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Presentation - Procrustes Issues. 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.
Although styled as a fairness/bias issue (at paras 53-94), I locate this theme more consistently in the general administrative category of 'control of process' - here in a new(!) 'Procrustes' sub-topic:i. Improperly Narrowing the Scope of the Complaint
[54] Mr. Jagadeesh’s first argument is that the Commission investigator improperly limited the scope of his complaint, by refusing to consider allegations of discrimination that he made in the documentary evidence he submitted to the investigator in support of his complaint, rather than in the complaint form itself.
[55] In support of this contention, Mr. Jagadeesh points out that the complaint form directs complainants to describe their situation in the body of the form, further stating that "“[i]f you have any supporting documents, keep them with you. You may be asked for them at a later date during the process”".
[56] Mr. Jagadeesh stated at the beginning of the narrative portion of his complaint that "“I have tried to give as much detail as possible – within the 3 page limit. I have kept all ORIGINAL, dated, emails, doctor reports, medical records & supporting documents”". He went on to state "“As advised by you, I am NOT attaching any of these documents at this time, & plan to show you all the details in the future”".
[57] As I understand Mr. Jagadeesh’s argument, it is that his reference to his 102 pages of supporting documentation in his complaint form essentially incorporates those documents by reference into his human rights complaint. As a result, he says that the investigator was required to consider any additional allegations of discrimination that he raised in those documents.
[58] These additional allegations include, amongst other things, his claim that his employer had him followed and photographed, as a means of intimidating him, and his claim that senior CIBC managers were sexually exploiting junior employees in exchange for favours.
[59] I cannot accept this argument. There is a distinction between allegations of discrimination, which must be identified in the complaint form, and the evidence by which a complainant hopes to establish the veracity of their allegations, which can be provided later in the investigation.
[60] As this Court stated in Manfoumbi-Mouity v. Canada (Attorney General), 2017 FCA 240, the Commission does not violate the principles of procedural fairness by limiting its analysis to allegations contained in the complaint form, as filed. Nor does the Commission treat a complainant unfairly by limiting the number of pages in the complaint form: at para. 2.
[61] Consequently, there is no merit to Mr. Jagadeesh’s argument with respect to the allegedly unfair limiting of the scope of his complaint.
ii. Not Giving Mr. Jagadeesh a Sufficient Opportunity to Put His Evidence Before the Investigator and the Commissioners
[62] Mr. Jagadeesh further submits that he was treated unfairly as he was unable to put his allegations of discrimination fully before the investigator and the Commissioners. This was because the investigator cut his interview short, and because the Commission limited the number of pages of submissions that he could provide in response to the investigation report.
[63] As noted earlier, Mr. Jagadeesh had some 102 pages of evidence that he believed supported his complaint. He provided these to the investigator. While his interview with the investigator may not have lasted as long as he wanted it to, the investigator offered Mr. Jagadeesh the opportunity to provide her with any other documents, evidence and witness information that he believed supported his complaint, beyond that he had already provided. Mr. Jagadeesh has not identified any specific information or evidence that he was unable to put before the investigator. Indeed, he confirmed to the investigator that he had provided the Commission with everything that he had with respect to his allegations of discrimination against the CIBC.
[64] Insofar as Mr. Jagadeesh’s response to the investigation report is concerned, fairness requires that parties be given an opportunity to respond to such reports: Radulesco v. Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407 at pages 410-411, [1984] S.C.J. No. 48, Canada (Attorney General) v. Davis, 2010 FCA 134 at para. 6. Such opportunity does not, however, have to be unlimited, and it is not unfair to limit the number of pages that a party can file with the Commission commenting on an investigation report: Manfoumbi-Mouity, above at para. 2.
[65] In my view, the opportunities afforded to Mr. Jagadeesh to provide the Commission investigator with additional information and to respond to the investigation report respected his participatory rights and were sufficient to satisfy the requirements of procedural fairness.
iii. Conducting a Biased Investigation
[66] Mr. Jagadeesh further asserts that the second investigation into his human rights complaint was not a neutral one, and that the investigator was biased against him.
[67] Mr. Jagadeesh says that this is demonstrated by the fact that the investigation report was "“procedurally unfair, biased, under inclusive, unreasonable, and also unethical, because many of his crucial evidences were ignored, overlooked, and misconstrued and, many critical details of central importance were not even considered”". He goes on to state that "“[t]here were fundamental flaws in the analysis. It also included most irrelevant peripheral details to distract and misguide the Commission’s final decision makers”".
[68] The Commission is clearly subject to the duty of fairness when exercising its statutory power to investigate human rights complaints: SEPQA, above. Amongst other things, this requires that the Commission and its investigators be free from bias.
[69] The test for determining whether actual bias or a reasonable apprehension of bias exists in relation to a particular individual is well known: the question is what an informed person, viewing the matter realistically and practically–and having thought the matter through–would conclude. That is, would he or she think it more likely than not that the individual, either consciously or unconsciously, would not decide the matter fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R. (3d) 716; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at paras. 20-21, 26.
[70] That said, the non-adjudicative nature of the Commission’s responsibilities means that the standard of impartiality required of Commission investigators is something less than that required of the Courts. The question is thus not whether there exists a reasonable apprehension of bias on the part of the investigator, but rather, whether the investigator approached the case with a "“closed mind”": Zündel v. Canada (Attorney General) (1999), 1999 CanLII 9357 (FC), 175 D.L.R. (4th) 512 (T.D.), at paras. 17-22, aff’d 2000 CanLII 16731 (FCA), [2000] F.C.J. No. 2057, 195 D.L.R. (4th) 394.
[71] As the Federal Court stated in Canadian Broadcasting Corp. v. Canada (Canadian Human Rights Commission), (1993), 1993 CanLII 16517 (FC), 71 F.T.R. 214, [1993] F.C.J. No. 1334 (F.C.T.D.), the test in cases such as this is thus "“whether, as a matter of fact, the standard of open-mindedness has been lost to the point where it can reasonably be said that the issue before the investigative body has been predetermined”": at para. 43.
[72] The burden of demonstrating bias rests on the person alleging bias. An allegation of bias is a serious allegation, and challenges the very integrity of the individual whose conduct is in issue. Consequently, a mere suspicion of bias is not sufficient: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at para. 112; Arthur v. Canada (Attorney General), 2001 FCA 223, at para. 8. Rather, the threshold for establishing bias is high: R. v. R.D.S., above at para. 113. Mere disagreement with the findings of the investigator does not amount to evidence of bias.
[73] The Commission addressed Mr. Jagadeesh’s allegations of bias and unethical conduct on the part of the investigator in its decision. It observed that he "“did not provide any concrete examples that would lead the Commission to find that the [investigation report] or investigation was ‘biased or unethical’ or that a reasonably informed person, viewing the matter realistically and practically, would draw such a conclusion”".
[74] I will address Mr. Jagadeesh’s allegations as to the thoroughness and reasonableness of the Commission decision further on in these reasons. Insofar as his allegation of bias on the part of the investigator is concerned, however, suffice it to say that there is no evidence before us that would support such an allegation.
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