Docket: T-691-15
Citation:
2017 FC 686
Ottawa, Ontario, July 17, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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YVONNE
SOULLIÈRE
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Applicant
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And
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HEALTH CANADA
AND
CANADIAN BLOOD
SERVICES
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision (“Decision”) of the Canadian Human
Rights Commission (“Commission”) which dismissed
Ms. Soullière’s complaint against Health Canada (“HC”)
pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, RSC
1985, c H-6 [Act]. This judicial review was heard concurrently with a companion
case, Court File No. T-690-15, which challenged a related decision of the
Commission that the Applicant had simultaneously filed against Canadian Blood
Services (“CBS”).
[2]
The two decisions under review emanated from two
complaints brought by Ms. Yvonne Soullière on behalf of her daughter, Yanhong
Dewan, on December 5, 2012, alleging that Ms. Dewan was rejected as a blood
donor and deemed indefinitely ineligible on the basis of her inability to
understand and complete the blood donor screening questionnaire due to her
intellectual disability. The complaints were thus filed on the basis that both
organizations (CBS and HC) discriminated against Ms. Dewan, by failing to
accommodate her, such that she could not complete the screening process required
to be able to donate blood.
[3]
The Commission refused both the HC and CBS
complaints on March 26, 2015, in separate decisions. I have already found that
there was no reviewable error in the companion case T-690-15 (“CBS Decision”), an outcome which accepts that CBS did
not discriminate on the alleged grounds against Ms. Dewan. Absent a finding of discrimination
by CBS, in my view this concurrent judicial review application against HC
becomes moot, since, therefore, there can be no basis upon which to find any
discrimination by HC through its regulatory oversight.
[4]
In any event, I would find the Commission’s
decision to dismiss the HC complaint to be reasonable.
[5]
Before providing my reasons for these
conclusions, a review of the background to the complaint against HC follows.
Please note that a full background of the underlying complaints may be found in
the CBS Decision. The background that follows is focused on facts particularly relevant
to the HC complaint.
II.
Background
[6]
CBS collects blood from volunteer donors,
processes them into blood products, and distributes these products to hospitals
across the country. Canada considers blood products to be biological products.
CBS is therefore considered a biological drug manufacturer subject to the Food
and Drugs Act, RSC, 1985 c F-27 [FDA]. As part of CBS’ blood donation
screening process, potential donors are asked to complete the “Donor Health Assessment Questionnaire” (“DHAQ”). The DHAQ asks a series of questions to assess
the potential donor’s health, potential for giving blood, and potential risk to
the blood system. HC, as the regulator for biological products in Canada, has
regulatory oversight over CBS.
[7]
The Commission made its initial section 41
screening decision in December 2013, rejecting HC’s arguments that (i) CBS,
rather than HC, was the proper respondent, as the author of the questionnaire
(DHAQ), manual (Donor Selection Criteria Manual “DSCM”),
and the impugned actions at issue; and (ii) blood donation does not constitute
a “service” within the meaning of the Act. In
proceeding with the complaint, the Commission noted first that HC had approved
the documents in question, and second, it was not plain and obvious that blood
donation screening is not a service.
[8]
The subsequent March 2015 Commission decisions,
made following section 44 investigations, did not go as favourably for Ms.
Soullière and her daughter Ms. Dewan. In these two decisions, the Commission
dismissed both complaints pursuant to section 44(3)(b)(i) of the Act. The
Commission dismissed the complaint against HC on the basis that HC “is not the party responsible for the alleged discriminatory
act”.
[9]
Given that no other reasons were provided for
dismissal, the Commission’s reasons are deemed to be those in the Investigation
Report (“Report”): Sketchley v Canada (Attorney
General), 2005 FCA 404 at para 119 [Sketchley]. The Report, written
by an investigator (“Investigator”) concluded
that (a) the service at issue was the screening of potential blood donors; (b)
CBS was the party that denied the service to Ms. Dewan; and, most relevant to
this application, (c) HC does not appear to be a party to the denial of
service.
[10]
These conclusions were based on the following
findings (Report at paras 58-59):
•
HC has neither a direct role in the donor
screening process generally, nor a role in Ms. Dewan’s specific situation;
•
CBS develops its policies and procedures
independently and at arm’s length from HC;
•
HC plays no role in drafting or administering
the DHAQ form, nor does it require that blood operators have a DHAQ; and
•
HC had stated that it would not ask CBS to
modify its donor screening criteria for any reason except in the event of an emerging
health issue (such as occurred, for instance, with SARS and the West Nile
Virus), and Ms. Dewan’s case did not fit into the ambit of an emerging health
issue.
[11]
With respect to the argument that any order by a
Tribunal would be meaningless without a concurrent order against HC, the
Investigator found that it could not assume that CBS would be a roadblock to
any remedial measures.
III.
Issues
[12]
Ms. Soullière asserts that the Commission made
errors of procedural unfairness because it did not have the entirety of the Ms.
Soullière’s Responses to the Report before it. Ms. Soullière also asserts the
Commission made unreasonable findings (i) about HC’s non-involvement with
screening blood donors and in drafting/administering the DHAQ; (ii) that HC
could not be a party to the denial of service since it had no direct dealings
with Ms. Soullière or Ms. Dewan; and (iii) in failing to conclude that an
effective remedy requires an order against HC.
[13]
It should be noted that whereas both parties
addressed the issue of whether blood donation constituted a “service” within the Act in the companion case T-690-15
proceedings, the service issue did not form part of this proceeding. In any
case, as in the CBS Decision, I find that this HC application should be
dismissed on other grounds, as outlined below, and therefore find it
unnecessary to review the service issue.
IV.
Analysis
A.
Mootness
[14]
As stated above, it is my view that this
application is rendered moot by the outcome of the companion application in
Court File No. T-690-15, because without any finding of discrimination against CBS,
there can be no finding of discriminatory action by the Respondent HC who, in
this case, is alleged to have indirectly contributed to the discrimination by
virtue of its regulatory control over CBS.
[15]
In the companion case, I have accepted the
finding that CBS did not discriminate. Therefore, HC cannot have discriminated
by extension. Stated another way, HC cannot be said to have discriminated by virtue
of having some control over what CBS did, if what CBS did was not
discriminatory. Therefore, as this application can have no effect, and thereby has
been deprived of practical significance, I find it to be moot (Borowski v
Canada (Attorney General), [1989] 1 S.C.R. 342 at 353).
[16]
At the hearing, I asked both parties about the
effect a dismissal of the T-690-15 judicial review would have on this
application. Counsel for HC stated that no complaint could proceed against HC
if the complaint against CBS was dismissed. When the question was put to Ms.
Soullière’s lead counsel, she declined to provide a response. Therefore, while
I believe the answer is clear that this judicial review is now moot, in the
event that I am wrong, I will address all substantive points raised before the
Court in this judicial review, namely under the rubrics of procedural fairness
and reasonableness.
[17]
Questions of procedural fairness are to be
reviewed on the standard of correctness (Mission Institution v Khela,
2014 SCC 24 at para 79; Joshi v Canadian Imperial Bank of Commerce, 2015
FCA 92 at para 6), while the discretion of the Commission to dismiss complaints
is to be reviewed on a standard of reasonableness (Halifax (Regional
Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 17;
Keith v Canada (Correctional Services), 2012 FCA 117 at paras 43-48 [Keith]).
B.
No Reviewable Error
(1)
Was the Commission’s Decision procedurally fair?
[18]
In my view, the Commission made no procedural
error in coming to its decision. Ms. Soullière raised similar issues in the
companion proceeding. In the CBS Decision, I agreed with CBS’ position that the
Commission appropriately severed certain submissions relating specifically to
the complaint against the other respondent (HC in the CBS complaint, and vice
versa here), because the two complaints proceeded separately before the
Commission, as its process requires. I would note that Ms. Soullière has not
suggested that this requirement is itself unfair.
[19]
As a result, the Commission properly considered
the complaints separately. Indeed, contrary to Ms. Soullière’s contention, if
anything, it would have been procedurally unfair to the respective respondents
had the Commission conflated the two files and considered matters related to
the companion investigation in making each decision. Materials specific to the
CBS complaint were properly excised from the materials put before the
Commission when reviewing the HC complaint (and vice versa).
[20]
That is the crux of the Applicant’s contention
of procedural unfairness, which I find to be without merit. Again, I would have
found the opposite – it would have been unfair to the Respondent not to have
excised the submissions related to the other complaint where possible.
[21]
Further, after a review of the record, I find
the investigation to have been thorough and neutral, and to have satisfied the
procedural fairness requirements of the process: Slattery v Canada (Human
Rights Commission), [1994] 2 FC 574 (Fed TD) at paras 49-50 and 55-57,
aff’d (1996), 205 NR 383 (FCA); Hughes v Canada (Attorney General), 2010
FC 837 at paras 32-33 [Hughes].
[22]
In this case, that process included the
production of detailed responses and replies to the Report and to one another’s
submissions, meaning that the parties were each given ample opportunity to
comment on the complaint they were facing, consistent with procedural fairness
safeguards (Canada (Attorney General) v Davis, 2009 FC 1104 at para 21,
aff’d 2010 FCA 134). The sheer volume of the evidence submitted speaks to this
point.
[23]
Ultimately, I do not agree that there was any
interference with Ms. Soullière’s right to be heard, as alleged.
(2)
Was the Commission’s Decision Reasonable?
[24]
I find none of Ms. Soullière’s three issues
raised under the rubric of ‘unreasonableness’ to
be persuasive in light of the four factual conclusions arrived at by the
Commission. For ease of reference, these are that HC had (a) no direct role in
screening donors, including Ms. Dewan; (b) an arms-length oversight of CBS’
policies and procedures; (c) no role drafting or administering the DHAQ; and
(d) only proactively required modified screening for emerging health issues.
(a)
HC’s involvement in the alleged discrimination
[25]
The evidence simply does not support Ms.
Soullière’s argument that HC has direct input and control over the design and
implementation of the blood donor screening process and policies. Rather, the
evidence showed that when HC approved the impugned CBS policies, it did so
solely on the basis of the safety of Canada’s blood system, consistent with its
legislative mandate. Its “control” of CBS was
and is limited to that particular oversight function.
[26]
Specifically, Ms. Soullière correctly points out
that HC broadly approves and comments on CBS’ procedures, such as its policy
manuals (e.g. the DSCM), questionnaires (e.g. the DHAQ), and any exemptions
(e.g. exemptions to the policy against 3rd parties in the screening
process for foreign language and American Sign Language interpretation: see CBS
Decision for further details on those exceptions). HC can also require changes
in response to emerging health issues (e.g. West Nile Virus, SARS).
[27]
However, the evidence also shows that HC does
not get involved in individual cases – and indeed did not get involved in Ms.
Dewan’s case. Rather, the Report clearly sets out the importance of HC’s
oversight of the Canadian blood system, a direct result of the Krever inquiry. In
this regard, HC does not control the individual donor screening process beyond
general policy approval. The Commission’s conclusions regarding HC’s
involvement in the case of Ms. Dewan are therefore reasonable.
[28]
Nor do I accept Ms. Soullière’s contention that
since CBS policies and procedures are essentially mandatory once approved, and
may affect HC approval for future license eligibility, HC is necessarily a
party to the discrimination, even without any direct dealings with Ms. Dewan. For
this proposition, Ms. Soullière relies on a section of the decision in Canadian
Blood Services v Freeman, 2010 ONSC 4885 at paras 325-336 [Freeman].
[29]
In my view, however, Freeman arises from
a different context, namely from a section 15 Canadian Charter of Rights and
Freedoms argument in response to a claim of negligent misrepresentation,
not a complaint under human rights legislation. Further, although I am mindful
of this different context, Freeman itself establishes that there is
limited government control of CBS (at paras 351 and 356):
From a control perspective, CBS is not
subject to government control in terms of policy development or day-to-day
operations.
…
Where the federal government plays a role is
under the FDA and the FDR [Food and Drug Regulations] in
the regulation of blood operators, such as CBS. It is primarily as a result of
the intensive regulatory framework in which CBS must operate that Mr. Freeman
argues CBS is controlled by government to such an extent that it must be
considered a government entity. In no other respect, aside from regulation
under the FDA and FDR, does the federal government exert any
control or influence over decision-making functions at CBS.
[30]
While Ms. Soullière is correct in asserting that
the Act must be interpreted in a broad, liberal, and purposive manner (Canadian
National Railway v Canada (Canadian Human Rights Commission), [1987] 1 SCR
1114 at 1134-1138), in my view this does not require that all regulatory
oversight bodies must be included as respondents to human rights
complaints against individuals or entities under their purview. I also do not
agree with Ms. Soullière’s interpretation of the case law concerning regulators
as requiring such an outcome.
[31]
Specifically, Ms. Soullière relies on Canada
(Attorney General) v Jodhan, 2012 FCA 161 at para 185 [Jodhan],
observing that the Federal Court of Appeal found the Treasury Board responsible
for monitoring compliance with the standards it established and imposed on
federal departments and agencies. Ms. Soullière also relies on Panacci v
Canada (Attorney General), 2010 FC 114 at para 51 [Panacci],
where after the Commission declined to deal with the application against the
Treasury Board (finding it was not the responsible party), this Court
subsequently found this to be unreasonable because it failed to consider the
policy monitoring obligations of Treasury Board (at para 70).
[32]
However, the Jodhan and Panacci cases
are both distinguishable, in that the ‘regulator’
– in both cases Treasury Board – was enforcing its own policies, and as such,
was the source of the impugned conduct, unlike in this case. Here, CBS created
the policy – not HC. It was CBS that was responsible for creating and
administering the blood screening system, and for creating and administering the
policies under which blood donations are accepted or rejected. HC simply
oversaw the system as regulator for blood safety.
[33]
Therefore, I find no merit to the argument that
the law requires that HC, as regulator, to be a party in this instance, nor do
I find anything unreasonable about the Commission’s decision in this respect.
