Date: 20101207
Docket: T-167-10
Citation: 2010 FC 1232
Ottawa, Ontario, December 7,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PUIYEE
CHAN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1]
This
is an application for judicial review of the decision dated December 23, 2009
(Decision) of the Canadian Human Rights Commission (Commission) that refused to
consider the Applicant’s complaint (Complaint) against Elections Canada on the
basis that the Complaint fell within subsection 41(1)(d) of the Canadian
Human Rights Act (R.S., 1985, c. H-6) (Act) because
an independent investigator had already conducted a thorough investigation of
the Applicant’s allegations.
BACKGROUND
[2]
The
Applicant, Ms. Puiyee Chan, was an employee of Elections Canada at the material
time.
[3]
The
Applicant believes that she experienced discrimination and harassment in the
workplace in 2004 and 2005.
[4]
On
November 16, 2005, the Applicant attended a meeting with her immediate
supervisor (Ms. Whitridge) and her supervisor (Mr. Bastarache) in order to
discuss some matters in dispute in the workplace, including the Applicant’s
work performance and her absenteeism.
[5]
On
November 17, 2005, the Applicant did not come to work. She went on paid sick
leave, and later unpaid sick leave, until she retired on October 6, 2008.
[6]
The
Applicant filed a harassment complaint with Elections Canada about a year after
she stopped coming to work, on November 6, 2006. Elections Canada commissioned
an independent investigation of the Applicant’s allegations. The
resulting report (Textus Report) concluded that all of Ms. Chan’s allegations
were unfounded.
[7]
The
Applicant filed a Complaint alleging harassment and discrimination to the
Commission on November 24, 2008.
[8]
On
December 23, 2009, the Commission held that the Applicant’s Complaint had
already been considered through alternatives redress – the independent external
investigation commissioned by Elections Canada in 2007 – and dismissed the Complaint.
[9]
On
February 4, 2010, the Applicant brought the within application for judicial
review of the Commission’s decision.
DECISION
[10]
The
Commission reviewed the Investigator’s Report dated October 27, 2009
(Investigator’s Report) and decided “pursuant to paragraph 41(1)(d) of
the Canadian Human Rights Act, not to deal with the complaint.”
[11]
The
reason why the Commission felt the Complaint fell within paragraph 41(1)(d)
of the Act was because “an independent investigator has conducted a thorough
investigation of the complainant’s allegations.”
[12]
The
Commission also adopted the following conclusions from the Investigator’s
Report:
However, while the complainant is not
satisfied with the results of the internal harassment investigation, this is
not sufficient reason for the Commission to deal with a complaint that has
already been considered through alternate redress. The respondent’s internal
harassment complaint process allowed for an investigation by an independent,
external investigator, who appears to have conducted his investigation in a
similar way that a Commission investigator would. The independent investigator
reviewed documentary evidence, spoke to relevant witnesses (many of whom the
complainant suggested), and provided the parties with the opportunity to
comment on a draft report outlining his findings. There is nothing to suggest
that the internal harassment investigation omitted evidence or information that
the Commission should now consider.
Based on the above, the circumstances
indicate that it would not be in the public interest, or in the interest of
administrative efficiency, for the Commission to now deal with this complaint
following the other process.
ISSUES RAISED
[13]
The
Applicant raises the following issues for consideration:
a.
What
is the appropriate standard of review?
b.
Did
the Commission have the jurisdiction to decide not to deal with the Applicant’s
complaint?
STANDARD OF REVIEW
[14]
The
Applicant raises a jurisdictional issue which, if the Applicant’s characterization
is correct, should be reviewed on a standard of correctness. See Dunsmuir,
above, at paragraph 59.
[15]
In
my view, however, the Applicant has not raised issues that go to jurisdiction.
Her complaint is that the Commission did not appropriately apply subsection
41(1)(d) of the Act to the facts before it. In my view, this issue
should attract a standard of reasonableness. Notwithstanding Justice
Rothstein’s words in Canada Post Corp. v. Canada (Canadian
Human Rights Commission) (re Canadian Postmasters and Assistants
Assn.) (1997), 130 F.T.R. 241, [1997] F.C.J. No. 578 [Canadian
Postmasters] at paragraph 3, that “the Commission should only decide not to
deal with a complaint at this stage in plain and obvious cases,” the more
recent jurisprudence of the court, and in particular the post Dunsmuir
decisions, have used reasonableness as the appropriate standard of review when
the Commission decides not to deal with a complaint under subsection 41(1)(d).
