Date:
20121207
Docket:
T-1784-11
Citation:
2012 FC 1448
Ottawa, Ontario,
December 7, 2012
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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KATHLEEN O'GRADY
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Applicant
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and
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BELL CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision made by the Canadian Human Rights
Commission (the “Commission” or “CHRC”) dated September 14, 2011. The
Commission decided that it would not deal with the applicant’s complaint
pursuant to paragraph 41(1)(d) of the Canadian Human Rights Act, RSC
1985, c H-6 [CHRA or the “Act”], and therefore would not refer it to the
Canadian Human Rights Tribunal (the “Tribunal”).
The Background
[2]
Ms.
O’Grady was employed by Bell Canada since 1990. She was a dedicated and proud
employee and noted several times in her submissions that Bell had been a good
employer with good benefits and that her work with Bell had been “her life”. In
2006 she began a period of short term disability leave due to mental health issues,
followed by long term disability leave (LTD) which she received until 2009. Ms.
O’Grady followed her counsellors’ recommendations to prepare to return to work.
A gradual reintegration was planned and proposed for early May 2009. On April
20, 2009 Ms. O’Grady was called to a meeting with Bell, which she anticipated
was for the purpose of discussing her gradual return to work. At that meeting,
she was advised that her position had already been eliminated (in August 2008)
as part of a large scale reorganisation and downsizing plan affecting hundreds
of employees. Bell offered Ms. O’Grady a severance package.
[3]
Ms.
O’Grady retained counsel to assess her options and to negotiate an improved
severance package, which was eventually finalised in February 2010. During the
negotiations, on several occasions, she asserted that because she was
terminated while on long term disability, Bell should provide some
accommodation to her and that its conduct in eliminating her position and
terminating her employment was discriminatory and a violation of her human
rights. She indicated that she could and would pursue a complaint to the CHRC
if the settlement was not satisfactory.
[4]
Given
the high regard Ms. O’Grady had for Bell Canada, in particular the initiatives
that Bell was promoting to raise awareness about mental health, Ms. O’Grady was
dissatisfied and disappointed by the outcome of her negotiations with Bell Canada, which she noted had an adverse impact on her recovery.
[5]
Although
Ms. O’Grady seeks a range of relief, particularly to reinstate her long-term
disability benefits and other compensation, it is important to note – as was
underlined by the Court during the hearing – that the only issue before the
Court is the reasonableness of the Commission’s decision not to refer her
complaint to the Tribunal.
[6]
It
is not the role of this Court to address the other allegations made by Ms.
O’Grady, including whether the settlement negotiations with Bell Canada were conducted in bad faith, or whether an incorrect return to work date was relied
upon with an impact on the settlement and her long-term disability status at
the time of termination. In summary, the merits of Ms O’Grady’s claim that she
was discriminated against by Bell Canada cannot be addressed in this judicial
review.
The
Severance Agreement
[7]
The
severance agreement signed by Ms. O‘Grady on February 11, 2010 included details
of the compensation and an Acknowledgment, Release and Discharge (“the
Acknowledgment”) indicating:
In consideration of the terms and
benefits of the said severance package, I hereby grant to Bell Canada…a full
and final release and discharge with respect to any right, action, claim, cause
of action or complaint, damage, or debt that I have, had or may claim against
[Bell]...
[8]
Ms.
O’Grady had provided her lawyer with two versions of this Acknowledgment: an
original version which was witnessed and another version which contained her
handwritten ‘addendum’ (“the addendum version”) which stated:
I, Kathleen, O’Grady, have signed above to honour this
legal contract. However, in no way do I agree with termination while I was on
LTD prior to return to work date of May 4, 2009. I believe that Bell Canada
allegedly acted unethically, under false pretenses, denied my human rights and
discriminated against my disability.
[9]
Ms.
O’Grady submits that her lawyer had recommended that two versions be prepared
with the intention that her lawyer would attempt to have the addendum version
used. If Bell refused the addendum version, the original version without the
addendum would be provided. However, the record suggests that Ms. O’Grady’s
lawyer only provided Bell with the original version. Bell never received the
addendum version and was not aware of its existence until being notified at the
time of the CHRC investigator’s report, over a year later.
[10]
Bell honoured its
settlement and Ms. O’Grady received the amounts agreed upon.
The Complaint to the CHRC
[11]
Ms.
O’Grady filed a complaint to the Commission on October 26, 2010, in which she
alleged that she was discriminated against by Bell on the basis of her mental
health disability. With respect to the settlement and the Acknowledgment, she
stated:
I was forced to sign-off the Termination Package
under mental duress. I instructed my lawyer to do what she thought was best
because I was incapable of deciding anything. I also instructed her to send Bell my sign-off that included an Addendum ‘A’ advising that I did so under mental duress.
The
CHRC decision
[12]
The decision
of the Commission includes brief reasons which must be read together with the
investigative report (the Section 40/41 Report): see
Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392 at para 37.
[13]
The
Commission’s decision was made pursuant to paragraph 41(1)(d) of the Canadian
Human Rights Act, which permits the Commission to not deal with a
complaint if it appears to be trivial, frivolous, vexatious or made in bad
faith:
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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;
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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;
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[14]
Section 40
addresses who can make complaints and provides some limitations on the
Commission’s authority to deal with certain types of complaints.
[15]
In its
reasons, the Commission noted that the complainant was represented by a lawyer
and negotiated the settlement with the respondent. The complainant signed an
acknowledgement which relieved the respondent of any liability relating to her
termination. The complainant’s signature on the acknowledgement was witnessed
and sent to the respondent by the complainant’s lawyer. The Commission noted
that the only version of the acknowledgement with the complainant’s addendum or
notation that it had been signed despite the respondent’s denial of her human
rights and discriminatory actions was on the complainant’s own copy of the
acknowledgement. The respondent had received the original signed and witnessed
version without the addendum.
[16]
The report
makes it clear that the only issue the Commission addressed was whether it
should refuse to deal with the complaint under paragraph 41(1)(d) of the CHRA.
[17]
The
investigator considered the specific factors applicable to each aspect of
paragraph 41(1)(d) to assess whether the complaint was “trivial, frivolous,
vexatious or made in bad faith”. He summarized each party’s position and
analyzed the factors as they applied to the circumstances of this case. The
investigator determined that “it is not clear and obvious that the matter is
not trivial as the allegations relate [to] the termination of employment based
on a disability”, that “it is not obvious that the matter is frivolous”, and
that “it is not obvious that the matter is vexatious”. While the use of double
negatives is confusing, it is apparent that the investigator concluded that the
complaint was not trivial, frivolous or vexatious.
[18]
With respect
to assessing whether the complaint was in bad faith, the investigator noted
that he had considered the following factors or questions:
a) Has the
complainant engaged in improper conduct amounting to fraud, deception,
intentional misrepresentation, or some other design to mislead the respondent
or the Commission?
b) Is the
complaint filed in a deliberate attempt to avoid some contractual or other
legal obligation?
c) Have the
issues in the complaint been the subject of another body’s decision? If so:
i)
What
is the nature of the alternate redress mechanism that was used, including was
there a hearing on the issues, was the complainant permitted to present his or
her case, was the decision-maker independent?
ii)
What
did the decision-maker decide?
iii)
Did
the decision address all of the human rights issues raised in the complaint?
iv)
If
the complainant was successful (or partly successful) under the alternate
redress procedure, what remedies were awarded?
[19]
The
investigator concluded that the complaint “may be in bad faith”. He noted that
the complainant did “not appear to have engaged in a fraudulent or deceptive
way” and that she had been forthcoming about the acknowledgement that she
signed, although she insisted that it was signed under duress. However, the
acknowledgement arose out of a negotiated severance package and a release of
the employer from liability relating to the termination of employment. The
investigator also observed that the complainant was represented by counsel
during this process and at the time the severance package was executed. The
investigator indicated that pursuing the human rights complaint may be
perceived as an attempt to circumvent the Acknowledgement. He concluded that
Ms. O’Grady’s allegation that she was terminated due to her disability was not
supported by the evidence.
[20]
The
investigator, therefore, recommended that the Commission not deal with the complaint
because it is “trivial, frivolous, vexatious or in bad faith” pursuant to
paragraph 41(1)(d) of the CHRA.
[21]
The
Commission’s decision notes that it reviewed the complaint submitted by the
complainant, the Section 40/41 Report (of the investigator) dated July 28,
2011, submissions from the complainant dated July 30 and August 17, 2011 and a
submission from the respondent dated July 26, 2011.
[22]
Although Ms.
O’Grady submitted other documents to the Court with her application for
judicial review, only the information that the Commission relied upon can be
considered.
The Issues
[23]
In
this application, the applicant seeks the following remedies:
a. an order in the nature
of certiorari quashing the decision of the CHRC;
b. an order for status
quo ante to receive the reinstatement remedy;
c. Tariff A $50 cost of
application, $50 hearing request, and if necessary any Tariff B costs;
d. such further and other
relief as this Honourable Federal Court may deem just;
e. an order for Final
Release to be void ab initio since procedural fairness in the manner of
termination was denied;
f. an order for
compensatory damages;
g. an order establishing
this a prima facie case of discrimination;
h. an order for long-term
income protection to age 65;
i.
an
order for amended Record of Employment, if reinstated; and
j.
an
order for Bell to present a letter of apology for wrongful termination, signed
by CEO.
[24]
The
applicant raised 22 issues, most of which relate to the termination process
with Bell.
[25]
As
noted above, at the outset of the hearing and during the hearing, the applicant
was advised that the jurisdiction of this Court on the judicial review
application is limited to the Commission’s decision to decline to deal with the
complaint. While the applicant made submissions on the majority of the issues
raised, there are only three issues for this Court to address;
1. What is the applicable
standard of review?
2. Was the
Commission’s decision not to deal with Ms. O’Grady’s complaint reasonable?
3. Are the
remedies sought by the applicant available?
Standard
of Review
[26]
The
applicant submits that the decision should be reviewed on the standard of
correctness and that no deference should be given to the Commission and that
this Court should substitute its own decision to make the orders requested. In
effect, the applicant asked the court to “do the right thing” for her. While it
is understandable that litigants have high expectations for the Courts to
resolve all related issues, the Court must act within its statutory
jurisdiction and in accordance with the relevant case law with respect to the
standard of review.
[27]
The
respondent correctly submits that the standard of review is reasonableness and
that a high level of deference is to be given to the Commission in interpreting
and applying its home statute, the CHRA, particularly given the wide
discretion provided in section 41, which is the basis for the decision under
review. The respondent also submits that it is important to consider the role
of the Commission as a screening body, as distinguished from the role of the
Canadian Human Rights Tribunal as an adjudicative body.
[28]
There
is a great deal of jurisprudence governing the standard of review applicable to
decisions of the Commission and about its role. The principles relevant to this
review have been considered and some of the key cases are referred to below.
[29]
In
Exeter v Canada (Attorney General), 2011 FC 86, 383 FTR 106, Justice
Heneghan dismissed judicial review of a decision by the Commission to refuse a
complaint pursuant to paragraph 41(1)(d) of the CHRA.
She held, at para 16:
[16] In Dunsmiur v. New Brunswick, [2008] 1 S.C.R. 90,
the Supreme Court of Canada said that there are only two standards of review by
which decisions of statutory decision-makers can be reviewed, that is
correctness for questions of law and procedural fairness and reasonableness for
findings of fact and questions of mixed fact and law. At paragraph 53, the
Court in Dunsmuir held that:
Where the question is one of fact, discretion or policy, deference
will usually apply automatically (Mossop, at pp. 599-600; Dr. Q,
at para. 29; Suresh, at paras. 29-30). We believe that the same
standard must apply to the review of questions where the legal and factual
issues are intertwined with and cannot be readily separated.
[30]
And at paras
19 and 20:
[19] In Morin v. Canada (Attorney General) (2007),
332 F.T.R. 136, the Federal Court found that reasonableness is the
appropriate standard when reviewing a decision of the Commission not to deal
with a complaint pursuant to subsection 41(1) of the Act. The substance of the
Commission’s decision is reviewable on the standard of reasonableness.
[20] The standard of reasonableness applies to both the
decision-making process and the result; see Dunsmuir, paragraph 47,
which reads as follows:
A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[31]
Justice
Heneghan’s analysis of the applicable standard of review was confirmed by the
Federal Court of Appeal in Exeter
v Canada (Attorney General),
2012 FCA 119, 433 NR 286 at para 6.
[32]
The
role of the Court in judicial review where the standard of reasonableness
applies is not to substitute any decision it would have made but, rather, to
determine whether the Commission’s decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
at para 47.
[33]
In
Lusina v Bell Canada, 2005 FC 134, 268 FTR 227 at paras 29, 36 [Lusina],
the Court dealt with a dismissal of a complaint due to bad faith. Justice
Layden-Stevenson noted:
29 The Court's task is not to re-examine the evidence and come
to its own conclusion. The standard of review of a decision of the CHRC to
dismiss a complaint requires a very high level of deference by the Court
unless there be a breach of the principles of natural justice or other procedural
unfairness or unless the decision is not supportable on the evidence before the
CHRC.
