[1] These reasons arise out of an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") whereby the Commission dismissed the applicant's complaint alleging discrimination against him by reason of a disability by the Canadian Security Intelligence Service ("CSIS"). More particularly, the applicant alleges discrimination against him by treatment of him in an adverse differential manner and by failing to provide him with an harassment free work environment. The Commission acted under the authority of subparagraph 44(3)(b)(i) of the Canadian Human Rights Act[1] (the "Act"). The decision under review is dated the 15th of October, 2001.
[2] By Order of this Court dated the 31st of January, 2002, the hearing of this application for judicial review was consolidated with the applicant's application for judicial review of an earlier decision of the Commission, arising out of the same complaint and background, whereby the Commission referred the applicant's complaint to a conciliator, pursuant to subsection 47(1) of the Act, for the purpose of attempting to bring about a settlement of the complaint[2]. The Commission only determined to dismiss the applicant's complaint after conciliation failed. Thus, when the consolidated applications for judicial review came on for hearing, it was acknowledged by counsel for the applicant that the application for judicial review of the decision to refer the applicant's complaint to a conciliator was moot. In the result, that application for judicial review was not argued and was dismissed without order as to costs by Order dated the 29th of October, 2002. For ease of reference, it is directed that a copy of these reasons be placed on Court file T-1182-01.
BACKGROUND
[3] In 1991, while the applicant was employed by CSIS, he was diagnosed as suffering from serious illness. The applicant was provided with a period of leave following which efforts were made to reintegrate the applicant into employment with CSIS. On the 10th of April, 1995, the applicant filed three (3) complaints with the Commission related to those efforts at reintegration. One of those complaints was made against CSIS itself. The others were made against two employees of CSIS. Each of the complaints alleged a discriminatory practice in the course of the applicant's employment. The Commission appointed an investigator to investigate the complaints. Following completion of the investigation, the investigator recommended that the Commission appoint a conciliator to attempt to bring about a settlement of the complaints. The Commission did not accept the investigator's recommendation and dismissed all three complaints. Judicial review was not sought of those decisions of the Commission.
[4] In November of 1998, the applicant brought this fourth complaint before the Commission, this time against CSIS only. Notwithstanding that the complaint was late-filed, the Commission agreed to deal with this fourth complaint. It is the ultimate disposition of this complaint that underlies this application for judicial review.
[5] The Commission assigned an investigator to investigate the complaint. The Commission notified CSIS of the complaint and provided CSIS with an opportunity to respond. CSIS responded on the 18th of March, 1999. The applicant was provided with a summary of CSIS's response and was invited to comment. On the 18th of April, 2000, the applicant replied, after the Commission had reassigned his complaint to a different investigator. On the 31st of August, 2000, the applicant's complaint was once again reassigned, this time to a contract investigator.
[6] On the 19th of September, 2000, the applicant provided further submissions to the investigator. The investigator reported on the 29th of November, 2000. Copies of the investigator's report were provided to CSIS and to the applicant. The investigator's recommendations were in the following terms:
... that the Commission deal with the complaint even though it is based on acts which occurred more than 1 year before the complaint was filed.
...that the Commission appoint a conciliator to attempt to bring about a settlement of the complaint because:
- the complainant presented evidence that he was fit to return work;
- the respondent did not allow the complainant to return to work, but required him to provide further medical information. When the complainant refused to provide the additional information, the respondent terminated the complainant's employment.[3]
[7] On the 21st of December, 2000, CSIS provided the Commission with submissions in response to the investigator's report. By letter dated the 8th of February, 2001, the Commission advised the applicant that it had accepted the investigator's recommendations and had appointed a conciliator to attempt to bring about a settlement of the complaint. As earlier noted in these reasons, the conciliation was not successful. The conciliator's report read in part as follows:
The complaint was not resolved, and the matter is being returned to the Commission for decision.
It is therefore recommended either
a) pursuant to section 49 of the Canadian Human Rights Act, that the Commission request the appointment of a Human Rights Tribunal to inquire into the complaint, or,
b) pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, that the Commission dismiss the complaint because, having regard to all the circumstances of the complaint, an inquiry by a Tribunal is not warranted.[4]
[8] By letter dated the 29th of March, 2001, the Commission provided a copy of the conciliator's report to the applicant and advised him of the options open to it, as reflected in the conciliator's recommendations. It provided both the applicant and CSIS with an opportunity to make further submissions. Both availed themselves of the opportunity, in the case of the applicant, by two separate written submissions.
[9] By letter dated the 15th of October, 2001, the Commission advised the applicant of its decision to dismiss his complaint[5]. This application for judicial review followed.
THE APPLICANT'S ALLEGATIONS AND REQUEST FOR A CERTIFIED RECORD
[10] In his application for judicial review, the applicant alleges, among other things:
- the [Commission] failed in its duty to investigate the applicant's complaint;
- the [Commission], in asserting that the applicant's allegations were a function of mental illness and could not possibly have happened, breached section 15(1) of the Charter of Rights and Freedoms;
- the [Commission], knowing that liberty and security of the person issues as defined in s. 7 of the Charter were part of the applicant's allegations, failed to send the applicant's complaint to the Canadian Human Rights Tribunal;
- the [Commission's] investigation of the applicant's complaint was neither thorough nor neutral, and there were unreasonable omissions by the investigator;
- the [Commission] based its decision on irrelevant considerations and acted in perverse and capricious manner in dismissing the applicant's complaint;
...[6]
[11] Later in his application for judicial review, the applicant alleges that the Commission, by basing its decision on irrelevant considerations and acting in a perverse and capricious manner in dismissing the applicant's complaint, caused the applicant prejudice "...amounting to an abuse of process and a breach of the rules of administrative law"[7].
[12] Once again on the face of his application for judicial review, the applicant requested that the Commission send a certified copy of all materials on its file relating to the complaint under review, "...or materials that pertain to the Applicant's complaint to the [Commission], that is not in the possession of the Applicant but is in the possession of the [Commission] to the applicant and the Registry [of this Court]..."[8].
[13] The Commission responded to the applicant's request for a certified copy of its record with a record certified to contain:
...all of the material that was before the [Commission] when it made its decision, dated October 2001, in respect of [the applicant and the complaint by him that is here under consideration] with the exception of the legal opinion dated May 7, 2001 for which solicitor-client privilege is claimed...[9]. [emphasis added]
THE ISSUES AND THE ROLE OF THE INTERVENER
[14] In his Memorandum of Fact and Law, submitted by the applicant on his own behalf, the applicant described the issues on this application for judicial review in the following terms:
Did the Commission breach the principles of procedural fairness when it dismissed my complaint?
Did the Commission base its decision on an investigation which was not thorough?
Do the circumstances show that the Commission, in dismissing my complaint, erred in law by failing to take a hard look at the evidence and by applying [an] unreasonably high burden of proof in determining whether a reasonable basis existed to warrant the appointment of a Tribunal?[10]
[15] When this matter first came on for hearing before me, the applicant was represented by counsel. Only a few days before, the applicant's recently appointed counsel had advised counsel for the respondent, who in turn had advised the Commission, that he intended, within the scope of the foregoing issues, to emphasize what he alleged was a breach of procedural fairness when the Commission acknowledged, as it did on the certificate covering its record, that the Commission had had before it when it made the decision under review a legal opinion which had not previously been shared with the applicant, and presumably also not with CSIS, and in relation to which the applicant was therefore not provided an opportunity to respond.
[16] Counsel for the respondent urged that this issue was, at best, not well defined in the applicant's Memorandum of Fact and Law, that the respondent was prejudiced in that counsel was not in a position to respond to it and, indeed, did not have before her material on behalf of the applicant that clearly defined the issue on behalf of the applicant. Counsel for the respondent requested an adjournment.
[17] Counsel appeared on behalf of the Commission and urged that the newly defined issue raised on behalf of the applicant represented an extremely important issue for the Commission and therefore requested intervener status.
[18] In the result, hearing of the application for judicial review was adjourned to the 28th of October, 2002, the Commission was granted intervener status on terms, and a schedule was fixed for exchange of Supplemental Memoranda of Fact and Law on behalf of the applicant and respondent and filing and exchange of a Memorandum of Fact and Law on behalf of the intervener.
[19] In the Supplemental Memorandum of Fact and Law filed on behalf of the applicant, counsel for the applicant identified the following supplementary, or better defined, issues:
- standard of review;
- the right to be informed of the case to meet; and
- whether or not legal opinions must be disclosed.
[20] During the hearing before me on the 28th of October 2002, the greater part of argument focussed on the newly defined issues although counsel for the applicant made certain submissions on the broader issues raised by the applicant and counsel for the respondent replied to those submissions. I do not regard any of the issues raised by the applicant as having been abandoned and I will therefore comment briefly on each, notwithstanding that my analysis will focus primarily on the newly defined issues.
ANALYSIS
a) Standard of Review
[21] In Kollar v. Canadian Imperial Bank of Commerce[11], my colleague Justice O'Keefe commented on the standard of review of decisions of the Commission such as that here under review in the following terms at paragraphs [34] and [35] of his reasons:
The standard of review to be applied to a decision of the Commission when dealing with an investigation report was stated by MacKay J. as follows in Bourgeois v. Canadian Imperial Bank of Commerce [2000] F.C.J. No. 388 (QL) at paragraph 12:
In Bell Canada v. Communications, Energy and Paperworks Union of Canada, [1999] 1 F.C. 113 (F.C.A.) at p. 15 the exercise of discretion vested in the Commission in dealing with an investigation report is discussed. Mr. Justice Décary, speaking for the Court, notes inter alia:
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report... . the grounds sets out for referral to another authority ..., for referral to the President of the Human Rights Tribunal Panel ... or for an outright dismissal ... involve in varying degrees questions of fact, law and opinion..., 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.
It is clear 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 to the decision of the Commission 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.
This decision was affirmed in Bourgeois v. Canadian Imperial Bank of Commerce [2000] F.C.J. No. 1655 (QL). At paragraph 3, Décary J. A. wrote for the Court of Appeal:
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. [emphasis added]
[22] The foregoing authority was essentially not in dispute before me. That being said, counsel for the applicant urged that failure to disclose the legal opinion that was before the Commission, and to provide an opportunity to respond to it, amounted to a "procedural unfairness" and that, in any event, the decision of the Commission to dismiss the applicant's complaint could not be determined by this Court to be supportable on the evidence before the Commission in the absence of access to the legal opinion, and any submissions to the Court that counsel considered to be appropriate based on access to the opinion.
b) The duty to inform and to provide an opportunity to respond
[23] In Mercier v. Canada (Human Rights Commission)[12], Justice Décary, after citing at length from the reasons of Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission)[13] who in turn cited from the reasons of Lord Denning in Selvarajan v. Race Relations Board[14], wrote at page12:
As Lord Denning noted, that which procedural fairness requires depend[s] on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. [emphasis added]
[24] Counsel for the applicant urged that this principle extends to legal opinions, notwithstanding doctrines of "deliberative secrecy" and "solicitor-client privilege". As authority for this proposition, he cited, principally Melanson v. New Brunswick (Workers' Compensation Board)[15] and Pritchard v. Ontario (Human Rights Commission)[16].
[25] Counsel for the respondent and for the Commission both urged that Melanson and Pritchard, were wrongly decided in relation to the interplay between solicitor-client privilege and the duty to act fairly. They urged that those cases proceeded on the basis of a misinterpretation of the doctrine of solicitor-client privilege reflected in the following quotations from paragraphs [32] and [34] of the reasons in Melanson:
Having indicated my intended disposition of this case, I want to say something with respect to the legal opinions which the W.C.B. refused to produce. As I see it, the opinions are not privileged .
...
Legal opinions given in relation to the interpretation of legislation which is germane to a claim before one of the Board's tribunals is not privileged. Such professional opinions are, in my view, for the benefit of employers, employees and dependents in the processing of claims by the Workers' Compensation Board, not simply something for the exclusive use of the Board. When the W.C.B. is in an adversarial position or has caused the legal opinion to be generated for matters unrelated to claims, a solicitor-client privilege relationship arises vis-a-vis other parties. However, when the legal opinions relate to the interpretation of W.C.B. legislation or the duty or obligation to pay claims, they must not be withheld from the employers, employees or their dependents. Privilege does not attach. When the opinions were requested litigation was not contemplated nor in hand as between the administrator or the fund and the employer, employee or a dependent... . [citations omitted]
Paragraphs [51] to [53] of the reasons of Justice MacFarland at first instance in Pritchard, supra, are to somewhat the same effect.
[26] Counsel urged that, in essence, Melanson proceeded from the basis that for solicitor-client privilege to exist, there must be between the Workers' Compensation Board, on the facts of this matter, the Commission, and the claimant, once again on the facts of this matter, the complainant, an adversity of interest. In so deciding, counsel urged that the learned judges in Melanson and Pritchard erred; their reasoning was flawed in their perception of the "fundamental premise" underlying the doctrine of solicitor-client privilege. Counsel urged that, rather than adversity of interest, the "fundamental premise" underlying solicitor-client privilege is that a body, such as the Commission on the facts of this matter, is entitled, like individuals and corporations, to a right of full and frank communications with its legal counsel without facing the risk that in subsequent litigation, here this application for judicial review, such communications might be required to be disclosed. That the doctrine or principle of solicitor-client privilege extends to communications between a body such the Commission and its legal advisors was essentially not in dispute before me. In Hammami v. College of Physicians and Surgeons of British Columbia[17], Justice Harvey wrote at paragraph [29]:
The degree of protection provided by solicitor-client privilege does not vary on the basis of the identity of the client, whether the client is an individual, corporation, government body, et cetera: ...
For this proposition, he cites re: Stevens v. Canada (Prime Minister)[18].
[27] Counsel for the Commission further submitted that the principle of "deliberative secrecy" is so fundamental to the functioning, not only of courts and court-like bodies, but also of administrative tribunals engaged in a decision-making process that it, as well, should trump the principle of fairness under which an individual whose interest may be affected by a decision of a tribunal is entitled to know the case being considered in relation to him or her and to have a reasonable opportunity to respond to that case.
[28] I am satisfied that I need not directly confront the foregoing issues.
[29] That the doctrine or principle of solicitor-client privilege is of fundamental importance and extends to all communications between a client and a solicitor that relate to the seeking and obtaining of legal advice is beyond question. Justice Arbour, in supplementary reasons on behalf of herself and Justice L'Heureux-Dubé in which it is made clear that she and her colleague "agree entirely with [the reasons of Justice Major on behalf of the remaining members of the Court] analysis and disposition of [the] appeal..." there before the Supreme Court of Canada, wrote at paragraph [112] of the reasons of R. v. Brown[19]:
Solicitor-client privilege is fundamental to the Canadian justice system and is one of our most entrenched exclusionary rules of evidence. As R. v. McClure, [2001] 1 S.C.R. 445, ..., makes clear, the circumstances in which solicitor-client privilege will yield are rare and should only be as a last resort when the innocence of an accused is at stake. [one citation omitted]
While the facts before the Supreme Court of Canada in Brown were very different than those in issue here involving, as they did, the question of exclusion of evidence where the innocence of an accused was potentially at stake, I am satisfied that some passages from the reasons are nonetheless instructive on the facts of this matter where the issue is exclusion from disclosure under the doctrine of fairness where fundamental human rights of the applicant are potentially
at stake.
[30] In Brown, Justice Major, for himself and six other judges, wrote at paragraphs [1] to [3] of the reasons:
This appeal deals with the application of the test set out in R. v. McClure, [2001] 1 S.C.R. 445, ... . It raises again the competing interests of solicitor-client privilege and an accused's right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence. Both are fundamental tenets of our system of justice. In McClure, this Court recognized that solicitor-client privilege is not absolute and may, in rare circumstances, be required to yield in order to permit an accused to make full answer and defence to a criminal charge.
While it is impossible to place either right higher on a hierarchy, as these reasons hope to explain, Canadians' abhorrence at the possibility of a faulty conviction tips the balance slightly in favour of innocence at stake over solicitor-client privilege. A similar decision on public policy has been made to protect the identity of informants.
However, it was also emphasized in McClure, at para. 5, that "the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one". While obvious, the Court reiterated that any erosion of the absolute nature of solicitor-client privilege would of necessity cause some damage to the solicitor-client relationship. McClure should be considered as determining that the appropriate test is one of innocence at stake, such that solicitor-client privilege "should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction" ... . It is intended to be a rare exception and used as a last resort. [some citations omitted, emphasis added]
While no authority is cited in relation to the last sentence in the second paragraph quoted immediately above, that sentence would appear to be a reference to Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependant v. Canada (Commissioner of the Royal Canadian Mounted Police)[20], and more particularly to the result in that matter and to paragraphs [12] and [13] of the reasons of Justice Reed.
[31] Justice Arbour, as noted earlier, speaking for herself and Justice L'Heureux-Dubé in supplementary reasons, wrote at paragraph [116]:
The idea that courts maintain the discretion to relax the rules of evidence when an accused's innocence is at stake has its roots in Williams. In that case, Martin J.A. held that an accused's right to make full answer and defence must comply with established rules respecting the admission of evidence ... . Martin J. A. did, however, go on to state that the court had a residual discretion to relax strict rules of evidence in favour of the accused when necessary to prevent a miscarriage of justice ... . Support for this proposition, as expressed in Williams, is also found in the Ontario Court of Appeal decisions of R. v. Rowbotham ... and R. v. Finta ..., as well as in this Court's decision in Finta, ... . [citations omitted]
Justice Arbour concluded at paragraphs [119] and [120] in the following terms:
The same concerns that animate the rule in McClure, and that have led to the creation of an exception to one of our most stringent exclusionary rules, should also inform the application of other, less critical rules of evidence by which information is withheld from the jury. In the case of hearsay, threshold concerns about necessity and reliability, which reflect issues of fairness to the opponent in the adversary system, should be weighed against the dangers of convicting an innocent person and the undesirability of intruding into confidences made to a solicitor.
I would therefore suggest that in the course of McClure applications, trial judges should examine all alternatives to infringing the privilege in the same spirit and with the same flexibility as the policy considerations that led to the creation of the McClure rule in the first place.
[32] I adopt the guidance proffered by Justice Arbour in the last quoted paragraph and conclude that, where what is at stake on the facts of this matter is fairness to the applicant in his efforts to ensure protection of his fundamental human rights through an opportunity to know the case that he has to meet before the Commission and to have a full opportunity to respond to that case, all alternatives to overriding, let alone infringing solicitor-client privilege should be examined. I note the words adopted by Justice Major from the McClure decision that "the occasions when the solicitor-client privilege yields are rare and test to be met is a stringent one", and that solicitor-client privilege "should be infringed only where core issues..." are at stake. I nonetheless draw comfort from his acknowledgement that solicitor-client privilege is not absolute and may, albeit in rare circumstances, be required to yield "...in order to permit an accused to make full answer and defence to a criminal charge." While what is at issue here is not full answer and defence to a criminal charge, it is not without parallel features: it is the opportunity for the applicant to make full answer in a context where his allegation of infringement of his fundamental human rights might be, and indeed on the facts before me was, irrevocably determined against him.
[33] On the facts of this matter, I am satisfied that some infringement on the principle of solicitor-client privilege is preferable to the contraction of the scope of that principle which, once again I am satisfied, and in this I am in agreement with the submissions of counsel for the applicant, is the effect of the Melanson and Pritchard decisions.
