Subsequent decision was not new evidence

Federal court | Human rights | Practice and procedure | Judicial review

Applicant, retired member of Canadian Armed Forces, was released from service due to service-related knee injury. Applicant brought complaint with human rights commission claiming he was subject to discriminatory disciplinary process, sole purpose of which was to bar him from receiving benefits, and he alleged adverse differential treatment in course of employment based on disability and language. Commission dismissed complaint pursuant to s. 42(2) of Canadian Human Rights Act because applicant failed to exhaust grievance procedure. After grievance process was exhausted, applicant requested complaint be taken out of abeyance. Commission informed applicant it would not reopen or reconsider decision. Applicant applied for judicial review. Application dismissed. Decisions themselves were not evidence, but were part of common law of land until they were varied or overruled. Finding of fact by court in one case could not be used as means to require reconsideration based on new evidence grounds in subsequent case, as that would offend functus officio. Subsequent decision was not new evidence. It was open to applicant to seek judicial review of commission’s original decision, which he did not do, and he could not now collaterally attack that decision. Underlying facts being challenged were available to applicant at first instance and were not new evidence. Applicant’s right to be heard was respected in reconsideration decision, there was no breach of natural justice, and conclusion fell within range of acceptable outcomes, made in intelligible, transparent and justifiable manner.

Bossé v. Canada (Attorney General) (2017), 2017 CarswellNat 903, 2017 FC 336, Alan S. Diner J. (F.C.).

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