Armoyan v. Canada (Attorney General), 2004 FC 730

                                                                                                                      Date: 20040519

                                                                                                                   Docket: T-476-02

                                                                                                            Citation: 2004 FC 730

Ottawa, Ontario, this 19^th day of May, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                      VREGE ARMOYAN

                                                                                                                                Applicant

                                                                   - and -

                                       ATTORNEY GENERAL OF CANADA

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                Mr. Verge Armoyan, the Applicant, sought to make improvements to his waterfront property in Nova Scotia. In December 1999, the Department of Fisheries and Oceans (DFO) served him with a "stop work" order. On October 11, 2000, Mr. Armoyan filed a complaint with the Canadian Human Rights Commission (the "Commission"), alleging that the DFO had discriminated against him because of his colour and national or ethnic origin.

[2]         An investigator was assigned to Mr. Armoyan's case and an Investigator's Report was completed on July 10, 2001. In it, the investigator recommended that the Commission, pursuant to section 44(3)(a) of the Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 1. (the "Act"), request the appointment of a Human Rights Tribunal to inquire into the complaint because:

the evidence supports the allegation that the complainant was treated in an adverse differential manner because of his colour and national/ethnic origin with respect to his dealings with the Respondent.

[3]         Until this point, no submissions had been made by the DFO to the investigator.

[4]         On August 27, 2001, the DFO submitted a 10-page reply to Mr. Armoyan's complaint. This reply was disclosed to Mr. Armoyan who made rebuttal submissions on September 20, 2001.

[5]         On February 21, 2002, both parties were informed by letter that upon considering the Investigator's Report and the parties' submissions, pursuant to section 44(3)(b) of the Act, the Applicant's complaint was dismissed. The following reason was given:

[T]he evidence does not support the allegation that the complainant was treated in an adverse differential manner because of his colour and national or ethnic origin.

[6]         The Applicant seeks judicial review of this decision.

Issues

[7]         Initially, in the application record, Mr. Armoyan raised a number of issues. However, after hearing this matter, it became clear that the only issue is whether the Commission erred or breached Mr. Armoyan's right to procedural fairness by not providing sufficient reasons for its decision.

Analysis

[8]         When it receives an investigator's report and submissions, the Commission has two options - to refer the matter to the Human Rights Tribunal for inquiry or dismiss the complaint. That choice is governed by Section 44(3) of the Act, which states:

[9]         In this case, the Commission's decision was made to dismiss the application pursuant to section 44(3)(b)(i) of the Act.

[10]       The decision of the Commission under section 44(3) of the Act is discretionary (Slattery v. Canada (Human Rights Commissison), [1994] F.C.J. No. 181 at paras. 78-9 (T.D.) (QL), aff'd [1996] F.C.J. No. 385 (C.A.) (QL)). Thus, intervention by this Court is warranted only if Mr. Armoyan can demonstrate that the Commission acted in bad faith, breached the principles of natural justice, or relied on considerations that are irrelevant or extraneous to the statutory purpose ([1982] 2 S.C.R. 2">Slattery,supra citing Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at 7-8).

[11]       Two recent cases of this Court have considered decisions made pursuant to section 44(3)(b)(i) (MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (F.C.) (QL); Gardner v. Canada (Attorney General), [2004] F.C.J. No. 616 (F.C.) (QL)). Justice O'Keefe in MacLean, supra determined (and Justice Gibson in Gardner agreed) that decisions of the Commission should be reviewed on a standard of reasonableness simpliciter. I agree.

[12]       On the basis of this standard and having reviewed the material that was before the Commission, I am satisfied that the conclusion of the Commission was reasonably open to it. Submissions made by the DFO at this stage provided further facts and explanations of the events that led Mr. Armoyan to make his complaint. While I might have concluded differently, the decision of the Commission, the expert in these matters, was not irrational or unsupportable by the evidence.

[13]       This conclusion, however, does not dispose of this matter. In spite of meeting an applicable standard of review, a tribunal may err by breaching the rules of natural justice. Thus, for example, if Mr. Armoyan had not been afforded an opportunity to make submissions is response to those of the DFO or had not seen documents upon which the Commission relied, the result would be a successful judicial review application. The issue of adequacy of reasons may fall within this category of potential errors.

[14]       Mr. Armoyan submits that the Commission was under an obligation, which it failed to meet, to provide reasons for its decision. There are two prongs to his argument.

1.         Section 42(1) of the Act requires that reasons be given. This provision states that:

2.          The conclusion of the Commission that "the evidence does not support the allegation . . . "contradicts that of the investigator that "the evidence supports the allegation . . .". In the face of this contradiction, the Commission was obligated to show why it reached this diametrically opposed conclusion.

Does Section 42(1) require reasons?

[15]       Mr. Armoyan's argument that section 42(1) obligates the Commission to give reasons is without merit. This provision deals solely with a decision at the screening stage that the Commission will not deal with the complaint. Thus, had the Commission decided that it would not deal with Mr. Armoyan's complaint, reasons would have been required, pursuant to section 42(1), to provide reasons. In contrast, section 44(3) does not include any obligation on the Commission to provide reasons for a dismissal.

Is there, nevertheless, a duty to provide reasons?

[16]       The facts of this case are similar to those encountered by Justice Gibson in Gardner, supra. In respect of the complaint filed by the Applicant in that case, there were two investigator's reports. The Commission reviewed the two reports, giving the complainant the full opportunity to make submissions in support of her complaints and to respond to submissions made by the departments of government against which the complaints were made. The first report, recommending that one of the complaints be dealt with, was adopted by the Commission and was not the subject of the judicial review before Justice Gibson. The second report, which considered three separate complaints, concluded with a recommendation that the Commission appoint a conciliator. With respect to the second recommendation, the Commission decided to dismiss the complaints stating simply that "having regard to all the circumstances of the complaints, no further inquiry is warranted". There were no other reasons provided. The Applicant had not requested reasons. Justice Gibson concluded as follows, at paragraph 36:

In the result, I conclude that the Commission did not fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons. I so conclude by reason of the absence of a statutory obligation to provide reasons and also by reason of the Applicant's failure to request reasons following notification of the decision to dismiss her complaints and before commencing this application for judicial review. It follows then that the Commission did not err in a reviewable manner in dismissing the Applicant's complaints, notwithstanding the Applicant's view that, on the evidence before the Commission, it was "plain and obvious" that the Applicant had been discriminated against on the basis of family status and the guarded support for that view expressed in the Investigator's Report.

[17]       The facts of the case before me are indistinguishable from those before Justice Gibson, specifically:

·            the investigator's reports in both cases recommended that further action be taken by the Commission;    

·            in each case, the conclusion of the Commission to dismiss the complaint was diametrically opposed to the recommendation to take the further action;

·            the Applicant, in each case, was provided with the submission of the respondent and with an opportunity to make reply submissions; and

·            both Applicants failed to request reasons for the decision of the Commission.

[18]       The facts faced by Justice O'Keefe in MacLean, supra were also very similar.

I adopt the reasoning of my colleagues in both Gardner and MacLean and conclude that here, as in both those cases, the Commission was not under any obligation to provide further reasons.

Conclusion

[19]       For these reasons, this application for judicial review will be dismissed, with costs to the Respondent.

                                                                 ORDER

THIS COURT ORDERS THAT:

1.          This Court orders that the application is dismissed, with costs to the Respondent.

        "Judith A. Snider"

Judge

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                    T-476-02

STYLE OF CAUSE:                    VREGE ARMOYAN v.

ATTORNEY GENRAL OF CANADA

PLACE OF HEARING:              Halifax, Nova Scotia.

DATE OF HEARING:                May 13, 2004

REASONS FOR ORDER

AND ORDER:                           The Honourable Madam Justice Snider

DATED:                                       May 19, 2004                

APPEARANCES:

Mr. R. Barry Ward                                                              FOR APPLICANT

Ms. Melissa R. Cameron                                                     FOR RESPONDENT

SOLICITORS OF RECORD:

Kimberly-Lloyd Developments Limited                                FOR APPLICANT

Halifax, Nova Scotia

Mr. Morris Rosenberg                                                         FOR RESPONDENT

Deputy Attorney General of Canada