Date: 20060622
Docket: T-1081-04
Citation: 2005 FC 1297
Ottawa, Ontario, June 22nd, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
PUBLIC SERVICE ALLIANCEOF CANADA
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY TREASURY BOARD
Respondent
AMENDED REASONS FOR ORDER
[1] Those reasons follow the hearing of an application for judicial review initiated by the Applicant, Public Service Alliance of Canada ("PSAC"), pursuant to section 18.1 of the Federal Courts Act to review and to set aside the decision of the Canadian Human Rights Commission ("the Commission") dated May 3, 2004. The decision arose from a human rights complaint filed on December 19, 1984 alleging discrimination on the ground of sex, in contravention of sections 7, 10 and 11 of the Canadian Human Rights Act ("CHRA"). The complaint related to the classification and pay of employees governed by the Clerical and Regulatory (CR) occupational category of the federal public service.
BACKGROUND
[2] On December 19, 1984, the Applicant filed a complaint with the Commission by which it alleged that members of the predominantly female CR occupational group employed by the Respondent Treasury Board were the victims of discrimination on the basis of gender. In fact, the complaint consisted of two allegations: 1) it alleged that CR members were subjected to a discriminatory classification standard which was utilized to assess the value of their work and pay, contrary to sections 7, 10 and 11 of the CHRA; and 2) it also claimed that "by segregating the Clerical and Regulatory, and Program Management groups, and by applying different standards to measure the value of jobs of employees who are members of these groups, the Treasury Board is discriminating against members of the former group in contravention of Sections 7, 10, and 11 of the Canadian Human Rights Act".
[3] The allegation of wage discrimination contrary to section 11 of the CHRA was referred to a panel of the Human Rights Tribunal in October 1990. On July 29, 1998, the Tribunal found that there had been a violation of s. 11 and ordered wage compensation in the form of pay equity adjustments back to March 8, 1985. It also ordered that pay equity adjustments of wages for times after the date of the decision be folded in and become an integral part of wages (P.S.A.C. v. Canada (Treasury Board)(No. 3), (1998), 32 C.H.R.R. D/349). This decision from the Tribunal was subsequently upheld by this Court on October 19, 1999; Canada (A.G.) v. P.S.A.C., [2000] 1 F.C. 146(QL)).
[4] Throughout the period that the section 11 portion of the complaint was before the Human Rights Tribunal for adjudication, the Commission held its investigation into the sections 7 and 10 aspects of the complaint in abeyance. The section 7 and section 10 aspects of the complaint related to the structure and application of the CR classification standard as a job evaluation tool. The decision was taken to permit the parties to continue working together to develop a new classification system known as the Universal Classification System ("UCS"). From 1997 until 2000, the Commission monitored the progress of the UCS project and provided assistance and guidance on matter related to pay equity, such as the gender-neutrality of the standard, the evaluation of jobs, and the weighing of factors.
[5] In early 2000, PSAC raised concerns about the delay in the investigation of the complaint. As a result, the Commission undertook to review the progress of the UCS to determine in part the gender neutrality of the standard (then in progress) and its impact on the complainant occupational categories. In May 2001, the Commission completed its technical review of gender neutrality of the UCS. The Commission noted three central components of a gender-neutral system: inclusivity and balance, clarity and comprehensibility, and careful application. In addition, a number of key issues were highlighted in the report, including the observation that "certain work characteristics typical of the predominantly female jobs do not appear to have been fully reflected in the standard".
[6] On May 8, 2002, the Respondent announced that, as part of classification reform, UCS was not being pursued on the basis that it was "unworkable". Rather than applying a single standard and a single pay structure to more than 150,000 positions in the federal public service, the Respondent stated that it planned to tailor an "approach to classification reform to meet the particular needs of specific occupational groups". Implementations initiatives for classification reform were identified, while the timing and priority of groups were to be discussed with the departments and unions involved before making a final decision.
[7] This new classification reform exercise is supposed to address: a) the development of new, tailored, gender-neutral standards responsive to the specific needs of individual occupational groups; b) the ongoing maintenance of existing standards where necessary, and guidance on their application; and c) the rebuilding of system capability through active monitoring and the development and delivery of an up-to-date curriculum for technical specialists and line managers.
