Date: 20080522
Docket: T-462-07
Citation: 2008 FC 649
Ottawa, Ontario, May 22,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PAMELA
EGAN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Pamela Egan, is an employee of the Canada Revenue Agency (CRA). She
is legally blind and suffered a neck and back injury in 1998. She returned to
work in 2001 and sought various forms of accommodation from her employer. The
Applicant believed that her employer failed to make reasonable accommodation
for her and, on May 21, 2003, filed a complaint with the Canadian Human Rights
Commission.
[2]
The
Commission investigated the Applicant’s complaint and, in a written decision
dated February 9, 2007, determined that the CRA had accommodated the
Applicant’s disabilities in a reasonably timely manner. It is this decision
which is the subject of this judicial review. For the reasons set out, I find
that the decision of the Commission is to be set aside and sent back for
redetermination.
[3]
The
substantive issue is whether the Commission conducted a sufficiently thorough
review. In determining such issue the Court must also consider what is the
appropriate standard of review of that decision.
[4]
As
to the standard of review, since the decision of the Supreme Court of Canada in
Dunsmuir v. New Brunswick, 2008 SCC 9, there have been established two
criteria, that of correctness in respect of legal issues and that of
reasonableness in respect of factual and discretionary matters, with differing
degrees of deference given in respect of reasonableness considering the
expertise of the decision maker and other relevant matters. Where there has
been a lack of procedural fairness, lack of natural justice or breach of the Charter
of Rights and Freedoms such criteria are not the appropriate consideration
for, if such a lack or breach has been demonstrated, the decision must be set
aside.
[5]
Here
the substantive issue is that of the thoroughness of the investigation by the
Commission of the Applicant’s complaint. It is clear from the decision of the
Federal Court of Appeal in Sketchley v. Canada (Attorney General),
[2006] 3 F.C.R. 392 that failure by administrative decision makers to
investigate obviously crucial evidence where an omission has been made that
cannot be compensated for by making further submissions, there has been a lack
of procedural fairness such that the decision must be set aside. To quote from
paragraphs 120 and 121 of Sketchley which in turn quotes from Slattery
v. Canada (Human
Rights Commission) [1994] 2 FC 574 aff’d (1996), 205 NR 383 and Baker
v. Canada (MCI) [1999] 2
S.C.R. 817:
120 In
Slattery, supra, the Applications Judge considered the degree of thoroughness
of investigation required to satisfy the rules of procedural fairness in this
context. He noted the "essential role that investigators play in
determining the merits of particular complaints" (para. 53), and also the
competing interests of individual complainants and the administrative apparatus
as a whole (para. 55). He concluded as follows:
56
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...
57
In contexts where parties have the legal right to make submissions in response
to an investigator's report, such as in the case at bar, parties may be able to
compensate for more minor omissions by bringing such omissions to the attention
of the decision-maker. Therefore, it should be only where complainants are
unable to rectify such omissions that judicial review would be warranted.
Although this is by no means an exhaustive list, it would seem to me that
circumstances where further submissions cannot compensate for an investigator's
omissions would include: (1) where the omission is of such a fundamental nature
that merely drawing the decision-maker's attention to the omission cannot
compensate for it; or (2) where fundamental evidence is inaccessible to the
decision-maker by virtue of the protected nature of the information or where
the decision-maker explicitly disregards it.
121 Weighing
the Baker factors, I agree that this is an appropriate description of the
content of procedural fairness in this context.
[6]
Therefore,
if I find that the investigation conducted by the Commission was insufficiently
thorough and failed to investigate obviously crucial evidence the decision must
be set aside.
[7]
As
stated by Justice Nadon in Slattery, supra, at paragraph 49 the
investigation must satisfy at least two conditions: neutrality and
thoroughness.
[8]
The
Applicant cites a number of deficiencies in the investigation conducted by the
Investigator including:
1.
Failure
to interview the Applicant’s treating physician or review an audio tape of a
meeting between that physician and the Applicant’s employer as to reasonable
accommodation that could be made to effect her re-integration into the
workforce.
2.
Failure
to interview the Applicant’s Director who appeared to have become directly
involved in the situation.
3.
Failure
to interview a number of other key individuals such as the Applicant’s team
leader and union steward.
4.
Failure
to investigate the Applicant’s complaints as to discrimination respecting
Income Averaging This particular issue has been resolved however Applicant’s
counsel maintains that the delay and procrastination in dealing with this issue
is indicative of the treatment of all of the Applicant’s issues.
[9]
An
investigation was conducted in respect of the Applicant’s complaints and a
Report dated September 20, 2006 was provided by the Investigator. As to the
nature of the investigation made, the Report said at paragraph 9:
9.
The
investigation was conducted through a telephone interview with the complainant
and her union representative e-mail and fax correspondence with the respondent,
and through an examination of documents provided by the complainant and the
respondent.
[10]
The
Applicant was invited to make a rebuttal submission commenting on the Report
and did so in a ten page detailed submission raising a number of points
including the four enumerated above. The rebuttal begins:
“I have read the report in
total disbelief as to how a less than 10-minute telephone conversation with me
and my union reps can amount to an “investigation””
[11]
The
Commission then issued a letter dated February 9, 2007 which is the decision
under review. That letter appears to be a standard form letter and is very
perfunctory. It states:
I am writing to inform you of
the decision taken by the Canadian Human Rights Commission in your complaint
(20021149) against Canada Customs and Revenue Agency.
Before rendering its 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 subsection 41(1) of the Canadian
Human Rights Act, to deal with the complaint because
·
the
Commission is not satisfied that the grievance process adequately and fully
addressed the allegation of discrimination.
The Commission also decided,
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the
complaint because
·
the
evidence shows that the respondent accommodated the complainant’s disabilities
in a reasonably timely manner.
Accordingly, the file on this
matter has now been closed.
[12]
The
Commission’s letter does not specifically address any of the concerns as to the
investigation and Report raised in the Applicant’s rebuttal and refers to the
rebuttal in such a neutral way – “any submission(s) filed in response” –
that one is left to wonder to what extent, if at all, the Applicant’s concerns
were even noted let alone considered.
[13]
I
appreciate that the Court is entitled to consider the Investigator’s Report as
constituting the reasoning of the Commission. As stated by the Federal Court
of Appeal in Sketchly, supra at paragraph 37:
“The investigator’s report is
prepared for the Commission, and hence for the purposes of the investigation
the investigator is considered to be an extension of the Commission. When the
Commission adopts an investigator’s recommendations and provides only brief
reasons, the Courts have rightly treated the investigators report as
constituting the Commission’s reasoning for the purpose of the screening
decision…”
[14]
This,
however, does not address the problem that arises when the rebuttal to the
report raises serious issues as to what was said or not said in the report or
how the investigation was conducted. This was the situation commented upon by
Justice Mactavish of this Court in Sanderson v. Canada (AG), 2006 FC 447
at paragraphs 77 and 78:
77 It
may be that had the Commission looked into Ms. Sanderson's allegations, it
might have determined that there is no substance to any of them. However, we
have no way of knowing whether this was the case, as there is nothing in the
record to suggest that any examination of Ms. Sanderson's allegations was ever
carried out by the Commission prior to the decision being made to dismiss Ms.
Sanderson's complaint.
78 The
serious allegations made by Ms. Sanderson required consideration by the Commission.
The failure of the Commission to address these concerns is a further reason why
I am of the view that it would be unsafe to allow the decision of the
Commission to stand.
[15]
Justice
de Montigny of this Court faced a similar situation in Public Service
Alliance of Canada v. Canada (Treasury Board), 2005 FC
1297 where the investigator simply got the basic facts wrong, this was pointed
out in the rebuttal but apparently ignored by the Commission who made a cryptic
decision affirming the investigator’s recommendations. At paragraph 50 of his
Reasons Justice de Montigny said:
50 I
am of the view that this is a case where the omission was of such a fundamental
character that the response filed by PSAC to the Investigator's Report could
not rectify the problem. Not only was the Report extremely succinct on that
issue, but it failed to provide sufficient information so that the rebuttal
from PSAC could be meaningfully assessed. In any event, the Commission failed
to address these issues and essentially ignored the position of PSAC.
[16]
I
am satisfied that, in the present case the issues raised by the Applicant in
rebuttal were of such a fundamental character that they should have been
clearly considered by the Commission and a further or better investigation ordered
or clear reasons set out by the Commission in its decision as to why it did not
do so. To simply say that the Report is the Commission’s reasons would be to
ignore the rebuttal entirely.
[17]
The
first three issues deal with the failure by the investigator to interview
certain witnesses which the Applicant says were crucial to the matters under
investigation. Failure to interview witnesses who have important evidence in
respect of the matters at issue constitutes a reviewable error (Sanderson
supra at paras. 54 & 55, Sketchley supra at paras. 122-123).
[18]
The
Respondent argues that the Applicant should provide affidavits from those
witnesses who were not interviewed and who are alleged to have important
evidence, setting out what that evidence is so that the Court can make up its
own mind as to how important the evidence might be. No authority was cited for
this proposition. It appears that cases such as Sketchly, Sanderson
and Public Service Alliance supra as well as
others such as Tahmourpour v. Canada (Solicitor General), 2005 FCA 13
all dealt with such matters on the basis of the evidence in the record and not
on the basis of new affidavit evidence filed with the Court.
[19]
As
has been stated in other cases such as immigration, the Court is to review the matter
on the basis of the record before the decision making tribunal and not receive
new evidence going to the issue decided by the tribunal; only in instances
where lack of procedural fairness or natural justice is affidavit evidence
received (see e.g. Kante v. Canada (Minister of Public Safety and Emergency
Preparedness) 2007 FC 109 at paras. 9 & 10).
[20]
In
the present case, I could not receive evidence as to what the uninterviewed
witnesses might say, my role is to examine whether the Commission or Investigator
should have, on the basis of the evidence and submissions before them,
conducted those interviews and whether failure to do so should result in the
decision of the Commission being set aside.
[21]
First
as to Dr. Ennis, he was the physician treating the Applicant at the relevant
time. He had a meeting on November 15, 2001 with the Applicant’s employer at
which time integration of the Applicant back into the workforce was discussed
and Dr. Ennis made his views known. Apparently, this discussion was tape recorded
but there is no indication that the Investigator asked for the tape or listened
to it. The Applicant relied on this discussion to explain why she did not
attend a medical assessment requested by her employer; she says it is because
the matter has already been discussed at the meeting. The Applicant also
asserts that her doctor at the meeting supported the suggestion that the
Applicant be allowed to telework. The investigator apparently found the opposite.
[22]
I
find that failure to interview Dr. Ennis was a critical omission.
[23]
Second,
as to Ms. Charlton, the Applicant’s Director, she supervised the Applicant’s
work and, according to the Applicant, made a number of statements critical of
the failure of her employer to make meaningful and timely accommodations for
her. For instance, it is said that Ms. Charlton made statements to the effect
that nobody in management known their responsibilities, did not understand the
duty to accommodate, did not appreciate the tardiness in addressing matters and
so forth. Again, failure to interview this witness was a critical omission.
[24]
Third,
a number of other witnesses were also listed by the Applicant as important. It
is acknowledged that an investigator has no duty to interview every witness
named by a complainant if there is no relevant evidence to be gained or other
good reason not to do so. However where a reasonable person would expect that
useful evidence could possibly be gained by an interview there is some
obligation to conduct the interview or say why not. In this category of
witnesses who possibly could offer useful evidence are Mr. Julian the
Applicant’s team leader and Ms. Corderro the Applicant’s union steward.
[25]
Other
deficiencies in the Report were noted such as the failure to appreciate that it
took almost three years to provide the Applicant with ergonomic apparatus
whereas others had received similar apparatus in a few short months. Similar
delays in coming to grips with matters such as the Income Averaging issue, now
settled, were not well appreciated by the Investigator.
[26]
As
a result, there are two fundamental reasons for setting aside the Commission’s
decision. One is that the Investigator failed to conduct a thorough and proper
investigation. The other is that the Commission failed to deal with these
issues when raised by the Applicant in her rebuttal by not directing that there
be a further and better investigation of, if not doing so, failing to state in
its reasons, the letter of February 9, 2003, why it did not do so.
[27]
Accordingly,
the application is allowed with costs and the matter sent back for
redetermination by different persons.
JUDGMENT
FOR THE REASONS
PROVIDED:
THIS COURT ADJUDGES that:
1.
The
application is allowed;
2.
The
decision of the Commission dated February 9, 2007 is set aside and the matter
is remitted to the Commission for investigation by a different investigator and
subsequent redetermination by the Commission, and;
3.
The
Applicant is entitled to costs to be taxed at the middle of Column III.
"Roger
T. Hughes"
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