Date: 20071129
Docket: T-1151-06
Citation: 2007 FC 1258
Ottawa, Ontario, November 29,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
PAULETTE
MICHON-HAMELIN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Paulette
Michon-Hamelin’s human rights complaint was summarily dismissed by the Canadian
Human Rights Commission on the basis that the complaint was beyond the
jurisdiction of the Commission. She now seeks judicial review of that
decision.
[2]
At
the conclusion of the hearing, I advised the parties that I would be allowing
this application. These are my reasons for that decision.
Background
[3]
It
is uncontroverted that Ms. Michon-Hamelin contracted tuberculosis as a result
of a workplace exposure to the infection. After she became ill, Ms.
Michon-Hamelin evidently encountered difficulties in accessing injury-on-duty
and disability benefits through her employer. These difficulties cumulated in
her filing a human rights complaint in which she alleged that she had been
discriminated against in the course of her employment by reason of her
disability, contrary to sections 7 and 10 of the Canadian Human Rights Act.
[4]
Ms.
Michon-Hamelin’s human rights complaint details a series of events that she
says amounted to adverse differential treatment. This differential treatment
included the failure of the employer to follow the Treasury Board Injury on
Duty Policy, which would have afforded her salary protection for 130 days. Ms.
Michon-Hamelin also alleged, amongst other things, that there were delays in
processing her claim for benefits, forcing her to take leave without pay while
her claim was processed.
[5]
In
paragraph 13 of Ms. Michon-Hamelin’s complaint form she states:
… Management did not accept
the fact that I was ill and was suffering from a disability and because of this
they did not process my claim adequately or diligently…
The Commission’s
Decision
[6]
Shortly
after receipt of Ms. Michon-Hamelin’s complaint, a Commission Investigator
wrote to Ms. Michon-Hamelin advising that the recommendation would be made to
the Commission not to deal with her complaint because the alleged
discriminatory practice did not appear to be linked to a prohibited ground of
discrimination, and because she had been accommodated by means of leave without
pay. The Commission offered Ms. Michon-Hamelin an opportunity to make
submissions in relation to this recommendation, which she did on March 29,
2006.
[7]
In
her response, Ms. Michon-Hamelin provided additional information with respect
to her complaint. She further stated that:
I believe that the persons
acting on behalf of the department did not believe that my exposure to the
Tuberculosis bacteria caused any damage to my person and that they did not
believe that I needed accommodation measures because of that exposure. … They
did not accept the diagnosis of several specialists and adding insult to injury
they did not even send me to Health Canada
as other employees are when an independent medical evaluation is necessary.
Furthermore, I am still experiencing ongoing discrimination in my workplace due
to the difficulty and embarrassment this situation has caused management.
[8]
After
a further exchange of correspondence between Ms. Michon-Hamelin and the
Commission, she was advised that a recommendation would go forward to the
Commission that it not deal with her complaint
[9]
In
a decision dated June 1, 2006, the Commission accepted the recommendation of
the Commission Investigator and dismissed Ms. Michon-Hamelin’s complaint. The
operative portion of the Commission’s decision provides that:
[T]he Commission decided,
pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act not to deal
with the complaint because the alleged discriminatory practice does not appear
to be linked to a prohibited ground of discrimination.
[10]
It
is this decision that underlies this application for judicial review.
Standard of Review
[11]
Both
parties rely on the Federal Court of Appeal’s decision in Sketchley v.
Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404 in relation
to the standard of review to be applied in reviewing a determination by the
Commission at the pre-investigation stage that a human rights complaint does
not disclose a prima facie case of discrimination.
[12]
In
this regard, the Federal Court of Appeal observed that the determination as to
whether prima facie discrimination has been established in a given
complaint will, in some cases, be a question of mixed fact and law, and in
others a question of law: Sketchley, at ¶59.
[13]
Ms.
Michon-Hamelin submits that the Commission’s decision in this case involves a
pure question of law, and should therefore be reviewed against the standard of
correctness. In contrast, the respondent submits that the decision involves
the application of the law to the facts as alleged in Ms. Michon-Hamelin’s
complaint, with the result that the decision should be reviewed against the
standard of reasonableness.
[14]
I
do not need to resolve this question as, in my view, the Commission’s decision
in this case is so fundamentally flawed that it cannot withstand scrutiny,
whatever standard of review is applied.
Analysis
[15]
The
Commission’s decision in this case was made pursuant to paragraph 41(1)(c) of
the Canadian Human Rights Act, which provides that:
|
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
[…]
(c)
the complaint is beyond the jurisdiction of the Commission …
|
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 :
[…]
c) la plainte
n’est pas de sa compétence …
|
[16]
In Canada
Post Corp. v. Canada (Human Rights
Commission)
(1997), 130 F.T.R. 241, aff’d (1999), 245 N.R. 397, Justice Rothstein observed
that:
¶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...
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.
[17]
The
Commission’s decision in this case was very brief. As the Federal Court of
Appeal observed in Sketchley, in such circumstances the investigation
report must be read as the reasons of the Commission: at ¶37.
[18]
The
reason given by the Investigator for concluding that the section 10 aspect of
Ms. Michon-Hamelin’s complaint was beyond the jurisdiction of the Commission
was that:
[T]he failure on the part of an employer
to correctly apply a non-discriminatory policy is not a human rights
violation. In other words, for a section 10 violation to exist, the policy
itself has to be discriminatory. If the policy is not discriminatory in
nature, the improper application thereof by the employer is an administrative
rather than a human rights matter.
[19]
Although
the respondent’s memorandum of fact and law argues that this was a correct
statement of the law, at the hearing of the application counsel for the
respondent quite properly conceded that this is not the case, and that a
facially neutral policy could indeed be discriminatory in its application.
[20]
While
there are limited facts asserted in the complaint form to suggest that the
conduct attributed to the employer in this case amounted to a policy or
practice extending beyond Ms. Michon-Hamelin’s own personal circumstances,
given that the Commission’s decision in relation to the section 10 aspect of
her complaint was based upon a fundamental misunderstanding of the applicable
law, the decision cannot stand.
[21]
Insofar
as the section 7 aspect of the complaint is concerned, the Commission
Investigator found that Ms. Michon-Hamelin’s complaints with respect to the
processing of her application for benefits appeared to be “allegations of poor
management and administrative errors on the part of Service Canada, rather than
human rights violations”. As such the Investigator stated that the alleged
discriminatory practice did “not appear to be linked to a prohibited ground of
discrimination as required by the CHRA.”
[22]
This
is a patently unreasonable finding.
[23]
Given
that no investigation was carried out in relation to the substance of Ms.
Michon-Hamelin’s human rights complaint, the allegations contained in her
complaint form must be taken as true. Indeed, the Investigator had no evidence
or information before her from the respondent to counter Ms. Michon-Hamelin’s
version of events.
[24]
In
this regard, Ms. Michon-Hamelin’s complaint clearly asserted that the problems
that she says that she encountered in relation to her application for
injury-on-duty and disability benefits occurred because her employer did
not accept that she was suffering from a disability.
[25]
Thus
Ms. Michon-Hamelin’s complaint clearly links the employment-related adverse
differential treatment identified in the complaint to a proscribed ground of
discrimination, thereby bringing the matter squarely within the jurisdiction of
the Canadian Human Rights Commission.
[26]
In
light of the fundamental flaws identified in both the Commission’s section 7
and section 10 analyses, it is not necessary to address Ms. Michon-Hamelin’s
arguments relating to the errors in the Commission’s accommodation analysis or
her procedural fairness arguments.
Conclusion
[27]
For
these reasons, the application is allowed, the decision of the Canadian Human
Rights Commission is set aside, and the mater is remitted to the Commission for
re-determination in accordance with these reasons.
Costs
[28]
Ms.
Michon-Hamelin submits that the Commission’s decision in this case was so
obviously flawed that the respondent should have consented to the application
being allowed. Having forced Ms. Michon-Hamelin to go through a hearing,
counsel submits that she should be entitled to her costs on an elevated scale.
[29]
While
conceding that costs should follow the event, the respondent submits that there
is nothing in this case that would entitle Ms. Michon-Hamelin to costs beyond
the ordinary scale.
[30]
The
respondent was clearly entitled to its day in Court. That said, while counsel
for the respondent did ultimately concede that the Commission decision
reflected a misunderstanding of the law as it relates to policy complaints,
this concession did not come until the hearing. Indeed, the respondent’s
memorandum of fact and law endeavours to defend the indefensible.
[31]
In
the circumstances, having regard to the factors enumerated in Rule 400(3), and
in the exercise of my discretion, Ms. Michon-Hamelin shall have her costs of this
application, at the upper end of column 3 in Tariff B.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to the
Commission for re-determination in accordance with these reasons; and
2.
Ms. Michon-Hamelin shall have her costs of this application, at the
upper end of column 3 in Tariff B.
“Anne
Mactavish”
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