Date: 20121130
Docket: T-780-12
Citation: 2012 FC 1399
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 30, 2012
PRESENT: The Honourable Mr. Justice
Scott
BETWEEN:
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AITORNEY GENERAL OF CANADA
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Applicant
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and
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MAXIME GALIPEAU
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Attorney General of Canada (Attorney General) is filing this application for
judicial review pursuant to subsection 18.1(1) of the Federal Courts
Act, RSC 1985, c F-7, of a decision dated Match 7, 2012, by the
Canadian Human Rights Commission [CHRC] to deal with the complaint filed by the
respondent, Maxime Galipeau [Mr. Galipeau], against the Canadian Forces [CF].
[2]
In
its decision, the CHRC rejects the Attorney General’s argument that
Mr. Galipeau’s complaint is ineligible pursuant to paragraphs 41(1)(d)
and 41(1)(e) of the Canadian Human Rights Act, RSC 1985, c H-6 [the
Act].
[3]
For
the following reasons, the Court dismisses this application for judicial
review.
II. The facts
[4]
Mr.
Galipeau enrolled in the CF on September 12, 2001.
[5]
A
few years later, Mr. Galipeau was diagnosed as HIV positive.
[6]
Mr. Galipeau
submits that a CF senior medical officer informed him that he would have to be
released from the CF on medical grounds because he had an incurable disease and
that his colleagues were at risk of contamination.
[7]
Mr. Galipeau
receives antiviral treatments. Given the state of his health, the CF is of the
view that he has permanent employment limitations and that he violates the CF’s
universality of service principle. Accordingly, his file was sent to the Director
Military Careers Administration [DMCA] in June 2007.
[8]
The
DMCA convened a career review board (the Board), which recommended
M. Galipeau’s release on the basis of reason 3(b) of
Chapter 15 of the Queen’s Regulations and Orders for the Canadian
Forces [QR&O]. The CF’s DAOD 5019-2 provides for the possibility of
challenging the Board’s recommendation before it becomes final by filing representations.
[9]
Mr. Galipeau
admits that he received the disclosure package explaining his right to
challenge the Board’s recommendation. He even signed an acknowledgment of
receipt of this package on October 11, 2007.
[10]
The
same day, Mr. Galipeau signed another document confirming his agreement
with the Board’s final recommendation to release him from the CF and stating
that he had nothing to add.
[11]
On May 25, 2008, Mr. Galipeau was released from the CF on the
basis of reason 3(b) of Chapter 15 of the QR&O, namely, on “medical
grounds”.
[12]
Mr. Galipeau did not submit a grievance against his release from the
CF pursuant to subsection 29(1) of the National Defence Act, RSC
1985, c N-5 [NDA].
[13]
Mr. Galipeau claims that he expressed his desire to remain in the CF
during discussions with the CF physician and with his superiors. He also claims
to have taken steps to inquire into the possibility of remaining in the employ
of the CF, but these efforts were always met with the same answer, namely, that
it would be impossible for him to work for the CF because he was HIV positive.
[14]
After
his release from the CF, Mr. Galipeau received Long Term Disability
Insurance (LTD) benefits until May 2010. The LTD program is part of the Service
Income Security Insurance Plan (SISIP).
[15]
Mr. Galipeau
also took advantage of the CF’s Vocational Rehabilitation Program, which
enabled him to complete a Diploma of Collegial Studies [DCS] in
carpentry-joinery in January 2010.
[16]
In
February 2010, Mr. Galipeau consulted infectious disease specialists at
the Centre
hospitalier universitaire de Sherbrooke [CHUS]. They informed him that he
did not present a contamination risk for his CF colleagues and that he could
have continued his career there. Mr. Galipeau maintains that this new
medical opinion contradicts the information that he had received from the CF.
[17]
Mr. Galipeau
contacted an organization that advocates on behalf of individuals who are HIV
positive. He claims that this was the first time he realized that he had likely
been a victim of discrimination.
[18]
On
September 10, 2010, Mr. Galipeau telephoned the CHRC.
[19]
On
December 9, 2010, Mr. Galipeau filed a complaint. He submitted that he had
been subjected to discrimination by the CF.
[20]
On
February 18 and April 14, 2011, the CF argued that the complaint to
the CHRC was ineligible, citing paragraphs 41(1)(d) and 41(1)(e)
of the Act.
[21]
On
October 3, 2011, Jonathan Bujeau of the CHRC’s Resolution Services
Division drafted his preliminary report.
