Clark v. Canada (Attorney General)

Clark v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-01-05
Neutral citation
2007 FC 9
File numbers
T-1586-05
Notes
Digest
Decision Content
Date: 20070105
Docket: T-1586-05
Citation: 2007 FC 9
Ottawa, Ontario, January 5, 2007
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
RANDAL CLARK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
THE APPLICATION
[1] This is an application for judicial review of a decision (Decision) of the Canadian Human Rights Commission (Commission) wherein the Commission, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act), dismissed the Applicant’s complaint (Complaint) that he was discriminated against in his place of employment because of his disability, Post Traumatic Stress Disorder (PTSD). The Commission concluded that the Complaint did not meet the threshold for referral to the Canadian Human Rights Tribunal (Tribunal) because the evidence did not support the Applicant’s allegations that, because of his disability, he had been treated in an adverse differential manner, that he had not been accommodated, and that he had not been provided with a harassment-free work environment.
BACKGROUND
[2] A detailed account of the facts applicable to each issue raised by the Applicant will follow in the body of these reasons and I will only give a brief overview here of the circumstances leading to the Application. Also, in his written submissions, the Applicant identified a fairly broad range of mistakes that he felt the Investigator and the Commission made in assessing the evidence and drawing conclusions from that evidence. At the time of the oral hearing before me in Victoria, however, the Applicant, while still maintaining that both the Investigator and the Commission had been wrong with regard to all the points he had initially raised, limited his request for review. Hence, this summary will focus only on those matters that remain in contention post-hearing.
[3] Beginning in 1984, the Applicant worked for Corrections Canada. He experienced a violent incident while working at a corrections facility in January 2000 and spent his last two years of employment with Corrections Canada on Worker’s Compensation Board (WCB) benefits for PTSD. He says that he was also diagnosed with clinical anxiety and depression.
[4] The Applicant was accepted as a Disability Priority with the Public Service Commission (PSC) in September 2001. Pursuant to section 36 of the Public Service Employment Regulations (2000), SOR/2000-80 (Regulations), an indeterminate employee who becomes disabled and meets the criteria set out in the Regulations is entitled by law to priority status. Such an employee is entitled to priority placement, without competition, in a job that is considered suitable by the PSC.
[5] The Applicant applied and was accepted for employment with the Victoria office of Veterans Affairs Canada (VAC) as an area counsellor on April 5, 2002 on the understanding that he would participate in a Return to Work Program sponsored by the WCB beginning on May 1, 2002 and ending on July 23, 2002.
[6] The Applicant commenced employment with VAC on May 1, 2002. Although the original plan was to hire the Applicant on an indeterminate basis following the completion of the Return to Work Program, Mr. Ken Parkinson, District Director, requested a three-week extension of the program. This was agreed to and the Return to Work Program was extended to August 13, 2002. Mr. Parkinson, on behalf of VAC, then requested a further three-month extension of the program. On August 8, 2002 the Applicant was offered a three-month term appointment. Shortly after that, VAC requested an evaluation from the Applicant’s psychologist concerning his fitness for work. After receiving a positive fitness for work evaluation, VAC offered the Applicant indeterminate employment on September 4, 2002. The Applicant says that VAC’s failure to offer him immediate indeterminate status constituted adverse differential treatment on the grounds of disability.
[7] During this time, on July 11, 2002, the Applicant requested that his workspace be modified on the basis that its position exposed him to adverse affects related to his disability. When the Applicant left work on April 1, 2003, he maintains that his request had not been accommodated. The Respondent, however, contends that work to reconfigure the desk began in August 2002, was partially completed in January 2003, and was completed in totality by June 2003.
