[2017] 3 F.C.R. D-2
Human Rights
Judicial review of decision by Canadian Human Rights Commission (Commission) dismissing applicant’s human rights complaint alleging retaliation contrary to Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA), s. 14.1 — Applicant, suffering from Chronic Fatigue Syndrome, returning to work as Department of Justice (DOJ) lawyer after four-year leave — Filing grievance pursuant to Public Service Labour Relations Act,[1] S.C. 2003, c. 22, s. 2, s. 208, in relation to DOJ having declared her position vacant — Also filing complaint with Commission on same grounds — Both grievance, complaint alleging failure to accommodate on part of her employer — Applicant later filing second grievance alleging retaliation by DOJ — Retaliation, vacating reports, prepared by Commission staff pursuant to CHRA, ss. 40, 41, discussing whether applicant’s complaint should be dismissed under Act, s. 41(1)(d) — Commission adopting analysis of vacating report, dismissing applicant’s complaints — Court dismissing judicial review of vacating complaint, granting judicial review of retaliation complaint — Commission reconsidering, dismissing retaliation complaint pursuant to Act, s. 41(1)(d) — Supplementary report prepared — However, this report containing wrong submissions from applicant — Notwithstanding these defects in record, supplementary report mistakenly sent to Commission with wrong submissions — Commission adopting analysis from original retaliation report without having benefit of applicant’s submissions — Deciding, inter alia, subject matter of complaint addressed through respondent’s internal grievance process — Whether Commission breaching its duty of procedural fairness; whether Court should exercise its discretion, decline to remand present matter for reconsideration — Determinative issue herein failure of Commission to hear both sides before coming to its decision — Commission breaching its fundamental duty by failing to have before it applicant’s submissions on retaliation report when deciding retaliation complaint — Court having discretion to dismiss judicial review notwithstanding breach of procedural fairness where, if judicial review granted, result nonetheless the same — However, even if underlying decision reasonable or inevitable, Commission’s decision should not be left in place; decision must be set aside — Court not expected to proceed without benefit of applicant’s submissions — Applicant entitled to have her submissions heard, decided by Commission — Remanding matter to Commission more likely to lead to better procedural outcome than if Court undertook de novo review — Failure of Commission to consider applicant’s submissions not “mere technicality” or “immaterial” error — Application allowed.
Bergeron v. Canada (Attorney General) (T-1965-14, 2017 FC 57, Brown J., judgment dated January 19, 2017, 33 pp.)