Date: 20041102
Docket: T-882-04
Citation: 2004 FC 1541
BETWEEN:
DOROTHY B. MURRAY
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION,
CANADA REVENUE AGENCY
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] Dorothy Murray ("Murray") seeks judicial review of a decision by the Canadian Human Rights Commission ("the Commission") dismissing her complaint, which alleged that her employer, the Canadian Revenue Agency ("CRA"), had taken reprisals against her for previously filing a complaint based on discrimination by CRA officials. The substance of her challenge is to the manner in which the investigation of her complaint was conducted.
[2] Murray's prior complaint of discrimination was dismissed in August 2000. Judicial review was denied by Kelen J. and the appeal from that decision was dismissed by the Federal Court of Appeal in May 2003. Although the harassment complaint is based on new grounds, there are similarities between it and the discrimination complaint such that the law as found by Kelen J. and the Court of Appeal is generally applicable to this judicial review. See: Murray v. Canada (Canadian Human Rights Commission) [2002] F.C.J. No. 1002 (TD) (QL); 2003 [F.C.J. No. 763 (CA) (QL).
Preliminary Matter
[3] CRA brought a motion to strike portions of Murray's affidavit because those portions are either hearsay, speculative, argumentative, irrelevant, or contain legal conclusions and arguments. Rule 81 of the Court's Rules must be read in light of the general proposition that hearsay is admissible if it is necessary, relevant and cogent. While the Respondent may have a technical basis for its objections, there is no prejudice to CRA in allowing Murray, a self-represented party, certain leeway in putting forward her case. This is so particularly on matters where she has no access to either CRA's documents or personnel.
[4] The Court therefore dismisses CRA's objection to those portions of the affidavit; the Court has given the offending portions such weight as is appropriate.
Background
[5] Murray's reprisal complaint alleged that because she had filed a discrimination complaint against CRA, officials retaliated by:
- limiting her time in preparing for speaking engagements;
- denying her promotional opportunities;
- denying her acting/temporary employment appointments or positions;
- refusing transfers to other departments; and
- removing various duties from her responsibilities.
[6] Following the filing of her complaint of November 15, 2001, an investigator was appointed by the Commission to conduct an investigation and report to the Commission. As part of the investigation process, CRA submitted an initial response to Murray's complaint. The Commission provided Murray with only a summary of CRA's response - a matter raised in this judicial review - to which she replied with a 74-page submission.
[7] The investigator prepared an investigation report as of December 17, 2003 recommending that the complaint be dismissed. This report was disclosed to the parties for comments. Murray provided her further submissions; CRA did not. On the basis of the investigator's report, the Commission dismissed the complaint in April 2004.
[8] Murray's challenge to the Commission's decision is based on the manner in which the investigation was handled. She raises the following principal grounds:
- that the investigator did not accept that she suffered retaliation due to her filing a previous discrimination complaint;
- that she was not accorded a proper opportunity to rebut CRA's submissions, in defence; in part because she was only given a summary of CRA's response, not the actual response itself;
- that the investigator failed to carry out a proper and thorough investigation by, most particularly, failing to consider her 74-page rebuttal, and accepting false evidence from CRA officials;
- that the Commission and, most particularly, the investigator, was biassed against her and exhibited malice;
- that the Commission's decision was unreasonably delayed; and
- that the Commission and investigator were predisposed against her.
Analysis
Standard of Review
[9] Murray made no submissions as to the applicable standard. However, the CRA argued that the standard of review is patent unreasonableness based upon Bell Canada v. Communications, Energy and Paperworkers Union of Canada [1999] 1 F.C. 113.
[10] However, the Court of Appeal more recently, in Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580, held that the standard applicable to a Commission decision to dismiss is "either reasonableness or patent unreasonableness".
"It is clear that the decision of the Commission to dismiss a complaint is
entitled to some deference. The standard of review is either reasonableness
or patent unreasonableness. However, it is unnecessary for me to decide which
of the two is the proper standard for I am satisfied that the decision in this
case meets the less deferential standard of reasonableness".
[11] The law on the standard of review for these types of decisions is that different standards will apply to different types of decisions. Where the challenge is based on fairness/denial of natural justice, no deference is owed. Where the challenge relates to decisions by an investigator as to how to investigate a complaint, who will be interviewed or whose evidence is credible - all of which affects the Commission's ultimate determination - there will be the highest deference accorded. In this case, and for reasons similar to Hutchinson, supra, I am satisfied that where a standard of review is applicable, the decision meets the less deferential standard of reasonableness.
[12] For ease of consideration, Murray's several grounds of challenge to the Commission's conclusions can be divided into procedural fairness and substantive issues.
Procedural
[13] Murray complained that she had been denied a full opportunity to make her case. Her suspicions were increased by the failure of the Commission to provide her with a copy of CRA's submissions in defence of its conduct.
[14] The Commission had an unusual and unexplained procedure in this case. It provided the employer, CRA, with a copy of Murray's actual complaint and her actual submissions but only provided Murray with a summary of CRA's submissions. The procedure is prima facie unfair. However, in this instance, the summary was virtually a verbatim recitation of the defence submissions. While there is no justification for this procedure, it did not adversely affect Murray's rights in any material manner.
[15] In this case, to overturn the Commission's decision on the grounds of their flawed procedure would be to allow form to triumph over substance. In other circumstances this refusal to provide the actual documents could lead to a different result. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 22.
[16] Also, the Commission, in this judicial review, failed to follow the Court's Rules with respect to disclosure of material in the possession of a tribunal (Rules 317-319). It restricted its disclosure to the material which was before the Commission when it made its decision.
[17] The CRA had requested specific documents in the hands of the Commission in accordance with Rule 317, which could have allowed it to make a better defence of the Commission's decision and underlying investigation. The Commission chose to ignore the mandatory obligation under Rule 318. It is of concern to the Court that the Commission failed to comply with a substantive rule for the fair conduct of judicial reviews. Since only CRA was affected by the Commission's refusal and given the result in this case, the Commission's conduct did not result in an injustice.
[18] Murray complained about the delay in completing the investigation of her complaint. From September 2002 to December 2003 there is no record of any investigative activities nor has any explanation been offered by the Commission as to the cause of this inactivity. Even assuming that some interviews occurred during this period, there is no apparent justification for the delay in dealing with Murray's complaint.
[19] However, substantial delay in and of itself is insufficient to overturn the Commission's decision. To be successful on this ground, Murray would have to establish real prejudice caused by inordinate delay. See Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307.
[20] The Court is unable to find a sufficient connection between the delay and any alleged prejudice. Moreover, the delay did not prejudice Murray's rights, the decision process or the decision itself.
Substantive Issues
[21] Murray's principal submission is that the investigation was neither thorough nor fair. Her concern is that the investigator did not accept her view that she had been harassed and was not sufficiently probing of the defences raised by CRA. Her concern about fairness, in addition to the procedural issues raised, is that both the investigator and the Commission were biassed against her.
[22] The test for actual bias requires a direct showing of bias such as a clear statement which confirms that bias. There is no such evidence of either actual bias or other malice toward Murray.
[23] The applicable test for reasonable apprehension of bias in the human rights context is the same as the general requirement applicable to all decision-makers. In particular, it has been held as regards the Commission:
"The basic test to ensure fairness and to avoid a reasonable apprehension
of bias has been enshrined in the jurisprudence: it is whether reasonable
and right minded persons, applying themselves to the question and obtaining
thereon the required information, would perceive bias on the part of an
adjudicator. The grounds of apprehension must be substantial. Mere
suspicions are not sufficient."
Miller v. Canada (Canadian Human Rights Commission), [1996] F.C.J. No. 735 (T.D.) (QL).
[24] This test applies not only to the Commission, but also its investigator. However, the fact that neither agreed with the applicant's contentions of harassment or, even if established, that the investigation was not as thorough as Murray says it should be, does not satisfy the test of reasonable apprehension of bias.
[25] I can find no evidence to establish a reasonable apprehension of bias. The investigator appears to have been neutral in the conduct of the investigation. Likewise, there is nothing in the Commission's conduct to suggest a reasonable apprehension of bias.
[26] The Applicant's submissions (particularly the 74-page rebuttal) were considered; she was contacted by the investigator; the investigator's report addresses all the major allegations made by her, including such matters as denial of temporary positions, denial of transfers and promotional opportunities and denial of adequate time for speaking engagements.
[27] As required by the principles of fairness, the investigator also interviewed key persons in CRA in order to deal with the allegations. Murray's complaint is that these persons lied or mislead the investigator and the investigator accepted these lies and distortions. There is no evidence that this is the case.
[28] I can find no evidence that the investigation was not thorough and balanced - Murray's disagreement with the investigator's conclusions is not sufficient to quash the Commission's acceptance of the investigator's report and the dismissal of the complaint. The conduct and the conclusions were thorough, fair, balanced and reasonable.
[29] For these reasons the application for judicial review will be dismissed without costs.
"Michael Phelan"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-882-04
STYLE OF CAUSE: DOROTHY B. MURRAY v.
CANADIAN HUMAN RIGHTS COMMISSION,
CANADA REVENUE AGENCY
PLACE OF HEARING: TORONTO, ONTARIO.
DATE OF HEARING: OCTOBER 19, 2004
REASONS FOR ORDER: PHELAN J.
DATED: NOVEMBER 2, 2004
APPEARANCES BY:
Ms. Dorothy B. Murray FOR THE APPlICANT (Self-represented)
Ms. Caroline Engmann
Mr. Joseph Cheng FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Dorothy B. Murray FOR THE APPLICANT
Toronto, Ontario (Self-represented)
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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