Date: 20040630
Docket: T-712-02
Citation: 2004 FC 951
BETWEEN:
DEBORAH JOHNSON
Applicant
and
MARITIME TELEGRAPH AND TELEPHONE COMPANY
Respondent
REASONS FOR ORDER
MacKAY D.J.:
[1] This is an application for judicial review by Deborah Johnson of a decision of the Canadian Human Rights Commission (the "CHRC" or Commission) which dismissed her complaint of discrimination based on her race and colour, without stating reasons.
[2] The applicant is a former employee of the respondent whose employment was governed by a collective agreement between the respondent and the Atlantic Communication and Technical Workers' Union (ACTWU). The applicant's last day of employment with the respondent was April 11, 1997.
[3] In the winter of 1997 the respondent engaged in a corporate restructuring which resulted in the elimination of some positions and the temporary layoff of some employees. In the course of this reorganization the position held by the applicant was declared surplus and she became entitled to certain "bumping rights" under the collective agreement. On March 20, 1997, the applicant was advised that she was entitled to bump into the position of house service person. The applicant declined this position and elected to accept an early retirement package from the respondent.
[4] On January 15, 1999, the applicant signed a Canadian Human Rights Commission complaint form alleging discrimination in employment based on her race and colour, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ( the "Act").
[5] The respondent was advised of the fact of this complaint by letter dated April 22, 1999. The respondent replied to the complaint and denied discrimination on its part.
[6] The applicant's complaint was then investigated by a Commission investigator who produced a ten page "Investigator's Report" dated May 29, 2000. The investigator recommended, pursuant to paragraph 41(1)(e) of the Act, that the CHRC "deal with the complaint even though it is based on acts which occurred more than one year before the complaint was filed", and that it "appoint a conciliator to attempt to bring about the settlement of this complaint".
[7] In October of 2000, the respondent was advised by the CHRC that it had decided to deal with the complaint, notwithstanding that it had been filed later than the normal time limit, and had decided to appoint a conciliator. The respondent agreed to participate in the conciliation process. However, the process was not successful and the conciliator filed his report on March 15, 2001. That report stated in full:
This complaint was referred to conciliation in September 2000.
The complaint was not resolved, and the matter is being returned to the Commission for decision.
It is recommended,
a) pursuant to section 49 of the Canadian Human Rights Act, that the Commission request the appointment of a Human Rights Tribunal to inquire into the complaint, or,
b) pursuant to subparagraph 44(3)(b)(I) of the Canadian Human Rights Act, that the Commission dismiss the complaint because, having regard to all the circumstances of the complaint, an inquiry by a Tribunal is not warranted.
[8] The applicant and the respondent were sent a copy of the conciliator's report and were invited by the Commission to make submissions, up to ten pages in length, in anticipation of the matter being submitted for consideration to the CHRC. Both parties made submissions, by letters dated April 10, 2001. The submission of each party was then sent by the Commission to the other party, and each subsequently commented to the CHRC on the submission of April 10, 2001 by the other party.
[9] On June 28, 2001, Ms. Lucie Veillett, Secretary to the Commission, wrote separate similar letters to the applicant and the respondent advising of the CHRC's decision, pursuant to subparagraph 44(3)(b)(I) of the Act, to dismiss the complaint "because having regard to the all circumstances, an inquiry by a tribunal is not warranted."
[10] By Notice of Application dated May 1, 2002, the applicant gave notice of this application for judicial review of the June 2001 decision of the CHRC to dismiss her complaint.
Applicant's Submissions:
[11] The applicant, in her Notice of Application dated May 1, 2002, alleges that the Commission (a) failed to observe a principle of natural justice, (b) erred in law in making its decision, and (c) based its decision on erroneous findings of fact.
[12] The main arguments of the applicant are that the decision of the CHRC to dismiss her complaint was patently unreasonable in view of the investigator's report and the other information before the Commission and in view of the absence of expressed reasons.
