Date: 20090827
Docket: T-985-08
Citation: 2009 FC 851
Ottawa, Ontario, August
27, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
THE
CANADA REVENUE AGENCY
Applicant
and
KATHERINE
MCCONNELL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 18(1) of the Federal Courts Act,
R.S. 1985, Chap. F-7, for judicial review of a decision of the Canadian Human
Rights Commission (the Commission) dated April 9, 2008 to exercise its
discretion to extend the one year limitation set out in paragraph 41(1)(e) of
the Canadian Human Rights Act, R.S.C. 1985, c. H-6 and deal with
complaints 20041466 and 20050312.
[2]
The
applicant, Canada Revenue Agency (CRA) applies for:
1. An
order that the Commission’s decision be set aside and for the same matter to be
referred back to the Commission to be determined in accordance with directions.
2. An
order for the costs of this application.
[3]
The
grounds for judicial review in this application are that the Commission made
the following errors in exercising its discretion to extend the period of time
for filing complaints 20041466 and 20050312:
1. The Commission erred
in law in failing to consider all of the relevant factors;
2. The Commission erred
in law in considering irrelevant factors; and
3. The Commission based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it.
It is also alleged that in light of all the
evidence before the Commission, the decision to extend the time was
unreasonable.
Background
[4]
Katherine
McConnell filed a complaint (Complaint No. 20000775) on November 18, 2000,
against what was formerly called the Canada Customs and Revenue Agency (CCRA),
now the Canada Revenue Agency (CRA), alleging discrimination on the basis of
race, national/ethnic origin and disability, all in contravention of the Canadian
Human Rights Act, R.S.C. 1985 c. H-6 (the Act).
[5]
This
complaint (the first complaint) was investigated and dismissed by the
Commission in December of 2002. Ms. McConnell sought leave for judicial review
of the Commission’s decision. This Court dismissed her application for judicial
review on June 8, 2004 (McConnell v. Canada (Canada Human Rights
Commission), [2004] F.C.J. No. 1005) and leave was not granted to
appeal before the Federal Court of Appeal in 2005.
[6]
On
December 7, 2004, Ms. McConnell filed two further written complaints (Complaint
Nos. 20041466 and 20050312 or the complaints). The complaints allege
discrimination on the basis of disability, sex and race arising from two
incidents of alleged sexual harassment.
[7]
The
alleged conduct of Complaint No. 20041466 occurred from December 1997 to
September 2002. The alleged conduct of Complaint No. 20050312 occurred from
March 1999 to September 2002.
[8]
On
June 8, 2005, the Commission dismissed Ms. McConnell’s complaints on the basis
that they were out of time pursuant to paragraph 41(1)(e) of the Act. Ms.
McConnell applied for leave to judicially review this decision to the Federal
Court.
[9]
On
May 17, 2007, Mr. Justice Martineau allowed Ms. McConnell’s appeal in part. He
upheld the Commission’s decision that the complaints were made outside the one
year limitation period set out in the Act. He concluded, however, that the
Commission did not consider whether the one year time period should be
extended. The matter was sent back to the Commission to determine:
1. Whether it should
exercise its discretion to extend the time period; and if so;
2. Whether it should
only investigate the new allegations pertaining to sexual harassment,
retaliation and employment termination.
Commission’s Decision:
[10]
On
May 20, 2008, the Commission informed Ms. McConnell of its decision to hear the
complaints outside of the one year limitation period set out in the Act. The
Commission also found that allegations made in the first complaint would not be
included in the second hearing as they had already been dismissed in 2002. The
Commission decided that it would only investigate new allegations pertaining to
sexual harassment, retaliation and employment termination.
[11]
In
making its decision to extend the one year deadline set out in paragraph
41(1)(e) of the Act, the Commission considered the following factors:
1. What is the nature
and seriousness of the issues raised by the complainant?
2. How is the public
interest affected by the issues raised in the complaint?
3. Was the
complainant’s initial contact with the Commission within one year of the last alleged
discriminatory practice?
4. How long is the
delay (both the overall delay and the delay in filing after initial contact
with the Commission)?
5. What are the reasons
for the delay in filing a complaint?
6. Was the delay within
the complainant’s control?
7. Did the CRA have
notice of the complainant’s intention to file a complaint, or was the CRA made
aware of the complainant’s allegations at an earlier date?
