Date: 20060811
Docket: T-2097-05
Citation: 2006 FC 969
Ottawa, Ontario, August 11,
2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JEFFERY
LEGERE
Applicant
and
CANADIAN HUMAN RIGHTS
COMMISSION
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
Application for judicial review of a decision of the Canadian Human Rights
Commission (Commission), dated October 28, 2005, (Decision) wherein the
Commission concluded that, pursuant to section 41.(1)(e) of the Canadian
Human Rights Act, P.S.C. 1985 c. H-6 (Act), it would not deal with
the Applicant’s complaint (Complaint) as “the complaint is based on acts which
occurred more than one year before the filing of the complaint.”
BACKGROUND
[2]
The
Applicant, Jeffery Legere, enlisted with the Canadian Forces in February 1989.
[3]
In
or about December 1991, he suffered a grand mal seizure. Following this initial
seizure, he was diagnosed with cerebral arterio-venus malformation (Medical
Condition).
[4]
As
a result of his Medical Condition, the Applicant was prone to seizures.
[5]
As
a part of his service with the Canadian Forces, the Applicant was required to
train for and be prepared for military occupation. The standards set for a
Canadian Force’s military occupation training and preparedness are referred to
as the MOC Qualifications.
[6]
The
Applicant’s Medical Condition prevented him from meeting the MOC
Qualifications.
[7]
On
or about August 21, 1997, a Canadian Forces Career Review Board recommended
that the Applicant be released from the Canadian Forces beginning April 29,
1998, due to his medical condition.
[8]
On
or about February 26, 1998, the Applicant grieved his Pending Service
Termination on the basis that it constituted discrimination (Grievance).
[9]
On
April 29, 1998, the Applicant’s service with the Canadian Forces was terminated
in accordance with the Canadian Forces Career Review Board decision (Service
Termination).
[10]
The
Service Termination occurred approximately nine months prior to the date on
which the Applicant would have been eligible for a pension from the Canadian
Forces.
[11]
In
or about January 2004, the Grievance was considered by the Canadian Forces and
a decision was rendered by the Chief of Defence Staff on or about January 10,
2004, allowing the Applicant partial redress, in that he was granted leave to
re-enrol in the Canadian Forces.
[12]
The
Applicant re-enrolled with the Canadian Forces on or about August 17, 2004
(Re-enrolment Date).
[13]
Between
the Service Termination and the Re-enrolment Date, the Applicant lost nearly
six years of pension benefits (Lost Pension Benefits).
[14]
Following
the re-enrolment decision, the Applicant’s request for compensation with
respect to the Lost Pension Benefits was referred to the Director Claims and
Civil Litigation for the Canadian Forces (DCCL), to determine what, if any,
compensation the Applicant would be entitled to with respect to the Canadian
Forces’ discriminatory acts in terminating his service with the Canadian Forces.
[15]
On
or about June 22, 2004, the DCCL refused the Applicant’s request for
compensation, including compensation with respect to the Lost Pension Benefits.
[16]
The
Applicant has never been compensated for the Lost Pension Benefits.
[17]
On
or about February 16, 2005, the Applicant filed the Complaint with the Commission
pursuant to the Act.
[18]
The
Complaint alleges that the decision of the DCCL on June 22, 2004, to refuse the
Applicant compensation for the Lost Pension Benefits constitutes a
discriminatory act.
[19]
The
Complaint also alleges that the Canadian Forces, in refusing to pay the
Applicant’s Lost Pension Benefits, continue to discriminate against him in
respect of his disability.
[20]
On
or about October 28, 2005, the Complaint was rejected by the Commission on the
basis that it was not brought within one year of the discrimination complained
of and so was statute-barred.
RELEVANT LEGISLATION
[21]
Section
41 of the Act states:
|
(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.
|
ISSUE
[22]
There
is only one issue raised in this application.
1.
Was
the Complaint filed within one year of the discriminatory acts or omissions
complained of?
ARGUMENTS
Applicant
Standard of
Review
[23]
The
Commission has a discretion in performing its screening function under section
41.(1)(e) of the Act, which discretion has been judicially recognized. This
Court has stated as follows:
the
standard of review applicable to the Commission’s section 41.(1)(e)
decision not to deal with a complaint that was over one year in the past, is a
deferential one, that is, a standard of patent unreasonableness.
Price
v. Concord Transportation Inc.,
[2003] F.C.J. No. 1202, 2003 FC 946 (T.D.).
