Tahmourpour v. Canada (Solicitor General), 2005 FCA 113

Date: 20050406

Docket: A-271-04

Citation: 2005 FCA 113

CORAM:        ROTHSTEIN J. A.

SEXTON J.A.

EVANS J. A.

BETWEEN:

                                                          ALI TAHMOURPOUR

Appellant

                                                                           and

THE SOLICITOR GENERAL OF CANADA

Respondent

                                        Heard at Toronto, Ontario, on February 16, 2005.

                                   Judgment delivered at Ottawa, Ontario, on April 6, 2005.

REASONS FOR JUDGMENT BY:                                                                                 EVANS J.A.

CONCURRED IN BY:                                                                                            ROTHSTEIN J.A.

                                                                                                                                     SEXTON J.A.

Date: 20050406

Docket: A-271-04

Citation: 2005 FCA 113

CORAM:        ROTHSTEIN J. A.

SEXTON J.A.

EVANS J. A.

BETWEEN:

                                                          ALI TAHMOURPOUR

Appellant

                                                                           and

THE SOLICITOR GENERAL OF CANADA

Respondent

                                                    REASONS FOR JUDGMENT

EVANS J.A.

A.       INTRODUCTION

[1]                On March 21, 2001, Ali Tahmourpour, a Canadian citizen of Middle Eastern descent and a Muslim, made a complaint to the Canadian Human Rights Commission. He complained that, after being recruited to the Royal Canadian Mounted Police's cadet programme, he was the victim of discriminatory practices on account of his religion, or his national or ethnic origin, contrary to sections 7 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. He said that he was subject to harassment as a cadet at the RCMP's Training Academy at Regina, Saskatchewan, between July and October 1999, and that he was unfairly evaluated and his employment was terminated after he had completed 14 of the 22 weeks of training. The complaint attributed his harassment to systemic discrimination.

[2]                After investigating the complaint, the Commission's investigator recommended that the complaint be dismissed as unfounded, pursuant to subparagraph 44(3)(b)(i) of the Act, "in that the complainant's contract was terminated because of his job performance." Having reviewed the investigator's report and Mr. Tahmourpour's submissions in response to it, the Commission dismissed the complaint, "because the evidence does not support the allegation of discrimination."

[3]                This appeal raises two issues of procedural fairness. First, was the investigation of the complaint so incomplete as to deny the appellant the right to a thorough investigation? Second, was the complaint dismissed on the basis of findings of credibility, which can only be made fairly by a Tribunal after a hearing where witnesses can be cross-examined?

[4]                Mr. Tahmourpour made an application for judicial review of the Commission's dismissal of his complaint. The application was dismissed: Tahmourpour v. Canada (Solicitor General), 2004 FC 585. The Judge held that the Commission's decision could not be said to be unreasonable on the basis of the evidence before it. In particular, the Judge concluded that statistical data produced by Mr. Tahmourpour, but not considered in the investigator's report, supported neither a complaint of systemic discrimination, nor the complaints of personal discrimination. This is the decision under appeal.

[5]                In my respectful opinion, the Applications Judge erred in dismissing the application for judicial review. The appeal should be allowed and the matter remitted to the Commission. I would add that this Court was greatly assisted by counsel for Mr. Tahmourpour, an advantage denied to the Applications Judge, before whom Mr. Tahmourpour appeared in person.

B.        LEGISLATIVE FRAMEWORK

Canadian Human Rights Act

C.        ISSUES AND ANALYSIS

Issue 1: Standard of review

[6]                Subparagraph 44(3)(b)(i) of the Act confers a broad discretion on the Commission to decide whether a complaint should be screened out or proceed to a hearing before a Tribunal. Consequently, the Court will only intervene if the Commission's conclusion is unreasonable, absent a breach of the duty of fairness or other errors of law: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at para. 35; see further Marie-Hélène Blais et al., Standards of Review of Federal Administrative Tribunals, 2005 edn. (Markham Ont.: LexisNexis Butterworth, 2004), at 3.2.1.4.

