Canada (Attorney General) v. Lapierre, 2004 FC 612

                                                                                                                                  Date: 20040423

                                                                                                                               Docket: T-916-02

Citation: 2004 FC 612

Ottawa, Ontario, April 23, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

JUDITH LAPIERRE

Respondent

REASONS FOR ORDER AND ORDER

[1]         The Attorney General of Canada (the applicant) is seeking judicial review of a decision dated May 13, 2002, by the Canadian Human Rights Commission (CHRC, the Commission) that it has jurisdiction to rule on the complaint by Judith Lapierre (the respondent) under subsection 41(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). In a decision dated October 31, 2002, Mr. Justice Blanchard of this Court granted the CHRC status as an intervener in this case.

FACTS

[2]         On July 31, 2001, the respondent filed a complaint with the CHRC against the Canadian Space Agency (CSA). She alleges in this complaint that she was denied the right to protection against sexual harassment in the workplace that the employer owed to its employee. The position of the CSA and the Attorney General of Canada is that the CSA was not Ms. Lapierre's employer, as she had been hired on a contractual basis for a study on confinement; the CSA further alleges that it had no control over either the workplace or the foreign colleagues accused of harassment.

[3]         The study on confinement was carried out under the aegis of the State Research Centre - Institute for Biomedical Problems (IBMP) located in Moscow, Russia. The study consisted of simulating the conditions of isolation that would be faced by the crew of an international space station. The simulation was done in Moscow.

[4]         The CSA and the respondent contracted for a period of nine months, from September 10, 1999 to June 3, 2000. Under this contract, the respondent was to participate as a subject in an experiment conducted in Russia; she undertook to produce weekly reports on the confinement experience and a final report, and the CSA was to pay her compensation and her travel costs and other miscellaneous costs such as office equipment. An agreement was signed between the respondent and the IBMP, providing that the CSA was funding the respondent's participation in the simulation experiment.

[5]         During the isolation phase (which lasted 110 days), the respondent alleges, she was sexually harassed by a Russian colleague, the commanding officer in charge of the experiment. The CSA, she says, aggravated the harassment situation by refusing to take her side, failing to defend her against the accusations of hysteria in the Canadian and Russian press, and by excluding her from an international conference in which she was supposed to speak about her participation in the simulation experiment.

[6]         On May 13, 2002, the CHRC ruled that it had jurisdiction to deal with Ms. Lapierre's complaint in relation to her allegations about the actions of the CSA.

ISSUE

[7]         Does the CHRC have jurisdiction to deal with the sexual harassment complaint filed by Ms. Lapierre against the CSA?

ANALYSIS

Preliminary objection

[8]         From the certificate issued under rule 317, it appears that when the Commission made the decision to hear and determine the complaint, it did not have at hand the third party respondent's Reply to the complaint, which had been filed on December 13, 2001. However, the Commission did have the report of the investigator, which covered both the complaint and the submissions of the CSA (then the third party respondent) as well as the Observations of the third party respondent concerning the investigation report filed on February 18, 2002. The applicant argues that this amounts to a breach of procedural fairness, since the Commission did not have before it all of the evidence needed to make an informed decision.

[9]         This question of procedural fairness is not trivial. I am unable to consider the second paragraph of the CHRC position at page 3, which replies to the argument. The Commission was given leave to intervene in this case, but Mr. Justice Blanchard, in his decision of October 31, 2002, limited its participation in the following terms, and I quote the last paragraph of page 3: "[translation] for the sole purpose of defending its jurisdiction".

[10]       Notwithstanding this very clear decision, the Commission replied in a very short paragraph to the preliminary objection. Since the question was raised before me at the hearing, I found in favour of the Attorney General representing the CSA to the effect that the Commission's comments were inadmissible in the circumstances.

[11]       I also commented to the parties that the situation was rather unusual. When the CHRC is named as a respondent, it is replaced, in accordance with the caselaw of this Court (see Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.)), by the Attorney General. In this case the Attorney General is challenging a decision of the Commission, and the Commission claimed intervener status, which the Court allowed it while severely limiting its ability to defend its decision.

[12]       The respondent, Ms. Lapierre, who had got the Commission to agree to undertake a comprehensive examination of her complaint, now faces the challenge by the Attorney General, who is arguing that the Commission does not have jurisdiction. The Commission is able to defend its jurisdiction before the Court, but Ms. Lapierre, who is acting alone, lacks the resources to reply to the legal arguments on procedural fairness.

[13]       With this in mind, I informed the parties that the situation seemed to me to be comparable to a motion presented ex parte, and that in the circumstances, since the applicant (Attorney General) had not presented both sides of the issue, and the Commission's counsel was not authorized either by Blanchard J. or by myself to present legal arguments on the issue, it fell to me to examine myself the arguments both for and against the preliminary objection.

[14]       I also told the parties that should this breach of procedural equity argument be adopted by the Court, there would be no further need to examine the jurisdictional arguments on the merits: the entire case would have to be sent back to the Commission for an examination by the Commission of the document filed in December 2001 before the decision is made, and that later, if the decision were again positive, the question could come back to the Federal Court.

[15]       The question is whether the apparent lack of procedural fairness that the government alleges is sufficient to invalidate the Commission's decision that it has jurisdiction to deal with Ms. Lapierre's complaint.

[16]       Three documents will help to enlighten us on this matter: the document filed by the CSA (third party respondent) on December 13, 2001, the report of the investigator filed on January 11, 2002 with a recommendation that the Commission deal with Ms. Lapierre's complaint, and the CSA's observations on the investigation report, filed on February 18, 2002. As we noted earlier, the Commission, at the time it made its decision, did not have the first document although it did have the other two.

[17]       In her report, the investigator describes some objections by the third party respondent, the CSA, based essentially on the absence of an employer-employee relationship. The investigator presents the CSA's arguments and a general outline of the caselaw cited in support. She also takes up the argument that the Russian institute (the IBMP) is not subject to the CHRA. She notes in her analysis that the notion of employee in the CHRA must be given a large and liberal interpretation, and that by applying the test in Rosin, infra, a judgment that was also cited by the CSA in the document of December 2001, it could be concluded that the third party respondent exercised a degree of control over the activities of the complainant.

[18]       The applicant argues that the Commission's decision might have been different if it had seen the December document. However, I note that the CSA had an opportunity to respond to the investigation findings, and that this response appeared among the documents that were before the Commission when it made its decision. In this second document, the CSA stresses the notion of employer and employee, and the lack of control exercised by the CSA over the complainant. While it is true that some particulars of the relationship between Ms. Lapierre and the CSA that are in the December document are missing, I am unable to find that these particulars would have been sufficient for the Commission to decide that it lacked jurisdiction.

[19]       The breach of procedural fairness is said to lie in the fact that the Commission did not have the December document in front of it. However, the investigator had considered this document in preparing her report, and the CSA had an opportunity to respond, the latter comments being made before the Commission at the time of its decision. Moreover, there is nothing in the December document that absolutely contradicts the Commission's position; applying the law to the facts, the applicant gives one interpretation, but another interpretation appears, prima facie at least, to be just as valid. Furthermore, it seems to me that the legal precedents weaken even further the argument that this Court should order the Commission to dismiss the complaint for lack of jurisdiction on grounds of procedural fairness.

[20]       The applicant cites the decision in Mercier v. Canada, supra, in which the Federal Court of Appeal set aside the decision by the Canadian Human Rights Commission to dismiss a complaint on the ground that there had been a serious breach of procedural fairness. In that case, the complainant alleged that she had been discriminated against while she was working in the Canadian Penitentiary Service. An investigator had recommended to the Commission that it hear the complaint. The Penitentiary Service sent the Commission some detailed observations rebutting the findings of the investigation and casting doubt on the complainant's credibility, mentioning facts that were not included in the investigation report. The complainant was never informed of the document filed by the Service before the Commission issued a decision dismissing the complaint and closing the file.

[21]       The facts in the present case, and in particular the issues for the respective parties, are quite different. In Mercier, supra, the complainant had not been informed of the content of an important report that the Commission considered in dismissing her complaint. In this case, in contrast, the applicant knew the content of the investigator's report, it answered it, and its observations in reply were considered by the Commission. The breach of procedural fairness was especially serious in Mercier, in that it entailed an end to the proceedings for the complainant. In this case, the recourse is Ms. Lapierre's, not the government's. The consequences, and the nature of the inquiry, are factors to be considered when determining to what degree procedural fairness should apply at all stages of a quasi-judicial proceeding. In this regard, it is worth recalling the comments by Lord Denning in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), at page 19, quoted by Mr. Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at page 900:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . . . In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.

