Price v. Concord transportation Inc., 2003 FC 946

Date: 20030801

Docket: T-1010-01

Citation: 2003 FC 946

Ottawa, Ontario, this 1st day of August, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                                                                     WENDY PRICE

                                                                                                                                                       Applicant

                                                                                 and

                                               CONCORD TRANSPORTATION INC.

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

Introduction

[1]                 Ms. Wendy Price (the "Applicant") seeks judicial review of the decision made by the Canadian Human Rights Commission (the "Commission"). In its decision, dated May 9, 2001, the Commission decided not to deal with the complaint filed by the Applicant against Concord Transportation Inc. (the "Respondent").

FACTS

[2]                 The Applicant, at the material times, owned a transport truck. She hired drivers to operate her truck as she did not drive it herself. Mr. Steve Love was hired by the Applicant in May 1996, as a junior driver. The Applicant provided driver's training to Mr. Love and employed him as part of a team with Mr. Allan Kent, a senior driver.

[3]                 The Respondent is a trucking company that provides transportation services throughout Canada and the United States. It is a federally regulated company.

[4]                 In June 1997, the Applicant sought a contract with the Respondent for her team of drivers, that is Mr. Love and Mr. Kent. Together with her drivers, she attended a meeting with the senior recruitment officer for the Respondent, a person known as "D.J.", and the junior recruitment officer, Ballinda Van. The Applicant says that during this meeting, D.J. advised her that Steve Love lacked the necessary mountain driving experience. The Applicant says that Mr. Love was rejected as her team driver. Shortly afterwards, Mr. Love left his employment with the Applicant and went to work with another transport company. In August, 1997, the Applicant signed a contract with the Respondent for the employment of her truck with Mr. Kent, the senior driver, operating alone.

[5]                 Mr. Love was hired by the Respondent in May 1998, to work as a team driver for a Mr. Judd. Mr. Judd, like the Applicant, owns his own truck but does not drive it himself. The Applicant learned about this in May 1998. She then made inquiries to find out if Mr. Love had gained what she described as the "required mountain experience" since leaving her employ. By October 1998, she found out that he had not. She then contacted the Commission. According to the Applicant, she "felt" that she had been denied a team contract with the Respondent as the result of sexual discrimination. She said that the Respondent did not hire Mr. Love because he was employed with a female truck owner.

[6]                 The Applicant initially contacted the Commission by telephone on or about October 24, 1998. She requested the materials necessary to file a complaint. She received the materials on or about November 12, 1998 and returned the completed forms on or about November 27, 1998. In April 1999, the Applicant received a response from the Commission, advising that it could not assist her. The text of that letter provides, in part, as follows:

Thank you for your letter of November 27, 1998, alleging that you have been discriminated against by Concord Transport and indicating that you wish to file a complaint with the Canadian Human Rights Commission.

I have carefully reviewed your correspondence and must advise you that the Commission cannot offer you assistance in this matter. Under the Canadian Human Rights Act, the Commission investigates allegations of discrimination in employment and in the provision of services in federal areas, on the following grounds: disability, age, religion, race, colour, national or ethnic origin, sex, sexual orientation, marital status, family status and pardoned conviction. Individuals such as yourself may find themselves subject to what they believe to be unfair treatment. However, unless that treatment is related to one of the grounds listed above, it would not constitute discrimination under our Act.

Thank you for advising us of your concerns. I regret that my response cannot be more positive.

[7]                 The Applicant wrote to the Ombudsman for Ontario on November 17, 1999, requesting assistance because she did not understand why the Commission could not assist her. A reply from the Ontario Ombudsman by letter dated December 13, 1999 suggested that she contact the Ontario Human Rights Commission.

[8]                 The Applicant did contact the Ontario Human Rights Commission and by letter dated January 6, 2000, was advised that the complaint may more appropriately be dealt with by the Canadian Human Rights Commission since it related to a federally regulated corporation.

[9]                 The Applicant then contacted her local member of Parliament for assistance in dealing with the Commission. On or about March 24, 2000, the Applicant received a complaint form from the Commission. She returned that form on or about March 29, 2000. She received more complaint forms from the Commission and returned the final completed form on or about May 24.

[10]            The Commission forwarded a copy of the Applicant's complaint to the Respondent. In his affidavit filed in the present proceeding, Mr. Michael Noble, Director of Human Resources for Unique Personnel Services Inc., deposed that he forwarded the complaint to the solicitor for Unique, on or about August 9, 2000. Unique Personnel Services Inc. provided personnel and human resource services for the Respondent. On or about September 7, 2000, counsel for Unique wrote to the Commission, requesting that the Commission exercise its discretion not to deal with the complaint on the basis of section 41 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"). The Respondent raised the issue of the timeliness of the Applicant's complaint and the prejudice that it would suffer if required to respond with allegations relating to an alleged act of discrimination that had occurred in 1997.

[11]            The Respondent received an undated letter from Mr. Pierre Boileau, Manager, Complaints and Investigation with the Commission on September 25, 2000 informing it that an investigator had been named to investigate the Applicant's complaint. Mr. Boileau advised that although the alleged discriminatory act had occurred more than one year before the Commission received the complaint, the Commission intended to proceed with the complaint. However, the Respondent was invited to make submissions on the issue of prejudice.

[12]            The Respondent replied to this letter by letter dated November 6, 2000 and provided answers to the specific questions raised in the correspondence from the Commission. The Respondent repeated its position that allowing the complaint to proceed would be prejudicial to it. Among other things, it stated that some witnesses were unavailable since the persons involved in the interview with the Applicant and Mr. Love were no longer employed by the Respondent. Furthermore, the Respondent said that it would be prejudiced if required to investigate an event that had occurred more than three years before:

...

Question:              Are witnesses still available? If not, why?

Answer: No. The employees who were involved in the decision to hire Steve Love are no longer employed by Concord Transportation Inc.

Question:              What efforts have been made to find witnesses?

Answer: Efforts have not been made to find these former employees to date.

Question:              What harm could be caused by the delay? Explain in details.

Answer: We reiterate on behalf of our client that to allow the Complaint to proceed at this stage would require our client to launch an investigation to look into allegations relating to incidents that occurred more than three years ago. Our client cannot help but be prejudiced by the Complainants' delay in filing the Complaint.

You have also asked for additional information concerning the merits of Ms. Price's Complaint. Our client relies on the particulars set out in our firm's correspondence dated September 7, 2000, in addition to the documentary evidence already provided to the Commission. We advise that Concord Transportation Inc. does not have specific policies addressing the composition of driving teams and, in particular, whether team members of opposite sex are allowed. We reiterate, however, that our client currently engages three female owner/operators and approximately eighteen (18) husband and wife owner/operator teams. Our client also employs female drivers through Unique Personnel Services Inc., a placement agency.

...

[13]            By a further undated letter received by counsel for the Respondent on or about January 15, 2001, the Commission forwarded a copy of the Investigation Report. The Report recommended that the Commission not deal with the complaint. The Respondent was given the opportunity to comment on the Report if it wished to do so.

[14]            By further undated correspondence sent by facsimile on January 31, 2001, the Commission provided the Respondent with a copy of the Applicant's submissions concerning the Investigation Report. The Respondent was given the opportunity to respond to the Applicant's comments, and did so in a letter dated March 6, 2001. The Applicant, in her reply to the Investigation Report, purported to amend her original complaint form by alleging that the discriminatory act occurred in May 1998. In the original complaint, the Applicant alleged that the act of discrimination occurred on August 11, 1997 and was ongoing. In her reply, the Applicant commented on the various headings in the Investigation Report and disputed the recommendation that the Commission not deal with the complaint on the basis of prejudice to the Respondent.

[15]            In its response to these further submissions by the Applicant, the Respondent disputed the Applicant's contention that the alleged discriminatory act occurred in May 1998 and said that the date for the alleged discrimination was August 1997. Further, the Respondent argued that there was no evidence to show that any discrimination on the basis of sex occurred at that time when Steve Love was rejected as a driver by the Respondent. The Respondent maintained its position that the Commission should not proceed further with the Applicant's complaint.

[16]            By letter dated May 9, 2001, the Commission advised the Applicant that it had decided, pursuant to section 41(1) of the Act, not to deal with the complaint. That letter read as follows:

I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint against Concord Transportation Inc. (20000186).

Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 41(1) of the Canadian Human Rights Act, not to deal with the complaint because:

the alleged discriminatory act took place in June 1997 but the complainant did not contact the Commission until October 1998 even though she was aware of all the information in the complaint form in May 1998; and

the respondent would be prejudiced by the complainant's delay in filing the complaint due to lack of documentation and the possible failure of witnesses to recall the events in question.

The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaint very carefully before arriving at this decision.

For your information, either party to a complaint can ask the Federal Court, Trial Division, to review a Commission decision under section 18.1 of the Federal Court Act. The application to the Court must normally be filed within 30 days of receipt of the Commission's decision.

[Italics in original]

[17]            The Applicant now seeks an order to set aside the Commission's decision and to require it to deal with her complaint.

