MTS Inc. v. Eadie

MTS Inc. v. Eadie
Court (s) Database
Federal Court Decisions
Date
2014-01-17
Neutral citation
2014 FC 61
File numbers
T-1057-12
Decision Content
Date: 20140117
Docket:
T-1057-12
Citation: 2014 FC 61
Ottawa, Ontario, January 17, 2014
PRESENT: The Honourable Mr. Justice Annis
BETWEEN:
MTS INC.
Applicant
and
ROSS EADIE
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION,
SHAW COMMUNICATIONS INC., COGECO CABLE INC., ROGERS COMMUNICATIONS PARTNERSHIP, BCE INC., TELUS COMMUNICATIONS COMPANY, AND QUEBECOR MEDIA INC.
Interveners
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a decision made by the Canadian Human Rights Commission [CHRC] on April 25, 2012 referring a complaint brought before it, Eadie v Manitoba Telecom Services Inc, CHRC File 20071547, to the Canadian Human Rights Tribunal [CHRT].
[2] The applicant, Manitoba Telecom Services, Inc [MTS], is a Broadcasting Distribution Undertaking [BDU] licensed by the Canadian Radio-television and Telecommunications Commission [CRTC] to provide services to the public. The respondent, Mr Eadie, is one of its television customers, a subscriber to the “Ultimate TV” service.
[3] The CHRC, Shaw Communications, Inc [Shaw], Cogeco Cable Inc [Cogeco], Rogers Communications Partnership [Rogers], BCE Inc [BCE], Telus Communications Company [Telus], and Quebecor Media Inc [Quebecor], requested and were granted status as interveners on the issue of jurisdiction, with the telecommunications interveners filing their submissions jointly.
[4] For the reasons which follow, the application is allowed.
II. Background facts
[5] Mr Eadie filed a complaint with the CHRC on October 22, 2007, alleging discrimination contrary to section 5 of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA] in respect to the availability of services, equipment, and software which would increase accessibility for individuals with a vision disability.
[6] He explained that MTS provided to him, for a fee regulated by the Canadian Radio-television and Telecommunications Commission, a digital television broadcasting service. He complained that: (i) MTS was not passing through descriptive video services [DVS] to customers; (ii) that MTS equipment and software used to provide services (i.e. the set-top box or “STB”) did not include a “one-button” means of turning descriptive video on or off which a non-sighted person could use; and (iii) that the STB did not provide audible cues permitting a non-sighted person to use the menus for the interactive programming guide (also referred to as an electronic programming guide [EPG]). Only the last item remains in dispute between the parties, the other two having been resolved during procedures before the CRTC.
[7] MTS replied that its equipment and software were manufactured by Motorola and it was not possible to upgrade this technology to provide audible cues for blind people. Mr Eadie alleged that this constituted discrimination, as visually handicapped customers were denied services that could be made available.
[8] The CHRC investigated this complaint. The applicant argued during the investigation that the CHRC should decline jurisdiction, because, as provided for in section 41(1)(b) of the CHRA, the complaint would be more appropriately addressed by means of a procedure provided for under another Act.
[9] Specifically, MTS argued that the complaint fell more properly under the jurisdiction of the CRTC, pursuant to the Broadcasting Act, SC 1991, c 11 [Broadcasting Act], and the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure, SOR/2010-277 [CRTC Rules of Practice and Procedure]. The CRTC’s mandate includes ensuring programming accessibility for disabled persons, and procedures are provided for making rules and policies and for dealing with customer complaints. .
[10] Furthermore, the MTS Director of Broadband Product Marketing provided an affidavit demonstrating that the CHRC received a virtually identical subscriber complaint [the “DE Complaint”] two weeks later, on November 2, 2007, which it declined to pursue on the grounds that there was a suitable complaints process available through the CRTC. In addition, the intervening party Rogers provided an affidavit enclosing another very similar complaint filed in December 2007 [the “Rogers Complaint] relating to access to a digital pay-for-view service for a visually disabled person, which the CHRC had also declined to deal with, pursuant to paragraph 41(1)(b) of the CHRA.
