Murray v. Canada (Human Rights Commission), 2003 FCA 222

Date: 20030512

Docket: A-497-02

Neutral citation: 2003 FCA 222

CORAM:        STONE J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

DOROTHY B. MURRAY

Appellant

and

THE CANADIAN HUMAN RIGHTS COMMISSION

THE CANADA CUSTOMS AND REVENUE AGENCY

Respondents

                                             Heard at Toronto, Ontario, on May 12^th, 2003.

                      Judgment delivered from the Bench at Toronto, Ontario, on May 12^th, 2003.

REASONS FOR JUDGMENT OF THE COURT BY:                                                         EVANS J.A.

Date: 20030512

Docket: A-497-02

Neutral citation: 2003 FCA 222

CORAM:        STONE J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

                                                            DOROTHY B. MURRAY

Appellant

and

THE CANADIAN HUMAN RIGHTS COMMISSION

THE CANADA CUSTOMS AND REVENUE AGENCY

Respondents

                                       REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario

on May 12, 2003)

EVANS J.A.

[1]                 This is an appeal by Dorothy Murray from a decision by Kelen J. of the Trial Division in which he dismissed an application for judicial review brought by Ms. Murray in respect of the dismissal by the Canadian Human Rights Commission of her complaint of discrimination. His decision is reported as Murray v. Canada (Canadian Human Rights Commission), 2002 FCT 699.

[2]                 The Commission dismissed Ms. Murray's complaint that she had been subject to discrimination in the course of her employment with what is now Canada Customs and Revenue Agency, in that she had been denied opportunities for promotion on the grounds of her race and national or ethnic origins. The Commission made its decision on the basis of a report by an investigator who concluded that the evidence did not substantiate the complaint of discrimination on the grounds alleged.

[3]                 Ms. Murray's essential point in the appeal was that the investigation and report were inadequate. In particular, she alleged that the investigator had ignored evidence that she (Ms. Murray) had presented to the investigator, and that the investigator had failed to deal with her complaint of harassment. She said also that the report contained some specific factual errors. Finally, Ms. Murray alleged that she had been denied the right to procedural fairness as a result of the unduly long time that had been taken to complete the investigation.

[4]                 We can agree that the investigation and the report have some shortcomings and that it is unacceptable that the investigation and report took four years to complete. Nonetheless, we are not satisfied that the investigation was so defective as to constitute a breach of the duty of fairness (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.)), or that it was patently unreasonable for the Commission to have dismissed the complaint on the basis of the material before it.

[5]                 Thus, for example, although the investigator's report did not deal specifically with Ms. Murray's complaint of harassment, Ms. Murray conceded that the facts upon which her complaint of harassment rested were essentially identical to those on which she based her claim of discrimination. In addition, if the investigator erred in concluding that in 1996 employees who occupied an acting position for less than one month were not entitled to be paid on the same scale as the person for whom they were acting, the error was immaterial, since the investigator's overall conclusion was that there was no evidence of discrimination against Ms. Murray on the grounds of either race, or national or ethnic origins. To the extent that Ms. Murray alleged that she was entitled to be paid for the time that she had performed acting duties, her remedy was a complaint under the collective agreement.

[6]                 As for the delay in the investigation of the complaint, regrettable as this was, the intervention of the Court at this stage could not rectify any prejudice that the delay may have caused to the investigation.

[7]                 We would only add that, although Ms. Murray represented herself ably in the appeal, she was undoubtedly at some disadvantage in not fully appreciating all the procedural ramifications of the proceeding. However, while the Court seeks to provide what assistance it can, self-represented litigants must take the rules governing the Court's procedure as they find them.

[8]                 For these reasons, we would dismiss the appeal. In the circumstances, there will be no award of costs.

"John M. Evans"                  

J.A.                             

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET:                                              A-497-02   

STYLE OF CAUSE:              DOROTHY B. MURRAY

                                                                                                                                                         Appellant

-and-

THE CANADIAN HUMAN RIGHTS COMMISSION

THE CANADA CUSTOMS AND REVENUE AGENCY

Respondents

DATE OF HEARING:                        MAY 12, 2003

PLACE OF HEARING:                      TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:                         EVANS J.A.

DATED:                                                MAY 12, 2003

APPEARANCES BY:                          Dorothy B. Murray

For the Appellant, on her own behalf

Caroline Engmann, and

Joseph K. Cheng

For the Respondents

SOLICITORS OF RECORD:           Dorothy B. Murray

Toronto, Ontario

For the Appellant, on her own behalf

Morris Rosenberg

Deputy Attorney General of Canada                                                         

For the Respondents