Date: 20101117
Docket: T-2136-09
Citation: 2010
FC 1152
Ottawa, Ontario, November 17, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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STACEY GERRARD
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is a
judicial review of a decision made December 9, 2009 by the Canadian Human
Rights Commission (the “Commission”). The Commission decided to dismiss the
Applicant’s complaint of discrimination against Justice Canada, her former employer,
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
R.S.1985, c. H-6 (the “Act”).
[2]
The
Applicant challenges that decision on a number of grounds, alleging essentially
that the Commission breached her right to natural justice and procedural
fairness, and erred in the assessment of the evidence. For the reasons that
follow, I am unable to find in favour of the Applicant, as there are no grounds
for the intervention of this Court.
I. Facts
[3]
The
Applicant, after placing first in a competition, accepted an offer for a
one-year contract as LA-01 counsel with the Department of Justice in the
Atlantic Regional Office in Halifax,
Nova Scotia. The term began on June 20,
2005 and ended on June 19, 2006. At the time, she was married with a small
child and pregnant with a second one. In the months following her hiring, two
other women candidates, Susan Taylor and Andrea Jamieson, both single with no
children, were hired on a similar basis.
[4]
On March
7, 2006, the Applicant was given written notice that her term contract would
not be renewed. On the contrary, the contract of Ms. Taylor, who placed second
in the competition, was renewed.
[5]
In May
2006, the Applicant filed a grievance with the Department of Justice. The
grievance was heard at the first and second level and finally dismissed in
January 2007. The Applicant did not refer her grievance to the Public Service
Labour Relations Board.
[6]
In August
2006, the Applicant filed a complaint with the Public Service Commission (the
“PSC”). The PSC decided that the complaint did not fall within its
jurisdiction.
[7]
By letter
dated February 1, 2007, the Applicant, with the assistance of her Member of
Parliament, requested a Ministerial Inquiry into the decision not to renew her
contract. By letter dated December 21, 2007, the Department advised her that,
since the Applicant was still exercising her redress before the Commission, the
Department could not comment any further.
[8]
In late
June 2007, the Applicant filed a complaint with the Commission alleging that
the reason behind the non-renewal of her employment contract was her status of
married pregnant women and mother of a small child. Among other things, the
Applicant claimed that the decision not to renew her employment was her lower
number of billable hours and the fact that she could not work overtime like Ms.
Taylor, as a result of her family and marital commitments.
[9]
The
Commission appointed an investigator, Deidre Hilary, to investigate the
complaint. Ms. Hilary completed her work and filed an investigation report on
December 12, 2008. She recommended to the Commission that it dismiss the
complaint on the bases that the evidence gathered did not support the
complainant’s allegation of discrimination and did not support the allegation
that the Respondent refused to hire or terminated the complainant’s employment
on the grounds of sex, family status or marital status.
[10]
The
Applicant wrote a letter to the Commission complaining, amongst other things, that
she was denied an opportunity to provide evidence on many issues and that the
investigator had not interviewed several witnesses, including herself, who had
evidence to give in support of her complaint.
[11]
After a
response to the Applicant’s remarks by Justice Canada, the Commission determined in April 2009
that further investigation was required and that interviews with new witnesses
should be conducted. Andrew Sunstrum was appointed to complete the
investigation.
[12]
In June
2009, Mr. Sunstrum interviewed the Applicant and the witnesses she had listed,
including the Applicant’s union representative. A supplementary investigation
report was produced on August 21, 2009 and forwarded to the Applicant on
September 8, 2009 for comments. The supplementary investigation report
contained new findings of fact, but did not include new conclusions, summaries
or recommendations. Both parties produced further remarks on that report.
[13]
After
considering both investigation reports and the submissions of the parties thereon,
the Commission decided to dismiss the complaint.
II. The impugned decision
[14]
The
impugned decision was communicated to the Applicant by way of letter dated
December 12, 2009. The core of the letter is short enough to be reproduced
hereafter:
I am writing to inform you of the
decision taken by the Canadian Human Rights Commission in your complaint
(20070766) against Justice Canada.
Before rendering the decision, the
Commission reviewed the report disclosed to you previously and any
submission(s) filed in response to the report. After examining this
information, the Commission decided, pursuant to paragraph 44(3)(b) of the
Canadian Human Rights Act, to dismiss the complaint because:
1. The evidence gathered does not
support the complainant’s allegation of discrimination; and,
2. The evidence gathered does not
support that the respondent refused to hire, or terminated the complainant’s
employment, on the grounds of sex, family status, marital status.
