Date: 20061004
Docket: T-2232-05
Citation: 2006 FC 1178
Ottawa, Ontario, October 4, 2006
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
CAROLYN BREDIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
Carolyn Bredin, the applicant, seeks judicial
review of a decision of the Canadian Human Rights Commission (the Commission)
dated November 18, 2005. In
that decision, the Commission refused to deal with the Applicant’s human rights
complaint, pursuant to paragraph 41(1)(e) of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (the Act), on the grounds that it was not
brought within one year of the alleged discriminatory events.
[2]
The applicant asks for an order setting aside
the decision and that the matter be sent back to the Commission for
reconsideration by a different investigator and costs.
2. Factual
Background
[3]
The Applicant was employed with Citizenship and
Immigration Canada (CIC) from October 1979 to April 29, 2001. She subsequently
transferred to the Department of Justice effective April 30, 2001.
[4]
In 1992, the Applicant was diagnosed with major
depression and commenced a period of disability leave. She returned to work at
CIC in October 1993 on a gradual basis beginning with three-days a week with
the goal of returning to full-time status when her health permitted. In
November 1995, the Applicant returned to work on a full-time basis.
[5]
The Applicant claims that on her return to work
in October 1993 she was informed by her compensation and benefits advisor that
if the Applicant’s employment status was listed as full-time there would be a
delay in her receiving her pay, but that if her status was listed as part-time
there would be no delay. The Applicant also claims that she was told that having
her employment status listed as part-time would not negatively affect her
ability to buy back her pension in relation to the period she was on leave
without pay.
[6]
Prior to July 4, 1994, the Public Service
Superannuation Regulations (the Regulations) did not allow employees to be
contributors to the pension plan if their assigned hours of work were less than
30 hours per week. The Regulations were subsequently amended to permit
part-time employees before July 4, 1994, to become contributors to the Superannuation
Pension Plan. The amended Regulations also permitted employees who were
contributors to the pension plan on July 4, 1994, to elect to buy back any or
all prior part-time service that occurred after December 31, 1980.
[7]
Manon Galipeau, Director of the Workplace
Effectiveness Division at CIC, in her affidavit sworn on March 13, 2006,
attests that on January 5, 1981, the Applicant requested part-time hours of
22.5 hours per week in her full-time position. Ms. Galipeau further attests
that the Applicant returned to full-time hours on September 26, 1988, and then
again requested part-time hours of 22.5 hours per week on February 27, 1989.
The evidence further reveals the Applicant had also taken periods of leave
without pay, amounting to six years and seven months during her employment at
CIC.
[8]
When the Applicant elected to buy back
pension time, her application was refused in part. In a letter dated December
18, 2001, the Superannuation Directorate informed the Applicant that she was
not eligible to buy back her pension entitlements in relation to her periods of
leave without pay because of her part-time employment status. The December 18,
2001 letter is not in the record but is referred to in the Applicant’s
complaint form and in the September 14, 2005 letter from the Commission’s
Investigation Branch.
[9]
Two days later, the Applicant sent additional
documentation regarding her employment status and requested that her employment
status for the relevant periods at CIC be treated as full-time. The Applicant’s
request was denied by the Superannuation Directorate in a letter dated March 6,
2002. The Directorate stated that because the Applicant was working part-time
on July 3, 1994, she was unable to count as elective service any prior
period of part-time pay without leave. The Directorate also noted that the
employment status of all employees falls under the jurisdiction of the
employing department, and that the Directorate has no discretion to treat an
employee’s status differently than that which is reported by the employing
department.
[10]
On April 10, 2003, Françoise Girard, the Acting
Director General of the Human Resources Directorate at the Department of
Justice, wrote to her counterpart at CIC on the Applicant’s behalf requesting
that the Applicant’s employment status be amended from part-time to full-time
for the period of October 4, 1993 to November 29, 1995 so that this period
could be considered for pension purposes. Ms. Girard sent a follow up letter to
CIC on June 6, 2003. While these two letters are not in the record before the
Court, they are acknowledged in the July 11, 2003, response from Louise
Gravel, Director General, Human Resources Branch with CIC, to Ms. Girard
discussed below.
[11]
In May 2003, the Applicant became ill and
commenced a period of disability leave. She remains unable to work as a result
of a major depressive illness.
[12]
On July 11, 2003, Louise Gravel, Director
General, Human Resources Branch with CIC, wrote to Ms. Girard informing her
that the request to change the Applicant’s employment status was refused. In
her letter, Ms. Gravel stated that a review of the Applicant’s file and the
documentation did not support the Applicant’s allegation that she had been
misinformed by her compensation and benefits advisor at the time as to the impact
of her being listed as a part-time employee. In closing, Ms. Gravel invited Ms.
Girard to contact Anne Wallis, the then Director of Workplace Effectiveness at
CIC, if she had any questions.
[13]
Further to Ms. Gravel’s letter, Ms. Girard wrote
to Ms. Wallis on September 9, 2003, requesting a detailed explanation
substantiating CIC’s decision not to amend the Applicant’s employment status.
Ms. Girard also relayed the Applicant’s request that Ms. Wallis contact the
Applicant before rendering her final decision.
[14]
The Applicant states that Ms. Wallis
subsequently contacted the Applicant about her case. Moreover, the Applicant
says that at the end of one conversation, Ms. Wallis indicated that she would
review the Applicant’s file since her case involved medical disability. The
Applicant adds that months later, in 2004, Ms. Wallis contacted the Applicant
to inform her that CIC was seeking a legal opinion as to whether CIC could
consider the additional information provided by the Applicant’s managers in
2003, in respect of her employment status in 1993.
[15]
The record appears to confirm that the above
legal opinion was sought and received from the CIC’s legal department. The
document at issue, found at pages 17 and 18 of the tribunal record, is untitled
and undated but its contents leaves little doubt that the document is an
internal memo from CIC which chronicles the events as related by the Applicant
and the September 9, 2003 letter from Justice Canada to CIC.
[16]
On June 14, 2004, Ms. Gravel sent a letter to
the Applicant in response to the Applicant’s request that CIC reconsider its
decision with regard to her employment status. Ms. Gravel informed the
Applicant that she had concluded that procedures were followed correctly by CIC
and that the Applicant had been working part-time during the relevant time
period. Ms. Gravel referred to several documents which substantiate CIC
management’s approval of the Applicant’s request to work part-time hours when
she resumed work in October 1993 and the fact that the Applicant worked
part-time on her return. Ms. Gravel informed the Applicant that, consequently,
her employment status would not be changed.
[17]
On May 10, 2005, the Applicant filed a human
rights complaint with the Commission alleging that by refusing to amend her
employment status CIC and the Treasury Board of Canada treated her in an
adverse and differential manner, contrary to sections 7 and 10 of the Act. The
Applicant alleges that “CIC misinterpreted the provisions of the Public
Service Superannuation Act, Treasury Board policies and failed to
accommodate [her] disability in the proper fashion”. The Applicant further
states that she did not become aware of the negative impact of CIC’s policy and
practice of listing her as a part-time employee until she began working at the
Department of Justice in 2001.
[18]
In her complaint, the Applicant wrote that she
did not contemplate filing a human rights complaint with the Commission until
she had received the June 14, 2004 letter from Ms. Gravel:
It became clear
that CIC refused to abide by the provisions of the Public Service
Superannuation Act which allows for corrections to be made with respect to
the counting of service under the Act when erroneous advice with respect to the
counting of service has been given. It was only then that I understood the CIC,
Louise Gravel and Anne Wallis were treating me in an adverse and differential
manner.
The Applicant
further states that documentation clearly indicated that she was occupying a
full-time position but that due to her disability, she could only work three
days a week.
