Gardner v. Canada (Attorney General), 2005 FCA 284

Date: 20050831

Docket: A-235-04

Citation: 2005 FCA 284

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

PELLETIER J.A.

BETWEEN:

                                                         SHERIDAN GARDNER

                                                                                                                                            Appellant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                                           and

                                     CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                          Intervener

                                             Heard at Ottawa, Ontario, on April 6, 2005.

                                Judgment delivered at Ottawa, Ontario, on August 31, 2005.

REASONS FOR JUDGMENT BY:                                                                    PELLETIER J.A.

CONCURRED IN BY:                                                                                       ROTHSTEIN J.A.

                                                                                                                                    SEXTON J.A.

Date: 20050831

Docket: A-235-04

Citation: 2005 FCA 284

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

PELLETIER J.A.

BETWEEN:

                                                         SHERIDAN GARDNER

                                                                                                                                            Appellant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                                           and

                                     CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                          Intervener

                                                    REASONS FOR JUDGMENT

PELLETIER J.A.

[1]                Ms. Sheridan Gardner appeals from the decision of Mr. Justice Gibson of the Federal Court who, in reasons reported at (2004) 250 F.T.R. 115, 2004 FC 493, reluctantly dismissed her application for judicial review of the Canadian Human Rights Commission's (the Commission) decision to dismiss her complaint against the Department of Foreign Affairs and International Trade (DFAIT) and Treasury Board. The basis of her application for judicial review, which is also the basis of her appeal, is that the Commission's decision is unreasonable, and that the Commission denied her procedural fairness by not providing her with the reasons for its decision. In addition, Ms. Gardner claims that freshly discovered evidence shows that Treasury Board failed in its duty of disclosure which resulted in a defective record which, in itself, justifies sending the matter back to the Commission.

THE FACTS

[2]                The complaint arises out of Ms. Gardner's period of employment at the Canadian Embassy in Tokyo, Japan, from August 1992 to August 1995. Because market rents are excessively high in many capitals, DFAIT provides accommodation for employees at the Canadian Embassy, and charges them rent. The rent is not market rent since it is the excessively high cost of housing which has driven the Government to provide housing in the first place. The rent, which is fixed by Treasury Board, is intended to reflect what the employee would pay for rent in the Ottawa-Gatineau region so that the employee is left more or less in the same financial position as if they were employed in the National Capital region. The two variables which determine the amount of the rent charged are income and family size, the theory being that the amount spent on accommodation varies with income and the amount of space required, family size serving as a sort of proxy for the latter. A Rent Table showing the rent payable at various income levels and family sizes is used to determine the rent payable by an employee.

[3]                Ms. Gardner, her husband and child were housed in a three bedroom apartment, which was the designated accommodation for a family of that size. The difficulty is that two other families were housed in identical apartments and paid less rent because one was a single person, and the other was a couple. From Ms. Gardner's point of view, she was being discriminated against because of her family size, contrary to the Canadian Human Rights Act (the Act). The Government's explanation for the difference in treatment was that the other individuals were over-housed, that is their situation would not have justified the allocation of a three bedroom apartment but since appropriate accommodation was not available they were given accommodation which exceeded their needs. But since the Rent Table is not based on actual accommodation, these individuals were charged less rent than was Ms. Gardner, a differential which Ms. Gardner attributed to the difference in family size.

[4]                Ms. Gardner protested this treatment but to no avail. Upon her return to Canada, she made a number of complaints to the Commission, some against the DFAIT and some against Treasury Board. All of the complaints alleged substantially that Ms. Gardner had been discriminated against on the basis of family status:

The Department of Foreign and International Affairs has treated me differently in the provision of residential accommodation on the grounds of family status, in contravention of section 7 of the Canadian Human Rights Act.

From August 1992 to August 1995 I was posted in Tokyo as an employee of the Department of National Revenue. Posted employees of the Public Service of Canada are assigned residential accommodation, and charged rent, by the Department of Foreign Affairs and International Trade (DFAIT).

The rents, as set out in DFAIT's directive, are determined on the basis of income and the number of people in the household. Employees with the same income pay a higher rent the larger their household size.

The difference in rent does not reflect a difference in the size of accommodation. I, in a family of 3, lived in a building that contained three apartments of the same size. At one point, one of the apartments was occupied by a single person and the other was occupied by a couple, both of whom, I believe, were in the same salary range as I was, and both of whom paid less rent than I did based on their family size. I was charged rent on the basis of my family status, rather than an appropriate rent for the accommodation provided.

[Appeal Book at p. 49.]

[5]                The Commission assigned an investigator who gathered information from Ms. Gardner and from both DFAIT and Treasury Board. It appears that all of the complaints were consolidated into one. The investigator prepared a report in which she concluded that determining rent on income alone would be fairer, and recommended that the Commission refer the matter to conciliation. The report was circulated to the parties who had the opportunity to comment both on the report and on the other side's comments.

[6]                The investigator's conclusions are found in the last part of the report under the headings "Analysis" and "Recommendations":

Analysis

...

19. The respondent's policy is that employees posted abroad pay rent on the basis of their income and family size. The respondent indicates that the purpose of this policy is to ensure that employees pay rent similar to that paid by a family of equivalent size and income in Ottawa-Hull based on census data. However, from the respondent's statements, it is clear that the respondent is unable to match the "size of accommodation" offered to employees and their families who live abroad to that of similar families in the Ottawa-Hull area. This leads to situations where employees live in identical size apartments and pay different rents based on their family size alone.

20. While the respondent's policy appears to be rationally connected to its purpose and, appears to have been adopted with an honest and good faith belief that it is necessary to accomplish the purpose in question, basing rent on "family size" appears unfair given that the respondent cannot guarantee accommodation appropriate to the family sizes it encounters. As the complainant points out, in the absence of the respondent's ability to control the "size" of accommodation offered to employees basing rent on "income" alone would appear to be the fairest and the least discriminatory means of determining rents paid by employees living abroad.

21. It does not appear that the respondent would face undue hardship in changing its policy to that effect.

Recommendations

...

22. It is recommended, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act, that the Commission appoint a conciliator to attempt to bring a settlement of the complaint.

[7]                Given the nature of the recommendation, Ms. Gardner was astounded when the Commission wrote to her to say that it was dismissing her complaint because "having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted." This phrase is taken verbatim from article 44(3)(b)(i) of the Act which describes the circumstances under which the Commission may dismiss a complaint. Ms. Gardner takes the position that the dismissal is unreasonable and that the failure to provide her with reasons for the dismissal is a denial of procedural fairness.

THE DECISION OF THE FEDERAL COURT

[8]                Gibson J. gave Ms. Gardner a sympathetic hearing but found that he was unable to grant her the remedy she sought. On the issue of standard of review, he adopted as his own O'Keefe J.'s reasoning and conclusion in MacLean v. Marine Atlantic Inc. (2003), 243 F.T.R. 219, 2003 FC 1459, to the effect that the standard of review is reasonableness simpliciter. Applying this standard of review to the Commission's decision to dismiss the appellant's complaint, Gibson J. found that, in light of the material before the Commission and as well as its expertise in dealing with such material, he was unable to say that the decision was incapable of standing up to a "somewhat probing examination." Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20">2003 SCC 20 at para. 25.

[9]                Gibson J. also dismissed Ms. Gardner's contention that since the Commission disregarded the Investigator's recommendation, it was a breach of the duty of natural justice not to provide her with reasons beyond simply repeating the statutory justification for rejecting a complaint. He came to this conclusion because he found that the statute did not impose on the Commission the duty to give reasons and that Ms. Gardner had not requested reasons.

LEGISLATION

[10]            The relevant provisions of the Act are as follows:

THE ISSUES

[11]            Ms. Gardner identifies a number of issues in her Memorandum. Paraphrasing them, they are as follows:

1- What is the effect of the new evidence which Ms. Gardner was allowed to put into the record before this Court?

2- Did the judge err in finding that there was no basis for interfering with the Commission's conclusion that an inquiry into the complaint was not warranted?

3- Did the judge err in finding that the Commission's failure to give sufficient reasons did not amount to a violation of procedural fairness?

4- Did the judge err in finding that the investigation into Ms. Gardner's complaint was sufficiently thorough?

ANALYSIS

1- What is the effect of the new evidence which Ms. Gardner was allowed to put into the record before this Court?

[12]            Prior to the hearing of this appeal Ms. Gardner was given leave to file new evidence, specifically a letter dated March 11, 2002, a report dated April 2000 (Shelter Cost Study), and Appendix D to the Shelter Cost Study which compared rents calculated using the old and the new methods of calculation. Treasury Board had updated the method of calculating the Rent Table; the Shelter Cost Study describes the new method. This material had come into the hands of the Investigator but had not been put before the Commission, and therefore was not forwarded to Ms. Gardner as part of the tribunal record. She learned of the material as a result of document disclosure in the course of a separate application for judicial review.

[13]            Ms. Gardner argues that the failure to disclose this material is a breach of natural justice as it results in a defective record. She relies upon Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, for the proposition that a decision based upon a defective record is a defective decision.

[14]            Ms. Gardner says that if the evidence had been disclosed to her, she could have used it to contradict comments made by Treasury Board, which were carried forward into the Investigator's report. The statements which Ms. Gardner challenges are the following:

- "employees are charged rents based on what they would pay in Ottawa/Hull."

- "The rent charged to the complainant reflected the amount an individual with similar income and family size would have paid in the Ottawa-Gatineau region."

[15]            Ms. Gardner says that the new evidence shows that these statements are not true because the new method of calculation produces rents that are lower than the rents charged under the old method of calculation. This, says Ms. Gardner, shows that the rents she paid were not, in fact, based on what she would have paid in the Ottawa-Gatineau region. The substance of her argument on this point is set out in the following paragraph from her Memorandum:

Based on the new evidence, Treasury Board's allegations of fact are not true. The rent that the Appellant was charged was not "the amount an individual with similar income and family size would have paid." According to Treasury Board's own new methodology using "defensible data", the Appellant was overcharged by at least $269 per month, while an employee with a family size of one was undercharged by $29 per month. These facts further demonstrate a prima facie case of discrimination on the grounds of family status and that the rent charged was not supported and could not be justified. These new facts show that the Appellant not only met her case with the Commission for the complaint to be sent to conciliation or to a tribunal, but it also since there is no possible justification it appears that she has also met her case for a ruling in her favour by a human rights tribunal.

[Emphasis in the original.]

[16]            In my view, the new evidence is simply irrelevant to the issues before the Commission. The substance of Ms. Gardner's complaint is her treatment relative to others occupying the same size and type of accommodation. She objects to paying more for that accommodation than others at her income level, based upon her family size. If, for example, it were shown that the rent which Ms. Gardner paid was precisely the same amount as she would have paid in Ottawa-Gatineau, Ms. Gardner would still be in the position of paying more than others occupying the same accommodation if their incomes and families were smaller than hers.

[17]            In other words, if Treasury Board's scheme is discriminatory because it charges rent according to family size, it is not less so because it accurately represents the rent which Ms. Gardner would have paid in Ottawa, and it is not more so simply because it does not accurately do so.

[18]            In any event, the Commission was not obliged to produce the new evidence to Ms. Gardner simply because it was never put to the Commission itself. What Ms. Gardner was owed, and that which she was accorded, was the opportunity to comment on Treasury Board's submissions which, as it turned out, contained the substance of the information in the new evidence. See Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580 (C.A.), 2003 FCA 133 at para 45-50. This is so notwithstanding Ms. Gardner's argument that the new evidence revealed, for the first time, that census data was not used in deriving the Rent Table until 2001. Nothing in any material submitted by Treasury Board, or in the new evidence, says anything about whether census data was used in the preparation of the Rent Table prior to 2001. All that Treasury Board says is that the method for determining rents was reviewed in 2001 and that current rents (i.e. 2001) are based upon the 1996 census data. This says nothing about the use of census data prior to 2001. Consequently, Ms. Gardner was in possession of all the facts even before she came into possession of the new evidence.

[19]            In conclusion, the new evidence is not material to Ms. Gardner's complaint. No doubt that is the very reason it was not given to the Commission. The failure to do so did not create a defective record and, by extension, a defective decision.

2- Did the judge err in finding that there was no basis for interfering with the Commission's conclusion that an inquiry into the complaint was not warranted?

[20]            In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19">2003 SCC 19, the Supreme Court of Canada defined the task of a court sitting in appeal of a judicial review of an administrative decision. Simply put, the appellate court must determine if the reviewing court applied the correct standard of review, and if not, to apply it as though it were the reviewing court. Consequently, the first task is to determine if the application judge applied the proper standard of review.

[21]            The general thrust of the decisions of this Court on the subject of the standard of review of a decision dismissing a human rights complaint is that the appropriate standard is that of reasonableness. See Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 (F.C.A.) at para. 9, Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4 at para. 13, Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113 at para. 6. As a result, I conclude that the jurisprudence of this Court is to the effect that the standard of review of a decision of the Commission to dismiss a complaint without inquiry is reasonableness simpliciter. Consequently, the application judge applied the appropriate standard.

[22]            Ms. Gardner's position is that the Commission's decision was unreasonable because, in her view, it was plain and obvious that she had been discriminated against on the basis of family status. Ms. Gardner's conclusion is based upon the fact that Treasury Board could not control the size of the accommodation provided so that the Rent Table simply amounted to a scheme based on income and family size. It was for the Commission to decide if Ms. Gardner's analysis was correct or whether Treasury Board's explanation was credible, namely that the exigencies of the housing supply at a particular post might mean that some employees were over-housed but that this circumstance did not affect the legitimacy of the scheme. The application judge concluded that the Commission's decision was reasonable. We have not been given any reason to conclude that he erred in coming to that conclusion.

3- Did the judge err in finding that the Commission's failure to give sufficient reasons did not amount to a violation of procedural fairness?

[23]            It is true that the reasons given for the Commission's decision to dismiss Ms. Gardner's complaint are laconic and are more in the nature of a conclusion than reasons. Where the Commission's decision gives effect to the investigator's report, a complainant can reasonably assume that the Commission adopted the investigator's reasoning. But where, as here, the Commission departs from the investigator's recommendation, the basis for the Commission's decision may be less clear.

[24]            If the complainant challenges the decision, the reviewing court is left to assess the Commission's conclusion without having the benefit of its reasoning in coming to that conclusion. Since the reasonableness of a decision is the extent to which the reasons given for it support the decision (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20">2003 SCC 20 at para. 47), a tribunal leaves a reviewing court at a marked disadvantage when it does not provide reasons for its decision.

[25]            That said, while the courts have imposed a duty to give reasons where a statute does not explicitly require it, they have not imposed on tribunals a generalized duty to give reasons. Where a duty to give reasons has been found to exist, it either arose by implication from the terms of the statute or as an aspect of the tribunal's duty of procedural fairness. For an example of the duty to give reasons being implied from the terms of the statute, see Orlowski v. British Columbia (Attorney-General) (1992), 94 D.L.R. (4th) 541, where the British Columbia Court of Appeal implied a duty to give reasons from the fact of a statutory right of appeal.

[26]            In this case, the Act requires the Commission to give written reasons when it decides not to investigate a complaint:

No such requirement is imposed with respect to the decision not to proceed to an inquiry after investigation of the complaint. No duty to give reasons can be implied from this juxtaposition. In this context, the absence of a requirement to give reasons where the Commission decides not to proceed to an inquiry is a very important indicator that no such duty was intended. Consequently, this is not a case where the duty to give reasons can be implied from the terms of the statute.

[27]            The other source of the duty to give reasons is the tribunal's obligation of procedural fairness. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada held that:

[43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required...

[28]            But the Court recognized that there were practical reasons for providing that "... any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient." (para. 40). The duty to give reasons is grounded in a person's interest in knowing why profoundly important decisions affecting them are made as they are (para. 43). If, as a result of an intimate involvement in the process leading to the decision, a person understands, or has the means to understand the reason for the decision, the duty to give reasons will vary accordingly.

[29]            It is therefore important to understand the extent to which Ms. Gardner was involved in the process leading to the Commission's decision. When the Commission obtained Treasury Board's response to her complaint, Ms. Gardner was provided with that response and given an opportunity to respond. (Affidavit of Sheridan Gardner, para. 6 -7, A.B., at p. 56). When the investigator's report was completed, Ms. Gardner was given an opportunity to respond to the report. Furthermore, she was also given the opportunity to comment upon Treasury Board's response to the investigation report. (A.B., at p. 79, and pp. 135-147). Therefore Ms. Gardner was aware of all the arguments raised against the complaint by Treasury Board, and was given the opportunity to meet those arguments.

[30]            As a result, this is not a case where Ms. Gardner has been left without any way of knowing why the Commission came to the conclusion it did. The Commission had before it Treasury Board's reasoned response to the complaint, both parties' reactions to the investigator's reports, as well as Ms. Gardner's comments with respect to Treasury Board's response to the investigator's report. It is, I believe, a fair inference that, in deciding that an inquiry was not warranted, the Commission preferred Treasury Board's view of the circumstances to Ms. Gardner's or the investigator's.

[31]            As a result, I conclude that the Commission satisfied its duty of fairness to Ms. Gardner so that, having regard to all the circumstances, the reasons which she was provided for its decision were sufficient.

4- Did the judge err in finding that the investigation into Ms. Gardner's complaint was sufficiently thorough?

[32]            In his reasons, the application judge commented that Ms. Gardner had not pursued this issue with any particular vigour and that her lack of zeal was "well justified". The same is true in this Court. I can do no better than to adopt the application judge's reasons on this point:

On the totality of the material before the Court, I am satisfied that the Applicant was fully involved in the investigation into her complaints. She was given full opportunity to make submissions in support of her complaints and to respond to submissions made by the departments of government against which the complaints were made. I can find no basis on which to conclude that there exists, on this application for judicial review, a reviewable error in the conduct of the investigation into the Applicant's complaints.

CONCLUSION

[33]            I have concluded that the new evidence upon which Ms. Gardner sought to rely is of no assistance to her. The assertions which she seeks to contradict by reference to the new evidence are essentially irrelevant to her complaint. The application judge correctly applied the proper standard of review to the Commission's decision. There is no basis for this Court to intervene. I would therefore dismiss the appeal with costs.

                                                                            "J.D. Denis Pelletier"                 

                                                                                              J.A.

"I agree

Marshall Rothstein J.A."

"I agree

J. Edgar Sexton J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

Appeal from an Order of the Federal Court dated April 1, 2004, Court File No. T-1869-02

DOCKET:                               A-235-04

STYLE OF CAUSE: Sheridan Gardner and Attorney General of Canada and Canadian Human Rights Commission

PLACE OF HEARING:         Ottawa, Ontario

DATE OF HEARING:           April 6, 2005

REASONS FOR JUDGMENT BY:                               PELLETIER J.A.

CONCURRED IN BY:                                                    ROTHSTEIN J.A.

SEXTON J.A.

DATED:                                  August 31, 2005                                        

APPEARANCES:

Sheridan Gardner                                                               ON HER OWN BEHALF

Richard Casanova                                                              FOR THE RESPONDENT

Philippe Dufresne                                                                FOR THE INTERVENER

SOLICITORS OF RECORD:

Sheridan Gardner

Ottawa, Ontario                                                                  ON HER OWN BEHALF

John H. Sims, Q.C.

Deputy Attorney General of Canada                                   

Ottawa, Ontario                                                                  FOR THE RESPONDENT

Canadian Human Rights Commission

Ottawa, Ontario                                                                 FOR THE INTERVENER