[22]
The
two parties then made representations with respect to Mr. Bujeau’s report.
The CF sent their comments on November 4, 2011, and Mr. Galipeau sent
his on November 22, 2011.
[23]
On
December 21, 2011, the CF responded to Mr. Galipeau’s representations.
[24]
On
March 7, 2012, the CHRC decided to deal with Mr. Galipeau’s complaint on
the basis of subsection 41(1) of the Act. The CHRC concluded that Mr.
Galipeau was not acting in bad faith and that the CF had not established that
the filing of this complaint after more than one year would hinder their
ability to respond effectively.
III. Legislation
[25]
The applicable provisions of the Canadian Human Rights Act, RSC 1985, c H-6, the National Defence Act, RSC
1985, c N-5, and the Queen’s Regulations & Orders for the Canadian
Forces are
appended to this decision.
IV. Issue and Standard of
Review
A. Issue
•
Is the CHRC’s decision to deal with Mr. Galipeau’s complaint pursuant
to subsection 41(1) of the Act reasonable?
B. Standard of review
[26]
The
case law of this Court is clear. The standard of review applicable to decisions
of the CHRC relating to the eligibility of a complaint under paragraphs 41(1)(d)
and (e) of the Act is reasonableness (see Lawrence v Canada Post
Corporation, 2012 FC 692, at paragraph 18; Chan v Canada (Attorney
General), 2010 FC 1232, at paragraph 15; English-Baker v Canada (Attorney
General), 2009 FC 1253, at paragraph 13; Morin v Canada (Attorney
General), 2007 FC 1355, at paragraph 25; and for decisions relating to
the application of paragraph 41(1)(e), see 168886 Canada Inc c
Reducka, 2012 FC 537, at paragraph 15; Donoghue v Canada (National
Defence), 2010 FC 404, at paragraph 25 [Donoghue]; Canada (Revenue
Agency) v McConnell, 2009 FC 851, at paragraph 39).
[27]
Accordingly,
this Court will not intervene in this case unless the CHRC’s decision does not
fall within “the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, at
paragraph 47 [Dunsmuir]).
V. The parties’ positions
A. Position of the Attorney
General
[28]
The
Attorney General submits that the CHRC erred in its conclusion that
Mr. Galipeau’s complaint was not made in bad faith and in its
interpretation of paragraph 41(1)(e) of the Act. According to the
Attorney General, the CHRC should have required Mr. Galipeau to justify
the late filing of his complaint, more than 31 months after his release from
the CF.
[29]
The
Attorney General claims that Mr. Galipeau’s complaint is ineligible under
paragraph 41(1)(d) of the Act because it was made in bad faith. He
voluntarily signed a document on October 11, 2007, indicating his
agreement with the Board’s recommendation that he be released on medical
grounds pursuant to Reason 3(b) of Chapter 15 of the QR&O, without
filing representations or objections. Moreover, according to the Attorney
General, Mr. Galipeau took advantage of the Vocational Rehabilitation Program
to obtain a DCS in carpentry-joinery and received Long Term Disability benefits
for two years. Finally, he argues that Mr. Galipeau failed to justify the lapse
of time between his release from the CF and the filing of his complaint.
[30]
The
Attorney General submits that the facts demonstrate bad faith and an intention
to abuse the recourse available under the Act. For this reason, he is of the
view that the CHRC erred in finding that Mr. Galipeau was not acting in bad
faith.
[31]
Moreover,
the Attorney General alleges that Mr. Galipeau has not met his burden of
justifying the late filing of his complaint, beyond the one-year time limit set
out in paragraph 41(1)(e) of the Act. He relies on paragraph 35
of Donoghue, above, in support of the proposition that “[j]ust as
prejudice to the respondent is a legitimate reason to refuse to deal with a
complaint, so is an insufficient explanation for the delay”.
[32]
According
to the Attorney General, Mr. Galipeau provided no explanation to the CHRC to
justify his delay, and the CHRC failed to require one. For this reason, he
concludes that this Court must declare the complaint ineligible pursuant to
paragraph 41(1)(e) of the Act, on the grounds that the lack of a
justification makes the decision to deal with the complaint unreasonable.
B. Mr. Galipeau’s
position
[33]
Mr. Galipeau
alleges that the CHRC’s decision to deal with his complaint is reasonable
because it is based on the evidence in the file.
