Date: 20100319
Docket: T-174-09
Citation: 2010
FC 320
Ottawa, Ontario, March 19, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
CHANDER
GROVER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a research scientist of East Indian origin who was employed by the
National Research Council (NRC) from 1981 to 2007. Between 1987 and 1994, he
submitted four human rights complaints to the Canadian Human Rights Commission
(CHRC, or the Commission), alleging discrimination by his employer on the basis
of race, colour, and national or ethnic origin.
[2]
In January
2009, the Canadian Human Rights Tribunal (the Tribunal) dismissed the last
three of the Applicant’s complaints, finding that the delay in the hearing of
these complaints had significantly impaired the ability of the NRC, (the
respondent in the proceedings before the Tribunal) to provide a full answer
and defence to the allegations against it. It is of that decision that the
Applicant is now seeking judicial review (Grover v. N.R.C., 2009
CHRT 1).
I. Background
[3]
The
Applicant filed his first complaint of discrimination with the Commission
against his employer in September 1987. The complaint alleged discrimination
on the basis of race, colour and national or ethnic origin occurring between
September 1986 and August 1987. The Applicant amended the complaint twice to
allege further discriminatory conduct by the NRC occurring between August 1987
and January 1991.
[4]
The
Tribunal upheld that complaint in 1992, concluding that the NRC management had
embarked on a course of discrimination against the Plaintiff which was
calculated to impede his promotion progression, diminish his status and
international reputation as a scientist, and cause him both stress and
humiliation. The Tribunal described the NRC’s conduct as “manipulative”, “callous”,
“flagrant” and “calculated to humiliate and demean” the Applicant, and found
that senior management had continued to discriminate against the Applicant
throughout the proceedings. As a result, the Tribunal made a remedial order
that included a written apology, a direction to cease and desist from discriminatory
practices, damages for hurt feelings, compensation for denied salary progression
and appointment to an appropriate section head or group leader position.
[5]
The NRC
immediately issued letters of apology to the Applicant and to the Optical
Society of America and paid him $5000 plus interest for hurt feelings. The NRC
also offered the Applicant the position of group head of the Optical Components
Research Group in its Herzberg Institute of Astrophysics, but the Applicant
declined the offer as he was of the view that it was not an appropriate
position. He therefore sought the assistance of the Tribunal, which had
explicitly retained jurisdiction “if the question of appointment to an
appropriate position meets with resistance by the Respondent in its
implementation”. The NRC refused to accept or acknowledge the Tribunal’s
jurisdiction, arguing that it was functus officio, and commenced two
separate proceedings in this Court which were both resolved in the Applicant’s
favour in 1994: see Grover v. Canada (National Research Council),
[1994] F.C.J. No. 1000; 80
F.T.R. 256. In
the meantime, the Tribunal ruled that the proposal of the NRC was totally
inappropriate when considered against the background of Dr. Grover’s
expertise. The negotiations therefore continued, and the Applicant was finally
appointed to the position of Director of Radiation Standards and Optics, and
received increased pay retroactive to August 1992.
[6]
On
December 23, 1991, the Applicant filed a second complaint of discrimination
against the NRC for alleged discriminatory acts that took place between 1987
and September 1991. In January 1992, the Commission requested the NRC’s
response with respect to that complaint and received it in April 1992.
[7]
On July
14, 1992, the Applicant filed a third complaint of discrimination against the
NRC for alleged discriminatory acts that took place between June 1991 and June
1992. The Commission granted the NRC an extension of time to reply to the
allegations in that third complaint on the basis that the Applicant made the
same allegations in a complaint before the Public Service Staff Relations Board
(PSSRB). Shortly after the PSSRB adjourned the complaint sine die in
January 1994, the NRC filed its response to that complaint. The Commission
then joined its investigation into the second and third complaints.
[8]
In March
1994, the Applicant submitted a fourth complaint to the Commission, dealing
with incidents between July 1992 and March 1994. The Commission refused to
receive it until the first complaint was resolved. The Applicant tried once
more to file his fourth complaint in July 1996, but the Commission again refused
to receive it until the investigations into his second and third complaints
were completed. It was eventually filed on July 27, 1998.
[9]
In April
1994, the Applicant sought to adjourn meetings with the CHRC with respect to
his second and third complaints, pending settlement discussions with the NRC
regarding his first complaint. It appears that the investigation did not
resume until April 1995, when a new investigator was appointed. The CHRC
completed its investigation in April 1997; Investigator Kennedy recommended
that the complaints be dismissed. In February 1998, after further
investigation and consideration of the submissions of the parties, the CHRC
decided to dismiss the second and third complaints. It determined that the
evidence did not support the Applicant’s allegation that he was treated
differently because of his race, national or ethnic origin and colour.