…
36 The question of bad faith is one of mixed law and fact.
The decision as to whether it exists, in the circumstances of the case, is one
for the CHRC to make… Thus, it appears that in only the rarest of cases
would such a determination, by the CHRC, warrant the intervention of the Court.
[emphasis added, references omitted]
[34]
The wording
of subsection 41(1) provides the Commission with discretion to decline to deal
with a complaint. It states that “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” [emphasis added].
[35]
Similar
wording is found in other sections of the Act, including section 44, which
addresses the Commission’s role upon receipt of an investigator’s report and
whether a complaint will be referred to the tribunal or dismissed. In Bell Canada v Communications,
Energy and Paperworkers Union of Canada,
[1999] 1 FC 113, [1998] FCJ No 1609 at para 38, the
Federal Court of Appeal noted: “The Act grants the Commission a remarkable
degree of latitude when it is performing its screening function on receipt of
an investigation report.”
[36]
Where
the standard of reasonableness applies, deference is owed to the
decision-maker, given their expertise and experience interpreting and applying
the relevant statute. The issue for the Court is whether this is one of the
rare cases warranting the Court’s intervention.
Role of the Canadian Human Rights
Commission
[37]
The
Commission plays a “screening” role; it investigates complaints to determine
whether the complaint should be considered by the Canadian Human Rights Tribunal.
The Tribunal’s role is to examine the complaint on its merits; to determine
whether the complaint has been established and the appropriate remedy. The
Commission does not perform this function. In reviewing a decision of the
Commission to refuse to deal with a complaint, the Court cannot go beyond the
Commission’s role and explore the merits of the complaint. The Court can only
consider whether the Commission’s “screening” decision was reasonable.
[38]
In
Morin v Canada (Attorney General), 2008 FCA 269, [2008] FCJ No 1310, the
Federal Court of Appeal upheld the Federal Court’s decision in Morin v
Canada (Attorney General), 2007 FC 1355, [2007] FCJ No 1741 which, among
other things, summarised the role of the Commission at para 27 as follows:
In sum, that role involves:
(1) performing
administrative and screening functions with no appreciable adjudicative role;
(2) accepting, managing
and processing complaints of discriminatory practices;
(3) if a complainant must
be referred to a human rights tribunal, the Commission performs a screening
function similar to that of a judge in a preliminary inquiry.
[39]
In
Cooper v Canada (Canadian Human Rights Commission), [1996] 3 SCR
854, 140 DLR (4th) 193, the Supreme Court of Canada examined the operation of
the CHRA and the role of the Commission, noting at para 53:
The Commission is not an adjudicative body; that is
the role of a tribunal appointed under the Act. When deciding whether a
complaint should proceed to be inquired into by a tribunal, the Commission
fulfills a screening analysis somewhat analogous to that of a judge at a
preliminary inquiry. It is not the job of the Commission to determine if the
complaint is made out. Rather its duty is to decide if, under the provisions of
the Act, an inquiry is warranted having regard to all the facts. The central
component of the Commission’s role, then, is that of assessing the sufficiency
of the evidence before it.
[40]
Similarly,
in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission),
2012 SCC 10, [2012] 1 S.C.R. 364 at para 23, the Supreme Court of Canada commented
on the role of the Nova Scotia Human Rights Commission, which parallels that of
the CHRC, and noted that in deciding to refer a complaint to a board of
inquiry, the Commission’s function is one of screening and administration, not
of adjudication. The Court emphasised that the screening role is not a
determination of the merits of the complaint.
The Reasonableness of the
Decision
[41]
The
issue in this judicial review is whether the Commission’s decision that the
complaint “may be in bad faith” was reasonable.
Applicant’s
Submissions
[42]
The
applicant’s written and oral submissions address the substance of her
allegations of discrimination against Bell Canada and to a lesser extent, the
reasonableness of the decision of the Commission. When considered together, the
applicant submits that the decision to dismiss her complaint, given the
information provided in her complaint and the two submissions she made to the
investigator, was not reasonable.
[43]
As
a preliminary issue, Ms. O’Grady asserted that the decision to dismiss her
complaint was unfair and unreasonable, because the Commission’s Early
Resolution Team Leader referred to her complaint as being trivial, frivolous,
vexatious or made in bad faith before even seeing the settlement documents and
the Acknowledgment between Ms. O’Grady and Bell.
[44]
This
allegation appears to be based on a misinterpretation of the letter sent in
February 2011, which informed her that the Commission would decide whether
it should refuse to deal with her complaint pursuant to paragraph 41(1)(d) of the CHRA.
This letter in fact advised her that the Commission’s assessment of her
complaint would be limited to determining whether the complaint was trivial, frivolous, vexatious or
made in bad faith, not that any such conclusions had been reached.
[45]
With
respect to the investigator’s conclusion that her complaint “may be in bad
faith”, Ms. O’Grady submits that she had repeatedly indicated that she might
pursue a human rights complaint, beginning with her demand letter of June 26,
2009. She noted that she was not threatening Bell, but rather giving Bell an opportunity to improve the settlement offer (given the circumstances and Bell’s public mental health commitments) and to avoid a human rights complaint. She noted
in several passages of her submissions to the investigator and in her
submissions to the Court that her conduct was not intended to be in bad faith
but that she was in a state of desperation, which is a symptom of mental illness,
and that her mental state was known to all parties.
[46]
With respect to economic duress, the applicant submits that she
had no other source of income and it was imperative that she secure her LTD
benefits, which she argues she was entitled to in her severance.
[47]
She
submits that her mental health had deteriorated following her termination and
that Bell was aware of this due to the exchange of communications with her
counsel. Therefore, Bell should have insisted on establishing that she was “of
sound mind” before signing the agreement.
[48]
Ms.
O’Grady also submits that the Commission’s decision to dismiss her complaint on
the basis of the Acknowledgment she signed fails to take into account the
Commission’s own policy with respect to paragraph 41(1)(d).
[49]
That
policy, titled The
Effect of Final Releases on Human Rights Complaints, states:
Section 41(1)(d) of the Canadian Human Rights Act allows
the Canadian Human Rights Commission to exercise its discretion not to deal
with a complaint where the issues raised in the complaint have been dealt with
through another process. This includes complaints which have been settled and
where releases have been signed.
The Commission may choose to deal with complaints despite the
fact that the parties have signed a final release if it appears that the human
rights issues raised in the complaint have not been addressed in the
settlement.
In its determination of the impact of
a final release on a complaint the Commission will consider several factors
including the following:
1 Did the parties
contemplate the human rights claim at the time the release was signed?
2 Was the
complainant represented or did the complainant have a reasonable opportunity to
seek independent advice? If not, is there evidence that the complainant understood
the effect of the release?
3 Was reasonable
consideration received in exchange for the complainant’s promise not to proceed
with the human rights claim?
4 Was the
complainant free of duress?
[50]
With
respect to these factors, Ms. O’Grady submits that Bell did not contemplate the
human rights claim when the Acknowledgement was signed because Bell had denied all the allegations of discrimination. She also submits that she did not
understand the full effect of the release because she thought it had included
her addendum, as per her instructions to her lawyer. She further submits that
she was under mental and economic duress when she signed the acknowledgement. Therefore, the
Commission should not have refused to deal with her complaint.
[51]
Ms.
O’Grady made other submissions relating to her allegations that Bell had
discriminated against her, including by terminating her position while she was
on LTD and by failing to accommodate her, which compounded the discrimination
given that she would be competing with many other former employees, who were
healthy, in seeking possible employment opportunities with Bell’s sister
companies.
Respondent’s
Submissions
[52]
The
respondent submits that the Commission’s decision not to deal with Ms.
O’Grady’s complaint was reasonable and reflects the requirements set out in Dunsmuir:
justification, transparency and intelligibility, and that the decision falls
within the range of possible, acceptable outcomes.
[53]
The
Commission relied, to a large extent, on the Section 40/41 Report, prepared by
the investigator on the basis of the documentary evidence set out in the
complaint and in the submissions regarding Ms. O’Grady’s termination, the
negotiations and the Acknowledgment.
[54]
The
respondent submits that the Report contained a detailed analysis of the
relevant considerations for determining whether a complaint is vexatious,
frivolous, trivial, or made in bad faith. The conclusions on each of these
issues flow logically and are reasonably supportable on the facts. The
Commission reasonably exercised its discretion not to deal with the complaint
on the grounds that it was made in bad faith, since the applicant had
negotiated a settlement, was represented by counsel throughout the
negotiations, signed the release and acknowledgement, and Bell was not aware of
the addendum version.
[55]
The
respondent also noted that in any event, the reservations expressed in the
addendum would not be grounds for considering that the Acknowledgement was not
binding on the parties. The respondent states that compromise of legal claims
is understood in any settlement and that each party modified their original
positions as a result of the negotiations. Bell had improved the settlement from
the original offer based on the negotiations and Ms. O’Grady had agreed not to
pursue other claims, including the human rights claim.
[56]
The
respondent agreed that Ms. O’Grady had raised her human rights and
discrimination concerns early on in the negotiations. The respondent submitted that
this was “on the table” and that the settlement offer agreed upon in February
was a better package than the original offer. In the respondent’s view, the
settlement agreed upon reflects the compromises reached by both parties and,
particularly, the applicant’s release of Bell’s liability regarding her other
claims, including the possible complaint to the CHRC.
[57]
With
respect to the applicant’s assertions that she was not “of sound mind” when she
executed the agreement and signed the Acknowledgment, the respondent notes that
Ms. O’Grady was represented by a lawyer at all times and that neither Ms.
O’Grady nor her lawyer raised her lack of capacity. On other occasions, counsel
had alerted the respondent to delays in the negotiations due to Ms. O’Grady’s
health. Bell was not aware of any concerns about her capacity to sign the
agreement. Moreover, Ms. O’Grady had personally contacted the respondent’s
counsel after the Acknowledgment was signed to confirm the payment arrangements
and did not indicate any lack of capacity at the time of executing the agreement
or receiving the payment.
[58]
With
respect to the assertions that Ms. O’Grady signed under duress, the respondent
noted that there was no suggestion that the applicant was not ably represented
by her lawyer, who would not have permitted her to sign under duress.
Analysis
[59]
As
noted by Justice Rennie in Hérold v Canada (Revenue Agency), 2011 FC
544, [2011] FCJ No 683 at para 32, “[a]ny analysis of the discretion vested in the Commission by
section 41(1)(d) is framed by four threshold points.”
[60]
Justice
Rennie referred to many of the cases noted above and identified the threshold
points (at paras 33-36), which I would summarize as follows:
•
The
Commission has a broad discretion to dismiss complaints where it is satisfied
that further inquiry is not warranted, which the Court should not lightly
interfere with.
•
The
Commission is not an adjudicative body and does not draw any legal conclusions.
It simply assesses the sufficiency of the evidence before it and
determines whether a full Tribunal hearing is warranted.
•
The
test for determining whether or not a complaint is frivolous within the
meaning of paragraph 41(1)(d) of the Act is whether, based upon the
evidence, it appears to be plain and obvious that the complaint cannot succeed.
•
The
standard of review with respect to the Commission’s decision to dismiss a
complaint, rather than refer it to the Tribunal, is reasonableness.
[61]
The
same “threshold points” apply to the analysis in this case, the only difference
is that the third point will address the test for determining whether the
complaint was made in bad faith, rather than whether it was frivolous.
[62]
In Lusina,
above, which also dealt with a CHRC decision not to deal with a complaint
pursuant to paragraph 41(1)(d) of the CHRA, the Court adopted the following
definition of “bad faith”:
…the term "bad faith" was described as one that normally
"connotes moral blameworthiness on the part of the person accused,
encompassing conduct designed to mislead or pursued for an improper
purpose".
Lusina, above, at para 35
(citing Pritchard v Ontario
(Human Rights Commission) (1999), 45 OR (3d) 97,
122 OAC 302 (Ont Div Ct) [Pritchard])
[emphasis added].
[63]
In the
present case, the Section 40/41 Report acknowledges that Ms. O’Grady does not
appear to have engaged in fraudulent or deceptive conduct, but suggests that
she acted in bad faith by attempting to “circumvent” her legal obligations
after signing the Acknowledgment. The report referred to the factors the
investigator considered to determine bad faith and applied the first two
factors, while the third factor was not applicable to the circumstances (as
noted above at paragraph 18).
[64]
The Report
did not specifically refer to the Commission’s policy, The Effect of Final Releases on
Human Rights Complaints.
However, some of those factors appear to have been considered by the
investigator: while Ms. O’Grady may have contemplated a human rights claim at
the time the release was signed, Bell did not, in light of the Acknowledgement
and release signed; the complainant had independent legal advice; and, reasonable
consideration (the severance payment) was received by the complainant in
exchange for the promise not to pursue a complaint.
[65]
However,
the applicant’s allegation that she signed under mental and/or economic duress was
merely acknowledged by the investigator but was not assessed in the
determination of bad faith.
[66]
As
noted above, the Commission’s policy with respect to releases includes factors
that the Commission should consider. The Commission’s policy also specifically
refers to the Ontario Human Rights Commission’s 2006 Guide to Releases with
Respect to Human Rights Complaints (the “Guide”), suggesting an endorsement
of the Guide and an awareness of it by the Commission’s investigators.
[67]
The
Commission’s Policy as posted on its website includes the following statement:
The Ontario Human Rights Commission has
prepared a useful document entitled, Guide to Releases With Respect to
Human Rights Complaints, which provides
helpful information to both employers and employees in understanding and
structuring termination agreements and final releases that reflect appropriate
human rights principles. The Guide also provides a sample proposed text
for a final release of a human rights complaint. Further, its Appendix includes
tips for employers and employees in negotiating and concluding a final release
of a human rights complaint.
[68]
The
Ontario Guide provides helpful advice about what constitutes bad faith in
pursuing a complaint in the face of a signed release. At page 2 of the Guide:
The mere existence of the signed release
is not, without more information, sufficient to conclude that the human rights
complaint was brought in bad faith. Rather, the Commission is required to look
into the circumstances surrounding the signing of the release.
In legal terms, the Commission must
satisfy itself that the complainant should be estopped (i.e.prohibited) from
proceeding with the complaint. To meet the test of ‘bad faith’ the Commission
must find that the evidence reveals, not an honest or negligent mistake on the
complainant’s part, but an intention to mislead- the conscious doing of
a wrong because of ‘dishonest purpose’ or ‘ill will’.
[emphasis
in original]
[69]
The
Guide also elaborates on the four factors established by the Ontario Divisional Court in Pritchard, above to determine if a release actually
reflects a settlement of a human rights complaint.
[70]
These
factors are:
1. Did the complainant
understand the significance of the release? This will usually turn on whether
or not they were given sufficient time, and a sufficient opportunity to obtain advice.
2. Did the complainant
receive compensation for the alleged breach of the human rights issue? If for
example, the complainant only received an amount akin to what they would have been
entitled to under statute…then it may be implied that they did not also receive
compensation for the human rights violation.
3. Was the complainant
subject to such significant economic pressure that his or her consent was
negated due to duress?
4. Was the complainant
subject to such significant psychological or emotional pressure that his or her
consent was negated due to duress?
[71]
In
assessing whether a complainant misunderstood the significance of the release,
the Guide notes that special consideration should be given to complainants who
are experiencing a mental disability, such as depression or bi-polar disorder,
that may impair their ability to understand the significance of the document.
[72]
With
respect to psychological or emotional duress, the Guide notes that even where
the employer did not behave inappropriately, the mere act of termination can
create psychological stress amounting to duress. It further notes that where
an employee is experiencing psychological problems at the time of termination,
such as depression or mental illness, this can impact on his or her ability to
consent.
[73]
The
Guide suggests that where an employer has a reasonable basis to believe that an
employee is experiencing a mental disability that could impair his or her judgment,
the employer should request that the employee obtain medical clearance before
signing the release.
[74]
In Pritchard,
above, the Court noted that the mere fact that a complaint is brought after
signing a release will not always amount to bad faith. At para 17, the Court
stated:
To take the approach that there is bad faith
whenever a human rights complaint is brought after signing a release risks
ignoring the context within which a particular complainant has signed the
release and denying access to the investigative procedure under the Human
Rights Code without assessing the complainant’s individual moral
blameworthiness in pursuing the complaint.
[75]
In this case, Ms. O’Grady
stated in her complaint and in her submissions to the Commission that she
signed the Acknowledgement under mental and/or economic duress. She indicated
that she did not have the intent to avoid the legal obligations and
consequences of the acknowledgement or renege on the agreement. The following
statement was included in several parts of her submissions responding to the
investigator’s report before the report was finalized:
“It
is unethical and uncompassionate for respondent to accuse complainant of bad
faith acts of “threats”, “demanding” and “reneging” when she acted in a
desperate way which is a strong behavioural symptom of her mental illness
disability.”
[76]
Note
that Bell did not make such accusations; Bell simply indicated its agreement
with the investigator’s initial Section 40/41 Report.
[77]
The
Commission was aware that Ms. O’Grady had executed two versions of the
Acknowledgement and her submissions to the Commission indicated that she
thought the addendum version, in which she expressed reservations despite
signing the release and reiterated her position that Bell had discriminated
against her, had been provided to Bell. However, it is clear that Bell never received the version with the addendum and had no knowledge of it until the
time of the complaint.
[78]
Her complaint
to the CHRC, while contrary to the terms of the agreement she signed, was
consistent with this statement and with her position throughout the
negotiations that she was considering filing a human rights complaint.
[79]
The
Commission’s finding that the complaint “may be in bad faith” – in other words,
that Ms. O’Grady’s conduct was morally blameworthy – did not take into account
her particular circumstances, including the need to consider the issue of
mental duress as that concept is understood in the human rights context. The
Commission ignored or misapprehended the evidence of the applicant’s mental
health and her assertions that she signed the release under mental duress.
[80]
It should be
emphasized that it is not the role of the Court to address whether Ms. O’Grady
was in fact under some form of duress when she signed the Acknowledgment. There
is no suggestion by the Court that Bell acted in bad faith during the severance
negotiations. Rather, the point is that the Commission’s failure to address the
issue and to consider her circumstances as a person suffering from a mental
illness renders the decision unreasonable. This is especially so in light of
the fact that moral blameworthiness is an essential component of bad faith in
the present context.
Request for damages
[81]
The
applicant sought several orders in her application, including a request for
compensatory damages.
[82]
As
noted above, the Court has no jurisdiction to order damages. The role of the
Court on judicial review is to determine if the decision under review should
stand or be re-determined by the Commission or Board or applicable
decision-maker in accordance with the applicable standard of review.
[83]
As
described more fully above, the CHRC performs
a screening and investigative role and, therefore, even it could not have
awarded damages, reinstatement, or the other relief sought.
[84]
The Court can
only address the reasonableness of the Commission’s decision.
[85]
As
confirmed by the Supreme Court in Canada (Attorney General) v
Telezone, 2010 SCC 62, [2010] 3 S.C.R. 585 at para 26 [Telezone]:
The
focus of judicial review is to quash invalid government decisions - or require
government to act or prohibit it from acting - by a speedy process. A
bookstore, for example, will have a greater interest in getting its foreign
books through Canada Customs - despite ill-founded allegations of obscenity -
than in collecting compensation for the trifling profit lost on each book
denied entry (Little Sisters Book and Art Emporium v. Canada (Commissioner
of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38). Thus s. 18.1 of
the Federal Courts Act establishes a summary procedure with a 30-day
time limit. There is no pre-hearing discovery, apart from what can be learned
through affidavits and cross-examination. The applications judge hears no viva
voce evidence. Damages are not available. Judicial review suits the
litigant who wishes to strike quickly and directly at the action (or inaction)
it complains about. A damages claimant, on the other hand, will often be
unaware of the nature or extent of its losses in a 30-day time frame, and may
need pre-trial discovery to either make its case or find out it has none.
Conclusion
[86]
It
bears repeating that the only issue on this judicial review is whether the
Commision’s decision not to deal with the complaint pursuant to paragraph 41(1)
of the Act because it
appears to be trivial, frivolous, vexatious or made in bad faith is reasonable.
The
merits of the various claims made which underlie the complaint cannot be
addressed in this application.
[87]
The
complaint was contrary to the agreed-upon terms of the agreement and had in
fact been negotiated away, and the applicant was represented by counsel
throughout the process and did receive her settlement. However, the
applicant’s conduct in pursuing the complaint despite her signed release must
be considered in light of her particular circumstances. The guidance provided
by the Ontario Human Rights Commission, which the CHRC refers to, supports the
need to consider whether there has been bad faith – an intent to mislead, or
morally blameworthy conduct – in the overall circumstances of the complainant.
[88]
The
reasons of the Commission and the record before it do not support a finding of
bad faith when the context is considered. The Commission, more specifically the
investigator’s report, did not assess the mental or emotional duress that the
applicant alleged, or the fact that the mental health issues of the applicant
pre-dated the negotiations and were known to the employer and to the
Commission.
[89]
The
judicial review is allowed and the decision of the Canadian Human Rights
Commission is quashed. The complaint is remitted to the Commission to be
re-determined.
[90]
For
the reasons noted above, no damages are awarded.
[91]
No
costs are awarded.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The judicial review is
allowed and the decision of the Canadian Human Rights Commission is quashed.
The complaint is remitted to the Commission to be re-determined;
2. No damages
are awarded; and
3. No costs
are awarded.
"Catherine M.
Kane"
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