ERWIN BACHLI PETITIONER v. YUKON HUMAN RIGHTS COMMISSION and GOVERNMENT OF YUKON (DEPARTMENT OF HEALTH AND SOCIAL, 2022 YKSC 49

SUPREME COURT OF YUKON Citation: Bachli v Yukon Human Rights Commission , 2022 YKSC 49 Date: 20221006 S.C. No. 21-AP008 Registry: Whitehorse BETWEEN: ERWIN BACHLI PETITIONER AND YUKON HUMAN RIGHTS COMMISSION and GOVERNMENT OF YUKON (DEPARTMENT OF HEALTH AND SOCIAL SERVICES) RESPONDENTS Before Justice E.M. Campbell Appearing on his own behalf Erwin Bachli Counsel for the Respondent, Yukon Human Rights Commission Alexander Dezan Counsel for the Respondent, Government of Yukon Lesley Banton REASONS FOR DECISION INTRODUCTION [ 1 ] Mr. Bachli is a senior citizen and resident of Yukon. He became paraplegic in 2010.

Since then, the Government of Yukon (Department of Health and Social Services) (“Yukon”) has provided equipment (including a wheelchair and a commode) as well as related services to Mr. Bachli through its home care program. [ 2 ] Mr. Bachli filed a complaint with the Yukon Human Rights Commission (the “Commission”) alleging discrimination by Yukon in the provision of services and goods to the public. In his complaint, Mr.

Bachli alleged Yukon breached the Yukon Human Rights Act , RSY 2002, c 116 (the “ Act ”) by discriminating against him on the basis of age and physical or mental disability, two protected characteristics under the Act , in providing to him a wheelchair and a commode that are dysfunctional, inadequate for someone living at home rather than in care, not certified, and unsafe for him and for those who assist him, including his wife. In addition, Mr. Bachli alleges Yukon has ignored his repeated requests over the years for maintenance, replacement, and repairs. According to Mr.

Bachli, this situation has impeded his ability to live at home, and enjoy work, recreation and socialization with his family and friends. [ 3 ] The Director of Human Rights (the “Director”) accepted Mr. Bachli’s complaint against Yukon for investigation on the prohibited ground of physical or mental disability in connection with the provision of services, goods, or facilities to the public. However, he did not accept Mr. Bachli’s complaint for investigation on the prohibited ground of age. The Director stated the latter did not meet the requirements of the Commission’s reasonable ground policy.

The Director found the facts alleged in the complaint could not reasonably support a conclusion there was a link between the alleged unfavourable treatment and the protected characteristic of age. [ 4 ] Mr. Bachli requested the Commission review the Director’s decision. Upon review, the Commission dismissed Mr. Bachli’s request and confirmed the decision of the Director not to investigate the parts of his complaint based on the prohibited ground of age. The Commission agreed with the Director that the factual allegations contained in the complaint and the additional materials it had received from Mr.

Bachli did not disclose a link between the alleged unfavourable treatment and age. [ 5 ] Mr. Bachli seeks judicial review of the Commission’s decision. He seeks that the Commission’s decision be overturned and that his complaint in discrimination against Yukon be investigated on the basis of the prohibited ground of age in addition to physical or mental disability. Mr. Bachli raises the following issues in support of his petition.

First, he submits that, according to its enabling legislation, the Commission does not have the authority to refuse to investigate a complaint of discrimination or part of a complaint of discrimination it receives. Second, if the Commission does have jurisdiction to screen complaints, it erred in confirming the Director’s

decision to not accept his complaint of discrimination based on age for investigation. Third, Mr. Bachli submits he was denied due process before the Commission because he was not permitted to attend and present oral evidence and submissions at the review hearing. Finally, Mr. Bachli submits the Commission is in a situation of conflict of interest because the Director and the Commission received legal advice from the same in-house counsel. [ 6 ] Yukon and the Commission oppose Mr. Bachli’s application. They request the Court affirm the decision of the Commission and dismiss the Petition.

History of the proceeding [ 7 ] On May 17, 2021, Mr. Bachli filed a complaint with the Commission alleging that Yukon had discriminated against him based on the prohibited grounds of age and physical or mental disability when offering or providing goods and services to the public. [ 8 ] In his complaint, Mr. Bachli stated he is a client of Yukon (Home Care) by necessity due to his paraplegia. He stated the self- driving wheelchair and commode that Yukon provided to him are dysfunctional and inadequate to meet his basic needs. In addition, he stated the equipment is not certified.

He added that there are design issues with his commode and wheelchair that create health and safety issues for him and his wife as well as for anyone else helping him maneuver his equipment.

He stated that Yukon employees have ignored the multiple requests he has made over the years for proper and adapted equipment, as well as for maintenance and repairs of his equipment. [ 9 ] Finally, he stated that Yukon employees do not have the willingness, experience, knowledge, certification or ability to order, maintain or fix the equipment he requires as a senior with a disability to enjoy work, recreation and socialization with his family and friends. [ 10 ] The Director accepted Mr. Bachli’s complaint for investigation on the prohibited ground of physical or mental disability.

However, he refused the complaint for investigation on the prohibited ground of age. [ 11 ] The Director communicated his decision and the reasons for his decision to Mr. Bachli in a letter dated May 30, 2021. The Director stated that based on his preliminary analysis , Mr. Bachli’s complaint in discrimination against Yukon on the ground of physical and mental disability was accepted for investigation. However, he stated there was no reasonable basis for the Commission to accept the parts of Mr. Bachli’s complaint in discrimination on the ground of age.

The Director then explained that his decision not to accept Mr. Bachli’s complaint based on age was made pursuant to s. 20(1) of the Act . He stated that pursuant to that section: … the Commission has an obligation to screen complaints at this initial stage to ensure that there are reasonable grounds for believing that discrimination occurred.

If the Commission does not find that there are reasonable grounds for such a belief, the Commission cannot accept the complaint. [ 12 ] He explained the notion of reasonable grounds as: “allegations, which if proven at a hearing and viewed objectively by a reasonable person, would lead that person to conclude that there was likely a contravention to the Act .” [ 13 ] The Director then set out the five elements of the Commission’s “reasonable grounds analysis” and briefly explained his findings under each element. He found Mr.

Bachli’s complaint with respect to the protected characteristic of age met all but one element of the analysis. [ 14 ] Under the heading: “Is there a reasonable argument that the alleged unfavourable treatment and the prohibited ground are linked?”, the Director stated Mr. Bachli had not provided any information in his complaint indicating how he believed his age was a factor in the unfavourable treatment he experienced. The Director stated the facts alleged in Mr.

Bachli’s complaint could not reasonably support a conclusion that the unfavourable treatment and the prohibited ground of age were linked [ 15 ] The Director recognized “that discrimination is something that can occur without any conscious intention or will.” However, he stated that: … At the same time, it is not enough to state that one has a protected characteristic and experienced unfavourable treatment.

In order to establish discrimination, a complaint must allege some material facts that are capable of substantiating an inference that the protected characteristic was a factor in the adverse treatment. [see Weinberg v Ombudsperson of BC , 2019 BCHRT 226 ] In your complaint you did not allege sufficient material facts about why you believe that your age was a factor in the Respondent’s failure to accommodate you and provide you with adequate equipment. For example, you state in your complaint that you require proper equipment for basic living as a senior.

However, you do not allege that any specific comment or reference was made about your protected characteristic in communications with the Respondent. In order to accept a complaint, I require specific facts to explain how the protected ground was a factor in the Respondent’s failure to provide adequate equipment.