3. The
investigation
[19]
On September 14, 2005, the Director of the
Investigation Branch with the Commission wrote to the Applicant advising her
that the Investigation Branch was recommending to the Commission that it not
deal with the Applicant’s complaint because it was filed out of time. The
Director stated that the Applicant’s complaint was based on alleged acts that
took place on December 18, 2001, and added that the Applicant had initially
contacted the Commission on April 6, 2005, “over three years after the last
alleged act of discrimination”. In her letter, the Director invited the
Applicant to submit comments regarding the Investigation Branch’s
recommendation and suggested that the Applicant “may wish to include the
reasons [she] delayed in filing [her] complaint”.
[20]
The Director of the Investigation Branch also
sent CIC a similarly worded letter, outlining the recommendation and inviting
CIC to submit a response. The Director suggested that CIC may wish to include
the following information in its submissions: “whether or not [CIC was] aware
that discrimination was alleged or that a complaint was likely to be filed; the
availability of witnesses and/or documentary evidence; and any harm that could
be caused by the delay”.
[21]
Both parties filed written responses.
4. The
impugned decision
[22]
The record before the Commission when it made
its decision was composed of the Applicant’s complaint form, the recommendation
of the Investigation Branch, and the submissions of the parties in response.
After reviewing the materials, the Commission informed the Applicant on
November 18, 2005, that it had decided not to deal with her complaint because
the complaint was filed outside of the one-year limitation period prescribed
under paragraph 41(1)(e) of the Act. In its letter, the Commission
wrote:
Before rendering
its decision, the Commission reviewed the analysis and the recommendation
contained in the letter sent to you previously by the Investigations Branch,
and any submission(s) filed in response to the letter. 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.
5. Legal Framework
[23]
Under the Act, the Commission is required to deal with all complaints
filed unless the Commission is of the view that the complaint falls within one
of the categories set out in subsection 41(1) of the Act. Paragraph 41(1)(e)
requires that complaints be filed within one year of the last incident of
alleged discrimination unless the Commission exercises its discretion to allow
for a longer filing period.
|
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
(a) the alleged victim
of the discriminatory practice to which the complaint relates ought to
exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one
that could more appropriately be dealt with, initially or completely,
according to a procedure provided for under an Act of Parliament other than
this Act;
(c) the complaint is
beyond the jurisdiction of the Commission;
(d) the complaint is
trivial, frivolous, vexatious or made in bad faith; or
(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 :
a) la victime présumée de l’acte
discriminatoire devrait épuiser d’abord les recours internes ou les
procédures d’appel ou de règlement des griefs qui lui sont normalement
ouverts;
b) la plainte pourrait avantageusement être instruite, dans un
premier temps ou à toutes les étapes, selon des procédures prévues par une
autre loi fédérale;
c) la plainte n’est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
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.
[…]
|
[24]
Under subsection 41(1) of the Act, the Commission performs a preliminary
screening function; the Commission does not review the merits of the complaint.
In respect of paragraph 41(1)(e), the Commission’s role is to determine
whether the complaint was filed within one year of the “last occurrence” of the
alleged discriminatory act or, if not, whether in the circumstances the
Commission should exercise its discretion and still consider the complaint. See
Tse v. Federal Express Canada Ltd., 2005 FC 598. The Federal Court of
Appeal has held that the Commission, in exercising its jurisdiction under
subsection 41(1), should dismiss a complaint only in plain and obvious cases,
since such a decision will summarily end the matter. See Canada Post Corp.
v. Canada (Human Rights Commission), [1997] F.C.J. No. 578
(QL), aff’d [1999] F.C.J. No. 705 (QL).
6. Issues
[25]
The following two issues are raised in this application
for judicial review:
(1) Did the Commission err in determining that the
Applicant’s complaint was time-barred?
(2) Did the Commission err by failing to exercise its discretion
to grant the Applicant an extension of time for filing her complaint?
7. Standard
of review
[30]
With respect to determining the appropriate
standard on which to review the Commission’s decision made under paragraph
41(1)(e) of the Act, a pragmatic and functional analysis must be
conducted. According to Justice Allen M. Linden in Attorney-General of
Canada v. Sketchley, 2005 FCA 404, “the pragmatic and functional analysis
must be undertaken anew by the reviewing Court with respect to each decision
of an administrative decision-maker, not merely each general type of
decision of a particular decision-maker under a particular provision.” (Emphasis
in original).
[31]
The pragmatic and functional analysis require
consideration of the four contextual factors first set out by the Supreme Court
of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982:
(1) the presence or absence of a privative clause or a
statutory right of appeal;
(2) the relative expertise of the tribunal;
(3) the purpose of the statute and the provision in question;
and
(4) the nature of the question.
[32]
The analysis must be conducted with regard to
the precise nature of the question or questions before the Court. Here, the
applicable provision raises two substantive questions. First, whether the “last
occurrence” of the alleged discriminatory act or omission occurred within one
year and, second, whether the Commission properly exercised its discretion in
not allowing the Applicant’s complaint to proceed despite it being filed outside
the prescribed time limit?
1) The presence or absence of a privative
clause or a statutory right of appeal
[33]
The Act does not include a privative clause nor
does the Act contain a statutory right of appeal. While judicial review
pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985,
c. F-7, is available to the parties, the Supreme Court of Canada in Bell
Canada v. Canada (Canadian Radio-Television and Telecommunications Commission),
[1989] 1 S.C.R. 1722, held that the jurisdiction of a court on appeal is much
broader than the jurisdiction of a court on judicial review. At paragraph 31,
the Court wrote: “In principle, a court is entitled, on appeal, to disagree
with the reasoning of the lower tribunal”. The availability of judicial review
therefore does not necessarily lead to a lesser standard of scrutiny. The lack
of a privative clause and access to judicial review are proper considerations
in the analysis. In my view, their effect on the level of deference owed the
Commission in respect to this first factor regarding both questions, is
essentially neutral.
2) The relative expertise of the Commission
[34]
The relative expertise of the tribunal is described
by Justice Frank Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 at paragraph 50, as “the most important of the
factors that a court must consider in settling on a standard of review”. In Pushpanathan,
above, at paragraph 33, the Court held that the following “three dimensions” of
relative expertise be considered:
a.
the tribunal’s expertise;
b.
the Court’s own expertise relative to that of
the tribunal; and
c.
the nature of the specific issue before the tribunal
relative to the Court’s expertise
[35]
The Supreme Court further elaborated on the interplay
between expertise and curial deference in Dr. Q. v. College of Physicians
and Surgeons of British Columbia, [2003] 1 S.C.R. 226. At
paragraph 28, citing Moreau-Bérube v. New
Brunswick (Judicial Council), [2002] 1 S.C.R. 249, the Court stated that:
Greater
deference will be called for only where the decision-making body is, in some
way, more expert than the courts, and the question under consideration falls
within the scope of this greater expertise.
[36]
In the present case, the first question concerns
whether the Commission appropriately determined the date on which the alleged
discriminatory act or omission giving rise to the complaint occurred. Making
this finding involves considering not only the specific facts underlying the
complaint but also an interpretation of which occurrences constitute acts or
omissions triggering the time limitation period under paragraph 41(1)(e)
of the Act. While the Commission has expertise in human rights matters, it
cannot be said to have any specific expertise when it comes to making
determinations as to when limitation periods start to run in particular
circumstances. The Commission’s expertise on such questions is no greater than
the Court’s. Consequently, in respect to the first question, this second factor
militates in favour of less curial deference.
[37]
The second question involves an evaluation of
the circumstances related to the delay in filing the complaint and any
prejudice to the Respondent, and a determination of whether those circumstances
are sufficient to warrant the Commission exercising its discretion under
paragraph 41(1)(e) of the Act. The question involves the exercise of the
Commission’s discretion and calls for a balancing of the respective interests
of the parties, which in my view, is informed by the Commission’s expertise in
human rights matters. Such a fact driven inquiry and the discretionary nature
of the decision engage the expertise of the Commission. For these reasons, I am
of the opinion that a more curial deference is warranted on the second question.