See English-Baker v. Canada (Attorney General), 2009 FC 1253, [2009]
F.C.J. No. 1604, at paragraph 13; Verhelle v. Canada Post Corp., 2010 FC
416, [2010] F.C.J. No. 481 at paragraphs 6 and 7; Morin v. Canada (Attorney
General), 2007 FC 1355 (aff’d 2008 FCA 269), [2007] F.C.J. No. 1741 at
paragraph 25.
[16]
The
Supreme Court of Canada in Dunsmuir, above, held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[17]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY PROVISIONS
[18]
The
following provisions from the Act are applicable in this case:
|
41. (1)
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.
|
41. (1) Sous réserve de
l’article 40, la Commission statue sur toute plainte dont elle est saisie à
moins qu’elle estime celle-ci irrecevable pour un des motifs suivants :
a)
la victime présumée de l’acte discriminatoire devrait épuiser d’abord les
recours internes ou les procédures d’appel ou de règlement des griefs qui lui
sont normalement ouverts;
b)
la plainte pourrait avantageusement être instruite, dans un premier temps ou
à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c)
la plainte n’est pas de sa compétence;
d)
la plainte est frivole, vexatoire ou entachée de mauvaise foi;
e)
la plainte a été déposée après l’expiration d’un délai d’un an après le
dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur
que la Commission estime indiqué dans les circonstances.
|
ARGUMENTS
The Applicant
[19]
The
Applicant says that the Commission did not have the jurisdiction to decide not
to deal with the Complaint and can refuse only if it is “plain and obvious”
that a complaint falls under one of the grounds set out in section 41 of the
Act. See Canadian Postmasters, above, at paragraph 3.
[20]
The Applicant
also says that the Commission decided not to deal with the Complaint because
any further investigation would not be in the public interest or in the
interest of administrative efficiency. Hence, the Commission applied the wrong
standard and committed an error of law.
[21]
The
Applicant points out that this Court has expressly held that the Commission
cannot refuse to exercise its jurisdiction simply because the matter has
already been decided in another forum, which is what the Commission did in this
case. See Boudreault v. Canada (Attorney General) (1995), 99 F.T.R. 293,
[1995] F.C.J. No. 1055, at paragraph 17.
[22]
The
Commission may refuse to deal with a complaint where the allegations have been
adjudicated by another administrative body exercising concurrent jurisdiction
over the matter at issue. However, in such cases, the Commission must examine
the substance of the decision of the other administrative body before
determining whether or not to deal with the complaint. See Canada Post
Corporation v. Barrette, [2000] 4 F.C. 145, [2000] F.C.J. No. 539 at
paragraph 28.
[23]
In
the present case, the Applicant says there is no indication that the Commission
assessed the scope of the investigations carried out by Textus or the
appropriateness of those findings. The Applicant’s Complaint raised issues that
Textus did not examine and for which Textus did not apply a proper human rights
analysis or refer to any of the provisions of the Act. Textus investigated
allegations of harassment, not discrimination.
The Respondent
[24]
The
Respondent says that the Commission dismissed the Complaint on the basis that
it had already been dealt with through alternative redress. A previous
investigation had been conducted by an independent, external investigator, who
had held that the Applicant’s complaints were unfounded. The Commission found
that Textus had employed a methodology similar to that used by a Commission
investigator and that there was no additional evidence to be considered. The
Decision was reasonable and the application should be dismissed.
[25]
The Textus
Report addressed all of the allegations set out by the Applicant in her
Complaint to the Commission. The allegations raised by the Applicant before the
Commission were substantially the same as those dealt with in the Textus Report.
[26]
As
for the Applicant’s submission that Textus did not examine or make findings
about discrimination based on ethnic origin, it is not clear that there are any
such allegations in the Complaint before the Commission.
[27]
Boudreault, above, is
distinguishable because, in the present case, the Commission based its Decision
on the fact that the Complaint had already been investigated as well as
on the substance of the Textus report, the thoroughness of the investigation,
and consideration as to whether the Textus investigation had been conducted on
a fair and appropriate manner.
