Date: 20100127
Docket: A-217-09
Citation: 2010 FCA 29
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ABDUR-RASHID BALOGUN
Appellant
and
HER MAJESTY THE QUEEN
MINISTER OF NATIONAL DEFENCE
Respondents
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
The
appellant applied for judicial review of a decision of the Canadian Human
Rights Commission (the Commission) dismissing his complaint under the Canadian
Human Rights Act, R.S. 1985, c. H-6 (CHRA). Justice Russell of the Federal
Court concluded there was no reviewable error in the Commission’s decision and
dismissed the application. The appellant now appeals to this Court. I am of the
view that the appeal should be dismissed.
[2]
At the
outset of the hearing, the appellant advised the Court that he had “filed”
correspondence in August of 2009 wherein he sought permission to amend his
notice of appeal to include an appeal of the costs award issued by Justice
Russell on August 2, 2009. Counsel for the respondent had no recollection of
ever having seen the correspondence. Counsel’s first notice of any issue
regarding costs occurred upon review of the appellant’s memorandum of fact and
law on this appeal. Whatever may have happened to the appellant’s letter, he
did not move to amend his notice of appeal nor did he put before us the record
in the Federal Court on the issue of costs. As a result, we are not in a
position to address this issue.
Background
[3]
The
appellant describes himself as a black African Muslim. He applied to be a
Canadian Forces Reserve Officer in February of 2001. In February of 2004, he
complained to the Commission that the difficulties and delays in the
application process were as a result of discrimination based on his race,
religion and national/ethnic origin.
[4]
The
Commission investigator determined that the processing and delay with respect
to the application was not connected to any prohibited ground of
discrimination. Consequently, he felt that the complaint should not be referred
to a tribunal. The Commission accepted the investigator’s recommendation and
dismissed the complaint. The appellant applied to the Federal Court for
judicial review of the Commission’s decision.
[5]
Justice
Russell consolidated the appellant’s various arguments into four issues: the
section 7 complaint; the debt issue; the section 10 complaint; and the
procedural fairness issue. He concluded that it was reasonable for the Commission
to dismiss the appellant’s complaint. It is this decision that is the subject
of the appeal.
Standard of Review
[6]
The role
of an appellate court, when hearing an appeal with respect to an application
for judicial review, is to determine whether the reviewing court identified the
applicable standard of review and applied it correctly: Dr. Q v. College of
Physician and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Canada
Revenue Agency v. Telfer, 2009 FCA 23, 386 N.R. 212. Justice Russell, in
accordance with the established jurisprudence of this Court and the Federal
Court, properly identified the standard of review of reasonableness as that
applicable to the Commission’s decision to dismiss the complaint: Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 at para. 54.
Discussion
[7]
Section 7
of the CHRA provides that it is a discriminatory practice to refuse to employ
an individual on any prohibited ground of discrimination. Section 10 of the
CHRA relates to discriminatory policies and practices. The text of these
provisions is attached to these reasons as Schedule “A”.
[8]
The
appellant’s arguments are primarily founded on the “debt issue”. He claims that
the credit check and the manner in which the Canadian Forces (CF) dealt with it
were improper and discriminatory. More specifically, he alleges that the CF
used the excuse of bad debts to keep him out of the CF. Since the credit check
is related to both sections 7 and 10 of the CHRA, it is useful to examine it
first.
[9]
After some
delay (which I will address later in these reasons) in the processing of the
appellant’s application to the CF, by the summer of 2002, the requisite checks
had been completed. A credit check revealed an Equifax report of bad debts in
relation to two retail establishments. The appellant, who was otherwise
regarded as an “above average” applicant, was told that he would need to
address these debts prior to enrolment with the CF. The appellant’s reactions
to this direction were seen by the CF as unsatisfactory and extreme while the
CF’s demands were viewed by the appellant as unreasonable.
[10]
The
appellant vehemently argues that the credit check could not be regarded as a
necessary qualification for the position for which he applied. Rather, it must
be justified as a bona fide occupational requirement. Further, the
credit check cannot be said to be functionally required for the position in
question. According to the appellant, the investigator was wrong to conclude
otherwise; consequently, the Commission’s decision must be set aside.
[11]
The
investigator concluded that the appellant’s enrolment was not rejected because
of his bad debts; rather, it was temporarily put on hold. The appellant was not
qualified for the employment opportunity at the relevant time. The investigator
also found that the CF requires all candidates to complete an enhanced
reliability security check. Among other things, a credit check is part of this assessment
which is used in the evaluation process to determine a candidate’s suitability.
Although the bad debts do not preclude enrolment in the CF, the manner in which
the debts issue is handled may have an impact. The investigator concluded that
the appellant’s recruitment was placed on hold because he did not provide
documentation demonstrating that the bad debts had been dealt with until
January 26, 2005.
[12]
Justice
Russell reviewed the investigator’s report and conclusions. He specifically
noted that the report provided a thorough examination of the evidence and
arguments on both sides of the issue. He concluded that the investigation and
findings were not unreasonable. He clarified that the credit check was simply
one component of the mandatory reliability check. At paragraph 152 of his
reasons for judgment, he stated:
The evidence suggests to me
that the debt issue could have been handled better on
both sides. CF could have looked at the
outstanding debt in the context of Dr.
Balogun’s general financial
situation. At the same time, Dr. Balogun’s reaction
to the debt registrations and
his taking their existence as a personal affront caused a
polarization to occur. CF had no way of
knowing why the debts were registered or
whether Dr. Balogun’s protestations and
speculations had any substance to them. It
was his responsibility to resolve the
reliability concerns that arose as a result of the
debts registered against him. He did not
do this and we still do not know how those
debts came to be registered against him,
even though the registrations were eventually discharged.
After finding the investigator’s conclusion – that the
complaint was not linked to a prohibited ground of discrimination – reasonable,
Justice Russell then explained that, since no prima facie case of
discrimination was made out, it was not necessary for the CF to justify this
requirement.
[13]
In
relation to the policy, Justice Russell incorrectly stated that the
investigator found there was no need to investigate the section 10 component of
the appellant’s complaint (reasons for judgment at para. 118). In fact, the
investigator addresses the policy at pages 11 and 12 of the investigation
report. However, this error is not material to the result because Justice
Russell ultimately determined the issue in the same manner as the investigator.
That is, the policy was concerned with reliability status and encompassed the
manner in which the appellant proposed to rectify the debt situation.
[14]
The
National Defence Security Policy and Recruiting Directive deal with reliability
checks for CF enrolment. The Recruiting Directive states that it is a mandatory
condition of eligibility for enrolment in the CF that a recruit successfully
obtain enhanced reliability status. The enhanced reliability check includes
verification of personal data, professional and educational qualifications,
trade certification or accreditation, employment data, and an assessment of
reliability confirmed, where possible, by references and previous employers,
criminal records name check and credit check (appeal book vol. II, p. 298).
[15]
The
appellant contends that he was not afforded an opportunity to address the issue
of reliability status in the court below. He claims that Justice Russell’s
comment at paragraph 125 that “reliability is the issue and there is no
argument before me that reliability is not a functional requirement for an
officer” confirms his position. I disagree with the appellant’s submission. The
record is replete with references to the reliability assessment. I read Justice
Russell’s comment as nothing other than an indication that the appellant chose
to focus his submissions singularly on the credit check, to the exclusion of
its status as a component of the reliability assessment. Notably, the appellant
took the same approach before this Court.
[16]
I can see
no error in Justice Russell’s application of the applicable standard of review
or his conclusion that the investigator’s report and findings were reasonable.
Nor do I find fault with his determination that underlying the credit issue lay
the reliability concerns which remained unresolved. As Justice Russell
observed, it is always possible to disagree. However, disagreement with a
result does not render the result unreasonable.
[17]
As for the
issue of delay, the investigator found that the delay in the processing of the
appellant’s application was based partially on administrative failures of the
CF and partially on factors not attributable to the CF at all. Although Justice
Russell found that the delay was frustrating for the appellant and regrettable,
he considered the investigator’s determination that it was not linked to a
prohibited ground of discrimination to be reasonable. I am not persuaded that
he erred in arriving at that decision.
[18]
With
respect to the appellant’s allegation of breach of procedural fairness, Justice
Russell thoroughly reviewed his arguments with respect to witnesses,
overlooking evidence, disclosure and bias. Justice Russell found that the
investigator had looked into matters and had provided a neutral and thorough
report. There was no breach of procedural fairness. Rather, as stated at
paragraph 150 of the reasons for judgment, “the Commission simply could not, on
the evidence and after a thorough investigation, connect [the appellant’s]
experiences to a proscribed ground.” I agree with that observation.
[19]
There
being no error in Justice Russell’s conclusion that warrants intervention, I
would dismiss the appeal with costs.
“Carolyn Layden-Stevenson”
“I agree
Marc
Noël J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
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