[7]                In alleging that the investigation of his complaint was insufficiently thorough to justify its dismissal, and that the Commission's decision was based on findings of credibility, Mr. Tahmourpour is claiming that the Commission breached the duty of fairness. A reviewing court owes no deference in determining the fairness of an administrative agency's process: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29">2003 SCC 29, at para. 100. Nonetheless, the court will not second guess procedural choices made in the exercise of the agency's discretion which comply with the duty of fairness.

Issue 2: Was the Commission's investigation sufficiently thorough to be procedurally fair?

[8]                The leading case on this issue is Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 at para. 55 (T.D.), aff'd. (1996), 205 N.R. 383 (F.C.A.). The Applications Judge in Slattery, Nadon J. (as he then was), said (at para. 49) that the Commission's decision on whether an inquiry into a complaint is warranted must be based on a thorough investigation of the complaint. He went on to explain (at para. 56) that an investigation may lack the legally required degree of thoroughness if, for example, the investigator had "failed to investigate obviously crucial evidence".

[9]                Counsel for Mr. Tahmourpour submitted that the investigator in the present case had "failed to investigate obviously crucial evidence". He relied particularly on two aspects of the investigation to establish that it did not meet the test of thoroughness prescribed in Slattery.

[10]            First, the investigator had not investigated the comparative rates of attrition from the cadet training programme which, Mr. Tahmourpour said, provided statistical evidence of systemic discrimination against members of visible minorities.

[11]            Second, the investigator had failed to interview crucial witnesses who were present at, but not parties to, some of the incidents complained of, and might have been able to provide an independent perspective on them. In particular, the investigator had made no effort to contact other cadets in Mr. Tahmourpour's troop who witnessed some of the incidents that Mr. Tahmourpour said constituted, or evidenced, discrimination. Nor did he interview a Member of Parliament to whom Mr. Tahmourpour had spoken about his concerns, several weeks before his contract was terminated.

(i) Systemic discrimination

[12]            Counsel for Mr. Tahmourpour says that, in his report, the investigator failed to investigate some of the statistical evidence which Mr. Tahmourpour adduced concerning the rates of attrition (that is, resignations and terminations combined) from the cadet training programme in the years 1996-2001. He submits that, since the statistics were crucial evidence, the failure to investigate them constituted a breach of the duty of fairness, and that the Applications Judge should have remitted the matter to the Commission for further investigation. Instead, the Judge conducted his own review of the data and, counsel says, erred in his analysis.

[13]            Mr. Tahmourpour submitted to the Commission two sets of statistics which had been obtained from the RCMP, together with his analysis of them. A note beneath one set of the RCMP statistics stated that, in the period 1996-2001, there was a 7% attrition rate from the programme for cadets as a whole. Mr. Tahmourpour compared this figure with his calculation of a 15.9% attrition rate for visible minority cadets on the basis of figures for 1996-2000, the last year of complete statistics.

[14]            Mr. Tahmourpour said that the differential is larger when the attrition rates for minority and non-minority cadets are compared. He calculates that, if members of visible minorities are excluded from the cadet population, the attrition rate is only 5.8%, as compared to 15.9% for visible minority cadets.

[15]            Mr. Tahmourpour said that figures for the years 1996-2001 also show that, although members of visible minorities accounted for only 11% of the cadet population, they represented 23% of all attritions. In the years 1996-2000, he said, while only 12% of the cadets were members of visible minorities, they represented nearly 28% of the total attritions.

[16]            Counsel for Mr. Tahmourpour submits that, given the reliability of their source, these statistics are sufficiently suggestive of the existence of discriminatory practices as to have required analysis by the investigator in his report and, if necessary, further investigation.

