Saliga v. Canada (Armed Forces), docket T-1757-96

     T-1757-96

BETWEEN:

     DOUGLAS SALIGA

     Applicant

     - and -

     CANADIAN ARMED FORCES

     Respondent

     - and -

     CANADIAN HUMAN RIGHTS COMMISSION

     Intervenor

     REASONS FOR ORDER

PINARD J.

         This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision rendered by the Canadian Human Rights Commission (hereinafter "the CHRC" or "the Commission") on June 20, 1996, dismissing the applicant's complaint of discrimination against the Canadian Armed Forces on grounds of family and marital status. The CHRC concluded that, considering all the circumstances of the applicant's complaint, no further proceedings were warranted.

         The applicant seeks an order setting aside the Commission's decision not to proceed with his complaint, and directing the Commission to comply with its decision to appoint a conciliator to bring about a settlement of the complaint.

         On June 30, 1994, the applicant filed a complaint with the CHRC. He alleged that the respondent discriminated against him by refusing to continue to employ him on grounds of family and marital status (married with children), in contravention of section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (hereafter "the Act"). On November 17, 1994, the CHRC decided, pursuant to paragraph 41(e)¹ of the Act, to exercise its discretionary power to extend the time limit in order to allow it to proceed with an investigation into the applicant's complaint. A Human Rights Officer was then appointed to investigate the applicant's complaint.

         The Investigation Report into the applicant's complaint was completed by the Human Rights Officer on April 21, 1996. The Report included the following conclusion and recommendation:

55. The evidence shows that the complainant was forced to resign from the Armed Forces, in May 1992, prior to the end of a fixed period of service, and without entitlement to an annuity.

56. It is recommended that the Commission appoint a conciliator to attempt to bring about a settlement of the complaint.

         By letters dated April 23, 1996, both the applicant and the respondent were informed by the CHRC of the completion of the investigation, and the recommendation that would be made to the Commission. They were advised that the Commission could accept, reject or change this recommendation. Both parties were invited to forward written comments on the Investigation Report no later than May 17, 1996, which would then be submitted to the Commission for consideration along with the Report.

         On April 30, 1996, the applicant forwarded his comments to the CHRC, along with a witness statement from his wife. The respondent forwarded its comments by letter dated May 21, 1996.

         The applicant's complaint was considered by the CHRC at its meetings of June 10 and 11, 1996. The Commission decided that, considering all the circumstances, no further proceedings were warranted. This decision was conveyed to the applicant by letter dated June 20, 1996.

         By letter dated June 20, 1996, the respondent, Canadian Armed Forces, was advised that the Commission had "decided to appoint a conciliator to attempt to bring about a settlement of the complaint satisfactory to all parties concerned". A second letter dated August 7, 1996 was sent to the respondent. The letter indicated that an error had been made in the earlier letter dated June 20, 1996, and that in fact the Commission had decided that "considering all the circumstances, no further proceedings are warranted".

         The present application for judicial review was filed on July 24, 1996.

         The decision of the CHRC not to proceed with the applicant's complaint was made pursuant to subparagraph 44(3)(b)(i) of the Act, which reads as follows:

44. (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

         The Act confers the Commission with the authority to decide whether the facts of a particular complaint justify a more in-depth investigation. The decision of the Commission to either appoint a tribunal or to dismiss a complaint pursuant to subsection 44(3) of the Act is accordingly a discretionary one. The Commission's exercise of discretion is of course subject to the duty of procedural fairness. In S.E.P.Q.A. v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, the Supreme Court of Canada discussed the requirements that must be met in order for the Canadian Human Rights Commission to comply with the duty of procedural fairness when arriving at a decision under subsection 36(3) of the Act (now subsection 44(3)). Justice Sopinka stated, at page 902:

. . . I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.

As to the material the Commission was entitled to consider in arriving at its decision, Justice Sopinka stated:

The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

         In the present case, both the applicant and the respondent were given the opportunity to submit their comments to the Commission with respect to the findings contained in the Investigation Report. Although the Commission did not disclose the respondent's comments to the applicant prior to rendering its decision, in my view those comments were simply arguments based on the facts set out by the investigator in his report, and cannot be characterized as an attack upon the applicant's credibility. Accordingly, there was no obligation on the Commission to provide the applicant with an opportunity to "rebut" those comments (see Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (F.C.A.)).

         The applicant's allegation that the Commission breached the duty of procedural fairness by allowing the respondent to file its comments four days later than the deadline for submissions initially set down is without merit, as the applicant has not established that he suffered any prejudice as a result of the late filing itself. The applicant's argument that the Commission exercised its discretion in a capricious manner when it rendered two different decisions on the applicant's complaint must also be set aside, since the Commission's error in initially sending the "wrong" decision to the respondent resulted in no obvious prejudice to the applicant.

         Finally, I disagree with the applicant's contentions that the Commission erred by not having before it the applicant's actual Personal Evaluation Reports (PERs) for the relevant years, and by not investigating the actual practice followed by the respondent respecting compassionate leave. In my view, the applicant has failed to establish that the Investigation Report completed in the instant case contained "unreasonable omissions", nor has he established that the "investigator failed to investigate obviously crucial evidence" (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.), affirmed by A-116-94, March 26, 1996 (F.C.A.)). A review of the Investigation Report itself, as well as some of the materials underlying that report, disclose a detailed and comprehensive investigation into the applicant's complaint. The Investigation Report makes detailed reference to each of the relevant PERs, and in particular notes the marked contrast between the PERs the applicant received while at CFB Winnipeg, and the PER he received during his short stay at CFB Trenton. In my view, the thorough summary of the PERs given by the investigator rendered it unnecessary to provide the actual documents to the Commission for review. Similarly, it is my opinion that the investigator sufficiently explored the issue of compassionate status. In my view, having canvassed the positions of the parties with respect to the availability of compassionate status, and the onus on the applicant to apply for it, there was no need for the investigator to undertake an exhaustive investigation into the actual practice followed by the respondent Canadian Armed Forces respecting compassionate leave.

         I must therefore conclude that the applicant has failed to establish that the CHRC violated the duty of procedural fairness owed to him. Since there is also no evidence that the CHRC exercised its discretion in bad faith, or acted in a discriminatory, capricious, or unreasonable manner, the present application is dismissed.

OTTAWA, Ontario

June 5, 1997

                                

                                         JUDGE

__________________

     ¹      41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that          [. . .]          (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.