Buck v. Canada ( Human Rights Commission )
T-1548-94 / T-342-95
Noël J.
5/1/96
15 pp.
Judicial review of CHRC's dismissal of complaints against employer alleging discrimination based on age-Applicants, aged 60 and 61, declared surplus-According to employer, applicants declared surplus as part of reorganization-Which staff members released, retained, determined according to assessment of performance, potential of staff on basis of specified criteria-All staff members rating below 60% released-Investigator concluding allegations of discrimination unfounded-Applicants challenging investigator's findings, data-Commission referring complaints to conciliation-Applicants rejecting settlement offers-Memorandum accompanying conciliation reports recommending Commission dismiss complaints if finding settlement offers reasonable-Applicants filing statistical analysis of age-related data, concluding selection for lay-off depending on age- Commission hiring independent statistician-Concluding significant over-representation of age group in released class, but noting reduction of released employees belonging to applicants' age group by 3 reducing over-representation to non-significant level-Employer responding by alleging some of employees should have been excluded from group because not laid off-Commission not disclosing those assertions to applicants-Applicants alleging breach of rules of procedural fairness in Commission's failure to provide opportunity to respond to employer's factual assertions made in response to statistical report-Application allowed- Applicants not having opportunity to challenge or put in issue any of facts asserted by NRC even though facts, if accurate, having effect of eliminating statistical basis on which complaints framed-Commission's longstanding policy not to allow parties to take cognizance of submissions adverse in interest and to respond thereto subject of judicial comment in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.), other cases-Employer's comments on independent statistical report should have been brought to applicants' attention because report determinative factor for CHRC-When party making submission which, if accepted, can be determinative of outcome of complaint, Commission must ensure party adverse in interest having opportunity to challenge factual basis upon which submission made-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 44(3) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 47(1).