Mr. Tsui, an employee of the Respondent, Canada Post, was unsuccessful in bringing an application for judicial review in respect of the Canadian Human Rights Commission’s decision to dismiss his complaint after an initial investigation

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

Tsui v. Canada Post Corp., [2010] F.C.J. No. 1066, 2010 FC 860, Federal Court, August 30, 2010, O’Keefe J.

The Applicant, Mr. Tsui, is an employee of the Respondent, Canada Post, and has been since 1988. On March 20, 2006, Mr. Tsui filed a complaint with the Canadian Human Rights Commission alleging discrimination and harassment on the basis of race, national or ethnic origin and colour, in respect of several alleged acts of Canada Post that occurred between 2004 and 2006.

The Commission initially declined to deal with the complaint and directed Mr. Tsui to exhaust the other procedures available to him within the context of his employment with Canada Post. Mr. Tsui pursued those options and was not satisfied with the outcome. The Commission collected information about the internal processes conducted and, in late 2007, agreed to deal with the complaint and appointed an investigator. The investigator requested information from Canada Post and reviewed some of Canada Post’s documents. The investigator also interviewed 11 employees of Canada Post, including the supervisors named in the complaint. Mr. Tsui was not interviewed during this investigative process.

In August of 2008, the Commission disclosed its investigation report, which recommended that the Commission dismiss the complaint because the evidence gathered did not support Mr. Tsui’s allegations. The parties were given the opportunity to make submissions about the report before the Commission decided to accept or reject the recommendations in the investigative report. In November 2008, the Commission decided, based on the investigative report and the submissions received, to dismiss the complaint. Mr. Tsui applied to the Federal Court for judicial review of that decision. He alleged that the Commission breached its duty of fairness because it failed to interview him personally during the investigation, to allow him an opportunity to cross-examine Canada Post’s witnesses, and to allow him to present his case in full.

The Court noted that the standard of review was not in dispute; matters of procedural fairness are reviewed against the standard of correctness.

The Court noted that the Commission has been given a significant degree of deference in choosing its own processes and procedures, especially in filling its administrative and screening functions under the Act. The Court relied on previous authority in holding that, when the report of an investigator is highly influential to the Commission, the Commission’s decision-making process cannot be considered fair unless the report itself is neutral and reasonably thorough. Therefore, Mr. Tsui’s allegations would only amount to a breach of procedural fairness if it was shown that the omissions resulted in a lack of neutrality or thoroughness in the investigative report.

Mr. Tsui did not bring specific omissions to the attention of the Court but rather asserted that the investigative steps were inadequate. This was an influential factor in the Court’s decision because, if the investigative steps omitted do not result in missing any evidence in the report, the omission cannot be said to have resulted in procedural unfairness. The Court accordingly concluded that the investigative report appeared to be, on the evidence before the Court, both neutral and thorough. Mr. Tsui’s application for judicial review was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.