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.

Fundamental Omission
 
The issue of what constitutes a fundamental omission was also at the centre of the Federal Court's decision in Singh v. A.G. Canada.²⁰⁰ The case involved allegations of harassment and employment discrimination based on ethnic or national origin and age arising from the decision of Human Resources Development Canada (HRDC) not to renew the employment contract of the complainant, a 51 year old woman of East Indian descent. The dispute surrounding the non-renewal of employment was investigated in the first instance by the Public Service Commission (PSC), insofar as issues of harassment and abuse of authority were concerned. The PSC determined that the allegations were unfounded. Soon after the decision of the PSC was issued the complainant filed a complaint with the Canadian Human Rights Commission alleging that derogatory comments had been made to her by co-workers and that the decision to refuse renewal of her employment contract was based upon her national or ethnic origin and her age.

While some external interviews were conducted in the course of the Commission's investigation of the complaint, much of the investigator's report consisted of information taken from the previous report of the PSC. The Commission dismissed the complaint on the basis that the evidence did not support the allegations of harassment and discrimination in employment but, rather, that the non-renewal of contract was unrelated to these claims.

On application for judicial review of the Commission's decision, the Federal Court first confirmed that the Commission can properly exercise its discretion to dismiss a complaint in light of all the evidence, including statements from several witnesses contradicting the allegations and a performance review of a complainant's work record. Moreover, an investigator for the Commission commits no error of jurisdiction by relying on evidence contained in a report of the PSC dealing with work-related matters within the latter's competence, so long as an investigator's conclusions are not simply based on that of the PSC. Nevertheless, the Court found that a serious issue remained in the case before it regarding the thoroughness of the investigation report upon which the Commission decision was made.

In reply to submissions made by HRDC, the complainant had maintained that information regarding work performance and shortage of work had been fabricated only after she had complained of discriminatory treatment. The Court observed that the investigator's report contained no discussion of the possible pretextual nature of HRDC's submissions, an omission it characterized as fundamental. It was fundamental A...because any investigation of discrimination must, at minimum, ascertain who the decision-maker is and contain some inquiry into why that decision-maker decided the way they did. In this case, that would mean that the investigator should have investigated who actually decided not to renew the applicant's contract and why."²⁰¹

The Court pointed out that discrimination can be found to have occurred even though a primary reason may exist for dismissing an employee or not renewing a contract. Hence, the fact that the PSC had found that her slow work performance justified the decision not to renew her contract did not necessarily suggest that discrimination had not occurred. The Court therefore overturned the Commission's decision and sent the matter back to the Commission to be dealt with in a manner not inconsistent with its reasons.

A further example of fundamental omission in the conduct of an investigation is found in Sosnowski v. Minister of Public Works.²⁰² The case involved a complaint of sex and age discrimination allegedly suffered in the course of employment. Ms. Sosnowski, a 56 year old women who had worked as a mechanical engineer for Public Works and Government Services Canada (PWGSC) for many years, lost her position and was obliged to take early retirement during a downsizing operation conducted by the department. She alleged that she had suffered adverse differential treatment over a period of time regarding project assignments that had a negative impact on her competitive position during the downsizing operation, and regarding a reverse order of merit evaluation linked to the assignment of surplus status. In addition, she alleged adverse differential treatment in access to alternative employment within the federal public service.

The investigation report (upon which the Commission based its conclusion to dismiss the complaint) contained a detailed review of the professional and work-history qualifications used to assess employees within the department for appointment to positions of Project Manager. The report pointed out that the complainant had received low evaluation scores with respect to some of the qualifications. In particular, the investigation report reproduced the view of the departmental manager to the effect that "...all the incumbents demonstrated a consistent ability to deliver projects with the specified parameters with the exception of the complainant who frequently had over runs with project costs and schedules and had difficulty finalizing projects. This was also pointed out to the complainant in her performance appraisals from 1988/1989-1992/1993. The complainant also received the lowest mark (4) in other highly rated qualifications such as the ability to provide consistent and effective team leadership, the ability to deliver high standards of business performance by applying the principles of Market Based Charging, and the ability to maintain a consistently high level of client satisfaction."²⁰³

The Federal Court found that the above-reproduced portions of the investigation report contained a significant error of fact regarding the past evaluations of the complainant's work. It found that those evaluations had all been consistently positive, in particular during the time period 1988- 1993. The Court concluded that this error indicated that allegations of bias (based on age and sex) had not been adequately investigated by the Commission before making its decision. In addition, the Court considered the investigation report flawed insofar as it failed to address possible systemic discrimination. Though a mechanical engineer, the complainant had been consistently denied the opportunity to work in civil engineering projects. Her lack of experience was then subsequently invoked by the department to justify a low evaluation during the downsizing operation. In the words of the Court: A...PWGSC states that she received the only

zero score in the civil engineering category because of her lack of exposure to civil engineering projects during her tenure. In contrast, a male colleague, who also was a mechanical engineer, had been assigned a civil engineering project and subsequently received a higher ROM score than the Applicant.²⁰⁴@ Facts such as these suggested a pattern, in the eyes of the Court, that required an in-depth evaluation, A...especially in light of Canadian Human Rights Tribunal decisions in which a difference of assignments that have an impact on a complainant's employment opportunities have been found discriminatory.²⁰⁵@ It therefore concluded that A[w]here, as in the present case, a senior and sole female engineer in her professional group experiences such obstacles and subsequently finds herself unemployed, procedural fairness requires a thorough investigation of the possible existence of systemic age and sex discrimination.²⁰⁶@ As a result, the complaint was referred back to the Commission for reconsideration.

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End Notes