COURT FILE NO.: 414/06
DATE: 20071109
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: RAHAMAT WALLY RAZACK
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Respondent
BEFORE: CARNWATH, KITELEY & MURRAY JJ.
COUNSEL: Applicant was self-represented
Allyssa Case, for the Respondent
HEARD: October 15, 2007
E N D O R S E M E N T
BY THE COURT:
[1] Mr. Razack applies for judicial review of two decisions of the Ontario Human Rights Commission (“the Commission”):
i. the exercise of its discretion under s. 36 of the Human Rights Code (“the Code”) to not refer his complaint to a hearing before the Human Rights Tribunal of Ontario; and,
ii. the exercise of its discretion to uphold its earlier decision upon re-consideration, pursuant to s. 37 of the Code.
[2] Mr. Razack filed a complaint against the Workplace Safety and Insurance Board (“WSIB”) under the Code, dated January 8, 2001. The complaint alleged that the WSIB subjected Mr. Razack to differential treatment in employment because of his race and colour.
[3] Mr. Razack had an office dispute in April, 2002. Following this, four colleagues, whom he described as “all white”, complained to a manager that Mr. Razack was threatening, dangerous and intimidating. Informed about the complaints by his manager, Mr. Razack posted various documents in his work area, including certificates of achievement and copies of performance summaries. The manager asked that he remove the documentation and Mr. Razack complied. He was then issued written and oral warnings about his behaviour. Mr. Razack believed he had been singled out because of his race and colour.
[4] The WSIB responded to the Commission and denied that Mr. Razack was subjected to discrimination because of race or colour. It denied that the co-workers’ complaints or the action taken against Mr. Razack were racially motivated.
[5] The Commission investigated Mr. Razack’s complaint, pursuant to its statutory duty under s. 33 of the Code. The investigation included interviews with the complainant, his former manager, the clinical manager, the Assistant Director, and seven co-workers from the WSIB. The investigator also reviewed numerous documents and letters submitted by the parties.
[6] In accordance with the Commission’s practice, upon completion of the investigation, a case analysis was prepared by the investigating officer which summarized the key evidence from the investigation and set out the recommendations of the investigating officer.
[7] The Commission disclosed the s. 36 case analysis to the parties with an invitation to provide submissions in response. Both parties filed responses to the case analysis.
[8] Mr. Razack’s submission on the case analysis included:
(a) it failed to address the complaint of systemic discrimination;
(b) it contained material errors concerning the factual circumstances of the complaint;
(c) it proceeded from pre-suppositions that a member of a racial minority could not be discriminated against by an individual of a similar (or other) racial minority; and,
(d) ten of the eleven interviews conducted were with parties directly adverse in interest to Mr. Razack.
[9] When the Commission considered whether to refer Mr. Razack’s complaint to the Tribunal for a hearing into the merits, it had before it the following documents:
(a) a case disposition and chronology;
(b) Mr. Razack’s complaint;
(c) the response of WSIB to the complaint;
(d) the s. 36 case analysis;
(e) Mr. Razack’s response to the case analysis; and,
(f) the WSIB’s response to the case analysis.
[10] In a decision dated August 10, 2004, the Commission, in the exercise of its discretion, refused to refer Mr. Razack’s complaint to the Tribunal. The Commission found there was insufficient evidence to indicate that the complainant was subjected to unequal treatment or harassment in employment because of his race or colour. It found, further, that the evidence was insufficient to support Mr. Razack’s allegations that because the persons who complained about him were white, race was a factor in their relations with him. The Commission found that the evidence showed the dispute was related to work issues and not to Mr. Razack’s race or colour.
[11] Mr. Razack asked the Commission to reconsider its decision, pursuant to s. 37 of the Code. The Commission notified the WSIB which provided a response to Mr. Razack’s request.
[12] A reconsideration officer was appointed to prepare a Reconsideration Report, which addressed in detail the elements of Mr. Razack’s application. The Report disagreed with two aspects of the Commission’s reasons on the original complaint, but concluded with the recommendation that the Commission confirm its original decision not to refer Mr. Razack’s complaint to the Tribunal.
[13] The Reconsideration Report was disclosed to the parties with an invitation to provide submissions. Mr. Razack provided detailed submissions in response.
[14] When the Commission reviewed the Application for Reconsideration, it had before it the following:
(a) a case disposition and chronology;
(b) the complaint of Mr. Razack;
(c) his Application for Reconsideration;
(d) the WSIB’s response to the Application for Reconsideration;
(e) the Reconsideration Report; and,
(f) Mr. Razack’s two responses to the Reconsideration Report.
[15] In a decision dated March 15, 2006, the Commission confirmed its original decision not to refer for the following reasons:
(a) the Commission remained of the view that there was insufficient evidence to indicate the complainant was subjected to unequal treatment or harassment in employment because of his race or colour;
(b) the Commission found that a dispute arose between Mr. Razack and four white co-workers regarding work-related issues. Following the initial dispute, co-workers reported to the manager Mr. Razack was difficult and unpleasant in the workplace;
(c) the Commission found that the warnings issued by Mr. Razack’s manager and his meeting with him on three occasions to discuss the conflict between him and his co-workers did not amount to evidence to indicate that the warnings were related to the complainant’s race or colour.
Analysis
[16] No assessment of the appropriate standard of review is necessary where the requirement of natural justice and procedural fairness are an issue. A breach of the rules of natural justice or procedural fairness is an excess of jurisdiction. The question is whether the requirement of procedural fairness and natural justice necessary in the particular circumstances have been met.
[17] Mr. Razack submits that the Commission denied him procedural fairness. We reject this submission. His submissions appear to be directed primarily to the activities of Mr. Lee, who prepared the case analysis. In effect, Mr. Razack disagreed with the manner in which Mr. Lee carried out his responsibilities.
[18] Procedural fairness dictates that the complainant and other parties who may be affected by a decision of the Commission be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions. (Gismondi v. Ontario Human Rights Commission et al. (2003), 169 O.A.C. 62, at paras. 44-45 (Ont. Div. Ct.))
[19] Mr. Razack was given notice of the facts, arguments and considerations upon which the decision was to be based and was given an opportunity to make submissions. Indeed, he took full advantage of that opportunity. He had the same opportunity with respect to the s. 37 reconsideration.
[20] Mr. Razack had several criticisms of the manner in which the Commission’s investigation was carried out. He said he was denied the right to counsel at his interview; that he was denied a second interview with the investigator; that the investigator failed to interview witnesses who could allegedly corroborate his position; that the investigator interviewed nine witnesses who were adverse in interest to him, but did not interview people he suggested; and that the investigator failed to look into allegations of systemic discrimination. We reject this submission that these alleged failures on the part of the investigator constitute bias and procedural unfairness.
[21] The Commission is an administrative body that performs a screening function with respect to human rights’ complaints. The Commission is entitled to create its own procedures during the exercise of this screening function:
It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by de Smith (Judicial Review of Administrative Action (4th Ed. 1980) at p. 240), the aim is not to create ‘procedural fairness’ but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome.
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at pp. 685-686
[22] Procedural fairness does not require the Commission to interview every witness identified by the parties. Moreover, there was no obligation on the part of the investigator to “re-interview” Mr. Razack:
In determining the degree of thoroughness of investigation required to be in accordance with the rules 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 interests in maintaining a workable and administratively effective system…
Deference must be given to administrative decision-makers to assess the probative value and to decide to further investigate or not to further investigate accordingly. It should only be were [sic] unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence that judicial review is warranted…
(Slattery v. Canada (Human Rights Commission), [1994] 2 F.C.J. No. 181, 574 at paras. 55-56)
[23] Having concluded that Mr. Razack was not denied procedural fairness, we turn to the standard of review. The standard of review of a decision made by the Commission, whether under ss. 36 or 37 of the Code, is that of “patent unreasonableness”. (Knight v. Indian Head School Division No. 19, supra, at pp. 685-686; Slattery v. Canada (Human Rights Commission), supra, at paras. 55-56; and Losenno v. Ontario Human Rights Commission (2005), 260 D.L.R. (4th) 298 (C.A.))
[24] The deference owed to the Commission under the “patent unreasonableness” standard recognizes the Commission’s role and function under the Code and has regard to the Commission’s well-recognized expertise in fact-finding and the processing of complaints under the Code. Our task is to ascertain whether the evidence before the Commission was capable of supporting the Commission’s decision. For the decision to be patently unreasonable, the decision must be “evidently not in accordance with reason” or “clearly irrational”. (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 63-64 (S.C.C.))
[25] Having regard to the extensive materials that were before the Commission, it cannot be said that the Commission’s decision not to refer the subject-matter of the complaint to the Tribunal was patently unreasonable. There was ample evidence to support the Commission’s findings and the decision was not “clearly irrational”.
[26] Similarly, the reconsideration by the Commission is not to be disturbed unless patently unreasonable. The Commission had a rational basis for making the s. 37 decision, based on the evidence before it. For the above reasons, the application for judicial review of the decisions dated August 10, 2004 and March 15, 2006 is denied.
[27] The Commission does not seek costs. There will be no order as to costs.
CARNWATH J.
KITELEY J.
MURRAY J.
DATE: