Date: 19990415
Docket: T-1079-98
BETWEEN:
HANNA BELL LARSH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
EVANS J.:
[1] Hanna Bell Larsh is a Jamaican-born black woman who came to Canada in 1990 under the Foreign Domestics Program, as the Live-in Caregivers Program was then known. She was briefly and, apparently, unhappily married to a man who sponsored her application for permanent residence status in Canada. However, he withdrew his sponsorship on the break-up of their marriage.
[2] In March 1995 Ms. Larsh was called for interviews at an office of Citizenship and Immigration Canada as a result, it would seem, of the withdrawal of the sponsorship. At the conclusion of the interviews she was issued with a departure notice. An application for judicial review of this notice was unsuccessful.
[3] Nineteen months after the interviews Ms. Larsh filed a complaint with the Canadian Human Rights Commission, alleging that the immigration officials with whom she had met had discriminated against her by virtue of race, colour and national or ethnic origin.
[4] Although the complaint was filed more than a year after the last alleged incident of discrimination, the Commission exercised its statutory discretion to investigate it by virtue of paragraph 41(e) of the Canadian Human Rights Act R.S.C. 1985, c. H-6.
[5] However, the Commission notified Ms. Larsh that it had resolved to dismiss the complaint on the following grounds: there was no evidence to support it; the immigration officers denied making the discriminatory remarks attributed to them by Ms. Larsh; and it had proved impossible for the investigator to identify any witnesses to the incidents in question. In reaching this conclusion the Commission had before it the report and recommendation of the Commission official who had investigated the complaint and recommended that it should be dismissed.
[6] This application for judicial review is brought by Ms. Larsh to request the Court to set aside the Commission"s decision to dismiss the complaint and not to refer it for adjudication by the Canadian Human Rights Tribunal.
Issue 1
[7] The applicant alleges that the Commission"s decision is erroneous in law because, in dismissing the complaint, the Commission weighed the conflicting evidence before it and must have determined that Ms. Larsh was not credible. Counsel argued that only the Tribunal may make a determination of this nature after holding an adjudicative hearing at which both Ms. Larsh and the immigration officers could be cross-examined.
Issue 2
[8] It was also argued on behalf of Mr. Larsh that, by dismissing the complaint because the officers denied making the remarks in question and there was no independent witness to corroborate the applicant"s account of what occurred, the Commission thereby abused its statutory discretion. More particularly, counsel contended, for the Commission to set the evidential threshold this high would frustrate the purpose of the Act, namely the vindication of the right of individuals to be free from direct discrimination on the statutorily proscribed grounds.
[9] The only provision of the Canadian Human Rights Act that is directly relevant to this application is subsection 44(3), which states that, on receipt of a report from an investigator, the Commission
(b) shall dismiss the complaint to which the report relates if it is satisfied
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, ... |
b) rejette la plainte, si elle est convaincue_:
| (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, ... |
D. Factual Background
[10] It was common ground between the parties that an important element of the Commission"s statutory function is to screen out complaints that are insufficiently well-grounded in either law or the evidence as to be worthy of a full hearing by the Tribunal. Nor did counsel for the Minister dispute that, if made, the remarks in question would constitute discriminatory conduct. The only question is whether they were made at all.
[11] Before examining the applicant"s submissions, I should set out more of the factual background. Ms. Larsh complained that the first immigration officer who interviewed her told her that, despite Ms. Larsh"s employment history as a private security officer and investigator, a career as a police officer, in which she had expressed an interest, "is clearly not for you". After an apparently heated exchange between Ms. Larsh and the officer, Ms. Larsh asked whether the officer was throwing her out of the office "as if I am not a human being". The officer allegedly responded that indeed she was, and slammed the door as Ms. Larsh left.
[12] At a second interview, with two other officers, Ms. Larsh alleged that one told her that he had "heard enough from people like you", while the other said "people like you are not welcome in this country". At this point, a departure notice was issued.
[13] A year after these interviews took place, a letter was written to the Minister of Citizenship and Immigration on Ms. Larsh"s behalf by a law student at a legal aid clinic urging the Minister to investigate the conduct of the officers. Two months after this letter was sent Ms. Larsh herself wrote to the Minister and included an account of the incidents about which she subsequently complained to the Commission. However, the principal thrust of this correspondence was to attempt to persuade the Minister to permit the applicant to remain in Canada on humanitarian and compassionate grounds.
[14] The Minister conducted an internal investigation of Ms. Larsh"s complaints about the officers" behaviour and concluded that the complaints were unfounded. Finally, it should be noted that an immigration officer who was sitting outside the office from which Ms. Larsh complained that she has been unceremoniously ejected, said that he had not heard the remarks allegedly made by the officer, and that the door was not slammed as Ms. Larsh left.
E. Analysis
[15] Counsel for Ms. Larsh advanced the following bold proposition of law. Subject to the following qualifications, whenever the Commission is faced with contradictory versions of conduct that is the subject of a complaint, the Commission must refer the complaint to the Tribunal. The qualifications to this proposition are that it should be clear that, if the complainant"s version is true, the conduct would be a violation of the Act, and that there is no reliable way of resolving the contradictions in the evidence without cross-examination. For the Commission to dismiss a complaint as a result of resolving an issue of credibility adversely to the complainant would be a usurpation of a function of the Commission as the trier of fact.
[16] Counsel for the applicant relied particularly on Cashin v. Canadian Broadcasting Corporation, [1984] 2 F.C. 209 (F.C.A.), where the Commission"s dismissal of a complaint was set aside as procedurally unfair because the complainant has not been given an opportunity to
confront directly particular evidence against her and to test the credibility of its proponents. (at 215)
Mahoney J.A. further said that, if the Commission cannot devise the means for doing this within the investigative process,
It does have another procedure available which would appear designed for such a case.
Counsel invited me to interpret this as a reference to the Commission"s power to refer a complaint to the Tribunal.
[17] Counsel for Ms. Larsh also drew my attention to cases where the duty of fairness has been held to require administrative adjudicators in other contexts to permit cross-examination when credibility was the central issue in dispute: see, in particular, Khan v. University of Ottawa (1997), 148 D.L.R. (4th) 577 (Ont. C.A.). And although, as counsel conceded, the Commission is not an adjudicative body, when it dismisses a complaint its decision is final in the sense that it thereby precludes the complainant from obtaining a remedy under the Canadian Human Rights Act.
[18] Despite the attractive manner in which counsel developed her argument, I am not satisfied that it is correct. First, the argument seems to me to give insufficient weight to the broad discretion conferred on the Commission by the wording of paragraph 44(3)(b)(i): namely, that it shall dismiss the complaint "if it is satisfied" that "having regard to all the circumstances of the complaint, an inquiry into it is not warranted". The applicant"s contention that whenever credibility is a central issue in a human rights complaint it must be referred to the Tribunal does not seem consistent with the subjective wording of paragraph 44(3)(b)(i) , nor with the expertise and experience of the Commission as the specialist agency charged with investigating and screening human rights complaints.
[19] Second, while it is true that a decision to dismiss a complaint is final in the sense described above, it does not follow that the Commission is required to approach the evidence in the same manner as an adjudicative tribunal, or to make findings of fact, including whether the complainant is credible.
[20] The nature of the Commission"s statutory function in the processing of complaints was stated clearly in Cooper v. Canada (Canadian Human Rights Commission) , [1996] 3 S.C.R. 854, 891, where La Forest J. said:
It is not the job of the Commission to determine if the complaint is made out. Rather, its duty is to decide if, under the provision of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission"s role, then, is that of assessing the sufficiency of the evidence before it. [emphasis added]
See also Boahene-Agbo v. Canadian Human Rights Commission (1994), 86 F.T.R. 95, 119-120 (F.C.T.D.).
[21] Thus, in this case the Commission was not required to make a finding on whether Ms. Larsh was telling the truth about what the immigration officers had said to her. Indeed, since the investigating officer did not speak to Ms. Larsh it would have been quite inappropriate if it had attempted to do so. The Commission is simply not equipped to make findings of fact of this kind.
[22] It is the Commission"s responsibility to assess the evidence before it as a whole for the limited purpose of considering whether it is reasonably capable of supporting a finding by the Tribunal that a complainant has been subject to unlawful discrimination: Syndicat des employés de production du Québec et l"Acadie v. Commission canadienne des droits de la personne, [1989] 2 S.C.R. 879, 899.
[23] The narrower view taken of the Commission"s role in Thibodeau v. Prince Edward Island (Human Rights Commission) (1993) 23 Admin. L.R. (2d) 219 (PEI SC) can be explained on the ground that the relevant statute contained no provision equivalent to paragraph 44(3)(b)(i) of the Canadian Human Rights Act. The provincial Commission was simply to investigate and report to the Minister, who had a statutory discretion to refer a complaint to an adjudicative hearing.
[24] Similarly, the legislation considered in Cook v. British Columbia (Council of Human Rights) (1988), 9 C.H.R.R. 38156 (BC SC) gave no guidance to the Council as to when proceedings were to be discontinued, and conferred on the Minister the power to dismiss a complaint "where he considers the complaint is not justified." The Court"s statement about the Council"s inability to weigh the evidence before it must be read in this light, and is accordingly of limited relevance to determining the scope of the legal powers of the federal Commission.
[25] Counsel for the applicant relied on the Commission"s statement in its letter notifying the complainant of the decision that there was "no evidence" supporting Ms. Larsh"s allegations. Counsel asked me to infer from this that the Commission must have disbelieved Ms. Larsh, and thus made an adverse finding of credibility, because otherwise her allegations would themselves constitute evidence of their truth.
[26] This is too clinical and abstract a parsing of the Commission"s letter. In my opinion, an interpretation that is more consistent with the Commission"s statutory functions is that the Commission was not satisfied there was any evidence on which a Tribunal could reasonably decide on the balance of probabilities that Ms. Larsh"s allegations were true.
[27] No doubt the Commission reached this conclusion by taking into account all the evidence before it, including the fact that there were no independent witnesses to corroborate Ms. Larsh"s version of events; that the officers in question denied the allegations; that an investigation by the Minister had concluded that the allegations were unfounded; that the allegation of discrimination was not included in Ms. Larsh"s application for judicial review impugning the validity of the departure notice; and that another officer had said that he did not hear the offensive remarks and that the door was not slammed behind Ms. Larsh.
[28] Of course, it is possible that under cross-examination the credibility of the officers against whom Ms. Larsh had complained might be severely shaken, and the credibility of Ms. Larsh herself clearly established. It is possible, too, that the other officer might be shown to have been in no position to hear what the officers said to Ms. Larsh, and the credibility of his statement that the door was not slammed might be undermined for other reasons. But, as the investigative and prosecutorial arm under the statutory scheme to protect individuals from discrimination, the Commission is necessarily required to assess whether in all the circumstances of the complaint this possibility warranted referring it to a hearing.
[29] Nor was I satisfied that Cashin, supra, gives as much support to the applicant as counsel claimed. The Court"s holding was that the complainant in that case had not been given an opportunity to know and meet the case against her and had thereby been denied procedural fairness by the Commission. This is not the basis of Ms. Larsh"s complaint against the Commission.
[30] The Court in Cashin, supra, appears also to have said that, if the Commission was unable to provide the complainant with the opportunity "to confront directly particular evidence against her and to test the credibility of its proponents", it should refer the complaint to the Tribunal, where these opportunities would be available.
[31] However, not only is this passage obiter dicta, but it is also prefaced by the all important words "in the circumstances of this case". Indeed, in Labelle v. Canada (Treasury Board) (1987), 25 Admin. L.R. 10 (F.C.A.), Mahoney J.A. (at page 17) seems to limit the sweep of his statements in Cashin, supra, by noting that in that case:
Circumstantial evidence, not just the complainant"s opinion, tended to contradict the employer"s direct evidence. The Court held unanimously that the issue could not, in that circumstance , be lawfully resolved short of a hearing that afforded an opportunity to cross-examine... [emphasis added]
[32] More recently, the issue was been considered by Hugessen J. in Miller v. Canada (Attorney General) (F.C.T.D.; T-391-98, September 28, 1998), where he said this:
... it is said that the Commission erred in failing to order an oral hearing because there were issues of credibility involved in the case. The law in my view is clear, that the Commission is under no obligation to order an oral hearing. Where, as here, there is no liberty issue at stake in the investigation being conducted, there is never an obligation in my view to conduct an oral hearing. Indeed, when one looks at the nature of the discretion which is given to the Commission by the text of the statute, it is quite obvious that there will be cases where the Commission can dismiss a complaint because in its view there is insufficient evidence to support the complaint, whereas, if the complaint went forward, there would have to be an oral hearing. To put the matter another way, the discretion which is given the Commission is manifestly a discretion to do away with the requirement of an oral hearing before the tribunal.
I am in general agreement with this statement of the law and, since the Commission"s conclusion was not irrational on the facts before it, I do not find that the Commission erred in law in dismissing the complaint.
[33] Indeed, in my opinion it would be irresponsible of the Commission not to assess the evidence before it simply because the complainant and the person complained against gave contradictory accounts of the events on which the complaint was based. The Commission is entitled and obliged to subject the evidence to a hard look before deciding whether in the circumstances of the complaint a Tribunal hearing is warranted.
Issue 2
[34] The question here is whether, in view of Parliament"s commitment to the right to be free from discrimination, it was unreasonable for the Commission to dismiss Ms. Larsh"s complaint because the officers in question denied the allegations and there were no independent witnesses to support the complainant"s account of what the officers had said to her.
[35] Counsel for the applicant maintained that those against whom complaints of discrimination are made regularly deny them, and there are often no witnesses to instances of direct discrimination. Accordingly, she argued, in dismissing the complaint on these grounds the Commission has set the evidential threshold so high as to frustrate the policy of the Act, and has thus abused its statutory discretion under paragraph 44(3)(b)(i) to decide that it is satisfied that in the circumstances of a complaint a hearing is not warranted.
[36] For the purpose of considering this argument I am prepared to assume that the Commission"s decision to dismiss complaints should be subject to closer review than decisions to refer complaints to the Tribunal. A dismissal is, after all, a final decision that precludes the complainant from any statutory remedy and, by its nature, cannot advance the overall purpose of the Act , namely protection of individuals from discrimination, but may, if wrong, frustrate it.
[37] Nonetheless, I must remind myself that Parliament has entrusted to the Commission, not to this Court, the responsibility for being satisfied that a Tribunal hearing is, or is not warranted, in all the circumstances of a complaint. As I indicated earlier, the reasons for dismissing the complaint given by the Commission in its letter of decision should not be dissected and read without context.
[38] Thus, in my view the Commission is not saying in its letter that in no circumstances will it refer a complaint to the Tribunal when an alleged perpetrator of discriminatory conduct denies that he did what is alleged and there are no witnesses available to corroborate to complainant. Rather, I interpret the Commission as simply deciding that in the circumstances of the complaint in this case these factors satisfied it that a hearing was not warranted.
[39] For these reasons, the application for judicial review is dismissed.
"John M. Evans"
TORONTO, ONTARIO
J.F.C.C.
April 15, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1079-98
| STYLE OF CAUSE: HANNA BELL LARSH |
Applicant
OF CANADA
Respondent
DATE OF HEARING: TUESDAY, APRIL 6, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: EVANS, J. |
DATED: THURSDAY, APRIL 15, 1999
APPEARANCES: Ms. J. Chic
Ms. K. Hucal
SOLICITORS OF RECORD: Parkdale Community Legal Services
Barristers & Solicitors
165 Dufferin St.,
Toronto, Ontario
M6K 1Y9
Morris Rosenberg
Deputy Attorney General
of Canada
FEDERAL COURT OF CANADA
Date: 19990415
Docket: T-1749-98
Between:
Applicant
OF CANADA
Respondent
REASONS FOR ORDER
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