Date: 20060517
Docket: T-1710-05
Citation:
2006 FC 608
Ottawa, Ontario, May 17, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MR.
JOSHUA K. COHEN, B.A., M.A.
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Joshua Cohen, is a bright, educated person who suffers from hearing
disability. He applied for a Management Training Position (MTP) with the
federal government but did not succeed securing that position. The Applicant
believed that such failure was due to discriminatory practices having regard to
his disability whereupon he pursued the matter through the Human Rights
Commission. The Commission rejected his complaint. Some fifteen months later
the Commission received a further complaint from the Applicant arising out of
the same failure to secure the position, which complaint was dismissed as being
out of time, no extension of time was allowed. The Applicant seeks judicial
review of this latter decision, asking that the matter be referred back to the
Commission for review by a different person. For the reasons that follow, I am
dismissing this application but without costs.
[2]
It
is best to begin with a chronological review.
1.
Events
transpiring in the period from January 14, 2004 to February 6, 2004 are those
giving rise to the complaints. These events are only briefly referred to in the
Record but appear to relate to the Applicant’s unsuccessful attempt in securing
a Management Training Position. The Applicant believes that his lack of success
was due to failure to give proper consideration to his hearing disability and,
possibly, to religious bias.
2.
On
February 14, 2004 the Applicant contacted the Canadian Human Rights Commission
and, on March 25, 2004 submitted a complaint form. This form was revised and
supplemented in a further form submitted April 6, 2004.
3.
On
July 5, 2004 the Commission sent the Applicant a letter rejecting his complaint,
it said, among other things “I have carefully reviewed your document and
must advise you that the Canadian Human Rights Commission cannot offer you
assistance in this matter.” This letter referred the Applicant to the Court
Challenges Program as a possible ally in dealing with issues he might wish to
raise.
4.
The
Applicant did apply to the Court Challenges Program in October 2004. The
Program declined to assist the Applicant in a letter dated December 16, 2004
stating that it “cannot provide funding to assist people with human rights
complaints.”
5.
By
letter dated April 22, 2005 directed to the Commission, the Applicant inquired
as to whether an appeal within the Commission, was possible. He was advised
that no appeal was provided.
6.
Following
what appears to be at least two telephone conversations, the Applicant filed a
further complaint with the Commission on May 9, 2005. The basis for this is set
out in a Memorandum to File from Hannya Rizk of the Commission dated May 3,
2005 which records her version of her telephone conversations with the
Applicant. The Applicant has his own, brief, note of that conversation.
Essentially the Applicant wanted to submit statistical information as to the
lack of job opportunities for those with hearing disabilities. The Applicant
believed that Rizk said that data would not be considered. Rizk says that she
said that such data could not form the basis of a complaint but could support a
complaint.
In any event
the Applicant did submit this statistical material with his complaint filed May
9, 2005. The complaint was based on the same event namely the Applicant’s
failure to secure an MTP.
7.
On
June 15, 2005 the Commission wrote to each of the Applicant and the Public
Service Commission of Canada, stating that a recommendation would be made that
the complaint not be dealt with since more than one year had elapsed from the
date of the event and the filing of the complaint of May 9, 2005. Further
comments were solicited.
8.
On
July 4, 2005 and again on July 27, 2005 the Applicant submitted a detailed
response giving his representations as to why the complaint should be heard.
The Public Service Commission in a letter dated July 5, 2005 took the position that
the Commission should not deal with the complaint of May 9, 2005.
9.
By
letter dated September 2, 2005 the Commission advised the Applicant that it
would not deal with his complaint since it had been made more than one year
after the event upon which the complaint was based, occurred. This is the
decision under review.
[3]
The
Applicant says that he is entitled to a duty of fairness, a right of “audi
alterem partem” so that his side of the story may be heard. He relies upon Tiedeman
v. Canadian Human Rights Commission (1993) 66 F.T.R. 15 and in particular
on a statement by Justice McGillis at paragraph 11:
In rejecting the complaint
of discrimination on the basis of non-compliance with the statutory time limit,
the Commission failed to consider the submissions of Mr. Tiedeman dated April
26, 1990 addressing this specific issue. In conducting itself in
this fashion, the Commission breached a basic principle of procedural fairness
and acted unfairly. To solicit the representations of a party and,
subsequently, to fail to consider them, renders hollow the hallowed principle
of the right to be heard. The Commission therefore erred in law in
exercising its discretion under subsection 41(e) of the Act and, in doing so,
committed a reviewable error.
