Date: 20071123
Docket: T-535-06
Citation: 2007 FC 1227
BETWEEN:
JOHN
HENRY POWELL III
Applicant
and
TD
CANADA TRUST
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1] These reasons
follow the hearing on the 29th of October, 2007, of an application for
judicial review of a decision of the Canadian Human Rights Commission (the
“Commission”) wherein the Commission dismissed the Applicant’s complaint
against TD Canada Trust (the “Respondent”). As is the norm with decisions such
as this that come before this Court, the decision here is very brief. Its
substance reads as follows:
Before rendering their
decision, the members of 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:
• The
investigation has not found evidence to support the allegation of adverse
differential treatment based on race and colour.
The decision under review is dated the 21st
of February, 2006.
BACKGROUND
[2] The Applicant
is an African American male residing in Canada. He is a
young Black man, 6 ft. 7 inches tall, who, during one of the occasions giving
rise to his complaint was wearing a hat and sunglasses. He was regularly
employed. The bank account or accounts that he maintained with the Respondent
was or were in a Scarborough branch.
[3] On the 4th
of November, 2003, the Applicant sought to make a deposit to his account with
the Respondent at a Whitby branch of the Respondent. He was unknown at
that branch and, more particularly, he was unknown to the bank representative
who served him. Pursuant to the Respondent’s Know Your Customer policy (the
“KYC” policy), the bank representative questioned him or, from the Applicant’s
point of view, “interrogated” him as to his identity. A second bank representative
was consulted when the exchange between the Applicant and the first
representative became somewhat heated. The Applicant’s deposit was eventually
accepted.
[4] On the 1st
of December, 2003, the same scenario was repeated at a branch of the Respondent
in Hamilton, Ontario. Once
again, the Applicant’s deposit was eventually accepted. The Applicant was of
the view that, in both cases, he was subjected to excessive questioning and
treatment which he believed was linked to his race, age, gender, colour and
related grounds.
THE COMPLAINT
[5] Following the
incidents described above, the Applicant filed a complaint with the Commission
in February of 2004. The alleged grounds of discrimination cited in his
complaint were race and colour. At a later date, on his behalf, counsel
requested that the complaint be amended to include grounds of gender, age and
country of origin. At that time the Applicant had been in Canada for many
years. His country of origin was not identified in a careful review of the
material before the Court.
THE PROCESS FOLLOWING
THE FILING OF THE APPLICANT’S COMPLAINT
[6] On the 15th
of June, 2004, an attempt was made to mediate the Applicant’s complaint. It
was unsuccessful. In the result, the complaint was referred to the
investigation branch of the Commission. An investigation followed. The
Applicant and his counsel, as well as certain individuals identified by the
Applicant as witnesses in support of his complaint were interviewed. Representatives
of the Respondent, including those who dealt directly with the Applicant during
the incidents at issue were also interviewed. The Respondent’s response to the
complaint was shared with the Applicant and his counsel. The Applicant found
the Investigator by whom he was interviewed to be substantially less than
sensitive to his situation. He alleged that the Investigator engaged in
inappropriate questioning, demonstrated manner and demeanour that left the
Applicant embarrassed and humiliated, and injected into the interview personal
experiences and areas of questioning that led the Applicant to believe that the
Investigator was not only less than sensitive to the entire situation, but was
also biased against the Applicant.
[7] The Applicant
complained to the Commission about his concerns with regard to the assigned Investigator.
An investigation was conducted by the Commission into the conduct of the
investigation. The investigation was not recommenced. Rather, conduct of the
investigation was re-assigned and the investigation was carried forward. The
Commission found no bias was demonstrated and it was determined that the
Applicant did not dispute the accuracy and comprehensiveness of the original Investigator’s
interview notes. The Applicant was not re-interviewed.
[8] A summary of
the Respondent’s response to the complaint was shared with the Applicant and
his counsel. The Applicant was provided an opportunity to reply. He availed
himself of the opportunity.
[9] An
Investigator’s Report issued and was shared with the Applicant. Once again,
the Applicant was given an opportunity to reply and availed himself of that
opportunity. The Investigator’s Report was authored by the employee of the
Commission who had been assigned to investigate the Applicant’s complaint
against the original Investigator and staff of the Commission with whom he had
worked.
