HUMAN RIGHTS |
Lee v. Bank of Nova Scotia
T-2198-00
2002 FCT 753, Layden-Stevenson J.
9/7/02
17 pp.
Judicial review of Canadian Human Rights Commission's dismissal of applicant's complaint alleging discrimination on basis of age, race by former employer, Bank of Nova Scotia-- Complaint dismissed under Canadian Human Rights Act, s. 44(3)(b)(i), requiring Commission to dismiss complaint if satisfied, having regard to all circumstances of complaint, inquiry into complaint not warranted--In role under s. 44 Commission performing discretionary screening function--Entitled to great deference--Standard of review reasonableness--As Commission delegating investigation, sensible that investigator would parse, summarize submissions, submit to Commission record limited to report, responses thereto--Consistent with Commission's practice of having investigator submit only original complaint, investigator's report, parties' responses--Although parties made additional submissions, i.e. bank's response to applicant's complaint, and applicant's subsequent rebuttal, received with apparent intention that they be considered only by investigator in process of compiling report to Commission --Common practice of CHRC at investigation stage to prepare summaries of respondent's position, provide summaries to complainant for rebuttal--But respondent apparently receiving complete, unedited versions of applicant's submissions for comment--Applicant alleging constituting procedural unfairness--Both parties availing themselves of opportunity to respond to report upon investigator's invitation--Investigator set timelines, 10-page limit for submissions--Applicant submitted comments on 8 [frac12] pages 12 days before deadline--Investigator sent applicant's submission to respondent so that it could respond to any new points raised--Respondent submitted 24-page document 17 days after deadline, including point-by-point response to applicant's submission and 40 pages of appendices, including entire original submission--Applicant submitting imbalance constituting procedural unfairness--In order for fair basis to exist for Commission to evaluate whether tribunal should be appointed pursuant to s. 44(3)(a) investigation conducted prior to this decision must be neutral and thorough: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.)--Investigation must not be biased or unfair: Miller v. Canada (Canadian Human Rights Commission) (1996), 112 F.T.R. 195 (F.C.T.D.)--If record before Commission flawed, decision itself flawed--Fairness requiring parties be afforded "opportunity" to respond to investigator's report--Applicant's opportunity to respond herein compromised--Commission erred in accepting bank's final submission--Bank's submission improper in that ignored purpose, filed outside page, time limits--Fairness requiring any such limits be applied in even-handed manner--Improper submission should be rejected or ignored by Commission or be subject to reply by applicant--Commission had before it improper or flawed Record--Decision therefore based on flawed, improper evidentiary basis--Complainant had no opportunity to object as unaware of existence--Breach of procedural fairness-- Application allowed--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).