Date: 20041025
Docket: T-1307-03
Citation: 2004 FC 1497
Vancouver, British Columbia, this 25th day of October 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
JEANNE TO-THANH-HIEN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Ms. Jeanne To-Thanh-Hien (the "Applicant") seeks judicial review of the decision of the Canadian Human Rights Commission (the "Commission") to dismiss her complaint that she had been discriminated against by the Public Service Commission of Canada (the "PSC"), contrary to sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the "Act"). In this application, the Attorney General of Canada is the Respondent.
BACKGROUND
[2] The Applicant is a citizen of France, born in Vietnam. She came to Canada in September 1987 as a permanent resident and obtained Canadian citizenship in 1991. Prior to her arrival in Canada, the Applicant applied for work in the PSC. This is confirmed by a letter dated March 9, 1987 from the PSC Staffing Program which acknowledged receipt of her employment application. That letter referred to a preference for employment of Canadian citizens.
[3] The Applicant received a second letter dated April 3, 1987 from the PSC acknowledging receipt of her application for employment in a program for the employment of members of visible minorities. According to this letter, the PSC was prepared to take all possible steps to ensure that the Applicant obtained employment in the federal civil service.
[4] Following her arrival in Canada, the Applicant submitted applications for employment directly to several government agencies. She obtained some intermittent temporary employment but was unsuccessful in finding a full-time position. On September 13, 1989, the Applicant filed a complaint with the Commission, alleging that the PSC had discriminated against her on a continuing basis since September 1987, in the matter of employment, on the grounds of national or ethnic origin. Specifically, the Applicant claimed that the PSC had failed to refer her to positions for which she was qualified because she was not a Canadian citizen.
[5] An investigator was appointed to look into the Applicant's complaint and in April 1990, submitted a report to the Commission with the recommendation that the complaint be referred to the Canadian Human Rights Tribunal on the basis that the PSC applied a policy that gave preference to the employment of Canadian citizens. The investigator noted that this was in conformity with the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended.
[6] The Investigation Report, as it appears in the Tribunal Record, is in French. The translation of the conclusions and recommendations provides as follows:
Investigation findings
3. The evidence discloses that candidates who are not Canadian citizens are only referred to positions within the Public Service of Canada when there are no applicants who are Canadian citizens. This practice is in keeping with the Public Service Employment Act, under which Canadian citizens are hired preferentially.
4. The evidence does not establish that the complainant was refused employment because she is of French origin. However, the evidence does show that the failure to refer her to positions within the Public Service was due to a policy that disadvantages applicants who are not Canadian citizens. This policy is in keeping with an Act of Parliament and the respondent has not proven a bona fide justification.
Recommendation
5. It is therefore recommended, pursuant to section 49 of the Canadian Human Rights Act, that the Commission ask the Chairperson of the Human Rights Tribunal Panel to form a human rights tribunal to inquire into the complaint.
[7] In the meantime, the Applicant had commenced an action in the Federal Court of Canada, Trial Division, challenging the constitutionality of section 16(4)(c) of the Public Service Employment Act, supra. That section provides as follows:
| 16.
...
(4) Where, in the case of an open competition, the Commission is of the opinion that there are sufficient qualified applicants who are
...
(c) persons who are Canadian citizens who do not come within paragraph (a) or (b),
to enable the Commission to establish an eligibility list in accordance with this Act, the Commission may confine its selection of qualified candidates under subsection (1) to the applicants who come within paragraph (a), paragraphs (a) and (b) or paragraphs (a), (b) and (c).
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16.
...
(4) Dans le cadre d'un concours public et en vue de l'établissement, conformément à la présente loi, d'une liste d'admissibilité, la Commission apprécie s'il y a suffisamment de postulants qualifiés qui sont_:
...
c) des citoyens canadiens autres que ceux visés par les alinéas a) ou b).
Elle peut, lorsqu'elle estime leur nombre suffisant, limiter la sélection prévue au paragraphe (1) soit aux postulants mentionnés à l'alinéa a), soit à ceux mentionnés aux alinéas a) et b), soit à ceux mentionnés aux alinéas a), b) et c).
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[8] The Commission responded to the Investigation Report and recommendations on November 11, 1990, by deciding to "stand down" the complaint, pending the decision by the Federal Court, Trial Division in the action undertaken by the Applicant and two other persons, Elizabeth Lavoie and Janine Bailey.
[9] The Federal Court, Trial Division, in a judgment reported as Lavoie v. Canada, [1995] 2 F.C. 623 (T.D.), dismissed the actions on the grounds that although section 16(4)(c) infringed section 15, the preferential treatment is saved by section 1 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").
[10] Upon appeal to the Federal Court of Appeal, that Court dismissed the appeals in a decision reported as Lavoie v. Canada, [2000] 1 F.C. 3 (C.A.). Justice Marceau found that the statutory provisions did not breach section 15. Justice Desjardins, concurring in the result, found that the challenged legislation "amounts to a reasonable exercise by Parliament of its power with respect to citizenship". For his part, Justice Linden found that section 16(4)(c) violated section 15(1) and could not be justified under section 1 of the Charter.
[11] The Supreme Court of Canada, by a majority, dismissed the final appeal undertaken in the Charter litigation in a decision reported as Lavoie v. Canada, [2002] 1 S.C.R. 769. Chief Justice McLachlin and Justice L'Heureux-Dubé , in a joint decision that was also the judgment of Justice Binnie, found that section 16(4)(c) infringed section 15(1) and was not justified under section 1. Justice Bastarache, whose opinion was concurred in by Justices Gonthier, Iacobucci and Major, found a breach of section 15(1) that was demonstrably justified under section 1. Justice Arbour found that there was no breach of section 15(1). In a separate judgment, Justice LeBel found that there was no breach of section 15(1).
[12] The Applicant was advised by letter from the Commission, dated August 26, 2002, that it was analysing the decision of the Supreme Court to determine what further work was required before her complaint was placed before the Commission for a decision. The decision is document 13 in the materials certified by the Secretary of the CHRC.
[13] According to her affidavit filed in the present proceeding, the Applicant retained legal counsel to assist her in dealing with her complaint before the Commission. Counsel wrote a letter on her behalf to the Commission on March 19, 2003, inquiring as to the status of her complaint and requesting that an investigator contact the Applicant so that she could provide further information. By letter dated March 20, 2003, the Commission advised the Applicant's counsel that the report would be disclosed shortly and that there would be an opportunity for the parties to respond.
[14] The Supplementary Investigation Report was forwarded to the Applicant under cover of a letter dated March 19, 2003. The letter was written in French and the Applicant, in her affidavit, says that her lawyer had requested that the documents be prepared in English. The letter of March 19, 2003 says that the Applicant may submit her comments on the Supplementary Investigation Report if she wished and that such comments should be limited to ten pages, to be forwarded by April 14, 2003.
[15] In the Supplementary Investigation Report, the investigator addressed the March 2002 decision of the Supreme Court of Canada in Lavoie, supra and offered the following remarks:
The Supreme Court determined that paragraph 16(4)(c) of the PSEA violates subsection 15(1) of the Charter. However, it also determined that the distinction made between citizens and non-citizens is justified under the first section of the Charter as "reasonable limitation" of equality rights. It does not infringe on the human dignity and freedom of the appellants. This distinction is not established on the basis of "personal and real differences between individuals".
[16] The investigator recommended that the Commission dismiss the complaint on the grounds that "having regard to all the circumstances of the complaint, an inquiry by a Tribunal is not warranted".
[17] The Applicant deposes in her affidavit that she received the letter of March 19, 2003 on April 3, 2003. Due to prior commitments for travel outside Canada, she sought, through her counsel, an extension of time within which to file her comments. The letter seeking an extension of time was forwarded to the Commission on April 7, 2003. By letter dated April 8, 2003, from Mr. George Kolk, Manager of the Investigations Branch with the Commission, the request for an extension was denied. That letter provided in part as follows:
You state that your client did not receive the Investigation Report until April 3, 2003. Canada Post "Track a Package" shows that Ms. To Thanh Hien did not pick up the Investigation Report until ten days after Canada Post left a card advising her to pick up the item at the local Canada Post outlet. I have attached a copy of the Canada Post "Track a Package" report.
In addition, I note that you and your firm previously represented the Appellants before the Supreme Court of Canada in this matter. Therefore, you and your firm are fully familiar with the issues raised in the complaint. I fail to see what difficulty you would have in producing a submission for Ms. To Thanh Hien.
For the above reasons, we will not grant an extension to the April 14 deadline. I would also like to remind you of the ten page limit on submissions. Submissions beyond the ten page limit will not be placed before the Commission.
[18] By letter dated April 14, 2003, counsel provided submissions on behalf of the Applicant to the Commission. By further letter dated April 29, 2003, the Applicant's counsel wrote to the Commission, objecting to the page limitation for comment. The Applicant prepared further information, consisting of copies of employment applications, letters of reference and performance evaluations. These materials, together with further submissions, were submitted to the Commission under cover of a letter dated May 21, 2003.
[19] This material included a "Statement of Facts" prepared by the Applicant in which she set out a chronology of events and a summary of her opinion as to the unfairness of the citizenship preference upon her. This document concludes with the following statement of the relief sought by the Applicant:
[46] REMEDIES SOUGHT
Considering all the facts and evidence presented, the complainant requests that:
1) the citizenship preference in 16 (4) (c) be declared discriminatory as a non bona fide occupational requirement;
2) the PSC be requested to find a less intrusive manner to reach its objectives;
3) she be compensated for all losses and prejudice caused to her by the application of the citizenship preference, which are to be evaluated by an assessor.
[20] In the meantime, the PSC, by letter dated May 15, 2003, offered its comments on the original submissions filed by the Applicant and further indicated that it agreed with the recommendation made in the Supplementary Investigation Report that further intervention by the Canadian Human Rights Tribunal was not justified.
[21] The Commission responded to the Applicant's counsel by letter dated May 28, 2003 from Mr. Kolk. He acknowledged receipt of the "late submission dated May 21, 2003" and advised that the letter, but not the attachment, had been disclosed to the PSC for its review and comments. Mr. Kolk referred to the ten page limit on submissions and said that the attachments would not be presented to the Commission.
[22] Counsel for the Applicant wrote to Mr. Kolk on May 28, 2003, objecting again to the manner in which the Commission was proceeding. As well, counsel requested the additional materials be placed before the Commission. Finally, counsel referred to cross-disclosure of any new submissions made by the PSC "so that we may be accorded procedural fairness by being allowed to address these new issues".
[23] By letter dated June 6, 2003, the PSC wrote to the Commission, in response to the further submissions of the Applicant. That letter provides, in part, as follows:
Thank you for giving us an opportunity to respond to the additional submissions of the complainant's counsel dated May 21, 2003. Please be advised that we were not given a copy of the letter dated April 29, 2003 referred to therein.
Although we did not receive Ms. To-Thanh-Hien's document and list of events, it is our position that the reasons identified in the additional submissions as supporting the request not to dismiss her complaint are a repetition of the first submissions dated April 14, 2003, which we have already responded to on May 15, 2003.
[24] By letter dated July 2, 2003, the Commission advised the Applicant that her complaint had been dismissed. The letter provides, in part, as follows:
I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint (H31589) against Public Service Commission of Canada.
Before rendering its decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because, having regard to all the circumstances, an inquiry by a Tribunal is not warranted.
Accordingly, the file on this matter has now been closed.
The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaint very carefully before arriving at this decision.
For your information, either party to a complaint can ask the Federal Court, Trial Division, to review a Commission decision under subsection 18.1 of the Federal Court Act. The application to the Court must normally be filed within 30 days of receipt of the Commission's decision.
[25] On July 25, 2003, the Applicant filed her Notice of Application seeking judicial review of the Commission's decision, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. As part of her Notice of Application, she requested disclosure of "the full record of all proceedings before the Commission" relative to her complaint. On July 31, 2003, the Commission produced the following Certificate with the materials identified:
I, the undersigned, Lucie Veillette, Secretary to the Canadian Human Rights Commission (hereinafter the "CHRC"), do hereby certify that the materials listed below constitute all the material that was before the CHRC when it made its decision on June 25, 2003 in respect of Jeanne To-Thanh-Hien's complaint against the Public Service Commission of Canada (H31589). I further certify that the attached copies constitute true and complete copies of such materials. The materials were provided to the Commissioners in CD Rom format, except as otherwise stated below, and the copies have been made by printing from the CD Rom and then enlarging them slightly to assist legibility.
1. Complaint Form dated September 23, 1989 (page 01);
2. Investigator's Report - Additional Information (original in French) dated March 21, 2003 (pages 02-04);
3. Investigator's Report - Additional Information (translated English version) dated March 21, 2003 (pages 05-07);
4. Letter from Scott Serson to George Kolk dated April 3, 2003 (page 08);
5. Letter from David Yazbeck to George Kolk dated April 14, 2003 (page 09);
6. Response to the Supplementary Investigation Report from David Yazbeck (pages 10-19);
7. Letter from Gaston Arseneault to George Kolk dated May 15, 2003 (pages 20-25);
8. Letter from David Yazbeck to Sylvie McNicoll dated May 21, 2003 (pages 26-29);
9. Letter from Marie-Claude Turgeon to George Kolk dated June 6, 2003 (pages 30-31);
10. Investigation Report dated April 30, 2990 (pages 32-33);
11. Letter from Gaston Arseneault to Michel Paré dated July 17, 1990 (pages 34-36);
12. Chronology (page 37); and
13. Document made available to the Commissioners for the Commission meeting of June 25, 2003 (pages 06-42).
SUBMISSIONS
[26] The Applicant argues that the decision of the Commission to dismiss her claim raises questions of law regarding her rights, the Act and the Charter. Accordingly, the standard of review is correctness. She also submits that her application for judicial review remains a secondary issue concerning procedural fairness, thoroughness and whether all relevant considerations were taken into account, and that these secondary issues are also reviewable on a standard of correctness.
[27] The Applicant also submits that the Commission erred in law by relying on the decision of the Supreme Court in Lavoie, supra as being determinative of her claim. She says that the issues raised in that case were substantially different from those raised in her complaint and that the Supreme Court addressed the analogous ground of citizenship, whereas her complaint before the Commission is based on national or ethnic origin. Further, she says that her complaint addresses systemic discrimination and this issue was not considered by the Supreme Court.
[28] The Applicant raises a further argument as to a case of procedural fairness in the conduct of the investigation, the imposition of a page limit on her submissions, the refusal of an extension of time within which to file her submissions and failure to disclose all comments made by the PSC on her responses to the report. She submits that the investigation was not fair or thorough.
[29] The Respondent argues that the Commission's decision to dismiss the Applicant's complaint is reviewable on the standard of reasonableness. Further, he submits that the Commission did not decide any point of law and accordingly, did not commit any error of law. Further, he argues that the decision is reasonable and there was no breach of procedural fairness, including natural justice.
DISCUSSION
[30] The Applicant is challenging the decision of the Commission to dismiss her complaint of discrimination in the matter of employment, specifically employment in the federal civil service. She alleged discrimination contrary to sections 7 and 10 of the Act, which provide as follows:
| 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.
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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.
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| 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.
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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.
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[31] The proscribed grounds of discrimination are set out in section 3(1) as follows:
| 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.
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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.
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[32] Section 43 authorizes the Commission to undertake an investigation into a complaint, as follows:
| 43(1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.
(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4).
(2.1) Subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, an investigator with a warrant issued under subsection (2.2) may, at any reasonable time, enter and search any premises in order to carry out such inquiries as are reasonably necessary for the investigation of a complaint.
(2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant.
(2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
(2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator.
(3) No person shall obstruct an investigator in the investigation of a complaint.
(4) The Governor in Council may make regulations(a) prescribing procedures to be followed by investigators;
(b) authorizing the manner in which complaints are to be investigated pursuant to this Part; and
(c) prescribing limitations for the purpose of subsection (2.1).
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43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l'enquêteur » , d'enquêter sur une plainte.
(2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4).
(2.1) Sous réserve des restrictions que le gouverneur en conseil peut imposer dans l'intérêt de la défense nationale ou de la sécurité, l'enquêteur muni du mandat visé au paragraphe (2.2) peut, à toute heure convenable, pénétrer dans tous locaux et y perquisitionner, pour y procéder aux investigations justifiées par l'enquête.
(2.2) Sur demande ex parte, un juge de la Cour fédérale peut, s'il est convaincu, sur la foi d'une dénonciation sous serment, qu'il y a des motifs raisonnables de croire à la présence dans des locaux d'éléments de preuve utiles à l'enquête, signer un mandat autorisant, sous réserve des conditions éventuellement fixées, l'enquêteur qui y est nommé à perquisitionner dans ces locaux.
(2.3) L'enquêteur ne peut recourir à la force dans l'exécution du mandat que si celui-ci en autorise expressément l'usage et que si lui-même est accompagné d'un agent de la paix.
(2.4) L'enquêteur peut obliger toute personne se trouvant sur les lieux visés au présent article à communiquer, pour examen, ou reproduction totale ou partielle, les livres et documents qui contiennent des renseignements utiles à l'enquête.
(3) Il est interdit d'entraver l'action de l'enquêteur.
(4) Le gouverneur en conseil peut fixer, par règlement_:
a) la procédure à suivre par les enquêteurs;
b) les modalités d'enquête sur les plaintes dont ils sont saisis au titre de la présente partie;
c) les restrictions nécessaires à l'application du paragraphe (2.1).
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[33] Following completion of an investigation, a report is to be submitted to the Commission. The Commission has a number of options in dealing with the report, as set out in section 44, as follows:
| 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.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(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).(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
(2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas_:
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(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).
(4) Après réception du rapport, la Commission_:
a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3).
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[34] In the present case, the Commission decided to dismiss the complaint. The letter from the Tribunal said that "having regard to all the circumstances, an inquiry by a Tribunal is not warranted". This language parallels the language of section 44(3)(b)(i) of the Act.
[35] The Applicant says that the Commission's decision to dismiss her complaint is reviewable on the standard of correctness. She submits that the Commission erred in law by concluding that the final appellate level decision in Lavoie, supra, that is the judgment of the Supreme Court of Canada, addressed and disposed of the issues raised in her complaint. I disagree with both submissions.
[36] It is well established that a decision of the Commission to dismiss a complaint under the Act is an administrative decision. It is subject to judicial intervention on limited grounds, that is where it is demonstrated that the Commission has committed an error of a jurisdictional or procedural nature or where the decision is otherwise founded upon an error of law. In this regard, I refer to Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 where Justice Sopinka said the following at page 899:
... In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. ...
[37] Subsequently, in Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113 (C.A.), Justice Décary, writing for the Court, said as follows at page 136:
It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891).
[38] In the same case, the Court further addressed the high degree of deference afforded the Commission when dealing with an investigation report. At page 137, the Court said as follows:
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.
[39] The foregoing jurisprudence makes it clear that the decision under review is a highly discretionary one, reviewable on the standard of reasonableness. Contrary to the submissions of the Applicant, the Commission did not deal with a question of law or an interpretation of a statute. The Supplementary Investigation Report refers to the decision of the Supreme Court of Canada in Lavoie, supra, as additional information, that is supplementary information obtained since the Commission stood down the Applicant's complaint in 1990. In my opinion, that was relevant information for the Commission to consider in deciding whether to refer the Applicant's complaint to inquiry before a Tribunal or to dismiss it.
[40] The litigation that was commenced by the Applicant challenged the constitutionality of the employment preference for Canadian citizens in the Public Service Employment Act, supra. The subject of her complaint under the Act was discriminatory practice in the matter of employment, pursuant to sections 7 and 10 of the Act on the basis of prohibited grounds of national or ethnic origin, identified in section 3.
[41] The discriminatory practice that the Applicant identified in her complaint to the Commission was directly related to the citizenship preference in the Public Service Employment Act, supra, although she identified the grounds of discrimination as national or ethnic origin. The courts, including the Supreme Court, dealt with the issue raised by the Applicant, that is citizenship, and ultimately concluded that the citizenship preference withstood Charter scrutiny and was not discriminatory, in the constitutional sense. I fail to see any legitimate foundation for the Applicant's current argument that the decision of the Supreme Court did not address her concern within the context of human rights and the Act. The circumstances here can be distinguished from those in Canadian Human Rights Commission v. Minister of National Revenue et al. (2003), 242 F.T.R. 175, a decision relied on by the Applicant.
[42] That case involved judicial review of a decision of a Tribunal appointed under the Act. The Tribunal applied the test for discrimination as set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. At page 178, the Court said that this test does not apply to human rights legislation as follows:
The definition of "discrimination" under subsection 15(1) of the Charter, and outlined in the Law case, does not apply to human rights legislation. The Supreme Court of Canada was clearly concerned in Law with the meaning to be given to the constitutional standard of equality set out in the Charter. It gave no indication that its approach should apply more broadly to human rights codes or statutes, whether in provincial or federal law. (Emphasis in original)
The Court proceeded to review the Tribunal's decision, on a standard of reasonableness, and concluded that its decision, dismissing the complaint, met the standard.
[43] Contrary to the Applicant's arguments, it appears that the Commission did not engage in the application of the Law, supra test but reached a decision on the basis of the material before it, including the decision in Lavoie, supra, that an inquiry into the Applicant's complaint was not warranted. This decision was only part of the material before the Commission, according to the Certificate provided by the Commission, in response to Rule 317 of the Federal Court Rules, 1998.
[44] In the present case, the complaint did not proceed to an inquiry. There is no evidence that the Commission applied, rightly or otherwise, the test for constitutional discrimination. It is reasonable, however, to infer that it considered the material that was before it, including the decision of the Supreme Court of Canada in Lavoie, supra.
[45] In Canada (Attorney General) v. Brown (2001), 286 N.R. 395 (F.C.A.), the Federal Court of Appeal found that when a constitutional challenge to a statutory provision has been adjudicated, the same challenge will not lie, for the purpose of the Act. At paragraphs 5 and 6, it said as follows:
[5] We are all of the opinion that the application must be allowed and the Umpire's decision set aside. The Umpire did not base his decision on section 15 of the Canadian Charter of Rights and Freedoms, presumably because Ms. Brown had not given notice of a constitutional question as required by subsection 57(1) of the Federal Court Act, R.S.C. 1985, c. F-7. However, this Court has already rejected a challenge under section 15 of the Charter to the validity of the statutory maximum number of weeks of benefits and, in particular, to the inclusion of "special benefits", such as maternity benefits, in the determination of the number of weeks of employment insurance benefits to which an applicant is entitled: Sollbach v. Canada (Attorney General) (1999), 252 N.R. 137 (F.C.A.).
[6] Since the Court has found that the statutory cap on the weeks of regular benefits payable to a claimant who has received maternity benefits in the same benefit period is not discriminatory for the purpose of section 15 of the Charter, it would be unjustifiable to hold that the same provision is discriminatory for the purpose of the Canadian Human Rights Act. Further, counsel was unable to refer us to any authority for the proposition that, on an appeal from a Board of Referees, it is open to an Umpire to read out of the Employment Insurance Act a clear and otherwise valid provision on the ground that it is contrary to the Canadian Human Rights Act.
[46] In my opinion, the same reasoning applies here. The essence of the Applicant's complaint is discrimination in the matter of the application, to her, of an employment policy that was based on differential treatment related to national or ethnic origin, that is the citizenship preference in section 16(4)(c) of the Public Service Employment Act, supra. She did not make that challenge in a vacuum. According to the decision of the trial judge, there was evidence concerning her personal circumstances. In that regard, I refer to pages 630-631 of that judgment, reported at [1995] 2 F.C. 623 (T.D.) as follows:
Ms. To Thanh Hien is a French language editor. Prior to her arrival in Canada in 1987, she applied to the PSC for employment with the public service of Canada and was placed in the PSC's national inventory. She was also referred to the PSC's Employment Services for Visible Minorities Program, National Capital Region.
Upon arrival in Canada, Ms. To Thanh Hien, having heard nothing from the PSC, applied directly to various federal government departments, as well as to the House of Commons, for a position. She was referred by a personnel agency to a number of temporary positions in the federal government from September 1987 to March 1989. By direct application, Ms. To Thanh Hien managed to secure part time work for the House of Commons as a French language editor.
In November 1987, Ms. To Thanh Hien learned of the citizenship preference. She was advised of the preference, in writing, in December 1987. From December 15, 1987 to June 10, 1988, Ms. To Thanh Hien provided secretarial and clerical services to Agriculture Canada. In April 1988, she became aware of a term position, IS-03, as a French language editor, with Agriculture Canada. The Chief of Editorial Services considered Ms. To Thanh Hien for the term position, however, he was advised not to seek a "name referral request" for the plaintiff because she was not a Canadian citizen. There is no evidence that a "named referral" was ever made by Agriculture Canada to the PSC. In May 1988, Agriculture Canada commenced the staffing of this position on a term basis by way of open competition. The PSC referred 11 candidates but the plaintiff was not one of them. Ms. To Thanh Hien believed she was not referred because she was not, at the time, a Canadian citizen.
On March 7, 1989, the plaintiff was appointed by open competition to a term position as a secretary (ST-SCY-02) in the Department of the Secretary of State. Prior to the expiry of that term, from April 12, 1989 to July 28, 1989, she was redeployed to the Translation Secretariat of the Department of the Secretary of State. She was again to be redeployed, to another branch of the Department of the Secretary of State, from May 23, 1989 to November 3, 1989. However, effective May 15, 1989, Ms. To Thanh Hien was appointed to a second ST-SCY-02 term position in the same department. The specified period of appointment was from May 15, 1989 to March 30, 1990. Although she accepted the offer of appointment in writing on June 20, 1989, she testified that she did not understand she was being appointed to another position, for a ten month period, rather than simply being redeployed.
[47] The judgments of the Federal Court, Trial Division, the Federal Court of Appeal and the Supreme Court of Canada show a variety of opinions but ultimately, the majority of the judges who considered the issues raised by the Applicant concluded that there was no discrimination. Against this background, the decision of the Commission not to refer the complaint to an inquiry was reasonable.
[48] The Applicant, however, has also raised the issue of procedural fairness. Was the investigation conducted in a fair, neutral and thorough manner, as discussed in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff'd. (1996), 205 N.R. 380 (F.C.A.). In that decision, the trial judge said the following at page 600:
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...
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[49] The Applicant complains that there was insufficient investigation and that she was deprived of the opportunity to submit further material to the investigator in relation to the Supplementary Investigation Report. The Applicant included her further submissions and documentary material in the affidavit filed in this present proceeding. While this is questionable, in light of the nature of judicial review proceedings where the review is conducted solely on the basis of the material that was before the decision-maker, I am satisfied that the "extra" material does not change the result.
[50] It is clear that the Applicant had the opportunity to respond to the Supplementary Investigation Report. The fact that she was not permitted to augment her response does not change that fact. A tribunal is entitled to establish limits on what it will accept, as an aspect of managing its own procedures. In this regard, I refer to Beno v. Canada(Attorney General), [2002] 3 F.C. 499 (T.D.). I see no reviewable error in the manner in which the investigation and further investigation were conducted.
[51] Likewise, I see no error arising from the fact that the letter of June 6, 2003, from the PSC to the Commission, was not disclosed to the Applicant. That letter does not address any substantive matters, in response to the supplemental submissions of the Applicant dated May 21, 2003. The PSC is merely repeating its earlier position, that the complaint should be dismissed. According to the Rule 317 certificate, both the Applicant's submissions of May 21, 2003, as well as the letter of June 6, 2003, were before the Commission. There was no breach of procedural fairness resulting from non-disclosure of the June 6, 2003 letter to the Applicant. That letter did not raise any new argument that required a reply from the Applicant.
[52] In the result, the Applicant has failed to show that the Commission committed any reviewable error or a breach of procedural fairness in the manner in which it dealt with her complaint. This application for judicial review is dismissed with costs.
ORDER
The application for judicial review is dismissed with costs.
(Sgd.) "E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1307-03
STYLE OF CAUSE: JEANNE TO-THANH-HIEN
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 20, 2004
REASONS FOR ORDER
AND ORDER: Heneghan J.
DATED: October 25, 2004
APPEARANCES:
Mr. James Cameron FOR APPLICANT
Mr. Brian Evernden FOR RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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