[1] This is an appeal from an order of McKeown J. (the Applications Judge) dated March 19, 2001, [2001] F.C.J. No. 367 in which he allowed an application for judicial review of a decision by the Canadian Human Rights Commission (the Commission) brought by Santosh K. Singh, an employee of Human Resources Development Canada (HRDC). The Commission had dismissed Ms. Singh's complaint on the basis that it was unfounded. The Applications Judge held that the Commission's investigation into the respondent's complaint was not thorough as it failed to address the issue of discrimination with the decision makers.

[2] Before us, the appellant argued that the Applications Judge erred in failing to recognize that the Commission's decision was discretionary in nature, was based on the relevant evidence, and there was no breach of natural justice. In his submission, since a Commission decision is reviewable on a reasonableness standard (see Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 at 137 (FCA)), this Court should intervene only where such a decision is based on irrelevant factors, or where the decision exhibits capricious or perverse findings of fact. In short, this Court should not intervene lightly with a Commission decision due to Parliament's intention to confer a broad discretion with respect to dismissing complaints of discrimination.

[3] In Paul v. Canadian Broadcasting Corporation, 2001 FCA 93, Sexton J.A. noted that, in applying principles of procedural fairness, the courts have imposed certain requirements upon the Commission prior to its taking action to dismiss a complaint under subsection 44(3). The Commission is required to inform the parties of the substance of the evidence obtained by the investigator (see Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at 902.) This requirement is met by the disclosure of the Commission's investigation report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision (see Syndicat des employés, supra; Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 at 598 (T.D.) aff'd (1996), 205 N.R. 383 (FCA); and Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at para. 43).

[4] In particular, Slattery, supra, addresses the issue which arises where the investigator has committed an error or omission. In that case, Nadon J., as he then was, wrote that a judicial review of the Commission's decision is warranted only in cases where the investigative omission cannot be rectified by the complainant's submission in response. In essence, where a complainant cannot correct the misapprehension or error in the investigative report by pointing out the error or providing the missing information, then the problem is so fundamental as to warrant judicial review. Otherwise, an injustice, or at least procedural unfairness, would result, since the Commission would be basing its decision on a flawed and improper evidentiary basis.

[5] Both counsel agreed that the investigation must be fair and thorough and in the absence of thoroughness the matter must be sent back to the Commission. We agree with the Applications Judge that an investigation into the substance of Ms. Singh's complaint has never really taken place. Here, the investigator failed to inquire into the substance of her argument that HRDC's purported explanations for her dismissal were a pretext for the real reason behind that dismissal, allegedly her age or nationality or ethnic origin. The PSC report on which the investigator relied to determine the reason for Ms. Singh's dismissal could not, and did not, explore the possibility that she had, in fact, been dismissed for these reasons. In our analysis, this is the very type of omission contemplated by Nadon J. in Slattery, supra, and no submission by Ms. Singh could cure the investigator's error.

[6] In our analysis, notwithstanding the Commission's broad discretion to dismiss an unfounded complaint, a decision based on incomplete or irrelevant evidence cannot be reasonable. In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, Iacobucci J. wrote as follows:

This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [emphasis added]

[7] Where, as here, a proper inquiry into the substance of Ms. Singh's complaint has not been undertaken, a decision based on that improper investigation cannot be reasonable since a defect exists in the evidentiary foundation on which the Commission rested its conclusion.

[8] We would only add that in reaching this conclusion we make no finding in connection with the respondent's allegation of discrimination based on age or nationality or ethnic origin.

[9] The appeal will be dismissed with costs.

"B. Malone"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

DOCKET: A-239-01

APPEAL FROM THE JUDGMENT OF THE TRIAL DIVISION OF THE FEDERAL COURT OF CANADA, DELIVERED MARCH 19, 2001 IN FILE T-2259-99.

STYLE OF CAUSE: The Attorney General of Canada v. Santosh K. Singh

PLACE OF HEARING: OTTAWA, ONTARIO

DELIVERED FROM THE BENCH: June 11, 2002

REASONS FOR JUDGMENT OF THE COURT: The Chief Justice Richard.

Pelletier J.A.

Malone J.A.

DELIVERED FROM THE BENCH BY: Malone J.A.

APPEARANCES:

Mr. Michael Roach FOR THE APPELLANT

Mr. David Yazbeck FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Morris Rosenberg FOR THE APPELLANT

Deputy Attorney General of Canada

Ottawa, Ontario

Raven, Allen, Cameron &

Ballantyne FOR THE RESPONDENT

Ottawa, Ontario

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Canada (Attorney General) v. Singh, 2002 FCA 247

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2002 FCA 247