THE INVESTIGATOR’S
REPORT
[10] The Investigator’s
Report (the “Report”) is dated the 1st of December, 2005. It is
reasonably extensive extending in substance to some nine (9) pages. Under the
heading “Summary of Complaint and Respondent’s Defence”, the Report states:
1. The Complainant
[here the Applicant] alleges that he was treated in an adverse differential
manner in the provision of banking services because of his race and colour
(Black).
It is worthy of note that “race and colour”
were the Applicant’s original grounds of complaint. His request that the
grounds be extended to include “gender, age and country of origin” appears to
have been ignored.
[11] Under the same heading,
the Report provides:
3. The respondent
denies that it discriminated against the complainant. It contends that, during
the two incidents outlined in the Complaint Form, Bank staff were only
following important Bank policies. The respondent states that it would have
applied these policies to any customer, regardless of race or colour.
[12] The Report then goes on
to describe at some length the background to the complaint, the allegations of
discrimination and the Respondent’s response to those allegations, the
Respondent’s KYC policy, and provides some summaries of interviews conducted
with the Respondent’s employees. The Applicant’s rebuttal to the Respondent’s
response is also summarized. In the course of the background description,
mention is made of the Applicant’s allegation that he had been “racially
profiled”, in each case with the expression in italics, and in each case in a
description of the Applicant’s rebuttal to positions taken by the Respondent.
The concept of racial profiling is nowhere else mentioned in the Investigator’s
Report. In particular, in the Report, the Applicant’s allegation of racial
profiling is nowhere mentioned in the analysis and conclusion. Rather, under
the heading “Analysis”, the following appears: “The issue in this case is
whether the Complainant was subjected to differential treatment regarding
banking services because he is Black”.
[13] The Investigator’s Report
concludes with the following “Overall Analysis” and “Recommendation”:
Based on the evidence,
it appears the following is what happened during both incidents. The
complainant sought to make large deposits at branches where he was unknown.
Following the KYC policy, service representatives sought to verify the
complainant’s identity. This was complicated by the fact he spells his name in
different ways, that he has multiple bank accounts, that he appeared to have
multiple addresses, and there was confusion about the identity of his
employer. In both incidents, bank employees also perceived the complainant’s
behaviour to be intimidating and uncooperative.
The investigation has
not found evidence to support that the actions of the Respondent and its employees
were motivated by the complainant’s race and colour. There are no relevant
known White comparators to test whether a White person, in the identical
circumstances to those of the complainant, was treated better or differently
than the complainant. Based on the totality of the evidence, a White person in
identical circumstances, probably would be treated the same under the
respondent’s KYC policy to establish that person’s identity to the satisfaction
of branch staff.
…
It is recommended,
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the
Commission dismiss the complaint because:
- the investigation has
not found evidence to support the allegation of adverse differential treatment
based on race and colour.
THE LEGISLATIVE SCHEME
[14] Subsection 3(1) of the Canadian
Human Rights Act (the “Act”) provides that
race, national or ethic origin, colour, age and sex are among the prohibited
grounds of discrimination for all purposes of the Act.
[15] Section 5 of the Act
provides that it is a discriminatory practice in the provision of, among other
things, services customarily available to the general public, to deny, or to
deny access to, any such service on a prohibited ground of discrimination.
[16] Section 26 provides for
the establishment of the Canadian Human Rights Commission. Part III provides
for the filing of complaints regarding discriminatory practices and the
investigation of those complaints. It also provides for reports following investigations
such as the Report summarized above.
