Date: 20071016
Docket: T-2148-05
Citation: 2007 FC 1059
Ottawa, Ontario, October 16, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MELISSA
GUILLE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the judicial review of a decision of the Canadian Human Rights Commission
(Commission) to request the Chairperson of the Canadian Human Rights Tribunal
(Tribunal) to institute an inquiry into a complaint against the Applicant and
the Canadian Heritage Alliance (CHA). The CHA was not a party to this judicial
review.
[2]
The
basis of the Commission’s decision is the contention that the Applicant
administers and maintains the CHA website and that the Applicant and CHA
communicated or caused to be communicated material on the website that would
expose individuals who are of any non-Christian religion, non-Caucasian races
or national or ethnic origins, and homosexuals to hatred or contempt.
II. FACTUAL
BACKGROUND
[3]
Richard
Warman filed a Complaint against the Applicant and CHA. The Complaint was split
such that there was one against the Applicant alone for hate messages that she
authored and another against the Applicant and CHA for providing a forum in
which hate messages could be communicated and exchanged.
[4]
The
allegation is that the Applicant (and CHA) violated s. 13(1) of the Canadian
Human Rights Act (Act). Section 13 reads in full as follows:
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13. (1) It is a
discriminatory practice for a person or a group of persons acting in concert
to communicate telephonically or to cause to be so communicated, repeatedly,
in whole or in part by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament, any matter that
is likely to expose a person or persons to hatred or contempt by reason of
the fact that that person or those persons are identifiable on the basis of a
prohibited ground of discrimination.
(2) For greater certainty, subsection (1) applies in respect of a
matter that is communicated by means of a computer or a group of
interconnected or related computers, including the Internet, or any similar
means of communication, but does not apply in respect of a matter that is
communicated in whole or in part by means of the facilities of a broadcasting
undertaking.
(3) For the purposes of this section, no owner or operator of a
telecommunication undertaking communicates or causes to be communicated any
matter described in subsection (1) by reason only that the facilities of a
telecommunication undertaking owned or operated by that person are used by
other persons for the transmission of that matter.
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13. (1)
Constitue un acte discriminatoire le fait, pour une personne ou un groupe de
personnes agissant d’un commun accord, d’utiliser ou de faire utiliser un
téléphone de façon répétée en recourant ou en faisant recourir aux services
d’une entreprise de télécommunication relevant de la compétence du Parlement
pour aborder ou faire aborder des questions susceptibles d’exposer à la haine
ou au mépris des personnes appartenant à un groupe identifiable sur la base
des critères énoncés à l’article 3.
(2) Il demeure entendu que le paragraphe (1) s’applique
à l’utilisation d’un ordinateur, d’un ensemble d’ordinateurs connectés ou
reliés les uns aux autres, notamment d’Internet, ou de tout autre moyen de
communication semblable mais qu’il ne s’applique pas dans les cas où les
services d’une entreprise de radiodiffusion sont utilisés.
(3) Pour l’application du présent article, le
propriétaire ou exploitant d’une entreprise de télécommunication ne commet
pas un acte discriminatoire du seul fait que des tiers ont utilisé ses
installations pour aborder des questions visées au paragraphe (1).
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[5]
In
the Complaint Mr. Warman provided the Commission with excerpts of material
posted on the CHA website. The Applicant alleges that she initially received
only 8 of the 37 items from the Commission. This point was only raised in oral argument
by her agent.
[6]
In
responding to the Complaint, the Applicant denied responsibility for the
articles on the website on the basis that the CHA website is a
telecommunication undertaking within the meaning of s. 13(3) of the Act and
therefore the Complaint is outside the Commission’s jurisdiction.
[7]
The
issue of s. 13(3) of the Act was not raised by either party to this judicial
review. The Commission investigator concluded that the s. 13(3) exemption did
not apply because the website was supported by an internet service provider
(ISP) located in New Jersey. This jurisdictional matter not having been
specifically addressed in the application for judicial review, the Court will
leave the matter for disposition elsewhere.
[8]
The
Commission conducted an investigation in which the Applicant filed responses
and stated her position. The Applicant also responded to the report of the
investigation (Report) in which the investigator recommended that the
Commission request the appointment of a Tribunal panel to inquire into the Complaint.
[9]
The
material found on the website included “posts” comparing non-white immigration,
cross-breeding, miscegenation, blending and assimilation with the 13th
Century plague, allegations that Jews are the literal children of Satan and
similar such comments on other racial, ethnic, religious and other groups.
[10]
The
Report concluded that the material was observed on the internet, that the
communication had taken place in part in Canada since the CHA website listed
the Applicant as the administrator resident in Ontario, that the CHA and the
Applicant caused the material to be communicated and the material would likely
expose individuals to hatred or contempt based on sexual orientation, religion,
race and colour, national or ethnic origin.
[11]
The
Commission essentially adopted the Report’s recommendation and requested the
Tribunal to conduct an inquiry. The Applicant attacks the Commission’s decision
by attacking the investigation. The Applicant, in her Memorandum of Fact and
Law, raised three principal points:
1. that
the Commission breached the principles of natural justice by allowing an
erroneous report to be submitted and used;
2. that
the Commission failed to conduct a thorough investigation; and
3. that
the Commission was engaged in a penal matter and breached her s. 11(d) Charter
rights as to the presumption of innocence.
[12]
At
the oral hearing before the Court, The Applicant raised additional grounds for
challenge:
·
that
the Commission should have required the Complainant to give notice to the
Applicant of the offending materials before investigating the matter because
the Complainant was required to exhaust his grievance and review procedures as
required by s. 41(1)(a) and s. 44(2)(a) which read:
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41.
(1) 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;
…
44. (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,
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41. (1) Sous réserve de l’article 40, la
Commission statue sur toute plainte dont elle est saisie à moins qu’elle
estime celle-ci irrecevable pour un des motifs suivants :
a) la
victime présumée de l’acte discriminatoire devrait épuiser d’abord les
recours internes ou les procédures d’appel ou de règlement des griefs qui lui
sont normalement ouverts;
…
44. (2) La Commission renvoie le plaignant à l’autorité
compétente dans les cas où, sur réception du rapport, elle est convaincue,
selon le cas :
a) que le
plaignant devrait épuiser les recours internes ou les procédures d’appel ou
de règlement des griefs qui lui sont normalement ouverts;
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·
that
the Applicant’s s. 7 Charter rights have been infringed because she has
to defend her actions without adequate legal resources and at personal inconvenience
as a single mother;
·
that
the Applicant was only given some of the offending articles at the time of the
investigation;
·
that
the Commission failed to conduct an analysis of whether the Complaint was
trivial, vexatious or in bad faith; and
·
that
the Commission is in a conflict of interest (reasonable apprehension of bias) because
the Complainant has been so successful in complaints filed with the Commission.
III. ANALYSIS
[13]
The
Court will briefly address each of the grounds raised by the Applicant but
before doing so the Court is required to address the standard of review applicable
to the Commission’s decision. The Applicant made no submissions on this issue.
A. Standard
of Review
[14]
The
Court is required to conduct a pragmatic and functional analysis in each case
before it as held in Sketchley v. Canada (Human
Rights Commission), 2005 FCA 404. However, this does not mean that
the Court cannot adopt the analysis used in respect of a similar case in an
earlier Court decision.
[15]
It
is important to recognize the nature of the decision at issue – a decision to
refer the matter on for further hearing. This decision does not conclude the
complaint process and court decisions which examine Commission decisions
dismissing a complaint have only limited application as regards the applicable
standard of review.
[16]
In
Canadian Imperial Bank of Commerce v. Durrer, 2005 FC 1064, Justice
Snider performed the pragmatic and functional analysis of a Commission decision
to refer a matter to the Tribunal. I adopt her analysis and her conclusion that
the applicable standard of review is patent unreasonableness. The Court
recognizes that this high standard of deference is, as the Supreme Court has
cautioned from the early days of the standard of review analysis, to be relied
upon sparingly. However, the Commission decision merely continues a process at
which the Applicant will have a full opportunity to address the allegations
against her.
