Date: 20050323

Docket: T-1097-04

Citation: 2005 FC 401

Ottawa, Ontario, March 23, 2005

PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

BETWEEN:

PUBLIC SERVICE ALLIANCE OF CANADA

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of the Canadian Human Rights Commission (the Commission) dismissing the applicant's complaint (No. 200394). In this complaint, it is alleged that the respondent engaged in discriminatory practices when it transferred federal government employees, who were paid discriminatory wages contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), without granting them adequate compensation. The Commission ruled that the complaint was barred by paragraph 41(1)(e) of the Act, since the acts or omissions on which the complaint was based occurred more than one year before receipt of the complaint.

[2]                 The applicant argues that the Commission erred in law in deciding not to deal with the complaint on the merits without providing sufficient reasons, as required by the Act.

[3]                 At issue is whether the Commission breached its duty of procedural fairness and its duty under subsection 42(1) to set out the reasons for its decision in writing.

[4]                 Subsection 42(1) of the Act provides as follows:

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.

[5]                 Although the applicant argues that the applicable standard of review in this case is reasonableness simpliciter, I am of the view that there is no need to conduct a pragmatic and functional analysis, since the issue in this case is one of procedural fairness, which does not require me to rule on the correctness of the decision.

[6]                 As I explained in Marchand Syndics Inc. v. Canada (Superintendent of Bankruptcies), [2004] F.C.J. No. 1926, the judicial review of an administrative decision and the evaluation of procedural fairness are different exercises: "The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations" (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 102).

[7]                 Consequently, the issue of procedural fairness "requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation": Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraph 74.

The Duty to Provide Sufficient Reasons

[8]                 The applicant argues that the Commission breached its duty to give reasons for its decision, because the Commission merely repeated the wording of the provision upon which it based its decision, namely, paragraph 41(1)(e), without explaining the reasons why it decided not to exercise its discretion to extend the allowed time limit.

[9]                 The respondent submits that the reasons are sufficient, because the Commission indicated that it had read the investigator's report and the representations filed by the parties subsequent to that report. It would appear the Commission was following the investigator's analysis and recommendations when it decided not to exercise its discretion to extend the time limit.

[10]            I acknowledge that in Hardman v. Atomic Energy of Canada Ltd., [1997] F.C.J. No. 477 (QL), this Court ruled that in cases where the Commission has endorsed the investigator's analysis and recommendations, the investigator's report provides sufficient notice of the reasons for dismissing the complaint.

[11]            However, in the case at bar, there are no references in the decision to the factors taken into consideration. The fact that the Commission read the investigator's report does not mean that the Commission endorsed it.

[12]            In a recent case, Kidd v. Greater Toronto Airports Authority, [2004] F.C.J. No. 859, (aff'd [2005] F.C.J. No. 377 (F.C.A.)), Mosley J., after conducting an exhaustive review of the case law, ruled that paraphrasing the Act is not enough to meet the obligation to give sufficient reasons. It is true that the case at bar can be distinguished from Kidd, supra, in that the Commission did not follow the investigator's recommendation in the latter case, unlike in the present one. Nevertheless, in the case at bar, the Commission did not at least mention in its reasons that it was endorsing the investigator's report.

[13]            In my view, there is nothing in the reasons disclosing the Commission's rationale for not exercising its discretion to accept the complaint after the prescribed time limit. Therefore, the decision does not provide sufficient reasons to comply with the rules of procedural fairness.

[14]            For these reasons, the application for judicial review is allowed. The decision of the Commission is set aside, and the matter is referred to the Commission for reconsideration in accordance with these reasons, with costs.

ORDER

THE COURT ORDERS that the application for judicial review be allowed. The decision of the Commission is set aside, and the matter is referred to the Commission for reconsideration in accordance with these reasons, with costs.

        "Danièle Tremblay-Lamer"

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1097-04

STYLE OF CAUSE:                       PUBLIC SERVICE ALLIANCE OF CANADA

                                                          

                                                            and

                                                           ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                  Ottawa, Ontario

DATE OF HEARING:                     March 2, 2005

REASONS FOR ORDER BY:      The Honourable Madam Justice Danièle Tremblay-Lamer

DATED:                                            March 23, 2005

APPEARANCES:

David Yazbeck

James Cameron                                                        FOR THE APPLICANT

                                                                                    Marie-Josée Montreuil          FOR THE RESPONDENT

SOLICITORS OF RECORD:

                                                                              Raven, Allen, Cameron, Ballantyne       

                                                                              & Yazbeck

                                                                              Ottawa, Ontario    FOR THE APPLICANT(S)

                                                                              John H. Sims, Q.C.

                                                                              Deputy Attorney General of Canada

                                                                              Ottawa, Ontario    FOR THE RESPONDENT(S)