Date: 20041015
Docket: T-88-03
Citation: 2004 FC 1413
Ottawa, Ontario this 15th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
KLEYSEN TRANSPORT LTD.
Applicant
and
COLIN HUNTER
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
AMENDED (December 2, 2004)
[1] Mr. Colin Hunter began working for Kleysen Transport Ltd. in June 1998, first as a welder, then as a trailer mechanic. Kleysen let him go about six months later. Mr. Hunter complained to the Canadian Human Rights Commission that Kleysen had discriminated against him on the grounds of disability and family status. The Commission made a number of decisions relating to Mr. Hunter's file over the ensuing three years and ultimately referred it to a tribunal for a full hearing. Kleysen argues that the Commission acted beyond its jurisdiction, behaved unfairly and displayed bias in its handling of the case.
[2] I agree that the Commission erred in its handling of Mr. Hunter's complaint and will grant this application for judicial review.
I. Issues
[3] Kleysen raised three issues:
1. Can the Commission reconsider one of its own decisions?
2. Did the Commission treat Kleysen unfairly?
3. Does the Commission's conduct give rise to a reasonable apprehension of bias?
[4] I have determined that the Commission has the power to reconsider its decisions. However, in this case, it treated Kleysen unfairly in the course of doing so. Accordingly, I need not consider the issue of bias.
II. Analysis
A. Can the Commission reconsider one of its own decisions?
(1) Background
[5] An investigator looked into Mr. Hunter's complaint and determined that he had been fired for poor performance, not because of discrimination. The investigator recommended that the
Commission dismiss the complaint. The Commission considered Mr. Hunter's complaint on four separate occasions:
1. April 3, 2000 - The Commission accepted the investigator's recommendation and dismissed Mr. Hunter's complaint. However, the Commission failed to consider some of Mr. Hunter's written submissions that had been filed just prior to its meeting.
2. September 18, 2000 - The Commission reconsidered the complaint and decided to refer it to a conciliator. However, the Commission failed to make a preliminary decision whether to reconsider the complaint before it actually did so.
3. December 11, 2000 - The Commission formally resolved to reconsider the complaint. It then referred it to a conciliator.
4. December 3, 2001 - After conciliation failed, the Commission referred the complaint to a tribunal for a hearing.
[6] Kleysen argues that the Commission lacks the power to reconsider its own decisions. It suggests that the Commission made a final decision dismissing Mr. Hunter's complaint on April 3, 2000 and that it had no authority to make any of the subsequent decisions relating to the file. In the alternative, Kleysen argues that even if the Commission could have reconsidered the complaint, it should have done so on the basis of the submissions filed for the April 3, 2000 meeting. It did not have the power to invite and consider further submissions from Mr. Hunter, as it did.
[7] Kleysen interprets the relevant case law as providing a power to reconsider decisions only in three situations: where there was a slip in the drafting of the decision, where there was an error in expressing the decision-maker's true intention, or where the governing legislation indicates that a decision can be re-opened (citing Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; [1972] S.C.R. 577">Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577). It is clear that neither of the first two possibilities exist here; the only question is whether the legislative context suggests that the Commission may reconsider its own decisions.
[8] There is certainly nothing specific in the Canadian Human Rights Act, R.S.C. 1985, c. H-6 that gives the Commission the power to reconsider its decisions. At the same time, however, the Commission clearly possesses a very broad discretion to screen and process complaints. The Federal Court of Appeal has stated that the Act gives the Commission "a remarkable degree of latitude when it is performing its screening function" (Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.); Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439 (C.A.)).
[9] In very similar circumstances to these, the British Columbia Court of Appeal found that the B.C. Council of Human Rights had the power to reconsider a complaint. The Council's enabling legislation simply said that it could not consider any new complaint in respect of the same subject matter. The Court held that this provision did not prevent the Council from reconsidering the same complaint: Zutter v. British Columbia (Council of Human Rights), [1995] B.C.J. No. 626 (B.C.C.A.) (QL). In addition to the statute, the Court also looked at the overall context. Mr. Justice Wood noted the absence of any right of appeal from the Council's decision to reconsider a complaint and the Council's desire to correct an unfairness. (There, too, the Council had failed to consider a submission from the complainant). Justice Wood also recognized the broad purposes of human rights legislation. He stated that "it would be an unfortunate irony if the Council, whose very existence and remedial purpose is characterized by the fundamental values of fairness and justice, nonetheless lacked the jurisdiction to remedy that unfairness" (at p. 328).
[10] In Chandler, above, Sopinka J. stated that the normal rules of finality of decision-making should be loosened for administrative tribunals. He said that the application of these rules "must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal" (at p. 862). It was in this context that he went on to say that "the principle [of finality] should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation" (at p. 862).
[11] Obviously, Sopinka J. did not expect enabling statutes to provide specifically for a power to reconsider decisions. Rather, he believed this power might be implicit.
[12] Here, the Commission decided to reconsider its initial decision when it realized that it had overlooked some of Mr. Hunter's materials. Had it not done so, Mr. Hunter might well have brought an application for judicial review, arguing that the Commission had treated him unfairly by failing to consider all of his submissions. In my view, the Commission rightly decided to consider whether its initial decision was well-founded in light of the new submissions rather than burden Mr. Hunter with the onus of bringing an application in this Court.
[13] In summary, I agree with Wood J.'s approach in Zutter, above. Considering its role and function, as well as its wide discretion over the handling of complaints, I believe the Commission has the power to reconsider a complaint in order to be fair to the parties before it. In doing so, being the master of its own procedure, I believe the Commission also has the discretion to invite further submissions from the parties: Hutchinson, above.
B. Did the Commission treat Kleysen unfairly?
[14] If the Commission has the power to reconsider a decision, obviously it must treat the parties fairly when it does so. Kleysen pointed to a number of missteps in the Commission's handling of Mr. Hunter's complaint and argued that it had been treated unfairly.
[15] Some of the problems Kleysen identified were bureaucratic snafus. For example, some of the communications between the Commission's staff and Kleysen were inaccurate, contradictory or confusing. These incidents were unfortunate but they did not cause any real unfairness.
[16] However, there were a number of more serious problems.
[17] First, the Commission did not inform the parties of its meeting in September 2000. At that meeting, the Commission decided to refer the complaint to a conciliator. However, it failed to decide first whether it should reconsider the complaint. None of this was disclosed to Kleysen or Mr. Hunter. The Commission failed to operate openly.
[18] Second, when the Commission decided in December 2001 to refer the complaint to a tribunal, it did so on the basis of an incomplete record. The Commission did not have before it some of the materials that it had previously considered when reviewing Mr. Hunter's complaint. In situations where the record before a decision-maker is flawed, the decision itself may be flawed: Lee v. Bank of Nova Scotia, 2002 FCT 753, [2002] F.C.J. No. 1050 (T.D.) (QL).
[19] Finally, in one of his further submissions to the Commission, prior to the meeting of December 2001, Mr. Hunter disclosed information about the conciliation process, including details of a settlement offer from Kleysen. Kleysen argues that this information was strictly confidential and should not have gone to the Commission (s. 47(3), Canadian Human Rights Act). Kleysen expressly objected to disclosure of this information. In similar circumstances, the Federal Court of Appeal held that the Commission had acted improperly: Canadian Broadcasting Corp. v. Paul, 2001 FCA 93, [2001] F.C.J. No. 542 (C.A.)(QL), at para. 37.
[20] Kleysen has satisfied me that these problems, taken together, amounted to unfair treatment.
C. Does the Commission's conduct give rise to a reasonable apprehension of bias?
[21] In light of my conclusion that Kleysen was treated unfairly, it is unnecessary to consider the issue of bias.
III. Disposition
[22] The Commission had the power to reconsider its decision of April 3, 2000. It did so at its December 11, 2000 meeting and referred Mr. Hunter's complaint to a conciliator. When conciliation failed, the Commission decided on December 3, 2001 to refer the complaint to a tribunal. Most of Kleysen's allegations of unfairness revolve around that final decision and this application for judicial review pertains solely to it. In my view, the Commission's decision to refer Mr. Hunter's complaint to a tribunal must be set aside.
[23] Kleysen asked me to order the Commission to review the complaint according to the materials it had received in April 2000. In my view, that remedy would be inappropriate. I have found little fault with the ensuing steps in the process, other than the final decision. Further, as mentioned, the scope of this application is confined to that decision.
[24] Accordingly, the proper remedy is to return the matter to the Commission for reconsideration on the basis of the record it ought to have had before it on December 6, 2001. The parties should be given an opportunity to make final submissions.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted, with costs to be paid by the intervener.
"James W. O'Reilly"
J.F.C.
| Canadian Human Rights Act, R.S.C. 1985, c. H-6
47(3) Confidentiality
Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.
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Loi canadienne sur les droits de la personne, L.R.C. 1985, ch. H-6
47(3) Renseignements confidentiels
Les renseignements recueillis par le conciliateur sont confidentiels et ne peuvent être divulgués sans le consentement de la personne qui les a fournis.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-88-03
STYLE OF CAUSE: KLEYSEN TRANSPORT LTD. V. COLIN HUNTER AND CANADIAN HUMAN RIGHTS COMMISSION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: May 18, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: October 15, 2004
APPEARANCES BY:
Thor Hansell FOR THE APPLICANT
Gloria Mendelson FOR THE RESPONDENT
Fiona Keith FOR THE INTERVENOR
SOLICITORS OF RECORD:
AIKINS, MACAULAY & THORVALDSON
Barristers and Solicitors
Winnipeg, MB R3C 4G1 FOR THE APPLICANT
GLORIA MENDELSON
Barrister and Solicitor
WINNIPEG, MB R3B 2B5 FOR THE RESPONDENT
R. DANIEL PAGOWSKI
CANADIAN HUMAN RIGHTS COMMISSION
OTTAWA, ON K1A 1E1 FOR THE INTERVENOR
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