Date: 20000327
Docket: T-496-99
BETWEEN:
TRUDY CLOSE
Applicant
- and -
AIR CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review of the decision of the Canadian Human Rights Commission dated February 18, 1999, wherein the Commission dismissed the applicant"s complaint.
FACTS
[2] The applicant worked for Air Canada as a flight attendant from 1973 to 1991. In February 1991, she took a leave of absence due to stress. She was declared fit to work on October 4, 1991 and returned on a rehabilitation program in November 1991. The program was unsuccessful and the applicant requested a medical leave of absence.
[3] Following her leave, the Prudential Insurance Company advised the applicant of her eligibility to long term disability benefits.
[4] From December 1991 to April 1992, the applicant was enrolled in a realtor"s course and became licensed in June, 1992.
[5] Dr. Walton, her physician sent a letter, advising the Prudential Insurance Company that the applicant had made a good recovery and that she would be fit to go back to work starting July 1, 1992. The insurance company then decided to stop paying the benefits effective July 23, 1992. The employer was only advised of the termination of benefits on April 1993.
[6] The employer, following an investigation, learned that the applicant was employed by Sutton Centennial Realty in West Vancouver.
[7] In April 1993, the applicant was advised by her supervisor that she required medical certification to return to work or resign from her position. The applicant was given two weeks to act. Following the expiry of the deadline, a letter of termination was sent.
[8] The union field a grievance against the termination. The applicant claims that she was not notified of this action.
[9] In April 1994, an early retirement package was announced and the applicant made inquiries as to her eligibility. She was told that she was suspended pending discharge as of May 1993.
[10] In February 1995, she met with management and was told that her leave was unauthorized and that she had accepted work outside the company. At this meeting, she learned that a grievance was filed in 1993. Following the employer"s decision affirming the termination, the union filed a step II grievance. The grievance was denied and her employment was terminated on July 2, 1995.
[11] The applicant then requested that her grievance progress to arbitration. The union refused to proceed with arbitration. The applicant appealed this decision, but the appeal was denied. The applicant later on filed a complaint with the Canadian Labour Relations Board against the union. The Board dismissed the complaint on October 21, 1996.
[12] The applicant then filed a complaint on March 20, 1997, with the Canadian Human Rights Commission alleging discrimination on the ground of disability.
[13] On November 18, 1998, the Commission"s investigator sent his report to the parties recommending that the complaint be dismissed on the basis that the allegation was not founded.
DECISION OF THE CANADIAN HUMAN RIGHTS COMMISSION
[14] The Commission concluded that the evidence does not support the applicant"s allegation that she was discriminated against because of her disability. The evidence showed that the Wage Indemnity Program benefits were terminated upon her instructions, once she completed the realtor program and obtained a license. She was thus on leave without authorisation.
[15] The Commission further concluded that the applicant was aware that she was in contravention of the Leave of Absence Policy concerning outside work.
[16] The Commission noted that she was advised on at least two occasions that failure to comply with the employer"s request for status would result in the termination of her employment. The applicant chose not to respond and she was terminated.
[17] The Commission recommended the dismissal of the complaint, without holding a hearing in the matter.
THE APPLICANT"S POSITION
[18] The applicant raises a number of issues however she makes submissions on some of them.
[19] The applicant submits that the Commission breached the principles of natural justice by failing to notify her of the time and place of the hearing.
[20] The applicant submits that her medical leave was authorized. She claims that she was not given the opportunity to validate her medical status.
[21] She notes that the respondent was advised that her insurance benefits were terminated since the union provides the Company In-flight Service Headquarters with a monthly report, listing all the employees that were receiving short or long term benefits.
THE RESPONDENT"S POSITION
[22] The respondent suggests that the Commission may decide whether or not an inquiry is warranted based on the investigator"s report. This procedure is permissible because the framework of the Act presumes that the report of the investigator correctly summarizes all the evidence before the Commission.
[23] The respondent submits that the Commission did not fail to observe a principle of procedural fairness by not holding an oral hearing before dismissing the complaint pursuant to subparagraph 44(3)(b)i) of the Act.
[24] The respondent submits that the Commission did not base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it.
[25] It is submitted that it was open for the Commission to arrive at the conclusion it made, on the basis of the evidence before it. The Commission found that the applicant had elected not to respond to requests to establish her medical status or return to work and that the applicant was terminated on the basis of an unauthorized leave of absence and not because she was disabled.
ISSUES
| 1. Did the Commission fail to observe a principle of procedural fairness by not holding an oral hearing for the purpose of deciding whether an inquiry into the complaint was warranted pursuant to subparagraph 44(3)b)i) of the Act? |
| 2. Did the Commission base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it? |
ANALYSIS
The standard of review
[26] Justice Sopinka writing for the majority in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 explained:
| In spite of the ability to overturn decisions of the Board on findings of fact, this Court has indicated that some curial deference will apply even to cases without privative clauses to reflect the principle of the specialization of duties (see Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at 1746, Etobicoke, supra, at p. 211). While curial deference will apply to findings of fact, which the Board of Inquiry may have been in a better position to determine, such deference will not apply to findings of law in which the Board has no particular expertise. |
[27] In Canada (Attorney General) v. Mossop, [1993] S.C.J. No. 20, although most judges wrote their own reasons, they were in agreement with Justice La Forest"s reasons as to the standard of review:
| But the position of a human rights tribunal is not analogous to a labour board (and similar highly specialized bodies) to which, even absent a privative clause, the courts will give a considerable measure of deference on questions of law falling within the area of expertise of these bodies because of the role and functions accorded to them by their constituent Act in the operation of the legislation. The Human Rights Commission undoubtedly serves many useful functions that help to educate, inform, and advise the government, the public and the courts on matters of human rights (s. 27). |
| The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability. |
[28] In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, the majority held again that the correctness standard should be applied to question of law before a human rights tribunal.
[29] The Supreme Court"s clearly indicated that although curial deference should be applied to findings of fact made by the human right tribunals, the deference is of a much lesser degree when it involves a question of law. In fact, in these cases, the correctness standard of review ought to be applied.
| 1. Did the Commission fail to observe a principle of procedural fairness by not holding an oral hearing for the purpose of deciding whether an inquiry into the complaint was warranted pursuant to subparagraph 44(3)b)i) of the Act? |
[30] Subsection 44(3) states :
| (3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
| (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or |
(b) shall dismiss the complaint to which the report relates if it is satisfied
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
|
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_:
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_:
| (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, |
| (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e); |
b) rejette la plainte, si elle est convaincue_:
| (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, |
| (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e). |
|
[31] In Syndicat des employés de production du Qué. et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, the majority held:
| Section 36(3) provides for two alternative courses of action upon receipt of the report. The Commission may either adopt the report "if it is satisfied" that the complaint has been substantiated, or it may dismiss the complaint if "it is satisfied that the complaint has not been substantiated". If the report is adopted, I presume that it is intended that a tribunal will be appointed under s. 39 unless the complaint is resolved by settlement. I come to this conclusion because otherwise there is no provision for any relief to the complainant consequent on adoption of the report. This aspect of the Commission's procedure has been clarified by amendments to the Act (S.C. 1985, c. 26, s. 69). The current version of s. 36(3) is contained in s. 44(3) of the R.S.C., 1985, c. H-6 (as amended by c. 31 (1st Supp.), s. 64) and now provides that, upon receipt of the report of the investigator, the Commission may request the appointment of a tribunal if it is satisfied that, having regard to all the circumstances, an inquiry into the complaint is warranted. |
| The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. |
[32] In Morisset v. Canadian Human Rights Commission (1991), 52 F.T.R. 190 Justice Dubé held at pages 196-97:
| The Act does not require that members of the Commission examine the complete record of the investigation. The Act does not provide for an oral hearing in the case of an investigation, but provides for written observations, unlike the investigation by a Tribunal, where the hearing takes the form of an adversary proceeding. The members of the Commission must decide based on the material before them whether the evidence provides reasonable justification for proceeding to the next stage (See Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R. (4th) 385, at 898 S.C.R.; Whiteman v. Canada (Canadian Human Rights Commission et al. (1987), 9 C.H.R.R. D/4922 (F.C.A.), para. 37973; Syndicat des employés de production du Québec et de l'Acadie, supra, at 902 S.C.R. and Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission et al. (1988), 9 C.H.R.R. D/4922 (F.C.A.), at D/4927). In the case at bar, they decided that there was no basis for proceeding to the second stage. The Supreme Court of Canada has held that this is a purely administrative decision (See Syndicat des employés de production du Québec et de l'Acadie, supra, at 899). |
[33] The Commission in the present case ordered an investigation. By letter dated April 24, 1997, it requested the parties to submit their position in writing as well as any supporting documentation. The respondent submitted written arguments. Following the investigation"s report, the applicant made submissions. The Commission informed the parties that it will not pursue the investigation.
[34] The Commission exercised its discretion after complying with the rules of procedural fairness. It was within its jurisdiction to dismiss the complaint without an oral hearing. There is no ground for this Court to intervene.
| 2. Did the Commission base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it? |
[35] The Commission based its decision on the evidence gathered. The evidence established that the applicant was not disabled, nor in receipt of disability benefits. She was thus on unauthorized leave. She was working elsewhere despite Air Canada"s policy prohibiting work while on leave of absence. Further, she failed to respond to requests to clarify her status of employment, although she was aware of the consequences of this omission, namely her termination as stated in the respondent"s letter dated April 13, 1993.
[36] I am not convinced that the Commission based its decision on an erroneous finding of fact made in a perverse or capricious way.
[37] For these reasons, this application for judicial review is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 27, 2000
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