Date: 20140414
Docket:
T-2005-12
Citation: 2014 FC 358
Ottawa, Ontario, April 14, 2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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ION DAVID
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
The applicant seeks judicial review of a
Canadian Human Rights Commission [the CHRC or the Commission] decision rendered
on October 2, 2012, dismissing his complaint against the Canadian Forces
regarding adverse differential treatment on the ground of his national or
ethnic origin as a Romanian. He requests that this Court remit the complaint
for redetermination.
[2]
For the reasons which follow, the application is
dismissed.
II.
Facts
[3]
The CHRC Investigation Report dated June 20,
2012, reviewed the complaint and its background. Mr. David was born in Romania in 1952 and became a Canadian citizen in 1997. He received an engineering degree in
Romania in 1978 and worked as an engineer in a dairy plant and for IMSAT in Romania, including spending two years in Al Qaim, Iraq, as a consultant for IMSAT during the 1990s. He
speaks fluent Romanian and English and understands French and Italian. After
moving to Canada, he worked in Vancouver as an engineer and a technician for
security companies and as a Romanian interpreter, then served as an overseas
representative for Canadian contractors in Romania from late 1995 to autumn
2002. He then worked as a real estate agent for RE/MAX in Victoria, B.C.
[4]
The CHRC investigator found that Mr. David had
joined the Canadian Forces in 2001 as a Primary Reserve artillery officer with
the 5th (British Columbia) Field Artillery Regiment based in Victoria, B.C. He was promoted to Lieutenant on September 9, 2004. He then sought to move
into Civil-Military Cooperation [CIMIC].
[5]
In an interview with the Commission
investigator, Mr. David stated that “I applied to CIMIC with strong
encouragement from the local detachment”, presumably meaning the local CIMIC
detachment.
[6]
A letter from Mr. David’s battery commander
dated September 27, 2004 states:
[. . .] Ion has asked me to provide a letter of
reference in regards to possible civilian employment with CIMIC overseas.
[. . .]
I can not recommend him as a CIMIC officer or
in a military capacity in CIMIC due to his lack of experience as a member of
the CF and specifically as a combat arms officer. Perhaps in a few years he
will be experienced enough to transfer to CIMIC or take a CIMIC military tour.
[. . .]
Based on Ion previous experience and his
current deportment I can recommend him to work in a civilian capacity on a
CIMIC tour or assignment.
[7]
Nonetheless, in late 2004 Mr. David applied to
become a military CIMIC operator. He was accepted in July 2005 and attached to
a London, Ontario, CIMIC team effective in January 2006. He quit his job with
RE/MAX, sold his property in Victoria, and relocated to London with his family.
There he found work as a self-employed general contractor. Reserve service is
part-time; personnel train on evenings and weekends and are only required to
accumulate a minimum of 14 full days of service per year in order to remain on
strength. Only reservists on term contracts are employed full-time.
[8]
An officer from the London CIMIC team explained
to the CHRC investigator that the CIMIC organization was not a formal unit with
a unit identification code [UIC] but a composite group of specialists preparing
to be deployed; in other words, CIMIC is not an occupation but an assignment.
The officer stated that the normal rotation for reservists coming to CIMIC was
a three-year cycle. In the first year, they were trained; in the second year
they were deployed; and in the third year they shared their knowledge by
teaching other reservists. They then returned to their home units.
[9]
The Canadian Forces further explained to the
investigation that in order to be deployable, officers must first be qualified
in their own occupation (in the applicant’s case, artillery). Each officer’s
Military Occupation Code [MOC] indicates “A” for trained or “U” for
untrained. Major Atherley of the Canadian Forces told the Commission
investigator by email that Mr. David had been occupation-qualified in 2004 but
that “When CIMIC uses the terminology ‘untrained’, they are looking at more
than just the ‘MOC trained’. [. . .]. In summation, David was a trained
Primary Reserve Artillery Officer (DP1 [Development Period 1]), however he did
not have the RAOC [Reserve Army Operations Course] which made him less
competitive for certain positions and deployments under CIMIC.”
[10]
CIMIC as a Reserve task evolved over the time of
the applicant’s service with the London group. Initially reservists were
accepted with minimal training, then developed both as CIMIC operators and in
their own MOC. Under the previous officer commanding, Major Chadwick,
acceptance into a CIMIC team was fairly informal. The selection process was
then made more formalized and aimed at making sure that CIMIC reservists would
be deployable to Afghanistan.
[11]
The applicant was initially satisfied with his
CIMIC assignment. He stated in his complaint that he had been involved in
training in Canada, Italy, and Turkey, and had been registered for a “captains’
course” – the RAOC.
[12]
After June 2006, however, Mr. David became
discontented. He complained that he did not receive desired nominations for a “captains’
course”, overseas training and exercises, or a deployment. He alleged that this
was due to discrimination. He told the investigator:
How do you link the refusal of the training to
your national ethnic origin?
