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Human Rights (Fed) - Complaints. Jagadeesh v. Canadian Imperial Bank of Commerce
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
Here the court examines "the nature and extent of the Commission’s obligations when investigating a discrimination complaint brought under the Canadian Human Rights Act":V. The Legal Principles Governing the Commission’s Role and Responsibilities
[25] The Supreme Court discussed the Commission’s role in Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193. There, it observed that the Commission is not an adjudicative body, and that the adjudication of human rights complaints is reserved to the Canadian Human Rights Tribunal. The Commission’s duty is, rather, "“to decide if, under the provisions of the [CHRA], an inquiry is warranted having regard to all the facts”". That is, "“the central component of the Commission’s role […] is that of assessing the sufficiency of the evidence before it”": at para. 53. See also Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, [1989] S.C.J. No. 103 (SEPQA).
[26] The Supreme Court further tells us that the Commission has a broad discretion in determining whether, having regard to all of the circumstances, further inquiry into a complaint is warranted: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, at paras. 21 and 25. As this Court recognized in Ennis, above, this discretion "“derives from judicial recognition of the Commission’s expertise in performing its important screening and gate-keeping role”": at para. 56, citing Bergeron v. Canada (Attorney General), 2017 FC 57, at para. 74. This Court further observed in Ennis that the open-ended nature of the relevant statutory language provides minimal constraint on the Commission: above, at para. 56.
[27] Indeed, in Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1998), 1998 CanLII 8700 (FCA), [1999] 1 F.C. 113, [1998] F.C.J. No. 1609, this Court noted that "“[t]he Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report”": at para. 38 [my emphasis].
[28] However, when deciding whether further inquiry is warranted in a given case, the process followed by the Commission must be fair. In Slattery v. Canada (Canadian Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 F.C. 574, [1994] F.C.J. No. 181, aff’d 205 N.R. 383 (F.C.A.), the Federal Court confirmed that in fulfilling its statutory responsibility to investigate complaints of discrimination, the Commission’s investigations must be both neutral and thorough.
[29] That said, the Federal Court also observed in Slattery that "“[d]eference must be given to administrative decision makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly”": at para. 56.
[30] The requirement for thoroughness in Commission investigations must be considered in light of the Commission’s administrative and financial realities. With this in mind, the jurisprudence has also noted that the Commission has limited resources and a heavy caseload, and that it has to balance complainants’ interests in the fullest possible investigation with the demands of administrative efficacy: Tahmourpour v. Canada (Solicitor General), 2005 FCA 113, at para. 39.
[31] The jurisprudence has further established that Commission investigations do not have to be perfect, and that investigators are not required to turn every stone in investigating complaints of discrimination. Not every defect in an investigation will be fatal to a Commission decision, and some defects may be overcome by providing the parties with the opportunity to make submissions with respect to the investigation report: Slattery, above at para. 57. The only errors that will justify the intervention of a court on judicial review are "“investigative flaws that are so fundamental that they cannot be remedied by the parties’ further responding submissions”": Sketchley v. Canada (Attorney General), 2005 FCA 404 at para. 38; Hughes v. Canada (Attorney General), 2010 FC 837 at para. 34.
[32] As noted earlier, where, as here, the Commission endorses the recommendations of an investigator and provides limited reasons for its decision, the investigation report will be viewed as constituting the Commission’s reasoning for the purpose of a decision under subsection 44(3) of the Act: see SEPQA, above at para. 35; Bell Canada, above at para. 30. Thus, the Commission’s reasons for its decision to dismiss Mr. Jagadeesh’s human rights complaint may be supplemented by reference to the investigation report.
[33] However, if the Commission decides to dismiss a complaint based upon a deficient investigation, that decision will be deficient. If an investigation report is defective, "“it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion”": see Grover v. Canada (National Research Council), 2001 FCT 687 (CanLII), 206 F.T.R. 207, 2001 F.C.T. 687 at para. 70; see also Sketchley, above at para. 112. . 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 reviews the complaint procedure before the CHRC:VI. Legal Principles Governing the Review of Commission Decisions
[28] Before addressing the issues raised by Dr. Tazehkand, it is helpful to start by examining the nature and extent of the Commission’s obligations when investigating a discrimination complaint brought under the CHRA.
[29] The Supreme Court of Canada discussed the Commission’s role in Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193. There, it observed that the Commission is not an adjudicative body, and that the adjudication of human rights complaints is reserved to the Canadian Human Rights Tribunal. The Commission’s duty is, rather, “to decide if, under the provisions of the CHRA, an inquiry is warranted having regard to all facts. The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it”: at para. 53. See also Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, [1989] S.C.J. No. 103 [SEPQA].
[30] The Supreme Court further tells us that the Commission has a broad discretion in determining whether, having regard to all of the circumstances, further inquiry into a complaint is warranted: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras. 21 and 25. As this Court recognized in Canada (Attorney General) v. Ennis, 2021 FCA 95, this discretion “derives from judicial recognition of the Commission’s expertise in performing its important screening and gate-keeping role”: at para. 56. This Court further observed in Ennis that the open-ended nature of the relevant statutory language provides minimal constraint on the Commission: above, at para. 56.
[31] Indeed, in Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1998), 1998 CanLII 8700 (FCA), [1999] 1 F.C. 113, [1998] F.C.J. No. 1609, this Court noted that “[t]he Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report”: at para. 38 [my emphasis].
[32] However, when deciding whether further inquiry is warranted, the process followed by the Commission must be fair.
[33] In Slattery v. Canada (Canadian Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 F.C. 574, [1994] F.C.J. No. 181, aff’d 205 N.R. 383 (F.C.A.), the Federal Court confirmed that in fulfilling its statutory responsibility to investigate complaints of discrimination, the Commission’s investigations must be both neutral and thorough.
[34] That said, the Federal Court also observed in Slattery that “[d]eference must be given to administrative decision makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly”: at para. 56.
[35] The Commission is, moreover, the master of its own process, and it must be afforded considerable latitude in the way that it conducts its investigations: Tahmourpour v. Canada (Solicitor General), 2005 FCA 113 at para. 39.
[36] The jurisprudence has further established that Commission investigations do not have to be perfect, and that Commission investigators are not required to turn every stone in investigating a complaint. Indeed, as this Court observed in Tahmourpour, above: “[a]ny judicial review of the Commission’s procedure must recognize that the agency is master of its own process and must be afforded considerable latitude in the way that it conducts its investigations”: at para. 39.
[37] The requirement for thoroughness in investigations must also be considered in light of the Commission’s administrative and financial realities. With this in mind, the jurisprudence has also noted that the Commission has limited resources and a heavy caseload, and that it has to balance the interests of complainants in the fullest possible investigation and the demands of administrative efficacy: Tahmourpour, above at para. 39.
[38] The case law has further established that not every defect in an investigation will be fatal to a Commission decision. Some defects in Commission investigations may be overcome by providing the parties with the opportunity to make submissions with respect to the investigation report: Slattery, above at para. 57. The only errors that will justify the intervention of a court on review are “investigative flaws that are so fundamental that they cannot be remedied by the parties’ further responding submissions”: Sketchley v. Canada (Attorney General), 2005 FCA 404 at para. 38.
[39] As was noted earlier, where the Commission adopts the recommendations of an investigator and provides limited reasons for its decision, the investigation report will be viewed as constituting the Commission’s reasoning for the purpose of a decision under subsection 44(3) of the Act: see SEPQA, above at para. 35; Bell Canada, above at para. 30. Here, the Commission provided brief reasons for its decision to dismiss Dr. Tazehkand’s human rights complaint, and those reasons may thus be supplemented by reference to the investigation report.
[40] However, if the Commission decides to dismiss a complaint based upon a deficient investigation, that decision will be deficient because if an investigation report is defective, “it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion”: see Grover v. Canada (National Research Council), 206 F.T.R. 207, 2001 FCT 687 at para. 70; see also Sketchley, above at para. 112.
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