Balogun v. Canada

Balogun v. Canada
Court (s) Database
Federal Court Decisions
Date
2009-04-23
Neutral citation
2009 FC 407
File numbers
T-152-08
Decision Content
Date: 20090423
Docket: T-152-08
Citation: 2009 FC 407
Ottawa, Ontario, April 23, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
DR. ABDUR-RASHID BALOGUN
Applicant
and
HER MAJESTY THE QUEEN
MINISTER OF NATIONAL DEFENCE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by Dr. Abdur-Rashid Balogun, for judicial review of a decision of the Canadian Human Rights Commission (CHRC) dated January 10, 2008, which dismissed Dr. Balogun’s human rights complaint against the Canadian Forces (CF) under section 44(3)(b)(i) of the Canadian Human Rights Act, R.S., 1985, c. H-6 (Act). Dr. Balogun is self-represented.
BACKGROUND
[2] Dr. Balogun is a black, Muslim male of African origin. He is a university graduate and holds a Bachelor of Science majoring in accounting from Minnesota State University Moorhead in Moorhead, Minnesota and a Masters of Business Administration degree from California State University and Doctor of Philosophy in Business Administration with a designation in Accounting from California State University. Dr. Balogun also has a law degree.
[3] Dr. Balogun visited the Toronto 25 Service Battalion in February 2001 to apply as a Canadian Forces Reserve Officer. He was referred to the Captain of the Battalion who attempted to convince him to apply as a Non-Commissioned Member (NCM) rather than as an Officer, citing the onerous conditions that had to be met and the length of time it could take.
[4] In April 2001, at a reception at the Canadian Forces Recruiting Center in Toronto (CFRC Toronto), while Dr. Balogun was waiting to be documented by Master Corporal Cook, an intake attendant advised him to abandon his application as an Officer and apply as an NCM. The attendant allegedly told Dr. Balogun that his file would not be approved because of “a thing for visible minorities applying as an officer.”
[5] In May 2001, following an aptitude test, Master Corporal Cook told Dr. Balogun that the process for an Officer application was slow and lengthy and that, although Dr. Balogun was conditionally offered an Officer position, his file would remain pending until he returned with an evaluation of his USA degrees from the University of Toronto.
[6] In June 2001, Dr. Balogun called CFRC Toronto to inform them about the requirements for obtaining his official academic transcripts. The transcripts would take a minimum of 90 days and the cost would exceed $150 (lawyer and university fees).
[7] In July 2001, Dr. Balogun called CFRC Toronto to notify them that he had received his official transcripts from the USA universities he had attended and had begun the process for other requirements. He was told that, because of a new policy, he should call in and pick up a personal reference form. Dr. Balogun did this.
[8] In August 2001, Dr. Balogun received a call asking him to bring his Citizenship Card to CFRC Toronto. He informed CFRC that he did not have the card at that time because he had sent it to Citizenship and Immigration Canada as part of an application for his son’s Citizenship Card. Dr. Balogun questioned this requirement because his Canadian passport and other identification had been copied and verified. The CFRC informed him that this was standard policy.
[9] In September 2001, Dr. Balogun submitted his Citizenship Card to CFRC Toronto and was informed that his file was missing but that his information was in the computer. He was then told that CFRC would require his high school transcripts. The officer who requested the high school transcripts was corrected and told that the transcripts were not required. The mistaken officer allegedly said that Dr. Balogun would be better off applying as a NCM, or else he would have to continue to meet the requirements.
[10] In November 2001, Dr. Balogun received a telephone call from Captain Wade Sett of the 25 Service Battalion in Toronto advising him that he was now in charge of recruiting and wanted to know how far Dr. Balogun had come in the application process. Later, Captain Sett called to inform Dr. Balogun that his file had been closed and he would try to have it reopened. Dr. Balogun received the University of Toronto’s academic evaluation report and submitted it to CFRC Toronto. An unidentified Corporal confirmed the closure of Dr. Balogun’s file and, after a 45 minute wait, the unidentified Corporal returned to say that Dr. Balogun’s file was missing again. However, the Corporal accepted the evaluation report.
[11] In December 2001, Captain Sett informed Dr. Balogun that he could not re-open his file. Dr. Balogun complained to the DND through D-Net.
[12] In February 2002, Captain Howard of CFRC Toronto re-opened Dr. Balogun’s file indicating that none of his visits had been documented and that the unit had been going through some changes lately. Captain Howard advised Dr. Balogun that a pre-security clearance would take no less than six months and that, until then, no interview could be scheduled. Dr. Balogun responded that he was not surprised that “no further contact” had been written on his file as the file had gone missing twice.
[13] On July 17, 2002, Dr. Balogun was interviewed by Captain Thompson (Air Force) of CFRC Toronto after his security clearance and reliability checks were received. Captain Thompson said that Dr. Balogun had a terrible credit rating and several debts. Dr. Balogun responded that he had no knowledge of these and could only speculate that the search results could relate to loans he had co-signed for relatives in distress. Captain Thompson stated that the debts were Dr. Balogun’s. Dr. Balogun requested documentation about these debts, but Captain Thompson declined to oblige. The alleged creditors were Eatons and Zellers. Dr. Balogun was asked to submit a letter on how he intended to resolve this matter so that his file could be approved.
[14] A week later, Dr. Balogun made inquiries about the debts and wrote a letter to Captain Thompson. Captain Thompson stated verbally that the letter was not enough and that payment arrangements had to be made with the companies, despite Dr. Balogun’s belief that he did not owe anything. Captain Thompson warned Dr. Balogun that his file could be closed again, but admitted that he was qualified for a position with CF.
[15] The Respondents allege that Dr. Balogun provided the following responses to the debt issue:
1) He told the CF orally that the debts were not his and that Eatons and Zellers must have falsified his credit records;
2) In September 2002, he again wrote to the CF to deny the debts and claimed they were the result of identity theft;
3) In July 2003, after receiving a credit report from Equifax Canada confirming the debt to Zellers of $1,794.00 and a debt to Eatons of $1,183.00, Dr. Balogun threatened to sue Equifax and bring lawsuits against Eatons and Zellers;
4) Dr. Balogun decided it would be too expensive to hire a lawyer to pursue the lawsuits and he had decided to go to law school in England so that he could represent himself.
[16] In August 2002, Dr. Balogun complained to the DND. A response was given by Major Orfankos who reiterated and supported Captain Thompson’s requirements regarding the debts.
[17] In September 2002, Dr. Balogun filed another complaint with Assistant Deputy Minister-Human Resources (Military) whose mandate includes Recruiting and Employment Equity. He received no immediate response. Colonel Alain Tremblay responded in March 2003. He informed Dr. Balogun that he was now in charge of the file, and stated in writing that more documentation was required to prove Dr. Balogun’s position regarding the debts.
[18] In June 2003, Dr. Balogun complained to the Chief of Land Staff, Lt. General Hillier. He received no response.
[19] In October 2003, Dr. Balogun received a federal loan of approximately $8000, was granted a Bank overdraft and enrolled in law school through the University of London Extension Programme. He provided Colonel Tremblay with over 20 pages of documentation about the steps he had taken to resolve his debts. Dr. Balogun further informed Colonel Tremblay that the debt situation was not his and that his credit rating was satisfactory. Colonel Tremblay allegedly refused to respond.
[20] In November 2003, Dr. Balogun telephoned Lt. General Hillier’s office and was told that Colonel Tremblay was handling the matter.
[21] In December 2003, Dr. Balogun wrote to Major-General Arp and provided over 25 pages of documented proof that the credit report was false. The Major-General responded by letter dated December 19, 2003 and received on February 2004. Dr. Balogun was told that “you will have to either prove beyond reasonable doubt that you are not responsible for the debts recorded in your credit history or provide verifiable evidence that you have paid off the debts.”
[22] On February 26, 2004, Dr. Balogun brought a discrimination complaint before the CHRC against DND. The complaint was that he was being subjected to discrimination by the CF. The complaint was dismissed without any investigation.
[23] On January 26, 2005, Dr. Balogun sent a letter to the Minister of National Defence in response to a letter the Minister sent on August 27, 2004 discussing racial differential treatment at DND and that the DND was wrong about their “defunctory assertions” and he would further his legal action if the DND did not “do the right” within 10 days.. The documents attached to Dr. Balogun’s letter included another Equifax report that did not show any outstanding debts for him.