3) The purpose of the statute and the
provision in question
[38]
In Pushpanathan, above, Justice Michel
Bastarache held that less deference is warranted where the purpose of the
statute or the particular provision is “polycentric” and that greater deference
should be afforded where the purpose is more akin to an adjudication of rights
or obligations. At paragraph 36, Justice Bastarache stated the following:
Where the purposes
of the statute and of the decision-maker are conceived not primarily in terms
of establishing rights as between parties, or as entitlements, but rather as a
delicate balancing between different constituencies, then the appropriateness
of court supervision diminishes.
[39]
Section 2 of the Act sets out its purpose:
|
2. The purpose of this
Act is to extend the laws in Canada to give effect, within the purview of
matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to
have and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented
from doing so by discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability or conviction for an offence for which a pardon has
been granted.
|
2. La présente loi a pour objet de compléter la législation
canadienne en donnant effet, dans le champ de compétence du Parlement du
Canada, au principe suivant : le droit de tous les individus, dans la
mesure compatible avec leurs devoirs et obligations au sein de la société, à
l’égalité des chances d'épanouissement et à la prise de mesures visant à la
satisfaction de leurs besoins, indépendamment des considérations fondées sur
la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le
sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, la
déficience ou l’état de personne graciée.
|
[40]
In essence, section 2 provides that the purpose of the
Act is to give effect to a principle, expressed as the right of all individuals
to equal opportunity, free from discrimination on the stated grounds and
extends this principle to laws within the legislative authority of
Parliament. In my view, such a purpose is conceived primarily
in terms of establishing rights as between parties which militates in favour of
less deference.
[41]
The Act also imposes certain limitations as to which
complaints may proceed and empowers the Commission with a screening or
“gate-keeping” role. The Act therefore grants the Commission a remarkable
degree of latitude when performing its screening function upon receiving an
investigation report. This would indicate that Parliament did not want the
courts to intervene lightly in its decisions. See Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1998] F.C.J. No. 1609, [1999] 1 F.C. 113, at paragraph 38.
[42]
It must also be borne in mind that the decision to dismiss a complaint
at this stage, effectively extinguishes a complainant’s right to seek redress
under the Act. Subject to the availability of judicial review, the Commission’s
preliminary screening decision, which does not involve examining the merits of
a complaint, may well involve a final determination of the complaint and as a
consequence, directly affect the rights of individuals. I am in agreement with
the views expressed by Justice John Evans in Larsh v. Canada
(Attorney General), [1999] F.C.J. No. 508 (QL) (F.C.T.D.). In his reasons
for decision the learned judge wrote that, given the purpose of the Act,
decisions by the Commission to dismiss a complaint at the screening stage
deserve greater scrutiny by the Court than decisions to refer the complaint to
the Tribunal. He explains the rationale behind this conclusion at paragraph 36
of his decision:
A dismissal
[of a complaint], is after all, a final decision that precludes the complainant
from any statutory remedy and, by its nature, cannot advance the overall
purpose of the Act, namely protection of individuals from discrimination, but
may, if wrong, frustrate it.
[43]
Given the stated purpose of the Act which establishes the right of individuals
to be protected from discrimination, I am of the view that the third factor in
this analysis militates towards less deference to the Commission on both
questions.
4) The “Nature of the Problem”: A question of
Law or Fact?
[44]
With respect to the fourth contextual factor of
the pragmatic and functional analysis, it is accepted that in general,
deference is given on questions of fact because of the “signal advantage”
enjoyed by the primary finder of fact. Less deference is warranted on questions
of law because the finder of fact may not be particularly familiar with
questions of law. The jurisprudence has also recognized that the distinction is
not always so clear and that at times specialized boards are called upon to
make difficult finding of both fact and law.
[45]
Here, the first question is a mixed question of
fact and law. In deciding whether the limitation period has been met, the
Commission in this case was required to consider legal arguments advanced in
respect to whether the actions of the CIC constitute an “unofficial” internal
review process which may impact on the trigger date for the limitation period.
Put differently, the issue as to what constitutes a final decision of the
employer in respect to the underlying complaint involves consideration of legal
principles. Such questions of mixed law and fact militate in favour of less
deference to the Commission, than would otherwise be the case for questions of
fact. In Tamachi v. Canada (M.C.I.), 2005 FC 1534, Justice Sean
Harrington came to the same conclusion. He characterized the question of when
the one-year time limitation begins to run as a question of mixed fact and law.
