Canada ( Attorney General ) v. Burnell
T-520-96
MacKay J.
2/7/97
14 pp.
Judicial review of Canadian Human Rights Commission's (CHRC) decision to accept, investigate respondent's complaint-Respondent employed as dental assistant with Canadian Armed Forces from December 1974 until August 1987-Absent from work from October 1983 until August 1984 because suffering from ulcerative colitis-Alleging forced to sign memorandum containing negative comments about performance and personal life, notwithstanding previous satisfactory performance reviews-Thereafter continually criticized regarding performance, subjected to constant harassment-In 1986 filed application for redress of grievance-Thereafter subjected to discrimination, harassment at work because of superiors' perception disabled, until requested voluntary release-In 1994 notified application for redress of grievance denied by Governor in Council-Filing complaint with CHRC on November 26, 1994 alleging discrimination in employment on basis of perceived disability (ulcerative colitis)-Human rights officer recommending CHRC not deal with complaint because acts complained of occurred more than one year before signature of complaint-DND making written submissions regarding length of delay, possible prejudice would suffer should complaint be accepted-In reaching decision CHRC having before it human rights officer's report, DND's and respondent's submissions-Application dismissed-By deciding to accept, investigate complaint, CHRC neither acting upon any wrong principle nor exercising discretion in improper manner so as to justify interference by Court-Although Canadian Human Rights Act, s. 41(e) providing for regular one-year limitation period, beyond which CHRC may refuse to deal with complaint, determination complaint out of time clearly within CHRC's discretion-CHRC exercised discretion on basis of proper principles and consideration of all relevant circumstances-Decision to accept complaint administrative, falling squarely within CHRC's competence, discretion-Courts reluctant to interfere with such decisions-As such determination preceding appointment of investigator, neither evidentiary requirement nor threshold as to whether further inquiry warranted-CHRC not bound to accept recommendation of human rights officer, but may decide to accept, change or reject officer's recommendation-Unless deciding not to deal with complaint, Commission not required to give reasons for decision-No evidence suggesting in circumstances Commission bound to consider complaint completely dealt with, as opposed to initially dealt with, by redress of grievance procedure provided under National Defence Act-Assessing effects of other statutory procedures on right to file complaint under Act determination within CHRC's discretion-Applicant not establishing prejudice-Claim of prejudice not self-evident truth-Specific evidence must be adduced to support such claim-Applicant required to adduce sufficient evidence to establish delay such that it prevents tribunal from adequately fulfilling legislative mandate in accordance with requirements of natural justice: Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638 (C.A.)-To simply point to lengthy delay not leading inexorably to conclusion prejudice will be suffered-Must be some concrete basis in fact which demonstrates delay so unacceptable or disabling in nature as to preclude fair, complete investigation from being conducted-While applicant referring in general sense to inability of DND to make full defence, and to fading memories of witnesses, these allegations not sufficient to establish actual prejudice-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 41(e).