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1. The author of the
communication is Nuri Jazairi, a Canadian national, born in 1941 in Iraq. He
claims to be a victim of violations by Canada of article 26, and of articles
2, paragraphs 1 and 2, 19, paragraph 1, and 50 taken in conjunction with
article 26, of the International Covenant on Civil and Political Rights. He
is not represented by counsel.
THE FACTS AS PRESENTED
2.1 The author is an associate professor of economics at York University in
Toronto. The university is not part of the State party's federal or
provincial government. In August 1984, after having applied for promotion to
a full tenure professorship, a university promotions committee received and
considered two unsolicited letters from other professors of the author's
faculty that were critical of him. In September 1984, a further university
promotions committee withdrew the letters from the file, but in apparent
violation of its procedures heard in camera representations by the Chair of
the author's faculty about the author's application, without disclosing
those representations to him or allowing him an opportunity to respond. In
December 1984, the Committee recommended that the author's application for
promotion be delayed, and, in November 1985, the university's president
accepted this recommendation.
2.2 In July 1989, the author complained to the Ontario Human Rights
Commission, alleging that his right to equal treatment with respect to
employment without discrimination and harassment had been infringed because
of his race, ethnic origin, creed and association, in contravention of the
Ontario Human Rights Code, 1981 (henceforth "the Ontario Code"). [FN1] He
alleged that certain members of his faculty had come to view him as
anti-Semitic, and that his political opinions at the relevant time that
Israel could be criticised for not doing more to resolve the Palestinian
question, together with other facts, including his race, ethnic origin and
religion, became an issue which adversely affected his right to equal
treatment in employment, and specifically in his application for promotion
to full professor. Between December 1989 and May 1993, the Commission
investigated the complaint.
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[FN1] Section 5(1) of the Ontario Code provides: "Every person has a right
to equal treatment with respect to employment without discrimination because
of race, ancestry, place of origin, colour, ethnic origin, citizenship,
creed, sex, sexual orientation, age, record of offences, marital status,
family status or handicap."
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2.3 The Commission rejected the author's complaint on 29 August 1994,
finding that: i) while the evidence indicated that his application for
promotion to Full Professor did not receive a fair and timely evaluation,
the irregularities in the process did not appear to be related to any
prohibited ground of discrimination; and ii) while the evidence indicated
that he might have been differently treated, there was insufficient evidence
to indicate that this was a result of his creed rather than his political
beliefs, the latter not being a prohibited ground of discrimination under
the Ontario Code. The Commission decided not to request the appointment of a
Board of Inquiry and dismissed the complaint. The author requested
reconsideration of the Commission's decision.
2.4 On 2 May 1995, the Commission upheld its original decision, holding that
political belief is not included in the meaning of the word "creed", and
that whatever differential treatment the author may have received from his
employer, York University, was not based on creed or any other prohibited
ground of discrimination. The author applied for judicial review of this
decision.
2.5 On 19 September 1995, the Commission declared null its decision of 2 May
1995, on the basis that submissions made to it by the author had not been
taken into account. On 29 November 1995, the Commission released its second
decision on reconsideration, again upholding the original decision. It again
held that "political belief" is not included in the meaning of the word
"creed", and that whatever differential treatment the author may have
received, it was not based on creed or any other prohibited ground of
discrimination. There was thus insufficient evidence to warrant a reversal
of the original decision.
2.6 The author applied to the Divisional Court for judicial review of the
interpretation of the word "creed" in the Ontario Code as a matter of
statutory construction, as well as of the constitutional issue concerning
the omission of "political opinion" from the Ontario Code as a prohibited
ground of discrimination. On 16 April 1997, the Court dismissed the
application, on the basis that "creed" did not encompass "political
opinion", and that the omission of "political opinion" from the Ontario Code
did not violate the equality provision of the Canadian Charter of
Fundamental Rights and Freedoms (henceforth "the Charter"). [FN2] The author
appealed to the Court of Appeal for Ontario.
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[FN2] Section 15(1) of the Charter provides : "Every individual is equal
before and under the law and has the right to equal protection and equal
benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour religion,
sex, age or mental or physical disability."
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2.7 On 28 June 1999, the Court of Appeal dismissed the appeal. It held that
the author's personal opinion on the "single issue of the relationship
between Palestinians and Israel" did not amount to a "creed" for purposes of
the Ontario Code. On the facts of the case, the Court also declined to add
on constitutional grounds a new ground of discrimination, namely political
opinion, analogous to those enumerated in section 5(1) of the Ontario Code.
On 3 May 2000, the Supreme Court refused the author's application for leave
to appeal.
THE COMPLAINT
3.1 The author claims to be a victim of violations of article 26, and of
articles 2, paragraphs 1 and 2, 19, paragraph 1, and 50 taken in conjunction
with article 26 of the Covenant. His principal contention is that the State
party has failed to protect against discrimination on the basis of political
opinion, which is specifically enumerated in article 26. The author makes
three subsidiary arguments.
3.2 Firstly, the omission of "political opinion" from the enumerated grounds
in the Ontario Code violates the provisions of the Covenant invoked. He
argues that the inclusion of this ground in the human rights legislation of
seven other provinces and territories in the State party highlights the
absence of such a ground under the Ontario Code and thus discloses an
additional violation of article 50 of the Covenant. The author refers to the
Committee's concluding observations in 1999 on the State party's fourth
periodic report under the Covenant, where it was "concerned at the
inadequacy of remedies for violations of articles 2, 3 and 26" and "recommend[ed]
that the relevant human rights legislation be amended so as to guarantee
access to a competent tribunal and to an effective remedy in all cases of
discrimination". [FN3]
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[FN3] A/54/40, at paragraph 231.
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3.3 Secondly, the author contends that fundamental errors of law were made
in the resolution of his claim by the Commission and the domestic courts, in
violation of article 26. At the level of the Commission, the author argues
that the decision was without jurisdiction, that it disregarded the Ontario
Code's preamble and international human rights law, that its interpretation
of "creed" was unduly narrow, that it failed properly to take into account
the intersection of political opinion, race and religion in his case, and
that it failed to draw an inference of discrimination.
3.4 At the level of the Divisional Court, the author contends that
fundamental errors of law were made (i) in its failure to read the ground of
"political opinion" into the Ontario Code and in requiring him to be a
member of a "discrete and insular minority", (ii) in its rejection of the
contention that political and religious commitments may be so aligned as to
constitute "creed", and (iii) in its holding that "creed" requires an
element of religious belief. At the level of the Court of Appeal, the author
argues that the fundamental errors of law committed were an improper failure
to apply a binding prior decision, allegedly mistaken findings of fact, an
incorrect Charter analysis, and an overly narrow interpretation of "creed"
as not covering political opinion. Finally, the author attacks the Supreme
Court's failure to grant leave to appeal, on the basis that the questions
presented novel and fundamental issues. He views the denial as inconsistent
with the Court's criteria for leave and negating the "equal and effective
protection against discrimination" guaranteed him by article 26.
3.5 In addition, the author makes a series of claims as to alleged
enforcement problems of human rights law in Ontario. He argues that delay is
a serious problem and that "the many roles of the Commission, especially in
assigning the same officer to investigate a complaint and to attempt a
settlement, give rise to problems of conflict of interest, and could lead to
coercion." He contends that the referral of between 2-4% of complaints to a
board of inquiry for hearing deprives complainants of an effective remedy.
He refers to under funding and organizational problems at the Ontario
Commission.