(a) systemic investigation and scope of the investigation

[17]            There has been some doubt as to whether systemic discrimination was included in Mr. Tahmourpour's complaint. The "allegations" part of the formal complaint cited two sections of the Act: section 7 (refusal to continue to employ, or to differentiate adversely in employment) and section 14 (harassment in employment). It did not cite section 10, which provides that it is a discriminatory practice for an employer, employee organization or employer organization to establish or pursue a policy or practice that deprives or tends to deprive individuals or classes of individuals of employment opportunities on a prohibited ground. Section 10 does not use the words "systemic discrimination".

[18]            After detailing allegations of harassment by two officers in the "particulars" part of the complaint form, Mr. Tahmourpour stated: "I feel the discrimination is systemic and therefore I endured incidents of harassment from other instructors at Depot." He then described other incidents on which he based his complaints of harassment, unfair performance evaluations, and the termination of his employment.

[19]            In response to a request from Mr. Tahmourpour to amend the complaint by including section 10, the investigator advised him in a letter dated January 22, 2003, that this was not possible and that, if he wanted to allege systemic discrimination, he would have to file a new complaint. However, since the Commission could dismiss a new complaint under section 41 of the Act as out of time, Mr. Tahmourpour did not regard this as a very attractive option.

[20]            Nonetheless, while the investigator's report never mentions systemic discrimination as such, under the heading "other relevant evidence" it refers to some of the statistics provided by Mr. Tahmourpour. However, the statistics do not include data which, according to Mr. Tahmourpour, suggest that, in the years 1996-2001, the attrition rate for members of visible minorities was much higher than for the cadet population as a whole.

[21]            The RCMP supplied figures to the investigator showing how many of the 24 cadets in Mr. Tahmourpour's troop were members of visible minorities and Aboriginals, and, of these, how many were hired or terminated. On the basis of this data, the investigator concluded that documentary evidence demonstrated that the complaint was unfounded and that Mr. Tahmourpour's employment was terminated for poor performance.

[22]            In my opinion, nothing turns on whether Mr. Tahmourpour's formal complaint includes an allegation under section 10 of a discriminatory policy or practice within the RCMP, or whether the reference in the complaint to discrimination being systemic was intended merely to provide circumstantial evidence to support his complaints that he had been the victim of harassment contrary to section 14, and of improper evaluations and termination contrary to section 7. Whether the scope of the complaint includes section 10, or is confined to sections 7 and 14, the statistics provided by Mr. Tahmourpour to show different rates of attrition for the cadet population as a whole and for visible minority cadets related to an allegation within the scope of the complaint.

[23]            If the complaint included systemic discrimination in the section 10 sense, evidence of differential rates of attrition may suggest the existence of an RCMP policy or practice concerning the training and hiring of cadets that tends to deprive members of visible minorities of employment opportunities.

[24]            If, on the other hand, the complaint is limited to Mr. Tahmourpour's allegations that he was the victim of harassment, and improper evaluation and termination, the statistics on rates of attrition may provide circumstantial evidence of these allegations. On the use of statistical evidence in support of human rights complaints, see Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra) (1998), 146 F.T.R. 106, where Richard J. (as he then was) held that a Tribunal had erred in refusing to admit statistical data as circumstantial evidence of an individualized complaint.

[25]            In my opinion, the real question in this case is whether the investigator's failure to investigate the RCMP data on comparative attrition rates on which Mr. Tahmourpour relies was such a serious deficiency as to amount to a breach of the duty of fairness as defined in Slattery.

(b) was the investigation of the statistical data thorough?

[26]            On their face, the RCMP statistics on comparative attrition rates relied on by Mr. Tahmourpour are both reliable, because of their source, and relevant to the complaint. Counsel for the Minister argued that, if the investigator had erred in failing to investigate some of the data adduced by Mr. Tahmourpour, the error was, in effect, cured when the Applications Judge looked at the data and concluded that they did not establish discrimination.

[27]            I do not agree. In my opinion, it is not the function of a court hearing an application for judicial review to assume the role of an investigator by embarking on an analysis of evidence which the investigator ought to have undertaken. Assessing the strength of evidence in human rights complaints is within the expertise of the Commission, especially when the evidence is of a technical nature. If fairness required the investigator to investigate and analyse attrition rates, and he failed to do so, the Judge should have set aside the dismissal of the complaint and remitted the matter to the Commission.

[28]            The danger of embarking on the exercise undertaken by the Applications Judge is illustrated by the fact that his analysis of the data appears to be suspect. In particular, the Judge's calculation of the number of attritions for the overall cadet population in 1996-2000 was 425 out of 3,121 cadets, or 13.6%, whereas the note to the RCMP statistics for the years 1996-2001 states that the attrition rate was only 7%. For these years, the Applications Judge's methodology would produce an attrition rate of approximately 3.7%. Further, the Judge did not address the statistics put before the Commission by Mr. Tahmourpour which, he says, show that, while visible minorities accounted for approximately 11% of the recruits in 1996-2001, they accounted for nearly 23% of all attritions in those years.

[29]            As I have already stated, it is not the function of either this Court or the Federal Court to determine whether the figures produced by Mr. Tahmourpour are accurate or complete, or whether his analysis is sound. Hence, I have considered the statistics produced to the Commission by Mr. Tahmourpour only to show that they are on their face reliable, relevant to matters within the scope of the investigation, and sufficiently suggestive of the discriminatory practices alleged, as to require that, as a matter of fairness, they should have been investigated by the Commission.

(ii) Failure to interview witnesses

(a) other cadets

[30]            Counsel for Mr. Tahmourpour said that the investigator ought to have interviewed some of the other 23 cadets in Mr. Tahmourpour's troop, because they could supply independent information with respect to certain of the incidents on which he based his complaint. Instead, it appears from the report that the investigator only interviewed the officers against whom Mr. Tahmourpour had complained, and officers who worked with them on the training programme.

[31]            Evidence from cadets who were present might have been particularly valuable in the investigation of three incidents. First, Mr. Tahmourpour alleged that the sergeant in charge of fitness training announced to the troop in a "hostile and condescending tone" that, as an exception to the general rule of "no jewellery", Mr. Tahmourpour would be allowed to wear "religious jewellery" in the fitness sessions. A corporal who was present on that day denied that the sergeant had singled out Mr. Tahmourpour in any negative manner, and said that he would have remembered if the sergeant's tone had been hostile or condescending.

[32]            The second incident concerned the corporal in charge of firearms training, an area in which Mr. Tahmourpour's performance had been evaluated as unsatisfactory. Mr. Tahmourpour alleged that the corporal shouted abuse at him, identified him as a member of a religious minority, and announced to the troop that he (the corporal) was not "politically correct" and did not care who knew it. Mr. Tahmourpour thought that this latter remark meant that the corporal was hostile to members of minorities and contemptuous of anti-discrimination measures; he noted also that the phrase, "politically correct", often prefaces a comment or conduct that is likely to be found offensive by members of minority groups. The corporal in question, however, said that he was never hostile or abusive to Mr. Tahmourpour and that his "politically correct" comment simply meant that, as a firearms trainer, he had to shout, and that he might be "abrupt and brisk".

[33]            Third, Mr. Tahmourpour said that, prior to inspections, he showed his firearm to other cadets, who confirmed that it was clean. However, when it was inspected by the officers in charge, he was told that his firearm was dirty, on the basis of which his performance in this area was evaluated negatively.

[34]            In my opinion, the investigator's failure to interview any of the other cadets in the troop about the above allegations is unjustifiable, since they were potentially such an important source of information. Counsel for the Minister suggested that the problem was the passage of time. The incidents in question had occurred in the summer and fall of 1999, and the investigation was conducted approximately three years later. Meanwhile, cadets from Mr. Tahmourpour's troop would have dispersed and would not be available for interview. And, even if they could be tracked down, counsel said, they were unlikely to remember the incidents.

[35]            I do not agree. Since the investigator made no attempt to contact any of the cadets, it cannot be said that they could not be located, or would not remember the incidents in question. This is speculation. I would note that the officers involved in the incidents, and their colleagues, remembered enough to deny Mr. Tahmourpour's allegations.

(b) Mr. John Solomon M.P.

[36]            Counsel for Mr. Tahmourpour submitted that the investigator seems to have been troubled by, and to have attached weight to, the fact that Mr. Tahmourpour did not complain about harassment until after his employment was terminated. Counsel infers this from the fact that the report contains four references to Mr. Tahmourpour's failure to complain promptly.

[37]            Mr. Tahmourpour responded to the investigator's draft report on March 10, 2003, and stated that, while still in active training as a member of the troop, he had complained of harassment to the local Member of Parliament, Mr. John Solomon. Mr. Tahmourpour informed the Commission that other cadets who were members of ethnic and other minorities had also complained to Mr. Solomon about racism and discrimination in the RCMP. Mr. Tahmourpour stated that Mr. Solomon had verified these statements to the press.

[38]            If, as seems to have been the case, the investigator attached importance to Mr. Tahmourpour's failure to complain before his termination, he ought to have contacted Mr. Solomon, particularly since Mr Tahmourpour had advised the Commission that the Member had also received complaints of discrimination from other cadets.

(iii) Conclusion

[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.

[40]            Nonetheless, I am satisfied that this is an exceptional case. In failing to investigate and analyse the statistical data, and to interview other cadets in Mr. Tahmourpour's troop or Mr. Solomon, the investigator failed to investigate "obviously crucial evidence". The investigation of Mr. Tahmourpour's complaint thus fails to meet the test of thoroughness prescribed in Slattery. Accordingly, the Commission's dismissal of the complaint should be set aside as being in breach of the duty of fairness.

Issue 3: Did the Commission breach the duty of fairness by making credibility findings?

[41]            Counsel for Mr. Tahmourpour argued that the Commission's dismissal of the complaint was also in breach of the duty of fairness because the investigator had made findings of fact based on credibility. Credibility findings, he submitted, can only be made by a Tribunal after a full oral hearing at which a complainant has an opportunity to cross examine witnesses. He relied on Ayangma v. Prince Edward Island (Human Rights Commission), 2004 PESCAD 23, at paras. 30 and 44.

[42]            Since I have concluded that the investigation lacked the thoroughness required by the duty of fairness, it is unnecessary to determine whether the investigator made findings of credibility that vitiated the fairness of the Commission's dismissal of the complaint.

D.        CONCLUSIONS

[43]            For these reasons, I would allow the appeal, set aside the decision of the Federal Court

and the Commission's dismissal of the complaint, and remit the matter to the Commission. I would award Mr. Tahmourpour costs in the lump sum of $2,000.00, inclusive of his disbursements in the appeal and in the Federal Court, and of G.S.T.

                                                                                                                                    "John M. Evans"                   

"I agree                                                                                                                                           J.A.                           

      Marshall Rothstein J.A."

"I agree

      J. Edgar Sexton J.A."

                                                  FEDERAL COURT OF APPEAL

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                   A-271-04

APPEAL FROM A JUDGMENT OR AN ORDER OF THE TRIAL DIVISION

DATED APRIL 21,2004,ON FILE NUMBER T-1568-03.

STYLE OF CAUSE:                                                    ALI TAHMOURPOUR v. THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:                                              TORONTO, ONTARIO

DATE OF HEARING:                                               FEBRUARY 16,2005

REASONS FOR JUDGMENT BY:                        EVANS J.A.

CONCURRED IN BY:                                              ROTHSTEIN J.A.

SEXTON J.A.

DATED:                                                                       APRIL 6, 2005

APPEARANCES BY:

MR.BARRY M.WEINTRAUB                                     FOR APPELLANT

MR.DEREK EDWARDS                                             FOR RESPONDENT

SOLICITORS OF RECORD:

HEENAN BLAIKIE LLP.

TORONTO, ONTARIO                                              FOR APPELLANT

JOHN H.SIMS,Q.C.                                                    FOR RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA