Digests

Grover v. Canada (National Research Council)

T-586-98

2001 FCT 687, Heneghan J.

21/6/01

30 pp.

Judicial review of Human Rights Commission's dismissal of complaints alleging discrimination in course of applicant's employment with National Research Council (NRC) --Applicant employed as research scientist with NRC since 1981--Alleging discrimination in course of employment on grounds of race, national or ethnic origin, colour, in two complaints filed in 1991, 1992--After receipt of two complaints, investigation conducted--Investigation consisting of review of materials submitted by applicant, responses submitted by NRC; sharing responses with applicant; meetings between applicant, investigating officers; interviews conducted by investigating officers with applicant's co-workers, members of external selection board--Director General of division in which applicant worked when 1991 complaint filed not interviewed--In 1997 summary of material collected by Commission sent to applicant--Shortly thereafter, investigation reports sent to parties with recommendation Commission dismiss complaints--Applicant submitting 731-page reply; writing to Commission complaining of bias, erroneous findings of fact in investigation reports--Commission deciding to conduct further investigation--In February 1998 Commission dismissing complaints, finding evidence not supporting alleged acts of discrimination--Canadian Human Rights Act, s. 44(3)(b)(i) providing for conduct of investigation, review by Commission of investigator's report upon completion, decision by Commission to either dismiss complaint or refer it to tribunal--Commission's decision not to appoint tribunal to inquire into complaint administrative decision--Subject to judicial review where Commission committed error of jurisdictional, procedural nature or where decision otherwise founded upon error of law: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) (SEPQA), [1989] 2 S.C.R. 879--In light of authorities, apparent Commission's decision to dismiss complaint administrative, albeit discretionary, decision made within limits of Act--Not intended that Commission afford broadest range of natural justice to complainants--Characterization of applicant's arguments as breaches of procedural fairness incorrect--Applicant complaining about lack of recourse to full range of natural justice, including oral hearing, prior to decision by Commission on investigation reports, findings of credibility by Commission in consideration of those reports--Arguments concerning alleged breaches of procedural fairness failed--Applicant not showing deprived of opportunity to respond to evidence presented by NRC--Not entitled to oral hearing before Commission while that body considering investigation reports--Commission not required to embark upon assessment of credibility when reviewing investigation reports--SEPQA distinguishing between unavailability of compliance with "formal rules of natural justice" and compliance with rules of procedural fairness, which include conduct of neutral, thorough investigation--Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) holding circumstances where further submissions cannot compensate for investigator's omissions including: (1) where omission of such fundamental nature that merely drawing decision-maker's attention to omission cannot compensate for it; or (2) where fundamental evidence inaccessible to decision-maker by virtue of protected nature of information or where decision-maker explicitly disregarding it--Investigations must satisfy two conditions: neutrality and thoroughness i.e. must be conducted in manner which cannot be characterized as biased, unfair, and must be thorough in sense mindful of various interests of parties involved: Miller v. Canada (Canadian Human Rights Commission) (1996), 112 F.T.R. 195 (F.C.T.D.)--Director General critical witness if investigation to be thorough in sense of fairly examining both applicant's allegations, NRC's responses--Omission of interview with Director General of such fundamental nature that absence could not be relieved simply by drawing it to attention of decision-maker (Commission)--Such notification to decision-maker would merely raise inquiry as to why Director General not interviewed--Investigation reports make many references to Director General--Failure to interview him demonstrates serious deficiency in investigative process, investigation reports on which Commission relied--If reports defective, Commission not in possession of sufficient relevant information upon which could properly exercise discretion--Failure to interview person vitally connected to alleged discriminatory action may lead to inference of pre-judgment by investigator--Commission breached duty of procedural fairness by not providing thorough and neutral investigation--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 44(3)(b)(i) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64).