Date: 19990317
Docket: A-627-97
BETWEEN:
BRIAN CHRISTOPHER BRADLEY
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
Heard at Halifax, Nova Scotia, on Friday, March 12, 1999
Delivered at Ottawa, Ontario, on Wednesday, March 17, 1999
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 19990317
Docket: A-627-97
BETWEEN:
BRIAN CHRISTOPHER BRADLEY
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR JUDGMENT
DESJARDINS J.A.
The appellant was a member of the Canadian Armed Forces ("the Forces") from December 1988 until his release on March 30, 1993. He was a Direct Entry Officer and held the rank of Sub-Lieutenant. He sought unsuccessfully before the Trial Division of this Court a revision of the decision of the Canadian Human Rights Commission ("the Commission") which dismissed his complaint against the Forces.
[1] The motions judge concluded that the ground on which the complaint was based, namely discrimination on account of age, had been fully canvassed by the Commission, that the investigation had been reopened following new information brought by the appellant with regard to a younger officer in a comparable position, who was supposed to be released from the Forces but eventually was not, and that the appellant had been given extended opportunities to comment on the various reports made by the investigators of the Commission.
[2] The appellant argues that the motions judge did not give weight to six instances where the Forces had misled the Commission in its investigation and that he failed to evaluate equitably the submissions made by the appellant and the respondent in the light of these six instances.
[3] We chose to hear the respondent on only one of them. It deals with whether a copy of a convening order issued by the Course Review Board was before the Career Review Board which pronounced the appellant's release from the Forces. The Course Review Board convened a meeting to discuss future career action for the appellant after his failure to succeed in certain courses given at the Technical University of Nova Scotia. The document contained, on one of the copies, a pencilled notation which read "43 years old" on the margin next to a possible recommendation dealing with a retention and/or transfer. It triggered the complaint which the appellant filed with the Commission alleging discrimination on account of age.
[4] We note that the designation of those on the distribution list1 of the alleged discriminatory document issued by the Course Review Board is different from the designation of those present at the meeting of the Career Review Board.2 The appellant explained, however, that the standards officer, who is on the distribution list of the alleged discriminatory document issued by the Course Review Board, reported through the chain of command to a member of the Career Review Board and that a superior officer will invariably support the view of a subordinate officer.
[5] The evidence does not establish this.
[6] The motions judge concluded the following:3
... Evidence relied upon by the applicant to establish how the Commission erred in its application of the Act and its relevant statutory provisions, was a handwritten marginal note, "43 years of age" that was found on a copy of a notice produced by a Course Review Board, convened in Halifax, that examined his record in academic courses and whether his studies in marine engineering should continue. That notice was not before the Career Review Board, convened in Ottawa, that decided he should be released from the CAF. In addition, there was evidence that a young person, whose terms of service were differently based, was treated somewhat differently. Clearly, neither of these circumstances were ignored in the course of the CHRC investigation. Each was explained by the comments of the CAF to the investigator's report. In my opinion, it was not unreasonable for the Commission to conclude there was insufficient evidence to found a case of discrimination on the basis of age. The CHRC conclusion cannot be said to be deficient in light of all the evidence before the Commission.
[7] But, even assuming that the Career Review Board members had been interested in finding the age of the appellant, the personal file of the appellant would have been easily accessible to them.4 This is a far cry, however, from establishing, on a balance of probabilities, that age was the ground of his release.
[8] It is now settled law that human rights tribunals are accorded considerable deference on questions of facts. The standard the motions judge was called upon to apply in light of the evidence before the Commission was that of reasonableness .5 He examined every angle of the reports signed by the investigators so as to satisfy himself that there was evidence on which the decision was made. It is true that, in the end, the Commission rejected the conclusion of the final report which recommended the appointment of a conciliator. It decided instead to dismiss the complaint. This decision by the Commission was, however, well within the scope of its discretion.
[9] I would dismiss this appeal with costs.
"Alice Desjardins"
J.A.
"I agree
"I agree
__________________
1A.B., vol. I at 43.
2A.B., vol. II at 263.
3A.B., vol. II at 294.
4A.B., vol. II at 248.
5See Canada (Attorney General) v. Mossop, ]1993] 1 S.C.R. 554; [1982] 2 S.C.R. 2">Maple Lodge Farm v. Government of Canada, [1982] 2 S.C.R. 2; Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574 affirmed (1996) 205 N.R. 383 (F.C.A.).
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