Date: 20091104
Docket: T-383-08
Citation: 2009 FC 1127
Ottawa, Ontario, November 4,
2009
PRESENT: The
Honourable Mr. Justice Mainville
BETWEEN:
AYMAN MERHAM
Applicant
and
ROYAL BANK OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This case concerns a
judicial review application challenging a refusal to reconsider a prior
decision of the Canadian Human Rights Commission (the “Commission”). The
refusal was communicated by letter dated February 7, 2007 from the Director of
the Investigations Branch of the Commission.
[2]
The judicial review
application is based on alleged breaches of the rules of procedural fairness by
the Director of the Investigations Branch of the Commission in failing to
properly consider the request for reconsideration and to provide adequate reasons
for its denial.
Background
[3]
Mr. Ayman Merham, (“the
Applicant”) was employed by the Royal Bank of Canada (“the Respondent”) as of September 1998. On December 31, 2001 the
Applicant submitted a complaint (the “Complaint”) to the Commission alleging
that since July 25, 2000 the Royal Bank of Canada had discriminated against him
on the grounds of race, national or ethnic origin and disability by treating
him adversely in the course of employment, by failing to provide a workplace
free of harassment, by failing to accommodate him and by threatening to
terminate his employment contrary to sections 7 and 14 of the Canadian Human
Rights Act (the “Act”).
[4]
An investigation was
carried out on this complaint by Deborah Olver (the “Investigator”) pursuant to
subsection 43(1) of the Act. The Investigator interviewed the Applicant and
numerous employees and representatives of the Royal Bank of Canada. The Investigator prepared a detailed seventeen page
report on her findings dated August 5, 2004 (the “Report”) and submitted it to
the Commission pursuant to subsection 44(1) of the Act. In this Report, the
Investigator recommended that the Commission dismiss the Complaint pursuant to
paragraph 44(3)(b) of the Act.
[5]
The Commission reviewed
the Report and decided to follow its recommendation to dismiss the Complaint.
This decision was communicated to the parties on December 3, 2004.
[6]
The Applicant brought
an application for judicial review of the December 3, 2004 decision of the
Commission before the Federal Court based on alleged breaches of procedural
fairness and errors of fact and law in considering the evidence. A hearing was
held for this purpose, and in a judgment dated February 22, 2006, the
Honourable Mr. Justice Blais (now Chief Justice of the Federal Court of Appeal)
dismissed the application. No appeal was made from this judgment, which is thus
final.
[7]
Following this
judgment, the Applicant commenced an Ontario small claims
court action on March 20, 2006, against Mr. Paul Singh, his former immediate
supervisor at the Royal Bank of Canada and one of the
persons referred to in the Report. The action alleged that Mr. Singh had signed
a promissory note in the amount of $2,000 in favour of the Applicant and had
refused to pay the amount owed.
[8]
In the course of this Ontario small claims court action, an expert handwriting
report was submitted. This expert report dated March 12, 2007 was prepared at
the request of the Applicant and it concluded with an opinion that Mr. Paul
Singh had signed the promissory note.
[9]
On March 21, 2007 a
representative of the Applicant sent a letter to the Canadian Human Rights
Commission enclosing a copy of the expert handwriting report dated March 12,
2007, and on this basis, made the following petition:
This proves that
Mr. Singh was untruthful with the commission’s investigator and the commission.
In light of this
new evidence and on behalf of Mr. Merham I hereby petition the commission to
reopen this matter for the purpose of considering the new evidence.
[10]
This matter of the $2,000
loan was deemed related to the Report since one of the issues set out in the
Complaint was the following, as described in paragraph 9 of the Report:
The complainant
also alleges that Mr. Singh harassed him by telling him that if he wanted to
become a CB22 (Compensation Band 22 pay level) and stay with the Bank, he
should pay him $20,000.00 ($20K). The complainant alleges that due to fear of
retaliation and Mr. Singh’s continued harassment (not specified), he agreed to
loan Mr. Singh $2000.00 ($2K) temporarily. The complainant states that after
repeated requests to Mr. Singh, both personally and through other senior
managers, Mr. Singh has not repaid the loan.
[11]
The Investigator had
dealt with this claim as follows in her Report [Emphasis added]:
11. Mr Singh
denies ever asking for $20K and denies ever taking a loan from Mr. Merham. […]
[…]
16. With the
complainant’s rebuttal, his legal counsel enclosed a copy of what was described
as a “true copy” of an agreement signed by Mr. Paul Singh, stating:
Agreement for paying money back
I am Singh, P.S. (Paul) will pay $2000 (only two thousand dollars)
to Merham Ayman when he needed. As of 2000, July 25 [sic]”
The investigator
showed Mr. Singh a copy of this “agreement” when he was interviewed. He was
shocked to see the document; he had never seen it before. He stated it is
his signature and printing, but acknowledged this could easily been
transferred on to the document and photocopied. Mr. Singh states it is
definitely not his grammar and he would not, 1) write a contract in this
fashion (i.e., poor grammar), and 2) would never sign anything on paper that
stated he took money from an employee.
17. The
investigator requested to have the “original copy” of the agreement signed by
Mr. Singh to be sent to the Commission on 15 December 2003, however, the
complainant’s legal counsel did not respond. The document in question is not
certified as a “true copy” by a Notary Public or lawyer. It is simply typed
text at the top of an 8x14” legal paper with a signature below the typed text.
Because it is a photocopy, it is not known if the signature was imposed on the
page by simply copying it from another signature or if Mr. Singh did indeed
sign the agreement. Taken his objection to the validity of the document, and
the vernacular it is written in, it appears suspicious.
[…]
19. The evidence
does not support that Mr. Singh asked Mr. Merham for $20K or $2K. The witness,
Mr. Piscuineri, states that Mr. Singh and Mr. Merham discussed money at work
regularly, but he never witnessed any exchange of money between the two and he
thought the discussion of $20K was a joke. Furthermore, as Team Leader, Mr.
Singh’s position does not give him the authority to change staffing levels (to
a CB 22 position), so he could not change any staff members position even if he
wanted to.
20. The new
allegation of the signed “Agreement” from Mr. Paul Singh to Mr. Merham stating
Mr. Singh owed him $2K, seems suspicious. This was neither part of the original
complaint nor part of the background information provided by the complainant
when he initially filed his complaint. It was received with his rebuttal where
a number of new versions of allegations arise. In any case, the allegation
has nothing to do with Mr. Merham’s race, national or ethnic origin or
disability. [Emphasis added]
[12]
On August 9,2007, the then
Acting Director of the Investigations Branch of the Commission responded to the
March 21, 2007 petition for reconsideration as follows:
We wish to
inform you that Commission decisions are final. However, we have reviewed the
material submitted and are of the view that the circumstances of this file do
not warrant reconsideration by the Commission. Consequently we are unable to
comply with your request and consider this matter to be closed.
[13]
Concurrently, following
the submission to the Commission of the March 12, 2007 expert handwriting
report, the attorneys for Mr. Singh also requested a third party expert
handwriting report. That expert report also concluded on April 2, 2007 with an opinion
that there was strong support for the view that Mr. Singh had signed the note.
[14]
The record shows that
the Ontario small claims action was finally settled on
July 6, 2007 on terms favourable to the Applicant.
[15]
Following this
settlement, on November 6, 2007, the attorney representing the Applicant wrote
to the Commission again seeking a reconsideration of the Commission’s prior
decision of December 3, 2004. In this second request for reconsideration, the
Applicant’s attorney attached the expert handwriting report dated March 12,
2007 which hade been previously sent to the Commission with the first request
for reconsideration. He also added new information, including the second expert
handwriting report dated April 2, 2007 as well as various documentation related
to the settlement of the Ontario small claims action. In light of this new
information, the Applicant’s attorney concluded as follows:
It has now been
objectively determined by expert reports, and conceded by Mr. Singh by his
payment of the amount of the loan and damages to Mr. Merham, that he willfully [sic]
misled the Commission’s investigator on the very issues upon which he was
questioned. Therefore his statement must be entirely disregarded. It is
submitted then that the Commission must reconsider Mr. Merham’s complaint with
respect to the three allegations in which Mr. Singh figured prominently,
pursuant to its authority to do so, in order that there be a proper and fair
proceeding and assessment of Mr. Merham’s complaints.
