Administrative law – Human rights complaints – Discrimination – Disability – Evidence – Judicial review application – Breach of procedural fairness – Hearings – Disclosure – Solicitor-client privilege
Baltruweit v. Canada (Attorney General),  F.C.J. No. 1615, Federal Court of Canada – Trial Division, November 19, 2002, Gibson J.
Baltruweit was employed by the Canadian Security Intelligence Service (“CSIS”) and, in 1991, he was diagnosed as suffering from a serious illness. He was provided with a period of leave following which efforts were made to reintegrate him into employment with CSIS. In April 1995, Baltruweit filed three complaints with the Canadian Human Rights Commission (the “Commission”) relating to the efforts at reintegration. All three complaints were dismissed by the Commission. In November 1998, Baltruweit brought a fourth complaint against CSIS before the Commission. The Commission assigned an investigator to investigate the complaint and notified CSIS of the complaint and provided CSIS with an opportunity to respond. The investigator recommended that a conciliator be appointed to bring about a settlement of the complaint. The conciliator’s efforts were unsuccessful and the Commission requested further submissions from the parties. After reviewing the submissions, the Commission advised Baltruweit on October 15, 2001 that it had decided to dismiss his complaint. Baltruweit then brought an application for judicial review of this decision.
One of the aspects of this application for judicial review was a request by Baltruweit that the Commission send a certified copy of all materials on its file relating to the complaint under review. The Commission responded to this request and provided a copy of its records with the exception of a legal opinion dated May 7, 2001 for which solicitor-client privilege was claimed. Baltruweit then filed a supplemental memorandum of fact and law seeking, in addition to a quashing of the decision, a determination of whether or not legal opinions must be disclosed.
In determining the standard of review applicable to a decision of the Commission when dealing with an investigation report, the court followed the decision in Kollar v. Canadian Imperial Bank of Commerce,  F.C.J. No. 1125 (T.D.). In that case, it was held that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the court to the decision of the Commission unless there is a breach of the principles of natural justice or other procedural unfairness or unless a decision is not supportable on the evidence before the Commission. The parties did not dispute this standard of review. However, Baltruweit argued that the failure to disclose the legal opinion that was before the Commission and provide an opportunity to respond to it amounted to a “procedural unfairness”.
The court reviewed the principle of solicitor-client privilege and noted this principle is of fundamental importance and that it extends to all communications between a client and a solicitor that relate to the seeking and obtaining of legal advice. The court noted that exceptions to this principle had been identified by the Supreme Court of Canada in R. v. Brown (2002), 210 D.L.R. (4th) 341 (S.C.C.) where “the innocence of the accused was at stake”. The court held that this decision was instructive on the facts of the Baltruweit matter and stated:
While what is at issue here is not full answer in defence to a criminal charge, it is not without parallel features: it is the opportunity for the applicant to make full answer in a context where his allegation of infringement of his fundamental human rights might be, and indeed on the facts before me was, irrevocably determined against him.
The court held that some infringement on the principle of solicitor-client privilege was preferable in these circumstances. The court held that the Commission should have disclosed the “substance of the evidence” of the legal opinion in order to provide Baltruweit with a satisfactory opportunity to reply.
In the result, the court held that the Commission breached its duty of procedural fairness to Baltruweit by failing to inform Baltruweit of the substance of the totality of the evidence on which the Commission might have relied in making its decision. Therefore, Baltruweit’s application for a judicial review was allowed and the decision of the Commission was set aside and the matter referred back to the Commission for redetermination. The court refused to direct the Commission to refer the complaint to the Canadian Human Rights Tribunal and noted that this was the prerogative of the Commission and that such an order was beyond the authority of the court.
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