Procedural Fairness and the Duty to Disclose

Where information that is central to a complaint forms the basis for a report prepared by an investigator of the Canadian Human Rights Commission, this information must be disclosed to the complainant. It is not sufficient to provide a summary of the information to the complainant in a report.

The duty to disclose is high where the information in question is central to the complaint. If this duty is not met, the decision will be deemed to be procedurally unfair and the decision set aside.

Administrative law – Decisions reviewed – Human Rights Commission – Investigations – Judicial review – Procedural requirements and fairness – Freedom of information and protection of privacy – Disclosure of records – Employment

Davidson v. Canada (Attorney General), [2019] F.C.J. No. 880, 2019 FC 997, Federal Court, July 25, 2019, H.S. Brown J.

The applicant applied pursuant to section 18.1(1) of the Federal Courts Act, RSC, 1985, c F-7 for judicial review of the Canadian Human Right Commission’s (the “Commission”) decision to dismiss his complaint (the “Complaint”). The issue was whether the applicant was denied procedural fairness by not being provided with certain documents relied upon by the investigator. The applicant’s complaint alleged that Global Affairs Canada (“GAC”) refused to re-engage the Applicant and had an employment policy or practice of discriminating on the basis of race, color, and national or ethnic origin. The applicant self-identified as “African Canadian” and had been employed as an Access to Information and Privacy Officer. The Complaint was investigated by an investigator who prepared an Investigation Report (the “Report”), which was given to the Applicant and GAC. Both parties responded to the Report. The responses were sent to the Commission along with the Report and the initial complaint of the applicant. The Commission dismissed the applicant’s complaint, accepted the Report and concluded that an inquiry into the complaint was not warranted.

The investigator interviewed two GAC officers in connection with certain case management tracking documents maintained by the GAC on access to information and privacy files worked on by the Applicant. The investigator did not provide copies of the case management tracking documents to the applicant or go over the documents with the applicant. While the report provided to the applicant referenced the case management tracking documents, they were not disclosed directly to the applicant. The report outlined some deficiencies noted in the applicant’s work.

Section 44(1) of the Canadian Human Rights Act, RSC 1985, c H-6 provides that an investigator shall “submit to the Commission a report of the findings of the investigation”. The respondent submitted that the applicant was able to respond to the Report by addressing the Report’s conclusions. It was determined that the Report played an instrumental role in the Investigator’s conclusion and therefore the Commission’s decision. The duty to disclose arose in relation to the documents because they went to a central issue in the complaint — the applicant’s poor work performance. It was held that by failing to let the Applicant see and respond to the case management documents, the Investigator, and therefore also the Commission, failed to investigate evidence that went to the core of the decision. It was held that the decision was procedurally unfair and must be set aside.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at [email protected].

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