Attaran v. Canada (Attorney General)

Attaran v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-11-06
Neutral citation
2013 FC 1132
File numbers
T-666-12
Decision Content
Date: 20131106
Docket:
T-666-12
Citation: 2013 FC 1132
Ottawa, Ontario, November 6, 2013
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
AMIR ATTARAN
Applicant
And
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (Commission) dated February 22, 2012 dismissing the Applicant’s complaint, made pursuant to Section 40 of the Canadian Human Rights Act, RSC, 1985, c H-6 (CHRA), that Citizenship and Immigration Canada’s (CIC) processing time for the sponsorship of permanent resident applications for parents or grandparents was discriminatory. This judicial review is brought pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
Background
[2] The Applicant is a Canadian citizen. On July 9, 2009, he filed an application with CIC to sponsor his parents, who are American citizens living in California, to immigrate to Canada. Unsatisfied with CIC’s response time, on July 28, 2010, he filed a complaint with the Commission (CHRC Complaint).
[3] The CHRC Complaint made two principal allegations of systemic discrimination based on age and family status:
• CIC discriminates between sponsorship applications on the basis of age. Individuals seeking to enter Canada are required to pass a medical exam, however, this was prejudicial to the Applicant’s parents because they could develop an age-related illness during the lengthy processing period and consequently become inadmissible for medical reasons. This is not the situation for other members of the family class who are younger or whose applications are processed more quickly;
• The time CIC takes to process sponsorship applications for parents and grandparents means that the Applicant must wait much longer to be reunited with his parents, his only blood relatives, than would individuals seeking to sponsor other relatives, who are their only blood relatives. This produces discrimination on the basis of family status.
[4] At the time of the Applicant’s complaint, CIC aimed to process sponsorship applications for parents and grandparents within 37 months, as opposed to 42 days to process applications for spouses, dependent children and “other relatives” and on a daily basis for adopted children and orphans.
[5] On August 30, 2010, the Commission commenced its investigation into the Applicant’s complaint. On November 5, 2010, CIC provided the investigator, Ms. Belanger, with a written response to the complaint which the Commission provided to the Applicant on November 12, 2010. The Applicant provided the investigator with his response to CIC’s submissions on December 6, 2010. As Ms. Belanger was unable to continue the investigation, a new investigator, Ms. Murkami was assigned in July 2011. The Applicant provided additional written submissions to the investigator on February 7, 2011 and August 12, 2011.
[6] The Commission delivered a copy of the investigator’s report to the parties on November 15, 2011which recommended that the Commission dismiss the complaint pursuant to subsection 44(3)(b)(i) of the CHRA, as, having regard to all of the circumstances, an inquiry was not warranted. The investigator considered two main issues: (1) the alleged differential treatment in the provision of services; and (2) the alleged systemic discrimination.
[7] As to the first issue, the investigator first considered whether CIC had engaged in differential and discriminatory treatment, and, if so, whether there was a reasonable explanation for its actions which was not a pretext for discrimination on a prohibited ground. The investigator concluded that CIC did appear to be treating the Applicant and others who sponsor parents and grandparents for permanent residency in Canada differently based on family status.
[8] As regards to medical exams, the investigator found that parents and grandparents were required to complete the medical exam later in the sponsorship application process than were other members of the family class. To obtain a permanent resident visa, all applicants are required to have a medical certificate that is valid at the time of landing, medical certificates are only valid for 12 months. Because the sponsorship processing time for parents and grandparents took longer than for other members of the family class, and longer than 12 months, there was no point in having them complete their medicals at the beginning of that process.
[9] As to sponsorship processing times, the investigator found that CIC was treating the Applicant, and others who sponsored parents and grandparents, differently based on family status. However, the investigator accepted CIC’s explanation that the Government of Canada sets targets for how many immigrants, and from what groups, it will permit entrance into Canada each year. Further, that the “Immigration Levels Plan”, approved by Cabinet, guides CIC’s decisions pertaining to coordinating and processing of annual applications. CIC aligns its operations, to the extent possible, with projected admissions, and by extension, the budget allocated to it annually to deliver the immigration program. Given this, and the volume of family class applications, it was necessary for CIC to make a policy decision to prioritize applications within the different subcategories of the family class.