All the time I request it, they pay less
attention to me than the others. All the time, I feel that it is my accent, my
language. I feel this because I am the only one who speaks with such an
accent. I tell them my point of view. I felt no value. When I went to Turkey and Italy, everybody shared my experience and was interested in my point of view. I feel
very frustrated, humiliated as my applications were put aside.
[. . .]
When Bindon arrived in August 2006, no one will
talk to me. The situation got worse and worse. Initially there were delays on
registration, no nominations for continued training, no response to my ROG.
They took me out of the payment system, the payroll and completely segregated
me. I refuse completely to talk to him. I went to see Riddell – his response
was that “you don’t come to me without an appointment.” I said to him, you
never answered my emails.
[. . .]
What remedy do you seek?
[. . .] I want the rank and full time jobs and
I use as my reference, the career of Captain Riddell who is now a Major. His
career is what I wanted. I was the only one treated this way. I have no
witnesses.
[13]
On March 27, 2007, the applicant was listed
among CIMIC members to be returned to their home units, a year and two months
after he had transferred to the London CIMIC group.
[14]
He then stopped attending training nights with
CIMIC. In June 2008 Major Bindon directed that he be contacted as soon as
possible to resume parading to correct his non-effective strength [NES]
status. Mr. David refused to attend parades and refused to sign pay sheets for
January-July 2008, emailing on July 4, 2008 to say “I believe that the present
situation is complex and that it requires assistance from HRC [the Human Rights
Commission].” He went to the CIMIC offices on July 18, 2008 but again refused
to sign the pay sheets. On July 30, 2008, he emailed that “[. . .] because for
one year I was not involved in any activity, including parading. I cannot sign
that I participated in an activity when I was omitted from all of CIMIC’s
activities. [. . .] From the e-mail Sgt Mercier sent you, I deduce that ‘the
whole NES thing’ which she tried to explain to me (but she did not) is an
important issue. Please clarify for me the situation.”
[15]
Mr David complained to the CHRC on March 4,
2008. The Commission at first dismissed his complaint on October 20, 2008, and
again on January 21, 2010, finding that the allegations of discrimination could
be dealt with through the military grievance procedures. On March 6, 2011,
the CHRC decided that the grievance procedure appeared to be complete and yet
eight of the nine allegations had not been dealt with. It therefore proceeded
with his complaint. The investigator issued her report on June 20, 2012. The
gist of the findings follows.
A.
The “captains’ course”
[16]
In May 2006, the applicant went on the Reserve
Army Operations Course [RAOC] in Meaford, Ontario. This course was a
prerequisite for promotion and completing it was also necessary in order to
attend overseas training and exercises and eventually to deploy as a CIMIC officer.
[17]
Three days into the RAOC training, it was
identified that Mr. David had not completed the mandatory online portion of the
course before attending. He was therefore removed from the course on May 30,
2006 and returned to unit [RTU’d]. His course report noted that he had been
classified as a training failure due to “academic non-performance (motivation)”
; “Lt David demonstrated a low level of motivation in ensuring that his staff
work was complete and to an acceptable standard.” A follow-up memo from the
Land Force Central Area Training Centre’s commanding officer to the applicant’s
commanding officer added that the decision to RTU had been “based upon his
academic grading on homework submitted, his overall course performance, and
from information he provided”.
[18]
The applicant asserts that he was treated
differently from another officer in the same situation, Lieutenant Johnson. On
June 8, 2006, he reviewed the situation with Major Chadwick, who told him to
submit a redress of grievance and apply for the next available RAOC, likely to
take place in September 2006. Major Chadwick was then replaced at the CIMIC
group by Major Bindon. The applicant states that he was promised “reloading
into the next available course” by Major Bindon. In fact, Major Bindon did not
re-nominate him for the course until May 2007, after the applicant had already
been listed to leave the CIMIC team.
[19]
Major Bindon stated to the Commission
investigation that he regretted that the matter had not been handled well
enough, but noted that at that time, the team was heavily involved in the
repatriation of dead soldiers from Afghanistan, and this had become a higher
priority than loading officers on the RAOC.
[20]
In an interview with the Commission
investigator, Major Bindon discussed the aftermath of Mr. David’s RTU from the
RAOC:
I offered to nominate him for the next course.
I then discovered that he was under the impression that he was going to be
deployed to Afghanistan. He wasn’t qualified in his MOC, he had to do
artillery training. He didn’t want to do artillery training. I couldn’t
deploy him or put him on Class B until he was MOC qualified. I nominated him
for the next course.
Explain the ROG [redress of grievance] in this
case?
The ROG was not administered properly and I was
at fault. He had to get his trade qualifications in artillery – it’s his MOC.
