Judgments

[1995] 2 F.C. 455

A-342-93

Canadian Human Rights Commission (Appellant) (Respondent)

v.

Umesh Pathak (a.k.a. Mesh Pathak) (Respondent) (Applicant)

and

Royal Bank of Canada (Respondent) (Respondent)

Indexed as: Canada (Human Rights Commission) v. Pathak (C.A.)

Court of Appeal, Pratte, MacGuigan and Décary JJ.A.—Vancouver, April 3; Ottawa, April 11, 1995.

Administrative law — Judicial review — Appeal from order directing CHRC to produce all documents relied on in preparation of investigator’s report — CHRC dismissing complaint alleging discriminatory practices based on report, respondent’s representations — R. 1612(4) requiring request for material in Tribunal’s possession to specify material requested; material must be relevant — Relevance determined in relation to grounds of review in originating notice of motion, affidavit — As nothing therein attacking accuracy, completeness of report, production denied.

Human rights — Appeal from order requiring CHRC to produce documents relied on in preparation of investigator’s report — CHRC dismissing complaint alleging discriminatory practices based on report, respondent’s representations — While investigator extension of Commission, investigation, decision-making two distinct phases — Under CHRA, s. 44 CHRC can rely on report without examining complete investigation record — Not all documents before CHRC when making decision — Only those called for by CHRC in decision-making phase — Documents relied upon by investigator in preparing report need not be produced.

This was an appeal from a Trial Division order directing the Canadian Human Rights Commission (CHRC) to produce all documents relied upon by the investigator in preparing a report into alleged discriminatory practices, to the extent that the documents were available and in the Commission’s custody. After considering the investigator’s report and the complainant’s representations, the Commission dismissed the complaint. The complainant (respondent herein) applied for judicial review, and for an order pursuant to Federal Court Rule 1612 requiring the Commission to produce all documents relied on by the investigator in preparing the report. The Motions Judge held that the investigator conducted the investigation as an extension of the Commission, not as someone independent thereof. He concluded that the documents before the investigator were in effect before the Commission and therefore relevant to the judicial review application, and were required to be produced.

Held, the appeal should be allowed.

Per Pratte J.A. (Décary J.A. concurring): Rule 1612(4) provides that the request for material in the possession of the Tribunal that rendered the decision shall specify the material requested, and such material must be relevant to the application for judicial review. The relevance of the documents requested must be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the applicant. As nothing in the originating notice of motion, affidavit or other material cast doubt on the accuracy or completeness of the investigator’s report, the grounds of attack must be read and the relevance of the documents requested must be assessed on the assumption that the investigator’s report is a faithful and complete summary of the evidence before him. The production of documents would clearly serve no useful purpose.

Per MacGuigan J.A. (Décary J.A. concurring): The investigator is an extension of the Commission. What is the investigator’s is the Commission’s. But that does not mean that for all purposes the persons of the investigator and the Commission are to be merged. All the documents were in the Commission’s custody, but they were not all actually before the Commission when it made its decision. Only what the Commission called for was before it. If the Commission elects not to call for some document, that document is not before it in its decision-making phase, as opposed to its investigative phase. These are two different moments of the Commission’s life.

The CHRC’s decision was made pursuant to section 44, the intent of which is that the Commission need not examine the complete record of the investigation, but may rely on the report alone. The report triggers Commission action, and is the only document referred to as the basis for a Commission decision as to how to proceed.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, RR. 1612 (as enacted by SOR/92-43, s. 19), 1613 (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Whiteman v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4944 (F.C.A.).

CONSIDERED:

Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241.

APPEAL from an order requiring the CHRC to produce all documents relied on in the preparation of the investigator’s report upon which the CHRC had based its dismissal of a complaint alleging discriminatory practices. Appeal allowed.

COUNSEL:

Margaret Rose Jamieson for appellant (respondent).

Manuel A. Azevedo for respondent (applicant) Umesh Pathak (a.k.a. Mesh Pathak).

Gillian L. Gardiner for respondent (respondent) Royal Bank of Canada.

SOLICITORS:

Legal Counsel, Canadian Human Rights Commission for appellant (respondent).

Manuel A. Azevedo, Vancouver, for respondent (applicant) Umesh Pathak (a.k.a. Mesh Pathak).

Bull, Housser & Tupper, Vancouver, for respondent (respondent) Royal Bank of Canada.

The following are the reasons for judgment rendered in English by

Pratte J.A.: This is an appeal from an order of the Trial Division under Rule 1613 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] directing the Canadian Human Rights Commission (the “Commission”) to file certified copies of certain documents.

