T-520-96
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
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JENNIFER ANN BURNELL
Respondent
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CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
MacKAY J.:
This is an application for judicial review by the applicant, the Attorney General of Canada, of the decision of the intervenor, the Canadian Human Rights Commission (the "CHRC") to accept and to investigate a complaint filed by the respondent, Jennifer Ann Burnell, pursuant to s.41 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the "Act").
By Order of this Court dated June 20, 1996, the CHRC was granted intervenor status, including the right to file affidavit evidence and to make submissions at the hearing in this matter. On October 4, 1996, the complainant, Ms. Burnell, agreed to rely upon the submissions of the CHRC as intervenor.
The application for judicial review, made pursuant to s.18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, is based on the following grounds:
| i) The complaint is based on facts which the CHRC knew, or ought to have known to be inaccurate; |
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| ii) the CHRC failed to conduct a proper preliminary investigation by failing to verify the facts alleged in the complaint by referring to the respondent's grievance and personal file; |
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| iii) the CHRC knew of the complaint as early as June 16, 1992, yet neglected to deal with it at that time; |
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| iv) the CHRC failed to investigate the reasons for the delay in filing the complaint; |
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| v) the decision by the CHRC to accept a complaint based on alleged incidents occurring some ten years ago, is totally unreasonable and prejudicial both to the ability of the CHRC to conduct a proper investigation and to the ability of the Department of National Defence ("DND") and Canadian Armed Forces ("CAF") to defend against the allegations; |
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| vi) the CHRC ignored, or in the alternative failed to consider properly, the provisions of s.41(b) of the Act; |
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| vii) the CHRC failed to exercise its jurisdiction in accordance with the law; |
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| viii) the decisions of the CHRC will result in wasteful expenditure of public funds which is not in the public interest. |
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By way of relief, the applicant seeks the following:
| 1. An order of certiorari quashing or setting aside the decisions of the CHRC to accept and to investigate the complaint pursuant to s.41 of the Act; |
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| 2. An order of prohibition, or in the alternative, an injunction enjoining the CHRC or anyone acting on its behalf from carrying out an investigation in respect of the said complaint; |
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| 3. An order pursuant to s.50(a)(b) and/or section 18.2 of the Federal Court Act staying the investigative proceedings of the CHRC pending the outcome of this application. |
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Relevant provisions of the Act
The provisions of the Act which are relevant to the present proceeding are as follows:
| 7. It is a discriminatory practice, directly or indirectly, |
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| (a) to refuse to employ or continue to employ any individual, or |
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| (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. |
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| 40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission. |
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| 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 |
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| (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; |
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| (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; |
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| (c) the complaint is beyond the jurisdiction of the Commission; |
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| (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or |
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| (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. |
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| 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. |
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| (2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another. |
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Facts
This judicial review arises from a complaint filed on November 26, 19941 by the complainant, Jennifer Ann Burnell, with the CHRC. In her complaint, Ms. Burnell alleged that she had been discriminated against in her employment by DND on the basis of a perceived disability, ulcerative colitis, contrary to s.7 of the Act.
The complainant was employed as a dental assistant with the Canadian Armed Forces ("CAF") from December 1974 until August 17, 1987, when she was granted a voluntary release. The complainant suffers from ulcerative colitis, and because of her condition she had been absent from work from October 1983 until August 1984. According to the complainant, however, between 1985 and 1987, the time of the incidents referred to in her complaint, she had been healthy for over eighteen months and her illness was well under control through medication.
According to Ms. Burnell, the incidents referred to in her complaint began in 1985 while she was employed as a dental assistant at Canadian Forces Base ("CFB") Comox. In November 1985, she alleges she was asked to attend a meeting with her supervisor, Major Timmanen, and two other dental officers. At the meeting, the complainant alleges Major Timmanen asked her to sign a memorandum containing negative comments about her performance and her personal life, notwithstanding, the complainant states, that her previous performance reviews had always been satisfactory. Upon asking for a reason, the complainant states she was told that her new supervisor, Lt.Col. Gray, upon reviewing her file and noticing her past absences, had instructed Major Timmanen to "make something up to get rid" of her. The complainant states she was forced to sign the memorandum, and thereafter she was continually criticized regarding her performance and subjected to constant harassment. As part of this harassment, the complainant states she was required to undergo repeated medical assessments, despite the fact that these assessments revealed no medical problems.