A mere allegation, speculation or conjecture is not sufficient. [ Ibid ] It is well established in the case law that while discrimination is often subtle, “without a factual basis a complainant’s personal belief of discriminatory treatment, no matter how sincerely felt, can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs” [ Li v Options Community Services and Others , 2020 BCHRT 104 at para. 78] Determining whether there are reasonable grounds for believing there has been a contravention of the Act requires careful consideration of both the allegations and the context in which they arise.

I found nothing in the materials before to reasonably suggest that your age was a factor in the Respondent’s failure to provide you with reasonable accommodations and proper equipment.

[ 16 ] On June 20, 2021, Mr. Bachli requested that the Commission review and overturn the Director’s decision. Mr. Bachli filed written submissions and provided several documents in support of his request. [ 17 ] On August 24, 2021, the Commission members met to consider Mr. Bachli’s request for review. [ 18 ] In a letter dated September 10, 2021, the Commission informed Mr. Bachli that, after review, it had decided to confirm the Director’s decision to accept his complaint for investigation based on physical or mental disability but not based on age.

The Commission provided reasons for its decision. [ 19 ] The Commission stated it considered Mr. Bachli’s initial complaint, his submissions as well as the other documents he had filed in support of his review. The Commission also stated it considered the Director’s Decision Letter to Mr. Bachli, the Commission’s No Reasonable Grounds Policy, a legal opinion, the Act and caselaw in coming to its decision. The Commission stated that, pursuant to s. 20(1) of the Act , it had to determine whether there are reasonable grounds to accept Mr. Bachli’s complaint of discrimination for investigation.

The Commission briefly explained what it meant by reasonable grounds and set out the five elements of the reasonable grounds analysis it applied on review. One of the elements of that analysis, as set out by the Commission, is whether there is a “reasonable argument” that “the alleged unfavourable treatment and the prohibited grounds(

s) are linked.” The Commission stated that, upon review, it agreed with the Director that Mr. Bachli had not provided facts that showed a link between the alleged unfavourable treatment and the protected characteristic of age. As a result, the Commission concluded Mr. Bachli’s complaint did not disclose reasonable grounds for believing there had been discrimination under the Act based on age.

Therefore, it was not statutorily required to investigate that part of his complaint based on the facts he provided to the Commission. [ 20 ] On September 13, 2021, the Director sent a letter to Yukon informing the government that Mr. Bachli had made a complaint in discrimination against Yukon; and that his complaint had been accepted for investigation on the basis of physical or mental disability but not on the basis of age . He further stated that Mr. Bachli had appealed the decision but that his appeal had not been successful. Yukon stated it was not aware that Mr.

Bachli had filed a complaint with the Commission prior to receiving that letter, and, consequently, did not participate in the pre-investigation process that led to the Commission’s decision under judicial review. ISSUES [ 21 ] This judicial review raises the following issues: i. What is the standard of review applicable to the questions raised in this judicial review proceeding? ii. Does the Commission have the statutory authority to screen the complaints it receives to determine whether to investigate them in totality or in part pursuant to s. 20(1) of the Act ? iii.

Did the Commission breach its duty of procedural fairness: (

a) by not permitting Mr. Bachli to attend the review hearing and/or present oral evidence and/or make oral submissions at the review hearing; and (

b) due to conflict of interest arising from the same in-house counsel providing legal advice to the Director and the Commission with respect to Mr. Bachli’s complaint? iv. Did the Commission err in affirming the Director’s decision to investigate Mr. Bachli’s complaint in discrimination on the prohibited ground of physical or mental disability but not investigate his complaint on the prohibited ground of age?

PREAMBLE [ 22 ] There is no doubt Mr. Bachli needs a new wheelchair and commode. The affidavits and photos filed by Mr. Bachli in this proceeding reveal his equipment is in a state of disrepair and has been in that state for some time now. I am also alive to the fact that this situation has caused a lot of frustration and grief to Mr. Bachli and his wife, who supports him the best she can. Counsel for Yukon clearly stated on the record that Yukon is prepared to work with Mr. Bachli to provide him with new functioning equipment – a wheelchair and a commode.

At the hearing, I encouraged the parties to enter into discussions in that regard, acknowledging they may have different expectations with respect to the individuals who should participate in those discussions for Yukon, the procurement process, and the type of equipment and services Yukon may be required to provide to Mr. Bachli to meet his needs. I also acknowledge that Mr. Bachli is of the view that Yukon already has all the information it requires to order the proper wheelchair and commode for him. At the hearing, counsel for the Commission stated the Commission was prepared to facilitate those discussions.

I requested that an update on those discussions be provided to me. It is my understanding that, following the hearing, the Commission has facilitated exchanges between Yukon and Mr. Bachli to try to resolve this issue. While I am not privy to the exchanges that have taken place, it is my understanding that, so far, they have been unsuccessful. In addition, I acknowledge that the replacement of Mr.

Bachli’s equipment may only form part of the redress he is seeking through his human rights complaint, and that he may be entitled to, if it is found that his complaint in discrimination is founded. [ 23 ] Before I go any further, I also want to reiterate what I told Mr. Bachli during the proceeding, which is that the only issue before me on this judicial review is whether the Commission erred in refusing to investigate the parts of his complaint of discrimination against Yukon based on the prohibited ground of age. I cannot grant any other relief, including any relief against Yukon, based on the petition Mr.

Bachli filed with the Court.

i. What is the standard of review applicable to the questions raised in this judicial review proceeding? Positions of the Parties The Petitioner - Mr. Bachli [24] Mr. Bachli did not advance a specific position with respect to the standard of review applicable in this case. The Respondent - the Commission [25] The Commission submits the applicable standard of review to its decision is reasonableness. The Respondent - Yukon [26] Yukon submits the applicable standard of review to the Commission’s decision is reasonableness.

Analysis [27] The starting point is that reasonableness is presumed to be the applicable standard of review of an administrative decision onjudicial review. Derogation from that standard is justified only where required by a clear indication of legislative intent or by the rule oflaw (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) at para. 10). [28] In Vavilov, the majority of the Supreme Court of Canada identified five situations where a derogation from the reasonablenessstandard is warranted (para. 69). Two of these situations flow from legislative intent: (

i) where the standard of review is expresslyprescribed by legislation; and (ii) where the legislature specifically provided for an appeal from an administrative decision to a courtwithout prescribing a standard of review. In that situation, the standard of review will be determined with reference to the nature of thequestion before the court and the jurisprudence on appellate standards of review (Vavilov at paras. 33-36). The other three exceptions,where the standard of correctness applies, are required by the Rule of Law. They consist of (

i) constitutional questions; (ii) generalquestions of law of central importance to the legal system as a whole; and (iii) questions regarding the jurisdictional boundaries betweentwo or more administrative tribunals (Vavilov at para. 53). [29] None of the recognized exceptions apply here. Under the standard of review framework adopted in Vavilov, even the question ofstatutory

interpretation regarding the Commission’s authority to screen complaints at the pre-investigative stage falls under thereasonableness standard of review. The court in Vavilov specifically rejected the necessity to apply a correctness standard to alljurisdictional questions (paras. 65-68). [30] Finally, while the Supreme Court of Canada in Vavilov did not foreclose the possibility that another category requiring aderogation from the presumption of reasonableness could be recognized in a future case, it warned that any new basis for a derogationwould have to be exceptional (Vavilov at para. 70).

The questions raised in this proceeding with respect to the Commission’s decision donot raise any exceptional basis that would require departing from the presumption. [31] Therefore, the Commission’s

interpretation of its statutory authority to screen complaints at the pre-investigative stage as well asthe Commission’s decision to confirm the Director’s decision to refuse to investigate the part of Mr. Bachli’s complaint based on theprohibited ground of age are reviewable according to the reasonableness standard. [32] However, in Vavilov, the Supreme Court of Canada did not expressly identify the standard of review for questions of proceduralfairness.