[17] Subsection 44(3)
provides for the disposition of Reports by the Commission that are filed with
it. That subsection reads as follows:
|
44.(3) On receipt of a
report referred to in subsection (1), the Commission
|
44.(3) Sur
réception du rapport d’enquête prévu au paragraphe (1), la Commission :
|
|
(a) may request the
Chairperson of the Tribunal to institute an inquiry under section 49 into the
complaint to which the report relates if the Commission is satisfied
|
a) peut
demander au président du Tribunal de désigner, en application de l’article
49, un membre pour instruire la plainte visée par le rapport, si elle est
convaincue :
|
|
(i) that, having regard
to all the circumstances of the complaint, an inquiry into the complaint is
warranted, and
|
(i) d’une part, que, compte
tenu des circonstances relatives à la plainte, l’examen de celle-ci est
justifié,
|
|
(ii) that the complaint
to which the report relates should not be referred pursuant to subsection (2)
or dismissed on any ground mentioned in paragraphs 41(c)
to (e); or
|
(ii) d’autre part, qu’il
n’y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de
la rejeter aux termes des alinéas 41c) à e);
|
|
b) shall dismiss the
complaint to which the report relates if it is satisfied
|
b) rejette
la plainte, si elle est convaincue :
|
|
(i) that, having regard
to all the circumstances of the complaint, an inquiry into the complaint is
not warranted, or
|
(i) soit que, compte tenu
des circonstances relatives à la plainte, l’examen de celle-ci n’est pas
justifié,
|
|
(ii) that the complaint
should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
|
(ii) soit que la plainte
doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
|
It would appear to be subparagraph 44(3)(b)(i)
on which the Commission relied in reaching the decision here under review.
THE ISSUES
[18] Counsel for the
Applicant, in the Applicant’s Memorandum of Fact and Law, described three (3)
issues before the Court, as follows: first, did the Commission breach the duty
of fairness owed by it to the Applicant in responding to his complaint?
Counsel questions the thoroughness of the investigation conducted and of the
Report prepared following the investigation, whether or not the Applicant was
provided an adequate opportunity to meet the case put forward by the Respondent
in response to the complaint and whether the manner of conduct of the
investigation and the response to the Applicant’s expressed concerns regarding
the investigation should give rise to a reasonable apprehension of bias on the
part of the Commission; secondly, whether the Commission erred in applying the
incorrect test for “discrimination”, either generally, or in the “racial
profiling context”; and thirdly, whether the Commission erred in law in making
findings arising out of the investigation that were simply not reasonably
supported by the evidence or which ignored and misapprehended relevant
evidence, or in failing to take into account the totality of the evidence.
[19] Counsel for the
Respondent more concisely identified the same issues and added the issue of
standard of review.
ANALYSIS
a) Standard of Review
[20] On the issue of standard
of review, I can do no better than to quote the reasons of my colleague Justice
Mosley in Besner v. Attorney General of Canada (Correctional Service of Canada)
where
he wrote at paragraphs 23 to 25:
The Federal Court of Appeal applied a pragmatic and functional analysis to
determine the appropriate standards of review of a decision of the Canadian
Human Rights Commission to dismiss an analogous complaint in Sketchley v. Canada (A.G.)…. The Court
noted at paragraph 111, that this analytical approach does not apply to the
question of whether an investigation has been sufficiently thorough. That issue
is one of procedural fairness, for which no curial deference is due. The
failure to accord procedural fairness has long been seen to be a grave failure
on the part of any tribunal, such that the courts should provide the legal
answer to any such question: … .
The issue of
whether an employer must make specific and reasonable medical inquiries about
an employee’s alleged limitations is a question of law, which attracts a
standard of correctness:… .
Absent a breach
of procedural fairness or an error of law, a reviewing court should only
intervene where it is shown that the decision of the Commission is
unreasonable:… . Flaws in an investigator’s Report will not vitiate a
Commission’s decision, so long as such flaws are not so fundamental that they
cannot be remedied by the responding submissions of the parties. For the
purposes of judicial review, when a Commission has not elaborated upon its
reasons, as here, the Investigator’s report may be considered to be the
Commission’s reasons for decision:… .
[citations omitted]
[21] The complaint here
before the Court is not “analogous” to that which was before the Court of
Appeal in Sketchley. That being said, I am satisfied
that my colleague’s brief comments on standard of review apply here. The first
issue raised by the Applicant is one of procedural fairness,
for which no curial deference is due. The
second issue here before the Court, that of applying the incorrect test for
discrimination, is, as with the issue to which the second quoted paragraph
above is directed, a question of law and attracts a standard of correctness.
