Date: 20061123
Docket: T-1145-05
T-1146-05
Citation: 2006 FC 1424
Ottawa, Ontario, November 23,
2006
PRESENT: The Honourable Barry Strayer
BETWEEN:
JUNE
STEVENS
Applicant(s)
and
ATTORNEY
GENERAL OF CANADA
Respondent(s)
BETWEEN:
JACKI
MCCALLUM
Applicant(s)
and
CANADIAN
HUMAN RIGHTS COMMISSION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
These
two applications for judicial review were heard together and involve almost
identical facts. In each case judicial review is sought of a decision of the
Canadian Human Rights Commission (Commission) dated June 1, 2005, pursuant to
paragraph 41(1)(e) of the Canadian Human Right Act (Act), R.S., 1985, c.
H-6, not to deal with the complaint of the Applicants because “the complaint is
based on acts which occurred more than one year before the filing of the
complaint”.
Facts
[2]
The
Applicants set out the following allegations in their complaints. They are
both Applicants are employees of the Canadian Food Inspection Agency (CFIA) in Calgary as Fair
Labelling and Food Safety Inspectors. Like other such inspectors they had been
transferred to the CFIA from Industry Canada where they had had the
classification of PM-03. Certain PM-03s in the Edmonton, Vancouver and Victoria
Offices of the CFIA filed a grievance for acting pay arguing that they were
doing the duties of a BI-02 which was a superior classification for
Manufacturer Food Specialists. According to the Applicants they were invited
to join this grievance but declined at the time because they felt that they
were not in an “acting position” for a different job but rather that their
enhanced duties would in due course be accurately reflected in a new job
description. At that point the occupants of these positions in the Edmonton, Vancouver and Victoria
Offices were all male. In July, 2002 this grievance was successful and
resulted in elevated pay for those who grieved. Subsequently two male
inspectors from Kelowna who had filed separate grievances were also
given the same settlement as were male colleagues from Edmonton and Vancouver who had
never filed a grievance.
[3]
The
Applicants say that they also filed grievances on September 5, 2002 to receive
the same benefits as the above-mentioned colleagues. They only learned on
January 5, 2004 that a male and female colleague in Winnipeg were given
similar or better settlements compared to those of July, 2002. As a result
these two Applicants are now the only ones in the West being paid at the EG-03
classification which is inferior to the other Food Inspectors in the whole of
the Western region.
[4]
The
Applicants consider that they are being discriminated against on the basis of
gender as it is only the inspectors of the Calgary Office, which has only
female inspectors, in the Western region not to receive the benefits of
reclassification and compensation.
[5]
The
two Applicants each filed a complaint with the Commission setting out the above
facts. The complaints were similarly worded and each ended with this
paragraph:
The delay in
filing this complaint from when the settlement was first awarded in July 2002
is because we were not immediately made aware of all details and because we
have [been] trying, unsuccessfully, to resolve this issue internally through
the previously mentioned grievances and through letters to West Area Executive
Director.
[6]
In
her affidavit June Stevens says that her complaint was dated December 21,
2004. The complaint of Jacki McCallum is dated January 4, 2005. The
Commission’s initial and identical response to each complaint was signed by its
Deputy Secretary General and dated February 16, 2005. The letter refers to the
complaints as being filed on January 10, 2005 (although there is no affidavit
evidence to this effect). It states:
… Your
complaint is based on alleged acts that took place from July 2002 to September
2002. You initially contacted the Commission on November 26, 2004, over two
years after the last alleged act of discrimination. Section 41(1)(e) of the CHRA
states that the Commission may refuse to deal with a complaint where the
complaint is based on acts or omissions the last of which occurred more than
one year, or such longer period of time as the Commission considers appropriate
in the circumstances, before receipt of the complaint. Your complaint will be
presented to the Commission with a recommendation that, pursuant to section
41(1)(e) of the CHRA, the Commission not deal with the complaint.
Paragraph 41(1)(e) of the Act provides as
follows:
|
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
…
(e) the complaint is
based on acts or omissions the last of which occurred more than one year, or
such longer period of time as the Commission considers appropriate in the
circumstances, before receipt of the complaint.
|
41.
(1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont
elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des
motifs suivants :
…
e) la plainte a été
déposée après l’expiration d’un délai d’un an après le dernier des faits sur
lesquels elle est fondée, ou de tout délai supérieur que la Commission estime
indiqué dans les circonstances.
|
[7]
In
reply to this response June Stevens wrote a letter to the Commission dated
February 18, 2005 in which she stated the following:
I must
apologize for my initial complaint not being clearer with respect to the dates
of the incidents. My complaint is not specifically with the mediated
settlement which occurred in July 2002. It is with respect to the actions of
the Agency subsequent to this settlement.