Nonetheless, the court stated that, in considering questions of procedural fairness, reviewing courts must consider whether theprocedure was fair having regard to all the circumstances, including the factors identified in Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 (“Baker”) at paras. 22-27. While this exercise is best reflected in thecorrectness standard of review and has been described as akin to correctness, strictly speaking, no standard of review is being applied toquestions of procedural fairness.

Vavilov at para. 77 citing Baker at paras. 22-27; Canadian Pacific Railway Company v Canada(Attorney General), 2018 FCA 69 at para. 54; Canadian Pacific Railway Company v Canada (Transportation Agency), 2021 FCA 69 atpara. 46; Burlacu v Canada (Attorney General), 2022 FC 1223 (“Burlacu”) at para. 15, Stukanov v Canada (Attorney General), 2021FC 49 at paras. 28 and 29. The Reasonableness Standard of Review [33] A review based on the reasonableness standard is a deferential but “robust form of review” (Burlacu at para. 14 and Vavilov atparas. 12-13, 75 and 85).

As stated in Vavilov at paras. 13: reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates arespect for the distinct role of administrative decision-makers” and is “meant to ensure that courts intervene in administrative mattersonly where it is truly necessary […] to safeguard the legality, rationality and fairness of the administrative process.” [34] In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, Rowe J., writing for the majority, summarized thereviewing court’s role in conducting a reasonableness review under the Vavilov framework where reasons from the administrativedecision-maker are required: [31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation

to the facts and law that constrain the decision maker” ( Vavilov , at para. 85 ). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” ( Vavilov , at para. 84 , quoting Dunsmuir , at para. 48).

The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” ( Vavilov , at para. 97 , citing Newfoundland Nurses ). [32] A reviewing court should consider whether the decision as a whole is reasonable: “. . . what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” ( Vavilov , at para. 90 ).

The reviewing court must ask “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” ( Vavilov , at para. 99 , citing Dunsmuir , at paras. 47 and 74, and Catalyst Paper Corp. v.

North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5, at para. 13 ). [ 35 ] In addition, the administrative decision-maker’s reasons for decision need “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” Zalys v Canada (Royal Canadian Mounted Police) , 2020 FCA 81 at para. 5 ; Vavilov at para. 91 , citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 16 . [ 36 ] The burden is on the party challenging the decision to demonstrate that it is unreasonable.

In addition: “the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable ( Vavilov at para. 100 ). ii. Does the Commission have the statutory authority to screen the complaints it receives to determine whether to investigate them in totality or in part pursuant to s. 20(1) of the Act ? [ 37 ] At the hearing of the judicial review, Mr. Bachli questioned the authority of the Commission to screen the complaints it receives to determine whether to investigate them. Mr.

Bachli did not raise this argument before the Commission. He raised it for the first time on judicial review. Therefore, the Commission’s reasons for decision do not address this issue. The Commission simply applied its reasonable grounds analysis. As a result, at the hearing, I requested that the parties, including the Commission, provide written submissions on the issue of statutory

interpretation raised by Mr. Bachli, which they later did. Positions of the Parties The Petitioner - Mr. Bachli [ 38 ] Mr. Bachli submits the Commission does not have the authority to refuse to investigate a complaint or part of a complaint it receives. According to Mr. Bachli, the wording of the Act reveals the Commission must investigate all complaints it receives. Mr. Bachli submits the Commission’s duty to investigate encompasses a detailed examination and analysis of the facts, documents and context of the complaint prior to making a determination. According to Mr. Bachli, this was not done in this case. Mr.

Bachli questions how the Commission could decide to refuse parts of his complaint without obtaining and analyzing all the required facts and information. In addition, or in the alternative, Mr. Bachli submits the Director does not have the authority to screen complaints made to the Commission because it is the Commission, not the Director, that has jurisdiction to investigate complaints.

The Respondent - the Commission [ 39 ] The Commission submits s. 20(1) of the Act requires the Director to screen human rights complaints and accept only those where the complainant sufficiently demonstrates that they “ha[ve] reasonable grounds” for believing there has been a violation of the Act . [ 40 ] The Commission submits the Act was amended in 2009 specifically to raise the standard required for accepting human rights complaints and to empower the Commission, or the Director on its behalf, to screen complaints.

According to the Commission, prior to 2009, s. 20(1) only required a belief there had been a violation of the Act to make a complaint. In 2009, the words “reasonable grounds” were added to the wording of s. 20(1) . The Commission submits this amendment requires prospective complainants to have and demonstrate some reasonable grounds for believing there has been a violation of the Act in their complaint.

The Commission also relies on comments made by the Minister of Justice when she introduced the Bill amending the Act in March 2009 to support its position. [ 41 ] The Commission points out there is no definition of “reasonable grounds” in the Act nor any Yukon precedents providing guidance on how the Commission should determine what constitutes “reasonable grounds”.

However, the Commission submits that caselaw emanating from other Canadian jurisdictions with similarly worded human rights legislation, and more particularly caselaw emanating from the Federal Court regarding the Canadian Human Rights Act , R.S.C. 1985, c.

H-6 , (“ CHRA ”) supports the existence of an initial screening power. [ 42 ] The Commission submits the caselaw supports its position that it is required to assess at the pre-investigative stage whether a complaint, based on the facts as alleged and taken to be true, falls within the Commission’s “true jurisdiction” as well as its mandate because, if it does not, the Commission has no jurisdiction to investigate. [ 43 ] The Commission submits it has developed a reasonable grounds analysis in keeping with its enabling legislation and relevant caselaw. This pre-investigative stage analysis considers five elements:

1. the Commission’s jurisdiction to investigate the complaint; 2. the allegations must engage a prohibited area of discrimination under s. 9 of the Act ; 3. the allegations must engage a prohibited ground of discrimination under s. 7 of the Act ; 4. there must be an allegation of unfavourable treatment; and 5. there must be a reasonable argument that the alleged unfavourable treatment and the prohibited ground are linked. [ 44 ] The Commission submits its five-element reasonable grounds analysis conforms with the relevant caselaw because it effectively distinguishes between those cases it must accept and those “plain and obvious” cases where the complainant does not have reasonable grounds for believing there has been a contravention of the Act . [ 45 ] The Commission states its analysis first considers whether it has “true jurisdiction” over a matter.

The second element allows the Commission to satisfy itself that the allegations occurred in a context protected by the Act , which also speaks to its jurisdiction. [ 46 ] The Commission argues the last three elements of its analysis conform with the relevant caselaw regarding the essential elements to establish discrimination. The Commission interprets s. 20(1) and the caselaw as mandating it to screen complaints to ensure the prospective complainant has disclosed sufficient information or facts to show a link between the alleged unfavourable treatment and a prohibited ground of discrimination.

The Commission submits that, without that link, the complaint would fall outside its mandate and the Commission would not have the authority to investigate it. The Commission also submits that without that link a complaint could also be considered frivolous under s. 20(1) (b). [ 47 ] The Commission acknowledges complainants have no obligation to provide evidence when they make a complaint.

Therefore, the Commission takes the allegations made in a complaint as true when it conducts its initial analysis. [ 48 ] Nonetheless, the Commission submits the jurisprudence recognizes it is the complainant who has the burden of providing sufficient information or facts to demonstrate the link between the alleged unfavourable treatment and a prohibited ground of discrimination.