ANALYSIS
[28]
The
Decision makes clear that the Commission declined to deal with the Complaint,
relying upon subsection 41(1)(d) of the Act, which reads as follows:
|
41. (1)
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
…
(d) the complaint is
trivial, frivolous, vexatious or made in bad faith; or
|
41. (1)
Sous réserve de l’article 40, la Commission statue sur toute plainte dont
elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des
motifs suivants :
…
d)
la plainte est frivole, vexatoire ou entachée de mauvaise foi;
|
[29]
Section
41 of the Act clearly extends to the Commission the power and jurisdiction to
refuse to deal with any complaint, provided it appears to the Commission that
one of the grounds of exclusion enumerated under section 41 is applicable.
[30]
It
seems to me, then, that the Commission clearly had the jurisdiction not to deal
with the Complaint in this case. The only issue is whether it appeared to the
Commission that one of the exclusionary grounds applied. The Commission
identified and relied upon subsection 41(1)(d). Hence, the issue is
whether, in relying upon subsection 41(1)(d), the Commission did so
appropriately. In the body of her arguments, the Applicant says that, in
deciding this issue, the Commission applied the wrong test and so committed an
error of law.
[31]
She
says that the Commission decided not to deal with her Complaint on the grounds
that an investigation would not be in the “public interest” or in the “interest
of administrative efficiency” and that this is the wrong standard. However, the
Applicant is quoting these words out of context.
[32]
When
the Decision is read as a whole, the Commission’s reason for not dealing with
the Complaint and for applying subsection 41(1)(d) of the Act is that
“an independent investigator has conducted a thorough investigation of the
complainants allegations.” This rationale is further expanded upon where the
Commission cites and adopts wording from the Commission Investigator’s Report.
That Report does say that “it would not be in the public interest, or in the
interest of administrative efficiency, for the Commission to now deal with this
complaint following the other process,” but this comment is not the test
applied, and it is not the reason for the Decision. The reason for the Decision
is that subsection 41(1)(d) applies because:
a.
The
Complaint has already been considered through alternate redress;
b.
The
Elections Canada internal harassment complaint process allowed for an
investigation by an independent, external investigator, who appears to have
conducted his investigation in a similar way that a Commission investigator
would;
c.
The independent
investigator (i.e. Textus) reviewed documentary evidence, spoke to relevant
witnesses (many of whom the complainant suggested) and provided the parties
with the opportunity to comment on a draft report outlining its findings;
d.
There
is nothing to suggest that the internal harassment investigation omitted
evidence or information that the Commission should now consider.
[33]
Hence,
in my view, the only issue before me in this case is whether the Commission
reasonably applied subsection 41(1)(d) of the Act to the facts of this
case.
[34]
The
Applicant says that the earlier Textus investigation and Report did not deal
with all aspects of her complaint and was not an appropriate substitute for a
Commission investigation. These points, however, go to the reasonableness of
the Decision, which the Applicant does not raise as an issue in her written
submissions and which are, in any event, unsubstantiated by the record. In my
view, the record shows that the allegations dealt with by Textus were
substantially the same as those raised in the Complaint placed before the
Commission. There is not a sufficient difference between the allegations before
Textus and the allegations in the Complaint to render the Commission’s Decision
unreasonable. In effect, the allegations in the Complaint had already been
subjected to an independent investigation that was conducted in a manner
similar to a Commission investigation. There was no point in simply repeating
the exercise.
[35]
In
oral argument the Applicant raised a variety of reasons why it was not
reasonable for the Commission to accept and rely upon the earlier Textus
investigation and report when deciding the subsection 41(1)(d) issue:
a.
It
effectively allows an employer to by-pass the whole human rights system by
using a private investigator;
b.
It
means that an applicant loses remedies because the report of a hired
investigator cannot be judicially reviewed;
c.
A
neutral entity is required to investigate discrimination and human rights
issues;
d.
It
is not possible for an applicant to contract out of the Act and, on the facts
of this case, the Applicant did not waive her rights to a Commission
investigation;
e.
If a
previous decision is relied upon, the Commission must turn its mind to and
examine the process and the findings, which did not occur in this case;
f.
A
previous decision can be relied upon only if the body making the decision has
concurrent jurisdiction with the Commission on human rights matters;
g.
