The applicant was successful in seeking a judicial review order on the basis that the Canadian Human Rights Commission (“Commission”) did not conduct a sufficient/neutral investigation as it ignored crucial evidence and did not address several critical aspects of the applicant’s claim

23. November 2010 0

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

Hughes v. Canada (Attorney General), [2010] F.C.J. No. 1193, 2010 FC 963, Federal Court, September 27, 2010, Heneghan J.

The applicant complained to the Commission that he was discriminated by the Canadian Border Services Agency “CBSA” on the grounds of age. The applicant alleged that the CBSA did not employ him and therefore was in breach of ss. 7 and 10 of the Canadian Human Rights Act, 1985 c. H-6. The Commission conducted an investigation and then dismissed the complaint concluding that the applicant was not offered employment with the CBSA for reasons not related to age. The applicant sought judicial review of the Commission’s decision.

The Court found that the Commission’s finding, based on an investigation report, raised serious concerns as to its neutrality and thoroughness. The Court found that the investigation report was imbalanced in favour of the CBSA, as it did not interview people in situations similar to that of the applicant which the investigator was fully aware of. Further, the investigation report failed to address relevant issues harmful to the CBSA’s position. Additionally, the Court found that some of the positions taken in the report were not supported by the evidence.

Regarding the applicant’s additional claim that by not consolidating the applicant’s complaint with his other complaints the Commission breached its duty of procedural fairness, the Court disagreed. The Court held that the Commission is authorized to adopt appropriate administrative steps with respect to its processes. The Court also stated that because the applicant could still challenge the Commission’s finding, in conjunction with the fact that the applicant could not prove that he had suffered any prejudice, the Court found that the Commission did not breach its duty of procedural fairness. Notwithstanding, the application for judicial review was allowed for the Commission’s failure to conduct a sufficiently neutral investigation.

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