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Appeal-Judicial Review - Fairness - Limiting Evidence. Tazehkand v. Bank of Canada
In Tazehkand v. Bank of Canada (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR of a CHRC decision dismissing a complaint by the appellant "alleging that he had been the victim of discrimination based on his race and his national or ethnic origin", here in a Bank of Canada hiring decision.
In these quotes the court considered an issue that redounds in both administrative fairness law regarding limiting evidence - and JR law regarding fresh evidence and the admissible 'record'. The Federal Court (below) held that a Privacy Commissioner's report (regarding emails exchanged between the parties) that - due to it's late submission (not the fault of the complainant) - was not considered in the investigator's report, could not be considered for the JR on standard JR 'record' doctrine that only material before the tribunal at the time of decision was admissible:[18] Dr. Tazehkand sought to file a report from the Office of the Privacy Commissioner in support of his application for judicial review. This report related to his attempt to obtain information from the Bank regarding his job application. Dr. Tazehkand had initially received just three emails from the Bank in response to his request for information under the Privacy Act, R.S.C., 1985 c. P-21. He was, however, party to more than a dozen emails between him and Bank representatives. This led Dr. Tazehkand to file a complaint with the Privacy Commissioner, which ultimately resulted in the Bank releasing nearly 150 pages of redacted internal emails.
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[52] Dr. Tazehkand mentioned his Privacy Act complaint in the submissions that he provided to the Commission in response to the investigation report, where he referred to “ongoing proceedings in the Office of the Privacy Commissioner of Canada … directly related to this complaint”. Dr. Tazehkand then briefly summarized the status of those proceedings. At no time, however, did he ask that the Commission delay making its decision with respect to his human rights complaint until the Privacy Act process was completed. The Commission thus cannot be faulted for dealing with Dr. Tazehkand’s human rights complaint when it did, and he was not denied procedural fairness in this regard.
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[87] It was in relation to this last matter that Dr. Tazehkand argues that the Federal Court erred in excluding the Privacy Commissioner’s Report. According to Dr. Tazehkand, the Federal Court should have admitted the Report as it illustrated the Bank’s poor conduct towards him, and proves that the Bank forced him to go to the Privacy Commissioner to get information regarding his job application, rather than just giving him the information he sought. The Report also shows that the Privacy Commissioner sided with him regarding the Bank’s conduct.
[88] Dealing with this last issue first, Dr. Tazehkand has not persuaded me that the Federal Court erred in excluding the Report of the Privacy Commissioner.
[89] The Privacy Commissioner’s Report was released shortly after the Commission dismissed Dr. Tazehkand’s human rights complaint. As a result, it had not been before either the investigator or the Commission when they dealt with Dr. Tazehkand’s complaint. Dr. Tazehkand nevertheless included the Report in his Applicant’s Record in the Federal Court, which led to an objection from the Bank as to its admissibility.
[90] In refusing to admit the Report, the Federal Court observed that, subject to limited exceptions, judicial review is ordinarily to be conducted based on the record that was before the administrative decision maker. The Federal Court found that Privacy Commissioner’s Report did not come within any of the recognized exceptions identified in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22.
[91] Dr. Tazehkand has not identified a reviewable error in the Federal Court’s decision to exclude the document, which relates to a different proceeding under a different statute to that under consideration in this appeal.
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