Judgments

A‑480‑04

2005 FCA 404

The Attorney General of Canada (Appellant)

v.

Diane Sketchley (Respondent)

Indexed as: Sketchley v. Canada (Attorney General) (F.C.A.)

Federal Court of Appeal, Décary, Linden and Sexton JJ.A.—Vancouver, September 15; Ottawa, December 9, 2005.

Human Rights — Appeal from Federal Court decision allowing respondent’s judicial review of Canadian Human Rights Commission’s decision dismissing complaints against Treasury Board (TB), Human Resources Development Canada (HRDC) — Respondent, HRDC employee, taking full‑time leave without pay in January 1997 due to illness — TB policy on leave without pay for medical reasons requiring date for termination of such leave be decided within two years of leave’s commencement — Respondent’s May 1999 request leave be continued for another year denied — Respondent taking medical retirement, but filing complaint with Commission alleging TB policy discriminatory against disabled workers as employees on leave without pay for other reasons permitted longer duration — Also filing complaint alleging HRDC failing to accommodate disability, applying TB policy to her in discriminatory fashion — Legal, factual substance of Commission’s decision found in reports of complaints investigator — Federal Court Judge rightly holding that reports constituting Commission’s reasoning — Principles underlying determination of standard of review examined — TB complaint — Issue before Federal Court whether complaint established prima facie discrimination — Application of pragmatic and functional factors leading to correctness standard of review re: Commission’s decision — Judge correct to hold inflexibility of TB policy on leave for medical reasons establishing prima facie discrimination — Onus thus shifting to employer to justify discrimination as bona fide occupational requirement (BFOR) — Commission not considering BFOR test as required — Decisions holding TB policy not discriminatory under Charter, s. 15 distinguished because, inter alia, Supreme Court of Canada not expressly stating necessary s. 15 Charter analysis, human rights discrimination analysis exactly mirror each other — HRDC complaint — That complaint matter of procedural fairness (i.e. concerning manner in which Commission arriving at decision) — Judge finding investigation with respect to complaint flawed as lacking thoroughness — Content of duty of fairness determined according to factors set out in Baker v. Canada (Minister of Citizenship and Immigration) — Failure to investigate question of accommodation once leave commenced, failure to explore whether leave should have been extended, failure to investigate alleged individual discrimination constituting breach of duty of fairness — Report not forming fair foundation for Commission’s decision, evidence omitted so obviously crucial and of such fundamental nature that respondent could not compensate for its absence through responding submissions — Appeal dismissed.

Administrative Law — Judicial Review — Standard of Review — Appeal from Federal Court decision allowing judicial review of Canadian Human Rights Commission’s dismissal of complaints against Treasury Board (TB), Human Resources Development Canada (HRDC) — Secondary appellate level (i.e. this Court) determining on correctness standard whether reviewing judge choosing, applying proper standard — Here, Federal Court Judge applying correct standards, but not conducting pragmatic and functional analysis — Pragmatic and functional analysis to be undertaken by reviewing court (i.e. Federal Court) with respect to each decision of administrative decision maker, not merely each general type of decision of particular decision maker under particular provision — That approach applying to TB complaint, but not HRDC complaint as latter matter of procedural fairness, requiring elements of decision relevant to procedural fairness be isolated, reviewed as questions of law — Whether TB complaint establishing prima facie discrimination question of law, and Supreme Court of Canada stating in Mugesera v. Canada (Minister of Citizenship and Immigration) that such questions reviewable on standard of correctness, but until matter clarified, Court preferring to proceed with pragmatic, functional analysis as clearly directed by Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia — Four pragmatic, functional factors leading on balance to standard of correctness.

This was an appeal from a Federal Court decision allowing the respondent’s application for judicial review of a decision by the Canadian Human Rights Commission (Commission) dismissing her complaints against the Treasury Board (TB) and Human Resources Development Canada (HRDC).

The respondent was permanently employed by HRDC from 1975 until 2000. Diagnosed with chronic fatigue syndrome in 1987, and with fibromyalgia in April 1994, she took full‑time leave without pay in January 1997. According to the TB policy on leave without pay for medical reasons, the termination date of such leave should be decided within two years of the leave’s commencement, except in exceptional cases. In May 1999, following the appellant’s request that the respondent come back to work or take medical retirement, the respondent requested a continuance of leave for another year. The appellant responded that if the respondent did not provide medical evidence to show a good chance of a return to work within a reasonable period of time, take medical retirement or resign, she would be terminated for incapacity. The respondent finally applied for and was granted medical retirement in April 2000, and filed two complaints with the Commission. The first, against the TB, alleged that its policy on leave without pay for medical reasons is discriminatory against disabled workers because employees on leave without pay for reasons other than illness are permitted a longer duration than allowed under the TB policy. The second, against HRDC, alleged failure to accommodate her disability and discriminatory application of the TB policy in her case.

Held, the appeal should be dismissed.

The Federal Court Judge did not err in finding that the reasoning of the Commission to support its decision under subsection 44(3) of the Canadian Human Rights Act (i.e. decision as to whether an inquiry into the complaint is warranted) could be found by reference to the investigator’s reports. Such reports are prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission. When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the subsection 44(3) screening decision.

The Judge treated the Commission’s decision on the TB complaint as a question of law, and the decision on the HRDC complaint as one of procedural fairness, and appears to have applied the standard of correctness for both of these decisions, which was the correct standard. However, because the Judge mentioned the standard of reasonableness simpliciter at the beginning of his analysis, and because the pragmatic and functional analysis was not conducted, it was necessary to consider the approach to be adopted in a case such as this.

The Court has applied various standards of review to various decisions taken under subsection 44(3) of the Act. That is because the pragmatic and functional analysis must be undertaken anew by the reviewing court with respect to each decision of an administrative decision maker, not merely each general type of decision of a particular decision maker under a particular provision. The pragmatic and functional approach does not apply however to judicial review on the grounds of procedural fairness. Procedural fairness concerns the manner in which the decision is made (as opposed to the substantive final decision). Elements of a decision relevant to procedural fairness must be isolated and reviewed as questions of law, to which no deference is due. The duty applicable in a given context will be determined according to the factors set out by the Supreme Court of Canada. If the duty of fairness owed is breached, the decision will be set aside. It is also important to bear in mind that the standard of review at the secondary appellate level proceeds according to different principles than the pragmatic and functional analysis employed at the lower court level. The Court must determine on a correctness standard whether the reviewing judge has chosen and applied the proper standard of review. If the judge has erred, the Court must correct the error, substitute the appropriate standard, and assess or remit the administrative decision‑maker’s decision on that basis.

The respondent’s appeal before the Federal Court with respect to the TB complaint concerned the final conclusion of the Commission (that no prima facie discrimination had been shown). At issue was whether the TB complaint established prima facie discrimination. This question will sometimes be one of mixed fact and law, but here a number of factors, such as the fact that the Commission’s decision was entirely dependent upon the investigator’s legal conclusions, pointed towards the purely legal nature of the question. That said, and notwithstanding the Supreme Court of Canada’s statement in Mugesera v. Canada (Minister of Citizenship and Immigration) that pursuant to subsection 18.1 of the Federal Courts Act, questions of law should be reviewed on the standard of correctness, it was preferable, until the matter is clarified, to proceed with the pragmatic and functional analysis, particularly in light of the Supreme Court’s clear direction in Dr. Q v. College of Physicians and Surgeons of British Columbia that this analysis should be applied in every case in which the standard of review falls to be determined.

In cases governed by subsection 18.1(4) (grounds of review on an application for judicial review) of the Federal Courts Act, to the extent that the decision at issue is a question of law, the first factor of the pragmatic and functional analysis (presence or absence of a privative clause or statutory right of appeal) points towards the standard of correctness. However, that standard may not automatically apply to the review of all questions of law, as the other pragmatic and functional factors may in some cases predominate. Here, in light of the Commission’s abstract reasoning, the question of prima facie discrimination was clearly a question of law. As to the second factor, the Commission has no greater expertise than the courts in the area of basic human rights law (i.e. the prima facie discrimination issue). With respect to the third factor (purpose of the Act and of the provision), the Commission’s decision occurred in the course of its screening function under subsection 44(3) of the Act. In the assessment of practical and monetary matters, the Commission is in a better position than the Federal Court to assess whether any given complaint should go further. As to the nature of the problem (the fourth factor), the Commission’s decision to dismiss a complaint is determinative of rights. To the extent that the Commission decides to dismiss a complaint on the basis of its conclusion concerning a fundamental question of law, its decision should be subject to a less deferential standard of review. The four factors discussed above led on balance to a standard of review of correctness.

The Judge was correct in holding that the relative inflexibility of the two‑year deadline imposed by the TB policy on leave for medical reasons, in comparison with the absence of such deadlines in the policy applicable to leave without pay for other reasons, was sufficient to establish a prima facie case of discrimination under section 10 of the Act, and that this discrimination was based on a prohibited ground. In human rights cases, once the complainant has proved prima facie discrimination, it is incumbent on the employer to justify that discrimination as a bona fide occupational requirement (BFOR). Having erroneously concluded that a prima facie case had not been established, the Commission did not consider the BFOR test, as it was required to do. The Scheuneman v. Canada (Attorney General) decisions, in which the Federal Court and Federal Court of Appeal held that the TB policy was not discriminatory under section 15 of the Charter, were distinguished. For one thing, these decisions were decided under the Charter and not the Act, and the Supreme Court, in its recent decisions with respect to human rights codes, has not expressly stated that section 15 equality analysis and human rights discrimination analysis must always exactly mirror each other. Also, unlike the complainant in Scheuneman, the respondent did not wish to remain indefinitely on leave without pay. Finally, the role of the Sun Life Assurance Company of Canada in strictly enforcing the two‑year deadline of the TB policy, a significant factor in this case, was not considered in the Scheuneman cases.

