Date: 20061027
Docket: T-458-05
Citation: 2006 FC 1304
Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MING
FUNG ALOYSIUS CHENG
Applicant
and
CANADA
POST CORPORATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Ming Fung Cheng began working for Canada Post Corporation in
1987. In 1996, he injured his neck and back on the job. As a result, he was
absent from the workplace for several months in 1997-98, and for a longer
period from 1999 to 2003. In 2004, he complained to the Canadian Human Rights
Commission that he was harassed in the workplace and that Canada Post had
failed to accommodate his physical disability. In 2005, the Commission informed
Mr. Cheng that it would not deal with any complaints arising before April 2003,
and that it would not deal with his remaining complaints until he had exhausted
the other remedies available to him. Mr. Cheng argues that the Commission erred
in not responding to all of his complaints. However, I can find no basis for overturning
the Commission’s decision and must, therefore, dismiss this application for
judicial review.
I.
Issues
- Did the Commission err when it
decided not to deal with matters arising before April 2003?
- Did the Commission err in
requiring Mr. Cheng to exhaust his other remedies before it would consider
his complaint?
II. Analysis
[2]
Before addressing Mr. Cheng’s specific arguments, I must note
that the Commission is accorded a great deal of deference in deciding whether
to deal with a complaint: Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.),
at para. 38.
1. Did the Commission err when it decided not to deal with matters
arising before April 2003?
[3]
Mr. Cheng filed his complaint in April 2004. The Commission may decline
to deal with allegations occurring more than one year before the complaint was
filed: s. 41(1)(e), Canadian Human Rights Act, R.S.C. 1985, c.
H-6 (CHRA).
[4]
Mr. Cheng argues that the Commission should have recognized that his
complaint related to a continuous series of events and, accordingly, that
matters occurring before the usual one-year time frame could not be severed
from more recent developments. Further, he argues that he delayed filing his
complaint while he was pursuing other remedies – namely, the grievance process
under his collective bargaining agreement – as he was obliged to do. He
suggests it would be unfair, in effect, to penalize him for taking the steps he
was bound to follow.
[5]
When it decided to deal only with those matters arising after April
2003, the Commission followed the recommendation of an investigator assigned to
Mr. Cheng’s file. The investigator reviewed all of the circumstances relevant
to Mr. Cheng’s complaints, including the particulars of all of the grievance procedures
Mr. Cheng had initiated. The investigator explained the basis of his
recommendation by noting that there had been “two significant breaks in the
continuum of alleged discriminatory incidents since 1997”.
[6]
Having reviewed Mr. Cheng’s complaint, I cannot find the Commission’s decision
to be unreasonable. It is clear that Mr. Cheng was concerned about how he was
treated after his initial injury. He described the conduct of his employer
during 1997, and the reasons for his absence from the workplace from October
1997 to May 1998. This appears to be a discrete set of circumstances and
concerns. There follows a second category of complaints dealing with his
employer’s conduct in 1998 and 1999, and his absence from the workplace from
1999-2003. Again, this seems to be a distinct set of concerns. Finally, Mr.
Cheng’s complaint covers a series of events after his return to the workplace
in 2003, beginning particularly in April 2003.
[7]
It appears to me that there are indeed breaks in the continuum of events
in the workplace, making the earlier matters severable from the later ones.
They involved different people, facilities and circumstances. They would
involve different witnesses, many of whom had left the workplace, according to
Canada Post. Further, they had already been the subject of numerous grievances,
some of which remained outstanding at the time the Commission was considering
Mr. Cheng’s complaint. In the circumstances, I cannot find that the
Commission’s decision to deal only with the most recent events – those
occurring during the year prior to the filing of his complaint – was unreasonable.
2. Did the Commission err in
requiring Mr. Cheng to exhaust his other remedies before it would consider his
complaint?
[8]
The Commission may decline to deal with a complaint when there are other
remedies reasonably available to the complainant (s. 41(1)(a), CHRA).
[9]
Again, the investigator explained his recommendation. He noted that, if
it turns out at a later point that the relief Mr. Cheng sought by way of the grievance
process relied is unavailable, the Commission could deal with his complaint
then. In other words, Mr. Cheng will not be prejudiced if the Commission deals
with his complaint at a later point.
[10]
I cannot find this approach to be unreasonable. Mr. Cheng’s complaint
remains open while he pursues his grievance. I note that the grievance was
filed in August 2004 and was denied at the first level. Presumably, further
steps have been taken by now. If Mr. Cheng has not obtained any relief under
the grievance process, it falls to the Commission to consider the merits of his
complaint, as it undertook to do.
JUDGMENT
THIS COURT’S ORDER that:
1.
The
application for judicial review is dismissed;
“James
W. O’Reilly”
Annex
|
Canadian Human Rights Act, R.S.C. 1985, c. H-6
(CHRA)
Commission
to deal with complaint
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;
[…]
(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.
|
Loi
canadienne sur les droits de la personne, L.R.C. 1985, ch. H-6
Irrecevabilité
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;
…
e) la plainte a été déposée après l’expiration d’un délai d’un an
après le dernier des faits sur lesquels elle est fondée, ou de tout délai
supérieur que la Commission estime indiqué dans les circonstances
|
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