Federal Court Decisions

Date: 20031211

Docket: T-126-01

Citation: 2003 FC 1459

Ottawa, Ontario, this 11th day of December, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE          

BETWEEN:

                                                              RONALD S. MacLEAN

                                                                                                                                                       Applicant

                                                                              - and -

THE CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                                   Respondent

- and -

MARINE ATLANTIC INC.

Respondent

- and -

CANADIAN AUTOWORKERS (CAW)

Respondent

APPLICATION UNDER SECTION 18 OF THE FEDERAL COURT ACT,

R.S.C. 1985, c. F-7, AS AMENDED

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review in respect of the decision of the Canadian Human Rights Commission (the "Commission"), dated December 20, 2000, wherein the applicant's complaint against Marine Atlantic Inc. and Canadian Auto Workers ("CAW") was dismissed.

[2]                 The applicant requests an order:

1.          Quashing the Commission's decision and remitting the matter back for reconsideration in accordance with the Commission's internal complaint process; and

2.          Declaring that treatment of the sort complained of by the applicant is discriminatory.

Background

Introduction

[3]                 The applicant was employed with Marine Atlantic Inc. ("Marine Atlantic") as an electrician. He was also a member, past president and local chairman of CAW, Local 318.

[4]                 The respondent, Marine Atlantic, operated a ferry service between Borden, Prince Edward Island and Cape Tormentine, New Brunswick.

[5]                 The respondent, National Automobile, Aerospace, Transportation and General Workers Union of Canada ("CAW") is the certified bargaining agent for licensed and unlicensed vessel personnel employed by Marine Atlantic on the ferry service.

[6]                 In October 1993, Marine Atlantic gave notice to workers that it planned to cease operations in 1997 when the Prince Edward Island Confederation Bridge would be completed.    In anticipation of the discontinuance of the ferry service, Marine Atlantic began negotiations with CAW and other unions to attempt to provide a job loss compensation package for the employees adversely affected by the closure of the ferry service. A Special Agreement (the "Agreement") was adopted on July 4, 1996 between Marine Atlantic and the CAW.

[7]                 On July 1, 1997, Marine Atlantic ceased operation of its ferry service. The Agreement provided compensation to laid-off employees based on their years of service and on the number of years remaining until their age of early or normal retirement. The Agreement made distinctions among and between different age groups in allocating separation benefits. Marine Atlantic and the CAW reasoned that the closer to early or normal retirement an employee was at the time of lay-off, the less they would need a monthly bridging allowance because the employees' pension benefits would compensate for any adverse effects of the separation of employment. The farther from the age of early or normal retirement, the longer the period of monthly bridging benefits provided to the employees under the Agreement.

[8]                 The applicant is one of the employees whose job was eliminated with the cessation of the ferry service due to the completion of Confederation Bridge. At the time, the applicant was 50 years old with 28 years of service. On July 10, 1997, the applicant received 51 weeks of pay as separation allowance and commencement of a bridging benefit to age 55.

[9]                 The applicant was among approximately 50 former Marine Atlantic employees who filed complaints with the Canadian Human Rights Commission alleging that the terms of the Agreement made discriminatory distinctions based on age.

[10]            On February 18, 1997 and June 4, 1998, the applicant filed three complaints with the Commission.

[11]            In the complaint dated February 18, 1997, the applicant alleged that Marine Atlantic had discriminated against him by entering into an agreement relating to employment which deprived him and others of separation compensation on the basis of age contrary to section 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act").

[12]            In another complaint dated the same day, the applicant alleged that CAW had discriminated against him by limiting, segregating, classifying or otherwise acting in a way that deprived him of, or limited, his separation compensation on the basis of age contrary to section 9 of the Act, and by entering into an agreement relating to employment that deprived him of separation compensation on the basis of age contrary to section 10 of the Act.

[13]            In a complaint dated June 4, 1998, the applicant further alleged that Marine Atlantic had discriminated against him by differentiating adversely against him on the basis of age contrary to section 7 of the Act.

[14]            The Commission investigated the complaints and provided to the parties an investigation report, dated December 21, 1999 and a supporting actuarial report. Supplementary investigation reports dated June 12, 2000 and August 21, 2000, as well as a supplementary actuarial report dated July 13, 2000 were also provided to the parties.

[15]            On or about January 12, 2000, the applicant made written submissions. The applicant also submitted a letter dated September 13, 2000 and further correspondence dated November 12, 2000.

[16]            By letter dated December 20, 2000, the Commission issued its decision wherein it dismissed the applicant's complaint. The letter states, in part:

. . .