THE STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 By submission of 21 December 2001, the State party challenged the
admissibility and merits of the communication, on the grounds that no
violation of the Covenant was substantiated. As to the allegation that the
Ontario Code does not include "political opinion" as a prohibited ground of
discrimination, the State party refers to the Court of Appeal's findings
that even considering the matter in a light most favourable to the author,
there was no evidence that the University had discriminated against him on
the basis of his political belief. The Court concluded: "There is nothing on
the record to suggest that his political beliefs disentitled him to
consideration for advancement in the Department of Economics." The State
party contends that there is no evidence in any of the impugned decisions of
the university, the Commission or the courts that the author was treated
differently because of his political beliefs. Nor is there evidence that the
Commission would have viewed the evidence as warranting an inquiry if
"creed" were to include "political belief". In the light of these
evidentiary findings, the claim concerning the Ontario Code is an abstract
challenge without factual foundation. [FN4]
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[FN4] The State party refers to Aumeeruddy-Cziffra et al. v Mauritius Case
No 35/1978, Views adopted on 9 April 1981, Disabled & Handicapped Persons in
Italy v Italy Case No 163/1984, Decision adopted on 10 April 1984, and J.H.
v Canada Case No 187/1985, Decision adopted on 12 April 1985.
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4.2 The State party rejects the author's allegations that fundamental errors
of law were made, characterizing these as contentions that Canadian law had
been misinterpreted by Canadian courts. It refers to the Committee's
constant jurisprudence that it does not substitute its views on the
interpretation of domestic law for those of national courts. The author's
arguments were fully reviewed and dismissed by three tiers of the Canadian
court system, with no basis to support a claim that their interpretation of
the law was arbitrary or amounted to a denial of justice.
4.3 As to the claims relating to "enforcement problems" in Ontario, the
State party points out that much of the documentary evidence submitted by
the author related to the federal Human Rights Commission, a distinct body
to the Ontario Commission, which was uninvolved in the case. The material
submitted concerning the Ontario Commission is nearly 10 years old and does
not represent a current picture of its operations. The State party refers to
the Commission's annual report for 2000-2001, showing considerable progress
in case management, timeliness of complaint handling, promotion of human
rights and public education. For the fifth year, the Commission closed more
cases than it opened, and the average age of a complaint was 10 months.
Average overall processing time for a complaint was 15 months.
4.4 The Commission's investigations were free, and cases are referred to a
board of inquiry if a settlement is not possible. Such a board has broad
remedial powers, including monetary awards, and the decisions can be
judicially reviewed. In 1999-2000, 68% of 1700 complaints made were resolved
at voluntary mediation with the parties' input. 70% of complainants
considered their claims properly addressed, 78% considered the process fair
and 87% indicated they would use it again.
4.5 The State party denies that the omission of "political opinion" from the
Ontario Code as a ground of prohibited discrimination violates the Covenant.
It contends that States parties may choose the method of implementing their
obligations, and that domestic legislation need not exactly mirror them.
Freedom of expression, which includes freedom of political opinion and
belief, is constitutionally guaranteed by section 2 of the federal Charter,
as well as the Public Service Act with respect to public servants.
4.6 Finally, with respect to the claim under article 2, the State party
refers to the Committee's constant jurisprudence that this article is of
accessory nature only. In the absence of a violation of any other right,
which the author has not made out, no separate issue thus arises under
article 2.
COMMENTS BY THE AUTHOR ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 12 April 2002, the author commented on the State party's
submissions, rejecting the State party's characterization of his complaint
as unsubstantiated, in general, and the Court of Appeals' findings, in
particular. He argues that recent attempts on his part to secure before the
courts the production of additional relevant documents from the Commission
have been rebuffed. [FN5] He argues that the "plain meaning" of the
Commission's decisions is that there had been differential treatment, but
that jurisdiction was declined as "political belief" was not covered by the
Ontario Code. The author argues that the Commission's public record of the
case is insufficiently complete, and that in any event does not fairly
reflect the evidence. The author regards the Court of Appeals' evidentiary
findings in his case as "unwarranted and highly inappropriate", and not
based on the whole record. The author goes on to seek to distinguish the
case law relied on by the State party from his case.
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[FN5] Stay of Application, dated 20 March 2002, Jazairi v Ontario Human
Rights Commission, Ontario Superior Court of Justice. (Wilkins J)
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5.2 The author argues, with reference to the Committee's approach to burden
of proof, that it was incumbent on the State party to provide to the
Committee "the entire investigative record, including all witness
statements, legal opinions, and evaluations of documentary evidence by
Commission staff and their notes of interviewing witnesses" in order to
enable it to draw proper conclusions. He also invites the Committee to draw
inferences from allegedly systematic practices of the Ontario Commission
being "wholesale rejection of human rights complaints on the basis of
inaccurate accounts of the events and facts and spurious arguments and
considerations made 'behind closed doors'".
5.3 On the omission of "political opinion" from the Ontario Code, the author
repeats his argument that the failure to list this ground is a manifest
violation of article 26, where the State party has failed in its obligation
to implement its obligation. He maintains that his criticisms on the
interpretation of law by the courts are "serious, detailed and sustained",
and refers to certain public criticism of the Court of Appeal's decision.
5.4 The author maintains his claims of "enforcement problems" in connection
with article 2, as victims of discrimination in Ontario cannot bring a court
action for discrimination but must file a complaint with the Commission. He
claims that the unsatisfactory situation at the Commission he portrayed in
his communication was that occurring at the time his complaint was
considered by the Commission. Indeed, he argues that "same or similar
enforcement problems of human rights legislation in Ontario are continuing
and increasing". He also argues that the procedures are ineffective as legal
costs make them prohibitively expensive. He argues that lodging and pursuing
a complaint without a lawyer is "not a practical option", that legal aid is
not available for complaints, that some costs awards by the courts are
"unreasonable and could be punitive", and that deduction of legal costs for
income tax purposes is not allowed. He further argues that the absence of a
Commission facility of interim measures - which he wished to invoke
following "escalating acts of reprisals" following filing of his complaint -
is a violation of article 2, taken in conjunction with articles 19 and 26.
5.5 As to the State party's argument that section 3 of the Charter protects
freedom of opinion and expression, the author argues that the Court of
Appeal erred in holding that this ground need not be read into the Ontario
Code as it was already protected in the Charter. He argues however that the
Charter only protects against State action, and not that of entities such as
universities. He also argues that the Charter protection is incomplete as it
is expressed as being subject to reasonable limits, as shown by the alleged
invocation thereof "by Jewish groups in many reported and unreported cases".
He also argues that the Public Service Act does not apply to universities.
As a result, the author claims he did not enjoy protection against private
sector discrimination on the grounds of political opinion. He goes on to
claim that the judge delivering the Court of Appeal's judgment "committed
fundamental errors of law", thus bringing into question "the credibility of
his entire legal reasoning".
5.6 The author argues that the evidentiary threshold for a claim under
article 19 is lower than 26, and is also met in his case. He contends that
the proper test is whether there is a restrictive effect on political
opinion through its omission in the Ontario Code. As the result is an
absence of protection against private sector discrimination on this ground,
he claims a straightforward case is made out. In this case, he accordingly
submits: "The author was punished in his employment by some of his Israeli
and Jewish colleagues at York University for holding and expressing
particular opinions with which they did not agree. The employer York
University failed him. The Ontario Human Rights Commission refused to
protect him on jurisdictional grounds. The domestic courts agreed with the
Commission."
5.7 As a result of the foregoing, the author seeks declarations of
violations of the Covenant, compensation for legal costs and appropriate
compensation, including for lost salary.
SUBSEQUENT SUBMISSIONS OF THE PARTIES
6.1 By letter of 31 July 2002, the author provided a first instance decision
of the Prince Edward Island Supreme Court holding that political belief was
an "analogous" prohibited ground of discrimination and should be fully
available in provincial human rights legislation. [FN6]
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[FN6] Condon v Prince Edward Island [2002] P.E.I.J. No.56
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6.2 By Note verbale of 5 December 2002, the State party made additional
submissions, arguing that the author's response made new claims not in the
original submission, contained many anonymous or individual opinions which
should not be given weight and continued in large part to challenge the
interpretation of domestic law. The State party argues that after having
received its submissions, the author then made his application to the
Ontario Superior Court (see paragraph 5.1) to secure evidence to fill his
"evidentiary gap" before the Committee. He did not bring these proceedings
before his original case was heard, and thus should not be able - on
principles of failure to exhaust domestic remedies - to argue that the
court's original decisions were wrong. Nor, at the time, did he challenge
the sufficiency of the record before the courts. In any event, his new
application has not been dismissed but only stayed in order to permit him to
make a proper application under the Freedom of Information and Privacy Act
which sets up a compulsory production process safeguarding third party
interests. Moreover, the documents sought are irrelevant to the issues
before the Committee.
6.3 The State party emphasizes that his challenge on the Charter's
protection - upon which the Supreme Court has yet to be presented with the
proper concrete circumstances enabling it to pronounce - is hypothetical and
abstract. The university senate made its decision on the author's
application for full professorship without consideration of the two impugned
letters or his political belief. There is no contrary evidence.
6.4 The State party rejects any accusation of bias against the judge
delivering the judgment of the Court of Appeal, contending that all
applicable ethical principles were followed. It also states that the author
at no point raised this issue before the domestic courts or the Canadian
Judicial Council. As to the "reprisals" alleged by the author, the State
party argues that the letter provided is a letter from the university
indicating that the author refused to teach a course assigned to him as part
of his normal teaching load. The State party has no knowledge of contractual
disputes with the university, not a part of government, and submits these
are of no relevance to the case. The State party rejects criticisms of the
Ontario system of human rights adjudication, referring to commentators'
praise of its strengths. Finally, the State party states that the Prince
Edward Island decision is under appeal, and points out that the court
referred to the finding in the author's case that "there was no evidence
which showed his human dignity was even engaged, much less violated, or that
his political views disentitled him to consideration for promotion."
6.5 By letter of 17 February 2003, the author responded, claiming that his
motion for production of documents was not related to the substance of his
claim before the Committee. In any case, he contends that pursuing his
application under the Act would be unreasonably prolonged and would not be
effective as the Commission seeks to rely on exemptions. He argues that as
there were only questions of law before the appellate courts, he did not
make arguments on sufficiency of facts. He goes on to refer to Pezoldova v
Czech Republic [FN7] as an instance where the Committee reviewed the
domestic courts' decisions, and invites the Committee to do so in his case.
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[FN7] Case No 757/1997, Views adopted on 25 October 2002.
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6.6 The author contends that his case also raises issues under the first
sentence of article 14, paragraph 1, and article 14, paragraph 3(c), as the
domestic courts' evaluations were manifestly arbitrary and amounted to a
denial of justice, as remedies were ineffective, as the Ontario Commission
refused to produce evidence and delays were undue. The author argues that
the "reprisals" complaint is part of the evidence produced to show the
ineffectiveness of domestic remedies, rather than being a substantive claim.
Finally, he supports the more expansive reasoning of the Prince Edward
Island court, in contrast to the Court of Appeal in his own case, and argues
that in any event the fact of appeal does not justify Ontario's violation of
his rights.
6.7 By further letter of 17 November 2003, the author supplies three
decisions of provincial courts endorsing the holding of the Divisional Court
in his case concerning the fact-finding expertise of human rights
commissions and the appropriate level of deference.
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 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 As to the claim under article 14, paragraphs 1 and 3(c), of the
Covenant, the Committee observes that this issue was first raised in the
author's penultimate supplementary submission to the Committee, and
accordingly did not form part of the arguments which the State party's
submissions were requested as to the admissibility and merits thereof. The
author has not demonstrated why this claim could not have been raised at an
earlier stage of the pleadings. In the Committee's view, it would thus be an
abuse of process for this claim to be addressed and it is inadmissible under
article 3 of the Optional Protocol.
7.3 Concerning the claim under article 50 of the Covenant, the Committee
recalls that a substantive violation of the Covenant by a provincial
authority engages the State party's international responsibility to the same
degree as an act of its federal authorities. The Committee refers, however,
to its constant jurisprudence that it is only with respect to articles in
Part III of the Covenant, interpreted as appropriate in the light of the
other provisions of the Covenant, that an individual communication may be
presented to it. Accordingly, article 50 of the Covenant, by itself, cannot
give rise to a free-standing claim that is independent of a substantive
violation of the Covenant. In the Committee's view, therefore, this claim
under article 50 is subsumed by the author's arguments on the substantive
Covenant articles and is by itself inadmissible, for incompatibility with
the provisions of the Covenant, under article 3 of the Covenant.
7.4 Turning to the major claim that the omission of political belief from
the enumerated grounds of prohibited discrimination in the Ontario Code
violates the Covenant, the Committee observes that an absence of protection
against discrimination on this ground does raise issues under the Covenant.
[FN8] Moreover, the exclusion in the Ontario Code of political opinion as a
prohibited basis of discrimination suggests that the State party may have
failed to ensure that, in an appropriate case, there would be a remedy
available to a victim of discrimination on political grounds in the field of
employment. The Committee observes however that the Court of Appeal, having
found that the author's views did not amount to a protected "creed", went on
to conclude that even considering the matter in the light most favourable to
the author, there was nothing on the record to suggest that the author's
political beliefs had disentitled him to consideration for advancement in
the Department of Economics. It is not for the Committee to substitute its
views for the judgment of the domestic courts on the evaluation of facts and
evidence in a case, unless the evaluation is manifestly arbitrary or amounts
to a denial of justice. If a particular conclusion of fact is one that is
reasonably available to a trier of fact on the basis of the evidence before
it, ipso facto a showing of manifest arbitrariness or a denial of justice
will not have been made out. In the Committee's view, the author has failed
to discharge the burden of showing that the factual assessment of the
domestic courts was thus flawed. In the light of this conclusion, the claim
under article 26 concerning the absence of protection of political belief in
the Ontario Code is rendered hypothetical. The claim is accordingly
unsubstantiated and inadmissible under article 2 of the Optional Protocol.
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[FN8] See Love et al. v Australia Case No 983/2001, Views adopted on 25
March 2003.
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7.5 As to the claims that the Commission, the Divisional Court at first
instance and on appeal, and the Supreme Court committed fundamental errors
of law, the Committee recalls its constant jurisprudence that the
interpretation of domestic law is a matter for the domestic courts, unless
the interpretation is manifestly arbitrary or amounts to a denial of
justice. In the Committee's view, the author has not shown the exceptional
circumstances necessary to make out such a claim. Accordingly, these claims
are inadmissible, for lack of sufficient substantiation for purposes of
admissibility, under article 2 of the Optional Protocol.
7.6 As to the general claims that the enforcement machinery of the Ontario
scheme of human rights protection is flawed and fails to provide an
effective remedy, the Committee recalls its constant jurisprudence that, in
order to bring a claim, an individual must be personally and directly
affected by the violations claimed. Accordingly, to the extent that the
author argues that the scheme as a whole is in breach of the Covenant, this
claim amounts to an actio popularis reaching beyond the circumstances of the
author's own case. It is therefore inadmissible under article 1 of the
Optional Protocol.
8. The Committee therefore decides:
a) that the communication is inadmissible under articles 1, 2 and 3 of the
Optional Protocol;
b) that this decision shall be communicated to the author and to the State
party.
________________________
[Adopted in English, French and Spanish, the English 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.]
Under Rule 90 of the Committee's Rules of Procedure, Mr. Maxwell Yalden did
not participate in the Committee's consideration of the case.
The text of a separate opinion by Committee members Ms. Christine Chanet,
Mr. Glèlè Ahanhanzo, Mr. Ahmed Tawfik Khalil and Mr. Rajsoomer Lallah is
appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MS. CHRISTINE CHANET,
MR. MAURICE GLÈLÈ AHANHANZO, MR. AHMED TAWFIK KHALIL AND MR. RAJSOOMER
LALLAH (DISSENTING)
1. We agree, as the majority in the Committee does in the first two
sentences in paragraph 7.4 of the Views, that the absence of protection from
discrimination on the ground of political opinion in the Ontario Human
Rights Code raises an issue under Article 26 of the Covenant.
2. The majority in the Committee then goes on to conclude that, in the light
of the judgment of Ontario Court of Appeal, there was nothing to suggest
that the author's political beliefs had disentitled him to consideration for
advancement in the Department of Economics in which he held tenure as
associate professor. We are quite unable to agree with the majority view in
the Committee for a number of reasons.
3. Firstly, the conclusion of the majority of the Committee was clearly
based, in our view, on an unfortunate confusion between a judicial review
(an inherently limited administrative law recourse based on a mere
application supported by affidavit evidence) and an ordinary action where
the judgment is based on the evidence of witnesses, who are heard in court
and are subject to cross-examination, from which the Court makes proper
findings of fact. A judicial review does not purport to review the facts and
is an extraordinary remedy in respect of which the Court has a discretion to
grant or not to grant the remedy. This is well explained in the judgment of
the Court of Appeal itself at [42] of the judgment quoting the following
from Blake on Administrative Law in Canada 2nd ed. 1997:
"On judicial review there is no right to a remedy even if all the necessary
criteria are met. A court may choose not to grant a remedy to an applicant
who is otherwise entitled."
It is to be noted that the proceedings before the Court of Appeal concerned
the question whether the divisional court should or should not grant an
order, by way of judicial review, against the Commission requiring it to
appoint a Board of Enquiry pursuant to the Human Rights Code. The purpose of
a Board of Enquiry must presumably be to enquire whether the complaint was
substantiated or not. In this connection, the State party explains, as
appears from paragraphs 4.4 of the Committee's Views, that the Commission's
investigations were free and cases are referred to a Board of Enquiry if a
settlement is not possible.
4. Secondly, the question of admissibility before the Committee must be
determined not in the light of the complaint as made before a domestic
court, but in the light of the complaint laid before the Committee and this
complaint is well laid out in paragraphs 2.1 to 3.5 in the Committee's
views. The facts averred manifestly show that the author has sufficiently
substantiated his claim for the purposes of admissibility.
5. Thirdly, as appears from paragraph 2.3 of the Views, the allegations of
the author, incidentally confirmed to be substantiated by the Court of
Appeal in paragraph [15], setting out the Commission's conclusions, is to
the effect that the Commission did find that (i) while the evidence
indicated that the author's application for promotion to full professorship
did not receive a fair and timely evaluation, the irregularities committed
did not appear to be related to any prohibited ground of discrimination and
(ii) while the evidence indicated that the author might have been
differently treated, there was insufficient evidence to indicate that this
was the result of his creed rather than his political beliefs, the latter
not being a prohibited ground of discrimination under the Ontario Code.
6. So what do we have? The law in Ontario does not hold political opinion to
be a prohibited ground of discrimination. This constitutes a violation of
article 26 of the Covenant and the Commission felt unable to interpret creed
as including political opinion with the result that it was unable to grant
the remedy which the author was seeking, that is to say, the appointment of
a Board of Enquiry by the Commission.
7. Much can be said about where the burden of proof lies in situations where
an employee claims that he has been discriminated against on a ground
prohibited by article 26 the Covenant. It seems to us that the author must
at least substantiate in some measure his complaint as the author has
undoubtedly done in this case. However, it is for the State party to
disclose all the facts to show not merely negatively by a mere statement
that the different treatment of the author was not due to discrimination on
the ground of his political opinion but positively that he was found, for
example, to be unfit for a specified reason, or that the record of his
performance did not justify promotion at least at that stage, or for other
justifiable reasons.
8. For the above reasons, we conclude that the author's complaint is, in the
first place, admissible and that, secondly, he has been deprived of
protection against discrimination on the ground of political opinion as
guaranteed under Article 26 of the Covenant, because the Ontario Code does
not grant him such protection. The Ontario Human Rights Commission and the
Court could not, therefore, give him a remedy not provided by the Ontario
Code. In accordance with Article 3, paragraph 2(a), of the Covenant, the
State party should, in our view, grant to the author the remedy which he has
been seeking since 1 July 1989.
[Signed] Christine Chanet
[Signed] Maurice Glèlè Ahanhanzo
[Signed] Ahmed Tawfik Khalil
[Signed] Rajsoomer Lallah
[Done in English, French and Spanish, the English 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.] |
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