Dismissed Application by Human Rights Commission Not Found to be Unauthorized Tribunal Hearing

A federal employee’s numerous submissions for employment training and career opportunities are unsuccessful. She files an application for complaint to the Canadian Human Rights Commission (“Commission”) which has the task of determining which applications will be heard by the Canadian Human Rights Tribunal (“Tribunal”). The Commission investigates and dismisses the application.

Disappointed, the employee takes the matter to the Federal Court, arguing that the Commission’s investigation amounted to a usurpation of the Tribunal’s role of actually weighing the evidence. This gives rise to the question: just what is the Human Rights Commission and how, without actually trying the case, does it decide which applications may be brought forward for a hearing at the Tribunal?


In 1998, Kalpana Gupta began working for Indian and Northern Affairs Canada (“INAC”) as a Data Base Clerk. Throughout her tenure, she applied to or expressed interest in nine other positions and two training opportunities within the department. Ms. Gupta claims that she was denied the training and career opportunities because she was treated differently from other applicants as a result of her East Indian descent.

How a Human Rights Application is Handled

When an employee brings forth an application to the Canadian Human Rights Commission, the Commission’s first role is to assist the disputing parties to resolve the matter without filing a formal complaint. If an agreement cannot be reached, the Commission then conducts an investigation to determine if the matter should be referred to the Canadian Human Rights Tribunal for a hearing.

Notably, the Commission does not issue decisions on cases. Its role is simply to decide if the available evidence warrants a hearing by the Tribunal. It is the Tribunal that weighs the evidence and renders a decision.

Assessing Evidential Weight vs. Evidential Sufficiency—There is a Difference

In its investigation of Ms. Gupta’s application, the Commission interviewed nine individuals, reviewed documents supplied by the parties, and rejected issues that lacked any evidence. For all valid issues, the investigator for the Commission considered whether there was any support for the complaint that:

  • the employee was treated differently from other employees;
  • the treatment resulted in negative consequences to the employee; and,
  • the differential treatment was based on prohibited grounds for discrimination.

The investigator also considered whether the employer’s actions were reasonable.

After reviewing the Commission’s investigative procedure, Justice Zinn of the Federal Court explained the distinction between assessing the sufficiency of evidence and assessing its weight.

Justice Zinn stated that the Commission’s task was to assess the sufficiency of evidence. This involves “considering the probative value of the evidence…whether the evidence has a tendency to prove or disprove some allegation.” He pointed out that the Tribunal has a different task, that of assessing the weight of evidence, which involves assigning value to the “persuasiveness of particular evidence in comparison with other evidence.”

Justice Zinn noted that the Commission’s investigator started by accepting all supplied evidence as creditable and without making evaluation of the quality of the evidence. Nonetheless, the investigator still found that the evidence itself provided nothing that helped to indicate any differential treatment of Ms. Gupta.

Points to Note

The case of Gupta v. Canada illustrates that in Canada, certain defined procedures and protocols are used to assess and resolve human rights issues in the workplace.

Although a discrimination complaint certainly merits investigation, not all complaints are accompanied by evidence that warrants trying of the evidence itself by a Tribunal. In such cases, there may be no sufficiency of evidence. Without such sufficiency, as demonstrated above it follows that the quality of the evidence cannot be properly and subsequently weighed by a judicial body. The evidence must first demonstrate its own worthiness for further probing. The Human Rights Commission is the determining body for making such a preliminary investigation.

Whether filing an application or responding to one, it would be wise to seek the advice of an employment lawyer for assistance throughout the process with both the Human Rights Commission and the Human Rights Tribunal.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.

To read the full judgment, see: Gupta v. Canada, 2011 FC 56 (CanLII)

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