[11] On June 10, 2008, the CRTC issued Notice of Public Hearing 2008-8, “Notice of Consultation – Unresolved issues related to the accessibility of telecommunications and broadcasting services to persons with disabilities”. Included in the Notice of Consultation were the following paragraphs:
5. The Canadian broadcasting policy objectives include the development and safeguarding of a Canadian broadcasting system that serves the needs and interests and reflects the circumstances and aspirations of Canadian men, women, and children, including equal rights, as well as providing programming accessible by persons with disabilities, as resources become available for that purpose.
6. The Commission has issued many determinations with the goal of reducing the obstacles to the delivery and receipt of communication services and improving the accessibility of these services to persons with disabilities.
[. . .]
15. To assist in increasing the awareness of the issues faced by persons with disabilities with respect to telecommunications and broadcasting services, the Commission hired an independent consultant to produce a report on these issues. The report, Stakeholder Consultations on Accessibility Issues for Persons with Disabilities, dated April 2008, represents the views of the consultant, not the Commission, and does not dictate the outcome of this proceeding.
16. The Commission notes that it does not regulate terminal equipment or the design and manufacture of communications devices intended for accessing telecommunication or broadcasting services. Accordingly, the Commission invites comments on which measures, short of regulating terminal equipment, would improve the accessibility of telecommunications and broadcasting services to persons with disabilities.
[12] The BDUs were directed by the CRTC to identify for persons who are blind and visually impaired all of the fully accessible devices (and where applicable, the software that would make the devices fully accessible) which could provide access to broadcasting and telecommunications services and would not require prohibitive network modifications. This included, at a minimum, set-top boxes and wireless devices. For each device or software, they were to provide a detailed description of its functionalities, the manufacturer and where it could be obtained.
[13] The CRTC invited participation by the public through written submissions and oral presentations at hearings on access issues. Mr Eadie provided both written and oral representations. He indicated at that time that he was not familiar with any accessible software or hardware for set-top terminals on digital broadcast systems. He requested that the CRTC adopt policies directing the BDUs and broadcast system to “pay some intelligent programmers to invent the voice output for the broadcast system, similar to the voice output now available for cell phones.”
[14] At no time did Mr Eadie file a complaint with the CRTC, although a complaint procedure is available under Part 2 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure, SOR/2010-277.
[15] Despite the ongoing CRTC inquiry, in November 2008 the CHRC decided that it would proceed with Mr Eadie’s complaint, on the basis that the CRTC procedure was “not reasonably available to him in that he did not have full access to it”. On December 4, 2008, the applicant wrote to the Commission asking it to reconsider its decision on the basis that the initial CHRC decision on jurisdiction was incorrect, in that the CRTC proceedings were available to the respondent who had in fact actively participated in the CRTC public hearing proceedings both orally and in writing. The Commission received submissions on this point from Mr Eadie and from MTS. On June 17, 2009, it upheld its decision to deal with the complaint, this time providing as the reason its view that any CRTC proceedings “will not be able to deal with all of the human rights issues that are in dispute.”
[16] On July 21, 2009, as a result of the public hearing and consultations, the CHRT issued Broadcasting and Telecom Regulatory Policy CRTC 2009-430 [the Accessibility Policy]. In developing this policy the CRTC indicated that it had “utilized leading Canadian human rights principles that recognize that equality is a fundamental value and central component of the public interest.” The policy required all BDUs, as a condition of licence renewal, to pass through the described video of all programming services and to provide a means of turning the described video programming on or off that did not require visual acuity – a “one-button” solution. The Accessibility Policy therefore resolved the first two allegations of discrimination. The only issue remaining to be heard was the third one; the lack of audible cues to permit blind subscribers to access and use the interactive programming guide.
[17] The CRTC did not include any licensing conditions related to the issue of audible cues in the Accessibility Policy. With respect to this issue the CRTC stated at para 120 of its report that it: “further encourages BDUs to continue to work with vendors to develop set-top box software that provides increased font sizes, audio prompts or other audio information.” It described its expectations regarding further developments of electronic program guides [EPG] at para 122 as follows:
Accordingly, the commission expects:
[. . .]
licensees of BDUs to develop one or more means of identifying programming with described video in their electronic program guides. This could include an audio tone, a visual indicator, or the offer of an audio electronic program guide.
[18] The CRTC also established the Described Video Working Group [DV Working Group] to work on issues related to subscriber access by the vision disability community to described video. The DV Working Group included representatives both from the broadcasting and distribution sectors and from organizations which provide services to the blind, such as the Canadian National Institute for the Blind, the Canadian Council for the Blind, the Alliance for Equality of Blind Canadians, the Council of Canadians with Disabilities, and Accessible Media, Inc. Its mandate was to develop common practices and solutions that will improve the accessibility of described programming. This included ensuring that information regarding described programming was made available in online programming listing and electronic programming guides, i.e. the outstanding issue. The applicant claims that the DV Working Group is “the continuing manifestation of the CRTC Accessibility Proceedings.”
[19] MTS submitted that it did not have a technological solution for the problem of audible cues which was compatible with industry equipment and infrastructure. It stated that no BDU operating in Canada is able to provide the remedies requested by the respondent, given that the BDUs use third-party American equipment and software which is largely proprietary and which they cannot modify. MTS delivers its services from Microsoft Mediaroom, a proprietary platform, and cannot modify this to provide additional functionality. It argued that it was not discriminating and had provided the same service to Mr Eadie as to any other customer, and that what he was seeking was a substantially, functionally, and operationally different service.
[20] In respect of the explanatory note of the CRTC announcing its public hearing into accessibility issues which states that the CRTC “does not regulate terminal equipment or the design and manufacture of communications devices intended for accessing telecommunication or broadcasting services”, MTS further explained that the CRTC cannot regulate equipment to require manufacturers to add functionality. It only regulates the functionality once it is provided by the equipment.
[21] MTS also submitted that it advised the Commission that the DV Working Group was about to release its report addressing the issue of audible cues prior to the Commission deciding on April 25, 2012 to refer the matter. This report was subsequently released, and in it the Working Group confirmed that the US Twenty-First Century Communications and Video Accessibility Act of 2010, Pub L No 111-260, 124 STAT 2751 had brought the issue before the US Federal Communications Commission. The US Commission created a Video Programming Accessibility Advisory Committee [VPAAC] which is currently working on the issue, and this may eventually result in American manufacturers being required to provide the requested functionality.
III. Final Investigation Report
[22] The CHRC Investigator’s report was concluded and released to the parties in September 2011. It recommended that the Commission deal with the complaint on the grounds that it was not satisfied that the CRTC procedures would address the allegation of discrimination and that those CRTC procedures were not likely to be completed within a reasonable time.
[23] More specifically, the report arrived at the following conclusions:
a. It does not appear that the CRTC can make any orders regarding digital set-top boxes and related software regarding accessibility because this seems to be beyond the CRTC’s jurisdiction. It appears that the CRTC can only encourage broadcast entities in this regard.
b. The DV Working Group report mentioned the inaccessibility of the menus on set-top boxes, but the working group appeared to be awaiting developments in the United States based on legislative enactments in this regard.
c. It was not clear whether the required technology existed to provide a solution to Mr Eadie’s needs. Mr Eadie claimed that a solution existed in the “after-market” (TV Speak from Code Factory, an American company); MTS denied that it could integrate this technology into its network because it was substantially, functionally and operationally different from the TV service which MTS provides to its customers.
d. Despite MTS claiming that it cannot integrate the technology into its networks, MTS had not provided evidence that it has evaluated the cost of aftermarket solutions and determined them to be prohibitive. MTS did not appear to consider the accessibility needs of people with visual impairments adequately, attributing to subscribers who are vision impaired the responsibility to purchase, install, and otherwise support assistive software devices in order to access services in their homes.
e. It is in the public interest for BDUs to proactively consider the accessibility requirements of people who are visually impaired when issuing requests for information and purchasing terminal equipment and software for the delivery of service to subscribers with these needs.
[24] Based on the foregoing the investigation report recommended that an inquiry before the CHRT was warranted on the following grounds:
a. Because it was not satisfied that the other procedure (CRTC) would address the allegation of discrimination; and
b. Because the other procedure was not likely to be completed within a reasonable time.
[25] The CHRC considered the report and further submissions by the parties, and issued its decision on April 25, 2012 to refer the complaint to the CHRT on the following bases:
a. The complaint raised the challenge faced by many service providers to ensure that technologies remain barrier free to Canadians with disabilities.
b. Despite MTS’s multiple submissions indicating that it is willing to find a workable solution through the DV Working Group, it had not demonstrated that providing the functionality required to enable complainants to have full access to electronic menus would cause undue hardship.
c. The complaint process to the CRTC could not more appropriately deal with the matter because that body had refused to exercise its jurisdiction over STBs.
d. The DV Working Group was not “a procedure provided for under an Act of Parliament” as contemplated by paragraph 44(2)(b) of the CHRA.
e. With respect to a potential re-litigation of a previously decided issue, because the CRTC did not exercise jurisdiction over the STBs, it cannot be said that re-litigation would occur.
f. While the equipment itself and the manufacturer of equipment may be beyond the jurisdiction of the Commission, it was the respondent’s selection and use of this equipment “in the provision of its service” [section 5 of the CHRA] that concerned the Commission.
IV. Relevant legislation
Canadian Human Rights Act, RSC, 1985, c H-6
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
[…]
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
[. . .]
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
[. . .]
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.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act, it shall refer the complainant to the appropriate authority.
(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, 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).
[Emphasis added]
Loi canadienne sur les
droits de la personne
LRC (1985), ch H-6
5. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d’installations ou de moyens d’hébergement destinés au public :
a) d’en priver un individu;
b) de le défavoriser à l’occasion de leur fourniture.
[…]
41. (1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs suivants :
[. . .]
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n’est pas de sa compétence;
[. . .]
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
(2) La Commission renvoie le plaignant à l’autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les recours internes ou les procédures d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(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).
[Je souligne]
Broadcasting Act, SC 1991,
c 11
3. (1) It is hereby declared as the broadcasting policy for Canada that
(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;
[. . .]
(p) programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose;
[. . .]
(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
5. (1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) and, in so doing, shall have regard to the regulatory policy set out in subsection (2).
(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that
[. . .]
(g) is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings.
(3) The Commission shall give primary consideration to the objectives of the broadcasting policy set out in subsection 3(1) if, in any particular matter before the Commission, a conflict arises between those objectives and the objectives of the regulatory policy set out in subsection (2).
Loi sur la radiodiffusion
LC 1991, ch. 11
3. (1) Il est déclaré que, dans le cadre de la politique canadienne de radiodiffusion :
a) le système canadien de radiodiffusion doit être, effectivement, la propriété des Canadiens et sous leur contrôle;
[. . .]
p) le système devrait offrir une programmation adaptée aux besoins des personnes atteintes d’une déficience, au fur et à mesure de la disponibilité des moyens;
[. . .]
(2) Il est déclaré en outre que le système canadien de radiodiffusion constitue un système unique et que la meilleure façon d’atteindre les objectifs de la politique canadienne de radiodiffusion consiste à confier la réglementation et la surveillance du système canadien de radiodiffusion à un seul organisme public autonome.
5. (1) Sous réserve des autres dispositions de la présente loi, ainsi que de la Loi sur la radiocommunication et des instructions qui lui sont données par le gouverneur en conseil sous le régime de la présente loi, le Conseil réglemente et surveille tous les aspects du système canadien de radiodiffusion en vue de mettre en oeuvre la politique canadienne de radiodiffusion.
(2) La réglementation et la surveillance du système devraient être souples et à la fois :
[. . .]
g) tenir compte du fardeau administratif qu’elles sont susceptibles d’imposer aux exploitants d’entreprises de radiodiffusion.
(3) Le Conseil privilégie, dans les affaires dont il connaît, les objectifs de la politique canadienne de radiodiffusion en cas de conflit avec ceux prévus au paragraphe (2).
Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure, SOR/2010-277
45. A consumer complaint that is not related to an application must
(a) be filed with the Commission;
(b) set out the name and address of the complainant and any designated representative and the email address of each, if any;
(c) set out the name of the person against whom it is made;
(d) contain a clear and concise statement of the relevant facts, the grounds of the complaint and the nature of the decision sought; and
(e) state whether the complainant wishes to receive documents related to the complaint in an alternative format.
Règles de pratique et de procédure du Conseil de la radiodiffusion et des télécommunications canadiennes, DORS/2010-277
45. Toute plainte d’un consommateur qui ne se rapporte à aucune demande :
a) est déposée auprès du Conseil;
b) indique les nom et adresse du plaignant et de tout représentant autorisé, et leur adresse électronique, s’ils en possèdent une;
c) indique le nom de la personne visée;
d) renferme un énoncé clair et concis des faits pertinents, de ses motifs et de la nature de la décision recherchée;
e) indique si le plaignant souhaite recevoir les documents relatifs à la plainte dans un média substitut.
V. Issues
[26] The applicant submits that there are four issues to be reviewed:
a. What are the principles governing Commission decisions pursuant to section 41(1)(b) and what are the appropriate standards of review?
b. Did the investigation and the Commission decision lack thoroughness due to a misapprehension of the object and purpose of section 41(1)(b)?
c. Was the Commission’s decision that the CRTC declined to exercise jurisdiction over the subject matter unreasonable?
d. Can the Court determine at this stage whether the CRTC has exclusive jurisdiction over the subject matter?
A. What are the principles governing Commission decisions pursuant to section 41(1)(b) and what are the appropriate standards of review?
(1) General Principles Governing Commission Investigations
[27] Justice Mactavish recently restated in a comprehensive fashion in Canadian Union of Public Employees (Airline Division) v Air Canada, 2013 FC 184 the general principles governing Commission investigations, which I adopt and reproduce below from paras 60 to 74 of her decision:
General Principles Governing Commission Investigations
[60] The role of the Canadian Human Rights Commission was considered by the Supreme Court of Canada in Cooper v. Canada (Canadian Human Rights Commission), [1996] S.C.J. No. 115, [1996] 3 S.C.R. 854. There the Court observed that the Commission is not an adjudicative body, and that the adjudication of human rights complaints is reserved to the Canadian Human Rights Tribunal.
[61] Rather, the role of the Commission is to carry out an administrative and screening function. It is the duty of the Commission "to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it": Cooper, above, at para. 53; see also Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] S.C.J. No. 103, [1989] 2 S.C.R. 879 [SEPQA].
[62] The Commission has a broad discretion to determine whether "having regard to all of the circumstances" further inquiry is warranted: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 at paras. 26 and 46; Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, [1994] F.C.J. No. 361 (F.C.A.).
[63] Indeed, in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113, [1998] F.C.J. No. 1609 [Bell Canada], the Federal Court of Appeal noted that "[t]he Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report": at para. 38.
[64] In Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. No. 181, aff'd [1996] F.C.J. No. 385, 205 N.R. 383 (F.C.A.), this Court discussed the content of the duty of procedural fairness required in Commission investigations. The Court observed that in fulfilling its statutory responsibility to investigate complaints of discrimination, investigations carried out by the Commission had to be both neutral and thorough.
[65] Insofar as the requirement of thoroughness is concerned, the Federal Court observed in Slattery that "deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly". As a consequence, "[i]t should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted": at para 56.
[66] As to what will constitute "obviously crucial evidence", this Court has stated that "the 'obviously crucial test' requires that it should have been obvious to a reasonable person that the evidence an applicant argues should have been investigated was crucial given the allegations in the complaint": Gosal v. Canada (Attorney General), 2011 FC 570, [2011] F.C.J. No. 1147 at para. 54; Beauregard v. Canada Post, 2005 FC 1383, [2005] F.C.J. No. 1676 at para. 21.
[67] The requirement for thoroughness in investigations must also be considered in light of the Commission's administrative and financial realities, and the Commission's interest in "maintaining a workable and administratively effective system": Boahene-Agbo v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 1611, 86 F.T.R. 101 at para. 79, citing Slattery, above, at para. 55.
[68] With this in mind, the jurisprudence has established that the Commission investigations do not have to be perfect. As the Federal Court of Appeal observed in Tahmourpour v. Canada (Solicitor General), 2005 FCA 113, [2005] F.C.J. No. 543 at para. 39:
Any judicial review of the Commission's procedure must recognize that the agency is master of its own process and must be afforded considerable latitude in the way that it conducts its investigations. An investigation into a human rights complaint cannot be held to a standard of perfection; it is not required to turn every stone. The Commission's resources are limited and its case load is heavy. It must therefore balance the interests of complainants in the fullest possible investigation and the demands of administrative efficacy" [Citations omitted]
[69] The jurisprudence has also established that some defects in an investigation may be overcome by providing the parties with the right to make submissions with respect to the investigation report.
[70] For example, in Slattery, the Court observed that where, as here, the parties have an opportunity to make submissions in response to an investigator's report, it may be possible to compensate for more minor omissions in the investigation by bringing the omissions to the Commission's attention. As a result, "it should be only where complainants are unable to rectify such omissions that judicial review would be warranted". This would include situations "where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it". Judicial intervention may also be warranted where the Commission "explicitly disregards" the fundamental evidence: all quotes from Slattery, above at para. 57
[71] Similarly, in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056, the Federal Court of Appeal observed that the only errors that will justify the intervention of a court on review are "investigative flaws that are so fundamental that they cannot be remedied by the parties' further responding submissions": at para. 38.
[72] Where, as here, the Commission adopts the recommendations of an investigation report and provides limited reasons for its decision, the investigation report will be viewed as constituting the Commission's reasoning for the purpose of a decision under section 44(3) of the Act: see SEPQA, above at para. 35; Bell Canada above at para. 30.
[73] However, a decision to dismiss a complaint made by the Commission in reliance upon a deficient investigation will itself be deficient because "[i]f the reports were defective, it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion": see Grover v. Canada (National Research Council), 2001 FCT 687, [2001] F.C.J. No. 1012 at para. 70; see also Sketchley, above, at para. 112.
[74] With this understanding of the role and responsibilities of the Canadian Human Rights Commission in dealing with the investigation of complaints of discrimination, I turn now to consider the arguments advanced by CUPE as to the inadequacy of the investigation in this case.
(2) Jurisdiction and Correctness
[28] The applicant argues that the standard of review on a question of jurisdiction, particularly between competing specialized tribunals, is correctness. It urges this Court to distinguish recent decisions of the Federal Court of Appeal that suggested that the standard of reasonableness applies in situations where the Commission dismisses the complaint without referring it to the Tribunal. The applicant respectfully submits that these decisions failed to note the exception in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], at paragraph 61, where the Supreme Court found that questions regarding jurisdictional lines between two or more competing specialized tribunals are subject to review on a correctness standard.
[29] I disagree on the first premise - that the Federal Court of Appeal was not cognizant that correctness normally applies to review of issues concerning jurisdictional lines between competing specialized tribunals. In fact, in one of the decisions cited by the applicant, Keith v Correctional Service of Canada, 2012 FCA 117, [Keith] the Court of Appeal upheld this Court on the point that where the Commission dismisses a complaint under section 44(3)(b) on grounds of jurisdiction, the standard of review is correctness.
[30] However in Keith the Court also recognized that when the Commission refers the complaint to the CHRT, the standard of reasonableness should be applied in accordance with the Supreme Court of Canada decision in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 [Halifax], which came after Dunsmuir. The Court of Appeal commented on this issue at paragraph 46 of its reasons as follows:
[44] It is well settled that a decision of the Commission to refer a complaint to the Tribunal is subject to judicial review on a reasonableness standard: Halifax at paras. 27, 40 and 44 to 53; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 1998 CanLII 8700 (FCA), [1999] 1 F.C. 113 (C.A.) at para. 38. In Halifax, Cromwell J. recently considered the standard of review which applies in such circumstances, and he concluded that “the reviewing court should ask itself whether there is any reasonable basis in law or on the evidence to support that decision”: Halifax at para. 53. Though Halifax dealt with the screening functions of the Nova Scotia Human Rights Commission, its conclusions also apply to the screening functions of the Commission: Halifax at para. 52.
[. . .]
[46] Cromwell J. was careful to point out that the conclusion reached in Halifax only extends to cases where the complaint is referred for further inquiry. In such cases, any interested party may raise any arguments and submit any appropriate evidence at the second stage of the process; consequently, no final determination of the complaint is reached by referring it to further inquiry. As noted at paragraph 15 of Halifax, “[a]ll the Commission had done was to refer the complaint to a board of inquiry; the Commission had not decided any issue on its merits” (see also paras 23 and 50 of Halifax). In the case of a dismissal under paragraph 44 (3) (b) of the Act, however, any further investigation or inquiry into the complaint by the Commission or the Tribunal is precluded.
[Emphasis added]
[31] Admittedly, in Keith, where the complaint was dismissed, the Court distinguished between decisions to dismiss on grounds of jurisdiction and on other bases; jurisdictional questions being subject to a reviewing standard of correctness, while non-jurisdictional issues were reviewed against a standard of reasonableness. But there is no suggestion that decisions on jurisdictional issues when referred to the CHRT are subject to a different standard than that of reasonableness. If exclusive jurisdictional issues on a referral are not subject to a standard of reasonableness, then those under section 41(1)(b) concerning overlapping jurisdiction are also subject to a reasonableness standard. For these reasons, I reject the applicant’s submission that the standard of review of correctness should be applied to review the Commission’s decision to refer a matter to the CHRT under section 41(1)(b), or had exclusive jurisdiction been argued, section 41(1)(c) of the Act.
[32] The latter point is relevant because the BDUs submit that I should review the jurisdictional issue under section 41(1)(c), even though this was not raised before the Commission. They argue that true issues of jurisdiction can be brought forward at any point in the legal chain of proceedings. One of the reasons that I reject this argument is because had the issue of exclusive jurisdiction been raised before the Commission and the matter been referred to the CHRT, I would only be able to review it on a standard of reasonableness. It would be illogical to consider the issue of absolute jurisdiction on a correctness basis if raised for the first time at the reviewing stage, but on a reasonableness standard if it came before me after the Commission refused to dismiss the complaint.
[33] I also point out the obvious that the foregoing conclusions are premised on the rights of the applicant and intervening BDUs to fully argue the jurisdictional issues raised in sections 41(1)(b) and (c) once before the CHRT. This is clearly the case for issues of exclusive jurisdiction which can be raised at any point of the adjudicative process, but also for section 41(1)(b) concerning overlapping jurisdiction. The basis of Halifax is that the decision to refer is not a decision on jurisdiction, but simply a decision that there exist sufficient grounds to refer the decision for determination by the Tribunal. This is important because the tests that the Tribunal will have to follow to sort out the more appropriate overlapping jurisdiction also set out the path the investigation and Commission must follow for a thorough and legal screening process.
(3) Thoroughness and Fairness
[34] The applicant also argues that because thoroughness is an aspect of the duty to conduct a fair investigation that it comports a standard of review of correctness, relying on the oft-cited decision of Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 (TD) [Slattery] to that effect. The case appears to stand for the proposition that thoroughness as an aspect of fairness should be review