[24] On April 5, 2006, the Federal Court allowed Dr. Balogun’s judicial review application and set aside the CHRC decision. The file was referred back with the stipulation that the CHRC conduct an investigation in accordance with sections 43 and 44 of the Act.
[25] On July 13, 2006, Dr. Balogun received a letter from Mr. Dean Steacy, an Investigator with the CHRC, that he had been assigned as the Investigator and required certain documents. Dr. Balogun replied to Mr. Steacy on July 14, 2006. Dr. Balogun was contacted by Mr. Steacy several times between July 14, 2006 and March 8, 2007. It is alleged by Dr. Balogun that Mr. Steacy told him that an investigation was unnecessary. Mr. Steacy suggested mediation because the DND was ready to employ Dr. Balogun and just needed time to find a suitable location for him.
[26] Dr. Balogun alleges that he asked Mr. Steacy to correspond with the individuals he had identified. Mr. Steacy allegedly said it was unnecessary since the DND would employ him but needed more time. On November 5, 2006, Dr. Balogun received another letter from Mr. Steacy dated November 2, 2006, including DND responses and refusals to answer questions. After receipt of the letter, Mr. Steacy called Dr. Balogun and told him that he should accept the position of Infantry officer.
[27] On November 10, 2006, Dr. Balogun responded to Mr. Steacy’s November 2, 2006 letter. Dr. Balogun alleges that he received a series of telephone calls from Mr. Steacy suggesting that he accept the DND offer because he did not think an investigation was necessary. Mr. Steacy requested documents and written demands from Dr. Balogun to facilitate mediation.
[28] On March 8, 2007, Dr. Balogun refused to agree to Mr. Steacy’s suggestions of accepting the DND offer and Mr. Steacy wrote his report. Dr. Balogun alleges that Mr. Steacy coerced him to keep his responses to Mr. Steacy’s report as brief as possible. Dr. Balogun filed his submissions with the CHRC in March 2007.
[29] On March 30, 2007, Mr. John Chamberlin, an employee at the CHRC, wrote a letter to Dr. Balogun attaching the DND’s two-page letter of submissions. Dr. Balogun replied on April 4, 2007 to Mr. Chamberlin.
[30] On April 10, 2007, Mr. Sean Davy, an employee at CHRC, was appointed by the CHRC to conciliate the dispute. Dr. Balogun alleges that the conciliation was unusual because the parties never met or had any direct discussions. Also, the matter was discussed about three times in 5 months. The conciliator’s report was supplied to Dr. Balogun with a letter dated October 23, 2007. Dr. Balogun responded with a submission on October 24, 2007. On November 9, 2007, the CHRC wrote Dr. Balogun a letter with an attached copy of the DND submission. Dr. Balogun replied on November 9, 2007 with a submission dated November 13, 2007. The CHRC wrote a letter dated December 18, 2007 to Dr. Balogun enclosing additional information from the Respondent regarding the conciliation report in the Applicant’s complaint.
[31] On March 28, 2007, Mr. Steacy wrote a report in relation to the complaint. After the report, the CHRC appointed a conciliator for settlement discussions. The parties could not agree. The matter was then referred to the Canadian Human Rights Tribunal (CHRT).
Government Security Policy
[32] The Government of Canada’s Security Policy (GSP) is administered by the Treasury Board of Canada and applied to all government departments, certain commissions and the CF. The GSP states that entities covered by the policy are required to conduct their own threat assessments to determine if safeguards above baseline levels are necessary. The DND conducted a threat assessment and determined that it should have safeguards above baseline levels, so the DND issued a National Defence Security Policy and Recruiting Directive to deal with reliability checks for CF enrolment. The Recruiting Directive states that it is a mandatory condition of eligibility for enrolment in the CF that a recruit successfully obtain enhanced reliability status which can include criminal records, name checks and credit checks.
[33] When assessing a credit check for a recruit, the Recruiting Directive directs that the following factors shall be considered: (a) the degree of indebtedness; (b) the reason for indebtness; (c) whether the situation is stable or changing; (d) the individual’s reaction to the problem; and (e) the nature of the duties and access to designated information and assets.