[22]       The Commission is the master of its procedure, and in the circumstances I do not think it was so insufficiently informed of the facts and the arguments that it could not make an educated decision and that we could actually speak of a lack of fairness. Furthermore, the Court should display some deference in regard to a question that falls within the Commission's prerogative, namely, deciding whether it has jurisdiction. In Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re Canadian Postmasters and Assistants Assn.), [1997] F.C.J. No. 578 (T.D.), Mr. Justice Rothstein indicates to what degree the scope for judicial review of the Commission's decision to rule on a complaint is limited:

¶ 3 A decision by the Commission under section 41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases. The timely processing of complaints also supports such an approach. A lengthy analysis of a complaint at this stage is, at least to some extent, duplicative of the investigation yet to be carried out. A time consuming analysis will, where the Commission decides to deal with the complaint, delay the processing of the complaint. If it is not plain and obvious to the Commission that the complaint falls under one of the grounds for not dealing with it under section 41, the Commission should, with dispatch, proceed to deal with it.

¶ 4 As to the role of the Court in cases under section 41, it is to be noticed that the power of the Commission to make decisions under that section is stated in the following terms:

41. . . . the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission ....

... The decision is one for the Commission and the determination is set forth in subjective and not objective terms. Thus the scope for judicial review of such a decision is narrow. Only considerations such as bad faith by the Commission, error of law or acting on the basis of irrelevant considerations are applicable.

¶ 5 Where a question of jurisdiction was at issue, the approach of the Court has been expressed by Thurlow A.C.J. (as he then was) in Attorney General of Canada v. Cumming, [1980] 2 F.C. 122 at pages 132-33:

The preferable course for the Court is to leave the Tribunal free to carry out its inquiries and not to prohibit it save in a case where it is clear and beyond doubt that the Tribunal is without jurisdiction to deal with the matter before it.

I think it follows that if substantial deference by the Court is applicable when questions of jurisdiction are at issue, at least the same degree of deference if not more, would be applicable to other types of decisions under section 41 e.g. discretionary, factual or even mixed fact and law decisions.

[23]       A number of points in the preceding quotation deserve to be emphasized: section 41 gives the Commission full power to determine its own jurisdiction over a complaint; this test is subjective and not objective; and, in particular, the Commission has a duty to deal with any complaint unless the complaint is obviously inadmissible. In my opinion, the absence of the December 2001 document before the Commission, given the fact that the Commission was aware of the substance of the arguments, does not prevail over the Commission's duty to hear and determine when it thinks it has jurisdiction.

[24]       Finally, it should be pointed out that the possible wrong that could result to either party by this decision tips the scale, if we can speak of inconvenience, strongly on the side of the respondent Ms. Lapierre. The Commission's decision, made under section 41, is only preliminary. It is always possible that at the conclusion of the inquiry the Commission will decide to dismiss the complaint for lack of jurisdiction under section 44. Whatever the procedure adopted by the Commission, the applicant will still have an opportunity to present its submissions. However, if the Commission is functus officio, either Ms. Lapierre loses her recourse or the proceeding is further prolonged for her. It does not appear to be in the interests of justice that this should be the result, and the applicant has not persuaded me that procedural fairness should operate to have the complaint dismissed at this stage. The preliminary objection is therefore dismissed.

CHRC decision

[25]       In its decision to deal with the complaint, the Commission simply states that the CSA exercised some degree of control over the respondent's activities. While the CHRC did not have jurisdiction to rule on the actions of the Russian partners, it thinks it had jurisdiction in regard to the CSA's actions once the harassment allegations had been communicated to it.

[26]       The CHRC maintains its position that the employer-employee relationship, in a context of defending human rights, must be given a large and liberal interpretation if it is to give full effect to the Act, and it cites caselaw in support of its position.

[27]       The decisions of the Supreme Court of Canada and the Federal Court of Appeal can enlighten us on how we should envisage the contractual relationship in a contract for the provision of services when determining whether that relationship can be defined as an employer-employee relationship, in the context of a human rights case. However, I think it is necessary first to consider the actual text that gives the CHRC jurisdiction in human rights complaints, the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). The cases cited by the CHRC in its intervener's memorandum, with the exception of a decision under the Ontario legislation (Payne v. Otsuka Pharmaceutical Co., October 15, 2002, Ontario Board of Inquiry), predate 1998. They support the idea that human rights laws should be given a large and liberal interpretation.

