A decision of the Canadian Human Rights Commission (the “Commission”) to institute an inquiry into a complaint after an Investigator appointed by the Commission recommended dismissal of the complaint did not attract the duty of procedural fairness to provide written reasons. In certain circumstances, the duty of procedural fairness requires the provision of a written explanation of a decision where the decision has important significance for the individual and where there is a statutory right of appeal. This was not such a case.

25. October 2005 0

Administrative law – Human rights complaints – Discrimination – Investigations – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Failure to provide reasons – Procedural requirements and fairness – Natural justice – Standard of review – Patent unreasonableness

Canadian Imperial Bank of Commerce v. Durrer, [2005] F.C.J. No. 1321, Federal Court, August 8, 2005, Snider J.

Mr. Durrer (the “Respondent”), an employee of the Canadian Imperial Bank of Commerce (the “Applicant”), filed a complaint with the Canadian Human Rights Commission (the “Commission”) alleging he had been discriminated against in his employment on the basis of age. The Commission appointed an investigator to investigate the complaint. The investigator recommended that the Commission dismiss the complaint. Both the Applicant and Respondent filed responses to the report following which the Commission notified the parties that “it is satisfied that further inquiry is warranted into whether the respondent discriminated against the complainant by terminating his employment on the ground of age”.

The Applicant sought judicial review of the decision, and argued that the Commission’s failure to provide written reasons, especially where the recommendation in the Investigator’s report was not followed and even though reasons were requested by the Applicant, amounted to a breach of the rules of natural justice. The Applicant further argued that the Commission erred in law by not determining that the complaint should be dismissed, particularly in light of the Investigator’s recommendation.

The decision of the Commission attracted the highest standard of review – that of patent unreasonableness. With this standard of review, as stated in The Law Society of Nova Scotia v. Ryan, [2003] 1 S.C.R. 247 (S.C.C.), the Court should only intervene where the decision of the Commission is so patently unreasonable that “no amount of curial deference can justify letting it stand”. In the present case, there was a legitimate residual disagreement as to material and relevant facts that could be resolved with further investigation, and it was not unreasonable to refer the dispute to a further process. Thus the decision to refer the matter to an inquiry was not entirely unsupported by the evidence and the decision was not patently unreasonable.

The failure to provide reasons did not amount to a breach of the rules of natural justice. In Baker v. Canada, [1999] 2 S.C.R. 817 (S.C.C.), the Supreme Court noted that the context of the duty of fairness was flexible and variable and must be decided based on the circumstances of the particular case. Reasons would be called for where the decision had important significance for the individual and where there was a statutory right of appeal. In this case, the Commission made a decision to proceed with the complaint. Although better reasons would have assisted the parties and in particular the employer in understanding what evidence caused the Commission to reject the Investigator’s recommendation, this was not sufficient to convince the Court to conclude that more complete reasons were required. Failure to provide reasons beyond what was conveyed to the parties did not amount to a breach of procedural fairness.

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