In January of 1986, the complainant filed an application for redress of grievance under procedures for dealing with grievances within the CAF.2 According to the complainant, after filing the grievance she was threatened by her superiors that if she did not drop the grievance and request a voluntary release she would receive a negative reference for future employment. The complainant alleges that thereafter she was subjected to discrimination and harassment at work because of her superiors' perception that she was disabled. This differential treatment, she states, persisted until the pressure was such that on June 30, 1987 she requested a voluntary release from the CAF. The complainant was eventually granted voluntary release on November 17, 1987.
Consideration of the complainant's grievance was a protracted process, and was still on-going when, in June 1992, she first inquired of the CHRC regarding her complaint. According to the complainant, on June 16, 1992, she attended the offices of the CHRC in Edmonton where she met with a human rights officer, who advised her that she could not file a complaint with the CHRC until her grievance procedure with the CAF had been completed. Relying on this advice, the applicant states she did not then file a complaint with the CHRC, but instead she awaited the outcome of her grievance process.
The complainant did not learn of the outcome of her grievance with the CAF until November 8, 1994 when she was notified by letter that her application for redress of grievance had been denied by decision of the Governor in Council dated September 22, 1994.
After receiving this news, on November 26, 1994, the complainant returned to the CHRC to file a complaint alleging that between November 1985 and August 1987 she had been discriminated against on the basis of her disability. After receiving this complaint, the CHRC requested further information and, once the complaint was redrafted "in a form acceptable to the Commission", was accepted in that form by the CHRC on June 6, 1995. In her revised complaint, the complainant phrased her allegation as follows:
| The Department of National Defence has discriminated against me by harassing me because of a perceived disability (ulcerative colitis) in violation of section 7 of the Canadian Human Rights Act. |
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After receiving the complaint, the CHRC appointed a human rights officer to make a preliminary assessment as to whether, notwithstanding the delay since the alleged events, the complaint should be accepted by the CHRC. This assessment, or "Section 40/41 Analysis" as it is referred to by the CHRC, dated February 23, 1996, was made by the human rights officer who, after summarizing the complaint, made the following recommendations and proposed resolution:
| Recommendation and Rationale/Recommandation et raison d'être |
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| 5. The alleged discrimination took place between November 1985 and August 1987. After her release, the complainant went through the grievance process, and her redress of grievance was rejected at every level. On September 22, 1994, her appeal was rejected at the final level by the Governor General in Council. |
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| 6. The complainant first contacted the Commission on June 16, 1992, almost five years after the alleged discrimination occurred. |
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| 7. The respondent's ability to provide a defence could be prejudiced as it is likely that witnesses may be difficult to locate, and their memories could be affected by the fact that the actions complained of took place almost eight years prior to the signing of the complaint form. |
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| 8. It is therefore recommended that the Commission not deal with the complaint because the acts complained of occurred more than one year before the signature of the complaint. |
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| pursuant to paragraph 41(e) of the Canadian Human Rights Act, not to deal with the complaint (E03827) of Jennifer Burnell of Calgary, Alberta, against the Department of National Defence dated June 6, 1995, alleging discrimination in employment on the ground of disability which occurred more than one year before the filing of the complaint. |
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By letter dated February 29, 1996, the Director of the Complaints and Investigation Division advised the Department of National Defence ("DND") regarding the complaint. The letter, which enclosed a copy of the complaint and the "Section 40/41 Analysis", stated in part as follows:
| We are submitting this complaint to the Commission with a recommendation that it not be dealt with, pursuant to paragraph 41(e) of the Canadian Human Rights Act because it is based on acts which occurred more than one year before the filing of a complaint. The Commission may decide to accept, change, or reject this recommendation. |
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The letter concluded as follows:
| In making its decision, the Commission will review the enclosed Section 40/41 Analysis and any written comments made by the parties. Should you wish to send comments, please ensure they are a maximum of ten (10) pages and arrive by March 22, 1996. In order to expedite the completion of the complaint, this time limit will be strictly adhered to. Therefore, material received after that time may not be presented to the Commission when the decision is made. |
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On March 8, 1996, DND responded to the letter with written submissions regarding the complaint from its Director, Human Rights and Anti-Harassment Co-ordination. In its submissions, DND advised the CHRC that it concurred with the conclusion of the human rights officer that because of the delay, the CHRC should not deal with complaint, since commencing an investigation almost ten years after the alleged events would prejudice the ability of the CAF to defend its position. In its submissions, DND also characterized the complaint as "misleading" in that according to DND, the complainant was not dismissed for medical reasons, but rather applied for and was granted voluntary release. In closing, the submissions of DND stated as follows:
| In summary, the recommendation of the Human Rights Officer that this complaint not be dealt with is fully supported. Should the Commission decide to exercise its discretionary powers, the ability of the CF to provide a defence would be prejudiced by the significant amount of time elapsed, the difficulty of locating witnesses, and the accuracy of their recollections. Therefore, it is recommended that the complaint not be taken into time. |
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On April 18, 1996, the Commission considered the complaint. The information before the Commission included the complaint form, the "Section 40/41 Analysis" Report, the submissions of DND dated March 8, 1996, and the submissions of the complainant dated March 10, 1996. By letter dated April 18, 1996, the Commission advised each of the parties that, having reviewed the material, it had decided to accept and to investigate the complaint of Ms. Burnell. The letter of the Commission stated in part:
| The Commission has decided to exercise its discretionary power to extend the time limit within which the complaint may be filed. The Commission has therefore decided, pursuant to paragraph 41(e) of the Canadian Human Rights Act, to deal with the complaint even though the act complained of occurred more than one year before the receipt of the complaint by the Commission. |
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On May 17, 1996, the applicant, the Attorney General of Canada, filed this application for judicial review of that decision. I understand the CHRC, at the request of the applicant, agreed to suspend commencement of its investigation pending the outcome of these proceedings. This application came on before me in Ottawa at the beginning of April, 1997, when, after hearing submissions of the Attorney General and the CHRC as intervenor, I reserved my decision. I now dismiss the application for the reasons that follow.
Analysis
I am not satisfied that the CHRC, by deciding to accept and investigate the complaint of Ms. Burnell, has acted upon any wrong principle or has exercised its discretion in an improper manner so as to justify interference by this Court.
Pursuant to s.41 of the Act, where a complaint has been filed, the CHRC is required to deal with that complaint, unless the CHRC, in its discretion, determines that the complaint should not be so dealt with on basis of one of the grounds outlined in paragraphs (a) to (e). Among these grounds is s-s.41(e), which provides that the CHRC may refuse to deal with a complaint where:
| (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. |
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The decision by the CHRC to refuse to accept a complaint on the basis that it is "time-barred" is therefore a discretionary one. Although s-s.41(e) provides for a regular one year limitation period, beyond which the CHRC may refuse to deal with a complaint, the determination that a complaint is out of time is a matter clearly within the discretion of the CHRC. The discretionary nature of a decision under s-s.41(e) of the Act was described by Noel J. Canadian Broadcasting Corp. (CBC) v. Canada (Canadian Human Rights Commission)3 as follows:
| This provision has been construed by this Court as giving the Commission the discretion to deal with a complaint based on facts occurring more than one year before its filing. Conversely, this Court has held that the Commission does not have the jurisdiction to deal with a time-barred complaint unless it first exercises its discretion to do so under paragraph 41(e).4 |
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In the present case, upon reviewing the record of the material before the CHRC, and upon consideration of the particular circumstances of this case, I am satisfied that the CHRC exercised its discretion on the basis of proper principles and a consideration of all relevant circumstances.
The decision by the CHRC to accept a complaint is clearly a preliminary one, which, barring exceptional circumstances such as those outlined in paragraphs (a) to (e) of s.41, the Commission is bound to undertake, in accord with s.41 and in light of its statutory purpose. It is, in my view, an administrative decision, falling squarely within the competence and discretion of the CHRC, one with which the Courts should be reluctant to interfere.5 As such a determination precedes the appointment of an investigator, there is not, as the submissions of the applicant appear to suggest, an evidentiary requirement, nor a threshold as to whether "further inquiry is warranted" such as that provided in s.49 of the Act. The Commission is not bound to accept the recommendation of the human rights officer, but rather, as stated in the February 29, 1996 letter from the CHRC to DND, in considering the matter, the CHRC may "decide to accept, change, or reject" the officer's recommendation. Unless it has decided not to deal with a complaint, the Commission is not required to give reasons for its decision.6
I do not accept the argument advanced by counsel for the applicant that the Commission erred by ignoring or failing to consider properly the provisions of s-s. 41(b) of the Act. Pursuant to s-s. 41(b), the Commission has the discretion to refuse to deal with a complaint where "it appears to the Commission" that the "complaint is one which could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act".
There is no evidence, in my view, to suggest that in the circumstances of this case the Commission was bound to consider the complaint completely dealt with, as opposed to initially dealt with, by the redress of grievance procedure provided under the National Defence Act. Assessing the effects of other statutory procedures on the right to file a complaint under the Act is a determination within the discretion of the Commission to make. Although the complainant in the present case had utilized the CAF's grievance procedure, that procedure had been exhausted by the time she ultimately filed her complaint with the CHRC. This the Commission knew from the complaint filed by Ms. Burnell, and from the Section 40/41 Analysis, which were both before the Commission when it made its decision to accept the complaint. There is no ground here established to conclude the Commission erred in exercise of its discretion to investigate the complaint, even though the grievance of the applicant had been dismissed by the Governor in Council.
In my view, there is no evidence to suggest that the CHRC in the present case has failed to exercise its statutory discretion in good faith, or based its decision on improper or irrelevant considerations. Following completion of the Section 40/41 Analysis, the CHRC provided the parties with a copy of the Analysis, and invited them to make submissions. After considering these submissions, the Section 40/41 Analysis completed by the human rights officer, and the original complaint, the CHRC decided to exercise its discretion pursuant to s-s. 41(1)(e) to deal with the complaint. Concern regarding possible prejudice was contained in the submissions of the applicant, which were before the CHRC in making its decision. There is no evidence to suggest these submissions were not considered.
I do not accept the argument put forth by the applicant that for the CHRC to proceed to investigate the complaint will result in prejudice to DND. According to the applicant, the decision to accept and to investigate the complaint is unreasonable in that it will prejudice the ability of the CHRC to conduct a proper investigation as well as the ability of the DND and the CAF to defend against the claimant's allegations. In particular, the applicant submits that given the passage of some eight to ten years since the alleged incidents, evidence will be difficult to obtain, and the memories of witnesses faded, impairing any effort to defend against the complaint. Those factors may ultimately have some effect in any investigation the CHRC may undertake, but at this preliminary stage there is no evidence that these concerns will prove to be true in any investigation.