His status as artillery officer was not been completed out west. He should
have been qualified before he got into CIMIC. He was not trade qualified.
David said that he had been promised deployment by Major Chadwick – it became
confusing. There was no reason for him to move to Ontario, it didn’t make any
sense. It was in the early part of the redress process that I realized he
wasn’t qualified.
[21]
The applicant stated that between August 2006
and February 2008, he requested on nine separate occasions to be sent on the
“captains’ course”. When Major Bindon did nominate him in May 2007, he was not
selected. Mr. David asserts that he was denied the training due to his national
or ethnic origin, being the only person born in Romania who was attached to the
London CIMIC group. He noted that another officer who had been selected for
CIMIC more recently than him, Lieutenant Baker, was nominated for the course in
March 2007, before him.
[22]
The applicant stated that the team nominal roll
identified places of birth for all staff. The Chief Clerk for the CIMIC team
declared that CIMIC reservists’ national or ethnic origins were not tracked. The
certified court record includes a copy of the CIMIC nominal roll, which is a
basic personnel record sheet containing various items of personal data
including the date and place of birth of every person on the team. The CHRC
investigator made a finding that (para 33 of the report):
Given that the parties disagree and that there
is no documentation, the investigator is unable to reach a conclusion as to
whether the conduct the complainant is alleging, was related to a prohibited
ground.
[23]
The Canadian Forces explained that the applicant
was not automatically entitled to attend a “captains’ course”. There were more
candidates than spaces available and attending was regarded as a special
opportunity. As military operations became more and more centered on providing
reservists for the Afghanistan mission, selection became more and more competitive.
The Forces noted that Lt Baker was occupation-trained and therefore deployable,
and indeed was deployed to Afghanistan in 2008. They asserted that the
applicant was not qualified in his occupation (artillery) and thus was not
eligible for deployment. Furthermore, the CIMIC major was not in charge of selection,
only of nomination. A panel located in either Kingston or Toronto conducted the
selection from among nominated candidates.
[24]
Major Bindon commented to the investigation that
CIMIC reservists were expected to maintain their skills in their military
occupation and that Mr. David had not worked at improving his skills as an
artillery officer, but had focussed on requesting courses that would allow him
to be deployed overseas. CIMIC candidates for the “captains’ course” were
assessed based on their training, readiness to work in a difficult environment,
capabilities, and rank. Mr. David at one point volunteered to assist with
repatriations, but he was unable to organize the necessary services and the mortician
asked that he not return to assist again. Major Bindon stated that in his
opinion the applicant required further military training before being trained
for deployment or deployed.
[25]
The CHRC investigator concluded that the lack of
selection for a “captains’ course” was not related to a prohibited ground.
B.
Other training and exercise opportunities
[26]
Mr. David also stated that he had been denied
other training and exercise opportunities. These included a training course in Moldova in September 2006 and a CIMIC course in Germany in January 2007. Another reservist,
Lieutenant Breton, was sent on a March 2007 course in Germany. The applicant was only sent on a two-week course in Wainwright, Alberta in April 2007. In
further submissions to the CHRC, he added that he had attended this training as
support staff for the senior officers taking the course, and that it did not consist
of training for him. The Canadian Forces commented that the CIMIC officers on
the exercise were playing CIMIC officers and were evaluated on their
performance in that capacity, and that this was considered to have training
value.
[27]
Major Bindon explained to the CHRC investigator
that all reservists who volunteered to attend training abroad were reviewed by
a selection board of five people. He had been asked to provide his evaluation
of the applicant’s readiness for deployment following the Wainwright training. He
reported that the complainant had many civilian skills but lacked military
training and would not be suitable for deployment to Afghanistan without
further military training. The Canadian Forces further similarly explained that
at the time, Lt Breton was trained in his own occupation (infantry) to a level
where he was deployable, and did in fact deploy to Afghanistan in 2008. The applicant
was not sufficiently qualified in his occupation and was not eligible for
deployment.
[28]
At his interview, Major Bindon said:
Was he nominated or allowed to go on other
training?
Well, Moldova was a big issue for him. Nobody
from our organization went. NDH – National Defence Headquarters sent some
people. No CIMIC people went to Moldova.
Is there documentation on the fact that no one
went?
No. Not when they don’t go. When they go,
there is documentation.
Was he made aware of other training?
Yes he was. He put his hand up for
everything. Remember it was all voluntary. At this time we took over
repatriation for the soldiers who were killed overseas. We escorted the bodies.
David did it once and it didn’t go well for him. The mortician asked that he
not go back. He was out of his depth. He couldn’t organize the police, the
escort services and the family detail.
[29]
Major O’Neill commented:
To your knowledge was he informed of training
opportunities in 2006 to 2008?
Yes – he came out to Wainwright with me in 2007
to the Combat Team Commander’s Course run by the Tactic school. He would have
been Class B. So, yes, David received notices and went to training. We went
together – there were 5 or 6 of us from CIMIC. They needed us for role playing
for the Regular Force – so we were acting as the CIMIC group. I was asked by
Chadwick to keep an eye on Ion David – in that environment and do an
assessment. I did it, getting a feel for how he operated. I said to Major
Chadwick – in a kinetic environment, he (David) lacked the military experience
to operate in a combat role. At CIMIC, we were still soldiers first. Afghanistan is dangerous, it was a high risk, dangerous environment. He had a lot of
civilian skills and experience. But I was very clear with Chadwick – in a
field of conflict, he would be leading men and he lacked military training.
Going back to his MOC, the U needed to be taken away – he was untrained at
artillery.
Was this explained to Ion David?
Yes, I believe so. There was a recommendation
made that he should receive more military training before being deployed
overseas.
[30]
The CHRC investigator concluded that the denial
of overseas training was not linked to a prohibited ground.
C.
Deployments
[31]
The applicant alleged that he was not offered a
deployment, while other CIMIC reservists were. He was therefore denied
employment opportunities and had to declare personal bankruptcy. He claimed
that the denial of opportunity was directly related to his Romanian origin.
[32]
Major Riddell, who was offered a deployment,
stated that selection for deployments was based on merit and a thorough
assessment of the person’s civilian occupation, soft skills, and military
training, and that CIMIC reservists with an ability to work in a multi-ethnic
situation and display cultural sensitivity were sought. Appointment for a
deployment depended on meeting a Canadian Forces need and on being able to
operate in a combat-ready environment.
[33]
The investigator found that the Canadian Forces
had provided documentation showing that the applicant had been evaluated and
found lacking in military experience and merit. She did not find that the
denial of deployment opportunities was linked to a prohibited ground.
D.
Redress of grievance
[34]
The applicant submitted a redress of grievance
on November 20, 2006, and requested reviews of his grievance on three occasions
during 2007 and again in January 2008. Major Bindon stated that he had entered
into discussion with the applicant between November 2006 and spring 2007, and
believed that a satisfactory outcome had been reached. He therefore did not
pass the grievance up to the next level. When interviewed by the Commission
investigator, he acknowledged that it had been mishandled and took
responsibility.
[35]
The Canadian Forces agreed that the grievance
had not been correctly administered. Mr. David said that the consequence was
that he was put on a March 27, 2007 list to leave CIMIC and return to his home
unit.
[36]
However, the investigator noted that evidence
was provided that he had received significant guidance and support from a long
list of staff involved with CIMIC, and that there was ongoing dialogue to try
to resolve the substance of the grievance. She did not find that the conduct
appeared to be linked to a prohibited ground.
E.
The transfer out of CIMIC
[37]
On March 27, 2007, Major Bindon scheduled the
applicant to be returned to his home unit from CIMIC, after only a year and two
months in London. The applicant stated that three officers with less training
than him were not on the list of people to be returned to their home units. Mr.
David was advised by letter on May 16, 2007 that the rationale for his transfer
back was the CIMIC commitment to other army units not to keep attached
personnel for more than 3-4 years depending on the number of times they deployed.
[38]
At the interview, however, Major Bindon stated:
Why was he RTU?
David never showed up for any training and for
months he never showed up, he wouldn’t sign the pay sheets for CIMIC and he was
transferred out to his home unit.
[39]
Major Riddell told the interviewer:
Were you involved in Ion David’s complaint?
I didn’t inherit his case. He was in the
middle of the ROG process. He came in shortly after I took command and he
explained his issues to me. I said “let me try and take care of this” – I went
to Tom Bindon. The answer came back – “Colonel Lawrence is addressing the
ROG.”. By this time, David was at “non-effective” status – this is for a
reservist who has not paraded in 30 days. I was trying to get him into a
strength force in southern Ontario. He was a reservist and I was trying to get
him paid. After 60 days a second letter goes out and after 180 days, the
reservist is released for not showing up. He would have been adversely
affected as he was about to be released under 5D or 5F – both a black mark.
[40]
Mr. David stated that he had not completed the
normal three-year cycle of train-deploy-teach. He was told to find a home unit
to transfer back to, but he asserted that since his attachment to CIMIC in
January 2006, his home unit had been the CIMIC group in London, Ontario. He noted that he was the only London CIMIC reservist born in the Eastern bloc.
[41]
Major Bindon stated that the applicant did not
have the skills, experience, and qualifications to be deployed. Major Bindon
had therefore requested assistance in career planning for him and sought a unit
to which he could transfer in order to gain military experience.
[42]
The CHRC investigator did not find that the
transfer was linked to a prohibited ground.
F.
The investigator’s recommendation and the
complainant’s reply submissions
[43]
The investigator recommended that the CHRC
dismiss the human rights complaint because the allegations of adverse
differential treatment in training and employment based on a proscribed ground
were not supported by the evidence.
[44]
In reply submissions, Mr. David took issue with
the investigator’s acceptance at paragraph 37 of Major Bindon’s statement that
he had not been re-nominated for the “captains’ course” because he had not
worked to improve his military skills but instead had focussed on requesting
courses that would lead to a full-time overseas deployment. He provided a
Master Events List giving training opportunities available for the CIMIC team
between 5 February 2007 and 30 March 2008, i.e. in the two months before he was
placed on the list to rotate out and the following twelve months, none of which
had been offered to him.
[45]
He also complained that Major O’Neill had been
nominated for all activities even while he was nominated for none. He provided
a spreadsheet listing fourteen NATO course opportunities between February 13,
2006 and December 1, 2006. The list is:
a.
5 serials of the NATO Tactical Basic CIMIC
Course
b.
2 serials of the NATO CEP CIMIC Course – Regional
c.
2 serials of the NATO Operational Liaison CIMIC
Course
d.
1 serial of the NATO Operational Liaison CIMIC
Course – Regional
e.
1 serial of the NATO Operational CIMIC Course –
Regional
f.
1 serial of the NATO CIMIC Op Staff Course;
g.
1 serial of the NATO Strategic/Operational CIMIC
Course; and
h.
1 serial of the NATO Strategic Planners CIMIC
Course – Regional.
[46]
The spreadsheet shows a Lt David nominated for
the NATO Tactical Basic CIMIC Course in Ankara, Turkey, 8-18 May 2006. It shows
Major O’Neill nominated for a serial of each of the eight courses (including
twice, on two different serials, for the NATO Tactical Basic CIMIC Course) and
two other officers nominated for one course each. The Nominal Roll sheet notes
however, that Major O’Neill was designated as Team Leader of the London unit.
[47]
The applicant drew the investigator’s attention
to the team nominal roll showing the date and place of birth of all personnel. He
stated that both he and the only other foreign-born member of the 12-member London team were included on the list of personnel to be transferred out.
[48]
The applicant also took issue with the statement
at paragraph 81 of the investigation report, relating to the team’s choice not
to offer him a deployment to Afghanistan, was that “The respondent provided
documentation that the complainant was evaluated and found lacking in military
experience and merit.” He argued that he had never been made aware of any
deficiencies in performance.
III.
Contested decision
[49]
Before the CHRC, the applicant sought to be
promoted to captain, retroactively to September 2006, and awarded a sum
corresponding to captain’s pay in a full-time position since September 2006.
[50]
The CHRC reviewed the investigation report and
decided to dismiss the complaint rather than referring to the Canadian Human
Rights Tribunal [the CHRT or the Tribunal] because the allegations of adverse
differential treatment in training and employment due to a proscribed ground
were not supported by the evidence.
IV.
Issues
[51]
The applicant proposes two issues:
a.
What is the applicable standard of review of the
thoroughness of an investigation?
b.
Was the Commission’s decision to dismiss the
complaint reasonable?
V.
Analysis
A.
Standard of review
[52]
The parties acknowledge that the decision to
dismiss the complaint pursuant to section 44 of the CHRA is reviewable on a
standard of reasonableness. They are also in agreement that the question of
whether an investigation and the Commission’s decision-making have been
conducted in accordance with procedural fairness is to be reviewed on a
standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir];
Dupuis v Canada (AG), 2010 FC 511 at para 10; Sketchley v Canada (AG),
2005 FCA 404 at paras 53-55, 111 [Sketchley].
[53]
Where the parties in this case differ, however,
is in regards to whether the acknowledged requirement of thoroughness of an
investigation by the Commission is to be considered as part of the
reasonableness analysis or whether it is a matter of procedural fairness
subject to a correctness standard of review. The respondent states that
determining whether the investigator’s investigation was thorough is reviewable
on a standard of reasonableness. This happens to be in accord with my recent
decision in MTS Inc v Eadie, 2014 FC 61 [MTS].
[54]
The applicant argued that the Court of Appeal in
Sketchley, supra, concluded that the standard of review analysis
does not apply when reviewing a decision on grounds of procedural fairness.
Instead the issue is the content of the duty of procedural fairness in the
circumstances. Accordingly, he argued that alleged inadequacies, errors and
omissions, and a failure to investigate obviously crucial evidence, all factors
that I view as matters relating to the thoroughness of an investigation,
constituted breaches of the Commission’s duty of procedural fairness. These
were therefore subject to a substantive correctness review, which would require
the decision to be quashed if a breach of the duty was found to have occurred.
[55]
Based on the Court’s analysis in Sketchley,
I cannot disagree with the applicant’s submissions. However, in my view, the
analysis of the Court in that matter has been superseded by Dunsmuir,
which as noted by Justice Stratas in the very recent decision Maritime
Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 [Maritime
Broadcasting] at paragraph 51, “changed the direction of Canadian
administrative law.”
[56]
This may be a distinction without a difference
inasmuch as the manner of application of the result in Sketchley speaks
of deference towards the investigator and the need for an unreasonable failure
to follow through with an investigation in order to set the impugned decision aside,
which are hallmarks of the reasonableness standard. Nevertheless the “pragmatic
and functional” analysis followed by the Court in Sketchley in terms of
defining the content of the duty of fairness based on reasonableness has been
superseded and continuing reference to it only adds confusion to the new
standard of review regime enunciated in Dunsmuir, which was intended to
eliminate such an analysis.
[57]
While I concluded in MTS that
thoroughness was an issue to be determined in accordance with a reasonableness
analysis, given the nature of the applicant’s arguments it is necessary to look
at the matter from first principles to determine whether there could be any
vestige of procedural fairness left in an analysis of the thoroughness
requirement of an investigation. Sketchley dealt with this issue, with
the Court ultimately relying upon the statement of principle from Slattery v
Canada (Human Rights Commission), [1994] 2 FC 574. I set out below
selected passages from Sketchley:
5. Procedural Fairness in the Commission’s
Investigation
[110] The applications Judge treated the review
of the respondent’s HRDC complaint as a question of procedural fairness, and
held that the investigation with respect to this complaint was flawed for lack of
thoroughness, as the investigator was found to have failed to “address at all
the substance of the complaint” (at paragraph 52) and “dismissed perfunctorily”
the “serious allegations” made by the respondent (at paragraph 58).…
[112] It is clear that a duty of procedural
fairness applies to the Commission’s investigations of individual complaints,
in that the question of “whether there is a reasonable basis in the evidence
for proceeding to the next stage” (SEPQA, at page 899) cannot be fairly
considered if the investigation was fundamentally flawed.…
[113] The existence of the duty of fairness in
this case does not, however, determine what requirements are applicable in this
context, as the content of procedural fairness is variable and must be
determined in the specific context of each case (Baker, at paragraph 21). In
Baker, L’Heureux Dubé, J. set out at paragraphs 22 28 a non exhaustive list of
factors to consider in determining the content of procedural fairness in any
given context; these factors have been affirmed by the Supreme Court of Canada
and this Court [2000 CanLII 17101 (FCA), [2000] 2 F.C. 592 (C.A.)] in Suresh
and Canada (Attorney General) v. Fetherston (2005), 332 N.R. 113, leave to
appeal to S.C.C. refused, [2005] S.C.C.A. No. 239.
[114] The issue of the content of the duty of
fairness in the context of a decision by the Commission to dismiss a complaint
has been addressed in a number of cases, most notably SEPQA, Radulesco v.
Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407
(Radulesco) and Latif. In addition, the content of the duty in the
particular context of an investigation leading to a dismissal under paragraph
44(3)(b) was carefully considered by the Federal Court of Canada in Slattery,
in a decision which was recently cited by this Court as “the leading case on
this issue” (Tahmourpour, at paragraph 8; see also Singh, at paragraph 4).
These cases were all decided before the law concerning procedural fairness was
summarized and restated by the Supreme Court in Baker. However, the conclusion
in these cases, as to the content of the duty in this context, remains valid.
[115] In order to determine the degree of
investigative thoroughness required in this context, the factors from Baker
must be applied. First,…
[120] In Slattery, 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” (at page 599), and also the competing interests of individual
complainants and the administrative apparatus as a whole (at page 600). He
concluded as follows (at pages 600-601):
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]
[58]
The quoted last paragraph from Slattery in Sketchley
well describes the nature of the analysis to determine whether an investigation
meets the requirements of thoroughness. It also fits perfectly with the
characteristics pertaining to a decision where a reasonableness analysis is
required as described in Dunsmuir.
[59]
Firstly, deference is owed to the decision-maker. Deference
is of course a hallmark of the reasonableness analysis as opposed to the
correctness test, which generally permits the Court to substitute its opinion
for that of the administrative decision-maker on what constitutes fairness.
Admittedly, the Court of Appeal has recently recognized that deference plays a
role in determining the boundary of correctness; see Re: Sound v Fitness
Industry Council of Canada, 2014 FCA 48 and Maritime Broadcasting, supra.
However, these decisions arose in a context of what I would describe as true
procedural fairness issues concerning bias or a lack of opportunity to be
heard, not on the issue of failure to go far enough or of errors in an
investigation. In other words, there was no issue in those cases about
determining which standard of review applies.
[60]
Secondly, an investigator clearly exercises a large measure
of discretion in how the investigation should be conducted. Based on the
evidence and information gleaned so far, should a matter be followed up
further? Alternatively, should the investigator rely upon the information
obtained, or is it irrelevant? Conversely, is the investigator relying upon an
irrelevant factor which significantly skews the reasonableness of the decision?
Has the investigator properly articulated the findings and recommendations; are
the conclusions justified and intelligible; is it transparent in terms of all
of the statements obtained from witnesses? These are all factors applied in a
reasonableness analysis, which do not bear on whether procedural fairness was
accorded.
[61]
Thirdly, and in contradistinction to a correctness
analysis, when reasonableness is the standard of review, the decision itself is
the focus of the reviewing court. It is the starting point which must first be
analyzed and thereafter held up to examination against the information obtained
or not obtained and the manner in which the conclusions have been expressed in
relation to the information obtained. All of the issues described above relate
to an analysis of the decision and the logical connections between the
information obtained or not, and the way that they are set out in the decision
in relation to its conclusions.
[62]
Fairness, on the other hand, deals with the procedure
followed in allowing parties to participate in the process or with the
characteristics of neutrality of the decision-maker. The decision itself is irrelevant.
It will be set aside regardless of its merit, unless it would be futile to do
so in light of other factors having nothing to do with fairness considerations.
It is precisely because in matters of procedural fairness the decision is
irrelevant - meaning that there is no need to undertake the challenging
analysis of the reasonableness of an exercise of discretion - that the
reviewing court is permitted to substitute its opinion for that of the
decision-maker.
[63]
Moreover, I would like to think that Dunsmuir was
intended to overcome much of the inordinate complexity that had weighed down
the whole issue of standard of review and administrative law generally. To
introduce fuzzy concepts of procedural fairness based on the contents of the
duty into the exercise of a discretion said to be measured in terms of its reasonableness,
or vice versa to permit deferential
reasonableness to be a factor in determining the boundaries of correctness, would
be moving away from the relatively bright lines established by Dunsmuir.
[64]
If I may speak out of turn, I am a very strong believer
that courts should make an effort to apply the KIS (Keep It Simple) principle
whenever possible. The issue of our times is access to justice. We need to make
our legal system more simple, user-friendly, and thereby more accessible. It is
time to return to bright lines where possible, while loosening up the court’s
prerogative to intervene when the interests of justice require. When Justice
Stratas speaks (in Maritime Broadcasting at para 51) of the changed direction of Canadian administrative law brought about by Dunsmuir, I
consider that decision’s principal contribution to be its implicit recognition
of the need for adherence to the KIS principle in formulating our legal maxims.
[65]
Accordingly, I accept the respondent’s submission, which happens
to coincide with my earlier views expressed in MTS, that the standard of
review of the thoroughness of an investigation is one of reasonableness in
accordance with Dunsmuir.
B.
The Commission’s decision to dismiss the
complaint
[66]
Speaking further of Dunsmuir as a clarion
call to adopt a more pragmatic, and indeed common sense approach, in the review
of administrative decisions by directing the reviewing court’s attention to a
range of reasonable acceptable outcomes, I suggest that Dunsmuir
proposes a more generalized approach - looking at the forest and not the trees -
as a starting point in the analysis of a decision.
[67]
I believe this to be the process first followed
by a judge when he or she first reflects on the decision to be reviewed.
Considering generally all the facts together in light of the central issue, the
nature of the allegations, the functions of the Commission and its
investigator, and the main points that the applicant relies on, does the judge
find that they suggest the decision is sufficiently unreasonable as to fall
outside the range of possible acceptable outcomes?
[68]
The central issue in the matter before me is the
investigator’s failure to find any relation between the alleged discrimination
which prevented the applicant from succeeding in the CIMIC program and his
Romanian ethnicity.
[69]
Very large numbers of persons of all types of
different ethnicities immigrate to Canada and this country has a solid history
of good integration. That is not to say that there are no instances of discrimination
on the basis of ethnicity, and certainly that has occurred against ethnic
groups. This, however, is not a case that fits into a systemic pattern of a
known group whose members are currently or in the past victims of discrimination
to any degree. In terms, therefore, of a claim of discrimination being made
against the Forces and its officers who were running the CIMIC program in Ontario, the Court is not put on a heightened alert of dealing with a history of discrimination
against Romanians such as with regard to race, religion or gender.
[70]
Secondly, a claim of not succeeding in a
competitive job environment is difficult to make in the best of instances
without cogent evidence of some kind to back up the claim. There are simply so
many factors that go into securing a position in today’s employment market that
attributing the problem to others as opposed to the requirements of the
position or one’s skills, experience and character, particularly in the
Canadian Armed Forces where leadership and other human factors play a role, is
a difficult case to make.
[71]
In this matter there is no objective evidence
that the applicant’s ethnicity played any role in any of the alleged unmerited
acts of differential treatment. That is, I find no conduct, comments or
inferences in the evidence which could connect the applicant’s treatment to his
ethnicity. The investigator based her decision on the lack of connection
between the applicant’s ethnicity and his alleged mistreatment. Most of the
evidence introduced in this matter had to do with differential treatment by the
applicant not succeeding in gaining access to programs or assignments, which by
definition is an outcome in every competitive employment situation. Apart from
his own subjective feelings, there are no demonstrated links between any of
these results and his ethnicity.
[72]
The only two elements of evidence relating to ethnicity
are a document of the respondent - the nominal roll of the Ontario members of
CIMIC – and the suggestion that it forms the basis for the alleged
misrepresentation by the respondent that it did not track ethnicity.
[73]
The Commission was obviously aware of the
document, including by the applicant’s bringing it forward. It quite correctly
did not see it as evidence of a possible suggestion that ethnicity played any
role in the applicant’s employment circumstances with CIMIC. Besides deference
being owed to this assessment of the insufficiency of the probative value of
the existence of the nominal roll, I am in agreement with it.
[74]
The nominal roll in question is a typical
summary document containing the type of personal information one would expect
to find about members of an organization, such as home addresses, contact
numbers and in the case of persons serving with CIMIC, the country of birth.
This is standard information contained on many documents such as passports.
There is nothing suspicious about an organization that sends personnel around
the world having information on the countries of birth of its members.
[75]
The document also confirms the highly improbable
conclusion that the applicant was discriminated against based on his Eastern
European ethnicity. It lists a person born in the Philippines as another member
of the 12 member London CIMIC unit and no evidence has been presented that this
person was barred from access to training and deployments. Moreover, the
document contains the names of CIMIC members across Ontario including one born
in Poland, as well as several members with places of birth outside of Canada. It does not indicate the ethnicity of either persons born outside Canada or the persons born in Canada.
[76]
In addition, the fact that the document pertains
to members across Ontario, and not just in the London unit, deflates the
suggestion that it was being used to discriminate against the applicant personally
in London.
[77]
It is also of some importance that the applicant
did not present support from any other persons of foreign ethnicity in the
program complaining about being treated differently because of their ethnicity.
[78]
The case for a prima
facie finding of discrimination is particularly
difficult to discern in the context of the CIMIC organization. CIMIC is tasked
with deploying Canadian soldiers into foreign communities with the hope of
gaining their sympathy or allegiance to causes being supported by the Canadian
Forces. Cultural and linguistic diversity would appear to be an asset to CIMIC
in assisting it to achieve its goals.
[79]
In summary, there is no evidence that the
information on place of birth was used as a determinant of outcome in relation
to any of the alleged instances of discrimination. In the context of this
complaint involving a competitive employment situation where there is simply no
objective evidence demonstrating a nexus between the alleged discriminatory
differential treatment and the prohibited ground of the applicant’s Romanian
ethnicity, the decision not to proceed with the complaint was one falling
within the range of reasonable acceptable outcomes.
[80]
Apart from the lack of evidence of ethnicity
playing any role in this matter, there is also little in the evidence to
suggest that the applicant was not treated fairly on the basis of merit in his
rejection from the various programs that he sought to undertake.
[81]
The applicant fails to consider that he was
enrolled in a competitive program where he had failed at the first step in a
multistep training program as part of a three-year term. He was at a
competitive disadvantage because he did not have the Reserve Army Operations
Course which made him less suitable for certain positions and deployments under
CIMIC. He had not done well on a repatriation tasking, resulting in negative
comments from a supervisor outside the program, and had failed to impress in a
CIMIC role-playing simulation conducted for regular forces.
[82]
I do not find that there is evidence to support
an allegation that he was unfairly rejected from the “captains’ course” particularly
as he was only a Lieutenant. He was the author of his own initial failure by
not completing the program, and after that it is a difficult case to make
against others that he did not get back into the competitive program.
[83]
I also see no case that Major Bindon treated him
differentially on any improper basis. Major Bindon freely acknowledged that the
complainant had many civilian skills, but reported that he lacked military
training and was therefore not suitable for deployment, which appears reasonable.
References to other persons who were deployed were explained on this basis. In
any event the decision to deploy the applicant was made by a panel of officers
and not by Major Bindon.
[84]
For all of the foregoing reasons, I do not find
that there was any failure in the thoroughness of the investigation. The
decision concluding that there was insufficient evidence that the applicant was
the subject of discrimination to refer the matter to the CHRT was well
articulated and within the range of reasonable acceptable outcomes.
VI.
Conclusion
[85]
The application is therefore dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that the application
is dismissed.
“Peter Annis”
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