Date: 20100414
Docket: T-134-09
Citation: 2010 FC 404
Ottawa, Ontario, April 14,
2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CLAYTON
N. DONOHUE
Applicant
and
THE
MINISTER OF NATIONAL DEFENSE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, for judicial review of a decision by the Canadian Human
Rights Commission (the CHRC or the Commission), dated December 10, 2008 to not
deal with a complaint filed by the applicant against the Canadian Armed Forces
(the Forces) on November 30, 2007, because the complaint was based on acts that
occurred more than one year before the complaint was filed.
[2]
The
applicant seeks an order quashing the decision of the Commission and compelling
it to review the merits of his complaint filed on November 30, 2007.
Background
[3]
The
background to this case is summed up by Prothonotary Milczynski in Donoghue
v. Canada (Minister of
National Defence), 2004 FC 733, [2004] F.C.J. No. 889, a previous
case stemming from the same series of events (see paragraphs 8 to 27).
[4]
The
applicant was a reservist. Between the years 1996 to 1998, a number of
incidents arose involving the applicant and other members of his unit within
the Forces. These incidents were coloured by a concurrent labour dispute which
was a result of the Forces’ annexation of the reserves.
[5]
The
applicant was released from the Forces in March 1999. Despite successfully
grieving his release in 2000, internal rules within the Forces meant he was
offered only re-enrolment, as opposed to reinstatement. Upon completing a
mandatory medical examination, the applicant was found not suitable for
re-enrolment due to poor vision. The applicant took exception and attributed his
vision problems to the events that transpired between 1996 and 1998. The
applicant was given the opportunity to have the re-enrolment determination reheard,
but in a letter dated May 30, 2001, the applicant voluntarily withdrew from the
re-enrolment process.
[6]
Later,
the applicant requested that the official reason for his departure be changed
on his record of service to “release upon request”. The Forces complied.
[7]
The
applicant continued to pursue his case through other channels, indicating that
he would commence litigation and sent letters to successive Ministers of
Defence and the Ombudsman’s Office. The applicant also initiated investigations
with the Privacy Commission of Canada and the Military Police Complaints Commission,
alleging that his previous superiors had conspired to injure him. It appears
that both agencies took his complaints seriously, conducted investigations,
compiled reports and eventually closed their respective files.
[8]
In
an application to this Court in 2004, the applicant sought to quash several of
the decisions of the Forces that had resulted in his release. In Donoghue
above, Prothonotary Milczynski granted a motion to strike the application for a
number of reasons, concluding:
[40] It is clear and beyond doubt
that the Applicant cannot succeed on any basis claimed. The decisions
identified by the Applicant to be the subject of the judicial review are not
proper or final decisions that are capable of being reviewed. The first
decision (Hall) does not appear to exist. The second decision (Allard) is
simply a set of recommendations that the Applicant himself accepted.
[9]
On
November 30, 2007, the applicant filed a human rights complaint against the Forces
alleging that his release and his treatment prior to May 2001 constituted
discrimination on the basis of disability. The applicant described the
disability stemming from incidents in 1998 as “…eye injury as a result of
extreme stress due to “work place bullying””.
[10]
On
March 19, 2008, the applicant was advised that the Commission would likely
refuse to deal with his complaint pursuant to paragraph 41(1)(e) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the Act), because the alleged
incidents took place well over one year prior to the complaint. The applicant
indicated that he still wished to pursue the complaint. Both sides were given
the opportunity to make submissions solely on the issue of whether the
Commission should refuse to deal with the complaint.
[11]
In
the first letter to the Commission on July 26, 2008, the applicant argued that
his complaint was still current and attached a letter from the Forces
indicating that he still had an updated and open file. It referred specifically
to an application he had made to Veterans Affairs, which had recently sent him
a letter indicating that his application for disability benefits had been
granted.
[12]
In
the opinion of the Forces, the applicant’s application with Veterans Affairs
constituted neither a continuation of the discrimination complained of nor a
reasonable explanation for the delay. On the length of time issue, the Forces
responded that given the amount of time, it would be difficult to locate
witnesses, memories may no longer be accurate and that critical documentation
may no longer be available. The Forces also cited the applicant’s voluntary
withdrawal from the re-enrolment program in 2001.
[13]
In
a letter on September 20, 2008, the applicant considered that his proceedings
with the Forces internally, the Canadian Privacy Commission, the Federal Court,
the Military Police Complaint Commission and Veterans Affairs, were all
collaborated. These proceedings stemmed from the same incidents as the current
complaint and had consumed his time from 1998 until November of 2007. He also
stated that if any documents were missing, it was due to the Forces’ own gross
misconduct and that the key witnesses were all still available. As another
reason for the delay, he also stated that while still with the Forces, his
superiors had instructed him on several occasions not to go to the Commission
or to other outside entities with his complaints.
[14]
By
letter dated December 10, 2008, the Commission informed the applicant that it
would not deal with the complaint. A form attached had certain boxes checked
stating:
The last alleged discriminatory act
occurred more than one year before the receipt of the complaint by the
Commission and it is not appropriate to deal with the complaint because,
the complainant did not do everything
that a reasonable person would do in the circumstances to proceed with the
complaint.
. . .
the respondent has demonstrated that the
delay in signing the complaint has seriously prejudiced its ability to respond
to the complaint.
Issues
[15]
The
issues are as follows:
1. Did the Commission
offer the applicant a fair process?
2. Was
the Commission’s decision not to deal with the applicant’s complaint
reasonable?
Applicant’s Written Submissions
[16]
The
applicant submits that the Commission’s strict forms and ten page limit on
paragraph 41(1)(e) submissions hampered his ability to present his case. He
also claims the Forces’ submissions to the Commission were misleading and
unsupported by evidence.
[17]
It
would be unreasonable for the Commission to apply the one year rule strictly
since the internal processes in the Forces following his release and regarding
his medical conditions lasted well over one year. In his case, three years.
[18]
The
Commission was unreasonable to find that the last alleged discriminatory act
occurred in 2000 or 2001. The applicant’s dealing with Veterans Affairs
constitutes a continuum of the discrimination, since the applicant was required
to prove abuse to Veterans Affairs.
[19]
The
Commission’s finding that the applicant had not done everything that a
reasonable person would have done was unreasonable. There was a continuous link
of activities going on against the Forces from 1998 to 2004. The applicant’s
delay should be further excused because, while still a member of the Forces,
his superiors warned him not to go to the Commission.
[20]
In
the alternative, the Commission should have given the applicant’s case special
consideration due to his underlying and well documented mental health problems.
Respondent’s Submissions
[21]
The respondent submits that determinations of the Commission under
paragraph 41(1)(e) are highly discretional and should not readily be set aside.
Thus, the Commission’s decision should be given an extremely high level of
deference.
[22]
The respondent submits the decision was reasonable and the process
was fair. The Commission gave the applicant two opportunities to send
ten page submissions and provided him with copies of the material it
received from the Forces for him to comment on. This went beyond what is
required by procedural fairness. The decision, although in a form document,
indicated that the Commission had considered all the submissions and had
considered whether to exercise its discretion to extend the one year limit.
[23]
The respondent also submits that the decision was eminently
reasonable in light of the rationale for the one year rule. The applicant filed
his complaint almost a decade after the discrimination of which he complained
and more than three years after this Court struck an earlier application.
Further, the Forces explained that it had been unable to locate some of the
documents referred to in the complaint and may not be able to locate witnesses.
The applicant’s application with Veterans Affairs was not sufficiently
connected to this matter, such that it might explain the delay, nor did it
constitute a continuation of the discrimination.
[24]
With regard to the argument that the applicant’s medical condition
renders him other than a reasonable person, the respondent cites the numerous
places he sought relief to demonstrate that his ability to seek redress for
perceived wrongs does not seem to have been impaired by his mental state. With
regard to warnings from his superiors not to go to the Commission, the
respondent concedes that he was so warned, but there is only evidence that this
happened once in 1998. Even if the other warnings occurred, the last was in
2002 and since then, the applicant was always free to pursue this complaint.
Analysis and Decision
Standard of Review
[25]
The
Commission’s decision is appropriately reviewed against the standard of reasonableness.
While the respondent suggests that such decisions are to be accorded an
extremely high level of deference, I note that reasonableness is the only
deferential standard (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL)).
[26]
I
am however, mindful of Parliament’s clear intention to grant the Commission
freedom and discretion. The words of the Federal Court of Appeal in Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1
F.C. 113 (C.A.), are instructive:
[38] The Act grants the Commission a
remarkable degree of latitude when it is performing its screening function on
receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41
and 44 are replete with expressions such as "is satisfied",
"ought to", "reasonably available", "could more
appropriately be dealt with", "all the circumstances",
"considers appropriate in the circumstances" which leave no doubt as
to the intent of Parliament. The grounds set out for referral to another
authority (subsection 44(2)), for referral to the President of the Human Rights
Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph
44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif
v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698,
Le Dain J.A.), but it may safely be said as a general rule that Parliament did
not want the courts at this stage to intervene lightly in the decisions of the
Commission.
I adopt these comments.
[27]
Of
course, where an issue of procedural fairness is brought to the Court’s
attention, no federal board, commission or tribunal is to be afforded
deference. Administrative processes, including the Commission’s, must be fair
(see Ellis-Don
Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4,
[2001] 1 S.C.R. 221, [2001] S.C.J. No. 5 (QL) at paragraph 65, Tomar v.
Toronto Dominion Bank, 2009 FC 595, [2009] F.C.J. No. 782 (QL) at paragraph
24). The standard of review would be correctness.
[28]
Issue
1
Did the Commission offer the
applicant a fair process?
I am satisfied that the
applicant was given a fair and meaningful opportunity to take part and make
submissions to the Commission. He seemed frustrated that he could not submit
the entire contents of his files with the Privacy Commission and Military
Policy Complaint Commission. The Commission’s internal policy of putting a cap
on the length of submissions at this preliminary stage seems rational and did
not prevent the applicant from summarizing the key contents of those Commissions’
findings. In any event, there is no genuine issue of procedural fairness here.
[29]
Issue
2
Was the Commission’s
decision not to deal with the applicant’s complaint reasonable?
Turning my attention to the
substance of the decision, I cannot find any basis to find it unreasonable. The
applicant has not established that the decision lacks justification,
transparency or intelligibility, nor can I see any lack of reasonableness. In
my view, the decision easily falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
[30]
The
rationale for the time limitation in paragraph 41(1)(e) of the Act relates to
the ability to gather credible evidence, ensuring certainty and fairness for defendants
and ensuring that plaintiffs exercise due diligence (see Price v. Concord
Transportation Inc., 2003 FC 946, 8 Admin. L.R. (4th) 87, at paragraph 38).
[31]
Given
that the applicant filed his complaint almost a decade after the alleged
incidents of discrimination took place, it would have been reasonable for the
Commission to require a clear and reasonable excuse for the delay. He did not
provide that. Based on the submissions from the applicant, after having his
application to quash his release struck out by this Court (Donoghue above),
the applicant’s only excuse for not bringing the complaint is that he was
dealing with an application at Veterans Affairs for disability benefits which
he ended up receiving. It would be hard to accept that the application to
Veterans Affairs kept him from making the complaint. It was not relevant to any
question of whether he was discriminated against. Nor did the process involve
laying blame with any of his previous superiors, the prime focus of his
complaint to the Commission.
[32]
The
evidence does suggest that the applicant was warned not to go to the Commission
on at least one occasion in 1998 and the applicant claims he was warned again
as late as 2002. Even if this were the case, it would not be unreasonable for
the Commission to determine that this was not a valid excuse for waiting until
November of 2007.
[33]
Similarly,
there is no indication that the decision was unreasonable on the basis that the
Commission ignored the applicant’s psychological condition as a reason for the
delay. The record clearly describes a person whose ability to seek redress for
perceived wrongs is not impaired.
[34]
The
applicant finally argued that the Forces would not have been prejudiced by the
delay. Dunsmuir above, at paragraph 47, teaches that reviewing courts
must inquire “into the qualities that make a decision reasonable, referring to
both the process of articulating the reasons and to outcomes”. There was no
articulation in the Commission’s standard form decision, nor was the Commission
required to provide more in the way of reasons. However, the passage of nearly
ten years between the alleged events and the complaint, combined with the lack
of any action on the matter since 2004, provide intelligible reasons for a
finding that the Forces’ ability to respond to the applicant’s complaint would
be prejudiced.
[35]
I
would also note that the Commission was not required to find that prejudice had
been established. Just as prejudice to the respondent is a legitimate reason to
refuse to deal with a complaint, so is an insufficient explanation for the
delay (see Good v. Canada (Attorney General), 2005 FC
1276, [2005] F.C.J. No. 1556).
[36]
For
the reasons above, I would dismiss this application. There shall be no order as
to costs.
JUDGMENT
[37]
IT
IS ORDERED that:
1. The application for
judicial review is dismissed.
2. There shall be no
order as to costs.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The Canadian
Human Rights Act, R.S.C. 1985, c. H-6
|
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.
|
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