Garnhum v. Deputy Canada (Attorney General), docket T-3024-94

     T-3024-94

IN THE MATTER OF an application for Judicial Review of a decision of the Canadian Human Rights Commission dismissing the complaint of Brian Garnhum against the Canadian Armed Forces.

AND IN THE MATTER OF the Canadian Human Rights Act.

BETWEEN:

     BRIAN GARNHUM, The Complainant in a Human Rights Complaint

against the Canadian Armed Forces, dated May 9, 1989,

     Applicant,

     and

     DEPUTY ATTORNEY GENERAL OF CANADA FOR a decision

made by the CANADIAN HUMAN RIGHTS COMMISSION,

     Respondent,

     and

     THE CANADIAN HUMAN RIGHTS COMMISSION,

     Intervenor.

     REASONS FOR ORDER

NOËL, J.:

     This is an application pursuant to section 18.1 of the Federal Court Act¹ for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") dismissing the applicant's complaint of discrimination against the Canadian Armed Forces (the "CAF") under the Canadian Human Rights Act.²

I.      FACTS

     Mr. Brian Garnhum (the "applicant") began working for the CAF in 1980. He was promoted to the rank of Captain, becoming a Medical Associate Officer in 1984, a Hospital Administration Officer in 1987 and an Evacuation Platoon Commander-Field Operations in early 1988. Personnel Evaluation Reports (PERs) for the applicant for the years 1985 to 1987 rated his work performance as "normal", although the 1987 PER noted that he had "performed at a level below his potential". The applicant's 1988 PER, signed in April 1988, rated his potential as low, and did not recommend him for a promotion. The report stated that the complainant required additional training and experience "to function at a level commensurate with his peers..." and that he was "not considered ready for promotion as he will require additional guidance to develop his abilities and improve his self-confidence."³ No mention was made in the PERs of any medical condition of the applicant which could explain his poor performance.

     In May 1988, the applicant was advised that he was being closely observed to determine whether he should be placed on a Report of Shortcomings. On September 28 1988, the applicant's commanding officer requested that he undergo a psychological assessment under Canadian Forces administrative orders ("CFAO") 34-25 (Psychoneurotic and Personality Disorders - Medical Examination and Disposal) and 26-10 (Mental, Psychoneurotic and Personality Disorders). The applicant was evaluated by one of the respondent's psychiatrists who referred him to psychological testing. The psychiatrist reported on November 1 1988 that the applicant suffered from a compulsive personality disorder and that he was "highly unlikely to be helped by any kind of psychotherapy because he plainly doesn't see any problem with himself and systematically attributes his difficulties to others."⁴ As to the applicant's career, the psychiatrist concluded that his behaviour was unlikely to change, was engrained in his personality and that if his supervisors were not pleased with it, he should be released according to CFAO 34-25.

     By "Notice of Intent to Recommend Release" dated November 1988, the applicant was advised that his release would be recommended for the following reasons:

It is the combined opinion of specialists in psychiatry and psychology that you suffer from a personality disorder as defined in CFAO 34-25 para 2(d). Further, your condition is unlikely to benefit from any therapy or to change due to factors beyond your control. This disorder affects your employment to such a degree I consider you not advantageously employable.5

It is noteworthy that a memorandum dated October 19 1988 discussing the request for a psychological evaluation of the applicant reveals that the respondent had planned as early as October 19 (before the psychiatrist's November report) to release the applicant "along correct administrative channels".⁶ On December 12 1988, the applicant indicated on his release form that he objected to the release. The applicant was effectively released on March 8 1989.

     The applicant obtained reports from an independent psychologist and from a staff psychiatrist at the Royal Ottawa Hospital. The psychologist, in a letter to the applicant's lawyer dated January 16 1989, concluded that there was no evidence of any particular personality disorder, and that the applicant appeared to be self-confident, capable and energetic in the management of his life and

responsibilities.⁷ The psychiatrist, in a report dated March 15 1989, concluded that there was no evidence that would lead one to make a diagnosis of compulsive (or any other) personality disorder.⁸

     On March 1 1989, the applicant filed a redress of grievance regarding his release.⁹ He also submitted a complaint to the Canadian Human Rights Commission on May 9 1989 wherein he stated he had reasonable grounds to believe that the CAF had engaged in a discriminatory practice on March 8 1989 on the ground of disability (perceived personality disorder) in contravention of the Canadian Human Rights Act. The applicant particularized his complaint as follows:

The Canadian Armed Forces has discriminated against me by terminating my employment as a member of the Armed Forces because of a perceived mental disability (perceived personality disorder) contrary to section 7 of the Canadian Human Rights Act. The Canadian Armed Forces pursues a policy or practice which deprives or tends to deprive individuals or groups of individuals of employment opportunities because of a perceived/actual personality disorder, contrary to section 10 of the Canadian Human Rights Act.

(...)

I do not believe that I have a personality disorder. I further believe that this perceived personality disorder was used as a method to terminate my employment because of performance problems, instead of assisting me to improve my performance or to transfer to another occupation within the Armed Forces.

Therefore, I believe I was terminated because of a perceived mental disability.10

An investigator was appointed by the Commission on May 23 1989.

     The redress of grievance followed its course and was eventually granted by the Chief of Defence Staff, who informed the complainant, in a letter dated December 6 1990 that :

... Based on my review of your complaint, I believe that you have a valid complaint and should not have been released without the benefit of a Report of Shortcomings under CFAO 26-21. Accordingly, I have directed that you be offered the opportunity to re-enrol in your former military occupation in the Regular Force on short engagement terms of service of nine years' duration subject to you meeting all applicable enrolment standards, with the rank and seniority that you held on release. I have also directed that your 1988 Personnel Evaluation Report (PER) be removed from your personnel record. As for the records of psychological and psychiatric referrals and assessments, I believe that these should remain on your file.

Should you re-enrol within a reasonable period of time, I will support compensation for loss of pay and allowances since release, less your civilian employment income and unemployment insurance benefits received during that period. I will also support compensation for actual and reasonable expenses incurred as a result of your release...11

On December 12 1990, the applicant informed the Commission investigator that he did not consider this offer adequate to settle the complaint. The applicant, in a letter to the Associate Minister of National Defence (the "Associate Minister") dated April 6 1991 in effect refused the respondent's offer, stating that he wanted re-instatement as opposed to an opportunity to re-enrol and that he wanted records of psychological/psychiatric referrals and assessments deleted from his files. The applicant explained to the investigator that:

... although he was offered the opportunity to re-enrol, he wants the re-enrolment to be guaranteed. He also wants the original medical reports taken out from all files or, at least, he would like the subsequent independent contradictory medical reports to be added to the files. He states that this was never offered to him. He is of the view, however, that if the original medical reports remain on file, he will not be allowed to re-enrol, or that he could be released again based on these medical reports.12

     In a letter dated July 17 1991 to the applicant's Member of Parliament, the Associate Minister stated that no provision in the National Defence Act allowed for the reinstatement of an individual who had been administratively released, and that the only remedy was re-enrolment. In a memorandum dated August 14 1992 regarding a recommendation that the respondent remove medical documentation from the applicant's file, the Surgeon General stated that implementing such a recommendation would impact negatively on the quality of medical care:

2.      Medical assessments, laboratory tests or diagnostic interventions are in essence a "snapshot" in time and quite frequently are of themselves not totally diagnostic or may even, in fact, be eventually disproved. It is the accumulation of the above over time, however, which enables the physician to make an accurate diagnosis and appropriate recommendations concerning the member's disposition. Accordingly, to disregard or render inaccessible, to the attending physician, pertinent medical information is an infringement on the diagnostic process.

3.      Although, it is likely that the legal requirements of the Provincial Medical Boards and Colleges would be met by the proposal that the originals of the medical documents in question be retained by the Surgeon General, the fundamental reason for maintaining complete and accessible medical documentation would be violated. This would create a most undesirable precedent and, should this approach become acceptable practice, the ability of the Medical Branch to ensure the provision of acceptable levels of medical care could be jeopardized. Concurrently, the ability of medical authorities to accurately advise Commanders in respect to medical fitness would be eroded.13

     In light of these facts, on February 24 1993, the Commission investigator submitted a report to the Commission recommending that it appoint a conciliator pursuant to section 47 of the Act to attempt to bring about a settlement of the complaint. By letter dated March 22 1993, the applicant submitted extensive comments to the Commission responding to the investigator's report.¹⁴ The respondent also submitted its comments to the Commission in a letter dated April 2 1993.¹⁵ The resolution proposed by the investigator was approved by the Commission on September 20 1993. A conciliator was appointed the next day.

     The Minister of National Defence, on a review of the Redress of Grievance documentation, recognized that the applicant had a valid complaint and made him a "final offer" including an opportunity to re-enrol, compensation for loss of income and payment for reasonable expenses, but not including removal of psychiatric referrals and assessments from his file. The applicant refused the offer, and the conciliation was unsuccessful. On May 26 1994, the conciliator submitted a report to the Commission which reads in part as follows:

The conciliator discussed the complaint with both parties. The complainant advised that he would be prepared to accept the following terms of settlement:

-      guaranteed re-enrolment or re-instatement with no loss of pay or seniority;

-      lost wages plus interest and pension plan contributions;

-      re-imbursement of all expenses associated with his release (medical opinions, legal fees, telephone calls, rent difference between regular housing and Military Quarters, moving expenses);

-      a letter of apology and $4500 damages for hurt feelings;

-      a letter of explanation from the Chief of Defence Staff to the Ontario College of Physicians and Surgeons;

-      removal of adverse psychiatric reports from all files;

-      review of the application of policies and procedures regarding releases made on psychiatric grounds.

