Date: 20111005
Docket: T-727-10
Citation: 2011 FC 1128
Ottawa, Ontario, this 5th day of
October 2011
Present: The Honourable Mr. Justice Kelen
BETWEEN:
SAMEH BOSHRA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of two decisions by the Canadian Human
Rights Commission (the Commission), both dated March 31, 2010: the first,
pursuant to paragraph 41(1)(d) of the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 (the Act), not to deal with the Applicant’s complaint
because it is trivial; and the second, pursuant to paragraph 41(1)(b) of
the Act, not to deal with the Applicant’s complaint at that time because
another statutory procedure was available to deal with the human rights issues
raised by the complaint.
FACTS
Background
[2]
The
Applicant, Sameh Boshra, began his employment at Statistics Canada (the
employer) on November 26, 2007, as an Analyst Recruit in the Income Statistics
Division. Because he bicycled to work, the Applicant regularly used the men’s
change room in the basement of the Main Statistics Building before and
after work to change clothes.
[3]
On
August 7, 2008, shortly after 6 p.m., the Applicant was changing in the
men’s change room, when a female security guard entered the change room (it was
disputed whether the guard followed the protocol of knocking first). When she
discovered the Applicant was in the change room, she quickly apologized and
left the room.
[4]
As
a Coptic Orthodox Christian, the Applicant states that a woman other than his
wife viewing him undressed violates his religious beliefs regarding modesty.
The Applicant reported this incident to the employer and asked that steps be
taken to ensure it did not occur again. Unsatisfied with the response he
received, the Applicant submitted an internal grievance regarding this incident
on August 26, 2008.
[5]
The
Applicant asked that the employer ensure he would never have to see this female
security guard again, and also that the employer establish a policy prohibiting
guards from entering change rooms for persons of the opposite sex.
[6]
The
employer did not consider these solutions appropriate, and instead offered
other accommodations, including:
a. Posting signs
in washrooms and change rooms to alert workers to the possibility that guards
and cleaning staff may enter for cleaning or inspection purposes;
b. Adding
curtains to shower stalls in the change rooms for additional privacy;
c. Suggesting
that the Applicant change in one of the lockable unisex washrooms located on
every floor, or in a washroom cubicle or a curtained shower stall;
d. Ensuring that
guards do not inspect change rooms during regular business hours (and the
employer moved the start time of these inspections from 6 p.m. to 7 p.m.,
to accommodate those who may leave work slightly late).
[7]
The
Applicant disputed that the employer offered some of these solutions, stating
that the employer in fact refused to post signs about guards of the opposite
sex entering the change rooms. The employer stated in its written position to
the Commission that these signs are now posted in the building.
[8]
In
its submissions to the Commission dated January 7, 2010, the employer stated
that it was not aware of the Applicant’s religious beliefs or any need for
accommodation prior to the incident on August 7, 2008. After that incident, the
employer offered the accommodation measures described above to the Applicant,
and implemented several of them, despite the fact that the Applicant rejected
them all as inadequate.
[9]
In
its cross-disclosure submissions dated January 26, 2010, the employer provided
the Commission with a summary of all the actions taken and accommodations
offered or implemented up to that date in response to the change room incident,
which stated in part:
·
The Agency
apologized to Mr. Boshra for any personal embarrassment he felt.
·
We
suggested he consider changing in the men’s washrooms; in the individual and
lockable handicapped washrooms located on every floor; or in one of the
numerous lockable conference rooms located on every floor.
·
We
instructed all commissionaires to take additional measures to confirm if anyone
is in the change rooms and washrooms before entering.
·
Signs were
posted in every change room and every washroom in the complex to advise
employees that the rooms may be entered for cleaning, repairs, or inspection
purposes.
·
Curtains
were installed on all shower stalls in all change rooms.
·
To offer
additional privacy, an additional curtain was installed separating the showers
from the change area.
·
In
accordance with the Security Policy, floor inspections began at 6:00 which is
the commencement of silent hours. After that time, only employees with special
permission should be in the building. Some, like Mr. Boshra, do not have such permission
but may occasionally be late in leaving the building. To accommodate these
people, the starting time of inspection rounds was changed to 7:00 p.m.
·
Mr. Boshra
justified his refusal to change in any location other than the change room on
the fact that other facilities do not have showers. Employees riding their
bicycles to work shower in the morning when they arrive, not at the end of the
workday. During working hours when he would be showering, there are no
inspections of washrooms or change rooms.
