COURT FILE NO.: 252/06 and 185/07
DATE: March 14, 2008
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: NURI JAZAIRI (Applicant)
and
ONTARIO HUMAN RIGHTS COMMISSION (Respondent)
BEFORE: Justices Pitt, Molloy and Murray
COUNSEL: Nuri Jazairi, in person
Cathy Pike for the Respondent
HEARD: February 12, 2007
E N D O R S E M E N T
Bacground
[1] The Applicant, Dr. Nuri Jazairi is an Associate Professor in the Economics Department of York University. He is a Muslim Arabic person, originally from Iraq. On July 7, 2000, he filed a complaint with the Ontario Human Rights Commission (“the Commission”) alleging York University and five of its faculty members discriminated against him because of his race, place of origin, ethnic origin, religion and creed and that he had been the subject of reprisals because of earlier human rights complaints filed. In 2001, he added a further complaint of reprisal based on his 2000 complaint.
[2] After conducting an investigation, Commission staff submitted the case to the Commissioners for a decision under s. 36 of the Ontario Human Rights Code (the Code) as to whether to refer the complaint to the Tribunal for a full hearing. On September 28, 2004, the Commission decided not to refer the complaint to the Tribunal, and Dr. Jazairi was so advised on October 4, 2004.
[3] On October 18, 2004, pursuant to s. 37 of the Code, Dr. Jazairi requested a reconsideration of the Commission’s decision. A further investigation ensued. On May 29, 2006, concerned about the delay, Dr. Jazairi commenced a judicial review application (Action 252/06) seeking relief in the nature of mandamus requiring the Commission to expedite the processing of his complaint and also seeking to recover all costs incurred by him in the course of the Commission’s processing of his complaint from 2000.
[4] In the meantime, the staff report following the reconsideration investigation was released to the parties on June 6, 2006. Submissions were received from the parties and the matter was placed on the Commission agenda for decision in July 2006. At its July meeting, the Commission decided to uphold its original decision not to refer the case to the Tribunal. Effectively, this was the end of Dr. Jazairi’s complaint.
[5] By July 18, 2006, when the mandamus application came before a single judge of the Divisional Court on an urgent basis, the Commission reconsideration decision had already been made, although it had not yet been received by the parties. In these circumstances, Then J. declined to hear the application and transferred it to be heard by a full panel.
[6] On April 20, 2007, Dr. Jazairi commenced a second judicial review application (Action # 185/07) seeking to quash the Commission’s decisions under s. 36 and 37 of the Code. Those applications were heard together before us.
Adequacy of the Reasons
[7] The Commission gave written reasons for its two decisions. The extent to which detailed reasons are required from a tribunal will vary according to the nature of the tribunal and the nature of the function being performed by that tribunal. The Commission had no obligation to conduct a full hearing and was not performing a role akin to that performed by a court in adjudicating between the competing rights of two parties. The Commission was performing a gate-keeping role. All that is required of its reasons is that they be sufficient for the parties and for this Court to understand the basis for the Commission’s decisions. The reasons provided by the Commission for both decisions were succinct. However, they were sufficient to enable us to discern the basis upon which the Commission made both decisions. This is particularly the case when the reasons are considered in light of the staff reports before the Commission: Gismondi v. Ontario Human Rights Commission (2003), 169 O.A.C. 62 at para 38 (Div.Ct.); Batson v. Ontario Human Rights Commission at para 27 (Ont.Div.Ct.). It is not necessary that the Commission, in its reasons, review and comment on every single piece of evidence or issue raised by Dr. Jazairi. It is apparent from the reasons that the Commission appreciated Dr. Jazairi’s position on the issues; it simply found no evidence to conclude that anything that occurred to him was as a result of a prohibited ground of discrimination.
