Date: 20040130
Docket: T-311-02
Citation: 2004 FC 149
BETWEEN:
NATASHA RUCKPAUL
Applicant
- and -
CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] Pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act (the "Act"), the Canadian Human Rights Commission (the "Commission") dismissed Natasha Ruckpaul's complaint to the Commission that her employment with Citizenship and Immigration Canada ("CIC") was terminated because of her perceived national origin or ethnicity, a prohibited grounds of discrimination, contrary to section 7 of that Act.
[2] Subparagraph 44(3)(b)(i) mandates the Commission, on the receiving of an investigator's report, to "dismiss the complaint to which the report relates if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry [by the Canadian Human Rights Tribunal] into the complaint is not warranted".
[3] In its letter of January 24, 2002, to the applicant, the Commission expressed the following reasons for dismissing her complaint:
• the evidence does not support the allegation that the complainant was discriminated against because of her national or ethnic origin; and
• the evidence suggests that the complainant's employment was terminated due to job performance issues.
[4] The central issue raised by the applicant's judicial review application is whether the Investigator and the Commission dealt with her fairly in the processing of her complaint.
[5] Her counsel argues she was denied procedural fairness in the handling of her complaint for the following reasons:
(i) invoking a line of cases developed from Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, (T.D.), a decision by Justice Nadon, then a member of the Trial Division, the investigation of her complaint was neither neutral nor thorough;
(ii) the applicant was denied proper disclosure; and
(iii) the Commission breached subsection 32(2) of the Act in contracting out the investigation to an unqualified contract investigator who completed the investigation then in process.
THE FACTS
[6] On May 7, 1999, CIC hired the applicant to coordinate the provision of interpretation services at Camp Argonaut on Canadian Forces Base Gagetown in Oromocto, N.B.
[7] It was at Camp Argonaut that Canada was receiving, housing and processing Kosovar refugees in a mission known as Operation Parasol.
[8] The Kosovar refugees had fled the armed conflict which saw NATO forces at war against the Serbian Army in Kosovo. That conflict followed on the footsteps of warfare between member states in the former Yugoslavia in the early 1990's.
[9] On May 27, 1999, CIC terminated Natasha Ruckpaul's contract allegedly for cause related to her work performance. The applicant says the real reason she was terminated was because she was perceived to be Serbian by the Kosovar refugees who did not want to have anything to do with persons of that ethnicity - the oppressors whom they were fleeing.
[10] In fact, the applicant is of Croatian origin and had her principal residence in Bosnia from which she fled in 1992 and began working as an interpreter in various sites and refugee camps.
[11] Sandra Kozak was appointed by the Commission to investigate the complaint. The record reveals she worked with the applicant and her counsel preparing a statement of particulars which was finalized in early December 1999 and that, on January 14, 2000, she was provided by the applicant's counsel with 68 suggested questions to be asked of CIC.
[12] On April 7, 2000, the investigator disclosed to the applicant for review and comment CIC's response document to the complaint. What was disclosed to the applicant included CIC's answers to 9 questions asked of it by the investigator and 10 CIC witness statements.
[13] Also included in the April 7, 2000 material was an unsigned copy of a contract of service agreement between CIC and the applicant.
[14] The first paragraph at page 3 of the draft agreement reads:
The use of interpreters of Serbian descent will not be used. Other non-Albanian speaking interpreters will be used as little as operationally possible due to the potential conflict and/or distress of refugees. All attempts to secure the services of Albanian-speaking interpreters will be made. If the required number of Albanian-speaking interpreters is not possible, then priority will be given to known non-Serbian interpreters speaking Serbo-Croatian. [emphasis mine]
[15] In addition, page 1 of that document stated:
Albanian-speaking interpreters will be identified and selected by CIC. Locally hired Serbo-Croatian speaking interpreters may be identified by the coordinator but must be approved before hiring by CIC.
[16] Applicant's counsel responded to CIC's disclosure on May 4, 2000. He made general and specific observations. He emphasized the language in the draft contract of service which in his view was proof positive of CIC's intention to keep interpreters of Serbian descent out of Camp Argonaut representing a direct discriminatory motive and raised a real possibility she was terminated because of perceived Serbian descent and substantiated her statement in her original complaint, there was an anti-Serbian aspect to CIC's hiring and firing policies at Camp Argonaut.
