Mary M Gusella
|20 October 2004|
The CHRC-decision letter of 06-Oct-2004 is insufficient in six respects:
The CHRC-decision letter does not identify the members of the Disposition Committee responsible for the decision to "deal with the complaint," nor the date of their decision, both of which Lubomyr Prytulak asks the CHRC to disclose. An anonymous decision gives the impression that those responsible know they are in the wrong, and attempt to diffuse responsibility.
The Disposition Committee should not have been shown the defective and prejudicial Hannya Rizk Investigator's Report at www.ukar.org/chrc/chrc09.html, referred to in the CHRC-decision letter as "the report disclosed to you previously," as that document covered only a single introductory Prytulak letter, while ignoring Prytulak's several substantial and detailed submissions, and while ignoring as well the contents of the Ukrainian Archive (UKAR) web site. The Hannya Rizk Investigator's Report therefore makes no mention of Prytulak's chief defenses, and reading it invites the impression that Prytulak has little to say. The CHRC has neglected its obligation to (1) conduct an investigation, which must minimally include reading all Prytulak submissions (reading his single introductory letter is not conducting an investigation), and (2) writing a report based on that investigation. Prytulak has already explained this to the CHRC in his 27-May-2004 submission titled Lubomyr Prytulak Reply to Hannya Rizk Investigator's Report at www.ukar.org/chrc/gusell07.html, and wonders what justification the CHRC might offer for ignoring that submission's request that Prytulak be afforded the same CHRC investigation that is extended to other defendants. The CHRC waiving the need for a proper investigation with proper investigator's report — and continuing to rely instead on its sham investigation with sham investigator's report — provides additional evidence of CHRC bias, and of its rush to judgment. Although the instant proceedings are too deeply mired in error to be redeemable, the CHRC could demonstrate at least a restoration of its commitment to justice by retracing its steps and for the first time conducting the requisite investigation, for the first time writing an investigator's report, and for the first time placing this investigator's report before the CHRC Disposition Committee.
In the context of the CHRC spoliating Prytulak submissions, and denying their information to its Disposition Committee, the CHRC letter stating that the Disposition Committee reviewed "any submission(s) filed in response to the report" is inadequate. The CHRC is obligated to dispell the cloud of suspicion and incredulity which it has gathered over its head by specifying the titles and the dates of all submissions reviewed. Please note that the Disposition Committee merely being able to see in the Prytulak 27-May-2004 Reply to Hannya Rizk Investigator's Report a listing of the documents spoliated by the CHRC is not a substitute for the Committee either reading these spoliated documents, or at least seeing their facts and arguments summarized in an investigator's report. The fatal flaw which the CHRC will not be permitted to brush aside is that Lubomyr Prytulak is being denied his right to be heard.
"After examining this information" is an inadequate description of Disposition Committee procedure. The submissions provided by Lubomyr Prytulak are lengthy, detailed, and complex. If "examining this information" did not include intensive study, then the "examining" would have been cursory, and would have left the Disposition Committee poorly acquainted with Prytulak's position. Anything less than providing Disposition Committee members with the material to be studied a week in advance of their decision would be unsatisfactory, and would suggest that the Disposition Committee rubber-stamped mandated decisions rather than deliberating the evidence and arriving at their recommendations independently. By way of demonstrating that its Disposition Committee did not merely acquiesce to a dictated decision, the CHRC should disclose the length of time that Disposition Committee members were allowed to study the materials on which their decision was purportedly based.
The two bulleted items following "because" in the CHRC letter should have been introduced by an additional bulleted item to the effect that "the matter complained of appears to discriminate on a prohibited ground." In the absence of this fundamental conclusion, a decision to deal with the complaint cannot be rendered. Following this fundamental conclusion, the CHRC first-bulleted item might acquire relevance — that "the matter complained of is ongoing." However, when the plausibility that the matter complained of is discriminatory on a prohibited ground has not been established, then it doesn't matter that something or other is "ongoing," because that something or other may not be in contravention of the Canadian Human Rights Act. Following "because" directly with "the matter complained of is ongoing" implicitly prejudges — without an investigation and without an investigator's report — that that "matter" has the appearance of discrimination based on a prohibited ground. Of course the requisite but absent first conclusion that "the matter complained of appears to discriminate on a prohibited ground" might be justified only following the CHRC reading Prytulak submissions, which still lies in the future.
The CHRC stating that "it is not satisfied that the other procedure will address the allegation of discrimination" imposes a burden of proof on the defendant which is not mandated in the Canadian Human Rights Act (CHRA):
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available [...].
That is, it will be noted that CHRA § 41(1)(a) does not oblige plaintiff to exhaust alternative procedures only if defendant first succeeds in proving that the alternatives are capable of giving plaintiff satisfaction. Rather, the legislation obligates plaintiff to exhaust alternative procedures — period! Exhaust them whether they look promising or not — just don't expect the government to do for you at taxpayer's expense what you have neglected to try to do for yourself.
The "other procedure" in question is one that must be demanded of any would-be plaintiff — that he mention his grievance to whomever he holds responsible, and see if satisfaction does not follow. This the Canadian Jewish Congress has refused to do, for some reason preferring to burden public services for years in the hope of extracting by force what it might obtain within minutes, without drawing from the public purse, by a few words of persuasion.
Despite the Canadian Jewish Congress being obligated to exhaust alternative procedures in the absence of Prytulak proof that these alternatives are capable of bringing the CJC satisfaction, Prytulak has offered such proofs in his submissions to the CHRC — which proofs the CHRC ignores — and Prytulak is able to offer in the instant letter an additional proof, which is that when the Canadian Jewish Congress did recently discover an undeniable UKAR error, the CJC did follow the simple expedient of notifying Prytulak by email, and Prytulak did satisfy the CJC by acknowledging the error within minutes of reading that email, and did publish a full retraction and apology the same day: www.ukar.org/farber05.html. Thus, the CJC email request demonstrates CJC awareness of the most efficient path to follow in the case of a legitimate grievance, and Prytulak's immediate and ample response reinforces CJC confidence in his integrity.
The Canadian Jewish Congress, then, has failed to meet the CHRA § 41(1)(a) requirement of exhausting alternative procedures — a requirement which, incidentally, happens to show promise of bringing relief in the present case — for which reason the CHRC is obligated to dismiss the CJC complaint.
The nullity of the proceedings deprives the Canadian Jewish Congress of any chance of prevailing in its complaint.
Lubomyr Prytulak is invited to pour time and money into the sinkhole of appealing to the courts to correct CHRC misconduct.
The Canadian Human Rights Commission is discredited, and the administration of justice is brought into disrepute.
For its support of vexatious litigation, the Liberal government is sullied, and can expect to be penalized at the polls.