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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The author of the communication received on 18 July 2006 is The-Trinh
Pham, a Canadian national, born on 21 July 1951 in Viet Nam. He claims to be
a victim of violations by Canada of articles 14 and 26 of the Covenant. The
author is not represented by counsel. The Covenant and the Optional Protocol
to the Covenant entered into force for Canada on 19 August 1976.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author had worked as a computer analyst at Hydro-Québec since May
1981 and, until 1986, had received excellent evaluations from his superiors.
After this date, he was accused of having difficulty communicating with his
co-workers. In the course of a reorganization of the enterprise in 1989, he
was given leave of absence and invited to transfer to another post within 12
months. Over the course of seven years, he was assigned to a variety of jobs
and training courses in the field of information technology. He applied for
numerous vacancies, but without success. The reasons given by his superiors
varied. Some considered the author's qualifications to be inadequate, others
referred to his record of poor evaluations. In certain cases, his handicap
was mentioned. [FN1] Eventually, on 9 February 1996, the author was
dismissed. At that point, he decided to initiate three separate proceedings
against Hydro-Québec: one before the Labour Standards Commission, one before
the Commission on Human Rights and Children's Rights and one for damages in
the Superior Court.
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[FN1] In his decision of 10 February 1998, the labour commissioner noted,
with regard to the reasons for the rejections received by the author over
the years, that certain people considered his qualifications to be
insufficient; they said that he had an inadequate grasp of Hydro-Québec's
information systems. Others pointed to his poor record; his previous
evaluations were unfavourable. In some cases, his response was
unsatisfactory; in others, it was his handicap. The fact is that Mr.
The-Trinh Pham suffers from a severe stammer. Recruitment managers would
therefore note some difficulty in communication (p. 6).
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2.2 On 20 February 1996, the author lodged an appeal with the Labour
Standards Commission under article 124 of Quebec's Act on labour standards.
He complained that his dismissal was without just and sufficient cause and
sought reinstatement. He said the labour commissioner had refused to
exercise jurisdiction with regard to discrimination since that complaint had
been made to another court (see paragraph 2.3 below), and the question of
discrimination had therefore not been addressed. On 10 February 1998 the
labour commissioner rejected the claim. On 16 June 1998 the Superior Court
rejected the author's application for review. On 10 May 2001 the Court of
Appeal of Quebec rejected his appeal. On 7 February 2002 the Supreme Court
rejected the author's application for leave to appeal.
2.3 On 16 March 1996 the author filed a complaint with the Commission on
Human Rights and Children's Rights (CDPDJ). He claims to have suffered
discrimination on grounds of race, colour, ethnic or national origin and
disability. On 17 February 2000 the CDPDJ decided to close the case on the
ground that, on the basis of the same facts, the author had lodged another
appeal with the Labour Standards Commission. On 20 March 2000 the author
filed for review with the Superior Court, requesting that his case should be
transferred to the Human Rights Tribunal. [FN2] On 31 August 2000 his
request was denied. On 27 October 2000 the Court of Appeal of Quebec
rejected the author's appeal. 2.4 On 21 January 1999 the author filed a
parallel claim for damages against Hydro-Québec before the Superior Court.
Following the Superior Court decision of 31 August 2000 in the second set of
proceedings mentioned above (para. 2.2), the author amended his statement to
the Superior Court to unite the causes of action; these now comprised the
period of notice of dismissal, "moral" damages, discrimination and fraud. On
7 May 2003 the Superior Court declared the application inadmissible, finding
that the claims regarding period of notice and discrimination were res
judicatae. [FN3] The author appealed against this judgement with the Court
of Appeal of Quebec. On 13 April 2004 the Court rejected the appeal. On 28
October 2004 the Supreme Court of Canada rejected the author's application
for leave to appeal.
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[FN2] As of 24 July 1997, private individuals no longer have direct access
to the Human Rights Tribunal. Only the Commission on Human Rights and
Children's Rights (CDPDJ) may bring legal action before the Tribunal, on
behalf of a victim.