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 complaints pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act because:

the differentiation was justifiable in the circumstances. It was not a discriminatory practice for the respondent to provide different categories of benefits to those employees who were more likely to be affected than others.

The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaints very carefully before arriving at this decision.

. . .

[17]            This is the judicial review of the decision of the Commission to dismiss the applicant's complaints.

Applicant's Submissions

[18]            The applicant's grounds for the application for judicial review are that in deciding to dismiss his complaints, the Commission:

1.          Failed to observe the principles of natural justice;

2.          Failed to observe the principles of procedural fairness;

3.          Based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

4.          Erred in law in finding that it was not discriminatory to treat employees of different ages differently; and

5.          Such further and other grounds as may become apparent prior to the date of the hearing.

[19]            The applicant submits that the Commission's reasons for dismissing his complaints were not sufficient.

[20]            The applicant also submits that the Commission failed to consider all of the material that he presented to it.

[21]            The applicant submits that the Commission withheld certain documents from him, that is, it did not disclose to him all of the documents it considered.

[22]            The applicant submits that the Commission erred in saying that the differentation between employees was justifiable in the circumstances.

[23]            The applicant further submits that the investigator's report dated December 21, 1999 supports his allegations 'that they offered a separation package based on age that varied package[s] greatly."

Marine Atlantic's Submissions

[24]            The respondent, Marine Atlantic, submits that the appropriate standard of review of the Commission's decision is reasonableness simpliciter.

[25]            Marine Atlantic submits the Commission was not under a duty of "cross-disclosure" and that material submitted by one party in the complaints process is only provided to the other party where it contains new information or attacks of credibility which call for rebuttal. It is submitted that the Commission may at its discretion decide which material is to be circulated amongst parties to a complaint. It is submitted that the applicant has not proven that the Commission considered any material which was not provided to him or was not addressed in the investigation report and that the record actually discloses that any materials considered by the Commission were provided to the applicant for comment. It is submitted that the Commission conducted itself in a manner consistent with the principles of natural justice and procedural fairness.

[26]            Marine Atlantic submits that the Commission provided adequate reasons for its decision. Marine Atlantic submits that the Commission was not legally obligated to provide the applicant with additional reasons for its decision as the applicant did not request them. Furthermore, as the applicant did not request reasons, it is submitted that the Commission did not violate the rules of procedural fairness if it is found that it provided inadequate reasons for its decision to dismiss the applicant's complaint.

[27]            Marine Atlantic submits that the Commission did not commit a reviewable error when it reached a conclusion inconsistent with the recommendations of the investigation report. It is submitted that the Commission was not required to accept the recommendations contained within the report.

[28]            Marine Atlantic submits that the Commission did not err in law by not finding that the severance Agreement constituted discrimination on the basis of age and by failing to find that a substantial wrong occurred. It is submitted that the Court should defer to the expertise of the Commission in matters where questions of fact involving discrimination are at issue.

CAW's Submissions

[29]            CAW submits that the appropriate standard of review of the Commission's decision is reasonableness.

[30]            CAW submits that the Commission did observe appropriate principles of natural justice and procedural fairness in reaching its decision to dismiss the applicant's complaints. It is submitted that the content of the duty of fairness required of the Commission in this case is reasonably limited.

[31]            CAW submits that the absence of reasons is not a breach of procedural fairness because the Act does not impose on the Commission a statutory duty to provide reasons for dismissing complaints, rather, the Commission is only required to give notice of its decision in writing. Despite this, it is submitted that the Commission did in fact provide sufficient reasons in the circumstances of this matter.

[32]            CAW submits that based on the evidence there was a rational basis upon which the Commission could conclude that it was not a discriminatory practice for the respondent to provide different categories of benefits to those employees who were more likely to be affected by lay-off than others. It is submitted that there was also a rational basis upon which the Commission could take into account and consider the timing and availability of pension benefit retirement income for and with respect to different groups based not only on their years of service, but their respective age as well. It is submitted that if a worker was closer to receiving a guaranteed pension benefit, this rationally could diminish his or her need for a separation allowance, or other compensation. It is therefore submitted that the Commission's decision was reasonable.

Issues

[33]            The issues are as follows:

1.          What is the appropriate standard of review of the Commission's decision to dismiss the applicant's complaints?

2.          Has the Commission failed to observe the principles of natural justice or procedural fairness by failing to provide the applicant with a copy of all materials it considered in reaching its decision?

3.          Has the Commission breached the rules of procedural fairness or natural justice by failing to provide the applicant with sufficient reasons for its decision to dismiss the applicant's complaints?