The Commission submits a complainant will only have “reasonable grounds” for believing there has been a contravention of the Act where they can at least describe a situation that could, if later supported by the evidence, establish the legal test for discrimination. The Respondent - Yukon [ 49 ] Yukon supports the Commission’s position that it has the authority to screen complaints for investigation pursuant to s. 20(1) of the Act . However, it proposes a slightly different

interpretation of that section. [ 50 ] Yukon submits that s. 20(1) of the Act requires the Commission to screen potential complaints to ensure the existence of reasonable grounds. [ 51 ] Yukon submits that “having reasonable grounds” to believe there has been a contravention of the Act is a requirement that must be met before the information provided by the person to the Commission can be considered a “complaint” under the Act . [ 52 ] Yukon submits it is only when a person has shown reasonable grounds for their belief that there has been a contravention of the Act that they “may complain”.

It is at that time that the second part of s. 20(1) applies and mandates that the Commission investigate the complaint unless the circumstances presented in subsections (

a) to (

i) exist. [ 53 ] Yukon submits that if a person is unable to show that they have reasonable grounds for their belief, they may not complain and there is consequently no complaint for the Commission to investigate regardless of the circumstances. Yukon did not provide caselaw in addition to the cases filed by the Commission to support the

interpretation it proposes. [ 54 ] Yukon further submits the reasonable grounds analysis developed by the Commission to screen the potential complaints at the pre-investigative stage is reasonable and in accordance with the caselaw. Analysis Applying the reasonableness standard to issues of statutory

interpretation [ 55 ] A court reviewing a matter of statutory

interpretation based on the standard of reasonableness does not conduct a de novo analysis or ask itself what the correct statutory

interpretation would be. Instead, the court must look at the administrative decision-

maker’s decision as a whole and determine whether the decision-maker has properly justified its

interpretation of the statute in light of the surrounding context: [116] … Where reasonableness is the applicable standard on a question of statutory

interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan , at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. ( Vavilov at para. 116 ) [ 56 ] The administrative decision under review must remain at the center of the analysis.

In Canada ( Minister of Citizenship and Immigration) v Mason, 2021 FCA 156 at para. 17 , the Federal Court of Appeal cautioned that reviewing courts “should not make any definitive judgments and conclusions themselves” on the statutory

interpretation component of a reasonableness review as “[t]hat would take them down the road of creating their own yardstick and measuring the administrator’s

interpretation to make sure it fits” (see also Burlacu v Canada (Attorney General) , 2022 FCA 10 at para. 19 ). [ 57 ] Also, a court conducting a reasonableness review involving matters of statutory

interpretation will do so in keeping with the modern principle of statutory

interpretation and the statutory rules that explicitly govern the

interpretation of statutes and regulations ( Vavilov at paras. 117 and 118 ). [ 58 ] Here, as I stated earlier, the Commission did not issue reasons regarding its

interpretation of the scope of its authority to screen complaints for investigation under s. 20(1) because its authority to do so was not challenged at the time. The Commission therefore applied the reasonable grounds analysis it has developed in keeping with its

interpretation of its authority pursuant to s. 20(1) to determine whether to confirm or reverse the Director’s decision to refuse to investigate the parts of Mr. Bachli’s complaint based on age. Nonetheless, on this judicial review, counsel for the Commission provided submissions regarding the Commission’s position and

interpretation of its authority under s. 20(1). I will therefore review the issue of statutory

interpretation raised by Mr. Bachli in light of the position the Commission has put forward before me. The statutory scheme: the Yukon Human Rights Act and the Human Rights Regulations The objects of the Act [ 59 ] The objects of the Act , as amended, are set out at s. 1 of the Act :

(1) The objects of this Act are (

a) to further in the Yukon the public policy that every individual is free and equal in dignity and rights; (

b) to discourage and eliminate discrimination; (

c) to promote recognition of the inherent dignity and worth and of the equal and inalienable rights of all members of the human family, these being principles underlying the Canadian Charter of Rights and Freedoms and the Universal Declaration of Human Rights and other solemn undertakings, international and national, which Canada honours. [ 60 ]

Section 16 of the Act establishes the Commission. It states that the Commission’s overarching responsibilities are to: (

a) promote the principle that every individual is free and equal in dignity and rights; (

b) promote the principle that cultural diversity is a fundamental human value and a basic human right; (

c) promote education and research designed to eliminate discrimination; (

d) promote a settlement of complaints in accordance with the objects of this Act by agreement of all parties; (

e) cause complaints which are not settled by agreement to be adjudicated, and at the adjudication adopt the position which in the opinion of the commission best promotes the objects of this Act .

[ 61 ] In addition, s. 16(2) provides that the Commission “shall conduct education and research on the principle of equal pay for work of equal value in the private sector.” [ 62 ] Section 20(1) establishes the Commission’s statutory authority and mandate to receive and investigate complaints of contraventions of the Act . Section 20(1) reads as follows: Any person having reasonable grounds for believing that there has been a contravention of this Act against them may complain to the commission who shall investigate the complaint unless (

a) the complaint is beyond the jurisdiction of the commission; (

b) the complaint is frivolous or vexatious; (

c) the complainant asks that the investigation be stopped; (

d) the commission asks a board of adjudication to decide the complaint without investigation; (

e) the commission asks the Director of Human Rights to try to settle the complaint on terms agreed to by the parties prior to or during investigation; (

f) the complainant abandons the complaint or fails to cooperate with the investigation; (

g) the complainant at any time prior to the conclusion of the investigation declines a settlement offer that the commission considers fair and reasonable; (

h) the complainant has not exhausted grievance or review procedures which are otherwise reasonably available or procedures provided for under another Act ; or (

i) the substance of the complaint has already been dealt with in another proceeding. [ 63 ] I note that s. 5(3) of the

Interpretation Act , RSY 2002, c 125 , provides that the expression “shall” in territorial legislation “be read as imperative” and the expression “may”, as “permissive and empowering”. [ 64 ]

Section 36 of the Act provides that regulations can be made, among other things, to establish the procedures of the Commission. The Commissioner in Executive Council has exercised this power in establishing the Yukon Human Rights Regulations , OIC 1988/170 (the “ Regulations ”).

Section 4 of the Regulations specifically sets out the role and authority of the Director in the treatment of complaints filed with the Commission. 4. Investigation of complaints

(1) The investigation of a complaint by the Commission shall be conducted or directed on its behalf by the Director.

(2) If the Director is satisfied that a complaint requires investigation under subsection 20(1) of the Act , the Director shall forthwith notify the respondent (

a) that an investigation is being started; (

b) about the subject matter of the complaint; (

c) about any subsequent change in the subject matter of the complaint;

(

d) of any withdrawal or abandonment of the complaint; and (

e) when the investigation has been completed. [ 65 ] In addition, s. 5(1) of the Regulations provides that “[t]he Director may decide to suspend or stop an investigation if the Director believes on reasonable grounds that the Commission is no longer required to investigate the complaint under subsection 20(1) of the Act .”

Section 5 also establishes the process to be followed in such cases, including the right for the complainant to seek a review of the Director’s decision by the Commission. [ 66 ] The wording of s. 20(1) taken in the context of the objects of the Act and the statutory role and mandate of the Commission, in relation to complaints, supports the Commission’s

interpretation that it has the authority and duty to screen complaints at the pre- investigative stage to determine whether it is required to investigate them. [ 67 ] The language of s. 20(1) is clear. The Commission’s duty to investigate is triggered when someone files a complaint that discloses reasonable grounds for believing there has been a violation of the Act . In addition, s. 20(1) states the Commission’s obligation to investigate is subject to exceptions that are set out at subsections (

a) to (i). The exceptions include situations of lack of jurisdiction as well as frivolous and vexatious complaints. It flows from the wording of s. 20(1) that, prior to commencing an investigation, the Commission has to ensure the complaint meets the reasonable grounds threshold established in s. 20(1) . Legislative History [ 68 ] Between 1987 and 2009, s. 20(1) read as follow: Any person believing that there has been a contravention of this Act against them may complain to the commission who shall investigate the complaint unless (

a) the complaint is beyond the jurisdiction of the commission; (

b) the complaint is frivolous and vexatious; or (

c) the victim of the contravention asks that the investigation be stopped. (my emphasis) [ 69 ] In 2009, several sections of the Act , including s. 20(1) , were amended (see Bill 71, Act to Amend the Human Rights Act , 1st Session, 32nd Legislature, Yukon, 2009 (assented to May 14, 2009), cl 2). The words “having reasonable grounds” were added to qualify the belief upon which a person may file a complaint that the Commission shall investigate. Paragraphs (

d) to (i), which represent additional situations where the Commission shall not investigate, were also added to s. 20(1) . [ 70 ] The Act to Amend the Human Rights Act was assented to on May 14, 2009. It came into effect on December 10, 2009. The wording of s. 20(1) has not been amended since. [ 71 ] The 2009 amendments further support the Commission’s position. Finding otherwise would lead to the conclusion that the addition of the words “reasonable grounds” in 2009 was redundant or did not serve any purpose whereas the law is considered as always speaking ( s. 5(1) of the

Interpretation Act ). Legislative intent [ 72 ] On March 30, 2009, when moving for the amendments to the Act to be read a second time in the Legislative Assembly, the Minister of Justice, the Honourable Marion Horne (“the Minister”), spoke about the process that led to the proposed amendments that were, ultimately, adopted by the Legislative Assembly: … Yukon’s Human Rights Act was originally passed by the Legislature in 1987, following significant and vigorous debate. Following more than 20 years of implementing the act, it has become necessary to update and modernize the legislation.

The Legislative Assembly agreed with the need for updating. We collectively appointed a three-member Select Committee on Human Rights.

… The select committee held advertised public hearings and provided opportunities for submissions or discussions. Public hearings were held in 16 communities over three weeks. Over 100 people participated in the hearings and 24 written submissions were received. My colleagues and I were moved by the various stories of individual experiences with the human rights system. … The committee made 25 recommendations based on the submissions. Some recommendations were directly related to the legislation. Others deal with operations or ways to move forward on the more complex changes.

The committee recommended a two-phased approach to implementing the recommendations, as a number of them will take a longer time to effect. All of the recommendations were considered in light of this two-phase recommendation. … eight of the recommendations are captured in the bill tabled in the Assembly. (Hon.

Marion Horne, Yukon Legislative Assembly, Hansard, 32 nd Legislature, 1 st Session (30 March 2009 at page 4007)) [ 73 ] During her speech, the Minister outlined the four major objectives behind the proposed amendments, one of them being “to simplify the complaints process by increasing the reasons why a complaint is not investigated”: Overall, the amendment should accomplish four major objective: one, improve access to the complaints process by increasing the timelines and clarifying the basis on which a complaint can be filed; two, simplify the complaints process by increasing the reasons why a complaint is not investigated, allowing for direct referral to mediation or decision without investigation and clarifying the relationship of the human rights complaint process to other procedures and legislation; three, modernize some of the language based on specific wording recommendations by the committee, recognizing there is more work to do in future; four, clarify the language around the panel of adjudication and boards of adjudication, specify the number of members for each and the process, and outline the panel’s accountability to the Legislature. [ 74 ] The Minister also addressed the specific recommendations that led to the proposed amendments to s. 20(1) of the Act ; These amendments will address specific recommendations of the Select Committee on Human Rights, particularly recommendation number 1: that the Human Rights Act be amended under

section 20, Complaints, so that the threshold for filing a complaint under the act is raised from its current level, i.e. that a complainant believes that they have been harassed or discriminated against, to the requirement that there be reasonable grounds for such a belief. This wording is proposed in the amendment before you. Recommendation 2: that the Human Rights Act be amended under

section 20, Complaints, to expand the circumstances in which the commission shall not investigate a complaint by adding, after 20.1(c), (

a) the commission decides to refer the complaint to the board of adjudication or to mediation; (

b) the complaint has either been abandoned by the complainant, or the complainant fails to cooperate with the investigation; (

c) the complainant has declined what the director considers a fair and reasonable settlement offer; or (

d) the substance of the complaint has been or could be dealt with within another proceeding or review procedure, or under another act. This recommendation is addressed in full. [ 75 ] The comments of the Minister further support the position of the Commission that it has statutory authority to screen complaints at the pre-investigative stage; and that the 2009 amendments were intended to give it broader authority to refuse to investigate complaints, including those that do not meet the added reasonable grounds threshold. Caselaw [ 76 ] There are no Yukon precedents that address the specific

interpretation issue before me. [ 77 ] However, the Commission filed caselaw emanating from the Federal Court that recognizes the authority of the Canadian Human Rights Commission (“CHRC”) to screen human rights complaints at the pre-investigative stage to decide whether to deal with them. [ 78 ] The CHRA contains language that is similar to the Act with respect to the authority of the CHRC to receive and investigate human rights complaints in matters of federal jurisdiction. [ 79 ] More specifically, s. 40(1) of the CHRA requires a person to have reasonable grounds to believe that a person is engaging or has engaged in discriminatory practice to file a complaint with the CHRC:

40(1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person isengaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission. [80] In addition, s. 41(1) of the CHRA provides that the CHRC shall deal with any complaint filed with it subject to a number ofexceptions, which are similar to the exceptions provided under s. 20(1) of the Act. Lack of jurisdiction is one of those exceptions. 41(1) Subject to

section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears tothe Commission that (

a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review proceduresotherwise reasonably available; (

b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for underan Act of Parliament other than this Act; (

c) the complaint is beyond the jurisdiction of the Commission; (

d) the complaint is trivial, frivolous, vexatious or made in bad faith; or (

e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as theCommission considers appropriate in the circumstances, before receipt of the complaint. [81]

Section 41 has been interpreted as giving the CHRC authority to screen complaints and decide not to deal with them at the pre-investigative stage in plain and obvious cases. [82] In Canada Post Corp. v Canada (Canadian Human Rights Commission) (re Canadian Postmasters and Assistants Assn, (FC), [1997] 130 FTR 241 (“Canada Post”) at para. 3, the Federal Court recognized that the CHRC has authority todecide not to deal with a complaint at the pre-investigative stage based on one of the enumerated circumstances listed in s. 41(1)(

a) to (e)of the CHRA. However, the Federal Court also stated that, because a decision under s. 41 is usually made at a very early stage, beforeany investigation is initiated, the CHRC should only decide not to deal with a complaint in plain and obvious cases. [3] A decision by the Commission under

section 41 is normally made at an early stage before any investigation is carried out. Because adecision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should onlydecide not to deal with a complaint at this stage in plain and obvious cases. The timely processing of complaints also supports such anapproach.

A lengthy analysis of a complaint at this stage is, at least to some extent, duplicative of the investigation yet to be carried out.A time consuming analysis will, where the Commission decides to deal with the complaint, delay the processing of the complaint. If it isnot plain and obvious to the Commission that the complaint falls under one of the grounds for not dealing with it under

section 41, theCommission should, with dispatch, proceed to deal with it. [83] The plain and obvious approach adopted in Canada Post has since been consistently cited with approval by the Federal Court(see Attorney General of Canada v Mohawks of the Bay of Quinte, 2012 FC 105 (“Maracle”) at paras. 38-40).

I note s. 41(1) has not beenamended since Canada Post. [84] In addition, the Federal Court has held that the CHRC has no jurisdiction to deal with and investigate a complaint if it fallsoutside its true jurisdiction or its statutory mandate. [85] In Hartjes v Canada (Attorney General), 2008 FC 830 (“Hartjes”), the Federal Court upheld the CHRC’s pre-investigative stagedecision to refuse to investigate Ms. Hartjes’ complaint on the basis it was beyond its jurisdiction pursuant to s. 41(1)(c). Ms.

Hartjesalleged in her complaint that the inadequate medical care she had received while incarcerated in a federal institution was a result ofdiscrimination in the provision of services based on race, national or ethnic origin and colour because she was an Indigenous woman. TheCHRC rejected Ms. Hartjes’ complaint based on lack of jurisdiction because it was of the view that Ms.

Hartjes had not shown any linkbetween the unfavourable treatment she stated she had received, and a prohibited ground of discrimination. [86] In upholding the decision of the CHRC, the Federal Court concluded the term jurisdiction found in s. 41(1)(

c) not only refers tothe notion of “true jurisdiction … where the tribunal must explicitly determine whether its statutory grant of power gives it the authorityto decide a particular matter” (Hartjes at para. 12 citing Dunsmuir v New Brunswick, 2008 SCC 9 at para. 59) but also, in a broadercontext, its statutory mandate, which involves, at the pre-investigative stage, an assessment of the allegations contained in the complaint. [12] As I read s. 41(1)(c), “jurisdiction” could refer to two different categories of matters. For example, a complaint by an inmate of a

(1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission. [Emphasis in original] 40

(1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d’individus ayant des motifs raisonnables de croire qu’une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière. [souligné dans l’original.] provincial institution could likely be dismissed under s. 41(1) (c); this would be a question of “true jurisdiction … where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” ( see Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 59 ).

In a broader context, a complainant may complain of certain acts that are, on their own, not allegations that fall within the mandate of the Commission but allege that these acts took place because of race, ethnic origin, disability or another prohibited ground. In such a case, unless the complainant can disclose sufficient information or facts to show a link to a prohibited ground of discrimination, the acts complained of are not within the statutory mandate of the Commission.

In this second example, the pre-screening exercise involves an assessment of the sufficiency of the evidence. (my emphasis) [ 87 ] In addition, the Federal Court ruled the CHRC has no mandate to investigate a complaint unless a complainant provides sufficient information to disclose a link between the unfavorable treatment complained of and a prohibited ground of discrimination ( Hartjes at para. 13 ; Maracle at para. 44 ). [ 88 ] Furthermore, the Federal Court found the burden is on “a complainant to put sufficient information or evidence forward to persuade the Commission that there is a link between the complained-of-acts and a prohibited ground.” The court also found that this is a low threshold to meet ( Hartjes at para. 23 ; see also Maracle at para. 41 ) . [ 89 ] In Maracle at paras. 42 and 43 , the Federal Court stated that, for the purpose of determining whether it has jurisdiction to deal with a complaint at the pre-investigative stage, the CHRC should take the facts alleged in a complaint as true or capable of proof, because this is consistent with the approach that the CHRC should decide to not deal with a complaint only in plain and obvious cases. [ 90 ] In addition, in Love v (Canada) Privacy Commissioner , 2015 FCA 198 at paras. 23 and 24 , the Federal Court of Appeal confirmed that a complaint may be dismissed by the CHRC based on frivolousness pursuant to s. 41(1) (d) “if the complainant fails to set out a reasonable or prima facie basis for the allegation of discrimination.” The court confirmed that, at the pre-investigative stage, the inquiry to be conducted by the CHRC “is akin to that made by a court in the context of a motion to strike pleadings and involves accepting the facts as alleged by the claimant and asking whether it is “plain and obvious” that the complaint could not succeed”.

The Court of Appeal confirmed the CHRC may reasonably conclude that a complaint could not succeed if the complainant fails to assert material facts that discloses a link between the conduct complained of and a prohibited ground of discrimination, or “to put the matter another way, fails to explain why the adverse treatment was connected to one of the grounds prohibited under the CHRA .” [ 91 ] In addition to the decisions filed by the Commission, I reviewed the recent decision of the Federal Court in Asghar v Rogers Communications Inc, 2020 FC 951 , that specifically refers to and discusses the reasonable grounds threshold for filing a complaint embedded in s. 40 of the CHRA .

In Asghar , the court agreed that s. 40 imposes on complainants a reasonable grounds threshold for believing a person is engaging or has engaged in a discriminatory practice for filing a complaint. It interpreted s. 40 as imposing a low threshold on complainants to present some credible evidence to satisfy the Commission of the complaint’s merits.

If the complainant fails to meet that low threshold, the Commission may exercise its pre-investigative stage authority to dismiss the complaint as being frivolous, pursuant to s. 41, for failing to set out a reasonable or prima facie basis for the allegation of discrimination. [20] Here, the Commission properly identified the “plain and obvious” test for frivolousness. The Commission further identified that the CHRA requires a complainant to have a reasonable basis for filing a complaint. Specifically,

section 40 of the CHRA only enables complainants “having reasonable grounds for believing” there exists a discriminatory practice or conduct to file a complaint: [21] The threshold of “reasonable grounds for believing” a discriminatory practice has transpired may be low, but it nonetheless exists. Thus, the Commission may dismiss a complaint for frivolousness under paragraph 41(1) (

d) where that complaint fails to set out a reasonable or prima facie basis for the allegation of discrimination ( Love at para 23 ): see also Public Service Alliance of Canada v Canada (Attorney General) , 2015 FCA 174 at para 33 .

Looking at the other side of the same coin, the complainant must present some credible evidence to satisfy the Commission of the complaint’s merit, or risk having the claim rejected ( Gregg at para 7). [ 92 ] Considering the many similarities between the Act and the CHRA , I am of the view that the findings and principles emanating from the Federal Court jurisprudence regarding the CHRC’s mandate and authority to screen complaints at the pre-investigative stage, as well as the reasonable grounds threshold imposed on complainants for filing a complaint under the CHRA , are both relevant and persuasive in determining whether the Commission’s

interpretation of its own statutory authority and the analysis it has developed to exercise that authority are reasonable. I note the Commission’s

interpretation of its authority and the five-element reasonable grounds analysis it has developed and applies are in keeping with the caselaw emanating from the Federal Court. [ 93 ] I am also of the view that the absence of the expression “it appears to the Commission” from s. 20(1) of the Act , which appears in s. 41(1) of the CHRA and has been interpreted as inferring the exercise of discretion on the part of the CHRC, does not, in and of itself, lessens the relevance of the Federal Court’s jurisprudence in interpreting s. 20(1) of the Act .

The Federal Court’s findings do not revolve around that expression, which has been viewed as confirming the considerable amount of discretion conferred upon the CHRC (see

Hartjes at para. 14 ). [ 94 ] Therefore, I see no reason to depart from the findings and principles emanating from the Federal Court’s caselaw in determining the Commission’s authority and duty at the pre-investigative stage pursuant to s. 20(1) . The Commission’s

interpretation of its statutory authority under s. 20(1) of the Act and the reasonable grounds analysis it has developed are reasonable [ 95 ] I am of the view that the Commission’s

interpretation of its statutory authority and duty to screen complaints under s. 20(1) to determine whether they disclose reasonable grounds for believing there has been a violation of the Act is reasonable.

The Commission’s position is in keeping with the wording of s. 20(1) interpreted in the context of the objects of the Act and the statutory mandate of the Commission regarding human rights complaints; the legislative history of s. 20(1); the legislative intent behind the 2009 amendments; and the relevant caselaw. [ 96 ] In addition, I find that the five-element reasonable grounds analysis developed by the Commission falls within its authority and is a reasonable exercise of its authority under s. 20(1).

Furthermore, the analysis is consistent with the caselaw emanating from the Federal Court, which I have found relevant and persuasive in determining the extent of the Commission’s authority to screen complaints for investigation pursuant to s. 20(1). [ 97 ] For ease of reference, I will repeat the five elements of the reasonable grounds analysis applied by the Commission to determine whether it is required to investigate a complaint in discrimination pursuant to s. 20(1): 1. the commission’s jurisdiction to investigate the complaint; 2. the allegations must engage a prohibited area of discrimination under s. 9 of the Act ; 3. the allegations must engage a prohibited ground of discrimination under s. 7 of the Act ; 4. there must be an allegation of unfavourable treatment; and 5. there must be a reasonable argument that the alleged unfavourable treatment and the prohibited ground are linked. [ 98 ] The first element of the analysis relates to the Commission’s true jurisdiction to deal with a complaint.

Clearly, the Commission would have no jurisdiction over a complaint if it related to a matter that falls within the jurisdiction of the federal government or of another territory or province. [ 99 ] In addition, the Commission would have no jurisdiction to investigate a complaint that does not engage one of the prohibited areas of discrimination listed under s. 9 of the Act .

Negative treatment occurring outside the areas set out in s. 9 do not constitute discrimination under the Act . [ 100 ] The next three elements of the Commission’s analysis, including the requirement that the complaint disclose a link between the alleged unfavourable treatment and a prohibited ground of discrimination, flow directly from: s. 7 , which sets out the protected characteristics under the Act ; the Commission’s statutory mandate to investigate complaints of discriminatory practices under the Act ; and the elements of the legal test to establish discrimination stated in Moore v British Columbia (Education) , 2012 SCC 61 at para. 33 : As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code ; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes.

If it cannot be justified, discrimination will be found to occur. (my emphasis) [ 101 ] In the absence of a factual foundation for one or more of these three elements, there would be no reasonable grounds to believe there has been discrimination under the Act . [ 102 ] Therefore, the five elements of the analysis established by the Commission are all directly related to determining whether the complaint discloses reasonable grounds to believe there has been a violation of the Act .

This is consistent with the authority and duty of the Commission under s. 20(1). [ 103 ] In addition, I am of the view that requiring complainants to present or provide sufficient information or facts to satisfy the Commission that the situation they describe in their complaints could, if later supported by the evidence, establish the legal test for discrimination, is consistent with the reasonable grounds threshold that s. 20(1) imposes on complainants for filing a complaint with the Commission.

Also, conducting the initial review on the basis that the allegations made in a complaint are true recognizes that complainants have no obligation to provide evidence when they make a complaint. [ 104 ] In addition, the analysis adopted by the Commission is consistent with the approach set out in the relevant federal court jurisprudence that a decision to refuse a complaint at the pre-investigative stage should only be made in plain and obvious cases.

The initial review conducted under s. 20(1) takes place at a very early stage of the process and a decision to refuse a complaint in totality or in part before it is investigated essentially equates to a summarily dismissal. Therefore, I find the Commission’s approach reasonable because it is consistent with its authority under s. 20(1) in light of the objects of the Act and its statutory mandate regarding complaints.

[ 105 ] Further, the initial reasonable grounds review ensures the Commission does not exceed its jurisdiction by investigating a complaint it clearly does not have the statutory authority or mandate to investigate. It also ensures the Commission’s resources are properly directed and utilized to fulfill its important mandate under the Act . [ 106 ] In addition, I am of the view that the slightly different

interpretation proposed by Yukon does not affect the reasonableness of the Commission’s

interpretation of its authority pursuant to s. 20(1). Considering that the

interpretation put forward by Yukon would not have much practical implications (Yukon agrees the Commission has the authority to screen complaints under s. 20(1) and agrees that the reasonable grounds analysis developed and applied by the Commission is in keeping with its statutory authority); and considering that I am not conducting a correctness review, I am of the view that I do not need to delve into Yukon’s submissions any further to decide the question before me. [ 107 ] As a result, I find that the Commission’s

interpretation of s. 20(1) as giving it authority to screen complaints at the pre- investigative stage to ensure they disclose reasonable grounds for believing there has been a contravention of the Ac t ; and the five- element reasonable grounds analysis it has developed to exercise that authority are reasonable. [ 108 ] Mr. Bachli also argues the Director has no authority to screen complaints. Mr. Bachli submits only the Commission, not the Director, is vested with the power to investigate complaints. [ 109 ]

Section 19 of the Act sets out the responsibilities of the Director. It directly addresses and answers Mr. Bachli’s concerns and argument on this point.

Section 19 reads: There shall be a Director of Human Rights responsible to the commission for (

a) ensuring that complaints are dealt with in accordance with this Act ; (

b) carrying out, in accordance with the commission’s policies and directives, the administration of this Act . [ 110 ] Pursuant to s. 20(1), complaints are made to the Commission and it is the Commission that is responsible for their investigation. However, s. 19 specifically confers upon the Director the authority to deal with complaints and the responsibility to ensure they are dealt with in accordance with the Act . [ 111 ] Also, the wording of s. 4 of the Regulations provides that the Director has the mandate to conduct or direct investigation of a complaint on behalf of the Commission.

It also gives the Director the mandate to determine whether a complaint requires investigation under s. 20(1). [ 112 ] The Regulations also set out a process that provides for a review of the Director’s decision by the Commission. [ 113 ] Therefore, the Commission’s position that the Director has the authority and responsibility, at the initial stage, to determine whether a complaint requires investigation in accordance with s. 20(1) of the Act , subject to the Commission’s review, is reasonable. [ 114 ] Mr. Bachli’s argument on this issue cannot succeed and is dismissed. (iii) Mr.

Bachli’s Rights to Procedural Fairness (

a) Did the Commission breach its duty of procedural fairness by not permitting Mr. Bachli to attend the review hearing and/or present oral evidence and/or make oral submissions at the review hearing? Positions of the Parties The Petitioner - Mr. Bachli [ 115 ] Mr. Bachli submits the Commission breached its duty of procedural fairness by denying him the right to attend his review hearing to provide oral evidence. He submits he was barred from the review hearing. In addition, Mr. Bachli submits there is no record demonstrating that the Commission Members reviewed the documents he provided in support of the review.

The Respondent - the Commission [ 116 ] Counsel for the Commission submits the Commission does not have the statutory obligation to hold a formal hearing or to allow a complainant to make both written and oral submissions on review. [ 117 ] Counsel for the Commission submits the Commission met its duty of procedural fairness by allowing Mr. Bachli to file extensive written submissions and documentation that the Commission Members considered on review.

The Respondent - Yukon [ 118 ] Counsel for Yukon did not make submissions on this point, which Mr. Bachli raised in his oral submissions at the hearing of the judicial review. Analysis [ 119 ] Before addressing this ground of review, I want to clarify that, even though all parties appeared to refer, to some extent, to Mr. Bachli’s appeal to the Commission, there is no statutory right of appeal of a decision of the Director to the Commission. [ 120 ]

Section 5 of the Regulations is the only provision that specifically provides for a right of review, not an appeal, of a decision made by the Director to the Commission. Section 5(3) states that a complainant may ask the Commission to review the Director’s decision to suspend or stop an investigation by filing a written request with the Commission within 30 days of receiving written notice of the Director’s decision. [ 121 ] Whether the Commission had the specific procedural duty to allow Mr.

Bachli to attend the review in person or remotely to present oral evidence and/or make oral submissions must be determined with reference to all the circumstances.

That determination is informed by a list of non-exhaustive factors set out in Baker that include: … (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: … ( Vavilov at para. 77 , citing Baker at paras. 22-27 ) [ 122 ] First, neither the Act nor the Regulations require the Commission to hold a formal review hearing of a decision made by the Director regarding the investigation of a complaint. [ 123 ] Section 5(4) of the Regulations provides that the Commission must give the complainant at least 30 days notice of when it will review the Director’s decision. [ 124 ] Section 5(5) of the Regulations sets out what the Commission must consider in reviewing the Director’s decision.

The Commission must consider the Director’s written notice (reasons) of decision provided to the complainant. It must also review any written or oral submissions by or on behalf of the complainant with respect to the Director’s decision. 5(5) In reviewing the Director’s decision, the Commission shall consider (

a) the Director’s written notice of the decision given to the complainant under subsection (2); and (

b) any written or oral submissions by or on behalf of the complainant pertaining to the Director’s decision to suspend or stop the investigation. (my emphasis) [ 125 ] The use of the word “or” reveals the Commission must consider either written submissions or oral submissions by a complainant. Therefore, the Commission does not have the statutory obligation to allow a complainant to make both written and oral submissions on review. In addition, the Commission is not statutorily required to accept or consider written or oral evidence on review.

As previously stated, at the pre-investigative stage, the complainant bears the burden of providing sufficient allegations of facts or information to reveal reasonable grounds for believing there has been a contravention of the Act . At this early stage in the process, a complainant is not required to provide evidence. It would run contrary to the purpose and efficiency of the pre-investigative review process to impose on the Commission a procedural duty to receive oral or written evidence where its review is performed on the basis that the complainant’s factual allegations or information are true.

The reasons provided by the Commission Members reveal they accepted Mr. Bachli’s allegations as true, including those regarding the unsuitability and unsafe condition of his equipment, the lack of proper services provided by Yukon, and the negative impact on him and his family. [ 126 ] The record reveals that, on June 23, 2021, Commission staff emailed Mr. Bachli to acknowledge receipt of his written request for a review. In this email Commission staff clearly stated to Mr. Bachli that he was entitled and encouraged to provide written submissions in support of his position.

In the alternative, Commission staff indicated he may be permitted to make oral submissions: … Any written submissions will be due 10 days before the review hearing and are intended to provide the Commission Members with reasons why they should overturn the Director’s decision. Alternatively, we require notification if you wish to appear at the Review Hearing to make oral submissions on the decision to not accept the complaint, rather than written submissions.

We do not encourage oral submissions at this time due to the COVID-19 pandemic. (my emphasis) [ 127 ] On June 24, 2021, Commission staff sent a letter by email to Mr. Bachli informing him that the hearing would take place on August 23, 2021. The letter clearly indicated that he had until Friday, August 13, 2021, to provide any further written submissions or to make a request to attend the review hearing by teleconference to make oral submissions.

[ 128 ] The record reveals Mr. Bachli received these two emails. However, Mr. Bachli did not specifically nor directly indicate or confirm he wanted to attend or appear at the review hearing within the timeline provided to him. The only passage of Mr. Bachli’s correspondence that could be interpreted as such is found in the body of the written submissions his wife emailed to Commission staff on July 15, 2021, in which he states: “I will also provide factual evidence on the hearing date”. [ 129 ] On July 16, 2021, Commission staff emailed Mr.

Bachli to inform him that the review hearing would take place on August 24, 2021, instead of August 23 rd . In that email, Commission staff also addressed questions Mr. Bachli had regarding the identity and qualifications of the Commission Members who had been assigned to the review. There is nothing in that email that could be seen as an acknowledgement or understanding on the part of Commission staff that Mr. Bachli wanted to attend the review hearing. [ 130 ] It is only in the afternoon of August 23 rd , the day before the review, that, for the first time, Mr.

Bachli clearly indicated his intention to attend the review, not by teleconference, as provided by the Commission, but in person. Mr. Bachli wrote: Lisa, with the hearing being set for 5:00, how do I get into your building, as I will be present for this hearing? [ 131 ] Commission staff promptly responded to Mr. Bachli that the Commission allows complainants to make oral submissions when they are unable to provide written submissions. However, the Commission does not allow complainants to make both oral and written submissions.

Commission staff added: … In any case, if a complainant needed to make oral submissions they would only be allowed in the meeting to make such submissions (10 minutes) then they would leave the meeting as the Commission Members’ deliberations are privileged. As such, with your written submissions provided to the Commission Members, you will not need to attend in person. Furthermore, as stated in my email below from June 23, 2021 we would have required much more notice of your intention to make oral submissions. [ 132 ] As a result, Mr.

Bachli did not appear in person or by teleconference at the review hearing, which proceeded as scheduled on August 24 th . [ 133 ] The facts before me do not support Mr. Bachli’s argument that the review proceeded in secret and that he was denied procedural fairness. [ 134 ] First, the Commission does not have the statutory obligation to hold a formal review hearing. Second, the Commission does not have the statutory obligation to allow a complainant to make both written and oral submissions on review.

It must permit and consider one or the other. [ 135 ] Clearly, the Commission’s decision on review was important to Mr. Bachli because it would determine whether parts of his complaint would be investigated or not. In addition, in light of all the circumstances before me, it was legitimate for Mr. Bachli to expect he would be able to make either written or oral submissions in support of his position on review. The same cannot be said about Mr. Bachli’s expectations that he would also have the right to appear and give oral evidence before the Commission. The record reveals Mr.

Bachli was permitted to provide extensive written materials in support of his request for a review. In addition to his initial request for review and accompanying submissions, the record reveals that on July 4, 2021, Mr. Bachli provided documentation that included several emails in support of his position. He provided further submissions on July 15 th and August 15 th . Mr. Bachli’s wife also delivered an envelope containing documents to the Commission’s office. The record reveals Mr.

Bachli’s written submissions and documentation were accepted by the Commission and provided to the Commission Members before the review. The record, including the decision letter sent by the Commission to Mr. Bachli, reveals the Commission Members considered what he submitted for the review. [ 136 ] As a result, I am of the view the Commission met its duty of procedural fairness by allowing, accepting, and considering Mr. Bachli’s written submissions and documentation. [ 137 ] In addition, even though the Commission did not have the statutory obligation to allow Mr.

Bachli to make both written and oral submissions on review, Commission staff clearly communicated to Mr. Bachli he had until August 13 th to advise if he wanted to make oral submissions by teleconference at the review. However, I find Mr. Bachli failed to properly notify the Commission of his desire to do so in a timely manner. Mr. Bachli never responded directly to Commission staff that he wanted to attend the review to provide oral evidence or make oral submissions. The short sentence Mr.

Bachli inserted in the middle of the written submissions emailed to the Commission on July 15 th , stating his intention to provide evidence at the hearing, was not sufficient to properly and timely communicate his desire to attend the review to make oral submissions (or provide oral evidence as he argued before me). I note Mr. Bachli’s submissions were destined to the Commission Members not Commission staff who was tasked with corresponding with him regarding the review process. In addition, I fail to see how the email Mr.

Bachli sent to Commission staff, the afternoon before the review, advising the Commission he intended to attend the review in person – despite being advised that any appearance, if authorized, would have to be by teleconference – triggers any procedural obligation on the part of the Commission to facilitate Mr. Bachli’s attendance. In addition, I am of the view the COVID-19 pandemic justified the Commission taking further health precautions, such as requiring that any oral submissions, if permitted, be made by teleconference. [ 138 ] The record does not support Mr.

Bachli’s submission that important information appearing on the cover page of his complaint entitled “Original Contact Information Human Rights Complaint” was withheld from the Commission. Even if that specific page were not provided to the Commission Members on review, the record reveals the Commission accepted and reviewed all of Mr. Bachli’s written submissions and documentation, which, overall, containe

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