Docket: A-141-13
Citation:
2015 FCA 10
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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MICHÈLE
BERGERON
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
Ms. Bergeron appeals from the judgment dated
March 25, 2013 of the Federal Court (per Justice Zinn): 2013 FC 301.
[2]
In that judgment, the Federal Court determined
two applications for judicial review. In those applications, Ms. Bergeron
sought to set aside a decision of the Canadian Human Rights Commission. In that
decision, the Commission dismissed two human rights complaints Ms. Bergeron made
under the Canadian Human Rights Act, R.S.C. 1985, c. H-6. In the
Commission’s view, they had already been addressed and remedied in two
grievances Ms. Bergeron brought.
[3]
In the Federal Court, Ms. Bergeron succeeded in
one of her applications for judicial review (file T-316-12). The respondent did
not appeal to this Court. That matter is not before us.
[4]
The other application for judicial review
brought by Ms. Bergeron (file T-315-12) is before us. The Federal Court
dismissed Ms. Bergeron’s application. She now appeals to this Court. She
alleges that the Commission’s decision must be set aside because it is
unreasonable. She adds that the Commission’s investigation was not sufficiently
thorough and so the Commission’s decision was the product of procedural
unfairness.
[5]
In my view, the Commission’s decision was both
reasonable and procedurally fair. Therefore, I would dismiss the appeal with
costs.
A.
The facts
(1)
The taking of leave
[6]
Ms. Bergeron was a lawyer at the Department of
Justice from March 1999 to May 2001. She developed chronic fatigue syndrome.
The Department granted her sick leave, disability leave and, later, extensions
to her leave. During her leave, she received long-term disability payments.
(2)
Discussions about a return to work
[7]
In 2005, roughly four years later after her
leave began, Ms. Bergeron raised the possibility of returning to work with the
Department. Her manager received a medical certificate supporting her return to
work.
[8]
The Department sent Ms. Bergeron to a Health
Canada physician for an assessment. After receiving input, that physician recommended
that Ms. Bergeron should gradually return to full-time work over a period of
seven months.
[9]
Ms. Bergeron’s physician and her
psychiatrist commented on this return-to-work plan. Her physician agreed with
the plan for the most part; he wanted monthly health assessments to be included
in the return-to-work schedule. Ms. Bergeron’s psychiatrist found the
recommendation of the Health Canada physician “eminently
reasonable and fair.”
[10]
With these comments, the Health Canada physician
provided his final recommendation to the Department of Justice. He maintained
his original recommendation that Ms. Bergeron return to work but added that if
she could not fulfil her work requirements or if “additional
concerns” arose, she should stop work.
[11]
Ms. Bergeron had concerns about that addition to
the recommendation. She also expressed concern about the date of her return to
full-time work. Her physician echoed those concerns. Her psychiatrist,
originally satisfied with the proposal, expressed a preference for more flexibility
in the return-to-work plan. However, the Health Canada physician did not change
his recommendation.
[12]
Matters stood there until 2007. In March, April,
and August 2007, a manager at the Department invited Ms. Bergeron to meet and
discuss her return to work. Ms. Bergeron refused these invitations. The
proposed date of one of the meetings was too soon. And she wanted to have an
agreement in place before returning to work.
[13]
Further, in July and August 2007, the manager
sent letters proposing dates for Ms. Bergeron’s return to work. Ms. Bergeron refused
to agree to any dates because she felt she would be putting her health at risk.
(3)
The Department’s final offer
[14]
In May 2008, the Department gave Ms. Bergeron an
offer to return to work on the basis of the recommendation of the Health Canada
physician. This was a final offer, in the sense that the Department informed
her that if she did not accept it, her position would be filled by someone
else. As matters turned out, this was not the last offer the Department made.
[15]
The Department’s May 2008 offer removed all
references to full-time hours and stated that any decision to stop work would
be made only after consulting with the human resource department, the insurance
company, and Ms. Bergeron’s physicians.
[16]
Ms. Bergeron rejected this offer. At the end of
June 2008—seven years after Ms. Bergeron had been away from work—the Department
informed her that it intended to fill her position.
(4)
Ms. Bergeron starts proceedings
[17]
In response, Ms. Bergeron filed two grievances
with the Department and filed two complaints with the Commission under the Canadian
Human Rights Act. For present purposes, only the grievance and the
complaint that is the subject-matter of the Federal Court’s decision under
appeal—her complaint of September 26, 2008—shall be described.
(5)
The grievance and the relevant complaint
compared
[18]
The grievance and the relevant complaint cover
essentially the same subject-matter:
•
The grievance.
Ms. Bergeron complained of her manager’s “on-going
discriminatory conduct” since 2005, in particular the manager’s “consistent and persistent failure to provide [her] with
ability-appropriate accommodations.” She also complained about the
Department’s actions in staffing her position. She founded the grievance “on the application of Sections 2, 3, 7, 14(1)(c) and
15(2) of the Canadian Human Rights Act.” In submissions filed in
support of the grievance, she characterized the Department’s failure to
accommodate her return to work and the decision to staff her position as “disciplinary action.” She sought the cessation of the
Department’s efforts to staff her position, restoration to her position with a
view to discussing “an approach to this issue which is
equitable, acceptable to both parties and non-discriminatory in nature,” and
compensatory relief.
•
The complaint.
Ms. Bergeron alleged that the Department discriminated against her on the basis
of disability by failing to accommodate her and by staffing her position.
Specifically, the Department refused to allow her to come back to work on the
basis of the plan she developed with her physician and psychiatrist. She also
attacked a Treasury Board policy that maintained disabled persons on a priority
staffing list for only one year as discriminatory. She cited various sections
of the Canadian Human Rights Act. She said that the discrimination
caused her mental distress and aggravated her physical symptoms.
(6)
Events following the launching of proceedings
[19]
In February 2009, after Ms. Bergeron had issued
her complaint and launched her grievance, the Department extended her leave
period for another two months and offered her a position in her old unit and a
return to work based on her own physician’s plan. She could consult a physician
of her own choice regarding the return-to-work plan. In exchange, the
Department asked her to discontinue her various proceedings. Ms. Bergeron
refused.
(7)
The relevant grievance decision
[20]
The grievance officer, the Associate Deputy
Minister of Justice, found no violation of the Canadian Human Rights Act.
However, she upheld Ms. Bergeron’s grievance in part.
[21]
For Ms. Bergeron, this was no small win. It will
be recalled that Ms. Bergeron sought the cessation of efforts to staff her
position and restoration to her position in the Department with a view to
discussing “an approach to this issue which is
equitable, acceptable to both parties and non-discriminatory in nature.”
The grievance officer essentially granted that relief: she authorized a further
five month period of leave without pay to allow discussions to take place
concerning a return-to-work plan. She placed no restrictions on the return-to-work
plan that Ms. Bergeron could propose and could discuss with the Department.
[22]
Ms. Bergeron did not accept this. Instead, two
days before her recently-extended leave expired, she demanded that the
Department pay damages and costs.
(8)
The grievance decision becomes final
[23]
Ms. Bergeron’s union declined to exercise its
right under the Public Service Labour Relations Act, S.C. 2003, c. 22 to
refer her grievance to adjudication.
[24]
Ms. Bergeron could have referred her grievance
to adjudication but she did not. As mentioned above, Ms. Bergeron characterized
the Department’s failure to accommodate her and to fill her position as a “disciplinary action” and “disguised
discipline.” An employee subject to disciplinary action can refer her
grievance against that disciplinary action to adjudication without the union’s
support or representation as long as the grievance does not involve the
interpretation or application of a collective agreement or arbitral award: Public
Service Labour Relations Act, section 209. Since neither the union nor Ms.
Bergeron referred the grievance to adjudication, the decision of the grievance
officer became final. Ms. Bergeron has never explained why she did not take her
grievance further.
(9)
A further offer
[25]
In June 2010, the Department offered Ms.
Bergeron the options of resigning, retiring or applying for early retirement on
medical grounds. She rejected all of these options. In October 2010, the
Department terminated Ms. Bergeron’s employment.
(10)
The Commission’s investigation of the complaint
[26]
The Commission assigned an investigator to look
into Ms. Bergeron’s complaint. The investigator invited the parties to make
submissions on whether the grievance process adequately addressed the issues
raised in the complaint. If so, then the complaint would be “trivial, frivolous, vexatious or…in bad faith” within
the meaning of paragraph 41(1)(d) of the Canadian Human Rights Act.
The investigator specifically asked the parties to address eight relevant
factors.
[27]
Submissions of the parties followed. The
investigator considered the submissions and issued a report. The report
recommended that the complaint be dismissed under paragraph 41(1)(d) of
the Canadian Human Rights Act because, in the words of the Act, the “allegations of discrimination in the complaint were
addressed through a review procedure otherwise reasonably available to the
complainant.”
(11)
Events following the investigator’s report
[28]
The investigator invited submissions on the
report. Ms. Bergeron filed two sets of submissions.
[29]
The Commission appointed a conciliator to try to
settle the complaint. The conciliation was unsuccessful.
[30]
After the unsuccessful conciliation, Ms.
Bergeron asked for a further opportunity to file submissions on the investigator’s
report. Although the parties had already exchanged submissions, the Commission
granted Ms. Bergeron’s request. She filed a further ten pages of submissions on
the investigator’s report.
(12)
The Commission’s decision
[31]
The investigator’s report, the parties’
submissions and some relevant documents were forwarded to the Commission for
decision.
[32]
The Commission accepted the recommendation of
the investigator, adopting the analysis portion of the investigator’s report,
and dismissed the complaint under paragraph 41(1)(d) of the Canadian
Human Rights Act. In the Commission’s view, the grievance procedure
adequately addressed the issues raised in the complaint.
(13)
Judicial review proceedings in the Federal Court
[33]
Ms. Bergeron applied to the Federal Court to set
aside the Commission’s decision. Her primary ground of attack was the
unreasonableness of the Commission’s decision.
[34]
The Federal Court conducted reasonableness
review of the Commission’s decision. In assessing whether the Commission’s
decision fell within a range of acceptable and defensible outcomes, it held
that the range of acceptability and defensibility was quite broad. In its
words, the Commission should be given “great latitude”
in assessing whether another procedure, here the grievance proceedings, adequately
addressed the issues in the complaint (at paragraph 39).
[35]
The Federal Court examined the evidentiary
record and the investigator’s report and concluded that the outcome reached by
the Commission was acceptable and defensible. In its view, the evidentiary
record “amply support[ed]” the Commission’s
decision (at paragraph 41):
While the Commission’s reasons in the First Decision as contained only
in the letter given to the parties are far from perfect; the record before it
and, in particular, the Section 40/41 Report prepared for the First Complaint,
amply supports its conclusion. Through her First Grievance, Ms. Bergeron had
raised virtually the same issues as she raised in the First Complaint; she had
asked for virtually the same relief; she had the opportunity to present her
case (although she did not even fully avail herself of that right); she
received a decision which made a finding on her allegations that there was a
failure to accommodate (although, largely because of her own delay, it dismissed
them); and she received another “let’s negotiate” back-to-work offer which
evidenced that, in fact, the accommodation process was still on-going and that
therefore, in law, her complaint was not yet ripe.
[36]
The Federal Court acknowledged that the complaint
differed from the grievance in one respect: it raised the issue whether a
Treasury Board policy of “maintaining disabled persons
on the priority list for only one year” was discriminatory. This
was not part of the grievance. However, to the Federal Court, this was of no
consequence (at paragraph 42):
…Ms. Bergeron’s submissions in response to the Section 40/41 Report
prepared for the First Complaint did not seriously pursue the argument that the
Treasury Board policy would be dealt with if her complaint was dismissed; nor
was that issue pursued by Ms. Bergeron in this judicial review. Thus, in
addition to the fact that whether the exact issues were raised in both
processes is but one factor in the 41(1)(d) analysis, the issue of the
Treasury Board policy is of negligible significance in this Court’s review of
the Commission’s decision.
[37]
In the Federal Court, Ms. Bergeron submitted
that the grievance process was not independent: the grievance officer was the
Associate Deputy Minister of Justice. The Federal Court rejected her submission
(paragraph 43):
Moreover, although at all times Ms. Bergeron has complained that the
grievance process was not independent and thus cannot be considered to have
adequately addressed her complaints, there was no evidence that Ms. Miller was
biased or did not decide the grievances impartially; nor, in these
circumstances, is the alleged lack of independence in the grievance process
sufficient to render the Commission’s decision unreasonable: the alleged
deficiencies are speculative, and, again, only relate to one factor in the
above-mentioned list of factors. Most if not all of the other factors weighed
in favour of dismissing the complaint.
[38]
The Federal Court concluded that the
Commission’s decision fell within a range of acceptable and defensible outcomes
and was reasonable. It dismissed Ms. Bergeron’s application for judicial
review.
[39]
Ms. Bergeron now appeals to this Court. She
submits that:
(1)
the Commission’s decision on the merits is
unreasonable; and
(2)
the Commission did not act in a procedurally
fair manner because it failed to investigate her complaint thoroughly.
B. Analysis
(1) The
reasonableness of the Commission’s decision on the merits
[40]
On appeal, first we must assess whether the
Federal Court properly chose reasonableness as the standard of review: Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at
paragraphs 45-47.
[41]
The parties both submit that the Federal Court
properly chose reasonableness as the standard of review. I agree. The Commissioner’s
decision was a preliminary screening decisions involving fact-based discretion
with elements of expertise and specialization. More will be said about this
below when discussing the margin of appreciation to which the Commissioner is
entitled. For present purposes, decisions of that sort are presumed to be
subject to reasonableness review: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, above at paragraphs 51 and 53. I note that relatively
recently the Supreme Court also applied the reasonableness standard when
reviewing a preliminary screening decision of a provincial human rights
commission: Halifax (Regional Municipality) v. Nova Scotia (Human Rights
Commission), 2012 SCC 10, [2012] 1 S.C.R. 364.
[42]
Having found that the Federal Court selected the
appropriate standard of review—here, reasonableness—this Court must now determine
whether the Federal Court properly concluded that the Commissioner’s decision
was reasonable. In other words, we are to step into the shoes of the Federal
Court and conduct reasonableness review ourselves to see if we agree: Agraira,
above at paragraphs 45-47.
[43]
It is now trite that reasonableness review
requires us to assess whether the outcome reached by the administrative
decision-maker, here the Commission, falls within a range of acceptability and
defensibility: Dunsmuir, above at paragraph 47.
[44]
The Supreme Court in Dunsmuir deployed
the idea of a range of acceptability and defensibility but offered no comments
concerning the nature of the range. By its nature, a range can be broad or
narrow. However, later Supreme Court cases have confirmed the idea that the
range can be broad or narrow depending on the circumstances: Catalyst Paper
Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at
paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59; McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013]
3 S.C.R. 895 at paragraphs 37-41.
[45]
In the case at bar, the range—or as some cases
put it, the margin of appreciation afforded to the Commission—is quite broad
owing to the factual and policy-based task of the Commission: Canada
(Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014
FCA 56, 455 N.R. 157 at paragraphs 90-99. The
Federal Court was correct to state (at paragraph 39) that the Commission gets “great latitude” when courts review decisions such as
this. This Court has previously said that very thing: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C. 392 at paragraph 38 (screening decisions under section 41 are to be “reviewed with a high degree of deference”).
[46]
As is shown by the investigator’s report, the
Commission had to consider several relevant factors. These factors are mainly
questions of fact or factually-suffused questions of mixed fact and law:
•
What is the nature
of the alternate redress mechanism that was used?
•
Was there a
hearing on the issues?
•
Was the
complainant permitted to present his or her case?
•
Was the
decision-maker independent?
•
What did the
decision-maker decide?
•
Did the decision
address all of the human rights issues raised in the complaint?
•
What remedies were
requested in the grievance or other review procedure?
•
If the complainant
was successful (or partially successful) under the alternate redress procedure,
what remedies were awarded?
Importantly, Ms. Bergeron does not challenge
the reasonableness or otherwise of the Commission’s use of these factors in its
assessment.
[47]
Further, in considering the breadth of the margin
of appreciation to which the Commission is entitled, I note that the
Commission’s task under paragraph 41(1)(d) is to screen out complaints
where adequate redress elsewhere has been had. The concept of adequacy is
highly judgmental and fact-based, informed in part by the policy that the
Commission should not devote scarce resources to matters that have been, in
substance, addressed elsewhere or that could have been addressed elsewhere. On
this last-mentioned point, a failure to pursue adequate redress elsewhere or to
pursue that adequate redress to its full extent can be invoked under paragraph
41(1)(d).
[48]
In this case, the Commission’s decision was well
within its margin of appreciation and cannot be set aside. As the Federal Court
noted, the record supports the Commission’s decision that the grievance
proceedings were an adequate recourse and so the decision was acceptable and
defensible. I note the following:
•
The grievance and the complaint are essentially
the same (see paragraph 18, above).
•
The grievance allowed for further discussions to
take place, discussions that Ms. Bergeron declined to pursue; pursuit of those
discussions might have resulted in a return-to-work plan and other
accommodations.
•
The grievance officer considered the allegations
of discrimination which are substantially similar to those in the complaint.
The complaint contains the added element of the Treasury Board policy but this
is of no moment for the reasons given by the Federal Court at paragraph 42.
•
There was no evidence the grievance officer was biased or did not decide the grievances
impartially. In this regard, I adopt the reasoning of the Federal Court at
paragraph 43.
•
The only evidence Ms. Bergeron offers concerning
the grievance officer’s lack of independence is her status as Associate Deputy
Minister. But decisions by departmental officials are not necessarily deficient
merely because of their status as departmental officials: Vaughan v. Canada,
2005 SCC 11, [2005] 1 S.C.R. 146 at paragraph 37.
•
To the extent that
the grievance officer lacked sufficient independence because she was a senior
official in the Department, Ms. Bergeron could have had access to independent
adjudication by proceeding from the grievance officer’s decision to independent
adjudication under section 209 of the Public Service
Labour Relations Act: see paragraph 24, above. If an independent adjudicator mattered to her, she could have taken
that step. But she did not.
•
The independence of the grievance officer is
just one of several factors that the Commission had to factually assess,
balance and weigh. Absent some unusual consideration, reviewing courts afford a
good margin of appreciation to administrative decision-makers over their
factual assessments, balancings and weighings.
[49]
Another consideration supporting the
reasonableness of the Commission’s decision is the fact that the list of
factors considered by the Commission—set out at paragraph 46 above—is entirely
consistent with the factors set out by the Supreme Court in British Columbia
(Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R.
422.
[50]
In Figliola, the Supreme Court identified
three factors to be considered when assessing whether a human rights complaint
has been appropriately dealt with in an alternative process (at paragraph 37):
•
Was there concurrent jurisdiction to decide
human rights issues?
•
Was the legal issue in the alternate forum
essentially the same as the legal issue in the human rights complaint?
•
Did the complainant have the opportunity to know
the case to meet and have a chance to meet it?
[51]
The Commission’s decision is consistent with
these requirements. The grievance officer had the jurisdiction to decide human
rights issues under subsection 208(2) of the Public Service Labour Relations
Act. She had the ability to grant adequate relief. The issues in the
grievance were essentially the same as those raised in the complaint. And Ms.
Bergeron had an opportunity to know the case to meet and the chance to meet it.
As the factual summary earlier in these reasons shows, she was able to submit
multiple submissions at various times.
[52]
In support of her submissions on reasonableness,
Ms. Bergeron notes that the grievance officer was not an expert in human
rights. She adds that the investigator’s report wrongly said that the grievance
officer was the Department’s human rights expert.