[34]
Contrary
to the Attorney General’s claim, Mr. Galipeau submits that he did explain his
delay in filing his complaint with the CHRC. It was his meeting with the
infectious disease specialists at the CHUS in February 2010 that allowed him to
determine that he had been a victim of discrimination. According to
Mr. Galipeau, he had no reason to question the CF’s decision before
receiving the opinion of the infectious disease specialists at the CHUS.
[35]
Mr. Galipeau
also points out that this is mentioned in Mr. Bujeau’s report and that he
did not act in bad faith, having diligently filed his complaint once he had
been properly advised.
[36]
Mr. Galipeau
also relies on Canada Post Corporation v Canada (Canadian Human Rights
Commission) (1997), 130 FTR 241, at paragraph 3, in support of the
proposition that the CHRC should only refuse to deal with a complaint when it
is plain and obvious that it should not be dealt with:
3 A decision by the Commission under section 41 is normally made
at an early stage before any investigation is carried out. Because a decision
not to deal with the complaint will summarily end a matter before the complaint
is investigated, the Commission should only decide not to deal with a complaint
at this stage in plain and obvious cases. The timely processing of complaints
also supports such an approach. A lengthy analysis of a complaint at this stage
is, at least to some extent, duplicative of the investigation yet to be carried
out. A time consuming analysis will, where the Commission decides to deal with
the complaint, delay the processing of the complaint. If it is not plain and
obvious to the Commission that the complaint falls under one of the grounds for
not dealing with it under section 41, the Commission should, with dispatch,
proceed to deal with it.
[37]
Mr. Galipeau
argues that the CHRC’s decision is reasonable because it has not been
established that he acted in bad faith or that the delay would hinder the
Attorney General in responding to the complaint.
[38]
Mr. Galipeau
also points to the Supreme Court of Canada’s decision in Halifax (Regional
Municipality) v New Brunswick (Human Rights Commission), 2012 SCC 10,
[2012] 1 S.C.R. 364 [Halifax], which states that it is not the role of the
reviewing court to assess the evidence at a preliminary stage of the
administrative process.
[39]
Finally,
Mr. Galipeau argues that the CHRC took into account the purpose of the Act
and the consequences of a dismissal of his complaint. This approach is
consistent with Larsh v Canada (Attorney General) (1999), 166 FTR 101,
[1999] FCJ no 508 at paragraph 36:
. . . dismissal is, after all, a final decision that
precludes the complainant from any statutory remedy and, by its nature, cannot
advance the overall purpose of the Act, namely protection of individuals from
discrimination, but may, if wrong, frustrate it.
VI. Analysis
[40]
This
Court must determine whether the CHRC’s decision to deal with Mr. Galipeau’s
complaint is reasonable.
[41]
The
Court finds that the CHRC’s decision to deal with Mr. Galipeau’s complaint
is reasonable for the following reasons. First, the evidence in the file
reveals that Mr. Galipeau did provide explanations to the CHRC justifying
the lapse of 31 months between his release from the CF and the filing of
his complaint. The file indicates that it was his meeting with the infectious disease
specialists at the CHUS in February 2010 that opened his eyes, as it was then
that he learned that he could have continued his career in the CF, as he did
not present a risk for his colleagues, contrary to what he had been told by the
CF physician.
[42]
As
indicated in the report by Mr. Bujeau of the CHRC, to determine whether a
complaint is made in bad faith, one must ask whether the complaint constitutes
[translation] “a deliberate
attempt to avoid a contractual, legal or other type of obligation” (Applicant’s
Record, Exhibit 10, page 121). The fact that a complainant signs a
renunciation in favour of a respondent does not automatically mean that a
subsequent complaint is made in bad faith. This is simply one factor to
consider among others. The circumstances and the party’s knowledge must be
considered in context. In Pritchard v Ontario (Human Rights Commission),
45 OR (3d) 97, [1999] OJ no 2061, at paragraphs 16 and 17, the Ontario
Divisional Court stated the following:
16 In deciding that the filing of a human rights complaint shows
bad faith after the complainant has signed a release, absent evidence of duress
that is defined to exclude economic duress, the Commission improperly fettered
its discretion. The term “bad faith” normally connotes moral blameworthiness on
the part of the person accused, encompassing conduct designed to mislead or
pursued for an improper motive. Its use in s. 34(1)(b) suggests that this is
the intended meaning in the Code, for a complainant can be denied access to the
investigative procedure only if the complaint is vexatious, trivial or brought
in bad faith. The terms “bad faith” and “vexatiousness” both indicate that the
complainant has acted improperly in pursuing the complaint.