This includes
awarding the settlement to two male colleagues of which we were not aware until
later in 2003 and the appointing of other colleagues to acting positions of
which we were not aware until January 2004. It was the sum of these actions
that prompted this complaint. Consequently the date of the alleged conduct
should be July 2002 to January 2004, if not ongoing.
The grievance
we filed in September 2002 was based on the mediated settlement while this
complaint is based [on] remedies being offered to our colleagues and not to us.
On February 22, 2005 Jacki McCallum sent a
virtually identical letter to the Commission.
[8]
In
the meantime, the CFIA had been advised by the Commission of the complaints and
had been invited to make submissions which it did on March 2, 2005 in respect
of each complaint. In each case, the CFIA simply stated its agreement with the
“recommendation” of Commission staff that it should not proceed with these
complaints because of them being out of time by virtue of paragraph 41(1)(e).
CFIA also mentioned that the complainants had filed grievances with the
employer as well.
[9]
The
two complainants each sent a reply to the Commission responding to CFIA’s
submissions. June Stevens’ letter is dated March 31, 2005 and Jacki McCallum’s
letter is dated April 5, 2005. The letters are virtually identical. The critical
paragraphs are as follows:
The Agency
mentions in their reply that we have availed ourselves of the right to file
grievances. We, reiterate, that this complaint is based on the actions of the
Agency subsequent to the filing of these grievances. In addition, filing of
these grievances does not preclude us from the right to pursue this course of
action.
We understand
that the Commission may await the outcome of these grievances prior to
proceeding with our complaint. However, were we to wait for the outcome of the
grievances before filing this complaint, we would exceed the time limitation
for filing.
We wrote Mr.
Phil Amundson, Executive Director West Area several letters over a period of
many months asking why acting assignments and settlements were [given] to
everyone in the West Area except us. It wasn’t until when we copied the
President and Executive Director of Operations that we were afforded the
courtesy of a reply and that reply only deferred us to the grievances.
Had we
received a more timely reply from Mr. [Amundson] , we would have been able to
file this complaint much sooner. This complaint was filed only after trying to
resolve this directly with our employer, who has chosen not to provide any type
of explanation for our existing situation. This complaint is not frivolous and
was filed only after much contemplation, deliberation and review of the facts
before us.
[10]
On
June 1, 2005 the Commission issued its decision in each case in identical
terms. The operative part of the decision is as follows:
Before
rendering its decision, the Commission reviewed the report disclosed to you
previously and any submission(s) filed in response to the report. After
examining this information, the Commission decided, pursuant to paragraph
41(1)(e) of the Canadian Human Rights Act, not to deal with the
complaint because:
·
the
complaint is based on acts which occurred more than one year before the filing
of the complaint.
Accordingly,
the file on this matter has now been closed.
[11]
It
is this decision which is under review. The Applicants contend that:
(1)
the
Commission wrongly applied paragraph 41(1)(e) of the Act by wrongly identifying
the last act or omission as being in September, 2002, the date when the
complainants filed their grievances; and
(2)
the
Commission failed to exercise its discretion under that paragraph to allow a
longer period of time for the filing of their complaints.
Analysis
[12]
I
must first consider what standard of review applies to judicial review of each
of these decisions in question. Some seven weeks ago, Justice Edmond Blanchard
of this Court considered at length the standard of review of identical
questions, in Bredin v. Canada (Attorney General), [2006] F.C.J.
No. 1478. Notwithstanding that a judicial review judge is expected to consider
de novo the standard of review in every case, I do not think that more Canadian
trees need to be devoted to this exercise in the present case. The precise
nature of the questions to be decided, and the statutory authority under which
they were to be made, were identical in Bredin, above, to this case and
I do not believe I can improve on the thoroughness of Justice Blanchard’s
analysis. In short, he concluded that with respect to the first question, that
is what act or omission would start the time limit in paragraph 41(1)(e) to
run, the standard is that of reasonableness. With respect to the second, the exercise
or failure to exercise the Commission’s discretion, the standard of review
should be patent unreasonableness. (See Bredin, above, at para. 47.)
[13]
I
respectfully adopt his reasoning and his conclusions.
[14]
With
respect to the first decision in question, namely the selection of the last
acts or omissions relevant to the complaint for the purpose of starting the
time limitation to run, I have concluded that the decision of the Commission
here is unreasonable. In its decision of June 1, 2005 the Commission stated
that it based its conclusion on “the report disclosed to you” and any
submissions filed in response to that report. The “report” in question appears
to be the letter from the Deputy Secretary General of the Commission to the
complainants dated February 16, 2005 in which it is stated that “your complaint
is based on alleged acts that took place from July 2002 to September 2002”.
Yet the complainants in their subsequent letters (Stevens, February 18, 2005
and McCallum, February 23, 2005) as quoted above explained that their
complaints were not about the mediated settlement of July, 2002 nor about their
own grievances filed in September, 2002 which had not in fact been dealt with
as of yet. In this and in their subsequent letters (Stevens, March 31, 2005
and McCallum, April 4, 2005) as quoted above they explained that their
complaint was based on their inability to get any satisfactory answer from
their employer as to why unlike all the male inspectors and one other female
inspector in Winnipeg they, in the only Western Office staffed by female
inspectors, had not been given the reclassification and/or compensation. It is
their contention that it was only by January 5, 2004, that they learned that Winnipeg, the only
remaining Agency office in the West not to get a settlement, had got one. It
is their contention that it was only then that they finally realized that as
female inspectors in Calgary they would not get a
favourable treatment. It is not for me to determine the validity of these
allegations but it was the Commission’s duty to consider them which it has not
done. In its decision of June 1, 2005 it only referred to the “report” of its
Deputy Secretary General of February 16, 2005 and to submissions received. That
report focused entirely on the events of 2002 without any regard to subsequent
events and the Commission, while it says that it considered these submissions
of the complainants, shows no evidence of ever having turned its mind to the
complainants’ allegations covering the period up to January, 2005. Thus the
Commission made a decision without considering important relevant factors and
such decision is unreasonable.
[15]
It
is true that in the Bredin case, above, the Commission’s refusal to deal
with a complaint due to the passage of time was held to be reasonable. In that
case, however, it was found, based on an investigation by the Commission and
the submissions of the parties, that a clear decision had been made and
communicated to the complainant and she did not file her complaint until some
two years later. That is distinguishable from the present case where, in spite
of many inquiries by the complainants to the West Area Executive Director of
the Agency, he failed to respond for a long time and then finally told them
they should content themselves with their grievances. The complainants argue
that even then it was not clear to them that they were going to be excluded
from favourable treatment until they found out what had happened at the Winnipeg
Office in January, 2004.
[16]
With
respect to the second decision, involving the failure by the Commission to
exercise its discretion under paragraph 41(1)(e) to extend the time limit for
more than a year, I am satisfied that this was patently unreasonable in that
there is no evidence that the Commission ever considered its duty to exercise its
discretion. There is no mention whatsoever in its decision of June 1, 2005 of
the discretionary power. Further, in the “report” which the Commission
supposedly relied on there is no discussion as to why the discretion should not
be exercised in favour of these complainants.
[17]
The
Respondent now argues that, even accepting that the last relevant act or
omission was the decision taken by the Agency with respect to its Winnipeg
Office, communicated to the complainants on January 5, 2004, they were still
out of time in filing a complaint which the Commission says did not reach it
until January 10, 2005. If the Commission genuinely puts it mind to the
complaint as it has been explained by the complainants, and if it should
determine that the last relevant acts or omissions were on January 5, 2004 or
indeed some time earlier, it is the obligation of the Commission to exercise
consciously its discretion as to whether to extend the time. In exercising
this discretion it must balance the magnitude of any delay against the deprival
of these complainants of any right to have their complaint of gender
discrimination considered by the Commission. It is also incumbent upon the
Commission in exercising this discretion to consider whether any prejudice has
been caused to other parties by such delay. In its submission of March 2, 2005
the CFIA, while agreeing with the suggestion of the Commission that the
complaint should be rejected for lack of timeliness, does not so much as
suggest that it might suffer any prejudice by the delay of a few days or a few
months. The Commission might also wish to take into account, in balancing
delays against injustice, the time which the CFIA has taken since July, 2002 to
seek equity amongst its Food Inspection Officers in the Western region.
Disposition
[18]
The
application for judicial review will therefore be allowed with costs. The
decisions of the Commission of June 1, 2005 in respect of each Applicant shall
be set aside and the matters referred back to the Commission for
reconsideration in accordance with these reasons.
JUDGMENT
THIS COURT ADJUDGES that the
decisions of the Canadian Human Rights Commission of June 1, 2005 be set aside,
and the matters referred back to the Commission for reconsideration in
accordance with these reasons.
THIS COURT FURTHER ADJUDGES
that the Applicants are awarded costs.
“ B.
L. Strayer ”
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