Date: 20050414
Docket: T-852-04
Citation: 2005 FC 505
Ottawa, Ontario, April 14, 2005
PRESENT: MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JEAN CHERRIER
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (the Commission), dated April 1, 2004, by which the Commission referred the respondent's complaint to the Canadian Human Rights Tribunal (the Tribunal) under paragraph 44(3)(a) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
THE FACTS
[2] On December 5, 2001, the respondent filed with the Commission a complaint of discrimination based on disability against his former employer, the Correctional Service of Canada. He alleges in his complaint that his health status was ignored by his former employer when disciplinary sanctions were taken against him.
[3] In support of his complaint concerning his health status, the respondent submitted to the Commission a number of medical documents including, inter alia, the medical file in connection with his hospitalization at the Louis-H. Lafontaine Hospital from January 18 to 24, 2000.
[4] In this regard, on September 11, 2002, the applicant asked the Commission to approach the respondent for his authorization to have his medical records sent to the doctors at Health Canada.
[5] On November 28, 2002, the Commission notified the applicant that an investigator would be designated to gather the evidence pertaining to the allegations and, once the investigation was completed, to submit his findings in a report to the members of the Commission. In this letter of November 28, 2002, the Commission does not mention the applicant's September 11, 2002 request for access to the respondent's medical records.
[6] On December 24, 2002, the applicant repeated his request and demanded disclosure of the respondent's complete medical file, and more precisely the medical and hospital file of the Louis-H. Lafontaine Hospital, where the respondent had been hospitalized from January 18 to 24, 2000.
[7] On April 3, 2003, the Commission refused the applicant access to the respondent's medical file.
[8] On December 22, 2003, the investigator submitted his report recommending that the Commission request that a human rights tribunal be appointed.
[9] On January 9, 2004, the applicant again requested disclosure of all of the medical records concerning the respondent in the Commission's possession.
[10] On January 19, 2004, the Commission again refused the applicant's request and urged him to comment on the investigator's report.
[11] On February 6, 2004, the applicant notified the Commission that in his opinion the Commission's refusal to give him the medical files concerning the respondent's health status that were consulted by the investigator in the course of his investigation violated the most elementary rules of procedural fairness and paragraph 8(2)(d) of the Privacy Act, R.S.C. 1985, c. P-21.
[12] At the same time, the applicant provided his comments on the report of the Commission's investigator.
[13] On April 1, 2004, the Commission referred the respondent's complaint to the Tribunal under paragraph 44(3)(a) of the Act, provided an amicable settlement was not reached between the parties within 60 days after April 1, 2004.
[14] The applicant contends that in making its decision, the Commission violated the principles of procedural fairness because the investigation was neither neutral nor thorough.
[15] On the issue of neutrality, the applicant argues that the investigation was not neutral because the investigator categorically refused to disclose the respondent's medical file in connection with his stay at the Louis-H. Lafontaine Hospital although he was aware of its relevance since he considered it in his investigation. By deliberately concealing a relevant part of the evidence used in support of his report, the investigator favoured one party to the detriment of the other.
[16] The applicant further argues that by refusing to disclose the medical file in question, the Commission made an unreasonable omission that compromises the thoroughness of the investigation.
[17] Consequently, paragraph 44(3)(a) of the Act should not have been relied on in order to appoint a tribunal.
Preliminary remark
[18] This application concerns the non-disclosure of the medical file on the respondent's stay at the Louis-H. Lafontaine Hospital in January 2000. The present case may be contrasted, for example, with PSAC v. AG, 2005 FC 401, in which the applicant's case was mainly based on the merits of the Commission's decision under section 44 of the Act, and not some procedural defect in reaching that decision. The case at bar involves only a question of procedural fairness, therefore.
[19] The parties' submissions concerning the applicable standard of review lead me to make the following comments in order to clarify the applicable principles when it is a question of procedural fairness.
[20] The characterization of the duty of procedural fairness in a particular case and the determination of the applicable standard of review are distinct exercises, although some factors may apply in both cases (the nature of the decision made; the statutory scheme; the expertise of the decision maker) (C.U.P.E. v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539; Moreau-Bérubé v. New Brunswick(Judicial Council), [2002] 1 S.C.R. 249; Marchand Syndics Inc. v. Canada(Superintendent of Bankruptcy), [2004] F.C.J. No. 1926 (F.C.)). "The content of procedural fairness goes to the manner in which the [decision-maker] went about making his decision, whereas the standard of review is applied to the end product of his deliberations." (C.U.P.E., supra, at paragraph 102)
[21] Accordingly, it is inappropriate to put the question of procedural fairness to the standard of review test. Evaluating whether procedural fairness has been adhered to by a tribunal requires an assessment of the safeguards required in a particular situation (Moreau-Bérubé, supra, paragraph 74).
ANALYSIS
[22] Since Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, it has been clearly established that at the stage of determining whether or not to institute an inquiry under section 44 of the Act, the Commission is bound by the rules of procedural fairness. Essentially, under this rule, a complainant must know the allegations against him and have an opportunity to respond to them (see also [1984] 2 S.C.R. 407">Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407; BellCanada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), Mercier v. Canada(Human Rights Commission), [1994] 3 F.C. 3 (C.A.)).
[23] Procedural fairness does not require that the Commission systematically disclose to a party all of the documents it receives from the other party, but it does require that it inform the party of the substance of the evidence gathered by the investigator so that it may reply to that evidence.
[24] In Slattery v. Canada(Human Rights Commission), [1994] 2 F.C. 574 (T.D.), this Court held that it was not sufficient to provide the parties with the investigator's report; the report had to contain sufficient evidence to warrant appointment of a tribunal. In order for a fair basis to exist for the Commission to evaluate whether a tribunal should be appointed, the investigation must satisfy two conditions: neutrality and thoroughness.
[25] These principles are well known in law and the factors that are generally used to characterize procedural fairness simply support their application in this particular context. The decision whether or not to appoint a tribunal is a preliminary decision; the Commission fulfills a screening analysis by determining whether there is a reasonable or sufficient basis in the evidence for the complaint (see, for example, Cooper v. Canada(Human Rights Commission), [1996] 3 S.C.R. 854).
[26] By putting the appointment of a tribunal to this relatively low preliminary test, while giving the Commission extensive discretion concerning the dismissal of complaints (see paragraph 44(3)(b) and subsection 41(1) of the Act), the Act clearly shows that this screening function is an integral part of the Commission's overall mandate, effectiveness and jurisdiction. Moreover, the rights of the individuals affected by a human rights complaint are important. Thus, requiring the Commission to disclose the substance of the evidence to the parties and to give them an opportunity to respond to it strikes a fair balance.
[27] The applicant argues that the summary provided by the investigator is not sufficient since it does not allow him to verify its consistency with the facts, which he could have done had he been in possession of the clinical notes in the respondent's hospital records at the Louis-H. Lafontaine Hospital.
[28] But the investigator's report, which the applicant received and commented on, indicates inter alia that the respondent was hospitalized from January 18 to 25, 2000, and reproduces verbatim the conclusions drawn by the health professionals at the time of the respondent's admission to the Louis-H. LafontaineHospitaland at the time of his discharge.
[29] In my opinion, therefore, the applicant was aware of the main things in the hospital record and had an opportunity to reply to this evidence.
[30] The applicant argues that in using evidence provided by the respondent without disclosing that evidence to him, the investigator lacked neutrality. With all due respect, I do not see how the mere refusal to disclose a medical file demonstrates a lack of neutrality since the Commission's decision to request the Tribunal to inquire into the complaint was based specifically on the existence of divergent medical reports. It is obvious that the investigator examined all of the evidence gathered, including the assessments favourable to the applicant produced by the physician retained by the employer, Dr. Guérin.
[31] In my opinion, giving a party all of the relevant documents used in the investigation goes far beyond the parameters set in the cases on such matters. There is nothing in this case that would suggest that the information in the investigator's report was inaccurate or incomplete.
[32] Similarly, there is no reason to believe that the investigation was not thorough. On the contrary, the investigator examined, summarized and filed with the Commission all of the available medical evidence, whether favourable to the applicant or to the respondent. The fact that the investigator did not disclose a file does not constitute an omission capable of casting doubt on the thoroughness of his investigation.
[33] In Coward v. Canada(Attorney General), [1997] F.C.J. No. 1101, the applicant (whose complaint had been dismissed) argued that procedural fairness had been breached, for several reasons. More precisely, for the purposes that concern us here, the applicant argued that the investigation had been deficient because it provided only a report on the respondent employer's own internal investigation and because it was based on the depositions of witnesses contained in this internal investigation report. However, Mr. Justice MacKay rejected each of these arguments:
[45] In my view, based on the jurisprudence, there has been no breach of procedural fairness in the present circumstances. The applicant was aware of the substance of the case on the basis of the evidence provided by both parties to the Commission. He was provided with a summary of the CAF's internal investigation, as well as a copy of the CHRC Investigation Report containing the results of the investigator's findings, and was therefore fully apprised of the substance of the evidence before the CHRC. He was given an opportunity to respond to both these documents, and he did so by making detailed written submissions, which were among the documents before the Commission when it made its decision.
[34] In the case at bar, it was up to the applicant to show how the non-disclosure of the document did not allow him to respond adequately. As Mr. Justice Dubé said in Miller v. Canada(Canadian Human Rights Commission) (re Goldberg), [1996] F.C.J. No. 735, at paragraph 22 (T.D.), ". . . In order to constitute a reviewable error, the complainant must demonstrate that the information was wrongly withheld and that such information is fundamental to the outcome of the case."
[35] The applicant has pointed to no medical evidence that the investigator allegedly disregarded. I think it is fair to say that the applicant has not discharged his onus. The standard of proof has essentially been met, and if there is still any doubt about the accuracy of the medical report, it is for the Tribunal to clear that up.
[36] In my opinion, the applicant's contentions concerning neutrality and thoroughness are specious and do not reflect an understanding of the nature of the procedure he seeks to challenge. In order to determine whether it is appropriate to institute an inquiry by a tribunal on a complaint, the Commission simply satisfies itself that there is sufficient evidence to proceed to the following step. I am satisfied in this case that the Commission conducted a sufficiently thorough investigation, and that it considered the representations of the parties following the report. Accordingly, it had what it needed to make its decision as to the sufficiency of evidence warranting an inquiry into the complaint by the Tribunal.
[37] The parties' right to make full answer and defence is protected at the following stage of the proceeding before the Tribunal.
[38] For these reasons, this application for judicial review is dismissed, with costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed with costs.
"Danièle Tremblay-Lamer"
______________________________
Judge
Certified true translation
Peter Douglas
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