[28]       In 1998 Parliament enacted some amendments in the Human Rights Act, S.C. 1998, c. 9, s. 19 of which adds the following definition in section 25 of the Act to the definitions for the purposes of the CHRA:

[29]       The language of sections 4, 7 and 14 confirms the CHRC's jurisdiction in respect of discriminatory "employment" practices:

[30]       These provisions cover discrimination "in the course of employment" or "in matters related to employment". Section 4 of the CHRA provides that these discriminatory practices may be the subject of a complaint to the CHRC.

[31]       The definition of employment newly incorporated in the CHRA is unambiguous: the word "employment" includes, for the purposes of the CHRA, "a contractual relationship with an individual for the provision of services personally by the individual".

[32]       The contract between Ms. Lapierre and the CSA corresponds perfectly to this description. (Applicant's Record, vol. II, exhibit H)

[33]       This contract, written in English, begins with a definition of the terms used:

"Contract" means the written agreement between the Parties, ...

"Contractor" means the person or entity whose name appears on the signature page of the written agreement and who is to supply goods or services to Canada under the Contract; ...

"Work" means the whole of the activities, services, materials, equipment, software, matters and things required to be done, delivered or performed by the Contractor in accordance with the terms of the Contract; ...

[34]       In Part 3 of the contract, we read the following:

Status of the Contractor

The Contractor is engaged as an independent contractor for the sole purpose of performing the Work. Neither the Contractor nor any of its personnel is engaged as an employee, servant or agent of Canada. The Contractor is responsible for all deductions and remittances required by law ...

[35]       The applicant cites this text to show that the respondent was not an employee. And indeed, for the purposes of the contract, she was not considered an employee of the Canadian government. Nevertheless, for the purposes of the CHRA, the signed contract seems to correspond clearly to the definition of the word "employment" in the CHRA, that is, a contract in which an individual undertakes to provide services.

[36]       In fact, in Appendix D to the contract (page 273, Applicant's Record), it is stated in the "Description des travaux" - "Statement of Work" that the contract covers remuneration. It is clear, from reading this part of the contract, that it is indeed "a contractual relationship with an individual for the provision of services personally by the individual".

[37]       I think it is worth the trouble to reproduce, at least partially, this "Statement of Work":

1. INTRODUCTION

The CSA CAO Operational Space Medicine (OSM) Program is mandated to ensure the overall health and safety of Canadian Astronauts. To fulfill this mandate the OSM Program is required to examine and understand the particular circumstances astronauts will be subjected to during ISS [International Space Station] tours of duty. One way of doing this is through the simulation of ISS conditions on the ground. An opportunity to do so is provided by the Russian Institute for Biomedical Problems (IBMP) which is staging a large scale simulation study from July 1999 till April 2000 in Moscow using the Mir and Mars Spaceship simulators of the Institute. The main focus of this study, called SFINCSS-99 (Simulation of Flight of International crew on Space Station), is on the effects of intensive work/rest regime (expected during the first stage of the ISS) and of heterogeneous crew composition on the interaction and psychological well being of the crews. The OSM program is also interested in isolation as a selection and training tool.

This Statement of Work outlines the terms of the Canadian participant in the IBMP isolement study.

2. TASKS

The participant supported by the CAO OSM will:

2.1 Prior to the isolation, prepare background material ...

2.2 Attend and actively participate in the SFINCSS Simulation. This includes preparation for the Isolation phase in close collaboration with the IBMP and the CSA, training (three weeks) at the IBMP prior to the isolation, staying in confinement at the IBMP in a chamber dedicated for this study for 110 days and performing tasks as per IMPB plan, as well as making oneself available for the pre- and post-isolation studies, tests and briefings.

2.3 Send two (2) weekly electronic reports ... The first weekly report ... is aimed for the general public and may be posted on the CSA Intranet and OSM WebPages. [The second weekly] reports are for internal CSA use only ...

2.4 Prepare a final report outlining the SFINCSS study and experience for the Scientific Authority for CAO OSM use. The report should include: ...

The Contractor will also be asked to present a summary of the report in person at the CSA. ...

[38]       The statement of work also covers the place of employment (Canada, Moscow, Ottawa), the reimbursement of travel and living expenses, confidentiality of reports, etc. The contract covers the terms and conditions of compensation: the hours of work are calculated, and the hourly rate is indicated.

[39]       In light of the definition of "employment", and a reading of the contract between CSA and the respondent, I think the very language of the CHRA confers jurisdiction on the CHRC in this matter. Since the parties cited caselaw in support of their respective positions, it is no doubt appropriate to see if it, too, confirms the conclusion I have just reached.

