HUMAN RIGHTS |
Moran v. Canada (Department of Industry)
T-1360-99
2001 FCT 561, O'Keefe J.
31/5/01
15 pp.
Judicial review of dismissal by Canadian Human Rights Commission (CHRC) of complaint of discrimination in employment because of disability--In 1994 applicant placing second on eligibility list for position of Senior Bankruptcy Officer position with department now called Industry Canada--First-ranked candidate accepted job--In May 1995 applicant suffered minor stroke--In April 1996 Industry Canada running competition for Senior Bankruptcy Officer--1994 eligibility list expired on March 31, 1996--Had list been extended to September 1998 (to maximum of two years), applicant would have been appointed to position as only remaining name upon list--Applicant not competing in 1996 competition--Filing complaint alleging respondent discriminated against him in employment on ground of disability (minor stroke) by refusing him higher level job contrary to Canadian Human Rights Act, s. 7--Alleging respondent not extending 1994 eligibility list, holding 1996 competition because not wanting to hire applicant as disabled as result of stroke--Investigator appointed by CHRC to investigate complaint concluding applicant's failure to enter 1996 competition not affecting merits of complaint; recommending conciliation--Investigator's report sent to both parties for comments--Both parties providing written submissions--CHRC deciding to dismiss complaint as: evidence not supporting allegation respondent discriminated against complainant because of disability; no evidence linking complainant's stroke with decision not to extend eligibility list; although complainant eligible, not applying for 1996 competition--Applicant claiming respondent's response to investigator's report contained material, including arguments, not made known to him until after CHRC issued decision--Such "new material" primarily respondent's position staffing decision not based on applicant's disability--Initially respondent's position apparently that manager not having authority to extend term of eligibility list--Issue of applicant's "alleged disability" rising to forefront only in May 28, 1998 letter in response to investigator's report--In addition, May 28, 1998 letter containing very forceful arguments to effect applicant denied himself potential access to position because not applying in 1996 competitive process --Important to allow applicant opportunity to give full answer prior to CHRC making decision as decision dismissed applicant's complaint--May 28 letter should have been given to applicant for comments--Raising issue of applicant's "alleged disability" and also putting much stronger position forward with respect to applicant's failure to apply in 1996 competition--In fact, letter stating by not applying in 1996 competition, applicant denying himself potential access to opportunity--Investigator stating in report failure to apply not affecting merits of complaint, yet CHRC using failure to apply as one of the reasons for dismissing complaint--Failure to disclose May 28 letter breach of procedural fairness--CHRC's decision set aside--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 7.