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Human Rights (Federal) - Investigation. 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. . Rosianu v. Western Logistics Inc.
In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented on the use of an investigator's report by the CHRC:[70] It is well-settled law that courts can consider the Investigator’s Report to constitute the main reasoning of the CHRC. As I explain below, this principle was established many years before the CHRC followed the Investigator’s recommendation in issuing the impugned decision.
[71] The seminal authority on this issue is Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, in which this Court stated at paragraph 37:
[72] In my view, the appellant's argument on this issue must fail. While it is true that the investigator and Commission do have “mostly separate identities”(Canada (Human Rights Commission) v. Pathak (1995), 1995 CanLII 3591 (FCA), 180 N.R. 152, [1995] 2 F.C. 455 at para. 21, per MacGuigan J.A., (Décary J.A. concurring)), it is also well-established that, for the purpose of a screening decision by the Commission pursuant to section 44(3) of the Act, the Investigator cannot be regarded as a mere independent witness before the Commission (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 at para. 25 [SEPQA]). The Investigator's Report is prepared for the Commission, and hence for the purposes of the investigation, the Investigator is considered to be an extension of the Commission (SEPQA, supra at para. 25). When the Commission adopts an Investigator's recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the Investigator's Report as constituting the Commission's reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1999) 1998 CanLII 8700 (FCA), 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43 (C.A.)).
[73] This principle has been uniformly applied since then, including by this Court (see, for example, Love v. Canada (Privacy Commissioner), 2015 FCA 198 at para. 10, 2015 CarswellNat 4560 (WL Can); Harvey v. Via Rail Canada Inc., 2020 FCA 95 at para. 4, 2020 CarswellNat 1671 (WL Can)).
[74] Evidently, the situation differs when the CHRC decides not to follow the Investigator’s recommendation (see Ennis at para. 72). In such cases, it must explain why it decided not to do so. This is not such a case.
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