Johnston v. Canada Mortgage and Housing Corporation, 2004 FC 918

Date: 20040625

Docket: T-84-03

                                                                                                            Citation: 2004 FC 918

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

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:               

                                                     VICTOR JOHNSTON                                         

                                                                                                                                Applicant

                                                                   - and -

CANADA MORTGAGE AND HOUSING CORPORATION

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                Mr. Victor Johnston, the Applicant, seeks judicial review of a decision of the Canadian Human Rights Commission (the _Commission_) dated December 19, 2002 in which the Commission decided, pursuant to subsection 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the _Act_), not to deal with Mr. Johnston's complaint for the reason that it was _based on acts which occurred more than one year before the complaint was filed_. In his complaint, Mr. Johnston alleged that he received discriminatory treatment from his employer, Canada Mortgage and Housing Corporation (_CMHC_).

[2]         It should be noted that the Commission, on its own motion and after the commencement of this judicial review application, decided to reconsider its decision of December 19, 2002. It did so because certain information that was before the Commission, when it made its decision, was not previously disclosed to the parties. Both parties, upon viewing this information, made further submissions and a decision of the Commission affirming the earlier decision was rendered on September 16, 2003. For the purposes of this application, I have considered neither the later decision nor the submissions made by parties for the reconsideration. This judicial review application deals solely with the decision of the Commission dated December 19, 2002. Since, for the reasons that follow, I have decided to dismiss the application for judicial review, the existence of the later decision will not be addressed further.

Issues

[3]         The issue in this application is whether the Commission committed a reviewable error in deciding not to deal with Mr. Johnston's complaint pursuant to subsection 41(1)(e) of the Act on the basis that:

4.                   the complaint was, in fact, filed within the one-year limitation; or

2.          the Commission erred in deciding, in the circumstances of the case, not to extend the one-year time limit; or

3.          the processing of Mr. Johnston's complaint was not procedurally fair.

Relevant Statutory Provision

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

Analysis

Issue #1: Was the complaint, in fact, filed within the one-year limitation period?

[5]            Mr. Johnston filed a complaint with the Commission alleging gender discrimination in the workplace arising from his termination. Mr. Johnston's first argument is that his complaint was filed within the one-year limit or at least came within a month or two of it. In Mr. Johnston's complaint dated December 12, 2001, he states that the _date of alleged conduct_ was February 1999. In his submissions on the issue of timeliness, however, he argues that the date of the allegation should be taken to be December 1999, when certain female employees similarly situated to him were released from CMHC. In other words, he submits that, for purposes of subsection 41(1)(e) of the Act, termination of the female employees constitutes the act upon which the discrimination complaint is based.

[6]            Mr. Johnston's submission on this point is illogical and is inconsistent with the substance of the complaint that he filed. In that complaint, he stated the following:

I believe that I was treated differently from my female colleagues when I was given my surplus notice, and my employment was terminated, before the outsourcer has been selected. Because my employment was terminated seven months before my female colleagues, I did not receive an equal opportunity to pursue a job with the outsourcing company [emphasis added].

This is a clear assertion by Mr. Johnston that the acts of alleged discrimination arose at the time of the notice and termination. If there was discrimination, it occurred when Mr. Johnston was released from his employment and not at some later date. The treatment of the female employees upon their own terminations may constitute evidence of the alleged discrimination but it does not establish its date. Accordingly, it was open to the Commission to find that the act upon which the claim was based occurred in February 1999 and was, thus, outside the one-year time limit.

[7]         Mr. Johnston also argues that the complaint should be assessed from the date that he first contacted the Commission in January 2001 about filing a complaint. This argument is without merit. The Commission must receive thousands of inquiries into possible complaints. It would be difficult and perhaps impossible for the Commission to track each of these calls. The Commission has wisely and fairly, in my view, interpreted its legislation to require that the clock for the one-year time limit runs to the date on which a written complaint is filed. There may be circumstances where the Commission may determine that the date against which it measures the time should be different; this is not such a case.

Issue #2: Did the Commission err in deciding, in the circumstances of this case, not to extend the one-year time limit?

[8]         Given that the complaint was filed almost three years after the alleged incidents that gave rise to the alleged discrimination, the only way in which Mr. Johnston's complaint could be heard is if the Commission determined, in the circumstances of the case, that the time limit should be extended. This is a decision directly within the discretion of the Commission and its decision should only be disturbed if it 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).

[9]         CMHC expressed a number of concerns with extending the one-year time limit. The submissions of CMHC on the timeliness of the complaint included the following:

·           Mr. Johnston waited more than three years following his departure from CMHC to file his complaint;

·           during the three-year period preceding the filing of his complaint, Mr. Johnston was represented by legal counsel who could have advised him of his rights under the Act;

·            while pursuing a claim for unjust dismissal and during settlement negotiations with CMHC, no allegation of gender discrimination was raised by Mr. Johnston;

·            extending the time limit in this case would unfairly prejudice CMHC's ability to mount a full defence; and

·            several of the witnesses with direct knowledge of the facts relevant to the complaint are no longer with the corporation.

[10]       The only arguments made by Mr. Johnston as to why the Commission should exercise its discretion beyond the one-year time limit were that he contacted the Commission in January 2001 to discuss making a complaint and that he was pursuing a related matter under the Canada Labour Code, R.S.C. 1985, c. L-2.

[11]       In making its determination of whether to extend the one-year time limit, the Commission must weigh the evidence before it. How the Commission decides to carry out that task is completely within the Commission's discretion and it is not up to this Court to re-weigh the evidence differently. In this case, there was sufficient evidence before the Commission for it to reach the conclusion that the time limit should not be extended. Its decision is not patently unreasonable.

Issue #3: Did the Commission have regard to procedural fairness?

[12]       Mr. Johnston alleges that he made submissions to the investigator by letter dated July 21, 2002 and that this letter was not before the Commission when it made its decision. Mr. Johnston asks: _Without the inclusion of this important document how could the Commission's decision be either procedurally fair or reasonable?_ However, having reviewed the record, I am satisfied that no procedural unfairness arises from the failure of the Commission to include this letter in the record.

[13]       The procedure of the Commission at this screening stage is to have the parties make written submissions to an investigator who prepares a report. This report is provided to the parties who are allowed to make further submissions. At this stage of the process, it is open to both parties to add to or correct the report. Thus, if there was something contained in the July 21, 2002 letter that Mr. Johnston wished to bring to the attention of the Commission and that was not referred to in the Investigator's Report, he could have done so.

[14]       Even if the Commission had an obligation (which I do not accept) to review and consider this letter, the omission of this letter would not have been a material error. This is because the arguments contained in that letter were accurately set out in the Investigator's Report. The main argument made in the July 21, 2002 letter with respect to the timeliness of Mr. Johnston's complaint was the following:

CMHC does not want you to proceed with my complaint because it occurred more than one year before they received the complaint. But under the circumstances I was pursuing a related matter under the [Canada Labour Code] . . . and then immediately filed my complaint once the other matter was resolved. This should be viewed from the perspective that the act of discrimination did somewhat not occur [sic] until after I was already pursuing the matter under the [Canada Labour Code].

[15]       The Investigator's Report dated December 12, 2001, contains these same words. Thus, even though this letter may not have been before the Commission, the argument put forward by Mr. Johnston was before the Commission as part of the Investigator's Report. Mr. Johnston was not prejudiced by the omission of the letter from the tribunal record. There is no reviewable error.

[16]       Finally, having reviewed the record carefully, I am satisfied that the Commission acted in good faith and in a procedurally fair manner. Mr. Johnston was aware that the lack of timeliness was an issue in the decision and he was afforded every opportunity to respond to the submissions of CMHC and the contents of the

Investigator's Report.

[17]       In conclusion, Mr. Johnston has failed to satisfy me that the decision of the Commission should be overturned. His application will be denied with costs to CMHC.

                                                                 ORDER

THIS COURT ORDERS THAT:

1.         The application for judicial review is dismissed with costs to the Respondent.

_Judith A. Snider_

____________________________

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-84-03

STYLE OF CAUSE:             VICTOR JOHNSTON v. CANADA

MORTGAGE AND HOUSING CORPORATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       June 22, 2004

REASONS FOR ORDER

AND ORDER:                                  The Honourable Madam Justice Snider

DATED:                                             June 25, 2004

APPEARANCES BY:                      

Mr. Victor Johnston                                                                               FOR APPLICANT

Mr. Dougald Brown                                                                             FOR RESPONDENT

SOLICITORS OF RECORD:          

Mr. Victor Johnston                                                                               FOR APPLICANT

1010-1103 Jalna Blvd         

London, Ontario                                                                                                                                         

Nelligan O'Brien Payne                                                                        FOR RESPONDENT

Ottawa, Ontario