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Human Rights (Federal) - Post-Investigation Screening [CHRA s.44]. Givogue v. Canada (Attorney General)
In Givogue v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an earlier JR of a CHRC decision "that it would not deal with the Complaint pursuant to paragraph 41(1)(d) [SS: "complaint is trivial, frivolous, vexatious or made in bad faith"] of the Act (the Decision)", where the complaint involved an employer's requirement that the appellant disclose his COVID vaccination status.
Here the court considers the SOR for a CHRC 'screening' decision:[5] .... This Court has confirmed that such screening decisions are to be reviewed on a reasonableness standard: Canada (Attorney General) v. Ennis, 2021 FCA 95, [2021] 4 F.C.R. 3 at para. 46, leave to appeal to SCC refused, 39800 (20 January 2022). Further, Mr. Givogue has not convinced us that the Decision raises a question for which the rule of law requires correctness review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563 at para. 53 [Vavilov]. . Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers human rights 'screening', including it's applicable SOR:(1) What is the standard of review?
[33] The Federal Court (at paras. 25-29) selected reasonableness as the standard of review. It noted that screening decisions of the Commission under s. 41 of the Canadian Human Rights Act are "“ordinarily subject to review by this Court against the standard of reasonableness”" (at para. 25). It added that none of the exceptions to reasonableness review applied.
[34] I agree with the Federal Court for the reasons it gave. I adopt its reasons as my own.
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[47] In this case, the Commission’s function under the Canadian Human Rights Act is to act as a screening body, to winnow out complaints that cannot possibly succeed on the facts or the law. A complaint that cannot possibly succeed on the facts or the law should not be sent to the Tribunal for a time-consuming, resource intensive hearing. The purpose of this is to ensure the wise use of resources and the efficient disposition of complaints. To find that the Commission cannot look at whether some law makes a complaint doomed to fail is to frustrate that statutory purpose.
[48] For good measure, this Court has thrice decided that the Commission, when conducting its screening function, has a large amount of latitude, including the ability to measure a complaint against applicable law to see whether it can potentially succeed: Canada (Attorney General) v. Ennis, 2021 FCA 95, [2021] 4 F.C.R. 154 at para. 61; Gregg v. Air Canada Pilots Association, 2019 FCA 218 (dissenting reasons but not opposed by the majority on this point); Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 1998 CanLII 8700 (FCA), [1999] 1 F.C. 113, 167 D.L.R. (4th) 432 (C.A.) at para. 38; see also Northcott v. Canada (Attorney General), 2021 FC 289. On other occasions, it has had to decide whether other administrative decision-makers should handle a complaint, which requires it to examine and interpret the governing statutes of those administrators: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 99; Eadie v. MTS Inc. 2015 FCA 173, 475 N.R. 174 at paras. 96-105; MacFarlane v. Day & Ross Inc., 2010 FC 556, [2011] 4 F.C.R. 117 at paras. 73-74.
[49] In this case, the Commission determined whether remedies were legally available for the alleged breach of the appellant’s human rights in light of the Carriage by Air Act and the Montreal Convention. It did not adjudicate the merits of the appellant’s complaint but rather assessed whether the complaint should be dealt with using objective benchmarks including relevant law and precedent. It concluded that this task fell within the powers, duties and functions conferred upon it by s. 41 of the Canadian Human Rights Act. . Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered law applicable to the CHRC screening process:[37] The Federal Court commenced its analysis by correctly setting out the applicable principles from the case law. It noted, with reference to the decision of the Supreme Court of Canada in Halifax (Regional Municipality) v. Nova scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 [Halifax] and of the Federal Court in Tutty v. Canada (Attorney General), 2011 FC 57, 382 F.T.R. 227, that the Commission is to be accorded deference in respect of its screening decisions under section 44 of the CHRA. The Federal Court also noted, as was held by the Supreme Court of Canada in 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, 62 D.L.R. (4th) 385 and Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193, that the role of the Commission, in making screening decisions under section 44 of the CHRA, is to assess the sufficiency of the evidence before it. The Federal Court further correctly held that deference was not required in respect of its review of the fairness of the process undertaken by the Commission.
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[46] It is likewise well settled that the deferential reasonableness standard applies to the merits of Commission decisions to refer or to decline to refer human rights complaints to the Tribunal for further inquiry: Halifax at paras. 17-53; Attaran v. Canada (Attorney General), 2015 FCA 37, 380 D.L.R. (4th) 737 at paras. 9-14 [Attaran]; Hood v. Canada (Attorney General), 2019 FCA 302, 2020 C.L.L.C. 230-017 at paras. 24-27; Harvey v. Via Rail Canada Inc., 2020 FCA 95, 2020 CarswellNat 1671 at para. 10; Wong at para. 19; Ritchie at para. 16; Jean v. Canadian Broadcasting Corp., 2016 FCA 81, 2016 CarswellNat 12015 at para. 5. This conclusion is indeed mandated by the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 [Vavilov], the current leading authority on judicial review, in which that Court confirmed that the reasonableness standard applies to administrative decisions that are not subject to appeal, save in exceptional circumstances, none of which would apply to screening decisions made by the Commission.
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[57] The Federal Court has similarly stated that "“[t]he Commission has broad discretionary power and enjoys a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report”": Egueh-Robleh v. Canadian Institutes of Health Research, 2019 FC 1079, 2019 CarswellNat 12985 at para. 20; see also Anani v. Royal Bank of Canada, 2020 FC 870, 2020 CarswellNat 4322 at para. 50 [Anani]; Mulder v. Canada (Attorney General), 2020 FC 944, 2020 CarswellNat 4633 at paras. 69-70.
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[59] Insofar as concerns the relevant authorities, the case law establishes that the Commission is not bound by the recommendations made by an investigator. As noted by the Federal Court in Wang v. Canada (Minister of Public Safety and Emergency Preparedness), 2005 FC 654, 272 F.T.R. 208 at para. 30:[...] Not only is the Commission under no obligation to follow the Investigator’s recommendation, it has to evaluate the complaint having regard to all circumstances. Faced with conflicting evidence, it was in the Commission’s discretion to decide as it did in dismissing the applicant’s complaint. [60] Likewise, in Bradley v. Canada (Attorney General), 135 F.T.R. 105, 1997 CarswellNat 1327 at para. 53, the Trial Division of the Federal Court stated:It is true that the CHRC did not accept the investigator’s recommendation, that is, that a conciliator be appointed, but the Commission is not bound by any such recommendation. The applicant was clearly advised of this when the investigation report was sent to him for comment. The Commission's decision is not in error because it chose not to follow the investigator’s recommendation. [61] The same principle was applied in MacLean v. Canada (Human Rights Commission), 2003 FC 1459, 243 F.T.R. 219 at para. 50, where the Court held that the Commission was not bound to adopt the initial investigator’s report which favoured further inquiry into the complaints. Similarly, in Bastide v. Canada (Attorney General), 2005 FC 1410, [2006] 2 F.C.R. 637 at paras. 2, 19-22, and 51 aff’d 2006 FCA 318, 365 N.R. 136 at paras. 4-9, leave to appeal to SCC refused, 31732 (8 March 2007), the courts refused to interfere with the Commission’s decision to dismiss the complaints "“on the ground that the respondent had established a bona fide occupational requirement under section 15 of the Act”", despite the investigator’s report recommending the appointment of a tribunal to hear the complaints. In particular, this Court observed at paragraph 9 of its decision that "“[i]f the Commission enjoys a wide latitude to allow a complaint and to request that an inquiry be instituted to examine its merits, it has the same latitude to refuse to do so and to dismiss the complaint”".
[62] In addition, so long as the investigation is sufficiently thorough and has examined the critical evidence, the Commission is not required to return a file for further investigation if the Commission concludes that the factual basis put forward by the parties and the investigator provides insufficient grounds to justify further inquiry, even where additional evidence might be uncovered if a further inquiry were undertaken. Indeed, were it otherwise, the Commission’s screening role would be substantially undermined. On this point, the British Columbia Court of Appeal has stated that a "“mere possibility”" of discrimination is not enough to require a hearing: as gate keeper, the Commission must make a preliminary assessment of the case and determine whether the evidence takes the case "“out of the realm of conjecture”", such that the matter warrants the time and expense of a full hearing: Lee v. British Columbia (Attorney General), 2004 BCCA 457, 2004 C.L.L.C. 230-036 at para. 26.
[63] In a somewhat similar vein, contrary to what counsel for Mr. Ennis asserted before us, the Commission is not bound to refer a complaint to the Tribunal in cases where it has declined an earlier request by the respondent to dismiss the complaint under subsection 41(1) of the CHRA. The inquiries under that subsection and section 44 of the CHRA are separate and distinct.
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