JUDICIAL REVIEW OF COMMISSION DECISIONS

The Commission enjoys broad discretionary powers with respect to the reception and processing of complaints under the CHRA. The cases highlighted in this section illustrate the type of issues that may result in Commission decisions being challenged before the Federal Court.

Procedural Fairness
   

Decisions of the Commission not to refer a complaint to the Human Rights Tribunal can involve far more complex factual circumstances than those evident in the case just reviewed. In Grover v. The National Research Council,¹⁹⁵ the Federal Court considered an application arising from allegations of racial discrimination in employment that prompted a lengthy investigation by the Commission. The investigation included a review of materials submitted by the complainant, responses provided by the National Research Council (NRC), the transmission of those responses to the complainant with an opportunity to respond, meetings with the applicant by investigators and interviews with various persons involved in the employment setting of the complainant. The Commission found that the evidence presented did not support the alleged act of discrimination and the complaint was dismissed. The complainant sought judicial review of the Commission's decision, alleging breach of procedural fairness, a biased and less than thorough investigation, an investigation allegedly conducted in bad faith and in an arbitrary manner, and a decision allegedly rendered without regard to the evidence presented.

In its decision, the Court cited well-known case law to the effect that the Commission is not obliged to hold anything like a formal hearing prior to making its decision in this regard and thus is not bound to respect the formal rules of natural justice applicable to judicial proceedings. However, in deciding whether there is a reasonable basis in light of all the evidence to proceed to the adjudicative stage, the Commission must comply with rules of procedural fairness. In the case at bar, the Court ruled that Dr. Grover "was not entitled to an oral hearing before the Commission when that body was considering the investigation reports...[nor is the Commission] required to embark upon an assessment of credibility when it reviews investigation report.¹⁹⁶

Although the Court found that the complainant was given every opportunity to respond to the evidence and submissions of the NRC (and in fact did so), it emphasized that the rules of procedural fairness also require that investigations be both neutral and thorough. Factual deficiencies in an investigation report clearly raise the issue of thoroughness. Some omissions can be rectified by a complainant bringing the matter to the attention of a decision maker such as the Commission, thus making judicial review unnecessary. Nevertheless, the Court recognized that judicial review will be available where Athe omission is of such a fundamental nature that merely drawing the decision-maker=s attention to the omission cannot compensate for it; or...where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.@¹⁹⁷

The record before the Federal Court established that an important witness relevant to the allegations of racial discrimination had not been interviewed. The Court concluded that this omission Awas of such a fundamental nature that its absence could not be relieved simply by drawing it to the attention of the decision-maker, that is the Commission".¹⁹⁸ The Court underscored that the Commission could not properly exercise its administrative discretion when relevant information pertaining to a complaint was not in its possession. The Court also suggested that Athe failure to interview a person who is vitally connected to the alleged discriminatory action may lead to the inference of pre-judgment by the investigator.@ While no specific finding in that regard was made, the Court found that the Commission had breached its duty of procedural fairness and ordered that the complaints be returned to the Commission to be dealt with in a manner not inconsistent with its reasons. 

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End Notes