Accordingly, the file on this matter has
now been closed.
III. Issues
[15]
The
Applicant, who was self-represented, has raised a number of issues with respect
to that decision of the Commission. I believe all of these issues can be
grouped around three themes:
A.
Did the
Commission make erroneous findings of fact, or rely on fraudulent and perjured
evidence?
B.
Did the
Commission commit any jurisdictional error?
C.
Did the
Commission breach procedural fairness during its investigation process?
IV. Analysis
A. Evidentiary Preliminary Issue
[16]
The
Applicant made extensive reference to documents excerpted from the
investigative record that was provided to her by the Commission under cover of
a Supplementary Rule 318 Certificate dated March 25, 2010. Counsel for the
Respondent objected to the admissibility of these documents for three reasons.
[17]
First, the
Respondent submitted that these documents have not been tendered by way of an
affidavit, as required by Rule 306 of the Federal Courts Rules,
SOR/98-106. Second, he contented that the Applicant did not include them in
her Application Record. Finally, these documents were not before the
Commission when it made its decision.
[18]
The
general rule is that a reviewing court makes its decision on the basis of the
material that was before the administrative decision-maker. Exceptionally, additional
evidence will be relevant when there is an allegation of breach of procedural
fairness or of jurisdictional error committed by the administrative body. This
principle was clearly established by the Federal Court of Appeal decision in Ontario
Assn. of Architects v. Assn. of Architectural Technologists of Ontario,
2002 FCA 218, [2002] F.C.J. No. 813 at para. 30:
In contrast, applications for judicial
review are normally conducted on the basis of the material before the
administrative decision-maker. However, affidavit evidence is admitted on
issues of procedural fairness and jurisdiction. Supplementary affidavits and
cross-examination on them require leave of the Court; Federal Court Rules, rule
312.
[19]
More
specifically, with respect to decisions involving a two-step process where the
first one is only investigative, such as it is the case of the Commission,
Courts have held that, in general, the production of the documents that were
before the Commission (excluding those which were used only during the
investigation) is sufficient, because they are the only relevant documents to
the judicial review. The investigation notes become relevant when a party
casts doubt on the accuracy and the completeness of the reported summary of the
facts: Canada (Human Rights Commission) v. Pathak, [1995] 2
F.C. 455 (C.A.) at paras. 10-12; Assoc. des crevettiers du Golfe Inc. v.
Canada (Attorney General), 2009 FCA 229, [2009] F.C.J.
No. 861 at paras. 17-18.
[20]
In the
case at bar, the Commission had before it a list of documents provided to the
Court and to the parties on January 15, 2010. This list included investigation
reports, a summary of complaint, the Respondent’s response to the complainant’s
allegations dated March 31, 2008, and submissions by both parties in response
to each of the investigation reports.
[21]
On March
25, 2010, via an exhaustive Supplementary Rule 318 Certificate, the Commission
forwarded all of the documents contained in the investigation file with respect
to the Applicant’s complaint. The Applicant relied on many documents, such as
Justice Canada September 2007 defence to the complaint and her rebuttal dated
May 14, 2008, which are found in the Supplementary Rule 318 Certificate, but
were not before the Commission when it made its decision.
[22]
To the
extent that the issues and arguments pertain to the accuracy of the
investigator’s reports and summaries, or to which they raise procedural
fairness and jurisdiction issues, the Supplementary Rule 318 Certificate is
relevant for this judicial review and both parties can refer to it. Otherwise,
only the record that was before the Commission can be taken into account.
[23]
I realize
that the Supplementary Record was not tendered by way of an affidavit.
However, in light of the controversy that has arisen in the Court of Appeal
with respect to the proper way to file a tribunal record (see Canada
(Attorney General) v. Lacey, 2008 FCA 242, [2008] F.C.J. No. 1221
and Canada (Attorney General) v. Vold, Jones and Vold Auction Co.,
2009 FCA 192, [2009] F.C.J. No. 715) – a controversy that was only recently
resolved in favour of the rule that a tribunal record, like any documentary
exhibits, must be filed by way of affidavit Select Brand Distributors Inc.
v. Canada (Attorney General), 2010 FCA 3, [2010] F.C.J. No. 33, at para.
56) – I am prepared to consider the Supplementary Record for the limited
purposes outlined in the previous paragraph. Counsel were told of my decision
at the hearing, and out of fairness for counsel representing the Attorney
General, I allowed him to file additional material in response to the
Supplementary Record. Counsel for the Respondent declined to file further
documents, but instead drew my attention to some documents in the Supplementary
Record that were, in his view, of particular interest to fully understand the
work of the investigators and to contextualize the Applicant’s arguments.
(1) Did the Commission Make Erroneous Findings of Fact,
or Rely on Fraudulent and Perjured Evidence?
[24]
There is
no disagreement between the parties as to the applicable standard of review.
The role of the Commission is not to decide whether a complaint is made out,
but whether under the provisions of the Canadian Human Rights Act, an
inquiry is warranted having regard to all of the facts: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at
paras. 52-53; Syndicat
des employés de production du Québec et de l’Acadie v. Canada (Human
Rights Commission), [1989] 2 S.C.R. 879, at p. 899. It has been decided that such decisions
are to be reviewed against a standard of reasonableness: Balogun v. Canada (Minister of National Defence), 2009 FC 407, aff’d 2010 FCA 29, at
para. 6; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 at
para. 47. Reasonableness is a deferential standard, concerned with the
“existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the facts
and the law”: New
Brunswick v. Dunsmuir, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 47.
[25]
In her Statement of
Issues, the Applicant says that the Commission based its decision on an
erroneous finding of fact when it relied on a Supplementary Investigation Report
that contained factual inaccuracies. It appears that the inaccuracies to which
the Applicant refers relate to the interview with one of her witness by the
second investigator. She stated in her factum that Darlene Lamey contacted Mr.
Sunstrum “to inform him that there were “several areas” in the Supplemental
Investigation Report where she was misquoted”, and that the information
provided “did not accurately reflect the interview”.
[26]
This argument is
completely unsupported, and as the Applicant herself conceded in her factum,
she does not know what the inaccuracies are. In the absence of any affidavit
by Ms. Lamey corroborating the Applicant’s submission, and of any evidence in
the record confirming that Ms. Lamey did indeed contact Mr. Sunstrum and
complained about the interview, the Court is left to speculate as to what these
inaccuracies may have been, if indeed there are such inaccuracies. Moreover,
the Applicant specifically brought that issue to the attention of the
Commission in her submissions of September 21, 2009. Had the Commission
considered these alleged inaccuracies fundamental, it could have arranged for
further investigation. Accordingly, there is no basis upon which to conclude
that the Commission relied upon an insufficient or deficient investigation
report.
[27]
The Applicant further
submitted that the Commission erred because if failed to provide any findings
of fact in its decision. This argument cannot stand. Pursuant to subsection
44(3) of the Act, the Commission must decide whether, having regard to all the
circumstances of the complaint, an inquiry is warranted. In making this
decision, it does not perform an adjudicative function and is not required to
make findings of fact: Cooper, above, at para. 53.
[28]
Indeed, it is well
established that the Commission, when it adopts the recommendation of the
investigation report, need not provide detailed reasoning and reference to the
underlying facts.
The
Federal Court of Appeal clearly summarized this principle at para. 37 of its
decision in Sketchley, above:
[…]
When the Commission adopts an investigator’s recommendations and provides no
reasons or only brief reasons, the Courts have rightly treated the
investigator’s report as constituting the Commission’s reasoning for the
purpose of the screening decision under section 44(3) of the Act […].
[29]
Finally, the
Applicant says the Respondent made the “perjured and fraudulent submission”
that the Public Service Commission found no fault with the decision of the
Respondent to renew the term of another LA-01 based on the “right fit”
criteria, and alleges that the investigator’s summary of the disposition of her
complaint to the PSC was “fraudulently misleading”. The Respondent conceded
that this statement was in error, and that the PSC did not investigate the
Applicant’s complaint on the ground that it lacked the jurisdiction to do so.
However, there is no evidence that this error was made with fraudulent intent,
and the unsworn submissions of a party to an investigatory body such as the Commission
cannot, strictly speaking, be considered perjury.