[17]
As
to the issues of procedural fairness, it is accepted that in this type of case,
it must be measured against a standard of correctness. However, what procedural
fairness may be at this stage of the complaint process is not the same as that
before a tribunal. Dubé J. in Miller v. Canada (Canadian
Human Rights Commission) (re Goldberg), [1996] F.C.J. No. 735
(QL) captured the core of the obligation at paragraph 22:
The rule of procedural fairness requires
that a complainant know the substance of the case against him or her. The
complainant is not entitled to every detail but he should be informed of the
broad grounds of the case. The complainant is not entitled to the investigator’s
notes of interviews or the statements obtained from persons interviewed. He
must be informed of the substance of the case and he has every right to expect
that the investigator’s report fully and fairly summarize the evidence obtained
in the course of his investigation. He must be given the opportunity to
respond.
B. Erroneous
Report/Thoroughness
[18]
As
presented, these two issues are so similar as to be dealt with as one. The
Court in Slattery v. Canada (Human Rights
Commission), [1994] F.C.J. No. 181 (QL), aff’d. [1996] F.C.J. No. 385 (C.A.) (QL) (Nadon
J., as he then was) in paragraphs 53-57 confirmed the obligation of “thoroughness
of investigation” but held that the manner in which an investigator conducts an
investigation is a matter to be accorded considerable deference.
[19]
While
the Applicant may disagree with the Report and its conclusion, there is no
evidence that the investigation was not thorough, that each side’s position was
not considered nor that the Applicant was denied an opportunity to respond to
the Report. She received the eight-page Report, the Summary and the Complaint
form.
[20]
At
the hearing the Applicant expanded her argument on thoroughness to include the
failure of the Commission to include all the articles which were attached to
the original Complaint.
[21]
All
of the articles are of a similar type containing attacks on race, religion, sexual
orientation, and the like. In that regard, the Applicant was never at a loss as
to the substance of the Complaint against her even if she did not receive all
of the articles attached to the Complaint. Justice Dubé in Miller, supra,
put the matter succinctly:
In order to constitute a reviewable
error, the complainant must demonstrate that the information was wrongly
withheld and that such information is fundamental to the outcome of the case.
[22]
The
Applicant has not met this burden. If some of the articles were withheld (and
the record is not clear on this point), the materials are referred to in the
Complaint. No demand for them was made and refused. Under these circumstances,
I cannot find, given that the Applicant was aware of the type of information at
issue, that she was denied information fundamental to her ability to respond.
[23]
As
to alleged factual errors, the Applicant’s argument is largely one of
disagreement with the conclusions to be drawn from the facts rather than the
facts themselves. For example, the Applicant’s contention that there was a
factual error in concluding that she was the owner of the website is countered
by evidence that the CHA website listed her as the administrator and by the
Applicant’s own reliance on the exemption in s. 13(3) which is dependent on her
being the owner or operator of a telecommunication undertaking.
[24]
The
Applicant has not met the burden of showing a perverse or capricious finding of
fact or that there were no other facts on which it could reasonably base its
conclusions (see Stelco Inc. v. British Steel Canada Inc. (C.A.), [2000]
3 F.C. 282) (C.A.).
C. Further
Notice
[25]
The
Applicant argues that the Commission lacked jurisdiction because the alleged
victim (s. 41(1)(a)) or complainant (s. 44(2)(a)), failed to exhaust
grievance or review procedures before the Commission undertook further action. This
argument is based on the fact that the Complainant did not first complain to
the Applicant so that she could remove the offending materials from the
website. It was argued that this requirement for notice is part of the remedial
nature of the Act.
[26]
Firstly,
there are no legislated or consensual grievance or review procedures binding on
the Complainant. These remedies are more applicable to the employment situation
and are part of the Act to require that, most obviously, in employment
situations, issues are resolved firstly through those employment remedies
before resorting to the Commission. They are not applicable to the Complainant.
[27]
Furthermore,
the remedial nature of the legislation does not mean that if, given advanced
warning of a complaint, and the offending party ceasing the offending conduct,
the Commission lacks jurisdiction to investigate. The Applicant is not entitled
to some “free pass” because she cleaned up her offending conduct if such
conduct is found by the Tribunal.
D. Charter
[28]
The
Applicant raised s. 11(d) and s. 7 of the Charter as being offended
because she has been investigated and must now defend her conduct before a
Tribunal. Only s. 11(d) was raised in the Memorandum.
[29]
Justice
Evans, when in the Trial Division, in Zündel v. Canada (Attorney
General),
[1999] F.C.J. No. 964 (QL), captured the essence of the consequence of the
Commission’s investigation, at paragraph 25:
Of course, while the Commission's decision did
not decide Mr. Zündel’s legal liability under section 13 it obviously had
serious consequences for him. In particular, it exposed him to the expense,
anxiety and commitment of time inevitably associated with lengthy legal
proceedings, not to mention the risk of an adverse determination of his rights
by the Tribunal. However, I should also note parenthetically that for those,
like Mr. Zündel, whose political views are well out of the mainstream, Tribunal
hearings may provide a not altogether unwelcome publicity that they would not
otherwise receive.
[30]
The
Commission’s decision to refer the complaints to the Tribunal has not in any
way affected the Applicant’s right to be presumed innocent nor is the
Commission’s process a “penal matter”. It is also premature to presume what the
Tribunal’s disposition may be.
[31]
In
addition to the fact that s. 7 of the Charter was never put to the
Commission or even raised in the Applicant’s written material, there is no s. 7
matter to be answered.
E. Frivolous/Vexatious
[32]
The
Applicant now argues that the Commission failed to conduct a separate analysis
of whether the Complaint was “trivial, frivolous, vexatious or made in bad
faith” as required by s. 41(1)(d). There is no substance to this argument.
[33]
The
provision is an exception to the Commission’s first obligation – to deal with
any complaint filed. To fall within the exception, the fact that the Complaint is
frivolous or vexatious would have to be plain on its face or be substantiated
by the person against whom the complaint is filed. Neither circumstance exists
in this case.
[34]
The
Commission’s adoption of the Report is a complete answer to whether this Complaint
was trivial, frivolous, vexatious or made in bad faith. It is evident that the
Commission considered the merits of the Complaint and it need not conduct a
separate analysis of this exception.
F. Bias
[35]
Lastly,
the Applicant alleges that the Commission is in a conflict of interest. This
conflict, in the nature of a claim of bias or reasonable apprehension of bias,
is predicated on the fact that the Complainant, a former Commission employee,
has been highly successful in complaints against persons espousing the views
which the Applicant and CHA are alleged to have espoused on the website.
[36]
The
principles relevant to this claim are fully set forth in Zündel at
paragraphs 17-25. Issues of the active and educative roles of the Commission
are not at issue here.
[37]
There
are simply no facts to support this allegation. No reasonable person being
aware of the facts could harbour any reasonable apprehension of bias. The
Complainant’s past successes may be more fairly ascribed to the merits of the previous
complaints than anything else.
G. Review
of Decision
[38]
Given
a standard of review of patent unreasonableness, I would only quash the
Commission’s decision if there was no rational basis in law or on the evidence
to support the Commission’s conclusion. The issues in this Complaint, as they
relate to s. 13 of the Act, are reasonably more appropriate for a full hearing
before a Tribunal. Therefore, the Commission’s conclusion to refer the matter
to Tribunal is in no way patently unreasonable.
[39]
There
have been no breaches of fairness or natural justice nor are the Charter
arguments sustainable on this record.
IV. CONCLUSION
[40]
Therefore,
this application for judicial review will be dismissed with costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs.
“Michael
L. Phelan”
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