The Respondent was an employee of the Federal Government who suffered severe and long-standing respiratory problems. After a number of long term absences, the Respondent was dismissed on grounds that she was incapable of performing the duties of her office. The Respondent filed a complaint with the Canadian Human Rights Commission (“the Commission”). The Commission investigated the matter and dismissed the Respondent’s complaint on the grounds that discrimination had not been shown. The Respondent obtained a copy of the Commission’s investigation report and appealed the Commission’s decision to the Federal Court (Trial Division). The applications judge set aside the Commission’s decision to dismiss the claim on the grounds that the investigator had failed to include a great deal of information that he had obtained from the Ministry and consequently the Respondent did not have an opportunity to respond to the information. The Ministry appealed the Trial Division’s decision, arguing that the Commission’s decision-making process did not violate the Respondent’s right to procedural fairness. In allowing the appeal, the court noted that there was no basis for the notion that an investigator has a duty to disclose all information uncovered in the course of investigation to a complainant. Upon reviewing the investigation report, the court concluded that it was reasonable and adequate and that the Commission was entitled to some deference in their decision to dismiss a complaint.

Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Commission – Investigative bodies – Duty to disclose evidence – Fairness – Judicial review – Breach of procedural fairness – Standard of review – Reasonableness – Patent unreasonableness

Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439, Federal Court of Appeal, March 14, 2003, Stone, Rothstein and Pelletier JJ.A.

The Respondent began working for the Federal Public Service in 1971. In 1985, she was transferred to the Department of the Environment where she became a Personnel Manager. In 1987, the Respondent experienced symptoms of constant headache, fatigue and extreme sensitivity to odours. Exposure to odours precipitated severe symptoms in her throat and nose. Between 1987 and 1990, the Respondent took several long term sick leaves. In August of 1990, Health Canada conducted a “fitness for work” assessment of the Respondent. The assessment indicated that the Respondent was qualified as “class A” fit for work; however, it was advisable that she avoid air conditioning, tobacco, smoke, and chemical odour. The Respondent indicated that she could not return to her previous responsibilities and was transferred to a position as an Environmental Engineering Technician. In 1993, the Respondent requested that her position be made seasonal, which was granted. In 1995, the Respondent returned from her seasonal layoff to discover that she was experiencing greater sensitivity to environmental factors. In a letter dated June 21, 1996, the Respondent’s physician recommended that the Respondent be transferred to a work space other than the one she was in as there was too much exposure to strong odours. The Ministry attempted to find alternative locations that would meet the Respondent’s needs; however, the Respondent felt that each was not acceptable. The Respondent took another sick leave and, on her return, was dismissed on the grounds that she was incapable of performing the duties of her office.

Prior to her dismissal, the Respondent filed a complaint with the Canadian Human Rights Commission (“Commission”). The Respondent alleged that the Appellant had been adversely differentiating against her, based on her disability and it was refusing to accommodate her disability by failing to provide her with a suitable work environment. Several months later, an investigator for the Commission drafted an investigation report that concluded on evidence that the allegation of discrimination was unfounded. The investigation report recommended dismissal of the complaint on the grounds that discrimination had not been shown. Following the dismissal of her complaint, the Respondent obtained a copy of the Commission’s file by means of an application under the Access of Information Act, R.S.C. 1985 c. A-1. Upon obtaining the file, the Respondent discovered that the Ministry had designated an individual that had been the subject of a harassment complaint by the Respondent as the Ministry’s contact person. The Respondent applied to the Federal Court for a review of the Commissions decision.

The learned application judge concluded that the Commission’s decision to dispose of the Respondent’s complaint lacked procedural fairness as the investigator failed to allow the Respondent to reply to the information provided to the investigator by the ministry’s contact person. The applications judge found that much of the information provided by the contact person was not in the investigation report and consequently the Respondent did not have an opportunity to respond to it.

The Ministry appealed, arguing that the trial judge erred in finding that the Commission had not been fair in its procedure. The Court of Appeal noted that the duty of fairness varies with the circumstances and its content is to be decided in the specific context of each case. There is nothing in the case law to support the proposition that every exchange between an investigator and an interested party must be disclosed to the other party. The right to know the case to be met and to respond to it arises in connection with material that will be put before the decision maker, not with respect to material which passes through an investigator’s hands in the course of the investigation. The Court further held that there were issues of credibility in the case and that the decision of the Commission to dismiss the complaint was entitled to some deference. The standard of review was either reasonableness or patent unreasonableness. The court held that even on the lower standard of reasonableness, the decision of the investigator was acceptable. The Commission could reasonably have been satisfied that, having regard to all of the circumstances of the complaint, an inquiry into the complaint was not warranted. In the result, the appeal was allowed and the decision of the Trial Division was set aside.

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