An investigation conducted by the Canadian Human Rights Commission did not meet the standard of thoroughness and was remitted back to the Commission for reconsideration

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights complaints – Discrimination – Disability – Employment law – Appointment – Judicial review – Investigations – Procedural requirements and fairness – Bias

Hughes v. Canada (Attorney General), [2010] F.C.J. No. 1036, 2010 FC 837, Federal Court, August 23, 2010, Mactavish J.

The petitioner, Chris Hughes, alleges that the respondent Human Resources and Skills Development Canada (“HRSDC”) refused to hire him from a pool of candidates or keep him employed in a short term position because of his disability. The petitioner filed a complaint with the Canadian Human Rights Commission, which was investigated and subsequently dismissed. The petitioner applied for judicial review of this decision on the basis that the Commission failed to sufficiently investigate his complaint.

The court emphasized that in fulfilling its statutory responsibility to investigate complaints of discrimination, investigations carried out by the Commission must be both neutral and thorough. Insofar as the requirement of thoroughness is concerned, the court noted that deference must be given to administrative decision-makers to assess the probative value of evidence and to decide whether further investigation is warranted. The requirement for thoroughness must also be considered in light of the Commission’s administrative and financial realities.

In this case, the crucial issue under investigation was whether personnel at HRSDC were aware that the petitioner suffered from a mental disability. If those involved in the hiring process were unaware of the disability, then it could not have been a factor in their hiring decisions. In her report, the investigator noted inconsistencies in the petitioner’s evidence as to when he had advised HRSDC representatives of his disability. The investigator preferred the evidence of the representatives in question, who had vehemently denied that they knew anything about the petitioner having a disability. In spite of this, there was crucial evidence indicating that those involved in the hiring process were made aware of the fact that the petitioner had previously suffered from a disability. For example, a reference check indicated that the petitioner had not worked for several years due to medical issues, and an employment form filled out by the petitioner revealed that he had been sick and that his illness fell under a category in the Canadian Human Rights Act. The court held that these documents cast serious doubt on the credibility of those involved in the hiring process, and that the investigator had failed to acknowledge the discrepancy or put the documents to the witnesses.

The court also noted other problems with the investigation, notably that the investigator never spoke to the petitioner’s manager, who had indicated that she was prepared to recommend him for the positions at HRSDC and give him a positive reference. The investigator had also made problematic comments in her report about the petitioner, which were not supported by the documentary record.

Accordingly, the court held that the investigation did not meet the standard of thoroughness and remitted the matter to the Commission for reinvestigation.

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