On April 17, 1991, the respondent Umesh Pathak (the “respondent”) filed with the Commission a complaint alleging that he had been the victim of a discriminatory practice on the part of the Royal Bank of Canada. The Commission, pursuant to section 43 of the Canadian Human Rights Act [R.S.C., 1985, c. H-6 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63)] (the “Act”) designated one Bob Fagan to investigate the complaint. After concluding his investigation, Mr. Fagan prepared a report of his findings which ended with a recommendation that the complaint be dismissed. A copy of that report was sent to the respondent for his comments. He answered by sending detailed written representations which the investigator submitted to the Commission together with his report. On March 18, 1992, after considering the report and the respondent’s representations, the Commission decided, pursuant to subparagraph 44(3)(b)(i) [as am. idem, s. 64] of the Act “to dismiss the complaint because on the evidence the allegation of discrimination is unfounded.”

On April 23, 1992, the respondent, who was not then represented by a solicitor, filed an originating notice of motion under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] seeking the review of the decision of the Commission on the following two grounds, namely:

(1) “[t]he decision was unlawfully made because the Commission ignored relevant evidence, misconstrued the evidence before it and made findings of fact that were so patently unreasonable so as to constitute reviewable error”; and

(2) “[t]he conduct of the Commission was such that the [respondent] was denied natural and fundamental justice.”[1]

With that notice of motion, the respondent filed an affidavit in which he merely stated his intention to file a more detailed affidavit at a later time. In so far as we know, that further affidavit has not yet been filed.

The notice of motion also contained a request, pursuant to Rule 1612(2) [as enacted by SOR/92-43, s. 19] “that the Commission send a certified copy of the Record to the applicant and to the Registry.”[2] The Commission acceded to that request and, on May 8, 1992, filed copies of all the documents that were before the Commission when it decided to dismiss the respondent’s complaint.

A few months later, after retaining counsel, the respondent applied inter alia for an order requiring the Commission to produce and file “[a]ll documents relied on by the Human Rights Officer Bob Fagan in preparing the Investigation Report.” The Motion’s Judge granted that application.

It is against his decision that this appeal is directed.

The Judge rightly felt that he had to order the production of the documents if they were relevant to the application for judicial review. However, as he considered himself bound by the assertions of Sopinka J. in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at page 898, to the effect that, under the Act, “[t]he investigator, in conducting the investigation, does so as an extension of the Commission” and not “as someone independent of the Commission who will then present evidence as a witness before the Commission,” he concluded that the documents that were before the investigator were in effect before the Commission and, for that reason, relevant to the judicial review application.

This decision, in my view, cannot be reconciled with the provisions of the Federal Court Rules and of the Canadian Human Rights Act. Under Rule 1600 and following, an application for judicial review is commenced by an originating notice of motion which must, inter alia, “identify the precise relief being sought,” “set out the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on” and “list the documentary evidence to be used at the hearing.” The notice of motion must be accompanied by an affidavit “verifying the facts relied on by the applicant.” An applicant cannot seek the judicial review of a decision only because he does not like it. He must know and indicate the irregularities which, according to him, vitiate that decision.

Under Rule 1612, a party to an application for judicial review who wishes to rely on material in the possession of the Tribunal that rendered the decision to be reviewed, may make a request for a certified copy of that material. Rule 1612(4) provides that:

Rule 1612. …

(4) The request shall specify the particular material in the possession of the federal board, commission or other tribunal and the material must be relevant to the application for judicial review.

If the material is not relevant, the Tribunal is not obliged to produce it.

A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.

In this case, the decision of the Commission which the respondent seeks to have reviewed was rendered under subsection 44(3) of the Act on the basis of the report prepared by Mr. Fagan and the written submissions sent by the respondent in answer to that report. Section 44 of the Act clearly contemplates that the decision of the Commission[3] be made on the basis of the investigator’s report. This is so because the law presumes that the report of the investigator correctly summarizes all the evidence before him. That presumption must be taken into account in assessing the relevance of the documents requested by the respondent.

The respondent seeks the production of all documents relied on by the investigator in preparing his report. There is nothing in the respondent’s originating notice of motion, in his affidavit or in the other material before us that even casts a doubt on the accuracy or completeness of Mr. Fagan’s report. It follows that the grounds of attack invoked by the respondent in his originating notice of motion must be read and that the relevance of the documents requested must be assessed on the assumption that the report of the investigator is a faithful and complete summary of the evidence before him. On that basis, the production of the documents would clearly serve no useful purpose.

I would allow the appeal and modify the order of the Trial Division by striking out paragraph 3 of that order.

Décary J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: I am in full agreement with the reasons for decision of my brother Pratte J.A., but I wish to add some additional considerations.

Having initiated judicial review proceedings in the Trial Division, the respondent then applied for an order requiring the Canadian Human Rights Commission (the “Commission”) to produce and file certain documents. The Commission consented to the motion, except the request for “all documents relied on by the Human Rights Officer Bob Fagan in preparing the Investigation Report” (Appeal Book, at page 51).

The learned Motions Judge granted the motion, including this request, and ordered the Commission to produce “all documents (other than his notes) relied on by the human rights officer, Bob Fagan, in preparing the investigation report herein … to the extent that they were available and in the Commission’s custody on November 16, 1992. Pursuant to Rule 1612, the Court finds all this material to be relevant” (Appeal Book, at page 66).

The leading judicial authority in this area is Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, in which the Supreme Court held by a 4-2 majority that the Commission’s decision on a complaint was not one required to be on a judicial or quasi-judicial basis but was an administrative decision subject to review only for procedural fairness and not on “the full panoply of the rules of natural justice” (at page 897).

In the course of giving decision for three of the four judges in the majority, Sopinka J. made two statements of relevance to the case at bar. The first had to do with the relationship of an investigator to the Commission (at page 898):

The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others. Although s. 36 [now s. 44] does not require that a copy of the report be submitted to the parties, that was done in this case.

The Motions Judge regarded this passage as determinative of the case at bar, stating as follows (Appeal Book, at page 75):

It is innocuous enough for the applicant to ask for all material before the Commission to be brought before the Court. Such indeed are all documents considered by the investigator, whose proceedings are in law the Commissioner’s proceedings. As was written by Sopinka, J. in the S.E.P.Q.A. passage above, “The investigator, in conducting the investigation, does so as an extension of the Commission.” He is not “independent of the Commission who presents evidence as a witness before the Commission.” By that august reasoning, the documents before the investigator were in effect before the CHRC itself. In order to determine whether the Commission committed an error of law, or exceeded its jurisdiction, it is necessary for the reviewing Court to know what the CHRC had before it to consider and to determine, as it did , that the applicant’s complaint had to be dismissed. But according to the Supreme Court of Canada, the investigator’s proceedings at law merge with those of the Commission, for the former is but an extension of the latter. Those documents, then, are, or could very well be, crucial to the fair exercise of judicial review upon which the parties are now embarked.

In my respectful opinion the learned Motions Judge, for understandable reasons, fell into error in interpreting the passage from Sopinka J. too literally. The investigator, it is true, is not someone independent of the Commission who will present evidence as a witness before it, but an extension of the Commission. Recalling the Motions Judge’s order: “all documents relied upon by the human rights officer … in preparing the investigation report … to the extent that they were available and in the Commission’s custody” emphasis added, I would conclude that the Commission could not be heard to contend that it did not have custody of such documents. In that sense, what is the investigator’s is the Commission’s.

But that is not in my view to say that for all purposes the persons of the investigator and the Commission are to be merged. All the documents were in the Commission’s custody and of easy access, but it could not be said that they were actually before the Commission when it made its decision. To hold otherwise would be to create a limitless legal fiction merging the mostly separate identities of the investigator and the Commission.

What was before the Commission, as matter for decision, was only what the Commission called for. In this case it is obvious from the affidavit of the Secretary of the Commission (Appeal Book, at page 6 ff) that not all of the documents were actually before the Commission. For instance, the Royal Bank of Canada’s appraisals of the respondent’s performance were not in the list of documents before the Commission.

The best proof that Sopinka J. cannot mean what the Motions Judge believed is his own statement later in Syndicat (at page 902):

The Commission was entitled to consider the investigator’s report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. [Emphasis added].

Only the report of the investigator and the representations of the parties are necessary matter for the Commission’s decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase, as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report. These are two different moments of the Commission’s life, distinct moments not to be obliterated by a legal fiction.

Further, it seems to be the obvious intent of section 44 of the Canadian Human Rights Act that members of the Commission need not examine the complete record of the investigation, but are intended to rely on the report alone. The provision reads in part as follows:

44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.

(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied

(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b) that the complaint could more appropriately be dealt with initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report referred to in subsection (1), the Commission

(a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and

(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or

(b) shall dismiss the complaint to which the report relates if it is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or

(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

(4) After receipt of a report referred to in subsection (1), the Commission

(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and

(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).

Everything happens on the receipt of a report. The report is not only the trigger of Commission action but is also the only document referred to as the basis for a Commission decision as to how to proceed.

The same conclusion emerges from decisions of this Court.

For example in Whiteman v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4944 (F.C.A.), par. 37973, Marceau J.A. stated squarely that “it was indeed on the basis of the report of the investigator and the representations of the parties that the [Canadian Human Rights] Commission was called on to make its decision.”

In my view, therefore, the appeal must be allowed, and the matter disposed of as provided by Pratte J.A.

Décary J.A.: I agree.

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