[8] Following the receipt of this information, an Investigation Report was prepared and signed off on January 12, 2004. The Commission Investigator, M.D. Earle, recommended that "pursuant to paragraph 44(3)(b) of the CHRA, [...] the Commission take no further proceedings in the complaint made under sections 7 and 10".
[9] After acknowledging that the UCS was not finalized, the Investigator set out to explain why he came to this recommendation. In what appears to be the most salient parts of his report, he stated:
14. Changes that will be brought about by classification reform indicate that investigation by the Commission will not assist in resolving the sections 7 & 10 aspects of this complaint. The definitions of the General Services Group and its subgroups, effective April 21, 1993, as published in Part I of the Canada Gazette, on May 8, 1993, were amended and replaced effective March 18, 1999. Under the new occupational group structure, the CR and PM groups have been subsumed in one group - the Program and Administrative Services (PA) group. Formerly two distinct occupational groups, the CR and PM groups that are the basis of the section 7 & 10 allegations are no longer segregated.
15. The respondent has indicated that, as part of classification reform, gender-neutral classification plans will be developed for new occupational groups, including the PA group. It is not possible to assess the gender-neutrality of any new classification plan until it is developed.
[10] While the Investigator recommended no further action regarding the complaint, he noted that the Commission "will continue to be available to provide advice and input into the development of gender neutral classification plans, including a plan applicable to the PA group".
[11] A copy of the Investigator's Report was provided to the parties and submissions were requested. By letter dated January 30, 2004, a representative of the Respondent replied only to say that the Treasury Board Secretariat agreed with the Investigator's recommendation that the Commission should take no further proceedings in the complaint. On the other hand, PSAC sent its submissions on February 26, 2004, and made it clear that it "vehemently" oppose the recommendation of the Investigator. In the Applicant's view, the complaint had been accepted as valid by the Commission since it was filed in 1984, and "the only reason that the Commission did not take steps to deal formally with the merits of the section 7 and section 10 aspects of the complaint was assurances which Commission staff were given at various times to the effect that the introduction of the Universal Classification System (UCS) by Treasury Board would resolve the discriminatory classification issues arising out of the Treasury Board classification system generally, including the discriminatory aspects of the CR classification standard". The UCS initiative having been abandoned, PSAC believed that the Commission had to intervene, complete its investigation and, if the matter was not resolved in the interim, refer the complaint to the Tribunal. The submissions from PSAC also highlighted that the merging of the CR and PM groups into the new PA group did not change the manner in which these employees were being classified, evaluated and paid. They appended pay schedules from the most recent collective agreement confirming that employees continue to be paid as CRs and according to the old CR schedule.
[12] The parties were then provided with an opportunity to comment on each other's submissions in response to the Investigator's Report. By letter dated March 24, 2004, counsel for the Applicant provided submissions in response to the Respondent's submissions. Given that the Respondent had merely agreed with the ultimate conclusion reached by the Investigator, PSAC had nothing to add beyond its submissions of February 26, 2004. By letter dated March 25, 2004, the Respondent's representative reacted to PSAC's submissions by reiterating the employer's commitment to classification reform, including "modernizing the content and valuation measures of existing classification standards to mitigate against gender bias". Furthermore, the Respondent advised that the study underway was determining "the best approach to resolving the issues in the CR and PM groups, but to do so in the broader context of the whole PA group".
THE DECISION UNDER REVIEW
[13] The complaint, Investigator's Report, parties' submissions and a chronology was provided to the Commission for their deliberations regarding the complaint on April 26, 2004. By letter dated May 3, 2004, the Commission accepted the Investigator's recommendation and decided, pursuant to subparagraph 44(3)(b) of the CHRA, to dismiss the complaint without any further proceedings. No reasons were provided.
[14] Following receipt of the Commission's letter, the PSAC made a formal request for reasons from the Commission on May 12, 2004. By letter dated June 7, 2004, Commission counsel responded to the Applicant's request for reasons. She stated that the Commission did not have a statutory duty to provide reasons for its decision to dismiss under s. 44(3)(b), and that decisions of the Federal Court have held that where no reasons are given and the recommendation of the investigator is adopted by the Commission, the basis for the decision is the Investigator's Report.
RELEVANT STATUTORY PROVISIONS
[15]
| 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
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.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
Commission may decline to deal with complaint
43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
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(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(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
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
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2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées 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, la déficience ou l'état de personne graciée.
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.