[30]
More importantly, the
Applicant had many opportunities to address this submission before the
Commission and did so repeatedly. First, she states clearly in her complaint
that “the Public Service Commission determined that they did not have the
requisite jurisdiction to investigate my complaint”. Second, in her submission
to the Commission of January 9, 2009, she complains that the investigator’s
summary of the disposition of her PSC complaint is “incomplete and inaccurately
reflected”, alleging that the investigator neglected to review the PSC
determination. She goes on to assert, as she did before this Court, that the
Respondent submitted perjured or fraudulent evidence that was ignored by the investigator,
specifically referencing her earlier submissions and a letter from the PSC.
Third, she made the same point in her letter of February 20, 2009. All of
these documents were before the Commission.
[31]
As for the
investigator’s summary, it did not state that the PSC investigated and
dismissed her complaint, but that the Applicant was “unsuccessful” before the
PSC. This is technically true, as the Applicant did not succeed in persuading
the PSC to investigate her complaint.
[32]
In any event, the
Respondent’s submission on this point is of little consequence. It was not the
function of the investigator to examine the PSC’s handling of the complaint and
there is no evidence that the Respondent’s submission had any bearing on the
conduct of the investigation or the decision of the Commission.
(2) Did the Commission
Commit any Jurisdictional Error?
[33]
The Commission
decided to dismiss the complaint because, in its view, the evidence gathered
did not support either the Applicant’s allegation of discrimination or her
allegation that the Respondent “refused to hire, or terminated the
Complainant’s employment on the grounds of sex, family status [or] marital
status”.
[34]
The Applicant finds
fault with the choice of words “refused to hire” and “terminated” and submits,
on that basis, that the Commission exceeded its jurisdiction because s. 7 of
the Act states that it is a discriminatory practice “to refuse to employ or
continue to employ” an individual on a prohibited ground of discrimination.
With all due respect, I fail to see how such an argument can be taken
seriously.
[35]
While the Commission
could have been more careful in its choice of words, it clearly had the
authority to make the determination and the investigation it made. Regardless
of the language used in its decision, the Commission clearly understood that
the Applicant was alleging that the Respondent refused to continue to employ
her within the meaning of section 7 of the Act.
[36]
The Commission’s
decision was supported by the findings of fact made in two comprehensive
investigation reports. The first investigator understood and fully
investigated the Applicant’s complaint that her term was not renewed by reason
of discrimination based on sex, family status, and marital status. She
summarized the complaint in these terms:
The
complainant began a one-year term contract as counsel…On March 7, 2006, the
complainant was given written notification that her term contract would not be
renewed and her last day of employment was June 19, 2006. One of the other
women had her contract renewed. The complainant alleges that her contract was
not renewed because she was married, pregnant and had a small child.
[37]
The investigator went
on to determine, on the basis of evidence supplied by the Department of
Justice, that the Applicant had not been terminated. Rather, her term expired
and was not renewed. The investigator then investigated whether the decision
not to renew her employment was made on a prohibited ground. Far from refusing
to exercise, or exceeding, its jurisdiction, the Commission properly
investigated the complaint tendered by the Applicant before dismissing it.
There is nothing in the record to suggest that the Commission asked itself the
wrong question or in any other way misinterpreted the limits of its jurisdiction.
[38]
The Applicant also
contended, somewhat confusingly, that the Commission acted beyond its
jurisdiction and investigated the substantive issues of the complaint, while
such an inquiry falls only within the jurisdiction of the Tribunal. In the Applicant’s
opinion, the Commission failed to analyze whether the complaint had reached the
threshold of prima facie case of discrimination. In support of her
argument, the Applicant refers to s. 6.1 of an internal manual of the
Commission entitled Dispute Resolution: Procedures Manual which
mistakenly (in her view) directs the investigator to assess the merits of a
complaint.
[39]
Once again, this
argument cannot hold sway. First of all, the document to which the Applicant
refers is only one chapter of a larger piece and it is, for that reason,
difficult to contextualize the particular quote on which the Applicant relies.
In any event, a manual is not a regulation but an internal policy document that
is not binding. Treating such a document as a binding rule would constitute a
fettering of the discretion of the administrative body: International
Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging
Ltd., [1990] 1 S.C.R. 282, at para. 33.
[40]
Moreover, the
Applicant did not explain how the Commission exceeded its jurisdiction in the
present case.
[41]
The Commission must
have an adequate and fair basis on which to evaluate whether there is
sufficient evidence to warrant appointment of a tribunal. In order for there
to be a “fair basis” the investigation must satisfy at least two conditions:
neutrality and thoroughness (Slattery, [1994] 2 F.C. 574 at paras. 48-50).
Determining the required degree of thoroughness involves balancing the
complainant’s and respondent’s interests in procedural fairness and the
Commission’s interests in maintaining a workable and administratively effective
system. Deference must be given to administrative decision-makers to assess
the probative value of evidence and to decide to further investigate
accordingly. As found by this Court: “It should only be where unreasonable
omissions are made, for example where an investigator fails to investigate
obviously crucial evidence, that judicial review is warranted”: Slattery,at
paras. 56-57.
[42]
The first
investigation report reveals that an extensive investigation was conducted.
The investigator interviewed Department of Justice seven employees, including
the persons who decided not to renew the Applicant’s employment and human
resources advisors. She also reviewed and analyzed documents including those
tendered during the Applicant’s grievances, the applicable legislation, the
business plan, and the Respondent’s submissions. She summarized the evidence
provided and she reached logical and reasonable conclusions before making her
recommendations.
[43]
The investigator
gathered sufficient evidence to support the findings that she made: that the
Respondent extended the other employee’s term because she was the “right fit”
given her qualifications, experience, and departmental requirements; that the
candidates’ billable hours were not considered before the decision was made;
and that the Applicant’s pregnancy was not a factor in that decision.
[44]
The Applicant
insisted that the investigation was insufficient and made representations to
the Commission to that effect. As a result of these representations, the
Commission elected to carry out a supplementary investigation. The new
investigator interviewed the witnesses identified by the Applicant, considered
the issues raised by the Applicant and made additional findings of fact. In
particular, he investigated the litigation experience and competency of the
candidates, the Applicant’s performance, the issue whether the decision to
retain Ms. Taylor was made on the basis of billable hours, and the evidence of
various employees concerning the balancing of work requirements and family
demands.
[45]
Any deficiencies in
the first investigation report were fully addressed in the second investigation
report. Moreover, the Commission had before it the Applicant’s submissions
respecting the alleged deficiencies of the two reports when it made its
decision. In these circumstances, there is no basis to conclude that the
Commission did not have before it an adequate and fair basis in the evidence
for making its decision. Therefore, I find that the Commission responsibly
conducted the investigation in accordance with its statutory jurisdiction and
could determine, on the basis of the evidence before it that there was no
reasonable basis to proceed to the next stage, i.e., to appoint a tribunal.
[46]
The Applicant also
takes issue with the fact that the investigation report included an analysis of
the Public Service Employment Act, S.C. 2003, c. 22, ss. 12-13 and its
concept of “right fit”, which in her view is outside the scope of the
Commission’s jurisdiction. Yet she cites no authority in support of that
proposition. It seems to me that investigators must be expected to consider
and interpret relevant legislation from time to time to understand the
statutory and regulatory framework within which employment decisions are made.
The Applicant does not explain why investigators should be prohibited from
interpreting and applying relevant legislation nor how, in this case, the
investigator erred in so doing.
[47]
Finally, the
Applicant submitted that the Commission exceeded its jurisdiction when it
ordered a further investigation. To accept such an argument would be inimical
to the whole structure of the Canadian Human Rights Act. The Commission
is master of its own process and must be afforded considerable latitude in the
way it conducts investigations. It does not become functus officio upon
delivery of an investigation report. If that were so, then insufficient
investigation reports could never be improved and the Commission would be
forever precluded by an insufficient factual record from exercising its
discretion to dismiss or refer complaints to the Tribunal. In particular, the
Commission is not restricted to investigating new information that was not
previously available. The policy manual relied upon by the Applicant is a
general guideline, not a legal restraint on jurisdiction.
[48]
If the Commission has
overlooked something or failed to appreciate an argument made by a complainant
or a respondent, it is reasonable and appropriate in the interests of justice
that it have the authority to reopen the investigation and address the alleged
deficiency. This is especially important where a party draws a
decision-maker’s attention to an omission of a fundamental nature: the
Commission must have discretion to deal with that omission through further
investigation rather than waiting for a judicial direction to that effect.
(3) Did the Commission Breach Procedural Fairness
During its Investigation Process?
[49]
There is no question
that the Commission’s decision to forward a complaint to the Tribunal or to
dismiss it must be made after a thorough and neutral investigation in
compliance with the principles of natural justice: Slattery, above, at
para. 49.
[50]
The Commission did
not violate the principles of procedural fairness by conducting the
supplemental investigation. After considering the Applicant’s submissions in
relation to the first investigation report, the Commission decided to interview
the very witnesses that she complained had not been interviewed. In so doing,
it acknowledged her submissions and took steps to ensure that they were
addressed. In directing further investigation in the present case, the
Commission did not breach procedural fairness but, on the contrary, acted to
protect the Applicant’s rights and ensure that the investigation had been
thorough before coming to its conclusion.
[51]
The Applicant also
challenged the thoroughness of the second investigation. First, she submitted
that Mr. Sunstrum should not have interviewed the witnesses by telephone.
Second, she argued that he accepted that the billable hours were the reason
behind Justice Canada’s decision but attempted to find
evidence that the Applicant’s lower billable hours were not a result of her
family and marital status. Again, these contentions are not supported by the
evidence, and the use of the telephone to conduct the interviews does not
affect their appropriateness in this particular case. The investigator’s
questions regarding billable hours were appropriate given the Applicant’s
complaints about the deficiencies of the first investigation; moreover, the
evidence clearly indicated that the candidates’ billable hours were not
considered at the time the decision was made not to extend the Applicant’s term
of employment.
[52]
The Applicant further
argues that the investigator did not consider her letter of May 14, 2008. It
is true that the investigator did not refer to it expressly in her
investigation report, but many of the submissions made therein are addressed in
the report. In any event, the Applicant addressed all of the points she made
in her letter of May 14, 2008 in subsequent correspondence that was before the
Commission. Moreover, an investigator is not required to deal exhaustively
with every allegation made by a complainant. An investigation into a human
rights complaint cannot be held to a standard of perfection; it is not required
to turn every stone. An investigation will be flawed only when it fails to
address a crucial element or when it contains erroneous fact findings:
The
fact that the investigator did not interview each and every witness that the
applicant would have liked her to and the fact that the conclusion reached by
the investigator did not address each and every alleged incident of
discrimination are not in and of themselves fatal as well. This is
particularly the case where the applicant has the opportunity to fill in gaps
left by the investigator in subsequent submissions of her own. In the absence
of guiding regulations, the investigator, much like the CHRC, must be master of
his own procedure, and judicial review of an allegedly deficient investigation
should only be warranted where the investigation is clearly deficient. In the
case at bar I find that the investigator did not fail to address any
fundamental aspect of the applicant’s complaint, as it was worded, or were any
other, more minor but relevant points inadequately dealt with that could not be
dealt with in the applicant’s responding submissions.
Slattery,
above, at para. 69.
[53]
The Applicant also
questioned the neutrality of the investigation process and claimed that
reasonable apprehension of bias exists. First of all, because of the
non-adjudicative nature of the Commission, it is not bound to the same standard
of impartiality as the court. As the Court said in Sanderson v. Canada (Attorney General), 2006 FC 447, [2006] F.C.J. No. 557 at
para. 75, “(…) 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 (…)”.
[54]
In any case, the
Applicant’s allegations of bias are far from convincing. The Applicant makes
much of her interaction with an intake officer with the Commission, who allegedly
told her that she would have a difficult time proving that discrimination
occurred with the new legislation “now permitting managers to appoint a
candidate on whatever criteria they choose, including the colour of their
shoes” (A.R., par. 92). First of all, that evidence is not properly supported
by an affidavit. Moreover, the mere expression of opinion by a Commission
intake officer about the impact of the Public Service Employment Act on
the applicant’s proposed complaint cannot be taken as evidence of a lack of
neutrality on the part of the Commission. At this point, the complaint had not
been finalized, an investigator had not been appointed and no steps had been
taken to investigate or assess the complaint. There is no evidence to suggest
that this opinion, if expressed, was shared by the investigator or the
Commission or, more importantly, that it influenced in any way the conduct of
the investigation or the decision of the Commission.
V. Conclusion
[55]
For all of the above
reasons, I am therefore of the view that the Commission had a reasonable basis
in the evidence for making its decision, and did not breach the principles of
fairness. The investigations were thorough and neutral, and the Applicant had
every opportunity to make submissions concerning the two investigation
reports. Accordingly, there are no grounds for the intervention of this Court.
ORDER
THE COURT’S JUDGMENT IS that this application for judicial
review be dismissed, with costs in the amount of 1 500$ to the Respondent.
"Yves de Montigny"
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