The Federal Court has ordered a new investigation into a discrimination complaint filed by an Indigenous public servant, ruling that the original human rights investigation was not thorough enough and violated principles of procedural fairness.
The worker had alleged discrimination and harassment based on disability, sex, race, national or ethnic origin and family status during a secondment at Crown-Indigenous Relations and Northern Affairs Canada in 2016. Her secondment was terminated early after just over two months.
The Canadian Human Rights Commission dismissed the complaint in March 2020, adopting the findings of an investigation report that concluded the allegations were unsubstantiated. The worker, L.B., sought judicial review of that decision.
Justice Ferron found significant flaws in the investigation process that rendered it unfair and not sufficiently thorough. The court granted the application for judicial review and ordered the matter be returned for redetermination.
“The Court is of the view that the Investigation Report and the Decision that ensued lack the transparency needed for the Court to be satisfied that the investigative process was thorough and thus fair,” the court stated.
Limited witness interviews raised concerns
The investigation involved interviews with only three people: the complainant and the two CIRNAC managers against whom the complaint was mainly directed. No other witnesses suggested by either party were interviewed.
The court expressed particular concern about this approach given that L.B. alleged she lost access to her work emails when her secondment was terminated, potentially limiting her ability to provide supporting evidence.
“The fact that the Investigator only interviewed [L.B.] and the two managers against whom the Complaint was lodged, without hearing any third-party witnesses that may have provided a different light on the events, is questionable,” the court found.
The investigation report stated that both parties had suggested additional witnesses, but the investigator concluded these witnesses were “not critical to the assessment that follows” based on the evidence gathered. However, the court noted this created a problematic “he said/she said” situation.
Investigation report lacked detail
The court criticized the investigation report for providing insufficient information about the investigative process. The report did not adequately describe what investigative steps were taken, what evidence was obtained, what evidence was considered or discarded, and the reasoning behind these decisions.
“There is just not enough in the Investigation Report for the Court to determine if the Investigator fulfilled their essential role of thoroughly investigating [L.B.]’s Complaint,” the court stated.
The court noted that while the report referenced six specific documents as documentary evidence, it was “silent as to what ‘documentary evidence’ was submitted during the course of the investigation or as to what evidence was actually gathered by the Investigator.”
Rebuttal evidence rejected unfairly
The court also found it unfair that the investigator refused to accept rebuttal evidence L.B. attempted to provide in January 2020, just three days after CIRNAC filed its response to her submissions.
The investigator had informed L.B. that her rebuttal would not be presented to the commissioners, citing that additional information was not typically requested after the cross-disclosure of submissions. However, the court noted that CIRNAC had been allowed to file evidence in response to L.B.’s submissions.
“Given all the circumstances of this matter, the Court is not satisfied that refusing [L.B.]’s short Rebuttal and some of her evidence was fair,” the court found. “This prevented [L.B.] from being effectively heard by the Commission.”
Accommodations provided throughout process
The court acknowledged that L.B. was a self-represented applicant with cognitive disabilities and noted that various accommodations were provided both during the human rights process and the judicial review proceedings.
During the investigation, L.B. was allowed to participate over the phone and by email, timeline extensions were granted, and she was permitted to submit 37 pages of submissions on legal-sized paper instead of the standard 10 pages on letter-sized paper.
For the judicial review hearing, additional accommodations included allowing L.B. to be accompanied by a friend at the counsel table, granting frequent breaks, and extending the hearing from one day to three days.
The court found no evidence of bias on the part of the commission or investigator, rejecting L.B.’s allegations in this regard. “It was not sufficient for [L.B.] to claim bias; she had the burden of proving it. She did not meet this burden,” the court stated.
Original allegations detailed workplace conflicts
L.B.’s complaint outlined approximately 10 incidents that occurred during her secondment, which was supposed to run from March to September 2016 but was terminated in May 2016.
The allegations included claims that her manager questioned her Indigenous identity, refused to provide disability and family accommodations, failed to address staff calling her derogatory names, and terminated her secondment for discriminatory reasons.
L.B. also alleged she was not fully paid for overtime work and did not receive proper notice of termination as required under her secondment agreement.
The investigator had found that L.B.’s evidence did not support her allegations and that various conflicts in the department involving L.B. were the reason for the early termination, not discrimination.
Court warns against frivolous legal strategies
The court included extensive commentary about what it identified as “Organized Pseudolegal Commercial Arguments” (OPCA) strategies employed by L.B. during the hearing, including challenges to the court’s jurisdiction and claims about being subject only to “God’s law” or “common law.”
The court warned that such strategies “have been strongly rejected by Canadian courts” and cautioned L.B. about potential consequences, noting that some of her actions “come dangerously close to being considered vexatious proceedings.”
No costs were awarded, with the court citing the accommodations provided and the time spent addressing improper arguments during the hearing.
For more information, see Belisle v. Canada (Attorney General), 2025 FC 1370 (CanLII).