[34] I return briefly to a quotation of the reasons of Justice Décary in Mercier, supra that appears earlier in these reasons. Justice Décary wrote:
Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. [emphasis added]
[35] On the facts of this matter, it cannot be disputed that the legal opinion in question was dated the 7th of May, 2001, while the decision under review was made in October, 2001. There was nothing before me that would support an argument that the Commission could not, in the interval between the date of the legal opinion and the time the decision was taken, have disclosed to the applicant, as well as to CSIS, the fact that it had sought a legal opinion on the issues arising in this matter and the substance, not necessarily the exact terms, of the question referred to legal counsel. Such information, combined with an assurance to the applicant and to CSIS that the opinion was sought on the basis of all of the material that eventually went before the Commission, except for the responsive legal opinion itself, and on nothing more, would, I am satisfied, constitute an informing of the applicant and CSIS of, in the words of Justice Décary, "the substance" of the additional evidence on which the Commission considered it might rely in making its decision. It would then have been open to each of the applicant and CSIS to make his and its reply submissions, if any, either through counsel or otherwise, as to what the correct answer to the question posed to counsel should be and as to its relevance, or the lack thereof, to the decision the Commission would be called upon to make. Thus, disclosure would be made "of the substance of the evidence" and, I am satisfied, a satisfactory opportunity to reply would be provided without infringement in any fundamental way of solicitor-client privilege.
[36] As to deliberative secrecy, I am satisfied that it is simply not at issue on the facts of this matter.
[37] On the foregoing basis, I conclude that the Commission breached its duty of procedural fairness to the applicant by failing, when it had a reasonable opportunity to do so without infringing in a fundamental way any solicitor-client privilege to which it was entitled, to inform the applicant of the substance of the totality of the evidence on which the Commission might have relied in making its decision and to provide the applicant with a reasonable opportunity to comment on that evidence and to present all relevant arguments relating thereto. I am satisfied that the foregoing conclusion not only fully responds to the issues raised on behalf of the applicant regarding the duty of the Commission to inform the applicant of the case to be met and to provide him with a reasonable opportunity to respond thereto, but also preempts the issue raised on behalf of the applicant regarding whether the legal opinion that was before the Commission and the precise question on which it was based must be disclosed to enable this Court to effectively determine this application.
c) Other issues raised by and on behalf of the applicant
[38] As indicated earlier in these reasons, the applicant, on his own behalf, raised issues regarding: the failure of the investigation to deal with a key aspect of his complaint, namely, his allegation of bad faith of the part of CSIS and the failure by the investigator to interview key witnesses with regard to this issue thus, impliedly, ignoring his allegation of discrimination contrary to section 15 of the Canadian Charter of Rights and Freedoms[21] and section 7 of the Charter as it relates to security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the insufficiency of the Commission's reasons in dismissing his complaint; and the failure of the Commission to take a "hard look" at the evidence before it that CSIS's conduct was tainted by a "subtle scent of discrimination". Each of these issues was argued briefly before me. I will deal equally briefly with each of them in turn.
[39] In his complaint to the Commission that led to the decision under review, the applicant, at least implicitly, alleged bad faith and discrimination by CSIS in dealing with the applicant throughout the period following his incident of illness until the time when his employment was terminated[22]. The applicant alleged that the Commission failed in its duty under the Charter, sections 7 and 15, to ensure that the investigation into his complaint, conducted on behalf of the Commission, effectively examined these allegations. The applicant alleged that this failure to conduct a thorough investigation is evidenced by the failure of the investigator to interview a range of witnesses identified by the applicant who, the applicant further alleged, would have provided evidence bearing out or corroborating the applicant's full range of allegations.
[40] In R. v. 974649 Ontario Inc.[23], Chief Justice McLachlin, for the Court, wrote at paragraphs [36] and [39]:
Parliament and the provincial legislatures premise legislation on the fact that courts and tribunals operate within a legal system governed by the constitutional rights and norms entrenched by the Charter. The "functional and structural" approach reflects this premiss. It rests on the theory that where Parliament or a legislature confers on a court or tribunal a function that engages Charter issues, and furnishes it with procedures and processes capable of fairly and justly resolving these incidental Charter issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power.
...
It follows that the remedial powers of courts and tribunals - even those that antedate the Charter - must be interpreted in light of the Charter's enactment. The enactment of the Charter was undoubtedly a watershed event in our legal history and tradition - it added a "new dimension to the Canadian legal system" ... ushering in a new regime of constitutional rights and remedies. The Charter guaranteed new rights to individuals against government authority; accordingly, "[i]t should not be a matter for surprise that individuals claiming to have such rights assert them before agencies created to provide a speedy determination of their rights in relation to government authority": ... In other words, the Charter's enactment necessarily embroiled numerous courts and tribunals in the new regime of Charter rights and remedies. The statutory powers of these bodies must be interpreted in light of this profound shift in the landscape of Canadian Law. [citations omitted]
[41] Counsel for the applicant urged that the applicant's Charter rights to security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice, under section 7, and to equal protection and equal benefit of the law without discrimination on certain enumerated and analogous grounds under subsection 15(1) of the Charter, were here offended, or at least not fully respected, by the Commission through its acceptance, as the basis of the decision under review, of a report of an incomplete and therefore fatally flawed investigation.
[42] While it is beyond question that the investigator who completed the investigation leading to the decision under review did not interview all witnesses that the applicant recommended he interview, I am satisfied that it is equally beyond question that an investigator acting on behalf of the Commission has the right, and indeed the obligation, to determine the scope of his or her investigation, while respecting Charter values and at the same time contributing to the effective and timely dispatch of complaints before the Commission.
[43] In Connolly v. Canada Post Corporation[24], Justice MacKay wrote at paragraphs [26] to [28]:
In the result, it is not surprising that this Court finds no basis to set aside the decision of the Commission. In Walker v. Randall, ..., Mr. Justice Teitelbaum commented in part:
41. If in fact the complaint is the thoroughness of the Investigation Report, then the present judicial review application must be dismissed. Judicial review is the wrong procedure to attack the "thoroughness of an investigator's investigation of a complaint.
and further:
53. ... I am satisfied it is now established that, "at the scrutiny stage" of the investigation, after receiving a complaint of discrimination, the Commission has a "remarkable degree of latitude" as to what kind of an investigation must be made before it can conclude that the complaint should not be sent to a tribunal for a hearing.
In Slattery v. Canada (Human Rights Commission)..., Mr. Justice Nadon commented:
Deference must be given to administrative decision-makers to assess the probative value of evidence and 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,... .
In my opinion, with deference owed to the exercise of its discretion by the CHRC, and in the absence of evidence of error in law or of patent unreasonableness in fact-finding, or of breach of procedural fairness, in its decision by the Commission, the Court has no basis to set aside the decision of the Commission. [citations omitted]
[44] I am satisfied that the foregoing comments are applicable here and that the applicant has failed to make out a ground for judicial review on the basis of this issue. The applicant had a full opportunity to comment on the investigation report. He availed himself of that opportunity and his comments were before the Commission. There is nothing before me from which I could conclude that the Commission ignored the applicant's concerns. In the absence of any such evidence, the applicant cannot succeed on this ground.
[45] The applicant and counsel on his behalf at the hearing before me further alleged that the Commission simply failed to take a "hard look" at the investigative report that was before it and that in so doing it failed in its obligations to the applicant. Based upon the material before me, and taking into account the foregoing brief analysis with regard to the allegations regarding insufficiency of the investigation underlying the report that was before the Commission, I find no basis whatsoever to support relief on this ground.
[46] Finally, the applicant and counsel at hearing on his behalf urged that the Commission decision letter was simply insufficient to provide fairness to the applicant, particularly in light of the presumed reliance by the Commission on a legal opinion that was before it and that had not been disclosed to the applicant and in respect of which the applicant was given no opportunity for reply. Counsel for the applicant acknowledged that this ground was essentially in the alternative to the ground earlier discussed at greater length regarding breach of fairness. In light of my conclusions regarding breach of fairness, I will not pursue this ground further.
CONCLUSION
[47] In the light of the foregoing analysis, on the basis of breach of procedural fairness, this application for judicial review will be allowed. The decision of the Commission that is under review will be set aside and the matter will be referred back to the Commission for redetermination.
[48] The applicant urged further relief, in particular an order that the Commission be directed to refer his complaint to a Tribunal in accordance with the Act or, alternatively, that the Commission be directed to consider the applicant's complaint in accordance with directions provided by this Court. I am satisfied that it is beyond the authority of this Court to direct the Commission to refer a complaint to the Canadian Human Rights Tribunal. That is the prerogative of the Commission. Apart from the guidance to the Commission already provided by these reasons, I find no basis on the material and submissions before me that would warrant this Court in providing further direction to the Commission.
COSTS
[49] The applicant urged that costs of this application should be payable to him "...on a costs incurred basis". Before me, counsel for the applicant sought costs but did not urge special circumstances which warranted costs on other than the ordinary basis. Counsel for the respondent urged that, in the event of success by the applicant on this application for judicial review, there should be no order as to costs but, once again, urged no special circumstances that would justify such an order.
[50] The intervener's costs obligations were dealt with in the earlier order of this Court granting intervener status. Paragraph 6 of that order reads as follows:
Costs of the Intervener on its motion and any reasonable costs of the Applicant attributable to the Commission as the Intervener are to be borne by the Commission; ...
[51] Costs for the adjournment motion referred to earlier in these reasons were left to be dealt with at this stage.
[52] The applicant will be entitled to his costs, on the ordinary scale, against the respondent with such costs being reduced by any consensus reached between counsel for the respondent and counsel for the intervener with regard to costs of the applicant to be borne by the intervener. Costs recoverable by the applicant from the respondent shall not include any costs of the respondent's earlier motion to adjourn the hearing of this matter.
_________________________________
J. F.C.C.
Ottawa, Ontario
November 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2029-01
STYLE OF CAUSE: William Jonathon Baltruweit v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 30, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
DATED: November 19, 2002
APPEARANCES:
Mr. Clayton Ruby FOR APPLICANT
Mr. Brian Evernden
Ms. Monika Lozinska FOR RESPONDENT
Ms. Andrea Wright FOR INTERVENER, CANADIAN HUMAN RIGHTS COMMISSION
SOLICITORS OF RECORD:
Ruby & Edwardh
Toronto, ON FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Canadian Human Rights Commission FOR INTERVENER
[2] Court file: T-1182-01.
[3] Applicant's Application Record, Volume I, tab 3, page 89.
[4] Applicant's Application Record, Volume 1, tab 3, page 48.
[5] Applicant's Application Record, Volume 1, tab 3, page 40.
[6] Applicant's Application Record, Volume I, tab 1, page 3.
[7] Applicant's Application Record, Volume I, tab 1, page 5.
[8] Applicant's Application Record, Volume I, tab 1, page 5.
[9] Applicant's Application Record, Volume I, tab 3, page 44.
[10] Applicant's Application Record, Volume II, tab 5, page 130.
[11] [2002] F.C.J. No. 1125, (online: (QL)(T.D.).
[12] [1994] 3 F.C. 3 (C.A.).
[14] [1976] 1 All E.R. 12 (C.A.).
[15] [1994] N.B. J. No. 160 (C.A.); leave to appeal to the Supreme Court of Canada dismissed, [1994] S.C.C.A. No. 266.
[16] [2001] O.J. No. 2788 (Div. Ct.); aff'd under the same name, [2002] O.J. No. 1169, (S.C.J.); appealed to the Ontario Court of Appeal; heard September 18, 2002, Court File No. C-38105; judgment reserved.
[17] (2000), 25 Admin. L.R. 207 (B.C.S.C.).
[18] [1998] 4 F.C. 89 at 105 (C.A.).
[19] (2002), 210 D.L.R. (4th) 341 (S.C.C.), not cited before me.
[20] [1998] 2 F.C. 252 (T.D.).
[21] Part I of the Constitution Act, 1982, (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
[22] Applicant's Application Record, Volume 1, tab 2, pages 9 to 11.
[23] (2001), 159 C.C.C. (3d) 321 (S.C.C.).
[24] [2002] F.C.J. No. 242, (online: QL)(T.D.).
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