Canada Post Corporation v. Canadian Human Rights Commission, docket T-2788-94

     T-2788-94

BETWEEN:

     CANADA POST CORPORATION

                                     Applicant

and

CANADIAN HUMAN RIGHTS COMMISSION

AND CANADIAN POSTMASTERS AND

ASSISTANTS ASSOCIATION

                                     Respondents

     REASONS FOR ORDER

ROTHSTEIN, J.:

     The applicant, Canada Post Corporation (CPC), seeks an order quashing a decision of the Canadian Human Rights Commission (Commission) dated October 25, 1994 made under section 41 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6., wherein the Commission decided to deal with a 1992 complaint which was amended in 1993 (the 1992/1993 complaint) of the Canadian Postmasters and Assistants Association (CPAA) respecting pay equity. The applicant asks the Court to direct the Commission not to deal with the complaint, relying on paragraphs 41(a) and (d) of the Act. Section 41 provides:

41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;

(c) the complaint is beyond the jurisdiction of the Commission;

(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

[emphasis added]

The applicant submits that the Commission should have decided not to deal with the 1992/1993 complaint because the CPAA ought to have exhausted the grievance or review procedures otherwise reasonably available and because the 1992/1993 complaint was made in bad faith.

     I summarize CPC's position here. The CPAA initially made a complaint to the Commission in 1982 respecting pay equity (the 1982 complaint). CPC says that in an August 25, 1985 agreement (the 1985 agreement) the CPAA and CPC agreed that the issue of pay equity should be resolved by agreement and, if necessary, by arbitration. The 1982 complaint was dismissed by the Commission in 1991. The pay equity aspects of the 1985 agreement were included in subsequent collective agreements between the CPC and CPAA and were in effect when the 1992/1993 complaint was filed¹. Therefore, CPC says the arbitration procedure which was available under the 1985 agreement ought to have been exhausted before CPAA made its 1992/1993 complaint to the Commission. As to bad faith, CPC says that the CPAA agreed in the 1985 agreement to withdraw its initial 1982 complaint to the Commission, received consideration for doing so and agreed to establish an alternative process for dealing with pay equity. CPC maintains that to resile from that agreement and file the same complaint again constitutes bad faith. CPC also alleges that the CPAA entered into the 1985 agreement all the while knowing that the Commission would not dismiss the 1982 complaint, which is said to be in bad faith.

     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.

     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 ....

[emphasis added]

In The Minister of Citizenship and Immigration v. Williams, court file A-855-96, F.C.A., April 11, 1997, Strayer J.A., in respect of subsection 70(5) of the Immigration Act, states at page 11:

It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of the opinion..." not "where a judge is of the opinion..." that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, [footnote omitted] such subjective decisions cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations.

I think the same approach is called for with respect to section 41 of the Canadian Human Rights Act. 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.

     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.

     The question of whether the Commission should have refused to deal with the complaint on the grounds that the applicant ought to have exhausted grievance or review procedures otherwise reasonably available calls for two decisions by the Commission. In Latif v. Canadian Human Rights Commission and R.G.L. Fairweather, [1980] 1 F.C. 687. Le Dain J.A. at page 698 states:

. . . whether there is a grievance or review procedure "reasonably available" is a question of law or mixed law and fact, but whether the complainant "ought" to exhaust the procedure is a question of opinion or discretion.

In this case, there is no dispute that there was an alternative procedure reasonably available when the 1992/1993 complaint was filed. Whether it ought to have been exhausted is a discretionary decision. The question of bad faith on the part of CPAA is one of mixed law and fact. (See Latif, supra, at page 698). In other circumstances, such a decision possibly offers more scope for judicial intervention than a discretionary decision. However, for the reasons given, judicial review of both decisions of the Commission in this case are constrained by the narrow scope for review mandated by the words of section 41 and the approaches outlined in Williams and Cumming.

     The Commission, in its October 25, 1994 decision in which it decided to deal with the CPAA 1992/1993 complaint states in part:

The Commission has decided, pursuant to paragraphs 41(a) and 41(d) of the Canadian Human Rights Act, to deal with the complaint because the Commission is satisfied that no other review procedures currently available to the complainant are more appropriate than the complaint process to resolve the complaint and that no bad faith has been demonstrated.

From the record and the Commission's decision, it is clear the Commission had its staff report before it (as well as the submissions of the parties) when it made its decision and I infer it was the staff report and the reasons contained therein that formed the basis of the Commission's decision. The Commission was entitled to follow such a process. See Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, in which Sopinka J. observed that the Commission was entitled by statute to base its conclusion on an investigator's report. He stated at page 902:

. . . [I]t is submitted that failure to give reasons is itself a basis for review. Assuming without deciding that this is so in the absence of a statutory requirement to give reasons [citations omitted], in my opinion there is no basis for such review in this case. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the very extensive report of the investigator which the Commission adopted. This, the Commission was entitled by statute to do.

