Canada (Attorney General) v. Liu Administrative law — Boards and tribunals — Jurisdiction of particular boards and tribunals — Canadian Human Rights Commission.
The Attorney General sought an order quashing the decision of the Canadian Human Rights Commission (the Commission) referring the respondent Liu's complaint to the Canadian Human Rights Tribunal for inquiry. The issue was whether Dr. Liu's complaint was filed in a timely fashion. In July, 1989, Dr. Liu filed a complaint with the Commission alleging discrimination by his employer against him on the basis of race, colour, or ethnic origin. The discrimination alleged began in 1985. The Commission decided to extend the time limit within which the complaint could be filed, so would deal with the complaint even although the act complained of had occurred more than one year before the receipt of the complaint by the Commission.
HELD: The application was dismissed. The court was satisfied that the Commission had complied with the rules of procedural fairness as required in the circumstances. Nor did the court agree with the applicant's submission that the Commission had erred in the exercise of its jurisdiction by investigating matters not raised in the complaint.
Statutes, Regulations and Rules Cited:
| Canadian Human Rights Act, R.S.C.
1985, c. H-6, ss. 7, 10, 41(e), 44(3)(a). Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1. Federal Court Rules, Rule 1618. |
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| Brian J. Saunders, for the applicant. Cyntia Sams, for the respondents. Margaret Rose Jamieson, for the intervenor. |
¶ 1 RICHARD J.:— This is an application by the Attorney General of Canada pursuant to section 18.1 of the Federal Court Act [See Note 1 below] for an order quashing the decision of the Canadian Human Rights Commission ("Commission"), dated September 22, 1993, referring the complaint of the respondent, Antony Liu, under the Canadian Human Rights Act [See Note 2 below] ("Act") against the National Research Council ("N.R.C.") to the Canadian Human Rights Tribunal ("Tribunal") for inquiry. In its application, the Attorney General also seeks an order prohibiting the Commission from dealing further with Dr. Liu's complaint and the Tribunal from inquiring into the complaint.
| Note 1: | R.S.C. 1985, c.F-7, as amended. | ||
| Note 2: | R.S.C. 1985, c.H-6, as amended. |
¶ 2 At the hearing, counsel for the applicant amended that part of its application which sought to prohibit the Commission from dealing further with Dr. Liu's complaint against the N.R.C. and substituted a request that the matter be remitted to the Commission in accordance with such directions as the Court may see fit, including that it address all relevant considerations in determining whether Dr. Liu's complaint was filed in a timely fashion, and also that the Commission cross-disclose certain information and allow the N.R.C. an opportunity to respond to certain documents.
¶ 3 The decision, which is sought to be quashed, is dated September 22, 1993, and reads as follows:
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The Commission has decided, pursuant to section 49 of the Canadian Human Rights Act, to request that the President of the Human Rights Tribunal Panel appoint a Human Rights Tribunal to inquire into the complaint as it is satisfied that, having regard to all the circumstances of the complaint, an inquiry thereinto is warranted. |
¶ 4 The respondent, Dr. Liu, filed a complaint with the Commission on July 18, 1989, alleging that the N.R.C. had "discriminated against him in employment by treating him differently because of his race, colour and national or ethnic origin (chinese, yellow)" contrary to sections 7 and 10 of the Act. Dr. Liu alleged that the N.R.C. had discriminated against him with respect to his classification and work. The incidents of alleged discrimination cited in his complaint began in 1985.
¶ 5 By letter dated April 24, 1990, the Commission advised the N.R.C. that it had decided to exercise its discretionary power to extend the time limit within which the complaint could be filed. The letter went on to indicate that the Commission had decided, pursuant to subsection 41(e) of the Act, to deal with the complaint even though the act complained of occurred more than one year before the receipt of the complaint by the Commission. Counsel agreed at the hearing that what was intended by the Commission was to extend the complaint back to July 1985.