[8] On April 1, 2003, the Applicant attended a meeting during which he raised his voice and yelled a profanity at a fellow employee. The Applicant claims that this was a side-effect of the medication he was taking for his disability. Following the event, the Applicant remained away from work. The event raised concerns among the staff and led to an investigation into the Applicant’s behaviour. Before the Applicant was scheduled to return to work, he requested that management coordinate a mediation session to address the concerns raised by his colleagues. The Applicant now argues that the conduct of other participants throughout the course of the mediation gave rise to an environment of harassment. He maintains that participants were allowed to express concerns about him and his PTSD and that their behaviour towards him was threatening and abusive. The Respondent maintains that the mediation was conducted in a polite, respectful and appropriate manner, and that frank discussion is part of any effective mediation process.
[9] On February 4, 2004, the Applicant filed his Complaint with the Commission claiming that VAC had treated him in an adverse differential manner, had failed to provided him with a harassment-free work environment, had failed to accommodate him, and was following a discriminatory policy and/or practice contrary to sections 7, 10, and 14 of the Act. An investigation was carried out.
[10] In a report dated May 4, 2005, the Investigator recommended that, pursuant to paragraph 44(3)(b) of the Act, the Commission dismiss the Complaint. The Investigator reached the following conclusions that are relevant to the issues raised in this application:
1. The evidence did not support the Applicant’s allegation that the failure to immediately offer him indeterminate status constituted adverse differential treatment on the grounds of disability;
2. The evidence did not support the Applicant’s allegation that the Respondent had failed to accommodate him with respect to his work station. Although it took time, his work station was modified; and
3. Even if the Applicant’s disability was discussed at the mediation session, this did not constitute harassment or adverse differential treatment on the grounds of disability.
[11] The Investigator recommended that the Complaint be dismissed because “the evidence did not support the complainant’s allegations that he was treated in an adverse differential manner, that he was not accommodated, or that he was not provided with a harassment free work environment because of his disability (Post Traumatic Stress Disorder).”
[12] The Complaint was dismissed by the Commission on August 15, 2005, pursuant to paragraph 44(3)(b) of the Act.
ISSUES RAISED
[13] There are two preliminary issues raised for the Court’s consideration:
1. What is the appropriate record for the Court to consider in relation to this application?
2. What is the standard of review applicable to the Decision of the Commission not to refer the Complaint for consideration before the Tribunal?
[14] The Applicant’s submissions also raise three substantive issues for consideration:
1. Did the Commission err in determining that the delay in offering the Applicant indeterminate status did not constitute adverse differential treatment on the grounds of disability and so did not need to be referred to the Tribunal for consideration?
2. Did the Commission err in determining that the Applicant had not been harassed during the mediation session so that this aspect of the Complaint did not need to be referred to the Tribunal for consideration?
3. Did the Commission err in finding that VAC met its obligations to accommodate the Applicant with respect to providing him with a new work space and that there was no need to refer this issue to the Tribunal for consideration?
LEGISLATION
[15] Section 44 of the Act governs the duty of the Investigator to report to the Commission and the Commission’s discretion to dismiss or refer the matter to the Tribunal for consideration:
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 Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) (that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
[…]
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de désigner, en application de l’article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d’une part, que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci est justifié,
(ii) d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié,
(ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
[16] In this case, the Applicant’s Complaint before the Commission invoked the following provisions of the Act:
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.
7. It is a discriminatory practice, directly or indirectly,
[…]
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
14. (1) It is a discriminatory practice,
[…]
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
3. (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
[…]
b) de le défavoriser en cours d’emploi.
14. (1) Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait de harceler un individu :
[…]
c) en matière d’emploi.
[17] The Applicant’s submissions to the Commission also raised considerations relating to section 10 of the Act, but the matters at issue in this judicial review application only engage issues relating to subsection 7(b) and paragraph 14(1)(c).
ANALYSIS
General
[18] In a general sense, the Applicant has asked the Court to consider whether the Commission erred in finding that the evidence before it did not support his Complaint, and in concluding that, having regard to all the circumstances of the Complaint, an inquiry by the Tribunal was not warranted. In support of the application, the Applicant identifies what he sees as various specific instances of reviewable error in the Decision that, whether considered separately or cumulatively, justify his principle contention that the Decision should be set aside.
