T-2801-94
BETWEEN :
BRIGITTE
MERCIER,
Applicant,
-
and -
THE
ATTORNEY GENERAL OF CANADA,
Respondent,
-
and -
THE
CANADIAN HUMAN RIGHTS COMMISSION,
Intervenor.
REASONS
FOR ORDER
NADON J.:
This
is an application by Brigitte Mercier (the “applicant”) for judicial review of
a decision rendered on October 21, 1994 by the Canadian Human Rights Commission
(the “Commission”).
The
effect of the Commission’s decision, rendered under subparagraph 44(3)(b)(i)
of the Canadian Human Rights Act,
is to dismiss the complaint filed by the applicant with the Commission against
her former employer, the Canadian Penitentiary Service (now the Correctional
Service of Canada) (the “Service”), alleging that the Service had discriminated
against her on the basis of sex by failing to intervene to put an end to her
sexual harassment by certain inmates in the Leclerc Institution, and by
refusing to continue her employment on the ground of mental disability (anxious
reaction). The Commission’s decision reads as follows:
[Translation]
The Canadian Human Rights Commission has studied the complaint (Q11563)
filed by you against the Canadian Penitentiary Service on January 25, 1988,
alleging discrimination based on sex and disability in employment. The
Commission has also noted the comments dated August 22, 1994 and June 2, 1994,
signed by Marie-Hélène Verge, and your comments dated April 28, 1994 and
December 22, 1990.
The Commission has decided that, in view of all the circumstances
surrounding the complaint, no further action is warranted.
The Commission has accordingly closed the file.
The
applicant’s complaint was the subject of earlier decisions by this Court, by
both the Trial Division and the Court of Appeal. In fact, on April 18, 1991,
the Commission dismissed the applicant’s complaint in words similar to those
appearing in its decision of October 21, 1994. The applicant accordingly filed,
on July 2, 1991, an initial application for judicial review in the trial
division of this Court. In the interval between filing her application for
judicial review and the hearing
of her application in the presence of my colleague Pinard J., the applicant
discovered that the Service had filed some comments with the Commission, but
that these comments had not been communicated to her. At the hearing before
Pinard J., the applicant submitted, inter alia, that by failing to
disclose to her the comments of the Service, the Commission had breached the
rules of procedural fairness
and that the Commission had a duty to give reasons for its decision. Pinard J.
rejected these submissions. He held, first, that in dismissing the applicant’s
complaint the Commission had complied with the rules of procedural fairness, as
explained by Sopinka J. of the Supreme Court of Canada in Syndicat des
employés de production du Québec et de l’Acadie v. Canada (Canadian Human
Rights Commission).
Pinard J. also held that the Commission had no duty to give reasons for its
decision.
Pinard
J.’s decision was appealed and on March 22, 1994 the Court of Appeal allowed
the applicant’s appeal.
Briefly put, the Court of Appeal held that the Commission had not complied with
the rules of procedural fairness by failing to allow the applicant to respond
to the Service’s comments, which had not been brought to her attention.
Accordingly, the Court of Appeal referred the matter back to the Commission to
be re-examined taking into consideration her reply.
On May
3, 1994 the applicant’s solicitors sent the Commission her reply, a letter dated
April 28, 1994. On July 19, 1994 the Commission wrote to the applicant to
inform her that her complaint against the Service would again be tabled with
the Commission, as ordered by the Court of Appeal in its decision of March 22,
1994. The applicant was also informed that her file would be examined by the
Commission at its forthcoming meeting, scheduled for September 19 and 29, 1994.
Finally, the author of the letter, Mr. Alwin Child, Director, Compliance, told
the applicant that she could submit written comments to the Commission, which
should arrive at the Commission on or before August 22, 1994.
On
July 22, 1994 Mr. Child placed in the applicant’s file a memorandum for the
members of the Commission. The memorandum reads as follows:
[Translation]
Brigitte Mercier v. Correctional Service of Canada
The Commission reviewed this file at its April 1991 meeting (3.4.01)
and, deciding that no further action was warranted, closed the file. The
complainant attempted unsuccessfully to learn the reasons for the Commission’s
decision and ultimately filed a motion in the Federal Court for the issuance of
writs of certiorari and mandamus against the Commission. This motion was
dismissed and the complainant appealed.
