Supreme Court of Canada

Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407

Date: 1984-11-22

Jeanne E. Radulesco Appellant;

and

The Canadian Human Rights Commission Respondent.

File No.: 17689.

1984: October 23; 1984: November 22.

Present: Dickson C.J. and Beetz, Estey, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law—Natural justice—Quasi-judicial decision—Procedure—Commission advised by investigator through report—Complainant not fully informed before decision made as to factual basis underlying report—Whether or not decision should be set aside—Canadian Human Rights Act, 1976-77 (Can.), c. 33, ss. 35, 36(3)(b).

Appellant complained in writing to the Canadian Human Rights Commission of discrimination on the basis of race, national or ethnic origin and age. The complaints were referred to an investigator who later advised appellant that he would recommend to the Commission that it reject the complaints. Appellant was invited to forward any supplementary comments and was given a limited indication of the facts on which the recommendation was based. When appellant requested a copy of the investigator’s report and further information as to its underlying reasons, she was informed that a report would be available only after it had been approved by the Commission. Appellant eventually received the report but only after she had been informed of the Commission’s decision to reject both her complaints. This appeal is from a decision of the Federal Court of Appeal rejecting appellant’s application for judicial review.

Held: The appeal should be allowed.

Respondent must act on a quasi-judicial basis when it decides to reject a complaint as unsubstantiated under s. 36(3)(b) of the Canadian Human Rights Act. Procedural fairness requires that the Commission afford the parties an opportunity to make submissions, at least in writing if not at a hearing, before any decision is made and that the Commission disclose the substance of its case to the parties to ensure that the submissions were made on an informed basis. Here, the substance of the case against appellant was not communicated to her prior to the decision.

[Page 408]

APPEAL from a judgment of the Federal Court of Appeal rejecting appellant’s application for judicial review of a decision of the Canadian Human Rights Commission. Appeal allowed.

Louis L. Arki, for the appellant.

Russell Juriansz and James Hendry, for the respondent.

The judgment of the Court was delivered by

LAMER J.—As a result of concessions made at the hearing by respondent, this appeal no longer raises most of the issues one might have expected at the outset. Consequently, there is little need for supportive reasons in the disposition of the appeal. I will therefore limit my summary of the facts and proceedings to those which are essential to an understanding of the disposition of this case.

The appellant had been employed by the National Museums of Canada from June 16, 1980 to August 1, 1980, at which time she resigned from her position alleging that she was the victim of unjust treatment. The appellant was subsequently unable to obtain employment in the public service.

On June 21, 1981, the appellant submitted two written complaints to the respondent, the Canadian Human Rights Commission. The first complaint was against the National Museums of Canada and the other was against the Canadian Intergovernmental Conference Secretariat. Both complaints alleged discrimination on the basis of race, national or ethnic origin and age. The complaints were referred to an investigator pursuant to s. 35 of the Canadian Human Rights Act, 1976-77 (Can.), c. 33.

After interviewing the appellant, the investigator advised her by letters dated September 28, 1981 that he intended to advise the Human Rights Commission that the appellant’s complaints be rejected. The letters also invited the appellant to forward any supplementary comments she might wish to make before October 22, 1981. Both letters gave a limited indication as to the factual basis upon which the investigator made the decision to so advise the Commission.

[Page 409]

The appellant responded by writing three letters to the Commission. In these letters, the appellant requested a copy of the investigator’s report and further information concerning the reasons for which a recommendation of rejection would be made.

The investigator advised the appellant that it would not be possible for her to obtain a copy of the investigator’s report until such time as it had been approved by the Commission.

The appellant was subsequently advised that the Commission had decided to reject both of her complaints.

Ten days later, copies of the investigator’s reports were forwarded to the attention of the appellant.

Proceedings were then commenced in the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.

The Federal Court of Appeal disposed of the matter orally, as follows:

We have not been persuaded that the decision under attack is vitiated by one or the other of the errors mentioned in section 28(1) of the Federal Court Act.

The application will therefore be dismissed.

With leave to this Court, appellant states her position as follows:

That the Federal Court of Appeal erred in not deciding that the Canadian Human Rights Commission failed to observe the rules of natural justice in disposing of the complaints of the Appellant, and more specifically that the Respondent breached the rules of natural justice in not allowing the Appellant the opportunity to fairly rebut facts and allegations contained in the investigator’s reports recommending the dismissal of the Appellant’s complaints, by not allowing the Appellant to see said reports, or informing her sufficiently of the contents thereof, before a final decision prejudicial to the Appellant’s interest, was reached by the respondent on the basis of said report.

At the hearing, respondent substantially agreed.

[Page 410]

Indeed, the position taken by respondent Commission at the hearing is quite different from that stated in its factum. I will refer only to the former.

Respondent Commission acknowledges that it must act on a quasi-judicial basis when it decides to dismiss a complaint as unsubstantiated under s. 36(3)(b) of the Canadian Human Rights Act. It also acknowledges that procedural fairness requires that the complainant be provided with an opportunity to make submissions, at least in writing, before any action is taken on the basis of the report; however, a hearing is not necessarily required. Finally, the Commission acknowledges that in order to ensure that such submissions are made on an informed basis, it must, prior to its decision, disclose the substance of the case against the party.

Given the nature and extent of the information which was disclosed to the appellant by the investigator, the respondent Commission acknowledges that the substance of the case against appellant was not communicated to her prior to the decision. The Commission also agrees that, as a result thereof, this appeal should be allowed with costs to the appellant on a solicitor-client basis. Without pronouncing upon all aspects of the standard of conduct the Commission must meet, I agree that the standard enunciated by the respondent is one which must, in all cases, be met. Therefore the failure to meet this standard in this case should result in the appeal being allowed.

Respondent’s counsel informs us that since the Radulesco hearing the Commission has changed its procedure. It now strives to meet in all cases the standard it acknowledged it had to meet in the present case. However, respondent invites us to express our views on, inter alia, the Commission’s right to withhold information on the basis of confidentiality. Counsel for the respondent appears to be concerned that his concession in this case may be interpreted as an acknowledgement of a duty to disclose on all occasions all of the material part of the case against the complainant. This is the first time the Commission’s activities under the Act are directly considered in this Court. Understandably, the respondent would welcome and presumably

[Page 411]

benefit from the views of this Court as to the norms of conduct it need follow for the proper exercise of its jurisdiction, particularly as regards the withholding of information in appropriate cases.

In this case, there did not arise a question of confidentiality. That issue is therefore not before us. This Court is reluctant to address issues that are not properly before it. To begin with there is usually no factual background to identify the competing interests in the issue or to guide the enunciation of the determinative principles and the resulting relevant norms and rules. Furthermore, not all of the concerned actors will have been heard.

In this case, despite the late response of the Commission, the appellant nonetheless did ultimately obtain the information she was entitled to receive. Therefore, were we to allow this appeal, we would not need to order the Commission to provide that information. Accordingly, I would allow this appeal and set aside the decision of the Canadian Human Rights Commission which found the appellant’s complaints unfounded; I would order the Commission to afford appellant a reasonable opportunity to make written submissions before adjudicating the complaints and, as agreed by respondent, grant the appellant her costs throughout on a solicitor-client basis.

Appeal allowed with costs.

Solicitors for the appellant: Arki & Nahwegahbow, Ottawa.

Solicitor for the respondent: Canadian Human Rights Commission, Ottawa.