Date: 20060120
Docket: T-1434-05
Citation: 2006 FC 60
Toronto, Ontario, January 20, 2006
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
ALISTAIR MCEACHRAN
Applicant
and
ONTARIOPOWER GENERATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. McEachran firmly believes that a restructuring within Ontario Power Generation, his employer at the time, had the effect of discriminating against him because of his age. He unsuccessfully grieved. He also filed a duty of fair representation complaint against his union before the Ontario Labour Relations Board. His complaint was dismissed, as was an application for judicial review by the Ontario Superior Court of Justice, Divisional Court. That decision was issued in January 2005.
[2] Thereafter, in March 2005, Mr. McEachran complained to the Canadian Human Rights Commission that his employer had engaged in a discriminatory practice based on age. Generally speaking, the Commission is required to deal with every complaint. However, Section 41 of the Canadian Human Rights Act permits it not to deal with a complaint if "it appears ... 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."
[3] The Commission declined to deal with Mr. McEachran's complaint on that basis. This is a judicial review of that decision.
[4] Mr. McEachran concedes that the last event in support of his case had occurred more than a year prior to the filing of the complaint with the Commission. What is in issue is the standard against which the Commission's discretion must be reviewed.
[5] To put the matter in context, this is not a case in which the decision of a federal board or tribunal itself forms part of the alleged discrimination. See Tamachi v. Canada(Minister of Citizenship and Immigration) 2005 FC 1534, [2005] F.C.J. No. 1888 (QL).
[6] It is not necessary to put a fine line on it, but certainly the year had begun to run by December 2000 when Mr. McEachran's union filed a grievance in respect of alleged job function erosion and constructive dismissal. The grievance did not extend to age discrimination, apparently because the union's lawyer advised Mr. McEachran that this was not a viable option. Later the union informed him it would not proceed with the grievance. Mr. McEachran did himself, with the aid of a lawyer. It was dismissed in January 2003.
[7] Another ground which entitles the Commission not to deal with the complaint is found in Section 41(1) of the Act: if it appears that the complainant "ought to exhaust grievance or review procedures otherwise reasonably available." However, Mr. McEachran waited more than two years before filing his complaint.
[8] What Mr. McEachran did in the meantime was to initiate a complaint against his union with the Ontario Labour Relations Board. He considered the union had acted in bad faith. His complaint was denied in April 2004. A judicial review thereof was, as aforesaid, dismissed by the Ontario Superior Court of Justice, Divisional Court, in January 2005.In those two years, Mr. McEachran directed no procedures against Ontario Power Generation. His procedures were directed against his own agent.
[9] There is ample case law to the effect that the standard of review of a decision not to extend the normal one year delay is patent unreasonableness. A Court should not intervene even if it might have exercised discretion differently, as long as the discretion was exercised in good faith in accord with the principles of natural justice and procedural fairness, and where no reliance was placed on extraneous considerations. The case law was aptly summarized recently by Mr. Justice Blanchard in Good v. Canada(Attorney General) 2005 FC 1276, [2005] F.C.J. No. 1556 (QL).
[10] The excuse offered in that case, as in this, is that other remedies were being pursued. Furthermore, in that case the applicant had been in touch with the Commission within the year, but had not submitted a formal complaint.
[11] There is nothing in the record to support Mr. McEachran's argument that the Commission's refusal to exercise its discretion to extend the delays was patently unreasonable, based on extraneous considerations or violated the principles of natural justice and procedural fairness.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. There shall be no order as to costs.
"Sean Harrington"
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