[34]
Finally, it must be recalled that the Commission
itself, which performs a screening function, has broad discretion to dismiss
complaints under the Act; a discretion to which deference is owed (Bell
Canada v Communications, Energy and Paperworkers Union of Canada, [1999],
167 D.L.R. (4th) 432, 1 FC 113 (FCA) at para 38, leave to appeal to
SCC denied, [1999] SCCA No 1; Keith, above at paras 48-49).
[35]
I see no reason to interfere with the
Commission’s discretionary decision in this case. Here, even given the
Commission’s “modest” screening role (Dupuis
v Canada (Attorney General), 2010 FC 511 at para 12), I find its Decision
to be intelligible, justifiable and transparent. It falls well within the range
of possible outcomes.
(b)
Whether an effective remedy requires an order
against HC
[36]
Ms. Soullière also submits that the Commission’s
Decision is unreasonable because an effective remedy requires an order against
HC, when the Commission instead found that it could not assume HC would be a
roadblock to remedies.
[37]
In support of this argument, Ms. Soullière asserts
that only HC has both the necessary expertise and authority to determine
whether a change to the DHAQ or ‘3rd party rule’
would pose a risk to the safety of the blood supply. Any change would have to
go through HC, as the Commission found, because CBS cannot make such changes
unilaterally. Therefore, Ms. Soullière argues, if HC is not a party to the
judicial review, it could refuse to approve the change, frustrating the human
rights process and/or potentially jeopardizing CBS’ establishment license. An order
against CBS would, according to the Applicant, be meaningless without a
concurrent order against HC. In this regard, Ms. Soullière relies on Woodwork
v Canadian Blood Services, 2012 HRTO 2219 at para 52 [Woodwork], and
Canadian Blood Services v The Manitoba Human Rights Commission, 2011
MBQB 312 at para 56 [Zoldy].
[38]
I find nothing unreasonable with the
Commission’s conclusion that there is no basis to assume HC would not comply
with a potential order of the Commission. The mere possibility that HC could
frustrate a potential remedy does not render unreasonable the Commission’s
decision that HC is not the party responsible for the alleged discrimination.
The Report extensively canvassed Ms. Soullière’s arguments and found that the
concerns regarding implementing any order are hypothetical at best. The
Commission simply decided that it could not assume that HC “would” be a roadblock.
[39]
Furthermore, as explained above, this is now a
moot point, given that the underlying complaint against CBS has been dismissed.
[40]
As for Zoldy and Woodwork, the two
cases relied upon by Ms. Soullière, both found provincial Tribunals lacked
jurisdiction for complaints against CBS, which fell exclusively under federal
jurisdiction. Zoldy and Woodwork were both decided on the basis
of federal paramountcy in the area of human rights legislation relating to the
blood screening process, whereby the provincial human rights codes under which
they were brought were not the appropriate legislation. In other words, both
cases are clearly not relevant to the issues at hand.
[41]
Finally, HC was not a party to the litigation in
either Zoldy or Woodwork. The fact that HC (a federal department)
would not be bound by any remedial orders from a provincial Tribunal was simply
used in those cases as an example to illustrate the jurisdictional issue (Zoldy
at para 56; Woodwork at para 52, citing Zoldy).
[42]
In short, Ms. Soullière has not demonstrated
that it is unreasonable for the Commission to determine that HC was not a
proper respondent in this case simply because there is a possibility that HC
could frustrate some potential remedial action in the future. This would appear
to be the case for many regulators, and I would be hesitant to determine that the
mere potential for non-compliance, particularly absent compelling evidence of
same, compels the Commission to refer complaints against such regulators to the
Tribunal. This is especially so where there is no direct involvement in the
impugned conduct by the regulator.
V.
Conclusion
[43]
This Court has dismissed the judicial review in
the companion matter T-690-15 on the basis of that decision of the Commission
being reasonable and procedurally fair. That alone is determinative of this
application, because Ms. Soullière’s complaint against HC depends on its
complaint against CBS, because it claims that HC was party to the discrimination
by virtue of its regulatory control over the CBS policies under which CBS
decided to ‘indefinitely defer’ a blood donation
from Ms. Dewan. Since no discrimination was found in the CBS Decision, there
can be no finding that HC also discriminated by extension. This matter has been
rendered moot.
[44]
For the sake of completeness, my alternative
conclusion (in the event I am wrong on my first conclusion) is that the
Commission also made no reviewable error in its Decision. First, there is no
evidence of procedural unfairness. Second, the factual findings regarding the
limited nature of HC’s ‘control’ are reasonable.
Finally, there was nothing unreasonable about the Decision overall and in
particular dismissing the complaint despite acknowledging that HC could be
a roadblock to a remedial order against CBS.
[45]
This application for judicial review is
accordingly dismissed.
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