[13] The applicant argues that the respondent "did not adhere to the collective agreement" and, therefore, "the applicant was denied" her rights and subjected to discriminatory treatment. The applicant also complains that the conciliator did not deal with all the relevant facts and did not give reasons or indicate an appropriate position in his report.
[14] Furthermore, the applicant argues that the CHRC itself did not give reasons for its decision, nor did it explain why it departed from the opinion of the investigator by, in effect, concluding that the allegation of discrimination should be dismissed.
[15] At the hearing of this application, the applicant primarily stressed concern that the absence of reasons stated by CHRC in its decision, in the circumstances of this case, constituted a denial of natural justice. The applicant's complaint of discrimination because of her race and colour was found by the investigator to warrant action, but this was not addressed in the final decision of the Commission, without any explanation.
Respondent's Submissions :
[16] The applicant's record contains documents that were not before the CHRC when it made its decision to dismiss the complaint. It is the respondent's submission, which I accept, that these documents are not properly before the Court in this judicial review of the Commission's decision. That review must be with reference to the material that was before the decision maker, when the decision in question was made. As Mr. Justice Pelletier commented in Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580 (C.A.) at para. 44:
... The Applications Judge properly applied the authorities in refusing to allow the additional evidence to be introduced. It was not before the Commission and therefore, absent considerations such as denial of natural justice, there was no right to have it considered by the Applications Judge.
[17] The respondent states that the standard of review of a decision of the Commission to dismiss a complaint is either reasonableness or patent unreasonableness. Mr. Justice Pelletier, for the Federal Court of Appeal in Hutchinson, supra, commented:
It is clear that the decision of the Commission to dismiss a complaint is entitled to some deference. The standard of review is either reasonableness or patent unreasonableness. However, it is not necessary for me to decide which of the two is the proper standard for I am satisfied that the decision in this case meets the less deferential standard of reasonableness.
[18] Here the respondent submits that the decision of the CHRC meets the test of reasonableness and that there was ample evidence before the Commission which supports its decision.
[19] Moreover, the respondent states that, contrary to the applicant's submissions, it is not the function of the conciliator to "deal with the facts or give reasons" in a report to the CHRC but rather the conciliator reports to the CHRC whether or not conciliation was successful. The conciliator's report does not contain a decision and it is not the subject of this judicial review. I accept these submissions of the respondent about the conciliator's report.
[20] Furthermore, the respondent underlines that the CHRC had before it a great deal of information through submissions of the parties in addition to the investigator's report. It is urged that the only concern raised by the investigator in her report was fully addressed by the respondent which gave a "non-discriminatory explanation" for the "bumping assignment" complained of by the applicant. Not only did the CHRC have this information but the applicant had it as well, and she had adequate opportunity to respond to it. She was represented by counsel who made submissions on her behalf.
[21] In summary, the respondent submits that the decision of the CHRC to dismiss the complaint was reasonable in light of the information before the Commission, and there was no lack of procedural fairness accorded to the applicant which would warrant this Court's intervention.
Analysis:
1) The Appropriate Standard of Review
[22] It is well settled that the standard of review of a decision of the Commission to dismiss a complaint requires a high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission. ( See : Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 388 (T.D.) (QL), upheld [2000] F.C.J. No. 1655 (C.A.) (QL).
[23] In Cooper v. Canada (HRC), [1996] 3 S.C.R. 854 at p. 891, Mr. Justice La Forest, commenting on the role of the CHRC in its consideration of complaints, writing for the majority of the Court, stated:
The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfils a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it...
[24] In MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL), Mr. Justice O'Keefe applied pragmatic and functional analysis in a case in which the Commission decided not to send a complaint to the Canadian Human Rights Tribunal. He was of the view that the decision in question was a mixed one of fact and law which should be reviewed on the standard of reasonableness simpliciter. That conclusion is consistent with the discretionary role of the Commission as described by Mr. Justice La Forest and I concur with Mr. Justice O'Keefe.
2) The merits of the application
[25] In the case at bar, leaving aside for the moment the issue raised about the absence of reasons, there is no evidence of a breach of the principles of procedural fairness. The applicant had the opportunity to comment upon the investigator's report and the report of the conciliator. She did so in writing and her submissions were before the Commission, as were those of the respondent, together with both the investigator's report and the report of the conciliator, at the time of its decision.
[26] Indeed, after the investigator filed the Investigator's Report, dated May 29, 2000, the CHRC received a total of seven further submissions from the parties to the complaint; four from or on behalf of the applicant and three from the respondent. Included in the respondent's further submissions was an explanation of the bumping procedure it had applied in accord with the prevailing collective agreement which was intended to address concerns raised by the investigator and to provide a further explanation for the "bumping assignment" offered to the applicant. That assignment, to a housekeeping role after her clerical job was eliminated, was the basis for the applicant's complaint.
[27] In addition to these seven submissions which post-dated the investigator's report and contained additional information for the CHRC, the Commission was aware that conciliation had been attempted between the parties and that the effort to settle the matter had not been successful.
[28] In these circumstances, on the evidence before the Commission, its decision, in my opinion, was reasonable.
3) The lack of reasons for the CHRC decision
[29] It is well established that the principles of procedural fairness differ according to the context. In certain cases those principles may support a duty to explain decisions. In this regard, in Liang v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:
In my opinion the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
[30] The facts of this case, in my opinion, are similar to those dealt with by Mr. Justice Gibson in Gardner v. Attorney General of Canada, [2004] F.C.J. No. 616. In that case, there were two investigator's reports. The Commission reviewed the two reports, giving the complainant the full opportunity to make submissions in support of her complaints and to respond to submissions made by the departments of government against which the complaints were made. The first report, recommending that one of the complaints be dealt with, was adopted by the Commission and was not the subject of the judicial review before Justice Gibson. The second report, which considered three separate complaints, concluded with a recommendation that the Commission appoint a conciliator. With respect to this recommendation, the Commission decided to dismiss the complaints stating simply that "having regard to all the circumstances of the complaints, no further inquiry is warranted". There were no other reasons provided.
[31] Mr. Justice Gibson dealt with the issue of the absence of reasons for that decision of the CHRC. Despite his expressed sympathy for the applicant, who represented herself in that case, in her difficulty in understanding when no reasons were expressed by the Commission, he wrote, at paragraph 36:
In the result, I conclude that the Commission did not fail to fulfil the duty of fairness incumbent on it by giving insufficient reasons. I so conclude by reason of the absence of a statutory obligation to provide reasons and also by reason of the Applicant's failure to request reasons following notification of the decision to dismiss her complaints and before commencing this application for judicial review. It follows then that the Commission did not err in a reviewable manner in dismissing the Applicant's complaints, notwithstanding the Applicant's view that, on the evidence before the Commission, it was "plain and obvious" that the Applicant had been discriminated against on the basis of family status and the guarded support for that view expressed in the Investigator's Report.
[32] In this case the applicant, seeking to distinguish the decision in Gardner, supra, submits that the "correspondence between the Applicant and the Commission following the investigator's report constitutes a request for reasons." In the respondent's view, the correspondence referred to by the applicant cannot constitute a request for reasons because no reasons are specifically requested and because the correspondence pre-dates the decision of the CHRC to dismiss the applicant's complaint.
[33] I am not persuaded that the timing, before or following the Commission's decision, is significant for determining whether a request for reasons is made. In short, this case would be distinguishable from the facts in Liang, supra, and from those in Gardner, supra, if a request for reasons had been made at any time. The submissions of the applicant following the investigator's report, i.e. her letter of June 14, 2000, and letters from counsel dated December 11, 2000, April 10, 2001 and April 24, 2001 do not include an express request for reasons for a decision of the Commission.