4.          Has the Commission based its decision on erroneous findings of fact or made a capricious and perverse decision without regard to the evidence before it?

5.          Has the Commission erred in law by not finding that the severance agreement between Marine Atlantic and CAW constituted discrimination on the basis of age and by failing to find that a substantial wrong had occurred?

Relevant Statutory Provisions

[34]            The relevant sections of the Canadian Human Rights Act, supra state:

7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. 9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination (a) to exclude an individual from full membership in the organization;

7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects: a) de refuser d'employer ou de continuer d'employer un individu; b) de le défavoriser en cours d'emploi. 9. (1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour une organisation syndicale: a) d'empêcher l'adhésion pleine et entière d'un individu;

Analysis and Decision

[35]            Issue 1

What is the appropriate standard of review of the Commission's decision to dismiss the applicant's complaints?

In Holmes v. Canada (Attorney General), [1997] F.C.J. No. 577 (T.D.) (QL) Tremblay-Lamer J. wrote at paragraphs 29 to32:

The standard of review to be applied to decisions of a Human Rights Commission was addressed by the Supreme Court of Canada in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. The issue before the Court was whether the courts should defer to the views of a human rights tribunal not only on questions of fact, but also on questions of law. La Forest J., writing for the majority, answered that question in the negative. He concluded that the proper standard on questions of law is one of correctness:

. . . The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability. . . .

In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 and in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the Supreme Court reaffirmed the position it had adopted in Mossop. . . .

The determination of the appropriate legal test for adverse effect discrimination is a question of law which will be reviewable on a standard of correctness. Accordingly, the Commission's decision on that issue must be correct.

On the other hand, decisions of the Commission on questions of fact will only be reviewable on a standard of reasonableness. In Ross, supra, the Court indicated that "a finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate." Applying the same reasoning to the facts of the case at hand, I would say that the Commission's finding that no adverse effect discrimination occurred is just such a finding impregnated with facts and which ought not to be disturbed unless it can be characterized as unreasonable.

[36]            The Supreme Court of Canada stated in Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 302 N.R. 34, 2003 SCC 19, that in order to determine the appropriate standard of review of administrative decision-makers, the pragmatic and functional approach must be applied. Four contextual factors must be balanced to determine the standard of review: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation and the provision in particular; and (4) the nature of the question - law, fact or mixed law and fact.

[37]            The presence or absence of a privative clause or statutory right of appeal

The Act does not contain a privative clause or a statutory right of appeal. Silence in the statute is neutral and does not suggest a more or less searching standard of review.

[38]            The expertise of the tribunal relative to that of the reviewing court on the issue in question

The issue in question is whether to dismiss the applicant's complaint as not warranting any further inquiry, having regard to all the circumstances. In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the Supreme Court of Canada stated at paragraph 29 that "[a] finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate". In this case, the same reasoning would apply with respect to the Commission's fact-finding in screening complaints based on an investigation report. The Commission's greater expertise in fact-finding and screening complaints favours greater deference on judicial review.

[39]            The purpose of the legislation and the provision in particular

Section 2 of the Act states the purpose of the Act to be:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

[40]            In carrying out this broad statutory purpose, the Commission has been empowered with the discretion to dismiss complaints where it is satisfied that further inquiry is not warranted. As pointed out by the Federal Court of Appeal in Bell Canada v. Communications, Energy and Paperworker's Union of Canada, [1999] 1 F.C. 113 (C.A.), the choice of language in section 40 of the Act leaves no doubt that Parliament intended reviewing courts to refrain from intervening lightly in the screening decisions of the Commission. This factor also favours deference to the Commission's decision.

[41]            The nature of the question - law, fact or mixed law and fact

The issue to be determined in this case is whether the applicant's complaints warranted further inquiry. The Commission dismissed the complaints as unfounded because, based on its investigation, the Agreement between Marine Atlantic and CAW was not discriminatory. Although this issue is fact-driven, it involves applying facts to the statutory scheme, which is a question of mixed fact and law. The discretionary nature of the complaint screening function and the fact-intensive nature of the question call for greater deference to the Commission's decision.

[42]       Balancing all of these factors, it is my view that the Commission's decision in this case should be reviewed on a standard of reasonableness simpliciter. This view accords with recent jurisprudence from the Federal Court of Appeal (see Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4).

[43]            Issue 2

Has the Commission failed to observe the principles of natural justice or procedural fairness by failing to provide the applicant with a copy of all materials it considered in reaching its decision?

The applicant stated as a ground for his application for judicial review that the Commission failed to observe the principles of natural justice and procedural fairness. The applicant's allegation appears to be that the Commission did not disclose to him all of the materials upon which it relied in deciding to dismiss his complaints. The investigator appointed by the Commission issued an initial report on December 21, 1999. The Commission forwarded a copy of the report to the parties for their responses. The parties responded. The Commission also issued supplemental reports to which responses were also received from the parties. It is not entirely clear whether or not all of the parties' responses were cross-disclosed to the parties (i.e. the respondents' responses given to the applicant and the applicant's responses to the respondents).

[44]            The issue of cross-disclosure was discussed by the Federal Court of Appeal in Mercier v. Canada (Human Rights Commission) (1994), 167 N.R. 241 (F.C.A.). Décary J.A. stated at paragraph 18:

I am not saying that the rules of procedural fairness require that the Commission systematically disclose to one party the comments it receives from the other; I am saying that they require this when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the stage of the investigation, properly speaking. I recognize that it will not always be easy to determine when comments cease to be "argument", to use the words of Sopinka J., and become new allegations that must be brought to the attention of the other party; if the Commission were to decide to continue its general practice of not disclosing comments, it will still have to examine each case individually and practise great vigilance so as to avoid a party in a particular case, such as the case at bar, not receiving disclosure of comments that are such as should have been brought to that party's attention. It would seem to me that it would be in the Commission's interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. Otherwise, and here I am adopting the views of Mahoney J. in Labelle, the Commission will always be exposed to an application for judicial review "because it will always be prima facie arguable that the complainant was not made aware of, and hence was denied a fair opportunity to meet, the whole of the contrary case." [footnotes omitted]

On this basis, the Commission is only required to disclose to one party comments it receives from another party when the comments contain new facts not in the investigation report. While it might be prudent to require the parties to disclose their comments so as to avoid future criticism, the Court of Appeal has stated that such disclosure is not required by the rules of procedural fairness. I have reviewed the parties' comments in this case and I am of the view that the comments do not contain facts that differ from the investigation reports. I would also note that the Commission forwarded documents to the Court with a letter dated March 2, 2001 which certified that, subject to claims of solicitor-client privilege, those documents were the complete record before the Commission when it decided to dismiss the applicant's complaints. With the exception of minor additional correspondence filed by CAW, I have not been persuaded that any documents were missing from the Commission's record. I am satisfied that the Commission did not breach the duty of procedural fairness owed to the applicant in the circumstances.

[45]            Issue 3

Has the Commission breached the rules of procedural fairness or natural justice by failing to provide the applicant with sufficient reasons for its decision to dismiss the applicant's complaints?

The applicant alleges that the Commission's reasons lack substance. At paragraph 21 of his affidavit he states:

The reasons that the CHRC used to throw out my complaints (A44217, B47452, B44842) lacks substance to just say and I quote:

The difference was justifiable in the circumstances, it is NOT a discriminatory practice to provide different categories of benefits to those employees WHO are likely to be more AFFECTED than others. (emphasis in original)

[46]            Prior to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, there was some debate about the necessity of administrative decision-makers providing reasons. However, the Supreme Court of Canada in Baker, supra held that in certain circumstances "some form of reasons should be required" (at paragraph 43). L'Heureux-Dubé J. discussed the requirement for some form of written reasons and the nature of the reasons in the following terms (at paragraphs 43 to 44):

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision.

It should be noted that there was a request by the applicant for written reasons in Baker, supra.    Challenging administrative decision-makers for failing to provide written reasons was commented on by the Federal Court of Appeal in Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (C.A.) at paragraphs 5, 6 and 7:

In Liang v. The Minister of Citizenship and Immigration [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:

However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.

We agree with Evans J. before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.

A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.

We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.

In the present case, reasons for its decision were provided by the Commission in its December 20, 2000 letter to the applicant. The issue in this case is whether or not the reasons were sufficient.

[47]            The Commission's reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Borden - Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.

[48]            Issue 4

Has the Commission based its decision on erroneous findings of fact or made a capricious and perverse decision without regard to the evidence before it?

The applicant states this issue as ground (c) of his judicial review application. The applicant includes the factual basis for this ground as paragraphs 3 to 7 of his affidavit. The Commission in its December 20, 2000 letter to the applicant stated that it had reviewed the investigator's reports released to the parties and all responses submitted in response to the reports. The applicant stated that he has a number of computer disks which contain information about early formulations of the Agreement and that the information on the computer disks plus other documents support his complaints.

[49]            The applicant also states that the initial investigation report favoured his allegation that the Agreement discriminated on the basis of age.

[50]            It is true that the investigation report dated December 21, 1999 favoured the applicant's complaints being the subject of further inquiry. However, the Commission is not bound to adopt the investigator's report since subparagraph 44(3)(b)(i) of the Act, permits it to dismiss a complaint if it is satisfied, having regard to all of the circumstances, an inquiry is not warranted. In Bradley v. Canada (Attorney General) (1997), 135 F.T.R. 105 (T.D.), a case where the Commission's decision differed from the action recommended by the investigator, MacKay J. stated at paragraph 53:

It is true that the CHRC did not accept the investigator's recommendation, that is, that a conciliator be appointed, but the Commission is not bound by any such recommendation. The applicant was clearly advised of this when the investigation report was sent to him for comment. The Commission's decision is not in error because it chose not to follow the investigator's recommendation.

[51]            As I have noted earlier, the Commission stated in its decision letter that it considered the investigation report, and all submissions filed in response to the report. It is not necessary that the Commission itemize every document it considered in reaching its decision. The Federal Court of Appeal in Bell Canada v. Communications, Energy, and Paperworker's Union of Canada, supra, stated at paragraph 38 (per Décary J.A.):

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

I have reviewed the materials considered by the Commission in reaching its decision and I cannot conclude that the Commission based its decision on erroneous findings of fact or made a capricious and perverse decision without regard to the evidence before it.

[52]            Issue 5

Has the Commission erred in law by not finding that the severance agreement between Marine Atlantic and CAW constituted discrimination on the basis of age and by failing to find that a substantial wrong had occurred?

The applicant stated this ground at page 4 of his application record, in paragraph (d). In Holmes, supra, Tremblay-Lamer J. stated that a finding that adverse-effect discrimination had not occurred was a question "impregnated with facts". As indicated in my standard of review analysis, the fact-intensive nature of the Commission's decision to dismiss the applicant's complaints, among other considerations, leads me to apply a standard of reasonableness simpliciter. Here the Commission concluded that the implementation of the Agreement did not constitute discrimination based on age. I have reviewed the material presented on the application for judicial review and I am of the opinion that the decision of the Commission to dismiss the complaints was one of the decisions reasonably open to it. The decision to dismiss the applicant's complaints had a rational basis. It is not the function of a judge sitting on judicial review who is applying the standard of reasonableness to interfere with the Commission's decision where it was one of the decisions reasonably open to the Commission.

[53]            I indicated to the parties at the hearing that my decision would include in relation to 20 pages of documents presented by the applicant to the Court at the hearing of this matter. Page 1 of these documents is a letter to the case management judge dated August 7, 2002. I am not prepared to make this letter a part of the record for this judicial review application as these matters could have been addressed prior to the preparation of the applicant's application record.

[54]            With respect to the other pages presented at the hearing before me, it appears that they are documents from another judicial review application and as such, are not part of this judicial review application. These pages, as well, could have been addressed at the time the applicant's record was finalized and filed. Accordingly, I would not allow these remaining pages to be part of the record in this application either.

[55]            The application for judicial review is therefore dismissed.

[56]            I am of the view that in light of the overall circumstances of this case, an award of costs will not be made.

ORDER

[57]            IT IS ORDERED that:

1.          The application for judicial review is dismissed.

2.          No award of costs will be made.

                                                                                    "John A. O'Keefe"          

                                                                                                           J.F.C.                    

Ottawa, Ontario

December 11, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-126-01

STYLE OF CAUSE: RONALD S. MacLEAN

- and -

THE CANADIAN HUMAN RIGHTS COMMISSION

MARINE ATLANTIC INC.

CANADIAN AUTOWORKERS (CAW)

                                                         

PLACE OF HEARING:                                   Charlottetown, Prince Edward Island

DATE OF HEARING:                                     Thursday, June 12, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Thursday, December 11, 2003

APPEARANCES:

                                     Ronald S. MacLean, Self-represented

FOR APPLICANT

John MacPherson, Q.C.

FOR RESPONDENT

Marine Atlantic Inc.

Lewis N. Gottheil

FOR RESPONDENT

Canadian Autoworkers

SOLICITORS OF RECORD:

                                     Ronald S. MacLean, Self-represented

Murray Harbour, Prince Edward Island

FOR APPLICANT

Patterson Palmer Hunt Murphy

Halifax, Nova Scotia

FOR RESPONDENT

Marine Atlantic Inc.

Lewis N. Gottheil, Counsel

Toronto, Ontario

FOR RESPONDENT

Canadian Autoworkers