ABUSE OF PROCESS
Unreasonable for tribunal to find applicant’s complaints raised essentially same issues
Applicant was black African Canadian who worked at Immigration and Refugee Board. In 2004, applicant filed complaint with Canadian Human Rights Commission. Core of complaint related to incident that occurred in April 2003, during which racist comments were allegedly made. Complaint also included allegations of systemic discrimination, poisoned work environment and harassment. In 2007, applicant filed two complaints before Public Service Staffing Tribunal alleging that board’s decision to use non-advertised appointment process to staff new tribunal officers discriminated against him on basis of race. Applicant alleged that decision to use non-advertised process was tainted by systemic discrimination and constituted abuse of authority. Tribunal dismissed applicant’s complaints on grounds that he had not established prima facie case of discrimination. Commission forwarded applicant’s human rights complaint to tribunal for inquiry. Board brought motion to dismiss complaint. Tribunal found that subject matter of complaint had been previously adjudicated by tribunal, and that adjudicating complaint would amount to abuse of process. Applicant applied for judicial review. Application granted. Tribunal’s decision did not fall within acceptable outcomes. It was unreasonable for tribunal to conclude that tribunal had decided essentially same issues as those raised in human rights complaint. Having regard to both proceedings, issues raised in complaints could not be found to be essentially same. Fact that in both complaints applicant based allegations on systemic discrimination was insufficient to conclude that tribunal had already dealt with core of applicant’s allegations in human rights complaint. Allegations of systemic discrimination at board for period 2003-2004 were not central to issues raised in tribunal complaints related to choice of non-advertised appointment process in 2007. It was unreasonable for tribunal to find that applicant’s complaints before tribunal and tribunal raised essentially same issues. If tribunal’s finding that pre-conditions for applying doctrines of issue estoppel and abuse of process were met then it erred by not asking whether it would be fair to apply doctrines in specific circumstances of case and prevent applicant from having human rights complaint investigated.
Murray v. Immigration and Refugee Board (Feb. 11, 2014, F.C., Marie-Josee Bedard J., File No. T-229-13) 238 A.C.W.S. (3d) 709.
