Docket: T-1553-14
Citation:
2015 FC 835
Ottawa, July 8, 2015
PRESENT: The
Honourable Madam Justice Gleason
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BETWEEN:
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STEVEN LOVE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
In this application for judicial review, the
applicant, Steven Love, seeks to set aside the June 4, 2014 decision of the
Canadian Human Rights Commission [the CHRC or the Commission] made under
paragraph 44(3)(b)(i) of the Canadian Human Rights Act, RSC, 1985, c H-6
[the CHRA] in which the Commission determined that an inquiry by the Canadian
Human Rights Tribunal [the Tribunal] into Mr. Love’s complaint against
Citizenship and Immigration Canada [CIC] was not warranted. In making the
decision, the Commission issued a form letter that merely advised the parties
of its determination. In such circumstances, the Report of the Commission
Investigator that was submitted to the Commission is deemed to constitute the
Commission’s reasons for the decision: Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392 at para 37; Herbert v Canada (Attorney
General), 2008 FC 969, 169 ACWS (3d) 393 at para 26; D'Angelo v Canada
(Attorney General), 2014 FC 1160 at para 24.
[2]
While Mr. Love raises several arguments in support
of his request to have the decision of the CHRC set aside, I need only consider
one of them, namely, his claim that his procedural fairness rights were not
respected during the investigation process. I agree with Mr. Love that these
rights were not respected and have accordingly determined that the Commission’s
decision must be set aside and the matter remitted for a fresh investigation
and consideration by the Commission.
I.
Preliminary Issue
[3]
The respondent argues as a preliminary matter
that Mr. Love’s affidavit and the exhibits to it should be struck from the Applicant’s
Record as they were not before the Commission when it made its decision and
thus are not properly before the Court in this judicial review application. The
respondent has produced as its own Record and Supplementary Record the
materials that were before the Commission and certain supplemental materials
that were before the Commission Investigator, which the respondent concedes are
relevant.
[4]
Generally speaking, the record before this Court
on judicial review is limited to the materials that were before the administrative
decision-maker whose decision is being reviewed. Certain exceptions to this general
rule have been recognised, namely, where the additional material is relevant to
a procedural fairness claim, where the material is useful to provide background
information to the Court or where the material is required to establish the
lack of evidence before the administrative decision-maker in respect of an
impugned determination: International Relief Fund for the Afflicted and
Needy (Canada) v Canada (National Revenue), 2013 FCA 178 at paras 9-10; Assn.
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency,
2012 FCA 22, 428 NR 297 at paras 19-20 and Love v Canada (Privacy
Commissioner), 2014 FC 643 [Love v Privacy Commissioner] at para 85.
[5]
Many of the exhibits to Mr. Love’s affidavit appear
to have been before the Commission Investigator in this case. Indeed, her
Investigative Report specifically refers to Exhibit “B”,
the Computer Assisted Information Processing System [CAIPS] notes in respect of
the sponsorship application that gave rise to Mr. Love’s human rights
complaint, CIC’s OP-2 Policy, extracts of which are appended as Exhibits “O” and “Q” to Mr.
Love’s affidavit, and the Commission’s earlier section 40/41 Report that is
annexed as Exhibit “I” to Mr. Love’s affidavit.
[6]
In my view, in a case such as this, where the
CHRC’s reasons are deemed to be contained in the Commission Investigator’s
Report, all the materials that were before the Investigator are properly part
of the record before this Court on judicial review as this is the evidence
considered in the reasons that are the subject of the judicial review
application.
[7]
In addition to the exhibits mentioned in
paragraph 5 of these Reasons, Exhibits “C”, “D”, “E”, “G”, “J”, “L”, “P”, “R”, “S”, and “X” to Mr. Love’s affidavit may well have been before
the Commission Investigator or contain background information that is useful in
assessing this application. I therefore find these exhibits to be admissible.
[8]
The materials annexed as Exhibits “F”, “H”, “T”, “U”, and “V” of Mr. Love’s affidavit are relevant to his
procedural fairness claim as these exhibits constitute evidence that could have
been supplied by Mr. Love to the Commission had the Commission Investigator
more clearly explained the process she was adopting. They also constitute
background information and would accordingly be admissible for this reason as
well.
[9]
Thus, I find that Exhibits “B”, “C”, “D”, “E”, “F”, “G”, “H”, “I”, “J”, “L”, “O”, “P”, “Q”, “R”, “S”, “T”, “U”, “V” and “X” to Mr. Love’s affidavit are admissible as are the
paragraphs in his affidavit that introduce these exhibits. The remaining
paragraphs and corresponding exhibits do not fall into one of the exceptions
noted above and do not appear to have been before the Commission Investigator
in this file. They are therefore inadmissible and have not been considered by
me.
II.
Background
[10]
Mr. Love is self-represented. He self-identifies
as a homosexual and as a person who suffers from a disability due to hepatitis
C, a chronic liver condition, which he says makes it impossible for him to
work. At all material times, Mr. Love was in receipt of provincial disability
benefits and some time prior to the events that gave rise to his human rights
complaint received a substantial settlement by reason of his having contracted
hepatitis C through a transfusion of tainted blood.
[11]
Mr. Love claims that at the time of the events
which led to his human rights complaint, he was in a conjugal relationship with
a Filipino citizen, Mr. Ronie Lumayag, who resided in the Philippines. Mr.
Lumayag and Mr. Love met in an online chat room in March 2008 and spent a total
of 25 days together over three visits that Mr. Love made to the Philippines between
January 2009 and January 2010.
[12]
Mr. Love sought to sponsor Mr. Lumayag to
immigrate to Canada as a permanent resident as a member of the family class
(spousal sponsorship) in April 2010. Mr. Love’s sponsorship application was
approved on June 10, 2010 and he was notified that Mr. Lumayag’s permanent
resident visa application had been “found to meet
minimum requirements for completeness under the Immigration Act”. The
application was then forwarded to the Canadian Embassy in the Philippines in
Manila for further processing.
[13]
In a letter dated July 20, 2010, the visa
officer to whom the file had been assigned in Manila informed Mr. Lumayag that
he was to attend an interview and to bring additional documents as proof of the
relationship with his sponsor. Following the interview on October 21, 2010, Mr.
Lumayag’s application for a permanent resident visa was denied. In her CAIPS
notes, the visa officer indicated that she was not satisfied that Mr. Love and
Mr. Lumayag had “established and shared a genuine
conjugal relationship which has been in existence for one year”, for the
following reasons:
•
They had only met three times within a span of
twelve months and their time together was brief;
•
They never cohabitated;
•
Mr. Lumayag admitted there was no physical
intimacy between them;
•
They had never lived together in a “married-like”
state nor had they combined their income both economically and socially;
•
There was no mutual interdependence;
•
Mr. Lumayag had not demonstrated that he was
knowledgeable about Mr. Love’s background;
•
It appeared that Mr. Lumayag’s concern was to
enter Canada but not to live on a permanent basis with Mr. Love; and
•
The information provided during the interview “merely confirmed the information on file”.
[14]
Mr. Love has filed a number of complaints
regarding alleged deficiencies in CIC’s processing of Mr. Lumayag’s permanent
resident visa application and its treatment of him.
[15]
More specifically, he made several complaints to
the Office of the Privacy Commissioner [OPC] claiming that CIC violated his
privacy rights. He then made a complaint to the CHRC about the failure of OPC
to investigate his complaints and claimed that the failure to investigate
amounted to adverse differential treatment based on his sexual orientation and
disability. The Commission decided not to deal with this complaint pursuant to paragraph
41(1)(d) of the CHRA on the grounds that the complaint against OPC was trivial,
frivolous, vexatious or made in bad faith. Mr. Love then sought judicial review
of the CHRC’s dismissal of his complaint. On July 2, 2014, Justice Russell
dismissed the application for judicial review in Love v Privacy Commissioner.
[16]
Mr. Love also appealed the visa officer’s
refusal of Mr. Lumayag’s application for a permanent resident visa to the
Immigration Appeal Division [IAD]. During the hearing before the IAD on May 23,
2013, Mr. Love disclosed that his relationship with Mr. Lumayag had ended in
December 2011 and withdrew his appeal before the IAD as it appears that he had
consulted counsel, who advised him that the IAD no longer had jurisdiction to
hear his complaint.
[17]
Finally, on July 18, 2012, Mr. Love filed a
complaint with the CHRC alleging that CIC treated him discriminatorily in the
provision of a service based on his sexual orientation (homosexual) and/or
disability (chronic fatal liver condition). It is this last complaint that
gives rise to the present judicial review application.
[18]
In his human rights complaint, Mr. Love made the
following claims:
•
The decision to refuse the sponsorship
application was discriminatory as CIC failed to accommodate him;
•
During the interview in Manila, the visa officer
asked Ronie Lumayag questions about Mr. Love’s disability, which Mr. Love
characterized as a “covert investigation” against
him, that violated his human and Charter-protected rights;
•
The refusal of Mr. Lumayag’s application for a
permanent resident visa amounted to accusing Mr. Love of fraud, which likewise
violated Mr. Love’s human rights;
•
CIC further evinced a discriminatory attitude
and did not respond to Mr. Love’s letters about the questions posed to Mr.
Lumayag by the visa officer during the interview and about the refusal of Mr.
Lumayag’s permanent resident visa application; and
•
After CIC denied Mr. Lumayag’s application, its
treatment of Mr. Love’s Access to Information and Privacy requests for
information about the processing of both his and Mr. Lumayag’s applications was
inadequate and provides further evidence of discrimination.
[19]
When the CHRC first examined Mr. Love’s
complaint, the officer to whom the file was first assigned prepared a report
recommending holding the complaint in abeyance as at that time Mr. Love’s
appeal before the IAD was still pending and the IAD had jurisdiction to
consider Mr. Love’s human rights issues and to award Mr. Lumayag the visa he
sought. However, before this recommendation could be put before the Commission,
Mr. Love withdrew his appeal before the IAD and the issue of whether the
investigation should be stayed pending the IAD appeal became moot. The file was
therefore sent to a CHRC investigator, Lisa Falconi, for investigation.
[20]
Ms. Falconi wrote to Mr. Love and CIC on July
12, 2013, indicating that she had been designated to investigate the complaint
and stated that it was her responsibility “to gather
the evidence in relation to the complainant’s allegations”. She also
advised them that she would prepare a report to the Members of the Commission which
would include a recommendation for the disposition of the complaint and that
she could recommend that a referral be made to the Tribunal “if the evidence supports the allegations made in the
complaint”, or that the complaint be dismissed “if
the allegations are not supported by the evidence”.
[21]
In her letter to Mr. Love, Ms Falconi indicated
that she had requested CIC’s position and that, upon receipt, she would forward
it to Mr. Love for comment. In her letter to CIC, Ms. Falconi wrote as follows:
The first step in the investigation process
is for the respondent to provide its position in response to the allegations in
the complaint form. Please also include relevant information you think is
important to this investigation and wish to have considered. I would appreciate
if you could explain the process for assessing sponsorship requests. I would
appreciate receiving the names and contact information for potential witnesses
as well as a brief description of the information you expect them to be able to
provide. […]
[22]
CIC provided detailed responding submissions to
Ms. Falconi on August 15, 2013, and in its submissions at several points noted
that Mr. Love had provided no evidence in support of his allegations. CIC filed
excerpts from certain of its manuals as evidence and provided names and contact
information for witnesses.
[23]
On September 6, 2013, Ms. Falconi wrote to Mr.
Love and provided him with a summary of CIC’s submissions. She requested in her
letter that Mr. Love provide her with the names of any witnesses Mr. Love “might want her to contact during her investigation”
as well as his reply to CIC’s submissions and clarification as to the remedy he
was seeking.
[24]
Mr. Love replied to Ms. Falconi by letter dated
October 1, 2013 and in his letter indicated he was confused by the process that
Ms. Falconi was following. He wrote as follows:
Attached you will find my response to the
submission made by Citizenship and Immigration Canada that you have requested.
As for the names of people you would like me
to provide. I am a little confused as to the process here. Keep in mind the
people I was communicating with are either overseas or located in Ottawa and
all are employees of CIC. All those communications are contained in print
format. So any investigation at this stage would be a paper file review. Can
you please advise?
As for Mr. Lumayag who was the only witness
to the events of October 21, 2010 I will be happy to provide a sworn affidavit
should you have any questions for him. It should be noted that his English is
limited and he is profoundly naïve as to the larger implications of the events
that occurred at the visa office in Manila.
[25]
Ms. Falconi did not respond to Mr. Love’s
inquiry and drafted her Report without further input from him. She then sent
her Report to both parties, who were given the opportunity to provide
submissions to the Commission on the Report. Both CIC and Mr. Love did so, and
their submissions were cross-disclosed to each other, and each was provided the
opportunity to reply to the other’s submissions. Both parties filed replies.
[26]
In his submissions and reply, Mr. Love mentioned
that Mr. Lumayag claimed that the overseas visa officer in Manila was hostile
to Mr. Lumayag during the interview she conducted on October 21, 2010 and also
that Mr. Lumayag told the visa officer that he and Mr. Love had been sexually
intimate with one another. In addition, Mr. Love claimed that the visa officer
had before her evidence of financial interdependence between himself and Mr.
Lumayag, but that he had been unable to obtain copies of this evidence from
CIC. However, he failed to provide a statement or affidavit from Mr. Lumayag to
corroborate these claims and likewise failed to provide details of the evidence
he alleged was before CIC regarding the financial interdependence between Mr.
Lumayag and himself.
III.
Was there a Denial of Procedural Fairness in the
Circumstances?
[27]
Before me, Mr. Love argued that the visa
officer’s application of the standard criteria for the existence of a conjugal
relationship to him and Mr. Lumayag resulted in discrimination. He contends
that it was impossible for him to cohabit with Mr. Lumayag and likewise
impossible for him to visit for more than 30 days in a year as the requirements
associated with continued receipt of his provincial disability benefits
prevented him from being absent from Ontario for more than 30 days per year. Similarly,
CIC had denied Mr. Lumayag a visitor’s visa. These assertions were not clearly
made to the Commission Investigator before she penned her Report. Likewise, she
did not have evidence before her of what Mr. Lumayag claimed occurred during
the interview with the visa officer.
[28]
Had Ms. Falconi, the CIC Investigator, been
aware of these facts, she might have reached a different conclusion regarding
the lack of evidence in support of a prima facie case of discrimination
as the requirements for cohabitation or a greater number of visits may have
adversely impacted Mr. Love due to his disability. Further, Mr. Love’s case
before the Commission would have been strengthened had he filed an affidavit
from Mr. Lumayag to establish that the visa officer was hostile towards Mr.
Lumayag, that Mr. Lumayag in fact told the visa officer that he and Mr. Love
had been sexually intimate with each other and that Mr. Love had been providing
Mr. Lumayag with financial support.
[29]
At least in part, Mr. Love failed to submit this
evidence to the Commission because his inquiries as to what was expected of him
in the process went unanswered. As a self-represented litigant, he was
entitled, in my view, to a clear answer from Ms. Falconi as to the type of
information he needed to provide to support his assertions. Contrary to what
the respondent argues, the failure to answer Mr. Love’s queries cannot be
ignored simply because Ms. Falconi mentioned the need to provide evidence in
her initial letters to Mr. Love or because Mr. Love did submit some evidence to
her.
[30]
Courts have often recognised the need to provide
clear answers or directions to self-represented litigants in respect of the
applicable procedures. For example, Justice Scott for the Federal Court of
Appeal in Lally v Telus Communications Inc, 2014 FCA 214 stressed that
Canadian Human Rights Tribunal members bear a responsibility to be alert to the
needs of self-represented litigants and “to ensure that
self-represented complainants understand the procedure and rules to be followed
from the very commencement of a hearing” (at para 27). Similarly, in the
immigration context, this Court has recognized that a failure by the Refugee
Protection Division or a visa officer to explain to self-represented applicants
the process to be followed constitutes a breach of procedural fairness: Kerqeli
v Canada (Minister of Citizenship and Immigration), 2015 FC 475, 253 ACWS
(3d) 428 at paras 14-18; Nemeth v Canada (Minister of Citizenship &
Immigration), 2003 FCT 590 at para 10; Turton v Canada (Minister of
Citizenship & Immigration), 2011 FC 1244, 5 Imm LR (4th) 193 at para 36
and Zhu v Canada (Minister of Citizenship and Immigration), 2013 FC 155,
427 FTR 239 at paras 33-37.
[31]
Because the failure to answer Mr. Love’s
questions as to the process the Commission was following may well have impacted
the outcome in this case, it follows that the Commission’s decision must be set
aside. In the circumstances I believe Mr. Love’s complaint should be remitted
for reinvestigation by another investigator (if one is available) and that the
case should be resubmitted to the Commission for a fresh consideration of whether
an inquiry by the Tribunal is warranted.
[32]
Mr. Love has requested costs. Given that he has
chosen to represent himself before the Court, these are minimal. I thus fix the
costs to be paid by the respondent to Mr. Love in the all-inclusive amount of
$250.00.
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