Date:
20081016
Docket: A-43-08
Citation: 2008 FCA 306
CORAM: DÉCARY
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
ABDOURAHMAN MOHAMED SADICK
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Issue
[1]
The
appellant filed two complaints with the Canadian Human Rights Commission,
alleging on each occasion having been the victim of discrimination based on his
race, colour and national and ethnic origin, in violation of sections 7, 10 and
14 of the Canadian Human Rights Act (R.S.C. 1985, c. H-6) (the Act).
[2]
In the
first complaint, dated May 26, 2004 (Supplementary Appeal Book, tab 3, page 1,
file 20040511), the appellant claimed having been the victim of harassment and
differential treatment in his workplace. In the second, dated August 30, 2005 (Supplementary Appeal Book,
tab 15, page 2, file 20051699), he alleged having been dismissed on the
prohibited grounds stated above.
[3]
On
December 12, 2006, the Commission dismissed those two complaints and closed its
files following the investigator’s reports (Supplementary Appeal Book, tab 3,
page 6, file 20040511; Supplementary Appeal Book, tab 15, page 16, file
20051699), since the evidence gathered did not support the allegations of the
appellant (Supplementary Appeal Book, tab 16, page 1).
[4]
The
appellant failed in his applications for judicial review, before the Federal
Court, of those two decisions by the Commission (2007 FC 1309, Pinard J.
[judge]). Therefore, he is appealing before this Court.
[5]
Once
again, as he did before the Federal Court, the appellant “is essentially
complaining that procedural fairness was not observed in this matter” (Reasons
for Judgment, paragraph 11). More specifically, he accuses the judge of having
concluded that the Commission’s investigation was carried out in a neutral and
rigorous fashion despite the fact that, in his opinion, the investigator failed
to [translation] “question
certain crucial witnesses who were aware of the events that were occurring in
the workplace, namely the Ombudsman, the union representatives, the Minister’s
representative responsible for the campaign against harassment in the workplace
and two of the three directors general” (Appellant’s Memorandum of Fact and
Law, at paragraph 4), and failed to take into account all of the information
that the appellant had provided regarding his performance (ibid.,
paragraph 11) and his disability (ibid., paragraph 19).
Standard of Review
[6]
This
Court’s intervention will not be justified in the absence of a palpable and
overriding error by the judge responsible for reviewing the decisions of the
Commission (Housen Nikolaisen, 2002 SCC 33 at paragraph 36) and its application
of procedural fairness to the facts that were presented to it.
Analysis
[7]
We are of
the opinion that this appeal must be dismissed for the following reasons.
[8]
In this
case, the Commission gave effect to the investigator’s exhaustive reports,
which followed the two complaints of the appellant.
[9]
To examine
the first complaint, the investigator chose, among the witnesses suggested by
the appellant, those who were [translation]
“the most relevant, as well as a few witnesses chosen at random” (first report,
tab 3, page 10, paragraph 5). She also consulted with nearly a dozen persons
who had regular professional contact with the appellant as part of his duties.
[10]
The judge
had reason to emphasize that “the witnesses proposed by [the appellant] would
not at all have contributed to the investigation, because they had no direct
knowledge of the facts alleged” by the appellant (Reasons for Judgment,
paragraph 14). Not being involved in the events leading to the complaints under
consideration, these witnesses truly could only have stated what the appellant
himself had reported to them.
[12]
We cannot
agree with the appellant’s argument that the investigator [translation] “did not examine whether
the employer discharged its duty of reasonable accommodation of his disability”
related to problems of stress and anxiety he experienced in his workplace
(Appellant’s Memorandum of Fact and Law, paragraph 42).
[13]
Indeed, we
are persuaded by an attentive review of the case that the investigator took the
accommodation measures put in place by the employer into account before making
her recommendations—among others, offer of mediation (first report at
paragraphs 83 et seq.) assignment of new duties and a new supervisor (first
report at paragraph 119); extension of his term appointment in order to offer
the appellant a chance to fulfill the conditions of his position (Supplementary
Appeal Book, tab 1, letter dated March 24, 2004)—concluding, however, that [translation] “the same performance and
attendance problems were apparent” (first report, paragraph 119).
[14]
As stated
by this Court in Tahmourpour v. Canada (Solicitor General), 2005 FCA 113:
[39] Any judicial review of
the Commission's procedure must recognize that the agency is master of its own
process and must be afforded considerable latitude in the way that it conducts
its investigations. An investigation into a human rights complaint cannot be
held to a standard of perfection; it is not required to turn every stone. The
Commission's resources are limited and its case load is heavy. It must
therefore balance the interests of complainants in the fullest possible
investigation and the demands of administrative efficacy: see, for example, Slattery
v. Canada (Human
Rights Commission) at para. 55; Canadian
Human Rights Commission, Annual Report for 2001 (Ottawa:
Minister of Public Works and Government Services, 2002), p. 33.
[15]
Contrary
to the decision cited above, in this case, the appellant did not demonstrate
that this is an exceptional case where the Commission adopted the
recommendations made by the investigator following a faulty investigation in
which she had failed to examine “obviously crucial evidence” (ibid. at
paragraph 40).
Conclusion
[16]
It was
thus open to the judge to conclude as he did, since the investigator’s
recommendations were supported by the evidence she had gathered.
[17]
Therefore,
the appellant has not demonstrated an error of law or fact warranting our
Court’s intervention, and the appeal will be dismissed with costs.
“Johanne
Trudel”
“I agree.
Robert Décary J.A.”
“I agree.
Marc Noël J.A.”
Certified
true translation
Sarah
Burns
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