Intent is not a necessary precondition to a finding that an act is discriminatory. In the evaluation of a human rights complaint, the Commission must take into account the reality that overt discrimination is rare today and is generally subtle in nature. The appropriate standard of review of the Commission’s decision of whether or not to dismiss a complaint is reasonableness simpliciter. On the facts, the court held that the Commission’s decision was unreasonable and directed an investigation by a new investigator.

Administrative law – Human rights complaints – Boards and tribunals – Judicial review application – Standard of review – Reasonableness Simpliciter – Investigative bodies – Fairness

Chopra v. Canada (Attorney General), [2002] F.C.J. No. 1082, Federal Court of Canada – Trial Division, July 12, 2002, Beaudry J.

A scientist employed by Health Canada sought judicial review of the dismissal of his complaint by the Canadian Human Rights Commission. In his submissions to the Commission, he asserted several incidents where he was denied opportunities for promotion because of his race and where Health Canada pursued a policy that deprived persons from visible minority groups of promotional opportunities. The application for judicial review was allowed and the matter was sent back to the Commission for investigation by a new investigator.

The appropriate standard of review of the Commission’s decision of whether or not to dismiss a complaint is reasonableness simpliciter (Singh v. Canada (Attorney General), [2001] F.C.J. No. 367). In a review based on this standard, the decision must be examined to see if it can be supported by reasons that stand up to a somewhat probing examination.

The decision was unreasonable because the Commission’s analysis on systemic discrimination was not sufficiently thorough. On this basis, the procedural fairness was effectively denied.

The burden of proof rests initially on the complainant to make out a prima facie case of discrimination, after which the burden shifts to the respondent to provide that there was no basis for the complaint. It has long been established in Canadian law that an intent to discriminate is not a necessary element for a finding that a discriminatory act took place (Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536). In the present case, the investigator erred in deciding certain statements were not discriminatory because no such intent could be proven with respect to the statements and the investigator ought to have probed further into the impugned comments to determine what they meant to the complainant. On this basis, the Commission incorrectly applied the burden of proof.

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