¶ 6 This decision was preceded by a Report Prior to Investigation, dated November 3, 1989, which stated:
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The complainant first contacted the Regional Office on May 29, 1989, and a formal complaint was signed on July 18, 1989. The alleged discrimination began sometime in July 1985 and is on going. Therefore some of the acts complained of occurred more than one year before receipt of the complaint by the Regional Office. |
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There should not be any prejudice to the respondent as investigation can be conducted by gathering testimonial evidence and reviewing documents still available. |
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Bringing this complaint into time would allow completeness, that is, it would ensure that all relevant allegations are addressed during investigation and would also permit the seeking of full remedies, if applicable. |
¶ 7 The Report Prior to Investigation also recommended, pursuant to subsection 41(e) of the Act, that the Commission deal with the complaint even though the act complained of occurred more than one year before the receipt of the complaint. Subsection 41(e) provides:
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Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to Commission that |
| (e) |
the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
¶ 8 Counsel for the applicant raised the following issues:
| (1) |
that the Commission erred in law and exceeded its jurisdiction in exercising its discretion under section 41(e) of the Act by failing to take into account relevant considerations and by exercising its discretion unreasonably. |
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| (2) |
that the Commission erred in law and exceeded its jurisdiction by: |
| (a) |
investigating matters not raised in the complaint; and |
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| (b) |
taking into account settlement discussions and events which post-dated the complaint. |
| (3) |
that the Commission failed to act fairly in the manner in which it conducted the investigation leading to the decision to refer the complaint to Tribunal. |
¶ 9 With respect to the first issue, counsel for the applicant attacks the decision of the Commission on the ground that no explanation was given by the Commission for exercising its discretionary power to extend the time limit within which the complaint could be filed. Specifically, the complaint was filed on July 18, 1989, though it was alleged that the discrimination began sometime in July 1985.
¶ 10 It should be noted that the decision to extend the time for filing a complaint by Dr. Liu was made by the Commission on April 18, 1990, and that no judicial review application was filed regarding that decision. In my view, the applicant in these proceedings cannot, by seeking an order to quash the decision of the Commission to appoint a Tribunal pursuant to paragraph 44(3)(a), launch a collateral attack on the earlier decision of April 24, 1990, extending the time limit within which the complaint could be filed. Further, there is no evidence on the record indicating that the Commission exercised its discretionary power in an arbitrary or capricious matter. The exercise of its discretionary power occurred on the basis of a recommendation contained in a Report Prior to Investigation, which was made available to the applicant. At the hearing, counsel for the applicant did not maintain the allegation that the applicant would be prejudiced by the decision of the Commission to deal with the complaint even though the acts complained of began in July 1985.
¶ 11 Regarding counsel for the applicant's submission that the Commission's administrative decision to request the appointment of a Tribunal to inquire into the complaint resulted from an investigation which was not conducted fairly, I would adopt the reasoning of Mr. Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [See Note 3 below] where he said:
| Note 3: | [1989] 2 S.C.R. 879. |
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It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. |
and further he added:
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Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. [See Note 4 below] |
Note 4: Ibid at 899; see also Rees v. Crane, [1994] 2 A.C. 173 (P.C.).
¶ 12 The Commission has a duty to act fairly in deciding whether a complaint has sufficient basis in fact and was serious enough to warrant requesting the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal. The content of the duty of fairness at any particular stage leading to a recommendation must take account of the statutory scheme and in particular, the fact that the investigation is purely preliminary and that there will be a full opportunity to deal with the complaint later. The judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agency may function effectively as the legislation intended. [See Note 5 below]
Note 5: Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at 7.
¶ 13 In this case, the Commission had before it the complaint itself, the investigation report and the submissions of the parties. The record does not disclose that it considered any new and additional facts in reaching its decision which had not been earlier disclosed to the N.R.C. At this stage of the proceedings, I am satisfied that the Commission complied with the rules of procedural fairness as required in the circumstances. [See Note 6 below]
Note 6: Mercier v. Canadian Human Rights Commission (March 22, 1994), No. A-1095-91 (F.C.A.) [Please see [1994] A.C.F. no 361].
¶ 14 Counsel for the applicant also alleged that the Commission had erred in the exercise of its jurisdiction by investigating matters not raised in the complaint. This allegation is not, in my view, supported by the record. The complaint, as filed on July 18, 1989, alleges discrimination in employment on the basis of race, colour or national or ethnic origin. No amendments to the grounds were made and no complaint was sought to be filed on new grounds.
¶ 15 For these reasons, the application is dismissed.
¶ 16 Counsel for Dr. Liu requested that costs be awarded against the N.R.C. since Dr. Liu had been compelled to resist this application with limited assistance from the Commission, whose role before the courts on judicial review is now limited. [See Note 7 below] Rule 1618 provides that no costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders. It is clear that mere success on an application does not constitute a special reason. The rule limiting the role of a tribunal on an application for judicial review is one of general application. [See Note 8 below] Accordingly, there will be no order as to costs on this application.
Note 7: Canada (A.G.) v. Bernard (January 17, 1994), No. A-632-93 (F.C.A.) [Please see [1994] F.C.J. No. 26].
Note 8: CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at 1014.
RICHARD J.
The application is dismissed without costs.
QL Update: 941128
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