Date: 20120504
Docket: T-1081-11
Citation: 2012 FC 537
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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168886 CANADA INC.
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Applicant
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and
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WALTER REDUCKA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Canadian Human
Rights Commission (the “CHRC”) dated March 25, 2011 whereby the CHRC exercised
its discretion to deal with the Respondent’s complaint of discrimination on the
grounds of physical and mental disability, pursuant to subsection 41(1) of the Canadian
Human Rights Act, RSC 1985, c H-6 [Act].
FACTS
Employment
History
[2]
The
Respondent had been employed by Sears Canada and 168886 Canada Inc., operating
as SLH Transport Inc. from September 1977 until May 14, 2009. In the spring of
2005, the Respondent applied for the position of Operations Manager. His
application was not successful.
[3]
Shortly
thereafter, the Respondent commenced medical leave on the basis of severe
depression as a result of being overlooked for the position. The Respondent
received short-term disability benefits until September 2005 and long-term
disability benefits until September 2007.
[4]
In
December 2007, the Respondent wrote a letter to the Applicant suggesting a
possible gradual return to work. He went on to complain that he was not
the successful applicant for the Operations Manager position. He concluded
that he wanted a severance package paid to him.
[5]
The
parties were unsuccessful in negotiating a severance package. Since the
Respondent had also indicated that he might consider returning to work,
however, the Applicant made repeated requests for medical assessments to
determine whether accommodation was possible. The Respondent never provided
these assessments.
[6]
On
May 14, 2009, the Respondent’s employment was terminated. In October 2009, the
Respondent indicated for the first time his intention to file a human rights
complaint.
Human Rights
Complaint History
[7]
On
May 7, 2010, the Respondent filed a complaint against three interrelated
companies, Sears Canada Inc., 168886 Canada Inc. and SLH Transport Inc., to the
Alberta Human Rights Commission (the “AHRC”). On May 14, 2010, the AHRC
recommended that Mr. Reducka make a comparable complaint with the CHRC, since
all three respondents appeared to be federally regulated. In correspondence
dated the same day, the Respondent informed the CHRC of his intention to bring
a comparable complaint to cover any respondents under federal jurisdiction. At
the request of the CHRC, the Respondent sent to the CHRC a copy of his AHRC
complaint.
[8]
On
June 7, 2010, the CHRC advised the Respondent how to proceed with his complaint
and indicated a deadline of July 9, 2010 for receipt of documentation. On July
7, 2010, the Respondent filed his complaint before the CHRC. On July 13, 2010,
the CHRC informed the Respondent that his complaint did not meet the
requirements under the Act: the complaint form exceeded three pages in
length; the form made reference to attachments; and the form referred to Sears
Canada, a provincially-regulated company.
[9]
On
September 13, 2010, the Respondent sent a revised copy of the complaint form to
the CHRC. Counsel for the Respondent explained that the delay was due to the
office being closed for the months of July and August.
[10]
As
a preliminary matter, the CHRC had to determine whether to use its discretion
under paragraph 41(1)(e) of the Act to hear the complaint, as it was
filed after the prescribed period of one year. The CHRC appointed an
investigator to issue a recommendation. The investigator recommended that the
CHRC exercise its discretion to hear the complaint.
IMPUGNED
DECISION
[11]
The
CHRC agreed with the investigator and determined that the failure of the Respondent
to file a complaint was due to his uncertainty with respect to the
jurisdictional nature of the Applicant. The CHRC found it reasonable to use
its discretion and to extend the one year filing period regarding the events of
2009, while refusing to consider prior allegations.
[12]
Additionally,
the CHRC found that the Applicant had not demonstrated any serious prejudice to
its ability to respond to the complaint as a result of the delay in signing the
complaint.
ISSUES
[13]
This
application for judicial review essentially raises two issues:
a) What is the appropriate standard of review?
b) Did the CHRC commit a reviewable error when it chose to
exercise its discretion to deal with the Respondent’s complaint?
ANALYSIS
[14]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir], the Supreme Court indicated that an exhaustive
review is not always required to determine the applicable standard of review.
When the analysis has already been performed, it need not be repeated.
[15]
After
a careful review of the case law, and applying Dunsmuir, Justice O’Keefe
determined that the discretionary decision to hear a complaint despite
the fact that it has been filed outside the one year limitation period
prescribed by paragraph 41(1)(e) of the Canadian Human Rights Act
involves a mixed question of law and fact and, as such, calls for the standard
of reasonableness (Canada (Revenue Agency) v McConnell, 2009 FC 851
(available on CanLII)). Accordingly, this Court shall not intervene unless the
decision
does not fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[16]
Paragraph
41(1)(e) of the Act establishes a preliminary stage of inquiry for human
rights complaints. At this stage, the CHRC does not examine the substance or
the merits of the complaints (Good v Canada (Attorney
General),
2005 FC 1276, 142 ACWS (3d) 1019). The purpose of this section is to ensure
the timely filing of complaints. In the event that the CHRC determines that
the complaint was not filed within the one year prescribed period, it may
exercise its discretion to hear an “out of time” complaint (Good, above
at para 21; Tse v Federal Express Canada Ltd, 2005 FC 598, 273 FTR 242).
[17]
In
the matter at bar, through the use of its discretion, the CHRC clearly
indicated that the act forming the basis for the Respondent’s complaint
occurred more than one year before the complaint was filed. Regardless, the
CHRC exercised its discretion in favour of the Respondent. For the reasons
that follow, I am of the view that the CHRC acted unreasonably in exercising
its discretion.
[18]
The
CHRC grounded its decision to deal with the Respondent’s complaint, essentially
on the basis of his uncertainty as to the proper forum to file a human rights
complaint. However, as the Applicant argues, the CHRC failed to take into
account that the Respondent was, at all times, represented by counsel. Counsel
for the Respondent ought to have been familiar with the jurisdiction of the
AHRC and the CHRC, or, at the very least, to conduct adequate research into the
Applicant’s enabling statutory authority in order to determine the appropriate
jurisdiction for the filing of the complaint. This Court has held that it is
inappropriate to extend the limitation period when a complainant has the
benefit of legal representation (Zavery v Canada (Human
Resources Development), 2004 FC 929 at para 26, 256 FTR 124; Johnston v Canada
Mortgage and Housing Corporation, [2004] FC 918 at paras 9-11, 132 ACWS
(3d) 107).
[19]
In
a similar fashion, counsel for the Respondent ought to have been aware of the
CHRC’s required format for complaints. In a letter dated June 7, 2010, the
CHRC provided the Respondent with the following documentation:
(a) A complaint form;
(b) An instruction and tips sheet;
(c) A checklist of information that must be provided;
and
(d) A sample of a completed complaint form.
(Respondent’s Record, Affidavit of Walter Reducka, Exhibit
“D”, p 7)
[20]
On
July 7, 2010, counsel for the Respondent submitted the complaint to the CHRC
(Respondent’s Record, Affidavit of Walter Reducka, Exhibit “E”, p 9). On July
13, 2010, the CHRC indicated that the form did not meet the requirements of the
Act (Respondent’s Record, Affidavit of Walter Reducka, Exhibit “F”, pp
10 and11). Aside from the fact that the complaint was clearly out of time at
the date of these exchanges, it is important to mention, as the Applicant
argues, that for a complaint to be deemed compliant with the Act, it
must be “in a form acceptable to the Commission” (Rhéaume v Canada
(Attorney General), 2007 FC 919 at para 33, 324 FTR 159). Nevertheless, it
was not until September 13, 2010 that the Respondent filed an “acceptable”
complaint form, nearly four months after the prescribed deadline as per section
41(1)(e) of the Act. By counsel for the Respondent’s own admission, Mr.
Reducka’s intention to file a human rights complaint was formed in October of
2009, nearly seven months before the prescribed filing deadline under both
federal and provincial legislation. Given that the Respondent had seven months
of preparation time and the benefit of legal representation, there can be no
reasonable explanation for his failure to submit his complaint to the correct
authority, in the correct format, within the prescribed filing deadline.
[21]
It
cannot be said that the Respondent was unable to submit his complaint in a
timely fashion for reasons outside his control. Sixteen months passed from the
date that Mr. Reducka was terminated, to the date when the complaint was
filed. However, counsel for Mr. Reducka waited until one week before the
expiry of provincial human rights legislation to file a complaint, and first
contacted the CHRC to file a complaint at the one year prescribed filing
deadline. Mr. Reducka failed to bring his complaint to the CHRC until the last
day of the prescribed filing deadline. Furthermore, his complaint was filed
with errors and when he was advised to correct his errors, he failed to do so
for another two months. Counsel’s explanation for not filing the complaint was
that his office was closed for the months of July and August. This delay was
not therefore caused by extenuating circumstances, but by counsel’s
unavailability.
[22]
The
Commission should also have considered the entirety of the complaint, including
any mischief contained therein (see Richard v Canada (Treasury
Board),
2008 FC 789 at para 9, 330 FTR 236). On the face of it, the complaint does not
seem very serious, as Mr. Reducka has repeatedly failed to provide any medical
information as requested by the Applicant, in order to determine whether
accommodation was possible. It should be noted that the Respondent made no
allegation of discrimination while pursuing a claim for unjust dismissal and
during settlement negotiations with the Applicant. As admitted by counsel for
the Respondent, it was only when viable settlement instructions were not
forthcoming from the Respondent that the Applicant was advised that the
Respondent intended to pursue a human rights claim.
[23]
For
all of the above reasons, I agree with the Applicant that this is not a
situation where extraordinary circumstances prevented Mr. Reducka from issuing
a complaint in accordance with the Act. The Respondent has failed to
provide justifiable reasons why he was unable to bring his complaint in a
timely manner, and this is inexcusable given that he had the benefit of legal
representation throughout. The CHRC erred and acted unreasonably in focusing
on the alleged misunderstanding of the Respondent with respect to the
jurisdictional issues, without giving proper consideration to the fact that he
had retained counsel.
[24]
Moreover,
the CHRC did not consider all the relevant factors to a decision under section
41(1)(e) that are listed in the investigator’s own report. There is no
consideration, in particular, of the nature and seriousness of the issues
raised in the complaint.
[25]
Accordingly,
the intervention of this Court is warranted, this application for judicial
review is granted, and the decision of the CHRC to deal with the time-barred
complaint of the Respondent is quashed and set aside.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is granted, and the decision of the CHRC to deal with the complaint of
the Respondent is quashed and set aside.
"Yves
de Montigny"
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