Date:
20111214
Docket:
A-80-11
Citation:
2011 FCA 351
CORAM: BLAIS
C.J.
NADON
J.A.
STRATAS
J.A.
BETWEEN:
LORETTA BEST
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
STRATAS J.A.
[1]
This is an
appeal from the judgment of the Federal Court (per Justice Martineau):
2011 FC 71. The Federal Court dismissed the appellant’s application for
judicial review of a decision of the Canadian Human Rights Commission dated
December 23, 2009. The Commission decided not to deal with the appellant’s
complaint of discrimination by the Canadian Forces. The Commission found that
the evidence before it did not support a finding of discrimination.
A. Reasonableness
review
[2]
The
parties agree that reasonableness is the standard of review that must be adopted
and applied when assessing the substance of the Commission’s decision not to
deal with the discrimination complaint. The Federal Court adopted and applied
the reasonableness standard. In this regard, I agree with the parties and the
Federal Court.
[3]
In this
Court, the appellant does not take issue with any legal principles the
Commission applied. Instead, she focuses on the Commission’s fact-finding and its
application of the principles to the facts, and submits that the Commission
reached conclusions that were unacceptable and indefensible under the
reasonableness standard.
[4]
The
Federal Court found that the Commission’s decision was reasonable, in that it
fell within the range of outcomes acceptable and defensible on the facts and
the law.
[5]
In my
view, there is no reviewable error in the analysis of the Federal Court (at
paragraphs 25-32). Indeed, I substantially agree with its reasons.
B. Review
for procedural fairness
[6]
Here, the
parties agree that correctness is the standard of review that must be applied
when considering whether the Commission acted in a procedurally fair manner.
This was the standard the Federal Court applied. I agree with the parties and
the Federal Court.
[7]
The
Federal Court also held that the Commission did not breach any obligations of
procedural fairness. In doing so, it properly identified relevant principles,
relying upon authorities such as Slattery v. Canada (Human Rights
Commission), [1994] 2 F.C. 574, aff’d (1996), 205 N.R. 383 (F.C.A.), Syndicat
des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights
Commission), [1989] 2 S.C.R. 879 and Deschênes v. Canada (Attorney General), 2009 FC 1126. It applied
these principles to the facts before it (see paragraphs 19-21) and concluded
that no breaches of procedural fairness occurred. In particular, it found that
the Commission had investigated to the point of ensuring that “all of the
fundamental issues raised in the complaint were dealt with” and the appellant
had “ample opportunity to both make her primary case and respond to the investigator’s
understanding of her situation” (at paragraphs 22-24).
[8]
In my
view, in light of the above cases, the Federal Court was correct in this case when
it asked itself whether the Commission dealt with all of the fundamental issues
relevant to the complaint of discrimination and whether the appellant had an
adequate opportunity to assert her primary case and respond to the case against
her.
[9]
Before the
Federal Court were three investigation reports, medical reports offered by the
appellant and the Canadian Forces, and a number of submissions filed by the
appellant. Collectively, these show that the appellant had an adequate
opportunity to assert her primary case and respond to the case against her.
[10]
In this
Court, the appellant focused upon the Commission’s alleged failure to interview
her on issues relating to discrimination on the basis of disability and the
Commission’s alleged failure to disclose documents to her.
[11]
On the
issue of the alleged failure to interview the appellant on disability issues, at
the outset it must be observed that the Commission did interview the
appellant. The appellant discounts this, asserting that the Commission
interviewed her as part of the investigation into discrimination on the basis
of gender and family status, not discrimination on the basis of disability.
Judging from the title page of the first investigation report, that may well be
true. But that takes nothing away from the fact that, judging by this investigation
report, the interview was broad, covering territory beyond discrimination on
the basis of gender and family status. In the words of the Federal Court, the
interview gave the appellant “ample opportunity” to weigh in on all the issues
that concerned her.
[12]
An example
of this is seen at paragraph 65 of the first investigation report. There, the
investigator reported that the appellant asserted in the interview that the
Canadian Forces were “‘on a path’ to terminate her employment” and when it
“couldn’t accomplish that through administrative means,” it released her for
“medical reasons,” i.e., her disability. The appellant also asserted
this position and the facts supporting it in her complaint and in later written
submissions to the Commission.
[13]
Given the
information disclosed in the first investigation report about the broad ranging
interview of the appellant, it was necessary for the appellant in the
circumstances of this case to show that she had information that could be of use
to the Commission on the issue of disability and that she was somehow inhibited
or prevented during the interview from offering that information. The appellant
has offered no evidence to either effect.
[14]
The
appellant invites us to assume the fact that, if interviewed, the appellant could
have provided information of use on the issue of disability. Acceptance of that
invitation – in effect, an invitation to take judicial notice of controversial
fact – is not open to us.
[15]
On the
issue of disclosure of documents to the appellant, the investigation reports
and the appellant’s written submissions to the Commission show that the
Commission disclosed information to the appellant that was sufficient to permit
her to assert her primary case and respond to the case against her.
[16]
Having
reviewed carefully all of the material before the Commission, especially the
Commission’s investigation reports, the appellant’s submissions, and medical
evidence offered by the appellant and the Canadian Forces, the Federal Court’s conclusions
set out in paragraph 7, above are correct. The appellant’s rights to procedural
fairness in this case were respected.
C. Proposed disposition
[17]
Therefore,
I would dismiss the appeal with costs.
"David
Stratas"
“I
agree
Pierre Blais C.J.”
“I
agree
M. Nadon J.A.”
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