[40]       The decision that is doubtless most useful for the purposes of our analysis is Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (F.C.A.), in which the Federal Court of Appeal held unanimously that an army cadet could be considered an "employee" for the purposes of the CHRA. In that case, a cadet had been removed from a parachuting course because he had only one eye. The Human Rights Tribunal ruled that this was a discriminatory act, awarded damages to the complainant and issued a directive that he should be enrolled in the course. The government appealed, one of its grounds being that the cadet was not covered by the CHRA since he was not an "employee" of the Armed Forces.

[41]       The Court of Appeal singled out three factors that can be used to guide a determination as to whether someone can be considered an employee, starting from the basic principle that human rights legislation should be given a fair, large and liberal interpretation as will best ensure that its objects are attained, as set out in section 2 of the CHRA. These three factors are the following: there is a situation of control, there is some remuneration and the alleged employer derived some benefit from the work performed.

[42]       The test set out in Rosin, supra, fully applies to the situation of the respondent: she was in a situation in which she was under the control of the CSA (submitting to the requirements of the contract - reports, preparation, training, etc.) and in which, under the contract, she was placed under the control of the Russian institute (IBMP); she was remunerated (the contract provides the particulars of her compensation, including her hourly rate); and the CSA profited from her work, both the reports that were to be posted on the CSA Intranet and the reports that were to be used for internal purposes.

[43]       The CSA attempted to elude its liability to the respondent by arguing that she was under the control of the IBMP, which was directing the research. The CHRC itself, in its decision of May 13, 2002, states that it does not have jurisdiction to investigate the actions of the IBMP. However, insofar as the respondent was in Russia, at the IBMP, under the very terms of her contract with the CSA, and the CSA had been informed of the allegations of sexual harassment, the CSA could not escape its responsibilities.

[44]       In Canadian Pacific Ltd. v. Canada (Human Rights Commission), [1991] 1 F.C. 571, Canadian Pacific attempted to convince the Federal Court of Appeal that it was not responsible for the employment of a cook, fired because he was HIV positive, because he had been hired by a subcontractor. The case also involved a constitutional complication: the subcontractor was clearly a provincial undertaking. However, the Court of Appeal had no hesitation in recognizing both the liability of the company and the jurisdiction of the federal Commission: the company "utilized" the services of the cook, and that was enough to establish the employment relationship for the purposes of human rights protection. Similarly, in this case, although the experiment was directed by the IBMP, the CSA "utilized" or intended to utilize the results of the respondent's participation in the research on isolation and confinement.

[45]       The respondent's complaint concerns sexual harassment, and an employer's duty to protect its employees from sexual harassment. The CHRA provides in subsection 14(2) that sexual harassment is a discriminatory practice. The Supreme Court of Canada, in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, clearly established an employer's liability for sexual harassment in the workplace, irrespective of its source. This liability is neither fault-oriented nor based on the concept of vicarious liability. As the Supreme Court says, the employer's liability stems from the very objective of the Act: to create a work environment that is free of discrimination. And only the employer is in a position to ensure a healthy work environment.

[46]       In this case the Court need not rule on the merits of the complaint; that is a task for the CHRC and possibly the Human Rights Tribunal. It may, however, relying both on the definition in section 25 of the CHRA and on the caselaw, confirm that in regard to the respondent the Commission does have jurisdiction to rule on a complaint related to employment within the meaning of section 25 of the CHRA.

[47]       For these reasons, I am of the opinion that the application for judicial review should be dismissed.

ORDER

IT IS ORDERED that the application for judicial review be dismissed.

                          "Pierre Blais"

                                Judge

Certified true translation

Suzanne Gauthier, C.Tr., LL.L.

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-916-02

STYLE:                                                THE ATTORNEY GENERAL OF CANADA

Applicant

and

JUDITH LAPIERRE

Respondent

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        April 6, 2004

REASONS FOR ORDER

AND ORDER:                                    Mr. Justice Blais

DATED:                                              April 23, 2004

APPEARANCES:

Carole Bureau                                                                           FOR THE APPLICANT

Paul Deschênes

Judith Lapierre                                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg                                                                      FOR THE APPLICANT

Deputy Attorney General of Canada

Department of Justice

Montréal

Judith Lapierre                                                               FOR THE RESPONDENT