The
Textus investigation and Report relied upon by the Commission in this case
contains glaring errors when it comes to human rights principles. In
particular, the Textus Report does not deal with discrimination, which needs to
be examined by a human rights expert;
h.
This
was a textbook case of the employer retaliating against a sick employee, and
Textus did not recognize this or refer to the relevant provisions in the Act;
i.
Even
if it was reasonable for the Commission to rely upon the Textus investigation
and Report, the Applicant raised new issues of discrimination in her Complaint
to the Commission and the matter should be sent back so that the Commission can
deal with these new issues;
j.
Not
to allow this application would create a very bad precedent because it would
allow employers to escape human rights scrutiny by hiring private
investigators;
k.
The
Applicant has never had her allegations adjudicated by an independent body and
she is not simply attempting to re-litigate the allegations she has raised.
[36]
On
the facts of this case, I do not see how there has been any attempt by any
party involved to by-pass the human rights system. Like anyone else who files a
complaint with the Commission, the Applicant’s Complaint is subject to subsection
41(1) of the Act. She has in fact accessed the human rights system and has been
dealt with in a way that the system allows.
[37]
The
Commission’s Decision was based upon, and made only after, an Investigator’s
Report that addresses and instructs the Commission concerning the law on using
previous reports. The Investigator’s Report also examines the Textus Report
from the point of view of independent external investigation, with specific
reference to: the conduct of the Textus investigation and whether it was
conducted in a similar way to a Commission investigation; the review of
documentary evidence; interviewing witnesses (including those suggested by the
Applicant); and providing the parties with an opportunity to comment on a draft
report outlining the Textus findings.
[38]
I do
not think that allowing reliance upon a previous report such as the Textus Report
would create a dangerous precedent because each case would require a stringent
review of the previous report to ensure that it had been conducted in a way,
and provided a result, that is equivalent to a Commission investigation. If it
did not, then, as occurs in any case where subsection 41(1) is used to decline
to investigate further, the applicant will have a right to apply for judicial
review. All that is occurring in such a situation is that the Commission investigator
is advising the Commission that the investigative work required by the
complaint in question has already been done in such a way that further investigation
by an investigator under the Act is not necessary. This will, of course, be a
stringent assessment in each case because the investigator and the Commission
will have to turn their minds to the requirements and safeguards of the Act and
decide whether the appropriate standards have been met. I can see no reason in
principle why this cannot be done, however, and the Applicant has cited no case
that says that reliance cannot be placed upon the report of an independent,
external investigator when deciding whether subsection 41(1)(d) of the
Act should be applied.
[39]
In
my view, then, the issue before the Court is whether it was reasonable for the
Commission to rely upon the Textus Report in the way it did. The Applicant says
that it was not reasonable because the Textus Report was not neutral, it did
not appropriately address the human rights dimension contained in the
Applicant’s Complaint, and it did not address new issues that were raised in
the Applicant’s Complaint to the Commission.
[40]
There
is no evidence before me that the Textus investigation and Report lacked
neutrality or objectivity, and so I cannot say that the Commission placed
unreasonable reliance upon it for this reason. The Commission investigator
obviously examined this issue and reported that the Textus Report constituted
an investigation by an independent external investigator.
[41]
The investigator’s
Report does, however, characterize the Textus Report as an examination of
Elections Canada’s “internal harassment complaint process,” and so the issue
arises as to whether discrimination issues were appropriately addressed. The
Applicant’s initial letter of complaint to the Commission dated November 8,
2006, referred to harassment and discrimination issues. The Respondent says
that this letter makes no reference to race or ethnic background as a basis for
discrimination. The Applicant elaborates on her discrimination allegations when
she says that she had been
quoted
as having odd behaviours and was asked to take a psychological assessment. The
way I dressed might look odd but I am not odd; I just look different from the
majority and I have a different way to handle my personal life. Why did the
office judge me?
In
the year 2005, I experienced menopause symptoms and felt exceptionally cold in
the office. I put on a jacket, hat and scarf. I was perceived as having an odd behaviour.
My right how to deal with a cold office has been violated. Have they
discriminated against me because of my health disability? For your information,
I did take a psychological test and I have NO psychological problem.
I
used to take a naturopath approach to deal with my migraines. On November 16,
2005, the office demanded a doctor’s certificate for less than an hour’s sick
leave. Now I will be forced take tylenol. This means my right to choose a
medical remedy (naturopath versus western medicine) has been taken away by the
office. The office is discriminating against me due to my choice of medical
remedy. In 2005, I took a bit more sick leave than before due to the onset of
menopause.
[42]
The Applicant’s
amended summary of her complaint to the Commission expands upon the episodes of
harassment and discrimination because of her illness and behavior, but it does
not refer to ethnic or cultural discrimination.
[43]
In
her November 17, 2009 response to the Investigator’s section 41(1) analysis,
the Applicant does refer to race and ethnicity issues as being new issues with
which Textus did not deal. However, she provides little in the way of
substance:
a.
She
says that in August 2005 “Ms. Whitridge made racial remark about my English in
a 4-person meeting”;
b.
She
says that on September 26, 2005 “Ms. Whitridge named four behaviors of mine as
odd. They are: wearing outdoor clothes inside office, pushing chair, running in
the street and standing behind a tree.”
She then says that “the
clothing issue is discrimination based on ethnicity. The other three are
discrimination based on race.”
[44]
There
is little of substance in these new claims based upon ethnicity and race. If
the Applicant claims, for example, that pushing a chair or standing behind a
tree are race or ethnic issues then I think that something further is required
to explain to the Commission how they can possibly be so characterized. Ms.
Whitridge’s comment about the tree, for example, was that “She is concerned
about pollution outside as she waits for her bus, and will hide behind trees to
avoid bad air.” This comment was investigated by Textus. I fail to see how it
is a new issue or what it has to do with race or ethnicity. A simple assertion,
at this late stage in the proceeding, that there are race and ethnic issues to
deal with without any real explanation cannot, in my view, render the Decision
unreasonable. And if the Applicant is of the view that if the comment about the
tree gives rise to race and ethnic issues then it seems to me that her
allegations about new discrimination issues based upon race and ethnicity
cannot be taken seriously. The comment at the meeting was, apparently, that Ms.
Whitridge could not understand the Applicant’s English. This was raised only in
2008, and I can find little in the record to explain why the Applicant should
have waited so long to introduce this new issue when she says in her letter of
August 24, 2009 to the Commission that she “presented a complete complaint to CHRC
in November 6, 2006.” There is just not sufficient evidence before me to be
able to say that the Commission was unreasonable to rely upon the Textus Report
because it did not deal with what the Applicant later alleged were new race and
ethnic issues but gave no real grounds for any such claim.
[45]
This
leaves the Applicant’s allegation that the Commission was unreasonable to rely
upon the Textus Report because it failed to address the human rights dimensions
of the Applicant’s complaints and made glaring errors with regard to human
rights principles. My reading of the Textus Report leads me to the conclusion
that, when read in its entirely, the Textus investigator is fully alive to
discrimination issues and deals with them in a competent and knowledgeable way.
The allegations are found to be unfounded. The Textus Report shows an awareness
of CHRC principles and even refers to the “CHRC’s position that the employer
still has the right to demand a medical certificate, which is not considered
discriminatory in accordance with CHRA.”
[46]
I
can see that the Applicant disagrees with the Decision and wishes to take issue
with it, but I cannot say that it is unreasonable within the meaning of Dunsmuir,
above, in the way that it examines and relies upon the Textus Report to find
that alternative redress his already taken place and that subsection 41(1)(d)
of the Act applies in this case because “an independent investigator has
conducted a thorough investigation of the complainant’s allegations.”
[47]
This
is not a situation, in my view, where Boudreault, above, applies. In Boudreault,
the applicant argued that the Commission simply adopted the decision of the
appeal board established under section 31 of the Public Service Employment
Act, R.S.C. 1985, c. P-33 rather than exercising its own discretion. Justice
Tremblay-Lamer relied upon Burke et al. v. CHRC (1987), 125 N.R. 239
(F.C.A.) and Pitawanakwat v. CHRC (1987), 125 N.R. 237 (F.C.A.) for the
proposition that if an applicant “has taken advantage of the available internal
remedies, the Commission may not refuse to exercise its jurisdiction on the
ground that the matter has already been decided” (paragraph 14). The rationale
for Boudreault is provided at paragraph 17:
The Commission thus did not exercise its discretion reasonably,
since it based its decision not on its assessment of the case but on the fact
that the appeal board had already dealt with the matter. The Commission
therefore committed an error of law by refusing to exercise its jurisdiction in
the case at bar.
[48]
First,
I think it is worth pointing out that Justice Tremblay-Lamer applied a
reasonableness standard to the issue of whether the Commission did not exercise
its discretion. Second, the basis for the decision in Boudreault is that
the Commission failed to exercise its discretion because it simply relied upon
the prior decision of the appeal board.
[49]
In
the present case, the Commission does not simply rely upon the decision of the
Textus investigator. In fact, the Commission Investigator’s Report upon which
the Commission relies for its Decision goes out of its way to advise the
Commission of the significance of Boudreault and what the Commission
must do to ensure it does not fall into the error committed in Boudreault.
This occurs at paragraphs 53 to 83 of the Investigator’s Report. In particular,
the following are worth quoting:
a.
Prior to April 27th,
2009, the Commission did not accept a complaint from the complainant as the
allegations of discrimination in the complaint could be dealt with through a
grievance of review procedure available to the complainant. The complainant was
advised that, at the end of the grievance or review procedure, he/she could ask
the Commission to activate the complaint.
b.
At the completion of
the other process, the complainant returned to the Commission to ask that the
complaint be activated.
c.
The issue to be
decided at this time is whether the Commission should refuse to deal with the
complaint under section 41(1)(d) of the Act on the basis that the
allegations of discrimination have been addressed through the other process.
Two Federal Court of Canada decisions have clarified the Commission’s role in
this type of situation.
d.
In Boudreault,
the Federal Court decided that the Commission cannot refuse to deal with a
complaint on the basis that it has already been dealt with by another process.
The Commission must review the evidence itself and make its own decision as to
the proper disposition of the case. However, the evidence gathered through the
other process, including documents and witness testimony, can be used by the
Commission in arriving at its decision.
e.
On the other hand, in
Barrette, the Federal Court of Appeal reviewed a decision relating to an
individual who had launched both a grievance and a human rights complaint
against his employer. Upon receiving an unfavorable arbitration decision, the
individual filed a human rights complaint, which prompted an objection from the
employer on the grounds that the matter had been resolved in another forum. The
court decided that “the Commission must, at least, turn its mind to the
decision of the arbitrator to examine whether, in light of that decision and of
the findings of fact and credibility made by the arbitrator, the complaint may
not be such as to attract the application of paragraph 41(1)(d) –
complaints that are “trivial, frivolous, vexatious or made in bad faith’.”
f.
Thus, while the
Commission cannot rely on the decision of another process to dismiss a
complaint but must make up its own mind (Boudreault), it also has the
responsibility to examine whether it is in the public interest to deal with the
complaint before carrying out its own investigation into the matter (Barrette).
g.
In deciding whether
or not to deal with the complaint under section 41(1)(d) of the Act, the
Commission may consider the following factors:
i.
When was the
grievance or other review procedure completed?
ii.
Was a final decision
made?
iii.
Were all of the human
rights allegations addressed by the grievance or other review procedure? What
human rights allegations, if any, were not addressed? In what way were these
allegations not addressed? Why were they not addressed?
iv.
What remedies were
requested in the grievance or other review procedure?
v.
What remedies were
granted or ordered in the grievance or other review procedure, if any?
vi.
If all of the human
rights issues were dealt with, are there other reasons why the Commission
should now deal with the complaint?
[50]
This
is not a case, then, where the Commission declined to exercise its discretion
and simply relied upon a previous decision. The Commission, in the present
case, reviewed the process and findings of the Textus investigation together
with the Applicant’s comments upon the Investigator’s Report that referred to
her objections to the Textus investigation and then made up its own mind as to
whether the Complaint had been dealt with so as not to require further
investigation by the Commission. In accordance with Barrette, above, the
Commission turned its mind to examine whether, in light of the previous
investigation and its findings, the complaint attracted subsection 41(1)(d).
It concluded that it did. I cannot say that this finding was unreasonable
within the range stipulated by Dunsmuir, above.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The application for judicial
review is dismissed with costs to the Respondent.
“James
Russell”
Email this Content