[17] He argued the criteria of preferential hiring of Albanian speaking interpreters to be a form of indirect discrimination. He provided a lengthy argument that the applicant was an employee of CIC and not an independent contractor.
[18] He pointed out the key issue was whether CIC had other non-discriminatory just cause grounds to terminate her employment and stated the answer was no. He reviewed all witness statements and argued none of the grounds relied upon by CIC would stand up as valid just cause justifications at common law. Those statements, he argued, show that CIC completely failed to properly supervise, instruct and most important, warn Ms. Ruckpaul of her alleged shortcomings prior to dismissal.
[19] He responded to specific allegations contained in that disclosure including the allegation of fraternization with co-workers, the hiring of interpreters that posed a security risk, and the allegation of failure to provide proper signage.
[20] Throughout the summer and fall of 2000, the applicant and her counsel inquired about the status of her file. On November 22, 2000, the applicant's counsel was advised by the Commission that the complaint had been assigned to Linda Foy to complete the investigation.
[21] In early January 2000, the new investigator wrote to the applicant's counsel concerning the circumstances surrounding the unsigned services contract. Applicant's counsel responded on January 22, 2001. The applicant's affidavit filed in support of her judicial review application states:
We did not hear from Ms. Foy again. I was not interviewed nor contacted by Ms. Foy nor to my knowledge was Mr. Petrie (her counsel). We were asked to provide no further information or documentation to Ms. Foy.
[22] On March 26, 2001, the Commission forwarded to the applicant and her counsel and to CIC the investigator's report dated March 26, 2001. The Manager of Investigations at the Commission advised the applicant the investigator's report would be submitted to the Commission along with any comments the Commission would receive from the applicant and the respondent. The investigator's report recommended the Commission dismiss the complaint.
[23] On April 12, 2001, the applicant responded through her counsel making the following points:
(1) In September of 1999, the applicant had been told by the Commission witnesses she would identify would be contacted by the investigator if they had relevant information. The applicant provided the Commission with 19 names;
(2) The investigator confirmed to the applicant none of her suggested witnesses had been contacted because she felt "she should make a decision on whether Ms. Ruckpaul's termination was due to performance-related issues first as opposed to a prohibited ground under the Act" (applicant's record page 152). Counsel expressed his disagreement with this approach for a number of reasons including the point that, even supposing CIC did have just reason to terminate the contract:
our understanding of the caselaw is that this would not excuse a violation of the Human Rights Act. In other words if an employee's work performance or actions would be deserving of a just cause termination, without reasonable notice, and the employer terminates instead (or in part) because of a prohibitive ground under the Canadian Human Rights Act such conduct by the employer is not excused by the Commission;
(3) The applicant's counsel noted the respondent had filed ten witness statements from various employees and parties involved in running Camp Argonaut noting the report referred to various items contained in those witness statements which showed the investigator relied greatly on them. He stated:
At no time were we requested to file such witness statement in response. We were under the understanding at all times that the investigator would not complete her report until she had contacted the witnesses we had provided.
(4) The investigator never met the applicant face to face.
(5) There was a failure on the part of the investigator to consider clear evidence of a discriminatory atmosphere at Camp Argonaut which reinforced the need to interview other witnesses involved. Reference was again made to one of the provisions of the draft contract which I quote again:
The use of interpreters of Serbian descent will not be used. Other non-Albanian speaking interpreters will be used as little as operationally possible due to the potential conflict and/or distress of refugees. All attempts to secure the services of Albanian-speaking interpreters will be made. If the required number of Albanian speakers is not possible, the priority should be given to non-Serbian speakers speaking Serbo-Croatian.
[24] The applicant touched on the issue of delay in carrying out the investigation and provided a detailed response to a number of paragraphs in the investigation report. As a remedy, the applicant's counsel suggested the Commission not dismiss the complaint but order a further and more in-depth investigation into the allegations contained in the complaint.
[25] Sometime during the summer of 2001, the applicant was advised by Linda Foy she would be interviewing various witnesses the complainant had put forward.
[26] On October 19, 2001, the Commission enclosed a supplementary investigation report prepared by Linda Foy which was responded to on November 6, 2001 by counsel for the applicant; CIC did not respond.
[27] Linda Foy stated the purpose of her supplementary report was to provide "the relevant information gathered during interviews which have been conducted since the disclosure of the investigation report". She stated that attempts were made to contact twelve witnesses identified by the applicant, but could only locate six. Of those six, three were unwilling to cooperate with the investigator and the remaining three witnesses were interviewed. The investigator then summarized each of those three interviews. She made no further analysis nor further recommendations.
[28] Applicant's counsel, in his November 6, 2001 response, noted he had provided the Commission with 19 names of potential witnesses. He questioned why some witnesses were not contacted. He argued one of the witnesses interviewed confirmed the applicant's central allegation and some statements refuted CIC's assertion of poor work performance.
[29] As previously noted, on January 24, 2002, the Commission dismissed the applicant's complaint.
[30] On February 25, 2002, Natasha Ruckpaul launched this application. She seeks an order quashing the decision coupled with an order directing the applicant's complaint be referred to a Human Rights Tribunal.
[31] Amongst the grounds invoked in support of her application, the applicant alleged:
(1) The Commission acted unreasonably in failing to refer her complaint to a tribunal despite sufficient documentary and written evidence supporting her claim;
(2) The Commission erred in law by imposing too high an evidential burden at the investigative stage;
(3) The Commission erred in law in finding CIC terminated her employment due to job performance issues and not discrimination adding that even if the applicant's job performance issues formed the main factor in terminating her employment, such decision is nevertheless in breach of the Act if it involved, in part, discrimination on a prohibited ground;
(4) The Commission based its decision to dismiss the complaint without regard to the material before it and specifically ignored cogent evidence of a least two witnesses and ignored the unsigned employment agreement;
(5) The Commission failed to observe a principle of natural justice by conducting the investigation following unreasonable or unacceptable delay;
(6) The Commission failed to observe a principle of procedural fairness by failing to conduct a proper investigation, specifically, by refusing to personally interview the parties.
[32] On March 11, 2002 counsel for the Commission forwarded to counsel for the applicant, pursuant to Rule 317 of the Federal Court Rules, 1998 (the "Rules"), a certified copy of all documents that were before the Commission when it made its decision, including inter alia, the complaint form, the two investigators' reports, letters from counsel for the applicant dated November 6, 2001 and April 12, 2001, a letter from Roy F. Cleary of CIC dated July 6, 2001 and the chronology of events.
[33] This production by the Commission did not satisfy applicant's counsel who wrote to the Commission's legal advisor asking for the following documents:
(1) any documentation in the Commission's possession pertaining to or explaining why witnesses identified by the applicant were not contacted in a reasonably expeditious manner by the Investigator;
(2) documentation pertaining to or explaining why the investigation into the complaint was delayed and then referred to Linda Foy as essentially a investigation de novo;
(3) any documentation showing the technical or specialized knowledge and qualifications and curriculum vitae of Linda Foy; and
(4) any documentation from CIC to the Commission not previously forwarded to the applicant.
[34] Applicant's counsel stated, while these documents may not have been before the Commission on the day it made its decision, they would clearly be found within the applicant's file and are highly relevant to the conduct of the investigation which is the basis of the judicial review application.
[35] The Commission resisted further production. On June 21, 2002, the applicant moved the Court for their production.
[36] As a result of Justice MacKay's July 30, 2002 Order, as varied by him on September 4, 2002, the applicant received additional disclosure of documents the Commission had received during the course of its investigation.
ANALYSIS
a) Standard of Review
[37] There is no question that the Commission enjoys a very high level of deference when this court reviews one of its decisions on the merits of whether it erred in dismissing a complaint pursuant to subsection 44(3)(b)(i) of the Act (see Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.)).
[38] However, such is not the case where, as here, the main ground of attack is a breach of procedural fairness (see Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (C.A.). Indeed, section 18.1(4)(b) of the Federal Court Act provides that the Federal Court may grant relief in an application for judicial review if it is satisfied that the tribunal failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe.
[39] Since the decisions of the Supreme Court of Canada in [1984] 2 S.C.R. 407">Radulesco v. The Canadian Human Rights Commission, [1984] 2 S.C.R. 407 and Syndicat des employés de production du Québec et de l'Acadie v. Canada, [1989] 2 S.C.R. 879 it is settled law, the Commission must observe procedural fairness when the investigator it appointed investigates a complaint and prepares a report for the Commission's consideration.
[40] In l'Acadie, supra, Justice Sopinka quoted [1984] 2 S.C.R. 407">Radulesco, supra, to the effect that the Commission had acknowledged that procedural fairness required a complainant be provided with an opportunity to make submissions, at least in writing, before any action was taken on the basis of the report and, in order such submissions be made on an informed basis, it was required to disclose the substance of the case to the party prior to its decision.
[41] In l'Acadie, supra, Justice Sopinka described the Commission's role when dismissing a complain. He said this at paragraph 28 of his reasons:
In my opinion, it is the intention of s. 36(3)(b) [now 44(3)(b)(i)] that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met.[emphasis mine]
[42] In Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, Justice LaForest stated the Commission was not an adjudicative body. He said it is not the job of the Commission to determine if the complaint is made out but rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, according to him, is that of assessing the sufficiency of the evidence before it. Justice LaForest characterized the Commission's role as an administrative and screening body with no appreciable and adjudicative role.
[43] It was in Slattery, supra, that Justice Nadon developed certain fairness criteria which an investigation of a complaint must meet before the Commission decides what to do with that complaint.
[44] Justice Nadon was of the view an investigation had to be at least thorough and neutral for the Commission to have a fair basis on which to evaluate whether there was a sufficient basis to warrant the appointment of a tribunal, which is its main function as identified in the various Supreme Court of Canada decisions previously cited. In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, Justice Nadon noted the interests to be balanced, the parties interest in procedural fairness and the Commission's interest in maintaining a workable and administratively effective system.
[45] He stated the following at paragraphs 56 and 57 of his reasons for judgment:
¶ 56 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. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
¶ 57 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 review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it. [emphasis mine]
[46] The Federal Court of Appeal in Canadian Broadcasting Corp. v. Paul, [2001] F.C.A. 93 and in Singh v. Canada (Attorney General), [2002] F.C.A. 247 endorsed the requirement that an investigation under the Act had to be thorough if the Commission was to have a supportable evidentiary basis for its decision what to do with a complaint: dismiss it or send it to a tribunal.
[47] I note that Justice Sexton's observation in Paul, supra, that parties are permitted to refer to summaries of the witness interviews written by an investigator when the attack made on the Commission's decision is based on an allegation that the investigator's report was not thorough. He applied the Federal Court of Appeal's decision in Pathak v. Canada (Human Rights Commission), [1995] 2 F.C. 455 for the proposition that where the completeness of the investigation or report is challenged, the underlying investigation documents are relevant and subject to production.
CONCLUSIONS
[48] I am of the view the manner in which the investigation was conducted and how the report was prepared necessarily contaminated the evidentiary basis upon which the Commission could make a valid decision as to sufficiency of evidence. Its decision must be set aside.
[49] I do so recognizing the Commission is the master of its own procedures and an investigator enjoys great latitude in how he/she will conduct an investigation. However, it is important to keep in mind the aim of the investigation of a human rights complaint - it is to inquire into the facts of the complaint in order to provide the Commission with a fair evidentiary assessment for its decision what to do next.
[50] If the investigation is flawed to the point where a court can reasonably conclude the evidence reported by the investigator is incomplete or inadequate, the court must intervene.
[51] With this perspective in mind, I find the following flaws in the conduct of the investigation.
[52] The first flaw is the following. The nature of the allegation of termination on grounds of perceived ethnicity in Camp Argonaut necessarily required third party interviews by the investigator. Applicant's counsel identified nineteen witnesses early on in the investigation of the complaint. CIC also provided the investigator with several written witness statements. Before submitting her March 26, 2001 report, the investigator interviewed CIC's witnesses by phone (see, Applicant's Application Record, Vol. 3, page 561). She failed to interview the applicant nor any of her witnesses. The Commission realized this was a flaw and asked the investigator to interview the applicant's witnesses.
[53] The evidence on this point comes from Linda Foy's memorandum to file dated September 13, 2001 where she states: "I was asked by the CHRC to interview witnesses for the complainant" (Applicant's Record, Vol. 3, page 554). That memorandum to file identified suggested testimony by witnesses as to the camp atmosphere being charged with ethnic animosity. Her memorandum to file simply stated she could not find a telephone number for either of these people. As to the suggested testimony of the Red Cross Administrator who may have been aware of the ethnic hiring practices and tensions and went public in an interview with the Telegraph Journal, there is no indication from Linda Foy why that person could not be contacted. The same can be said of the suggested testimony of the doctor who was tasked to find and hire doctors for the camp, it being said he understood that the camp had ethnic requirements to hiring staff. Linda Foy, in her memorandum, does not indicate why that person could not be contacted.
[54] The evidentiary record does not permit me to conclude one way or another as to the sufficiency of Linda Foy's efforts to reach and contact witnesses who had been identified by the applicant. As noted previously, the investigator was only able to contact six out of nineteen of those witnesses with three of the six refusing to cooperate. Moreover, she only attempted to contact 12 of the nineteen witnesses suggested and I question why this is so.
[55] In her supplementary report, the investigator summarized the three interviews she conducted but provided no analysis.
[56] I do not see how the Commission had a sufficient evidentiary basis to make a decision what to do next with the applicant's complaint.
[57] As to the second flaw, as argued by counsel for the applicant, there was uneven disclosure which made the process unfair although, in some cases, under Justice Nadon's test in Slattery, disclosure in the two investigators' reports may have provided an opportunity to repair the disclosure omissions. In other cases, however, such opportunity to repair is not the case. I make these findings.
[58] One, not all of CIC's April 7, 2000 response to the investigator on the applicant's complaint were disclosed to the applicant. Missing parts included a chapter on the events that led to her termination. Furthermore, two supplemental witness statements, dated February 15 and 16, 2001, from CIC's main witnesses in response to questions put by the investigator to CIC were not disclosed.
[59] As noted, these disclosures were received by the applicant after this judicial review application was launched as a result of Justice MacKay's order.
[60] In one of the supplementary witness statements, that from CIC's Director in New Brunswick, he states: "he assumed the decision was made not to use interpreters of Serbian descent" (Applicant's Record, Vol. 3, page 579) as being attributable, in part, to "the real reaction of our Kosovar refugees". That supplementary statement also indicates CIC was scrambling to organize the mission.
[61] One of the documents amongst the documents not disclosed until after this judicial review application was launched is an email (Applicant's Record, Vol. 3, page 641) again from CIC's Director in New Brunswick relating its experience in other cases where tension was created when Kosovar refugees came into contact with persons of Serbian descent.
[62] Two, there was no cross-disclosure to the applicant of CIC's comments on the March 26, 2001 investigator's report but CIC had received disclosure of the applicant's April 12, 2001 submissions to the Commission on that report (see Applicant's Record, Vol. 3, page 550) and the indication from the Commission's chronology sheet at page 533 that there was no cross-disclosure.
[63] Three, the investigator is the eyes and ears of the Commission in terms of investigating the complaint and this is why the case law is to the effect that the investigator's report must fully and fairly summarize the evidence (see Labelle v. Canada (Treasury Board), [1987] 25 Admin. L.R. 10 at 19 (C.A.).
[64] Examining the interview notes against the supplementary report, I find missing all of the positive comments made by the three interpreters interviewed about the way the applicant carried on her work. One stated she was doing her job, another stated she was doing her job very well and yet another stated he did not see any other woman who worked as many hours in those first days.
[65] The third investigatory and reporting flaw is that the Commission may not have had before it complete information conveying accurately the applicant's position. I say this because the investigator's main report, the March 26, 2001 report, stated in many places the applicant was aware of certain issues identified by the CIC but did not address them in her rebuttal (see paragraphs 24, 33 and 40 of the March 26, 2001 report).
[66] The applicant in its April 12, 2001 comments on the investigator's report took issue with these paragraphs and referred the Commission to her rebuttal letter of May 4, 2001. This is so in respect of paragraphs 26, 33, 54 through 57 of the Investigator's Report of March 26, 2001. While the applicant's April 12, 2001 letter was before the Commission when it made its decision, the applicant's May 4, 2000 report was not (see Applicant's Record, Vol. 1, page 202).
[67] The fourth flaw is that I do not think the investigator and therefore the Commission ever came to grips with the fundamentals of the applicant's case - that she was terminated on grounds of perceived ethnicity and that CIC officials were fabricating work deficiency performance excuses to justify terminating her contract.
[68] Assuming CIC had some valid work performance issues the question had to be asked whether ethnicity played any part of terminating her contract. There is some evidence in the record that the applicant was perceived by the Kosovar community at Camp Argonaut to be a Serb and that this community objected to any Serbian presence. The draft service contract between the applicant and CIC is quite explicit that "the use of interpreters of Serbian descent will not be used" (I add even though they might speak Albanian and communicate with the Kosovar refugees). One of the applicant's witnesses clearly stated the applicant was fired because she was perceived to be Serbian. The CIC Director in New Brunswick also stated a decision had been made not to hire Serb interpreters.
[69] I note the Commission's reasons for dismissing the complaint got it wrong. It stated the evidence does not "support the allegation the complainant was discriminated because of her national or ethnic origin". The word "perceived" is missing. That was the nub of the applicant's case.
[70] This case reminds me of Justice McKeown's decision in Singh v. Canada (Attorney General), [2001] F.C.T. 198 sustained on appeal in Singh, supra. Justice McKeown found in that case that the investigator failed to address a fundamental aspect of the Applicant's complaint. He pointed a statement by a witness the complainant was let go because of her age. Justice McKeown set aside the Commission's decision to dismiss the complainant's report because, in his words at paragraph 21:
Ms. Huneault made a clear statement concerning one of the grounds upon which the applicant based her discrimination and harassment claims. However, the investigator failed to address this issue any further in his report. This omission might constitute a "fundamental" omission. [emphasis mine]
[71] Justice McKeown pointed to a more troubling omission that the investigation report failed to deal with the applicant's theory statements put forward by the employer constituted a pretext that was constructed in order to cover up the fact that her contract was not being renewed based on discrimination against her on grounds of ethnicity.
[72] It is worth recalling the words of Justice Décary in Bell Canada v. Communications, Energy and Paper Worker Unions of Canada, supra at paragraph 36:
¶ 36 The conclusions of the Joint Study combined with the Commission's own findings were sufficient to suggest the possibility that some discrimination contrary to section 11 had occurred. Nothing more is asked at this preliminary stage. The Commission was satisfied that the Joint Study had some merit. It was satisfied that despite an undertaking of confidentiality in the Terms of Reference the results of the Joint Study could be used in the Commission investigation of the complaints. These were matters of opinion. There is enough contradictory evidence in the various affidavits to satisfy the Court that the Commission did not act in a patently unreasonable way in seeing some merit in the conclusions of the Joint Study and in finding that the confidentiality agreement was not as extensive as was suggested by Bell. This Court need not agree with the Commission's opinions. Nor should it speculate as to the eventual fate of the Joint Study before the Tribunal. [emphasis mine]
[73] It seems to me there was some direct evidence that the Kosovar refugees did not like persons of Serbian descent around and CIC knew that. There were contradictory affidavits on many points. Nothing more is asked at this preliminary stage in the words of Justice Décary.
[74] Given the conclusion I have reached I need not deal with the section 32(2) issue.
[75] For all of these reasons, this judicial review application is allowed, the Commission's decision to dismiss the applicant's complaint is set aside and the matter is returned to the Commission for reinvestigation and further decision. The applicant is entitled to her costs on a party-party scale.
"François Lemieux"
______________________________
J U D G E
OTTAWA, ONTARIO
JANUARY 30, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-311-02
STYLE OF CAUSE: NATASHA RUCKPAUL v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND OTHER
PLACE OF HEARING: FREDERICTON
DATE OF HEARING: NOVEMBER 18. 2003
REASONS FOR ORDER : LEMIEUX J.
DATED: January 30, 2004
APPEARANCES:
MR. JAMES M. PETRIE FOR APPLICANT
MS. LORIS RASMUSSEN FOR RESPONDENT
MS. FIONA KEITH FOR INTERVENOR
SOLICITORS OF RECORD:
STEWART MCKELVEY STIRLING SCALES FOR APPLICANT
FREDERICTON, NEW BRUNSWICK
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
CANADIAN HUMAN RIGHTS COMMISSION FOR INTERVENOR
OTTAWA, ONTARIO
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