[24]
However,
the Applicant submits that, after application of a pragmatic and functional analysis,
it is evident that a lower standard of review applies in this case where the
Commission is required to determine whether the act of discrimination
complained of is the “last” occurrence of discrimination within the meaning of
section 41.(1)(e).
Dr.
Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, para.
26.
[25]
The
pragmatic and functional approach has been described by the Supreme Court of
Canada as follows:
The
pragmatic and functional approach involves the consideration of four contextual
factors: (1) the presence or absence of a privative clause or statutory right
of appeal; (2) the expertise of the tribunal relative to that of the reviewing
court on the issue in question; (3) the purposes of the legislation and the
provision in particular; and (4) the nature of the question – law, fact or
mixed law and fact (citations omitted)
Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 R.C.R. 609, 2004 SCC 23, para.
16.
[26]
The Act
contains no privative clause. However, there is also no statutory right of
appeal.
[27]
The
Applicant submits that, with respect to the fourth part of the pragmatic and
functional approach, the present issue before the Court is one of mixed law and
fact. The Commission was asked to determine whether the DCCL’s decision of June
22, 2004, was the “last act of discrimination” conducted by the Canadian Forces
within the meaning of section 41.(1)(e) of the Act. This is more than a
question of fact. The fact itself, that the DCCL made the decision on June 22,
2004, is indisputable. It is the legal effect of this fact in respect of the
limitation period contained in the Act that the Commission considered. The
Applicant says this is a question of mixed law and fact.
[28]
Given
that the question before the Commission was one of mixed law and fact, the
Commission has no greater expertise on the issue of concern than this Court. In
cases of pure fact, where a wide variety of evidence must be collected, and
issues of relevance and credibility assessed, then the Commission most
certainly is in a better position than the Court to make a decision. However,
in this case, it is the application of the legal principles that is most
important, and in that respect, this Court is in as good a position, if not
better, to make a decision in respect of the timeliness of the Applicant’s
claim.
[29]
Finally,
the underlying purpose of the Act is to prevent discrimination, and to provide
redress where discrimination occurs. As such, the Act should be given a fair,
large and liberal interpretation.
Canada
(Human Rights Commission) v. Canadian Airlines International Ltd., [2004] F.C.J. No. 483, 2004 FCA 113.
[30]
The
Applicant urges the Court to conclude that an application of the pragmatic and
functional approach in this case reveals that little deference is owed to the
Commission on the Decision. As such, and in the absence of a statutory right of
appeal, the Applicant submits that the applicable standard of review is
reasonableness simpliciter.
Is the Applicant’s
Complaint Statute-Barred?
[31]
The
Applicant points out that the Federal Court of Appeal has stated that a
complaint should only be dismissed at the preliminary stage in the most obvious
of cases:
A
decision by the Commission under section 41 is normally made at an early stage
before any investigation is carried out. Because a decision not to deal with
the complaint will summarily end a matter before the complaint is investigated,
the Commission should only decide not to deal with a complaint at this stage in
plain and obvious cases... .
Canada
Post Corp. v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 578, para. 4, aff’d
[1999] F.C.J. No. 705 (QL).
[32]
The
Applicant submits that the Commission erred in determining that the Applicant’s
Complaint was with respect to events which occurred in 1998. The Commission’s Decision
is patently unreasonable as it is plain and obvious that the Applicant’s
Complaint is in respect of the DCCL decision of June 22, 2004. The Complaint
was brought within 9 months of that decision, and well within the one year time
limit imposed by section 41.(1)(e) of the Act. The June 22, 2004,
decision of the DCCL stands alone as a separate act of discrimination.
[33]
The
Complaint is not in respect of the termination of the Applicant’s service with
the Canadian Forces in 1998. That matter was redressed in January 2004. The Complaint
is that, in deciding to deny the Applicant the Lost Pension Benefits in June
2004, the Canadian Forces discriminated against him on the basis of his medical
condition.
[34]
In
the alternative, the Applicant submits that there is no evidence that the
Commission considered the relevant test as to what constitutes a “last”
occurrence of discrimination under section 41.(1)(e), and as a result the
Commission erred in failing to consider evidence of discrimination in 2004.
[35]
It
is true that the Canadian Forces’ first act of discrimination towards the
Applicant occurred in April 1998, when it terminated his service as a result of
his medical condition and disability. It is not disputed that a complaint with
respect to his termination from service in the Canadian Forces would have had
to have been brought by April 1999.
[36]
Between
April 1998 and January 2004, however, the Canadian Forces continued to
discriminate against the Applicant by refusing to reinstate him, so that he
could fulfill the final nine months of service required to make him eligible
for pension benefits.
[37]
These
discriminatory acts were addressed by the redress of the Grievance in January
2004. The Applicant has since been allowed to re-enroll in the Canadian Forces
and has begun receiving a pension, following completion of the last nine months
of his service.
[38]
It
was not until January 2004, that it was determined that the Applicant even had
a right to pension benefits. Once the decision was made to redress his
termination from the service, the question arose as to whether he was entitled
to compensation for the Lost Pension Benefits in the intervening period. This
question could not be considered until after January 2004, so the Applicant
says it is difficult to see how determination of this question in June 2004,
can be considered an act of discrimination occurring in 1998, as impliedly
found by the Commission.
[39]
The
Applicant says, therefore, that the decision by the DCCL on June 22, 2004, to
refuse to compensate him for the Lost Pension Payments constitutes a new act of
discrimination. It is not a direct consequence of his termination from the service,
but rather a fresh act of discrimination in itself. In effect, by making a
decision that the Applicant was not entitled to compensation for the
discrimination that he suffered, the DCCL refused to accommodate his disability.
[40]
Stated
simply, the Applicant says that the decision to terminate his service in 1998
was the first discriminatory act, and the decision by the DCCL to refuse
compensation was the last discriminatory act.
[41]
In
the further alternative, the Applicant says the Commission failed to consider
that the decision of the DCCL on June 22, 2004, was the last in a series of
investigatory steps taken by the Canadian Forces. Nonetheless, it has been
previously held that, the limitation period in such cases only begins to run
once the last in a series of decisions is made.
Greenwood
v. Alberta (Worker’s Compensation Board), [2000] A.J. No. 1360, 2000 ABQB 827.
Salter
v. Newfoundland, [2001] N.H.R.B.I.D. No. 5.
[42]
In Greenwood, the complainant brought
his complaint against the Worker’s Compensation Board only several months after
a WCB appeal tribunal upheld a much earlier decision of the WCB itself. The
court in that case held that, had the complainant brought his complaint within
six months of the WCB appeal tribunal decision, it would not have been statute-barred.
The court reasoned as follows:
…
the act of resolving a WCB claim can be prolonged by invoking the appeal
procedures prescribed by the Workers’ Compensation Act. When a claimant appeals
a decision of the WCB, such decision is transformed into an ongoing process of
deciding.
(para.
67)
[43]
As
in Greenwood, the DCCL decision in
the present case was the last part of the “ongoing process of deciding” whether
the Applicant was entitled to accommodation in respect of the Lost Pension
Benefits.
[44]
The
Applicant submits that the Greenwood case is reflective of the policy found at
section 41.(1)(a) of the Act, namely, that a complainant must exhaust
all alternate proceedings prior to filing a complaint.
[45]
In
any event, the Applicant points out that the discrimination in the present case
is ongoing in that the Canadian Forces continue to refuse the Applicant
compensation for the Lost Pension Benefits, or for any of its discriminatory
acts.
Applicant’s Conclusions
[46]
The
Applicant submits that the Commission’s Decision to refuse to deal with his
Complaint on the basis that it was based on acts which occurred more than one
year before the filing of the Complaint is unreasonable or, alternatively,
patently unreasonable. The Commission failed to consider relevant evidence (the
June 22, 2004 decision of the DCCL) and failed to properly apply the test of
what constitutes the “last” occurrence of discrimination within section 41.(1)(e)
of the Act.
[47]
The
June 22, 2004 decision of the DCCL to deny him compensation for the Lost
Pension Benefits was a separate act of discrimination from the original
termination of his service. Any claim that the Applicant had in respect of the
1998 termination of his service has been addressed.
[48]
In
the alternative, the Applicant concludes that the Commission was unreasonable,
or patently so, as a result of its failure to consider that the June 22, 2004 decision
of the DCCL was the last part of an ongoing decision process, as in the Greenwood case.
[49]
In
any event, the Commission’s failure to conclude that the one year time limit in
section 41.(1)(e) began to run on June 22, 2004 was unreasonable, or
patently unreasonable. Given that the Complaint was filed on February 16, 2005,
well within that one year time limit, the Applicant requests that the Decision
be quashed, and that the matter be referred back to the Commission for
investigation and hearing on its merits.
Respondent
[50]
The
Respondent points out that the legislative scheme of section 41(1) of the Act
creates a second level of screening in determining whether the Commission will
deal with a complaint.
[51]
The
standard of review for a decision of the Commission to dismiss a claim pursuant
to subsection 41.(1)(e) of the Act is patent unreasonableness. A
patently unreasonable decision is one where the defect of the decision is
obvious on its face. A patently unreasonable decision will be clearly
irrational or not in accordance with reason. In making the determination
whether to extend the one year time limit, the Commission must weigh the
evidence before it. The manner by which this is done is within the Commission’s
discretion and the Respondent says it is not open to this Court to weigh the
evidence differently.
Johnston
v. Canada Mortgage and Housing Corp.,
[2004] F.C.J. No. 1121, paras. 8 and 11.
Good
v. Canada (Attorney General), [2005] F.C.J. No. 1556, paras. 22-23.
Tse
v. Federal Express Canada Ltd.,
[2005] F.C.J. No. 740, para. 26.
[52]
This
Court has recently and consistently held that it should not interfere with
discretionary decisions of the Commission, even if it might have exercised the
discretion differently, as long as the discretion is exercised in good faith,
in accordance with principles of natural justice and procedural fairness, and
where no reliance is placed on extraneous considerations.
Price
v. Concord Transportation Inc.,
[2003] F.C.J. No. 1202, para. 42.
McEachran
v. Ontario Power
Generation, [2006] F.C.J. No. 84, para. 9.
[53]
The
Respondent says that the Commission acted reasonably in determining that the
Applicant’s Complaint was out of time. It is clear that the Commission
exercised its discretion in good faith, in accordance with principles of
natural justice and procedural fairness, and that it did not rely on extraneous
considerations.
Application of subsection 41.(1)(e) of
the Act
[54]
The Respondent
points out that the purpose of subsection 41.(1)(e) of the Act is to
ensure that complaints are brought in a timely fashion. This Court has held
that the Commission does not have jurisdiction to deal with a time-barred
complaint unless it first exercises its jurisdiction to do so pursuant to
subsection 41.(1)(e) of the Act. At the preliminary screening stage,
neither the merits nor the substance of the case are examined. The Commission
only examines whether section 41.(1)(e) applies to prevent the complaint
from proceeding;
Canadian
Broadcasting Corp. (CBC) v. Canada (Canadian Human Rights Commission), [1993] F.C.J. No. 1334, paras. 26 and
45.
Zavery
v. Canada (Human Resources Development), [2004] F.C.J. No. 1122, para. 11.
Price, supra, paras. 37 and 48.
Good, supra, paras. 21 and 29.
[55]
The
Applicant submitted his complaint on February 16, 2005. The Commission
determined that the Applicant’s allegations related to acts that occurred in
1998. The Commission reviewed the Applicant’s and the Respondent’s written
representations and decided not to deal with the Complaint pursuant to
subsection 41.(1)(e) of the Act because it was based on acts which
occurred more than one year before the filing of the Complaint.
[56]
In his
memorandum, the Applicant asserts that the Commission erred in determining that
the Complaint was with respect to events which occurred in 1998, as it is plain
and obvious that the Complaint is in respect of the DCCL decision of June 22,
2004, to deny the Applicant monetary compensation.
[57]
On
an analysis of the Complaint, however, the Respondent says it is far from clear
that it was only in respect of the DCCL decision of June 22, 2004. In his Complaint,
the Applicant refers to the Respondent’s failure to accommodate the Applicant’s
request for an extension of time of his medical release date in 1998, so that
he would become entitled to an immediate and indexed annuity, the delay of the
grievance process, DCCL’s denial of compensation, and DCCL’s alleged denial of
compensation for pension benefits between 1998 and 2004.
[58]
If
the Applicant felt that the grievance decision did not adequately provide a
remedy, he could have brought an application for judicial review of the
grievance decision. Instead, he filed a complaint with the Commission which he
now alleges was only in relation to the DCCL decision of June 22, 2004, to deny
him compensation for Lost Pension Benefits between 1998 and 2004.
Was the Commission’s Decision Patently
Unreasonable?
[59]
The
Respondent says that the relevant date for commencing the time period is the
matter in dispute. The Applicant contends that it should be June 22, 2004, the
date of the DCCL decision; whereas the Commission has stated that it considers
the appropriate date to be 1998, i.e. the date of medical release.
[60]
The
Applicant asserts that the Commission failed to consider that the decision of
DCCL on June 22, 2004, was the last in a series of investigatory steps and that
the limitation period only begins to run once the last in a series of decisions
has been made. The Respondent says this is not an accurate reflection of the
current state of the law. This Court has recently held that a complainant has
one year from the time of his dismissal to file a formal written complaint with
the Commission.
Good, supra, paras.
25-27.
Johnston, supra, para. 6.
[61]
In Tse,
the dates in dispute for the commencement of the limitation period were the
date of termination or the date when Mr. Tse had exhausted the internal levels
of appeal. This Court held that the relevant date for the commencement of the limitation
period was the date of termination. Justice Dawson pointed out that this issue
had previously been decided by the Federal Court of Appeal:
In
Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at
paragraph 28, the Federal Court of Appeal agreed with a decision of the
Commission that discharge from employment is an act that takes place, and is
completed, at a specific point in time. Continued insistence by the employer
that the decision to dismiss was justified does not have the effect of making
the act of discharge a continuing discriminatory practice.
The
Federal Court of Appeal reiterated this view in Lever v. Canada (Human
Rights Commission), [1988] F.C.J. No. 1062. There, the Court held
that where a complaint arose out of employment, after the date of discharge no
later event could give rise to complaints relating to employment.
Tse, supra, paras. 29-30.
[62]
The
Applicant was medically released on April 29, 1998. Therefore, says the
Respondent, he had one year from that date to file an official written
complaint with the Commission (April 29, 1999). He failed to do so. The
official Complaint was received by the Commission on February 16, 2005. In this
case, the Commission reasonably determined that the allegations in the complaint
were statute-barred. It is within the Commission’s discretion to reject a
complaint for failure to respect the time limitation.
The Complaint was never addressed by DCCL
[63]
The
Respondent goes even further and points out that, in his decision of the
Applicant’s Grievance on January 10, 2004, the Chief of Defence Staff referred
the Applicant’s case to the DCCL for consideration of legal liability and any
monetary settlement that might be appropriate for the failure to grant the
Applicant’s request for an extension of the date of his medical release. In his
referral to DCCL, the Chief of Defence did not request that the DCCL consider
compensation for Lost Pension Benefits between 1998 and 2004. Further, the
Applicant never requested that the DCCL consider compensating him for Lost Pension
Benefits between 1998 and 2004.
[64]
The DCCL’s
decision of June 22, 2004, dealt with whether the Respondent was legally liable
for denying the Applicant’s request for an extension of his release date. DCCL
did not address whether compensation should be provided for the Lost Pension Benefits.
Therefore, the Applicant brought a complaint to the Commission in relation to a
decision to deny him Lost Pension Benefits between 1998 and 2004 that never
occurred.
[65]
The DCCL’s
denial of monetary compensation has no bearing on the Applicant’s entitlement
to Lost Pension Benefits between 1998 and 2004. At paragraph 18 of the
Applicant’s memorandum he asserts that the DCCL’s decision to refuse to
compensate him for the Lost Pension Benefits constitutes a new act of
discrimination. DCCL is the Respondent’s legal advisor and, the Respondent
argues, its decision to deny the Applicant any monetary compensation cannot be
the foundation of an act of discrimination. As such, the Complaint of the DCCL
decision has absolutely no merit whatsoever, and the date upon which the DCCL
made its decision should not be taken into consideration when determining the
commencement of the relevant time period for the filing of the Complaint with
the Commission.
No Reasonable Explanation for Delay
[66]
The
Respondent further submits that for the Applicant to have his Complaint heard,
he needs to provide the Commission with sufficient reasons for the delay. In
his memorandum, he submits that he was bound by section 41.(1)(a) of the
Act to exhaust all alternate recourses prior to filing his Complaint with the Commission.
A reasonable interpretation of the legislation, however, would suggest
otherwise. Subsection 41.(1)(a) of the Act does not say that potential
complainants ought to exhaust grievance or review procedures before the Commission
will deal with a complaint. Nowhere in the legislation does it state that a
complainant must pursue alternate grievance or review procedures where doing so
will force the potential complainant to miss the time limitation in 41.(1)(e)
of the Act. As such, the decision to grieve prior to filing a complaint was
solely that of the Applicant.
[67]
Subsection
41.(1)(e) of the Act clearly states that the time limitation for filing
a complaint is one year from the date of the alleged last incident of
discrimination, or such longer period as the Commission considers appropriate
in the circumstances. The Respondent says that this wording clearly indicates
that the time limit is one year, and after one year a determination of this
issue rests within the discretion of the Commission.
[68]
In McEachran,
the complainant failed to file a complaint within the one year time limitation
because he was pursuing a grievance process. This Court upheld the Commission’s
decision to dismiss the complaint because he should have filed a complaint with
the Commission. In the present case, the Applicant should have filed a
complaint with the Commission when he was denied an extension of his medical
release date. It was at that point that the Commission would have determined
whether section 41.(1)(a) of the Act applied and may have directed the
Applicant to pursue his grievance before pursuing his complaint with the Commission.
Instead, the Applicant interpreted section 41.(1)(a) in his own way,
failed to file a complaint with, or contact the Commission and filed a
grievance. As such, he cannot complain now about the Commission’s Decision.
McEachran, supra,
paras. 7 and 10.
Respondent’s Conclusions
[69]
The
Respondent submits that the Commission acted reasonably and in good faith when
it dismissed the Applicant’s Complaint on the ground of timeliness. As the
decisions of the Commission pursuant to subsection 41.(1)(e) are
discretionary administrative decisions, they should not be easily set aside,
and the Court should not interfere, even if it might have exercised the
discretion differently, where the discretion has been exercised in good faith,
in accordance with the principle of natural justice and procedural fairness.
ANALYSIS
[70]
I
have to say at the outset that, even at a purely semantic level, the
Commission’s Decision is difficult to understand.
[71]
It
is clear from the Applicant’s Complaint that the act or omission in question is
the denial of benefits found in the DCCL letter of June 22, 2004. There is, of
course, a history to that denial which the Applicant recites in the Complaint
in order to assist the Commission in understanding the significance of the
denial. But the Applicant’s Complaint is not in relation to that history. The
Complaint is exclusively concerned with the denial of benefits contained in the
DCCL letter of June 22, 2004.
[72]
Section
41.(1)(e)of the Act is mandatory: “the Commission shall deal with any
complaint filed …” unless “the complaint is based on acts or omissions the last
of which occurred more than one year … before the receipt of the complaint.”
[73]
The
Commission refused to deal with the Complaint in this case because “the complaint
is based on acts which occurred more than one year before the filing of the
complaint.”
[74]
This
statement is certainly inaccurate if the Complaint itself is taken at face
value, because the Complaint only relates to the June 22, 2004, denial of benefits.
In order for the Commission’s Decision to make any sense, the Court would have
to find that the words “based on” in subsection 41.(1)(e) of the Act
mean not only the specific act or omission referred to in the Complaint, but
also any act or omission that may have occurred in the historical sequence of
events that led to the act or omission complained of.
[75]
The
Respondent has adduced no authority or argument that it was Parliament’s intent
that section 41.(1)(e) should be interpreted in this way, and the
subsection’s plain and obvious meaning should not be distorted by the kind of
extended interpretation that the Respondent has placed before the Court.
[76]
A
complaint cannot be brought before the Commission before the act or omission
complained of has occurred. The act or omission complained of in this case
occurred on June 22, 2004. The Applicant could not have brought his Complaint
before that date, as the Respondent appears to be suggesting. If he had, say,
in the context of his earlier grievance raised this matter, he would have had
to come to the Commission with a complaint about a possible denial of benefits
that might or might not occur as a result of earlier acts of discrimination
against him. Any such complaint would have been entirely speculative, and would
have remained so in this case until the grievance was dealt with and the
Applicant received the final decision on benefits from DCCL dated June 22,
2004.
[77]
The
cases relied upon by the Respondent (Tse, for example) which say that
where a complaint arises out of employment, after the date of discharge no
later event can give rise to complaints relating to employment are not, in my
view, relevant to a set of facts where the complainant is reinstated and it
then has to be determined what benefits go with that reinstatement. By
reinstating the Applicant in this case, the Canadian Forces eradicated the
earlier date of discharge so that the parties were left to deal, not with the
consequences or discharge, but with the consequences of reinstatement. And this
is why the Chief of Defence Staff referred the issue of benefits to DCCL. DCCL
was not asked to render a decision on the consequences of discharge; it was
asked to render a decision on the financial and pension consequences of
reinstatement.
[78]
The
Respondent says that the Applicant was medically released on April 29, 1998,
therefore “he had one year from that date to file an official written complaint
with the Commission (April 29, 1999. He failed to do so.” This is tantamount
to arguing that, at the time of release, it was incumbent upon the Applicant to
go before the Commission with all possible consequences of his release even if,
at that time, the Canadian Forces had not rendered a decision on what those
consequences should be.
[79]
The
simple answer to this is that the Act requires no such thing of the Applicant.
The wording of section 41.(1)(e) is, in my view, plain and obvious, and
it compels the Commission to deal with a complaint based upon an act or
omission that occurs less that one year prior to the complaint. The act or
omission in this case was not the Applicant’s release, it was the decision on
benefits made by the DCCL on June 22, 2004, that followed the Applicant’s
reinstatement. Had that reinstatement not occurred, then it seems to me that
the cases related to the date of discharge of employment might have had some
relevance. But I fail to see how the date of release can continue to be the
operate date in a situation where reinstatement has occurred and the parties
are merely working out what the consequences of reinstatement should be.
[80]
The
Respondent also argues that “In his referral to DCCL the CDS did not request
that the DCCL consider compensation for pension benefits between 1998 and 2004.
Further, the Applicant never requested that the DCCL consider compensating him
for pension benefits between 1998 and 2004.”
[81]
The
Applicant did not request DCCL to do anything because the Applicant was dealing
with the Chief of Defence Staff who told the Applicant in his January 10, 2004
decision that he was referring various matters resulting from that decision
elsewhere and that “I will also be forwarding your case to DCCL for
consideration and direct response to you.”
[82]
The
Applicant was then informed directly by DCCL on January 30, 2004, that DCCL
would be reviewing his file and would “make a determination with respect to
legal liability and any monetary settlement that might be appropriate in this
case.”
[83]
So
the Applicant was told that DCCL would review and then make a decision on the
“legal liability” consequent upon his release and reinstatement. There were no
words of limitation. There is nothing which says that “legal liability” will
not include consideration of the Lost Pension Benefits, and there was nothing
in the letter of the Chief of Defence Staff’s to the Applicant to suggest that
DCCL would not be considering those benefits. “Legal liability” is legal
liability. It could hardly mean anything else than the sum total of what the
Canadian Forces were obliged to pay the Applicant as a consequence of his
release and subsequent reinstatement.
[84]
The
letter of June 22, 2004, provides a blanket conclusion that “the crown is not
legally liable for any wrongdoing related to your release from the Canadian
Forces.”
[85]
It
has to be borne in mind that the June 22, 2004 letter is a lawyer’s letter that
says as little as possible because of the possible legal consequences. For
obvious reasons, it does not elaborate upon the various categories of “legal
liability” that the Canadian Forces might be subject to. And it deliberately
attempts to narrow the field of possible legal liability by confining matters
to “your release from the Canadian Armed Forces.”
[86]
But
the Chief of Defence Staff specifically told the Applicant in his January 10,
2004 decision that “I have no authority to award you an annuity based on pro
rota years of service. I will follow the CFGB recommendation to forward
your case to DCCL for their consideration with respect to legal liability and
any monetary settlement that might be appropriate.”
[87]
In
my view then, the DCCL were asked to consider any “legal liability and monetary
settlement” that might flow from the Applicant’s release and his reinstatement
following the January 10, 2004 decision of the Chief of Defence Staff.
[88]
If
the DCCL did not address the legal liability for the Canadian Forces to pay the
Applicant his Lost Pension Benefits, then that is either an act or an omission
it made on June 22, 2004, and the Applicant’s Complaint fell well within the
prescribed time limit of section 41.(1)(e).
[89]
Irrespective
of the standard of review to be applied in this case (whether patent
unreasonableness or reasonableness simpliciter), in my view, the
Commission committed a reviewable error when it refused to consider the Applicant’s
Complaint on its merits because the Complaint was not statute-barred.
JUDGMENT
THIS COURT ORDERS THAT:
1.
The
Decision of the Commission is quashed.
2.
This
application for judicial review is allowed.
3.
The
matter is referred back to the Commission which will now proceed to investigate
the Complaint and deal with it on its merits.
4.
The
Applicant is awarded costs of this application.
“James Russell”
Judge
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