[10]
The
Applicant challenged the Commission’s decision by way of judicial review. The
matter was heard by the Federal Court in March 2000 and, in a judgment rendered
June 21, 2001, the Court quashed the Commission’s decision on the ground it had
erred in not interviewing a key NRC witness, Dr. Vanier, thereby failing to
conduct a thorough investigation: Grover
v. Canada (National
Research Council), 2001
FCT 687, [2001] FC.J. No. 1012. The matter was remitted back to the Commission for further
investigation.
[11]
The
Commission then took up the second, third and fourth complaints together. In
March 2002, the Commission interviewed Dr. Vanier in connection with the second
and third complaints. A summary of the interview was forwarded to the
Applicant in May 2002. Dr. Grover failed to comment on these notes, and sought
instead that all of his remaining complaints be placed in abeyance pending the
outcome of litigation he had recently initiated against the NRC before the
Ontario Superior Court. The NRC did not reply to that request, and the
Commission refused to keep the files in abeyance.
[12]
A new
investigation report was issued recommending the referral to the Tribunal of
all three complaints. The Commission followed this recommendation and in
September 2003, referred the second, third and fourth complaints of the
Applicant to the Tribunal. The NRC immediately filed an application for
judicial review of this decision. On May 14, 2004, the Federal Court allowed
that judicial review, holding that the Commission had given insufficient
reasons to support its referral of the second and third complaints, and that
the referral of the fourth complaint was premature because the investigation
was incomplete in this regard. The Court ordered that the Commission complete
a thorough, neutral evaluation before reaching a decision regarding the fourth
complaint, and also ordered the Commission to provide a more reasoned decision
with respect to the second and third complaints: Canada (Attorney General)
v. Grover, 2004 FC 704, [2004] F.C.J. No.865.
[13]
After the
Court’s decision, the Commission held some settlement discussions, but without
success, and finally retained the services of a lawyer in private practice in
November 2005 to carry out new investigations of all three complaints. On
February 28, 2007, Investigator Cynthia Peterson completed a report in respect
of the second and third complaints, and on March 22, 2007, she completed a
report in respect of the fourth complaint.
[14]
On July
31, 2007, the Commission decided to refer portions of the second, third and
fourth complaints to the Tribunal, but also concluded that several of the
allegations should be dismissed as they had already been dealt with. On
September 1, 2007, the NRC applied for judicial review of the Commission’s
decision. In the meantime, the Tribunal’s pre-hearing procedures commenced.
[15]
The NRC
brought two motions before the Tribunal to challenge the allegations made by
the Applicant in his Statement of Particulars. First, the NRC brought a motion
in June 2008 for an order striking out some of the allegations on the grounds
of res judicata and abuse of process. The Tribunal allowed the motion
in part. By direction dated 21 August 2008, the Tribunal struck out those
allegations that had been addressed in its 1994 decision and certain new
allegations that were not part of the second, third and fourth complaints.
[16]
The NRC
then brought a preliminary motion in September 2008 for an order dismissing all
three complaints due to administrative delay. On January 6, 2009, the Tribunal
allowed the motion dismissing the three complaints concluding that the NRC
would suffer significant prejudice and was unable to properly defend itself due
to the delay. It is that decision that is under review here.
II. The impugned decision
[17]
At the
time of ruling on the NRC’s preliminary motion, there were ten remaining
alleged discriminatory practices from the three complaints still pending. They
had all occurred between 1991 and 1994, and involved both managers and
employees of the NRC. The various allegations related to interferences
hindering prestigious opportunities for the Applicant in his career; deliberate
humiliating and harassing attitudes; unreasonable requests to monitor the
quality and progress of the Applicant’s work; actions and attitude in denial
and rejection of the Tribunal’s order of 1992; tactics to negatively dispose
and exacerbate the Applicant’s colleagues against him; refusal of funds for
racist considerations; and racist comments towards Asian scientists.
[18]
Relying on
Blencoe v. British Columbia (Human Rights Commission), [2000]
S.C.R. 307, 2000 SCC 44 and on s. 50(1) of the Canadian Human Rights Act,
R.S., 1985, c. H-6 (CHRA), the Tribunal summarized the right to a fair
hearing in accordance with the principles of natural justice as encompassing
the ability of a respondent to make a full answer and defence to the
allegations made against him or her. The Tribunal reasoned that this ability
could be impaired by delay because the memories could have faded, essential
witnesses died or were unavailable, or because evidence had been lost. The
Tribunal also pointed out that delay, in and of itself, is not sufficient to
warrant a stay of proceedings, and that the prejudice has to be demonstrated.
[19]
The
Tribunal then summarized the ten remaining discriminatory practices and the
evidence of prejudice to which the NRC would be subjected as a result of the
delay. The NRC filed nine affidavits of former employees and managers, and seven
of them were cross-examined on their affidavits by the Applicant. In short,
all of the NRC witnesses who filed affidavits stated not to have independent
recollection of the specific events surrounding the alleged practices or to
have very vague recollection.
[20]
Almost all
of the affiants left the NRC or retired between 1994 and 1997, and are now in
their late sixties or seventies. They stated that most of the alleged
incidents were of no importance from their point of view. Besides Dr.
Reynolds, Dr. Andrew and Dr. Vanier, who were interviewed respectively in 1997,
2000, and 2002 on related matters by the Commission’s investigators, none of the
affiants have been approached or questioned before 2007 about the alleged
events, since they left the NRC many years ago. Dr. Andrew and Dr. Vanier gave
detailed answers regarding some of the issues raised by the Applicant when they
were interviewed few years ago. However, in their recent affidavits, they
declared that they had no independent recollection of the events beyond what
they had said in those previous interviews.
[21]
The
Tribunal then considered the NRC’s ability to provide an answer to the allegations,
and found many factors impairing this ability. First, there was a very long
delay between the last alleged discriminatory practice (September 1994) and the
referral of the complaints to the Tribunal in 2007. Second, the affiants all
declared having little or no independent recollection of the events. Most of
the people quit or retired a long time ago and are advancing in age. Thus,
their failure to remember the incidents was understandable. Any recollection
that they may claim to have after so many years would likely be highly
unreliable. This is particularly so in light of the fact that many of the
alleged discriminatory practices relate to attitudes or behaviour that the
Applicant perceived to express resentment against him. Moreover, the relative
trivialness of the alleged incidents, as viewed from these individuals’
perspective, provided a reasonable explanation for some of their memory loss
over the course of the ensuing years. The Tribunal also dismissed the
Applicant’s contention that the NRC is to blame for some of those memory losses
since it failed to make any efforts to preserve these witnesses’
recollections. The Tribunal was not convinced that there would have been any
difference in the witnesses’ ability to independently recall individual events
from so long ago even if the NRC had spoken to all of these witnesses at an
earlier time. As for the weakening of Dr. Bedford’s and Dr. Vanier’s memory
since their interviews in 2000 and 2002, the Tribunal found that it was
explainable by the fact that these interviews took place many years ago and
that the witnesses are now in their 70’s and well into their retirement.
[22]
In a
subsequent section of its reasons, the Tribunal turned to the Applicant’s
argument that the delay must be of a certain gravity or duration to warrant
dismissal. Stressing that the matter at issue is one of natural justice and
fairness, the Tribunal opined that the emphasis must be on the actual prejudice
caused by the delay and not the nature of the delay itself. In any event, the
Tribunal also considered that even if one were to apply an unacceptable or
undue delay test, the delay in the present case was highly inordinate and could
be qualified as unacceptable. As for the sources of the delay, the Tribunal
pointed out that part of the delay can be attributed to the judicial review
process and that the remaining 9 to 12 years were due to additional Commission
investigations and unexplained gaps in the Commission’s processing of the
complaints. These causes of delay did not lessen its unacceptability.
[23]
In the
Tribunal’s view, the unacceptable delay impaired the NRC’s ability to make a
full answer to the allegations. Because many of the NRC’s witnesses are no
longer able to independently recall the incidents, the NRC cannot fully respond
to the allegations. Moreover, there is evidence in the present case of the
existence of prejudice and of the faded memories which consists of more than
vague assertions. The Tribunal also rejected Dr. Grover’s challenges to the
genuineness of the witnesses’ declared lapses in memory. It is true that in
the Tribunal’s 1992 decision regarding the first complaint, the evidence given
by Dr. Vanier and other witnesses was characterized as vague, contradictory and
lacking in detail and credibility. But the Tribunal stated that it would be an
error to make any assessment of a witness’s credibility based on the 1992
Tribunal’s findings. If a witness is not believed in one case, it does not
mean he will necessarily not be credible in another case. The Tribunal found
the testimony of Dr. Vanier and of other witnesses in the 2008 hearing entirely
credible, and was persuaded by all of the affiants’ evidence regarding their
memory loss and their lack of independent recollection of the events alleged by
the Applicant.
[24]
As for the
absence of testimony of some other potential NRC’s witnesses, it did not matter
in the Tribunal’s eyes. Most of the witnesses that had not filed an affidavit
played a minor role in the incidents or were impossible to locate. Moreover, a
respondent need not demonstrate that it is impossible for it to answer every
aspect of the complaint to have it dismissed; instead, the proper test is
whether or not, on the record, there is evidence of prejudice that is of
sufficient magnitude to impact on the fairness of the hearing. According to
the Tribunal, this test was met in the present case.
[25]
The
Tribunal also dismissed the Applicant’s argument that it was premature to
dismiss the complaints, since the NRC had not yet served its documents;
therefore, the Tribunal would only be able to determine if the fairness of its
process has been impaired once all the available documentary evidence is
disclosed. The Tribunal rejected this argument for two reasons. First, most
of the documents relevant to this dispute had most certainly been already
shared in the course of the numerous legal proceedings which developed between
the parties surrounding the same facts. Second, the existence of any new
documents would not allay or diminish the impairment to the fairness of this
hearing process as a result of the witnesses having no independent recollection
of the alleged incidents.
[26]
Finally,
the Tribunal rejected the Applicant’s argument that a dismissal would send an
inappropriate message to future litigants before the Tribunal. According to
Dr. Grover, respondents would understand that slowing the process is in their
best interest and complainants would hesitate to participate in mediation or
conciliation. But the Tribunal concluded that these considerations do not
justify conducting a hearing that is basically unfair and in breach of natural
justice. Besides, there was no evidence before the Tribunal that it is the
settlement effort that created the delay of more than 13 years in resolving this
dispute. And in any event, the delay in this case is highly inordinate, and it
is unlikely that settlement talks or even a respondent’s dilatory tactics could
create such a delay in the future.
III. The issues
[27]
The
Applicant has raised a number of issues, which the Respondent in turn addressed
both in his oral and written submissions. I shall therefore deal with them as
they have been framed and understood by both parties:
a. What is the appropriate
standard of review?
b. Did the Tribunal err in law by
failing to have due regard to the nature and context of the disputes, including
in particular the 1992 Tribunal decision?
c. Did the Tribunal err in law by
placing no weight on the NRC’s own actions in contributing to or waiving the
delay?
d. Did the Tribunal err in law by
placing no weight on the NRC’s failure to preserve evidence, thereby causing or
contributing to any prejudice suffered?
e. Did the Tribunal err in law by
placing no weight on the significance of documentary exhibits in the present
case?
f.
Did the
Tribunal err in law by failing to have due regard for findings involving some
of the witnesses in the 1992 decision?
IV. Analysis
A. What is the Appropriate
Standard of Review?
[28]
Both the
Applicant and the Respondent submitted that the standard of review on the issues
raised in the present case is reasonableness. I agree. The issues at bar are of
mixed fact and law, and the reasonableness standard applies since the legal and
factual issues are intertwined and cannot be easily separated.
[29]
It is
trite law that principles of natural justice and the duty of fairness are part
of every administrative proceeding. As a result, an unacceptable delay may
warrant a stay of proceedings if it compromises a party’s ability to have a
fair hearing. Indeed, the Supreme Court was prepared to recognize in Blencoe
v. British
Columbia
(Human Rights Commission), above,
at para. 115, that unacceptable delay may amount to an abuse of process in
certain circumstances even where the fairness of the hearing has not been
impaired. But we need not be concerned with this possibility here, as the
Tribunal granted the stay of proceedings on the narrow basis that the delay in
the hearing of the complaints had significantly impaired the NRC’s ability to
provide a full answer and defence.
[30]
The mere
passage of time will not be sufficient to justify a stay of proceedings; there
must also be proof of a significant prejudice. When that prejudice is said to
result from a party’s inability to have a fair hearing, that party must be
prepared to adduce evidence to substantiate its claim. As the Supreme Court
stated in Blencoe:
102. There is no doubt that the
principles of natural justice and the duty of fairness are part of every
administrative proceeding. Where delay impairs a party’s ability to answer the
complaint against him or her, because, for example, memories have faded,
essential witnesses have died or are unavailable, or evidence has been lost,
then administrative delay may be invoked to impugn the validity of the
administrative proceedings and provide a remedy (…). It is thus accepted that
the principles of natural justice and the duty of fairness include the right to
a fair hearing and that undue delay in the processing of an administrative
proceeding that impairs the fairness of the hearing can be remedied…
[31]
This is
precisely the assessment that the Tribunal was called upon to make in the
present case. The Tribunal heard considerable evidence relating to the issue
of delay and the diminished recollections of witnesses. It assessed the credibility
of the witnesses and drew inferences for the purposes of determining whether
the evidence demonstrated prejudice of a “sufficient magnitude to impact on the
fairness of the hearing” (Blencoe, above, at para. 104) justifying a
dismissal of the complaints. Applying the above-mentioned legal test to its
findings of facts, the Tribunal dismissed the complaints for delay. This is
therefore an issue of mixed fact and law.
[32]
This is to
be distinguished from those cases where an administrative body itself breached
the principles of natural justice and the duty of fairness. In those cases,
the standard of review is that of correctness: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J.
2056. This will be case, for example, where a party has been denied the
opportunity to present proper submissions or where the adjudicator is alleged
to be biased. But none of this arises in the case at bar.
[33]
Accordingly,
the decision of the Tribunal must stand unless it is shown that it is
unreasonable. Reasonableness is concerned with the existence of justification,
transparency and intelligibility within the decision making process. It is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v. New
Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, at para. 47.
B. Did the Tribunal
Err in Law by Failing to Have Due Regard to the Nature and Context of the
Disputes, Including in Particular the 1992 Tribunal Decision?
[34]
The
Applicant asserts that the Tribunal erred in law by failing to consider the
significant history between the parties and the previous findings of
discrimination against the NRC. He further argues that the proximity of the
earlier findings of discrimination to the outstanding complaints should at
least have been a factor considered by the Tribunal.
[35]
Contrary
to the Applicant’s argument, I am of the view that the Tribunal was well aware
of the context, complexity, and history of the proceedings between the
parties. In a detailed presentation of the factual and procedural background,
the Tribunal set out the history of the parties and made reference to the
Applicant’s first successful human rights complaint against the NRC. It was
therefore aware of the context of the current proceedings relative to its
earlier findings. Indeed, the Tribunal referred to the context of the dispute
on a number of occasions in its reasons, as for instance at para. 117, where it
stated:
To begin with, it is apparent that the
parties have been dealing with the issues of this case in an adversarial manner
for more than a decade and a half. Several other legal proceedings have
developed with respect to the disputes between the parties including at least
one labour arbitration, a civil lawsuit, and several judicial review
applications.
[36]
The
Applicant relies on another decision of the Tribunal, Chopra v. Canada
(Health Canada), 2008 CHRT 39, for the proposition that
earlier findings of discrimination by the same entity can be relevant in order
to establish a prima facie case of discrimination. In the case at bar,
however, this was not the issue. What the Tribunal had to decide was whether
the delay was such that it breached the respondent’s right to a fair hearing.
Even if the Tribunal’s finding of discrimination in 1992 could establish a prima
facie case of discrimination with respect to the outstanding complaints,
the NRC was still entitled to have a fair hearing and to defend itself.
[37]
In any
event, I do not think that context ought to be taken into account when
determining whether delay impairs a party’s ability to answer the complaint
against him or her. When prejudice of a sufficient magnitude to impact on the
fairness of the hearing has been established, there is no need to assess the
causes of the delay. In his memorandum, the Applicant quotes the following
paragraphs of Blencoe, above, in support of his position:
121. To constitute a breach of the duty
of fairness, the delay must have been unreasonable or inordinate…There is no
abuse of process by delay per se. The respondent must demonstrate that the
delay was unacceptable to the point of being so oppressive as to taint the
proceedings. While I am prepared to accept that the stress and stigma
resulting from an inordinate delay may contribute to an abuse of process, I am
not convinced that the delay in this case was “inordinate”..
122. The determination of whether a delay
has become inordinate depends on the nature of the case and its complexity, the
facts and issues, the purpose and nature of the proceedings, whether the
respondent contributed to the delay or waived the delay, and other
circumstances of the case. As previously mentioned, the determination of
whether a delay is inordinate is not based on the length of the delay alone,
but on contextual factors, including the nature of the various rights at stake
in the proceedings, in the attempt to determine whether the community’s sense
of fairness would be offended by the delay.
[38]
As already
mentioned, this discussion relates to those circumstances where the fairness of
the hearing has not been compromised but where the delay may nevertheless
amount to an abuse of process. This is indeed made clear by the last sentence
of paragraph 121 quoted above, which the Applicant conveniently left out in his
memorandum. In the context of an allegation of abuse of process, where the issue
is whether proceedings are unfair to the point that they are contrary to the
interests of justice, it is no doubt essential to look at the conduct of the
parties. But when the focus is on the fairness of the hearing, as in the
present case, there is no such need to look beyond a party’s ability to answer
the case against him or her.
[39]
The
Applicant also contended that the Tribunal erred in not considering the delays
inherent to the statutory regime put in place by Parliament under the CHRA
and the Federal Courts Act, R.S.C., c. F-7. I cannot agree with the Applicant. It is
true that there are a number of mechanisms which can slow down the processing
of a request. For example, the Commission performs a screening or gate-keeping
function, preventing trivial cases from proceeding (s. 44(3)(b) of the CHRA).
The Commission may also try to settle a complaint by appointing a conciliator
(ss. 47-48 of the CHRA). Moreover, the principles of natural justice
also require that both sides be given an opportunity to participate in
reviewing documents at various stages in the process and to review the
investigation report. And, of course, there is always the possibility for both
parties to apply for judicial review in the Federal Court. All these steps
obviously take time, and the Tribunal was clearly aware of these constraints. That
being said, it concluded that the delay in this case was quite exceptional and
much beyond what can be expected in the normal course of events. At paragraph
121 of its reasons, the Tribunal soundly wrote:
This is a highly inordinate delay. There
is no reason for other parties before the Tribunal to fear that the normal
delay, engendered where parties work consistently and reasonably together
towards and expeditious resolution of the complaint will ever extend to the
point that it impairs a respondent’s ability to answer the allegations made
against it.
[40]
The
Applicant himself acknowledges in his memorandum that “[t]his particular case
demonstrates how the delays inherent to the statutory regime may be exacerbated
to an exceptional degree” (par. 35). It is clear that a delay of more than 15
years is not inherent to the statutory regime, and the Tribunal was therefore
entitled to conclude that this delay was highly exceptional and could not be
considered as being characteristic of the usual process of dealing with a
complaint.
C. Did the Tribunal Err
in Law by Placing No Weight on the NRC’s Own Actions in Contributing to Or
Waiving the Delay?
[41]
The
Applicant asserts that, having engaged in judicial review proceedings and
settlement discussions in respect of the second, third and fourth complaints,
the NRC should not be permitted to rely on such delays as prejudicing its
rights, as its own actions effectively constituted a waiver. The Tribunal
clearly gave consideration to, and articulated its reasons for, rejecting the
characterization of the above:
[97]Dr. Grover suggests that one should
look carefully at the sources of the delay before drawing any conclusions. A
part of the delay can be attributed to the judicial review process (a total of
about four years – three relating to Dr. Grover’s judicial review application
and one arising from the NRC’s). That still leaves a period of nine and 12.5
years, depending on the complaint. Dr. Grover argues that even during this
time, the situation was not one where nothing was going on. At times the
parties were so focussed on Complaint #1 that the Commission slowed down or
suspended its investigation into the other complaints. The Commission’s first
decision with regard to Complaints #2 and #3 was issued in 1998, about six
years after they were filed, which is a long time but not necessarily
inordinate when compared to some other complaints that come before the
Tribunal… Some of the delay was attributable to additional Commission
investigations, which came about as a result of Federal Court orders. However,
as the NRC rightly points out, these extensions occurred because the Commission
did not execute its investigations properly in the first place.
(…)
[119] Dr. Grover argues that if his
complaints are dismissed due to delay, an inappropriate message will be sent to
future litigants before the Tribunal. Respondents will understand that it is
in their interest to slow the advance of the Commission’s pre-referral process
as much as possible, thereby creating an opportunity to subsequently request
that the complaint be dismissed because of the prejudice caused by the
resulting delay. Complainants, in turn, will be hesitant to participate in any
efforts to settle the case through mediation or conciliation, for fear of
adding so much time to the pre-referral period that their complaints may well
be dismissed for undue delay. Such complainants may also end up questioning
their respondents’ true motivation for participating in settlement talks,
particularly if they become prolonged.
[120] In my view, these considerations do
not justify conducting a hearing that is basically unfair and in breach of
natural justice. Besides, the implication in Dr. Grover’s argument regarding
the potential impact on settlement efforts is that there have been ongoing
negotiations in the present case throughout the 13 to 16.5 years that it took
for these complaints to reach the Tribunal. I have no such evidence before
me. It appears that there were some discussions along the way, but nothing
that would explain or justify such an inordinate period of time. A more likely
source of the delay would appear to lie in a decision to just keep Complaints
#2, #3 and #4 in abeyance while the dispute regarding Complaint #1 wound its
way through the Tribunal and judicial process.
[42]
I find
this reasoning unassailable. The Tribunal correctly assessed the causes of the
delay and came to the conclusion that the extraordinary lengthy delay was not
mostly attributable to the NRC, but rather to the Commission’s handling of the
investigation into the complaints. Indeed, the judicial review initiated by
the NRC delayed the procedure by only about a year as pointed out by the
Tribunal, which could also have added that the NRC cannot be faulted for having
exercised its rights, in the absence of any evidence of bad faith or abuse of
process. If this logic were to apply, the Applicant himself would not be
beyond reproach. After all, the Applicant filed four different complaints with
the Commission, initiated a labour arbitration and a civil lawsuit simultaneously,
along with an application for judicial review; these various proceedings no
doubt contributed to the complexity of the case and to the resulting delay. As
for the settlement discussions, they did not aim to delay the procedure, quite to
the contrary, as they helped resolve the first complaint. In any event, they
cannot, in and of themselves, explain over 13 years of delay.
[43]
In light
of all these facts, I have not been persuaded that the Tribunal erred in
rejecting the arguments of the Applicant in this respect. Even if one were to
accept the Applicant’s assertion that the Commission did exercise its judgment
to place in abeyance the second and third complaints pending the resolution of
the first complaint (an issue that is not free from doubt, as it appears that
the Commission did commence its investigation of complaints #2 and #3 before
complaint #1 had been ultimately resolved in 1996), the Tribunal nevertheless
found that there were gaps in the case’s history subsequent to the resolution
of complaint #1 that were not explained or justified by either the Applicant or
the Commission. In light of the evidence that was before it, the Tribunal
could reasonably conclude that the NRC was prejudiced as a result of the highly
inordinate delay in the referral of the last three complaints by the
Commission. At the end of the day, it must never be forgotten that the
emphasis must be on the prejudice caused by the delay, and not on the nature or
on the cause of the delay itself, when that delay is said to impair one’s
ability to make a full answer to a complaint.
D. Did the Tribunal err in law by placing no
weight on the NRC’s failure to preserve evidence, thereby causing or
contributing to any prejudice suffered?
[44]
The NRC
filed affidavits of several witnesses who all testified that they had little
recollection of the events. Under cross-examination, they all admitted that
the NRC had never approached them to inform them of the complaints or ask for
their version of the events since the complaints had been filed. The Applicant
therefore asserts that the Tribunal erred in placing no weight on the NRC’s
failure to preserve evidence, to the extent that any prejudice with faded
memories was caused in part by the NRC’s own inaction.
[45]
This
argument is without merit. First, whether or not the NRC previously approached
the witnesses concerning these outstanding complaints, the evidence is
uncontroverted that they were earlier apprised by the Commission concerning
those allegations. For example, the Commission conducted interviews during the
mid-1990’s concerning complaints #2 and #3 and subsequently issued two
investigation reports dated April 28, 1997. Key witness interviews were also
conducted by the Commission in respect of complaint #4 between 1998 and 2000.
Some witnesses were re-interviewed by the Commission in respect of these
outstanding complaints in 2000 and 2002, before the Commission subsequently
issued its third investigation report concerning complaints #2, #3 and #4 on
May 22, 2003.
[46]
The
Tribunal expressly rejected the Applicant’s contention that the blame for some
of the witnesses’ memory loss should be ascribed to the NRC itself for having
failed to make any efforts to preserve these witnesses’ recollection. Although
many of the witnesses testified that the NRC had not spoken to them over the
years about the Applicant’s allegations, the Tribunal nevertheless found that
“even if the NRC had spoken to all of these witnesses at an earlier time”, it
would not have made a difference in their “ability to independently recall individual
events from so long ago”. For example, it observed at paragraph 90:
[90] (…) A commission investigation
interviewed Mr. Reynolds back in 1997, about six years after the holography
exhibit incident alleged in Dr. Grover’s complaint. Judging by the investigator’s
report, it appears that Mr. Reynolds had a better recollection of the matter at
that time. Yet, the fact that he was interviewed back then did not assist him
in independently remembering any details today..
[91] Similarly, Dr. Bedford and Dr.
Vanier were unable to recall the incidents alleged in the complaints with the
detail that they were able to provide when the Commission interviewed them in
2000 and 2002 respectively. Dr. Grover questions how it could be that their
memory could have so weakened since then. But these interviews did not just
occur yesterday; they took place six to eight years ago. It is not at all
unreasonable for these two witnesses, who it bears repeating are in their 70’s
and well into their retirement, to have a significantly reduced recollection of
those old events, even when compared to their recollection from six and eight
years ago…
[47]
Based on
these facts, it was not at all unreasonable for the Tribunal to conclude that the
witnesses’ recollections would have been no better had the NRC spoken to them
after the complaints were launched.
[48]
In any
event, I agree with the Respondent that the Applicant’s argument has no legal
basis. There is no duty to preserve testimonial evidence. Indeed, it is of
significant note that the Applicant cited no authority for the proposition that
a respondent has a duty to refresh the recollections of witnesses on an ongoing
and regular basis to ensure that no memory loss occurs up to the time of a
hearing.
[49]
If there
is such a duty to preserve evidence, it only concerns documentary evidence, not
testimonies. In all the leading cases on the issue of preservation and
spoliation of evidence, the central question was the destruction of documents
by one party: see, for ex., St.
Louis v.
Canada, (1896) 25 S.C.R. 649; Spasic Estate
v. Imperial Tobacco Ltd. (2000), 49 O.R.(3d) 699. It could even
be argued that it would have been wrong for the NRC to talk to its employees, as
it could have been perceived to taint the process. It is much preferable to
leave the investigation to the Commission, precisely to avoid this pitfall.
E. Did the Tribunal Err in Law by Placing No
Weight on the Significance of Documentary Exhibits in the Present Case?
[50]
The
Applicant asserts that notwithstanding the fading recollection of witnesses, a
full hearing could have proceeded, in which some of the allegations could have
been established by documentary evidence.
[51]
The
Tribunal found that many of the alleged discriminatory practices related to the
attitudes or behaviour of the NRC’s witnesses that the Applicant described as
an expression of a “negative” disposition or resentment towards him. The
Tribunal therefore concluded that the evidence regarding these alleged
discriminatory practices would be dependent on nuances in speech, attitudes or
behaviour of the witnesses. It held that “any recollection that [the
witnesses] may claim to have after so many years [was] likely to be highly
unreliable” (Grover v. N.R.C., above, at para. 87), a
point that the Tribunal noted was made by the Ontario Court
(General Division), which stated as follows:
It is doubtful whether any tribunal can
safely rely on the memories of witnesses as to events that happened so long
ago, particularly where the significance of some of the events may depend upon
nuances in speech, attitudes or behaviour.
Ontario (Ministry of Health) v. Ontario Human Rights Commission, [1993] O.J. No. 1528, 105
D.L.R. (4th), quoted in Grover v. N.R.C., above, at para.
87.
[52]
In those
circumstances, it has not been established that the Tribunal erred in
concluding that the witnesses’ recollections were central and necessary to
provide proper context to the allegations made. Having duly considered the
relevant documentation, the Tribunal could reasonably rule that there was more
than sufficient evidence that the NRC is no longer able to respond to the
allegations made against it.
[53]
Furthermore,
the Tribunal was correct in stating that “in order for a complaint to be
dismissed, a respondent need not demonstrate that it is impossible for
it to answer every aspect of the complaint”: Grover v. N.R.C. at
para. 114. In Blencoe, above, the Supreme Court made it clear that the
emphasis must be on the magnitude of the prejudice and not on the impossibility
to answer each and every allegation of a complaint. Where, as here, key
witnesses have vague independent recollection of the relevant incidents, the
potential defence to the allegations is contingent to a large extent on these
testimonies, and the delay is extensive, it is certainly not unreasonable to
find the prejudice to be so serious as to impair the NRC’s ability effectively to
defend itself.
F. Did the Tribunal Err in Law by Failing to Have
Due Regard for Findings Involving Some of the Witnesses in the 1992 Decision?
[54]
Finally,
the Applicant takes exception to the Tribunal’s decision not to make
credibility assessments based on its earlier 1992 findings of these same
witnesses, since the 1992 findings of discrimination are so proximate and
intimately connected to the second, third and fourth complaints.
[55]
The
Tribunal addressed this argument head on, and articulated the reasons for which
it rejected the Applicant’s position and solely made credibility findings based
on the evidence placed before it:
[103] It would be an error for me,
however, to make any assessment of a witness’s credibility based on the 1992
Tribunal’s findings. The same issue, regarding the very same witness (Dr.
Vanier), was addressed by the Federal Court in the 2004 judgment that ordered
the Commission to give additional reasons (Complaints #2 and #3) and complete
its investigation (Complaint #4) (Canada (Attorney General) v. Grover, 2004
FC 204 at para. 44). The Court held that it would have been clearly
wrong in law for the Commission to have thought it could not, and should not,
assess Dr. Vanier’s credibility because it had already been found wanting by
the 1992 Tribunal. The Court relied on the Saskatchewan Court of Queen’s Bench
decision in Huziak v. Andrychuk (1977), 1 C.R.(3d) 132
(Sask. Q.B.), which stated:
The fact that a judge
disbelieves a witness in one case does not necessarily mean that he will
disbelieve the same witness if he appears in another case…Each case stands
alone.
[56]
This
ground of objection is therefore without merit and ought to be disregarded.
The Applicant further asserts that the memories of two particular witnesses
concerning alleged events occurring in the early 1990’s incredibly lapsed from
significant to zero between 2002 and 2008. How could these witnesses recall
the events in question in great detail when they were interviewed by the
Commission in 2000 and 2002, does he ask, and claim in 2008 that they have no
further independent recollection of those same events in 2008? The Applicant
suggests that these witnesses had an incentive to exaggerate their memory loss
so as to avoid the potential embarrassment that could arise from a hearing into
Complaints #2, #3 and #4.
[57]
Assessing
the credibility of witnesses is the very role of the Tribunal, which is in a
better position to assess credibility and reliability than is the court on an
application for judicial review. The Tribunal set out the underlying basis for
having found the witnesses’ evidence regarding their memory loss and lack of
independent recollection persuasive. It took note of the fact that the
previous interviews had taken place six to eight years ago, that the witnesses
are in their 70’s and well into their retirement, and that Dr. Vanier was
unequivocal in his reply that there was no connection between his desire not to
be involved in this “unpleasant” matter again and the truthfulness of his
testimony. The Tribunal was entitled, in assessing credibility, to rely on
criteria such as rationality and common sense. Its findings were not perverse,
capricious or unreasonable, and it is thus entitled to deference in regard to
its credibility determinations.
[58]
For all of
the foregoing reasons, this application for judicial review must therefore be
dismissed. While the Court understands the frustration Mr. Grover may feel as
a result of this outcome, which effectively puts an end to his protracted
dispute with the NRC, it is no reason to quash the decision of the Tribunal.
Its finding that his complaints must be dismissed because the delay in the
hearing of those complaints had significantly impaired the NRC’s ability to
provide a full answer and defence is unassailable and reasonable on the basis
of the record that was before it. Harsh as it may be, this result is entirely
compatible with the principles of natural justice and fairness.
ORDER
THIS COURT ORDERS that this application for judicial
review be dismissed, with costs to the Respondent.
"Yves
de Montigny"
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