Docket: T-526-15
Citation:
2016 FC 527
Ottawa, Ontario, May 11, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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PAUL RITCHIE
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application by Paul Ritchie for
judicial review of a decision of the Canadian Human Rights Commission (the
Commission or the CHRC) dated March 10, 2015. The CHRC dismissed Mr. Ritchie’s
human rights complaint against the Canadian Forces (the CF) under subparagraph
44(3)(b)(i) of the Canadian Human Rights Act, RSC, 1985, c H-6.
[2]
Mr. Ritchie represented himself at the
hearing.
[3]
In dismissing Mr. Ritchie’s complaint, the
CHRC relied upon an investigation report prepared by Helen Gillespie, dated
December 11, 2014 (the Report).
[4]
The Commission reviewed the Report, as well as
the submissions of Mr. Ritchie and the CF response to the Report, and
concluded that an inquiry into the complaint under the Canadian Human Rights
Act was not warranted. As a result, the Commission declined to refer the
complaint to the Canadian Human Rights Tribunal (the Tribunal).
[5]
For the reasons that follow, this application
for judicial review of the Commission’s decision is dismissed.
II.
Background to the Complaint
[6]
Mr. Ritchie joined the CF in August 22,
2008 and trained at the Naval Engineering School in Halifax, Nova Scotia. Mr. Ritchie
is homosexual and claims that because of this he was discriminated against and
not provided with the same level of support as his peers. He claims he overheard
his commanding officer remark to a lieutenant: “this
should shut the faggot up” and his division often resorted to “gay-bashing” for comic relief. One of his peers
overheard a lieutenant comment that “certain people are
just not made for the military” in reference to Mr. Ritchie.
[7]
The discrimination is alleged to have continued
until Mr. Ritchie ceased training at the Naval Engineering School in 2011.
The following incidents were highlighted:
•
In May 2009, Mr. Ritchie was denied the
opportunity to take “pre-board” exams.
•
In September 2009, he was directed to attend a
French Court Martial as an “escort”, but Mr. Ritchie
is English speaking and he claims not to have been given any official duty in
this context.
•
Also in 2009, he was denied “short leave” and had difficulty obtaining approval
for annual leave.
•
In another instance in 2009 his name was left
off a “note of appreciation”.
•
Mr. Ritchie spent the summer of 2010 at the
Naval Engineering School, while his peers pursued work opportunities on ships.
•
In April of 2011, Mr. Ritchie’s peers were
released early for Easter weekend, but he and another student, who is also
homosexual, were required to stay late and complete “duty
lockup”. This duty is normally only assigned to one person.
•
In 2011, Mr. Ritchie was the only student
to fail a specialized course, which resulted in a hearing before the CF
Training Review Board. On February 2, 2011, the Training Review Board
recommended that he cease training and be reassigned to a less
multi-disciplined trade. Mr. Ritchie was officially removed from his
course on February 7, 2011.
•
Following the Training Review Board proceedings,
it was discovered that an incorrect marking scheme was used for the course. On
September 15, 2011, Mr. Ritchie filed an internal grievance. The grievance
was initially dismissed on March 27, 2012. Mr. Ritchie retained legal
counsel and challenged this decision, which resulted in a second decision on
April 3, 2013. The dismissal was reversed and Mr. Ritchie’s grievance was
granted in part.
[8]
On June 21, 2011, Mr. Ritchie submitted a
request for voluntary release as of July 8, 2011. On July 27, 2011, he sought
to cancel his voluntary release. On August 3, 2011, his request to cancel his
voluntary release was denied. Mr. Ritchie was released on August 22, 2012,
when his obligatory service period ended.
III.
Complaint to the Commission
[9]
On January 23, 2012, Mr. Ritchie filed a
complaint with the Commission that he had been subjected to discrimination in
the CF because of his sexual orientation.
[10]
On August 16, 2012, his complaint was referred
to an investigator; however, little happened with the complaint at this stage.
[11]
On September 19, 2014, Ms. Gillespie (the
Investigator) was assigned to investigate the complaint. She commenced the
investigation on September 29, 2014. During the course of her investigation,
she interviewed Mr. Ritchie on October 16, 2014; October 29, 2014;
November 20, 2014; and November 24, 2014. She also interviewed nine
others, including Mr. Ritchie’s officers, instructors, and a peer at the
Naval Engineering School.
[12]
On December 11, 2014, the Investigator issued
the Report. In it, she recommended that the Commission dismiss the complaint.
She found that reasonable explanations were provided for any adverse
differential treatment, and the incidents of harassment were “not very serious.”
[13]
The Commission disclosed the Report to both Mr. Ritchie
and the CF on December 11, 2014. Each party was invited to provide responding
submissions to a maximum of ten pages.
[14]
The CF, in its response of December 19, 2014,
stated that it agreed with the Investigator’s recommendation.
[15]
On January 12, 2105, through legal counsel, Mr. Ritchie
submitted a seven page response.
[16]
These responding submissions were disclosed to
the other parties and they were each permitted to submit further responding
submissions, again to a maximum of ten pages. The CF filed further submissions
on January 29, 2015. Mr. Ritchie did not file further submissions. On
February 4, 2015, the CHRC provided a copy of the CF’s January 29, 2015
submissions to Mr. Ritchie’s legal counsel.
[17]
On March 10, 2015, the Commission advised that
it reviewed the Report and the submissions and concluded that further inquiry
into Mr. Ritchie’s complaint was not warranted.
IV.
Preliminary Issues
[18]
As a preliminary issue, the Respondent objects
to materials filed by Mr. Ritchie in support of his application for
judicial review. The Respondent requests that the following portions of the Mr. Ritchie’s
Memorandum be struck: paragraphs 18, 19, 34, and 49; the first line of
paragraphs 26, 52, 54, 68, 77, 102 and 109; the first two lines of paragraphs
22, 27, 71, and 74; the second line of paragraph 82; and the last lines of
paragraphs 20 and 70. The Respondent submits that these portions of the
Applicant’s Memorandum contain factual assertions unsupported by affidavit
evidence or any documentary evidence in the record. I agree with the
Respondent. These portions of the Memorandum were not considered for the
purpose of this judicial review.
[19]
With respect to Mr. Ritchie’s affidavit of
July 27, 2015, the Respondent requests that the exhibits which are not
contained in the Commission’s Rule 318 record or supplementary record should be
disregarded, as they did not form part of the record before the Commission and
fall outside the scope of this judicial review. In particular, the Respondent
notes that some of the exhibits post-date the decision, including exhibits 2A,
6D, 7C, 7D, and a portion of 8A.
[20]
Mr. Ritchie argues that this information is
relevant and should have been considered by the Investigator and therefore
should have formed part of the record.
[21]
There are occasions, such as when certain
procedural fairness issues are raised, where evidence may be considered which
was not before the decision-maker: Gagliano v Canada (Commission of Inquiry
into the Sponsorship Program and Advertising Activities - Gomery Commission),
2006 FC 720 at para 50. In this case, while Mr. Ritchie does raise
procedural fairness issues, the additional evidence submitted by him does not
support his allegations of bias or unfairness on the part of the investigator.
[22]
The voluminous record in this matter contains
the material relied upon by the Investigator. It also contains material which Mr. Ritchie
obtained through the CF and under the Privacy Act, RSC, 1985, c P-21, as
well as additional information he provided consisting primarily of CF policies
and procedures.
[23]
Mr. Ritchie seeks to include this
additional information as, he argues, it is necessary to provide context to his
complaint. I disagree. In my view Mr. Ritchie had ample opportunity to put
the necessary information before the Investigator and the Commission at the
appropriate times. This additional evidence is not relevant to the issues
raised on this application for judicial review of the Commission’s decision and
has therefore not been taken into consideration.
[24]
In accordance with Rule 303 of the Federal
Courts Rules, SOR/98-106, the Respondent also requests that the style of
cause be corrected to remove any reference to the Minister of National Defence
and the CF.
[25]
The Respondent’s request is granted and the
style of cause is amended accordingly.
V.
Issues
[26]
Mr. Ritchie has raised a number of issues
for consideration which I would summarize as follows:
i)
Do errors in the Report render the Commission’s
decision unreasonable?
ii)
Was Mr. Ritchie denied procedural
fairness?
iii)
Was the Investigator biased?