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale :
a) de fixer ou d'appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel.
40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière.
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants :
a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n'est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l'enquêteur » , d'enquêter sur une plainte.
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
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(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
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,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
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THE ISSUES
[16] This application for judicial review raises the following questions :
· What is the appropriate standard of review?
· Did the Commission make a reviewable error when it decided to dismiss the section 7 and section 10 portions of the complaint and determined that no further proceedings were warranted?
· Did the Commission breach the duty of procedural fairness and err in law by failing to conduct a thorough investigation and analysis of the subject complaint?
· Did the Commission violate the duty of procedural fairness by failing to provide adequate reasons for its decision?
ANALYSIS
1) The standard of review
[17] The decision under review is that of the Commission, which dismissed the PSAC's human rights complaint. Following the receipt of an investigator's report, the Commission may request the Canadian Human Rights Tribunal to institute an inquiry if it is satisfied that, "having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted". Conversely, when the Commission is satisfied that, "having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted", it shall dismiss the complaint (CHRA, s. 44(3)). In reaching this decision, the Commission is concerned with whether there exists a reasonable basis in the evidence for proceeding to the next stage - namely, the appointment of a Tribunal.
[18] It is worth remembering that at this stage, the Commission does not decide the complaint on its merits nor does it determine if the complaint is made out. Its duty is rather to assess whether there is sufficient evidence before it to justify proceeding to the next stage: Syndicat des employés de production du Québec et de l'Acadie v. Canada(Human Rights Commisssion), [1989] 2 S.C.R. 879, [1989] S.C.J. No. 103, at para. 27 (QL); Cooper v. Canada(Human Rights Commission), [1996] 3 S.C.R. 854, at p. 891 (QL).
[19] The Supreme Court of Canada has affirmed that there are only three possible standards of review of an administrative decision: correctness, reasonableness, and patent unreasonableness. The determination of the proper standard to be applied in a particular case requires the application of a pragmatic and functional analysis on the basis of these four contextual factors: a) the presence or absence of a privative clause or statutory right of appeal; b) the expertise of the decision-maker relative to that of the reviewing court on the issue in question; c) the purposes of the legislation and the provision in particular; and d) the nature of the question - law, fact or mixed law and fact.
· Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 26-35 ;
· Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 24-27 ;
· Pushpanathan v. Canada(Minister of Citiznship), [1998] 1 S.C.R. 982, at para.
29-38;
· Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.J. No. 2, at para. 15-18 (QL).
[20] Applying the functional and pragmatic approach, my colleague Justice O'Keefe came to the conclusion that the decision of the Commission not to send a complaint to the Tribunal must be reviewed on a standard of reasonableness simpliciter (MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL)). While the absence of a privative clause or statutory right of appeal was neutral, the fact that the Commission has a greater experience than this Court in fact-finding and screening complaints, the discretion that Parliament has bestowed on the Commission in deciding whether or not to dismiss a complaint, and the nature of the question (mixed fact and law) are all factors that called for greater deference to the Commission's decision. Like many others of my colleagues, I adopt this reasoning as my own and reach the same conclusion. I note in passing that the Federal Court of Appeal has most recently confirmed this standard of review in the last of the cases hereunder cited:
· Canada(A.G.) v. Grover, [2004] F.C.J. No. 865; [2004] F.C. 704 (QL);
· Wang v. Minister of Public Safety and Emergency Preparedness, [2005] F.C. 654, [2005] F.C.J. No. 796 (QL);
· Gardner v. Canada(A.G.), [2004] F.C.J. No. 616, [2004] F.C. 493 (QL);
· Singh v. Canada (A.G.), [2001] F.C.J. No. 367; aff'd [2002] F.C.J. No. 885 (QL);
· Chopra v. Canada(A.G.), [2002] F.C.J. No. 1082, 2002 FCT 787 (QL);
· Bradley v. Canada(A.G.), (1999), 238 N.R. 76 (F.C.A.), [1999] F.C.J. No. 370;
· Gee v. Canada(Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4;
· Takmourpour v. Canada(Solicitor General)(2005), 332 N.R. 60, 2005 FCA 113;
· Gardner v. A.G. Canada, 2005 FCA 284.
