Date: 20050308
Docket: T-1958-04
Citation: 2005 FC 339
Ottawa, Ontario, this 8th day of March, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MICHEL TREMBLAY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Tremblay complained to the Canadian Human Rights Commission that his employer, Health Canada, had treated him in an adverse differential manner and discriminated against him contrary to the Canadian Human Rights Act. The Commission appointed an investigator. Mr. Tremblay objected to the appointment on the basis that a reasonable apprehension of bias was raised due to the fact that the investigator had previously been employed by Health Canada.
[2] By letter of 14 May 2004, Ms. Sherri Helgason, Commission Director, wrote to the lawyer Mr. Tremblay had at the time stating that there was no conflict of interest. She concluded by saying:
When a manager assigns a file to a contract investigator, the manager reviews the complaint and asks the contract investigator if there are any conflict of interest issues. If so, the file is not sent to that contract investigator. If during the course of the investigation, a contract investigator discovers a conflict of interest, the investigator alerts the manager and the file is reassigned. We have discussed the matter with Mr. Grainger and we are satisfied there is no conflict of interest.
[3] Mr. Tremblay took no steps at that time to contest the decision.
[4] Come October 2004, the Commission dismissed his complaint. That decision is subject to an application for judicial review. The application alleges that in its final decision the Commission failed to consider the argument raised on the appointment of the investigator and again in Mr. Tremblay's reply to his report that there was a reasonable apprehension of bias due to his previous employment by Health Canada.
[5] Mr. Tremblay requests, pursuant to Federal Courts Rule 317, copy of all relevant material in the possession of the Commission. The current dispute relates to the Commission's refusal to provide any material in its possession relating to Mr. Tremblay's allegation of a reasonable apprehension of bias due to the previous employment of the investigator.
[6] There are three parties to this application. Mr. Tremblay as applicant, the Attorney General of Canada, for Health Canada, as respondent and the Canadian Human Rights Commission itself.
[7] Upon the Commission's refusal to provide the requested material, Mr. Tremblay sought directions. Prothonotary Tabib set out a schedule for written representations. Both the Commission and the Attorney General filed submissions in opposition to the request, and Mr. Tremblay has replied.
HEALTH CANADA'S POSITION
[8] In brief, the Attorney General argues that it is only the Commission's decision of October which is under review. The 30-day limitation fixed by section 18.1(2) of the Federal Courts Act has elapsed with respect to Ms. Helgason's decision of 14 May 2004. Furthermore, rule 302 provides that unless the Court orders otherwise, an application for judicial review is limited to a single order in respect of which relief is sought.
THE COMMISSION'S POSITION
[9] The Commission argues that it is only required to disclose documents which were before it at the time of decision making. The documents requested were not before it. There is a distinction to be drawn between the investigation and decision-making phases of the Commission's work (Pathak v. Canada (Canadian Human Rights Commission), [1995] 2 F.C. 455 (C.A.).
[10] In Pathak, Pratte J.A. said at paragraph 10:
A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.
[11] Furthermore, it says that the decision of Ms. Helgason was an internal "operational decision" during the investigative phase and thus is not a decision of the Commission and is not reviewable by this Court.
MR. TREMBLAY'S POSITION
[12] Mr. Tremblay's reply is that a reasonable apprehension of bias means that the Commission's decision is void ab initio, and that the principles of natural justice have not been met. He takes the position that the May decision was "interim".
DISCUSSION
[13] The Commission argues that the documents in question were not before it when it made its decision. That allegation is not backed up by affidavit. Furthermore, the question is not whether the documents were before the Commission, but rather whether they should have been. They should have been because the bias point was specifically raised in Mr. Tremblay's commentary on the investigator's report.
[14] The Commission has jurisdiction to deal with rights and duties. Notwithstanding the distinction to be drawn between the Commission's investigations and its decisions, a bias on the part of an investigator could have unfortunate repercussions to a complainant. The right to a fair hearing is primordial. One cannot refuse to produce documents on the grounds that the decision was "operational". The decision was one which affected "the rights, privileges or interests of an individual..." (Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at p. 653).
[15] There may or may not be a reasonable apprehension of bias because of the previous employment of the investigator. That is not before the Court. The material requested is relevant to the application as framed and so must be produced.
[16] It is not necessary at this stage to decide whether the decision of May 2004 is a separate decision which should be the subject of a separate application for judicial review.
ORDER
1. The Canadian Human Rights Commission shall, within 20 days, transmit to the Registry and to Mr. Tremblay a certified copy of all material in its possession relating to the allegation that the appointment of Rod Grainger as an investigator raised a reasonable apprehension of bias.
2. The delays for the applicant to file his record shall be extended accordingly.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1958-04
STYLE OF CAUSE: MICHEL TREMBLAY
AND
THE ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: HARRINGTON J.
DATED: MARCH 8, 2005
WRITTEN REPRESENTATIONS BY:
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YAVAR HAMEED
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FOR THE APPLICANT
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ALEXANDRE KAUFMAN
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FOR THE RESPONDENT
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VALERIE PHILLIPS
MONETTE MAILLET
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FOR THE CANADIAN HUMAN RIGHTS COMMISSION
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SOLICITORS OF RECORD:
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