The Specifics
[19] In his written submissions, the Applicant identified a fairly broad range of mistakes that he felt the Investigator and the Commission made in assessing the evidence and drawing conclusions from that evidence. At the time of the oral hearing before me in Victoria, however, the Applicant, while still maintaining that both the Investigator and the Commission had been wrong with regard to all of the points he had initially raised, nevertheless conceded that reviewable error had only occurred in relation to the following three matters:
1. Adverse Differential Treatment
The Applicant argues that it was a reviewable error to find that he had not been subjected to adverse differential treatment when VAC resisted offering him an indeterminate position because of concerns about his disability. In other words, he says that the finding that the delay in offering him an indeterminate position was not discrimination within the meaning of the governing jurisprudence was a reviewable error;
2. Failure to Provide a Harassment-Free Workplace
Under this heading, the Applicant confines his argument to the mediation session that was held on December 10, 2003. He says that, with regard to this meeting, VAC not only failed to prevent harassment, it was actually responsible for the most serious incident of harassment that occurred. He says that the mediation session became a personal attack upon him and his disability that he was forced to endure in order to effect a return to his employment. Hence, he argues that the findings of the Investigator and the Commission that this was not discriminatory treatment is a reviewable error;
3. Failure to Accommodate
The Applicant now confines this ground of attack to the inappropriate response of VAC to his request that his desk be moved. He says that the finding of the Investigator, confirmed by the Commission, that VAC had not failed to accommodate his medically-supported request was a reviewable error.
The Applicant no longer relies upon the lack of accommodation in relation to the request he made that he be allowed to tape record meetings. But he does refer to his treatment, following the request he made in this regard, as part of the general pattern of harassment to which he says he was subjected by VAC.
Preliminary Considerations
[20] In addition to a consideration of the merits of the Decision on the points raised by the Applicant, the Court also needs to deal with two major matters of dispute between the parties:
1. The Record Before the Court
[21] The Respondent points out that the Certified Tribunal Record consists of the Investigation Report, the Complaint Summary, the Complaint Form, the Complainant’s Response to the Investigation Report, and a Chronology. However, in the present application, the Applicant has filed an affidavit to which he has attached exhibits that he submitted to the Investigator but which the Respondent says were not before the Commission. The Respondent takes the position that all but exhibits 158, 161 and 162 were not part of the Certified Tribunal Record and were not before the Commission.
[22] The Respondent takes the position that, unless the Court is asked to deal with some issue of procedural fairness, bias or jurisdictional error in relation to a decision under review (and no evidence or argument is advanced in the present case for any such error), any materials before the Court that were not part of the Certified Tribunal Record should be struck or ignored. The Respondent says that this requires the Court to strike all exhibits in the Applicant’s affidavit, except for exhibits 158, 161, and 162.
[23] The Applicant attempts to answer this challenge in two ways. First of all, he says that most of the exhibits referred to in his affidavit were before the Commission because he submitted them to the Investigator. Although he did not include them again in his response to the Investigation Report before the Commission, he specifically referred the Commission to those exhibits he had submitted to the Investigator.
[24] Alternatively, the Applicant says that if the Commission did not refer to and review the documentation he placed before the Investigator, and which he referred to in his response to the Investigation Report, then this does raise a matter of procedural fairness because it would mean that the Commission has failed in its general obligation to review and assess the underlying documentation included in the Complaint and placed before the Investigator.
[25] I agree with the Respondent that it is well-recognized in judicial review proceedings that the only evidence the Court should take into account is the evidence and the record that was before the decision-maker, except in limited circumstances which usually involve issues of procedural fairness, bias or jurisdiction. This position is confirmed in cases such as Lemiecha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49, (1993), 24 Imm. L.R. (2d) 95, para. 4; and Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93, at paragraph 77.
[26] None of the usual grounds for expanding the record are either alleged or present in the case before me. Thus, the issue is whether the record before the Commission, and hence the Certified Tribunal Record, can be said to include exhibit evidence that was submitted to the Investigator and which was referred to by the Applicant before the Commission.
[27] First, I see no grounds upon which the usual rules would not apply to any document that was not before the Investigator and which was not submitted to the Commission, even if it was referred to by the Applicant in his submissions in relation to the Investigation Report.
[28] As a result, the decision before me on this issue comes down to a consideration of whether the Certified Tribunal Record should be held to include exhibit evidence placed before the Investigator but only referred to by the Applicant in his submissions before the Commission.
[29] The Respondent relies upon the general jurisprudence regarding the proper record before the Court and, in particular, the words of Justice Strayer in Paul at paragraph 77:
These cases suggest that the Commission is not obliged to weigh potential evidence itself: it is entitled to rely on the investigation report and any submissions made in respect thereto by the parties, to see if it would provide a rational basis for a referral to a tribunal. Any defects in the potential evidence of witnesses can be adequately tested if and when the matter comes before the tribunal. Correspondingly where, as here, judicial review is sought of the decision to refer (and not of the investigation report) a judicial review judge is obliged to look only at the record that was before the Commission when it made the decision under review, barring special allegations going to the procedure or jurisdiction of that decision maker.
[30] I do not believe that these words meet the issue before me in the present case. The justification offered by Justice Strayer for his view that “the Commission is not obliged to weigh potential evidence itself” and is “entitled to rely on the investigation report and any submissions made in respect thereto by the parties, to see if it would provide a rational basis for a referral to a tribunal” is that “any defects in the potential evidence of witnesses can be adequately tested if and when the matter comes before the tribunal.”
[31] In the present case, and in any case where the Commission decides not to refer a complaint to the Tribunal, there is no opportunity to test evidence later, and a decision not to refer amounts to a final disposition of the Applicant’s case, subject, of course, to judicial review.
[32] It seems to me that if the Commission is entitled to rely upon the Investigator’s Report in making a decision not to refer, resulting in a final disposition of a complaint, then any flaws in that report, unless identified and rejected by the Commission, must also be flaws in the Commission’s own decision. And this means, in my view, that in seeking judicial review of that decision, an applicant must be able to attack the Investigation Report and demonstrate its flaws. This also seems to follow inevitably from Justice Strayer’s assertion in Paul that “the Commission is not obliged to weigh potential evidence itself.” If this is the case, and the Commission can render a decision not to refer by merely relying upon the Investigator’s report, reasons and recommendations, then the reality is that a reviewing Court is reviewing the Decision and the Investigation Report, so that evidence submitted to the Investigator is properly before the Court. I do not believe it is any answer to this to say, for instance, that the Applicant could have re-submitted exhibits to the Commission in his response to the Investigation Report and, because he did not do so, those exhibits are not properly before the Court because they are not part of the Certified Tribunal Record. If the Commission is “not obliged to weigh potential evidence” and “is entitled to rely on the investigation report” and is not obliged to look at defects in the potential evidence or the Investigator’s assumptions and conclusions, then when a decision not to refer comes up for review, as in this case, an applicant must be allowed to place before the Court the exhibits he placed before the Investigator. If this were not allowed, then an applicant would be deprived of the opportunity to demonstrate the flaws in an investigation report based upon evidence that the Commission is “not obliged to weigh … ” and that is the whole basis of the Commission’s decision not to defer.
[33] That being said, I believe I have to acknowledge that, on several occasions, the Federal Court and the Federal Court of Appeal have considered whether underlying documents can be considered part of the record that was before the Commission in making its decision whether to refer a matter to the Tribunal, and they have held that the record does not include any underlying documents. However, in reviewing this jurisprudence, there appears to be two different review functions in question. The first concerns a review of the Commission’s decision to refer or not to refer, based upon the Investigator’s Report. The case that is often cited as the leading authority with respect to which documents are to be considered before the Commission is Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455, 180 N.R. 152, aff’d [1995] S.C.C.A. No. 306. The Motions Judge in that decision had considered that the investigator was not independent of the Commission but conducted the investigation as an extension of the Commission (as later recognized in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392, 2005 FCA 404). Based on that fact, the Motions Judge concluded that the documents before the investigator were to be considered, in effect, before the Commission and therefore relevant to the judicial review application, and so should be produced. This finding was reversed by the Federal Court of Appeal. First, Justice Pratte held at paragraph 11 that section 44 of the Act contemplates that a decision of the Commission be made on the basis of the Investigator’s Report and the law presumes that the report of the investigator correctly summarizes all the evidence before him. Thus, unless something in the record before the Court suggests that there is a problem with the accuracy or completeness of the Investigator’s Report, there is an assumption that the report of the investigator is a faithful and complete summary. For that reason, the production of the documents would serve no purpose (para.12).
[34] Justice MacGuigan concurred with Justice Pratte and expanded further on his analysis. Justice MacGuigan found at paragraph 21 of Pathak that the Investigator and the Commission are not for all purposes merged: “All of the documents were in the Commission’s custody and of easy access, but it could not be said that they were actually before the Commission when it made its decision.” To identify what materials were before the Commission, as a matter of their decision, depends on what the Commission claims to have relied upon. Under law, only the report of the Investigator and the representations of the parties are required to be considered by the Commission. Thus, according to Justice MacGuigan at paragraph 23 of Pathak, if the Commission does not call for a document, that document cannot be said to be before it in its decision-making phase.
[35] The second review function is the review of the Investigator’s Report for procedural irregularities. In that regard, Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574, aff’d (1996), 205 N.R. 383 (F.C.A.) appears to be the leading case. In that decision, the applicant was alleging that the report itself was subject to defects in its preparation. Justice Nadon held at paragraph 50 that the investigation must be both neutral and thorough. As regards neutrality, if the Commission simply adopts an investigator’s conclusions without giving any reasons, and the conclusions were made in a manner that could be characterized as biased, a reviewable error occurs. Under this type of judicial review, matters relevant to the investigation would be admissible. However, the inquiry is focussed on the investigation itself, to determine whether it met standards of procedural fairness (see para.69).
[36] Justice Pelletier in Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580, 2003 FCA 133, held at paragraph 49 that the “right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator’s hands in the course of the investigation.” Relying on this decision, Justice de Montigny held in the recent case of Niaki v. Canada (Attorney General), 2006 FC 1104 at paragraph 27, that where there are no allegations of procedural unfairness, or where the thoroughness of the Investigator’s Report is not at stake, the Court should normally look only at the record before the Commission when it made the decision under review.
[37] In the present case, the Applicant does raise procedural deficiencies with the Investigator’s Report in his Notice of Application, but does not appear to do so directly in any further submissions. However, in my view, it is possible to regard his submissions in general as suggesting that the Investigator failed to take into account relevant evidence, and made reviewable errors of law in his findings and conclusions.
[38] There are also several cases which suggest that the record before the Court includes the underlying documents even where the issue involves only a review of the Commission’s decision. First, the Court has recognized the higher standard that applies in reviewing decisions to dismiss rather than to submit to the Tribunal for consideration. Justice Linden in Sketchley, above at paragraph 37, maintains that the investigator cannot be regarded as “[…] a mere independent witness before the Commission” and affirms that “[w]hen the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning […]”. This suggests to me that, in adopting the Investigator’s recommendations as its own, and treating them as its reasons, the Commission also adopts the Investigator’s assessment of the documentation that was before him or her. And I believe that is the situation in the present Application.
[39] Consequently, it is my view that, if exhibits in the Applicant’s affidavit were properly before the Investigator and were referred to in the response to the Investigation Report placed before the Commission, then those exhibits were part of the record upon which the Commission based its Decision and so are properly before this Court. I also believe that this approach is consistent with the view of the Federal Court of Appeal in Sketchley, at paragraphs 36-37, where the Court addressed the relationship between the Commission’s decision and the Investigator’s Report:
The applications Judge treated the analysis in the investigator’s reports as representing the Commission’s reasoning for its decision, citing the brevity of the Commission’s decision as a factor necessitating this approach at paragraph 12. The appellant argues that this treatment constitutes an error of law, as such treatment is said to negate the separate and distinct roles of the investigator and the Commission.
In my view, the appellant’s argument on this issue must fail. While it is true that the investigator and Commission do have “mostly separate identities”(Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.) at paragraph 21, per MacGuigan J.A., (Décary J.A. concurring)), it is also well-established that, for the purpose of a screening decision by the Commission pursuant to section 44(3) […] of the Act, the investigator cannot be regarded as a mere independent witness before the Commission (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at page 898 [SEPQA]). The investigator’s report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, at page 898). When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, at pages 902-903; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), at paragraph 30 (Bell Canada); Canadian Broadcasting Corp. v. Paul, (2001), 198 D.L.R. (4th) 633 (F.C.A.), at paragraph 43.
[40] In the case before me, the actual Decision of the Commission contains little in the way of reasons and obviously relies upon the reasons in the Investigation Report for not accepting the Applicant’s detailed response to that report. Second, the reality is that the Applicant is attacking the findings, conclusions and reasons in the Investigator’s Report that were accepted by the Commission without demur. Consequently, it is my view that the record before me rightly includes exhibits that were before the Investigator and that were referred to by the Applicant when he made his submissions to the Commission on the Investigation Report.
2. Standard of Review - General
[41] The parties disagree significantly on the standard of review applicable in the present case. As is usual, the Applicant believes the Decision is entitled to little deference and the Court should use a standard of correctness; the Respondent, on the other hand, believes the Decision is entitled to the maximum degree of deference embodied in the standard of patent unreasonableness.
[42] Several decisions of this Court and the Federal Court of Appeal have considered the standard of review applicable to a decision of the Commission to remit or not remit a complaint to the Tribunal for consideration, and some seem to turn on the issue of whether the issue in question is deemed one of fact or law, or mixed fact and law.
[43] The Federal Court of Appeal in Sketchley emphasised that a pragmatic and functional analysis should be undertaken with respect to each decision under review, regardless of whether the same or similar issue has been decided in a previous case. Justice Linden expressly referenced the conflicting jurisprudence on the issue of the standard of review under subsection 44(3) of the Act, some of which I have explored below, and stated at paragraph 45 that, “[s]ince different decisions call for different levels of deference, it is unsurprising that the Federal Court of Appeal has applied various standards of review to various decisions taken under subsection 44(3) of the Canadian Human Rights Act.”
[44] In Sketchley, Justice Linden held at paragraph 59 that the determination as to whether prima facie discrimination has been established in a particular complaint will in some cases be a question of mixed fact and law, and in others a question of law. Justice Linden identified a number of factors that help determine whether a question is purely legal, or is one of mixed fact and law, at paragraph 60, which I will address later.
[45] The 1998 decision of Justice Décary in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 is frequently cited for the proposition that at least some deference must be afforded decisions of the Commission to either refer a matter to the Tribunal or dismiss it outright. However, Justice Décary emphasised that decisions of the Commission on whether or not to send a matter to the Tribunal could involve various degrees of law or fact, thus supporting a contention that, in certain circumstances, the issue could be one of pure law. At paragraph 38 of Bell Canada, Justice Décary stated as follows:
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as “is satisfied”, “ought to”, “reasonably available”, “could more appropriately be dealt with”, “all the circumstances”, “considers appropriate in the circumstances” which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.) at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.(emphasis added)
[46] Furthermore, as noted by Justice Linden in Sketchley at paragraphs 79-80, less deference should be afforded to the Commission when it decides to dismiss a complaint under section 44(3)(b) and its decision is determinative of rights. In Larsh v. Canada (A.G.) (1999), 166 F.T.R. 101 at 107, 49 Imm. L.R. (2d) 2 at paragraph 36 (FCA) also, Justice Evans wrote that the Commission’s decision to dismiss complaints should be subject to greater scrutiny than decisions to refer complaints to the Tribunal because a dismissal is a final decision. However, Justice de Montigny in Public Service Alliance of Canada v. Canada (Treasury Board), [2006] 3 F.C.R. 283, 2005 FC 1297 at paragraphs 26-27 noted that nowhere in Larsh did Justice Evans say that a decision of the Commission to dismiss a complaint should always be assessed against a standard of correctness (and Justice Evans in fact applied a standard of reasonableness in Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113, see below) and what he said was dependent largely on the facts of that case. In Larsh, the applicant had made a unique argument that there was a fundamental disagreement on the facts as to an important point, and that the Commission should not be able to dismiss a complaint just because there was no independent witness to corroborate what the applicant had said.
