The court concluded that the Canadian Human Rights Commission committed a breach in procedural fairness when it failed to properly consider and assess reply submissions made by the applicant in response to the investigator’s initial investigation and report. The Commission could not simply adopt the investigator’s findings, when the applicant had raised new issues in reply which had not been properly addressed by the investigator.
Administrative law – Decisions reviewed – Human Rights Commission – Investigations – Discrimination – Judicial review application – Evidence – Procedural requirements and fairness – Human rights complaints – Discrimination – Sexual orientation
Jagadeesh v. Canadian Imperial Bank of Commerce,  F.C.J. No. 1113, 2019 FC 1224, Federal Court, September 24, 2019, J.M. Fuhrer J.
The applicant, Aaren Jagadeesh, brought an application for judicial review of the decision of the Canadian Human Rights Commission (the “Commission”) dismissing the applicant’s complaint of discrimination against his former employer, the Canadian Imperial Bank of Commerce. The Commission concluded, pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, RSC, c H-6, an inquiry into the complaint was not warranted and declined to refer the complaint to the Human Rights Tribunal.
The central issue before the court on judicial review was whether the Commission’s investigation and decision of the complaint was procedurally fair. This turned on whether the Commission failed to properly consider reply submissions made by the applicant in response to the Investigator’s report.
As part of his reply submissions after receiving the Investigator’s report, the applicant argued that the Investigator failed to consider crucial evidence related to his allegation that CIBC had discriminated on the basis of sexual orientation. In its report, the Investigator noted this complaint, but declined to investigate the issue, stating that the applicant provided no evidence to support the allegation and, in any event, these complaints were not included in the applicant’s Complaint Form. In other words, on its face, the Investigator was clear that this part of the applicant’s complaint was not investigated. In reply, the applicant challenged this finding, pointing to evidence he said supported the allegation of sexual discrimination and also clarifying why his Complaint Form included the allegation of discrimination based on sexual orientation.
In rendering its decision to dismiss the complaint, the Commission simply adopted the Investigator’s report. No additional reasons were provided.
The applicant’s primary argument on judicial review was that the Commission erred by adopting the Investigator’s Report and failing to follow-up on his reply submissions with respect to the sexual orientation complaint. The court agreed. The court concluded that the complaint process extended to reply submissions made by parties after receiving an investigator’s report. The court said these, in most cases, had to be reviewed by the Commission before making its final decision. The court held that the requirement for a thorough investigation extended to the Commission at this stage of the process, compelling it to give proper regard to these submissions before rendering its decision. Therefore, a breach of procedural fairness will occur when the Commission ignores submissions made by a party in reply.
In this case, the court concluded that the applicant’s right to procedural fairness had been breached. The Investigator had specifically said that it did not investigate the alleged complaint of sexual orientation discrimination. The Commission simply adopted the Investigator’s report and failed to consider the applicant’s reply submissions. As the court stated: “Despite having a second opportunity to review [the applicant’s] evidence and to provide adequate justification for not investigating or otherwise proceeding on his complaint, the Commission remained silent…” (para. 61). This was a breach in procedural fairness.
The court accordingly granted the application for judicial review, set aside the Commission’s decision and remitted the matter back to the Commission for a fresh investigation with a new investigator.
This case was digested by Adam R. Way, 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 Adam R. Way at firstname.lastname@example.org.