Date: 20051117
Docket: A-409-04
Citation: 2005 FCA 389
CORAM: LINDEN J.A.
BETWEEN:
KATHERINE McCONNELL
Appellant
and
THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADA CUSTOMS AND REVENUE AGENCY (CCRA)
Respondent
Heard at Calgary, Alberta, on November 16, 2005
Judgment delivered at Calgary, Alberta, on November 17, 2005.
REASONS FOR JUDGMENT BY: Linden J.A.
CONCURRED IN BY: Rothstein J. A.
Malone J.A.
Date: 20051117
Docket: A-409-04
Citation: 2005 FCA 389
CORAM: LINDEN J.A.
BETWEEN:
KATHERINE McCONNELL
Appellant
and
THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADA CUSTOMS AND REVENUE AGENCY (CCRA)
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from the Federal Court of Canada order, dated June 8, 2004 (reported as 2004 FC 817), upholding a decision of the Canadian Human Rights Commission ("Commission" or CHRC), dated December 19, 2002, which had dismissed the complaint made by Katherine McConnell (the appellant) against the Canada Customs and Revenue Agency (CCRA or the respondent) for discriminating in employment on the grounds of race, national/ethnic origin and disability, contrary to sections 7 and 10 of the Canadian Human Rights Act (the Act), and for failing to provide a harassment-free workplace, contrary to section 14 of the Act.
[2] Following an investigation, the Commission dismissed the appellant's complaint pursuant to paragraph 44(3)(b) of the Act. In its short reasons, the Commission explained its decision as follows:
· the investigation found no evidence that the complainant was harassed on a prohibited ground in the workplace or subjected to racial comments;
· the evidence does not support the complainant's allegation that she was treated differently; and
· the investigation found no evidence of systemic discrimination.
[3] On appeal to the Federal Court the Applications Judge upheld the Commission's decision. The appellant advanced a number of grounds for review before the Federal Court, including errors of law, errors of fact, breaches of procedural fairness and reasonable apprehension of bias. The Applications Judge carefully examined each of the alleged errors in the Commission's decision, and concluded, in reasons comprising 34 pages, that none disclosed a reversible error.
[4] Before this Court, counsel for the appellant argues only one point - that the Applications Judge erred in holding that the Commission did not breach the duty of fairness owed to her in the circumstances of her case. Counsel for the appellant asserts that the Applications Judge should have found that the Commission breached the duty of fairness by not granting the appellant's request, made on the grounds of her illness, for an extension of the deadline for her final submissions to the Commission. He pointed out that her letter of August 5, 2002, impliedly requested an extension, but that the Commission proceeded to render its decision, without any submission from the appellant, on December 19, 2002.
[5] On behalf of the CCRA, it was suggested that an extension to October 18, 2002 was granted to the appellant, in response to her request, and was communicated by voice mail to her telephone number on September 30, 2002. The appellant does not expressly say she did not receive the call.
[6] However, she sent further letters to the Commission, as if she had not received the September 30th call. On the basis of this contention, counsel for the appellant submitted that procedural fairness was not accorded the appellant and that she should now be permitted to file a final submission to the Commission.
[7] The legal answers to procedural fairness question are to be provided by the Court (see Q.B. CUPE v. Ontario (Minister of Labour) 2003 1 S.C.R. 539 at paragraph 100. In cases such as this, the Federal Court considers the evidence pertaining to the procedural fairness question de novo. On review by this Court, the legal determination by the Federal Court Judge of the procedural fairness question is reviewed on a correctness standard. Findings of fact are reviewed on a palpable and overriding error standard.
[8] With respect to the alleged breach of procedural fairness by the Commission, I am of the opinion that the Applications Judge committed no reversible error in her analysis. The Applications Judge began her analysis of this issue by observing that "[t]he requirements of procedural fairness are to be assessed relative to the nature of the decision in issue" (para. 89). She then correctly identified the content of the duty of fairness appropriate in this case, as follows:
90 In the present case, the decision in issue is the discretionary, administrative decision of the Commission to dismiss the Applicant's complaint, following an investigation. The investigation was undertaken pursuant to section 41 of the Act. The investigation process is not intended to provide the full range of natural justice to a complainant. There is no obligation to interview each witness proposed by the Applicant or to permit cross-examination of witnesses or to choose the Investigator. There are procedural matters and the Commission is entitled to control its own process subject to the requirements of fairness.
[9] The Applications Judge referred to the evidence that a voice mail was left at the telephone number of the appellant advising her the submission was due October 18, 2002 (paragraph 52). She then concluded on this point:
93. I conclude that the Applicant has failed to show that she suffered any breach of the procedural fairness to which she was entitled. She was given the opportunity to review the Respondent's defence to her allegations. She was also given the opportunity to reply to the Respondent's arguments. She was given the opportunity to make her case, to the Investigator. The Applicant chose not to use that opportunity.
[10] The Applications Judge obviously accepted the evidence that the voice mail was left at the proper telephone number. This factual conclusion on the evidence evinces no palpable and overriding of error and, hence, there is no basis for this Court to interfere.
[11] For the above reasons, I would dismiss this appeal.
"A. M. Linden"
J. A.
"I agree.
Marshall Rothstein J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-409-04
STYLE OF CAUSE: Katherine McConnell and
The Canadian Human Rights Commission, Canada Customs and Revenue Agency (CCRA)
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 16, 2005
REASONS FOR JUDGMENT
BY : LINDEN J.A.
CONCURRED IN BY: ROTHSTEIN J.A
MALONE J.A..
DATED: November 17, 2005
APPEARANCES:
Mr. Stephen G. Jenuth FOR THE APPELLANT
Mr. Kerry E. S. Boyd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ho MacNeil Jenuth
Calgary, Alberta FOR THE APPELLANT
Mr. John H. Sim, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT