Date: 20061215
Docket: T-1872-05
Citation: 2006 FC 1504
Ottawa,
Ontario, December 15, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DUMITRU
COZMA
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
this application for judicial review, pursuant to section 18.1 of the Federal
Courts Act R.S.C. 1985, c. F-7, the Applicant seeks to reopen his Canadian
Human Rights Commission (the Commission) complaint files 2004-1494 and 2004-1732.
The Applicant is self-represented.
ISSUE
[2]
Should
this Court order the Canadian Human Rights Commission to reopen and finalize
the Applicant’s two complaint files against Citizenship and Immigration Canada?
[3]
For
the brief reasons that follow, the response to this question is negative.
Consequently, this application for judicial review shall be dismissed.
BACKGROUND
[4]
The
Applicant is a Canadian citizen from Romania who sought to sponsor
his wife to come to Canada from Romania. However, her visa
application was initially refused.
[5]
The
Applicant alleges that he was treated in a humiliating and discriminatory
manner by Citizenship and Immigration Canada (CIC) staff at the Canadian
Embassy in Bucharest, Romania
during his efforts to bring his wife to Canada. In
particular, the Applicant states he was treated as a second class citizen, lied
to, and denied timely service because he is not a Canadian-born citizen, and is
neither of English nor French origin. The Applicant further alleges that he was
treated in this unprofessional manner because he was a newly wed or married for
less than 18 months. As a result of these frustrations, the Applicant filed two
complaints with the Canadian Human Rights Commission, dated November 18, 2004
(2004-1494) and February 11, 2005 (2004-1732), to protest the mishandling of his
wife’s visa application.
[6]
The
Commission decided not to deal with the first complaint because the Applicant
had not exhausted the CIC appeal process. On February 28, 2005, the Applicant did
successfully pursue the CIC appeal avenues open to him and his wife obtained a
visa to join him in Canada, which she did in August 2005.
[7]
In
spite of the successful conclusion of the matter, the Applicant returned to the
Commission on April
12, 2005
and requested that his complaint be reopened. For procedural reasons, a second
complaint was opened based essentially on the same facts and parties pursuant
to section 5 of the Canadian Human Rights Act (the Act) alleging
discrimination on the grounds of national or ethnic origin; family status; and
marital status.
DECISION UNDER REVIEW
[8]
The
Commission investigated the allegations contained in the complaints and found
that the evidence available did not appear to support the Applicant’s
allegations. Also, the investigator concluded that CIC had provided a
reasonable and non-discriminatory explanation for the events that caused the
Applicant difficulty and delay.
[9]
The
investigator recommended that in light of the evidence and the remedy already
provided, the complaints did not warrant referral to the Canadian Human Rights
Tribunal. Both complaints were therefore dismissed. The Applicant was provided
with a copy of the Investigator’s Report and an opportunity to respond.
[10]
On
September 23, 2005, the Commission decided to close both files, pursuant to paragraph
44(3)(b)(i) of the Act, in light of the substantial remedy that was
granted to the Applicant. Notwithstanding, the Applicant insists that his
complaints be reopened because he did not file his complaints in order to get
his wife to Canada; rather, he
wished to pursue CIC for the unprofessional behaviour of its staff.
PERTINENT LEGISLATION
[11]
The
prohibited grounds of discrimination and the applicability to the provision of
services are set out in sections 3 and 5 respectively of the Act.
|
3.
(1) For all
purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation,
marital status, family status, disability and conviction for which a pardon
has been granted.
[.
. .]
5. It is a discriminatory
practice in the provision of goods, services, facilities or accommodation
customarily available to the general public
(a)
to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or
(b)
to differentiate adversely in relation to any individual,
on
a prohibited ground of discrimination.
|
3.
(1) Pour
l’application de la présente loi, les motifs de distinction illicite sont
ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur,
la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la
situation de famille, l’état de personne graciée ou la déficience.
5. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, pour le fournis-seur de biens, de services, d’installations ou de
moyens d’hébergement destinés au public :
a)
d’en priver un individu;
b)
de le défavoriser à l’occasion de leur fourniture.
|
[12]
Paragraph
44(3)(b)(i) outlines the basis for the Commission’s decision to not deal
with the Applicant’s complaints. This passage follows:
|
44.
[. . .]
Action
on receipt of report
(3)
On receipt of a report referred to in subsection (1), the Commission
[.
. .]
(b)
shall dismiss the complaint to which the report relates if it is satisfied
(i)
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is not warranted, or
[.
. .]
|
44.
[. . .]
Suite
à donner au rapport
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
[.
. .]
b)
rejette la plainte, si elle est convaincue :
(i)
soit que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci n’est pas justifié,
[.
. .]
|
ANALYSIS
Standard of Review
[13]
I
must first determine the appropriate standard of review that would be
applicable to the decision of the Commission to dismiss the complaints under
paragraph 44(3)(b)(i) of the Act. An analysis of the four factors
established in Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226 allows us to determine what standard of
review to use in similar circumstances.
i) privative
clause/right of appeal
[14]
The
Act does not contain a privative clause or a right of appeal. This factor is
thus neutral.
ii) the
expertise of the tribunal
[15]
The
Act confers the investigation of complaints to investigators. Section 43 sets
out the broad powers of these investigators who develop a certain skill and
expertise in accordance with the Regulations. They gather information from the
relevant parties, interview witnesses, provide reports to the parties for
written submissions before preparing a Report to the Commission with a
recommendation whether to appoint a conciliator to resolve the matter; refer
the complaint to a Canadian Human Rights Tribunal; or dismiss the complaint. This
factor calls for a high degree of deference.
iii) the purpose of the Act
[16]
The
purpose of the Act is to ensure that discrimination in the provision of
services and employment is prohibited based on statutory prohibitive grounds.
The investigator must examine the complaints, assess the evidence and the
credibility of witnesses and apply the principles of the Act in order to
determine whether the allegations are founded and warrant a referral to the
Canadian Human Rights Tribunal. This factor calls for less deference.
iv) the nature of the
problem
[17]
If on
the one hand, the question is purely factual, there will be a strong level of
deference with respect to that contested decision. If on the other hand, the
question is one of mixed law and facts, deference by the Court would be less
pronounced. Finally, if the question is one of law only, the reviewing Court
will accord no deference to the decision. In this case, there is no element of
law involved as the investigator at this early screening stage is focused
entirely on the gathering and reviewing of the facts that constitute the
complaint. This factor means that this Court will show a high degree of
deference to the decision of the investigator.
[18]
In
light of this pragmatic and functional analysis, the Court adopts the standard
of review of patent unreasonableness because there are no elements of law
involved in the investigator’s work of information gathering, assessment and
recommendation to the Commission. Moreover, and as a general rule, Parliament
did not intend that Courts such as ours in this case should be quick to
intervene in decisions of the Commission.
[19]
In Bell
Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), Mr. Justice Décary
stated at paragraph 38:
The
Act grants the Commission a remarkable degree of latitude when it is performing
its screening function on receipt of an investigation report. Subsections 40(2)
and 40(4) and sections 41 and 44 are replete with expressions such as "is
satisfied", "ought to", "reasonably available",
"could more appropriately be dealt with", "all the
circumstances", "considers appropriate in the circumstances"
which leave no doubt as to the intent of Parliament. The grounds set out for
referral to another authority (subsection 44(2)), for referral to the President
of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright
dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact,
law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1
F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a
general rule that Parliament did not want the courts at this stage to intervene
lightly in the decisions of the Commission.
Should the Commission re-open the
Applicant’s complaints?
[20]
In
order to answer this question, I must ask myself was the decision of the
investigator patently unreasonable when she recommended to the Commission that
the Applicant’s complaints be dismissed.
[21]
The
answer is no. I find nothing within the four corners of both reports that would
warrant the Court’s intervention. With respect to the first report, the
investigator did not err in recommending that the complaint (2004-1494) be
dismissed because the substantial remedy available had already been obtained in
this case. Similarly, while it may be regrettable that the Applicant
experienced delay and administrative bungling on the part of CIC staff at the
Canadian Embassy in Bucharest, the investigator was
satisfied that these administrative errors were not based on any prohibitive
ground of discrimination such that the matter should be referred to the
Tribunal or require the appointment of a conciliator. I find nothing patently
unreasonable in this decision either.
[22]
I am
therefore not satisfied that the Applicant has demonstrated that the
investigator arrived at a decision that was patently unreasonable.
JUDGMENT
THIS COURT ORDERS THAT the application for
judicial review is dismissed. There shall be no award as to costs.
“Michel
Beaudry”
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