Date: 19980910
Docket: T-164-98
BETWEEN:
ALI TAHMOURPOUR
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
CAMPBELL, J.:
[1] In his complaint to the Canadian Human Rights Commission ("CHRC"), Mr. Tahmourpour alleged that the Department of National Revenue discriminated against him on the grounds of his national or ethnic origin and race by failing to provide him with a harassment-free work environment, by unjustly criticizing his work performance, and by forcing him to resign his position as a student Customs Inspector on August 4th, 1995.
[2] Respecting this complaint, the December 23, 1997 decision of the CHRC is as follows:
| "I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint against Department of National Revenue (E35339). |
| Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided to dismiss the complaint. The reasons for the Commission's decision are as follows: |
| Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because: |
| the evidence does not support the complainant's allegations that the respondent failed to provide him with a harassment free work environment and that it treated him in an adverse differential manner based on his national or ethnic origin or his race. |
| the evidence indicates that several incidents occurred between the complainant and co-workers and that these incidents were investigated by the respondent and that two co-workers were counselled concerning their behaviour. The evidence does not indicate that these incidents were related to the complainant's national or ethnic origin or race. |
| the evidence indicates that the complainant was reprimanded for his failure to follow procedure and, on one occasion, for responding in an insubordinate manner to a supervisor. This resulted in the complainant being given a poor performance appraisal. |
| The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaint very carefully before arriving at this decision. |
| For your information, either party to a complaint can ask the Federal Court, Trial Division, to review a Commission decision under section 18.1 of the Federal Court Act. The application to the Court must normally be filed within 30 days of receipt of the Commission's decision. |
[3] Mr. Tahmourpour represented himself at the judicial review hearing and did a capable job of presenting his arguments about where he believes the CHRC was in error in its decision. Mr. Tahmourpour's primary argument is that the CHRC failed to properly consider all the evidence. In elaborating on this argument, Mr. Tahmourpour emphasized that the CHRC decision does not quote the evidence upon which it is based, seems to consider only the Respondent's position, does not quote facts, does not answer facts with facts, is short, very vague, very general, and for all these reasons, does not give sufficient reasons for the outcome.
[4] While the decision is indeed brief, the question is whether the discretion exercised is in error. Having considered the decision, the Investigation Report upon which it is based, and the arguments of both Mr. Tahmourpour and counsel for the Respondent, I am of the opinion that no reviewable error exists in this case.
[5] The Canadian Human Rights Act R.S.C. [1985] c.H-6 (the "CHRA") makes complaint procedures available to any individual who has reasonable grounds to believe that he or she has been a victim of another person"s discriminatory practises.
[6] By operation of s.41(1) and s.43(1) of the CHRA, the CHRC has discretion to refer a complaint to an investigator for investigation. Once this discretion is so exercised, under s.43(1), the provisions of s.44(1) apply:
| 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 review procedures otherwise reasonably available, or |
| (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. |
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). |
[7] The well understood standard established by this Court for a proper investigation is neutrality and thoroughness. Respecting this test, and the deference to be shown to the CHRC in exercising it discretion to investigate, Wetston J. in Jennings v. Canada (Minister of National Health and Welfare) (1995), 97 F.T.R. 10 (T.D.) at 29 quotes Nadon J. in Slattery v. Canadian Human Rights Commission [1994] 2 F.C. 574 at 600 and 605 as follows:
| In determining the degree of thoroughness of investigation required to be in accordance with the rule of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interest in maintaining a workable and administratively effective system. |
...
| Defence must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example, where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court of Canada in the case of Canada v. Mossop. |
...
| The fact that the investigator did not interview each and every witness that the Applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. |
[8] The test with respect to the thoroughness required of an investigation by the CHRC is set out in the following passage of Dubé, J.'s decision in Miller v. Canadian Human Rights Commission, (1996) 112 F.T.R. 195 at 201:
| The SEPQA decision has been followed and expanded upon by several Federal Court decisions. These decisions are to the effect that procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal. The investigations conducted by the investigator prior to the decision must satisfy at least two conditions: neutrality and thoroughness. In other words, the investigation must be conducted in a manner which cannot be characterized as biased or unfair and the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response. |
[9] In this judicial review, the Investigation Report is extremely thorough. During the course of the hearing Mr. Tahmourpour agreed that his very detailed position on the circumstances, which forms the grounds of his complaint, is accurately quoted within the Investigation Report. Indeed, the Report not only provides Mr. Tahmourpour's view of the facts but also provides a careful analysis of the position of the Respondent. In addition to considering details of the evidence from the written material provided by both Mr. Tahmourpour and the Respondent, the investigator interviewed six witnesses. As a result, I find that the Investigation Report certainly meets the legal test cited above.
[10] There is absolutely no suggestion in this case that the Investigation Report or the CHRC's decision was anything but neutral. There is no suggestion of any breach of due process. The decision accurately applies the contents of the Investigation Report.
[11] Accordingly, as I can find no reviewable error, Mr. Tahmourpour's application is dismissed.
"Douglas R. Campbell"
Judge
Edmonton, Alberta
September 10, 1998.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-164-98
STYLE OF CAUSE: Ali Tahmourpour v. The Minister
| of National Revenue and The Attorney General of Canada |
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 9th, 1998
REASONS FOR ORDER
AND ORDER OF THE COURT: Campbell, J.
APPEARANCES:
Ali Tahmourpour for the Applicant
Lorraine Neill for the Respondent
SOLICITORS OF RECORD:
Ali Tahmourpour
Edmonton, Alberta for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent