Date: 20090107
Docket: T-558-08
Citation: 2009 FC 22
BETWEEN:
ATTORNEY GENERAL OF CANADA
(CANADIAN FORCES)
Applicant
and
MICHELINE
ANNE MONTREUIL
CANADIAN HUMAN
RIGHTS COMMISSION
Respondents
and
J. GRANT SINCLAIR, Q.C., IN HIS CAPACITY
AS CHAIRPERSON OF THE CANADIAN
HUMAN RIGHTS TRIBUNAL
CANADIAN HUMAN
RIGHTS TRIBUNAL
Third Party
REASONS FOR
JUDGMENT
JUSTICE HANSEN
[1] This is an application for judicial review of the decision dated
March 26, 2008, in which the Chairperson of the Canadian Human Rights Tribunal
(the Chairperson) refused to authorize the Tribunal member seized of inquiry T1047/2805, Micheline
Anne Montreuil v. Canadian Forces, to complete it and render a decision,
despite the expiration of his appointment.
[2] In June 1999, Ms. Montreuil submitted an application to the
Canadian Armed Forces for a legal officer position in the Office of the Judge
Advocate General. The application was refused.
[3] In
October 2002, Ms. Montreuil filed a complaint with the Canadian Human Rights
Commission (the Commission) alleging, inter alia, that she had been
refused the position because she is transgendered and therefore discriminated
against on the ground of sex. The Commission referred the case to the Tribunal
for a hearing, which began on October 23, 2006.
[4] On December 21, 2007, at the end of a 97-day hearing during
which the Tribunal heard four expert witnesses and fifteen factual witnesses,
Member Pierre Deschamps reserved his decision. At that time, he was seized of
three other cases.
[5] On February 8, 2008, the Chairperson of the Tribunal
informed Mr. Deschamps that, under subsection 48.2(2) of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (the Act), his appointment that was
due to expire on February 9, 2008, had been extended so that he could
complete the three other inquiries mentioned above.
[6] On March 7, 2008, the parties were informed that the
member’s appointment had expired on February 9 and that the case would be given
to the Vice-Chairperson of the Tribunal. On March 10, 2008, the
applicant asked the Chairperson to exercise his discretion under
subsection 48.2(2) of the Act to permit the member to complete the
Montreuil case.
[7] On March 26, 2008, the Registrar of the Tribunal
informed the parties that the Chairperson had denied the request for an
extension on the following grounds:
[translation]
After considering subsection 48.2(2) of
the Act, the Chairperson has decided to not approve this request. In reaching
this decision, the Chairperson took the following factors into account:
§
the
Chairperson has supervision over and direction of the Tribunal’s work,
including the allocation of work among the members (subsection 48.4(2));
§
the duty
of the Tribunal to conduct proceedings as expeditiously as the requirements of natural
justice allow (subsection 48.9(1));
§
the time
and resources already dedicated to this inquiry;
§
Mr.
Deschamps’ jurisdictional work load from other pending cases before the
Tribunal;
§
the
limited length of an extension granted to a member to allow him or her to
complete an inquiry; this implicit time limit is a necessary inference from
subsection 48.2(2), since the authority to appoint members and to grant new
mandates falls exclusively within the mandate of the Governor in Council.
The Chairperson is of the view that some
of these factors require more detailed explanations.
On the last day of his mandate, Mr.
Deschamps was seized of four inquiries:
§
M.
Montreuil v. Canadian Forces (T1047/2805)
§
M.
Dawson v. Canada Post (T1053/3405)
§
R.
Warman v. M. Guille (T1090/7105)
§
S.
Chopra v. Health Canada (T901/2104)
The Chairperson exercised his discretion
to permit Mr. Deschamps to conclude the Dawson, Warman and Chopra
inquiries by September 12, 2008. (Dawson – 17 days; Warman –
14 days; Chopra – 39 days).
