IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Okoro v. Nova Scotia (Human Rights Commission),
2006 NSSC 236
Date: 20060728
Docket: SH 264678
Registry: Halifax
Between:
Dr. Daniel Okoro
Applicant
v.
Nova Scotia Human Rights Commission, Cape
Breton Regional Hospital, Dr. Brian Foley and
Keith MacDonald
Respondents
Judge: The Honourable Justice Walter R. E. Goodfellow
Heard: July 19, 2006, in Halifax, Nova Scotia
Counsel: Victor J. Goldberg, Esq. and Martha L. Mann, Esq., for the applicant
John G. Khattar, Esq., for the respondent, Cape Breton Regional Hospital
Michael J. Wood, Q.C., Jennifer Ross, Esq., for the respondent Nova Scotia Human Rights Commission
By the Court:
BACKGROUND:
[1] Dr. Daniel Okoro is a black African Canadian who responded to an advertisement in a medical journal for the position of Staff Psychiatrist at the Cape Breton Health Care complex. He was interviewed by Dr. Brian Foley, the Clinical Director of Mental Heath Service on July 6, 2000. Dr. Okoro takes exception to the fact that Dr. Foley was apparently approximately two hours late for the interview and that Dr. Foley questioned the adequacy of his training. Dr. Okoro took the position that his training was assessed and deemed adequate by the Royal College of Physicians and Surgeons of Canada, as well as of Nova Scotia.
[2] Dr. Okoro received a letter of offer of employment dated July 26, 2000 and commenced employment with the Cape Breton Regional Hospital around October, 2000. He continued employment until he submitted his letter of resignation to Dr. Naqvi, Medical Director of the hospital on June 10, 2003.
[3] Dr. Okoro completed an intake form for the Human Rights Commission on December 11, 2003 listing the hospital, Dr. Foley and a Keith MacDonald as the organization and specific individuals who he alleged discriminated against him. Dr. Okoro also dealt with Gordon Hayes, the Human Rights Officer and a formal written complaint against the hospital was filed by Dr. Okoro on June 22, 2004 alleging discrimination against him on the matter of his employment because of his race and colour, contrary to sections 5(d)(i) and 5(d)(j) of the Human Rights Act.
[4] The hospital responded to the complaint and this was received by Dr. Okoro on September 8, 2004 to which Dr. Okoro provided a written rebuttal on October 4, 2004. Gordon Hayes issued an investigative report on April 18, 2005 recommending the complaint be dismissed. Dr. Okoro engaged his present counsel to respond to the findings in the investigative report and Dr. Okoro’s counsel asked specifically that Dr. Foley be added to the complaint and disagreeing with the determination.
[5] On or about the 21st of July, 2005 the matter was discussed with the Commissioners of Human Rights and deferred with a direction for Gordon Hayes to interview Dr. Foley and Dr. Naqvi. An amended investigation report was issued by Gordon Hayes on October 4, 2005 where once again he recommended the complaint be dismissed. Dr. Okoro’s counsel responded to the amended report and was eventually advised by the Chairperson of the Human Rights Commission that the complaint had been discussed at a meeting of the Commissioners held on November 17, 2005 and the decision confirmed that the complaint would be discontinued.
APPLICATION:
[6] The application filed initially was for an order of certiorari pursuant to Civil Procedure Rule 56.01 to quash the decision of the Human Rights Commission to dismiss the complaint of Dr. Okoro against the Cape Breton Regional Hospital and an order amending the complaint to name specifically Dr. Brian Foley and one Keith MacDonald plus a provision in the order appointing a Board of Inquiry.
[7] At the outset of the application the Court and counsel had the benefit of additional briefs from the hospital’s solicitor and the solicitor for the Nova Scotia Human Rights Commission and it was readily acknowledged that in order to give a direction such as requiring an act, i.e. appointing a Board of Inquiry, that such would require relief by way of mandamus and mandamus is not available in a discretionary area. Accordingly, the application remained as one only for a quashing of the decision to discontinue the complaint process. Dr. Okoro’s counsel argued vigorously that the dismissal of Dr. Okoro’s complaint should be quashed due to lack of procedural fairness, bias and an alleged lack of thoroughness in the investigation of Dr. Okoro’s complaints.
DR. OKORO’S LETTER OF RESIGNATION - 10 JUNE 2003:
[8] Dr. Okoro’s letter of resignation dated 10 June 2003 directed to Dr. M. Naqvi, The Medical Director, Cape Breton Regional Hospital, Sydney, N.S., reads as follows:
Letter of Resignation
I wish to give notice of my intension to resign my services with effect from 10 July 2003.
Words can never express the depth of appreciation I have for Cape Bretoners and to you personally for the wonderful fatherly support you have given me through the years.
I believe it is time for me to move on and I do wish I will always continue to count on your support wherever I be.
[9] Dr. Okoro’s letter of resignation is reproduced not only because it was part of the record but I want to comment on how strenuous Dr. Okoro’s counsel sought to find some substance to the application. The letter expresses appreciation by Dr. Okoro for Cape Bretoners. In argument it was suggested to me by Dr. Okoro’s counsel that this contained the subtlety that Dr. Foley was not born in Cape Breton. Be that as it may, I see no comment in Dr. Okoro’s affidavit in support of this application filed April 10, 2006 or elsewhere in the material that begins to suggest the letter of resignation means other than what it clearly states.
[10] It was most reasonable of the investigative officer and the Commissioners to weigh Dr. Okoro’s letter of resignation as part of the considerable material viewed in the investigative process. The letter is clearly of significance for what it does not state, namely, that his resignation was in any way related to the alleged discrimination. It was also suggested that the reason the letter would not contain any reference to the allegation of discrimination was that he would need or likely need a letter of recommendation from his Medical Supervisor, Dr. Naqvi and, with respect, I find that position less than compelling particularly when you weigh the totality of the record which exhibits no lack of Dr. Okoro articulating and advancing his allegations.
CASE LAW:
[11] All counsel filed extensive briefs which I have reviewed and I want only to make specific reference to the following case:
In Slattery v. Canada (Human Rights Comm.) (No. 1) (1994, 22 C.H.R.R. D/205 (F.C.T.C.), the court noted at para. 48 that the two preconditions which must exist for the fairness of an investigation are neutrality and thoroughness.
With respect to thoroughness, the court noted at para 55:
[55] Deference must be given to administrative decision makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 [17 C.H.R.R. D/349].
The concerns raised by a complainant that not every witness identified was interviewed by the Commission’s investigator was not fatal to the adequacy and thoroughness of the investigation (at para. 68):
[68] The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigator, much like the CHRC, must be master of its own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient....
[12] With respect to procedural fairness, counsel for Dr. Okoro is really advancing that Dr. Okoro should have been allowed to play a greater, if not major, part in the investigation beyond the opportunity he was given to take his time and articulate the original complaint received by the Commission , providing Dr. Okoro with a copy of the hospital’s response in order for him to prepare a rebuttal, etc., etc. The Commissioners had the comments of Dr. Okoro’s counsel concerning the investigation report at their meeting of July 21, 2005 and advised Dr. Okoro that further investigation was to take place, specifically the interview of the Dr. Foley and Dr. Naqvi. This resulted in an updated investigative report and brought responses from Dr. Okoro’s counsel. No basis for a conclusion of procedural unfairness has been established on this application and what little is advanced falls markedly short of causing any concern that needs to weighed.
[13] Dr. Okoro’s counsel raised the issue of bias and he made a number of allegations including that there was interference with his specialist status granted by the College of Physicians and Surgeons of Nova Scotia. Dr. Okoro’s counsel referred specifically to the investigation report of April 18, 2005 which recited in paragraph 37 that the Human Rights Officer contacted the College of Physicians and Surgeons of Nova Scotia and Dr. Cameron Little, Registrar, stated: “no one from Cape Breton Regional Hospital contacted their office re: Dr. Okoro being given specialist recognition”. Dr. Okoro’s counsel then referred the Court to a previous letter from the College of Physicians and Surgeons of Nova Scotia dated February 16, 2005 from Dr. Cameron Little, Registrar, which was in response to the Investigative Officer’s letter of February 14, 2005 where the Investigative Officer posed four specific questions. Question 3.: “Has anyone from the Cape Breton Regional Hospital ever contacted your office to argue as to Dr. Okoro being given specialist recognition? Answer: I do not know. There is no documentation on file regarding this matter.”
[14] With respect, Dr. Okoro’s counsel is reading far too much into the response and the formalized reply of February 16, 2005 does not support any contention of bias nor does it support the allegation advanced by Dr. Okoro that the College of Physicians and Surgeons of Nova Scotia was contacted by Dr. Foley and that he argued with the College Registrar as to why Dr. Okoro was recognized as a specialist. Dr. Foley, it is noted advised the Registrar, Dr. Little, December 14, 2005 that he was continuing to sponsor Dr. Okoro for the year 2002 and that he supported the renewal of his defined license.
[15] I have not recited the lengthy complaint filed by Dr. Okoro and the equally lengthy response from the Cape Breton Hospital plus the initial investigative report, etc., as I have felt that it was unnecessary and not entirely beneficial to Dr. Okoro.
[16] Dr. Okoro submits that his allegations constitute a prima facia case of discrimination and, with respect, the question of whether a prima facia case exists could only be determined after reviewing the allegations and the hospital’s response, etc. A review of the amended investigative report indicates that all of Dr. Okoro’s allegations as well as those in his rebuttal were thoroughly canvassed by the investigator before he prepared the amended report. Some highlights are:
In paragraphs 41, 42, 44 and 45 of the Amended Report the investigator refers to evidence gathered which contradicted certain of Dr. Okoro’s allegations.
In paragraph 43 the investigator refers to the fact that Dr. Okoro had not provided the time and date of or the names of any witnesses to an alleged incident of racial abuse and that he had not filed a written report of the alleged incident.
In paragraph 50 the investigator refers to Dr. Okoro’s letter of resignation, which appears to contradict his description of his experience while working at the Respondent Hospital.
[17] On his application Dr. Okoro’s counsel points out that there is reference to the alleged event occurring (para 43) in January at a meeting but substantially the investigator is accurate, no specific date or names of any witness were advanced by Dr. Okoro nor did he in fact file a written report of his allegation.
[18] With respect to the allegation of bias, I have reviewed and reflected very carefully on all of the material filed in this application. There is nothing that leads me to begin to conclude bias has been established or existed. The return of the Nova Scotia Human Rights Commission sets out in considerable detail Dr. Okoro’s position, the position of the hospital, analysis of the situation and a recommendation. The evidence does not appear to suggest that Dr. Okoro was subjected to racial discrimination.
[19] The standard of review for discretionary decisions of administrative bodies is patent unreasonableness. I would have had no difficulty in determining the application must stand dismissed if in fact the standard of review is one of reasonableness.
[20] Application dismissed.
[21] The Human Rights Commission indicated that it would not in any event seek costs and therefore I await the position of the Cape Breton Regional Hospital. If the hospital seeks costs it should set out its position in writing to the Court within 10 days of receipt of this decision and within a week thereafter Dr. Okoro’s counsel should respond, subject of course to the parties reaching agreement.
J.