Date: 20060302
Docket: T-2123-04
Citation: 2006 FC 275
Ottawa, Ontario, March 2, 2006
PRESENT: DEPUTY JUDGE STRAYER
BETWEEN:
CANADA POST CORPORATION
Applicant
and
NANCY WIGHTON
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] This is an application for judicial review of a decision stated in a letter by the Canadian Human Rights Commission (CHRC) of October 25, 2004 to the effect that it was going to deal with complaint number 2003-1832 of the respondent Nancy Wighton.
[2] The respondent was self-represented on this application and filed no material, neither evidence nor written submissions, but appeared to present argument. The CHRC was not a party to this application.
Facts
[3] From an examination of the record it appears to me that the following is the sequence of relevant events in the history of the respondent's employment with the Canada Post Corporation (CPC). The specifics remain to be determined in the appropriate way if the CHRC continues its consideration of the complaint.
[4] The respondent started working for the CPC in December, 1991. On October 5, 1998 she suffered some injuries due to a workplace accident. She says that medical reports recommended that she be taken off night shifts and needed to be relieved from certain kinds of work. However the CPC was unable or unwilling to make adjustments in her work assignments and in October, 2000, she was sent home because she refused to comply with her normal work assignments on night shifts. She then endured 2½ months without pay but with a change of supervisor she returned to work on December 19, 2000 on the day shift. She continued in this role until August 31, 2001.
[5] In the meantime she filed a complaint (No. 2001-0214) on May 2, 2001. Careful reading of that complaint indicates that it pertained essentially to the period of 2½ months in October-December, 2000 when she was unable to work because the CPC was unable or unwilling to relieve her from night work or heavy work.
[6] While she was able to work day shifts satisfactorily from December, 2000 to the end of August, 2001 she was then returned to a night shift, on September 1, 2001 and continued to work until early 2002, again encountering difficulties. As of February 14, 2002 she went on sick leave and after that long-term disability, which ran until May, 2004.
[7] In the meantime, on October 31, 2003 she signed a settlement of her first complaint. The settlement provided for: the payment to her of $10,000, a credit for 3.7 pays of sick leave and 5 days of vacation; an acknowledgement that the settlement "represents full and final settlement of all issues related to her current complaint" (No. 2001-0214); the complaint to be withdrawn; and an agreement that neither the employee nor the union would submit a grievance regarding these circumstances.
[8] On January 19, 2004 the respondent, having been on sick leave and long-term disability for nearly two years, with no accommodation arranged which would permit her return to work, and with the imminent termination of her long-term disability benefit, filed a new complaint (No. 2003-1832)-- the complaint in question here. On May 18, 2004 her long-term disability benefits expired. She returned to work in September, 2004. On June 7, 2004 the CHRC asked the CPC for a response to the second complaint which it provided. A CHRC investigator carried out an investigation and filed his report which was transmitted to the CPC on August 26, 2004. On October 25, 2004 the CHRC advised the CPC that it was going to deal with the complaint, the decision which is challenged here.
[9] The CPC attacks this decision on the basis of unreasonable delay in the filing or processing of the complaint; and that a previous complaint involving the same facts was settled on October 31, 2003.
Issues
[10] (1) What is the standard of review?
(2) Was there unreasonable delay in the filing or handling of the complaint?
(3) Was the subject-matter of the complaint already settled on October 31, 2003?
Analysis
Standard of Review
[11] The standard of review of decisions by the CHRC as to whether it will continue to consider a complaint or will refer it to a tribunal has been analyzed elsewhere and it seems to well settled by decisions of the Federal Court of Appeal in Gee v. Canada [2002], F.C.J. No. 12 at paras. 13 and 14 and Zundel v.Canada[2000],FCJ No. 2057 at para. 5. That standard is one of reasonableness simpliciter. While there is no privative clause, which fact reduces the need for deference, the kind of questions involved for determination by the Commission are mixed questions of fact and law involving the interpretation of the Act and its application to the facts before the Commission. These are matters on which the Commission does not have unique expertise but its experience in such matters suggests some degree of deference owed to it.
[12] I will therefore proceed on the basis that the standard of review is reasonableness simpliciter.
Was There Undue Delay?
[13] The CPC complains of two forms of delay. First it argues that the current complaint (No. 2003-1832) was out of time by virtue of paragraph 41(1)(e) of the Canadian Human Rights Act, RSC 1985, c. H-6 which provides that
| 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.
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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.
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The applicant says that the Commission did not expressly exercise the discretion to allow a longer period for filing the complaint and therefore the one year period should prevail. It points out that this complaint states in the space designated "Date of Alleged Conduct" the following period: "September 2001 and on-going". The complaint was not filed until January 19, 2004, nearly two and one-half years after this date.