[47] On the other hand, there have been several cases that have previously considered the standard of review applicable to Commission decisions not to submit the complaint for consideration before the Tribunal, and those decisions have tended to favour the reasonableness standard because decisions of the Commission in these matters constitute questions of mixed fact and law.
[48] For example, in Bastide v. Canada Post Corp., [2006] 2 F.C.R. 637, 2005 FC 1410, 2005 FC 1414, Justice de Montigny seems to conclude at paragraph 32 that all applications to the Commission to determine whether review by the Tribunal is warranted constitute questions of mixed fact and law because the Commission must determine if a review would be warranted by applying the legal standards to the evidence (para.33). In fact, Justice de Montigny affirmed this in Niaki, where he concluded at paragraph 31 as follows:
It is no doubt true that different decisions call for different levels of deference. As a matter of principle, a court reviewing a decision made pursuant to section 44(3) of the Act must apply the pragmatic and functional approach anew instead of relying on precedents. That being said, this exercise has been done in the recent past by a number of my colleagues and by the Federal Court of Appeal, and there is a large consensus that the general standard of review to be applied in a case like this is reasonableness.
[49] Justice O’Keefe came to a similar conclusion in MacLean v. Marine Atlantic (2003), 243 F.T.R. 219, 2003 FC 1459 at paragraphs 41-42, and he also concluded that the appropriate standard of review was reasonableness.
[50] Justice de Montigny, in Bastide, also listed several recent cases where the Federal Court and Federal Court of Appeal have held that the applicable standard is reasonableness (paras.34-35). For instance, in Tahmourpour, Justice Evans held that the reasonableness standard applied in response to a complaint that involved, in part, a claim of harassment (para. 6), even though he did not engage in a pragmatic and functional analysis.
[51] On the other hand, the Respondent has pointed to several cases, including Horn v. Canada (Attorney General) (2005), 274 F.T.R. 254, 2005 FC 726, Pezzente v. Rogers Communications Inc., 2005 FC 953 and McConnell v. Canada (Canadian Human Rights Commission), 2004 FC 817, aff’d 2005 FCA 389, which have found the applicable standard of review to be patent unreasonableness. In my view, however, these cases seem to be the exception and not the norm; in none of them was a pragmatic or functional analysis undertaken.
[52] Against this background, it is my view that the Federal Court of Appeal in Sketchley has provided general guidance on standard of review issues with respect to a decision of the Commission under section 44(3) of the Act at paras. 44-51:
…
Counsel referred the Court to seemingly contradictory decisions by this Court concerning the appropriate standard of review to be applied with respect to a decision of the Commission under section 44(3) of the Act regarding whether or not to refer a complaint to a Tribunal. While some of the jurisprudence has applied the standard of reasonableness simpliciter (Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 at para. 9 (F.C.A.), Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4 at para. 13 (F.C.A.) Singh v. Canada (Attorney General) (2002), 291 N.R. 365, 2002 FCA 247 at para.7 (F.C.A.) [Singh], Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113 at para.6 (F.C.A.) [Tahmourpour], Gardner v. Canada (Attorney Gener