Date: 19981120
Docket: T-2361-96
BETWEEN:
PAUL GITTEL
Applicant
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AIR ATLANTIC (1995) LIMITED
Respondent
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CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
MacKAY J.
[1] By originating notice of motion, filed October 24, 1996, the applicant seeks an order quashing a decision of the Canadian Human Rights Commission, dated September 18, 1996, whereby the Commission refused to refer the applicant's complaint against the respondent to a human rights tribunal for an inquiry, and closed the file, in effect dismissing his complaint.
[2] The complaint was the second one by Mr. Gittel against his employer, a complaint made in March 1995 after he had been dismissed from employment on the day following his receipt of advice from the Commission that his first complaint was dismissed. While this application for judicial review concerns the dismissal of the second complaint, the circumstances of the first complaint are, at least in the applicant's view, significant, and reference to those circumstances was included in materials before the Commission when its decision was made on the second complaint.
Background
[3] The applicant was employed by the respondent airline from 1987 to 1995, originally as a First Officer and then, within seven months of being hired, as a Captain of aircraft. He was based at the Halifax International Airport. His duties consisted of flying Dash-8 aircraft on scheduled and chartered passenger transportation routes throughout eastern Canada and the north-east of the United States.
[4] In 1990, the applicant's father, a pilot, was killed in a flying accident. In 1980, the applicant's brother, also a pilot, had died in generally similar circumstances. In November 1990, the applicant voluntarily sought psychiatric assistance to help him cope with the loss of his father. The psychiatrist's opinion, forwarded to the respondent, was that the applicant was medically fit for active duty. The psychiatrist endorsed the applicant's request that a co-worker fly with him as first officer for his first few days back at work. The applicant was then examined by the respondent's physician, who told him that the respondent's Director of Flight Operations suspected that the deaths of the applicant's father and brother were suicides. When the applicant returned to work he complained to the respondent regarding the Director's views as communicated to him by the respondent's physicians. The respondent, through its Director of Personnel, issued an apology.
[5] In September 1992, the applicant had two confrontations, the first with a security officer and the second with a flight attendant. In October 1992, at a meeting, concerned with these incidents, when several senior executives and two pilot supervisors were present, the applicant was questioned about his having accessed a passenger's travel file, which the applicant said he had done in order to contact a female passenger. At that time there was a heated exchange. The Vice President of Operations, then in attendance, questioned the applicant's emotional state and indicated that he was going to have the applicant assessed for mental competence. The applicant was also advised that check pilots had signed a letter recommending that the applicant be relieved of duty flying aircraft.
[6] The applicant was relieved of duties pending the outcome of the assessment directed by the Vice President of Operations. In early December 1992 he was cleared to return to work by a psychiatrist who, while noting that the applicant had difficulty with team work, indicated that there was no shortcoming in his technical performance. The applicant was returned to duty, despite expressed concerns of the Director of Flight Operations. Subsequently, in early 1993, following two flight simulator tests which the applicant failed, and an assessment by the respondent's physician, the applicant was relieved of duty for three months on stress-related sick leave. At the time and later the applicant alleged that, because the check pilots present at the tests had been present at the October 1992 meeting, his assessment was biased. Soon after the applicant returned to duty in the spring of 1993, he was demoted to first officer for a minimum period of 25 months. That demotion led to a complaint by the applicant to the Canadian Human Rights Commission alleging discriminatory treatment based on the respondent employer's perception that he was mentally unstable.
[7] That was his first complaint to the Commission. Following investigation of that complaint, the investigator recommended that a conciliator be appointed to attempt to bring about a settlement of the complaint. A resolution to that effect was presented to, but not accepted by, the Commission, which determined in February 1995 to dismiss the applicant's complaint.
[8] Meanwhile, in December 1994, while he was serving as first officer, the applicant aborted a take-off because of his decision that the aircraft was not functioning properly. He filed the appropriate reports concerning the problem, and thereafter he continued flying aircraft for the respondent. During this aborted take-off he reportedly said "it's not going to fly", rather than saying "reject" as required by the company's operating rules. Following this incident the respondent objected to this irregularity and to the general circumstances of the aborted take-off.
[9] On February 15, 1995, the applicant and the respondent were advised by the Human Rights Commission that the applicant's earlier complaint of discrimination was dismissed. On the following day the applicant was advised by the respondent's representative that his employment was terminated because the respondent no longer considered him competent, and no longer had confidence in his ability, to fly as a pilot for Air Atlantic. The basic reasons expressed by the company, in its letter of February 16, 1995, dismissing Mr. Gittel, concerned his failure to follow standard operating procedures of the company in aborting the take-off in December 1994 instead of continuing the flight, and in not using the term "reject" when aborting the take-off he had caused a breakdown in crew co-ordination and communication with the captain of the aircraft.
[10] On March 21, 1995, the applicant filed a complaint with the Canadian Human Rights Commission, alleging discrimination based on perceived mental instability, i.e., his employer's wrongful perception that he was psychologically unstable, contrary to the Canadian Human Rights Act.1 In that complaint the applicant alleged that in 1990, following the death of his father in an aircraft accident, similar to the earlier death of his brother, the applicant's supervisor started questioning the applicant's mental stability, asserting that he posed a risk as an airline Captain. The applicant noted that he was subsequently demoted to First Officer and had filed a complaint with the Human Rights Commission.
[11] On August 14, 1995, the Commission's investigator finished his report regarding the complaint in regard to the applicant's dismissal. The respondent told the investigator that the applicant was released for failure to follow standard operating procedures when aborting the takeoff in December 1994, and that the company's primary concern was safety. The investigator concluded that the respondent's assertion that there had been a "complete breakdown" in cockpit communications was not supported by the incident reports filed at the time of the incident. Moreover, all the evidence suggested that the safety of passengers, crew and aircraft was not jeopardized by the incident. Statements from other pilots indicated the applicant's action may have saved lives. The investigator indicated that, since 1990, company representatives had repeatedly queried the applicant's mental stability which led the applicant to obtain several psychiatric opinions which found him fit to perform his job. The report of the investigator recommended that a conciliator be appointed, pursuant to s. 47 of the Canadian Human Rights Act, to attempt to settle the complaint against the respondent. That recommendation was approved in November 1995, but conciliation efforts ultimately proved unsuccessful.
[12] In the course of the investigation and conciliation process the parties made written submissions on September 18, 1995, concerning the investigator's report. The applicant included with his comments a letter by an experienced pilot, flying the same aircraft for another employer, which positively supported the applicant's action in safely rejecting a take-off. The respondent made written submissions on September 20, 1995. On September 27, 1995, these submissions were cross-disclosed between the parties and on October 13, 1995, the applicant presented further written comments on the respondent's submissions. Following the unsuccessful efforts to conciliate the matter a report addressed to the Commission from its Director of Compliance, dated July 12, 1996, was circulated to the parties for comment. This report referred to the failure of conciliation, to the complexity of the case and it recommended either referral to a tribunal or a decision that such referral was unwarranted and the file be closed. Both parties submitted written comments concerning that report. Those submissions were not cross-disclosed to the opposing parties.
[13] By memorandum of August 20, 1996, the Commission's Acting General Counsel advised that efforts to conciliate the dispute had failed. In this report, the General Counsel recommended that the case be sent to a tribunal for determination. The report refers to submissions dated August 13, 1996 from counsel for the respondent as follows:
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In her submissions dated August 13, 1996, counsel for the respondent raises a number of issues related to the investigation process and the cross-disclosure of submissions. |
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In a number of places, Respondent counsel refers to materials disclosed to them as part of the package containing the Conciliator's Report and indicates that this is the first time the Respondent has seen them. In each case she requests that the Commission not take these into consideration or provide the Respondent with an opportunity to respond. It is my view that the fact that these were disclosed as part of the package to which the Respondent was invited to respond is sufficient to meet the Commission's duty of procedural fairness. The respondent's decision not to respond to these can be seen as a waiver of any right to later complain that it was not given an adequate opportunity to respond. |
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Similarly, Respondent counsel points to errors or misinterpretations in the Investigation Report and urges the Commission to review the materials upon which these conclusions were based. To the extent that these errors have been corrected by respondent counsel in her submissions then they are unproblematic. To the extent that there are errors in the Investigation Report which have not been corrected by the respondent through its submissions, then I would again take the view that the respondent has waived any right it has to argue a breach of procedural fairness. Both parties argue that the whole investigation file should be made available to the Commission and this would certainly pre-empt any later claim that the Commission had based its decision on incorrect information. |
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[14] At the hearing of this application for judicial review, there was no disagreement between the parties that the August 13, 1996 letter on behalf of the respondent, referred to in the General Counsel's report, was not disclosed to the applicant. That letter requests, inter alia, that the Commission not consider the supportive letter, earlier submitted by the applicant, from another airline pilot to the effect that the applicant's actions in aborting the flight in December 1994 were professional and proper.
[15] That letter of August 13, 1996 from the respondent's counsel, together with the applicant's letter of August 14, 1996, both commenting upon the report of the Director of Compliance reporting that conciliation efforts were unsuccessful, and other documents, including the letter supportive of the applicant to which respondent's counsel objected, were included in the materials submitted for consideration by the Commission with the reports of the General Counsel and the Director of Compliance.
[16] By letter dated September 18, 1996, the Commission advised the applicant that an inquiry into the complaint was not warranted and that the file was closed. That is the decision questioned by this application for judicial review.
The issues and argument
[17] The applicant's principal argument when this matter was heard is that the Commission failed to observe a principal of natural justice, and to provide procedural fairness when, prior to rendering its decision, it failed to provide the applicant with a copy of the representations made by the letter of August 13, 1996, on behalf of the respondent, and an opportunity to comment upon them. As noted earlier this letter was not disclosed to the applicant before the Commission made its decision. It is said that this letter urged the Commission not to consider evidence viewed as vital to the applicant's complaint, specifically, the positive assessment of the applicant's conduct by another experienced airline pilot, and that counsel's letter also urged consideration of other documents earlier provided by the respondent to Commission staff, including the letter of February 16, 1995 from the respondent which advised the applicant of his dismissal from employment.
[18] The applicant also argues that the Commission based its decision or order on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it in that it ignored the evidence before it of continuous harassment of the applicant by the managers of the respondent. As a result, the decision of the Commission not to refer the matter to a tribunal for hearing was said to be perverse and made in a capricious manner.
[19] The respondent submits that the August 13, 1996 letter was not of vital importance, that it amounted to mere commentary, and did not suggest new facts that might require disclosure to the applicant.
[20] For the CHRC, as intervenor, it is urged that it is an administrative tribunal, whose decisions are not required to be made in a judicial or quasi-judicial basis. Procedural fairness, which the Commission must provide, is said to concern the manner in which the tribunal has reached a decision, not the decision itself. Section 41 of the Canadian Human Rights Act vests the Commission with discretion in its consideration of complaints. The Commission, when dealing with a complaint, may appoint an investigator under s-s.43(1), it may appoint a conciliator under s-s.47(1), both of which steps were here taken, and it may refer the complaint to a human rights tribunal under s-s.49(1). Where an investigator is appointed, he or she must submit a report to the Commission, which, in its discretion, may adopt or reject the report. It is not bound by recommendations of an investigator, a conciliator, or other staff member. It may dismiss the complaint, under paragraph 43(3)(b). In making a decision to dismiss the complaint, the Commission, which is master of its own procedures, may make its decision on the basis of the complaint itself, or after considering an investigator's report or a conciliator's report and the submissions of the parties on any such report.
[21] In the case at bar, it is urged on behalf of the Commission, with the support of the respondent, that there is no evidence that the Commission failed to consider the material before it, or discounted in any way the submissions of the applicant. It is urged that the Commission is not required to disclose every submission it receives from one party to a complaint to the other party. Cross-disclosure is necessary where the submissions contain facts that differ from the facts set out in an investigation report or a report on conciliation that is provided for comment by the parties. Where submissions are merely arguments related to the facts, fairness may not require cross-disclosure, particularly where no new facts are alleged beyond those already provided to the parties at an earlier stage. The intervenor urges that where statutory discretion has been exercised in good faith, according to the law, in a reasonable manner, where reliance is not placed on considerations irrelevant or extraneous to the statutory purpose, the Court should not intervene.
Analysis
[22] I am not persuaded that any basis exists to intervene on the ground of an error of fact in the Commission's decision. The error of fact alleged is essentially that the Commission was clearly wrong in dismissing the complaint, given the evidence adduced by the applicant, particularly including the evidence of harassment by his employer, commencing with evidence of his treatment that led to his first complaint. In short, it is urged that the Commission's decision is perverse.
[23] I note, however, that the courts have routinely held that the Commission has broad discretion to dismiss a complaint and to close a file. In Morisset v. Canada (Canadian Human Rights Commission)2, Mr. Justice Dubé wrote as follows:
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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.[references omitted] 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 v. Canada (Canadian Human Rights Commission), (1989) 2 S.C.R. 879.] |
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...the provisions of s. 44(4), the Act provides that on receiving the report the Commission will inform the parties of the decision made in writing. The Supreme Court of Canada has already held in Maple Lodge Farms [[1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at 7 and 8.] 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. |
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In Tan v. Canada Post Corp.3, Jerome A.C.J., commenting on a decision of the Commission, noted:
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...As long as the Commission does not arrive at the decision not to proceed by failing to consider the material evidence before it, there are no grounds for judicial intervention on review. |
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[24] There is no evidence before me that the Commission failed to consider the material before it or that in considering the matter it exercised its discretion improperly. I am not persuaded that the Commission erred in its assessment of the facts, as alleged by the applicant, or that it ignored evidence in the record before it, in deciding not to refer the matter to a tribunal. On the basis of the evidence before it, including the letter supporting the applicant, in my opinion it was open to the Commission to reach the decision that it did. That decision was one of two alternative courses of action proposed by the Director of Compliance for consideration of the Commission.
[25] The remaining issue in this case is whether the failure to disclose the August 13, 1996 letter constituted a breach of procedural fairness. In Mercier v. Canada (Human Rights Commission)4, the Court of Appeal held that cross-disclosure of submissions is required where the comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them before an investigation is completed. In that case, Mr. Justice Décary, writing for the Court, commented as follows:
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I am not saying that the rules of procedural fairness require that the Commission systematically disclose to one party the comments it receives from the other; I am saying that they require this when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the stage of the |
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investigation, properly speaking. I recognize that it will not always be easy to determine when comments cease to be "argument", to use the words of Sopinka J. [in Syndicat des employés de production du Québec et de l'Acadie v. Canada |
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(Canadian Human Rights Commission), [1989] 2 S.C.R. 879], and become new allegations that must be brought to the attention of the other party; if the Commission were to decide to continue its general practice of not disclosing comments, it will still have to examine each case individually and practise great vigilance so as to avoid a party in a particular case, such as the case at bar, not receiving disclosure of comments that are such as should have been brought to that party's attention. It would seem to me that it would be in the Commission's interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. Otherwise, and here I am adopting the views of Mahoney J. in Labelle, the Commission will always be exposed to an application for judicial review "because it will always be prima facie arguable that the complainant was not made aware of, and hence was denied a fair opportunity to meet, the whole of the contrary case." |
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[26] Earlier, Décary J.A. commented as follows:
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As Lord Denning noted, that which procedural fairness requires depend on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. Cory J. recently recalled the applicable principles, as follows:5 |
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This Court has repeatedly recognized the general common law principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party's own position. |
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[27] Where submissions of one party do more than provide an interpretation of facts before the Commission, if they affect the content of the evidence before that body, the submissions should be disclosed. In my view, procedural fairness requires disclosure where those submissions limit the evidence that is considered, particularly evidence that the other party has every reason to believe will be considered. In those circumstances the submissions should be disclosed before any decision is made.
[28] In the case at bar, however, the letter of August 13, 1996 from counsel for the respondent, while it urged that certain evidence earlier submitted by the applicant be disregarded by the Commission, evidence which the applicant considered relevant to his case, there is no evidence the action proposed by the letter was followed. Rather, both the letter of August 13, and the letter which it urged be disregarded were submitted to the Commission, as were the written submissions of the applicant made on August 14, 1996. There is no record or evidence that the submission of counsel, made to the Director whose report was before the Commission, had any effect. We do know that the Commission had before it, the letter of August 13, 1996, on behalf of the respondent, written submissions of the applicant made at the same time, and the letter commending his action in aborting take-off in December 1994. In these circumstances, the Commission was not obliged, in my view, to disclose to the applicant the letter of August 13, 1996, written on behalf of the respondent, before his complaint was dismissed.
[29] Counsel for the CHRC urged that as the Commission is the master of its own procedure, it could choose what evidence it wished to consider in rendering its decision. However, while the Commission is the master of its own procedure, it must still comply with the principles of procedural fairness in its decision-making. Here, the Commission had before it submissions, which had not been disclosed to the applicant, urging that it not consider certain evidence. But at the same time it also had before it the very evidence to which the respondent's counsel had objected. There is no evidence that it ignored the evidence in question. In my view, in the circumstances, the requirements of procedural fairness were met.
Conclusion
[30] For these reasons, this application for judicial review is dismissed. An order issues accordingly.
W. Andrew MacKay
Judge
OTTAWA, Ontario
November 20, 1998.
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1 R.S.C. 1985, c. H-6 as amended.
2 (1991), 52 F.T.R. 190.
3 (1995) 97 F.T.R. 1 at 9 (F.C.T.D.).
4 [1994] 3 F.C. 3 at 12 and 14 (F.C.A.).
5 Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 402.
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