suggest that the investigation conducted by the CHRC was in any manner biased or insensitive in regard to the perspectives of either party. The January 18, 1995 complaint of the applicant, while perhaps alluding to systemic racism, specifically referred to one incident only. This incident was duly investigated by the investigator, whose report reviewed the events alleged and examined the evidence advanced by both parties.

     While the CHRC Investigation Report refers to the statements of witnesses put forth in the CAF's own internal report, this does not, in my view, suggest that the CHRC in any way abdicated its responsibility to investigate the allegations in a fair and thorough manner. The CAF, like any other organizational or corporate employer could only respond to Mr. Coward's complaint after conducting its own review of the alleged incident on the basis of documents and testimony of witnesses available to it. In the CHRC Report, the investigator considered the evidence presented on behalf of both parties, and in the course of so doing, verified that the CAF report accurately recorded the statements of witnesses, by phone calls made to these individuals. There is no evidence to suggest that at the time of the CHRC decision this report contained material omissions, or that the substance of any significant information in the CAF report, of which the applicant was unaware, was put before the Commission.¹⁴

     Subsequent to the decision of the Commission in November 1995, Mr. Coward himself called Ms. Tanya Oliver, who had been a patient awaiting medical attention at the hospital on September 29, 1994. His conversation led him to conclude that if called as a witness her evidence would be less favourable to the CAF than was earlier reported to the CHRC. That was not a matter before the Commission, rather, the evidence of the CAF concerning her likely testimony was subsequently confirmed by the Commission's investigation. Even if her evidence were later varied, as the applicant's later interview with her might indicate, it could not undermine a decision made earlier on the basis of evidence available to the Commission.

     For these reasons, in my opinion, the applicant's argument that the Commission has failed to observe procedural fairness is not established.

b)      Did the CHRC Err in Dismissing the Complaint?

     The applicant also alleges that the CHRC erred in its decision to dismiss his complaint (i) in failing to properly and carefully interpret the Act, and (ii) in its consideration of the evidence. In order to determine whether, in the circumstances, the CHRC committed any reviewable error in dismissing the applicant's complaint, it is first necessary to identify the standard of review to be applied to the decision.

     It is a well-established principle that in light of their special expertise, human rights tribunals are to be accorded deference in the areas of fact-finding and adjudication. This deference, originally recognized by the Supreme Court of Canada in Canada (Attorney General) v. Mossop,¹⁵ has since been interpreted by this Court to apply to the discretionary power of the CHRC to dismiss complaints under s-s.44(3) of the Act. In Slattery, Nadon J. commented as follows:

... 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. [...]16

     Where a statutory discretion has been exercised in good faith and reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the court ought not to interfere. A court may intervene, however, where a discretionary power has been exercised in a discriminatory, unfair, capricious or unreasonable manner.¹⁷

     In the context of the CHRC, this Court has held that as it is "master of its own procedure", judicial review that would set aside an investigation or decision by the CHRC is only warranted where the investigation or decision is clearly deficient.¹⁸ The proper exercise by the CHRC of its discretion under subparagraph 44(3)(b)(i) of the Act was characterized by Jerome A.C.J. in Malhotra v. Canada (Minister of Transport)¹⁹ as follows:

The Commission must consider each individual case before it, to act in good faith, to have regard to all relevant considerations and not be swayed by irrelevant ones, and to refrain from acting for a purpose contrary to the spirit of its enabling legislation or in an arbitrary or capricious manner. Apart from the obligation to observe these principles of natural justice, the jurisdiction of the Human Rights Commission to determine the relevant circumstances of each complaint and to decide the proper course of procedure to follow, based on the evidence before it, is not subject to review. The question, therefore, of whether an inquiry should have been invoked under subsection 49(1) of the Canadian Human Rights Act, was solely within the Commission's jurisdiction. The Court will not interfere unless the decision can be shown to have been made contrary to the principles of administrative law.

     In my opinion, the Commission committed no reviewable error in its decision to dismiss the applicant's complaint. In particular, I am not persuaded that, as alleged by the applicant, the Commission erred in its interpretation of the Act, that it failed to consider sections 2, 3, 5, 14 and 24 of the Act, or that it erred in a manner that would warrant intervention by the Court.

     The applicant, Mr. Coward, may have experienced unseemly and hurtful incidents of situational or systemic racism in the past, perhaps even within the CAF. In this case, the CHRC found that based on the evidence, the applicant's complaint of a racially motivated denial of services on September 29, 1994, was not substantiated, and therefore it dismissed the complaint pursuant to subparagraph 44(3)(b)(i) of the Act. This the CHRC was entitled to do. That provision confers upon the CHRC a broad discretionary power, in the exercise of which the courts have accorded the CHRC considerable deference. In the present case there is no evidence that the CHRC, in deciding to dismiss the complaint, failed to act in good faith, ignored relevant considerations, was swayed by irrelevant ones, or acted with an improper purpose. In these circumstances, and based on the jurisprudence, this Court may not intervene even if it might have exercised the discretion differently had it been vested in the Court, and even if the Court might have drawn different conclusions from the evidence.

Conclusion

     In my view, the decision of the CHRC, in light of all the material before it, does not appear to have been unreasonable in its conclusion that the evidence did not provide sufficient support for the applicant's version of the events of September 29, 1994 to warrant the appointment of a tribunal, the next step open to the Commission if the investigation were to be carried further. I am not persuaded that the CHRC improperly exercised its discretion. Rather, the Commission reached a decision which was reasonably open to it on the evidence before it.

     The application for judicial review is dismissed.

________________________________________

JUDGE

OTTAWA, Ontario

August 27, 1997

__________________

^1.      Within the last ground raised by the applicant, it is urged that the Commission erred in failing to consider the effect of s.24 of the Act, which deals with the ability of the Governor in Council to make regulations prescribing standards of accessibility. That section is not addressed in these reasons, since it was not argued by the applicant when this application was heard.

^2.      See Knight v. Indian Head School Division, [1990] 1 S.C.R. 653 which held that the nature of the general duty to act fairly is contextual, and depends on the nature of the decision, the relationship between the administrative body and the individual, and the effect of that decision on the individual's rights.

^3.      [1989] 2 S.C.R. 879 [Hereinafter "S.E.P.Q.A" ].

^4.      Ibid., at 899.

^5.      As S.E.P.Q.A. was decided prior to the changes in s. 18 and 28 of the Federal Court Act which removed the distinction of "administrative" as opposed to "judicial or quasi-judicial" decisions, the Supreme Court, having found the decision of the CHRC to dismiss the complaint to be an administrative decision, was able to dispose of the appeal on grounds that the Federal Court of Appeal lacked jurisdiction under s.28 to hear the appeal, as it was not one which was required to be made on a "judicial or quasi judicial basis".

^6.      Supra, note 3 at 902.

^7.      (1996), 205 N.R. 380. It is important to note that the discretion of the Commission to dismiss a complaint under s-s.44(3)(b)(i) is cast even more broadly than under the former provision, s-s.36(3), which was considered in S.E.P.Q.A.

^8.      Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.).

^9.      Supra, note 7 at 381.

^10.      (1996), 112 F.T.R. 195 (F.C.T.D.).

^11.      Ibid., at 201. (Footnotes omitted from original text).

^12.      Supra, note 10 at 203. (Footnotes omitted from original text).

^13.      Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 at 14.

^14.      Mercier, supra, note 13.

^15.      Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 585 (S.C.C.).

^16.      Slattery, supra, note 8 at 607.

^17.      Garnhum v. Canada (Canadian Human Rights Commission), [1996] F.C.J. No. 1254 (October 2, 1996) (F.C.T.D.).

^18.      See Mossop, supra, note 15, and Slattery, supra, note 8.

^19.      [1994] F.C.J. No. 349, (March 18, 1994) (F.C.T.D.). Appeal dismissed by F.C.A.      September 8, 1995. Leave to appeal to S.C.C. dismissed (without reasons) June 6,      1996, [1995] S.C.C.A. No. 471.