[53]
While the report indeed did err in this respect,
there is no basis for concluding that the grievance officer was insufficiently
knowledgeable to deal with the human rights issues in the grievance. Indeed, reviewing
the grievance officer’s reasons, there is no reason to believe that she was
incapable—far from it. And there is no legal requirement that human rights
issues be placed only before experts and, in particular, only before members of
human rights commissions and tribunals. Rather, other administrative
decision-makers are allowed to deal with human rights issues. This furthers the
objective of fostering a general culture of respect for human rights in the
administrative justice system. See generally Figliola at paragraph 37.
[54]
Ms. Bergeron also urges the authority of Berberi
v. Canada (A.G.), 2013 FC 99 upon us. In that case, like here, the
Commission decided not to deal with certain human rights complaints because
they were, like here, the subject of grievances. In Berberi, the
grievances were withdrawn by her union at the third level. The Federal Court
set aside the Commission’s decision because it failed to consider the adequacy
of the grievance process.
[55]
In my view, Berberi is distinguishable on
its facts. Unlike Berberi, in this case an investigator’s report was before
the Commission. Unlike Berberi, the report analyzed, with reference to
certain factors, whether the grievance process dealt with the complaint. Also,
the grievance process did not arrive at a decision in Berberi; here, it
did. Here, the grievance officer looked at the essence of Ms. Bergeron’s human
rights complaints—the alleged lack of accommodation, how the return-to-work
plan was handled, and the filling of her position—and ruled on it, giving her
some relief. In this case—unlike Berberi—the Commission discharged its
statutory responsibility to consider the decision on the grievance and the
reasons for it and to assess whether it was an adequate recourse.
[56]
Ms. Bergeron also submits that the reasons of
the Commission were inadequate. She complains that the Commission issued only a
three page decision that quoted from the investigator’s report and only stated “perfunctorily” that her submissions were considered.
The reasons do not deal with all of the matters she raised in her submissions.
[57]
As is well-known, the adequacy of reasons is not
an independent ground for setting aside an administrative decision, but rather
part of the reasonableness analysis: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paragraph 14.
[58]
Further, the reasons of an administrative
decision-maker of this type in these circumstances need not address every last
matter raised in the submissions put to it:
Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A decision-maker
is not required to make an explicit finding on each constituent element,
however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin
District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p.
391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
(Newfoundland Nurses, above at
paragraph 16; see also Construction Labour Relations v. Driver Iron Inc.,
2012 SCC 65, [2012] 3 S.C.R. 405 at paragraph 3.)
[59]
Further, in assessing reasonableness, reviewing
courts are not limited to asking whether the reasons are acceptable and
defensible. Rather, reviewing courts are to assess whether the outcome reached
is acceptable and defensible: Dunsmuir, above at paragraph 48. In other
words, they must assess “whether the decision, viewed as a whole in the context
of the record, is reasonable”; Construction Labour Relations, above at
paragraph 3; Newfoundland Nurses, above at paragraph 15. There
are limits to this though. The Court cannot cooper up an outcome that the
Commission itself would not have reached: Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654 at paragraphs 54-55; Lemus v. Canada (Citizenship and
Immigration), 2014 FCA 114, 372 D.L.R. (4th) 567 at paragraphs 27-38.
[60]
Indeed, where “the
Commission adopts an investigator’s recommendations and provides no reasons or
only brief reasons,” the reviewing court can treat “the investigator’s report as constituting the Commission’s
reasoning” for the purposes of a screening decision under the Canada
Human Rights Act: Sketchley, above at paragraph 37. In this case, in
its reasons the Commission went further. It adopted the recommendation of the
investigator and the analysis section of the investigator’s report.
[61]
When viewed in light of the record, the
Commission’s reasons are not so sparse that this Court cannot engage in
reasonableness review: Leahy v. Canada (Citizenship and Immigration),
2012 FCA 227, [2014] 1 F.C. 766. Indeed, as the analysis of reasonableness
above shows, the Commission’s reasons have not frustrated the Federal Court or
this Court from conducting reasonableness review.
[62]
Viewing the Commission’s reasons in light of the
record confirms the reasonableness of its decision. This is not like Lemus,
above where there was a real concern about the reasonableness of the decision
stemming from the reasons of the decision-maker and the Court felt it could not
wade into the record to cooper up the outcome reached. The case before us is
different: the reasons of the Commission alone do not raise any particular
concerns and the record unequivocally supports the outcome the Commission
reached. To borrow the words of the Federal Court (at paragraph 41), the record
“amply supports” the outcome.
[63]
In this case, the brevity of the reasons does
not create concerns about transparency or intelligibility: Dunsmuir,
above at paragraph 47. The reasons, especially viewed in light of the record
and the investigator’s report, are sufficient for Ms. Bergeron to understand
how the Commission came to its decision: English-Baker v. Canada (Attorney General), 2009 FC 1253 at paragraph 28.
[64]
For the foregoing reasons and also for the
reasons set out by the Federal Court at paragraphs 41-43 of its reasons, I
conclude that no grounds exist for setting aside the Commission’s decision on
the basis of reasonableness.
(2)
The procedural fairness issue: the thoroughness
of the investigation
[65]
Ms. Bergeron submits that the Commission’s
investigation was not thorough enough. She says, with some support in the case
law, that this is a procedural fairness question that is to be reviewed on a
standard of correctness. She adds that although she made submissions on the
inadequacy of the investigation to the Federal Court, the Federal Court did not
deal with them. The respondent contests this.
[66]
The reasons of the Federal Court do not reveal
any specific analysis of the thoroughness of the investigation. Therefore, I
shall consider the issue afresh.
[67]
The law concerning the standard of review for
procedural fairness is currently unsettled. The unsettled nature of that law is
shown by the Supreme Court’s recent decision in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, a procedural
fairness case. In that decision, the Supreme Court declared, without
elaboration, that the standard of review is correctness but just ten paragraphs
later it found that some deference should be owed to the administrative
decision-maker on some elements of the procedural decision: at paragraphs 79
and 89.
[68]
Some cases of this Court have fastened onto the
Supreme Court’s statement of correctness in Khela without noting the
later words of deference: see, e.g., Air Canada v. Greenglass,
2014 FCA 288, 468 N.R. 184 at paragraph 26. Those cases have not referred to
other cases of this Court that suggest that the standard is not purely
correctness and that some deference can come to bear.
[69]
For example, this Court has spoken of
proceeding under correctness review but in a manner “respectful
of the [decision-maker’s] choices” with
“a degree of deference”: Re:Sound v. Fitness Industry Council
of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42. And this Court has also upheld reasonableness review, but on the
basis of a variable margin of appreciation being afforded to the decision-maker
(as explained above), sometimes a wide one and sometimes no margin at all: Forest
Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA
245, 465 N.R. 152; and for a defence of this position see my
dissenting reasons in Maritime Broadcasting System Limited v.
Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167.
And in this very context—whether procedural fairness was infringed by an
insufficiently thorough investigation under the Canadian Human Rights Act—there
is authority for the proposition that deference to the fact-based judgment of
the Commissioner is warranted: Slattery v. Canada (Human Rights
Commission), [1994] 2 F.C. 574, 73 F.T.R. 161 (T.D.) at paragraphs 55-56,
aff’d (1996), 205 N.R. 383 (C.A.).
[70]
One might also query whether a failure to
investigate thoroughly under the Act is a procedural defect, triggering
whatever standard of review applies to procedural matters. A decision based on
a deficient investigation can be characterized as one that is not substantively
acceptable or defensible because it is based on incomplete information, thereby
triggering the standard of review for substantive defects governed by Dunsmuir,
above. As was the case in Forest Ethics, above, the line between a
procedural concern and a substantive concern can be a blurry one. As this Court
explained in Forest Ethics, there is much to be said for the view that
the same standard of review—reasonableness with variable margins of
appreciation depending on the circumstances (as described earlier in these
reasons)—should govern all administrative decisions.
[71]
So what we have right now is a jurisprudential
muddle. And now is not the time to try to resolve it. For one thing, we have
not received submissions on the issue in this case. For another, with so many
conflicting decisions, perhaps only a reasoned decision of the Supreme Court
can provide clarity.
[72]
In any event, as will be seen, it is not
necessary to resolve this issue here. On this record, even on a standard of
correctness, there is no ground to interfere with the Commissioner’s decision
on the basis of procedural fairness.
[73]
Ms. Bergeron submits that the Commission
committed procedural error by not investigating the matter thoroughly. She
relies upon Federal Court decisions that suggest that Commission investigations
must be “thorough and complete” and even “as thorough as possible”: Gravelle v. Canada (Attorney General), 2006 FC 251, 60 Admin. L.R. (4th) 179 at paragraph 36; Canadian
Broadcasting Corp. v. Syndicat des communications de Radio-Canada, 2005 FC
466, 272 F.T.R. 116 at paragraphs 36-37.
[74]
In my view, these snippets from the Federal
Court decisions—not binding upon us—should not be relied upon as requirements
for all investigations in all contexts. Taken in the abstract, they can be
misleading. While an investigation must be thorough, an investigator need not
pursue every last conceivable angle:
•
The degree of thoroughness required of an
investigation depends on the circumstances of each case. In some cases, one or
more facts may resolve the issue under investigation to the investigator’s
satisfaction, rendering continued investigation unnecessary.
•
Perhaps related to the last point, thoroughness
must also be qualified by the need for a workable and administratively
effective system for reviewing complaints under the Act: Slattery
(T.D.), above at paragraph 55, aff’d C.A., above; Shaw v. Royal Canadian
Mounted Police, 2013 FC 711, 435 F.T.R. 176 at paragraph 31. In some cases,
at some point, the utility of further investigation is nil.
•
Only “fundamental
issues” need be investigated so that complaints can receive the “broad grounds” of the case against them. Put another
way, a deficient investigation warranting relief is one where there has been an
“unreasonable omission” in the investigation or
the investigation is “clearly deficient”: Slattery
(T.D.), above at paragraphs 56 and 67-69, aff’d C.A., above. For example, a
failure to investigate obviously crucial evidence where an omission has been
made that cannot be compensated for by making further submissions will result
in a finding of lack of procedural fairness: Sketchley, above.
•
In a section 41 matter, the extent of
investigation is limited. An investigator is not to weigh evidence. Rather, the
investigator’s task is to uncover the facts relevant to the section 41 matter.
See generally McIlvenna v. Bank of Nova Scotia, 2014 FCA 203, 466 N.R.
195.
[75]
The Commission considered Ms. Bergeron’s
submissions, including those she submitted after the investigator issued her
report. The submissions she filed after the report largely repeated information
she had previously given the investigator. The investigator’s report itself
addressed a number of Ms. Bergeron’s submissions and materials she provided:
Report, paragraphs 16(d)-(h) and 18-21.
[76]
To some extent, Ms. Bergeron’s submissions smack
of a complaint that the investigator’s report did not reference everything she
had submitted. But an investigator is not required to refer to everything: Shaw,
above at paragraph 27; Anderson v. Canada (Attorney General),
2013 FC 1040, 71 Admin. L.R. (5th) 1 at paragraph 55. The test in Slattery
(T.D.), above, aff’d C.A., above, is whether there is an “unreasonable omission” in the investigation or the
investigation is “clearly deficient.” The
investigator’s report need not be an encyclopaedia of everything submitted. The
focus must be on the substance of the investigator’s findings, not matters of
form.
[77]
In this case, the process was fair. The
investigator was neutral and sufficiently thorough for the purposes of the
issue before her, namely whether the grievance was an adequate recourse. She
repeatedly sought submissions. Indeed, Ms. Bergeron was allowed to make further
submissions well after submissions were formally closed, after the conciliation
failed. The investigator prepared a report that identified the issues, the
parties’ positions, the factors to be applied and the information gathered from
the parties. The Commission based its decision on the report and adopted some
of the analysis in it.
[78]
For the foregoing reasons, I conclude that there
is no ground for setting aside the Commission’s decision on the basis of
procedural unfairness.
C. Proposed disposition
[79]
Like the Federal Court, I have not been
persuaded that there are any grounds for setting aside the Commission’s
decision. Accordingly, I would dismiss the appeal with costs.
"David Stratas"
“I agree
Johanne Trudel
J.A.”
“I agree
Wyman W. Webb
J.A.”
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