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Justice Delayed is Indeed Justice Denied: Grover v. Canada (Attorney General), 2010 FC 320

By Denise Workun on May 1, 2010

In upholding a decision of the Canadian Human Rights Tribunal to dismiss a human rights complaint, without a full hearing, the Federal Court has ended one of the most protracted human rights disputes in Canadian legal history.

In 1987, scientist Chander Grover filed the first of four human rights complaints against his employer, the National Research Council (NRC). Dr. Grover alleged discrimination on the basis of race, colour, and national or ethnic origin.

In 1992, the Canadian Human Rights Tribunal concluded, following a hearing of this first complaint, that the NRC management had embarked on a course of discrimination against Dr. Grover that was calculated to impede his promotion progression, diminish his status and international reputation as a scientist, and cause him both stress and humiliation. In its decision, the Tribunal described the NRC's conduct as "manipulative", "callous", "flagrant" and "calculated to humiliate and demean Dr. Grover", and found that senior management had continued to discriminate against Dr. Grover throughout the human rights proceeding. The NRC was ordered by the Tribunal to provide Dr. Grover with a written apology, desist from discriminatory practices, pay damages for hurt feelings, compensate Dr. Grover for denied salary progression, and to appoint Dr. Grover to an appropriate section head or group leader position.

However, Dr. Grover's human rights woes continued. Remedial issues flowing from the Tribunal's 1992 decision were twice referred to Federal Court proceedings, both times resolving in Dr. Grover's favour. In the meantime, the Tribunal also ruled that the NRC's proposal to appoint Dr. Grover to a "group head" position was "totally inappropriate when considered against the background of Dr. Grover's expertise".

In March 1994, the last of Dr. Grover's three additional complaints was submitted to the Human Rights Commission. He also initiated a complaint to the Public Service Staff Relations Board, as well as a civil lawsuit./p>

The Commission attempted to dismiss Dr. Grover's second and third human rights complaints but, on judicial review, the Federal Court remitted these complaints back to the Commission. A new Commission investigation report recommended referral of all three remaining complaints to a Tribunal hearing. This time, the NRC successfully challenged the Commission's recommendation in Federal Court, and the matter was remitted back to the Commission again for re-investigation.

In 2007, the Commission referred portions of the complaints to the Tribunal, a decision that prompted several pre-hearing motions to the Tribunal and yet another judicial review application to the Federal Court by the NRC.

In January 2009, the Tribunal dismissed all three complaints for administrative delay, concluding that the NRC would suffer significant prejudice and was unable to properly defend itself because witnesses had suffered memory loss, had died, or were unavailable, or because evidence had been lost in the 15 years since these proceedings had commenced. The Tribunal concluded that conducting a hearing under the circumstances would be unfair and in breach of natural justice.

The Federal Court agreed, confirming that when prejudice to a party due to delay is of a sufficient magnitude to impact on the fairness of a hearing, there is no need to assess the causes of the delay even if the reasons for delay included the NRC's repeated engagement in the judicial review process and settlement discussions.

Moreover, in determining that there was no duty to preserve testimonial evidence, the Federal Court was not persuaded by Dr. Grover's proposition that NRC had a duty to refresh the recollections of witnesses on an ongoing and regular basis to ensure that no memory loss occurred up to the time of a hearing.