The third issue raised on behalf of the Applicant is neither an issue of breach
of procedural fairness or error of law. The third quoted paragraph above
applies. On that issue, this Court should only intervene where it is shown
that the decision of the Commission is unreasonable. Equally, on the facts
before me, the Investigator’s Report should be considered to be the
Commission’s reasons for decision.
b) Duty of
Fairness
i)
Thoroughness of the Investigation
[22] In Sanderson v. Canada (Attorney
General), my colleague
Justice Mactavish wrote at paragraphs 45 and 46 of her reasons:
…in fulfilling its statutory responsibility to investigate complaints of
discrimination, investigations carried out by the Commission must be both
neutral and thorough. Insofar as the requirement of thoroughness is concerned,
the Court in Slattery stated 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. It should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted. [emphasis added]
Cases decided after Slattery
have established that 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": …
[citations
omitted, the references to “Slattery” are to
Slattery
v. Canada (Human Rights
Commission), [1994] 2 FC 574]
[23] As previously noted at
paragraph [5] of these reasons, the Applicant filed his complaint with the Commission
in February, of 2004. The alleged grounds of discrimination cited in his
complaint were race and colour. In a letter dated the 4th of May,
2004, counsel for the Applicant advised the Commission that “…in addition to
discrimination on the grounds of race, we would like to amend Mr. Powell’s
complaint to add the following grounds: colour, gender, age and country of
origin.” The proposal to add “colour” was, of course, duplicative. Also as
previously noted, “country of origin” would appear not to be documented. The
extended grounds were sought to be added well in advance of an appointment of
an investigator by the Commission. I am satisfied that the ground of
“ethnicity”, later referred to, is included in the ground of “race”, as broadly
defined.
[24] Similarly, the Applicant
gave extensive notice to the Commission of his concern, almost to the point of
pre-occupation, that the discrimination he alleged involved racial profiling.
In replying to the Respondent’s defence to the allegation of discrimination, at
paragraphs 44 and 47 of the response, the Applicant wrote:
The Respondent’s actions
on November 4 and December 1, 2003 are indicative of racial profiling.
…
The Complainant submits
that he was racially profiled because of his colour, gender, race, ethnicity,
and age by both of the TD Canada Trust branches in the complaint. He believes
he was profiled as a criminal, a fraudster and physically violent because he is
African American.
[25] In paragraph 5 of his
affidavit filed in this matter, commenting on an interview by the Commission’s
investigator, the Applicant attests:
…I was concerned about
the way the investigator seemed not to understand racial profiling as a form of
racial discrimination.
On that ground among others, the Applicant
complained to the Commission about the course of the investigation and, more
particularly, about the conduct and attitude of the Investigator. Following an
investigation by the Commission, the Investigator in question was removed from
the file although the investigation was not recommenced.
[26] In responding to the
Commission’s “finding and recommendation” in the Investigator’s Report, the
Applicant, once again and extensively, raised the issue of racial profiling. Of particular
note, at paragraph 65, the Applicant wrote:
The investigation failed
to properly apply the law to the facts because the Investigator failed to be
conscious of the Court’s direction that it is often necessary to prove
allegations of racial profiling by inference. It is submitted the only
inference that can be drawn from the all [sic] of the surrounding circumstances
is that the Complainant was racially profiled as more likely to commit fraud on
the basis of his colour, gender, race, ethnicity and age.
[27] The Applicant also
expressed his concern that the Commission had failed to conduct a thorough
investigation.
In particular, the Applicant wrote at paragraph 30:
With regard to the
second requirement, the Complainant submits that the Investigator has not
conducted a thorough investigation. This is evidenced by the Investigator’s
failure to address a number of discrepancies that, given the surrounding
circumstances in the complaint, provide a reasonable basis to conclude that the
Complainant was racially profiled and discriminated against on the basis of his
colour, gender, race, ethnicity and age. …
[28] Despite all of the
foregoing, there is no evidence before the Court that, in the course of its
investigation, the Commission took into account, much less seriously examined,
the issue of racial profiling and took into account the expanded grounds of
discrimination put forward by the Applicant.
[29] Evidence of racial
profiling is illusive, particularly since intention to racially profile is not
required. In the result, a person engaging in racial profiling may not even be
aware that he or she is doing so.
[30] In R. v. Brown, Justice
Morden, wrote for the Court:
[7] There is no dispute
about what racial profiling means. In its factum, the appellant defines it
compendiously: “Racial profiling involves the targeting of individual members
of a particular racial group, on the basis of the supposed criminal propensity
of the entire group” and then quoted a longer definition offered by the African
Canadian Legal Clinic in an earlier case, R. v. Richards… as set forth
in the reasons of Rosenberg J.A….:
Racial profiling is
criminal profiling based on race. Racial or colour profiling refers to that
phenomenon whereby certain criminal activity is attributed to an identified
group in society on the basis of race or colour resulting in the targeting of
individual members of that group. In this context, race is illegitimately used
as a proxy for the criminality or general criminal propensity of an entire
racial group.
[8] The attitude
underlying racial profiling is one that may be consciously or unconsciously
held. That is, the police officer need not be an overt racist. His or her
conduct may be based on subconscious racial stereotyping.[citations omitted]
On the facts of this matter, of course, no
police officer is involved. That being said, I am satisfied that precisely the
same might be said in respect of the Respondent’s representatives who
confronted the Applicant in an effort to ensure that fraud was not perpetrated
against the Respondent.
[31] Justice Morden continued
at paragraph [44] of his reasons:
A racial profiling claim
could rarely be proven by direct evidence. This would involve an admission by
a police officer that he or she was influenced by racial stereotypes in the
exercise of his or her discretion to stop a motorist. Accordingly, if racial
profiling is to be proven it must be done by inference drawn from
circumstantial evidence.
[32] In Peart v. Peel
Regional Police Services Board,
Justice Doherty wrote at paragraphs 89 and 90 of his reasons:
In R. v. Richards…,
Rosenberg J.A., after quoting the second definition of racial profiling cited
above, wrote at paragraphs 90 and 91 of his reasons:
A police officer who
uses race (consciously or subconsciously) as an indicator of potential unlawful
conduct based not on any personalized suspicion, but on negative stereotyping
that attributes propensity for unlawful conduct to individuals because of race
is engaged in racial profiling…
Racial profiling is
wrong. It is wrong regardless of whether the police conduct that racial
profiling precipitates could be justified apart from resort to negative
stereotyping based on race….
[citation
omitted]
[33] Once again, I am
satisfied that the foregoing should not be restricted to the conduct of police
officers but should extend to the conduct of any person, such as the bank
representatives who here confronted the Applicant who are concerned with
prevention of unlawful conduct.
[34] I reiterate from
paragraph [28] of these reasons that there is no evidence before the Court
that, in the course of its investigation, the Commission took into account,
much less seriously examined, the issue of racial profiling. Further, while
the Applicant’s concern about racial profiling is superficially acknowledged on
the face of the Investigator’s Report, it is nowhere acknowledged in
the “Overall Analysis” comprised in that
Report, nor is it acknowledged in the “Recommendation” that concludes the
Report. Further, it is nowhere acknowledged in the additional material that
was before the Commission when it reached the decision under review except in
the Applicant’s Complaint Form and in the Applicant’s response to the
Investigator’s Report.
[35] On the basis of the
foregoing analysis, I am satisfied that the Commission’s investigation of the
Applicant’s complaint, and thus the Investigator’s Report that was put before
the Commission, was less than thorough. As such, the lack of thoroughness
tainted the Recommendation to the Commission and, in turn, tainted the Commission’s
decision that is under review. On this ground alone, by reason of a breach of
the duty of fairness owed by the Commission to the Applicant, the decision
under review must be set aside.
[36] The foregoing conclusion
is dispositive of this application for judicial review. Nonetheless, in the
interest of completeness, I will briefly turn to the remaining issues before
the Court on this matter.
ii) Adequate
opportunity to the Applicant to meet the case put forward by the Respondent in
response to the complaint
[37] Counsel for the
Applicant noted that the Respondent’s KYC policy on which the Respondent’s
representatives relied in closely examining the Applicant during the two (2)
incidents at issue was not made known to the Applicant in a manner that
provided the Applicant with a reasonable opportunity to respond. Neither the
Respondent’s defence to the complaint, to which the Applicant was given an
opportunity to respond, or the Investigator’s Report, to which the Applicant
was also given an opportunity to respond, contained the actual language of the
KYC policy. By the time the Applicant became aware of the precise terminology
of the policy, no opportunity to respond remained.
[38] Counsel for the
Respondent notes that the “relevant portions” of the policy were referenced in
the Respondent’s response, were addressed on behalf of the Applicant in his
response thereto and were considered in the Investigator’s interview with the
Applicant. Counsel notes that no request was ever made by the Applicant for
production of the actual policy statement.
[39] Counsel for the
Respondent relies on the following extract from Syndicat des Employés de
Production du Québec et de l’Acadie v. Canada (Canadian
Human Rights Commission) where the
Supreme Court of Canada adopted the following reasoning of Lord Denning, M.R.,
in defining the duty to act fairly:
The investigating body
is, however, the master of its own procedure…It need not put every detail of
the case against a man. Suffice it if the broad grounds are given. It need
not name its informants. It can give substance only.
[40] Against the foregoing, I
am satisfied that the Commission did not deny the Applicant fairness in this
regard.
iii) Bias,
neutrality or open-mindedness
[41] In Zundel v. Canada (Attorney
General), Justice
Evans, then of the predecessor to this Court, wrote at paragraph 21 of his
reasons:
…it has been held with
respect to both the provincial human rights commission…and the Canadian Human
Rights Commission…that the closed mind test of bias is applicable to
investigators and the Commission. As Noël J. (as he then was) said in Canadian
Broadcasting Corporation v. Canada (Human Rights
Commission)…when considering the test of bias applicable to the
Commission:
The test, therefore, is
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.
[42] As noted above, the
Applicant was deeply concerned about the open-mindedness of the Investigator
originally assigned to investigate his complaint. He complained to the Commission
through his counsel. An internal investigation was conducted within the
Commission. The original Investigator was removed from further investigation
of the Applicant’s complaint. A new Investigator was assigned, but that
Investigator was among those who had been involved in the internal
investigation. Although the original Investigator was removed from the matter,
the investigation was not recommenced. Rather, the new Investigator simply
picked up where the original Investigator had left off.
[43] That being said, the
Applicant, according to the record before the Court, never disputed the
accuracy and comprehensiveness of the original Investigator’s interview notes.
[44] While the process
followed by the Commission in investigating the Applicant’s complaint was
certainly less than satisfactory to the Applicant, and the conduct of the
original Investigator and his questioning might have been substantially less
than entirely sensitive, I am not satisfied that the evidence before the Court
establishes that the issue here before the Commission was predetermined. In
the circumstances, the Applicant would not succeed on this ground.
c) Error of
Law - Did the Commission apply the incorrect test for “discrimination”, either
generally, or in the “racial profiling context”?
[45] The Applicant submits
that the Investigator assigned to investigate his complaint, and thus the Commission,
utilized the test for discrimination applicable to claims under section 15 of
the Canadian Charter of Rights and Freedoms. In
so doing, the Applicant alleges, the Investigators and thus, the Commission,
looked for intent and motivation in their analysis of the conduct of the
Respondent’s representatives involved in the two (2) incidents at issue and
thus erred in a reviewable manner. In Smith v. Ontario (Human
Rights Commission), the Court
wrote at paragraph 11:
It has been held
consistently that intent or motive to discriminate is not a necessary element
of discrimination. In Ontario (Human Rights
Commission) and O’Malley v. Simpson-Sears Ltd., …the Court said:
The proof of intent, a
necessary requirement in our approach to criminal and punitive legislation,
should not be a governing factor in construing human rights legislation aimed
at the elimination of discrimination. It is my view that the courts below were
in error in finding an intent to discriminate to be a necessary element of proof.
[citation
omitted]
[46] Further, the Applicant
urged, the Investigator, and thus the Commission, fell into reviewable error in
adopting a “comparator” test.
[47] The relevant paragraph
of the Investigator’s Report is brief and is repeated here, with emphasis, for
ease of reference:
The investigation has
not found evidence to support that the actions of the respondent and its
employees were motivated by the complainant’s race and colour. There
are no relevant known White comparators to test whether a White person,
in the identical circumstances to those of the complainant, was treated better
or differently than the complainant. Based on the totality of the evidence, a
White person, in the identical circumstances, probably would be treated
the same under the respondent’s KYC policy to establish that person’s identity
to the satisfaction of branch staff.
[emphasis
added]
[48] The Investigator clearly
relied heavily on the issue of motivation and, as indicated earlier, given the
brief decision of the Commission that is at issue, I must assume that the
Commission adopted that reliance. In doing so, I am satisfied that the
decision under review was made in reviewable error, against the appropriate
standard of review, assuming that that standard is correctness.
[49] With regard to the
reliance in the Investigator’s Report on a “comparator” test, my colleague
Justice O’Reilly wrote at paragraph 22 of his reasons in Canada (Human
Rights Commission) v. M.N.R.:
…the Commission argued
that the Tribunal’s discussion of a “comparator group”, which derives from
jurisprudence under subsection 15(1) of the Charter, was inappropriate
and affected the Tribunal’s conclusion. In my view, this discussion was
completely innocuous. A court or Tribunal cannot decide whether a person has
been discriminated against without making comparisons to the treatment of other
persons. Comparisons are inevitable.
[50] On the facts of this
matter, the brief discussion of a “comparator” group was not innocuous.
Rather, it was central to the very brief analysis leading to the recommendation
to the Commission. That being said, I share the view of my colleague Justice
O’Reilly that “Comparisons are inevitable.” I cannot conclude that the Commission
fell into reviewable error in impliedly adopting the reasoning of the
Investigator’s Report in this regard.
c) Findings
not reasonably supported by the evidence, ignoring of evidence and
misapprehending relevant evidence
[51] The Applicant did not
rely heavily on this ground in written submissions, if the relative length of
submissions is to be used as a guide and, equally, counsel for the Applicant
devoted little argument to the issue. I am satisfied that the evidence as to
identity relied on by the Applicant during the two (2) incidents, combined with
the evidence from the Respondent’s records that was available to the
representatives of the Respondent involved in the same incidents was somewhat
confusing. The reality is that the Applicant chose to present himself at two
different branches of the Respondent bank, neither of which was a branch in
which he had an account. In doing so, it was not unreasonable that the
Respondent’s representatives placed an onus on him to clearly identify
himself. Such is not to say that the Applicant was not discriminated against
in the incidents. It is only to say that I find no reviewable error, against a
standard of review of reasonableness simpliciter, in the Commission’s
treatment of the evidence in the Investigator’s Report which was before the
Commission itself.
CONCLUSION
[52] Based upon the foregoing
analysis, this application for judicial review will be allowed.
[53] In the Applicant’s
Memorandum of Fact and Law, the Applicant seeks relief in the following terms:
The Applicant requests
an order setting aside the decision of the Commission dismissing the
Applicant’s Human Rights Complaint pursuant to section 44(3)(b) and:
• an order
substituting a finding that the complaint be referred to Tribunal
or
alternatively,
• an
order that the matter be referred back to the Commission for a fresh
investigation by an investigator who has had no involvement in this matter
under the supervision of staff who have had no involvement in this matter.
[54] During the course of the
hearing of this application, counsel for the Applicant quite properly withdrew
the Applicant’s request for an Order referring the matter to a Tribunal.
[55] Neither the Applicant
nor the Respondent sought costs. There will be no Order as to costs.
[56] An Order will go setting
aside the decision under review and referring the Applicant’s complaint back to
the Commission for reinvestigation by an Investigator who had no involvement in
the investigation giving rise to the decision under review that has been set
aside. To the extent possible, the further investigation should be supervised
by Commission staff who had no
involvement in the first investigation, in
the supervision of that investigation or in the investigation of the conduct of
the original Investigator.
“Frederick
E. Gibson”
Ottawa,
Ontario
November
23, 2007
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