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.

Legal Error
   
As is well known, an error of law or jurisdiction gives rise to judicial review based on the correctness of the decision made. This principle is illustrated in Gee v. Minister of National Revenue²¹⁷, where the Federal Court reviewed a decision of the Commission to dismiss a complaint based on its legal interpretation of the consequences of an agreement entered into by a complainant with an employer. The facts of the case pertain to various events that occurred between 1990 and 1996 and concern allegations of harassment and racial discrimination in the work place. These complaints (24 in number) were investigated internally by the federal department concerned in 1993/94. Six of the allegations pertaining to harassment were determined to be well-founded, one was determined to establish a case of racial discrimination, and another established a case of abuse of authority. Following these decisions, the complainant sought to reopen a previous complaint with the Commission that had been dismissed in 1993 because it was out of time, but without success. She also was involved in communications and meetings with departmental managers in an effort to seek redress for the wrongs she had suffered. This resulted in a written agreement being reached appointing her to a position she felt she had been wrongly denied, although this appointment was subject to appeal by other employees. It was agreed that the department would defend her position should any appeals be launched. Ultimately 33 appeals were filed and, despite the agreement signed by the complainant and departmental managers, the department conceded the case and refused to defend the complainant’s appointment.

The complainant succeeded in April of 1999 in having two complaints related to her allegations accepted by the Commission for investigation. Following investigation, the Commission dismissed the complaints on the basis that, in view of the agreement reached between the parties, no further proceedings were warranted²¹⁸. The Commission’s view on the legal consequences of the agreement were found by the Federal Court to be incorrect: "In finding that the Agreement is a relevant consideration, the Commission has ignored a stream of jurisprudence, much of which has emanated from the Supreme Court of Canada, in which it has clearly been expressed that human rights legislation is public policy out of which one cannot contract.²¹⁹" In addition, the evidentiary value of the agreement was placed in doubt by the Court: "Not only was the applicant asked to sign the Agreement without the benefit of independent legal counsel, consulting counsel was not even an option recommended to her. She was not fully informed by the respondent as to what rights she was ostensibly releasing and she was not informed of the consequences which ultimately arose out of the staffing appeals. Moreover, the respondent did not defend her position as agreed, and the Agreement, intended to benefit the applicant, subsequently placed her in a position worse that the one in which she started. This is not performance of a settlement agreement. By dismissing her claim on the basis of the Agreement, the CHRC has effectively removed the possibility that the applicant may seek redress for her complaint by way of those remedies which had been previously available."²²⁰

The Court further found that nothing on the record showed that the Commission considered any substantive evidence regarding the complaint once it was determined that the agreement operated to remove any remedy that the complainant might have under the CHRA. This compounded the legal error regarding the effect of the agreement and resulted in the Commission failing to exercise its mandate under the governing statute. The application for judicial review was therefore granted and the matter was returned to the Commission for reconsideration by a differently constituted quorum of the Commission, or a designated tribunal, on the merits of the evidence and in the absence of the agreement between the parties.

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End Notes