The Federal Court of Appeal affirmed that questions of fact and credibility cannot be re-litigated in judicial review.
The plaintiff, Thambiah, was a longshoreman in the Port of Montreal, who had failed the tests he needed to successfully pass in order to qualify for a better position.
The plaintiff contested his failing result in a complaint to the Canadian Human Rights Commission alleging discrimination based on ethnicity, age and family status. The complaint was referred to the Canadian Human Rights Tribunal (the Tribunal). The Tribunal found the plaintiff’s credibility to be very low, and consequently, that little weight should be given to his testimony in which he attempted to demonstrate that he had been the subject of discrimination. The Tribunal went on to reject the complaint, concluding that the employer’s testing rules had been applied to the complainant without discrimination on the basis of his ethnicity, age or family status.
The plaintiff applied to the Federal Court of Canada for judicial review of the Tribunal’s decision. Applying the reasonableness standard of review, the Federal Court rejected the motion for judicial review, finding that it was not the function of the Court to reassess the question of the plaintiff’s credibility. The Court was of the opinion that the factual conclusions of the Tribunal were supported by the record.
On appeal to the Federal Court of Appeal, the plaintiff argued that the employer’s representative had lied in a statement made in another proceeding and that the Tribunal’s decision should be set aside for that reason. The Appeal Court rejected that argument. Noting that the alleged “lie” was a mistake, which was pointed out and corrected by the employer before the Tribunal, and that there was no evidence that the employer’s representative was the source of the mistake, the Court went on to remark that the plaintiff’s allegation was made without “any shadow of proof.” Moreover, the Court emphasized that the employer’s representative was not even cross-examined on the statement in question. The Court concluded that it was patently unfair, at this stage in the proceedings, for the plaintiff to accuse a witness of not telling the truth when he had had the opportunity to cross-examine the witness concerned and had not done so.
The Appeal Court concluded that there was no basis in law for interfering with the Tribunal’s conclusion regarding the plaintiff’s lack of credibility.
The appeal was therefore dismissed with costs against the plaintiff.
Gordon Selig acted for the appellant, Thambiah.
Daniel Leduc of Norton Rose Fulbright Canada LLP acted for the respondent, Maritime Employers Association.