Zavery v. Canada (Human Resources Development), 2004 FC 929

Date: 20040625

Docket: T-1913-03

                                                                                                            Citation: 2004 FC 929

OTTAWA, ONTARIO, THIS 25^TH DAY of JUNE, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                      ABDULLA ZAVERY

                                                                                                                                Applicant

                                                                   - and -

THE HUMAN RESOURCES DEVELOPMENT CANADA

AND THE ATTORNEY GENERAL OF CANADA

                                                                                                                          Respondents

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                Mr. Abdulla Zavery, the Applicant, claims that he has been discriminated against by the federal department, Human Resources Development Canada (_HRDC_). On November 11, 2001, he filed a complaint with the Canadian Human Rights Commission (the _Commission_). The complaint was investigated and an Investigator's Report prepared that recommended that the complaint not be dealt with. After receiving further submissions, by letter decision dated September 12, 2003, the Commission advised Mr. Zavery that it had decided, pursuant to s. 41(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the _Act_), not to deal with his complaint. He has applied to this Court for judicial review of that decision.

Issues

[2]         Mr. Zavery raises twenty-two issues for consideration by this Court. In effect all of these issues are subsumed by the following:

1.         Did the Commission commit a reviewable error by:

·            accepting the investigator's determination that two allegations of Mr. Zavery dealt with acts beyond the jurisdiction of the Commission, because the incident that occurred between July and September 2000 had been remedied and that HRDC was not the proper respondent for the alleged incident in October 2000; or

·            not having regard to the reasons for the delay in bringing his complaint, specifically that (i) six months of the delay in filing his complaint were spent waiting for the proper forms from the Commission and (ii) he delayed bringing his complaint until he had exhausted the process he pursued against the Privacy Commissioner in June 2000.

History of the Complaint

[3]         According to his affidavit, Mr. Zavery first telephoned the Commission about filing a complaint in November 2000. Mr. Zavery's counsel also contacted the Commission in March and April of 2001. In letters dated March 16, 2001 and April 13, 2001, counsel outlined the complaints of Mr. Zavery and asked that he be sent _proper forms without further delay to our offices so that we can launch a proper Human Rights complaint._ A response from the Commission on October 3, 2001 enclosed information on the filing process. As noted, the complaint was filed on November 11, 2001.

[4]         In his complaint, Mr. Zavery alleges that HRDC discriminated against him and harassed him in the provision of services based on the grounds of family status (not married), disability (surgery on his left knee and depression), and national or ethnic origin (East Indian), contrary to sections 5 and 14 of the Act. His complaint contained 10 separate allegations related to incidents that occurred from August, 1992 to October, 2000. The first eight of the incidents took place between August 19, 1992 and February 25, 1998. The final two incidents are as follows:

1.          On October 21, 2000, Mr. Zavery was told by employees at the HRDC Employment Centre that he had to sign an I14 form in order to use their services. As came out through submissions made during the investigation of the complaint, the incident actually occurred at the YMCA-Seneca College Employment Resource Centre and not at HRDC offices.

2.          In July, August and September 2000, Mr. Zavery was informed by HRDC that he could not be paid employment insurance (_EI_) benefits from May 14 to June 7, 2000, because he was not in Canada during that time. In September 2000, Mr. Zavery received the EI benefits in question.

[5]         It is important to note that, while all of the allegations related to the provision of services by a single organization, each allegation is discrete and does not depend on the other allegations. In effect, Mr. Zavery has made 10 separate complaints, using one form.

Investigator's Report

[6]         The Commission assigned an investigator to the complaint. After receiving submissions from HRDC and further submissions from Mr. Zavery, the investigator completed an Investigator's Report, dated March 17, 2003. Other than summarizing the grounds of the allegations, the report does not discuss at all whether the allegations are tied to prescribed grounds set out in the Act. Rather, the report deals solely with the objections raised by the HRDC that eight of the ten allegations were out of time and the other two were beyond the jurisdiction of the Commission.

[7]         After summarizing the submissions of the parties on these two issues, the investigator proceeded to an analysis, which was as follows:

14.            Eight of the ten allegations on the Complaint Form occurred between 1992-1998. The complainant initially contacted the Commission in March 2001 and he attributes part of the delay to his former legal counsel.

15.            The remaining two allegations deal with acts that are beyond the jurisdiction of the Commission, given that the incident of May 2000 has been remedied and that the respondent is not the proper respondent for the alleged incident of October 2000.

[8]         Her recommendation was that the Commission not deal with the complaint.

Commission Decision                        

[9]         The Investigator's Report was disclosed to the parties who were given the opportunity to respond to it. Only the Applicant responded. The relevant portion of the Commission's decision is as follows:

Before rendering its decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to subparagraphs 41(c) and 41(e) of the Canadian Human Rights Act, not to deal with the complaint because:

1.              the facts as alleged by the complainant would not constitute a discriminatory practice within the meaning of sections 5 and 14 of the Act; and

2.             it is based on acts which occurred more than one year before the complaint was filed

Accordingly, the file on this matter has now been closed.

[10]       Although it is not entirely clear, the Commission apparently based its decision not to deal with the complaint on three reasons. Firstly, all of the allegations were beyond the one-year time requirement pursuant to s. 41(1)(e). Secondly, in addition to being out of time, the two latest allegations were beyond the jurisdiction of the Commission pursuant to s. 41(1)(c). These are the reasons that are referred to by Mr. Zavery in this application.

[11]       The third stated reason that the facts as alleged would not constitute a discriminatory practice is not a reason but a conclusion that bears no relevance to this particular decision of the Commission at this stage. Mr. Zavery's claims are that he was subject to discriminatory practice by the HRDC in the provision of services on the basis of grounds prescribed by s. 5 and 14 of the Act. Whether Mr. Zavery is correct in his allegations can only be determined after an investigation under the Act and not at this preliminary screening stage where the Commission is only deciding whether one of the grounds set out in s. 41(1) prevents the Commission from dealing further with the complaint. Parties did not raise a question with respect to this conclusion. While the statement may have been misplaced coming as it did at this stage of the Commission process, it is not material to my review of the decision.

Relevant Statutory Provisions and Regulations

[12]       Section 41(1) of the Act states:

Analysis

Standard of Review

[13]       In most aspects, the decision of the Commission under section 41(1) of the Act is discretionary. This Court should not, therefore, intervene unless the decision is patently unreasonable (Price v. Concord Transportation Inc., (2003), 238 F.T.R. 113, at para. 42 or where the Commission acted in bad faith, without regard to procedural fairness or relied on improper or irrelevant considerations (Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32 at 37). This is certainly the standard for a determination of timeliness in s. 41(1)(e).

[14]       However, the parties agree that a jurisdictional determination under section 41(1)(c) of the Act that the Commission is without jurisdiction to consider a complaint should likely be reviewed on a standard of correctness. I will accept that standard for the purposes of reviewing the issue of jurisdiction.

Jurisdiction to consider final two complaints

[15]       It appears that the decision not to deal with the last two complaints was made on the basis of s. 41(1)(c)-that these complaints were beyond the jurisdiction of the Commission. Mr. Zavery submits that the Commission erred in this conclusion. As agreed by the parties, the standard of review for these determinations is correctness.

(a)         Was the incident at the YMCA office beyond the jurisdiction of the Commission?

[16]       In his complaint Mr. Zavery described on incident that took place at a location in Richmond Hill, Ontario on October 21, 2000. In this allegation, he stated that HRDC _officers_ discriminated against him on the grounds of disability by insisting that he sign a particular form before he could use the employment centre.

[17]       In her report, the Investigator concluded that the office at which this alleged incident took place was occupied by the YMCA-Seneca College Employment Resource Centre and not by the HRDC. In his April 6, 2003 response to the Investigator's Report, Mr. Zavery submitted that there was a large sign with the Government of Canada insignia on it and that, therefore, the centre was _holding itself out as part of the federal Ministry or at the very least supported by same_. Before me, Mr. Zavery attempted to bolster this submission, arguing that YMCA employment centre had close links to the HRDC and was actually administering a federal employment program on behalf of the HRDC. The Investigator and the Commission did not accept this argument. Nor do I.

[18]       The jurisdiction of the Commission is established by the Act and takes place within the constitutional division of powers set out in the Constitution Act, 1867. This is explicitly stated in s. 2 of the Act where the purpose of the Act is stated to apply to matters _within the purview of matters coming within the legislative authority of Parliament_. Without question, employment centres established and run by the staff of HRDC are subject to the Act. However, it would not be appropriate to expand the jurisdiction of the Commission into otherwise provincial territory except with a very close and integral link. In any event, the province of Ontario, where the YMCA centre is located, also has human rights legislation that applies to discrimination within a provincial context.

[19]       There is no evidence before me to suggest that the YMCA is either a federal government department or has been granted authority by Parliament. The only evidence before me to describe the relationship between the HRDC and the YMCA employment centre are the following recollections of Mr. Zavery:

1.         When Mr. Zavery asked one of the YMCA centre staff to go with him to HRDC, he was told that she could not because _they were _part and parcel_ of the HRDC and it would be a conflict for her_.

2.         At the entrance to the YMCA centre, there was a large sign with the Government of Canada insignia on it.

[20]       That is the entirety of the evidence on the existence of the link between HRDC and the YMCA-Seneca College Employment Resource Centre. This falls far short of establishing that the services provided by the employees of the YMCA centre fall within the _purview of matters coming within the legislative authority of Parliament_.

[21]       In conclusion on this point, I am satisfied that the complaint of Mr. Zavery related to the service provided by the staff at the YMCA-Seneca College Employment Resource Centre is beyond the jurisdiction of the Commission.

(b)         Was the refusal of the HRDC officers to pay EI benefits beyond the jurisdiction of the Commission?

[22]       The second last allegation described by Mr. Zavery in his complaint occurred during July, August and September 2000 and related to EI benefits. Mr. Zavery alleged that HRDC discriminated against him _based on country of residence in deciding that I would not get paid for the benefit from May 14 to June 7, 2000, because I was not in Canada._. In the alternative, Mr. Zavery submitted that the decision not to allow him his EI benefits was discrimination since _the officers who made the original decision to not let me be qualified were motivated by a desire to harass the complainant on a prohibited ground, namely ethnic origin or disability_. In September 2000, Mr. Zavery was paid the EI benefits in question.

[23]       The investigator concluded that the allegation was beyond the jurisdiction of the Commission, given that the EI benefits have now been paid to Mr. Zavery.

[24]       In his submissions to the Commission and to this Court, Mr. Zavery stated that, while he may have received the EI benefits in dispute, the treatment that he received during the process of obtaining those benefits was harassment and that it is the psychological harm that he suffered as a result of that treatment that is the basis for his complaint. I agree. The payment of benefits does not necessarily provide a full remedy to the allegation of harassment. Thus, the Investigator's conclusion that was accepted without further analysis by the Commission was in error.

(c)         Conclusion on jurisdiction

[25]       In conclusion on this point, it is my view that:

1.         the Commission was correct that the incident involving the YMCA employment centre was beyond its jurisdiction; and

2.         the Commission erred in concluding that the allegation concerning EI benefits was beyond the jurisdiction of the Commission; and

Timeliness of complaints

[26]       The timeliness of the allegations raised in the complaint was the main reason why the Commission rejected Mr. Zavery's complaint. There is no doubt that the complaint was filed over one year after the latest of the allegations. Mr. Zavery argues that, but for a 6 month delay by the Commission in sending proper complaint forms to his counsel, his complaint would have been filed less than a year after the last two allegations. Mr. Zavery urges me to find that there was a _deemed_ filing within the prescribed period. I do not accept this argument. Mr. Zavery was represented by counsel who ought to have been familiar with the Commission's procedures, including the existence of the requirement to file a complaint within one year. In any event, a _deemed_ filing of the complaint in March or April 2001 would not have assisted Mr. Zavery since the allegations that were clearly dismissed for lack of timeliness occurred between 1992 and 1998. This was well beyond the 1 year limit regardless of whether the clock runs until March, April or November 2001.

[27]       The determination of timeliness is a discretionary decision of the Commission that attracts the highest degree of deference. If the decision of the Commission to reject all of the allegations due to the lack of timeliness was not patently unreasonable or otherwise reviewable, the error of jurisdiction becomes irrelevant. The Commission is obliged, when determining whether a complaint filed beyond the one-year limit should be dealt with, to put its mind to whether the circumstances would warrant a longer filing period (s. 41(1)(e)).

[28]       The first argument of Mr. Zavery is that the Commission did not consider all of the evidence before it on the issue of delay. Mr. Zavery submits that the Commission erred in the same way that it did in Canadian Broadcasting Corp. v. Paul (2001), 198 D.L.R. (4th) 633. In that case, the Federal Court of Appeal held, at paragraph 51, that, because the Commission referred in its decision letter to some of the evidence before it and not to other material that it had a duty to consider, an inference could be drawn that the Commission failed to consider all of the evidence that was before it. The Applicant submits that, like the respondent in that case, he too received reasons that betray this error. I do not agree.

[29]       In the case at bar, an inference that the Commission ignored some of the evidence before it cannot reasonably be made. This is because the Commission in its letter to the Applicant stated the very opposite-that it had reviewed the Investigator's report and any submissions made in response. For this reason, Canadian Broadcasting Corp., supra, is readily distinguishable from this case. While it would have been preferable for the Commission to list or otherwise identify what evidence it reviewed, failure to do so was not a reviewable error.

[30]       With respect to the first eight allegations, a review of the record before the Commission reveals that both parties made submissions on the timeliness issue. Specifically, HRDC submitted that it would suffer prejudice if an investigation into these allegations were to take place so long after their occurrence.

[31]       Mr. Zavery also made submissions on the timeliness issue. His main argument was that he did not file a complaint sooner because he was _involved in a time-consuming and delay-inducing process through the Privacy Commissioner_. On June 29, 2000, Mr. Zavery finally obtained the decision of the Privacy Commissioner and began considering his complaint to the Commission. In my view, the fact that Mr. Zavery was pursuing a _process through the Privacy Commissioner_ is irrelevant. His grievance before the Privacy Commissioner, although related, was not the same as the allegations in his complaint to the Commission. Each process was initiated to cure two different kinds of grievances. On the facts of this case, exhausting the former process could not reasonably be a pre-requisite for initiating the latter one.

[32]       Given this evidence in respect of the first eight complaints, it was open to the Commission to prefer the submissions of HRDC. It is not up to this Court to reweigh the evidence before the Commission.

[33]       However, I have concerns with the Commission's decision to dismiss the latest two complaints because of delay. Although these allegations exceeded the one year time period for filing, Mr. Zavery made extensive submissions on why they should nevertheless be dealt with by the Commission. The only clear evidence from HRDC, as described in the Investigator's Report, was directed at prejudicial delay in filing the first eight of ten complaints. No prejudice was alleged by HRDC in respect of hearing the other two. Further, the investigator's analysis of delay also focussed exclusively on the first eight complaints. The only submissions on the issue of delay in respect of the final two complaints were made by Mr. Zavery. HRDC chose not to provide any comment on the investigator's Report or on Mr. Zavery's response. As those reasons were never explicitly challenged by HRDC or analysed by the investigator, there was no evidence before the Commission to support its finding that the last two complaints should be dismissed for delay. Since this determination by the Commission was not based on the evidence before it, and no reasons were provided for it, it is patently unreasonable.

[34]       This error by the Commission is significant only with respect to the allegation related to the EI payment. This is because the final complaint was, as discussed earlier, beyond the jurisdiction of the Commission and could not be dealt with in any event.

Conclusion

[35]       In conclusion, the Commission did not err when it concluded that the incident involving the YMCA employment centre was beyond its jurisdiction. Nor did the Commission err when it decided not to deal with the first eight allegations on the basis of timeliness. However, the Commission erred in its determination that the last allegation involving the services Mr. Zavery received in respect of his EI claims was beyond its jurisdiction. It also made a patently unreasonable finding in respect of the timeliness of this allegation.

[36]       That brings me to the remedy. The Commission's decision regarding all but the EI allegation should stand. The decision that the Commission would not deal with the EI allegation will be quashed and the matter is referred back to the Commission for re-determination. This is not a direction that the Commission investigate the complaint further but that it reconsider whether, pursuant to s. 41(1) of the Act, this one allegation should be dealt with. The Commission may, in redetermining this matter, obtain and consider further evidence, including the possible application of s. 41(1)(e).

[37]       Section 41(1)(e) mandates the Commission to deal with any complaint unless _the complaint is based on acts or omissions the last of which occurred more than one year, . . . , before receipt of the complaint_ (emphasis added). Based on an interpretation of this provision, an argument may be made that, if the Commission, in this case, were to determine that it should deal with the EI allegation, it must then deal with the previous eight incidents. In the event that there was some link beyond the common alleged agent of discrimination, I might agree. However, in this case, each allegation relates to a separate a discrete incident. It would be illogical and potentially unfair to respondents to use the words of this provision to shoehorn long-standing grievances into a Commission review, based on a more recent incident. Particularly in this case, where I find reasonable the Commission's conclusion that it should not extend the time beyond one year, inclusion of the first eight allegations would result in procedural unfairness to the Respondent. Accordingly, I limit the redetermination to be carried out by the Commission to the EI complaint only-the allegation of discriminatory treatment in July, August and September 2000.

[38]       Both parties requested costs of this application. Given that Mr. Zavery was only partially successful, I would exercise my discretion and decline to award costs. Each party will bear its own costs.

                                                                 ORDER

THIS COURT ORDERS THAT:

1.          The application as it relates to the incident that took place between July and September 2000 and that was based on the refusal by the HRDC to provide the Applicant with Employment Insurance benefits will be allowed.

2.          The decision not to deal with the complaint insofar as it relates to the Employment Insurance incident, is quashed and referred back to the Commission for reconsideration, pursuant to s. 41(1) of the Act.

3.         No costs are awarded.

       _Judith A. Snider_

       Judge     

                                                       FEDERAL COURT

                     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                    T-1913-03

STYLE OF CAUSE:                    ABDULLA ZAVERY v. THE HUMAN RESOURCES

DEVELOPMENT CANADA ET AL

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:                June 15, 2004

REASONS FOR ORDER

AND ORDER BY:                      The Honourable Madam Justice Snider

DATED:                                       June 25, 2004                

APPEARANCES:

Mr. Guy B.M. Hunter                                                          FOR APPLICANT

Ms. Sadian Campbell                                                          FOR RESPONDENT

SOLICITORS OF RECORD:

Hrycyna Pothemont Hunter                                                  FOR APPLICANT

Toronto, Ontario

Morris Rosenberg                                                                FOR RESPONDENT

Deputy Attorney General of Canada

FEDERAL COURT

                                                 Date: 20040625

                    Docket: T-1913-03

BETWEEN:

ABDULLA ZAVERY

                                                            Applicant

- and -

HUMAN RESOURCES AND DEVELOPMENT CANADA et al

                                                       Respondent

REASONS FOR ORDER

AND ORDER