APPLICANT'S SUBMISSIONS

[18]            The Applicant focuses on two issues: first, she argues that the decision not to deal with her complaint involves a determination whether the Commission properly acted within its jurisdiction. The Applicant refers to and relies on section 41(1) of the Act which requires the Commission to deal "with any complaint filed with it", subject to the exceptions provided in the Act. The Applicant argues that the decision not to deal with her complaint necessarily leads to an inquiry of whether the Commission erroneously failed to exercise its jurisdiction.

[19]            The Applicant submits that a decision that raises a jurisdictional question involves a question of law and is reviewable on the standard of correctness. In this regard, she relies on Slattery v. Canada (Canadian Human Rights Commission) (1994), 81 F.T.R. 1.

[20]            The Applicant argues that the Commission must comply with the rules of procedural fairness in carrying out an investigation and considering the complaint pursuant to section 44 of the Act. She says that the Commission failed to inquire into all the relevant circumstances in her case, and this failure amounts to an error affecting the jurisdiction of the Commission: see Canada (Attorney General) v. Canadian Human Rights Commission (1993), 60 F.T.R. 142.

[21]            The Applicant also questions the manner in which the Commission dealt with the time limitation for the filing of a complaint, that is one year after the occurrence of the alleged discriminatory act. The Applicant relies on the "discoverability" rule to argue that she could not reasonably have known about the discriminatory act against her until May 1998 when she learned that Mr. Love had been hired by the Respondent. The Applicant says that Mr. Love was hired with no more mountain experience than he had the previous year.

[22]            The Applicant argues that the judge-made discoverability rule applies to extend the limitation period that would otherwise bar a cause of action. She relies on Peixeiro v. Haberman, [1997] 3 S.C.R. 549 and S.D. v. Scoles (2001), 10 C.P.C. (5^th) 285 (Ont. S.C.J.).

RESPONDENT'S SUBMISSIONS

[23]            First, the Respondent alleges that the Applicant has improperly introduced evidence in this application for judicial review that was not before the Commission. The Respondent refers to paragraphs 5, 6, 34 and 35 of the Applicant's affidavit filed in this proceeding. It says that these portions of their paragraphs should be struck out since it is well-established that only the evidence that was before the decision maker should appear on the record for the purposes of judicial review.

[24]            As for the substantive argument, the Respondent focuses on the issue of the standard of review that should apply to the Commission's decision. It submits that in this case, where the Commission made a finding of fact concerning the date of the alleged discrimination, its decision should be reviewed on the standard of reasonableness. On that basis, the Respondent says that the Court should only interfere if the finding of fact made by the Commission that the alleged discrimination occurred in June 1997, cannot be reasonably supported by the evidence.

[25]            The Respondent further argues that the Commission's decision concerning prejudice to it, if the complaint were allowed to proceed, was a finding of fact made in the exercise of its discretion. As such, the reviewing court should consider whether the discretion was exercised in good faith, in accordance with natural justice and procedural fairness, and without regard to irrelevant or extraneous considerations. In this regard, the Respondent relies on Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32 and Holmes v. Canada (Attorney General) (1999), 242 N.R. 148 (F.C.A.).

[26]            The Respondent says that where a complaint is filed more than one year after the occurrence of the alleged discriminatory act, the Commission must hold a "hearing" and exercise its discretion to decide whether the complaint should continue to an inquiry. The Commission is required to provide an opportunity to the employer to make submissions on why this complaint should not proceed further. Upon receipt of submissions from the employer and considering all the evidence before it, the Commission is to decide, in the exercise of its discretion, whether the complaint will proceed further: see Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1993), 60 F.T.R. 142.

[27]            The Respondent also submits that no breach of procedural fairness arose from the failure of the Commission to disclose its submissions, in response to the Investigation Report, to the Applicant. Relying on Cape Breton Development Corp., supra, the Respondent says that procedural fairness does not require cross-disclosure of the submissions before exercising its discretion under section 41(1) or section 44(3) of the Act. In any event, the Respondent argues that the Applicant was aware that the timeline of her complaint was an issue since this was identified in the initial Investigation Report as an issue.

[28]            The Respondent submits that the decision of the Commission is reasonably supported by the evidence and was made in accordance with the principles of natural justice, including procedural fairness, and that this application should be dismissed. Alternatively, if the Court finds that a reviewable error has been committed by the Commission, the Respondent says that the matter should be remitted to the Commission for further investigation and consideration of the grounds raised by the Respondent in its submissions objecting to further dealing with the complaint.

THE COMMISSION'S SUBMISSIONS

[29]            The Commission argues that section 41(1)(e) of the Act grants a broad discretion in deciding whether to deal with a complaint when more than a year has passed from the occurrence of an alleged discriminatory act. The Commission submits that the standard of review for such a discretionary decision is patent unreasonableness. In this regard, the Commission relies on Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 at 136-137 (C.A.); application for leave to appeal to S.C.C. dismissed, [1999] S.C.C.A. No. 1 (QL).

[30]            The Commission argues that the discretionary nature of a decision made pursuant to section 41(1)(e) has been confirmed by this Court in Cape Breton Development Corp., supra, Canada (Attorney General) v. Burnell (1997), 131 F.T.R. 146 and International Longshore and Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.).

ANALYSIS

[31]            The decision here in issue was made by the Commission pursuant to section 41(1)(e) of the Act. That section provides as follows:

[32]            The purpose of the Act is to prevent discrimination on the basis of certain grounds and in particular circumstances. The purpose is set out in section 2 of the Act as follows:

[33]            In the present case, the Applicant filed a complaint with the Commission, alleging that she had been treated in a discriminatory manner by the Respondent in the context of employment, resulting from the failure of the Respondent to employ her junior driver, Mr. Love, because he was driving a truck owned by a woman, that is, the Applicant. According to the material provided by the Applicant to the Commission, the alleged discriminatory act occurred in June 1997, but she did not contact the Commission until October 1998.

[34]            The Commission decided not to further deal with the complaint, pursuant to section 41(1)(e) of the Act. It stated two reasons for its decision: first, the delay by the Applicant in filing her complaint and second, the prejudice resulting to the Respondent due to lack of documentation and possible impairment of witnesses' memories.

[35]            The issue arising in this case is whether the Commission committed a reviewable error in making its decision. This leads to consideration of the applicable standard of review. In Cape Breton Development Corp., supra, the Court characterized a decision made under section 41(1)(e) of the Act as a discretionary administrative decision and said as follows at paragraph 15:

It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions. Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose.

[Footnotes omitted]

[36]            As held in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and more recently in Law Society of New Brunswick v. Ryan (2003), 223 D.L.R.(4th) 577 (S.C.C.) and Dr. Q v. College of Physicians and Surgeons of British Columbia (2003), 223 D.L.R. (4th) 599 (S.C.C.), the Court must engage in the well-established pragmatic and functional analysis to determine the appropriate standard of review when judicially reviewing the decision of an administrative tribunal.

[37]            In this case, the purpose of the legislative scheme of the Act as a whole is to prevent discrimination and provide redress when it does occur. However, the Act recognizes, through several provisions which provide certain screening functions, that this purpose must be applied with certain limitations on which complaints will proceed to the Tribunal stage. Particular to the present situation, section 41(1)(e) reflects the concern that complaints are to be brought forward in a timely manner.

[38]            The general function of a time limitation period in any piece of legislation relates to gathering credible evidence, the concept of certainty for defendants and due diligence on the part of plaintiffs. Parliament recognized that including such a time limitation was an important aspect of furthering expediency in the complaint process and fairness to the party responding to a charge of discrimination. Further, section 41(1)(e) recognizes that a black-and-white time bar would not be appropriate. The Commission's fact finding expertise is fairly and appropriately put to work by the added discretion to extend such time limitation if the Commission considers it "appropriate in the circumstances".

[39]            There is no privative clause in the Act. The purpose that a section 41(1) decision plays in the entire legislative scheme must be kept in mind, that is to act as a screening function, to prevent claims that, for various, enumerated reasons, should not be permitted to go forward. The nature of the decision under review points to a more deferential standard of review.

[40]            Further, the discretionary statutory language of the Act, in section 41 and other sections which enable the Commission to perform its screening function, was the subject of comment by the Federal Court of Appeal in Bell Canada, supra at paragraph 38:

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out... [in subsections 44(2), 44(3)(a) and 44(3)(b)] involve in varying degrees questions of fact, law and opinion..., but it may safely be said as a general rule that Parliament did not want the courts atthis stage to intervene lightly in the decisions of the Commission.

[41]            Finally, the expertise of the Commission in respect to fact finding is well-established in the jurisprudence: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. The determination under section 41(1)(e) falls squarely within such expertise. Deference is also warranted on this ground.

[42]            Therefore, after applying the pragmatic and functional analysis, 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.

[43]            The key factor in the Commission's decision here is its finding that the alleged discriminatory act occurred in June 1997 and not at some later date as suggested by the Applicant. The Applicant argues that she was not aware of the subsequent hiring of Mr. Love by the Respondent until May 1998. She also suggests that the date of the alleged discrimination was August 1997 when she signed the contract with the Respondent for the employment of her truck with one driver.

[44]            In my opinion, the Commission's conclusion as to the date of the alleged discriminatory act was reasonably supported by the evidence before it, including the Investigation Report and the submissions made by both parties. There is no evidence, on the record that the Commission acted in the absence of good faith, without regard to procedural fairness or relied on improper or irrelevant considerations.

[45]            I do not accept the Applicant's argument that the Commission breached its duty of procedural fairness by providing the Respondent with a copy of her submissions on the Investigation Report without providing her with a copy of the Respondent's comments on that Report.

[46]            Again I refer to Cape Breton Development Corp., supra, where the Court dealt with the issue of whether cross-disclosure between the parties of such submissions is required. At paragraph 32, the Court said as follows:

When each of the parties was advised of the "Section 40/41 Analysis" report and of the recommendation to be made to the Commission, and was invited to comment, each was also advised that the written comments of both parties would be submitted to the Commission. In relation to the preliminary decision here in question that process, and the subsequent submission of the comments of both to the Commission, satisfied requirements of procedural fairness, without any necessity of cross-disclosure of submissions of one party to the other before the decision was made.

[47]            In the present case, the Respondent raised no new matters in its reply submissions. The question of the timeliness of the Applicant's complaint was always an issue, whether or not it was raised by the Respondent. The Act provides that a complaint concerning alleged discrimination on a prohibited ground is to be filed within twelve months of the event in question, unless the Commission in its discretion decides otherwise. This limitation is provided in section 41(1)(e). The Applicant knew, or ought to have known, that she was to file her complaint within one year of the alleged discriminatory act. She was in control of initiating a complaint and she characterized the Respondent's refusal to hire Mr. Love in June 1997, as a junior driver on her truck, as a discriminatory act based on sex, that is her status as a female owner of a truck.

[48]            If this refusal was indeed an act of discrimination on the basis of sex, it occurred in June 1997 and not at a later date when Mr. Love was hired by the Respondent, independent of any employment relationship between Mr. Love and the Applicant. The Commission did not address the merits of the Applicant's complaint. In light of its finding on the timeliness of that complaint, it was unnecessary to go into its merits. In dealing with the preliminary issue of timeliness, the Commission was complying with its obligation to decide whether a complaint should be subject to further action, that is an inquiry.

[49]            In the facts of the present case, where the issue of timeliness was apparent on the face of the Applicant's complaint, the Commission did not breach the duty of procedural fairness by disclosing the Applicant's submissions on the Investigation Report to the Respondent without providing the Applicant with the Respondent's reply.

[50]            In my opinion, there is no basis for interfering with the decision of the Commission to decline further inquiry into the Applicant's complaint. Such decision was not patently unreasonable. It is unnecessary to address the Respondent's arguments concerning the alleged introduction of further facts by the Applicant in her affidavit filed in this proceeding.

[51]            The application for judicial review is dismissed with costs to the Respondent. In the exercise of my discretion, I make no order as to costs in favour of the Commission.

                                                  ORDER

The application for judicial review is dismissed with costs to the Respondent. In the exercise of my discretion, I make no order as to costs in favour of the Commission.

                                                                                           "E. Heneghan"

                                                                                                     J.F.C.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1010-01

STYLE OF CAUSE: WENDY PRICE

v. CONCORD TRANSPORTATION INC. ET AL

PLACE OF HEARING:                                   TORONTO

DATE OF HEARING:                                     JANUARY 28, 2003

REASONS FOR ORDER

AND ORDER:          HONOURABLE MADAM JUSTICE HENEGHAN

DATED:                      August 1, 2003

APPEARANCES:

Kelly Aitchison                                                     FOR APPLICANT

Susan Crawford                                                   FOR RESPONDENT

Philippe Dufrense                                                  FOR INTERVENER

SOLICITORS OF RECORD:

Kelly Aitchison                                                     FOR APPLICANT

AITCHISON LAW OFFICE

Oshawa Centre Box 30628

Oshawa Centre Office Galleria

419 King Street West, Suite 185

Oshawa, ON

L1J 8L8

                                                        - 2

Susan Crawford                                                   FOR RESPONDENT

CRAWFORD CHONDON & ANDREE

197 County Court Boulevard, Suite 304

Brampton, ON

L6W 4P6

Philippe Dufrense                                                  FOR INTERVENER

Canadian Human Rights Commission

344 Slater Street         

Canada Building

Ottawa, ON

K1A 1E1