Williams v. First Air, docket T-2579-94

Date: 19981217

Docket: T-2579-94

IN THE MATTER OF an application for judicial review

         pursuant to section 18.1(1) of the Federal Court Act, R.S.C.

         1985, c. F-7, as amended;

BETWEEN:

     JASMINE WILLIAMS

     Applicant

     - and -

     FIRST AIR and

     CANADIAN HUMAN RIGHTS COMMISSION

     Respondents

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]      This is an application for a judicial review seeking an order setting aside a decision of the Canadian Human Rights Commission (the "Commission") dated September 22, 1994 made pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act , to dismiss the complaint on the basis that on evidence the allegation of discrimination is unfounded.

[2]      The applicant"s application record raised different arguments including five major arguments questioning the validity of section 44(3)(b)(i) of the Canadian Human Rights Act .

[3]      The applicant has served a notice of constitutional question pursuant to section 57 of the Federal Court Act to the Attorney General of Canada and Attorney Generals of each province and the two respondents.

[4]      At the beginning of the hearing, the Court raised the point that the service of the notice did not follow the prescription of section 57, paragraph 2, of the Federal Court Act.

[5]      The Court also raised the point that pursuant to section 47 of the Federal Court Act, when a party intends to challenge the constitutionality of an act of Parliament, the action is against the Crown and according to section 48, such proceeding against the Crown shall be instituted by statement of claim or declaration and not by an application for judicial review.

[6]      The three parties made their representations and finally the applicant, through her counsel, Mr. Grenville-Woods, decided to withdraw the notice of constitutional question.

THE FACTS

[7]      The applicant was hired by the respondent First Air as a customer service agent on a part time basis on January 17, 1990.

[8]      On June 1, 1990, less than six months after she commenced her job, she was fired.

[9]      The applicant submitted a complaint to the Commission on September 18, 1990; in that complaint, she alleged that First Air had discriminated against her on the basis of colour and national or ethnic origin.

[10]      The Commission notified the respondent First Air of the applicant"s human rights complaint in a letter dated October 15, 1990.

[11]      Shortly after, an investigation was commenced and an investigator met with witnesses including the applicant, and several employees of the respondent First Air.

[12]      A first investigation was commenced by an investigator, Ms. Hardy.

[13]      Another investigator, Ms. Michelle Paton had commenced a second investigation and met all the witnesses including the applicant, several employees of the respondent First Air and two other witnesses, Ms. Maria Del Rosario Laguna and Mr. David R. Juillet, at the request of the applicant.

[14]      The investigator has submitted an investigation report to the project manager Mrs. A.M. Rooke and finally the investigation report was submitted to Mr. Frank Roscoe, Director, Compliance and Antidiscrimination Program Branch of the Commission.

[15]      Ms. Joanne Bishop for Michelle Paton and Mrs. A.M. Rooke have signed the investigation report on October 28, 1993 and Mr. Frank Roscoe has signed the investigation report on August 26, 1994.

[16]      Finally, on September 22, 1994, Mrs. Lucie Veillette has sent a letter to the applicant explaining the decision of the Commission:

Dear Ms. Williams:

The Canadian Human Rights Commission has reviewed the investigation report of your complaint (H31937) against First Air dated September 18, 1990, alleging discrimination in employment on the grounds of race, national or ethnic origin and colour. The Commission also reviewed your submission dated April 26, 1994.

The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence the allegation of discrimination is unfounded.

As the Commission"s decision is final, we have closed our file on this complaint.

                     Yours sincerely,

                     Lucie Veillette

[17]      The three counsel have reviewed the facts and they all agree on the sequence of events.

THE APPLICANT"S ARGUMENTS

[18]      The applicant"s counsel has raised different elements that we should address.

[19]      The investigation report was signed by Joanne Bishop for Michelle Paton on October 28, 1993 and the Director of Compliance and Antidiscrimination Program Branch, Frank Roscoe, has signed the same investigation report on August 26, 1994.

[20]      In between, two witnesses, Mr. David R. Juillet and Ms. Maria Del Rosario Laguna have sent letters to Mrs. Anne Rooke, Manager, Complaints Clearance Project.

[21]      The two letters were submitted as an appendix to an affidavit signed on October 25, 1994, for Mr. Juillet and also on the October 25, 1994, for Ms. Maria Del Rosario Laguna.

[22]      Those two affidavits were challenging the investigation report prepared by the investigator.

[23]      The applicant"s counsel suggests that, given the affidavits and the two letters that were sent and filed to the Commission between the signature of the investigator and the final signature of Mr. Roscoe, maybe this information was not taken into account in the final decision rendered on September 22, 1994.

[24]      The applicant"s counsel also suggests that a letter sent by Mrs. Diane S. Chamaillard, Human Rights" officer for the Commission, to Mr. Jacques A. Emond, the lawyer representing the respondent First Air, would have led the applicant Mrs. Williams to believe that given that the Human Rights" officer was providing the respondent First Air with the settlement offer, that meant that her complaint was founded.

[25]      The applicant"s counsel suggests also that the written testimonies of Mr. David Juillet and Ms. Maria Del Rosario Laguna, were contradictory with testimonies by employees and supervisors of the respondent First Air, and given that the respondent Canadian Human Rights Commission should have requested the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire about the complaint to which the report relates, pursuant to section 44(3)(a)(i) of the Act.

[26]      The applicant"s counsel also suggests that the fact that the investigator has assessed the credibility of witnesses, the investigator has performed more than just an administrative enquiry and the Commission has the obligation to request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 of the Act.

[27]      The applicant"s counsel asked a question: "Should the CHRC (Canadian Human Rights Commission) order a hearing at that stage (on receipt of a report of investigation)? The applicant"s counsel suggests that we should answer yes to that question and that the Commission should have gone to the second step of the process and appoint a Human Rights Tribunal.

THE RESPONDENTS" ARGUMENTS

[28]      The respondent First Air"s counsel has raised many points.

[29]      Firstly, the first investigator has not made any report.

[30]      Secondly, the second investigator has met all the witnesses and has made a very detailed report of 118 paragraphs that is very comprehensive of the facts.

[31]      That report was sent to the applicant and the applicant had the opportunity to answer fully the investigation report, what she has done by a four page letter of April 26, 1994 with an appendix of twenty-four supplementary pages where she addressed, paragraph by paragraph, the investigation report.

[32]      The respondent First Air"s counsel suggests that there is no evidence that the Commission has not considered all the evidence that was put before it, because it had all the documents. The respondent First Air"s counsel also suggests that the jurisprudence supports his position.

[33]      Referring to sections 44, 47 and 49 of the Canadian Human Rights Act, the Commission"s decisions are discretionary.

[34]      The Commission may accept or reject the recommendation of the investigator. The respondent First Air"s counsel referred to Morissette v. Canadian Human Rights Commission (1991), 52 F.T.R. 190 at pages 196-97:

The Act does not require that members of the Commission examine the complete record of the investigation. The Act does not provide for an oral hearing in the case of an investigation, but provides for written observations, unlike the investigation by a Tribunal, where the hearing takes the form of an adversary proceeding. The members of the Commission must decide based on the material before them whether the evidence provides reasonable justification for proceeding to the next stage (See Syndicat des employés de production du Québec et de l"Acadie v. Canada (Canadian Human Rights Commission) [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R. (4^th) 385, at 898 S.C.R.; Whiteman v. Canada (Canadian Human Rights Commission et al. (1987), 9 C.H.R.R. D/4922 (F.C.A.), para. 37973; Syndicat des employés de production du Québec et de l"Acadie, supra, at 902 S.C.R. and Syndicat des employés de production du Québec et de l"Acadie v. Canadian Human Rights Commission et al. (1988), 9 C.H.R.R. D/4922 (F.C.A.), at D/4927). In the case at bar, they decided that there was no basis for proceeding to the second stage. The Supreme Court of Canada has held that this is a purely administrative decision (See Syndicat des employés de production du Québec et de l"Acadie, supra, at 899).

In the same decision, Mr. Justice Dubé also says:

The Act does not require that the Commission"s decision communicated to the applicant take a particular form and be accompanied by reasons when the complaint is dismissed.

[35]      The respondent First Air"s counsel also suggests that the procedural fairness requires only that the investigator"s report address the fundamental aspects of the complainant"s alleged incidents of discrimination.

[36]      The counsel referred to Slattery v. Canada (Canadian Human Rights Commission) [1994] F.C.J. No. 181, paragraphs 56 and 57:

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.

(...)

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 reviews would be warranted.

[37]      In the case at bar, the applicant has had the opportunity to answer to the investigation report, what she did in fact by filing to the Commission an extensive document responding to almost each paragraph of the investigation report.

[38]      The respondent First Air"s counsel also suggests that if a statutory discretion has been exercised in good faith, according to the law, in a reasonable manner, where reliance is not being placed on considerations irrelevant or extraneous to the statutory purpose, this Honourable Court should not interfere. Counsel refers to the Morissette¹ case where Justice Dubé says:

The Supreme Court of Canada has already held in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2; 44 N.R. 354; at 7 and 8 S.C.R., that the court should not intervene where a discretionary power has been exercised under the Act reasonably, in good faith, without reference to extraneous considerations and neither arbitrarily nor unlawfully.

[39]      I also refer to the decision Gaétan Brouillette v. Canadian Human Rights Commission, (1986), 9 C.H.R.R. D/5317 (F.C.A.) paragraphs 40041 and 40043, where Justice Marceau says:

During the investigation the applicant had been in constant touch with the investigator and had had every opportunity to present his arguments, he had been able to follow the progress of the investigation and had suggested persons who should be questioned. When the investigation was concluded, the applicant had received the lengthy and detailed report of the investigator together with a formal invitation to submit in writing any further representations he wished to make, an invitation which had actually been acted on by his lawyer in a letter to the Commission in which, after briefly restating the allegations already made, he had asked the Commission to hear witnesses at a hearing. But the decision had been made without anything further being added.

(...)

The Commission has to ensure that the complainant, as well as all the other parties concerned, has been fully informed of the substance of the evidence gathered by the investigator and has had an opportunity to make, verbally or in writing, all the relevant representations he wishes to make. There is no doubt that this was done in the case at bar. It is true that the Supreme Court speaks of fundamental requirements, thereby suggesting that special circumstances might give rise to additional requirements - and this is in fact what appears to have led to the judgment of that Court shortly before in Cashin v. Canadian Broadcasting Corps., [984] 2 F.C. 209, (5 C.H.R.R. D/2234). We do not feel, however, that the circumstances of the case at bar are so exceptional as to make procedural measures other than the basic ones necessary if justice is to be done, assuming - which appears to be very doubtful in view of the functions of the investigator and of the Commission and the powers respectively conferred on them, but as to which we do not feel it is necessary to make any ruling - that such additional measures could ever include the one claimed here by the applicant, namely an open investigation at which witnesses could be formally cross-examined.

[40]      The respondent Canadian Human Rights Commission"s counsel refers to the Syndicat des employés de production du Québec et de l"Acadie v. Canada (Canadian Human Rights Commission [1992] 2 S.C.R. 879 at 902:

The Commission was entitled to consider the investigator"s report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

[41]      Counsel also refers to the same decision at page 899:

Accordingly, I conclude from the foregoing that, in view of the nature of the Commission"s function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson , supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness.

[42]      On this particular element of "duty of fairness", the counsel refers to the Slattery² case, paragraphs 47, 49 and 50:

Sopinka J. held that in order to satisfy the duty of fairness, the CHRC had to inform the parties of the substance of the evidence obtained by the investigator, and which was put before the CHRC. As well, the CHRC was required to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. In making its decision to dismiss the complaint without a tribunal hearing:

The [CHRC] was entitled to consider the investigator"s report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. (S.E.P.Q.A., page 902)

(...)

In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to subparagraph 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.

With regard to neutrality, it has been held that if the CHRC simply adopts an investigator"s conclusions without giving reasons, and those conclusions were made in a manner which may be characterized as biased, a reviewable error occurs.

[43]      Relating to the second condition at paragraphs 53 and 55:

The requirement of thoroughness of investigation seems from the essential role that investigators play in determining the merits of particular complaints. This essential role was recognized by the Supreme Court in the S.E.P.Q.A. case. In the words of Sopinka J.:

In general, complainants look to the Commission to lead evidence before a tribunal appointed under [section 49], and therefore investigation of the complaint is essential if the [CHRC] is to carry out this role. (S.E.P.Q.A. at 898)

(...)

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 complaint"s and respondent"s interests in procedural fairness and the CHRC"s interests in maintaining a workable and administratively effective system.

CONCLUSION

[44]      The Court has reviewed the documents that were filed, the arguments by the parties and the authorities that were submitted to the Court.

[45]      The applicant has not convinced me that there was an error in the way the investigation was carried out under the provisions of the Canadian Human Rights Act.

[46]      As soon as the investigation report was submitted to the Commission, the Commission has sent the report to the applicant and the applicant has had the opportunity to answer to that investigation report in details, what she did.

[47]      After that, the Commission, pursuant to section 44(3) of the Act, decided to "dismiss the complaint because on the evidence the allegation of discrimination is unfounded".

[48]      There is no evidence before this Court that the Commission has not considered all the evidence that was before it before making its decision.

[49]      Pursuant to section 44(3) of the Act the Commission had the discretionary power to accept or reject the recommendation of the investigator.

[50]      The Commission had decided to follow the disposition of 44(3)(b) to dismiss the complaint, what she had the right to do.

[51]      The applicant has not convinced me that the procedural fairness required by the law and the jurisprudence was not followed by the investigator or the Commission.

[52]      As it was mentioned, it was affirmed by the jurisprudence in Morissette and Maple Lodge Farm that "if a statutory discretion has been exercised in good faith according to the law, in a reasonable manner, where reliance is not being placed on consideration irrelevant or extraneous to the statutory purpose, this Honourable Court should not interfere".³

[53]      For these reasons, the application is dismissed with costs against the applicant.

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

December 17, 1998

__________________

¹      Supra p. 197.

²      Supra.

³      Supra p. 197.