[16]
In a letter dated
February 7, 2007, from the Director of the Investigations Branch of the
Commission, this second request for reconsideration was refused on the
following grounds:
In his Complaint
Form, Mr. Merham alleges that the Royal Bank of Canada discriminated against him in various ways “on the grounds of race
(dark skinned Egyptian), national and-or ethnic origin (Egyptian) and
disability (back injury). Considering all the evidence, the Investigator and
the Commission did not see a link between the alleged discrimination and the
claimed grounds. We have reviewed the material that you have submitted and the
new information would not modify the recommendation as it does not demonstrate
a link to a prohibited ground under the Canadian Human Rights Act. For
this reason, the complaint does not warrant reconsideration by the Commission
and the Commission’s decision of December 3, 2004 will stand.
[17]
It is from this Refusal
that the Applicant now seeks relief by way of judicial review.
Position of the parties
[18]
The Applicant argues
that the Commission has the authority to reconsider prior decisions. In
exercising this authority, the Commission acted improperly by refusing to
reconsider its prior decision since the new evidence submitted to it impugned
the credibility of an important witness in the investigation which necessarily
casts into doubt the legitimacy of the decision which was based on that false
evidence.
[19]
The Applicant further
argues that the Commission has a duty to provide adequate or sufficient reasons
justifying its decision to refuse to reconsider a prior decision. This duty
flows from procedural fairness and natural justice principles. The Applicant
argues that in this case the reasons for refusing to reconsider are set out in
one paragraph and do not consequently constitute adequate or sufficient
reasons.
[20]
The Respondent submits
five principal arguments for this Court to reject this Application, which I
summarize as follows:
a.
The Commission’s refusal was simply a courtesy
letter and is consequently not properly the subject of judicial review;
b.
The Application for judicial review is out of
time since the timelines for seeking judicial review should be calculated from
the date of the refusal of the first petition for reconsideration. The second
request for reconsideration submitted to the Commission was simply an attempt
to restart the timelines and such tactics are inappropriate;
c.
The Commission was functus officio and
did not possess the jurisdiction to reconsider prior decisions;
d.
Alternatively, the Commission’s refusal to
reconsider must be reviewed on a standard of reasonableness simpliciter.
In this case that decision was correct and certainly reasonable in the
circumstances of this case. Moreover adequate reasons for the refusal were
provided by the Commission; and
e.
The Application is part of a course of vexatious
litigation by the Applicant against the Respondent and an abuse of process.
Consequently this Court should refuse to exercise its discretion to consider
the Application. As well, an order for costs should be made against the
Applicant on a solicitor-client basis.
The issues
[21]
Though stated
differently by the parties, the issues at stake here are the following:
a.
Can the Canadian Human
Rights Commission reconsider a prior decision?
b.
Is the Application
timely?
c.
If so, what is the
standard of judicial review applicable in such a case?
d.
Were sufficient reasons
provided for refusing to reconsider a prior decision of the Commission?
e.
Was the refusal to
reconsider the prior decision reasonable?
The authority of the Canadian Human Rights
Commission to reconsider a prior decision
[22]
In Kleysen Transport
Ltd. v. Hunter, 2004 FC 1413, [2004] F.C.J. No.1723 (QL) [Kleysen], Mr.
Justice O’Reilly found that the Commission “has the power to reconsider its
decisions” (at para. 4) even though no specific statutory provision provides
for such reconsideration. Justice O’Reilly found that under the Canadian
Human Rights Act, the Commission clearly possessed a very broad discretion
to screen and process complaints which supported the conclusion that it could
reconsider its decisions, Kleysen, ibid at para. 8.