VI.
Standard of Review
[27]
Standard of review refers to the approach used
by this Court when asked to consider if the decision of the Commission contains
reviewable errors. A judicial review is not a rehearing of the facts and
evidence which Mr. Ritchie relied upon to support his claims of harassment
and discrimination. Rather this Court’s role is limited to looking at the
decision of the CHRC and the record which formed the basis of the decision, and
assessing if the process was fair to Mr. Ritchie and if the decision
reached by the Commission was reasonable.
[28]
The decision by the Commission to dismiss Mr. Ritchie’s
complaint is a question of mixed fact and law and must be assessed on the
reasonableness standard: Dupuis v Canada (Attorney General), 2010 FC 511
at paras 9-10 [Dupuis]. This standard is highly deferential: Rabah v
Canada (Attorney General), 2001 FCT 1234 at para 9.
[29]
A reasonable decision is one which is
justifiable, transparent and intelligible, and falls within the range of
possible, acceptable outcomes: Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47.
[30]
A court in reviewing an administrative decision
considers both the outcome reached by the decision-maker and the reasons for
that outcome. This is best explained by the Supreme Court of Canada in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraph 16:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required
to make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’ International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382,
at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[31]
Questions of procedural fairness (issues ii) and
iii) above) are to be reviewed against the standard of correctness: Dupuis
at para 11.
VII.
Analysis
A.
Do errors in the Report render the Commission’s
decision unreasonable?
[32]
Mr. Ritchie points out a number of factual
errors in the Report, including:
a)
The Investigator fails to mention the second
grievance he filed with the CF;
b)
He was successful on the second grievance on the
exam marking issue, but this fact is not mentioned by the Investigator;
c)
The Investigator incorrectly states that he
failed a course;
d)
The Investigator incorrectly states that he had
a second “oral board”; and
e)
The Investigator incorrectly states that he
resigned from the CF when he was in fact released.
[33]
Mr. Ritchie states that these errors
demonstrate that the Investigator did not understand the true nature of his
claim of harassment and in some instances she failed to look into certain
aspects of his complaint. He alleges that the Investigator failed to take the
time to understand the internal CF procedures, and that her lack of
understanding of the CF caused her to misunderstand key parts of his claim and
the information or lack of information (such as the lack of regular divisional
notes) provided by the CF.
[34]
Mr. Ritchie also takes issue with the
Investigator taking “statements” from those she
interviewed and accepting them as “truth” and
not cross checking their information against the documentary evidence which,
according to Mr. Ritchie, contradicts the statements. This lack of
cross-referencing was also an issue which Mr. Ritchie says impeded his
ability to respond in a meaningful way to the Report.
[35]
The role of the Commission upon receipt of an
investigation report was outlined in Alkoka v Canada (Attorney General),
2013 FC 1102, by Justice Kane as follows:
[40] In the recent decision in Canadian
Union of Public Employees (Airline Division) v Air Canada, 2013 FC 184 at
para 60, [2013] FCJ No 230 [CUPE], Justice Mactavish addressed the
standard of review and summarised all of the relevant principles governing
Commission Investigations. As these principles address the very issues raised
in the present case, and refer to jurisprudence cited by the applicant and
respondent, I have set them out below:
[60] The role of the Canadian
Human Rights Commission was considered by the Supreme Court of Canada in Cooper
v. Canada (Canadian Human Rights Commission), [1996] S.C.J. No. 115, [1996]
3 S.C.R. 854. There the Court observed that the Commission is not an
adjudicative body, and that the adjudication of human rights complaints is
reserved to the Canadian Human Rights Tribunal.
[61] Rather, the role of the
Commission is to carry out an administrative and screening function. It is the
duty of the Commission “to decide if, under the provisions of the Act, an
inquiry is warranted having regard to all the facts. The central component of
the Commission’s role, then, is that of assessing the sufficiency of the
evidence before it”: Cooper, above, at para. 53; see also Syndicat
des employés de production du Québec et de l'Acadie v. Canada (Human Rights
Commission), [1989] S.C.J. No. 103, [1989] 2 S.C.R. 879 [SEPQA].
[62] The Commission has a broad
discretion to determine whether “having regard to all of the circumstances”
further inquiry is warranted: Halifax (Regional Municipality) v. Nova
Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 at
paras. 26 and 46; Mercier v. Canada (Human Rights Commission), [1994] 3
F.C. 3, [1994] 3 F.C.J. No. 361 (F.C.A.).
[63] Indeed, in Bell Canada
v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C.
113, [1998] F.C.J. No. 1609 [Bell Canada], the Federal Court of Appeal noted
that “[t]he Act grants the Commission a remarkable degree of latitude when it
is performing its screening function on receipt of an investigation report”: at
para. 38.
[36]
While the Investigator may have made errors in
her Investigation Report, the Report and the Commission’s decision is
nonetheless reviewed in accordance with the above authority and in recognition
of the Commission’s screening function. In this context, there is broad latitude
afforded to the Commission in its assessment of the findings and
recommendations in an investigation report. The Commission is entitled to a
broad margin of appreciation owing to its factual and policy-based task: Bergeron
v Canada (Attorney General), 2015 FCA 160 at paras 41, 45; Dunsmuir at
para 47.
[37]
The underlying investigation and resulting
investigation report must be neutral and thorough, but perfection is not the
standard. The Federal Court in Slattery v Canada (Human Rights Commission)
(1994), 73 FTR 161 (TD) or [1994] 2 FC 574 [Slattery] addresses the
question of what makes an investigation and investigation report thorough.
First, the investigation report must inform the complainant of the essence of
the case that he or she has to meet, so the complainant may meaningfully
provide responding submissions to the Commission. Second, as Justice Nadon
observed in Slattery, the investigation report, together with the
responding submissions, must provide the Commission with an adequate basis upon
which to decide whether or not to refer a complaint to the Tribunal. The first
consideration raises concerns of fairness. The second goes to the
reasonableness of the Commission’s decision.
[38]
The thoroughness of a report is to be balanced
with the interests of administrative efficiency, as well as the practical
constraints of time and cost: Tahmourpour v Canada (Solicitor General),
2005 FCA 113 at para 39. A complainant is not entitled to a perfect
investigation, and a complainant is likewise not entitled to a perfect
investigation report.
[39]
The safeguard against errors in an investigation
report is the opportunity to respond prior to the Commission deciding whether
or not to refer the complaint to the Tribunal. Importantly, parties may be able
to rectify errors or omissions in an investigation report by providing
responding submissions. Judicial review is only warranted where complainants
are unable to rectify such flaws: Slattery, at paras 56-57.
[40]
Here, the investigator reviews each of the
incidents complained of and outlines the factual information she has
considered. In some instances she did conclude that Mr. Ritchie was
treated differently from others in the CF. In those instances, she then took
the analysis to the next step to determine if the differential treatment was
related to Mr. Ritchie’s sexual orientation. Mr. Ritchie is
obviously unsatisfied with the Report and the decision of the Commission.
However, I conclude that the Report provides the necessary analysis and
explanation for the ultimate recommendation that the complaint be dismissed.
[41]
For the Commission’s part, before rendering its
decision, it had, in addition to the Report, responding submissions from Mr. Ritchie
and the CF. As a result, when the decision of the Commission is viewed in the
context of the record and the Report, the decision of the Commission to dismiss
the complaint is reasonable.
B.
Were Mr. Ritchie’s rights to procedural
fairness respected?
[42]
Fairness required the Commission to inform Mr. Ritchie
of the case he had to meet. He had to be informed of the recommendation of the
Investigator and the position taken by the CF in response, and given an
opportunity to respond. The case to be met is that set out in the Report: Khapar
v Air Canada, 2014 FC 138 at paras 52, 56.
[43]
The non-adjudicative role of the Commission is a
factor to be taken into consideration in this analysis. In Canadian National
Railway Company v Casler, 2015 FC 704 [CN], at paragraph 29,
the Court noted that the role of the Commission is to determine if there is
sufficient evidence to refer a complaint to the Tribunal. Following the release
of the investigation report, the purpose of the parties’ responding submissions
is not to re-argue the substance of the complaint but rather to respond to the
investigator’s recommendation and underlying findings. In administering this
process, the Commission is entitled to prescribe procedures in order to
maintain a workable and administratively effective system, which includes
setting page limits on responses: Phipps v Canada Post Corporation, 2015
FC 1080 [Phipps] at para 43, citing Canadian Union of Public
Employees (Airline Division) v Air Canada, 2013 FC 184 at para 67.