The HRDC complaint concerned the manner in which the Commission arrived at its decision. The Judge rightly reviewed the Commission’s decision regarding this complaint as a matter of procedural fairness. Where a proper inquiry into the substance of the complaint has not been undertaken, the Commission’s decision based on that improper investigation cannot be relied upon, since a defect exists in the evidentiary foundation upon which the conclusion rests. To determine the content of the duty of fairness in this case (i.e. the degree of investigative thoroughness required), the factors set out in Baker v. Canada (Minister of Citizenship and Immigration) were applied. The Commission’s decision at the screening phase is of great importance to the individual complainant, as a decision to dismiss the complaint will effectively deny the complainant the possibility of obtaining relief under the Act, and is therefore determinative of rights. Also, the complainant has no alternative, other than a complaint to the Commission, to vindicate the rights and interests at stake. Given the essential role of the investigation in the Commission’s handling of complaints, this consideration suggested increased requirements of procedural fairness, as did the fact that sufficient representations are made by the Commission for complainants to legitimately expect that their complaints will be investigated in a sufficiently thorough manner to take account of and test the substantive allegations founding the complaint. The appropriate content of procedural fairness was described in Slattery v. Canada (Human Rights Commission): “It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted . . . [C]ircumstances where further submissions cannot compensate for an investigator’s omissions would include . . .where the omission is of such a fundamental nature that merely drawing the decision‑maker’s attention to the omission cannot compensate for it.” Here, the failure to investigate the question of accommodation once leave without pay had commenced; the failure to explore whether such leave should have been extended; and the failure to investigate the alleged individual discrimination were sufficient to constitute a breach of the duty of fairness. With these omissions, compounded by a fundamental misapprehension of the respondent’s request of her employer (for a continuance of leave for another year), the report could not form a fair foundation for the Commission’s screening decision. The evidence omitted was so obviously crucial and of such fundamental nature that the respondent could not conceivably compensate for its absence through her responding submissions. The Judge was thus correct that the Commission’s investigation of the respondent’s HRDC complaint lacked thoroughness, and therefore, constituted a breach of procedural fairness.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).

Canadian Human Rights Act, R.S.C., 1985, c. H‑6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 7, 10 (as am. idem, s. 13(E)), 43(4) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64; 1998, c. 9, s. 24), 54 (as am. idem, s. 28).

Criminal Code, R.S.C., 1985, c. C‑46.

Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

cases judicially considered

applied:

Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2002] 5 W.W.R. 1; 179 B.C.A.C. 170; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 302 N.R. 34; 2003 SCC 19; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; (2003), 226 D.L.R. (4th) 193; 50 Admin. L.R. (3d) 1, 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Housen v. Nikolaisen, [2002] 2 S.C.R. 235; (2002), 211 D.L.R. (4th) 577; [2002] 7 W.W.R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 286 N.R. 1; 219 Sask. R. 1; 2002 SCC 33; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 127 B.C.A.C. 161; 66 B.C.L.R. (3d) 253; 46 C.C.E.L. (2d) 206; 244 N.R. 145.

distinguished:

Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365; (1999), 176 F.T.R. 59 (T.D.); affd (2000), 266 N.R. 154 (F.C.A.); Scheuneman v. Canada (Attorney General) (2004), 268 F.T.R. 1; 2004 FC 1157.

considered:

Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113; (1998), 167 D.L.R. (4th) 432 (C.A.); Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574; (1994), 73 F.T.R. 161 (T.D.); affd (1996), 205 N.R. 383 (F.C.A.); Connolly v. Canada Post Corp., 2002 FCT 185; [2002] F.C.J. No. 242 (QL); affd 2003 FCA 47; [2003] F.C.J. No. 140 (QL); Tahmourpour v. Canada (Solicitor General) (2005), 27 Admin. L.R. (4th) 315; 39 C.C.E.L. (3d) 229; 332 N.R. 60; 2005 FCA 113; Murray v. Canada (Human Rights Commission), 2003 FCA 222; [2003] F.C.J. No. 763 (QL); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 159; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1; revg [2000] 2 F.C. 592; (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (C.A.) (QL); Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; (2005), 254 D.L.R. (4th) 200; 28 Admin. L.R. (4th) 161; 197 C.C.C. (3d) 233; 30 C.R. (6th) 39; 47 Imm. L.R. (3d) 16; 335 N.R. 229; 2005 SCC 40; Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; (1979), 105 D.L.R. (3d) 609; 79 CLLC 14,223; 28 N.R. 494 (C.A.); Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Canada (Attorney General) v. Fetherston (2005), 332 N.R. 113; 2005 FCA 111; leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 239 (QL).

referred to:

Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455; (1995), 180 N.R. 152 (C.A.); Canadian Broadcasting Corp. v. Paul (2001), 198 D.L.R. (4th) 633; 33 Admin. L.R. (3d) 1; 9 C.C.E.L. (3d) 1; 274 N.R. 47; 2001 FCA 93; Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 (F.C.A.); Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321; 2002 FCA 4; Singh v. Canada (Attorney General) (2002), 291 N.R. 365; 2002 FCA 247; Gardner v. Canada (Attorney General) (2005), 339 N.R. 91; 2005 FCA 284; St‑Onge v. Canada, [2000] F.C.J. No. 1523 (C.A.) (QL); Elkayam v. Canada (Attorney General), 2005 CAF 101; [2005] A.C.F. No. 494 (QL); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; (1994), 114 D.L.R. (4th) 385; [1994] 7 W.W.R. 1; 22 Admin. L.R. (2d) 1; 46 B.C.A.C. 1; 92 B.C.L.R. (2d) 145; 14 B.L.R. (2d) 217; 4 C.C.L.S. 117; 168 N.R. 321; 75 W.A.C. 1; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; (1996), 133 D.L.R. (4th) 1; 37 Admin. L.R. (2d) 131; 195 N.R. 81; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1; Zündel v. Canada (Attorney General) (2000), 195 D.L.R (4th) 394; 30 Admin L.R. (3d) 82; 267 N.R. 92 (F.C.A.); Canada (Human Rights Commission) v. Toronto‑ Dominion Bank, [1998] 4 F.C. 205; (1998), 163 D.L.R. (4th) 193; 229 N.R. 135 (C.A.); Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; (1984), 14 D.L.R. (4th) 78; 9 Admin. L.R. 261; 9 C.C.E.L. 6; 6 C.H.R.R. D/2831; 84 CLLC 17,029; 55 N.R. 384; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; (1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T. 106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130; 37 N.R. 455; Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; (1994), 115 Nfld. & P.E.I.R. 334; 111 D.L.R. (4th) 1; 360 A.P.R. 334; 21 Admin. L.R. (2d) 248; 163 N.R. 27; Gale v. Canada (Treasury Board) (2004), 316 N.R. 395; 2004 FCA 13.

APPEAL from a decision of the Federal Court ((2004), 243 D.L.R. (4th) 679; 2004 FC 1151) allowing the respondent’s application for judicial review of a decision by the Canadian Human Rights Commission dismissing her complaints against the Treasury Board and Human Resources Development Canada. Appeal dismissed.

appearances:

Jan E. Brongers for appellant.

Andrew J. Raven for respondent.

solicitors of record:

Deputy Attorney General of Canada for appellant.

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, for respondent.

The following are the reasons for judgment rendered in English by

[1]Linden J.A.: This is an appeal by the Attorney General of Canada (appellant) from an order of a Federal Court Judge (the applications Judge), dated August 20, 2004 ((2004), 243 D.L.R. (4th) 679), granting the application of Ms. Diane Sketchley (respondent) for judicial review of a decision by the Canadian Human Rights Commission (CHRC or Commission), dated February 7, 2003, which had dismissed the respondent’s complaints against the Treasury Board of Canada (TB) and Human Resources Development Canada (HRDC).

[2]The respondent filed two complaints with the Commission, both concerning her alleged forced retirement from the public service, both based on alleged discrimination on the ground of disability. The first one, against the TB, alleged that its policy on leave without pay for medical reasons is discriminatory against disabled workers. The second, against her employer HRDC, alleged failure to accommodate her disability and discriminatory application of the TB policy in her case.

[3]For ease of reference, I include a table of contents identifying the issues considered in these reasons. *

A. THE ISSUES

[4]This appeal raises the following issues:

(i) Did the applications Judge err in law by treating the analysis of the investigator’s report as the Commission’s reasoning for its decision?

(ii) With respect to both complaints, did the applications Judge err in law in his choice and application of the standard of review in respect of the Commission’s decision?

(iii) With respect to the TB complaint, did the applications Judge err by finding that the TB policy constitutes prima facie discrimination, in the case of disabled employees who cannot provide a definite date for a return to work?

(iv) With respect to the HRDC complaint, did the applications Judge err in deciding that procedural fairness was not exercised by the Commission during its investigation?

* Editor’s note: The  Table of Contents included in the original reasons for judgment has been omitted.

[5]For the following reasons, all four questions are answered in the negative, and the appeal will be dismissed.

B. THE FACTS

[6]The respondent was permanently employed by HRDC from April 1, 1975 until 2000. She was diagnosed with chronic fatigue syndrome in November 1987, and then with fibromyalgia in October 1994.

[7]In August 1988, the respondent was granted seven weeks of full‑time sick leave, and from October 1988, she worked part‑time, gradually resuming full‑time work in 1990. In January 1993, she requested a reassignment to a less stressful position because of her deteriorating health, which was granted in April 1994. Her employer also permitted her to reduce her working hours, test a new ergonomic keyboard, and offered to purchase her a back support. In November 1994, on the advice of her physician and following her fibromyalgia diagnosis, the respondent began working part‑time.

[8]On her physician’s recommendation, the respondent took full‑time leave without pay in January 1997. In March 1997, the appellant recommended that the respondent take medical retirement, which the latter declined, as she wanted the opportunity to return to work when she was able.

[9]In March 1999, when the respondent had been on leave without pay for two years, the disability insurer, Sun Life, wrote to her employer requesting that it investigate and initiate termination of the respondent’s leave “if appropriate.” Sun Life’s letter to the employer was sent pursuant to a 1996 agreement between the insurer and the Treasury Board Secretariat, which agreement provided that the appellant would actively enforce the TB policy on leave without pay for medical reasons. According to this TB policy, the termination date of such leave should be decided within two years of the leave’s commencement, except in exceptional cases.

[10]In May 1999, the appellant asked the respondent to choose medical retirement or return to work. The respondent requested a continuance of leave for another year. The appellant responded in June 1999 that if she did not provide medical evidence to show a good chance of a return to work within a reasonable period of time, take medical retirement or resign, she would be terminated for incapacity.

[11]The respondent filed a grievance, which was denied at the third level in December 1999. In February 2000, the respondent then requested a personal needs leave to give her time to recuperate and determine her subsequent ability to work. This request was denied by the appellant in early March 2000. The appellant then asked the respondent to attend a medical evaluation with Health Canada, to assess if she was capable of returning to work immediately or in the reasonably near future. The respondent declined the referral to Health Canada.

[12]Finally, in April 2000, the respondent applied for medical retirement, which was approved by Health Canada effective April 4, 2000. To qualify for medical retirement, the respondent provided a certificate from her personal physician stating that she was permanently incapable of pursuing regularly any substantially gainful employment. The respondent argues that her application for medical retirement occurred under duress, because it was the only option open to her.

[13]In November 2000, the respondent filed her two complaints with the CHRC.

C. JUDICIAL HISTORY

1. Decision of the Commission

[14]At least four different investigators worked on the respondent’s two complaints. On June 21, 2002, 19 months after the complaints were filed, the last investigator to work on these complaints filed his reports with the Commission.

[15]On February 7, 2003, the CHRC issued a brief decision dismissing both complaints. With respect to the TB complaint, relating to the appellant’s policy on leave without pay for medical reasons, the CHRC, quoting verbatim the recommendations from the report concerning this complaint, wrote as follows:

· the respondent’s policy on termination makes provision for accommodating persons with disabilities; and

· the difference between those disabled employees who are able to provide a return date and those disabled employees who are not able to provide a date of return to work is not based on an enumerated ground of discrimination.

[16]With respect to the HRDC complaint, concerning the appellant’s alleged failure to accommodate the respondent, the CHRC, again using the words of the report, wrote:

· the evidence does not support the complainant’s allegation that the respondent did not accommodate her in employment; and

· the evidence indicates the complainant’s physician certified she is incapable of occupying any gainful employment on a regular basis.

[17]The legal and factual substance upon which the Commission based its decision can be found in the investigator’s reports. The applications Judge found that the Commission’s reasons must be taken to include and be based on those of the investigator’s reports. The appellant challenges this finding on appeal to this Court, which issue is discussed below. As the content of these reports is critical to resolution of this appeal, they are briefly summarized here.

2. The Investigator’s Report - TB Complaint

[18]In this complaint, the respondent alleged that the TB policy on leave without pay for medical reasons is discriminatory against employees with disabilities, as it forces a resolution of the employment relationship within two years of the leave’s commencement, and hence tends to deprive disabled individuals of employment opportunities on the basis of disability, contrary to section 10 [as am. by S.C. 1998, c. 9, s. 13(E)] of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] (Act).

[19]The report refers to both the TB policy and the 1996 agreement with Sun Life Assurance Company of Canada, and notes that the respondent’s allegation of discrimination applies to both. The respondent’s allegation that employees on leave without pay for reasons other than illness are permitted a longer duration than allowed under the TB policy and Sun Life agreement is noted, and the report also states that the respondent takes issue with the policy requirement that the date of termination of leave should be decided within two years of the commencement of leave.

[20]The report summarizes the appellant’s rebuttal submissions: that its policy reasonably accommodates disabled employees, that the policy complies with the requirements of the Act in that it permits flexibility in exceptional cases, and that the employer’s legal obligation to accommodate an employee does not include maintaining the employment relationship when it has been established that the employee will not be able to return to work in a foreseeable future.

[21]The report cites the single case of Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365 (T.D.) (Scheuneman No. 1), affirmed by the Federal Court of Appeal (1999), 266 N.R. 154, to support its analysis that the TB policy is not prima facie discriminatory, noting that Scheuneman No. 1 dealt with allegations similar to those set out by the respondent. (This case will be further discussed later in these reasons.)

[22]In the analysis section, the report begins by observing that “[t]he Federal Court has ruled [in Scheuneman No. 1] that allegations similar to those set out by the complainant do not set out a prima facie case of discrimination” (at paragraph 16). The report then concludes that “the difference between disabled employees who are able to provide a return date and those disabled employees who are not able to provide a date of return to work is not based on an enumerated ground of discrimination. Rather, it is based on the fact that a return date cannot be provided” (at paragraph 17).

[23]The report goes on to state that the purpose of leave without pay is to allow employees to take a limited period off work while maintaining continuity of employment, and there is a requirement therefore that the period be time limited, and not indefinite. The report therefore concludes that “it is inconsistent with the purpose of unpaid leave to provide continuity of employment to employees who have no reasonable prospects of returning to the workplace” (at paragraph 18). Moreover, the report adds, the TB policy does not treat disabled employees who are on leave without pay differently than those on leave without pay for other reasons.

[24]The report ends by recommending dismissal of the complaint, providing a two‑paragraph set of reasons which were reproduced verbatim in the Commission’s decision, in the language quoted in paragraph 15 above.

3. The Investigator’s Report - HRDC Complaint

[25]In this complaint, the respondent alleged that her employer, HRDC, discriminated against her by failing to accommodate her disability and by refusing to continue her employment, contrary to section 7 of the Act.

[26]The report provides the history of the respondent’s dealings with the appellant from the time her medical problems began. It then restates the specific complaints of the applicant [respondent in the present case]: first, that HRDC made no attempt to accommodate her once she was on leave without pay, and made no attempt to facilitate her return to work, but instead pressured her to take medical retirement, thereby delaying her recovery and the possibility of her returning to work; and second, that the appellant applied the TB policy on leave without pay for medical reasons in an adverse differential manner in her case, since other employees were allowed to remain for periods longer than two years on leave without pay for reasons of illness or disability.

[27]The report summarizes the appellant’s response to these allegations, highlighting in particular the accommodation provided before the respondent took leave without pay, and the medical evidence from the respondent’s physician certifying her permanent incapacity for substantially gainful employment. With respect to the respondent’s allegation of differential application of the TB policy in her case, the report repeats the respondent’s [appellant in the present case] statement that while some employees on leave have been continued beyond two years, a program was now in place to review if these employees could return to work, and if not to assist them in coming to terms with medical retirement.

[28]In the brief analysis section, the report notes that the respondent has been receiving disability insurance benefits since 1995, that the appellant attempted to accommodate her before she went on full‑time leave in 1997 on the advice of her physician, and that her physician in April 2000 declared her medically unable to perform any gainful occupation. The report therefore concludes that “the investigation does not support the complainant’s allegation that the respondent [now appellant before this Court] applies the Treasury Board policy in a discriminatory manner” (at paragraph 30).

[29]The report ends by recommending dismissal, providing a two‑paragraph set of reasons which mirrors exactly that provided by the Commission in its decision on this complaint, as quoted above in paragraph 16.

[30]As the applications Judge noted (at paragraph 16 of his reasons), the report makes no mention of any investigation as to the application of the TB policy to other employees on leave without pay. The only source of information on this question mentioned in the report is the appellant. In addition, no mention is made of the fact that, once the respondent was on leave without pay, no attempt was made by her employer to try to accommodate and facilitate her return to work.

4. Federal Court Decision

[31]The applications Judge’s analysis is predicated upon his finding that the Commission adopted the reasoning of the investigator: “Given the brevity of the [Commission] decision”, the applications Judge writes, “its reasons must be taken to be those of the investigator’s reports, whose recommendations and reasoning are reflected in the decision” (at paragraph 12).

[32]The applications Judge examines two issues in his reasons, one corresponding to each of the complaints: first, concerning the TB complaint, whether “the Commission err[ed] in law by finding that, in the case of disabled employees who cannot provide a definite date for a return to work, termination does not constitute prima facie discrimination”; and second, concerning the HRDC complaint, whether “the Commission breach[ed] the principles of natural justice or procedural fairness by failing to conduct a thorough investigation and analysis of the applicant’s allegations of discrimination” (at paragraph 3). He concludes that both questions should be answered in the affirmative.

[33]With respect to prima facie discrimination, the applications Judge concludes that the TB policy is discriminatory, as it differentiates on two bases: first, between those who take leave without pay because of medical disability and those who take such leave for other reasons; and second, on the basis of the degree of disability, between those who can at the two‑year point confirm their date of return to work, and those who cannot. The applications Judge also observes that the investigator did not properly apply the requisite undue hardship analysis, as he erroneously treated the provision of accommodation as a defence capable of completely negating a prima facie discriminatory practice. The applications Judge therefore concludes that the Commission made an error of law on this question which fatally flaws its decision.

[34]With respect to procedural fairness, the applications Judge notes with respect to the HRDC complaint that the investigator “did not address at all the substance of the complaint, which was that once leave without pay had been granted, there was no further discussion of accommodation” (at paragraph 52). Instead, the investigator seemed to accept the respondent’s [appelant in the present case] position that it had accommodated [Ms. Sketchley] to the fullest extent possible. The applications Judge observes that the report concerning the HRDC complaint provides no evidence that accommodation alternatives were considered after the respondent went on leave, and also no evidence that the investigator attempted to verify how the TB policy was enforced for other individuals on leave without pay for medical reasons. The “serious allegations” raised by the respondent were “dismissed perfunctorily” by the investigator (at paragraph 58). The applications Judge concluded therefore that the Commission’s decision was flawed procedurally as a result of the lack of thoroughness of the investigation and the investigator’s failure to properly analyse the respondent’s allegations.

[35]In the result, the applications Judge allowed the application for judicial review, set aside the Commission’s decision with respect to both complaints, and referred the matter back to the Commission to be reviewed by a new investigator.

D. ANALYSIS

1. The Treatment of the Investigator’s Report as the Commission’s Reasons for its Decision

[36]The applications Judge treated the analysis in the investigator’s reports as representing the Commission’s reasoning for its decision, citing the brevity of the Commission’s decision as a factor necessitating this approach (at paragraph 12). The appellant argues that this treatment constitutes an error of law, as such treatment is said to negate the separate and distinct roles of the investigator and the Commission.

[37]In my view, the appellant’s argument on this issue must fail. While it is true that the investigator and Commission do have “mostly separate identities”, (Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455  (C.A.), at paragraph 21, per MacGuigan J.A., (Décary J.A. concurring)), it is also well established that, for the purpose of a screening decision by the Commission pursuant to subsection 44(3) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64; 1998, c. 9, s. 24] of the Act, the investigator cannot be regarded as a mere independent witness before the Commission (Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at page 898 (SEPQA)). The investigator’s report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, at page 898). When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the screening decision under subsection 44(3) of the Act (SEPQA, at pages 902-903; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), at paragraph 30 (Bell Canada); Canadian Broadcasting Corp. v. Paul (2001), 198 D.L.R. (4th) 633 (F.C.A.), at paragraph 43).

[38]This approach is not, as the appellant claims, incompatible with the well accepted notion that flaws in the investigator’s report will not vitiate a Commission’s decision, so long as such flaws are not so fundamental that they cannot be remedied by further responding submissions by the parties (Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), affirmed (1996), 205 N.R. 383 (F.C.A.) (Slattery)). A reviewing court’s focus under this approach ultimately remains upon the Commission’s screening decision, which is reviewed with a high degree of deference with respect to fact‑finding activities: only errors evincing an error of law, patent unreasonableness in fact‑finding, or a breach of procedural fairness will justify the intervention of a court on review (Bell Canada, at paragraph 38; Connolly v. Canada Post Corp., 2002 FCT 185, at paragraph 28, affirmed 2003 FCA 47 (Connolly)). Such errors belong, virtually by definition, to the category of investigative flaws that are so fundamental that they cannot be remedied by the parties’ further responding submissions. The applicable standard for reviewing investigative thoroughness is therefore equivalent to that which applies on review of the Commission’s decision under subsection 44(3). As a result, there is no necessary inconsistency if, in appropriate circumstances like those of the case at bar, the investigator’s report is treated as constituting the Commission’s reasoning.

[39]In my opinion, therefore, the applications Judge did not err in finding that the reasoning of the Commission to support its decision under subsection 44(3) could be found by reference to the investigator’s reports.

2. The Standard of Review Generally

[40]The applications Judge notes at the outset of his analysis that “[b]oth parties agree that the standard of review to be applied in such a case [a decision of the Commission to dismiss a complaint] is reasonableness simpliciter” (at paragraph 32). On this basis, he concluded that “the standard to be applied is whether the decision of the Commission would withstand a ‘somewhat probing examination’ of its reasons” (at paragraph 32).

[41]Before this Court, the parties agreed that deference was due to the Commission in the exercise of its screening powers under subsection 44(3). The appellant argued, however, that the applications Judge exercised insufficient “deferential self‑discipline” in reviewing the Commission’s decision, and seized upon perceived flaws in the investigator’s report without asking himself whether the Commission’s decision, taken as a whole, was reasonable. The respondent disagreed, arguing that the applications Judge applied the appropriate level of curial deference, but found that the Commission’s decision was unreasonable.

[42]A careful reading of the applications Judge’s reasons reveals that, although he mentioned the standard of review of reasonableness simpliciter at the start of his reasons, this was not the standard he actually applied in his subsequent analysis of the Commission’s two decisions. Instead, he expressly treated the Commission’s decision on the TB complaint as a question of law, and the decision on the HRDC complaint as one of procedural fairness. For both of these issues, the applications Judge, without engaging in the pragmatic and functional analysis, appears ultimately to have applied the standard of correctness, although he does not fully explain this.

[43]In my view, the standards of review impliedly adopted by the applications Judge in his reasons were unimpeachable. In other words, the applications Judge applied the correct standards of review in his reasons, although the general standard of review he enunciated at the beginning of his analysis (reasonableness simpliciter) was not the appropriate one in the particular circumstances of this case. However, as the applications Judge mentioned a different standard than the one he rightly applied ultimately, and since this issue was the subject of lengthy argument before this Court, and because the pragmatic and functional analysis was not done by the applications Judge on the first issue, it is important to return to the basic principles governing the determination of the standard of review in this context to consider the approach to be adopted in a case such as this one.

[44]Counsel referred the Court to seemingly contradictory decisions by this Court concerning the appropriate standard of review to be applied with respect to a decision of the Commission under subsection 44(3) of the Act regarding whether or not to refer a complaint to a Tribunal. While some of the jurisprudence has applied the standard of reasonableness simpliciter (Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 (F.C.A.) at paragraph 9; Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.), at paragraph 13;  Singh v. Canada (Attorney General) (2002), 291 N.R. 365 (F.C.A.), at paragraph 7 (Singh); Tahmourpour v. Canada (Solicitor General) (2005), 27 Admin. L.R. (4th) 315 (F.C.A.), at paragraph 6 (Tahmourpour); Gardner v. Canada (Attorney General) (2005), 339 N.B. 91 (F.C.A.), at paragraph 21), a sizeable number of cases have used patent unreasonableness (Bell Canada, at paragraph 37; St‑Onge v. Canada, [2000] F.C.J. No. 1523 (C.A.) (QL), at paragraph 1; Murray v. Canada (Human Rights Commission), 2003 FCA 222, at paragraph 4 (Murray); Elkayam v. Canada (Attorney General), 2005 CAF 101, at paragraph 4). This apparent inconsistency is a predictable result of the application of the pragmatic and functional approach.

[45]Since different decisions call for different levels of deference, it is unsurprising that the Federal Court of Appeal has applied various standards of review to various decisions taken under subsection 44(3) of the Canadian Human Rights Act. Indeed, what would be surprising would be unanimity on the appropriate standard of review. Such a consensus might indicate slavish deference to precedent, as opposed to careful and nuanced applications of the pragmatic and functional approach on a case‑by‑case basis. Indeed, regardless of the standard adopted in these proceedings, future courts reviewing subsection 44(3) decisions must apply the pragmatic and functional approach anew.

[46]A review of the principles underlying the determination of the standard of review in this context may assist in clarifying this matter. As I explain in the remainder of this section, the pragmatic and functional analysis must be undertaken anew by the reviewing court with respect to each decision of an administrative decision maker, not merely each general type of decision of a particular decision maker under a particular provision. The pragmatic and functional analysis does not apply, however, to allegations concerning procedural fairness, which are always reviewed as questions of law.

[47]Typically, a screening decision of the Commission under subsection 44(3) of the Act involves a determination of a question of fact or of mixed fact and law. In such cases, the heavily fact‑specific nature of the decision at issue creates little precedential value. The standard of review of patent unreasonableness or reasonableness simpliciter will, all else being equal, likely be the appropriate outcome of the pragmatic and functional analysis in such cases. However, if as in this case, the screening decision of the Commission engages a question of law with general precedential value, and/or raises an issue of procedural fairness, the appropriate standard of review might be correctness. I now turn to this exercise.

(a) The primacy of the pragmatic and functional approach

[48]The Supreme Court of Canada has clearly stated that the pragmatic and functional approach must be undertaken by a reviewing judge “[i]n every case where a statute delegates power to an administrative decision‑maker” (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 21 (Dr Q)). It must be recalled that the “overall aim [of the pragmatic and functional approach] is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law” (Dr. Q, at paragraph 26). The pragmatic and functional analysis, therefore, is undertaken to determine the core issue of the proper degree of curial deference owed to administrative decision makers by the courts.

[49]I note that in none of the decisions relied upon by the parties to determine the applicable standard of review (including this one) did the reviewing court go through the process of applying the pragmatic and functional approach, which is now required.

(b) The importance of identifying the particular question at issue in the decision under review

[50]First, the requirement that a pragmatic and functional analysis be undertaken in every case emphasizes the importance of identifying the particular question at issue in the decision under review in any given case. As Bastarache, J. emphasized in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (Pushpanathan), “the focus of the inquiry is . . . on the particular, individual provision being invoked and interpreted by the tribunal” (at paragraph 28, underlining mine). The factors included within the pragmatic and functional approach are case‑specific in nature, and the Supreme Court of Canada has stressed the importance of not applying the approach “mechanically” or as “an empty ritual” (Dr. Q, at paragraph 26). Therefore, as complex as it may be, this analysis must be applied anew with respect to each decision, and not merely each general type of decision of a particular decision maker under a particular legislative provision. Even where it may appear that the issue has been settled in the jurisprudence, “[t]here is no shortcut past the components of the pragmatic and functional approach” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 21 (Ryan)).

[51]As a result, one cannot conclude that because a particular standard was found in a previous case to apply to a decision of the Commission under subsection 44(3), this same standard can be assumed necessarily to apply when reviewing another decision of the Commission under the same legislative provision. Similarly, one cannot conclude that the same standard of review will necessarily apply to all aspects of a Commission’s decision, especially if (as in this case) the Commission is dealing with multiple complaints at once. It is the particularities of the decision at issue in a given case that govern the standard of review to be employed by the reviewing Court.