[4]
The
Applicant says that his submission of May 9, 2005 was simply a revision of his
application filed April 6, 2004. In doing so he is relying on Tiwana v.
Canadian Human Rights Commission (2001), 197 F.T.R. 282 per Justice
Pelletier (as he then was) at paragraphs 32 and 33:
While it is true that there
is no explicit statutory recognition of the right to amend a complaint, the
Federal Court of Appeal recognized in Bell Canada v. Communications,
Energy, and Paperworkers Union of Canada, [1999]
1 F. C. 113 at para. 45 that human rights claims can and, in certain
circumstances, ought to be amended:
Where, therefore, an
investigator in the course of investigating a complaint is provided with some
evidence, not of her making, that there is a possible ground for discrimination
which the complaint, as formulated, might not have encompassed, it becomes her
duty to examine that evidence ... and even to suggest that the complaint be
amended. To require the investigator in such a case to recommend the
dismissal of the complaint for being flawed and to force the filing of a new
complaint ... would serve no practical purpose. It would be
tantamount to importing into human rights legislation the type of procedural
barriers that the Supreme Court of Canada has urged not to be
imported.
On the basis of the very same logic, and
in the absence of a statutory proscription, there is nothing to prevent an
amendment being made to a claim at the claimant's request
[5]
The
Applicant says that his earlier complaint was simply amended and should not
have been rejected as out of time, but considered on its merits. Accordingly,
as in Arnold v. Canadian
Human Rights Commission (1996), 119 F.T.R. 241 the Applicant argues, there
is a duty to accommodate the disabled and the matter should be sent back for
redetermination.
[6]
The
Applicant’s argument is flawed as it overlooks the fact that his original
complaint was dismissed, on its merits, as set out in the Commission’s letter
July 5, 2004. At that point the matter was over.
[7]
The
Applicant sought out the Court Challenges Program to see if a different avenue
was available, it was not. In April 2005 the Applicant made inquiry of the
Commission as to whether an avenue of appeal was available, there was not. In
May 2005 the Applicant filed another complaint, which he called a revised
complaint, providing other information beyond that set out in his original
complaint but based on the same event. This additional material comprised
essentially of statistics as to job losses suffered by the hearing disabled. The
Commission accepted this material for filing but cautioned him that it would be
subject to scrutiny and rejection if it was determined that there was no basis
for an extension of time.
[8]
The
Commission afforded the Applicant ample opportunity to make submissions as to
why an extension of time should be granted. He made those submissions and,
after receiving them, the Commission refused to grant the extension. Thus the
matter that was already decided against the Applicant more than one year
previous, was not further considered on the basis that the “revision” or
“new matter” was out of time.
[9]
The
Commission, in making decisions of this kind is entitled to considerable
deference by the Court. As stated by Justice Snider in Johnson v. Canada
Mortgage and Housing Corp. [2004] F.C.J. No. 1121, 2004 FC 918, a decision
directly within the discretion of the Commission should only be disturbed if it
is patently unreasonable. The Commission dismissed the Applicant’s original
complaint. The Commission also dismissed the Applicant’s request to supplement
or revise the complaint as it was out of time. They did so after affording the
Applicant an opportunity to make submissions which he did. It was not patently
unreasonable to dismiss that “revised” complaint.
[10]
While
I have no doubt that the Applicant is well meaning in his attempts to seek
redress in respect of which he perceives to be prejudice in respect of his
hearing disabilities, those attempts have been misguided and haphazard. He does
not appear to have received, or if received, followed, sound legal advice.
Instead he has been guided to some extent by the well intentioned efforts of
the Commission in leaning over backwards to assist him or at least suggest
approaches to be considered. Matters however, must come to a resolution. The Applicant
has been afforded two opportunities to make his case, the Commission has
provided ample opportunity for the case to be made out and considered what the Applicant
had to offer. The Commission’s decisions were appropriate and cannot be set
aside.
[11]
While
it would be in order to award costs to the Commission in this case, I do have
some sympathy with the Applicant in his efforts, largely misguided, in pursuing
what he perceived as his remedies. No costs will be ordered.
JUDGMENT
UPON
APPLICATION made on Monday, the 15th day of May, 2006 for
judicial review of a decision of the Canadian Human Rights Commission dated
September 2, 2005;
AND UPON reviewing
the Records filed herein and hearing from the Applicant in person, and from Counsel
for the Respondent;
AND FOR the Reasons
delivered herewith;
THIS COURT
ADJUDGES that:
1.
The
application is dismissed; and
2.
No
order as to costs.
"Roger
T. Hughes"
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