[23]
This conclusion was
based, inter alia, on the decision of the British Columbia Court of
Appeal in Zutter v. British Columbia (Council of Human Rights), (1995)
122 D.L.R. (4th) 665, [1995] B.C.J. No. 626 (QL), leave to appeal to
the S.C.C. dismissed on Dec. 21, 1995, [1995] S.C.C.A. No. 243 (QL) where a
similar question was raised in regard to the power of the British Columbia
Council on Human Rights to reconsider its own decisions where no statutory
authority to do so existed. Noting the remedial nature of human rights
legislation, the British Columbia Court of Appeal stated the following (at para.
31-32):
I
do not accept the argument of the appellants that the equitable jurisdiction described
by Martland J. in Grillas [Grillas v. Minister of Manpower and Immigration,
[1972] S.C.R. 577]
must be viewed as subservient to the doctrine of functus officio, in the
case of all administrative tribunals except those where such jurisdiction is
expressly stated to exist, in order to give effect to the "sound
policy" of finality in the proceedings of such tribunals. That policy will
necessarily govern the manner in which the jurisdiction to reconsider is
exercised by the Council, thus ensuring its restrictive application, just as
the power of this Court to admit fresh evidence is carefully and restrictively
exercised in deference to the same policy.
The
equitable jurisdiction to reconsider was recognized to exist in, and found to
have been properly exercised by, the administrative tribunals under
consideration in Re Lornex Mining Corporation Ltd., [1976] 5 W.W.R. 554
(B.C.S.C.), in Re Ombudsman of Ontario and the Minister of Housing (1979), 103 D.L.R. (3d) 117
(Ont.H.C.), aff'd, (1980), 117 D.L.R. (3d) 613
(Ont.C.A.), and more recently in Attorney General of Canada v. Grover and
Canadian Human Rights Commission (4 July, 1994), T-1945-93 (F.C.T.D.). In each
case, the jurisdiction was exercised notwithstanding the absence of any express
acknowledgement of its existence in the tribunal's enabling statute. The judge
below applied the first two of these authorities when reaching his conclusion
that the Council had jurisdiction to reconsider its decision to discontinue Zutter's
complaints in the circumstances of this case, and I am of the view that he was
right to do so.
[24]
Moreover, Mr. Justice
Sopinka stated the following in Chandler et al. v. Alberta Association of
Architects et al., [1989] 2 S.C.R. 848 at p. 862:
To this extent, the principle of functus officio applies [to
decisions of administrative tribunals]. It is based, however, on the
policy ground which favours finality of proceedings rather than the rule which
was developed with respect to formal judgments of a court whose decision was
subject to a full appeal. For this reason I am of the opinion that its
application must be more flexible and less formalistic in respect to the
decisions of administrative tribunals which are subject to appeal only on a point
of law. Justice may require the reopening of administrative proceedings
in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are
indications in the enabling statute that a decision can be reopened in order to
enable the tribunal to discharge the function committed to it by enabling
legislation. This was the situation in Grillas, supra.
Furthermore, if the tribunal has failed to dispose of an issue which is
fairly raised by the proceedings and of which the tribunal is empowered by its
enabling statute to dispose, it ought to be allowed to complete its statutory
task. If, however, the administrative entity is empowered to dispose of a
matter by one or more specified remedies or by alternative remedies, the fact
that one is selected does not entitle it to reopen proceedings to make another
or further selection. Nor will reserving the right to do so preserve the
continuing jurisdiction of the tribunal unless a power to make provisional or
interim orders has been conferred on it by statute.
[25]
Consequently, the above
case law leads me to conclude that the Commission has the power to reconsider
its decisions, but this is a discretionary power which must be used sparingly in
exceptional and rare circumstances.
Is the Application timely?
[26]
The Respondent argues
that the first petition for reconsideration, which was submitted to the
Commission on March 21, 2007 and which was refused on August 9, 2007, is in
substance almost identical to the Applicant’s November 6, 2007 second request
for reconsideration. Consequently, the Respondent argues that the 30 day time
limit to make an application to this Court pursuant to subsection 18.1(2) of
the Federal Courts Act commenced to run on August 9, 2007, the date of
the first refusal to reconsider.
[27]
I have some
difficulties with the Respondent’s arguments in this regard.
[28]
The first petition for
reconsideration dated March 21, 2007 was based on one of the expert handwriting
reports, while the second request for reconsideration dated November 6, 2007
provided new factual elements for consideration by the Commission, including a
copy of the second expert handwriting report and the settlement of the Ontario
small claims action. Consequently the first and second requests for
reconsideration were not identical and raised different factual considerations.
[29]
Moreover, the
jurisprudence of this Court has determined that in the event of a decision to
reconsider a prior decision, the decision to reconsider is itself subject to
judicial review even if it was preceded by prior reconsideration
determinations. The determining factor to consider is if the concerned
administrative body or tribunal has made a decision to reconsider or not to
reconsider, as opposed to simply reiterating a prior decision through a
“courtesy” letter: Corbett v. Canada (Attorney General), 2007 FCA 292,
[2007] F.C.J. No. 1220 (QL); Besner v. Canada (Public Service Commission),
[2000] F.C.J. No. 1684 (QL) at para. 20: “I
am of the opinion that Ms. McCusker's letter of October 8, 1999, constitutes
the decision, even though it was the second letter precising that the
Commission had no intention to re-open the case.” at para. 20; Dumbrava v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1238 (QL), at para. 15:
[…] Whenever a decision-maker who
is empowered to do so agrees to reconsider a decision on the basis of new
facts, a fresh decision will result whether or not the original decision is
changed, varied or maintained. What is relevant is that there be a fresh
exercise of discretion, and such will always be the case when a decision-maker
agrees to reconsider his or her decision by reference to facts and submissions
which were not on the record when the original decision was reached.
[30]
In this case, in her
letter of February 7, 2008 refusing the second request for reconsideration, the
Director of the Investigations Branch of the Commission clearly indicates that
the material submitted by the Applicant in support of his request for
reconsideration was reviewed. Moreover, following this review of the material,
a decision is clearly made not to proceed with a reconsideration of the
December 3, 2004 decision of the Commission.
[31]
In these circumstances,
the February 7, 2008 refusal constitutes a decision subject to judicial review
pursuant to section 18.1 of the Federal Courts Act. Consequently, the
Application submitted in this case is timely and can proceed.
The standard of review
[32]
The decision by the
Commission to reconsider a prior decision is discretionary. In judicial review
proceedings concerning discretionary decisions of administrative bodies, the
standard to apply is usually one of reasonableness: “[w]here the question is one of fact, discretion
or policy, deference will usually apply automatically (Mossop, at pp.
599-600; Dr. Q at para. 29; Suresh at paras. 29-30).” Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, at para. 53. [Emphasis added].
[33]
In determining the applicable
standard of review, I must take into account various factors: Canada
(Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, at para. 54. In this case, though the Commission is
not protected by a privative clause, the very nature of a reconsideration of a
prior decision is such as to confer a large degree of deference on the
Commission in such a matter. It is the Commission which is in the best position
to determine whether or not in exceptional and rare circumstances it should
proceed to a reconsideration of one of its decisions, and this militates in
favour of deference. The Commission has the required expertise to decide in
which exceptional circumstances reconsideration is warranted, and it is in a
much better position than the Court in deciding such an issue.
[34]
Consequently I will apply a standard
of reasonableness in reviewing the decision of the Commission to refuse to
reconsider its prior decision in this case.
[35]
Though the reconsideration of a
prior decision is a discretionary exercise of power by the Commission which
should be reviewed on a standard of reasonableness, the decision to proceed or
not with such a review must nevertheless be carried out fairly and in
accordance with the principles of natural justice. As a general rule,
principles of natural justice and procedural fairness issues are to be reviewed
on the basis of a correctness standard of review: Khosa supra, at para.
43. As noted by the Federal Court of Appeal in Skechtley v. Canada (Attorney
General), 2005 FCA 404, [2005] F.C.J. No.2056 (QL) at para. 53:
CUPE [Canadian Union of Public
Employees v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539, 2003
SCC 29] directs a court, when reviewing a decision challenged on the
grounds of procedural fairness, to isolate any act or omission relevant to
procedural fairness (at para. 100). This procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.
[36]
Here the Applicant has
raised an issue of procedural fairness based on the allegation that the reasons
of the Commission rejecting his request for reconsideration are non-existent or
insufficient. I will consequently review this matter on a standard of
correctness.
The sufficiency of the reasons provided in
regard to the duty of fairness
[37]
The Applicant argues
that the reasons provided are insufficient to meet the applicable standards of
procedural fairness and natural justice.
[38]
The Supreme Court of
Canada has stated in a number of decisions that the obligations imposed by the
duty of fairness vary with the circumstances: Knight v. Indian School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 21.
[39]
In regard to the
provision of reasons, the leading case remains the decision of the Supreme
Court of Canada in Baker, ibid. It is useful for our purposes to quote
from para. 39 and 40 of this decision:
Reasons, it has been argued, foster better decision making by ensuring
that issues and reasoning are well articulated and, therefore, more carefully
thought out. The process of writing reasons for decision by itself may be
a guarantee of a better decision. Reasons also allow parties to see that
the applicable issues have been carefully considered, and are invaluable if a
decision is to be appealed, questioned, or considered on judicial review […]
Those affected may be more likely to feel they were treated fairly and
appropriately if reasons are given […]. I agree that these are significant
benefits of written reasons.
Others have expressed concerns about the desirability of a written
reasons requirement at common law. In Osmond, supra, Gibbs
C.J. articulated, at p. 668, the concern that a reasons requirement may
lead to an inappropriate burden being imposed on administrative
decision-makers, that it may lead to increased cost and delay, and that it
“might in some cases induce a lack of candour on the part of the administrative
officers concerned”. Macdonald and Lametti, supra, though they
agree that fairness should require the provision of reasons in certain
circumstances, caution against a requirement of “archival” reasons associated
with court judgments, and note that the special nature of agency
decision-making in different contexts should be considered in evaluating
reasons requirements. In my view, however, these concerns can be
accommodated by ensuring that any reasons requirement under the duty of
fairness leaves sufficient flexibility to decision-makers by accepting various
types of written explanations for the decision as sufficient. [Emphasis
added]
[40]
I find that reasons
were provided to the Applicant for the refusal to reconsider the prior decision
of the Commission and that, in the circumstances of this case, these reasons
were sufficiently set out in the February 7, 2008 letter to meet the standards
of procedural fairness and natural justice.
[41]
The Director of the
Investigations Branch of the Commission notes that new information was provided
on behalf of the Applicant and that this new information, and the material
submitted in relation thereto, was reviewed. The reasons provided to explain
why this new information and this material were insufficient to warrant a
reconsideration of the Commission’s prior decision are succinctly, but
nevertheless cogently, expressed as follows:
Considering all
the evidence, the Investigator and the Commission did not see a link between
the alleged discrimination and the claimed grounds. We have reviewed the
material that you have submitted and the new information would not modify the
recommendation as it does not demonstrate a link to a prohibited ground under
the Canadian Human Rights Act.
[42]
These reasons are of
course to be read in the context of the Investigator’s seventeen page Report,
and when read together with this Report, they provide a complete and clear
answer for refusing to reconsider the prior decision. Indeed, as further
discussed below, the Investigator concluded in her Report that there was no
link between the facts alleged in the Applicant’s Complaint to the Commission
and any prohibited grounds of discrimination under the Act. This conclusion was
made irrespective of whether or not the allegations of facts were true. Thus
the new information and material submitted by the Applicant “would not modify
the recommendation as it does not demonstrate a link to a prohibited ground”
under the Act.
[43]
The Applicant is not
satisfied with these reasons. However reasons were provided and are certainly
sufficiently clear and cogent to understand. The fact the reasons given are
brief does not mean they are unintelligible or deficient: MacLean v. Marine
Atlantic Inc., 2003 FC 1459, [2003] F.C.J. No. 1854 (QL) at para. 47.
[44]
In Lake v.
Canada (Minister of Justice), [2008] 1 S.C.R. 761, which concerned an
extradition matter, the Supreme Court of Canada addressed the issue of the
adequacy of reasons and outlined the basic duty in the provision of reasons.
Paragraph 46 of this Lake decision reads:
As for the adequacy of the Minister’s reasons, while
I agree that the Minister has a duty to provide reasons for his decision, those
reasons need not be comprehensive. The purpose of providing reasons is
twofold: to allow the individual to understand why the decision was made; and
to allow the reviewing court to assess the validity of the decision. The
Minister’s reasons must make it clear that he considered the individual’s
submissions against extradition and must provide some basis for understanding
why those submissions were rejected. Though the Minister’s Cotroni analysis was
brief in the instant case, it was in my view sufficient. The Minister is not
required to provide a detailed analysis for every factor. An explanation based
on what the Minister considers the most persuasive factors will be sufficient
for a reviewing court to determine whether his conclusion was reasonable.
[45]
The reasons
provided in this case by the Director of the Investigations Branch of the
Commission meet the criteria laid down by the Supreme Court of Canada in Lake, ibid.
Is the refusal reasonable?
[46]
In order for a
complaint to succeed under the Canadian Human Rights Act, there must be
a link between the facts alleged and a prohibited ground of discrimination
under the Act. This flows from subsection 3(1), sections 4 and 7, paragraph
14(1)(c), section 39, and subsections 40(1) and 44(3) of the Act reproduced in
the schedule to these reasons for judgment.
[47]
In her Report, the
Investigator reviewed the five principal allegations made by the Applicant in
his Complaint, of which particularly the allegation related to Mr. Singh
requesting or receiving money from the Applicant in order to secure his
advancement or continued employment with the Respondent. She concluded on this
matter as follows at paragraph 20 of her report the “[i]n any case, the
allegation has nothing to do with Mr. Merham’s race, national or ethnic origin
or disability”.
[48]
In regard to another
allegation in the Complaint concerning the assessment performance of the
Applicant and whether or not he had signed it, the Investigator concluded at
paragraph 48 of her Report that “[s]ignature or no signature, it’s effect would
not have anything to do with discrimination or harassment based on race, disability
or national-ethnic origin”.
[49]
The other allegations
in the Complaint did not involve Mr. Singh or involved him only as a minor
player in the alleged events.
[50]
The new information
brought forward by the Applicant to justify a reconsideration of the
Commission’s prior decision all relate to the lack of credibility of Mr. Singh
in regard to his denial of having signed a promissory note for $2,000. The
letter of refusal dated February 7, 2008 states that this new information does
not demonstrate a link to a prohibited ground of discrimination under the Act.
Indeed it is difficult to understand what link exists between the facts alleged
by the Applicant and any prohibited ground of discrimination under the Act. In
these circumstances, the refusal to reconsider the prior decision of the
Commission is reasonable since it “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.” (Dunsmuir, supra, at para. 47).
[51]
Consequently this Application for
judicial review is dismissed.
Costs
[52]
The Respondent has
sought costs on a solicitor-client basis. Costs on a solicitor-client basis are
awarded only in very rare circumstances, such as when a party has displayed
reprehensible, scandalous or outrageous conduct: Mackin v. New-Brunswick
(Minister of Justice), [2002] 1 S.C.R. 405, at para. 86; Louis Vuitton
Malletier S.A. v. Yang, 2007 FC 1179, at para. 59.
[53]
I find no such
circumstances here. The Applicant submitted and pursued vigorously a complaint
before the Commission and subsequently sought judicial review of the dismissal
of his complaint. He subsequently sued and settled on favourable terms a claim
regarding one of the persons involved in his complaint. Based on this new fact,
he sought reconsideration by the Commission of its prior decision and is now
seeking a review of the refusal to reconsider. I do not consider the
Applicant’s conduct in proceeding with this Application as reprehensible,
scandalous or outrageous or otherwise justifying an order of costs.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the Application for judicial review is dismissed.
"Robert M. Mainville"
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