I do not accept that prejudice is established by the argument on behalf of the applicant A claim of prejudice is not a self-evident truth. In order to substantiate such a claim, specific evidence must be adduced to support it. The applicant is required, in my view, to adduce sufficient evidence to establish that the delay is "such that it prevents the tribunal from adequately fulfilling its legislative mandate in accordance with the requirements of natural justice".7 To simply point to a lengthy delay does not lead inexorably to the conclusion that prejudice will be suffered. Rather, there must be some concrete basis in fact which demonstrates the delay is so unacceptable or disabling in nature so as to preclude a fair and complete investigation from being conducted. Otherwise, concern about the effects of the delay is merely speculative. As stated by Mr. Justice Décary, J. in Canadian Airlines International Ltd. v. Canada (Human Rights Commission)8 citing the comments of the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Commission)9:
| ...The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing. |
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He then stated:
| ...The accent is to be put on the nature of the prejudice suffered by a party rather than on the cause for the delay or on the length of the delay.10 |
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While the delay in this case has undoubtedly been lengthy, in my view, the applicant has failed to adduce sufficient evidence to establish that prejudice will be suffered as a result of the decision by the CHRC to accept and to investigate the complaint of Ms. Burnell. While the applicant refers in a general sense to the inability of DND to make a full defence, and to the fading memories of witnesses, these allegations are not, in my view, sufficient to establish actual prejudice. In Belloni, in response to a similar claim by the applicant in that case that for the CHRC to proceed with a complaint after some fifty months delay would prejudice the applicant's ability to make a full answer and defence, Mr. Justice Décary of the Federal Court of Appeal, concluded as follows:
| The alleged prejudice falls way short, in our view, of the high threshold that has to be crossed by [the applicant]. |
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| The fading of the recollection of witnesses is a prejudice inherent in our system and is not even recognized in most criminal cases, where, for example a new trial is ordered by the Supreme Court of Canada. We are talking here of a period of some fifty months, regrettably long, but by no means exceptional. [...]. |
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| The inability to obtain potential witnesses has not been demonstrated. The mere fact that a probable witness is no longer employed by [the applicant] does not indicate he cannot be found. Nor does it indicate the impact the absence of that witness might have on the ability of Canadian to present a full defence.11 |
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For the same reasons, I am not persuaded that the applicant in this case has established that it would suffer prejudice as a result of the CHRC decision to consider the complaint of Ms. Burnell.
Conclusion
I am not persuaded that the applicant has raised any ground which warrants the intervention of the Court in this case.
In my view, there is no evidence to suggest that the decision by the Commission to accept the complaint of Ms. Burnell, notwithstanding the delay, involves any reviewable error. This decision is a discretionary one, reached by the Commission on the basis of the evidence before it, which included the written submissions of DND regarding the length of the delay, and the possible prejudice it would suffer should the complaint be accepted. There is no evidence to suggest that, in reaching its decision, the Commission has acted in bad faith, for an improper purpose, or has ignored relevant considerations or acted in an arbitrary or capricious manner.
Further, as outlined above, the applicant has failed to establish that actual prejudice would be suffered by DND by virtue of the Commission's decision to accept the complaint of Ms. Burnell, and there is no evidence at this stage that would warrant a conclusion that the delay is so lengthy as to prevent a fair investigation from being conducted by the Commission.
In these circumstances, an Order goes to dismiss the application for judicial review.
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JUDGE
OTTAWA, Ontario
July 2, 1997.
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1. The complaint was initially filed by Ms. Burnell on November 26, 1994, and was accepted in final form, by the CHRC on June 6, 1995.
2. The complainant filed three separate applications for redress of grievance between January 3, 1986 and September 29, 1986, which pertained to (1) alleged harassment and discrimination perpetrated by her former Commanding Officer;. (2) a summary trial disciplinary proceeding in which she received a reprimand for negligent performance of duty and (3) her 1985 performance evaluation. These three applications received Ministerial consideration, and on October 30, 1992 redress was denied. The complainant then requested the complaints be referred to the Governor in Council.
3. (1993), 71 F.T.R. 214.
4. In support, Noel J. cited Attorney General of Canada v. Canadian Human Rights Commission and Ernest Boone, T-1187-92, February 8, 1993, (F.C.T.D.) [Please see [1993] F.C.J. No. 112], at p. 18, and Canada (Attorney General) v. Canadian Human Rights Commission et al., (1991) 43 F.T.R. 47, at p. 64.
5. Canada (Attorney General) v. Merrick, [1996] 1 F.C. 704 (T.D.).
6. See subsection 42(2) of the Act.
7. Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638 at 641 [Hereinafter referred to as "Belloni"].
8. Belloni , supra note 7 at 640.
9. (1993), 101 D.L.R. (4th) 744 at 757; [1993] 4 W.W.R. 420 (Man. C.A.); leave to appeal to S.C.C. refused [1993] 4 S.C.R. vi.
10. Belloni, supra, note 7 at 641.
11. Belloni, supra, note 7 at 642.
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