The Commission enjoys broad discretionary powers with respect to the reception and processing of complaints under the CHRA. The cases highlighted in this section illustrate the type of issues that may result in Commission decisions being challenged before the Federal Court.

Cross Disclosure of Party Responses
   
Requirements of procedural fairness were again at issue in Moran v. Industry Canada²⁰⁷. The case involved allegations of discrimination in employment on the basis of physical disability arising from the decision of Industry Canada not to extend to a maximum of two years an eligibility list for appointment to the position of Senior Bankruptcy Officer. In 1994, Mr. Moran who had been seconded to Industry Canada, competed for the position and placed second out of two qualified candidates. Since the first candidate accepted the position, the complainant was therefore rendered first on an eligibility list for future appointments. Due to a minor stroke, the complainant was unable to work from the end of May 1995 to mid-October of the same year, at which time he returned to Revenue Canada when his secondment was terminated due to fiscal restraint. In April of 1996 a position as Senior Bankruptcy Officer became available at Industry Canada. However, the eligibility list dating from 1994 had expired on March 31, 1996 and had not been renewed. Had the eligibility list been renewed to the maximum two year period it would have been valid until September of 1996, and would have thus ensured the appointment of the complainant.

Although the investigator's report recommended that a conciliator be appointed, the Commission decided to dismiss the complaint. It invoked three reasons to justify the dismissal: (i) the evidence did not support the allegation that Industry Canada had discriminated against the complainant on the basis of disability, (ii) there was no evidence to link the complainant's stroke with the decision not to extend the eligibility list, and (iii) the complainant had been eligible to apply on the 1996 competition but had chosen not to compete.²⁰⁸ The complainant raised the issue of procedural fairness in his application for judicial review of the Commission's decision, in particular as it related to information placed before the Commission in Industry Canada's submission. Upon a review of the record, the Court found that Industry Canada's submission addressed the possible relationship between the staffing decisions and the complainant's disability and this had not been included in the investigator's report. It appeared to the Federal Court that Industry Canada had initially emphasized that managers involved in the situation had no authority to extend the term of the eligibility list. The issue of disability arose only in Industry Canada's submission on the investigation report. The submission contained strong arguments to the effect that the complainant had denied himself possible appointment to the position by failing to compete in the 1996 competition. This submission (delivered to the Commission in the form of a letter) was not communicated to the complainant prior to the decision of the Commission to dismiss the complaint. The Court viewed this omission as fatal to the validity of the Commission's decision, for the information in question A...raised the issue of the applicant's Aalleged disability@ and also put a much stronger position forward with respect to the applicant's failure to apply in the 1996 competition. In fact, the letter stated that by not applying in the 1996 competition, he Adenied himself potential access to an opportunity@. The investigator had stated in his report that the failure to apply did not effect the merits of the complaint, yet the CHRC used his failure to apply as one of its basis (sic) for dismissing the complaint.²⁰⁹@ As the failure to communicate the letter in question to the complainant for his comments amounted to a breach of procedural fairness, the Court allowed the application for judicial review and returned the matter to the CHRC for reconsideration.

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End Notes