Docket: T-294-15
Citation:
2016 FC 400
Toronto, Ontario, April 11, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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FRANCIS ABOAGYE
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Applicant
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and
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ATOMIC ENERGY OF CANADA LIMITED
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The present Notice of Application dated February
26, 2015 and filed on that date by the Applicant, an unrepresented litigant, is
based on the following ground:
This is an application for Judicial Review
in respect of: 7-page Police report which was never made known to applicant in
regards to the decision of the Canadian Human Rights Commission (The
Commission) on December 12, 2013. The Commission dismissed applicant's
complaint with file number 20121378 against Atomic Energy of Canada [AECL]
because the evidence does not support that the complainant was treated in an
adverse discriminatory manner and dismissed from his employment because of his
race, national or ethnic origin and colour.
The decision was communicated to the
applicant on December 16, 2013.
The applicant makes application for:
1. Judicial Review of the 7-page Police
document sent to the Commission by Port Hope Police Service to influence the
decision of the Commission.
2. Judicial Review of the decision of the
Canadian Human Rights Commission.
The grounds for the application are:
1. breaching a principle of procedural
fairness:
[…]
[2]
The present Application was commenced on the
Applicant’s belief that an undisclosed
7-page police report (7pReport) was sent to the Canadian Human Rights
Commission (Commission), and in rendering the decision presently under review
pursuant to the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Act),
the Commission used the 7pReport to his detriment. Thus, the present
Application is focussed on the Applicant’s argument that the Commission
breached a duty of fairness owed to him by failing to disclose the 7pReport
prior to rendering the decision.
[3]
As context for the argument, the salient
features of the Applicant’s human rights complaint, and the Investigator’s
opinion and recommendation to the Commission with respect to it, are described
in the Investigation Report as follows:
It is undisputed that the complainant was
hired by the respondent and commenced his employment on May 29, 2012 as an
Industrial Relations Specialist. As a new employee, he was subject to a
probationary period of 120 working days. His employment was terminated for
cause on December 12, 2012.
At issue in this complaint is whether the
respondent treated the complainant in an adverse differential manner and
terminated his employment on the grounds of race, national or ethnic origin and
colour. The complainant self identifies as Black of African origin.
The investigation of this complaint includes:
review of the complainant and respondent's positions and supporting
documentation; review of relevant documentation including the complainant's
performance appraisal, written communications between the complainant and
respondent, AECL workplace harassment policy and Code of Conduct, job descriptions,
complainant's job offers, police reports, copy of the respondent's
internal investigation report summary interviews with relevant witnesses [...]
Notwithstanding the performance issues, the
evidence shows that the complainant was dismissed because of a breakdown in the
employment relationship following the results of the respondent's internal
investigation. This investigation shows that the complainant had misrepresented
relevant information which would have been pertinent to the selection process
and his Security Clearance.
It is recommended that, pursuant to
subparagraph 44 (3)(b)(i) of the Canadian Human Rights Act, that the
Commission dismiss the complaint because: the evidence does not support that
the complainant was treated in an adverse discriminatory manner and dismissed from
his employment because of his race, national or ethnic origin and colour.
[Emphasis added]
(Investigation Report, September 5, 2013,
paras. 8, 1, 7, 134, and 140.
II.
As to Process: Jurisdiction and the
Conduct of the Present Application
[4]
The Respondent’s response to the Application is
framed as follows:
Statement of the Points in Issue:
There is only one question to be addressed
in the current application - can the application proceed given it was not
brought within 30 days of the CHRC Decision and the applicant has been
previously denied an extension of time [in the previously filed Application
T-899-14]?
If this Court proceeds to consider the
merits of the Applicant's application for judicial review, it is AECL's position
that the Application is without merit or evidence to prove any of the elements
claimed by the Applicant.
Respondent’s Submissions
The Applicant's Application is precluded by
the doctrine of res judicata and is alternately an abuse of process.
(Respondent’s Written Submissions dated
July 22, 2015, Respondent’s Record, pp. 373 – 374).
[5]
The analysis of three issues determines the
merit of the Respondent’s argument
A.
The Relevance of the Application T-899-14
to the Present Application
[6]
By Notice of Application T-899-14 filed April 9,
2014, Counsel then acting for the Applicant applied for judicial review of the
Commission’s decision stated to have been made on December 12, 2013 and
communicated to the Applicant on January 2, 2014. Because the Application was
not filed within the required 30 days from the date upon which the decision was
communicated to the Applicant, a motion for an extension of time to file the Application
was made on the grounds that “the applicant was and is
unemployed and had no means to retain a lawyer. The applicant also suffers from
the depressive disability arising from being terminated unjustly from his
employment”. (Respondent’s Record in the present Application, pp. 18 –
21)
[7]
By order dated July 8, 2014, the motion for an
extension of time was dismissed by Justice Mosley on its merits (Respondent’s
Record, pp. 279 – 281). The Applicant’s motion for reconsideration was also
dismissed on the basis that none of the grounds warranting reconsideration as
specified in Rule 397 of the Federal Courts Rules had been met.
(Respondent’s Record in the present Application, pp. 354 - 356).
[8]
As mentioned, the Respondent relies on Justice
Mosley’s orders to argue that the Court has no jurisdiction to proceed to
determine the present Application. However, it is important to note that, after
the filing of the present Application, the Respondent did not bring a motion to
strike the Application; the Application proceeded forward unhindered.
B.
Amendment to the Style of Cause
[9]
Indeed, the Respondent acted in aid of the
present Application. The Application as filed named the Respondents as “Chief Commissioner David Langtry, Canadian Human Rights
Commission (CHRC)”. On March 20, 2015, the Respondent filed a Notice of
Motion for: an Order amending the style of cause to remove the Respondents as
named and to add Atomic Energy of Canada Limited as the Respondent; and an
Order specifying that all delays under the Federal Courts Rules should
run from the time of service as though a new Application for judicial review was
filed on March 20, 2015. The Orders were granted by Prothonotary Tabib on April
21, 2015, and an Amended Notice of Application was filed on April 27, 2015.
C.
Motion for an Extension of Time:
Requisition for Hearing
[10]
The next step in the process towards a judicial
review hearing was a Motion filed by the Applicant on September 21, 2015, for
an extension of time to file a requisition for hearing. At that point in the
process, the Respondent presented the following arguments:
AECL submits that the present application
for judicial review is res judicata and therefore has no merit. AECL
submits that the decision of Mr. Justice Mosley which dismissed the Applicant's
first request for an extension of time is final and conclusive for the purposes
of the Application before this Court. As such, the Applicant’s attempt to re-litigate
matters finally decided by Justice Mosley satisfies the requirements of cause
of action estoppels and the Application is therefore precluded by the doctrine
of res judicata.
The Applicant has brought varied litigation
against AECL based on the same facts and evidence adduced to the CHRC. The
Applicant's continuous litigation against AECL amounts to an abuse of process,
and in the specific circumstances of this case, the continued litigation in
multiple forums prejudices AECL.
(Respondent’s Written Submissions on the
Motion, paras. 36 and 37)
[11]
On December 1, 2015, Prothonotary Milczynski
delivered the following order:
UPON MOTION in writing on behalf of the
Applicant filed September 21, 2015, pursuant to Rule 369 of the Federal
Courts Rules for an extension of time within which to file the
Requisition of Hearing, nunc pro tunc, in respect of the within
application for judicial review;
AND UPON receiving the motion materials this
day, and reviewing the motion record of the Applicant and the Respondent's
motion record filed October 1, 2015, opposing the motion;
AND UPON being satisfied that the relief
sought should be granted having regard that the Applicant is self-represented
and has provided an explanation for the delay;
AND UPON noting that the Application
Records in this matter have been filed, including the Respondent's Record which
was filed on July 22, 2015, and further noting that
the Applicant has prepared the Requisition for Hearing dated September 21,
2015, a copy of which has been received by the Respondent, there being no
information, however, regarding whether the appropriate filing fee for the
Requisition has been tendered to the Court Registry:
THIS COURT ORDERS that the Applicant is
granted an extension of time of ten (10) days from the date of this Order to
file, with proof of service and payment of filing fee, the Requisition for
Hearing.
[Emphasis added]
[12]
The Respondent did not appeal Prothonotary
Milczynski’s order.
D.
Conclusion
[13]
Thus, the Respondent’s res judicata and
abuse of process arguments with respect to the Application proceeding to
hearing were considered by Prothonotary Milczynski and were dismissed on a nunc
pro tunc determination. As a result, I find that, by Prothonotary
Milczynski’s order, the Court has accepted the Applicant’s Application
retroactive to the date of filing. Further as a result, I dismiss the
Respondent’s jurisdictional res judicata and abuse of process arguments
advanced at the hearing of the present Application.
III.
As to the Merits: The Fairness Argument
[14]
The existence and content of the 7pReport, and
whether it was before the Commission when it rendered the decision under review,
are the central issues for determination arising from the Application.
A.
About the Existence of the 7pReport
[15]
In the course of the hearing of the present
Application, the Applicant made an oral request for production by the Commission
of the 7pReport. At the Court’s request, Counsel for the Commission voluntarily
appeared to assist in locating and producing the 7pReport. Following an
investigation, Counsel for the Commission produced affidavit evidence and made
representations with respect to relevant documentation in the possession of the
Commission. The following is a chronology of the documentation events.
[16]
On November 16, 2012, the Applicant filed his
discrimination complaint with the Commission.
[17]
On January 30, 2013, the Freedom of Information
Branch of the Port Hope Police Service (Port Hope) responded to a request made
by the Applicant under the Ontario Municipal Freedom of Information
and Protection of Privacy Act, R.S.O. 1990, c. M.56 for disclosure of
police reports in support of his complaint. Port Hope provided disclosure of
two Supplementary Reports plus one General Occurrence Report dated September
13, 2012. The General Occurrence Report had one paragraph redacted from the
version sent to the Applicant. (Affidavit of Milena Gonzalez dated March 8,
2016 (Gonzalez Affidavit): Exhibit A, pp. 0007 - 0008). As described below, it is
this one paragraph in un-redacted form that, ultimately, the Applicant seeks to
be disclosed.
[18]
On February 28, 2013, the September 13, 2012
General Occurrence Report, with the redacted paragraph, was filed as part of
the Applicant’s submissions to the Commission. (Gonzalez: Exhibit A, p. 0007)
[19]
On September 20, 2013, the Commission disclosed
the Investigation Report to the Applicant and the Respondent; the Investigation
Report was dated and signed September 5, 2013 with respect to the Applicant’s
claim under the Act. (Gonzalez Affidavit: para. 5)
[20]
On September 26, 2013, the Commission received a
letter by fax dated September 26, 2013, from Port Hope, answering questions
from the Commission's investigator; and on September 27, 2013, the Commission
received a letter by fax dated September 27, 2013, from Port Hope that included
an un-redacted version of the General Occurrence Report dated September 13,
2012. (Gonzales Affidavit: paras. 6 and 7)
[21]
On December 12, 2013, the Commission delivered
its decision not to deal with the Applicant’s human rights complaint. (Gonzalez
Affidavit: para. 8)
[22]
On June 12, 2014, the Applicant made the
following request of the Commission pursuant to the Access to Information
Act, R.S.C., 1985, c. A-1:
Request every information on my file
(20121378). These include everything from myself, the Canadian Human Rights
Investigator, Atomic Energy of Canada, The Police, and anything else I am not
aware of.
By an interim response dated July 28, 2014,
and a final response dated September 15, 2014, the Commission provided document
disclosure (Access Record), however some pages were withheld. The pages
withheld pursuant to s.13(1)(d) of the Access to Information Act were
those received by the Commission from Port Hope noted as “Pages 122 to 123” and “Pages
118 to 120”. On September 23, 2014, the Applicant made a complaint to
the Office of the Information Commissioner of Canada regarding the Commission’s
failure to disclose the entire record. The January 20, 2015 response confirmed
that the Applicant had reduced the scope of his complaint to pages 117 to 123,
and also explained that, since pages 117 to 123 were obtained in confidence
from Port Hope, they were properly excluded. (Exhibit A, K, and L of the
Applicant’s Affidavit dated April 27, 2015)
[23]
With respect to the present Application dated
February 26, 2015, pursuant to Rule 317 of the Federal Courts Rules, the
Applicant requested the record before the Commission when it rendered its
decision on his complaint (Tribunal Record), including the undisclosed content
of pages 117 to 123 of the Access Record. (Commission’s Representations (Reps.),
paras. 8 and 9)
[24]
Counsel for the Commission describes the content
of pages 117 to 123 of the Tribunal Record as follows:
The seven pages include one two page police
report, fax cover sheets and correspondence. They were provided in confidence
by a municipal authority. Pages 117 to 120 (one fax cover sheet, a cover letter
and a two-page Police Report from the Port Hope Police Service) of the Access
Record were received by the Commission on September 27, 2013. Pages 121 to 123
of the Access Record (a fax cover sheet and a letter) were received by the
Commission on September 26, 2013.
There is no seven page police report in the
possession of the Commission (Affidavit of Milena Gonzalez, dated March 8,
2016, at para. 11)
The Commission answered Mr. Aboagye's request
under Rule 317 of the Federal Courts Rule in a letter dated March 19, 2015,
then Commission Counsel objected under Rule 318 of the Federal Courts Rules to
the request and provided the material that was before the Commission when it
made its decision. As to the specific request for the seven pages (pages 117 to
123 of the Access Record), then Commission Counsel indicated that:
( ... ) this document belongs to a third
party and was sent to the Commission in confidence. The Commission must ensure
that it only discloses documents in a manner that is authorized or required by
law. Therefore, a redacted version of the requested document, which was provided
to the Commission by Port Hope Police Services and authorised for disclosure,
is enclosed ( ... ).
A copy of one of the documents, with one
paragraph blacked out, was provided to the Applicant along with the material
that was before the Commission. Those two pages correspond to pages 119 and 120
of the Access Record, without the redacted paragraph. The Port Hope Police
report is in respect of an incident that was reported and entered on September
13, 2012.
(Commission’s Reps., paras. 12 - 15)
[25]
Counsel for the Commission confirms the
following fact:
The Police Report at pages 119 and 120 of
the Access Record is another copy of the same document provided earlier by the
Complainant and which was in the possession of the Investigator when the
Investigation Report was completed on September 5, 2015. The version found at
pages 119 and 120 of the Access Records is slightly different in that the last
paragraph is un-redacted in the version disclosed confidentially to the
Commission on September 26, 2015.
(Commission’s Reps., para. 22)
The Applicant had no evidence that rebutted
or contradicted the Commission’s information on this point.
[26]
Thus, I find that the only document that constitutes
the 7pReport is the un-redacted version of the September 13, 2012 General
Occurrence Report provided to the Applicant in redacted form by Port Hope on
January 30, 2013.
B.
About the Evidence Before the
Investigator and the Commission
[27]
As to evidence before the Investigator, Counsel
for the Commission reasons that the documents at pages 117 to 123 of the Access
Record were received by the Commission on September 26 and 27, 2013. Therefore,
they could not be before the Investigator when the Investigation Report was
completed on September 5, 2013. (Commission’s Reps., para. 19).
[28]
However, the Applicant argues that there is
evidence that the un-redacted version of the September 13, 2012 General
Occurrence Report was before the Investigator in August 2013, was considered, was
an element of the Investigation Report sent and considered by the Commission,
and it is relevant evidence which requires an order for production. This
argument is based on passages in two letters: September 27, 2013, from Mr.
Robert Grandy, Port Hope Coordinator, Information and Privacy, to Mr.
Chamberlin of the Commission (Gonzalez Affidavit: Exhibit C); and March 18,
2015, Mr. Grandy to Mr. Jonathan Bujeau of the Commission (Gonzalez Affidavit:
Exhibit E).
[29]
The relevant passage from the September 27, 2013
letter is:
Pursuant to this, I am enclosing an unedited
version of the General Occurrence Report, as requested in Ms. Holt’s [the
Investigator] letter of August 14th, 2013. I would ask however that this
unedited version NOT be shared with Mr. Aboagye [Emphasis added].
And the relevant passage from the March 18,
2015 letter is:
In my letter to Mr. John Chamberlin of the
Commission dated September 27th, 2013, I requested that the original unedited
copy of the General Occurrence Report in question NOT be released to Mr.
Aboagye, as it was sent to a Ms. Holt (as per her prior request) in confidence for
her use only in August 2013 [Emphasis added].
[30]
The Applicant argues that the emphasised
statement in the letter of March 18, 2015 is evidence that the Investigator
used the unedited copy of the General Occurrence Report in reaching the
Investigation Report delivered to the Commission. I find that the argument is
not based on a fair reading of the evidence. It is clear that the Investigator
requested the document in question on August 14, 2013 but it was not sent until
September 27, 2013. As a result, the words “for her use
only in August 2013” fairly must be taken to mean that the Investigator
wanted to consider the document in late August and it was sent for that
purpose, albeit late, and after the Investigation Report was completed. As a
result, I dismiss the Applicant’s argument.
[31]
Therefore, the un-redacted version of the
September 13, 2012 General Occurrence Report provided to the Applicant in
redacted form by Port Hope on January 30, 2013, and delivered to the
Investigator was the only “police report” before
the Investigator.
[32]
As to evidence before the Commission itself at
the time the decision under review was rendered, Counsel for the Commission
makes the following representations:
As appears from the Court Record, the
material provided in the Commission Certificate under Rule 318(1)(a) of the Federal
Courts Rules included the following:
Investigation Report dated September
5th, 2013 with Appendices; Amended Summary of Complaint Form dated March 13th,
2013;
Summary of Complaint Form dated November
16th, 2012;
Complaint Form;
Submissions from the Complainant
concerning the Investigation Report, undated, with attachment;
Submissions from the Respondent dated
October 18th, 2013 with an attachment;
Complainant's response to the
Respondent's submissions, undated, with attachments; and
Respondent's response to the
Complainant's submission dated November 12, 2013.
The Commission's Rule 318 Certificate does
specify that this is the material that was before the Commission when it
rendered its decision on December 4th, 2013 in complaint 20121378 (ie. Mr.
Aboagye's complaint).
(Commission Reps., paras. 16 and 17)
[33]
On the evidence, I find that the un-redacted
version of the September 13, 2012 General Occurrence Report was not before the
Commission. As a result, I find that no duty of fairness owed to the Applicant
was breached.
C.
The Applicant’s Access to the un-redacted
version of the September 13, 2012 General Occurrence Report
[34]
Because the un-redacted version of the September
13, 2012 General Occurrence Report was not before the Commission when it
rendered its decision, I find it is not relevant with respect to the present
Application. As a result, I deny the Applicant’s request for production.
IV.
Costs
[35]
The Respondent requests an order for costs. In
my opinion, because the Respondent’s singular adamant jurisdictional argument
in response to the present Application did not succeed, an award of costs as
requested is not warranted.
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