8. Will the CRA’s
ability to defend the complaint be seriously prejudiced, for example, by the
destruction of documents or the death of key witnesses, of the complaint
proceeds?
[12]
The
Commission concluded that in consideration of these factors and the material
before them, “. . . the Complainant has provided persuasive and compelling
reasons for the Commission to exercise discretion to extend the time for the
filing of the within complaints”.
[13]
The
Commission added that “[a]llegations of sexual harassment, termination of
employment based on prohibited grounds, and retaliation are, of course, very
serious allegations and no issue is raised by the Respondent as to this.”
[14]
The
Commission stated that CRA’s argument that they would be prejudiced was not
strong enough in the face of serious allegations and “the fact that the
individuals were questioned by the police as to the allegations, the matter was
raised in a lawsuit by amendment in 2003, and in the complaints filed in
2004…” suggested to the Commission that the individuals involved have had the
allegations in front of them “on many occasions over the years, and the
likelihood of ‘serious prejudice’ due to fading memories is not strong enough
to cause the Commission not to exercise its discretion”.
[15]
The
Commission acknowledged the CRA’s concern that there are some employees who
have retired or left their employment that are involved in the allegations
involving termination of employment and retribution. However, the Commission
maintained that the CRA will not be ‘seriously prejudiced’ to the extent that
they should not exercise their discretion in this manner.
[16]
The
Commission states that the CRA was “well aware” of the allegations against it
and the CRA has not suggested otherwise.
[17]
The
Commission stated that Ms. McConnell raised “new or further” allegations on a
“regular and continuous” basis with the Commission. Some of these allegations
were added to the first complaint but many were not and survived the first
complaint’s dismissal.
Issues
[18]
The
CRA raises the following issues:
1. Did the Commission
commit an error of law by failing to consider relevant factors when determining
whether it would exercise its discretion to hear the complaints outside the one
year limitation period prescribed by paragraph 41(1)(e) of the Act?
2. In the alternative,
was the 2008 decision unreasonable?
[19]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Commission
commit a reviewable error when it chose to exercise its discretion to hear the
complaints outside the one year limitation period prescribed by paragraph 41(1)(e)
of the Act?
CRA’s Submissions
[20]
The
relevant statutory framework for the filing of complaints includes the granting
of discretion to accept complaints made beyond the one year limitation. Section
40 of the Act states that “an individual who has reasonable grounds for
believing that a person is engaging or has engaged in a discriminatory practice
may file a complaint with the Commission”. Paragraph 41(1)(e) then states that
“the Commission shall deal with any complaint filed unless it appears that the
complaint is based on acts or omissions which occurred more than one year, or
such longer period of time as the Commission considers appropriate in the
circumstances, before receipt of the complaint”.
[21]
The
standard of review, according to the CRA, is reasonableness because determinations
under paragraph 41(1)(e) are discretionary in nature. However, the CRA contends
that “if in the course of making its decision under paragraph 41(1)(e) the
Commission commits an error of law, the decision becomes subject to the
correctness standard”.
[22]
The
CRA submits that the Commission did commit an error of law when it failed to
apply the necessary legal criteria when considering whether to extend the one
year time period. For this reason, the CRA submits, correctness is the appropriate
standard of review.
[23]
The
CRA submits that an error of law is committed when a tribunal fails to consider
“main relevant factors” (see Canada (Dir. Of Investigation
and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraphs 23 to 41
and Via Rail Canada Inc., v. Canada (National
Transportation Agency), [2001] 2 F.C. 25 (F.C.A.)).
[24]
The
CRA cites Bredin v. Canada, 2006 FC 1173, [2006] F.C.J. No. 1478
and Canada (Canadian Human Rights Commission) v. Canadian Broadcasting Corp.
(re: Vermette), [1996] F.C.J. No. 1274 for authority that the Commission
must consider the reasons for the complainant’s delay, whether the delay was
incurred in good faith and prejudice caused the delay. There is a further
requirement for the Commission to make findings of fact with respect to the
reasonableness of the complainant’s explanations for the delay (see Richards
v. Canada, [2008] F.C.J. No. 989).
[25]
The
CRA submits that the Commission informed Ms. McConnell before she submitted her
arguments that it would be considering the issue of delay.
[26]
The
CRA states that the Commission did not actually undertake any consideration of
the reasons for Ms. McConnell’s delay in filing her complaints, although the
Commission gave detailed reasons for “why there was no good reason for [Ms.
McConnell’s] delay. The CRA also submits that the Commission did not consider
any delay issue that had been written in the reports or recommendations of the
investigators at the Commission.
[27]
The
CRA also submits that the Commission did not consider the extent of the delay
or the reason for the delay.
[28]
In
addition, the CRA submits that the decision “appears to be based on a
conclusion that the complaints may have been made on time” as a continuous
complaint by Ms. McConnell.
[29]
The
CRA submits that this is contrary to the finding of the Commission in
dismissing the first complaint and contrary to the evidence of the Commission’s
investigator, Jacinta Belanger, who stated that Ms. McConnell did not raise the
issue of sexual harassment in the first complaint. It is also contrary to the
evidence of Ms. McConnell who stated in an affidavit that the letters she sent
in the first complaint did not refer to sexual harassment. The CRA states that
the evidence indicates that the complaints of sexual harassment were first
brought to the Commission’s attention when she filed the second complaints in
December of 2004.
[30]
The
CRA also submits that the Commission’s decision is contrary to Mr. Justice
Martineau’s 2007 order. In Mr. Justice Martineau’s order, the complaints were
found to be out of time but the decision to extend was to be re-examined by the
Commission. The CRA submits that the Commission extended the time on the basis
that the complaints were made on a timely basis and were as such res
judicata and outside the jurisdiction of the Commission.
[31]
The
CRA states that making complaints to various venues does not absolve Ms.
McConnell from the need to file with the Commission on a timely basis.
Ms. McConnell’s
Submissions
[32]
Ms.
McConnell submits that the decision of the Commission was just and reasonable
as, in exercising its discretion; it considered all of the relevant factors.
[33]
Ms.
McConnell submits that the very fact that she was pursuing her complaints in a
number of forums suggested that she intended to pursue these allegations at the
Commission as recognized in the decision.
[34]
Further,
Ms. McConnell submits that the Commission recognized the pattern of continuing
to notify the Commission of new and further allegations, some of which were in
the first complaint and some of which were not. In fact, some of the
allegations were not included in the first complaint despite the efforts of Ms.
McConnell to have them included.
[35]
Regarding
the issue of “serious prejudice” to the CRA, Ms. McConnell submits that the
Commission was reasonable. While the Commission recognizes this issue as a
significant one, it notes that the seriousness of the allegations warrant
exercising their discretion in this case.
[36]
Ms.
McConnell submits that although the CRA suggests that prejudice will occur
because some individuals have left their employment or retired, the CRA admits
that the relevant individuals are nevertheless available. Ms. McConnell states
that in addition, no records have been destroyed and the seriousness of these
allegations suggests that these issues have not faded over time in the minds of
the individuals involved.
[37]
Finally,
Ms. McConnell states that the Commission did take into account the delay and
reasons for the delay, and points out that the CRA was well aware of the allegations
being made at the Commission and other venues.
Analysis and Decision
Issue 1
What is the appropriate
standard of review?
In Dunsmuir
v.
New Brunswick, [2008] 1 S.C.R. 190,
the Supreme Court of Canada stated at paragraph 62:
In
summary, the process of judicial review involves two steps. First, courts
ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of defence to be accorded with regard to a particular
category of question. Second, where the first inquiry proves unfruitful, courts
must proceed to an analysis of the factors making it possible to identify the
proper standard of review.
[38]
In this category of
question, namely administrative decisions at the Commission regarding one-year
limitation periods under paragraph 41(1)(e) of the Act, jurisprudence has
already determined in a satisfactory manner the degree of deference to be
accorded. In Richard v. Canada (Treasury Board), [2008] F.C.J. No. 989, Mr. Justice
Martineau states:
10. The impugned decision
not to deal with the applicant's complaint is reviewable on the reasonableness
standard: Khanna v. Canada (Attorney General), 2008 FC 576, [2008] F.C.J. No. 733
(QL), at paragraph 24. In so doing, the Court must consider the justification,
transparency and intelligibility of the decision-making process: Dunsmuir v. New-Brunswick, [2008]
S.C.J. No. 9, 2008 SCC 9, at paragraph 47 (Dunsmuir).
