Date: 20170113

Docket: T-1766-14

Citation: 2017 FC 43

[ENGLISH TRANSLATION]

Ottawa (Ontario), January 13, 2017

Present: St-Louis J.

JUDGMENT AND REASONS

I.                    Nature of the case

[1]               Ms. Marie Mache-Rameau, the applicant, is seeking judicial review of the decision made by the Canadian Human Rights Commission [the Commission] on July 16, 2014, concluding that the review of her complaint [the Complaint] by the Canadian Human Rights Tribunal [the Tribunal] is not justified, given the circumstances. The Commission based its decision on sub-paragraph 44(3)b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6 [the Act], reproduced in the annex.

[2]               Ms. Mache-Rameau is asking the Court to both conclude that the Commission's decision is unreasonable and breaches the principles of procedural fairness and order the Commission to conduct another investigation. 

[3]               Ms. Mache-Rameau is specifically attacking the investigation process that preceded the Commission's decision. She is essentially claiming that the investigator erred both by deciding not to investigate the allegation of breaching the memorandum of understanding because she did not consider the context of the first complaint and by limiting Ms. Mache-Rameau's motion record to a maximum of 10 pages.

[4]               As for the respondent, the Attorney General of Canada [AGC], he is essentially claiming that the Tribunal is not a court of competent jurisdiction to deal with the allegation of breaching the memorandum of understanding, that the first complaint was considered by the investigator, and that the 10-page limit does not breach the principles of procedural fairness.    

[5]               For the reasons explained below, the Court will dismiss the application for judicial review. In short, the Court concludes that the investigator did not err by opting not to address the allegation of breaching the principles of procedural fairness during her investigation, that the investigator reasonably considered the factual context of the first complaint as part of her investigation on the other allegations included in the complaint, and that imposing a 10-page limit on the representations is reasonable and fair.

II.                 Background and relevant facts

[6]               The decision made by the Commission, which is the subject of this application for judicial review, concerns the Complaint, signed by Ms. Mache-Rameau on May 28, 2012.  However, it is encompassed in a broader context, which began in 2003, and addressing this context seems relevant.

[7]               From 1990 to January 2014, Ms. Mache-Rameau worked for the Canadian International Development Agency [CIDA].  Though this Agency's name changed on June 26, 2013, the Court will nonetheless refer to it as CIDA—its former initialism—from this point on to facilitate reading this text.

[8]               On July 28, 2003, Ms. Mache-Rameau filed her first complaint of race-based employment discrimination (complaint #20031234) with the Commission against her employer, CIDA; and, in 2005, this complaint was forwarded to the Tribunal.

[9]               However, on November 29, 2006, the parties signed a memorandum of understanding before the complaint was dealt with, and the Tribunal closed the file as a result. In particular, this memorandum of understanding sets out the following at paragraph 6:

[TRANSLATION]

In the event that the complainant does not successfully complete [sic] the training within the first six months of her assignment at the Public Service Commission, the complainant returns to work for the respondent and holds the position of PE-3. The respondent pledges to offer the complainant 18 months of training. On the condition that positive results are obtained from the quarterly assessment—which is based on clear and precise objectives, and assessment criteria—the complainant will be appointed through an unannounced process at the end of the 18-month training period.

[10]           Furthermore, it is set out at paragraphs 15 and 16 of the memorandum of understanding, which is reproduced in the annex, that the parties consent to allowing this memorandum to be incorporated into an order from the Federal Court and that it be executed as is. It also sets out that the parties pledge to resume mediation in the event that a disagreement arises concerning the implementation of these conditions.

[11]           Shortly after signing this memorandum of understanding, Ms. Mache-Rameau was assigned to the Public Service Commission on an interim basis, where she held a position at level PE-04 for two years.

[12]           Upon her return to CIDA in February 2009, Ms. Mache-Rameau was reinstated into a level PE-03 position. She requested that the terms and conditions at paragraph 6 of the aforementioned memorandum of agreement be enforced, and—more specifically—to be appointed to a position at level PE-04. From July 2009 to January 2012, the parties were involved in a mediation process intended to resolve their dispute concerning the interpretation of the memorandum of agreement. On March 7, 2012, CIDA informed Ms. Mache-Rameau that she had been excluded from this process.

[13]           On April 18, 2012, at which time she still held a position at level PE-03, Ms. Mache-Rameau was informed that her position had been affected by a workforce adjustment.

[14]           On or around May 28, 2012, believing that she was still a victim of discriminatory treatment with respect to career advancement and feeling that CIDA was not complying with the memorandum of understanding dated 2006, Ms. Mache-Rameau filed the Complaint with the Commission (number 20120530).    

[15]           On May 29, 2012, Ms. Mache-Rameau obtained from the Federal Court an order confirming that the memorandum of understanding dated 2006 had been [translation] "incorporated into an order issued by the Federal Court."

[16]           On November 2, 2012, Ms. Mache-Rameau requested that the Federal Court issue a show cause order against the president of CIDA, who reportedly committed contempt of court (section 467 of the Federal Courts Rules, DORS/98 to 106). According to Ms. Mache-Rameau, the president of CIDA's refusal to promote her breached the memorandum dated 2006, which was incorporated into an order. 

[17]           Boivin J. (who is now a judge at the Federal Court of Appeal) dismissed the motion and concluded that Ms. Mache-Rameau did not prove prima facie that the president of CIDA failed to comply with the memorandum of understanding incorporated into an order. The Court indicates that paragraph 6 of the memorandum of understanding is at the crux of the matter; however, it also indicates that the parties are presenting differing interpretations of the same text, which therefore contains an ambiguity. Since the conduct of the parties was not clearly set forth in the text, the Court concluded that " the facts in this case do not allow the Court to find, as the applicant argued at the hearing, that the way the negotiations between the applicant and CIDA were conducted under paragraph 16 of the agreement constitutes contempt" (Rameau v Canada (Attorney General), 2012 FC 1286 at para 20).

[18]           In her Complaint, Ms. Mache-Rameau claims she was the victim of workforce discrimination because her employer continues to subject her to differential treatment due to her race, color, and national and ethnic origin. She also claims that retaliations and harassment were carried out against her for the same reasons, and also due to the first complaint filed in 2003. In particular, she claims that her employer breached the memorandum of understanding dated 2006 by refusing to recognize her skills and by systematically refusing to grant her any kind of promotion.

[19]           On March 21, 2013, the Commission issued its investigation report, which was used to determine whether Ms. Mache-Rameau's Complaint was vexatious. The report discusses the questions that the Federal Court had already reviewed; and, in particular, it states that the Complaint contains additional allegations that [TRANSLATION] "the issues concerning human rights raised by the complaint were not before the Court and [that] there are some allegations in the complaint that were not before the Court either."

[20]           On June 19, 2013, basing itself on this report and the subsequent observations made by the parties, the Commission decided that the Complaint was not vexatious pursuant to section 41 of the Act because it [translation] "contains allegations that were not dealt with by the Federal Court." On July 2, 2013, the Commission tasked an investigator with taking charge of the Complaint.

[21]           On January 8, 2014, the investigator had a discussion with Ms. Mache-Rameau and her lawyer. She did not inform them that the allegation of breaching the memorandum of understanding would not be encompassed by her investigation.

[22]           The investigator issued her report on March 27, 2014 [Investigation report]. In this report, she affirmed that she had reviewed all the documentation provided by the parties. When she wrote her report, the investigator decided to leave out the allegations concerning the breach of the memorandum of understanding dated 2006, considering that they had been addressed by another process. She thus confirms that her investigation concerned the allegations of retaliation and workplace discrimination, including the allegations related to the purported impossibility of obtaining a promotion or an appointment to some PE-4 or PE-5 level positions and the allegation to the effect that CIDA reportedly did not offer Ms. Mache-Rameau training intended to help her acquire the skills required for the position. 

[23]           The investigator recommended that the Commission—pursuant to sub-paragraph 44(3)b)(i) of the Act—dismiss the Complaint because, given the circumstances, its reviewal by the Tribunal was not justified.

[24]           On April 24, 2014, Ms. Mache-Rameau submitted representations in response to the Investigation report. Ms. Mache-Rameau limited her representations to the total of 10 pages  prescribed by the Commission and set out in section 9.4 of the Canadian Human Rights Commission Dispute Resolution Operating Procedures.

[25]           On July 16, 2014, following the Investigation report and given the circumstances, the Commission decided that the review of the Complaint carried out by the Tribunal was not justified. It based its decision on sub-paragraph 44(3)b)(i) of the Act.

[26]           This is the decision that Ms. Mache-Rameau is contesting before this Court.

[27]           It is also useful to mention that, on August 26, 2014, the Tribunal refused to take up the request Ms. Mache-Rameau addressed to the Court to interpret a part of the memorandum of understanding. On October 19, 2015, Roy J. of the Federal Court dismissed Ms. Mache-Rameau's application for judicial review, and he notably confirmed that the Tribunal has no jurisdiction to rule on the memorandum of understanding incorporated into an order made by the Federal Court (Rameau v Canada (Attorney General), 2015 FC 1180).

III.               The issue

[28]           The Court must first determine the appropriate standard of review, then answer the questions raised.

[29]           Ms. Mache-Rameau formulates the questions which the Court must answer as follows:

(1)               Is the Commission's decision marred by a mistake of law, which requires that it be cancelled?

(2)                Is the Commission's decision unreasonable?

(3)                Did the investigation process breach procedural fairness?

IV.              Positions of the parties

[30]           Ms. Mache-Rameau claims the following: (1) the Commission committed a mistake of law by not considering the issue of breaching the memorandum of understanding in light of the Federal Court's decision related to the motion for contempt of court; (2) The Commission made an unreasonable decision by adopting the reasons in the Investigation report, which was the result of a deficient, illogical, and incomplete investigation, and contrary to the Act's principles and values; (3) Procedural fairness and rigour were breached during the Commission's investigation.  

[31]           Ms. Mache-Rameau claims that a mistake of law must be addressed in accordance with the correctness standard (Walsh v Canada (Attorney General), 2015 FC 230 [Walsh] at para 20).  The decision to dismiss the complaint under sub-paragraph 44(3)b)(i) of the law represents an error of mixed fact and law that must be addressed in accordance with the reasonableness standard (Hicks v. Canadian National Railway, 2015 FCA 109 at para 11). Finally, Ms. Mache-Rameau claims that a clear breach of procedural fairness must result in the cancellation of the decision (Grover v Canada (National Research Council), 2001 FCT 687 at para 63 to 66, 69 to 71).

[32]           According to Ms. Mache-Rameau, the Commission erred by accepting the conclusion that the matters in question before the Federal Court on November 2, 2012, during the proceedings for contempt of court were the same as those in the Complaint. More specifically, Ms. Mache-Rameau submitted the following: (a) the Commission's decision to rule on the Complaint, which took place on June 19, 2013, did not limit the scope of the investigation, nor did it conclude that the issues before it and before the Federal Court were the same; (b) the contempt of court proceedings dealt with various issues, and the judicial considerations and the burden of proof are dissimilar; and (c) the investigator exceeded her jurisdiction by excluding issues related to the memorandum of understanding though these questions had not been excluded by the Commission.

[33]           In her factum, Ms. Mache-Rameau pleads that [translation] "the Commission has issued an unreasonable decision by adopting the grounds of an inadequate, illogical, and incomplete decision that is against the principles and values of the CHRA."

[34]           As part of her Complaint, Ms. Mache-Rameau claims that she did not undergo the training she was entitled to and that paragraph 6 of the memorandum of understanding was not complied with. In this respect, Ms. Mache-Rameau submits that the investigator disregarded the events that took place in 2009 and 2012 and that she erred by not considering the circumstances of the first complaint to asses the Complaint. The first complaint represents a point of comparison to assess the existence of similar facts or a continuous treatment model to deal with discrimination. Ms. Mache-Rameau states that the Investigation report does not explain why the context of and the allegations in the first complaint cannot be considered to be factual circumstances that are relevant to the Complaint. Since the Commission has not provided explanations for the refusal to take account of the memorandum of understanding, it is breaching its statutory duty to clearly and precisely explain the decision not to investigate the alleged breach of the memorandum of understanding.

[35]           According to Ms. Mache-Rameau, the decision not to investigate the alleged breach of a memorandum of understanding approved by the Commission adversely affects the integrity of the Commission's system and the ability to uphold human rights in Canada. Furthermore, it claims that the Act does not limit the Commission's jurisdiction to deal with unresolved allegations—even after having approved a memorandum of understanding—and that once this memorandum was incorporated into an order from the Federal Court, the Commission has a statutory duty, as set out in section 2 of the Act, to investigate a breach of the memorandum. 

[36]           In addition, the investigator erred by not studying the impact on Ms. Mme Mache-Rameau of not having been appointed to a PE-04 level position, in which she would have been protected. In her Complaint, Ms. Mache-Rameau does not contest the appointment processes for PE-05 or PE-04; rather, she claims CIDA did not comply with its duty to appoint her to a PE-04 level position under the memorandum of understanding. Thus, she says she is concerned by a matter of justice related to the positive consequences that could have resulted from an appointment to a PE-04 level position.

[37]           Finally, Ms. Mache-Rameau submits that the 10-page limit that was imposed prevented her from properly responding to all the mistakes made by the investigator. Indeed, Ms. Mache-Rameau claims that she could not include her first complaint nor the related investigation report, which the investigator did not request nor refer to. 

[38]           Only one conversation took place between the investigator and Ms. Mache-Rameau, who was accompanied by her lawyer. During this exchange, the investigator did not indicate that the allegation of a breach of the memorandum of understanding would not be encompassed by the investigation, depriving Ms. Mache-Rameau of the opportunity to file additional documents to support her position. As a result, the investigator did not meet Ms. Mache-Rameau's legitimate expectation of seeing this aspect taken into consideration as part of the investigation.

[39]           The AGC responds by saying that the Commission correctly decided that the Tribunal's review of Ms. Mache-Rameau's Complaint was not justified.

[40]           The first point raised by the AGC is the fact that neither the notice of application nor the applicant's factum contain allegations to the effect that either the investigator or the Commission allegedly incorrectly interpreted the evidence collected during the investigation or that they came to erroneous conclusions based on the facts that were submitted as evidence. He claims that (1) the Commission did not breach the principles of procedural fairness by limiting the length of Ms. Mache-Rameau's written representations; and (2) the Commission did not commit a reviewable error by limiting the scope of their investigation.

[41]           The AGC claims that Ms. Mache-Rameau is essentially contesting the Commission's imposition of a page limit for her written representations and the investigator's decision not to encompass details of the first complaint and the issues arising from the memorandum within her investigation. The AGC acknowledges that these allegations must be examined in accordance with the correctness standard, which represents both an alleged breach of procedural fairness and potential mistakes of law.

[42]           The AGC claims that it is not out of the ordinary for administrative decision makers to limit the number of pages that can be submitted by a party in a given context. He refers to the Court's decision in Phipps v Canada Post Corp, 2015 FC 1080, at para 39 and 40, in which Gleeson J. noted that the Commission could impose a page limit on the written representations submitted by the parties to preserve a functional and efficient process. This limit cannot be contested if it is uniformly applied. This position was confirmed by the Federal Court of Appeal (Phipps v Canada Post Corp, 2016 FCA 117).

[43]           The AGC indicates that the investigator did not ignore Ms. Mache-Rameau's first complaint because this first complaint appears in the timeline drawn up at paragraph 10 of the Investigation report, which represents the starting point for the analysis of the allegations of retaliations at paragraphs 58 and 61 and is identified at various points as part of the examination of the allegations of reprisals. According to the AGC, the investigator rightly decided not to examine the details of the complaint dated 2003, and it was appropriate to analyse the events that have occurred since. Furthermore, the AGC notes that Ms. Mache-Rameau did not indicate which specific items in the first complaint dated 2003 could have influenced the investigator's analysis of the Complaint.

[44]           Concerning the memorandum of understanding, the AGC claims that incorporating it into an order issued by the Federal Court limits the ability of the Commission or the Tribunal to rule on a potential breach. The AGC refers to paragraphs 38 to 40 of judge Roy's decision dated October 19, 2015 (Rameau v Canada (Attorney General), 2015 FC 1180).

[45]           Therefore, according to the AGC, Ms. Mache-Rameau is looking —once again— to compel the Commission to refer the issue of interpreting the memorandum of understanding to the Tribunal.

V.                 Standard of review

[46]           Ms. Mache-Rameau notes what she considers to be mistakes of law and breaches of procedural fairness on the part of the investigator and questions the reasonableness of the Commission's decision.

[47]           The Court adheres to the positions laid down by the parties and concludes that the mistakes of law must be examined in accordance with the correctness standard [Walsh at para 20]. Though uncertainty exists concerning the applicable standard of review in the context of breaches of procedural fairness (Bergeron v Canada (Attorney General), 2015 FCA 160 at para 67 to 71), the correctness standard—which is the most generous standard for the applicant—is appropriate in the circumstances (El-Helou v Canada (Courts Administration Service), 2016 FCA 273 at para 43).

[48]           As for the reasonableness of the decision, it is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." (Dunsmuir v Nouveau-Brunswick, 2008 CSC 9 at para 47).

VI.              Analysis

[49]           In response to the questions raised by Ms. Mache-Rameau, the Court considers that (A) the Commission did not commit a mistake of law by refusing to consider the issue of the breach of the memorandum of understanding; (B) the Commission did not make an unreasonable decision because neither the investigation nor the grounds for the Investigation report are inadequate, illogical, incomplete or against the principles and values of the Law; and (C) a breach of procedural fairness and rigour did not take place during the Commission's investigation.

[50]           The investigator's decision to dismiss the considerations related to the first complaint and the breach of the memorandum of understanding are central to this matter. It appears useful to address some earlier decisions made in the context of the dispute between the parties.

[51]           As noted earlier, on November 2, 2012, Judge Boivin, who was at the Federal Court at the time, dismissed Ms. Mache-Rameau's motion to issue a show cause order against the president of CIDA, who allegedly committed contempt of court. This motion was based on Ms. Mache-Rameau's claim to the effect that CIDA reportedly did not deliver on some commitments set out in the memorandum of understanding dated November 29, 2006, which was incorporated into an order issued by the Federal Court on May 29, 2012.

[52]           When it issues a show cause order, the Court orders a person to appear before a judge, to be prepared to hear the evidence of the act that he or she is accused of, and to be prepared to make full answer. At this stage, the applicant party's burden of proof is prima facie proof of the alleged contempt, which requires "proof of a Court order, proof of the respondent’s knowledge of the order, and proof of deliberate flouting of the order" (Angus v Chipewyan Prairie First Nation Tribal Council, 2009 FC 562 at para 35).

[53]           Since he noticed that the parties were differently interpreting paragraph 6 of the memorandum of understanding, which is at the heart of the matter, Judge Boivin concluded that the parties' conduct was consequently not clearly set out in the memorandum. Thus, basing himself on the decisions for Telus Mobility v. Telecommunications Workers Union, 2004 FCA 59 and Sherman v Canada (Customs and Revenue Agency), 2006 FC 1121, Judge Boivin determined that Ms. Mache-Rameau had not submitted the prima facie proof that was incumbent on her, so he dismissed her motion.

[54]           On June 19, 2013, the Commission concluded that Ms. Mache-Rameau's Complaint was not vexatious as a result of the following train of thought: [TRANSLATION]"This complaint contains allegations that were not dealt with by the Federal Court. Consequently, the complaint is not vexatious under section 41." To reach this conclusion, the Commission based itself on the Commission's investigation report dated March 21, 2013, which the parties referred to and tardily submitted a copy of to the Court. Ms. Mache-Rameau draws the Court's attention to paragraph 22 of the report, which stipulates the following:

[TRANSLATION]

The Federal Court of Appeal recently confirmed that the Commission must not dismiss a complaint under paragraph 41 unless it is a clear-cut case (see Keith v Correctional Service Canada, 2012 FCA 117 at para 50). This is not a clear-cut case. Though the Federal Court dismissed the complainant's motion, the human rights issues raised by the complainant were not before the Court, and there are allegations in the complaint that were not before the Court either. Moreover, the Federal Court's decision was made in the context of a contempt proceeding, which raises various considerations and a burden of proof that is different from a complaint filed with the Commission.

[55]           However, these observations must be contextualized. Indeed, in the paragraph above, the investigation report clearly indicates that [translation] "this complaint includes additional allegations, namely the allegation that abolishing her position represents a retaliatory measure." The Court notes that the investigation report dated March 2013 discusses the allegation issue examined through other processes, but it does not recommend dealing with all of Ms. Mache-Rameau's allegations.

[56]           As stated earlier, on August 26, 2014, the Tribunal concluded that in the absence of a pending complaint before it, and in the absence of relevant provisions in the memorandum of understanding allowing it to maintain its jurisdiction, it cannot intervene in order to make a decision on an interpretation issue pertaining to the application of the memorandum of understanding.

[57]           Judge Roy dismissed the application for judicial review that Ms. Mache-Rameau presented against this decision. He notes that, pursuant to paragraph 44(3) of the Act, the Tribunal's jurisdiction depends on whether a complaint was filed with the Tribunal by the Commission. However, the Tribunal cannot interpret an understanding it was not a party to and that serves to resolve the issue that gave rise to the complaint. Judge Roy also gives some weight to the fact that the memorandum of understanding was incorporated into a Court order. In this respect, he affirms that the confirmation of an ambiguity by Judge Boivin preventing contempt of court does not give "jurisdiction to a statutory body that does not have jurisdiction to interpret settlement agreements incorporated into orders made by this Court" (at para 40).

[58]           The Court agrees that Judge Boivin did not address the human rights issues raised by the Complaint.  He noted the ambiguity in the memorandum of understanding, concluded that the conduct of the parties was not clearly set out in this memorandum, that the burden of proof was therefore not satisfied, and that the prima facie evidence had not established that either the negotiation process undertaken between Ms. Mache-Rameau and CIDA or its president's behaviour could be tantamount to contempt of court.

[59]           Nonetheless, as noted by the AGC, incorporating a memorandum of understanding into a Federal Court order limits the ability of the Commission or the Tribunal to rule on allegation of a breach. According to paragraphs 15 and 16 of the memorandum of understanding, the parties consented to it being incorporated into an order issued by our Court, that it be executed under its terms, and that all disagreements concerning the implementation of either of its terms be subject to mediation that would allow the issues to be renegotiated. 

[60]           Thus, the investigator did not err by excluding the allegation of a breach of the memorandum of understanding from its investigation.

[61]           The Court feels that the Investigation report appropriately considers the context of the first complaint. The investigator refers to a "prior complaint" or to an "earlier complaint." She mentions it in the timeline of the events related to the Complaint and uses it as a starting point to analyze the allegations of retaliations.

[62]           Ms. Mache-Rameau's argument to the effect that the investigator should have addressed the positive consequences that could have resulted from an appointment to a PE-04 level position is related to the investigator's decision not to investigate the allegation of a breach of the memorandum. The Court addressed it earlier.

[63]           The Court will address Ms. Mache-Rameau's argument concerning the limit imposed on the number of pages for the observations in the next section.

[64]           In the letter it sent to the parties on March 28, 2014, the Commission offers them the opportunity to forward observations on the Investigation report, but it imposes a 10-page limit.  The text indicates the following: [translation] "You may present up to ten pages. If you have attachments, you must include them in the page count.  The Commission will read only the first ten pages." This limit complies with section 9.4 of the Dispute Resolution Operating Procedures of the Canadian Human Rights Commission, which stipulates the following:

9.4 Subject to 9.6, a submission will not exceed ten (10) pages in length, including attachments. The Commission, on notice to the party, may refuse to place those parts of the submission in excess of ten pages before the Commissioners for consideration Where the Commission places submissions longer than ten pages before the Commissioners for consideration, it shall provide notice to the other parties and give them the opportunity to file submissions of equal length and then place those submissions before the Commission.

[65]           Our Court has already determined that such a limit imposed by the Commission is reasonable (Jean Pierre v Canada (Minister of Immigration, Refugees and Citizenship), 2015 FC 1423 at para 51) and that "there is no genuine issue of procedural fairness here" (Donoghue v Canada (The Minister of National Defence), 2010 FC 404 at para 28).

[66]           Finally, the investigator's omission to prospectively disclose to Ms. Mache-Rameau that she would not investigate the memorandum of understanding and the allegation of a breach of the memorandum does not represent a breach of procedural fairness. The Commission governs its process and must benefit from much latitude with respect to the way it conducts its investigations (Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at para 39; Bhattacharyya v Viterra Inc, 2015 FC 121 at para 41). When the Court assesses an allegation of a breach of procedural fairness, it must display [translation] "judicial restraint with respect to the administrative decision-making body that must assess the probative value of the evidence and decide whether to pursue the investigation. It is only when unreasonable omissions have occurred, for example when an investigator has not examined an item of evidence that is clearly significant, that a judicial review is necessary." (Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 at para 56, aff'd [1996] FCJ No 385 (CA)).

[67]           In this case, by receiving an Investigation report, Ms. Mache-Rameau was informed of the evidence considered by the investigator. She had the opportunity to respond to this and to present all the relevant arguments related to it (Syndicat des Employés de Production d Québec et l'Acadie v Canada (Canadian Human Rights Commission), [1989] 2 SCR 879 at para 33; Hutchinson v Canada (Minister of the Environment), 2003 FCA 133 at para 47). The Court feels that a breach of procedural fairness did not take place.

[68]           It seems clear that Ms. Mache-Rameau is seeking, as part of this application, to submit the memorandum of understanding, and the conduct of the parties, to another assessment.  However, it is not up to the Commission to consider the breach of the memorandum alleged by Ms. Mache-Rameau; and, consequently, the Commission has not committed a mistake of law by excluding this allegation. Finally, this Court cannot conclude that a breach of procedural fairness took place during the Commission's investigation, nor that it made an unreasonable decision.

JUDGMENT

THE COURT RULES that:

1.         The application for judicial review is dismissed;

2.         Costs are awarded in favor of the respondent.

"Martine St-Louis"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD:

ANNEX