Date: 20040611
Docket: T-2015-02
Citation: 2004 FC 855
BETWEEN:
MARVIN ALLEN SHARP
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
GIBSON J.
[1] The Applicant complained to the Canadian Human Rights Commission (the "Commission") that the Correctional Service of Canada ("CSC") discriminated against him by reason of its failure to accommodate him as a person with a disability, that disability being Retinitis Pigmentosa. By undated letter received by the Applicant on the 4th of November, 2002, the Commission advised the Applicant that, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, it had decided to dismiss the Applicant's complaint. The only reasons given for the Commission's decision were the following:
The evidence does not support the complainant's [the applicant's] allegation that the respondent has failed to accommodate him.
[2] These reasons follow the hearing of an application for judicial review, filed by the Applicant himself, seeking review of the Commission's decision.
[3] The Applicant is serving a lengthy term of incarceration by reason of a criminal conviction. At all relevant times, he was incarcerated at Drumheller Institution, a correctional institution operated by the Correctional Service of Canada. It is not in dispute that he suffers from Retinitis Pigmentosa, a progressive vision impairment that eventually leads to blindness. In fact, the Applicant has been in receipt of a disability pension under the Canada Pension Plan
since 1992. In his complaint materials, he alleged that CSC failed to accommodate him by failing to provide proper medical care, by failing to provide written materials in alternate formats, by failing to meet his request for assistance with his meals by providing early meal hours, by failing to provide him with the same meals as those served to the general inmate population and by failing to provide him with a barrier-free and safe environment.
[4] The Commission conducted an extensive investigation into the Applicant's complaint, albeit that the Commission's investigator did not attend in person at Drumheller Institution in the course of that investigation. The investigator prepared a relatively extensive Investigator's Report which was distributed to the Applicant and to CSC. Both the Applicant and CSC were provided an opportunity to respond to the report and both availed themselves of that opportunity. The Investigator's Report concluded with a brief analysis addressing each of the heads of complaint by the Applicant and with the following recommendation:
It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the commission dismiss the complaint because:
• the evidence does not support the complainant's allegation that the respondent has failed to accommodate him.
[5] The Investigator's Report, together with the responses to that report made by the Applicant and CSC, was submitted to the Commission for consideration. The decision under review followed, adopting, essentially in identical terminology, the recommendation of the Commission's investigator.
[6] The provisions of the Canadian Human Rights Act that are relevant to this application for judicial review are the following:
| 5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
[emphasis added]
|
|
5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public_:
a) d'en priver un individu;
b) de le défavoriser à l'occasion de leur fourniture.
[je sousligne]
|
|
|
|
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It was not in dispute before me that the complaint made by the Applicant was of adverse differentiation or failure to accommodate in the provision of goods, services, facilities and accommodation on a prohibited ground, that ground being disability.
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.
...
(3) On receipt of a report referred to in subsection (1), the Commission
...
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any
ground mentioned in paragraphs 41(c) to (e).
[emphasis added]
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
...
(3) Sur réception du rapport d'enquête prévu au
paragraphe (1), la Commission:
...
b) rejette la plainte, si elle est convaincue:
(i) soit que, compte tenu des circonstances relatives à la
plainte, l'examen de celle-ci n'est pas justifié,
(ii) soit que la plainte doit être rejetée pour l'un des
motifs énoncés aux alinéas 41c) à e).
[je sousligne]
On the facts of this matter, paragraph 44(3)(b) applies in that the Commission clearly concluded that an inquiry into the Applicant's complaint was not warranted.
[7] The issues arising on this application for judicial review are only two in number, namely:
first, the appropriate standard of review of the decision under review; and secondly, whether, against that standard of review, the Commission made any reviewable error in arriving at the decision it did.
[8] In Gardner v. Attorney General of Canada I determined that the appropriate standard of review of a decision such as that here under review is reasonableness simpliciter. In this regard, I relied heavily on a decision of my colleague, Justice O'Keefe, in MacLean v. Marine Atlantic Inc. and the cases cited therein. I am satisfied that the reasoning in those authorities is applicable in the circumstances of this matter and that the appropriate standard of review is reasonableness simpliciter.
[9] In Law Society of New Brunswick v. Ryan Justice Iacobucci, for a unanimous Court,
wrote at paragraphs 46, 47 and 55:
Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the Court would have reasoned or decided as the tribunal did....
...
The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?"...
Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter....
...
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere... . This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling....
[some citations and some text omitted]
[10] References in the foregoing quotation to reasons and to the line of analysis within the given reasons raise a degree of difficulty on the facts of this matter unless one is to conclude, and I so conclude on the material before me, that the brief and unhelpful reasons given by the Commission in the decision under review, reflecting as they do the recommendation of the investigator that was before the Commission, incorporate by reference the whole of the investigator's report.
[11] Considering the investigator's report as a whole, against the foregoing description of the test for sustainability of the decision under review, I am satisfied that the decision of the Canadian Human Rights Commission that is here under review must be sustained, notwithstanding the eloquent protestations of the Applicant who acted on his own behalf in this matter.
[12] In the result, this application for judicial review will be dismissed.
[13] Counsel for the Respondent, in his Memorandum of Fact and Law, indicated that the Respondent seeks costs. That submission was not repeated before the Court. Taking into account all of the material and submissions before the Court in this matter, in the exercise of the Court's discretion, there will be no Order as to costs.
"Frederick E. Gibson"
J. F. C.
Calgary, Alberta
June 11, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2015-02
STYLE OF CAUSE: Marven Allen Sharp v. The Solicitor
General of Canada
PLACE OF HEARING: Drumheller,
Alberta
DATE OF HEARING: June 10, 2004
REASONS FOR ORDER : GIBSON J.
DATED: June 11, 2004
APPEARANCES:
Mr. Marvin Allen Sharp(On His Own Behalf)
FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Mountain Penitentiary (On His Own
Agassiz, British Columbia Behalf)
FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
2004 F.C. 493, April 2, 2004.
[2003] F.C.J. No. 1854 (QL).
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