Docket: T-1228-22
Citation: 2023 FC 1248
Ottawa, Ontario, September 15, 2023
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
KAGUSTHAN ARIARATNAM |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Kagusthan Ariaratnam, seeks judicial review of the decision of the Canadian Human Rights Commission [Commission] not to deal with his human rights complaint against the Canadian Security Intelligence Service [CSIS] because it was addressed or could have been addressed by the National Security and Intelligence Review Agency [NSIRA].
[2] I find the Applicant has met his onus of establishing that the Commission’s decision is unreasonable. For the more detailed reasons that follow, I thus grant the Applicant’s judicial review application.
II. Background
[3] Having escaped the Liberation Tigers of Tamil Eelam [LTTE], the Applicant left Sri Lanka and came to Canada where he was granted refugee protection in 1998. He eventually became a Canadian citizen. In the meantime, the Applicant provided CSIS with intelligence information regarding the LTTE for a few years, until he suffered mental illness that he alleges was orchestrated or caused by CSIS and involved medical misdiagnoses (of bipolar disorder and chronic paranoid schizophrenia).
[4] The Applicant later worked as a security guard for a company called Iron Horse Security and Investigations [Iron Horse]. In connection with this employment, the Applicant was considered for security work with the Parliamentary Protective Service [PPS], which required site access clearance from CSIS. The request for clearance, however, subsequently was cancelled.
[5] Not satisfied with a written response to his inquiry from CSIS that the “requesting organization cancelled their request,”
the Applicant brought a complaint before the Security Intelligence Review Committee [SIRC] under then in‑force section 41 of the Canadian Security Intelligence Service Act, RSC 1985, c C‑23, to find out what happened regarding the cancelled request. (The complaint provisions later were repealed and replaced with the National Security and Intelligence Review Agency Act, SC 2019, c 13, s 2 [NSIRA Act]; SIRC thus became NSIRA.) See Annex “A”
below for relevant legislative provisions.
[6] NSIRA conducted an investigation and held an in camera hearing at which the Applicant and three witnesses were questioned.
[7] In its report, NSIRA found that the House of Commons [HoC] cancelled the site access clearance request after CSIS shared with the HoC information about the Applicant’s mental health. The information was obtained from open‑source Internet searches, as well as two briefs that were prepared by CSIS for (then) Citizenship and Immigration Canada [CIC] during the Applicant’s immigration process.
[8] NSIRA concluded that the Applicant’s allegations against CSIS were unsupported. Although CSIS acknowledged that the sharing of the immigration briefs “would not have been approved by management,”
NSIRA found that CSIS did not use the open‑source information improperly, nor did CSIS deny the Applicant’s site access clearance request. Rather, the latter was done by the HoC.
[9] After the hearing but before NSIRA issued its report, the Applicant began complaints with the Commission against CSIS, HoC and PPS. The Applicant later withdrew the complaints against HoC and PPS.
[10] The Commission invited the parties to respond to a list of questions about whether it should refuse to deal with the Applicant’s complaint further to paragraph 41(1)(d) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], which gives the Commission the discretion to dismiss a complaint where it appears to the Commission that the complaint is trivial, frivolous, vexatious, or made in bad faith.
[11] The initial section 41 report [Initial Report] overlooked the parties’ responses to the questions; hence, the Commission sent a Supplementary Report to the parties acknowledging that the Initial Report was flawed. The same human rights officer [Officer] prepared both reports and recommended that the Commission not deal with the complaint on the basis that it had been or could have been dealt with through NSIRA.
[12] Following the parties’ response to the Supplementary Report, the Commission issued a final decision [Decision] not to deal with the complaint.
III. Issues and Standard of Review
[13] The Applicant argues the Decision was unreasonable and procedurally unfair. In addition, the Respondent raises a preliminary issue regarding the style of cause.
[14] A reasonable decision is one that exhibits the hallmarks of justification, transparency and intelligibility, and is justified in the context of the applicable factual and legal constraints: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 99. The Applicant has the burden of establishing the decision was unreasonable: Vavilov, above at para 100.
[15] Questions of procedural fairness attract a correctness‑like standard of review: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Vavilov, above at para 77. The focus of the reviewing court is whether the process was fair and just in the circumstances: Chaudhry v Canada (Citizenship and Immigration), 2019 FC 520 at para 24; Benchery v Canada (Citizenship and Immigration), 2020 FC 217 at para 9.
IV. Analysis
A. Preliminary Issue: Style of Cause
[16] Having regard to Rule 303 of the Federal Courts Rules, SOR/98‑106, I agree with the Respondent’s submission that the Canadian Security Intelligence Service was incorrectly named as the Respondent and should be replaced with the Attorney General of Canada. The Applicant took no position on this issue at the hearing of this matter.
[17] In the circumstances, the style of cause will be amended accordingly to identify the Respondent as the Attorney General of Canada, with immediate effect.
B. Reasonableness of Decision
[18] As explained below, I am not persuaded that the Decision is reasonable.
(1) Applicable Principles
[19] In British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 [Figliola], the Supreme Court of Canada outlined three factors for assessing whether a human rights complaint has been dealt with appropriately in an alternative process (at para 37):
there was concurrent jurisdiction to decide human rights issues;
the previously decided legal issue was essentially the same as the complaint in the later process;
the complainant had the opportunity to know and meet the case.
[20] After setting out these factors, the Supreme Court of Canada concludes in the same paragraph that, “[a]t the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.”
[21] That said, the Supreme Court of Canada also instructs that the objectives of finality and avoidance of duplicative proceedings must be balanced against possible injustice that may arise if the result of an earlier proceeding is used to preclude a subsequent proceeding that involves significant differences in purpose, process and stakes: Penner v Niagara (Regional Police Services Board), 2013 SCC 19 at para 42.
[22] The Commission’s function is to screen complaints to determine whether they require further inquiry by the Canadian Human Rights Tribunal, which then may engage in a more in‑depth inquiry and decide whether discrimination has occurred: Beaulieu v Canada (Attorney General), 2022 FC 1671 at para 55.
[23] Where a decision of the Commission adopts the recommendations in an investigator’s or officer’s report, and provides only brief reasons, the underlying report should be treated as part of the Commission’s reasons for the purpose of review. The rationale is that the person who prepared the report is considered an extension of the Commission: Sketchley v Canada (Attorney General), 2005 FCA 404 at para 37 (in the context of subsection 44(3) of the CHRA); Berberi v Canada (Attorney General), 2013 FC 99 at para 18 (in the context of paragraph 41(1)(d) of the CHRA, as in the case here). This applies, in my view, even if the decision does not state specifically that the Commission adopts the recommendations but nonetheless the decision aligns with the recommendations in the report.
(2) Reasonableness Analysis
[24] Contrary to the Applicant’s position, I find that the Initial Report and the Supplementary Report form part of the reasons for the Decision. In other words, I find no merit to the argument that the Decision per se is unreasonable in that it lacks reasons. Further, as the Respondent submits, and I agree, the Supplementary Report is just that – supplementary – and does not preclude consideration of the Initial Report.
[25] I also agree with the Respondent that, although the case was not mentioned specifically, it is evident from the Supplementary Report that the Commission considered the Figliola factors. That said, the fact that these factors were considered does not answer the question of whether they were addressed reasonably. I find that the third factor was not reasonably addressed which, in my view, justifies sending the matter back to the Commission for redetermination by a different officer.
[26] Regarding the first factor of concurrent jurisdiction to decide human rights issues, the Officer finds at paragraph 39 of the Initial Report that the Applicant could have raised his human rights concerns before NSIRA. Despite no detailed analysis or explanation for this, I accept the Respondent’s submissions that the NSIRA has the mandate to look into any complaint regarding any activity carried out by CSIS: NSIRA Act, ss 8(1)(a), 16.
[27] Regarding the second factor of whether the legal issues were the same in both complaints, the Officer notes at paragraph 30 of the Supplementary Report that the Applicant admitted to filing the same complaint with both NSIRA and the Commission. Contrary to the Applicant’s submission, I am not persuaded that the Commission’s consideration of this factor starts and ends with this admission (contained in an October 2020 email from the Applicant to the Commission).
[28] I note, for example, that the NSIRA complaint is attached as Appendix A to the Supplementary Report, and the Officer is presumed to have considered it, unless the contrary is shown (which in my view has not been demonstrated in this case). The Officer also addresses this factor at paragraph 36 of the Initial Report with reference to the complaint described in the NSIRA Report (because the NSIRA complaint does not appear to have been before the Officer at that time) and the complaint filed with the Commission. The Commission reasonably found in my view that the complaints were rooted in the Applicant’s allegation of misuse of confidential information by CSIS that it collected on the Applicant.
[29] I find nonetheless that the Supplementary Report unintelligibly concludes that the Applicant did not raise human rights issues before NSIRA, despite finding the complaints were the same. This incoherence is reinforced by the Officer’s consideration of the third Figliola factor.
[30] Regarding the third factor of whether the Applicant had the opportunity to know and meet his case, the Commission finds at paragraph 32 of the Supplementary Report that the issue of CSIS sharing information about the Applicant’s mental health with the HoC and PPS was covered at the NSIRA hearing.
[31] At paragraph 31 of the Supplementary Report, however, the Commission finds that, even if the Applicant may not have known about the information sharing until the NSIRA hearing, the Applicant nonetheless knew about the alleged orchestration of his illness and misdiagnoses by CSIS at the time he filed his NSIRA complaint which he could and should have raised before NSIRA. In my view, this statement is tantamount to recognition by the Commission that the Applicant was unaware of the information sharing by CSIS regarding his mental health with the HoC and PPS prior to the NSIRA hearing, a central issue of the Applicant’s complaint before the Commission. I find that, even though the issue was covered at the NSIRA hearing, the Supplementary Report highlights that the Applicant in fact did not know the case to meet prior to the hearing, thus undermining the Commission’s treatment of this factor and rendering the Decision unreasonable.
[32] Further, even if, as the Respondent contends, the Applicant had all the necessary knowledge to pursue a human rights claim before NSIRA following the hearing, there is no evidence of record before the Court to suggest the Applicant could have amended his NSIRA complaint to include a human rights claim after the hearing.
C. Breach of Procedural Fairness
[33] I am not persuaded that the Applicant has established a breach of procedural fairness.
[34] The Applicant’s submissions regarding this issue focus on the asserted lack of reasons. As I have found above, the Initial Report and the Supplementary Report form part of the reasons for the Decision. Further, although the Initial Report was flawed, the Supplementary Report rectified the oversight regarding the parties’ responses to the CHRA s 41(1)(d) questions.
[35] In addition, the Supplementary Report summarizes parts of the Applicant’s submissions that he asserts the Commission did not consider.
[36] Further, although the Decision does not mention the parties’ reply submissions to the Supplementary Report, the Commission is presumed to have considered them and, I infer, was not persuaded to depart from the recommendation in the Initial Report, repeated in the Supplementary Report, not to deal with the complaint.
V. Conclusion
[37] For the above reasons, the Applicant’s judicial review application is granted. The Decision is set aside and the matter will be redetermined by a different decision maker.
[38] Both parties requested additional time following the Court’s determination of the judicial review application to make costs submissions. If the parties cannot agree on costs, they have until September 29, 2023 to make brief costs submissions not exceeding three pages.
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