On March 22, 1994 the Federal Court of Appeal found in part in favour of
the complainant and referred the matter back to the Commission. The Court was
of the opinion that the complainant should have had an opportunity to reply to
the comments adversely affecting her credibility, filed by the mis en cause in
1991, which the Commission had examined when rendering its decision. According
to the Court, the Commission should give a party an opportunity to comment on
the other party’s comments when those comments disclose new facts. The Federal
Court of Appeal therefore referred the file back to the Commission, ordering it
to allow the complainant to comment on the comments of the mis en cause.
The record has again been disclosed to both parties. It is being
presented to you for a decision on the appropriate follow-up.
On
August 22, 1994 the applicant’s solicitors sent Mr. Child the applicant’s
supplementary comments. On August 24, 1994 the Commission sent the said
solicitors “[Translation] a
complete copy of the documents that will be tabled before the Commission
members during the review of the [applicant’s] file”. The Commission informed
counsel that their comments of August 22, 1994 would be added to these
documents. The Commission also informed the applicant’s solicitors that they
had until September 2, 1994 to submit additional comments.
On
August 29, 1994 the applicant’s solicitors wrote to the Commission advising it
that they had no further comments to submit. Her solicitors also confirmed that
the Commission had received no representations from the Service or any request
for more time. They further sought the Commission’s confirmation “[Translation] that if, however, overdue
representations are sent to you, and are tabled with the Commission, we will be
given a copy, if applicable, to enable us to respond”.
On
September 14, 1994 the Service sent a two-page letter to the Commission and a
report prepared by Mr. Alan Arthur, Correctional Officer, Ste-Anne-des-Plaines
Institution. Mr. Arthur had been the applicant’s supervisor at the relevant
time. The letter and Mr. Arthur’s report constituted the Service’s comments
filed with the Commission members for their meeting of September 1994. Neither
the Service nor the Commission sent a copy of these comments to the applicant
or her solicitors. On October 21, 1994 the Commission rendered the decision
that the applicant is now asking me to set aside. On November 24, 1994 the
applicant filed this application for judicial review. It was not until February
17, 1995, or three months after the filing of this application for judicial
review, that the applicant’s solicitors learned of the existence of the
Service’s comments. Following this discovery, the applicant filed a
supplementary record alleging that the Commission had again failed to comply
with the rules of procedural fairness in that the applicant had not been given
an opportunity to reply to the comments of the Service.
The
applicant is asking this Court to issue a writ of certiorari setting
aside the decision rendered by the Commission on October 21, 1994, and to send
the matter back to the Commission with directions to constitute a human rights
tribunal to hear and determine the applicant’s complaint, in accordance with
section 49 of the Act. The grounds advanced by the applicant in support of her
application are the following:
1.The Commission’s failure to give reasons for its
decision demonstrates the arbitrariness and illegality of the decision.
2.The evidence provided by the applicant is such that it
warranted the constitution of a human rights tribunal to hear the complaint.
3.Accordingly, the Commission’s conclusion that no
further action was warranted reflects an unreasonable assessment of the
evidence.
4.Since the decision rendered by the Commission on
October 21, 1994 is to the same effect as the one it rendered on April 18, 1991
(this decision being the one set aside by the Court of Appeal on March 22,
1994), the applicant submits that she has cause for a reasonable apprehension
of bias on the part of the Commission.
Since
this application for judicial review raises, to all intents and purposes, the
same points that were raised by the applicant in her initial application for
judicial review, it is necessary, in my opinion, to review the judgments
rendered by Pinard J. and the Court of Appeal concerning the initial
application.
It
should be kept in mind that it was not until a few days prior to the hearing
before Pinard J. (the hearing was held on September 30, 1991) that the
applicant learned of the existence of the Service’s comments and the substance
of those comments. In his judgment, Pinard J. states that at the hearing the
applicant advanced two reasons why the Commission’s decision should be set
aside:
1.The Commission had breached the rules of procedural
fairness in failing to allow the applicant to reply to the Service’s comments,
and
2.The Commission should have given reasons for its
decision since the decision was contrary to the investigator’s recommendations.
Dismissing
the applicant’s arguments, Pinard J. stated:
In view of all these facts, after reviewing all the relevant
documentation and hearing counsel for the parties, I consider that this is a
case in which the rules of procedural fairness as defined by Sopinka J., in
S.E.P.Q.A. above were duly observed. It sufficed for the investigation report
to be given to the applicant before the Commission’s decision was made; it was
therefore not necessary for the comments of Correctional Services Canada on the
report to be given to her as well. Additionally, it is clear that if the legislature
had intended that the Commission be required to give reasons for its decision
pursuant to s. 44(3)(b)(i) of the Act when the latter was contrary to the
investigator’s recommendation, it would have clearly indicated this, as it
expressly did in s. 42(1) for cases in which the Commission finds a complaint
inadmissible on one of the grounds mentioned in s. 41. In the circumstances of
the case at bar, the absence of reasons for the decision is no more a breach of
procedural fairness than of the Act.
Pinard J. later
concludes his judgment as follows:
In procedural terms, therefore, I consider that in the case at bar the
administrative body acted fairly, and the applicant’s action is accordingly
without foundation. There can be no question here of any further inquiry as to
the way in which the Commission exercised its discretion without giving a
substantive content to the duty to act fairly which it is my function to ensure
is performed. Finally, it is well established as a general rule that in the exercise
of judicial review a superior court should not, where the situation simply
requires an assessment of facts and credibility and there is no manifest error,
assume the function of the administrative authority.
As I
indicated earlier, the applicant appealed Pinard J.’s decision and the Court of
Appeal allowed her appeal.
Décary J.A. stated the following in regard to the requirements of procedural
fairness:
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 decisions and that the
individual has been offered an opportunity to reply to that evidence and to
present all relevant arguments relating thereto. Cory J. recently recalled the
applicable principles, as follows [Thomson v. Canada (Deputy Minister of
Agriculture), [1992] 1 S.C.R. 385, at p. 402]:
This Court has repeatedly recognized the general common
law principle that there is “a duty of procedural fairness lying on every
public authority making an administrative decision which is not of a legislative
nature and which affects the rights, privileges or interests of an individual”
(see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at
p. 653). It follows that the Deputy Minister was under a duty to comply with
the principles of procedural fairness in the context of security clearance
decision-making. Generally speaking, fairness requires that a party must have
an adequate opportunity of knowing the case that must be met, of answering it
and putting forward the party’s own position.
Décary J.A. later
adds:
Moreover, when Sopinka J. stated that he was “satisfied that [the
complainant] was expressly advised of the manner in which s. 11 was being
applied by the Commission” and adopted the opinion of Wilson J. that “this is
an aspect of the duty of procedural fairness to inform a party of the case to
be met” [SEPQA, supra note 7, at p. 903], he confirmed that a complainant is
entitled to know both the rules of the game and the substance of the evidence
before the Commission, which in my view includes, where applicable, additional
evidence submitted by an adverse party in its comments.”
Having
defined the requirements of procedural fairness, Décary J.A. concluded that in
the case at bar these rules had not been observed by the Commission. He stated:
In the case at bar, the appellant certainly was never in a position to
foresee, a fortiori to counter, the decision the Commission was going to
make, nor to know or even suspect the grounds on which it would decide not to
follow its investigator’s recommendation. The investigation report was in fact
favourable to her. The Service’s comments were filed without her knowledge and
outside the time limit which the Commission had imposed and described as
mandatory. These comments were much more than argument based on the facts set
out by the investigator in his report; on the contrary, they were replete with
facts that did not appear in the file that had until then been before the
Commission, and went so far as to attack the appellant’s credibility [see Labelle
v. Canada (Treasury Board) (1987), 25 Admin. L.R. 10 (F.C.A.)]. Moreover,
in the Commission’s decision of April 18, 1991 it misled the appellant by
suggesting to her that it had before it only the comments filed by her on
December 22, 1990, so that in fact the appellant would have had to bring legal
proceedings to learn what the evidence was that had apparently led to the
Commission’s about-face.
I am not saying that the rules of procedural fairness require that the
Commission systematically disclose to one party the comments it receives from
the other; I am saying that they require this when those comments contain facts
that differ from the facts set out in the investigation report which the
adverse party would have been entitled to try to rebut had it known about them
at the stage of the investigation, properly speaking. I recognize that it will
not always be easy to determine when comments cease to be “argument”, to use
the words of Sopinka J., and become new allegations that must be brought to the
attention of the other party; if the Commission were to decide to continue its
general practice of not disclosing comments, it will still have to examine each
case individually and practice great vigilance so as to avoid a party in a
particular case, such as the case at bar, not receiving disclosure of comments
that are such as should have been brought to that party’s attention. It would
seem to me that it would be in the Commission’s interest, if only to protect
itself in advance from any criticism, to require that the parties exchange
their respective comments. Otherwise, and here I am adopting the views of
Mahoney J. in Labelle, the Commission will always be exposed to an
application for judicial review “because it will always be prima facie
arguable that the complainant was not made aware of, and hence was denied a
fair opportunity to meet, the whole of the contrary case.”
I note in passing that it does not seem to me to be very useful, when
the investigation report adopts the argument made by one party, to ask that
party to submit its comments immediately. What kind of comments can the
“winning” party make when it does not even know whether the report will be
contested by the other party, and when it undoubtedly has no idea of what
aspects of the report will be subject to dispute, if any? In such cases, it
would seem to me to be more logical and more practical to ask the “losing”
party to submit its comments first, and then to allow the “winning” party to
reply.
As to
the applicant’s argument concerning the Commission’s failure to give reasons
for its decision, Décary J.A. states:
With respect to the failure to provide reasons for a decision where
there is no statutory requirement to do so, the jurisprudence of this Court is
to the effect that the Commission is not required to give reasons for a
decision it makes under subsection 44(4) of the Act [see Lever v. Canada
(Canadian Human Rights Commission) (1988), 10 C.H.R.R. D/6488 (F.C.A.)].
The appellant relies on the later decision of the Supreme Court of Canada in SEPQA
in support of her argument that failure to give reasons may constitute a breach
of the rules of procedural fairness.
The situation presented in SEPQA was different. The Commission’s refusal
was based on the recommendation to that effect made by the investigator, so
that the complainant was in a position, based on the investigation report that
was in its hands, to understand the reasons for the decision, although reasons
were not given. The Supreme Court rightly refused to decide the issue relating
to the failure to give reasons. Here, the Commission’s refusal is contrary to
the investigator’s recommendation, and in the absence of reasons the
complainant, who was not aware of the existence of the Service’s comments,
could not even suspect what had caused the Commission not to act on the
recommendation.
Does this mean that in the case at bar the failure to give reasons
constitutes in itself a breach of the rules of procedural fairness? I do not
believe so.
Had reasons been given for the Commission’s decision, it would
nonetheless have been fundamentally vitiated in view of the Commission’s
failure to inform the appellant of the substance of all the evidence in the
record. If the appellant had been informed of the substance of all the evidence
in the record, she could not have complained of the absence of reasons, as the
Commission would presumably have rejected the investigator’s recommendation for
the reasons set out in the Service’s comments. It does not appear to me to be
possible to dissociate the failure to give reasons from the failure to inform
and to make the first failure, in the absence of the second, a breach which
supports an application for judicial review. The duty to give reasons has been
imposed by Parliament in certain specific cases, including the situation
covered by subsection 42(1) of the Act which applies where the Commission
decides not to deal with a case for the reasons set out in section 41. I would
hesitate to use the rules of procedural fairness to impose a burden that
Parliament imposes only sparingly in very specific cases.
At the
hearing before me, the applicant, as she had done before Pinard J., confined
her arguments to the Commission’s failure to comply with the rules of
procedural fairness and the lack of reasons for the decision. In my opinion,
the other grounds relied on by the applicant are without foundation.
On the
applicant’s initial judicial review application, the Court of Appeal concluded
that the Commission had breached the rules of procedural fairness by not
allowing the applicant to examine and reply to the Service’s final comments.
The applicant submits that in this instance the Commission “[Translation] knowingly flouted the
judgment rendered...by the Federal Court of Appeal...and the many requests by
applicant’s counsel for a copy of any representations submitted by the
Service....”
In
order to rule on this submission, it is necessary to examine why the Court of
Appeal held that the Commission had failed to comply with the rules of procedural
fairness. In the first place, Décary J.A., who wrote the reasons for the Court,
notes that the Commission’s practice is not to disclose the comments received
by [sic] the parties. While emphasizing the difficulties that may result from
this practice, and recommending a disclosure policy to the Commission, Décary
J.A. clearly states that the Commission’s failure to disclose the comments of
one party to the other will breach the rules of procedural fairness only when
“those comments contain facts that differ from the facts set out in the
investigation report which the adverse party would have been entitled to try to
rebut had it known about them at the stage of the investigation, properly
speaking”.
In
that particular case, Décary J.A. concluded that the comments that had not been
disclosed to the applicant and to which she had not been given an opportunity
to reply should have been disclosed because they were “replete with facts that
did not appear in the file that had until then been before the Commission, and
went so far as to attack the appellant’s credibility”. It is necessary,
therefore, to examine at this point the comments submitted to the Commission by
the Service on September 14, 1994, which were disclosed to the applicant only
after she had filed her application for judicial review.
It
will be recalled that the comments by the Service that were discussed before
Pinard J. and the Court of Appeal are the comments filed with the Commission on
February 14, 1991. It will be recalled as well that following the Court of
Appeal judgment, the applicant had an opportunity to reply to the Service’s
comments. The applicant’s comments were conveyed to the Commission appended to
a letter her solicitors sent the Commission on May 3, 1994. The applicant submits
that the Commission should have allowed her to reply to the final comments
submitted by the Service. However, the respondent submits that since the
Service’s comments contained “[Translation]
no new substantial and decisive fact in regard to the substance of the
proceedings. . .”, the Commission was under no obligation to disclose them to
the applicant. The respondent accordingly submits that in the case at bar the
Commission did not breach the rules of procedural fairness.
In my
opinion, the Service’s comments dated September 14, 1994 are in no way
“replete” with facts that were not already in the Commission’s file. In other
words, it would seem to me that in its comments of September 14, 1994 the
Service simply reformulated the arguments it had made earlier. In order to
compare the February 1991 comments with those of September 1994, I prepared a
table that repeats verbatim the Service’s comments of February 14, 1991
and September 14, 1994. This table is attached to my reasons as appendix “A”.
Unlike
Décary J.A., I am unable to conclude that the applicant, given the
non-disclosure of the Service’s comments, was unable to foresee or prepare for
the decision rendered by the Commission on October 21, 1994. Indeed, as I
indicated earlier, the Service’s comments contain no relevant fact that was not
already in the Commission’s file. I am of the opinion that in this case the
applicant had an opportunity to present all her arguments pertaining to the
facts that were relevant to the investigation and the comments made by the
Service in relation to those relevant facts. I cannot conclude that the
Commission failed to comply with the rules of procedural fairness by not
disclosing the Service’s final comments to the applicant.
The
applicant also argued that the Commission had a duty to provide reasons for its
decision. I am unable to accept that argument. There can be no doubt, in my
opinion, as to why the Commission rejected the investigator’s recommendation.
As Décary J.A. stated in his reasons:
If the appellant had been informed of the substance of all the evidence
in the record, she could not have complained of the absence of reasons, as the
Commission would presumably have rejected the investigator’s recommendation for
the reasons set out in the Service’s comments.
Further
on in his reasons, Décary J.A. states that Parliament has imposed on the
Commission a duty to give reasons in some cases, including the situation
covered by subsection 42(1) of the Act. Décary J.A. concludes this part of his
reasons with the statement:
I would hesitate to use the rules of procedural fairness to impose a
burden that Parliament imposes only sparingly in very specific cases.
I am
therefore of the opinion that the Commission had no duty to give reasons for
its decision. The application for judicial review will therefore be dismissed.
However, in the circumstances, I am going to order that the Commission pay the
applicant’s costs.
In his
reasons, Décary J.A. of the Court of Appeal concluded that the rules of
procedural fairness did not require that the Commission “systematically
disclose” to one party the comments received from another. But he did state
very clearly, as had Mahoney J.A. in Labelle v. Canada (Treasury Board), that the Commission’s
practice of not disclosing to the respective parties the comments received from
the others was not one that should be encouraged.
On two
occasions the applicant learned, after filing an application for judicial
review, that the Commission had received comments from the Service, comments
that had not been disclosed to her. It seems to me, therefore, that an
applicant who receives a negative decision from the Commission when the
investigation report was favourable to him or her would be wise to file an
application for judicial review, to ensure that he or she had an opportunity to
reply to the employer’s comments. In my opinion, the Commission’s current
practice is one that can give complainants the impression — and this is
certainly what happened in this case — that the Commission is not treating them
fairly. It would be easy to solve this problem, and the solution is the one
suggested by Décary J.A., namely, “to require that the parties exchange their
respective comments”.
Consequently,
although I am not empowered to order the Commission to adopt a different
practice, I am of the opinion that the Commission, in this instance, should pay
the applicant’s costs. As I indicated earlier, it is appropriate that a
complainant would file an application for judicial review to ensure that he or
she had an opportunity to reply to the arguments of the adverse party. Although
I have concluded, in the case at bar, that the Commission did not breach the
rules of procedural fairness, it seems obvious to me that if the Commission had
adopted a practice along the lines suggested by Décary J.A., the present
application for judicial review might possibly have been avoided or at least
discussed in a different forum.
For these reasons,
the application for judicial review is dismissed with costs to the applicant.
“MARC
NADON”
J.
Certified true
translation
Christiane Delon
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