The respondent states an offer was made to the complainant on April 27, 1993 by the Minister of National Defence in respect of his Redress of Grievance. The offer includes an opportunity to re-enrol, payment for reasonable expenses associated with his release, and compensation for lost wages for two years and one month, until the date he rejected an earlier offer from the Chief of Defence Staff. The offer does not include compensation for hurt feelings or legal expenses and does not support removal of adverse psychiatric documentation from all of his files.

The respondent was not prepared to consider any proposals of settlement beyond those terms outlined in response to the complainant's Redress of Grievance.16

The Commission forwarded the conciliation report to the applicant, accompanied by a copy of a memorandum to the Commission from the Commission's Director of Compliance summarizing the history of the complaint.¹⁷ The applicant sent his written comments with respect to both documents to the Commission in June 1994.¹⁸ The applicant noted among other things that he was ready to forego his request for the re-imbursement of expenses, a letter of apology and damages for hurt feelings, and a letter of explanation to the College of Physicians and Surgeons. He reiterated his position that the removal and disposal of psychiatric/psychological reports and follow-up documentation from his file was a precondition to an acceptable settlement for the following reasons:

Without this my return to the CF would place me in a position of untenable vulnerability. Nothing could prevent any senior officer from instituting the same release (the paper work has already been done). Nothing could prevent those documents from having other, adverse, reactions on my career (eg. getting and maintaining necessary security clearances). Nothing could prevent those documents from being used to halt any career progression. Nothing could prevent those documents from being used to discriminate against me in a virtually infinite number of ways.19

     The Commission considered the applicant's complaint in September 1994, and requested that he be given another opportunity to accept the respondent's offer to re-enrol him. The applicant, with the advice of legal counsel, rejected the offer.²⁰ By letter dated November 21 1994, the Commission advised the applicant of its decision that having regard to all the circumstances of the complaint, an inquiry into his complaint by a Tribunal pursuant to s. 49 of the Act was not warranted.²¹

     By Originating notice of motion dated December 20 1994, the applicant applied for judicial review of the Commission's decision not to refer his complaint to a Tribunal on the following grounds:

(a)      the Commission refused to exercise its jurisdiction;

(b)      the Commission failed to observe a principle of natural justice or procedural fairness in reaching its decision;

(c)      the commission based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(d)      the Commission, and its conciliator/mediator, acted, in reaching their decision and report, in a manner that was contrary to law.22

II.      ARGUMENTS

a)      Applicant

     The applicant submits that the case at bar raises two principal questions. Given that the Commission has decided to deal with the complaint in accordance with section 41 of the Act:

(i)      Can the Commission arbitrarily dismiss a complaint if the conciliation was unsuccessful, and can it penalize the applicant for not accepting an offer of settlement made in the course of proceedings separate from his human rights complaint by refusing to refer his complaint to a tribunal?

(ii)      Can the Commission, having recognized upon receipt of the investigator's report that the applicant's complaint could be well founded, determine in an arbitrary way the "reasonableness" of a settlement offer? In so doing, is the Commission exercising a quasi-judicial function subject to judicial review by the Federal Court?

     The applicant submits that the decision of the Supreme Court of Canada in S.E.P.Q.A. v. Canada (C.H.R.C.)²³ and subsequent decisions which hold that the decision of the Commission to dismiss a complaint is purely administrative and subject only to the requirements of procedural fairness were concerned with refusals by the Commission to refer complaints to a tribunal based on investigators' reports which contained recommendations to the effect that the complaints should be dismissed. The applicant submits that his case is different, as his complaint had already "passed the investigation test" and had reached the conciliation stage. The applicant states that in dismissing a complaint based on the facts contained in an investigator's report that has been communicated to the complainant, the Commission is exercising an administrative function, based solely on the facts relating to the complaint. The applicant submits that when it decided to dismiss his complaint after conciliation on the basis of the reasonableness of a settlement offer, the Commission exercised a quasi-judicial function subject to review by the Federal Court. In fact, the applicant states that only a Human Rights Tribunal could determine what was a reasonable and appropriate offer in the circumstances and that the Commission could not usurp the Tribunal's role by dismissing the complaint. He argues that the Commission's decision that the settlement offer was reasonable was made arbitrarily, without regard to the factual findings of an investigator, and in a manner partial to the respondent.²⁴

     The applicant claims that in considering the reasonableness of a settlement offer made in the context of the applicant's redress of grievance proceedings and not in the context of his human rights complaint, the Commission, in exercising its discretion to dismiss his complaint, exceeded its jurisdiction and based its decision on irrelevant considerations. The applicant further claims that the Commission acted in a perverse and capricious manner in dismissing his complaint, because the respondent had admitted on several occasions that his complaint of discrimination was valid.²⁵

     Finally, the applicant states that the Commission dismissed his complaint because he had not accepted a settlement offer thought by the Commission to be reasonable despite the fact that the respondent had recognized that its treatment of the applicant was discriminatory. The applicant claims that in so doing, the Commission penalized him by preventing his claim from being determined on its merits.²⁶

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(b)      Respondent and intervenor

     The respondent states that the Commission's power to request an inquiry by a Tribunal is discretionary, and that as long as it has exercised this power in good faith, without reliance on irrelevant considerations, and neither arbitrarily nor unlawfully, the Court should not intervene.²⁷ According to the respondent, although the Commission may base its decision to dismiss a complaint on an examination of the Complaint form, the investigator's report and the submissions of the parties on the report, it must make its own decision based on the material which in its discretion it considers necessary, and is not bound by the opinions or findings of the investigator. The Commission's decision to dismiss a complaint is administrative, not judicial or quasi-judicial. In this case, the respondent submits that the Commission exercised its discretion properly, by considering the investigator's report, the parties' representations and other underlying material and by coming to a decision that is neither perverse nor capricious, but that was reasonably open to it to make on the evidence before it. According to the respondent, there is no evidence of a reviewable error.²⁸

     The intervenor adopts the respondent's general argument and focuses on what it describes as the fundamental issue raised by the applicant: whether the Commission should always decide to appoint a Tribunal once a complaint has passed the factual "test" necessary for the appointment of a conciliator, and be prohibited from considering additional facts regarding whether a reasonable offer of settlement has been made.²⁹

     According to the intervenor, the jurisprudence has established that the Act gives the Commission much control over its own process. It submits that the decision of the Commission to refer a complaint to conciliation is not a quasi-judicial determination of the complaint on its merits but an administrative decision as to the appropriate manner to proceed with the resolution of a particular complaint. The Commission would have to choose between several options, including referring the complaint to conciliation, requesting further investigation, ordering no further proceedings or attempting settlement in the course of investigation. The intervenor notes that the Court has applied the same discretionary standard (consideration of all relevant material evidence) to the Commission's decision to take no further proceedings following the conciliation stage as it has to decisions taken after the investigation stage. In assessing whether a complaint should proceed, the Commission submits that it must be concerned not only with the merits of the individual case but with administrative efficiency and its public policy role; the reasonableness of an offer of settlement is thus a valid consideration in its decision to refer a complaint to a tribunal.

III.      Analysis and Discussion

     At the instigation of Counsel for the Respondent, I agreed to withhold my decision for a specified period of time following the date of the hearing in order to allow the parties to make one last effort to resolve the dispute. I have now been advised by the Registry that the parties have been unable to confirm that a settlement had been reached within the time frame which had been agreed to for that purpose. I am therefore now in a position to dispose of the matter on its merits.

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a)      The Commission's complaint resolution procedure

     The framework within which the Canadian Human Rights Commission resolves complaints brought under the Canadian Human Rights Act is defined in sections 40 to 49 of the Act. Section 41 of the Act provides that the Commission shall deal with any complaint filed with it under section 40 unless it can dispose of the complaint on the grounds defined in sections 40 and 41.³⁰ Following receipt of a complaint, the Commission may appoint an investigator pursuant to section 43 of the Act,³¹ appoint a conciliator pursuant to section 47³² or request the appointment of a Human Rights Tribunal to inquire into the complaint pursuant to section 49 of the Act.³³

     In this case, the Commission began by appointing an investigator. An investigator appointed by the Commission must investigate the complaint and pursuant to section 44, submit a report of the findings of the investigation to the Commission.³⁴ Section 44 also defines the actions the Commission is required to take and those it is allowed to take upon receipt of the investigation report. Under certain conditions, the Commission must refer the complainant to the appropriate authority.³⁵ Under certain conditions, it must dismiss the complaint.³⁶ It may request the appointment of a Human Rights Tribunal to inquire into the complaint.³⁷ In the case at bar, it was also open to the Commission to decide at this juncture to appoint a conciliator pursuant to section 47, as there had not yet been a settlement of the complaint and as the complaint had not yet been dismissed or referred under sections 44-46 of the Act.

b)      Can the Commission dismiss a complaint pursuant to par. 44(3)(b) of the Act following an unsuccessful conciliation stage ?

     The applicant claims that the Commission's decision to refer his complaint to conciliation implies that the Commission had decided on the basis of the findings in the investigation report that the complaint was well founded. Consequently, according to the applicant, the Commission could order conciliation to attempt to reach a settlement, but if the conciliation were unsuccessful, it could not dismiss the complaint and was required to refer it to a Tribunal as the complaint had already passed the "test" of investigation.

     In my view, there is no basis for this narrow interpretation of the Commission's powers in the Act or in the jurisprudence of this Court. I agree with the Commission's position that the Act gives it a large measure of control over its own process. In this respect, I share the view expressed by Joyal J. in Nielsen v. Canada Employment and Immigration Commission et al.³⁸ In Nielsen, the Commission had decided to stand down the applicant's complaint pending judicial determination of what it considered to be a similar issue (whether a homosexual couple constituted a "family" within the terms of the Act) before the Federal Court of Appeal and later the Supreme Court in the case of Mossop v. Secretary of State.³⁹ Following the Mossop decisions and the decision of the Ontario Court of Appeal in Haig and Birch v. Canada⁴⁰ the Commission staff filed their investigation report, which determined that in all cases of complaints alleging discrimination on the grounds of family status, marital status, sex and sexual orientation, no further proceedings were warranted. The applicant Nielsen sought judicial review of the Commission's decision dismissing her complaint. Joyal J., in dealing with the applicant's contention that the Commission's decision was unreasonable, discussed the powers, duties and functions of the Commission in resolving complaints:

Are there grounds to find that this decision is so unreasonable, under one count or another, that it merits the Court's intervention by way of judicial review?

First of all, it is a well-accepted principle that a specialized tribunal such as the CHRC is one deserving of some curial deference. Its enabling statute provides it with a great deal of control over its own processes. Its administrative functions at the earlier stages is to separate the wheat from the chaff, to organize its classes of complaints among the various heads of discrimination. It decides whether or not an investigation is warranted and its field of jurisdiction provides many options for the resolution of the complaint before it.41

     In my view, referring the applicant's complaint to conciliation is one of the many routes defined in the Act that the Commission may pursue in order to resolve a complaint. If this route proves unsuccessful, the Commission may dismiss the complaint or refer the complaint to a tribunal in accordance with section 44(3) of the Act.

c)      Did the Commission comply with its duty of fairness in dismissing the complaint pursuant to par. 44(3)(b) of the Act ?

     In dismissing a complaint under paragraph 44(3)(b), the Commission must exercise its discretion in compliance with its duty of fairness. The content of this duty was very recently described by the Federal Court of Appeal in Slattery v. Canada (Human Rights Commission):

... [T]he Commission fully complied with its duty of fairness to the complainant when it gave her the investigator's report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. The discretion of the Commission to dismiss a complaint pursuant to subparagraph 44(3)(b)(i) is cast in terms even broader than those which were considered by the Supreme Court in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) where the content of the duty of fairness in such cases was described as follows by Sopinka J. for the majority:

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.

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. [at page 902]42

[Footnotes omitted].

     In Miller v. Canada (Canadian Human Rights Commission) (re Goldberg), Dubé J. made an extensive review of the jurisprudence which has refined the S.E.P.Q.A. definition of the Commission's duty of procedural fairness, and has set out the appropriate standard of review applying to decisions of the Commission.⁴³ His Lordship stated:

The SEPQA decision has been followed and expanded upon by several Federal Court decisions.3 These decisions are to the effect that procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal. The investigations conducted by the investigator prior to the decision must satisfy at least two conditions: neutrality and thoroughness. In other words, the investigation must be conducted in a manner which cannot be characterized as biased or unfair and the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response.

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3      Slattery v. Canada (CHRC), [1994] 2 F.C. 574; Boahene-Agbo v. Canada (CHRC), T-101-94, October 31, 1994; Jennings v. Canada (Minister of Health), T-1235-94, June 13, 1995; Robinson v. Canada (CHRC) (Re: Royal Canadian Mint), T-3038-93, January 10, 1995, and Tan v. Canada Post Corp., T-1335-93, June 14, 1995.

B-      The standard of review

The jurisprudence4 has clearly established that the Courts ought not to interfere with the exercise of a discretion by a statutory authority merely because the Court, faced with the same evidence, might have exercised its discretion in a different manner. This reluctance to interfere is based largely on the notion that such authorities by virtue of their training, experience, knowledge and expertise are better suited than the judiciary to exercise these powers. Where a statutory discretion has been exercised in good faith and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the Courts ought not to interfere. However, they may review the exercise of a discretionary power where such power has been exercised in a discriminatory, unfair, capricious or unreasonable manner.

Case law5 clearly sets out that the Commission must be master of its own procedure and that judicial review of an allegedly deficient investigation or decision is only warranted where such investigation or decision is clearly deficient. In the Komo Construction case,6 the Supreme Court of Canada stated that "while upholding the rule that the fundamental principles of justice must be respected, it is important to refrain from imposing a code of procedure upon an entity which the law has sought to make master of its own procedure. [Original footnotes included in text]. 44

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4[1982] 2 S.C.R. 2">      Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at p. 7; Lukian v. Canadian National Railway Company (1994), 80 F.T.R. 38, at p. 40; Slattery v. Canada, supra, at p. 610; Robinson v. Canada (CHRC), supra, at p. 11 and Boahene-Agbo v. Canada, supra, at p. 28.

5      Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 and Slattery v. Canada, supra, at p. 605.

6[1968] S.C.R. 172">      Komo Construction Inc. et al v. Commission des Relations de Travail du Québec et al., [1968] S.C.R. 172, at p. 176.

     I am of the view that whether the Commission is dismissing a complaint under paragraph 44(3)(b) following an unsuccessful conciliation stage, or whether it is dismissing a complaint immediately following receipt of an investigation report where no conciliation has been attempted, the Commission must exercise its discretion in compliance with the same duty of fairness as that described in the jurisprudence and summarized by Dubé J. in the Miller decision. In Cowie v. Canada Post Corporation et al., a recent decision of this Court, the applicant applied for judicial review of the Commission's decision to dismiss his complaint.⁴⁵ An investigation had been conducted and an investigation report issued. The report had recommended the appointment of a conciliator. When no settlement could be reached, the matter was returned before the Commission, along with a memorandum from the Commission's Director of Compliance recommending that the Commission refer the complaint to a Tribunal. The Commission decided that a Tribunal was not warranted and dismissed the complaint. Jerome A.C.J. held that as long as there was an indication that the Commission had considered the evidence before it, Court intervention was not justified.⁴⁶

     In the case at bar, the record indicates that the Commission considered the following evidence:

-      An explanatory note for case 4.1.05;

-      a memorandum from the Director of Compliance (3 pages);

-      a conciliation report signed by the conciliator on May 26, 1994 (2 pages) with the resolution approved on November 14, 1994 at page 2;

-      the submission of Brian Garnhum dated June 1994 (5 pages) with attachment (2 pages);

-      an investigation report signed by the investigator on February 27, 1993 (7 pages) with the resolution approved on September 20, 1993 at page 2 and attachments of a complaint form dated May 9, 1989 (2 pages) and a Chronology (1 page);

-      the submission of Brian Garnhum dated March 22, 1993 (5 pages) with attachments (5 pages);

-      the submission of the Canadian Armed Forces date (sic) April 2, 1993 (1 page).47

     The applicant argues that the Commission exceeded its jurisdiction by basing its decision on irrelevant considerations when, in exercising its discretion under par. 44(3)(b) of the Act, it considered the reasonableness of the settlement offer made by the respondent in the context of his redress of grievance proceedings. In exercising its discretion to dismiss a complaint under par. 44(3)(b), the Commission must be satisfied "that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted." [My underlining]. In my view, the terms of an offer of settlement made during the conciliation stage of a complaint, even if conciliation is unsuccessful, are one of the "circumstances of the complaint". On a plain reading of par. 44(3)(b) of the Act, they are to be considered by the Commission. In Nielsen, supra, Joyal J. considered whether it was proper for the Commission, in dismissing a complaint under par. 44(3)(b) of the Act, to take into account its public policy role. He stated:

The decision, as in the case before me, not to proceed further with a complaint has been defined as an administrative decision. Of course, the rules of fairness must be observed, but it is clear on a reading of the whole statute that the CHRC must have some respect for its public policy role, which is not limited to party and party disputes. The tenets of its administration must avoid a clutter of cases having essentially the same judicial features. It must have regard to administrative efficiency, and when issues of law or policy are involved, this level of efficiency requires that any further proceedings will ultimately result in a decision on the merits and not on some procedural, technical or other objection.

As the Commission's decision is purely administrative, it need not give reasons for its decision. The Commission nevertheless stated that retroactivity entered into it. One can presume that in the case before me, as perhaps in other cases as well, the Commission was of the view that the issue of retroactivity would only cloud the issue, resulting in a multitude of investigations and tribunal proceedings which ran the risk of being bushwhacked by jurisdictional challenges.

The CHRC may also have considered, in the case before me, that it had to be consistent in its decisions and similarly dispose of a number of cases founded on the same grounds. It may also have considered the time-frame of complaints which might not have been of a continuing nature and where, apart from the strong sensibilities of the persons affected, pecuniary loss from alleged breaches were more symbolic than real.

It is in regards to all of these, in my respectful view, that the correctness of the CHRC's decision must be viewed. The Court is aware of the dynamics of the issues before the CHRC, and that in order to provide the public with well-defined answers to any number of thorny problems raised by the issues, it must advance its cases with some degree of awareness of both public policy considerations and the

needs of complainants to have their several individual complaints adjudicated. In that respect, it is clear in my mind that the CHRC must exercise its own discretion so as to balance as evenly as possible both aspects of its duties and functions.48

     I agree with Joyal J. that the exercise of the Commission's discretion under par. 44(3)(b) of the Act requires it to balance considerations arising from its public policy role, including that of administrative efficiency, with the need of complainants to have their complaints adjudicated. I agree with the Commission's position that the reasonableness of the terms of an offer of settlement is a factor that may legitimately be considered in this balancing exercise.

     I disagree with the applicant's contention that the Commission dismissed his complaint solely on the basis of its assessment of the reasonableness of the terms of an offer of settlement made exclusively in the context of a redress of grievance procedure. In my view, these terms were extended to the applicant in the context of his human rights complaint, as is apparent from the conciliation report:

The respondent was not prepared to consider any proposals of settlement beyond those terms outlined in the response to the complainant's Redress of Grievance.49

As can be inferred from the conciliation report, the respondent impliedly extended to the applicant an offer of settlement in the context of his human rights complaint on terms identical to (but not going beyond) those of the offer made in the context of the applicant's redress of grievance procedure. In addition, there is no indication that the reasonableness of the complaint was the sole factor in the Commission's decision to dismiss the applicant's complaint.

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d)      Reasonableness of the decision

     The applicant submits that it is unreasonable for the Commission to dismiss his complaint because the respondent has on several occasions recognized the validity of the applicant's complaint. I disagree. The respondent has on several occasions recognized that it should not have released the applicant because it had not provided him with a report of shortcomings prior to the release. Nowhere in the materials on file has the respondent ever conceded that the applicant's complaint, namely that:

The Canadian Armed Forces has discriminated against me by terminating my employment as a member of the Armed Forces because of a perceived mental disability (perceived personality disorder) contrary to section 7 of the Canadian Human Rights Act. The Canadian Armed Forces pursues a policy or practice which deprives or tends to deprive individuals or groups of individuals of employment opportunities because of a perceived/actual personality disorder, contrary to section 10 of the Canadian Human Rights Act.50

was valid. According to the applicant, the respondent conceded his complaint of discrimination was valid on the occasion of the offers of settlement made to him by the Chief of Defence Staff and the Minister of National Defence and mentioned by the Commission's Director of Compliance, Mr. Alwyn Child, in his memorandum to the Commission.⁵¹ However, it appears that on both occasions, the admissions by the respondent that the applicant had a valid complaint were in relation to the applicant's redress of grievance, and not in relation to his human rights complaint. In the section of the investigator's report dealing with the applicant's redress of grievance, the first offer of settlement is described in the following terms:

The redress of grievance followed its course and was granted by the Chief of Defense Staff who informs the complainant in a letter dated 6 December 1990, that:

"... Based on my review of your complaint, I believe that you have a valid complaint and should not have been released without the benefit of a Report of Shortcomings under CFAO 26-21. Accordingly, I have directed that you be offered the opportunity to re-enrol..." [My underlining].52

The second offer of settlement is described in the conciliator's report as follows:

The respondent states an offer was made to the complainant on April 27, 1993 by the Minister of National Defence in respect of his Redress of Grievance.

(...)

The respondent was not prepared to consider any proposals of settlement beyond those terms outlined in the response to the complainant's Redress of Grievance. [My underlining].53

This offer was also mentioned in Mr. Child's memorandum as follows:

On April 27, 1993, the then Minister of National Defence advised that based on her review of the Redress of Grievance documentation, the complainant had, in part, a valid complaint. As a result, the respondent made a final offer ... [My underlining].54

It is clear, given these excerpts from documents which were before the Commission, that the respondent did not admit that the respondent's claim of discrimination was valid, even though it had extended the terms of an offer of settlement made in the context of the applicant's redress of grievance to his human rights complaint.

     In light of the foregoing, I am unable to conclude that the Commission committed any reviewable errors in deciding to dismiss the applicant's complaint. The application is accordingly dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

October 2, 1996

__________________

¹      R.S.C. 1985, c. F-7.

²      R.S.C. 1985, c. H-6 [hereinafter, the Act ].

³      Commission investigator's report, at par. 17: see respondent's record, at 21.

⁴      Commission investigator's report, at par. 21: see respondent's record, at 21.

⁵      Commission investigator's report, at par. 22: see respondent's record, at 22.

⁶      Respondent's record, at 38.

⁷      Respondent's record, at 33.

⁸      Respondent's record, at 37.

⁹      The substance of the applicant's grievance is described in the investigation report (respondent's record, at 22) as follows:          In a letter dated 20 April 1989, the complainant advises the Commander, Special Service Force, that he has not received fair, equitable or ethical treatment and that he has been released "... involuntarily on grounds that I have proved do not exist."

¹⁰      Respondent's record, at 25.

¹¹      Commission investigator's report, at par. 30: see respondent's record, at 23.

¹²      Commission investigator's report, at par. 36: see respondent's record, at 24. It is noteworthy that section 12 of the Privacy Act , R.S.C. 1985, P-21, grants to individuals a right of access to personal information about themselves under the control of a government institution which includes the right to request correction of the personal information and require that a notation be attached to the information reflecting any correction requested but not made. The Department of National Defence (including the Canadian Forces) is defined as a government institution under section 3 of the Privacy Act. In my view, it follows that the applicant would have been entitled to append, as a notation to his file, the subsequent independent medical reports which contradicted the respondent's psychiatric and psychological assessments. Surprisingly, I was unable to find any evidence in the materials filed with the Court that the applicant had been apprised of these rights either by his counsel, the Canadian Forces, or the Commission.

¹³      Memorandum from Surgeon General dated August 14 1992, Respondent's record, at 16.

¹⁴      Respondent's record, at 28.

¹⁵      Respondent's record, at 39.

¹⁶      Conciliation report: see respondent's record, at 9.

¹⁷      Respondent's record, at 5-10.

¹⁸      Respondent's record, at 11.

¹⁹      Respondent's record, at 13.

²⁰      Respondent's record, at 5.

²¹      Applicant's record, at 8.

²²      Originating notice of motion, applicant's record, at 2.

²³      [1989] 2 S.C.R. 879, (1989), 62 D.L.R. (4th) 385 [hereinafter S.E.P.Q.A . cited to D.L.R.].

²⁴      Applicant's record, at 13.

²⁵      Applicant's memorandum in reply, at 4-5.

²⁶      Applicant's record, at 13.

²⁷      Respondent's record, at 51.

²⁸      Respondent's record, at 52-53.

²⁹      Intervenor's application record, at 8.

³⁰      Section 40 provides in part as follows:
     40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.      (...)
     (5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
         (a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;
         (b) occurred in Canada and was a discriminatory practice within the meaning of section 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or
         (c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence.      (...)
     (7) No complaint may be dealt with by the Commission pursuant to subsection (1) that relates to the terms and conditions of a superannuation or pension fund or plan, if the relief sought would require action to be taken that would deprive any contributor to, participant in or member of, the fund or plan of any rights acquired under the fund or plan before March 1, 1978 or of any pension or other benefits accrued under the fund or plan to that date, including
         (a) any rights and benefits based on a particular age of retirement; and
         (b) any accrued survivor's benefits.
     Section 41 provides as follows:
     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
         (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
         (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
         (c) the complaint is beyond the jurisdiction of the Commission;
         (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
         (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.

³¹      Section 43 states in part:
     43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.

³²      Section 47 reads as follows:
     47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been          (a) settled in the course of investigation by an investigator,          (b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or          (c) settled after receipt by the parties of the notice referred to in subsection 44(4),      appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint.
     (2) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.
     (3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.

³³      Section 49 reads in part:
     49. (1) The Commission may, at any stage after the filing of a complaint, request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal, in this Part referred to as a "Tribunal", to inquire into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted.

³⁴      Section 44 states:
     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 President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire 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).

³⁵      Subsection 44(2).

³⁶      Paragraph 44(3)(b).

³⁷      Paragraph 44(3)(a).

³⁸      (20 June 1995), T-2994-93 (F.C.T.D.) [hereinafter Nielsen ].

³⁹      (1993), 13 Admin. L.R. (2d) 1 (S.C.C.), aff'g [1991] 1 F.C. 18 (F.C.A.) [hereinafter Mossop ].

⁴⁰      [1992] 9 O.R. (3d) 495 (O.C.A.).

⁴¹      Nielsen, supra note 38 at 9.

⁴²      (26 March 1996), A-116-94, (F.C.A.) [hereinafter Slattery ].

⁴³      (29 May 1996), T-2576-96, [1996] F.C.J. No. 735 (QL) (F.C.T.D.) [hereinafter Miller ].

⁴⁴      Miller, supra note 43.

⁴⁵      (23 April 1996), T-1593-94 (F.C.T.D.) [hereinafter Cowie ].

⁴⁶      See Tan v. Canada Post Corporation (14 June 1995), T-1355-93 (F.C.T.D.). See also Kallio v. Canadian Airlines International Ltd. (24 May 1996), T-1087-95 (F.C.T.D.).

⁴⁷      Letter from Helen Beck (CHRC) to Christopher Rupar (Department of Justice): respondent's record, at 3.

⁴⁸      Nielsen, supra note 38 at 11.

⁴⁹      Respondent's record, at 9.

⁵⁰      Respondent's record, at 25.

⁵¹      Applicant's memorandum in reply, at 4.

⁵²      Respondent's record, at 23.

⁵³      Respondent's record, at 9.

⁵⁴      Respondent's record, at 7.