J.S. v. Brooker, 2005 FC 1510

Date: 20051107

Docket: T-1376-04

Citation: 2005 FC 1510

Ottawa, Ontario, Monday the 7^th day of November, 2005

Present:           THE HONOURABLE MR. JUSTICE CAMPBELL                                  

BETWEEN:

                                                                           J.S.

                                                                                                                                            Applicant

                                                                           and

                                                              PAUL BROOKER

Respondent

and

THE CANADIAN FORCES

Intervenor

REASONS FOR ORDER AND ORDER

[1]                The present Application for judicial review challenges a decision of the Canadian Human Rights Commission ("the Commission") dated June 21, 2004, wherein the Commission decided pursuant to s.41(1)(c) of the Canadian Human Rights Act ("the Act") that the Applicant's complaint is beyond its jurisdiction.

A. Factual background

[2]                The Applicant is a woman who was a civilian member of the Ninja Ryu Jiu-jitsu Club ("the Club") from March 12, 2001 to January 12, 2002. The Club is operated by the Intervenor, the Canadian Armed Forces ("the CAF"), at the Royal Military College in Kingston, Ontario. The Respondent, a Corporal in the CAF, although not required as a condition of his employment to do so, also attended the Club from 2001 to 2002; the Applicant and the Respondent enrolled in the same Jiu-jitsu class at the Club. According to the Respondent's written argument, there are as many as seven hierarchical ranks in Jiu-jitsu; at the relevant time, the Applicant was the holder of a yellow belt, and the Respondent was the holder of an orange belt being one rank above a yellow belt. Both yellow and orange are junior ranks in the hierarchy.

[3]                The Applicant alleges that during the period they were participating in class together, being August 2001 to January 2002, the Respondent engaged in a course of misconduct against her which included repeated derogatory comments against women, and unwelcomed and repeated unwanted sexual touching. As a result, the Applicant laid a complaint, dated January 29, 2003, against the Respondent under the Act which detailed the conduct, and described her relationship with the Respondent in a particular way. The relationship elements of the complaint read as follows:

ALLEGATION

Corporal Paul Brooker (martial arts instructor) discriminated against me on the ground of sex (female), by harassing me, contrary to section 14 of the Canadian Human Rights Act.

[...]

Because of the constant harassment I experienced during training from Brooker, among others at the Club, I had to stop attending the Club.

[Emphasis added]

(Tribunal Record, pp.1-2)

As noted in the complaint, s.14 of the Act is the focus; of particular importance in the present Application is s.14(a):

[4]                After investigating the Applicant's complaint, in a report dated March 11, 2004, a Commission Investigator found as follows:

Jurisdiction

6.             Although not specifically raised by the respondent in this case, there is a jurisdictional issue to be addressed. The complainant and respondent were two students in an after hours, recreational jiu-jitsu class. The sports complex where the jiu-jitsu class was held, is part of the Royal Military College (RMC). Both RMC and the sports complex are situated on Canadian Forces Base (CFB) Kingston. The sports complex is open to the students of RMC, base personnel as well as the general public. The complainant is a member of the general public and is not affiliated with the Canadian Forces. The respondent is a Corporal in the Canadian Forces.

[...]

8.             As fellow students in an after hours, recreational class, there was no provision of services relationship between the complainant and respondent. At issue is whether the employment obligation of the individual respondent, could extend to include the complainant in this context.

[...]

Analysis

[...]

13.           As a [sic] fellow students, the complainant and respondent's relationship does not appear to qualify as either in the provision of services or in an employment related context. As such, it does not appear as though section 14 of the CHRA applies to this individual respondent.

Recommendation

14.           It is recommended, pursuant to section 41(1)(e) of the Canadian Human Rights Act, that the Commission deal with the complaint because:

< the delay in the signing of the complaint form is not attributable to the              complainant.

15.           It is recommended, pursuant to section 41(1)(c) of the Canadian Human Rights Act, that the Commission not deal with the complaint because:

< the complaint is beyond the jurisdiction of the Commission.

(Tribunal Record, pp.4-5)                                                                                      

Prior to being placed before the Commission for a decision under s.14(c), the Investigator's Report was disclosed to the parties, and in response, then Counsel for the Applicant submitted detailed written submissions, dated April 16, 2004, which clearly fleshed out arguments regarding the Respondent's liability under s.14(1)(a) of the Act as follows:

(a)           Cpl. Brooker was involved in the provision of services to Ms. St. Jacques

Cpl. Brooker was a more senior member of the jiu-jitsu class and, throughout the material time, consistently ranked one belt higher than Ms. St. Jacques. Accordingly, Cpl. Brooker held a position of authority at the jiu-jitsu class and was obligated, as part of the traditions and policies of the martial arts, to be involved in the instruction of students who ranked beneath him. Two rules of the dojo (as posted on the class website at the time) are relevant to this point:

"Rule 10:      Always look after your junior and lend a helping hand to those below you in rank and knowledge.

Rule 12:        Obey the instructions of the sensei and senior students" [Emphasis added.]

Accordingly, Cpl. Brooker, as a more senior class member and a higher rank, was involved in the provision of jiu-jitsu training to Ms. St. Jacques and was, therefore involved in the provision of services.

(Tribunal Record, p.7)

An argument was also made with respect to the "employment" finding in the Investigator's Report, but this argument has been abandoned and plays no part in the Applicant's request for relief in the present Application.

[5]                It is agreed that, relevant to the present Application, the only material placed before the Commission for decision was the Applicant's complaint, the Investigator's Report, and the argument submitted by Counsel for the Applicant, as quoted above. On this material, the Commission rendered the following decision:

The Commission also decided, pursuant to subsection 41(1) of the Canadian Human Rights Act, to deal with the complaint (20020968) because:

·               the delay in the signing of the complaint form is not attributable to the complainant.

The Commission further decided, pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act, not [sic] deal with the complaint (20020968) because

·               the complaint is beyond the jurisdiction of the Commission.

[Emphasis added]

(Applicant's Record, p.16)                                    

[6]                It is uncontested that the content of the Commission's decision is the acceptance of the Investigator's analysis and recommendation and rejection of the detailed argument made by Counsel for the Applicant.

B. The issue for determination

[7]                Given the established jurisprudence that the standard of review for decisions made under s.14(c) of the Act is correctness (Public Service Alliance of Canada v. Canada (Attorney General), [2004] F.C.J. No. 2114 (F.C.T.D.) (QL) at para. 13; Slattery v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 1017 (F.C.T.D.) (QL) at para. 37; Zavery v. Canada (Human Resources Development), [2004] F.C.J. No. 1122 (F.C.T.D.) (QL) at paras. 14-15), and since s.14(c) should only be used in a "plain and obvious" case (Canada Post Corporation v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 578 (F.C.T.D.) (QL) at para. 3), it is agreed that the question for determination in the present Application is: Is it correct that it is plain and obvious that the content of the Applicant's complaint is outside the jurisdiction of the Commission?

C. The arguments

[8]                In written argument, both the Respondent and the Intervener support the Commission's decision. The arguments are detailed and multi-faceted, and are important to quote to provide an understanding of the level of objection that both make to a finding that the Commission is not correct in the determination rendered under s.41(c).

[9]                The Respondent's argument is as follows:

34.           The Respondent and Applicant were both students in the class. The Respondent was not an instructor, an "agent of the club" or a person in authority. The Respondent and Applicant clearly had a "private" relationship as fellow users of the facility and not a "public" relationship.

35.           The sole facts alleged for the basis of the Applicant's argument that there was a provision of services is [sic] the alleged existence of two "Club Rules" and "the way training at the Club was customarily provided". It is not alleged that there was actually any instruction that occurred between the parties, which is denied in any event.

36.            One rule indicates that "you should lend a helping hand to those below in rank", a rule which one would hope would be self-evident and redundant in any peaceful and considerate society.

37.           The second rule states to "obey the instructions of senior students". It is submitted that "senior students" in this respect refers to the upper most belt levels, and not to a low ranking belt member who is immediately above a lower belt member.

38.           The Respondent submits that these alleged Rules and traditions, do not, or could not, indicate or amount to a "provision of services" from the Respondent to the Applicant.

(Respondent's Record, pp.12-13)

The Intervener's argument is as follows:

40. The Intervenor concedes that by hosting the Jiu-Jitsu classes, it provided services to the Applicant. The Applicant is free to file a complaint against the Intervenor for allegedly failing to provide a harassment-free environment, and has in fact done so. She has no recourse against the Respondent under the Act.

41. The Intervenor concedes that during club learning and practice sessions, junior belt holders were encouraged to learn technique and safety from senior belt holders. However, a system in which class members were encouraged to assist and learn from each other is not sufficient to render those class members "service providers" and thus bring them within the ambit of the Act.

42. Applying the Applicant's logic, all the members of the Club except perhaps those at the white belt level are service providers to certain other members of the club, but not to others. This approach creates a convoluted, illogical tangle of relationships. Its effect would be for every member of every martial arts club in the country (except, again, those members possessing only white belts) to be deemed a "service provider" towards other members of their clubs. The Intervenor submits that few, if any, prospective martial arts students take this possibility into account when deciding whether to join a club. Those who do not should not be deemed to have assumed a position that was not reasonably within their anticipation.

[...]

46. The Applicant correctly states that provisions such as s.14 of the Act exist to forbid discrimination by enterprises which purport to serve the public. The Respondent, however, is not an "enterprise." The Intervenor does not condone discrimination or harassment in any circumstances, but nor does it agree that harassment by a person in the Respondent's position falls within the ambit of s.14 or within the purview of matters coming within the legislative authority of Parliament, pursuant to section 2 of the Act.

Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 at 52.   

47. Given that the Respondent was neither employed by, an agent of, nor volunteering for the Intervenor, but was merely a fellow service-consuming student, the Act provides the Applicant with no recourse against him. She is free to avail herself of private law remedies or to pursue her complaint against the Intervenor, but this Court should deny her request to overturn the Commission's correct and reasonable decision that it lacked jurisdiction to address the complaint.

(Intervener's Record, pp.131-134)

[10]            In the present Application, in written argument, the Applicant continues to advance the argument placed before the Commission that the Respondent was involved in a provision of services relationship with the Applicant and emphasizes the agreed "plain and obvious" test set out in Canada Post Corporation v. Canada, supra, as the test to be met by the Commission:

55. [...] The Commission should only decline to deal with a complaint where it is "plain and obvious" that it lacks jurisdiction:

"A decision by the Commission under s.41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with a 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."

[...]

58.     What constitutes a "provision of services customarily available to the public" is to be given a full, large and liberal meaning consistent with the quasi-constitutional status of human rights statutes in Canada. In determining what constitutes a "provision of service" one must take a principled approach which looks to the relationship created between the service of facility provider and the service or facility user by the particular service or facility.

[University of British Columbia v. Berg, [1993] 2 S.C.R. 353 (S.C.C.) at 373, 384.]

59.     The Supreme Court of Canada has ruled that although the specific wording in different human rights statutes may vary, it is clear that prohibitions against discrimination in the provision of services aim to achieve the same end which is to forbid discrimination by enterprises which purport to serve the public.

[University of British Columbia v. Berg, supra at 372-373.]

60.    Under the B.C. Human Rights Act, the provision of services has been interpreted to mean "something of benefit provided to one person by another". The Applicant submits that in light of the Supreme Court of Canada's directions on the interpretation of human rights, this interpretation is equally applicable to the provision of services under the Canadian Human Rights Act.

Nixon v. Vancouver Rape Relief Society (No. 2) (2002), 42 C.H.R.R. D/20 (B.C. H.R.T.) at D/31, para. 78 [...]

[...]

70.     The appropriate legal question is whether the structured relationships of authority and obedience in the way training at the Club was customarily provided created a relationship in which the Respondent Brooker was participating in providing a benefit to Ms. S. It is not plain and obvious that the answer to this question is 'no'. Therefore, the Applicant submits that it was an error for the Commission to decline jurisdiction over the complaint against Brooker.

(Applicant's Record, pp.84-89)

[11]            In the course of oral argument, the Applicant advanced a straight forward position: it is debatable as to whether the Applicant's complaint falls within s.14(1)(a), and, therefore, it is not plain and obvious that the substance of the complaint was beyond the Commission's jurisdiction. The Applicant argues that the Investigator failed to grasp the importance of attempting to define the quality of the relationship between the Applicant and the Respondent in making the recommendation to the CHRC. With respect to the Intervener's argument that, to find in favour of the Applicant would produce a ludicrous result, the Applicant's response is that, if the instructor relationship is found to exist, and if it makes the instructor accountable under the Act for his or her conduct as a result, so be it.

D. Conclusion

[12]            I agree with the arguments advanced by the Applicant.

[13]            In my opinion, regardless of the Investigator's analysis of the relationship as superficially one of "two students in an after hours recreational Jiu-jitsu class", the Commission was required to consider the Applicant's complaint with an understanding of the structural functioning of the relationship as addressed in the Applicant's argument made in response to the Investigator's Report. This is an important point because the jurisprudence with respect to the application of s.14(1)(a) requires that the nature of the relationship be found on a principled approach (University of British Columbia v. Berg, supra at 384).

[14]            It is certainly debatable that, according to the Jiu-jitsu rules that the Applicant and Respondent were required to follow, the relationship they shared functioned on the basis of a structural power differential in which the Respondent is capable of making demands on the Applicant, which the Applicant is bound to follow. On this basis, the Commission was required to carefully consider the functioning of the power differential as argued by Counsel for the Applicant in making a determination under s.41(c), and unless it is plain and obvious, that is, not debatable, that the Applicant's complaint does not fall under the "provision of services" element of s.14(1)(a), the complaint should not be rejected at the earliest stage of the process through use of s.41(c). In my opinion, the Commission failed to meet this requirement.

[15]            Therefore, I find that it is not correct that it is plain and obvious that the content of the Applicant's complaint is outside the jurisdiction of the Commission.

E. Costs

[16]            During the course of the oral hearing, Counsel for the Applicant and the Intervenor presented argument on costs. In the result, it was argued that, if the Respondent succeeds, the Applicant should pay the party and party costs of the Respondent and the Intervener, and if the Applicant succeeds, the Respondent and the Intervenor should be jointly liable to pay the costs of the Applicant.

[17]            On the issue of liability for costs, I find it is an important factor that the Intervener, having been granted its request to intervene with full party status, has substantially carried the defence to the Applicant's attack on the Commission's decision. As a result, I understand that, apart from filing a response to the Application and providing a brief written argument, the Respondent has not taken an active part in the course of events leading to the hearing of the present Application. It is agreed that the Respondent recently returned from duty with the CAF in Afghanistan, and is presently unrepresented by Counsel.

[18]            Given these factors, in my opinion, it is fair and just that only the Intervenor bear the costs of the Applicant's success in the present Application.

                       ORDER

For the reasons provided, I set aside the Commission's decision of June 21, 2004, and refer the matter back to the Commission for redetermination in accordance with the reasons provided.

I award costs to the Applicant against the Intervener in Column III, of Tariff B.

"Douglas R. Campbell"

                                                                                                   Judge                         

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                          T-1376-04

STYLE OF CAUSE:                                      J.S. v. PAUL BROOKER ET AL.

DATE OF HEARING:                      NOVEMBER 2, 2005

PLACE OF HEARING:                    TORONTO, ONTARIO.

REASONS FOR ORDER

AND ORDER BY:                                         CAMPBELL, J     

DATED:                                                          NOVEMBER 7, 2005

APPEARANCES BY:

Mary Cornish                                                                            FOR THE APPLICANT

Lois Lehman

Amy Porteous                                                                           FOR THE INTERVENOR

SOLICITORS OF RECORD:   

Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

Toronto, Ontario                                                                      FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                          FOR THE INTERVENOR         

FEDERAL COURT

Date: 20051107

Docket: T-1376-04

BETWEEN:

J.S.

Applicant

and

PAUL BROOKER (THE CANADIAN FORCES)

Respondent