(c)   The distinction between procedural fairness analysis and the standard of review analysis

[52]Second, the distinction between judicial review on the grounds of breach of procedural fairness, and the standard of review in other cases of substantive judicial review, must be recognized, as the pragmatic and functional approach properly applies only to the latter. Although Dr. Q appears to have implied that the pragmatic and functional analysis must be applied in every case of judicial review, this is not so; the Supreme Court’s comments in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 (CUPE), released shortly after Dr. Q, clarifies the matter. In CUPE, Justice Binnie explained as follows the interaction between procedural fairness and the pragmatic and functional standard of review analysis (at paragraphs 100, 102-103):

It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. It is only the ultimate exercise of the Minister’s discretionary s. 6(5) power of appointment itself that is subject to the “pragmatic and functional” analysis, intended to assess the degree of deference intended by the legislature to be paid by the courts to the statutory decision maker, which is what we call the “standard of review”.

. . .

The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.

On occasion, a measure of confusion may arise in attempting to keep separate these different lines of enquiry. Inevitably some of the same “factors” that are looked at in determining the requirements of procedural fairness are also looked at in considering the “standard of review” of the discretionary decision itself. . . . The point is that, while there are some common “factors”, the object of the court’s inquiry in each case is different. [Emphasis in original.]

(See also Bastarache J.’s dissenting opinion in CUPE, at paragraph 5, in which he agreed with the majority that procedural fairness and standard of review analysis are different inquiries which “proceed separately and serve different objectives,” and that with respect to procedural fairness, “there is no need to determine a degree of deference”.)

[53]CUPE directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at paragraph 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.

[54]CUPE thus makes clear that a given decision may be reviewed both in terms of procedural fairness and according to the pragmatic and functional standard of review, with respect to different aspects of the decision (the procedural decision making versus the substantive final decision). Procedural fairness concerns the manner in which the decision is made. The duty applicable in a given context will be determined according to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraphs 21‑28 (Baker) and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 115 (Suresh), amongst other cases. If the duty of fairness is breached in the process of decision making, the decision in question must be set aside. By contrast, the normal standard of review analysis concerns only the final substantive decision, and this standard of review is determined according to the pragmatic and functional analysis.

[55]This approach of separating procedural fairness from the standard of review inquiry accords with several of this Court’s judgments in the context of the Commission’s decisions under subsection 44(3). These decisions have emphasized precisely this distinction between procedural fairness and standard of review. For example, in Tahmourpour, Evans J.A. explained the standard of review as follows (at paragraphs 6-7):

. . . The  Court  will  only  intervene  if  the  Commission’s conclusion is unreasonable, absent a breach of the duty of fairness or other errors of law. . . .

A reviewing court owes no deference in determining the fairness of an administrative agency’s process. . . . Nonetheless, the court will not second guess procedural choices made in the exercise of the agency’s discretion which comply with the duty of fairness.

Similar reasoning has been enunciated by this Court in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (C.A.) (QL), at paragraph 3; Connolly, at paragraph 5, and Murray, at paragraph 4.

(d) The different review roles of a secondary appellate court as compared to a lower court

[56]Third, the distinct review roles of secondary appellate courts as compared to lower courts must be borne in mind. Dr. Q, at paragraphs 43‑44 clearly establishes that the standard of review at the secondary appellate level proceeds according to different principles than the pragmatic and functional analysis employed at the lower court level: as this Court is dealing with the appellate review of a lower court, not the judicial review of an administrative decision maker, the rules outlined in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 apply.

[57]The question of the proper standard of review is a question of law, and therefore must be answered correctly by a lower court reviewing judge. This Court must therefore determine on a correctness standard whether the reviewing judge has chosen and applied the proper standard of review. If the reviewing judge has erred in choosing or applying the standard of review, this Court must correct the error, substitute the appropriate standard, and assess or remit the administrative decision‑maker’s decision on that basis.

3. The Standard of Review in this Case

(a) The TB complaint

[58]In this complaint, the respondent alleged that the TB policy on leave without pay for medical reasons is discriminatory against employees with disabilities. The respondent’s appeal before the Federal Court with respect to this complaint concerned the final decision of the Commission—the conclusion that no prima facie discrimination had been shown—and not the manner in which the decision was made. The Commission’s decision in respect of the TB complaint must therefore be reviewed according to the standard of review determined by the pragmatic and functional analysis.

[59]Before undertaking the pragmatic and functional analysis, the particular question at issue in respect of the TB decision must be identified. I have already noted that the applications Judge analysed the Commission’s decision concerning the TB complaint as hinging on a question of law, namely whether the TB complaint established a prima facie case of discrimination. In my view, the applications Judge correctly identified this question of law as the question at issue for review purposes in respect of the TB complaint as one of law. The determination as to whether prima facie discrimination has been established in a particular complaint will in some cases be a question of mixed fact and law, and in others a question of law. The distinction between these categories of questions is perhaps inherently elusive (Pushpanathan, at paragraph 37; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 35), yet at the same time proper identification of the type of question at issue is an important step in determining the appropriate standard of review.

[60]In this case, a number of factors point towards the purely legal nature of the question at issue. The Commission’s analysis of the TB complaint as a whole was predicated upon its answer to the question of whether prima facie discrimination had been established, and its consideration of this key question was based solely upon an abstract analysis of the TB policy. The Commission’s reasoning (as gleaned from the analysis in the investigator’s report) demonstrates that its decision was entirely dependent upon its legal conclusions as to the determinative precedential value of Scheuneman No. 1 and whether the difference between disabled employees who are able to provide a return date and those who are not can ever amount to differentiation on the basis of an enumerated ground of discrimination. The Commission’s analysis in this regard did not engage with the particularities of the respondent’s specific circumstances, nor was it “intricately bound to. . . factual findings and inferences” concerning a unique situation (Ryan, at paragraph 41). In this case, in deciding whether the respondent’s TB complaint had made out a prima facie case of discrimination, the Commission was not applying a legal principle involving a multi‑factored balancing test, and it ultimately did not even consider “whether the facts satisfy the legal tests” (Southam, at paragraph 35). Rather, the Commission determined that the policy in question, in the abstract, could not disclose a prima facie case of discrimination on an enumerated ground.

[61]The particular question at issue in reviewing the Commission’s decision in this case on the TB complaint has thus been identified as the legal question of whether the TB policy was prima facie discriminatory. In making its determination in this case, pursuant to its screening function under subsection 44(3) of the Act, the Commission effectively only decided the legal question concerning prima facie discrimination. I will now examine the four factors of the pragmatic and functional approach applicable to this particular question in this particular context, as the applications Judge did not do this.

(i) Presence or absence of privative clause or statutory right of appeal

[62]The first factor directs the Court’s attention to the presence or absence of a privative clause or statutory right of appeal. In this case, the Canadian Human Rights Act provision governing the decision at issue states:

44. . . .

(3) On receipt of a report referred to in subsection (1), the Commission

(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and

(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or

(b) shall dismiss the complaint to which the report relates if it is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or

(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

[63]The Act thus contains no legislative guidance as to appeals or reviews of this type of decision. As noted in Dr. Q at paragraph 27, “silence is neutral, and ‘does not imply a high standard of scrutiny’” (quoting Pushpanathan, at paragraph 30).

[64]However, the legislative provision granting this Court jurisdiction to review Commission decisions— sections 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] and 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27) of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14)]—is also relevant. Subsection 18.1(4) reads:

18.1 . . .

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

[65]It should be noted that although six grounds of review are listed, the standards of review to be employed are not specified, except in respect of errors of fact (paragraph 18.1(4)(d)) which are reviewable if the findings are made in a perverse or capricious manner, a standard of review that is akin to patent unreasonableness. Historically, the other grounds listed —notably including an error of law—were generally considered to be reviewable on a correctness standard. However, contemporary Canadian administrative law is now founded on a recognition—as reflected in the pragmatic and functional approach—that curial deference will in some circumstances be due to administrative decision‑makers’ interpretations of particular types of legal questions (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Pushpanathan).

[66]In Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, a recent case concerning the review under the Federal Court Act [now Federal Courts Act] of a decision of the Immigration and Refugee Board (Appeal Division) in which the Board was required to interpret provisions of the Criminal Code [R.S.C., 1985, c. C-46], the Supreme Court of Canada, without any analysis of the prior jurisprudence, appears to indicate a new readiness to consider the language of Parliament in the Federal Court Act as influential, if not conclusive, in determining the applicable standard of review with respect to questions of law. It wrote (at paragraph 37):

Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act. Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness. [Emphasis mine.]

[67]Despite the unqualified and seemingly unequivocal tenor of this passage from Mugesera, in my view it would nevertheless be wise, at least until this matter is clarified, to continue to use the pragmatic and functional analysis to determine the standard of review of legal issues in cases of judicial review under the Federal Courts Act. This is so, because of the Supreme Court’s clear direction in Dr. Q, that it remains necessary to apply the pragmatic and functional approach in every case in which the standard of review falls to be determined.

[68]However, paragraph 37 of Mugesera, does suggest that in cases such as this one in which the Federal Courts Act governs, the provisions of this Act should, at the least, be considered within the pragmatic and functional analysis. Clearly, the Act conferring jurisdiction is surely relevant in relation to the ultimate concerns of judicial review—that is, legislative intent and the rule of law (Dr. Q, at paragraph 21).

[69]Therefore, in cases governed by subsection 18.1(4) of the Federal Courts Act, to the extent that the decision at issue is a question of law, the first factor of the pragmatic and functional analysis points towards the standard of correctness. However, that standard may not automatically apply to the review of all such questions of law, as the other pragmatic and functional factors—such as relative expertise—may in some cases predominate.

[70]In this case, given the abstract nature of the Commission’s reasoning, the question of whether prima facie discrimination had been established is clearly a question of law. Since this review is pursuant to subsection 18.1(4) of the Federal Courts Act, in my view the first factor leans towards the standard of correctness.

(ii)       Relative expertise

[71]Evaluation of the second factor, relative expertise, requires analysis of “three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision‑maker relative to this expertise” (Pushpanathan, at paragraph 33, quoted in Dr. Q, at paragraph 28).

[72]The specific issue before the Commission with respect to the TB complaint was a pure question of law—namely whether the TB policy was a prima facie  discriminatory. While this determination is certainly closely connected to the Commission’s core area of expertise, in that the legal issue arises directly from the Commission’s enabling statute, the Commission has no greater expertise than the courts in the area of basic human rights law. As La Forest, J. explained in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at page 585:

The superior expertise of a human rights tribunal relates to fact‑finding and adjudication in a human rights context. It does not extend to general questions of law. . . . These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. [Emphasis mine.]

(See also Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at paragraphs 23‑29.) These comments were made with respect to a decision by the Tribunal following an inquiry, but the same reasoning applies, with even greater force, in the case of a decision by the Commission to dismiss a complaint at the screening phase.

[73]This factor therefore also favours a standard of correctness.

(iii)        Purpose of the statute as a whole, and the provision in particular

[74]The purpose of the Act, as set out in section 2 [as am. by S.C. 1998, c. 9, s. 9], is essentially to prevent discriminatory practices based on a series of enumerated grounds. The protection of human and individual rights is a fundamental value in Canada and any institution, organization or person given the mandate by law to delve into human rights issues should be subjected to some control by judicial authorities.

[75]The particular decision at issue with respect to the TB complaint occurred in the course of the Commission’s screening function under subsection 44(3) of the Act. For any given complaint, the decision taken by the Commission pursuant to section 44 constitutes an important threshold in accessing the remedial powers of the Tribunal under section 54 [as am. idem, s. 28]: a decision at this stage by the Commission not to deal with a complaint is a decision which effectively denies the complainant the possibility of obtaining relief under the Act. The Commission’s activities with respect to the investigation of individual complaints and their selective referral to a Tribunal directly engages the individual rights and entitlements of the parties to a particular complaint. This aspect suggests a less deferential standard.

[76]At the same time, it is common knowledge that the number of complaints received far exceeds the number that the Commission may be able, due to practical and monetary considerations, to refer to a tribunal for further inquiries. As Décary, J.A. observed in Bell Canada, at paragraph 38:

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. . . . The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. [Emphasis mine.]

In general, at least in the assessment of practical and monetary matters, the Commission is in a better position than the Federal Court to assess whether any given complaint should go further. This consideration thus leans in favour of greater deference.

(iv)   Nature of the problem

[77]As noted by Sopinka J. in SEPQA, at page 899, the question to be decided by the Commission at the conclusion of the screening process is whether there was “a reasonable basis in the evidence for proceeding to the next stage.” The investigator is essentially engaged in a fact‑finding mission but the Commission itself, when it takes action on the basis of the investigator’s report, is nevertheless applying the facts in the context of the legal requirements of the Canadian Human Rights Act. The resulting decision will in general be one of mixed fact and law, calling “for more deference if the question is fact‑intensive, and less deference if it is law‑intensive” (Dr. Q, at paragraph 34).

[78]In a case such as this one, however, the Commission’s ultimate decision is wholly dependent on its conclusion concerning a particular and discrete question of law. This prior question of law is one of general importance, and apt to be of interest to others in the future. The nature of the question thus points towards a strict standard of review with respect to the prior question of law.

[79]It is also important in this context to distinguish between screening decisions of the Commission to dismiss a complaint pursuant to paragraph 44(3)(b), and decisions to accept a complaint and refer it to a Tribunal pursuant to paragraph 44(3)(a). In decisions of the latter type, the Commission is not acting as an adjudicative body making conclusive determinations as to whether a complaint has been made out (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at paragraph 54). In these circumstances, the “legal assumptions made by the Commission in deciding to request the formation of a Tribunal do not amount to decisions as to the state of the law or its impact on those concerned” (Zündel v. Canada (Attorney General) (2000), 195 D.L.R. (4th) 394 (F.C.A.), at paragraph 4).

[80]However, when the Commission decides to dismiss a complaint, its conclusion is “in a real sense determinative of rights” (Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.) at page 697 (Latif)). Any legal assumptions made by the Commission in the course of a dismissal decision will be final with respect to its impact on the parties. Therefore, to the extent that the Commission decides to dismiss a complaint on the basis of its conclusion concerning a fundamental question of law, its decision should be subject to a less deferential standard of review.

[81]Applying the pragmatic and functional approach to the Commission’s particular decision in the TB complaint, the four factors lead on balance to a standard of review of correctness. For its decision with respect to this complaint to be upheld, the Commission was required to have decided correctly the legal question of whether the TB policy is prima facie discriminatory, a question which I consider below.

(b)    The HRDC complaint

[82]In this complaint, the respondent alleged that HRDC discriminated against her by failing to accommodate her disability and by refusing to continue her employment. The respondent’s appeal before the Federal Court with respect to this complaint concerned the manner in which the Commission arrived at its decision, namely the thoroughness of the Commission’s investigation. The Commission’s decision in respect of the HRDC complaint is therefore to be reviewed by this Court as a matter of procedural fairness, to which the pragmatic and functional analysis does not apply.

[83]In his reasons [at paragraph 3], the applications Judge described the issue as “Did the Commission breach the principles of natural justice or procedural fairness by failing to conduct a thorough investigation and analysis of the applicant’s [respondent’s] allegations of discrimination?” It is clear from the applications Judge’s reasons that he in fact, although not expressly, reviewed the decision regarding the HRDC complaint as a matter of procedural fairness, and not as a question to be decided by the application of the pragmatic and functional standard of review. He was right to do so.

[84]This Court must therefore review the Commission’s decision with respect to the HRDC complaint as a question of procedural fairness: first, the content of the duty of fairness in this context must be determined, and second, it must be decided if the Commission’s investigation breached this duty. If the duty was breached, the Commission’s decision must be set aside.

[85]As the review of the Commission’s decision with respect to the HRDC complaint does not require a pragmatic and functional analysis of the standard of review, I will return to this question later.

4. The Application of the Correctness Standard of Review to the Finding concerning the Prima Facie Discriminatory Nature of the TB Policy

[86]At the outset, I must reiterate the overarching principles of the British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin) test, whereby human rights cases are determined. Initially, the onus lies on the complainant to prove prima facie discrimination. A prima facie case is one which “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in complainant’s favour in the absence of an answer from the respondent‑ employer” (Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd. et al., [1985] 2 S.C.R. 536, at page 558). That being established, it is then incumbent on the employer to justify that discrimination as a bona fide occupational requirement (BFOR).

[87]A BFOR is not a “cleansing agent”, but a defence to a prima facie case that relieves the employer from liability. (See Robertson J.A. in Canada (Human Rights Commission) v. Toronto Dominion Bank, [1998] 4 F.C. 205 (C.A.), at paragraph 130.) A BFOR is established by proof on a balance of probabilities of the requisite elements as set out in the Meiorin test: first, that the purpose is rationally connected to the performance of the job; second, that the standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work‑related purpose; and third, that the standard is reasonably necessary to accomplish that purpose, in that accommodation is not possible short of undue hardship (Meiorin, at paragraph 54).

[88]In this case, the impugned standard—the Treasury Board policy on leave without pay—provides as follows (Federal Court reasons for order, at paragraph 33):

Leave without pay must be authorized in accordance with the relevant authority, that is, the collective agreement or the appropriate terms and conditions of employment.

For the following leave without pay situations, departments must adhere to the standards in Appendix A of this policy:

-  illness or injury;

-  employment in the office of a minister

-  Reserve Forces training.

[89]Appendix A provides the following terms for leave without pay for reasons of illness or injury (Federal Court reasons for order, at paragraph 34):

When employees are unable to work due to illness or injury and have exhausted their sick leave credits or injury on duty leave, managers must consider granting leave without pay.

Where it is clear that the employee will not be able to return to duty within the foreseeable future, managers must consider granting such leave without pay for a period sufficient to enable the employees to make the necessary personal adjustments and preparations for separation from the Public Service on medical grounds.

Where management is satisfied that there is a good chance the employee will be able to return to duty within a reasonable period of time (the length of which will vary according to the circumstances of the case), leave without pay provides an option to bridge the employment gap. Management must regularly re‑examine all such cases to ensure that continuation of leave without pay is warranted by current medical evidence.

Management must decide upon the termination date for such leave without pay two years of the leave’s commencement, although it can, in some circumstances, be extended to accommodate exceptional cases.

The period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining.

[90]The applications Judge held that, in concluding that the TB policy was not prima facie discriminatory, the Commission made “an error of law which fatally flaws its decision” (at paragraph 49). This finding was based on the application Judge’s identification of two ways in which the TB policy differentiates on the basis of disability. As I discussed above, the standard of review is correctness for this finding concerning prima facie discrimination.

[91]With respect to the first basis of differentiation, the applications Judge observed (at paragraphs 35-36, 38):

The obligation for managers to “resolve such leave without pay situations within two years of the leave’s commencement” applies only in the case of illness and injury. Thus, clearly, the policy differentiates between those who take leave without pay because of medical disability, and those who take leave without pay for other reasons.

This differentiation is the essence of discrimination. Discrimination is not defined in the Act, but in Andrews v. Law Society of British Columbia, [1998] 1 S.C.R. 143, at p. 174, the Supreme Court of Canada defined it as follows:

[. . .] discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. [. . .].

[. . .]

The policy clearly mentions that for certain situations of leave without pay, managers must comply with the terms of Appendix A. The only situation where Treasury Board insists on the two‑year term for leave without pay is illness and injury; other situations, presumably, are left to the discretion of departmental managers. [Emphasis in original.]

I agree with this analysis. The applications Judge was correct in holding that the relative inflexibility of the two‑year deadline imposed by the TB policy on leave for medical reasons, in comparison with the absence of such deadlines in the policy applicable to leave without pay for other reasons, is sufficient to establish a prima facie case of discrimination under section 10 of the Act.

