The Court dismissed an application for judicial review of the Human Rights Commission’s decision to dismiss the Applicant’s allegations of discrimination, but allowed her application with respect to an allegation of retaliation

Administrative law – Human rights complaints – Discrimination – Disability – Employment law – Conditions of employment – Decisions of administrative tribunals – Human Rights Commission – Investigations – Evidence – Jurisdiction – Judicial review – Compliance with legislation – Limitations of actions – Procedural requirements and fairness – Standard of review – Correctness

Dubois v. Canada (Attorney General), [2005] F.C.J. No. 1363, Federal Court, August 16, 2005, Shore J.

The Applicant had alleged that various individuals had discriminated against her in the course of her employment. The Applicant alleged various acts of discrimination by two individuals occurring between August 1998 and August 2000. She also made allegations against an individual who became her manager and direct supervisor in 2002. The Applicant alleged that her supervisor tore her request for paid leave for the purpose of meeting an agent of the Commission. She further alleged that he was critical of her work and made veiled threats about terminating her employment. The Applicant filed her complaint with the Commission in December 2001.

After an investigation and exchange of Submissions, the Commission’s investigator wrote a report recommending that, pursuant to section 41(1)(e) of the Canadian Human Rights Act, the Commission not deal with allegations against one of the individuals as they were based on acts which occurred more than one year before receipt of the complaint. The investigator also concluded that the evidence did not support the Applicant’s remaining allegations and recommended that they be dismissed pursuant to section 44(3)(b) of the Act. The Commission ultimately decided, pursuant to section 41(1) of the Act, to deal with the allegations and the complaint except for those based on acts which had occurred more than one year before receipt of the complaint. The Commission dismissed the complaint pursuant to section 44(3)(b) of the Act because the evidence did not support the Complainant’s allegations that the Respondent had treated her in an adverse, differential manner and failed to provide her with a harassment free environment because of her sex, disability (perceived mental illness) and retaliation.

In this application for judicial review, the Court considered whether the Commission’s decision not to deal with the allegations which were out of time was patently unreasonable. The last discriminatory act alleged against the individual in question was dated June 27, 2000. The Applicant filed her complaint with the Commission on December 6, 2002, or 18 months after the incident. Additionally, the allegations had already been subject, in accordance with CIDA’s harassment policy, to an investigation on the merits and rejected. In the circumstances, the Commission’s decision was reasonable.

The Court next considered whether the Commission’s decision to dismiss the other discrimination allegations was patently unreasonable or in violation of natural justice. The Court reviewed all the pertinent documents and agreed that the Commission’s findings were reasonable and supported by the evidence. In doing so, the Court held that the investigator, having been confronted with a conflict between the Complainant’s allegations and the evidence of her colleagues, was entitled to accept the unanimous testimony of the Applicant’s colleagues over hers.

The Court also rejected the Applicant’s allegation that the Commission’s investigation had been procedurally unfair and that it lacked thoroughness, since the investigator failed to interview a particular witness. An investigation report will not normally be found to violate the thoroughness requirement simply because the Applicant thinks that additional witnesses should have been interviewed, and judicial review is only warranted in circumstances where the investigator failed to investigate obviously crucial evidence. After reviewing an Affidavit of the additional witness filed in support of the judicial review application, the Court held that since she did not affirm that she was a witness to any discriminatory act, the Affidavit did not meet the “obviously crucial evidence” test. The investigator’s report was thorough, having conducted interviews with sixteen persons and analyzed every one of the Applicant’s allegations.

Finally, the Court considered whether the Commission’s decision to dismiss the retaliation allegation was correct. The Applicant alleged that she requested one day of paid leave to meet an agent of the Commission on February 25, 2002 to deal with a work-related matter. She alleges that her supervisor tore up her request in order to prevent her from filing a complaint with the Commission and that he also made veiled comments in which he insinuated that filing a complaint against the Respondent could lead to difficulties and had, in fact, resulted in negative consequences for certain employees. The investigator refused to investigate this incident since the alleged act occurred before the filing of the complaint on December 6, 2002. In doing so, he relied on a strict interpretation of section 14.1, which seemed to provide that retaliation can only happen after a complaint has been officially filed. The Commission adopted the investigator’s conclusion on this point.

The Court considered the correct interpretation of section 14.1 of the Act, which was reviewable on the standard of correctness. The Court held that the investigator’s interpretation of section 14.1 was overly narrow. The Court held that section 14.1 of the Act had the purpose of prohibiting reprisal against an individual for exercising his or her rights under the Act. The significance of that protection, in the context of the exercise of rights under the Act, extends beyond the limited process of filing a complaint and includes behaviour that is consistent with claiming or asserting one’s rights as protected by the Act. This includes meeting with the Commission in furtherance of protecting or promoting rights as guaranteed by the Act.

In the result, the Applicant’s allegation of retaliation was remitted for investigation and decision by the Commission.

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