·
Handicapped
washroom [sic] have been provided for the convenience of our handicapped
employees but there is no rule preventing other employees from using these
facilities as long as priority is always given to those with special needs. The
suggestion to use these washrooms was not an insult; they are used by many
employees every day.
·
Each
evening two guards carry out two floor inspections of our three buildings
(equivalent to approximately 70 floors). They check washrooms and change rooms
for water leakage and ensure the health and safety of employees working alone
at night. They also confirm that employees on site have permission to be there.
If we were to provide a man and a woman per floor, we would have to hire two
additional commissionaires in order to have two teams of two commissionaires.
Hiring just one additional commissionaire would not be sufficient. During the
day we have up to 5000 employees in the building; during silent hours when
inspections are carried out, this number drops to approximately 100 employees
spread throughout the complex.
·
There is
no record and no recollection of anyone raising this concern previously. We
clearly responded quickly and in good faith to Mr. Boshra; if there had been
others who raised this issue, we would have responded to their concerns as
well…
[10]
On
July 8, 2009, the Applicant filed complaint 20090598 (the first complaint) with
the Commission.
[11]
During
this same period, several events occurred affecting the Applicant’s employment
status, and the motivation behind these events was disputed by the Applicant
and the employer. The Applicant was subjected to a disciplinary hearing on June
11, 2009, for allegedly making threats during a phone call (this call related
to the Applicant’s request for information about the investigation into the
change room incident). This disciplinary hearing resulted in a one-day
suspension.
[12]
On
June 23, 2009, the Applicant received a performance evaluation that included
negative comments regarding his personal suitability. The Applicant refused to
sign the evaluation, asserting that the comments were unsubstantiated, but the
evaluation was submitted as final unsigned.
[13]
On
July 15, 2009, the Applicant was informed that his current assignment was
terminated, and he was reassigned to another department. The Applicant states
that the discipline and negative performance evaluation were the reasons given
for this reassignment. The Applicant was also denied leave, and denied a
request to attend a training course.
[14]
The
Applicant grieved the discipline, the performance evaluation, the reassignment
and the denials of the leave and the training course – all these grievances
were denied by the employer.
[15]
The
Applicant reported receiving an email during this period from an unknown
sender. The email stated that he should stop what he was doing, because it
would “negatively affect” his employment – he interpreted this email as a
threat if he did not end his human rights complaint. The employer denied any
knowledge of this email in its written position.
[16]
On
July 31, 2009, the Applicant’s employment was terminated. The Applicant alleges
that this termination, as well as the events that preceded it, constituted
retaliation for his first complaint to the Commission. The Applicant grieved
the termination on August 12, 2009. Pursuant to section 209 of the Public
Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (PSLRA), the Applicant
referred his grievances to the Public Service Labour Relations Board (the
PSLRB) for adjudication. At the hearing, the Applicant stated that the hearing
for this adjudication occurred, and the decision of the PSLRB is now subject to
a separate application for judicial review.
[17]
In
its written position to the Commission, the employer maintained that the
discipline, performance evaluation and termination of the Applicant were wholly
unrelated to the incident giving rise to his human rights complaint.
[18]
On
September 3, 2009, the Applicant filed complaint 20090982 (the second
complaint) with the Commission.
Decisions Under Review
Complaint 20090598 –
Religion
[19]
The
first complaint alleged that the employer discriminated against the Applicant
on the ground of religion, contrary to sections 7 and 10 of the Act, by
pursuing a discriminatory policy or practice, by treating him in an adverse,
differential manner, and by failing to accommodate him.
[20]
A
Commission investigator completed a Section 40/41 Report (Report 1) to assist
the Commission in deciding whether to pursue the complaint. The investigator
found that the issue for the Commission to decide was whether it ought to
refuse to deal with the complaint because it was trivial, pursuant to paragraph
41(1)(d) of the Act.
[21]
In
Report 1, the investigator set out the factors to be considered in determining
whether a complaint is trivial within the meaning of paragraph 41(1)(d):
a.
What
is the nature of the dispute between the parties? Is it a purely private
dispute or are there public interest issues raised in the complaint? Are there
allegations of systemic discrimination?
b.
Does
the complaint raise serious or relatively trifling issues? How serious was the
adverse impact of the alleged discriminatory practice(s) on the complainant?
c.
Do
the alleged discriminatory practices constitute significant or merely technical
breaches of the Act?
d.
Has
the respondent already addressed the complainant’s concerns? Have substantial
and comprehensive remedies been provided by the respondent?
e.
Would
pursuing the complaint constitute a waste of public resources?
[22]
Report
1 summarized the position of the Applicant based on telephone conversations
with him, because he did not submit a written position. The report reproduced
the employer’s written position in full. The report then summarized each
party’s position on each of the factors listed above.
[23]
The
report emphasized the fourth factor: whether the employer had already addressed
the Applicant’s concerns. The report reiterated the employer’s position that
several accommodations were offered and implemented in relation to this
incident.
[24]
The
report stated the Applicant’s position that all of the offered accommodations
were inadequate, and that the only acceptable solution was to prohibit guards
entering change rooms for persons of the opposite sex. The report noted the
employer’s position that to institute such a policy may amount to
discrimination against female guards and cleaning staff.
[25]
The
report concluded, at paragraph 19:
It appears that the respondent has
offered several options that would reasonably accommodate the complainant.
While these options are not the complainant’s preferred accommodation, it would
appear that some of the options would assure him of privacy while changing
clothes.
[26]
The
Commission considered this report, the Applicant’s complaint, and further
submissions by the Applicant and the employer. In its decision dated March 31,
2010, the Commission decided not to deal with the complaint pursuant to
paragraph 41(1)(d) of the Act, because the complaint is trivial,
frivolous, vexatious or made in bad faith. In its decision, the Commission
adopted the conclusion of Report 1, specifically quoting paragraph 19,
reproduced above.
Complaint 20090982 –
Retaliation
[27]
The
Applicant’s second complaint alleged that the employer retaliated against the
Applicant for making the first complaint, contrary to section 14.1 of the Act,
by disciplining him, giving him a negative performance evaluation, reassigning
him, denying him leave, denying him a training course, and by terminating his
employment.
[28]
A
Commission investigator completed a Section 40/41 Report (Report 2) on January
28, 2010. The investigator found that the issue to be decided by the Commission
was whether it ought to refuse to deal with the complaint under paragraph
41(1)(b) of the Act, because the complaint could more appropriately be
dealt with, initially or completely, according to a procedure provided for
under an Act of Parliament other than the Canadian Human Rights Act.
[29]
Report
2 set out the factors relevant to determining whether to refuse to deal with a
complaint under paragraph 41(1)(b):
a.
Is
there another statutory procedure that is available to the complainant to deal
with the human rights issues raised by the complaint, either initially or
completely?
b.
If
there is another statutory procedure available to the complainant, what is it?
For example, is it a review mechanism or a grievance? What other statute is
involved?
c.
Can
the other statutory procedure deal with the human rights issues raised by the
complaint and, if so, can those issues be dealt with initially or completely?
Specifically:
i.
What
remedies are potentially available under the other statutory procedure?
ii.
Will
the parties be able to raise all of the human rights issues that are in dispute
between them through the other statutory procedure? If not, what issues cannot
be dealt with through the other statutory procedure?
iii.
What
steps have been taken by either of the parties to use the other statutory
procedure?
iv.
If
the parties have not begun to use the other statutory procedure, why not?
v.
If
the parties have begun to use the other statutory procedure, what is the status
of the complaint or grievance under the other procedure?
[30]
Report
2 reproduced the written positions of both parties, and then analyzed the
complaint by applying the factors listed above. The report stated that the
grievance procedure under section 208 of the PSLRA was available to the
Applicant to deal with the issues raised by the complaint. The report noted
that a grievance can be referred to the PSLRB for adjudication under section
209 of the PSLRA. The report also stated that the PSLRB has the authority to
interpret and apply the Act, and to award the same remedies as those available
under the Act, pursuant to section 226 of the PSLRA.
[31]
The
report stated that the Applicant had referred the grievances related to the
alleged retaliation to the Board for adjudication. As a result, the report
concluded that the complaint “could more appropriately be dealt with initially
or completely according to a procedure provided for under an Act of Parliament
other than the [Act].”
[32]
The
Applicant stated in his submissions to the Commission that the employer was
challenging the jurisdiction of the PSLRB to hear the grievances he had
referred for adjudication.
[33]
In
its submissions to the Commission, the employer pointed out that the
Applicant’s grievances were scheduled to be presented to the PSLRB the week of
June 7-11, 2010, and that a pre-hearing meeting was scheduled for March, 2010.
[34]
The
Commission considered the complaint, the Section 40/41 Report, and the
submissions from the Applicant and employer. In its decision dated March 31,
2010, the Commission decided not to deal with the complaint at that time,
pursuant to paragraph 41(1)(b) of the Act, and the decision adopted the
conclusions of the Section 40/41 Report, as described above. The Commission’s
decision noted that, at the end of the other procedure, the Applicant could ask
the Commission to reactivate the complaint.
