Date: 20140502
Docket:
A-257-13
Citation: 2014 FCA 105
CORAM:
DAWSON J.A.
WEBB J.A.
SCOTT J.A.
|
|
|
BETWEEN:
|
|
RACHEL EXETER
|
|
Appellant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
REASONS
FOR JUDGMENT
DAWSON and SCOTT JJ.A.
[1]
Rachel Exeter, the appellant, made a complaint
to the Canadian Human Rights Commission alleging that her former employer
discriminated against her. The Commission decided not to refer the complaint to
the Canadian Human Rights Tribunal. Consequently, Ms. Exeter brought an
application for judicial review of the Commission’s decision not to refer the
complaint to the Tribunal.
[2]
In her notice of application seeking judicial
review, Ms. Exeter asked for production of the Commission’s “entire file,
including all handwritten notes, documents, interviews either transcribed
and/or recorded, memoranda, email correspondences and any other materials
relevant to [her] complaint” under Rule 317 of the Federal Courts Rules,
SOR/98-106.
[3]
The Commission objected to the production of the
documents Ms. Exeter requested on the ground that she had failed to indicate
how production of the entire file, which was not before the Commission when it
made its decision, could assist the Court. As a result of the Commission’s
refusal to produce the requested documents, Ms. Exeter filed a motion for the
production of the requested materials.
[4]
In her notice of motion seeking production, Ms.
Exeter specified that she was particularly interested in obtaining a 47 page
document sent to the Commission by her former employer in response to her
complaint.
[5]
As a result, the Commission disclosed the employer’s
response as a courtesy to Ms. Exeter. It advised Ms. Exeter that the response
was received in the course of gathering information in preparation for its investigative
report; the response was not before the Commission when it made the decision to
dismiss Ms. Exeter’s complaint. Consequently, the Commission took the position
that it was not subject to production.
[6]
For reasons cited as 2013 FC 779, a judge of the
Federal Court dismissed Ms. Exeter’s motion for production and ordered her to
pay costs in the amount of $300 forthwith. The Judge concluded that Ms. Exeter
was engaged in a “fishing expedition”. The Judge was not persuaded to depart
from the general rule that on application for judicial review the tribunal
record should contain only the documents that were before the decision-maker.
[7]
This is an appeal from an order of the Federal
Court denying Ms. Exeter’s request for production of the Commission’s entire
file.
[8]
Ms. Exeter challenges the Judge’s decision on
five grounds, arguing that the Judge:
a)
Misapprehended the nature of her request for
production;
b)
Ignored crucial evidence of the Commission’s
deceptive practices and interference;
c)
Provided inadequate reasons because he failed to
deal with her arguments that the Commission had misconducted itself and was
biased;
d)
Misconstrued the relevance of the requested material;
and
e)
Made errors of law in misapplying relevant jurisprudence.
[9]
The respondent, the Attorney General of Canada,
initially argued that the appeal was moot on the ground that the employer’s
response had been given to Ms. Exeter. This argument was abandoned at the
hearing of the appeal. Ms. Exeter was notified the argument would be withdrawn
the night before the hearing. On the merits of the appeal, the Attorney General
argues that in an application for judicial review only the documents actually
before the decision-maker are subject to production.
[10]
Despite Ms. Exeter’s detailed submissions, we have
concluded that this appeal should be dismissed for the reasons that follow.
[11]
Ms. Exeter attacks the decision because the
Judge did not grapple with the central thesis of her argument: she says that
the Commission has misconducted itself and is biased, such that the tribunal
record should be expanded to contain material that would establish these
allegations. Her five grounds of appeal all address the failure of the Judge to
directly deal with her submissions.
[12]
It would have been preferable for the Judge to
have dealt expressly with each of Ms. Exeter’s submissions. That said, we
infer from the Judge’s reference to a “fishing expedition” and from his award
of costs that the Judge was not persuaded that the Commission had misconducted
itself or was biased so as to justify expanding the tribunal record.
[13]
Ms. Exeter points to three examples of what she
characterizes to be misconduct on the part of the Commission:
1.
The Commission misled her when it advised that
her former employer’s submission was not before the decision-maker.
2.
When the Commission filed the employer’s
response to her complaint in the Federal Court, it provided a different version
of the document to Ms. Exeter.
3.
The Commission misled her when it advised that
her former employer did not file any reply submission and it deprived her of
cross-disclosure of that submission.
[14]
In our view, for the following reasons, Ms.
Exeter failed to establish it was more likely than not that the Commission
misconducted itself or was biased.
[15]
First, Ms. Exeter has failed to substantiate her
allegation that her former employer’s response to her complaint was before the
decision-maker. The fact that an attachment to the employer’s response was
before the decision-maker does not prove that the response itself was before
the decision-maker.
[16]
Second, the employer’s response to the complaint
consisted of a fax cover sheet, a three-page letter responding to the complaint
and three attachments. The attachments were documents already in Ms. Exeter’s
possession. In total, the employer submitted 47 pages of material to the
Commission. The employer faxed this package to Ms. Exeter. She did not receive
the first and third page of the employer’s letter; she received two copies of
the second page of the letter. These omissions are obvious on even a casual
review of the document.
[17]
We do not accept that this evidences any intent
to deceive Ms. Exeter. No one could be deceived. The missing pages and multiple
copies of page 2 are wholly consistent with accidental glitches in the process
of faxing the material to Ms. Exeter.
[18]
Finally, when the employer received the
investigator’s report it was offered the opportunity to respond to the report.
The employer responded by e-mail stating that:
With respect to
these claims filed by Ms. Exeter, I would like to confirm that the Employer has
nothing further to submit in terms of rebuttal. We would ask that the
Commission continue to consider the objections already filed and would like to
emphasize that we continue to feel that Ms. Exeter’s complaints should not be
dealt with as indicated in our filed objections.
Thank you for
providing Statistics Canada with the opportunity to respond. Should you require
further information please do not hesitate to get in touch with me.
Thank you,
[19]
A copy of this e-mail was sent to Ms. Exeter for
her information only. She states the Commission misled her by initially stating
the employer did not file any reply.
[20]
In our view, the difficulty encountered with
this e-mail flows from how it is characterized. While the e-mail was sent after
the employer received the investigator’s report, and to that extent was a kind
of reply, it had no substantive content. It added nothing to the employer’s
original response. Because there was no new content there was nothing
Ms. Exeter needed to reply to. Ms. Exeter was not deprived of
cross-disclosure and no misconduct has been established on the part of the
Commission.
[21]
Because Ms. Exeter has failed to provide cogent
evidence of misconduct or bias on the part of the Commission, the Judge did not
err by dismissing her request for production of the Commission’s entire file.
It follows we would dismiss the appeal.
[22]
The Attorney General seeks costs of $1,400 plus
disbursements of $270.18. Ms. Exeter also asks for costs based on the principle
that when an application raises a novel question of law which is of public
interest, the party raising that question should be entitled to costs
regardless of the outcome.
[23]
The legal and factual issues raised by Ms.
Exeter’s appeal are not novel and the case does not involve issues of
importance that extend beyond the immediate interest of Ms. Exeter. Because the
appeal will be dismissed, we would not award costs to Ms. Exeter. In view of
the lateness of the withdrawal of the Attorney General’s argument that the
appeal was moot, we would not award costs to him.
“Eleanor
R. Dawson”
“A.F. Scott”
“I agree.
Wyman W. Webb J.A.”
Email this Content