Although Syndicat des employés dealt with what is now section 44 of the Act and the statutory provisions therein, the Commission appears to have followed the same process here under section 41.²

     With respect to the alternative procedure available, the Commission's decision states that no other review procedures currently available to the complainant are more appropriate than the complaint process to resolve the complaint. The staff reports states at page 7:

Given the nature and the importance of the issues involved, the respondent's submission has not demonstrated that a labour relations procedure such as arbitration would provide a forum which would be more appropriate to examine and discuss these issues, if it were appropriate, than would the complaint process.

. . .

In spite of this, the respondent's submission provides no indication of how the allegations contained in the complaint could be examined and, if necessary, remedied through that review procedure in a more timely fashion than through the CHRC's complaint process.

Contrary to the submissions of CPC, it is clear the Commission did put its mind to the arbitration alternative and considered relevant factors. CPC says the Commission should not have dealt with the appropriateness of the arbitration alternative. However, in making a decision whether a grievance or review procedure otherwise reasonably available ought to be exhausted, the appropriateness of the alternative is an obvious consideration. This is a relevant factor for the discretionary decision that the Commission is called upon to make. While one might question why a labour relations procedure is not equally or more appropriate than a human rights process for dealing with the issue of pay equity, (especially since the Commission in 1991 dismissed the 1982 pay equity complaint while the matter had still not been resolved), this was for the Commission to decide. Weighing the appropriateness of one process or another cannot be said to be irrelevant.

     Timeliness was also an expressed concern of the Commission. The alternative arbitration procedure had not been invoked by either CPC or CPAA and by the time the Commission issued its October 25, 1994 decision to deal with the 1992/1993 complaint, over nine years had elapsed since the parties had agreed to resolve the pay equity issue under the 1985 agreement and arbitration. Again, while I might have resolved the matter differently, timeliness was a relevant consideration for the Commission in deciding that the arbitration alternative ought not to be exhausted. There is thus no indication of the Commission taking account of irrelevant considerations or failing to take account of relevant ones or bad faith by the Commission and there is therefore no justification for the Court to interfere with this exercise of discretion by the Commission.

     As to bad faith by CPAA, CPC says the CPAA agreed to the arbitration alternative, obtained consideration for withdrawing the 1982 complaint, filed the same complaint in 1992/1993 and, according to CPC, deceived CPC by entering into the 1985 agreement while knowing that the Commission would continue its investigation. With respect to bad faith, the staff reasons state at page 6:

The settlement to which the respondent (CPC) refers came about and was renewed in a labour relations context, was never approved by the Commission or, after 9 years of negotiations, fully implemented. In fact, it proved to be an unsuccessful attempt to resolve a human rights issue through labour relations. That the complainant now seek to avail itself of the complaint process as a means of resolving what it perceives as a current discriminatory situation is not an indication of bad faith.

On this issue there is a question of the Commission failing to take account of relevant considerations because, on the basis of the material before me, CPAA's conduct has been, at least, dubious.

(1)      The 1985 agreement indicates:

(a)      That the CPAA "acknowledge[d] and agree[d] that certain provisions of the proposed collective agreement . . . address[ed], resolve[d] and remed[ied] to the complete satisfaction of the Association the complete substance of the (pay equity) complaint...".

(b)      CPAA acknowledged that it had "received independent legal representation throughout".

(c)      CPAA represented it had withdrawn its human rights complaint.

(d)      A process including arbitration was agreed to with respect to the development, application and implementation of the job evaluation plan which was to meet the requirements of the Canadian Human Rights Act.

(2)      In 1991, the CPAA appears to have broken off pay equity negotiations with CPC and did not resort to arbitration for no reason explained in the material before me. CPAA has said that the process failed, but this is only an assertion. An assertion that a process has failed cannot be taken at face value, especially when the party making the assertion was the one to break off negotiations and did not exhaust all the rights available to it.

(3)      The 1992 complaint was followed by the February 1993 amended complaint couched in some different words than the 1992 complaint. I have a suspicion this was solely for the purpose of countering CPC's argument that the 1992 complaint was the same as the 1982 complaint which was dismissed by the Commission in 1991. It was not satisfactorily explained to me what aspect of pay equity was raised by the 1993 amended complaint that was not contained in the 1992 complaint or indeed in the 1982 complaint.

