Date: 20060224

 

Docket: T-503-05

 

Citation: 2006 FC 251

 

Ottawa, Ontario, February 24, 2006

 

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

 

BETWEEN:

 

MARC GRAVELLE

 

Applicant

 

and

 

ATTORNEY GENERAL OF CANADA

 

Respondent

 

REASONS FOR ORDER AND ORDER

 

 

1.         Introduction

 

[1]                  This is an application for judicial review of a decision of the Canadian Human Rights Commission (the Commission) dated February 15, 2005, that dismissed the applicant’s discrimination complaint.

 

[2]                  The applicant is seeking the following:

(a)                An order allowing this application;

(b)               An order quashing the Commission’s decision;

(c)                An order referring the matter back to the Commission for reconsideration by a different investigator;

(d)               With costs.

 

2.         The Facts

 

[3]               The applicant was hired by Public Works and Government Services Canada (the Department) as a supply officer at the CR-05 level for a term, from April 19, 2001, to October 10, 2001. The position, in the Computer Science, Licensing and Software Section of the Software Licences Group (ET Division), reported to Scott Soucy. The Department extended the term to March 29, 2002. Prior to April 19, 2001, the applicant had essentially occupied this position since November 17, 2000 through an employment agency.

 

[4]               On July 25, 2001, the applicant asked to be transferred to the Government On-Line (GOL) initiative, managed by Sylvain Cardinal. His request was granted the following week. The applicant went on summer vacation from July 30, 2001, before starting with GOL on the planned date, August 13.

 

[5]               On August 3, 2001, the applicant had a panic attack and required hospitalization. He went on sick leave. In October 2001, doctors diagnosed major depression with severe anxiety, burnout and panic disorder due to overstress. The doctors recommended he stop work and subsequently return to work gradually, on a part-time basis.

 

[6]               The applicant returned to work on October 3, 2001, but three weeks later he went back on sick leave and did not return to work thereafter.

 

[7]               When the applicant was on sick leave, a human resources officer told him about a competition for indeterminate supply officer (PG-02) positions. In spite of his condition, the applicant applied for the competition and ranked tenth. Nine people were entered on the eligibility list, and as many positions were filled. The applicant was not hired.

 

[8]               In January 2002, the applicant was informed that his contract would not be renewed. On February 14, 2002, the manager of the GOL Purchasing Office, Sylvain Cardinal, sent the applicant a letter confirming that [translation] “his term appointment to the position of clerk (CR-05) at the [GOL] Purchasing Office” would end on March 29, 2002.

 

[9]               On December 10, 2002, in response to the applicant’s e-mail, Mr. Cardinal explained that the applicant’s contract had not been renewed because [translation] “there was no longer an operational requirement to have a CR-05”.

 

[10]           In December 2002, the applicant’s former substantive group, the ET Division, opened indeterminate senior purchasing assistant positions (CR-05). The applicant applied but did not qualify.

 

[11]           On March 17, 2003, the applicant submitted a discrimination complaint against the Department to the Commission (File No. 20021404). He made two claims in his complaint. First, he claimed that his employer did not renew his employment contract beyond March 29, 2002, because of his disability. Second, he claimed that his employer refused to hire him for the indeterminate PG-02 position because of his disability. The applicant alleged that the Department violated his rights in contravention of section 7 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA).

 

[12]           The Commission instructed the Investigator to investigate the applicant’s complaint in accordance with subsection 43(1) of the CHRA.

 

[13]           The Commission’s Investigator produced her report on October 28, 2004. She recommended the complaint be dismissed, because, in her view, [translation] “the evidence did not corroborate the applicant’s allegation of employment discrimination by the respondent [the Department] because of his disability”.

 

[14]           The report was released, and the applicant prepared written arguments, in which he repeated that his substantive position was in the ET Division, not as part of the GOL initiative. He also stated that, after he left the ET Division, his position was filled by Suzy Bouchard. The Department did not respond to these arguments.

 

[15]           In its decision dated February 15, 2005, the Commission agreed with the Investigator’s recommendation and dismissed the applicant’s complaint in accordance with paragraph 44(3)(b) of the CHRA.

 

3.         Impugned Decision

 

[16]           The Commission considered the following documents: the complaint form, the Investigator’s report, the applicant’s response with additional information (Appendices A to G) and the timeline of the investigation.

 

[17]           The Commission  agreed with the findings in the Investigator’s report and dismissed the applicant’s complaint.

 

[18]           The investigation report includes a summary of the complaint and of the Department’s defence, a detailed synopsis of the facts putting the complaint into context, and both the applicant’s and Department’s claims. The Investigator’s analysis is found at paragraphs 33 to 35 of the report:

 

[translation]

33.       The evidence indicates that the complainant applied for a PG-02 competition, that he was invited to take the written exam, that his request to accommodate him was granted and that he placed tenth. Only the first nine candidates were placed on an eligibility list. Although the complainant claims that the respondent should have waited until he returned to work before going ahead with the competition, the complainant was absent for over five months (until his contract expired) and did not make such a request.

 

34.       The evidence indicates that the complainant tried to return to work gradually on October 3, 2001, and left on sick leave on October 22, 2001. During his sick leave, the work related to the GOL initiative was completed. The complainant’s services were no longer required for the GOL initiative or as senior purchasing assistant. The complainant’s appointment ended on March 29, 2002.

 

35.       The evidence indicates that the complainant applied for a CR-05 position in fall 2002 but did not qualify. He placed 43rd and the first 30 candidates were called to an interview. Of these, the first 15 were placed on an eligibility list. The complainant was entitled to contest the competition results in accordance with the right to an investigation under section 7.1 of the Public Service of Canada Act. The complainant did not exercise this right.

 

For these reasons, the Investigator found that there was no reasonable basis for the applicant’s complaint and recommended that the complaint not be referred to the Canadian Human Rights Tribunal (the Tribunal).

 

4.         Legislative Framework

 

[19]           Section 2 of the CHRA sets out the purpose of the Act:

 

 

 

[20]           Section 7 prohibits employment discrimination:

 

 

 

[21]           The CHRA authorizes the Commission to investigate complaints. Under section 44, on receipt of an investigation report, the Commission may institute an inquiry into the complaint before the Tribunal or, as in this case, dismiss the complaint:

 

 

5.         Issue

[22]           The issue can be formulated as follows:

 

Did the Commission violate the principles of natural justice and procedural fairness in failing to conduct an in-depth and thorough inquiry into the applicant’s complaint?

 

6.         Standard of Review

 

[23]           The CHRA does not provide any guidelines governing the conduct of inquiries. According to case law, as a general rule, administrative tribunals are considered to be masters of their own proceedings, provided they adhere to the principles of procedural fairness: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560.

 

[24]           The Federal Court of Appeal recently ruled in Canada (Attorney General) v. Sketchley, 2005 FCA 404, that no deference is due when an administrative tribunal goes against the principles of procedural fairness. At paragraph 53, Linden J.A. stated:

 

CUPE [Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29] directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.

 

 

 

[25]           In Sketchley, a case concerning a decision of the Commission in which the terms of paragraph 44(3)(b) were also under consideration, the Court of Appeal applied the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in determining the scope of the duty of procedural fairness. After applying the factors in Baker, the Court of Appeal decided that the content of the duty of fairness, as set out by the Federal Court in Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574 (F.C.); affirmed (1996), 205 N.R. 383 (F.C.A.), was appropriate. In this decision, Nadon J. (as he then was) ruled that, according to the principles of procedural fairness, the Commission has a duty to disclose to the parties the substance of evidence obtained by the investigator and put before it and to give the parties an opportunity to make all relevant representations, if only in writing. Furthermore, according to the rules of procedural fairness, the Commission must have an adequate and fair basis on which to evaluate whether there is sufficient evidence to warrant appointment of a tribunal.

 

[26]           As for investigations into discrimination allegations conducted by the Commission, at page 600, Nadon J. found that a balance needs to be struck between the interests of the complainant and those of the Commission:

In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system.

 

At page 598, he ruled that the Commission’s decision as to whether or not a complaint is justified must be based on a neutral and thorough investigation conducted in accordance with the principles of procedural fairness.

In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to paragraph 44(3)(a) of the Act, I believe that the investigation conducted prior to this decision must satisfy at least two conditions: neutrality and thoroughness.

 

[27]           At pages 600-601, Nadon J. went on to state that an investigation may have lacked the legally required degree of thoroughness if, for instance, an investigator “failed to investigate obviously crucial evidence”:

 

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. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.

In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.

 

[28]           In my view, therefore, the content of the duty of procedural fairness in this case is the same as that in Nadon J.’s decision in Slattery.

 

7.         Analysis

 

[29]                   The parties agree that the Commission’s decision in this case is largely based on the Commission’s investigation report. For all intents and purposes, since there are no reasons for decision, the report will serve as the Commission’s reasons (see paragraph 37 of Sketchley, supra). This application for judicial review will therefore focus on the adequacy of the investigation and its report with respect to the requirements of procedural fairness.

 

[30]                   The applicant claims that the investigation conducted by the Commission did not meet the requirements of procedural fairness, as it was not thorough. The applicant therefore argues that this Court should not show any deference, and since the Commission’s decision is based on a defective investigation and report, the decision is also defective and must be quashed. I concur with the applicant that if the report and investigation are deemed to be defective in this case, the Commission’s decision will also be defective: Singh v. Canada (Attorney General) 2002 FCA 247, [2002] F.C.J. No. 885 (QL); Garvey v. Meyers Transport Ltd. 2005 FCA 327, [2005] F.C.J. No. 1684 (QL).

 

[31]                   The applicant provides three reasons why the Investigator was not thorough in her investigation: (1) she did not identify who made the allegedly discriminatory decisions not to renew his contract and not to hire him; (2) she did not question some key witnesses, namely the decision makers; and (3) she did not sufficiently analyse the evidence to respond to the discrimination complaints.

 

[32]                   The applicant also argues that a number of crucial questions were not asked during the investigation and still remain unanswered:

(a)        What had been done to renew the applicant’s employment contract? Was the process different from what was done when the contract ended on March 29, 2002?

(b)        Who decided not to renew the applicant’s contract?

(c)        Did the person who decided not to renew the applicant’s contract consider whether there was still work to be done in the Software Licences Group (ET Division)?

(d)        Did the person who decided not to renew the contract know the applicant was on sick leave? Was the applicant’s disability a factor in the decision?

(e)        Why did PWGSC (the Department) initially indicate that the applicant’s contract would not be renewed and would end on March 29, 2002, because of a lack of work on the GOL initiative, while his substantive position was in the Software Licences Group (ET Division) under the management of Scott Soucy?

(f)         Why was the eligibility list for the PG-02 position limited to nine people? Was the applicant’s medical disability a factor in this decision?

 

[33]                   The applicant claims he does not have any answers to these questions and that the key question, whether he was a victim of discrimination, also remains unanswered. According to the applicant, the investigation was neither thorough nor complete.

 

[34]                   The respondent maintains that the Commission’s decision is reasonable, is based on a thorough, unbiased investigation and adheres to the principles of procedural fairness.

 

[35]                   The first allegation in the applicant’s complaint is that the Department refused to renew his contract because of his disability. In a letter to the Investigator, the Assistant Deputy Minister of the Department explains that the applicant was not rehired because his services were no longer required for the GOL initiative or as a senior purchasing assistant. The evidence, however, indicates that the applicant was very busy before he went on sick leave, and that, on July 25, 2001, a replacement was being sought for his position of senior purchasing assistant in the ET Division. He was replaced. In addition, in fall 2002, eight months after his contract was over, the Department deemed it necessary to fill indeterminate purchasing assistant positions at the CR-5 level. A competition followed, and 15 positions were filled. The applicant ranked 43rd and therefore did not qualify. It would seem that these new positions involved the same type of work done by the applicant when he was a contract employee of the Department, but the evidence is not clear on the matter.

 

[36]                   In light of these evidentiary findings, it is clear that the main reason for not rehiring that applicant—the lack of work—is questionable. At the very least, a knowledgeable investigator would have had doubts. In her report, the Investigator seems to have simply accepted the Department’s explanation that [translation] “the applicant’s services were no longer required for the GOL initiative or as senior purchasing assistant”. The investigation went no further. In my view, some questions directly related to the applicant’s discrimination complaint needed to be clarified, namely, who decided not to rehire him and whether this person’s decision was influenced by the applicant’s medical disability. As it stands, we cannot know, since the people who were directly involved and responsible were never approached. The Investigator did not question Mr. Soucy or Mr. Cardinal, the applicant’s immediate supervisors when he was working, or Ms. Bouchard, the person who replaced him when he was on leave, or other employees of the ET Division, to determine whether a replacement had been found or whether the applicant’s duties were given to other employees. These individual should be questioned about a number of aspects in the case, including about whether there is still work and whether there was a discriminatory aspect to the decision. In my view, a thorough approach such as this was required under the circumstances and would have led to an in-depth examination of the evidence, which I find crucial, given the complaint.

 

[37]                   The second allegation in the applicant’s complaint is that the Department refused to hire him for the indeterminate position of purchasing officer (PG-02, October 2001) because of his disability. The Investigator did not question Richard Cole, the Director responsible for human resources files at the ET Division, who was also responsible for limiting the eligibility list for the purchasing officer position (PG-02) to nine people, in spite of the fact that Mr. Cole made this decision knowing that the applicant had placed tenth in the competition. In light of the complaint, thoroughness would require Mr. Cole to be questioned about the applicant’s allegations. In her report, the Investigator did not analyse the applicant’s second allegation, namely, that there was something discriminatory about the decision to limit the number of eligible people. She simply found that only the first nine candidates were placed on the eligibility list.

 

[38]                   I acknowledge that the Commission is the master of its own proceedings and that the Court must show deference to how it conducts its investigations. The Commission has a duty to ensure, with limited resources, that the system is effective from an administrative standpoint. However, it must also take into account the interests of complainants and conduct investigations that are as thorough as possible while adhering to the principles of procedural fairness.

 

[39]                   In my view, Commission decisions dismissing complaints should be more closely scrutinized than decisions referring complaints to the Tribunal. In this respect, I agree with Evans J. in Larsh v. Canada [1999] F.C.J. No. 508. At paragraph 36 of his reasons, he wrote:

A dismissal is, after all, a final decision that precludes the complainant from any statutory remedy and, by its nature, cannot advance the overall purpose of the Act, namely protection of individuals from discrimination, but may, if wrong, frustrate it.

 

Furthermore, this principle was recognized and adopted by the Federal Court of Appeal in Sketchley, supra, at paragraphs 79 and 80.

 

[40]                   In failing to interview the key individuals involved in the applicant’s case, particularly Mr. Soucy, Mr. Cardinal, Ms. Bouchard and Mr. Cole, I feel that the Investigator did not conduct an in-depth and thorough investigation and thus did not examine obviously crucial evidence in the case. The investigation into the applicant’s complaint therefore did not meet the thoroughness standard in Slattery and affirmed by the Federal Court of Appeal in Sketchley. The Commission’s decision to dismiss the complaint must therefore be quashed because it violates the procedural fairness requirement.

 

8.         Conclusion

[41]                   For these reasons, I would allow the application for judicial review, quash the Commission’s decision dismissing the applicant’s complaint and refer the matter back to the Commission for reconsideration in accordance with these reasons.

 

[42]                   In light of the outcome, the applicant will be entitled to his costs.

 

ORDER

 

            THE COURT ORDERS THAT:

 

1.         The application for judicial review be allowed.

 

2.         The decision of the Canadian Human Rights Commission be quashed.

 

3.         The matter be referred back to the Canadian Human Rights Commission for reconsideration of the applicant’s complaint in accordance with these reasons.

 

4.         With costs.

 

 

 

 

 

 

“Edmond P. Blanchard”

Certified true translation

Jason Oettel

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                                      T-503-05

 

STYLE OF CAUSE:                                      MARC GRAVELLE v. ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                                Ottawa, Ontario

 

DATE OF HEARING:                                  January 16, 2006

 

REASONS FOR ORDER AND

ORDER BY:                                                  The Honourable Mr. Justice Blanchard

 

DATED:                                                         February 24, 2006

 

 

APPEARANCES:

 

James Cameron                                                FOR THE APPLICANT

 

Sonia Barrette                                                  FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Raven, Allen, Cameron &                                 FOR THE APPLICANT

Ballantyne

Ottawa, Ontario

 

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada