Date: 20100823
Docket: T-129-10
Citation: 2010 FC 837
Toronto, Ontario, August 23, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
CHRIS
HUGHES
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Chris
Hughes seeks judicial review of a decision of the Canadian Human Rights
Commission dismissing his complaint against Human Resources and Skills
Development Canada. Amongst other things, Mr. Hughes asserts that he has a
reasonable apprehension that the Commission was biased against him, and that
the investigation into his complaint was neither neutral nor thorough.
[2]
For
the reasons that follow, I have concluded that the investigation carried out by
the Canadian Human Rights Commission was not sufficiently thorough.
Consequently, the application for judicial review will be allowed.
Background
[3]
Mr.
Hughes has been employed in the Federal Public Service since 1999 in a series
of term positions at the CR-04, PM-01 and acting PM-02 levels. In 2000, he was
involved in a whistle-blowing incident involving the Canada Revenue Agency and
the Canada Border Service Agency. Mr. Hughes says that this caused him to
develop depression, anxiety and stress.
[4]
In
the spring of 2006, Mr. Hughes applied as an external candidate in a
competition for
CR-05 Service Delivery Agent II positions at
HRSDC. He evidently qualified for the positions, and was placed in a
“pre-qualified pool”.
[5]
On
July 25, 2006, a message was sent to “All Staff” from the Service Canada
Management Board which announced that CR-05 Service Delivery Agent II positions
were being reclassified to “Payment Service Agent” (PM-01) positions effective
September 14, 2006. As a result of this reclassification, the Statement of Merit
Criteria for the position also changed. External candidates were now required
to have post-secondary education or a university degree. Mr. Hughes was an external
candidate and did not have post secondary education.
[6]
Mr.
Hughes applied for CR-03 and CR-04 positions at HRSDC through competitions held
in August of 2007. He was fully qualified for the CR-03 position, but did not
receive a job offer. He also qualified for the CR-04 position, and commenced
term employment with HRSDC on September 13, 2007. Mr. Hughes’ term was extended
three times, and his employment with HRSDC ultimately terminated on June 27,
2008.
[7]
Mr.
Hughes filed an initial complaint with the Canadian Human Rights Commission on
August 8, 2007 alleging that HRSDC had refused to hire him from a pool of
candidates, or keep him employed in a term position because of his disability.
This complaint alleged differential treatment by HRSDC between March of 2006
and May 22, 2007. Mr. Hughes subsequently withdrew this complaint after he was
offered the CR-04 position with HRSDC.
[8]
Mr.
Hughes filed a new human rights complaint against HRSDC on January 27, 2008.
This complaint covered the period from March of 2006 to January of 2008, and
once again alleged adverse differential treatment in employment on the basis of
a mental disability. Mr. Hughes says that although he qualified for CR-05 and CR-03
positions with HRSDC, he was not hired because of his disability. He further
alleges that although he was one of the most productive employees working as a CR-04
in his area, he was denied assignments afforded to other, non-disabled
employees.
[9]
Mr.
Hughes’ complaint was investigated by the Canadian Human Rights Commission. In
an investigation report dated July 29, 2009, the investigator recommended that
the Commission dismiss Mr. Hughes’ complaint because it appeared that the HRSDC
did not hire Mr. Hughes for reasons other than his disability. The Commission
accepted this recommendation, and Mr. Hughes’ complaint was dismissed on
December 23, 2009, pursuant to subsection 44(3) of the Canadian Human Rights
Act on the basis that further inquiry into the complaint was not warranted.
[10]
Mr.
Hughes challenges this decision, asserting numerous errors on the part of the
Commission investigator, many of which relate to alleged deficiencies in the
thoroughness of the investigation. In addition, Mr. Hughes alleges bias against
him on the part of the Commission generally. Mr. Hughes also challenges
decisions made during the course of the investigation, including the decision
not to merge two complaints filed by Mr. Hughes against HRSDC, the failure of
the Commission to disclose a Treasury Board policy to him, and the refusal of
the investigator to accept new documents from Mr. Hughes near the end of the
investigatory process.
Standard of
Review
[11]
The
majority of Mr. Hughes’ arguments relate to the thoroughness of the
Commission’s investigation. This involves issues of procedural fairness. As the
Federal Court of Appeal observed in Canada (Attorney General) v. Sketchley,
2005 FCA 404, [2005] F.C.J. No. 2056, the task for the Court in such cases is
to determine whether the process followed by the Commission satisfied the level
of fairness required in all of the circumstances: at paras. 52 and 53.
[12]
Mr.
Hughes’ allegation of bias on the part of the Commission also raises a question
of procedural fairness. As such, the standard of review analysis also does not
apply: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at
paragraph 100. Instead, it is for the Court to determine whether the
requirements of natural justice and procedural fairness were met in this case.
[13]
Mr.
Hughes also challenges the refusal to merge his two human rights complaints
against HRSDC, the refusal to allow an amendment to the complaint, and the
refusal to accept new documents at the end of the investigation. These
decisions involve the exercise of the broad discretion conferred on the
Commission in the investigation of complaints: see Slattery v. Canada (Canadian Human Rights
Commission),
[1994] 2 F.C. 574; affirmed (1996), [1996] F.C.J. No. 385, 205 N.R. 383
(F.C.A.). As such, these procedural choices made by the Commission should be
accorded deference, and are reviewable against the reasonableness standard.
[14]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 47, and Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 59.
Analysis
[15]
As was noted earlier, Mr. Hughes has challenged the Commission’s
decision on several different grounds, alleging numerous errors on the part of
Commission staff. While
I have carefully considered each and every allegation advanced by Mr. Hughes, I
am satisfied that it is only necessary to address some of them.
[16]
The
most serious allegation made by Mr. Hughes is his claim to have a reasonable
apprehension that the Commission was biased against him. This issue will be
addressed first.
i) Was
the Canadian Human Rights Commission Biased against Mr. Hughes?
[17]
Mr.
Hughes initially alleged actual or apprehended bias on the part of the
Commission’s Deputy Commissioner, who had signed the letter to Mr. Hughes
communicating the Commission’s decision to dismiss his complaint. However,
over the course of the hearing, Mr. Hughes resiled from his claim that the
Deputy Commissioner was personally biased against him, submitting instead that
he had a reasonable apprehension of bias on the part of the Canadian Human
Rights Commission as an institution.
[18]
As I
understand Mr. Hughes’ submissions, his past experience with his own human
rights complaints, together with the treatment that he has observed being
accorded to other individuals by the Commission and the conduct of the
Commission in this case, reasonably leads him to conclude that he is held to a
higher standard by the Commission than are other people seeking to pursue human
rights complaints through the Commission process.
[19]
Mr.
Hughes points out that two of his previous human rights complaints were
dismissed by the Commission, only to have those decisions set aside by this
Court on judicial review. Moreover, Mr. Hughes says that he has assisted other
individuals with their own human rights complaints. Those complaints were
referred to the Canadian Human Rights Tribunal for hearing, whereas his
complaints are always dismissed by the Commission. Finally, Mr. Hughes points
to the refusal of the Commission to merge two of his complaints or to make
independent inquiries of the Public Service Commission regarding staffing
procedures as further evidence of bias on the part of the Commission.
[20]
The
test for determining whether actual bias or a reasonable apprehension of bias
exists in relation to a particular decision-maker is well known: that is, the
question for the Court is what an informed person, viewing the matter
realistically and practically - and having thought the matter through – would
conclude. That is, would he or she think it more likely than not that the
decision-maker, either consciously or unconsciously, would not decide fairly:
see Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369,
at p. 394. See also Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259
at paragraph 74.
[21]
The
burden of demonstrating either the existence of actual bias, or of a reasonable
apprehension of bias, rests on the person alleging bias. An allegation of bias
is a serious allegation, which challenges the very integrity of the
decision-maker whose decision is in issue. As a consequence, a mere suspicion
of bias is not sufficient: R. v. R.D.S., [1997] 3 S.C.R. 484 at para.
112; Arthur v. Canada (Attorney General) (2001), 283 N.R. 346 at
para. 8 (F.C.A.). Rather, the threshold for establishing bias is high: R. v.
R.D.S, at para. 113.
[22]
The
Canadian Human Rights Commission is clearly subject to the duty of fairness
when it is exercising its statutory powers to investigate human rights
complaints: Syndicat des employés de production du Québec et de l'Acadie v.
Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (“SEPQA”).
This requires that the Commission and its investigators be free from bias.
[23]
That
said, because of the non-adjudicative nature of the Commission’s
responsibilities, it has been held that the standard of impartiality required
of a Commission investigator is something less than that required of the
Courts. That is, the question is not whether there exists a reasonable
apprehension of bias on the part of the investigator, but rather, whether the
investigator approached the case with a “closed mind”: see Zündel v. Canada
(Attorney General) (1999), 175 D.L.R. 512, at paras.17-22.
[24]
As
the Court stated in Canadian Broadcasting Corp. v. Canada (Human Rights
Commission), (1993),
71 F.T.R. 214 (F.C.T.D.), the test in cases such as this:
[I]s
not whether bias can reasonably be apprehended, but whether, as a matter of
fact, the standard of open-mindedness has been lost to a point where it can
reasonably be said that the issue before the investigative body has been
predetermined.
[25]
The
fact that Mr. Hughes’s previous complaints may have been dismissed by the
Commission does not, in my view, establish that the Commission approached this
complaint with a “closed mind”: see Arthur v. Canada (Minister of Employment
and Immigration),
[1992] F.C.J. No. 1000 (F.C.A.). Nor is an institutional “closed mind”
demonstrated by the fact that in at least one of those cases, the Commission
decision was tainted by procedural unfairness.
[26]
The
treatment accorded to complaints brought by other individuals also does not show
a closed mind on the part of the Commission in relation to Mr. Hughes’
complaint. Virtually no information has been provided with respect to these
other complaints, and there is thus no way of determining whether a different
standard was applied to those cases than was applied in relation to Mr.
Hughes’s complaints.
[27]
Insofar
as the conduct of the investigation in this case is concerned, Mr. Hughes
points out that the investigator assigned to his case had described herself as
“a novice” in matters relating to Public Service staffing, and that she relied
entirely on HRSDC’s explanations with respect to the staffing process. I agree
with Mr. Hughes that it would be preferable for someone unfamiliar with all of
the ins and outs of what is undoubtedly a very complex process to obtain
background information in this regard from a neutral source such as the Public
Service Commission, rather than from an interested party. That said, I am not
persuaded that seeking information from HRSDC regarding staffing procedures
evidenced a closed mind on the part of the investigator.
[28]
As
will be explained below, Mr. Hughes has persuaded me that the investigation
into his human rights complaint fell short of the standard of thoroughness
required of Commission investigations by the jurisprudence. These shortcomings
do not, however, demonstrate that the Commission approached Mr. Hughes’ human
rights complaint with a closed mind such that it can reasonably be said that
the outcome of his complaint was predetermined.
ii) Was
the Commission Investigation Sufficiently Thorough?
[29]
Before
turning to consider the allegations made by Mr. Hughes with respect to the
alleged inadequacies in the Commission investigation, it is helpful to start by
examining the nature and extent of the obligations on the Canadian Human Rights
Commission when investigating a human rights complaint.
[30]
The
role of the Canadian Human Rights Commission was described by the Supreme Court
of Canada in Cooper v. Canada (Human Rights Commission) (1996), 140 D.L.R.
(4th) 193. There, the Supreme Court observed that the Commission is not an
adjudicative body, and that the adjudication of human rights complaints is
reserved to the Canadian Human Rights Tribunal. Rather, the duty of the
Commission “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, then, is that of assessing the sufficiency of the evidence
before it”: at para. 53. See also SEPQA.
[31]
The
Commission has a broad discretion to determine whether “having regard to all of
the circumstances” further inquiry is warranted: Mercier v. Canada (Human Rights
Commission),
[1994] 3 F.C. 3 (FCA). However, in making this determination, the process
followed by the Commission must be fair.
[32]
In Slattery
v. Canada (Canadian Human Rights
Commission),
[1994] 2 F.C. 574; affirmed (1996), aff’d 205 N.R. 383 (F.C.A.) this Court
discussed the content of procedural fairness required in Commission
investigations. The Court observed that in fulfilling its statutory
responsibility to investigate complaints of discrimination, investigations
carried out by the Commission must be both neutral and thorough.
[33]
Insofar
as the requirement of thoroughness is concerned, the Court in Slattery
observed that “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”. As a consequence, “[i]t should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted”: at para 56.
[34]
The
requirement for thoroughness in investigations must also be considered in light
of the Commission's administrative and financial realities. With this in mind,
the jurisprudence has established that some defects in the investigation may be
overcome by providing the parties with the right to make submissions with
respect to the investigation report. As the Federal Court of Appeal observed in
Sketchley, the only errors that will justify the intervention of a court
on review are “investigative flaws that are so fundamental that they cannot be
remedied by the parties’ further responding submissions”: at para. 38.
[35]
A
decision to dismiss a complaint made by the Commission in reliance upon a
deficient investigation will itself be deficient as “[i]f the reports were
defective, it follows that the Commission was not in possession of sufficient
relevant information upon which it could properly exercise its discretion”: see
Grover v. Canada (National Research Council), [2001] F.C.J. No. 1012, at
para. 70. See also Sketchley, previously cited, Garvey v. Meyers
Transport Ltd. [2005] F.C.J. No. 1684 (C.A.), Singh v. Canada (Attorney
General), [2002] F.C.J. No. 885, 2002 FCA 247 (C.A.) at para. 7 and Kollar
v. Canadian Imperial Bank of Commerce, [2002] F.C.J. No. 1125, 2002 FCT 848
at para. 40.
[36]
With
this understanding of the role and responsibilities of the Canadian Human Rights
Commission in dealing with the investigation of complaints of discrimination, I
turn now to consider the arguments advanced by Mr. Hughes as to the inadequacy
of the investigation in this case.
[37]
The
first question relates to whether the HRSDC personnel involved in the CR-03 and
CR-05 competitions were aware that Mr. Hughes had suffered from a mental disability.
This was an important issue. Obviously, if those involved in the competitions
were not aware of Mr. Hughes’ past disability, it could not have been a factor
in their hiring decisions.
[38]
The
investigator had herself identified this issue as being central to the case.
That is, in a June 10, 2009 email to an HRSDC representative, the investigator
stated “What is important in this investigation is the link to Mr. Hughes’
disability and if the respondent knew that Mr. Hughes had a disability at the
time of the alleged conduct”.
[39]
In
her report, the investigator noted inconsistencies in Mr. Hughes’ evidence as
to when he had advised HRSDC representatives involved in the hiring process of
his past disability. The investigator also noted that the representatives in
question “vehemently den[ied] they knew anything about Mr. Hughes having a
disability”: investigation report at para. 50. It should be noted that several
of these individuals were involved in both competitions.
[40]
There
is, however, documentary evidence in the certified tribunal record indicating
that those involved in the hiring process for both the CR-03 and CR-05
competitions were made aware of the fact that Mr. Hughes had previously
suffered from a disability.
[41]
By
way of example, a reference check carried out with respect to the CR-05
competition notes that Mr. Hughes is “currently not working, ‘medical issues’
last few years”. This clearly indicates that Mr. Hughes had suffered from
long-standing health problems in the past.
[42]
Even
clearer is the disclosure made by Mr. Hughes himself in the course of the CR-03
competition. Right in his application form is the statement that “I have been
sick for most of the time since March 2006. My illness falls under a category
in the Canadian Human Rights Act.” It is hard to imagine how Mr. Hughes
could have been any clearer than that.
[43]
Counsel
for HRSDC concedes that “in a perfect world” it would have been better if the
investigator had at least brought these documents to the attention of the HRSDC
witnesses and asked them to explain the discrepancy between the documentary
record and their evidence. However, counsel submits that the investigator was
entitled to rely upon the comments of the witnesses, to evaluate their
credibility, and to believe that they were unaware of the fact that Mr. Hughes
had previously suffered form a disability.
[44]
I do
not agree with this submission. The documents identified above cast serious
doubt over the claims of those involved in the CR-03 and CR-05 competitions
that they were unaware that Mr. Hughes had previously suffered from a
disability. Not only does the investigator fail to come to grips with an
important discrepancy in the record, she never even put the documents in
question to the witnesses. Instead, she seems to have simply to have accepted
the denials of the personnel involved in the competitions that they had any
knowledge of Mr. Hughes’ disability.
[45]
Indeed,
the investigator clearly favoured the evidence of the HRDSC witnesses over that
of Mr. Hughes, going so far as to say in her report that “[t]he only time that
Mr. Hughes presents himself as disabled is when he does not get a job or when
he receives negative feedback…”. This is an unfair comment which is not borne
out by the documentary record.
[46]
While
Mr. Hughes did draw the attention of the Commissioners to the contrary evidence
in his submissions, these submissions could not undo the fact that the investigator’s
negative view of Mr. Hughes’ credibility and her positive view of the evidence
of HRSDC’s witnesses clearly permeated her entire analysis.
[47]
There
are other troubling aspects to the investigation.
[48]
Mr.
Hughes was hired by HRSDC at the CR-04 level to work on the “CEP program”. He says
that he had not disclosed the fact that he had previously suffered from a
disability during this hiring process, which involved different HRSDC
representatives from those involved in the CR-03 and CR-05 competitions. However,
he says that his supervisors subsequently became aware of his past disability
after he began his employment with the CEP program.
[49]
Mr.
Hughes alleges that the CR-04 position with the CEP program was a “dead-end”
job, as the work involved was time-limited, and not ongoing. Many of the
individuals working with Mr. Hughes were offered other positions with the Old
Age Security / Canada Pension Plan processing section. Mr. Hughes alleges that
he was left working in a program with a limited lifespan so the HRSDC would be
able to get rid of him.
[50]
The
respondent says that nine people were selected to transfer to the CPP program,
and that the selection was based on interviews and current work performance.
An email to staff from the CEP manager explains that individuals were to be
identified for these positions based upon the competencies demonstrated during
the initial hiring, as well as current reference information from the
individuals’ managers. Mr. Hughes says that although he was one of the top
producers in his area and his manager was prepared to give him a positive
reference, he was the only CR-04 not kept on.
[51]
The
investigator asked HRSDC representatives about Mr. Hughes’ allegation in this
regard. In a written response, an HRSDC representative advised that “The
Manager of CEP …. will need to respond to this question, as I am not sure if
other employees were not renewed before their specified term”.
[52]
There
is nothing in the file to suggest that the investigator ever followed up with
the CEP manager about this. Moreover, no analysis was ever done to compare the
“competencies demonstrated during the initial hiring”, and the “current
reference information from the individuals’ managers” for Mr. Hughes to the
competencies and references of the successful candidates. Thus there is no way
of knowing if the individuals transferred to the CPP positions were any more or
less qualified than Mr. Hughes.
[53]
Furthermore,
although Mr. Hughes says that he was told that his manager would give him a
positive reference, no such reference was produced by HRSDC, who says that Mr.
Hughes’ manager was “unable to give a recommendation”. The investigator never
spoke to Mr. Hughes’ manager. She was obviously a key witness, given that the
quality of his performance was in issue. Instead, the investigator appears to
have simply accepted the word of an HRSDC witness that Mr. Hughes did not get
any of the other positions because of merit.
[54]
It
is therefore clear that the investigator failed to investigate “obviously
crucial evidence” in this regard: Slattery, at para. 56; Tahmourpour
v. Canada (Solicitor General), 2005 FCA 113 at para.
8).
[55]
The
result of these deficiencies is that the investigation in this case does not
meet the standard of thoroughness mandated by the jurisprudence. As a result,
the Commission’s decision to dismiss Mr. Hughes’ complaint will be set aside,
and the matter remitted to the Commission for re-investigation by a different
investigator and re-determination by the Commission.
Other Matters
[56]
Mr.
Hughes has raised a number of other concerns with respect to the conduct of the
Commission, which may have a bearing on the re-investigation of his complaint,
and thus require comment.
[57]
One
such issue is the fact that the Commission investigator refused to merge this
complaint with a subsequent complaint filed by Mr. Hughes against HRSDC. The
reason given for refusing to merge the two complaints was that the
investigation into this complaint was nearly complete at the time that the
request was made, whereas the investigation into the other complaint was still
ongoing. While that decision was a reasonable exercise of the investigator’s
discretion at the time that it was made, it may need to be re-visited in the
context of the re-investigation, depending upon the status of the other
complaint.
[58]
Mr.
Hughes will have the opportunity to address the Treasury Board policy produced
by HRSDC and not previously disclosed to him in the course of the new
investigation, and he will also have the opportunity to provide the investigator
with additional documents, if he deems it appropriate. It will also be open to
Mr. Hughes to renew his request to amend his human rights complaint to include
allegations of discrimination on the basis of a physical disability and allegations
of systemic discrimination under section 10 of the Canadian Human Rights Act.
Ultimately, it will be for the Commission to determine if such amendments are
appropriate.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that this application for judicial review is allowed, with costs. The decision
of the Canadian Human Rights Commission dismissing Mr. Hughes’ human rights
complaint is set aside, and the matter is remitted to the Commission for
re-investigation and re-determination in accordance with these reasons.
“Anne
Mactavish”
Email this Content