[46]
However, I would afford greater deference to the
Commission in respect of its exercise of discretion to allow a complaint filed
outside the time limitation period to continue as such a question ultimately
calls for an exercise of discretion upon considering the circumstances of the
case.
5) Conclusion on the standard of
review
[47]
Considering the above contextual factors, I am of
the view, the appropriate standard for reviewing the Commission’s determination
that the Applicant’s complaint was filed outside the one-year time limit is
reasonableness simpliciter. Whether or not the Commission properly
exercised its discretion in not allowing the Applicant’s out-of-time complaint
to nevertheless proceed is to be reviewed on a standard of patent
unreasonableness. This latter conclusion is in line with other decisions
of the Court. See for example, Cape Breton Development Corp. v. Hynes,
[1999] F.C.J. No. 340 (QL); Price, above; Johnston v. Canada Mortgage
and Housing Corp., [2004] F.C.J. No. 1121 (QL); and Davey v. Canada (2004), 257 F.T.R. 316.
8. Analysis
A. Did the Commission err in determining that the
Applicant’s complaint was filed out of time?
[48]
The main thrust of the Applicant’s argument is
that the one-year limitation period could only begin to run when she received a
“final decision” from CIC in respect to her status namely, June 14, 2004, the
date CIC issued its letter informing the Applicant of its negative decision.
The letter reads in part as follows:
This is in
response to your request that CIC reconsider its decision with regard to
changing your status from part-time to full-time for the period of October 4,
1993, to November 29, 1995.
[49]
The Applicant states that prior to sending the
June 14, 2004 letter, CIC gave the impression that it was reviewing its
information and considering the Applicant’s request. She submits that
even though the initial decision of the Superannuation Directorate is dated December
18, 2001, the relevant date for the beginning of the one-year period should be
June 14, 2004, because of the time taken with the CIC to exhaust internal
administrative recourse mechanisms. The Applicant argues that
the discriminatory practice did not crystallized until that point and
consequently, her complaint to the Commission was filed within the time limit
set out under paragraph 41(1)(e) of the Act.
[50]
In the alternative, the Applicant submitted that
the discriminatory practice should be considered as “on-going” between December
18, 2001 and June 14, 2004.
[51]
In its response, CIC stated that the Applicant had
known since as early as December 18, 2001, the impact of her part-time status
on her future pension benefits. CIC submits that, although the Applicant made
various requests to CIC to modify her employment status, CIC “has not changed
its position and has never given her any indication to the contrary”.
[52]
The Respondent submits that the “act or omission” at the heart of the
Applicant’s complaint crystallized when the Superannuation Directorate
communicated its decision to the Applicant, in late 2001 or early 2002. The
Applicant admits that she knew, in January 2002, that the CIC’s decision would
adversely affect her. The Respondent further argues that the Superannuation
Directorate’s decision was communicated in the letter of December 18, 2001, and
later reiterated in correspondence sent March 6, 2002. The Respondent adds that
whether or not the Applicant subsequently engaged in an informal review process
does not change the date on which the discriminatory act occurs, and hence when
the one-year time limitation period under paragraph 41(1)(e) of the Act
begins to run. The Respondent submits that the letter of June 14, 2004 is not a
new decision, but merely reiterates and expands upon the CIC’s decision of July
11, 2003.
[53]
While the Applicant may have known in January 2002, that her employment
status with CIC had the potential of adversely affecting her, it is not disputed
that the Superannuation Directorate could not modify her employment status. In
its March 2002 letter to the Applicant, the Directorate clearly stated that it
“…does not have any discretion to treat an employee’s employment status on a
basis other than that which is reported by the employing department.” The
decision which forms the basis for the applicant’s alleged adverse differential
treatment was not taken by the Superannuation Directorate but by CIC. That
decision was taken by CIC on July 11, 2003, when CIC informed the Applicant by
letter that “…a decision has been made not to amend her employment status for
the period requested.” The July 11th, 2003 letter specifically
addresses the Applicant’s allegation that she was misinformed by the compensation
and benefits advisor at the time she returned to work in October 1993.
[54]
Notwithstanding the subsequent exchanges between CIC and the Applicant,
as well as exchanges between the Acting Director General of the Human Resources
Directorate of the Department of Justice on behalf of the Applicant and CIC, and
the inquiries undertaken by CIC as a result thereof, I am of the view that it
was not unreasonable for the Commission to decide that the complaint was based
on acts which occurred more than one year before the filing of the complaint. The
date upon which the Applicant’s alleged adverse differential treatment
crystallized for the purposes of filing a complaint under the Act is the date
the Applicant received notice of the July 11, 2003 decision of CIC. At that
time there was nothing to prevent the Applicant from filing a complaint under
the Act. While paragraph 41(1)(a) of the Act provides that a complainant
ought to exhaust grievance or review procedures otherwise reasonably available,
there is no evidence of such a procedure in the circumstances. The subsequent
exchanges discussed above, between the Applicant and CIC, do not constitute a
review procedure within the meaning of paragraph 41(1)(a) that the
Applicant ought to have exhausted before filing her complaint. The request for
“reconsideration”, as characterized by the Applicant, cannot serve to postpone
the triggering of a statutorily imposed time line, which in the circumstances
of this case, clearly began to run on July 11, 2003. The June 14, 2004 letter which
restates CIC’s position is not a new decision. In the result, I find that the
decision that the complaint was filed out of time was reasonably open to the
Commission in the circumstances. In the result, the Commission did not err in
so finding.
B. Did
the Commission err by failing to exercise its discretion to grant the Applicant
an extension of time for filing her complaint?
[55]
Upon deciding that the complaint is based on acts or omissions, the last
of which occurred more than one year before its receipt, the Commission is then
required to exercise its discretion and decide if it is appropriate in the
circumstances to nevertheless receive the complaint. The jurisprudence has established
certain factors to be considered by the Commission in exercising its discretion
under paragraph 41(1) (e) of the Act. Among these, particularly, whether the
delay was incurred in good faith and the weighing of any prejudice or
unfairness to the respondent caused by the delay.
[56]
Here, the Respondent contends that the Commission properly exercised its
discretion to refuse to deal with the complaint. While the Applicant’s
submission focused essentially on the first issue considered earlier in these
reasons, at the hearing counsel for the Applicant argued the Commission’s
reasons are insufficient in respect to the exercise of discretion under
paragraph 41(1) (e) of the Act. The Respondent acknowledged that while the
reasons were not as fulsome as they could have been, the decision not to extend
the time was not patently unreasonable in the circumstances and the Court’s
intervention is not warranted.
[57]
In considering whether the Commission erred in the exercise of its
discretion, I will look to the record before the Commission, the parties’
submissions and the Commission’s reasons for decision. It is well established,
given the cursory nature of Commission decisions, that investigation reports
must be read as the Commission’s reasons. See Sketchley v. Canada
(Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404 at paragraph 37.
[58]
Here, the investigation report that went to the Commission is not in the
record before the Court. However, the September 14, 2005 letter from the
Director of the Investigation Branch to the Applicant does confirm that the
Investigation Branch was recommending that the Commission not deal with the
Applicant’s complaint. The letter invited the Applicant to make submissions
regarding the Investigation Branch’s recommendation, particularly, with respect
to the reasons for the delay. The Director sent a similar letter to the CIC
inviting a response to the recommendation, asking specifically about any harm
that could be caused by the delay. Comprehensive submissions were made on
behalf of the Applicant in respect to the Commission’s exercise of discretion under
paragraph 41(1)(e) of the Act. These submissions were contained in a letter
dated October 11, 2005 from the Public Service Alliance of Canada to the
Commission and dealt with the reasons for delay and the lack of prejudice to
the respondent. Submissions were also made by the CIC.
[59]
Given the nature of the record before me, it is impossible to
ascertain, whether the Director turned his mind to the factors that required
consideration by the Commission in the exercise of its discretion. What is
clear, however, is that the Director’s recommendation, that the Commission not
receive the complaint, was made without the benefit of submissions made by the
parties on the Commission’s exercise of discretion to extend time.
[60]
In its decision letter, the Commission states that it reviewed the
analysis and recommendation of the Investigations Branch and submissions filed
in response thereto and decided not to deal with the complaint because it is
based on acts which occurred more than one year before its filing. The Commission,
in its decision, essentially adopts the Director’s recommendation without
expressly considering the parties’ arguments on the Commission’s discretion to
extend time. The Commission fails to deal with the above-noted factors relating
to the exercise of its discretion that, in the Applicant’s submissions, would
support a positive decision by the Commission regarding the extension of time
to receive the complaint.
[61]
In my review of the materials, particularly the decision letter, there
is no way of knowing whether the Commission turned its mind to the exercise of
its discretion, let alone whether the discretion was properly exercised. The
investigation report did not deal with the issue since its recommendation was
made before the parties submitted their arguments on the factors pertaining to
the exercise of the Commission’s discretion. It appears that the Commission’s negative
decision turns solely on the complaint being time barred. I am left to conclude
that the Commission failed to exercise its discretion. In proceeding as it did,
the Commission committed a reviewable error. The decision will consequently be
set aside.
[62]
The Commission’s decision is equally flawed by reason of the
insufficiency of its reasons. Section 42(1) of the Act states:
|
42. (1) Subject
to subsection (2), when the Commission decides not to deal with a complaint,
it shall send a written notice of its decision to the complainant setting out
the reason for its decision.
|
42. (1) Sous réserve du paragraphe (2), la Commission motive par
écrit sa décision auprès du plaignant dans les cas où elle décide que la
plainte est irrecevable.
|
The reasons in the circumstances of
this case are inadequate. The decision letter fails to meet the standard that has
been established in the jurisprudence for s.42 (1) of the Act. See Kidd v.
Greater Toronto Airports Authority, 2004 FC 703. The Commission did not
provide any explanation, not even a brief one for its determination that it
would not exercise it discretion to extend the time period and receive the
complaint beyond paraphrasing the legislative provision. The decision letter is
also insufficient as reasons for the decision under review pursuant to the
principles of natural Justice. See Via Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 (C.A.) at paragraphs 17-19.
[63]
In Via Rail, the Federal Court of Appeal recognized that
where a great amount of deference is afforded to an administrative
decision-maker, knowing and understanding the rationale for the decision
becomes even more critical, not just for the applicant, but also for a
reviewing court.
[64]
The Respondent cites a number of cases in support of it position. These
authorities can be distinguished. In particular, Davey v. Canada, 2004
FC 1496, where Justice Simon Noël held that the Commission did, in its
investigation report, thoroughly analyze the facts in the case against the
factors to be taken in to consideration when deciding whether to extend the
time-limit. As a result, the learned judge found that no reviewable error had
been committed even thought the Commission in its decision letter provided no
reasons for not extending the time-frame. Here the investigation report
contains no such analysis.
[65]
It follows therefore, that a reviewable error of law has occurred in
that the Commission’s reasons do not meet the minimal threshold of adequacy as
established by the common law principles of procedural fairness as well as the
minimal threshold established by s. 42(1) of the Act. Such an error warrants
the Court’s intervention.
[66]
For the above reasons, this judicial review application will be allowed.
The decision of the Commission is set aside and the matter will be remitted for
reconsideration in accordance with these reasons.
[67]
Costs will be awarded to the Applicant to be assessed in accordance with
the middle of Column III of Tariff B of the Federal Courts Rules.
ORDER
THIS COURT ORDERS
that:
1. The application for
judicial review is allowed.
2. The matter is referred to the Commission for reconsideration
in accordance with these reasons.
3. Costs are awarded to the Applicant to be assessed in
accordance with the middle of Column III of Tariff B of the Federal Courts
Rules
“Edmond P. Blanchard”
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