[21] As a result, this Court should intervene "lightly" in the decisions of the Commission. When screening complaints, Parliament has conferred a large discretion to the Commission, which in turn implies deference from this Court. As reiterated by Strayer J.A. for the Court of Appeal in Gee v. Canada(Minister of National Revenue), [2002] F.C.J. No. 12; 2002 FCA 4 (QL):
This Court has on various occasions noted the deference which should be shown to the Commission in respect of its decisions, after receipt of an Investigation Report, as to whether to dismiss the complaint or refer it to a tribunal. For example, it was stated in BellCanada v. Communications, Energy and Paperworkers Union of Canada([1999] 1 F.C. 113 (C.A.)):
Exercise of discretion
[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 42 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 C.F. 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.
More recently this Court in Zundel v. A.G. Canada et al ((2000), 267 N.R. 92 at para. 5) endorsed a Trial Division decision ([1999] 4 F.C. 289, at paras. 46-49) that the standard of judicial review of a decision of the Commission under section 44, to refer a matter after investigation to a tribunal, should be that of a determination as to whether there was a rational basis for the decision. In Bradley v. A.G. Canada ((1999), 238 N.R. 76) this Court held that the standard of review of a decision taken by the Commission under subsection 44(3) of the Act to dismiss a complaint instead of appointing a conciliator was that of reasonableness. I respectfully concur with my colleagues in this respect and accept that the standard of review for the exercise of the discretion provided in subparagraph 44(3)(b)(i) to dismiss a complaint is that of reasonableness.
[22] As a result, the Court should only intervene where it is established that the decision under review is unreasonable. An unreasonable decision is one that is without foundation or logical coherence. A court cannot intervene simply because it may have come to a different conclusion. Rather, a reviewing court must ask whether the decision is basically supported by the reasoning of the tribunal. The Supreme Court of Canada has explicitly stated that "there will often be no single right answer to the questions that are under review against the standard of reasonableness, but that even if there could notionally be one, "it is not the court's role to seek this out when deciding if the decision was unreasonable": Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 51. See also Canada(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 61 (QL); Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 41 (QL).
[23] The Applicant and the Respondent agree with this analysis. However, the Applicant contends that the standard of review should be correctness when the Commission's decision is not focused squarely and solely on the issue of whether there is a reasonable basis in the evidence for proceeding to the next stage, but involves a question of law or a matter of natural justice or procedural fairness.
[24] There is no dispute between the parties that matters of procedural fairness and natural justice should not be reviewable against a standard of reasonableness, but should be assessed according to the standard of correctness. This would apply to the issues of whether the Commission's investigation was neutral and thorough and whether the Commission provided adequate reasons. In my view, this is a mischaracterization of the issue; but I will come back to this point shortly.
[25] As for the submission that a more stringent standard of review should apply when a decision of the Commission involves a question of law, the Applicant has not substantiated it with any reasoned argument. It does not find any support in the case law, and it is indeed inconsistent with the qualification of the decision made by the Commission under s. 44(3) as a question of mixed fact and law. The screening exercise performed by the Commission at this stage, as we have seen previously, requires the Commission to determine if there is a reasonable basis in the evidence that could allow the Tribunal to find that a complainant has been subject to unlawful discrimination. This is clearly an illustration of a question of mixed fact and law, as it involves the application of general principles found in the CHRA to specific circumstances. In other words, the Commission's decision is intricately bound to factual findings and inferences; it is the very type of question that has been determined to be assessed against a standard of simple reasonableness.
[26] The Applicant has also contended that a stricter standard of review should be applied when the Commission dismisses a complaint without referring it to the Tribunal, because it represents a final decision regarding the rights of the particular complainant. This approach would be even more justified in the present case, given the number of persons to be affected by the decision of the Commission. The Applicant relies for that proposition on the following obiter found in Larsh v. Canada (A.G.) (1999), 166 F.T.R. 101, at p. 107, [1999] F.C.J. No. 508 (QL)), where Evans J. (as he then was) wrote:
"For the purpose of considering this argument I am prepared to assume that the Commission's decision to dismiss complaints should be subject to closer review than decisions to refer complaints to the Tribunal. A dismissal is, after all, a final decision that precludes the complainant from any statutory remedy and, by its nature, cannot advance the overall purpose of the Act, namely protection of individuals from discrimination, but may, if wrong, frustrate it".
[27] This comment from Evans J. must be put into context. It was made in the context of an argument presented by counsel for the applicant, according to which the Commission would set the evidential threshold too high if it was to dismiss a complaint because the officer allegedly having made a discriminatory remark denied having made it, and because there was no independent witness to corroborate the applicant's account of what occurred. Nevertheless, nowhere did Justice Evans say that the decision of the Commission to dismiss a complaint should always be assessed against a standard of correctness. Indeed, he rejected the applicant's argument to the effect that the Commission must always refer the complaint to the Tribunal whenever the Commission is faced with contradictory versions of conduct that is the subject of a complaint. And he stressed on numerous occasions that Parliament has entrusted to the Commission the responsibility for being satisfied that a Tribunal hearing is, or is not warranted.
[28] Before leaving this argument, it must be stressed once again that the language used in section 44 of the CHRA confers a wide discretion to the Commission when screening complaints, and the same language is used with respect to dismissing a complaint or referring it on, i.e. "having regard to all the circumstances of the complaint..." The clearest statement of the standard of review of such decisions is found in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. 1655 (F.C.A.) (QL), where Décary J.A. said:
MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission.
[29] Having said all this, and despite the fact that the decision to dismiss a complaint should be subject to the same standard of review as the decision to refer a complaint to the Tribunal, Justice Evans' comment is not without merit and cannot be simply ignored. Without going as far as saying that each standard of review is itself a sliding scale, a position that has so far been rejected by the Supreme Court, it may be appropriate to consider the impact of the decision made by the Commission in assessing the sufficiency of the reasons supporting it.
[30] Returning now to the alleged breaches of the principles of procedural fairness, I think that some confusion should be dissipated at the outset. As the Supreme Court of Canada has made clear in C.U.P.E. v. Ontario(Minister of Labour),[2003] 1 S.C.R. 539, at para. 102 (QL), "the content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations". This distinction has been restated by our Court on a number of occasions, notably in Gardner v. Canada (A.G.), [2004] F.C.J. No. 616, 2004 FC 493 (QL), Canada (A.G.) v. Grover, [2004] F.C.J. No. 865, 2004 FC 704 (QL); Canada (A.G.) v. Cherrier, 2005 CF 505 (QL), Marchand Syndics Inc. v. Canada (Surintendant des faillites), [2004] F.C.J. No. 1926 (QL) and P.S.A.C. v. Canada (A.G.), 2005 CF 401 (QL).
[31] This confusion stems from the fact that some of the factors that are looked at in determining the requirements of procedural fairness are the same than those looked at in considering the standard of review of a discretionary decision (nature of the decision being made, expertise of the decision maker, statutory scheme). But this Court, following the Supreme Court of Canada in Moreau-Bérubé v. New-Brunswick (Judicial Council), [2002] 1 S.C.R. 249 (QL), has reiterated time and again that the duty of procedural fairness requires no assessment of the standard of review: a breach of procedural fairness will usually void, in and of itself, the decision under review.
[32] If the distinction between tribunals exercising their functions in a so-called "administrative" as opposed to a "judicial" or "quasi-judicial" manner, used to be crucial in order to determine if the rules of natural justice apply, this is no more the case since the decision of the Supreme Court of Canada in [1979] 1 S.C.R. 311">Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311 (QL). From then on, decisions of an administrative or executive character were to be subjected to a general duty of fairness. Since both this duty and the rules of natural justice were held to be variable standards, Justice Sopinka recognized in S.E.P.Q. that "the distinction between these rules becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals". Therefore, the content of these two sets of rules is now determined not so much by the nature of the decisions made by that tribunal, but by reference to the circumstances of each case: [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 (QL); S.E.P.Q. v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (QL); Mercier v. Canada (Human Rights Commission), [1994] 3 F.C 3, [1994] F.C.J. No. 361 (QL); Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. No. 181 (QL).
[33] In Baker v. Canada(Minister of Citizenship and Immigration), the Supreme Court expanded on the factors that are relevant in determining the duty of procedural fairness in a given set of circumstances. Writing for the majority, Justice L'Heureux-Dubé listed five factors (not to be taken as an exhaustive list) to be taken into consideration: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual or individuals affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
[34] It has been established in S.E.P.Q., supra, that the Commission must comply with the duty of procedural fairness when deciding whether the investigation report will be adopted or dismissed pursuant to section 44 of the CHRA. In an obiter, Justice Sopinka concluded that the Commission therefore had the following obligations:
...the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. (at p. 902)
[35] Of course, all these requirements are premised on the fact that the evidence collected by the investigator, as well as his report, provide the Commission with the information to perform its screening function pursuant to section 44 of the CHRA. If the decision of the Commission was to be based on an inadequate investigation, that decision could not be considered reasonable since its evidentiary foundation would be defective. This was most clearly enunciated by Nadon J. (as he then was) in Slattery v. Canada(Human Rights Commission), supra, where he said:
At first blush, it would appear that the CHRC, by providing the applicant with a copy of the investigator's report and by allowing the applicant to respond to the report, was in conformity with the formal wording of the requirements set out in the above cases. However, underlying these requirements is the assumption that another aspect of procedural fairness - that the CHRC had an adequate and fair basis on which to evaluate whether there was sufficient evidence to warrant appointment of a tribunal - existed.
In order for a fair basis to exist for the CHRC to evaluate whether a tribunal should be appointed pursuant to paragraph 44(3)(a) of the Act, I believe that the investigation conducted prior to this decision must satisfy at least two conditions: neutrality and thoroughness. (at p. 598)
[36] Accordingly, I shall rearrange the order of the following questions and first look at the investigation report to determine if it was fair and thorough. I will then turn to the decision of the Commission not to refer the complaint to the Tribunal to determine if it was reasonable, considering all the information that was made available to it. Finally, I will determine whether the reasons provided by the Commission for its decision were in breach of its duty of procedural fairness.
2) Was the investigation thorough and neutral?
[37] As previously indicated, the obligation to conduct a neutral and thorough investigation is a component of the duty of procedural fairness. Thoroughness is an abstract concept that does not lend itself to an easily ascertainable list of things to do and not to do. In Slattery v. Canada(H.R.C.), supra, Nadon J. spelled out the parameters underlying the requirements of thoroughness in the context of an investigation by the Human Rights Commission :
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system. (at p. 600)
[38] The Applicant submits that the Investigator's Report fails to address or analyse the merits of the PSAC's allegations. (The substance of the Investigator's analysis is found at para. 9 of these reasons). These allegations, it must be remembered, turned essentially around the argument that Treasury Board is discriminating against the CR group by segregating that group and the PM group and by applying different standards to measure the value of jobs in these two groups.
[39] In its Report, the Investigator focused exclusively on the fact that the CR and PM groups were no longer segregated, but were subsumed in one group - the PA group. However, the Report failed to acknowledge the crucial fact that the classification system was never actually modified or changed in order to eliminate the discriminatory aspects which clearly existed. It was the purpose of the UCS initiative, but it was abandoned by the Respondent because it was apparently "unworkable". As a result, and even if the CR and PM groups have formally been subsumed in one larger group, the fact remains that the old classification standards continue to be applied, as evidenced by the pay schedules from the most recent PSAC/Treasury Board collective agreement.
[40] Not only is this piece of crucial information totally ignored, but the Report goes on indicating that "it is not possible to assess the gender-neutrality of any new classification plan until it is developed". In the meantime, the jobs held by members of the CR group will continue to be measured according to standards that are allegedly discriminatory and whose compliance with sections 7 and 10 of the Human Rights Act has not been seriously considered, let alone finally determined.
[41] It is no answer to add that "the Commission will continue to be available to provide advice and input into the development of gender neutral classification plans, including a plan applicable to the PA group". This is an interesting forward-looking commitment, but it does not address in any way the complaint that was made more than 20 years ago. And there can be no assurance that a new classification system, compliant with the requirements of the Human Rights Act, will effectively be implemented in the near future.
[42] In a nutshell, I am of the view that the Public Service Alliance of Canada was entitled, on behalf of its CR members, to a thorough examination of its allegations of discrimination. In failing to address one of its crucial arguments - i.e. that the CR and PM groups are still, for all intent and purposes, segregated - the Investigator and, ultimately, the Commission, breached its duty of procedural fairness. The Investigator may have been justified in doing so if the allegations had been moot, but it was certainly not the case at the time of submitting his report.
[43] Having said this, I agree with the Respondent that the Commission has never accepted the complaint as valid, contrary to what the Applicant argues. This would be tantamount to saying that once a complaint is accepted for filing, the Commission must appoint a tribunal or that once an investigator initially determines that a further inquiry is warranted, he/she cannot change his/her mind based on subsequent evidence.
[44] Similarly, the Respondent has never conceded that the CR classification standard is discriminatory. There is simply no evidence suggesting that the employer's efforts to introduce either UCS or any other classification reform are an admission that the present standard is, in fact, discriminatory. The same can be said of the decision to consolidate the CR and PM groups in the new PA group: nowhere is there any indication that this is in recognition that the former separation of the CR and PM groups was discriminatory.
[45] It is precisely because there is disagreement as to the discriminatory nature of the present scheme that the Commission should have looked into this matter more carefully.
3) Did the Commission make a reviewable error when it decided not to refer the complaint to the Tribunal?
[46] The Commission's decision not to refer the complaint to the Tribunal on the basis of the investigator's report cannot be said to have been made on a fair basis to the extent that the Report itself was defective. This, in itself, could dispose of the issue.
[47] Where, as in this case, parties have the legal right to make submissions in response to an Investigator's Report, the parties can compensate for more minor omissions or errors by bringing such omissions to the attention of the decision-maker by way of their submissions. Only where omissions cannot be rectified is judicial review warranted, as where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it: Slattery v. CHRC, supra; Schut v. Canada (A.G.) et al. (1996), 120 F.T.R. 60, [1996] F.C.J. No. 1255 (QL).
[48] The Respondent argues that the Commission took its decision after reviewing not only the Investigator's Report, but also the parties' submissions on that Report, as well as their comments on each other's submissions. As a result, the Commission examined all the circumstances surrounding the complaint, and the Applicant could have pointed out the omissions and errors in the Investigator's Report.
[49] Indeed, PSAC drew the attention of the Commission to these perceived deficiencies in the Investigator's Report. It vigorously opposed the recommendation of the Investigator that the Commission take no further proceedings with respect to this complaint, it reiterated its view that the CR classification standard is discriminatory, it reminded the Commission that it is because of assurances from Treasury Board that the UCS would resolve the issue that the merits of this complaint had never been formally dealt with, and it pointed out that all employees within the PA occupational group continue to be classified pursuant to the old CR/PM structure.
[50] I am of the view that this is a case where the omission was of such a fundamental character that the response filed by PSAC to the Investigator's Report could not rectify the problem. Not only was the Report extremely succinct on that issue, but it failed to provide sufficient information so that the rebuttal from PSAC could be meaningfully assessed. In any event, the Commission failed to address these issues and essentially ignored the position of PSAC.
[51] Finally, the Respondent has argued that "it is a much better use of the Commission's resources to provide advice and input into the development of a new classification standard for the PA group, rather than appointing a tribunal to inquire into a complaint that becomes moot with the introduction of new classification standards". This argument, in my respectful opinion, misses the point entirely and is completely irrelevant. Section 44(3)(b) of the CHRA directs the Commission to dismiss a complaint if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry is not justified. Administrative or budgetary considerations should not be part of the decision. As Nadon, J. said in Slattery:
I cannot agree that subsection 44(3) of the Act allows the CHRC to completely divorce such decisions from the merits of the complaint. If purely administrative considerations (i.e. cost, time) were allowed to prevail, it is conceivable that a person's entitlement to relief under human rights legislation would be dependent on the ease of proving human rights violation. Such an approach is clearly inconsistent with the justice-based purpose of the Act, stated in section 2, to give effect to the principle of equal opportunity.
[52] There is also an argument to be made that it may prove more helpful to the parties to have the matter determined by the Tribunal. In deciding whether the current classification is discriminatory, the Tribunal could come up with reasons and provide parameters that may be of assistance to the architects of a new classification system. As is so often the case, short term benefits should not blind us to longer term advantages.
[53] For all the above reasons, I come to the conclusion that the decision of the Commission is unreasonable since it was not supported by an adequate investigation and could not accordingly be said to be based on a cogent line of reasoning.
4) Did the Commission violate the duty of procedural fairness by failing to provide adequate reasons for its decision?
[54] The final argument submitted by the Applicant relates to the failure of the Commission to provide reasons for its decision. Despite the fact that PSAC submitted a formal request for reasons to the Commission following its decision, the Commission took the position that it had no statutory duty to provide reasons and stated that the basis for the decision is the investigation report. The Applicant accepts that, generally, the Commission has no statutory obligation to provide reasons. But it argues that in the present case, given the inadequacy of the investigation, the importance of the matter at hand, and the length of time this complaint has been pending, the Commission erred by not explaining its decision.
[55] On the other hand, the Respondent maintains that there is no support in the jurisprudence for the Applicant's proposition. Quite the contrary, the Federal Court of Appeal has concluded that failure to provide reasons is not a breach of procedural fairness since the Act does not require it: Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, at para. 23, [1994] F.C.J. No. 361 (QL). Finally, the Respondent also relies on the decision of the Supreme Court of Canada in SEPQ v. Canadian Human Rights Commission, supra, to argue that the investigation report constitutes the Commission's reasons when that Report is adopted by the Commission.
[56] There is no doubt that, as a general principle, the duty of fairness does not require that reasons be provided for administrative decisions, even if their usefulness in ensuring fair and transparent decision-making has often been emphasized. But the Supreme Court has recognized in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, at para. 43, that it may be otherwise in some circumstances:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is statutory right of appeal, or in other circumstances, some form of reasons should be required.
[57] That being said, the obligation to provide reasons in certain circumstances may be fulfilled if the decision is based on a report or on the notes of a subordinate. This option was explicitly recognized in Baker, as a reflection of the flexibility that is necessary in evaluating the requirements of procedural fairness. And this is precisely the reason why the Supreme Court, assuming without deciding that failure to give reasons is itself a basis for review, decided that there was no denial of natural justice or procedural fairness when the Commission dismissed a complaint on the recommendation of the Investigator's report: S.E.P.Q. v. Canada (Human Rights Commission), supra.
[58] I am also mindful of the fact that Parliament has imposed the duty to give reasons in certain specific cases, for example when the Commission has decided not to deal with a complaint for the reasons set out in section 41 (see s. 42(1) of the CHRA). This is an indication that Courts should hesitate before using the rules of procedural fairness to impose a burden that Parliament has chosen to impose in very specific circumstances: Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, at p. 16 (F.C.A.); Gardner v. Canada (A.G.), [2004] F.C. 493, at para. 35).
[59] All things being considered, and bearing in mind that most of these cases have been decided before Baker, I am nevertheless of the opinion that this is one of those special cases where the Commission should have gone further than relying on the Investigator's report, and should have motivated its decision not to defer the complaint to the Tribunal. It is easy to imagine that the dismissal of such a complaint will have a profound impact on the employees in the federal public service who are still classified and evaluated on the basis of a classification that is almost 40 years old and that is challenged as being discriminatory. In dismissing this complaint, the Commission made a decision that was determinative of the rights of the complainant without even addressing its main arguments, on the basis of a report that does not even analyze the allegations of discrimination; in doing so, the Commission leaves itself open to the perception that it fails to give effect to the principle of equal opportunity enshrined in section 2 of the CHRA.
[60] The importance of providing reasons is magnified in this case given the 20 year timeline and the large number of employees affected. These are, in my view, important considerations to bear in mind when assessing the significance of the decision. If the outcome of a humanitarian and compassionate decision, in the immigration context, can have a major impact on an individual, the same can certainly be said of a decision that is likely to affect the dignity, self-esteem and work opportunities of thousands of people. In these very special circumstances, I believe that the Commission had a duty to go beyond merely referring to the investigator's report and to explain its ultimate decision to put an end to this complaint.
[61] Relying on the decision of the Supreme Court of Canada in Baker, supra, the Federal Court of Appeal, in its most recent pronouncement on the subject, stated:
The duty to give reasons is grounded in a person's interest in knowing why profoundly important decisions affecting them are made as they are (...). If, as a result of an intimate involvement in the process leading to the decision, a person understands, or has the means to understand the reason for the decision, the duty to give reasons will vary accordingly.
[62] I fully appreciate that this is more likely to be the case when the Commission does not follow the recommendation of the investigator, especially when it dismisses the complaint. But in the present case, for the above mentioned reasons, I believe that the Applicant could not intelligibly make sense of the decision reached by the Commission and could not, in the absence of any coherent and explicit reasons, understand why the arguments made in response to the Investigator's Report were rejected.
CONCLUSION
[63] In conclusion, this application for judicial review is granted, the decision of the Commission that is under review is set aside, and the matter will be referred back to the Commission for redetermination. Costs are granted to the Applicant.
"Yves de Montigny"
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