Human rights tribunal chair showed unconscious bias in dismissing immigration complaint: Federal Court

Of note:

The former head of Canada’s human rights watchdog demonstrated an “apprehension of unconscious bias” and lost “the necessary objectivity” in dismissing a complaint against the Immigration Department for discrimination, a court has ruled.

In criticizing the decision by David Thomas, the former chair of the Canadian Human Rights Tribunal, the Federal Court concluded the adjudicator breached the duty of procedural fairness by failing to properly address the allegation of bias levelled against him during the human rights complaint proceedings.

Instead, the court said, Thomas erroneously made his own findings on the accusation in an “unexpected addendum” in rejecting the complaint by Amir Attaran that Ottawa discriminated against parents and grandparents by delaying the processing of their permanent residence applications based on age, race, family status and national/ethnic origin.

“The panel did not give the Applicants an opportunity to know the case against them and to fully and fairly respond,” wrote Justice Henry Brown in a rulingon Friday to send the case back to the tribunal for redetermination.

“The panel lost its necessary objectivity by engaging personally and subjectively in the assessment of the bias allegation against him.”

Thomas, in his analysis, denied having unconscious bias against people of Persian background such as the complainant because “some of my closest friends are from Iran.” 

The court decision has added another side note to the already lengthy legal battle by Attaran, a University of Ottawa law professor and American-born Iranian, who filed his complaint to the rights tribunal in 2010 over the Immigration Department’s processing delays for parent/grandparent sponsorships.

At the time of the complaint, it was taking immigration officials 42 days to screen the sponsors of spouses and children — but 37 months for those who wanted to bring their parents and grandparents to Canada.

After some legal wrangling and delays caused by COVID-19, Attaran’s complaint was heard in 2021 by Thomas, who left the tribunal later that year but continued to preside over the case….

In a written statement, Charlotte-Anne Malischewski, the human rights watchdog’s interim chief commissioner, said the decision was important in the evolving jurisprudence in cases involving racial discrimination.

“It clarifies that the legal test for reasonable apprehension of bias is not about the actual state of mind of the adjudicator, but rather whether a reasonable observer would believe them to be biased,” she said.

“If left unchallenged, the (tribunal) decision could be used to make it harder for people to prove discrimination.”

Source: Human rights tribunal chair showed unconscious bias in dismissing immigration complaint: Federal Court