Slattery v. Canada ( Human Rights Commission )
T-680-92
MacKay J.
6/7/94
20 pp.
Application for judicial review of CHRC's decision not to deal with applicant's complaint against Public Service Staff Relations Board as facts as alleged not constituting discriminatory practice -- Employer declaring applicant abandoned position when ignored request to return to work after failing to reply to request for course outline while on paid education leave -- Applicant complaining of age, sex discrimination to CHRC -- CHRC referring applicant to PSSRB -- After unsuccessful attempt at mediation, PSSRB holding applicant not abandoning position, awarding lump sum payment -- Applicant filing complaint against PSSRB, alleging discrimination based on sex, age contrary to Canadian Human Rights Act, ss. 2, 7, 10, 12, 14 -- Alleging employer's counsel harassing her, treating her and another female witness differently, mediator calling her "hog" and attempting to coerce her to withdraw human rights complaints, adjudicator's decision perpetuating effects of employer's discrimination by not granting reinstatement, decision sexist, containing stereotypical notions of maleness, femaleness -- Investigator's summary of reasons for recommendation indicating no complaint under Act, s. 2 stating purpose of legislation; as no employment relationship between Board and applicant no basis for complaint under ss. 7, 10; no factual basis alleged of publishing or display before public of any notice or other representation expressing, implying or inciting discrimination necessary for application of s. 12, and mediator's single comment of name calling, made during course of mediation not supporting allegation of sexual harassment; facts alleged in complaint not supporting allegation adjudicator's decision constituting harassment -- Applicant given opportunity to respond before investigator's report considered -- Commission considering report prior to investigation, complaint, chronology, letter, submissions from CHRC's counsel in response to investigator's report, letter from Chair, PSSRB declining to make representations concerning investigator's report prior to investigation -- Applicant alleging breach of principles of natural justice including procedural fairness, Commission exceeded jurisdiction, erred in law -- Complaining process of investigation unfair as investigator neither interviewing witnesses nor examining adjudicator's decision -- Application dismissed -- Process followed not violating principle of fairness -- Establishment, management of process for investigating complaints within CHRC's discretion under s. 40 -- Court should only intervene where Commission erred in law or acting unreasonably -- No error in law in investigator's summary reasons -- CHRC lacking authority to review adjudicator's report in any manner constituting assessment or judgment on merits -- Counsel's submissions, applicant's complaint before Commission -- That adjudicator's decision not considered by CHRC or by investigator not basis for invalidating Board's decision -- No error in Commission's determination adjudicator's report not "discriminatory practice," particularly with reference to s. 14 providing for discriminatory practice of harassment on prohibited ground of discrimination[cad 211]Adjudicator's report neither extension of relationship previously existing between employer and applicant nor harassment within enumerated circumstances -- No error in concluding mediator's conduct not harassment within s. 14(1) -- Even accepting in providing mediation, adjudication services, PSSRB providing services customarily available to general public, no continuing relationship between Board and applicant -- Single incident of conduct (mediator calling applicant "hog"), however inappropriate or offensive, or single decision of adjudicator not harassment -- Neither error nor unreasonable for Commission to conclude in absence of continuing relationship involving unequal power between applicant and those acting on behalf of Board, single incident of offensive conduct or single decision of adjudicator not constituting harassment on prohibited discriminatory ground -- CHRC not erring in law in finding facts alleged not constituting discriminatory practice -- Standard for Court in application for judicial review that of correctness -- S. 42(1) requiring Commission to send written notice of decision to complainant setting out reason for decision -- Applicant arguing Commission must expressly state in terms of s. 41(d) complaint trivial, frivolous, vexatious, or made in bad faith and explain why -- Responsibility of CHRC to give reasons under s. 43 met in this case -- No obligation in law to specify which one or more of criteria in s. 41(d) found to be applicable to complaint which it dismisses under that provision, especially where specifying facts as alleged not constituting discriminatory practice -- Complaint frivolous in sense beyond CHRC's jurisdiction, and to pursue matter futile since nothing can be done by Commission under enabling legislation to seek redress of matters subject of complaint -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 7, 10, 12, 14, 41, 42, 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64), 47, 49 (as am. idem, s. 66).