A former RCMP cadet and Muslim (“Tahmourpour”) successfully appealed from the dismissal of his human rights complaint on the basis that the investigator had failed to investigate obviously crucial evidence and had thereby breached the duty of fairness. The matter was remitted back to the Human Rights Commission.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Investigations – Human rights complaints – Discrimination – Judicial review – Procedural requirements and fairness – Witnesses

Tahmourpour v. Canada (Solicitor General), [2005] F.C.J. No. 543, Federal Court of Appeal, April 6, 2005, Rothstein, Sexton and Evan JJ.A.

Tahmourpour, a Canadian citizen of Middle Eastern descent and a Muslim, complained to the Canadian Human Rights Commission that after being recruited to the RCMP cadet program he was discriminated against, and ultimately terminated, based on his religion or his national or ethnic origin contrary to ss. 7 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

The Commission investigator recommended that the complaint be dismissed as unfounded, despite having failed to attempt to contact other cadets who were present during the alleged incidents of discrimination but who were not the perpetrators. Tahmourpour applied for judicial review of the Commission’s decision. The judge held that the decision was not unreasonable and dismissed the application. The Judge also concluded that the statistical evidence provided by Tahmourpour did not support a complaint of systemic discrimination nor a complaint of personal discrimination.

The appellate court held that “a reviewing court owes no deference in determining the fairness of an administrative agency’s process” but that “the court will not second guess procedural choices made in the exercise of the agency’s discretion which comply with the duty of fairness”.

The first question on appeal was whether the investigation of the complaint was so incomplete as to deny Tahmourpour the right to a thorough investigation. An investigation may lack the legally required degree of thoroughness if the investigator “failed to investigate obviously crucial evidence”: Slattery v. Canada (Human Rights Commission).

The investigation was held to lack the thoroughness required to be procedurally fair because the investigator failed to interview crucial witnesses, or even to make efforts to contact them. In addition, the Court held that the statistical evidence of systemic discrimination ought to have been investigated by the Commission, but should not have been analyzed by the initial judicial review court in anything more than a limited fashion:

… it is not the function of either this court or the Federal Court to determine whether the figures produced by Mr. Tahmourpour are accurate or complete, or whether his analysis is sound. Hence, I have considered the statistics produced to the Commission by Mr. Tahmourpour only to show that they are on their face reliable, relevant to matters within the scope of the investigation, and sufficiently suggestive of the discriminatory practices alleged, as to require that, as a matter of fairness they should have been investigated by the Commission.

The appeal was allowed and the matter was remitted back to the Commission.

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