[92]With respect to the second basis of differen-tiation, the applications Judge noted (at paragraphs 39-41) that

Workers with disabilities who can confirm the date of their return to work are presumably less disabled in that point in time than workers who cannot yet state the date of return to work. The difference is based on the degree of disability, a prohibited ground of discrimination.

In Battlefords and District Co‑operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, the Supreme Court of Canada clearly determined that establishing categories within a prohibited ground can itself lead to discrimination. . . .

In the case at bar, the investigator stated that since people with disabilities who could state their date of return would not be terminated, there was no discrimination against people with disabilities, ignoring that segment of people with disabilities who because of their disability, could not confirm their date of return. [Emphasis in original.]

I agree fully with this analysis as well.

[93]Having reached the erroneous conclusion that a prima facie case had not been established, the Commission did not consider the question of accommodation or whether the requisite elements of a BFOR were made out. As the applications Judge concluded (at paragraph 42), the Commission’s incorrect conclusion with respect to the prima facie case appeared to render the BFOR analysis unnecessary:

It is clear that the investigator, having come to the conclusion that the policy was not discriminatory, never addressed the operational requirements or the undue hardship analysis. Because the policy provides for accommodation, and because the Federal Court of Appeal has ruled in Scheuneman that the policy in that case was not discriminatory, the investigator never admits the possibility of a prima facie violation, and the analysis is cut short.

[94]Counsel for the Crown conceded before this Court that the Commission’s BFOR analysis was formally deficient, in that the report contained neither an express finding of prima facie discrimination nor an express consideration of the elements of the BFOR test. The Crown asserted, however, that the Commission’s conclusion should nevertheless be upheld, as in its view the TB policy “necessarily” and “implicitly” reflects a BFOR that accommodates to the point of undue hardship, namely the principle that “no employer should be expected to maintain an employment relationship with an employee who is permanently incapable of occupying any gainful employment on a regular basis” (notice of appeal, A.B., at page 3).

[95]The principle described by the Crown may be a correct statement of the law on this issue, and an implicit BFOR analysis may in some limited cases be possible—and I make no finding on either of these questions—but the interpretation advanced by the Crown is clearly an incorrect summation of the employment standard embodied by the TB policy. In this case, the impugned standard has a wider effect than suggested by the appellant: barring “exceptional” circumstances, it applies adversely to those employees on medical leave without pay who cannot, at the two-year point, demonstrate the ability to return to work within the foreseeable future. As the applications Judge rightly held, this distinction is prima facie discriminatory, in that the TB policy will foreseeably force the premature retirement of those disabled employees who, by reason of the nature of their disability, cannot at the two‑year mark predict their date of return to work, yet at the same time, again by reason of the nature of their disability, cannot yet determine whether the disability has caused permanent incapacity for gainful employment on a regular basis. In making its screening decision in this case, the Commission clearly did not consider the BFOR test, and rendered no decision on this crucial question. In these circumstances, the requirements of the Meiorin BFOR test have not been established as required, and this Court will not impute them as urged by the appellant.

(a)    Scheuneman No. 1 and Scheuneman No. 2

[96]The appellant’s final argument on this issue was that the applications Judge erred in not following certain decisions of the Federal Court of Canada and this Court, that is, Scheuneman No. 1 and Scheuneman v. Canada (Attorney General) (2004), 268 F.T.R. 1 (F.C.) (Scheuneman No. 2). The appellant argues that these decisions bind this Court. Both of these decisions dealt, in part, with problems arising out of the same policy under attack in this case.

[97]In Scheuneman No. 1, there was a judicial review challenge to the decision of an adjudicator of the Public Service Staff Relations Board denying the applicant’s grievance. The applicant, who suffered from chronic fatigue syndrome, was self‑represented and the case was essentially decided on the written record, as the applicant requested, because an oral presentation was difficult for him due to his disabilities (see paragraph 2 of reasons in Scheuneman No. 1).

[98]The original applications Judge, the late Mr. Justice Cullen, carefully dealt with the many legal submissions, among them a Charter challenge pursuant to subsection 15(1) [Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He explained that, in the “fairly unique” circumstances, he did not “consider the question of . . . a subsection 15(1) Charter violation to be of much precedential value” and analysed the question as one of “mixed law and fact” (paragraph 52). The applications Judge in Scheuneman No. 1 went on to hold that, in relation to the “stubborn” applicant, the policy was implemented in a “sympathetic and humane way” and was not discriminatory, considering that the applicant had had medical leave status for eight years and was unable to return to work in the foreseeable future. Mr. Justice Cullen wrote (at paragraph 58):

The policy in question is unlike others which, having been indifferently applied, were found to have an adverse effect on a small number of individuals; see Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd. et al., [1985] 2 S.C.R. 536. The policy is flexible enough to accommodate even those whose illness prevents them from returning to work for many years. The policy, therefore, does not discriminate against the applicant.

[99]On appeal to this Court, Justice Evans upheld this decision and wrote (at paragraph 7):

In my opinion these facts do not establish a breach of section 15. The appellant was dismissed because he was unable to perform any work and was unlikely to be able to do so in the foreseeable future. It is a basic requirement of the employment relationship that an employee must be able to undertake work for the employer or, if temporarily disabled by a medical condition from so doing, must be able to return to work within a reasonable period of time. Dismissing a person who cannot satisfy this requirement is not, in the constitutional sense, discrimination on the ground of disability.

[100]After Mr. Scheuneman tried several other avenues of appeal and failed, he filed a complaint with the Canadian Human Rights Commission, based on sections 7 and 10 of the Act. His complaint was dismissed by the Commission. Mr. Scheuneman sought judicial review in the Federal Court of Canada, which dismissed his application. The Federal Court Judge in Scheuneman No. 2 explained (at paragraph 19):

With respect to the prima facie case, the Applicant did not suggest and I have not identified any material differences in the approach to be taken under the Charter and the CHRA. Accordingly, I have concluded that, once the Federal Court of Appeal upheld the Cullen decision and the Supreme Court of Canada refused leave in the Grievance Proceedings, the Court of Appeal’s decision to the effect that the Applicant had not made out a prima facie case of discrimination arising from his termination was final. In reaching this conclusion, I have noted that the facts relating to the threshold issue of whether a prima facie case has been shown are the same in the Grievance and the Commission Proceedings and that the issue of a prima facie case was specifically addressed by Justice Cullen and by the Federal Court of Appeal in the manner described above in paragraph 9 and following. I consider the Court of Appeal’s decision to be a binding authority which disposes of this issue. . . .

[101]On the basis of the Scheuneman decisions and others, the appellant now contends that this Court is in the case at bar bound to reverse the applications Judge’s decision, as it would be “nonsensical” for a policy that was found to be non‑discriminatory under section 15 of the Charter to be discriminatory under sections 10 and 15 of the Act.

[102]While one might expect a certain degree of consistency between decisions on similar facts under section 15 of the Charter and under sections 10 and 15 of the Act, the jurisprudence has not established that they need always be identical. I note that in none of its recent decisions with respect to human rights codes has the Supreme Court of Canada expressly stated that section 15 equality analysis and human rights discrimination analysis must always exactly mirror each other. We need not decide that issue in this case.

[103]In my view, the Scheuneman No. 2 decision, which was issued on the same day as this decision under appeal, did not contain a full analysis of the issue of the relationship of section 15 of the Charter and the Canadian Human Rights Act, in part perhaps because the applicant was unrepresented, and hence, the arguments were not fully developed.

[104]In the case at bar, the applications Judge distinguished the Scheuneman No. 1 case on other grounds beyond the fact that the case was decided under the Charter and not the Act, and these grounds are sufficient to dispose of the appellant’s argument in this regard. The applications Judge quoted the reasoning of Justice Cullen, the applications Judge in Scheuneman No. 1, who wrote at paragraph 59:

The actions of departmental employees in implementing the policy, therefore, cannot be characterized as discriminatory. As a result, the applicant’s treatment cannot be considered prima facie discriminatory pursuant to subsection 15(1) of the Charter. The Adjudicator was, therefore, correct on the question of whether there was sufficient evidence to found a claim of discrimination. [Underlining mine.]

[105]The applications Judge in the case at bar concluded as follows (at paragraph 48):

With respect, the policy as such is not addressed. When Justice Cullen writes, “The policy is flexible enough to accommodate even those whose illness prevents them from returning to work for many years”, he is commenting on the implementation of the policy, not its content. [Underlining mine.]

[106]When Scheuneman No. 1 was affirmed by this Court, in a brief two‑page decision, the Court did not refer specifically to the policy being challenged and, hence, the decision cannot be taken as a binding precedent in that regard.

[107]In addition, this Court understood that Mr. Scheuneman was seeking to remain on leave without pay indefinitely, and decided the case on that basis. Counsel for the appellant in the case at bar sought to persuade this Court that the respondent in this case also wished to remain indefinitely on leave, but this was not the case; she merely wanted to maintain an employment linkage for one more year of medical leave, to keep open the chance of recovering and returning to work, as some of the evidence indicated that some sufferers of her disease did recover after 4‑5 years.

[108]It should also be noted that the role of the Sun Life Assurance Company of Canada in strictly enforcing the two‑year deadline of the TB policy, and thereby reducing the flexibility of the policy, was not considered at all in the Scheuneman cases, as the agreement with the company had not yet been finalized. This factor is a significant element in this case and must be considered as part of the distinguishing circumstances of this case, especially in the context of the BFOR analysis.

[109]For the above reasons, I conclude that the applications Judge was legally correct in his finding that the TB policy is prima facie discriminatory in the case of disabled employees who cannot provide a definite date for a return to work.

5.   Procedural Fairness in the Commission’s Investigation

[110]The applications Judge treated the review of the respondent’s HRDC complaint as a question of procedural fairness, and held that the investigation with respect to this complaint was flawed for lack of thoroughness, as the investigator was found to have failed to “address at all the substance of the complaint” (at paragraph 52) and “dismissed perfunctorily” the “serious allegations” made by the respondent (at paragraph 58). In his reasons, the applications Judge highlights three areas of particular deficiency in the investigation: first, failure to investigate the question of accommodation once leave without pay had commenced (at paragraphs 52 and 57‑58); second, failure to explore whether such leave should have been extended, according to the terms of the TB policy, to accommodate “special recovery problems” (at paragraphs 53‑54 and 57‑58); and third, failure to investigate the alleged individual discrimination by not interviewing other public servants who the respondent alleged were on leave without pay for medical reasons for  periods longer than that granted to her (at paragraphs 55‑58).

[111]As I explained above, the pragmatic and functional approach does not apply to questions of procedural fairness. This Court must therefore determine whether the applications Judge was correct in his determination that the investigation of the respondent’s HRDC complaint constituted a breach of the duty of fairness due in the circumstances.

[112]It is clear that a duty of procedural fairness applies to the Commission’s investigations of individual complaints, in that the question of “whether there is a reasonable basis in the evidence for proceeding to the next stage” (SEPQA, at page 899) cannot be fairly considered if the investigation was fundamentally flawed. As the Supreme Court of Canada noted in SEPQA, “[i]n general, complainants look to the Commission to lead evidence before a tribunal appointed under s. 39 [now section 49], and therefore investigation of the complaint is essential if the Commission is to carry out this role” (at page 898). This same consideration—the indispensable nature of the investigation in the Commission’s handling of each individual complaint—applies equally to an investigation undertaken prior to dismissal of a complaint under paragraph 44(3)(b). Where a proper inquiry into the substance of the complaint has not been undertaken, the Commission’s decision based on that improper investigation cannot be relied upon, since a defect exists in the evidentiary foundation upon which the conclusion rests (Singh, at paragraph 7).

[113]The existence of the duty of fairness in this case does not, however, determine what requirements are applicable in this context, as the content of procedural fairness is variable and must be determined in the specific context of each case (Baker, at paragraph 21). In Baker, L’Heureux‑Dubé, J. set out at paragraphs 22‑28 a non‑exhaustive list of factors to consider in determining the content of procedural fairness in any given context; these factors have been affirmed by the Supreme Court of Canada and this Court [[2000] 2 F.C. 592 (C.A.)] in Suresh and Canada (Attorney General) v. Fetherston (2005), 332 N.R. 113, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 239.

[114]The issue of the content of the duty of fairness in the context of a decision by the Commission to dismiss a complaint has been addressed in a number of cases, most notably SEPQA, Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407 (Radulesco) and Latif. In addition, the content of the duty in the particular context of an investigation leading to a dismissal under paragraph 44(3)(b) was carefully considered by the Federal Court of Canada in Slattery, in a decision which was recently cited by this Court as “the leading case on this issue” (Tahmourpour, at paragraph 8; see also Singh, at paragraph 4). These cases were all decided before the law concerning procedural fairness was summarized and restated by the Supreme Court in Baker. However, the conclusion in these cases, as to the content of the duty in this context, remains valid.

[115]In order to determine the degree of investigative thoroughness required in this context, the factors from Baker must be applied. First, how close is the administrative process to the judicial process? As the Supreme Court stated in SEPQA, at the screening phase under subsection 44(3) [then subsection 36(3)] “[i]t is not intended that this be a determination where the evidence is weighed as in a judicial proceeding”; rather, the Commission must determine “whether there is a reasonable basis in the evidence for proceeding to the next stage” (at page 899). In this context of the Commission’s screening function, the investigator must be considered “as an extension of the Commission” who “prepares a report for the Commission” (SEPQA, at page 898). The investigator’s recommendations are often adopted by the Commission at this stage. However, the parties are provided with a copy of the investigator’s report, and are entitled to make submissions in writing before a decision is made (SEPQA, at page 899; Radulesco, at page 410). This consideration thus points towards a weaker level of procedural protection.

[116]The second factor is the nature of the statutory scheme. In Baker, L’Heureux‑Dubé, J. wrote (at paragraph 24) that greater procedural protection is appropriate when a decision is determinative of the issue and further requests cannot be submitted. In this case, there is no applicable privative clause and judicial review is available for the Commission’s screening decision. Moreover, the Act provides no legislative guidance concerning the general conduct of investigations or minimum duties of investigators; subsection 43(4) provides for the making of regulations in this regard by the Governor in Council, but none have been passed. At the same time, however, the investigation is a crucially important step in the processing of complaints by the Commission (SEPQA, at pages 897-898). This factor therefore pulls in contrary directions, and on balance implies neither strong nor weak procedural safeguards.

[117]The third factor is the importance of the decision to the individual affected. There can be no doubt that the Commission’s decision at the screening phase is of great importance to the individual complainant. A decision by the Commission to dismiss a complaint at the screening phase will effectively deny the complainant the possibility of obtaining relief under the Act, and is therefore “in a real sense determinative of rights” (Latif, at page 697). Moreover, to the extent that a direct civil cause of action with respect to the alleged discrimination is precluded (Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181), the complainant has no alternative, other than a complaint to the Commission, to vindicate the rights and interests at stake. Given the “essential” role of the investigation in the Commission’s handling of complaints (SEPQA, at page 898), this consideration suggests increased requirements of procedural fairness.

[118]The fourth Baker factor is the legitimate expectations of the person challenging the decision, where undertakings were made concerning the procedure to be followed. In my view, sufficient representations are made by the Commission for complainants to legitimately expect that their complaints will be investigated in a sufficiently thorough manner to take account of and test the substantive allegations founding the complaint. The investigation by the Commission is the only mechanism within the process established by the Act by which the Commission can obtain the evidence it needs to pursue a complaint before a Tribunal, if it decides this is warranted, or alternatively dismiss the complaint. Under the Act, the Commission, and not the complainant, bears the primary responsibility for establishing the evidentiary record, as it is the Commission which ultimately presents complaints before the Tribunal. In this vein, the Commission’s standard letter to complainants following a dismissal decision at the screening phase states an assurance that “the Commissioners examined your complaints very carefully before arriving at these decisions” (see appeal book at Tab 4). This factor points towards a higher level of procedural protection.

[119]Finally, the choice of procedure made by the administrative decision maker must be considered, especially when—as in this case—the statute is silent on this issue. In Baker, L’Heureux‑Dubé J. observed that while this factor “is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints” (at paragraph 27). The Commission receives many more complaints than it can, for both practical and budgetary reasons, refer to a tribunal for further inquiry. The Commission’s procedural choices in this regard deserve respect, as it remains the master of its own procedure, so long as this procedure does not contravene the duty of fairness. This consideration thus points strongly towards a lesser degree of procedural protection.

[120]In Slattery, the applications Judge considered the degree of thoroughness of investigation required to satisfy the rules of procedural fairness in this context. He noted the “essential role that investigators play in determining the merits of particular complaints” (at page 599), and also the competing interests of individual complainants and the administrative apparatus as a whole (at page 600). He concluded as follows (at pages 600-601):

Deference must be given to administrative decision‑makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted . . . .

In contexts where parties have the legal right to make submissions in response to an investigator’s report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision‑maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator’s omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision‑maker’s attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision‑maker by virtue of the protected nature of the information or where the decision‑maker explicitly disregards it. [Underlining mine.]

[121]Weighing the Baker factors, I agree that this is an appropriate description of the content of procedural fairness in this context.

[122]With respect to the HRDC complaint in the case at bar, the applications Judge described three areas of particular deficiency in the investigation. For convenience, I will repeat these investigative omissions here: first, failure to investigate the question of accommodation once leave without pay had commenced (at paragraphs 52 and 57‑58); second, failure to explore whether such leave should have been extended, according to the terms of the TB policy, to accommodate “special recovery problems” (at paragraphs 53‑54 and 57‑58); and third, failure to investigate the alleged individual discrimination by not interviewing other public servants who the respondent alleged were on leave without pay for medical reasons for periods longer than that granted to her (paragraphs 55‑58). The applications Judge also found that the investigator had misapprehended the respondent’s request, by implying that the respondent sought indefinite leave without pay, when in fact she “never requested to be kept on indefinitely; she requested additional time for recovery and to consider her options” (at paragraph 61).

[123]In my view, these investigative omissions are sufficient to constitute a breach of the duty of fairness due in these circumstances, and therefore warrant the quashing of the Commission’s decision. With these investigative omissions, compounded by a fundamental misapprehension of the respondent’s request of her employer, the report could not form a fair foundation for the Commission’s screening decision.

[124]The identified investigative omissions are not, as the appellant argues, merely minor flaws that cannot upset the ultimate “reasonableness” of the Commission’s decision. Rather, the evidence omitted is so obviously crucial and of such a fundamental nature that the respondent could not conceivably compensate for its absence through her responding submissions, although her detailed submissions display a laudable effort to do so. For example, how could the respondent establish the alleged failure to accommodate after her leave commenced, when the investigator had not investigated this allegation at all? Similarly, how could the respondent prove her allegation that the TB policy was applied in a discriminatively strict manner in her case, when the investigator had not investigated how the policy was applied in the case of other similarly situated employees?

[125]I conclude, therefore, that the applications Judge was correct in holding that the Commission’s investigation of the respondent’s HRDC complaint lacked thoroughness, and therefore, constituted a breach of procedural fairness. In these circumstances, the question of whether the Commission’s ultimate decision was reasonable or not becomes immaterial because, once a breach of procedural fairness is established, the decision is normally set aside, subject to the Court’s discretion not to grant a remedy where the same result would be inevitable. See: Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pages 228‑229; Gale v. Canada (Treasury Board) (2004), 316 N.R. 395 (F.C.A.), at paragraph 13.

E. CONCLUSION

[126]For the above reasons, I would dismiss the appeal and refer the matter back to the Commission for the respondent’s complaints to be reviewed by a different investigator, in a manner consistent with these reasons. Costs to the respondent.

Décary J.A.: I agree.

Sexton J.A.: I agree.