DECISION UNDER REVIEW
[34] CHRC found that an inquiry by a Tribunal was not warranted. Dr. Balogun’s file was closed and the complaint dismissed.
[35] The Investigator dealt with only one issue in his report: whether Dr. Balogun had been denied employment opportunities because of his race (African), religion (Muslim), and national/ethnic origin (Nigerian).
[36] The Investigator found that Dr. Balogun had only provided the transcripts for his Bachelor of Science degree and that it was equivalent to a four-year bachelor’s degree at an accredited Canadian university. Dr. Balogun had also provided both his passport and his Citizenship Card and both were on his recruiting file.
[37] It is customary to explore different career paths with applicants, including Officer and NCM. Dr. Balogun’s application had been processed for recruitment as an Officer. There had been significant delays in processing the application; however, not all of these delays were attributable to the CF. For example, there was a delay caused by the time it took to evaluate Dr. Balogun’s transcripts. Evidence in the CF Ombudsman’s report revealed that the processing of recruit applications was not being dealt with as expeditiously as possible; this had caused lengthy delays in the actual processing of the applications. While there were delays in processing Dr. Balogun’s enrolment application, the delays were not related to a proscribed ground.
[38] The Investigator relied upon the Treasury Board policy which states that the “existence of negative information in a credit report can be, but need not be, sufficient grounds to deny enhanced reliability status. Where adverse credit information exists, the authorizing manager must evaluate: To what extend the individual has changed habits with respect to financial reliability. The likely recurrence of financial difficulties and their potential effect on job reliability.” The Investigator noted that Dr. Balogun’s enrolment process was put on hold because of debt concerns. However, his enrolment was not rejected because of the debt situation. Before the CF could continue with his enrolment, Dr. Balogun had to provide documentation to show he had rectified the debt situation. Dr. Balogun did not provide the required documentation until January 26, 2005.
[39] The CF requires all candidates to complete an enhanced reliability security check. Part of that check is a credit check. The CF used the Treasury Board Secretariat’s policy to administer this requirement which is part of the evaluation process to determine a candidate’s suitability. It is not the fact of credit issues that precludes a candidate from enrolment in the CF; the issue is how candidates handle their debts.
[40] The Investigator held that the evidence did not support Dr. Balogun’s allegation that the security policy and credit check were used to temporarily place his candidacy on hold. Based on the documentation provided by Dr. Balogun and the Respondents, Dr. Balogun’s recruitment was placed on hold because he did not provide documentation which showed the debt issue had been dealt with. Dr. Balogun signed his complaint form against the CF on February 26, 2004 and the debt issue was dealt with on January 26, 2005.
[41] In the Investigator’s view, there was no evidence to support a link between the CF’s administration of the security policy and the prohibited grounds of discrimination.
[42] The Investigator recommended that a conciliator be appointed to attempt to settle the complaint because the evidence did not support the allegations of discrimination based on race, national/ethnic origin, and religion; the evidence revealed that the complainant had been a victim of poor administration and the parties were amenable to settling.
ISSUES
[43] Dr. Balogun submits the following issues on this application:
1) Was an independent investigation under section 43 of the Act conducted and, if so, was it neutral and thorough?
2) Was the independent investigation compatible with mediation under subsection 43 of the Act and can an Investigator simultaneously mediate between parties while conducting an investigation?
3) Did the CHRC and the DND breach fundamental principles of natural justice and procedural fairness?
4) Do credit checks constitute a bona fide occupational requirement for a military occupation?
5) Did the CHRC err at law?
6) Is the GSP subject to the Act? If so, was there sufficient evidence to warrant referral to the CHRT based on section 7 and 10 of the Act?
STATUTORY PROVISIONS
[44] The following provisions of the Act are applicable to these proceedings:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
Designation of Investigator
43. (1) The Commission may designate a person, in this Part referred to as an “Investigator”, to investigate a complaint.
Manner of investigation
(2) An Investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4).
Power to enter
(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.
Authority to issue warrant
(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.
Use of force
(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.
Production of books
(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.
Obstruction
(3) No person shall obstruct an Investigator in the investigation of a complaint.
Regulations
(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).
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :
a) de fixer ou d’appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel.
Nomination de l’enquêteur
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l’enquêteur », d’enquêter sur une plainte.
Procédure d’enquête
(2) L’enquêteur doit respecter la procédure d’enquête prévue aux règlements pris en vertu du paragraphe (4).
Pouvoir de visite
(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.
Délivrance du mandat
(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.
Usage de la force
(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.
Examen des livres
(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.
Entraves
(3) Il est interdit d’entraver l’action de l’enquêteur.
Règlements
(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).
STANDARD OF REVIEW
[45] Dr. Balogun has not dealt with the standard of review.
[46] The Respondents submit that the CHRC is required to dismiss a human rights complaint pursuant to section 44(3)(b)(i) of the Act if the CHRC is satisfied, having regard to all the circumstances of the complaint, that an inquiry into the complaint by the Tribunal is not warranted. This allows the CHRC to screen-out complaints that, in the opinion of the CHRC, do not have merit.
[47] The Respondents state that the Court has afforded the CHRC a great deal of deference when reviewing decisions made under section 44(3)(b)(i) of the Act. The Respondents cite Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056 (F.C.A.) at paragraph 38 (Sketchley):
…A reviewing Court's focus under this approach ultimately remains upon the Commission's screening decision, which is reviewed with a high degree of deference with respect to fact-finding activities: only errors evincing an error of law, patent unreasonableness in fact-finding, or a breach of procedural fairness will justify the intervention of a Court on review (Bell Canada, supra at para. 38; Connolly v. Canada Post Corp., [2002] F.C.J. No. 242, 2002 FCT 185 (T.D.) at para. 28, affirmed (2003), 238 F.T.R. 208, 2003 FCA 47 (C.A.) [Connolly]). Such errors belong, virtually by definition, to the category of investigative flaws that are so fundamental that they cannot be remedied by the parties' further responding submissions…
[48] The Respondents submit that the findings of fact and findings within the Investigator’s jurisdiction and expertise should be reviewed on the reasonableness standard, and questions of law and procedural fairness should be reviewed using a correctness standard.
[49] The appropriate standard of review with respect to a Commission’s general decision is reasonableness simpliciter: Corbiere v. Wikwemikong Tribal Police Services Board, [2007] F.C.A. 97; Garvey v. Meyers Transport Ltd., [2005] F.C.J. No. 1684 (F.C.A.) and Lindo v. Royal Bank of Canada, [2000] F.C.J. No. 1101 (F.C.T.D.) (Lindo).
[50] The Investigator’s report constitutes the Commission’s reasons. Therefore, if the report is flawed, the Commission’s decision is equally flawed because the Commission was not in possession of other relevant information upon which it could properly exercise its discretion: Forster v. Canada (Attorney General), 2006 FC 787 at paragraph 37 and Canada (Attorney General) v. Grover, [2004] F.C.J. No. 865 (F.C.) at paragraph 25 (Grover).
[51] The discretion vested in the Commission in deciding whether to dismiss a complaint or refer it to adjudication before a Tribunal does not allow it to “short-circuit” the investigation process or ignore a necessary witness. No relevant fact should be left out and omitted, particularly when the information is damaging to the complainant’s position, as this casts serious doubts on the neutrality of the Investigator: Grover and Canadian Broadcasting Corp. v. Paul, [1988] F.C.J. No. 1823 (F.C.T.D.) at paragraph 63 (Paul).
[52] The Commission should dismiss a complaint “where there is insufficient evidence to warrant appointment of a tribunal” and determine if there is a “reasonable basis in the evidence for proceeding to the next stage”: Paul at paragraph 62.
[53] In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[54] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[55] Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the non-procedural and non-error of law issues to be reasonableness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[56] Procedural fairness issues are reviewed on a standard of correctness: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
ARGUMENTS
Dr. Balogun
CHRC Failed to Investigate
[57] Dr. Balogun submits that:
1) The CHRC failed to investigate his complaint because it did not contact the individuals he identified;
2) The CHRC failed to review statistics which have been accepted by the Supreme Court of Canada as proof that people exhibiting Dr. Balogun’s characteristics are mostly living below the poverty level;
3) The CHRC failed to disclose that the DND did receive over 25 pages of “documented proof” that the credit report was false;
4) The CHRC did not contact the Auditor General of Canada in respect to his report disclosing that 26, 000 employees of the CF lacked security clearances or enhanced reliability status;
5) The CHRC refused to disclose significant issues raised in Dr. Balogun’s submissions;
6) The CHRC did not investigate any issues relating to the bona fide occupational requirement tests and their effect on job performance criteria;
7) The CHRC did not investigate any issues relating to undue hardship that may be caused by accommodating Dr. Balogun under subsection 15(2) of the Act;
8) The CHRC did not investigate whether the person hired had characteristics similar to Dr. Balogun with better qualifications;
9) The CHRC did not investigate the level of visible minorities within DND who are Officers;
10) The CHRC failed to follow up on significant inaccuracies by DND either orally or in writing.
[58] Dr. Balogun further submits that the CHRC did not investigate DND’s inaccurate statements or highlight them in the report. As well, Dr. Balogun alleges that the CHRC ignored several “admitted facts” by the DND, and goes on to list those “admitted facts” along with the evidence of the DND and the CHRC.
Investigation
[59] Dr. Balogun submits that Webster’s dictionary defines “investigate” as meaning “to search or to inquire into; to examine carefully.” Dr. Balogun states that all acts of the CHRC must be independent, including the conduct of its Investigators. An Investigator has a duty to investigate in a neutral and thorough manner: Watt v. Canada (Attorney General) 2006 FC 619 (Watt) and section 43 of the Act. Dr. Balogun also states that an investigation under the Act must be conducted in a neutral and thorough manner so that the Commission has before it sufficient information to determine the proper tests in the context of the circumstances of the case.
[60] Dr. Balogun notes that the required test for discrimination is:
1) That the complainant was qualified for the particular employment;
2) That the complainant was not hired; and
3) That someone no better qualified but lacking the distinguishing feature of the complainant was hired.
[61] Dr. Balogun also notes that the required test for justification are:
1) That the employer adopted the standard for a purpose rationally connected to the performance of the job;
2) That the employer adopted the particular standard in an honest and good faith belief that it was necessary for the fulfillment of that legitimate work-related purpose; and
3) That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
See: Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] S.C.J. No. 74; Basi v. Canadian National Railway, [1988] C.H.R.D. No. 2 (C.H.R.T.) and Watt.
Evidence
[62] Dr. Balogun submits that the “Applicant Assessment” dated May 16, 2001 was not presented to Dr. Balogun until March 17, 2008. Dr. Balogun claims that the CHRC knew about this document but failed to disclose its contents to Dr. Balogun or mention it in the Investigator’s report. Dr. Balogun alleges that, since Captain Thompson was the only one present during Dr. Balogun’s interview, senior officers including Minister David Pratt, Major Orfankos, Colonel Tremblay and Major-General Arp relied on this document without disclosure to Dr. Balogun.
[63] Dr. Balogun alleges that Captain Thompson’s comment that Dr. Balogun “could not comment on either debt” was a lie because Captain Thompson admitted to the other superior officers and the CHRC that Dr. Balogun had commented. The Investigator did not inquire further about this document, even though the document lacked justification in Dr. Balogun’s view.
[64] Dr. Balogun concludes that the CHRC failed to perform any investigation of Dr. Balogun’s complaint under subsection10(a) of the Act because Captain Wade Sett, Master Corporal Cook, the previous recruiting Captain at the 25 Service Battalion, Major Orfankos, Colonel Tremblay and Major-General Arp were never interviewed or contacted by CHRC.
Investigation of Government Security Policy
[65] Dr. Balogun also submits that the CHRC did not inquire into why the DND did not perform an evaluation in accordance with the requirements mandated by the Act or supply any evidence that the DND performed an evaluation under the credit assessment factors outlined in the National Defence policy. The CHRC failed to inquiry about this evaluation.
Investigation as Mediation
[66] Dr. Balogun also submits that Mr. Steacy of the CHRC told him on more than three occasions that his intention was to mediate between the parties because the CF was ready to hire Dr. Balogun but had no current position in Dr. Balogun’s occupational category until around January 2007, unless he was willing to take a position as an Infantry Officer in or around Toronto. Dr. Balogun alleges that the primary role of Mr. Steacy was to conduct an investigation, not to mediate, as the CHRC had other staff employed to perform mediations.
[67] Dr. Balogun says that Mr. Steacy ignored the delays that would support Dr. Balogun’s complaint, and he also ignored the fact that there were differences in processing recruit applications and officer applications. Mr. Steacy also did not investigate why, if the reliability clearance rules were applied so stringently, the report of the Auditor General of Canada indicated that 26,000 Canadian Forces personnel lacked reliability clearance. Dr. Balogun submits that Mr. Steacy’s report should be thrown out because he did not talk to everyone involved and his conduct was highly tainted and of no force and effect.
Breach of Principles of Natural Justice and Procedural Fairness
[68] Dr. Balogun submits that the Supreme Court of Canada in Therrien (Re), [2001] 2 S.C.R. 3 held that the duty to act fairly has two components: the right to be heard and the right to an impartial hearing. Dr. Balogun also cites Timpauer v. Air Canada (1986), 11 C.C.E.L. 81 at 97 which held that the refusal to hear an applicant’s evidence denied the applicant in that case natural justice and “the fact that such evidence might not assist the applicant was not a valid reason for refusing to hear it.”
Failure to Disclose Key Materials to Applicant
[69] Dr. Balogun submits that the CHRC conducted an investigation under section 43 of the Act and, during that process, claimed to obtain documents and statements from the DND. The only document supplied to Dr. Balogun was the DND’s refusal to answer questions or to supply any documents. Dr. Balogun was never given the opportunity to be heard on verbal points or on any documents not supplied to him.
[70] Dr. Balogun submits that he did not receive the Applicant Assessment document until March 17, 2008. He was not allowed an opportunity to comment on this document before a decision was made by the DND and the CHRC.
Fairness
[71] Dr. Balogun submits that the CHRC failed to investigate his complaint fairly. He alleges that the DND hatched a “secret plan” to avoid its obligation to evaluate him by deliberating stating that he did not comment on his debt and that he had to prove beyond a reasonable doubt that the false debts were not his. Dr. Balogun states that he did comment on the debts and alleged that there was a possibility of identity theft, errors or other reasons for the debts.
[72] Dr. Balogun notes that Mr. Steacy claimed that the DND stated that his enrolment process was fraught with many administrative delays but that these did not result in an admission by the DND of adverse treatment of Dr. Balogun. Dr. Balogun argues that Mr. Steacy ignored the fact that the DND did not have any records of visible minorities in relation to some of the questions Mr. Steacy posed to the DND, and that Mr. Steacy failed to inquire further in relation to the other intake attendants at that time Dr. Balogun made his application.
Credit Check
[73] Dr. Balogun submits that in DeJager v. Canada (Department of National Defence), [1986] C.H.R.D. No. 3 (C.H.R.T.), the court ruled that, for something to be an occupational requirement and a qualification, the limitation must be imposed honestly, in good faith, and in the sincere belief that such a limitation is in the interests of the adequate performance of the work involved. It must also be related, in an objective sense, to the performance of the employment concerned.
[74] Dr. Balogun rejects the notion that a good credit evaluation is a requirement under the GSP. As well, he says a credit check is not a bona fide occupational requirement or qualification. He submits that the DND did not supply any evidence that good credit is rationally connected to the performance of the job, or that it was related to honest and good faith criteria. This is unreasonable in Dr. Balogun’s view, as 26,000 of those currently serving in the CF, lack such a credit evaluation.
[75] Dr. Balogun submits that CHRC and DND erred by interpreting the provision on credit to mean that he must prove beyond a reasonable doubt that he did not owe any debts, rather than whether there was a likelihood of recurring financial difficulties that could effect him on the job.
The Respondents
Investigator’s Report
[76] The Respondents submit that the Investigator, after interviewing a number of witnesses (including Dr. Balogun and Captain Thompson), and reviewing a wide range of documents (including Dr. Balogun’s recruitment file) came to the following conclusions:
1) Dr. Balogun had not been refused an employment opportunity with CF; rather, his application had been temporarily put on hold to provide him with an opportunity to provide documentation showing he had addressed the debt situation;
2) While there had been significant