[44]
Mr. Ritchie says he was denied a fair
opportunity to respond to the Report because of the page limit (ten pages) imposed
by the Commission. This Court has previously held that a page limit for
responding submissions does not breach procedural fairness, provided the limit
is applied equally to the interested parties: Phipps, at paras 43-44; CN
at para 29.
[45]
Here, both Mr. Ritchie and the CF were
confined to a ten page response. Accordingly on that basis, Mr. Ritchie
cannot demonstrate how a ten page limit was procedurally unfair to him alone.
[46]
Mr. Ritchie also states that he was not
personally provided a copy of the CF’s submissions and cross-submissions
following the release of the Report. However he acknowledges that the
submissions were sent to the office of his legal counsel. In the circumstances,
and considering his responding submissions were sent from his lawyer’s office,
it was fair and reasonable for the Commission to forward the submissions to
his legal counsel and assume his lawyer would provide it to him. As such, he
has failed to demonstrate any reviewable breach of procedural fairness on this
issue.
[47]
Prior to the Commission issuing its decision, Mr. Ritchie
was given the opportunity to comment on the Report which recommended dismissal
of his complaint, and to comment on the submissions made by the CF. In one
instance, Mr. Ritchie had his lawyer prepare a letter, which enclosed a
seven page response that he had prepared, and on the second opportunity he
chose not to respond. That was his choice. However he cannot now complain that
he was not afforded an opportunity to respond when in fact he had two separate
opportunities to do so. He also cannot allege that he did not know the case he
had to meet as it was clear that the Investigation report recommended dismissal
of the complaint.
[48]
There was no breach of Mr. Ritchie’s
procedural fairness rights.
C.
Was the Investigator biased?
[49]
Mr. Ritchie alleges that Investigator was
biased in her investigation. He points to the first page of the Report where
the Investigator notes that her role is not to “determine
whether discrimination has actually occurred”. Mr. Ritchie claims
that this is precisely what the Investigator does as evidenced by the headers
used throughout her Report. For example, he notes that the Investigator
prefaced her findings with headings such as “Was the
complainant treated differently because he was gay” and “Was the complainant treated differently based on his sexual
orientation”.
[50]
An allegation of bias is a serious allegation
and Mr. Ritchie has the burden to prove bias on the part of the
Investigator and on the part of the Commission. Bias may be actual or
apprehended and the onus rests on the alleging party to prove that a
fully-informed reasonable person would conclude the investigator favours one
side or outcome for reasons of prejudice, partiality, or a closed-mind: R v RDS
, [1997] 3 S.C.R. 484 at para 111. A suspicion of bias will not be enough.
[51]
In this case, Mr. Ritchie clearly has
suspicions of bias but has not pointed to any evidence or occurrence in the
course of the investigation which would lead to a finding of bias. He takes
issue with the Investigator referring to matters as “allegations”
however that alone does not disclose any partiality or show a closed-mind on
her part. The fact that she used the headers referenced above throughout her
report also does not establish bias. Further, the fact the Investigator did not
interview all of the individuals identified by Mr. Ritchie does not mean
she was close-minded in her approach to the complaint. As the case law
referenced above confirms, Mr. Ritchie is not entitled to a perfect
investigation and administrative efficiency is a factor to be considered in the
breadth of the investigation.
[52]
Having regard to the high threshold for a
finding of bias, particularly in the non-adjudicative context of a Commission
investigation, I am of the view that a fully-informed reasonable person would
not find a reasonable apprehension of bias on behalf of the Investigator or the
Commission.
[53]
Mr. Ritchie has not established any bias on
the part of the Investigator or the Commission.
VIII.
Summary
[54]
For the reasons outlined above, this judicial
review is dismissed. Although Mr. Ritchie disagrees with the findings of
the Investigator and the decision of the Commission not to refer the matter to
the Tribunal, he has not established any breach of procedural fairness and I
find that the decision is reasonable.
[55]
In the circumstances, I decline to award costs
against Mr. Ritchie.
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