17 Undoubtedly, in some cases, an employee who has accepted a sum
of money in exchange for a release of claims against a former employer,
including human rights claims, would be acting in bad faith in subsequently
turning around and filing a human rights complaint. However, in other cases,
the facts may show that the employee misunderstood the significance of the
release, or received little or no consideration for it beyond statutory
entitlements under employment standards legislation, or was in such serious
financial need that she or he felt there was no choice but to accept the
package offered. 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.
[43]
The
Court also wishes to reiterate that the document signed by Mr. Galipeau
does not constitute a renunciation of the right to challenge his release, as
the Attorney General claims. Mr. Galipeau’s signature on the document
indicates his agreement with the recommendation that he be released on medical
grounds. His consent was based on the opinion that Mr. Galipeau had
received from the CF physician. It was not a discharge or release of liability
in favour of the CF in exchange for a payment of money. Mr. Galipeau did not
receive LTD
benefits in
consideration of his acquiescence to the Board’s recommendation, but rather as
a result of the CF’s contractual obligations arising from the employment
relationship.
[44]
The
Attorney General argues that Mr. Galipeau had a duty to seek a second
opinion from non-CF physicians before signing the consent form that released
him from the CF in 2008. The Court cannot accept such an argument, since
Mr. Galipeau had no reason at the time to question the opinion he had
received.
[45]
In
this case, the CHRC has accepted Mr. Galipeau’s explanations for the delay
in filing his complaint. When Mr. Galipeau decided to leave the CF
voluntarily, he was relying on the opinion of the CF physicians that because he
was HIV positive, he did not and could no longer meet the standard of
universality of service and presented a risk of contamination for his
colleagues. Since he did not believe himself to be a victim of discrimination,
he did not challenge the Board’s recommendation or file a grievance pursuant to
subsection 29(1) of the NDA after his release.
[46]
The
CHRC concluded that Mr. Galipeau’s complaint was not motivated by an
improper purpose. It accepted his plausible explanation that the delay in
filing his complaint as due to the time that passed before he received the
opinion from the infectious disease specialists at the CHUS. This Court finds
that the CHRC’s decision falls within “the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
[47]
In
rendering its decision dated March 7, 2012, the CHRC reviewed the
following documents:
- complaint
form(s) dated December 9, 2010
- section
40/41 report dated October 3, 2011
- complainant’s
representations received on November 22, 2011
- respondent’s
[CF’s] representations dated November 4 and December 21, 2011 (Applicant’s
Record, Exhibit 14)
[48]
The
Attorney General relies on Donoghue, above. In that case, the CHRC asked
the complainant to provide in his representations an explanation of why he had
waited nearly ten years before filing a complaint. He did not do so. Justice O’Keefe
noted at paragraph 35 of Donoghue, above, that “[j]ust as prejudice
to the respondent is a legitimate reason to refuse to deal with a complaint, so
is an insufficient explanation for the delay”. The facts in this case are
distinguishable from those in Donoghue because Mr. Galipeau did
provide the CHRC with a plausible explanation.
[49]
In
light of its finding that Mr. Galipeau had acted in good faith, the CHRC
had no further reasons to reject his explanation for the late filing of his
complaint. Good faith must be presumed in the absence of evidence to the
contrary.
[50]
This
Court also accepts Mr. Galipeau’s argument, based on the Supreme Court of
Canada’s recent decision in Halifax, above, that it is not the role of
the reviewing court to assess the evidence at a preliminary stage of the
administrative process, and that it must therefore show deference in such
circumstances.
[51]
As
we are reminded by the Supreme Court, our role as a reviewing court is not to
substitute our assessment of the evidence for that of the administrative
tribunal, in this case the CHRC, but rather to inquire into the qualities that
make a decision reasonable. This Court finds that, in this case, the CHRC
reasonably exercised its discretion to deal with Mr. Galipeau’s complaint,
despite the 31-month delay in filing. This decision by the CHRC falls within
the range of possible outcomes in the circumstances.
VII. Conclusion
[52]
This
application for judicial review is dismissed. The CHRC came to a reasonable
conclusion in deciding to deal with Mr. Galipeau’s complaint. There is no
reason for this Court to intervene.
JUDGMENT
THE COURT dismisses the
Attorney General’s application for judicial review, with costs.
“André F.J. Scott”
Certified true translation
Francie Gow, BCL, LLB
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