Rationality of Commission’s Decision Under ss. 36 and 37
[8] In exercising its jurisdiction under ss. 36 and 37, the Commission was acting within its core jurisdiction in a screening process to determine whether a full Tribunal hearing was “warranted”. The standard of review for such decisions requires the most deferential standard of “patent unreasonableness”. The reviewing court may only interfere if the decision can be said to be “evidently not in accordance with reason” or “clearly irrational”: Losenno v. Ontario Human Rights Commission (2005), 260 D.L.R. (4th) 298 (C.A.); Pieters v. University of Toronto (2003), 170 O.A.C. 180 at 187 (Div.Ct.), leave to appeal denied, [2003] O.J. No. 3179 (C.A.); CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at 1004.
[9] We are not persuaded that the Commission’s decisions were clearly irrational. In our view, there was material before the Commission from which it could rationally conclude that none of the grounds prohibited under the Code was a factor in York University’s treatment of Dr. Jazairi was not based on any ground prohibited under the Code. Its decisions in this regard were rational and supported by the material before it, including the extensive material filed by Dr. Jazairi. We see no basis to interfere with the Commission’s decisions.
Investigation and Attempted Settlement
[10] The Commission has a statutory duty to investigate a complaint and to attempt to effect a settlement between the parties before making a decision under s. 36 of the Code. The Commission’s investigation must be conducted in good faith. There is nothing to support any finding that this was not done here. It is not the role of this Court to police the adequacy of investigations; that is a role best left to the Commission. As long as there was no failure to investigate obviously crucial evidence, a reviewing court will not interfere: Slattery v. Canada (Human Rights Commission), [1994] F.C.J. No. 181. In this case, we see no breach of this standard by the Commission.
[11] It is not for the Court to determine precisely how much effort should be devoted to attempting to reach a settlement between the parties. In this case, the Commission approached the respondents about settlement and was advised that they were not interested in any settlement proposal. The respondents simply wanted the Commission to deal with the complaints. In the face of this position, the Commission determined that there was no point exploring Dr. Jazairi’s position on settlement. It was clear to the Commission, given the position of the parties, that settlement discussions would not be fruitful. That is a decision that is entirely up to the Commission. It did not lose jurisdiction by taking this sensible approach.
Procedural Unfairness
[12] Dr. Jazairi alleges a breach of natural justice and procedural unfairness because the Commission staff required him to file a six page summary of his complaint and then did not provide the Commissioner’s with the full version of his complaint in their package of materials to be considered on the s. 36 decision, providing instead the summary. There is no merit to this submission. In addition to the summary of Mr. Jazairi’s complaint, the Commission had the investigator’s case summary and Mr. Jazairi’s 50-page response to that case summary. The details of Mr. Jazairi’s complaint were fully set out in the materials before the Commission.
[13] In any event, the full version of the complaint (40 pages of text, along with 67 exhibits, for a total of over 150 pages) was placed before the Commission on the reconsideration request, along with substantial other material, and the Commission still reached the same conclusion. Therefore, there was no prejudice to Mr. Jazairi even if the failure to include the full complaint at the s. 36 stage was a breach of natural justice, which we do not find to be the case.
[14] Dr. Jazairi was given a full opportunity to put his position before the Commission before it made its decisions. We find no breach of natural justice of procedural fairness in this regard.
Delay
[15] The length of time it took the Commission to process Mr. Jazairi’s complaint was inordinate. The complaint was received on July 7, 2000 and the Commission’s final decision under s. 37 was made in July 2006 – a total of six years. To her credit, counsel for the Commission did not seek to persuade us that this was an acceptable period of time for the handling of a complaint of discrimination under the Code. Quite simply, it is too long to wait for a decision when fundamental human rights are at issue. However, counsel did point to a number of factors that explain some of the delay, including:
• The respondent originally requested the Commission to dismiss the complaint under s. 34 of the Code, without an investigation, on the grounds that it was frivolous or vexatious, or more appropriately dealt with under other legislation, such as applicable labour legislation or rights under the collective agreement. This required a decision from the Commission. It also required, prior to the matter being sent to the Commission for decision, that there be an investigation on that point and a report, which was sent to the parties for their submissions. On August 15, 2002, before the s. 34 process was completed, Dr. Jazairi filed a notice of judicial review seeking to prohibit the Commission from proceeding with the s. 34 application. That resulted in the Commission staying its processing of the complaint.