[34] In addition, there was no request for reasons made after the decision of the Commission before this application for judicial review was initiated. I agree with Mr. Justice Gibson's comment in Gardner, supra, at para. 31, that the applicant's request in her application for judicial review for a certified copy of the material in possession of the Commission did not constitute a request for reasons. Moreover, here, as in Gardner, there was no memorandum of staff in the record which set out grounds for a recommendation that could be interpreted as reasons. The latter might have been sufficient for reasons, as found by Madam Justice L'Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration), _[1999] 2 S.C.R. 817, at paras. 43 and 44, but there was no comparable memorandum to the Commission in this case.
[35] In Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 at 15, 16 (C.A.), where the Commission refused to appoint a conciliator, as had been recommended by its investigator, Justice Décary wrote for the Court of Appeal:
Does this mean that in the case at bar the failure to give reasons constitutes in itself a breach of the rules of procedural fairness? I do not believe so.
...
... The duty to give reasons has been imposed by Parliament in certain specific cases, including the situation covered by subsection 42(1) of the Act which applies where the Commission decides not to deal with a case for the reasons set out in section 41.1 would hesitate to use the rules of procedural fairness to impose a burden that Parliament imposes only sparingly in very specific cases.
[36] The Applicant also seeks to distinguish the Gardner decision from the case at bar, suggesting that this case has the same factual foundation as the Mercier case with the Commission not acknowledging the findings of the investigator. However, in my view, if the lack of reasons by the Commission was not a basis for the Court to intervene in Gardner, it is not a basis for intervention in this case for here the applicant and the respondent had ample opportunity to comment, before the decision, on the reports of both the investigator and the conciliator, and upon the submissions of the other party.
[37] Although I have much sympathy for the concern by the applicant in the absence of reasons expressed by the Commission, in my opinion, the essential facts of this case and of Gardner are not distinguishable. In comity and in the interests of consistent jurisprudence, the appropriate course for this Court is to follow Justice Gibson's decision in Gardner, supra, in relation to the issue of the absence of reasons expressed by the Commission for its decision.
Conclusion
[38] For the reasons here set out, on the standard of reasonableness I find that the decision of the Commission was reasonable on the evidence before it at the time of its decision. Further, I find that, in the circumstances of this case and on the principles expressed by Justice Gibson in Gardner, supra, the fact that the Commission expressed no reasons, relating in particular to the applicant's complaint, for its decision not to refer the applicant's complaint to a tribunal for consideration, did not breach its duty of fairness or constitute a violation of the principles of natural justice.
[39] A separate Order goes dismissing the application for judicial review.
[40] In written submissions the respondent requested costs. In the circumstances of this case, despite my dismissal of the application, in my opinion cost should not go to the respondent. The applicant's case concerns a complaint of discrimination on grounds of race and colour, which was in effect dismissed by the Commission without expressed reasons except its conclusion that the circumstances did not warrant referral of the matter to a tribunal. It is little wonder that the applicant sought judicial review when in her view there was no adequate explanation for actions which seemed to her to be discriminatory, a view implicitly supported by the investigator's recommendation for action by the Commission on the complaint, in particular conciliation. Those circumstances, in my opinion, indicate that each of the parties should bear their own costs.
"W. Andrew MacKay"
Deputy Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-712-02
STYLE OF CAUSE: Deborah Johnson
- and -
Maritime Telegraph and Telephone Company
PLACE OF HEARING: Halifax, N.S.
DATE OF HEARING: April 5 and June 2, 2004
REASONS FOR ORDER
AND ORDEROF The Honourable Mr. Justice W. Andrew MacKay
DATED: June 30, 2004
APPEARANCES:
Burnley A. Jones FOR APPLICANT
Karen A. Fitzner FOR RESPONDENT
SOLICITORS OF RECORD:
B.A. "Rocky" Jones & Associates
5557 Cunard Street
Halifax, Nova Scotia
B3K 1C5 FOR APPLICANT
Cox Hanson O'Reilly Matheson
1100 Purdy's Wharf Tower One
1959 Upper Water Street
Halifax, Nova Scotia FOR RESPONDENT
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