In a recent judgment, the Federal Court overturned a decision of the Canadian Human Rights Commission, and delivered a strong rebuke of the Commission’s continued mishandling of a human rights complaint. This judgment affirms the importance of a complainant’s right to be heard, and calls upon the Commission to improve its procedures.
The complainant, Michele Bergeron, had filed two human rights complaints with the Canadian Human Rights Commission. First, she had complained that her employer failed to accommodate her on the basis of her disability. Later, she complained that the employer retaliated against her for filing the first complaint. Both complaints were initially dismissed by the Commission. However, the Federal Court overturned the dismissal of the retaliation complaint, because of a glaring error in the Commission’s procedure. The Commission typically prepares an investigation report regarding a human rights complaint, which is submitted, along with the parties’ comments, to the Commissioner for a decision. In this case, the Commission had prepared two separate reports, one for each complaint. However, the Commission’s decision dismissing the retaliation complaint quoted from the report for the first complaint.
The Federal Court found that the decision, relying on reasons related to a completely separate complaint, could not stand. The retaliation complaint was therefore returned to the Commission, where it was dismissed a second time. Ms. Bergeron filed a second application for judicial review to the Federal Court, alleging that, once again, the Commission had committed significant procedural errors in her case.
Federal Court judgment
In Bergeron v Canada (Attorney General), the Federal Court once again struck down the Commission’s decision, on the basis that the Commission had committed multiple serious breaches of procedural fairness. First, the Court found that the Commission rendered its decision based on an inaccurate record: the Commission had included in the record the Applicant’s submissions from the first complaint, rather than her submissions regarding the retaliation complaint. The Court found this to be a clear breach of fairness: “one may with considerable confidence say that little if anything is more fundamental in administrative law than the requirement that a decision-maker hear both sides of a dispute. Yet here the Commission breached this fundamental rule of natural justice.”
Second, the Court found that the Commission had also failed to review a final set of submissions filed by the Applicant, because those submissions had expressly identified the error in the record. The Court noted that, if the Commission had reviewed the Applicant’s final submissions, “it is inconceivable that, in such circumstances, the Commission would continue to consider – let alone decide – this case without first obtaining the Applicant’s missing submissions on the case.” On the basis of these fundamental errors, the complaint was sent back to the Commission for reconsideration.
Canadian Human Rights Commission criticized
In his judgment, the Honourable Justice Brown had some strong words for the Commission regarding its overall handling of Ms. Bergeron’s complaint. He noted the uncontested evidence that a member of the Commission’s staff had told Ms. Bergeron, when the complaint was referred back to the Commission, that the Commission would simply be correcting a “cut and paste” error. He found that “these comments do not describe conduct I would expect from staff of the Commission”, and stated: “Commission staff should avoid appearing dismissive as was the case here.”
Justice Brown also emphasized that the Commission’s decision regarding this complaint has now been struck down twice for procedural unfairness, noting: “It appears to me, with all due respect, that there is room for improvement in the Commission’s Early Resolution procedures”. Regarding the third consideration of the complaint, he admonished the Commission: “It should be done properly this time.” This judgment provides an important reminder that the Commission’s gate-keeping role impacts complainants’ fundamental rights, and therefore the Commission must perform that role with diligence and care.
The Applicant was represented in this application by Amanda Montague-Reinholdt of RavenLaw.