The hearing in the Dawson inquiry
ended on March 22, 2007. The final written submissions were filed on
October 23, 2007. The hearing in the Warman inquiry ended on December
14, 2007. The final written submissions were filed on February 6, 2008.
The hearing in the Chopra inquiry ended on October 4, 2007. The
final written submissions were filed on November 9, 2007.
The Dawson and Warman complaints
were referred to the Tribunal in 2005, and the Chopra complaint in
2004.
The hearing in the Montreuil
inquiry, which lasted 97 days, significantly exceeded the length of time
originally anticipated by the parties. The Chairperson is of the opinion that a
decision in the Montreuil inquiry cannot be rendered within a reasonable
time in the sense that Parliament intended in subsection 48.2(2). Consequently,
the Chairperson has determined that giving his approval in these circumstances
would be tantamount to granting a new mandate to the member, which would exceed
the power set out in subsection 48.2(2).
Based on his experience and considering
the history of these four cases – as well as his legal obligation to the
Tribunal’s proceedings as a whole – the Chairperson has determined that he will
not exercise his discretion under subsection 48.2(2) in the Montreuil inquiry.
Vice-Chairperson Hadjis has been designated to manage this proceeding.
[8] On August 1, 2008, the applicant served his record on the
application for judicial review of the Chairperson’s decision. The Chairperson
and the Tribunal were named as parties to the proceeding. On August 8, 2008,
the respondent, Ms. Montreuil, served a letter on the parties requesting the
Chairperson to reconsider the decision, although she had originally supported
it. In a letter dated August 13, 2008, the Commission consented to the order
sought by the Attorney General of Canada.
[9] The
Chairperson of the Tribunal filed a motion under section 109 of the Federal
Courts Rules for leave to intervene in the application for judicial review.
On October 23, 2008, Prothonotary Morneau granted the motion and gave leave to
the Chairperson to [translation]
“to file and serve an affidavit [and] a memorandum, and to present oral
arguments” dealing with the following issues:
[translation]
-any legal or factual
argument relating to the context of the decision . . . and the impact of the
findings of the application for judicial review on the allocation of work among
Tribunal members . . . and the management of its internal affairs, and
-whether it has a duty to
comply with the rules of natural justice and procedural fairness [including]
whether it has a duty to hear the parties when exercising the [discretion]
conferred on it by subsection 48.2(2) of the Act.
Subsequently,
the Chairperson filed the affidavit of the Registrar and a memorandum.
[10] The following provisions of the Act
are relevant in this case:
|
48.1 (1) There is hereby
established a tribunal to be known as the Canadian Human Rights Tribunal
consisting, subject to subsection (6), of a maximum of fifteen members, including
a Chairperson and a Vice-chairperson, as may be appointed by the Governor in
Council.
(2) Persons appointed as members of the
Tribunal must have experience, expertise and interest in, and sensitivity to,
human rights.
|
48.1 (1) Est constitué the Tribunal
canadien des droits de la personne composé, sous réserve du paragraphe (6),
d’au plus quinze membres, dont the Chairperson et le vice‑président,
nommés par le gouverneur en conseil.
(2) Les membres doivent avoir une
expérience et des compétences dans le domaine des droits de la personne, y
être sensibilisés et avoir un intérêt marqué pour ce domaine.
|
|
48.2 (1) The Chairperson and
Vice-chairperson are to be appointed to hold office during good behaviour for
terms of not more than seven years, and the other members are to be appointed
to hold office during good behaviour for terms of not more than five years….
(2) A member whose appointment expires
may, with the approval of the Chairperson, conclude any inquiry that the
member has begun, and a person performing duties under this subsection is
deemed to be a part-time member for the purposes of sections 48.3, 48.6, 50
and 52 to 58.
(3) The Chairperson, Vice-chairperson or
any other member whose term has expired is eligible for reappointment in the same
or any other capacity.
. .
.
|
48.2 (1)
The Chairperson et le vice-président du Tribunal sont nommés à titre
inamovible pour un mandat maximal de sept ans et les autres membres le sont
pour un mandat maximal de cinq ans [….]
(2) Le membre dont le mandat
est échu peut, avec l’agrément du président, terminer les affaires dont il
est saisi. Il est alors réputé être un membre à temps partiel pour
l’application des articles 48.3, 48.6, 50 et 52 à 58.
(3) The Chairperson, le vice-président ou
tout autre membre peut recevoir un nouveau mandat, aux fonctions identiques
ou non.
[…]
|
|
48.4 (1)
The Chairperson and Vice-chairperson are to be appointed as full-time members
of the Tribunal, and the other members are to be appointed as either
full-time or part-time members.
(2) The Chairperson is the
chief executive officer of the Tribunal and has supervision over and
direction of its work, including the allocation of work among the members and
the
management of the Tribunal’s internal affairs.
. . .
|
48.4 (1) The Chairperson et le
vice-président sont nommés à temps plein et les autres membres le sont à
temps plein ou à temps partiel.
(2) The Chairperson est le premier
dirigeant du Tribunal; à ce titre, il en assure la direction et en contrôle
les activités, notamment en ce qui a trait à la répartition des tâches entre
les
membres
et à la gestion de ses affaires internes.
[…]
|
|
48.9 (1) Proceedings before the
Tribunal shall be conducted as informally and expeditiously as the
requirements of natural justice and the rules of procedure allow.
. . .
|
48.9
(1)
L’instruction des plaintes se fait sans formalisme et de façon expéditive
dans le respect des principes de justice naturelle et des règles de pratique.
[…]
|
[11] The applicant raised two preliminary objections. First, the
applicant contends that the affidavit filed by the intervenor does not comply
with the Prothonotary’s order and that the deponent of the affidavit is the
Registrar and not the Chairperson, as provided in the order. Second, the
applicant submits that the content of a number of paragraphs in the affidavit
goes beyond the parameters established for the intervention of the
decision-making body whose decision is being challenged.
[12] In my view, the Prothonotary’s order did not limit the
affidavit evidence to the affidavit of the Chairperson himself. Accordingly,
the first objection is rejected. As to the second objection, at the judicial
review hearing, I advised the parties that I would not have regard to those
portions of the affidavit that went beyond what the order permitted.
[13] In addition, during the submissions of counsel for the
intervenor, I advised her that, to the extent that they attempted to defend or
justify the decision, I would not take them into consideration in reaching my
decision.
[14] The applicant
raises the following issues in this case:
1.
Does
the Chairperson’s decision contain errors of law in the interpretation of
subsection 42.2(2) of the Act and the jurisdiction conferred by this provision?
2.
Did
the Chairperson exercise the discretion provided in subsection 48.2(2) of the
Act unreasonably?
3.
Did
the Chairperson breach the rules of natural justice and procedural equity by
refusing to hear these representations before rendering the March 26, 2008,
decision?
[15] On the
question of the appropriate standard of review, the applicant and the
intervenor are in agreement, and I concur, that the application of the
statutory provision to the facts should be reviewed against a standard of
reasonableness. However, the parties disagree on the appropriate standard of
review for the Chairperson’s interpretation of subsection 48.2(2) of the Act.
While the applicant submits that, as a question of law, it should be reviewed
against a standard of correctness, the intervenor maintains that it should be
reviewed against a reasonableness standard.
[16] In Dunsmuir c.
Nouveau-Brunswick, [2008] 1 R.C.S. 190, at paragraph 51, the
Supreme Court of Canada stated that while many legal issues attract a standard
of correctness, some attract the standard of reasonableness. The Supreme Court
noted that guidance
with regard to the questions that will be reviewed on a reasonableness standard
can be found in the case law. The Court observed at paragraph 54 that
“[d]eference will usually result where a tribunal is interpreting its own
statute or statutes closely connected to its function…” (citations omitted). In
this case, neither the applicant nor the intervenor cited any jurisprudence
regarding the appropriate standard of review for the interpretation of
subsection 48.2(2) by the Chairperson or a Tribunal member.
[17] The
Supreme Court also stated that where it is not possible to ascertain the
appropriate standard of review from prior jurisprudence, a contextual analysis
must be undertaken in which a number of relevant factors will be taken into
account, in particular, the presence or absence of a privative clause, the
purpose of the administrative tribunal as found in its enabling statute, the
nature of the question, and the expertise of the tribunal.
[18] In
this case, the absence of a privative clause in the Act favours a less
deferential standard. Although the Act creates a discrete and special
administrative regime to deal with complaints of discrimination and establishes
the Tribunal as a body having expertise in the area of human rights (subsection
48.1(2)), the interpretation of subsection 48.2(2) does not engage that
expertise. However, the interpretation of the provision is related to the
responsibilities of the Chairperson as chief executive officer of the Tribunal
to supervise and direct its work, and the interpretation is also linked to his
knowledge of the workings of the Tribunal. Lastly, as the question of law at
issue in this case concerns the internal administration of the Tribunal it is
not of “central importance to the legal system”: Dunsmuir, at paragraph
55. These latter two considerations point to a deferential standard. Based on
this analysis, I conclude that the Chairperson’s interpretation of
subsection 48.2(2) should be reviewed against a standard of
reasonableness.
[19] In
his interpretation of subsection 48.2(2), the Chairperson found that the
discretion to extend the mandate of a member is circumscribed by an implicit
time limit in the provision. He reasoned that such an interpretation was
necessary since the power to appoint and reappoint Tribunal members rests
exclusively with the Governor in Council. Having regard to the language and the
purpose of the provision and given that the discretion to extend the mandate of
a member whose appointment expires may only be exercised to permit the member
to conclude inquiries that he is seized of, not to permit a member to undertake
new work, I am unable to find any reason to justify the need to infer an implicit
time limit to give effect to the provision. In my view, the Chairperson erred
in so finding.
[20] The
Chairperson’s interpretation, in turn, led him to erroneously conclude that,
since a decision in the Montreuil matter would not likely be rendered within
the time limit contemplated by subsection 48.2(2), extending the member’s
mandate would be tantamount to reappointing the member, which was beyond his
authority under the subsection in question. In my opinion, the erroneous
interpretation and the conclusion based on that interpretation renders the
decision unreasonable.
[21] The
decision is unreasonable in another respect. In reaching his decision, the
Chairperson took into account a number of relevant factors, including the
requirement that proceedings be conducted as expeditiously as the requirements
of natural justice and the rules of procedure allow, the time and resources
already dedicated to this inquiry by the Tribunal, and the other inquiries that
the member was still seized of.
[22] It
is well established that it is the decision maker’s responsibility to weigh the
relevant factors, and that it is not the role of the Court to re-examine the
weight that the decision-maker has assigned to the various factors. However,
the Court will intervene where a relevant factor has not been taken into
account.
[23] In
this case, although the Chairperson considered a number of relevant factors, he
neglected one, namely, the interests of the parties to the proceeding. In
particular, the Chairperson did not have regard to the interests of the
parties, in particular, the commitment of both financial and non‑financial
resources in having to relitigate a lengthy, complex matter.
[24] At
the hearing, counsel for the intervenor argued that the reference in the Chairperson’s
reasons to having taken into account the time and resources that had already
been dedicated to the matter included the interests of the parties. It is clear
from the affidavit evidence submitted by the intervenor that this consideration
was limited to the time and resources of the Tribunal and did not include the
interests of the parties.
[25] At
the hearing of the judicial review on December 18, 2008, I was advised that the
rehearing of the complaint was scheduled to begin on January 5, 2009. Given the
importance to the parties of having a decision on the judicial review prior to
that date, I issued an order on December 23, 2008, allowing the judicial review
application and ordering the parties to bear their own costs. Accordingly, no
order will issue with these reasons.
“Dolores
M. Hansen”
Certified
true translation
Mary
Jo Egan, LLB
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