[FN3] The Superior Court decided that, at the risk of needlessly reopening
an 11-day inquiry before the labour commissioner, it was clear that the
claims in respect of period of notice and discrimination were res judicatae
in that the parties were the same, there was identity of cause, namely
dismissal, and identity of claim, namely reinstatement and compensation on
those grounds (decision, para. 14).
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THE COMPLAINT
3. The author considers that he was a victim of discrimination and that the
judges used various ruses to block his legitimate access to the courts. He
asks the Committee to find that he is a victim of violations by the State
party of articles 14 and 26 of the Covenant and that the State party should
pay him compensation for all the damages he has incurred.
STATE PARTY'S OBSERVATIONS ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 On 31 July 2007 the State party argued that the communication was
inadmissible for the following reasons. First of all, the author has not
exhausted domestic remedies because he has not seized the national courts of
the rights violations that he is alleging in his communication to the
Committee. Regarding the alleged partiality of the labour commissioner, the
State party considers that the author could have contested this partiality
in a variety of ways. He could have applied to have the commissioner recused;
he could have applied to the Office of the General Labour Commissioner for
review or revocation of the commissioner's decision; or he could have
applied for a judicial review of the commissioner's decision. Even though
the author had in fact filed for judicial review, his application did not
raise the matter of the commissioner's conduct with either the Superior
Court or the Court of Appeal of Quebec. Lastly, he could have challenged the
labour commissioner's institutional independence.
4.2 With regard to the Human Rights Commission, the State party notes that
the Commission is an administrative body to which article 14 of the Covenant
does not apply. This characterization of the legal status of the Commission
was confirmed in the Superior Court decision of 31 August 2000 and the Court
of Appeal ruling of 27 October 2000. The State party notes that the author
did not challenge the Court of Appeal decision. It asks the Committee not to
consider the author's allegations against the Commission on the grounds that
the Commission is not a tribunal within the meaning of article 14 of the
Covenant.
4.3 With regard to the judges in the higher courts, the State party asserts
that at no time did the author avail himself of domestic remedies against
judges of the higher courts in respect of rights under article 14 of the
Covenant. He could have filed for recusal of a judge of the Superior Court
of Canada or of a judge of the Court of Appeal of Quebec, or complained to
the Canadian Judicial Council.
4.4 With regard to article 26, the State party considers that the author
fails to adduce in his communication the necessary evidence relating to the
rights protected under article 26 [FN4] and that his allegations concern
rather the rights protected under article 14. The author has therefore
failed to substantiate his claim for the purposes of admissibility.
Moreover, he has at no time invoked any remedy under domestic law to
challenge a statutory provision that might violate the rights protected
under article 26 of the Covenant.
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[FN4] See communication No. 802/1998, Rogerson v. Australia, Views adopted
on 15 April 2002, para. 7.8.
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4.5 Secondly, the State party maintains that the author's demands are
incompatible with the provisions of the Covenant in that they consist
primarily of a request to the Committee to review the national courts'
judgements in his case. What the author challenges is basically the labour
commissioner's assessment of the testimony and evidence in his decision of
10 February 1998. The State party recalls that the Committee is not itself
an appellate court. FN5 With regard to the author's action for damages in
the Superior Court, it notes that the author asks the Committee to determine
whether the rules of law have been properly interpreted and applied by the
domestic courts, which is not the Committee's role. The author provides no
evidence to show that the decisions referred to in his allegations were
marred by any irregularity that would warrant the Committee's intervention.
The State party considers that the mere fact that the law has not upheld the
author's claims does not mean he was deprived of the right to a fair hearing
or to equal protection under the law.[FN6] The communication is therefore
inadmissible under article 3 of the Optional Protocol.
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[FN5] See communication No. 1234/2003, P.K. v. Canada, inadmissibility
decision of 3 April 2007, para. 7.3.
[FN6] See communication No. 761/1997, Singh v. Canada, inadmissibility
decision of 14 August 1997, para. 4.2.
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4.6 Lastly, the State party contends that the author has not sufficiently
substantiated his allegations with regard to the judicial system. These
allegations are general in nature, and the author provides no evidence to
support them. The author's claims concerning the domestic courts' - and in
particular, the labour commissioner's - impartiality and independence are
general accusations of partiality. [FN7] As for his allegations regarding
access to the courts, a simple perusal of the 11 decisions and judgements
handed down in the actions filed by the author shows that he had access to
the various domestic authorities and courts. Regarding his claims that the
courts did not provide equal treatment under the law, the State party
recalls that the communication contains no fact showing that the author has
been treated any differently than other litigants in Quebec who are in a
similar situation. The author also accuses the Court of Appeal of Quebec of
violating his right to a fair hearing. However, the State party notes that
the author had ample opportunity to be heard by the Court of Appeal of
Quebec, given that the hearing lasted an entire morning instead of an hour.
The communication is therefore inadmissible under article 2 of the Optional
Protocol.
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[FN7] See communication No. 378/1989, E.E. and M.M. v. Italy,
inadmissibility decision of 28 March 1990, para. 3.2.
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4.7 Alternatively, the State party contends that the communication is
unfounded.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 On 28 January 2008 the author recalled that his complaint to the
Committee was based primarily on the following four claims: his complaint to
the Commission on Human Rights and Children's Rights (CDPDJ) of
discrimination on grounds of language and disability, and of harassment; his
claim regarding discrimination; his claim regarding fraud; and his claim
regarding notice of dismissal. He maintains that he has exhausted domestic
remedies. He argues that he had no reason to file for recusal of the labour
commissioner, since it was only after reading the decision that he realized
that the commissioner had not acted impartially. He contested the decision,
but to no avail. With regard to domestic remedies against judges in the
higher courts, he recalls that the conduct and attitude of the judges were
respectful and that there was therefore no basis for filing for recusal. As
to the State party's suggestion that he could have complained to the
Canadian Judicial Council, the author notes that complaints against judges
do not permit court decisions to be overturned. All the remedies proposed by
the State party were futile proceedings that had no chance of success. With
regard to article 26 of the Covenant, the author recalls that the CDPDJ
refuses to exercise jurisdiction in respect of applications on grounds of
discrimination. Although the State party argues that the author did not
invoke domestic remedies to challenge a statutory provision that might
violate the rights protected under article 26, the author recalls that this
remedy is no longer available to him since the Court of Appeal and the
Supreme Court have already closed the case.
5.2 As to his claim of discrimination in the CDPDJ, the author reiterates
that the decision of the CDPDJ to close the case before completing its
investigation was arbitrary. He recalls that the Committee has recommended
that the State party should amend its legislation to ensure that all
complainants in matters relating to discrimination have access to justice
and to effective remedies. [FN8] In his view the CDPDJ has an
unchallengeable right of triage and, in the case at hand, the State party
has exercised arbitrary control over his access to the Human Rights
Tribunal, with no right of appeal. In view of the fact that the assessment
of the evidence and the application of domestic law by the courts and the
CDPDJ were clearly arbitrary and represented a denial of justice, the
Committee is competent to intervene. [FN9]
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[FN8] See CCPR/C/79/Add.105, 7 April 1999, para. 9.
[FN9] See communication No. 1403/2005, Gilberg v. Germany, inadmissibility
decision of 25 July 2006, para. 6.6.
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5.3 Regarding the claim of discrimination, the author notes that the State
party has not commented on the merits of the issue. He recalls that the
Superior Court judge made numerous errors in his decision of 7 May 2003. The
judge did not review the evidence effectively presented to the labour
commissioner. He assumed that the commissioner had dealt with the issue of
discrimination. He failed to take into account several pieces of evidence
that went in the claimant's favour. Lastly, he alleged that the author
claimed compensation for discrimination from the commissioner, which is
incorrect. The author therefore argues that the judge's decision is clearly
arbitrary or represents a denial of justice. As to his application to the
Court of Appeal, the author recalls that the Court gave no arguments for its
rejection of the author's claims and that it was selective in examining the
evidence. He considers the Superior Court judgement of 7 May 2003 and the
Court of Appeal ruling of 23 April 2004 somewhat cursory and their lack of
factual and legal substantiation tantamount to a violation of the rules of
natural justice and of article 14 of the Covenant. He maintains that the
national courts have arbitrarily denied him access to an effective remedy
and a judgement on the merits of his claim of discrimination based on his
disability, in violation of articles 2 and 26 of the Covenant.
5.4 Regarding his claim of fraud (concealment of evidence, forgery and
obstruction of justice), the author notes that the State party has made no
comment on this. He considers that the Court of Appeal decision is clearly
arbitrary or represents a denial of justice. He submits that he was the
victim of fraud and that he was prevented from gaining access to justice.
5.5 As to his claim regarding notice of dismissal, the author again notes
that the State party has made no comment on the merits. He considers the
Court of Appeal to have erred in fact and in law.
ADDITIONAL COMMENTS BY THE STATE PARTY
6.1 On 30 June 2008, the State party again argued that the communication was
inadmissible. It provided further details about appeals against loss of
employment and discrimination under article 124 of the Act on labour
standards. This legislative provision allows employees who can show that
they have three years of continuous service in the same enterprise and who
believe that they have been dismissed without just and sufficient cause to
submit a complaint, in writing, to the Labour Standards Commission. The
labour commissioner must assess all the circumstances of each case in order
to determine whether the measure taken by the employer was just and fair.
After 11 days of hearings, the labour commissioner found that the weight of
evidence supported the conclusion that the author had lost his job as a
result of administrative dismissal and not discrimination. He concluded that
the author was not the victim of a dismissal without just and sufficient
cause.
6.2 The State party recalls that the Superior Court also rendered a decision
on the question of consideration of the discrimination alleged by the
author. It notes that the discrimination issue was frequently discussed at
hearings before the labour commissioner. The author took the case to appeal
several times. He also referred the same issues to other bodies. He
therefore had access to effective remedies before domestic courts of law.
The State party contends that the author is clearly dissatisfied with the
results of the domestic remedies pursued. It nevertheless recalls that the
Committee is not an appeal court.
6.3 The State party notes that, as with the allegations set out in the
initial communication, the allegations made by the author in his comments
are also based on an assessment of the facts and evidence placed before the
domestic courts. The author is basically asking the Committee to review the
judgements of the domestic courts.
6.4 The State party repeats that the author has not exhausted all the
available domestic remedies. The author alleges that all the remedies not
pursued were, in his view, ineffective and futile but has not shown in what
way the proposed remedies were ineffective.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 As required under article 5, paragraph 2 (a), of the Optional Protocol,
the Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement.
7.3 With regard to the complaint of discrimination, the Committee takes note
of the State party's argument that the author fails to adduce in his
communication the necessary evidence relating to the rights protected under
article 26 and that his allegations concern rather the rights protected
under article 14. The Committee notes that the author provides no evidence
that he was a victim of discrimination and that he mainly confines himself
to contesting the courts' assessment of the evidence and application of
domestic law. Consequently, the Committee considers that the author has not
sufficiently substantiated his allegations under article 26 for the purposes
of admissibility and finds this part of the communication inadmissible under
article 2 of the Optional Protocol.
7.4 With regard to the author's claims concerning the assessment of evidence
by the domestic courts, the Committee notes that the author basically
requests a review of the courts' judgements in his case. The Committee
recalls its consistent case law according to which it is generally for the
courts of the States parties to the Covenant to evaluate the facts and
evidence or the application of domestic law in a particular case, unless it
can be established that the evaluation is clearly arbitrary or represents a
denial of justice. [FN10] The evidence submitted to the Committee does not
show that the proceedings before the authorities of the State party were
marred by such irregularities. Consequently, the Committee considers that
the author has not sufficiently substantiated his allegations under article
14 for the purposes of admissibility and finds this part of the
communication inadmissible under article 2 of the Optional Protocol.
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[FN10] See for example communication No. 541/1993, Errol Simms v. Jamaica,
inadmissibility decision of 3 April 1995, para. 6.2.
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8. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee. |
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