Date: 20061002
Docket: T-2266-05
Citation: 2006 FC 1172
Toronto, Ontario, October 2,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
RICHARD
LOYER
Applicant
and
AIR
CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Canadian Human Rights Commission dismissed Richard Loyer’s complaint against
Air Canada because it
found that the human rights issues raised by his complaint had been addressed
through arbitration. The Commission was also of the opinion that, in all of
the circumstances, further inquiry into Mr. Loyer’s complaint was not
warranted.
[2]
Mr.
Loyer now seeks judicial review of the Commission’s decision, asserting,
amongst other things, that the Commission’s investigation was insufficiently
thorough, and that the substance of his human rights issues had not been dealt
with through the arbitral process.
[3]
For
the reasons that follow, I am not persuaded that the Commission erred as
alleged by Mr. Loyer. As a consequence, this application for judicial review
will be dismissed.
Mr. Loyer’s Allegations
of Discrimination
[4]
Mr.
Loyer worked as a pilot for Air Canada for some 30 years. In
1993, in the course of a routine Air Canada medical examination, he
was found to have elevated liver enzymes, which can be indicative of
alcoholism. Over the ensuing years, Mr. Loyer was re-examined on a number of
occasions, and the level of his liver enzymes fluctuated from examination to
examination. On some occasions they were found to be elevated, and on other
occasions, particularly after a period of abstinence on the part of Mr. Loyer,
his liver enzymes were found to have returned to normal.
[5]
Mr.
Loyer was ultimately diagnosed by Air Canada’s physicians as
suffering from alcoholism, and was put on disability leave. A Transport Canada
doctor also found that Mr. Loyer’s medical tests indicated that he abused
alcohol. Transport Canada subsequently decided not to renew Mr. Loyer’s
pilot’s licence, the result of which was that in April of 2003, Mr. Loyer was
placed on leave without pay by Air Canada.
[6]
In
the meantime, Mr. Loyer’s personal physician determined that Mr. Loyer suffered
from Epstein-Barr Syndrome, a symptom of which is reportedly elevated liver
enzymes.
[7]
In
a human rights complaint against Air Canada filed with the Canadian
Human Rights Commission in October of 2003, Mr. Loyer asserted that he was
neither alcohol dependant, nor did he abuse alcohol. He further asserted that
he had been adversely affected in his employment as a result of Air Canada’s erroneous
perception that he was an alcoholic.
[8]
Mr.
Loyer also indicated in his complaint that he was seeking financial
compensation from Air Canada, as well as an adjustment to his pension,
so as to reflect the years that he would have worked, but for the flawed
diagnosis. There was no indication in the complaint form that Mr. Loyer was
seeking reinstatement as a pilot.
Other Proceedings
Initiated by Mr. Loyer
[9]
Mr.
Loyer and his wife also commenced an action in the Superior Court of Ontario
against Air Canada and five
medical specialists employed or retained by the airline, in which they sought
damages in the amount of $2,150,000, resulting, they say, from the alleged
misdiagnosis of Mr. Loyer’s medical condition.
[10]
Through
his union, the Air Canada Pilots Association (“ACPA”), Mr. Loyer also filed a
grievance in the Spring of 2003 in which he sought “grounded retirement”. In
October and November of 2003, he filed two more grievances, one of which sought
that he be reinstated as a pilot, and the other of which seemingly renewed his
request for grounded retirement.
The Air Canada Insolvency
[11]
In
the meantime, on April 1, 2003, Air Canada made an application for
protection from its creditors, pursuant to the provisions of the Companies
Creditors Arrangement Act, R.S. 1985, c. C‑36 (“CCAA”). Justice
Farley of the Superior Court of Ontario then issued an order temporarily
staying all outstanding and future legal proceedings against Air Canada. This order
was subsequently renewed from time to time.
[12]
Air
Canada’s major
creditor evidently imposed a condition on its approval of the airline’s
proposed restructuring plan that Air Canada had to emerge from creditor
protection with a “clean slate”, free of outstanding grievances and claims.
[13]
In
order to satisfy this condition, Air Canada and ACPA established an
expedited arbitration process to deal with outstanding grievances, including
those brought by Mr. Loyer. This was known as the “Clean Slate Agreement”. By
order of Justice Farley, Martin Teplitsky, Q.C. was appointed to deal with
these grievances.
The June 10, 2004
Hearing
[14]
Mr.
Loyer’s grievances were scheduled to be heard on June 10, 2004. Mr. Loyer
attended before Mr. Teplitsky on that date, along with Paul Middleton, amongst
others. Mr. Middleton was Mr. Loyer’s union representative.
[15]
It
is common ground that Mr. Loyer’s grievance arbitration did not proceed that
day, and that settlement discussions took place, which culminated in the
preparation of Minutes of Settlement. These Minutes provided that Mr. Loyer
would be entitled to grounded retirement, retroactive to January 28, 2003,
which was the date on which his disability benefits had been exhausted. The
Minutes also provided that Mr. Loyer’s retirement would be deemed to be
effective on that date, subject to the approval of Air Canada’s Pension
Committee.
[16]
It
is also clear from the Minutes of Settlement that the settlement was intended
to be a global one, resolving all of the matters in dispute between Mr. Loyer
and Air Canada. To this
end, the Minutes provided that the settlement “addressed all matters in
relation to the complaint filed with the Canadian Human Rights Commission”, and
required that Mr. Loyer’s human rights complaint be withdrawn.
[17]
It
is also not in dispute that although Air Canada and union
representatives signed the Minutes of Settlement, Mr. Loyer did not do so.
What is hotly contested is whether Mr. Loyer verbally agreed to the terms of
the settlement on June 10. Mr. Loyer maintains that he would never have agreed
to the settlement because he wanted to be reinstated into his position as a
pilot, whereas Air Canada contends that a verbal agreement had in fact
been reached on that date.
The August 24, 2004
Hearing
[18]
When
no signed agreement was forthcoming from Mr. Loyer, the matter was brought back
before Arbitrator Teplitsky on August 24, 2004. On that date, Mr. Teplitsky
found that there had indeed been a settlement reached on June 10, 2004, and he
issued an award incorporating all of the essential terms of the Minutes of
Settlement.
[19]
In
concluding in his award that a settlement had been reached at the June hearing
day, Mr. Teplitsky stated:
I have no doubt
about the following:
(a) There is no
dispute about the terms of the settlement;
(b) Captain Loyer
gave clear instructions to effect the settlement;
(c) The settlement
is reasonable in the circumstances; and
(d) Captain Loyer
was acting as his wife’s agent in accepting the settlement.
[20]
Although
the investigation report makes passing reference to a concern on the part of
Mr. Loyer as to the fairness of the process before Mr. Teplitsky, this issue
was not pursued on this application.
No Section 48 Approval
[21]
It
is not disputed that the purported settlement of Mr. Loyer’s human rights
complaint was never referred to the Canadian Human Rights Commission for approval,
in accordance with section 48 of the Canadian Human Rights Act, R.S.
1985 c. H-6. There is also no dispute about the fact that the Commission never
explicitly approved the settlement.
The Commission
Investigation
[22]
After
receipt of Mr. Loyer’s human rights complaint, an investigation was carried out
into the complaint by the Canadian Human Rights Commission, which culminated in
an Investigation Report being issued on June 20, 2005.
[23]
It
should be noted that there is no indication that any meaningful investigation
was conducted with respect to the substance of Mr. Loyer’s allegations of
discrimination. Instead, after a brief review of the history of the various
proceedings, the Investigator’s Report focused primarily on the events of June
10 and August 24, 2004.
[24]
The
Investigator started by reviewing Air Canada’s position that a
settlement had been reached on June 10, 2004, referring specifically to the
provisions of the Teplitsky award cited above.
[25]
The
Investigator then noted Mr. Loyer’s position that he had never agreed to settle
the matter, observing that Mr. Middleton had confirmed that Mr. Loyer had
indeed accepted the settlement offer made at the June 10 hearing. The
Investigator further noted that Mr. Middleton had indicated that ACPA would not
have signed off on the Minutes of Settlement without Mr. Loyer having first
agreed to the terms of the settlement.
[26]
Mr.
Middleton is also reported to have stated that Mr. Loyer obtained “a very good
deal”, that he had received a substantial financial settlement, and that he had
been allowed to retire retroactive to the date on which his disability benefits
had been exhausted.
[27]
Mr.
Middleton was also of the view that Mr. Loyer had received one of the best
settlements that had been achieved through the “Clean Slate” process, and that
his result was particularly good in light of the fact that, as a result of the
insolvency, Air Canada pilots had been required to make wage
concessions of up to 15%.
[28]
The
Investigator concluded the Report with the following by way of analysis:
The
information provided by the respondent and the complainant’s union concerning
the outcome of the complainant’s grievance suggests that the complainant’s
human rights concerns were addressed by Arbitrator Teplitsky. The evidence indicates
that Arbitrator Teplitsky turned his mind to the human rights aspects of the
complaint, in determining his ruling.
It is
recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
that the Commission dismiss the complaint because:
-
the
complainant’s human rights issues have been addressed through arbitration; and
-
having
regard to all the circumstances of the complaint, further inquiry into the complaint
is not warranted.
The Commission’s
Decision
[29]
The
Investigator’s recommendation was accepted by the Commissioners of the Canadian
Human Rights Commission, as is confirmed by a decision letter from the
Commission’s Secretary dated November 21, 2005, the operative portions of which
simply adopt the two reasons cited by the investigator. It is this decision
that forms the subject matter of this application for judicial review.
Legislative Framework
[30]
The
Commission’s decision to dismiss Mr. Loyer’s human rights complaint was made
pursuant to section 44 of the Canadian Human Rights Act, which provides,
in part that:
|
44. (1) An investigator shall, as soon as possible after the
conclusion of an investigation, submit to the Commission a report of the
findings of the investigation.
(3) On receipt of a report referred to in subsection (1),
the Commission
(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…
|
44. (1) L’enquêteur présente son rapport à la Commission
le plus tôt possible après la fin de l’enquête.
(3) Sur réception du
rapport d’enquête prévu au paragraphe (1), la Commission :
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…
|
Issues
[31]
Mr.
Loyer raises a number of issues on this application. These are:
1. Did
the Canadian Human Rights Commission err in dismissing his complaint based upon
the existence of an alternate redress mechanism, namely the Clean Slate
process, given that the mere existence of an alternate redress process does not
oust the jurisdiction of the Commission?
2. Did
the Commission err in finding that Mr. Loyer’s human rights issues had been
dealt with through the arbitration process?
3. Was the Commission’s
investigation sufficiently thorough? and
4. Did
the Commission err in law in dismissing Mr. Loyer’s human rights complaint
based upon a settlement that it had not itself approved?
[32]
Although
not mentioned in his memorandum of fact and law, Mr. Loyer also argued at the
hearing of this application that the Commission erred in making a finding of
credibility with respect to whether he had agreed to settle his human rights
complaint on June 10, 2004. According to Mr. Loyer, credibility findings are
beyond the purview of the Commission at the investigation stage, and are the
exclusive domain of the Canadian Human Rights Tribunal.
[33]
It
is well established that given the cursory nature of Commission decisions under
section 44 of the Canadian Human Rights Act, investigation reports must
be read as the Commission’s reasons: see Sketchley v. Canada (Attorney
General), [2005] F.C.J. No. 2056, 2005 FCA 404 at
¶ 37.
[34]
With
this in mind, I do not intend to address Mr. Loyer’s first issue, as it is
clear from a review of the investigation report that the Commission did not
dismiss his complaint based upon the mere existence of an alternate redress
mechanism. Nor did the Commission decline jurisdiction, on the basis of a determination
that its jurisdiction had been ousted by the existence of the Clean Slate
process, as is alleged by Mr. Loyer. Although the “Background” section of the
Investigator’s Report states that the effect of the Companies Creditors
Arrangement Act proceedings was to extinguish the right to claim
non-discretionary monetary remedies for incidents occurring prior to April of
2003, a review of the Report as a whole discloses that the basis for the
Commission’s decision was its view that the human rights issues raised by Mr.
Loyer’s complaint had been adequately addressed through the arbitral process.
[35]
I
also do not intend to deal with Mr. Loyer’s argument that the Commission erred
in making a finding of credibility as to whether he had agreed to settle his
human rights complaint. This argument was not raised in Mr. Loyer’s memorandum
of fact and law. Moreover, I am not persuaded that the issue arises in this
case, given that no specific credibility finding was made by the Investigator
in this regard.
Standard of Review
[36]
Both
parties submit that the general standard of review to be applied to Commission
decisions declining to refer complaints to the Canadian Human Rights Tribunal
made pursuant to section 44(3)(b) of the Canadian Human Rights Act is
that of reasonableness. However, Mr. Loyer says that issues relating to the
thoroughness of the investigation engage questions of procedural fairness, and
as such, are reviewable against the standard of correctness. He further
submits that the other issues raised in his application involve questions of
law, and are also reviewable against the correctness standard.
[37]
It
is true that, as a general proposition, subsection 44(3)(b) of the Canadian
Human Rights Act confers a broad discretion on the Commission to decide whether
a complaint should be screened out, or should proceed to a hearing before the
Tribunal. As a result, the Court will only intervene if the Commission's
conclusion is unreasonable, absent a breach of the duty of fairness or other
errors of law: Tahmourpour v. Canada (Solicitor General), [2005] F.C.J. No. 543,
2005 FCA 113, at ¶ 6.
[38]
That
said, as the Federal Court of Appeal made clear in Sketchley, a
reviewing court may not simply adopt the standard of review used by other
judges reviewing other decisions made by the Commission under subsection
44(3)(b) of the Act. The precise nature of the questions at issue will vary
from case to case. As a consequence, the expertise of the Commission may be
engaged to a greater or lesser extent, having regard to the specific nature of
the question or questions involved. It is thus essential for a reviewing court
to conduct its own pragmatic and functional analysis in each case.
Identification and Nature of the Questions
[39]
In
identifying the appropriate standard of review, the first step for the Court is
to identify the question or questions in dispute: Sketchley, at ¶ 59.
[40]
The
first issue raised by Mr. Loyer that I have found to actually arise on the
facts of this case is whether the Commission erred in finding that his human
rights issues had been dealt with through the arbitration process. While there
is a strong factual component to this question, it also involves an
understanding of what the human rights issues were that arose out of Mr.
Loyer’s complaint, and the extent to which these issues may have been addressed
by the Teplitsky award. As a result, I would characterize this issue as one of
mixed fact and law.
[41]
Regard
must also be had to the Commission’s second reason for dismissing Mr. Loyer’s
complaint, that is, its finding that having regard to all of the circumstances
of the case, further inquiry into the complaint was not warranted. This
involves a discretionary decision on the part of the Commission, and thus
attracts a significant degree of deference.
[42]
The
next issue for the Court is whether the Commission erred in dismissing Mr.
Loyer’s human rights complaint, based upon a settlement that it had not itself
approved. This involves a consideration of the implications and requirements
of section 48 of the Canadian Human Rights Act, and as such, involves a
question of law.
[43]
The
final issue raised by Mr. Loyer is whether the Commission’s investigation was
sufficiently thorough. An alleged lack of thoroughness in a human rights
investigation engages questions of procedural fairness. In Sketchley,
previously cited, at ¶ 52-53, the Court noted that the pragmatic and functional
analysis does not apply where judicial review is sought based upon an alleged
denial of procedural fairness. Rather, the task for the Court is to isolate
any act or omission relevant to the question of procedural fairness, and to
determine whether the process followed by the Commission satisfied the level of
fairness required in all of the circumstances.
[44]
That
is, given that questions of procedural fairness are reviewed as questions 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 not: Sketchley, at ¶ 53.
[45]
The
pragmatic and functional analysis does, however, apply with respect to the
other issues raised by this application, and thus it is necessary to consider
the remaining factors in that analysis.
Presence or Absence of a Privative Clause
or Statutory Right of Appeal
[46]
There
is no privative clause in the Canadian Human Rights Act, nor is there
any statutory right of appeal. Thus the Act provides no guidance in
ascertaining Parliament’s intent on the question of deference. However, as the
Supreme Court of Canada noted in Dr. Q. v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at ¶ 27,
silence on the matter of a privative clause is neutral, and does not
necessarily imply a high standard of scrutiny.
Relative Expertise
[47]
The
next factor to consider is the expertise of the Commission relative to that of
the Court, bearing in mind the nature of the questions involved in this case.
In relation to the question of whether Mr. Loyer’s human rights issues had been
adequately dealt with through the arbitration process, I am of the view that
this is a matter falling squarely within the expertise of the Commission, whose
mandate requires that it deal, on a daily basis, with the examination and
resolution of human rights complaints.
[48]
I am
also satisfied that the Commission’s expertise in this area is superior to that
of the Court. This militates in favor of according this aspect of the
Commission’s decision considerable deference.
[49]
The
Commission’s determination that in all of the circumstances further inquiry
into the complaint was not warranted is a discretionary decision: Cooper v. Canada (Human Rights
Commission),
[1996] 3 S.C.R. 854 at 891. As the Federal Court of Appeal noted in Sketchley
at
¶ 76, the number of human rights complaints received
by the Commission far exceeds the number it may, for practical and monetary
considerations, be able to refer to the Tribunal for hearing. In general, at
least in the assessment of practical and monetary matters, the Commission is in
a better position than the Federal Court to assess whether any given complaint
should go further. This consideration further militates in favour of greater
deference in relation to this aspect of the Commission’s decision.
Purpose of the Legislation and the
Provision in Question
[50]
The
next step in the pragmatic and functional analysis involves a consideration of
the purpose of the legislation in general, and the specific legislative
authority under which the decision in question was made, in particular.
[51]
The Canadian
Human Rights Act is quasi-constitutional legislation enacted to give effect
to the fundamental Canadian value of equality. Section 2 of the Act indicates
that it is intended to prevent discrimination based on a series of enumerated
grounds. As was noted in Sketchley, at ¶ 74, having regard to the nature
of the legislation, any institution, organization or person given the mandate
by law to delve into human rights issues should be subjected to some control by
judicial authorities.
[52]
In
addition, the decision in question here was made in accordance with the
Commission’s screening mandate under section 44(3) of the Act. The decision
to dismiss a complaint at this stage effectively extinguishes a complainant’s
ability to seek redress under the Act (subject to the availability of judicial
review in this Court). This also suggests that a less deferential standard
should be applied.
[53]
That
said, as the Federal Court of Appeal observed in Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1998] F.C.J. No.
1609, [1999] 1 F.C. 113, (at ¶ 38), the Act grants the Commission a remarkable
degree of latitude when it is performing its screening function on receipt of
an investigation report, which indicates that Parliament did not want the
courts to intervene lightly in its decisions.
Conclusion as to the Applicable Standards
of Review
[54]
Weighing
all of these factors, I am of the view that the Commission’s findings that Mr.
Loyer’s human rights issues had been adequately dealt with through the arbitral
process and that further inquiry into his complaint was not warranted should be
reviewed against a standard of reasonableness.
[55]
As
was noted earlier, the issue of whether the Commission erred in dismissing Mr.
Loyer’s human rights complaint, based upon a settlement that it had not itself
approved involves a question of law. Although brief mention of this argument
was made in Mr. Loyer’s submissions to the Commission, neither the
Investigation Report nor the Commission explicitly addressed the issue. As a
result, this Court must answer the question for itself.
[56]
Similarly,
the Court must come to its own conclusion as to the thoroughness of the
Commission investigation.
[57]
With
this understanding of the applicable standards of review, I turn now to
consider the arguments advanced on behalf of Mr. Loyer. Before doing so,
however, comment should be made on the state of the record on this application.
Content of the Record
[58]
At
the commencement of the hearing I raised with the parties my concern that both
sides had submitted substantial records, containing copious material which does
not appear to have been before the Commission when it made its decision to
dismiss Mr. Loyer’s complaint. Air Canada indicated that it did not intend to rely on the
exhibits contained in one of the affidavits that it had filed, although it
continued to rely on a second affidavit, which also appended a number of
exhibits not contained in the record that was before the Commission. Mr. Loyer
continued to rely on the supplementary documentation that he had filed.
[59]
While
such supplementary material can be admissible on judicial review in certain
situations (where, for example, there is an allegation impugning the accuracy
or completeness of the report: see Pathak v. Canada (Canadian Human Rights
Commission)
[1995] F.C.J. No. 555 (FCA)), it is not necessary to determine which, if any,
of the documents are admissible here. Having carefully reviewed each of the
documents in question, I am satisfied that none would have an effect on the
outcome of this case.
Did The
Commission Err In Finding That Mr. Loyer’s Human Rights Issues Had Been Dealt
With Through The Arbitration Process?
[60]
Dealing
first with the Commission’s finding that Mr. Loyer’s human rights issues had
been adequately dealt with through the arbitral process, a close review of the
investigation report discloses that the Commission investigator did not make an
express finding as to whether or not Mr. Loyer had agreed to the settlement on
June 10, 2004. The investigator did, however, recognize that it was Mr.
Loyer’s position that he had not agreed to settle his various claims, including
his human rights complaint.
[61]
Rather,
the Investigator’s decision was based upon the finding that Arbitrator
Teplitsky had specifically turned his mind to the matter of Mr. Loyer’s human
rights complaint in making his award. This led the Investigator to conclude
that Mr. Loyer’s human rights issues had been addressed through the arbitration
process, and to the further finding that, having regard to all of the circumstances,
further inquiry into the complaint was not warranted.
[62]
While
a more fulsome analysis of the situation on the part of the Investigator would
have been desirable, the jurisprudence teaches us that where there is an
absence of clear reasons, the Court must look at the material before the
Commission, and the result reached, to see if there is a rational basis for the
result: see, for example, Gee v. Canada (Minister of National Revenue),
[2002] F.C.J. No. 12, FCA 4, at ¶ 15.
[63]
In
this case, there was evidence before the investigator that Mr. Loyer had
received substantial financial compensation from Air Canada, as well as grounded
retirement, effective the date that his disability benefits had been exhausted.
This was consistent with the relief that Mr. Loyer had indicated in his human
rights complaint that he was seeking from Air Canada. In this regard it should be recalled
that Mr. Loyer did not indicate in his complaint that he wanted to be
reinstated in his position as a pilot.
[64]
Moreover,
the relief obtained by Mr. Loyer was awarded to him during a period of intense
financial pressure on the airline, and was evidently one of the best deals
arrived at during the period of the Air Canada insolvency.
[65]
As
the investigator noted, Arbitrator Teplitsky did turn his mind to the matter of
Mr. Loyer’s human rights complaint in imposing the award that he did. Thus
there is a basis in the evidence for the investigator’s finding that Mr.
Loyer’s human rights complaint had been dealt with through the arbitral process,
notwithstanding the fact that the arbitrator had not engaged in a substantive
examination of the issues raised by the complaint.
[66]
As a
result, having subjected the investigation report to a somewhat probing
examination, the finding that Mr. Loyer’s complaint had been adequately dealt
with through the arbitral process was one that was reasonably open to the
Commission.
[67]
Moreover,
in all of the circumstances, and, in particular, in light of the fact that Mr.
Loyer appeared to have achieved much of what he had been seeking by way of
remedy in his human rights complaint through the arbitral process, the
Commission’s finding that further inquiry into the complaint was not warranted
was not unreasonable.
Was the Commission’s Investigation Sufficiently Thorough?
[68]
Mr.
Loyer also says that the Commission’s decision should be set aside, as the
investigation into his complaint was not sufficiently thorough. In particular,
Mr. Loyer asserts that the Investigator erred by failing to interview him
regarding what had transpired at the June 10 meeting, particularly when others
seem to have been interviewed.
[69]
In
addition, Mr. Loyer says that the investigation was inadequate because the
investigator failed to interview others present at the June 10 hearing, apart from
Mr. Middleton.
[70]
Finally,
Mr. Loyer says that the investigation was not sufficiently thorough as the
investigator failed to interview his wife and the other individuals who were
aware of his state of mind in the period after June 10, 2004, regarding the
potential parameters of an acceptable settlement.
[71]
The
leading case regarding the degree of thoroughness required of Commission
investigations is Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574
(T.D.), aff'd (1996), 205 N.R. 383. In Slattery, the Federal Court held
that an investigation may lack the legally required degree of thoroughness
where, for example, the investigator makes an unreasonable omission, such as
failing to investigate obviously crucial evidence.
[72]
That
said, in the Tahmourpour decision previously cited, the Federal Court of
Appeal noted at ¶ 39 that an investigation into a human rights complaint cannot
be held to a standard of perfection, and that a Commission investigator is not
required to turn every stone. The Court further noted that the Commission's
resources are limited and its case load heavy. As a consequence, the Commission
is required to balance the interests of complainants in the fullest possible
investigation and the demands of administrative efficacy.
[73]
With
this in mind, I am not persuaded that the Commission’s failure to interview the
people identified by Mr. Loyer resulted in the investigation lacking the
requisite degree of thoroughness. Insofar as the failure to interview Mr.
Loyer himself is concerned, Mr. Loyer provided the Commission with copious
submissions clearly articulating his position that he had never agreed to a
settlement of his various legal proceedings, and indeed, his counsel conceded
in argument that his client had been able to fully inform the investigator of
his position.
[74]
In
addition, a review of the investigation report discloses that the investigator
clearly understood Mr. Loyer’s position that he had never agreed to settle his
complaint.
[75]
Insofar
as the Investigator’s failure to interview others present at the June 10
hearing is concerned, Mr. Loyer has not identified any other individuals who
were present at the June hearing who might have been in a position to support
his claim that he had not agreed to the settlement. Moreover, it is hard to
imagine that any evidence could outweigh the powerful evidence before the
investigator from Arbitrator Teplisky himself.
[76]
That
is, in his award, Mr. Teplitsky provided his own version of events, as a first
hand witness to what had transpired at the June hearing. It will be recalled
that Mr. Teplitsky stated that he had no doubt that Mr. Loyer had given
clear instructions to effect the settlement. Given his role as a neutral third
party, with no interest in the outcome of the proceeding, common sense surely
dictates that Mr. Teplitsky’s statements would have been accorded significant
weight.
[77]
Finally,
Mr. Loyer says that the investigator should have interviewed his wife, and two
other individuals who would have confirmed that he had not intended to sign the
Minutes of Settlement between June 10 and August 24, 2004.
[78]
There
is no suggestion that any of these individuals were present on June 10, and I
am not persuaded that any of the three could have provided “obviously crucial
evidence” as to what transpired on that date.
[79]
As a
result, I am not satisfied that the Commission’s decision should be set aside
based upon any inadequacy in the investigation.
[80]
This
leaves the question of whether the Commission erred in dismissing Mr. Loyer’s
human rights complaint, based upon a settlement that it had not approved in
accordance with the provisions of section 48 of the Canadian Human Rights
Act. This issue will be addressed next.
Did the
Commission Err in Dismissing Mr. Loyer’s Human Rights Complaint Based Upon a
Settlement That it had not Approved?
[81]
Acknowledging
that it is a very technical argument, Mr. Loyer nonetheless asserts that the
Commission erred in law in dismissing his human rights complaint based upon a
settlement that it had not approved.
[82]
That
is, Mr. Loyer says that the “settlement” that he ostensibly agreed to on June
10, 2004, was never referred to the Commission for approval, as is mandated by
section 48 of the Canadian Human Rights Act, which provides that:
|
48. (1) When, at any stage after the filing of a complaint and
before the commencement of a hearing before a Human Rights Tribunal in
respect thereof, a settlement is agreed on by the parties, the terms of the
settlement shall be referred to the Commission for approval or rejection.
(2)
If the Commission approves or rejects the terms of a settlement referred to
in subsection (1), it shall so certify and notify the parties.
(3) A settlement approved under
this section may, for the purpose of enforcement, be made an order of the Federal
Court on application to that Court by the Commission or a party to the
settlement.
|
48. (1) Les parties qui conviennent d’un règlement à toute
étape postérieure au dépôt de la plainte, mais avant le début de l’audience
d’un tribunal des droits de la personne, en présentent les conditions à
l’approbation de la Commission.
(2) Dans le cas prévu au paragraphe (1), la Commission
certifie sa décision et la communique aux parties.
(3) Le règlement
approuvé par la Commission peut, par requête d’une partie ou de la Commission
à la Cour fédérale, être assimilé à une ordonnance de cette juridiction et
être exécuté comme telle.
|
[83]
Mr.
Loyer says that it was improper for the Commission to have found that a
settlement of his human rights complaint had been reached, when no Commission
approval of such a settlement had ever been forthcoming.
[84]
Here,
once again, regard must be had to what the investigator’s findings actually
were. That is, the investigator’s recommendation that Mr. Loyer’s human rights
complaint be dismissed was based upon the finding that his human rights issues
had been dealt with through an arbitral award, and not through a settlement.
In these circumstances, I am not persuaded that there was a need to refer the
matter to the Commission for approval in accordance with the provision of
section 48 of the Act.
[85]
If I
am wrong in this regard, I am nevertheless of the view that section 48 should
not be interpreted so as to nullify the Commission’s section 44 decision.
[86]
Although
section 48 uses mandatory language, the reality is that human rights cases
settle all the time, without formal Commission sanction. On some occasions
parties will be unwilling to share the terms of a settlement with the
Commission, and, as a result, Commission approval will not always be possible.
There will be other occasions where the Commission is not made aware that a
settlement has been reached between the parties to a human rights complaint,
with the result that compliance with the section will also not be forthcoming.
[87]
There
has been little judicial consideration of section 48 of the Canadian Human
Rights Act. However, when the section is read in context, consistent with
the aims of the Act as a whole, and in light of the public interest mandate of
the Canadian Human Rights Commission, it is clear that the section is there to
ensure that the Commissioners themselves have input into settlements, so as to
ensure that the remedial goals of the Act are adequately addressed in the
resolution of individual complaints.
[88]
In
this case, in deciding under the provisions of section 44 of the Act that no
further inquiry into Mr. Loyer’s complaint was warranted in light of the
resolution achieved through the arbitral process, the Commissioners were
implicitly finding that the remedial goals of the legislation had been
adequately addressed through the Teplitsky award.
[89]
Having
regard to the frequent admonition of the Supreme Court of Canada that the Canadian
Human Rights Act is to be given a large and liberal interpretation, so as
to ensure that the remedial goals of the legislation are best achieved, it
would, in my view, be taking an unduly technical approach to the section to
find that, in the circumstances of this case, the Commission was deprived of
the jurisdiction to make a decision under section 44 of the Act as a result of
the lack of strict compliance with section 48.
Conclusion
[90]
For
these reasons, Mr. Loyer’s application for judicial review is dismissed. Both
parties agree that costs should follow the event, on the ordinary scale, and I
so order.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this application is dismissed, with costs.
“Anne
Mactavish”
Email this Content