[14] I believe it is important not to read the first and second complaint as if they were lawyers' pleadings in civil litigation. Rather it is important to analyze them to see what was the essential wrong alleged to have been suffered by the complainant in each case. In my view the first complaint essentially dealt with the failure to accommodate the respondent in the two and one-half month period of October to December, 2000 when she was forced to leave her work and suffered a loss of salary as well as sick leave and vacation credits which she would have earned during that period. This view is reinforced by the disposition of the first complaint which was filed not long after that period of unemployment, on May 2, 2001. By that time she was back at work on the day shift in an apparently quite satisfactory arrangement which unfortunately was to last only until September of that year. The settlement of the first complaint signed on October 31, 2003 would be consistent with this view of the scope of the first complaint: it compensated her by the payment of $10,000 which could have represented her loss of earnings in 2000. It also provided for replacement of sick leave and vacation credits which would be lost only through a period of unemployment such as she experienced in October-December, 2000.
[15] Against this background, the second complaint now in issue, filed on January 19, 2004, although it begins with a statement of the "Date of Alleged Conduct" as "September 2001 and on-going" must be read as embracing a sequence of events commencing with September, 2001 where she was obliged to return to night work, was unable to continue in that work, and was obliged to go on sick leave, then long-term disability, commencing in February, 2002, a condition which she was still enduring when she filed this complaint on January 19, 2004. It is also apparent that she was in consultation with her employer and its rehabilitation specialist in 2002 and 2003 to determine whether the corporation could accommodate her by putting her in a position appropriate to her physical condition. She states that she waited for months for some response from the CPC and had a meeting as late as October, 2003 with its rehabilitation specialist seeking an agreement on reasonable accommodation. It was only after she had no further reply after that meeting of October, 2003 that she filed a complaint.
[16] In these circumstances, and without prejudging the ultimate disposition of her complaint of a denial of reasonable accommodation, I am satisfied that the Commission's decision was reasonable in its interpretation of paragraph 41(1)(e) of the Act which says that it shall deal with any complaint unless it is "based on acts or omissions the last of which occurred more than one year . . . before receipt of the complaint". It appears to me that from the time of her return to work on September 1, 2001 until late 2004 there was a continuing effort on her part and that of her employer to resolve the problem of finding her a suitable post commensurate with her physical condition and that it was not until late 2003 that it became apparent to her that her employer was not going to find a means of reasonable accommodation.
[17] The applicant complains generally about delay in the processing of this complaint, partly because although the complaint was received on January 19, 2004 the CPC was not informed of it until June 7, 2004. I see no precise evidence of prejudice suffered by CPC as a result. It makes the general complaint that the acceptance of a complaint more than a year after the occurrence of the facts complained about makes it difficult for the respondent to a complaint to verify such events. As I have demonstrated, there was an ongoing process here which had certainly not in its early stages demonstrated to the respondent that her request for reasonable accommodation was not going to be met, until such became clear in late 2003. The facts surrounding the position taken by the CPC in 2003, within months prior to the filing of the complaint, should not be difficult for CPC to ascertain.
Did the Settlement of October 31, 2003 Preclude this Complaint?
[18] For the reasons which I have stated above I understand the first complaint and its settlement to have related to a period in 2000 when the respondent was out of work because the applicant could not or would not adjust her duties to match her reduced abilities.
[19] The second complaint relates to a period commencing with her return to work on September 1, 2001 (after a period when reasonable accommodation had been practiced by the applicant) where she was obliged to do work for which she says she was physically unfit. As a result she says she had to leave her employment in February, 2002 and was still absent from her employment on January 19, 2004 because there had yet been no means found for her to return to suitable work. By October, 2003, according to her complaint, it was becoming apparent that no accommodation would be found, so she sought redress again.
[20] Therefore, reading the two complaints in a fair manner I believe they dealt with two different things or two different time periods and the settlement of the first claim cannot be given the effect of precluding the second claim.
[21] I believe this analysis is also an adequate response to the applicant's complaints about abuse of process and denial of legitimate expectations.
Was There an Alternative Remedy?
[22] The applicant contends that the respondent did not exhaust an alternative remedy available to her under the Canada Labour Code and that therefore the CHRC should have declined to deal with the complaint by virtue of paragraph 41(1)(b) of the Canadian Human Rights Act. Specifically the applicant contends that the respondent could have complained of her treatment by her employer by way of a grievance under the Canada Labour Code. The applicant concedes that such a grievance would have to be brought by her union and that her union declined to do so. However it is argued that she could have brought a grievance against her union for failure to represent her fairly. Even if this hypothetical and indirect remedy were brought to the consideration of the CHRC, I would not consider it unreasonable if the CHRC concluded that the respondent's problem could not "more appropriately be dealt with" under the Canada Labour Code.
Disposition
[23] For these reasons I will dismiss the application of the CPC to set aside the decision of the CHRC to deal with this complaint. This of course is not a predetermination of the merits of the complaint. The CPC will have ample opportunity to contests those merits and if it does not it will be able to return here seeking judicial review. But taking the complaint as it is framed and on the basis of the information so far available to the CHRC I am unable to say that its decision to proceed with the complaint is unreasonable.
JUDGMENT
The application to set aside the decision of the Canadian Human Rights Commission of October 25, 2004 is dismissed. As the respondent was not represented and has made no submissions as to costs, no costs are granted.
(s) "B.L. Strayer"
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