• Dr. Jazairi abandoned his judicial review application on October 28, 2002. The Commission then recommenced the s. 34 process and on February 5, 2003, the Commission decided that it would not exercise its discretion to decline to deal with the complaint under s. 34. It was only at this point that the investigation of the complaint itself could begin.
• The length and complexity of the complaint and the period of time it covered required a longer than typical investigation.
• The number and variety of separate allegations covered by the complaint further added to the complexity of the investigation.
• The voluminous material filed by Dr. Jazairi at various stages required significant time to analyze and respond.
• The time from the actual beginning of the investigation (February 5, 2003) until the s. 36 decision of the Commission (September 28, 2004) was therefore only 19 ½ months. Included in that period of time were several extensions of time granted to both parties, at their request, to file submissions at various stages.
• The reconsideration request under s. 37 was filed on October 18, 2004. This required a further investigation by the Commission, the preparation of a further report and the need to give the parties an opportunity to respond to that report.
• The material filed by Dr. Jazairi on the reconsideration request can be fairly described as “mountainous”.
[16] We accept that this was an exceptional complaint and that an exceptional length of time was required to handle it. The extenuating circumstances described by Commission counsel are recognized. However, we remain of the view that, even taking these matters into account, there was unacceptable delay in dealing with the complaint.
[17] We do not, however, see any prejudice to Dr. Jazairi attributable to the delay. A more favourable outcome for his complaint would not have been received if it was dealt with more expeditiously. Given the conclusion reached by the Commission, there will be no further proceedings and no hearing. This is not a situation where lost evidence or the fading of memories over time can give rise to prejudice.
[18] Inordinate delay can, in some circumstances, support a finding of abuse of process. In the circumstances of this case, given the explanations for much of the delay, the complexity of the case, the volume of material to be considered and the absence of any real prejudice, we do not find the test for abuse of process is met.
[19] Further, there is no appropriate or available remedy for the delay, even if we were to characterize it as an abuse of process. The usual remedies of a stay of proceedings or mandamus are inapplicable. There are no proceedings left to stay, and Mr. Jazairi would not have wanted them stayed in any event. The Commission has fulfilled its mandate and exhausted its jurisdiction under the Code. There is no further function to which mandamus could attach. Mr. Jazairi seeks an order that he be compensated for the expenses he incurred during the course of the investigation. First, those expenses are not causally linked to the delay. Second, and most importantly, such an order would amount to an award of damages, which this Court has no jurisdiction to impose: Khalil v. Ontario College of Art, [2000] O.J. No. 15 at paras 2 and 7 (Div.Ct.); Chol v. York University, [2004] O.J. No. 1093 (Div.Ct.)
Costs
[20] The Commission has been fully successful and seeks costs fixed in the amount of $7500.00. This includes the counsel fee and preparation time for the full day hearing before us, as well as the attendance on an “urgent” basis before Then J. in August 2006, which he remitted to a full panel, with costs left to that panel.
[21] Given the time voluminous material and myriad of issues involved, the claim for $7500.00 in costs is not an unreasonable one. However, we have a broad discretion in awarding costs. In the particular circumstances of this case, we are of the view that no costs should be awarded. Although Dr. Jazairi was not successful in this matter, he had a genuine and firmly held belief that he had been a victim of unlawful discrimination. He had a right to file a complaint with the Commission and a right to have that complaint dealt with fairly, which included the right to a timely disposition of that complaint. The Commission’s delay in that regard is a factor we can take into account in determining costs.
PITT J.
MOLLOY J.
MURRAY J.
DATE: March 14, 2008