Garnhum v. Canada ( Deputy Attorney General )
T-3024-94
Noël J.
2/10/96
23 pp.
Application for judicial review of CHRC decision dismissing applicant's complaint of discrimination against Canadian Armed Forces-Applicant receiving poor performance reports, not recommended for promotion-Commanding officer requesting he undergo psychological assessment-Diagnosed as suffering from compulsive personality disorder and unlikely to be helped by psychotherapy-Applicant involuntarily released under medical provisions-Report from independent psychologist and psychiatrist concluded no evidence of personality disorder of any kind-Applicant filing redress of grievance with Forces and complaint to Human Rights Commission claiming discrimination because of perceived mental disability contrary to Canadian Human Rights Act, s. 7-Investigator appointed by Commission and redress of grievance granted by Chief of Defence Staff-Applicant offered re-enrollment, removal of poor performance report from record and compensation for loss of pay and allowances since release, less civilian employment income and unemployment insurance benefits-Applicant refusing offer and requesting re-instatement rather than re-enrollment and records of psychological/psychiatric referrals and assessments be deleted from files-No settlement reached and investigator recommending appointment of conciliator-Conciliator unable to bring about settlement and Commission advising inquiry by Tribunal under s. 49 not warranted-Applicant applying for judicial review of decision-Applicant arguing Commission's function in dismissing complaint ought to be purely administrative but when complaint dismissed after conciliation on basis of reasonableness of settlement offer, Commission exercised quasi-judicial function available only to Tribunal and therefore subject to review by Federal Court-Applicant also arguing Commission's consideration of outcome of redress of grievance procedure faulted as decision based on irrelevant considerations and perverse and capricious because respondent admitted on several occasions complaint of discrimination valid-Applicant arguing Commission penalizing him for refusing to accept settlement by preventing matter from being determined on merits-Framework for disposition of complaints by Commission contained in Act, ss. 40 to 49-Commission not bound to refer matter to Tribunal once conciliation proving unsuccessful-Commission may dismiss complaint under Act, s. 44(3)-In dismissing complaint, Commission must exercise duty of fairness-Record indicating all relevant evidence, including evidence of refused offer to settle, taken into account by Commission-Commission must balance considerations arising from public policy role with need of complainants to have complaints adjudicated-Further, offer of settlement extended to applicant in context of human rights complaint and no indication reasonableness of complaint was sole factor in Commission's decision to dismiss applicant's complaint-Finally, admissions by respondent that applicant had valid complaint relate to redress of grievance and not human rights complaint-Respondent never admitting to discrimination-Application dismissed-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 44(3) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64).