11. Indeed, the
Commission's decision to dismiss complaints under section 41 of the CHRA should
be subject to closer review than decisions to refer complaints to the Canadian
Human Rights Tribunal: Larsh v. Canada (Attorney General),
[1999] F.C.J. No. 508 (QL), at paragraph 36 (Larsh).
As stated by Justice Evans (as he then was) in Larsh:
"[a] 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."
[…]
13. In this regard, reasons for a decision
ensure a "fair and transparent decision-making", reduce "to a
considerable degree the chances of arbitrary or capricious decisions",
reinforce "public confidence in the judgment and fairness of administrative
tribunals" and "foster better decision making by ensuring that issues
and reasoning are well articulated and, therefore, more carefully thought
out": Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at paragraphs 38 and 39.
[39]
The CRA
suggests that
if in the course of making its decision under paragraph 41(1)(e) the Commission
commits an error of law, the decision becomes subject to the correctness
standard. Then the CRA suggests that the Commission did commit an error of law
when it failed to apply the necessary legal criteria when considering whether
to extend the one year time period, and as such, correctness is the appropriate
standard of review. This is not in accordance with the standard of review laid
out in Dunsmuir above. Questions of mixed law and fact, as is the case
in this judicial review, are reviewable on a standard of reasonableness Dunsmuir
above.
[40]
Issue
2
Did the Commission
commit a reviewable error when it chose to exercise its discretion to hear the
complaints outside the one year limitation period prescribed by section
41(1)(e) of the Act?
The CRA
submits that the Commission did not consider all the relevant factors in
exercising its discretion under paragraph 41(1)(e). Richards above,
however, points out that there are no specific criteria for exercising
discretion under this section:
8 As can
be seen, paragraph 41(1)(e) of the CHRA does not specify the criteria for
exercising the discretion to extend the one-year time limit. Therefore, it is
left to the Commission to devise any relevant criteria pertaining to the
exercise of its discretion. According to the jurisprudence, the criteria used
by the Commission may be similar, albeit not identical, to the criteria used by
the courts: "[a]mong these, particularly, whether the delay was incurred
in good faith and the weighing of any prejudice or unfairness to the respondent
caused by the delay" (Bredin v. Canada (Attorney
General), [2006] F.C.J. No. 1478, 2006 FC 1178, at paragraph 51) (Bredin)). This supposes that findings of fact are to be
made by the Commission with respect to the good faith of the complainant, the
reasonableness of her or his explanations for the delay, and/or the existence
of some harm or prejudice caused to the respondent by the delay.
9 Each request for an extension
of the time limit must be assessed by the Commission on its own merits. The
particular weight to be given to any relevant factor may vary from case to
case. Further, the list of factors or criteria to extend the time limit is not
exhaustive. The length of the delay and the particular nature of the allegation
of discrimination (i.e., whether it is exceptional
or not and whether it was isolated or continuous), combined with the fact that
the complainant is acting in good faith and is not bringing a trivial,
frivolous or vexatious complaint, may also be relevant considerations in the
Commission's exercise of its discretion to extend the one-year delay.
Considering the objectives of the CHRA and the possible harm and prejudice that
may be caused to victims of discrimination, a lengthy delay in bringing a
complaint may not, in and of itself, constitute reasonable grounds to refuse to
extend the one-year time bar. This is especially so if, for example, the
complainant has a reasonable explanation for the delay or the respondent will
not suffer any prejudice.
[41]
I am satisfied that the Commission considered the salient issues
in its decision to exercise discretion including the length of the delay and
the particular nature of the allegation as well as the issue of prejudice to
the CRA and that its decision had the “justification, transparency, and
intelligibility” required of the reasonableness standard set out in Dunsmuir
above.
[42]
I
find it is reasonable that the Commission found that ‘serious prejudice’ would
not occur. It was not the case that these complaints came to the attention of
the CRA years after they happened. Ms. McConnell filed a number of allegations
with the Commission. The CRA has been aware of these allegations and the
various venues Ms. McConnell engaged to seek redress for her alleged
complaints.
[43]
The CRA submits that the Commission erred in
making a decision based on a belief that the complaints were not outside the
one year limitation period but complaints that have existed on a continuous
basis with the Commission. The Commission stated, however, that:
Upon considering all
of the material before it, and the foregoing factors, the Commission determines
that the Complainant has provided persuasive and compelling reasons for the
Commission to exercise its discretion to extend the time for the filing of the
within complaints.
[44]
I cannot agree that the Commission was not
exercising its discretion. While the Commission may have also suggested that
there were allegations that were never included in the first complaint and as
such, survived the dismissal based on a one year limitation period in the first
complaint, it nevertheless regarded the allegations as requiring an exercise of
discretion in this manner.
[45]
In Larsh v. Canada (Attorney General), [1999] F.C.J. No.
508 at paragraph 36, Mr. Justice Evans articulates the importance of this
analysis:
[a] 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.
In this case, it was
reasonable of the Commission to use its discretion, given its mandate to
address discrimination, so that the serious allegations made by Ms. McConnell
are addressed before the tribunal.
[46]
I would therefore not allow the judicial review on this
ground.
[47]
The application for judicial review is dismissed with
costs to the respondent, Katherine McConnell.
JUDGMENT
[48]
IT
IS ORDERED that the application for judicial review is dismissed with costs
to the respondent, Katherine McConnell.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Canadian Human Rights Act, R.S. 1985, C. H-6
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2. The purpose of this Act is to extend
the laws in Canada to give effect, within the purview of matters coming
within the legislative authority of Parliament, to the principle that all
individuals should have an opportunity equal with other individuals to make
for themselves the lives that they are able and wish to have and to have
their needs accommodated, consistent with their duties and obligations as
members of society, without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability or conviction for an offence for which a pardon has been granted.
3. (1) For all
purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation,
marital status, family status, disability and conviction for which a pardon
has been granted.
. . .
10. It is a discriminatory practice for an
employer, employee organization or employer organization
(a) to
establish or pursue a policy or practice, or
(b) to enter
into an agreement affecting recruitment, referral, hiring, promotion,
training, apprenticeship, transfer or any other matter relating to employment
or prospective employment,
that deprives
or tends to deprive an individual or class of individuals of any employment
opportunities on a prohibited ground of discrimination.
. . .
40.(1) Subject
to subsections (5) and (7), any individual or group of individuals having
reasonable grounds for believing that a person is engaging or has engaged in
a discriminatory practice may file with the Commission a complaint in a form
acceptable to the Commission.
. . .
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
(a) the
alleged victim of the discriminatory practice to which the complaint relates
ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the
complaint is one that could more appropriately be dealt with, initially or
completely, according to a procedure provided for under an Act of Parliament
other than this Act;
(c) the
complaint is beyond the jurisdiction of the Commission;
(d) the
complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the
complaint is based on acts or omissions the last of which occurred more than
one year, or such longer period of time as the Commission considers
appropriate in the circumstances, before receipt of the complaint.
|
2.
La présente loi a pour objet de compléter la législation canadienne en
donnant effet, dans le champ de compétence du Parlement du Canada, au
principe suivant : le droit de tous les individus, dans la mesure compatible
avec leurs devoirs et obligations au sein de la société, à l’égalité des
chances d’épanouissement et à la prise de mesures visant à la satisfaction de
leurs besoins, indépendamment des considérations fondées sur la race,
l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe,
l’orientation sexuelle, l’état matrimonial, la situation de famille, la
déficience ou l’état de personne graciée.
3.
(1) Pour l’application de la présente loi,
les motifs de distinction illicite sont ceux qui sont fondés sur la race,
l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe,
l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état
de personne graciée ou la déficience.
. .
.
10.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite et s’il est susceptible d’annihiler les chances d’emploi ou
d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour
l’employeur, l’association patronale ou l’organisation syndicale :
a)
de fixer ou d’appliquer des lignes de conduite;
b)
de conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
. .
.
40.(1) Sous réserve des
paragraphes (5) et (7), un individu ou un groupe d’individus ayant des motifs
raisonnables de croire qu’une personne a commis un acte discriminatoire peut
déposer une plainte devant la Commission en la forme acceptable pour cette
dernière.
. .
.
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 :
a)
la victime présumée de l’acte discriminatoire devrait épuiser d’abord les
recours internes ou les procédures d’appel ou de règlement des griefs qui lui
sont normalement ouverts;
b)
la plainte pourrait avantageusement être instruite, dans un premier temps ou
à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c)
la plainte n’est pas de sa compétence;
d)
la plainte est frivole, vexatoire ou entachée de mauvaise foi;
e)
la plainte a été déposée après l’expiration d’un délai d’un an après le
dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur
que la Commission estime indiqué dans les circonstances.
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