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Appeal-Judicial Review - Fairness - Investigations. Walcott v. Public Service Alliance of Canada
In Walcott v. Public Service Alliance of Canada (Fed CA, 2024) the Federal Court of Appeal holds that - absent an express statutory duty - there is no 'duty to investigate' on a tribunal:[4] We reject the applicant’s submissions on procedural unfairness. .... Further, the Board had no duty to investigate; it relies solely on the evidence submitted by the parties. . Tazehkand v. Bank of Canada
In Tazehkand v. Bank of Canada (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR of a CHRC decision dismissing a complaint by the appellant "alleging that he had been the victim of discrimination based on his race and his national or ethnic origin", here in a Bank of Canada hiring decision.
In these quotes the court considered the adequacy of the CHRC Commission's investigation:[44] To the extent that Dr. Tazehkand’s arguments do raise questions of procedural fairness, the Court must examine the process that was followed by the Commission in this case and determine for itself whether that process satisfied the level of fairness required in all of the circumstances. In other words, we must apply the correctness standard: Girouard v. Canada (Attorney General), 2020 FCA 129 at para. 38.
[45] As noted earlier, procedural fairness requires that a Commission investigation be both neutral and thorough, and “that the parties be given an opportunity to respond to [the investigator report]”: Canada (Attorney General) v. Davis, 2010 FCA 134 at para. 6.
[46] In arguing that the Commission investigation in this case was insufficiently thorough, Dr. Tazehkand notes that the Commission investigator never interviewed him, meaning that the investigation could hardly be said to have been thorough. I do not agree.
[47] The Commission investigator was provided with Dr. Tazehkand’s human rights complaint, which outlines, in detail, his allegations of discrimination on the part of the Bank in handling his job application.
[48] The investigator sought a written response to Dr. Tazehkand’s complaint from the Bank. This was appropriate, given that what the Bank did with Dr. Tazehkand’s job application was a matter solely within the knowledge of the Bank. A copy of the Bank’s response was then provided to Dr. Tazehkand for comment. He thus had an opportunity to provide the investigator with whatever information and documents he had in his possession that he believed were relevant to his complaint, and he provided the investigator with a fulsome response to the Bank’s statement.
[49] After receiving input from both sides, the investigator prepared the investigation report, a copy of which was provided to both Dr. Tazehkand and the Bank. Dr. Tazehkand was given the opportunity to provide the Commission with written submissions in response to the investigation report. Dr. Tazehkand once again availed himself of this opportunity, providing the Commission with detailed submissions regarding what he viewed as being the flaws in the investigation report.
[50] In my view, the opportunities afforded to Dr. Tazehkand to provide the Commission investigator with information respected his participatory rights and were sufficient to satisfy the requirement of procedural fairness. He was made aware of the Bank’s position with respect to his human rights complaint, and he had a chance to tell the investigator why he did not agree with what the Bank had said. Dr. Tazehkand was subsequently provided with the investigation report, and he was able to tell the Commission what he saw as being the shortcomings in the investigation, the errors in the investigation report and why he disagreed with its conclusions. Indeed, subject to the comments in the next three paragraphs, Dr. Tazehkand has not identified any information that he was unable to provide to the investigator and the Commission through the avenues that were available to him. . Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered the role of administrative investigators, here when assessing whether administrative fairness was met:[51] The Supreme Court of Canada and the Court of Appeal for Ontario have set out that investigators in the professional regulation context must have “sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged.” (Gore v College of Physicians and Surgeons of Ontario, 2009 ONCA 546 at para 17, citing Pharmascience Inc v Binet, 2006 SCC 48 at para 37). Both Ms. Yee, operating in an undercover capacity, and Mr. Hutchinson acted appropriately in their respective roles in the investigation of this matter. . Dr. Rajiv Maini v. HPARB et al.
In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered fairness in relation to investigative administrative proceedings:[25] The duty of procedural fairness at the investigative stage is limited. The ICRC exercises a screening and not an adjudicative function. The Committee does not conduct hearings nor listen to witnesses but decides issues before it on paper-based reviews. It does not find whether professional misconduct is warranted, and it has no authority to order sanctions or penalties. Its function is to screen the results of an investigation and determine whether the matter should be referred for adjudication, or whether some other remedy is appropriate, such as a requirement for educational upgrading (Code, s. 26(1) and (3); Silverthorne v. Ontario College of Social Workers and Social Services Workers, 2006 CanLII 10142 (Ont. Div. Ct.), paras. 13-18; Botros v. College of Physicians and Surgeons (Ontario), [2007] O.J. No. 3156 (Div. Ct.), paras. 30-31).
[26] This Court has recognized that “The standard of disclosure at the screening or investigative stage has been held to require adequate notice to ensure that a member has sufficient information to answer the case against him or her. It has also been held that it is adequate at the investigative stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” (Gopinath, para. 12) . Drew v. Canada (Attorney General)
In Drew v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered the fairness duty in investigations:[9] With respect to procedural fairness, the Federal Court concluded that the Commission’s investigation was sufficiently thorough. In this connection, the Federal Court noted that court intervention is warranted only in the presence of fundamental investigative flaws that cannot be remedied by responding submissions (Eadie v MTS Inc., 2015 FCA 173 at para. 79; Sketchley v Canada (Attorney General), 2005 FCA 404 at paras. 120-121). The Federal Court found no such flaws in the case before it. It also found that in light of the evidence she had obtained, the Investigator had not committed an error by not interviewing a witness that the appellant argued should have been interviewed. Accordingly, the Federal Court concluded that the appellant had been afforded procedural fairness. . Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered fairness and an investigator's report:[76] In the context of proceedings before the Commission, this Court has described procedural fairness requirements in Canada (Attorney General) v. Davis, 2010 FCA 134, 403 N.R. 355 at para. 6 as follows:The Commission must act in accordance with natural justice. This requires that the investigation report upon which the Commission relies be neutral and thorough and that the parties be given an opportunity to respond to it: Sketchley v. Canada (Attorney General), 2005 FCA 404 (CanLII), [2006] 3 F.C.R. 392 (F.C.A.) applying Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. [77] Similarly, the Federal Court has noted in Deschênes v. Canada (Attorney General), 2009 FC 1126, 2010 C.L.L.C. 230-034 at para. 10:[...] Procedural fairness dictates that the parties be informed of the substance of the evidence obtained by the investigator which will be put before the Commission and that the parties be provided the opportunity to respond to this evidence and make all relevant representations in relation thereto: SEPQA, above; Lusina v. Bell Canada, 2005 FC 134, at paragraphs 30 and 31 (Lusina). [78] These requirements were met in the instant case. Moreover, the parties were specifically put on notice, in the warning contained in the introduction to the assessor’s report, that it was not binding. Mr. Ennis was therefore on notice that it was the Commission that would rule on whether his complaint ought to be referred to the Tribunal, and he was afforded the opportunity to make submissions to the Commission. In addition, it is clear from the Commission’s reasons that it duly considered the submissions of all parties who made them.
[79] Thus, there was no denial of procedural fairness. . Rosianu v. Western Logistics Inc.
In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal considered the procedural fairness duty limits for administrative investigations:[33] I begin by reiterating the applicable legal principles. First, it is well-settled law that the investigative process is not akin to a hearing and that parties are thus not entitled as of right to insist that a CHRC Investigator will interview every witness that they put forward. An investigation will not be found to be lacking in thoroughness and result in a breach of procedural fairness merely because the Investigator did not interview all of the witnesses proposed by a party (Slattery v. Canada (Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 FC 574 at para. 70, 73 F.T.R. 161). To conclude that there was a breach of procedural fairness, we have to be persuaded that the Investigator failed to interview “obvious players” that had important information in support of his complaint (Wong v. Canada (Public Works and Government Services), 2018 FCA 101 at para. 14, 293 A.C.W.S. (3d) 129 [Wong]).
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