     One of CPAA's responses to these concerns is to draw a distinction between the consideration it received in the 1985 agreement for past concerns respecting pay equity (proposed rates of pay, cola clause and job security clauses) and future resolution of the issue. It is pointed out that the wage gap between male and female employees remained and the CPAA should not be considered to be acting in bad faith in attempting to seek a resolution from the Commission. Certainly, the 1985 agreement provides that a job evaluation plan was yet to be implemented and, as it was to address the wage gap, CPAA is correct that the consideration received as of 1985 did not eliminate the wage gap. But, as CPAA counsel says, the agreement must be read as a whole. Reading it as a whole indicates that in addition to various benefits the employees obtained in the 1985 agreement, the parties agreed to a job evaluation plan that was to meet the requirements of the Canadian Human Rights Act and to the extent they could not agree to the plan, the matter was to be arbitrated. There is no indication that the CPAA reserved to itself the right to pursue its 1982 complaint to the Commission or the right to file new complaints. If anything, the comprehensiveness of CPAA's expression of satisfaction in the 1985 agreement and its attempted withdrawal of the 1982 complaint suggests the opposite. Having regard to these considerations, my conclusion with respect to bad faith on the part of CPAA may have been different than the Commission's. Nonetheless, this was information that was before the Commission and was considered by it.

     As I have indicated, CPAA also argued that the 1992/1993 complaint is somehow different from the 1982 complaint and therefore covers matters not contemplated by the 1982 complaint and the 1985 agreement. This has not been demonstrated to me. The issue is and always has been pay equity. As I read the 1985 agreement, it addresses the issue in very broad terms and indeed any job evaluation plan was to be submitted to the Commission to seek its approval that it met the requirements of the Act. I do not find these arguments of CPAA and the Commission persuasive. Nonetheless, the Commission's staff report came to a different conclusion:

34.      The review procedure described in clause 5 of the Supplementary Memorandum of Settlement would focus on disputes with respect to the development, application or implementation of a job evaluation plan: pay equity investigations focus on matters which include but are broader than job evaluation, such as the comparisons of job value and wages for the application of section 11 of the CHRA, as well as issues under section 10.

35.      The respondent has not demonstrated that the arbitration would be capable of protecting members of the CPAA from the alleged discriminatory practices described in the complaint, or that the remedies available under this review procedure could compensate them, if necessary, or provide broader or preventive measures.

As I have indicated, on the basis of the arguments made before me, I would not agree with this conclusion. Nonetheless, the agreement was clearly considered. I cannot say that the Commission's conclusion that CPAA was not acting in bad faith was made by it having ignored evidence.

     I turn now to the submission of counsel for CPC that a very important element of bad faith by CPAA was that CPAA was aware that the unilateral withdrawing of its 1982 complaint in 1985 was not possible but that CPAA went along with proposing its withdrawal and entering into the 1985 agreement because it knew that the Commission's investigation would continue. However, section 48 of the Act provides that any settlement, after the filing of a complaint, must be referred to the Commission for approval or rejection.³ Both parties must be taken to have known that this was the law. CPAA did attempt to withdraw the complaint but the Commission refused the request. Barring some collusion between the Commission and CPAA, of which there is absolutely no evidence before me, I do not see how the CPAA could have known the Commission would have continued with its investigation. This was a decision for the Commission alone. Indeed, the record suggests that although the Commission did not approve the 1985 settlement initially, it did dismiss the complaint in 1991. I cannot attribute bad faith to the CPAA on this account.

     Finally, I would observe that the law is quite clear that parties cannot contract out of the Canadian Human Rights Act. In Ontario Human Rights Commission v. London Monenco Consultants Ltd. (1992), 18 C.H.R.R. 118, Robins J.A. in respect of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, noted at page 122:

On this reasoning, the Board, in essence, approved the notion that private parties are competent to contract themselves out of the Code, and proceeded on that basis. In my respectful opinion, this was an erroneous approach to the issue. It is well-settled that private parties are not free to contract out of this public policy enactment. The facts stressed by the Board in this respect were immaterial to the issue. A private contract agreeing to a discriminatory policy or practice cannot serve as a ground for holding that the discriminatory policy or practice is not in violation of the Code. As McIntyre J. stated in Etobicoke, supra, at 213-14 [D/785 para. 6905]:

Although the Code contains no explicit restrictions on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy.

I cannot rule out that after an agreement between parties, returning to the Commission with a new complaint might in some circumstances constitute bad faith such that the Commission should refuse to deal with it. Indeed, the 1985 agreement provided that the job evaluation plan was to be submitted to the Commission to ensure that it met the requirements of the Canadian Human Rights Act and in that respect a fresh complaint might be considered redundant and perhaps filed in bad faith. However, in view of the prohibition against contracting out of the Act, the Commission would have to proceed with the utmost caution before dismissing a complaint on this ground at an early stage.

     I have gone to some length to deal with the issue of bad faith because it would appear, at least on the material before me, that there is some substance to it and that another decision-maker might have come to a different conclusion than did the Commission here. However, it has not been demonstrated that the Commission has taken account of irrelevant considerations, failed to take account of relevant ones, or itself has acted in bad faith.

     For these reasons, the judicial review must be dismissed.

     However, some further observations are in order arising out of the way in which the Commission has dealt with this matter and the amount of time that has passed since the matter was first raised. I recount certain elements of the chronology here for ease of reference. The pay equity complaint was originally filed with the Commission in 1982. In 1985, the parties agreed that it should be resolved by agreement or arbitration in accordance with the requirements of the Act. The Commission did not accept that settlement but by 1991, the Commission concluded it should dismiss the complaint and it did so. Nonetheless, apparently the pay equity issue had not yet been resolved between the parties.

     The CPAA's second complaint was filed in November 1992 and was amended in February 1993. It took the Commission staff until May 1994 to receive submissions of the parties and recommend to the Commission that it should deal with the complaint. The Commission did not make a valid and final decision to do so until October 25, 1994.

     The judicial review application was filed in this Court in November 1994. The parties did not request a hearing until the end of August 1996. As the parties did not request an expedited hearing, the matter was set down for hearing on March 17, 1997.

     From the ongoing litigation, it is apparent that the pay equity issue has not yet been resolved and that there is no prospect of an early resolution on the horizon. For whatever reason, the parties have not moved the matter forward more rapidly. It would be presumptuous of me to attribute motives or fault on either of them without more information. However, the Commission has allowed itself to become a participant in this extraordinary delay of a matter which arose some fifteen years ago and which the parties agreed, twelve years ago, that resolution was necessary and would take place.

     Counsel for the Commission suggested that the resources of the Commission were stretched thin. However, the reports which the Commission staff wrote with respect to the section 41 proceedings in this case are lengthy and detailed, based on the submissions made by the parties. While I did not find that the reports analyzed the submissions very effectively, significant time and effort seems to have gone into their preparation. I do not think it is a satisfactory explanation for the time that has gone by to say that the resources of the Commission were stretched thin.

     The Commission has been vested with very broad powers with respect to human rights issues. Apart from dealing with complaints brought to it, it has the power, under subsection 40(3), to initiate a complaint itself. Its discretion is broad and its decisions are not readily appealable. It is generally not subject to statutory time limits. Where a tribunal has been vested with such broad powers, it has a concomitant duty to exercise those powers responsibly. The responsible exercise of such powers includes their timely exercise.

     With respect, I think this case and others to which I drew counsel's attention at the hearing of this matter (for example Dunmall v. Canada (Armed Forces) (1991), 15 CHRR D425 in which eight years elapsed between the date of the complaint and the time it was brought on for hearing before a Tribunal) illustrate that the Commission seems to have lost sight of the importance of timeliness in resolving complaints brought to it. In this case, the Commission, after expressing its dissatisfaction with the 1985 agreement, decided not to dismiss the 1982 complaint. It kept the complaint alive but did not take any active steps to require the parties to bring it to a resolution. In 1991, even though the pay equity issue had not been resolved, it decided to dismiss the complaint. The 1992/1993 complaint has bogged down on a motion to dismiss at an early stage. It took the Commission almost two years to merely decide to deal with the complaint. There has not been any investigation. If after investigation the complaint is referred to a tribunal for resolution, it is not difficult to envisage a further two or three years being occupied in the investigation and tribunal processes. The question is begged as to why the Commission did not efficiently monitor the parties' progress under their 1985 agreement with effective case management or deal with the matter itself when it concluded that progress was unsatisfactory. Now the Commission has failed to move the 1992/1993 complaint forward in a timely manner.

     The Commission must manage complaints that are filed in an efficient and competent manner. This includes moving them forward to conclusion on a timely basis. This has not occurred in the present case. The Commission should now deal with the 1992/1993 complaint at a pace which will bring its resolution at least before the end of the millennium.

     Marshall Rothstein

    

     J U D G E

OTTAWA, ONTARIO

MAY 8, 1997

__________________

     ¹      The Court was informally advised that the 1985 pay equity agreement was not incorporated in the 1994 collective agreement but no further information was provided as to whether there is any substitute for it. This is a fact subsequent to those that are relevant for determination of this judicial review and is not taken into account in this decision.

     ²      Under subsection 42(1), the Commission need only provide reasons when it decides not to deal with a complaint. Subsection 42(1) provides:
42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
However, in view of the elaborate and lengthy process followed in this case, and the Commission's decision of October 25, 1994 which is consistent with its staff report, I am satisfied the staff report constitutes the Commission's reasons for deciding to deal with the complaint.

     ³      Section 48 of the Act provides:
48. (1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection.
(2) If the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties.