Horn v. Canada (Attorney General), 2005 FC 726

Date: 20050519

Docket: T-258-04

Citation: 2005 FC 726

Vancouver, British Columbia, Thursday, the 19^th day of May, 2005

Present:           THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

                                             BRYAN R. HORN and KIM NELSON

                                                                                                                                           Applicants

                                                                         - 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" or "CHRC") dated December 16, 2003, in which the Commission dismissed Mr. Bryan Horn and Ms. Kim Nelson's (the "applicants") age discrimination complaints against Human Resources Development Canada ("HRDC").

RELEVANT FACTS

[2]                The 42 year-old male applicant was a full-time student in the province of British Columbia from September 2001 until April 2003. During the summer of 2002, the male applicant claims to have been unable to find a job, as most vacancies were funded by HRDC under their Summer Career Placement ("SCP") Program which required that applicants be students between the ages of 15 and 30.

[3]                On July 26, 2002, the male applicant made a formal complaint to the Commission, which responded that the SCP Program was part of the Youth Employment Strategy ("YES") Program aimed specifically at those between the ages of 15 and 30 and, as such, was considered a "special program" under subsection 16(1) of the Canadian Human Rights Act, RS 1985, c. H-6 ("CHRA" or the "Act"). The male applicant sent a rebuttal to the Commission's letter stating that the goals of the SCP Program should be aimed at helping all students and not only those between the ages of 15 and 30.

[4]                On April 29, 2003, the 39 year-old female applicant joined the male applicant's claim. The female applicant had applied and been accepted for a position with the New Frontiers Society in British Columbia. However, before her start date, the Program Director of the New Frontiers Society called to inform her that HRDC would only fund the position if the student hired was between the ages of 15 and 30 and that he would therefore not be able to employ her.

[5]                On July 28, 2003, an Investigation Report was sent out by the Commission recommending that that case be dismissed as HRDC was carrying out a special program within the meaning of subsection 16(1) of the Act. On October 5, 2003, the applicants sent a follow-up letter to the Commission, which they re-sent on October 16, 2003, with certain modifications. The applicants claim that the Commission never took into consideration their October 16, 2003 letter as it was not included in the materials sent before the Commission. The applicants claim that the October 16, 2003 letter best represents and conveys their position in the case, and therefore, have not included the October 5, 2003 letter in the materials before this Court.

[6]                On December 16, 2003, after reviewing all of the material before it, the Commission decided that pursuant to paragraph 44(3)(b) of the Act, it would dismiss the complaint because the respondent was carrying out a special program within the meaning of subsection 16(1) of the Act.

ISSUES

[7]                Did the Commission err in finding that the Summer Career Placement (SCP) Program fell within the "special program" category under subsection 16(1) of the Act?

ANALYSIS

[8]                The issue before this Court is to determine whether the Canadian Human Rights Commission ("CHRC") erred in its decision to dismiss the applicants' complaints pursuant to subparagraph 44(3)(b)(i) of the CHRA because it found that the SCP Program was exempt under subsection 16(1) of the CHRA.

[9]                The review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court. In cases where there is no breach of the principles of natural justice or other procedural unfairness, the applicable standard of review of the CHRC's decision not to refer the complaint to the Canadian Human Rights Tribunal is one of patent unreasonableness:

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 for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. (Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 [1998] F.C.J. No. 1609 (C.A.) at paragraph 38)[my emphasis]

We can agree that the investigation and the report have some shortcomings and that it is unacceptable that the investigation and report took four years to complete. Nonetheless, we are not satisfied that the investigation was so defective as to constitute a breach of the duty of fairness (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), or that it was patently unreasonable for the Commission to have dismissed the complaint on the basis of the material before it. (Murray v. Canada (Canadian Human Rights Commission), [2003] F.C.A. 222 at paragraph 4) [my emphasis]

[10]            The high threshold does not apply to cases where procedural fairness has not been met, or where there has been a breach of natural justice. However, I do not find this is the case; the applicants were provided with a copy of the Investigation Report and were given the opportunity to respond to those findings. Furthermore, the applicants also received consent from the respondents on more than one occasion to extend deadlines and allow amended documents to be filed. Finally, the only discrepancy raised by the applicants was that the revised version of their October 5, 2003 letter was not placed before the Commission and therefore not taken into consideration. In fact, the applicant admitted before the Court that he discussed the matters raised in his October 16, 2003 letter with Ms. Lelièvre on the phone, which is evidence that the letter was taken into consideration.

[11]            Subsection 16(1) of the Act allows for the creation of special programs which are not discriminatory if they are designed to eliminate or reduce a disadvantage suffered by a group of individuals by improving employment in relation to that group.

[12]            The SCP Program which the applicants claim is age discriminatory, is part of a larger HRDC wage subsidy program (YES) which is itself a special program as is admitted by the applicants. The YES Program attempts to reduce and eliminate disadvantages suffered by young people with respect to their employability by improving employment opportunities for that group.

[13]            As is stated in subsection 16(1) of the Act, and as was mentioned by Justice Rothstein at paragraph 59 of the Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198, [1997] F.C.J. No. 1481 (T.D.) case:

Assuming, without deciding, that the social assistance program is the type of program contemplated by subsection 16(1) of the Canadian Human Rights Act, the exclusion of a person or group from eligibility under such a program will usually be discriminatory if that person or group falls within the larger group that the program was designed to benefit and the exclusion is not rationally related to the program's objectives (see: Ardoch Algonquin First Nation v. Ontario (1997), 148 D.L.R. (4th) 126 (Ont. C.A.), at pages 145-148; Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387 (C.A.) (the Roberts case), at pages 428-429, per Houlden J.A., and at pages 406-407, per Weiler J.A.). [my emphasis]

[14]            The applicants claim that HRDC describes the SCP as a wage-subsidy program directed toward full-time students who are returning to school in the next fall. Specifically, it states that its purpose is to assist students in preparing for their future entry into the labour market through career-related employment activities, to create incremental jobs, and to provide students with income to allow them to pursue further education. As such, the applicants claim that they meet all the eligibility criteria of being students but were rejected because they were not between the ages of 15 and 30.

[15]            The respondent submitted extensive amounts of proof indicating why it was that a program like YES needed to be implemented in Canada. Among the reasons provided, I note that:

·                Between 1989 and 1993, the youth labour force participation rate fell a full 7% to 64% in just four years.

·                Younger youth were abandoning the labour market because of competition from older more experienced youth.

·                Youth employment is more sensitive to economic cycles than the adult rate, rising more during recessions because youth are typically the last hired and the first fired.

·                Employers were placing a greater premium on experience than before and lack of experience was the fundamental reason why youth were at a disadvantage in the labour market compared to adults.

·                The number of 15 to 24 year olds without work experience grew from 9.7% in 1989 to 19.9 percent in 1996.

[16]            It is clear to me that by its very name, the YES Program is aimed at young people, to help them get the information and gain the skills, work experience and abilities they need to make a successful transition to the workplace. The SCP Program falls under the heading of the YES as an attempt to implement YES in a specified time period in which students will have free time, namely, the summer months. As such, the evidence shows that the SCP Program, as a part of the larger YES Program, is designed to prevent, reduce and eliminate a disadvantage suffered by young people with respect to employment by improving employment opportunities. I find that there was evidence demonstrating that those between the ages of 15 and 30 years are disproportionately unemployed, and that their lack of experience is a significant factor in their unemployment. Therefore, the SCP meets the "special program" criteria of subsection 16(1) of the Act and is not discriminatory towards the applicants.

[17]            The applicants also argue that the statistics used by HRDC to support their assertions that youth are disadvantaged are outdated, as they range from 1977 to 1997. However, that argument was specifically addressed at paragraph 29 of the Investigator's Report:

Following the complainant's comment to the effect that the respondent provided outdated statistics to support its case, the investigator obtained recent statistics related to [the] labour force from Statistics Canada. This department compiles monthly surveys providing a detailed and current picture of the labour market across the country. According [to] the December 2002 Labour Survey, which gives an overview of the month as well as the 2002 year as a whole, employment rose 3.7%, the highest annual growth rate since 1987. Youths, adult women and adult men all benefited from this "strong labour market." In December 2002, the unemployment rate was 6.1% among adult women and 6.7% among adult men. In comparison, youth unemployment was 13.3% by the end of the year, being twice the rate of adult. (See page 6, paragraph 29 of the Investigator's Report dated July 28, 2003)

[18]            In addition to the updated report provided in the Investigator's Report, it should also be noted that the applicants themselves stated that they do not contest any of the 1982 to 1996 statistics provided in the report. I do not find that any error exists in the Commission's evaluation of the statistical data provided, the Commission having based itself on data collected over a span of 20 years, supplemented with the most recent statistics available to it at that time (December 2002 yearly statistics).

[19]            The male applicant also discussed his alleged disability with regards to an ongoing problem with his knee, as well as the financial hardships he suffered because he could not find a job at the time.

[20]            Even though one can understand these difficulties, these facts are not relevant to this judicial review application.

[21]            I have only to determine whether the Commission erred in dismissing the applicants' claims. In light of what I have mentioned above, I find that no error was made in the actions of the Commission, and therefore dismiss this application.

                                               ORDER

THIS COURT ORDERS that :

The application for judicial review be dismissed.

(Sgd.) "Pierre Blais"

Judge

APPLICABLE LEGISLATION

Canadian Human Rights Act, R.S.C. 1985, c. H-6

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-258-04

STYLE OF CAUSE: BRYAN R. HORN AND KIM NELSON

- and -

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   May 17, 2005

REASONS FOR ORDER AND ORDER: BLAIS J.

DATED:                                                          May 19, 2005

APPEARANCES:

Mr. Bryan Horn

Ms. Kim Nelson                                                FOR APPLICANTS

Mr. Malcolm Palmer                                         FOR RESPONDENT

SOLICITORS OF RECORD:

Applicants appeared on their own behalf            FOR APPLICANTS

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT