Date: 20120516
Docket: T-1377-11
Citation: 2012 FC 591
Ottawa, Ontario, May 16,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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AIR CANADA PILOTS ASSOCIATION
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Applicant
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and
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ALBAN ERNEST MACLELLAN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by the Air Canada Pilots Association
(Association) challenging a decision of the Canadian Human Rights Commission
(Commission) to accept the Respondent’s discrimination complaint
notwithstanding the fact that it was brought out-of-time.
Background
[2]
When
the Respondent, Alban Ernest MacLellan, reached the age of 60, his employment
as a pilot with Air Canada was terminated on the basis of a compulsory
retirement condition in the collective agreement between Air Canada and the
Association. That termination took effect on June 1, 2004.
[3]
It
was not until September 2006 that Captain MacLellan complained to the
Commission that his forced retirement was the result of a discriminatory practice.
In his letter of complaint, he asked the Commission to investigate the matter
and to appoint a tribunal. Copies of the letter were sent to Air Canada and to the
Association. On October 4, 2006, the Commission wrote to
Captain MacLellan advising him of the following:
As per our conversation,
where we discussed the George Vilven vs. Air Canada complaint which is going to be presented
to the Tribunal in January 2007, for decision. I explained to you that since
this complaint is policy related, that if a decision was made in favour of the
Air Canada Pilots, the remedy would apply to Air Canada Pilots, therefore there
is no value added to you pursing a complaint at this time. Furthermore, as
your termination date with Air Canada was on May 31, 2004, I must advise you
that pursuant to section 41(1)(e) of the Act, the Commission could refuse to
deal with your complaint because it was filed more than a year after the
alleged discriminatory acts.
[4]
On
November 30, 2009, Captain MacLellan again contacted the Commission through his
solicitor and the Commission sent out the forms required to formalize a
complaint. It took until May 6, 2010 for Captain MacLellan to submit a
complaint in a form acceptable to the Commission. Because the complaint was
initiated more than one year after the alleged discrimination, the Commission
assigned an investigator to look into the circumstances of the delay and to
recommend whether relief under subsection 41(1)(e) of the Canadian Human
Rights Act, RSC 1985, c H-6[the Act], was appropriate. The Commission
invited the parties to make submissions to the investigator but only Captain
MacLellan elected to do so.
[5]
The
investigator’s report to the Commission recommended that Captain MacLellan’s
complaint be referred to a tribunal. The investigator set out the history of
the complaint and identified the issues that were relevant to the exercise of
the discretion to extend time including whether Captain MacLellan exercised
“due diligence” in pursuing the matter. Other identified considerations
included the nature and seriousness of the issues raised, the length of the
delay, the reasons for the delay, the Respondent’s awareness of the complaint
and any resulting prejudice to the Respondent by extending time.
[6]
Among
other things, the investigator’s report noted the Commission’s 2006 advice to
Captain MacLellan that there was “no value added” by pursuing a policy related
complaint in the face of similar cases already before the Commission. The
investigator also noted Captain MacLellan’s explanation that he had not
pursued a complaint within 12 months of his termination because he was living
outside of Canada and because
he was unaware of the applicable time limitation.
[7]
In
the absence of a submission from the Association, its position is not
referenced in the investigator’s report beyond the advice to the Commission to
consider the Respondent’s position regarding the consequences of a decision to
pursue the complaint. The investigator concluded with the following
recommendation:
It is recommended, having regard to all
the circumstances of the complaint, that the Commission request the appointment
of a Human Rights Tribunal to inquire into the complaint because the Tribunal
is already seized of another complaint having substantially the same issues.
[8]
On
March 8, 2011, the Commission sent the investigator’s report to the parties and
invited further submissions. Counsel for the Association initially asked the
Commission to send copies of correspondence from Captain MacLellan’s legal
counsel referenced in the investigator’s report. When nothing was forthcoming,
a substantive response was sent to the Commission on April 12, 2011. In that
submission, the Association emphasized the substantial delay that had occurred
and argued that Captain MacLellan’s explanation was insufficient to justify the
granting of an extension. The Commission disagreed and, in a decision issued
on July 6, 2011, referred the complaint for a hearing on the merits. The
decision stated:
The Commission decided for the reasons
identified below, to deal with the complaint under section 41(1) of the Canadian
Human Rights Act.
The Commission further decided to request
the Chairperson of the Canadian Human Rights Tribunal, pursuant to section 49
of the Canadian Human Rights Act, to institute an inquiry into the
complaint because the Tribunal is already seized of another complaint having
substantially the same issues.
Material considered when decision made
The following documents were reviewed:
a.
complaint
form dated May 6, 2010
b.
section
40/41 report dated March 8, 2011
c.
submission
from the complainant regarding 41(1)(e) report dated March 17, 2011
d.
submission
from the respondent regarding 41(1)(e) report dated March 16, 2011
e.
cross-disclosure
submission from the respondent dated April 12, 2011.
Reasons far decision
The last alleged discriminatory act
occurred more than one year before receipt of the complaint by the Commission,
however, it is appropriate to deal with the complaint because the respondent
has not demonstrated that the delay in signing the complaint has seriously
prejudiced its ability to respond to the complaint.
It is from this decision that this
application arises.
Issues
[9]
Was
the Commission’s decision to extend time unreasonable?
[10]
Did
the Commission breach a duty of procedural fairness?
Analysis
[11]
Subsection
41(1)(e) of the Act conveys a discretion to the Commission to receive an
untimely complaint during “such longer period of time as the Commission
considers appropriate in the circumstances…”. This language is indicative of a
fairly soft limitation in the sense that the Commission is given a broad
authority to extend time in appropriate situations.
[12]
A
decision to extend time is a type of screening decision that requires deference
on the part of a reviewing Court. The question is whether the Commission
reasonably concluded that it was appropriate, in the circumstances, to receive
Captain MacLellan’s complaint: see Halifax (Regional Municipality)
v Nova
Scotia
(Human Rights Commission), 2012 SCC 10 at para 40,[2012] SCJ no 10 (QL).
[13]
The
Association complains that the Commission’s reasons, as set out in its Record
of Decision, are inadequate because they focus solely on the absence of any
serious prejudice to its ability to respond to Captain MacLellan’s complaint.
According to the Association, the Commission is required to consider other
factors in the exercise of its discretion under subsection 41(1)(e) of the Act,
most notably the adequacy of Captain MacLellan’s explanation for the delay. The
Association says that, in the absence of any referenced assessment of Captain
MacLellan’s conduct in the Commission’s decision, this factor must have been
overlooked.
[14]
The
fundamental weakness with the Association’s argument is that it has been well-established
in the jurisprudence that in cases where the Commission adopts the views of its
investigator, the investigator’s report is considered to be part of the
decision: see Sketchley v Canada (AG), 2005 FCA 404 at para 37, [2006]
3 FCR 392.
[15]
Furthermore,
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at paras 15-18, [2011] 3 S.C.R. 708, the Supreme Court of
Canada has provided the following advice to reviewing courts with respect to
the adequacy of reasons:
15 In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show
"respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law" (Dunsmuir, at para. 48). This
means that courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome.
16 Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is
not required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees'
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
17 The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator's decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay "respectful attention" to the
decision-maker's reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
18 Evans J.A. in Canada Post Corp.
v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221,
explained in reasons upheld by this Court (2011 SCC 57) that Dunsmuir
seeks to "avoid an unduly formalistic approach to judicial review"
(para. 164). He notes that "perfection is not the standard" and
suggests that reviewing courts should ask whether "when read in light of
the evidence before it and the nature of its statutory task, the Tribunal's
reasons adequately explain the bases of its decision" (para. 163). I
found the description by the Respondents in their Factum particularly helpful
in explaining the nature of the exercise:
When reviewing a decision of an
administrative body on the reasonableness standard, the guiding principle is
deference. Reasons are not to be reviewed in a vacuum - the result is to be
looked at in the context of the evidence, the parties' submissions and the
process. Reasons do not have to be perfect. They do not have to be
comprehensive. [para. 44]
[Emphasis added]
It therefore seems to me that the Court is
not limited in its review of the Commission’s decision to what is contained in
its admittedly perfunctory Record of Decision. The Court is permitted to
examine the record before the Commission including the investigator’s report to
see if a rationale for the decision can be identified either expressly or by
implication: see Vancouver International Airport Authority v Public Service
Alliance of Canada, 2010 FCA 158 at para 27, [2011] 4 FCR 425.
[16]
It
is clear from the Record of Decision that the Commission considered
Captain MacLellan’s complaint, the investigator’s report and the
submissions from the parties in response to the investigator’s report before
making its decision. There is no basis to conclude that the Commission somehow
misapprehended the scope of its statutory discretion.
[17]
The
fact that the Commission referred only to the existence of another similar
complaint and to the absence of prejudice to the Respondent in its decision
does not lead to a conclusion that other relevant considerations were
overlooked or that the onus of proof was reversed. The investigator’s report
identified the factors and evidence that were relevant to the exercise of the
Commission’s discretion under subsection 41(1)(e) of the Act and, in the
context of a case where the evidence was almost entirely undisputed, the
Commission’s decision cannot be impugned.
[18]
While
I accept that cases involving significant factual disagreements may require the
Commission to provide an evidentiary analysis sufficient to justify its
conclusion, this is not such a case. Captain MacLellan’s complaint was one of
many identical complaints arising out of a common and allegedly discriminatory
employment policy. The Association did not allege that it would be
disadvantaged in mounting a defence to the claim beyond the loss of its
technical limitations defence. Captain MacLellan offered an explanation for
the delay that implicated the Commission in part – an explanation the
Association did not seek to discredit beyond arguing that it was insufficient
to justify an extension. It is also noteworthy that both Air Canada and the
Association were aware of Captain MacLellan’s concern as early as September 12,
2006 when they were copied with his initial letter of complaint to the
Commission.
[19]
It
is implicit in the Commission’s decision that it weighed the evidence and
concluded that Captain MacLellan’s explanation for the delay was sufficient in
all of the circumstances to justify an extension. The Association argues at
paragraph 20 of its Memorandum of Fact and Law that Captain MacLellan’s
assertions “do not establish a reasonable basis for the delay”. This is,
however, an invitation to reweigh the evidence and that is not the role of the
Court on judicial review. There was a compelling basis for granting an
extension of time to receive Captain MacLellan’s complaint and, given the
level of deference that is owed to decisions of this sort, there is no basis to
set it aside.
[20]
The
Association’s argument that the inadequacy of the Commission’s reasons
constitutes a breach of procedural fairness is also untenable. I accept that
where reasons are a procedural requirement, a breach of fairness may arise
where none are forthcoming. But according to the decision in Newfoundland and Labrador
Nurses’ Union, above, an argument that a set of reasons is insufficient (ie.
lacking justification, transparency or intelligibility) must be assessed on the
standard of reasonableness and not correctness.
[21]
The
Association also argues that the Commission breached a duty of procedural
fairness by refusing to provide copies of the submissions made on behalf of
Captain MacLellan to the Commission in 2006. According to this argument, this
evidence would have disclosed information to the Association that was
prejudicial to the request for an extension of time including the fact that
Captain MacLellan was represented by legal counsel and aware of the one-year
limitation. This argument has no merit. The record discloses that the
principal piece of correspondence sent to the Commission in 2006 was copied to
Air Canada and to the
Association. Therefore, the Association had the information that it says it
required and cannot complain that it was treated unfairly.
[22]
For
the foregoing reasons, this application for judicial review is dismissed with
costs payable to the Respondent under Column III.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed with costs payable to the Respondent under Column III.
"R.L.
Barnes"
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