LEGISLATION
[35]
Section
3 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, sets out the
prohibited grounds of discrimination for the purposes of the Act:
|
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.
|
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.
|
[36]
Sections
7 and 10 of the Act prohibit discrimination in relation to one’s employment:
|
7. It is a discriminatory
practice, directly or indirectly,
(a)
to refuse to employ or continue to employ any individual, or
(b)
in the course of employment, to differentiate adversely in relation to an
employee,
on a
prohibited ground of discrimination.
|
7. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait,
par des moyens directs ou indirects :
(a)
de refuser d’employer ou de continuer d’employer un individu;
(b)
de le défavoriser en cours d’emploi.
|
|
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.
|
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.
|
[37]
Section
14.1 of the Act prohibits a person against whom a complaint has been filed from
retaliating against the person who made the complaint:
|
14.1
It is a
discriminatory practice for a person against whom a complaint has been filed
under Part III, or any person acting on their behalf, to retaliate or
threaten retaliation against the individual who filed the complaint or the
alleged victim.
|
14.1
Constitue un
acte discriminatoire le fait, pour la personne visée par une plainte déposée
au titre de la partie III, ou pour celle qui agit en son nom, d’exercer ou de
menacer d’exercer des représailles contre le plaignant ou la victime
présumée.
|
[38]
Section
41 of the Act sets out certain grounds on which the Commission can decide not
to deal with a complaint:
|
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
…
(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;
…
(d)
the complaint is trivial, frivolous, vexatious or made in bad faith; or
…
|
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 :
…
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;
…
d) la plainte est frivole,
vexatoire ou entachée de mauvaise foi;
…
|
[39]
Subsection
208(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s.
2, permits an employee to present an individual grievance under certain
circumstances:
|
208. (1) Subject to subsections
(2) to (7), an employee is entitled to present an individual grievance if he
or she feels aggrieved
(a)
by the interpretation or application, in respect of the employee, of
(i)
a provision of a statute or regulation, or of a direction or other instrument
made or issued by the employer, that deals with terms and conditions of
employment, or
(ii)
a provision of a collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment.
|
208. (1) Sous réserve des
paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief
individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou
l’application à son égard :
(i)
soit de toute disposition d’une loi ou d’un règlement, ou de toute directive
ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii)
soit de toute disposition d’une convention collective ou d’une décision
arbitrale;
b) par suite de tout fait
portant atteinte à ses conditions d’emploi.
|
[40]
Subsection
209(1) of the PSLRA permits an employee to refer an individual grievance to adjudication
if it has not been dealt with to the employee’s satisfaction:
|
209. (1) An employee may refer
to adjudication an individual grievance that has been presented up to and
including the final level in the grievance process and that has not been
dealt with to the employee’s satisfaction if the grievance is related to
…
(b)
a disciplinary action resulting in termination, demotion, suspension or
financial penalty;
…
|
209. (1) Après l’avoir porté
jusqu’au dernier palier de la procédure applicable sans avoir obtenu
satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout grief
individuel portant sur :
…
b) soit une mesure disciplinaire
entraînant le licenciement, la rétrogradation, la suspension ou une sanction
pécuniaire;
…
|
[41]
Subsection
226(1) of the PSLRA empowers an adjudicator to interpret and apply the Act, and
grant remedies under the Act:
|
226. (1) An adjudicator may, in
relation to any matter referred to adjudication,
…
(g)
interpret and apply the Canadian Human Rights Act and any other Act of
Parliament relating to employment matters, other than the provisions of the Canadian
Human Rights Act related to the right to equal pay for work of equal
value, whether or not there is a conflict between the Act being interpreted
and applied and the collective agreement, if any;
(h)
give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian
Human Rights Act;
…
|
226. (1) Pour instruire toute
affaire dont il est saisi, l’arbitre de grief peut :
…
g) interpréter et appliquer la Loi
canadienne sur les droits de la personne, sauf les dispositions de
celle-ci sur le droit à la parité salariale pour l’exécution de fonctions
équivalentes, ainsi que toute autre loi fédérale relative à l’emploi, même si
la loi en cause entre en conflit avec une convention collective;
h) rendre les ordonnances
prévues à l’alinéa 53(2)e) et au paragraphe 53(3) de la Loi canadienne sur
les droits de la personne;
…
|
ISSUES
[42]
The
Applicant argues that the following issues are raised:
a.
Did
the Commission fail to exercise its jurisdiction by dismissing the complaints
submitted to it, despite its mandate in section 2 of the Act?
b.
Did
the Commission breach the principles of natural justice and procedural fairness
by dismissing the Applicant’s representations and accepting the employer’s
representations in whole without benefit of evidence or a hearing?
c.
Did
the Commission err in law by dismissing the complaints submitted to it, despite
the complaints meeting the grounds for a complaint under the Act?
d.
Did
the Commission base its decision on erroneous findings of fact by dismissing
the complaints as “trivial, frivolous, vexatious or made in bad faith” despite
support of the complaints by Applicant’s church and union?
e.
Did
the Commission fail to act by reason of fraud or perjured evidence in
dismissing the referenced complaints based on accepted misrepresentations by
the employer regarding its policies, practices and actions?
[43]
However,
based on the parties’ submissions, the Court finds that the following issues
are raised:
a.
Was
there a breach of procedural fairness in the decisions?
b.
Were
the Commission’s decisions not to deal with the Applicant’s complaints
reasonable?
STANDARD OF REVIEW
[44]
In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
372 N.R. 1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
(deference)
to be accorded with regard to a particular category of question”:
see also Canada (M.C.I.) v. Khosa, [2009] 1 S.C.R. 339, per Justice Binnie at paragraph 53.
[45]
The
standard of review of the Commission’s decision under section 41 of the Act not
to deal with a complaint is reasonableness: Bateman
v. Canada (Attorney
General), 2008 FC 393, per my colleague Justice Luc Martineau at paragraph
20. The questions of whether the Applicant’s first complaint was trivial, and
whether the Applicant’s second complaint could be more appropriately dealt with
through a procedure under another Act, are questions of mixed fact and law, and
are due considerable deference.
[46]
In
reviewing the Commission’s decision using a standard of reasonableness, the
Court will consider “the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir, above, at paragraph 47; Khosa, above,
at paragraph 59.
[47]
The
Commission’s decisions will be reviewed in terms of their procedural fairness
on a standard of correctness: Bateman, above, at paragraph 20.
ANALYSIS
Issue #1: Was there a
breach of procedural fairness in the decisions?
[48]
In
cases where the Commission adopts the conclusions of the Section 40/41 Report
and provides no reasons or only brief reasons, this Court has held that the
Section 40/41 Report can be treated as the Commission’s reasons for the
decision: Sketchley v. Canada (Attorney General), [2006] 3 F.C.R 392 (F.C.A.).
Thus, for the principles of procedural fairness to have been followed, the
Section 40/41 Reports must have been completed in a procedurally fair manner.
[49]
The
Section 40/41 Report will be procedurally fair if the investigation upon which
it is based is neutral and thorough: Slattery v. Canada (Human
Rights Commission), [1994] 2 F.C. 574 (T.D.). The parties must be
informed of the substance of the evidence obtained by the investigator which
will be put before the Commission, and must have an opportunity to respond to
that evidence and make relevant submissions: Deschênes v. Canada (Attorney
General), 2009 FC 1126 at paragraph 10; Lusina v. Bell Canada,
2005 FC 134 at paragraph 30.
[50]
The
Applicant submits that the Commission’s decisions not to deal with his complaints
lacked procedural fairness in two respects: first, because the Commission
limits the length of submissions, and he was therefore forced to cut part of a
letter of support from his priest; second, because the Commission did not
conduct an oral hearing. The Court finds that these arguments have no merit,
and the decisions were procedurally fair.
[51]
The
Commission followed the usual process in the Applicant’s complaints: the
investigator sought information from both parties and completed the Section
40/41 Report. That report was then provided to the parties and each party was
given the opportunity to make submissions. Each party was also given the
opportunity to review the other party’s submissions, and make additional
submissions. All of these materials were considered by the Commission before it
rendered its decision.
[52]
The
page limit on the first set of submissions thus did not deny the Applicant the
opportunity to present his case. In addition to those ten pages of submissions,
the Applicant was able to submit its position to the Commission investigator,
and to make an additional set of written submissions following the employer’s
submissions. Thus, the Applicant had ample opportunity to fully present his
case to the Commission.
[53]
Also,
the Commission did not decide not to deal with the complaints because it
doubted the sincerity of the Applicant’s religious beliefs. The Applicant made
his religious beliefs clear in all his submissions, and they appear to have
been accepted by the Commission. Therefore, the absence of the first page of
his priest’s letter of support could not have affected the Commission’s
decision.