[10] The investigation report found that CIC did not discriminate against the Applicant based on age because age was the personal characteristic of his parents and not of himself.
[11] The investigator also dismissed the Applicant’s alleged systemic discrimination complaint as it found that, while it may take longer, CIC’s practices did not deprive or tend to deprive the sponsor’s parents or grandparents from access to permanent resident visas. Further, the evidence indicated that CIC provided a reasonable explanation for the manner in which it prioritized the processing of family class applications.
[12] The Applicant responded to the investigation report on December 11, 2011 asserting that the investigator had erred by: (1) incorrectly characterizing the service at issue; (2) failing to investigate and report on the prioritization of “other relatives” in the family class; (3) accepting that the Respondent’s defence was reasonable without substantiating evidence; (4) failing to infer systemic discrimination based on the Respondent’s uncontested admissions; (5) failing to consider discrimination on the basis of age; and (6) violating procedural fairness.
[13] CIC submitted its response on December 12, 2011, reiterating that Parliament, the Minister of CIC and the Department establish processes and procedures that best give effect to the balance required by the Government of Canada to meet the objectives set out in subsection 3(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA) and the Immigration and Refugee Protection Regulations (SOR/2002-227) (the IRPA Regulations). CIC’s submissions also noted a plan announced by the Minister on November 4, 2011 to address the backlog of permanent resident applications of parent and grandparents.
[14] The Commission “cross-disclosed” the submissions to the parties on December 21, 2011. The Applicant provided the Commission with his response to the cross-disclosure as required on January 9, 2012. The Commission provided CIC with an extension to provide its response which it did on January 20, 2012, three days after the Commission had released the Applicant’s submission to CIC. The Applicant provided the Commission with a final set of written submissions setting out his procedural concerns on January 23, 2012.
Commission’s Decision
[15] On February 22, 2012, the Commission, accepted the investigator’s report and set out its reasons for dismissing the Applicant’s complaint (Decision). That Decision is the subject of the present judicial review.
[16] These were summarized by the Commission in its covering letter dated March 2, 2012 as follows:
○ it did not appear that CIC had treated the Applicant in an adverse differential manner based on age;
○ CIC had provided a reasonable explanation for its processing of the sponsorship applications of children and spouses more quickly than those for parents or grandparents;
○ CIC’s practices did not deprive, or tend to deprive, an individual or class of individuals of access to permanent resident visas for parents and grandparents; and
○ having regard to all of the circumstances of the complaint, an inquiry by a Tribunal was not warranted.
[17] The Commission found that at the core of the Applicant’s discrimination complaint was an allegation that CIC processes applications to sponsor parents or grandparents as permanent residents more slowly than it does applications to sponsor other categories of immigrants such as children or spouses. The Commission found that CIC’s practice adversely differentiates against sponsorship applicants such as the Applicant on the basis of family status and age. However, it accepted CIC’s explanation that the source of the differential treatment resided in the Minister’s exercise of discretion in managing the flow of immigration to Canada by establishing levels for each category of immigrant as being reasonable and non-pretextual.
[18] In response to the Applicant’s submission that the investigator incorrectly characterized his discrimination complaint for the provision of a “sponsorship service” as the “processing of permanent residency visa applicants for parents and grandparents of Canadian sponsors”, the Commission noted that sponsorship applications or services are not stand-alone services. The sponsorship and permanent resident applications are both steps in processing permanent residency visa applicants.
[19] The Commission acknowledged that the investigator did not address the Applicant’s allegation that applications to sponsor “other relatives”, such as aunts and uncles, receive priority. However, it found that, as submitted by CIC, “other relatives” may only form part of the family class in certain limited circumstances which did not apply to the Applicant’s situation. Furthermore, the number of such applications vis-à-vis the total number of family class applications was so small that a comparison was of limited value. And, in any event, any prioritization, whether within the family class or resulting from age, arises from ministerial discretion.
[20] Similarly, the Commission accepted CIC’s explanation in response to the allegation of systemic discrimination resulting from the combined effect of prioritization within the family class and the requirement that all applicants have a medical examination completed in the twelve months prior to their landing. Specifically, this was a result of ministerial discretion in managing the flow of immigrants into Canada by setting levels for the various categories of immigrants. The Commission noted that the Applicant did not directly challenge the Minister’s authority to exercise such discretion.
[21] In response to the Applicant’s procedural fairness concerns, the Commission found that all administrative irregularities had been corrected and that the Applicant had been afforded every opportunity to put forward his case. Procedural fairness did not require that the Applicant be provided with copies of CIC’s documents. Rather that he be made aware of the substance of the evidence and arguments. Throughout the investigation the Applicant had been made aware of CIC’s position and was fully able to address it.
[22] Finally, the Commission found that CIC’s announcement on November 4, 2011, of its “Action Plan for Faster Family Reunification,” squarely addressed the issues raised in the complaint.
Legislative Background
[23] Because this application touches on the IRPA, the IRPA Regulations, the CHRA and their interaction, it is useful at the outset to briefly set out the relevant legislative provisions.
The IRPA
[24] Section 94 of the IRPA requires the Minister to table a report on the operation of the IRPA in the preceding calendar year. The report includes a description of instructions given under section 87.3 and other activities and initiatives taken concerning the selection of foreign nationals, the number of foreign nationals who became permanent residents and the number projected to become permanent residents in the following year.
[25] Section 87.3(2) provides that the processing of applications is to be “conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.” For this purpose, the Minister may give instructions with respect to processing applications, including:
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
[26] Subsection 87.3(7) states that nothing in that section in any way limits the power of the Minister to otherwise determine the most efficient means in which to administer the IRPA.
[27] Section 12 creates three classes of immigrants who may seek to become permanent residents in Canada: the economic class, the refugee class, and the family class. A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. Subsection 13(1) permits Canadian citizens or permanent residents, subject to the regulations, to sponsor a foreign national who is a member of the family class. Section 16(2)(b) requires foreign nationals to submit to a medical examination.
[28] Section 14 permits the making of regulations governing the processing of permanent residency applications:
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting
(a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
(c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
(e) sponsorships, undertakings, and penalties for failure to comply with undertakings;
(f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister; and
(g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor.
14. (1) Les règlements régissent l’application de la présente section et définissent, pour l’application de la présente loi, les termes qui y sont employés.
(2) Ils établissent et régissent les catégories de résidents permanents ou d’étrangers, dont celles visées à l’article 12, et portent notamment sur :
a) les critères applicables aux diverses catégories, et les méthodes ou, le cas échéant, les grilles d’appréciation et de pondération de tout ou partie de ces critères, ainsi que les cas où l’agent peut substituer aux critères son appréciation de la capacité de l’étranger à réussir son établissement économique au Canada;
b) la demande, la délivrance et le refus de délivrance de visas et autres documents pour les étrangers et les membres de leur famille;
c) le nombre de demandes à traiter et dont il peut être disposé et celui de visas ou autres documents à accorder par an, ainsi que les mesures à prendre en cas de dépassement;
d) les conditions qui peuvent ou doivent être, quant aux résidents permanents et aux étrangers, imposées, modifiées ou levées, individuellement ou par catégorie;
e) le parrainage, les engagements ainsi que la sanction de leur inobservation;
f) les garanties à remettre au ministre pour le respect des obligations découlant de la présente loi;
g) les affaires sur lesquelles les personnes ou organismes désignés devront ou pourront statuer ou faire des recommandations au ministre sur les étrangers ou les répondants.
The IRPA Regulations
[29] Subsection 30(1) of the IRPA Regulations addresses the requirement for a medical certificate based on the most recent examination within the previous 12 months for foreign nationals applying for permanent residency.
[30] Subsection 70(1) states that an officer shall issue a permanent resident visa to a foreign national if the listed requirements in that subsection are met. It also establishes the three classes for permanent residents being the family class, economic class and Convention refugees.
[31] Section 72 addresses how foreign nationals become permanent residents in Canada. One of those requirements is to meet the selection criteria and requirements for the class in which they applied.
[32] Sections 116 and 117 define and set out the family class as follows:
116. For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor's mother or father;
(d) the mother or father of the sponsor's mother or father;
(e) [Repealed, SOR/2005-61, s. 3]
(f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or common-law partner and who is
(i) a child of the sponsor's mother or father,
(ii) a child of a child of the sponsor's mother or father, or
(iii) a child of the sponsor's child;
(g) a person under 18 years of age whom the sponsor intends to adopt in Canada if . . .
(h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor
116. Pour l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement familial est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues à la présente section.
117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les étrangers suivants :
a) son époux, conjoint de fait ou partenaire conjugal;
b) ses enfants à charge;
c) ses parents;
d) les parents de l’un ou l’autre de ses parents;
e) [Abrogé, DORS/2005-61, art. 3]
f) s’ils sont âgés de moins de dix-huit ans, si leurs parents sont décédés et s’ils n’ont pas d’époux ni de conjoint de fait :
(i) les enfants de l’un ou l’autre des parents du répondant,
(ii) les enfants des enfants de l’un ou l’autre de ses parents,
(iii) les enfants de ses enfants;
g) la personne âgée de moins de dix-huit ans que le répondant veut adopter au Canada, si les conditions suivantes sont réunies : . . .
h) tout autre membre de sa parenté, sans égard à son âge, à défaut d’époux, de conjoint de fait, de partenaire conjugal, d’enfant, de parents, de membre de sa famille qui est l’enfant de l’un ou l’autre de ses parents, de membre de sa famille qui est l’enfant d’un enfant de l’un ou l’autre de ses parents, de parents de l’un ou l’autre de ses parents ou de membre de sa famille qui est l’enfant de l’un ou l’autre des parents de l’un ou l’autre de ses parents, qui est :
(i) soit un citoyen canadien, un Indien ou un résident permanent,
(ii) soit une personne susceptible de voir sa demande d’entrée et de séjour au Canada à titre de résident permanent par ailleurs parrainée par le répondant.
The CHRA
[33] Subsection 3(1) of the CHRA sets out prohibited grounds of discrimination, which include age and family status. Section 5 states that it is a discriminatory practice to deny or deny access to the provision of goods, services, facilities or accommodations customarily available to the general public to any individual or to differentiate adversely in relation to any individual on a prohibited ground of discrimination.
[34] It is not a discriminatory practice if there is a bona fide justification for that denial or differentiation (subsection 15(1)(g)). For any such practice to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs considering health, safety and cost (subsection 15(2)).
[35] Any person who believes another party has engaged in a discriminatory practice may file a complaint with the Commission (section 40). Once a discrimination complaint is filed, the Commission may designate an investigator to investigate the complaint (section 43). The investigator is required to submit a report of its findings to the Commission (subsection 44(1)). Upon receipt of that report, Commission has the discretion to dismiss a complaint if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted (subsection 44(3)(b)(i)). That is what occurred in this case.
Issues
[36] The Applicant submits that the issues are as follows:
i) Did the Commission err in not investigating that sponsors of parents have their applications processed more slowly than sponsors of “other relatives” of similarly advanced age?
ii) Did the Commission err in accepting the bald assertion that the discrimination is unavoidable because of scarce resources?
iii) Did the Commission err in reasoning that ministerial discretion exercised in the control of immigration trumps the CHRA?
iv) Does the Commission’s withholding of submissions breach procedural fairness?
[37] The Respondent submits that the issues are:
i) Is the Application moot?
ii) If not, then:
(a) Was the Decision reasonable?
(b) Was the Decision procedurally fair?
[38] In my view, the issues should be reframed as follows
i) Is the Application moot?
ii) Did the Commission exceed its jurisdiction?
iii) Was the Decision, including the investigation, procedurally fair?
iv) Was the Decision reasonable?
Standard of Review
[39] Where previous jurisprudence has satisfactorily determined the appropriate standard of review applicable to a particular issue, that standard may be adopted by a subsequent reviewing court (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 57, 62 [Dunsmuir]). The standard of review on grounds challenging the Commission’s lack of procedural fairness and exercise of jurisdiction is correctness (Ayangma v Canada (Attorney General), 2012 FCA 213 at para 56; Dunsmuir, above, at para 59; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53 [Sketchley]). Therefore, the second and third issues are to be reviewed on a correctness standard including the Applicant’s submission that the Commission went beyond its screening role which is a question of jurisdiction.
[40] The standard of review applied to the fact-finding and discretion of the Commission to dismiss a complaint is reasonableness (Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at para 6 [Tahmourpour]; Wu v Royal Bank of Canada, 2010 FC 307 at para 20). The Applicant’s submission that the Commission exceeded its jurisdiction by dismissing his complaint, on the basis of ministerial discretion, is not a question of jurisdiction. Rather, it involves the Commission’s discretion to refer a complaint to the Tribunal or to dismiss it. This is a question of fact and law to be reviewed on the reasonableness standard (Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227 (SCC) at 233; Big River First Nation v Dodwell, 2012 FC 766 at para 36 [Big River]; Alliance Pipeline Ltd v Smith, 2011 SCC 7, [2011] 1 SCR 160 at para 36; Dunsmuir, above, at para 51).
Argument and Analysis
i) Is the Application moot?
[41] As a preliminary issue, the Respondent submits that this application is moot as there is no longer a live controversy between the parties. That is because on November 4, 2011, subsequent to the Applicant filing his complaint on August 11, 2010, the Government of Canada announced its intention to significantly change the way it processes applications for sponsored parents and grandparents which includes increasing by 60% the number of sponsored parents and grandparents it will admit in 2012; introducing a parent and grandparent super visa that would allow sponsored applicants to remain in Canada for 24 months at a time without renewing their visa; consulting with Canadians on how to redesign the parents and grandparents program; and, a pause of up to 24 months on the acceptance of new parent and grandparent sponsorship applications. In addition, the Applicant’s sponsorship application progressed to the second phase on March 30, 2012, meaning that his sponsorship application had been processed and his parents had been invited to submit their applications for permanent resident visas.
[42] The Respondent submits that the relief sought by the Applicant would amount to an order requiring the CHRC to investigate a practice that no longer exists. Further, that the processing delay effecting the Applicant personally has now lapsed.
[43] When appearing before me, the Applicant submitted that other sponsors of parents and grandparents are still awaiting the processing of their applications. Accordingly, differences in processing times remains a live issue for them. Nor is there evidence to show that the processing times have changed as a result of the November 4, 2011 policy changes.
Analysis
[44] In Borowski v Canada (Attorney General), [1989] 1 SCR 342, the Supreme Court of Canada stated that the doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. “The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline the case.” If, subsequent to the commencement of the proceeding, “events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.”
[45] The Court outlined a two-step approach to determine whether a case is moot. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, then it is necessary to decide if the court should, regardless, exercise its discretion to hear the case. The Court considered a case to be moot if it failed to meet the live controversy test. The Court also set out the factors to be considered in determining whether to exercise the discretion to hear a case in any event.
[46] In this matter, the initial complaint of the Applicant was that the difference in CIC’s sponsorship processing times discriminated against his sponsorship of his parents based on age and family status. In my view, because his sponsorship application has now been processed, as between the Applicant personally and CIC, there is no longer a live controversy.
[47] However, the Applicant also submitted in his complaint that this was systemic discrimination. In that regard, while the Government of Canada subsequently made changes to the manner in which applications for sponsored parents and grandparents are processed, the Respondent has not pointed to any evidence which would indicate that the processing times are significantly changed and that, in turn, these changes significantly affected the difference in processing times as between the various subcategories of relatives within the family class. Accordingly, the substance of the initial systemic discrimination complaint remains a live issue and the application is not moot.
ii) Did the Commission exceed its jurisdiction?
Applicant’s Position
[48] The Applicant submits that the Commission made a jurisdictional error by going beyond its screening role and deciding that “the exercise of discretion by the Minister of CIC in managing the flow of immigration to Canada” constituted a reasonable and non-pretextual explanation for the discrimination complaint. According to the Applicant, the Commission acted contrary to Bell v Canada (Canadian Human Rights Commission), [1996] 3 SCR 854 at para 53, sub nom Cooper v Canada (Canadian Human Rights Commission) [Cooper], which states that adjudicating a question of law is outside the Commission’s jurisdiction.
Respondent’s Position
[49] The Respondent submits that when the Commission dismissed the Applicant’s complaint, it was not determining a question of law. Rather, it made an administrative decision that falls squarely within its jurisdiction pursuant to section 44 of the CHRA. Dismissing a complaint on the grounds that no further inquiry is warranted does not amount to determining a question of law as was intended in Cooper, above. That case stands principally for the proposition that an administrative tribunal such as the Commission does not have the jurisdiction to determine general questions of law, such as the constitutionality of its own enabling statute.
Analysis
[50] In my view, considering the Decision in whole and the role of the Commission as set out in the CHRA, the Applicant’s jurisdictional arguments cannot succeed.
[51] The jurisprudence is clear that when deciding whether a complaint should proceed to a Tribunal, the Commission is to conduct only a screening analysis. It is not the function of the Commission to determine if the complaint is made out. Rather, its role is to decide if, under the provisions of the CHRA, an inquiry is warranted having regard to all of the facts. The central component of this role is assessing the sufficiency of the evidence before it (Cooper, above, at para 53; Herbert v Canada (Attorney General), 2008 FC 969 at para 16 [Herbert]; Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission), [1989] 2 SCR 879 at p 899 [SEPQA]). Put otherwise, “The Commission’s role is very modest: it is not to determine whether the complaint has merit, but, rather, whether an inquiry is warranted having regard to all of the facts” (Coupal v Canada (Attorney General), [2006] FCJ No 325 (TD) (QL) at para 12 [Coupal]).
[52] However, the Courts have also repeatedly recognized that in performing its screening role, the Commission has a very broad discretion to decide, having regard to all of the circumstances, whether an inquiry is warranted or to dismiss a complaint under section 43 of the CHRA (Herbert, above, at para 18; Tahmourpour, at para 6; Big River First Nation, above, at para 82; Slattery v Canada (Human Rights Commission), [1994] FCJ No 181 (TD)(QL), aff’d [1996] FCJ No 385, (CA) (QL) [Slattery]).
[53] In this case, having reviewed the allegations and the evidence, the investigator concluded that it did not appear that the complaint warranted further inquiry. Therefore, it recommended, pursuant subsection 44(3)(b)(i) of the CHRA, that the Commission dismiss the complaint. The Commission adopted the investigator’s recommendations and also provided its own reasons in the Decision.
[54] The Commission did not do more than screen the complaint and determine that it should be dismissed. The investigation had to consider the sufficiency of the evidence including whether CIC had a bona fide justification for the longer processing times for sponsorships of parents and grandparents. The investigation dealt with ministerial discretion because it informed the issue of bona fide justification i.e. whether it offered a reasonable explanation for the longer processing times that was not a pre-text for a prohibited ground of discrimination. The investigator recommended dismissing the complaint pursuant to section 43(3)(b)(i), in part, because CIC provided such an explanation.
[55] I do not think that Cooper, above, assists the Applicant with its argument that, by accepting CIC’s explanation for the differential treatment, being ministerial discretion, the Commission made a decision of law and thereby exceeded its jurisdiction. In Cooper, the issue was whether the CHRC or a tribunal appointed by it to investigate a complaint had the power to determine the constitutionality of a provision of their enabling statute, the CHRA. The Supreme Court found that the Commission has the power to interpret and apply its own enabling statute, but does not have jurisdiction to address general questions of law. The distinction between the two is illustrated by its finding that “The power to refuse to accept a complaint, or to turn down an application, or to refuse to do one of the countless duties that administrative bodies are charged with, does not amount to a power to determine questions of law…” (Cooper, above, at para 55).
[56] At para 49, the Court also succinctly described the scheme of the CHRA complaint process:
[49] …On receiving a complaint the Commission appoints an investigator to investigate and prepare a report of its findings for the Commission (ss.43 and 44(1)). On receiving the investigator’s report, the Commission may, after inviting comments on the report by the parties involved, take steps to appoint a tribunal to inquire into the complaint if having regard to all of the circumstances of the complaint it believes an inquiry is warranted (ss. 44(3)(a)). Alternatively the Commission can dismiss the complaint….”
Based on Cooper, and sections 43 and 44 of the CHRA, it is clear that the Commission has the jurisdiction to dismiss a complaint if it determines, on the facts, that further inquiry is not warranted and that such a determination is not a question of law.
[57] The Commission adopted the recommendations, including CIC’s explanation of the differential treatment. Having regard to all of the circumstances, it dismissed the complaint finding that an inquiry by a tribunal was not warranted. There is no suggestion in the reasons that the Commission weighed the evidence to reach a conclusion on the merits of the complaint or that its determination went beyond the question of whether or not there was a reasonable basis, on the evidence, for proceeding to the next stage at the tribunal (SEPQA, above at p 899-900; Mercier v Canada (Human Rights Commission), [1994] FCJ No 361 (CA) (QL) at para 13 [Mercier]). In short, it did not make a final determination about the complaint’s ultimate success or failure and it did not adjudicate the claim.
[58] The Decision was an administrative decision that falls squarely within the Commission’s jurisdiction. The nub of the Applicant’s concerns are, in my view, more closely connected to the reasonableness of the Decision in accepting the CIC explanation of ministerial discretion, rather than the matters of jurisdiction that it has raised.
iii) Was the Decision, including the investigation, procedurally fair?
[59] The Applicant submits that the Commission’s investigation was flawed for two principal reasons: the investigator made errors in the way it handled document disclosure both before and after the investigation report; and, the investigation was not thorough and neutral. The Respondent submits that the Decision was procedurally fair as it provided adequate disclosure and was based on a thorough investigation.
Disclosure
Applicant’s Position
[60] The Applicant submits that the Commission withheld some of CIC’s written submissions which deprived the Applicant of his right of reply. At the pre-investigation report stage the documents that were not disclosed were a March 3, 2011, modified version of CIC’s November 5, 2010 original response to the complaint, and, an October 21, 2011, letter from the CIC to the Commission responding to certain questions posed by the investigator.
[61] The Applicant submits that disclosure of actual submissions is mandatory when they contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the investigation stage (Mercier, above, at para 18). Further, that this is equally applicable to the pre-investigation report stage and that the Commission’s operating procedures indicate that its disclosure obligation is ongoing.
[62] The Applicant also submits that at the post-investigation report stage, CIC had a “sneak peak” of his cross-disclosure submissions which it received from the Commission after being provided with an extension to file its own cross-disclosure response. CIC filed its submissions three days after receiving the Applicant’s submissions and used this procedural advantage by tailoring its reply to include new evidence in the form of a statistical table showing the number of sponsored “other relatives” as being small compared to other groups within the family class. The lack of disclosure of this table deprived the Applicant of the ability to respond. The Commission clearly relied on this new evidence because it stated in its Decision that the number of applications for other relatives as compared to the whole of the family class applications and to the number of parent and grandparent applications was so small that a comparison was of limited value.
[63] The Applicant also submits that the Court should revisit the Commission’s disclosure practices and provide the Commission with guidance.
Respondent’s Position
[64] The Respondent submits that procedural fairness does not require the Commission to “systematically disclose” every document to a complainant (Mercier, above, at para 18). Disclosure will be found to be adequate when the Commission enables a complainant to be aware of the opposite sides’ position. In this case, the Applicant was not deprived of his ability to respond as there was no issue in either of the two questioned pre-investigation report documents that was not fully disclosed in the record available to the Applicant when final submissions were being made to the Commission. Further, the Applic