The Federal Court allowed an application for judicial review of a decision of the Canadian Human Rights Commission (the “Commission”), finding that the Commission’s investigation of the applicant’s complaint was less than thorough. There was no evidence that the Commission took into account the issue of racial profiling in its investigation of the Applicant’s complaint that, as a bank customer, he was discriminated against by the Respondent bank because of race and colour.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Race – Investigations – Judicial review – Evidence – Procedural requirements and fairness – Compliance with legislation

Powell v. TD Canada Trust, [2007] F.C.J. No. 1579, Federal Court, November 23, 2007, Gibson, J.

The Applicant is a young 6 ft. 7 inches tall African American male residing in Canada. He sought to make a deposit into his account at two different branches of the Respondent bank. On both occasions, he was of the view that he was subjected to excessive questioning and treatment which he believed to be linked to his age, gender, colour and related grounds. The Respondent bank said that any questioning was pursuant to its Know Your Customer policy which requires service representatives to verify a customer’s identity.

The Applicant filed a complaint with the Canadian Human Rights Commission (the “Commission”) alleging discrimination on the grounds of race and colour (later amended to also include gender, age and country of origin). The Commission conducted an investigation and subsequently prepared an Investigator’s Report (the “Report”), which recommended dismissal of the complaint. The Report did not mention the Applicant’s allegation of racial profiling and found no evidence to support the allegation of discrimination. The Report further recommended dismissal of the complaint. The Commission, in reliance on this report, dismissed the complaint. The Applicant sought judicial review of the decision.

The Court noted that in fulfilling its statutory responsibility to investigate complaints of discrimination, investigations carried out by the Commission must be both neutral and thorough. With respect to the requirement of thoroughness, deference must be given and judicial interference is warranted only where unreasonable omissions are made, for example, where an investigator fails to investigate obviously crucial evidence.

In this case, there was no evidence that the Commission took into account, much less seriously examined, the issue of racial profiling which has been defined as “…the targeting of individual members of a particular racial group, on the basis of supposed criminal propensity of the entire group”. Neither was the issue of racial profiling acknowledged in the Report although it is superficially mentioned. On this basis, the Commission’s investigation of the complaint and thus the Report was less than thorough and amounted to a breach of the duty of fairness owed to the Applicant.  The lack of thoroughness tainted the recommendations to the Commission and, in turn, tainted the Commission’s decision under review.

In the result, the decision was set aside and the complaint was sent back to the Commission for reinvestigation.

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