[54]
The
lack of an oral hearing also does not constitute a breach of procedural
fairness. The content of procedural fairness depends upon the overall context
of the particular decision. In this case, there were no factors militating in
favour of an oral hearing, such as an issue of credibility: Singh et al. v.
Minister of Employment and Immigration, [1985] 1 S.C.R. 177. The parties
were well informed of the evidence upon which the decision was based, and given
the opportunity to respond to that evidence. Thus, there are no grounds for the
Court’s intervention on the basis of procedural fairness.
Issue #2: Were the
Commission’s decisions not to deal with the Applicant’s complaints reasonable?
First decision:
Complaint 20090598 - Religion
[55]
The
Commission decided, pursuant to paragraph 41(1)(d) of the Act, not to
deal with the first complaint because it was trivial. The Commission adopted
the conclusion of the investigator in the Section 40/41 Report, specifically
quoting the following conclusion:
It appears that the respondent has
offered several options that would reasonably accommodate the complainant.
While these options are not the complainant’s preferred accommodation, it would
appear that some of the options would assure him of privacy while changing
clothes.
[56]
The
Court finds that the Commission’s decision not to deal with the first complaint
was reasonable. The decision-making process and the outcome satisfied the
requirements of the Dunsmuir analysis.
[57]
Dunsmuir, above,
requires that the reasoning process be intelligible, transparent, and
adequately justified. In this case, there were no defects in the analysis. The
Section 40/41 Report set out the factors relevant to determining whether a
complaint is trivial – one of those factors is whether the respondent to the
complaint has already addressed the complainant’s concerns, or substantial and
comprehensive remedies have been provided by the respondent. The Section 40/41
Report concluded that several possible accommodations were offered to the
Applicant. The Applicant disputed whether some of the accommodations were
actually offered; however, the employer’s cross-disclosure submissions dated
January 26, 2010, catalogue the offered and implemented accommodations up to
that date. This evidence was before the Commission, and the Court cannot
re-weigh that evidence.
[58]
This
Court is not entitled to substitute its opinion for that of the Commission if
the Commission’s decisions were reasonably open to it based on the evidence.
The Court appreciates the importance of this matter to the Applicant in
relation to his religion as a Coptic Orthodox Christian. It was so important,
in fact, that the applicant’s priest from Montreal attended the
Court hearing. The Applicant referred to a number of emails not before the
Commission as to whether the concerns of the applicant would be accommodated
by, for example, delaying the time of inspections to 7 p.m., by installing
curtains on the shower stalls, by the posting of signs, etc. The Commission had
evidence before it from the employer that these changes were made and the Court
must conclude that there was evidence upon which the Commission could find that
the Applicant’s concerns had been accommodated. The Court therefore has no
basis upon which to intervene.
Second decision:
Complaint 20090982 – Retaliation
[59]
The
Commission decided, pursuant to paragraph 41(1)(b) of the Act, not to
deal with the second complaint at that time because “the complaint is one that
could more appropriately be dealt with initially according to a procedure
provided for under an Act of Parliament other than this Act.” The decision
noted that the Applicant could ask the Commission to reactivate the complaint
at the end of the other procedure.
[60]
The
Court finds that this decision was also reasonable. The Section 40/41 Report
reproduced the Applicant’s position letter, which stated that he was pursuing
the grievance adjudication process under the PSLRA for the termination of his
employment. The report noted that the PSLRB is empowered to award the same
remedies as the Commission. Thus, the report’s conclusion that the complaint
could more appropriately be dealt with initially under the PSLRA procedure was justified
by the analysis, and reasonably open to the investigator to conclude.
[61]
In
response to the report, the Applicant’s submissions pointed out that the
employer was challenging the jurisdiction of the PSLRB to hear the Applicant’s
grievances. However, as the employer’s further submissions stated, those
grievances had been referred to a hearing for June 7-11, 2010. At the
hearing, the Applicant acknowledged that the hearing of these grievances before
the PSLRB did occur. Thus, at the time of the Commission’s decision, the facts
giving rise to the complaint were going to be subject to adjudication under the
PSLRA. At the hearing, the Applicant stated that the hearing before the PSLRB
had occurred, and its decision is currently subject to a separate application
for judicial review.
[62]
Therefore,
the Court finds that the Commission’s decision was justified based on the
record, and reasonably open to it based on the facts and the law. There is,
therefore, no basis upon which to intervene.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review is dismissed.
“Michael A. Kelen”
Email this Content