Guay v. Canada (Attorney General), 2004 FC 979

Date: 20040712

Docket: T-1166-02

Citation: 2004 FC 979

Winnipeg, Manitoba, this 12th day of July, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                YVONNE GUAY

                                                                                                                                            Applicant

                                                                         - and -

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review in respect of the decision of the Canadian Human Rights Commission (the "Commission") dated June 18, 2002, wherein the applicant's complaint against the Correctional Service of Canada (the "CSC") was dismissed.

[2]                The applicant seeks an order:

1.          quashing the decision of the Commission dismissing the applicant's complaint;

2.          directing the Commission to remit the applicant's complaint to a Canadian Human Rights Tribunal in accordance with section 49 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"); and

3.          awarding the applicant her costs in this matter.

Factual Background

[3]                The applicant, Yvonne Guay, (the "applicant") was hired on a contractual basis as a Correctional Officer at the CX-1 level at the Edmonton Institute for Women ("EIFW"). Her initial contract of employment was from November 15, 1998 to February 14, 1999, but was renewed until May 15, 1999. At all relevant times, the applicant also worked full time at the Edmonton Remand Centre ("ERC") as a Correctional Officer.

[4]                In January 1999, all casual and term employees at the EIFW were invited to apply in an open competition to establish an eligibility list for indeterminate appointments as Correctional Officers at the CX-2 level. The applicant did not apply as she was not interested in full-time employment at EIFW.

[5]                The personal suitability qualifications for CX-1 and CX-2 Correctional Officers were changed in September 1998, such that each candidate was required to undergo a Values Assessment Test ("VAT"). Although it was not mentioned in the CX-2 competition memorandum, casual employees who did not wish to apply for CX-2 positions were still required to have their qualifications assessed on the basis of the VAT. In February 1999, the applicant was told that all employees were required to take the VAT, and that she would need to submit to a VAT in order to renew her casual contract.

[6]                On March 11, 1999, the applicant was interviewed by members of the Merit Rating Board ("MRB") constituted under the VAT guidelines. During the interview, the applicant was asked behaviour-based questions and was advised that the results would be made available to her at a later date.

[7]                On March 24, 1999, an inmate made an allegation of improper conduct against the applicant, stating that the applicant had stolen some of the inmate's property, and given it to a homosexual inmate. This complaint was later successfully mediated, and allegedly did not contribute to the decision not to renew her contract at EIFW.

[8]                The applicant was asked to provide references on April 12 or 13, 1999, and not at the time of the initial interview, as required by VAT guidelines. During the course of the assessment and the reference check, it came to the attention of the MRB that the applicant was under investigation at ERC with regard to an assault that she had allegedly committed against a fellow employee. The MRB determined that given the allegations of assault, the applicant could not be assessed as meeting the standards for personal suitability for employment by CSC.

[9]                On or about April 27, 1999, the applicant was advised that she had failed the VAT, and would receive no further shifts at the EIFW. The applicant was informed that but for the presence of the investigation into the allegation of assault, she would likely have passed the VAT. She was further informed by the MRB that they could not hire her pending the outcome of the investigation, but if she was cleared, she could re-apply. The MRB determined not to put any information regarding the assault investigation on the VAT results in order to avoid compromising or prejudicing any further applications for employment for the applicant. The applicant did not reapply for casual status at EIFW.

[10]            The applicant filed a "request for investigation" with the Public Service Commission (the "PSC") on June 8, 1999. The statement of allegations contained no reference to the applicant having been dismissed on the basis of her sexual orientation. The PSC concluded that the allegation with respect to the lack of transparency in the conduct of the competition was founded, since the CSC failed to make it clear to the applicant that failure to meet minimum standards for personal suitability in taking the VAT would result in termination. The PSC also determined that it did not have jurisdiction to review the applicant's employment status or her other allegations with respect to the conduct of the competition.

[11]            The applicant filed a complaint with the Commission on April 25, 2000, alleging discrimination in employment on the basis of sexual orientation, contrary to section 7 of the Act. The investigator recommended that the complaint be dismissed on March 20, 2002. After considering the investigator's report and the applicant's submissions, the Commission dismissed the complaint by letter dated June 18, 2002. The Commission concluded that there was insufficient evidence that the applicant had been discriminated against on the basis of her sexual orientation, and dismissed the applicant's complaint pursuant to paragraph 44(3)(b) of the Act.

Issues

[12]            1.          Is CSC improperly named as a party in this matter?

2.          What is the applicable standard of review?

3.          Did the Commission breach the duty of fairness owed to the applicant?

Relevant Statutory Provisions

[13]            The relevant sections of the Canadian Human Rights Act, supra, read as follows:

Applicant's Submissions

[14]            The applicant submits that the applicable standard of review is reasonableness simpliciter: Singh v. Canada (Attorney General), _2001_ F.C.J. No. 367 (QL), 2001 FCT 198.

[15]            The applicant argues that given the significant nature of the errors or omissions in the investigator's report, her ability to respond to the report did not suffice to rectify the errors or omissions in the report: Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574 at 598 (T.D.), aff'd [1996] F.C.J. No. 385 (C.A.) (QL). Accordingly, the applicant argues that the duty of fairness owed to her was breached, and the Commission's adoption of the investigator's report constituted a reviewable error.

[16]            The applicant argues that the investigator's report contains three significant errors: (i) the investigator failed to make adequate review of the circumstantial and contextual elements of the applicant's allegations, including contextual and circumstantial evidence that the respondent held discriminatory attitudes and the applicant's allegation that there was a connection between the inmate allegation of March 24, 1999 and the negative VAT results; (ii) the investigator failed to understand significant elements of the applicant's complaint, in particular the significance of the inmate complaint of March 24, 1999 to the negative VAT results; and (iii) the investigator made unreasonable findings of fact.

[17]            The applicant further alleges that the investigator erred in failing to assess the credibility of the respondent's claim that the applicant failed the VAT because of information that the applicant was the subject of an assault investigation at the ERC, and in particular, the respondent's allegations that non-disclosure of this fact was intended to protect the applicant should she wish to apply for future employment. The applicant alleges that it was unreasonable for the investigator to have accepted this explanation, since the VAT makes negative conclusions about the applicant's personal characteristics, and that these conclusions would be equally, if not more damaging to the applicant should she apply for future employment.

Respondent's Submissions

[18]            The respondent submits that CSC is not a properly named party in the present case since it is not directly affected by the order sought. The respondent further submits that the Commission also may not be named as the respondent and that, pursuant to Rule 303(2) of the Federal Court Rules, 1998, S.O.R./98-106, the only properly named respondent in this application for judicial review is the Attorney General of Canada.

[19]            The respondent submits that the Commission's determination that there was insufficient evidence and that the complaint should be dismissed was a finding of fact, and the applicable standard of review is patent unreasonableness: Murray v. Canada (Canadian Human Rights Commission),_2003_ F.C.J. No. 763 (QL), 2003 FCA 222.

[20]            The respondent alleges that it was not patently unreasonable for the Commission to have dismissed the complaint on the basis of the evidence before it.

[21]            The respondent alleges that the applicant was not denied procedural fairness or natural justice. The respondent states that by providing the applicant with the investigator's report and an opportunity to respond to that report, the Commission complied with the duty of fairness in accordance with the Federal Court of Appeal's decision in Slattery, supra.

[22]            The respondent alleges that it is clear that the investigator clearly understood the applicant's allegations and further, that he conducted a thorough review of the evidence before reaching his conclusion that there was insufficient evidence to proceed to an inquiry. Accordingly, the respondent submits that there are no grounds for granting the applicant's application for judicial review: Murray, supra.

Analysis and Decision

[23]            Issue 1

Is CSC improperly named as a party in this matter?

The respondent submitted that the Correctional Services of Canada is not properly named as a party and that the proper respondent should be The Attorney General of Canada. The applicant did not agree.

[24]            After a review of Rule 303(1) and 303(2) of the Federal Court Rules, 1998, supra, I am of the view that the proper respondent is The Attorney General of Canada and I would amend the style of cause to reflect this change.

[25]            Issue 2

What is the applicable standard of review?

In MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL), 2003 FC 1459, at paragraphs 35 to 42, I concluded the standard of review to be applied when reviewing the Commission's decision to dismiss a complaint was the standard of reasonableness simpliciter.

[26]            As in MacLean, supra, the applicant is seeking judicial review of the Commission's decision to dismiss her complaint alleging discrimination in employment. In the case at bar, however, the applicant focussed her attack on alleged deficiencies in the investigator's report. She argued that the fundamental nature of the report's alleged deficiencies could not be overcome by affording her the opportunity to make written reply submissions to the Commission before it decided whether to dismiss the complaint or refer it to a Tribunal for inquiry. In essence, then, the applicant is arguing that she was denied procedural fairness and the Commission's decision to dismiss her complaint is flawed because it was based on a fundamentally flawed investigation.

[27]            The issue before the Court, therefore, is not the reasonableness of the Commission's decision to dismiss the complaint, per se, but whether there was a breach of the duty of fairness owed to the applicant in the circumstances, given the content of the investigator's report.

[28]            As stated in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11">2002 SCC 11 at page 292:

The third issue requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. (See generally, Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, and Baker, supra.)

The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority (see [1979] 1 S.C.R. 311">Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at p. 653, 24 D.L.R. (4th) 44; Baker, supra, at para. 20; Therrien, supra, at para. 81). Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, "is eminently variable and its content is to be decided in the specific context of each case" (as per L'Heureux-Dube J. in Baker, supra, at para. 21)...

[29]            The question is, therefore, not what standard of review to apply, but whether the Commission breached the duty of fairness it owed to the applicant in the circumstances of this case. Under the next heading, I will address the content of that duty and whether the applicant has established a breach of the duty of fairness which demands the intervention of this Court.

[30]            Issue 3

Did the Commission breach the duty of fairness owed to the applicant?

To determine whether this Court's intervention is warranted, I must first determine what the Commission was obliged to do in order to fulfill the duty of fairness it owed the applicant in this case.

[31]            The content of the duty of fairness owed by the Commission to a complainant was considered in Murray v. Canada (Canadian Human Rights Commission), [2002] F.C.J. No. 1002 (QL), 2002 FCT 699, aff'd [2003] F.C.J. No. 763 (QL), 2003 FCA 222, at paragraph 24 per Kelen J.:

The principles of natural justice and the duty of procedural fairness with respect to an investigation and consequent decision of the Commission, are to give the complainant the investigator's report and provide the complainant with a full opportunity to respond, and to consider that response before the Commission decides. The investigator is not obliged to interview each and every witness that the applicant would have liked, nor is the investigator obliged to address each and every alleged incident of discrimination which the applicant would have liked. In this case, the applicant had the opportunity to respond to the investigator's report and to address any gaps left by the investigator or bring any important missing witness to the intention of the investigator. However, the investigator and the Commission must control the investigation and this Court will only set aside on judicial review an investigation and decision where the investigation and decision are clearly deficient. See Slattery, supra. per Nadon J. (as he then was) and at the Federal Court of Appeal per Hugessen J.A. (as he then was).

[32]            In Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff'd (1996), 205 N.R. 383 (F.C.A.), Nadon J. (as he then was) recognized that the investigation into a complaint must be neutral and thorough for the Commission to have a fair basis on which to make its dismissal/referral decision.

[33]            The applicant argues that the investigation into her complaint was not thorough. In Slattery, supra, Nadon J. commented at paragraphs 55 to 57 on the degree of thoroughness required, and then set out a test for this Court's intervention where there are gaps in the investigation report:

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 complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system. Indeed, the following words from Mr. Justice Tarnopolsky's treatise Discrimination and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally applicable with regard to the determination of the requisite thoroughness of investigation:

With the crushing case loads facing Commissions, and with the increasing complexity of the legal and factual issues involved in many of the complaints, it would be an administrative nightmare to hold a full oral hearing before dismissing any complaint which the investigation has indicated is unfounded. On the other hand, Commission should not be assessing credibility in making these decisions, and they must be conscious of the simple fact that the dismissal of most complaints cuts off all avenues of legal redress for the harm which the person alleges.

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.

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.

[34]            In the present case, the applicant submits that the investigator's report contains three significant errors: (i) the investigator failed to make adequate review of the circumstantial contextual elements of the applicant's allegations; (ii) the investigator failed to understand significant elements of the complaint, in particular, the significance of the inmate complaint of March 24, 1999; and (iii) the investigator made unreasonable findings of fact.

[35]            In particular, the applicant argues that the investigator (i) made reference to the inmate complaint against the applicant but failed to understand its significance; (ii) failed to make reasonable inquiry regarding the applicant's allegation of discriminatory treatment during core training; (iii) failed to inquire whether the applicant was differentially treated in being required to take the VAT when it was not required of continuing casual employees; (iv) failed to inquire whether the applicant was singled out in the administration of the VAT; (v) failed to consider evidence that the respondent's handling of the inmate complaint against the applicant was extraordinary and contrary to ordinary process; and (vi) failed to make full inquiry regarding the allegedly false information that the applicant was the subject of an assault investigation at the ERC.

[36]            In considering the merits of the applicant's arguments, it is important to note that the standard set out in Slattery, supra and Murray, supra, does not require that the investigator's report be perfect. This Court is concerned, not with perfection, but with ensuring the applicant was treated fairly in the investigation and consideration of her discrimination complaint. It is not for this Court to dissect the investigator's report on a microscopic level or second-guess the investigator's approach to his task. The applicant can only succeed on this application for judicial review if the alleged deficiencies she outlines render the investigator's report "clearly deficient".

[37]            I wish to first deal with the fourth allegation made by the applicant concerning the investigator's report which can be stated as follows: the investigator failed to inquire whether the applicant was singled out in the administration of the VAT.

[38]            The applicant submitted that she was singled out for differential treatment by being asked for references outside the parameters of departmental policy, by being the only candidate whose references were attempted to be contacted and by having a person not identified by her as a reference interviewed for that purpose.

[39]            The applicant was not asked for references at her interview. It was only shortly after the inmate "outed" her that the request was made for references. CSC did not speak to the references provided by the applicant and instead CSC contacted another person not listed by the applicant as a reference. The applicant stated that she did not include this person as a reference because he did not know her.

[40]            The applicant contends that she was treated differently in the administration of the test (specifically the reference check).

[41]            I have reviewed the investigator's report and this was not addressed by the investigator other than being mentioned in paragraph 16 of the report. This allegation was not pursued by the investigator.

[42]            In my view, the failure of the investigator to investigate this allegation was an unreasonable omission by the investigator, which resulted in a lack of thoroughness of the investigator's investigation. Since the Commission relied on the investigator's report, which was based on the investigator's non-thorough investigation, the decision must be set aside and the applicant's application for judicial review allowed. The matter is returned to a different panel of the Commission for decision after a different investigator carries out an investigation of the complaint.

[43]            The applicant shall have her costs of the application.

[44]            Because of my finding on this matter, I will not deal with the remaining items listed in Paragraph 35.

                                               ORDER

[45]            IT IS ORDERED that:

1.          The style of cause shall be amended to read The Attorney General of Canada as respondent.

2.          The application for judicial review is allowed, with costs to the applicant and the matter is returned to a different panel of the Commission for decision after a different investigator carries out an investigation of the complaint.

                                                                               "John A. O'Keefe"              

                                                                                                   J.F.C.                     

Winnipeg, Manitoba

July 12, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1166-02

STYLE OF CAUSE: YVONNE GUAY

- and -

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                 Edmonton, Alberta

DATE OF HEARING:                                   January 13, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     July 12, 2004

APPEARANCES:

Julie C. Lloyd

FOR APPLICANT

David Stam

FOR RESPONDENT

SOLICITORS OF RECORD:

Julie C. Lloyd

Edmonton, Alberta         

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT