Docket: T-1803-09
Citation: 2011
FC 86
Toronto, Ontario, January 25, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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RACHEL EXETER
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Ms. Rachel
Exeter (the “Applicant”) seeks judicial review of a decision made by the
Canadian Human Rights Commission (the “Commission” or “CHRC”) dated October 1,
2009. In that decision, made pursuant to paragraph 41(1)(d) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”), the Commission denied
the Applicant’s request to reactivate her complaint and refer it to the
Canadian Human Rights Tribunal.
[2]
The
Applicant had been employed with Statistics Canada, here represented by the
Attorney General of Canada (the “Respondent”) for a number of years. She had
filed a complaint, number 20060542, alleging discrimination in the workplace on
the basis of race, colour and disability. She alleged failure to accommodate
for various physical ailments. She alleged harassment, interference,
intimidation, retaliation and restrictions concerning her Workers’ Compensation
claim. The timeframe addressed in her complaint is April 2003 to April
2007. Her complaint makes note of various grievances submitted in connection
with workplace activities, alleging racism on the part of her supervisors. She
stated that, as of the time of filing the complaint before the Commission, she
had exhausted the internal grievance process and characterized her treatment by
the employer as “psychological, mental, physical and emotional harassment”.
[3]
On
February 11, 2009, the Applicant signed a Memorandum of Agreement with her
employer, Statistics Canada. It was signed as a confidential agreement and
remained confidential when submitted to the Commission. However, once the
Applicant brought this application for judicial review and put into issue the
matters in front of the Commission, that confidentiality was waived.
[4]
The
Commission’s Record was filed as part of this application. A Section 40/41
Report is part of the Commission’s Record. That Report referred to the
agreement, and attached the agreement as Appendix “A”. The parties did not make
a request to keep the Commission’s record confidential.
[5]
The Memorandum
of Agreement purported to settle all grievances and complaints filed by the
Applicant concerning her employer, including grievances before the Public
Service Labour Relations Board and complaints before the Commission and the
Public Service Staffing Tribunal. The Memorandum of Agreement also pertained,
in paragraph 3, to “any other grievances, complaints or claims the grievor has
which, known or unknown to the Parties, shall be identified collectively herein
as the ‘grievances’”.
[6]
The Memorandum
of Agreement provided that subject to fulfillment of the terms of the
agreement, all the grievances and complaints of the Applicant “are hereby
withdrawn”. A letter of termination dated September 4, 2007, on the Applicant’s
file was to be replaced with a resignation letter signed by the Applicant. The
employer undertook to provide a neutral letter of reference to the grievor and
to remove all letters of reprimand, suspension, and performance appraisals from
2003 forward from the Applicant’s personnel file. The agreement also provided
that the employer would pay to the Applicant the sum of $128,971 calculated as
follows:
i.
27 days of
suspension, for a total amount of $6,135.00
ii.
1.5 days
of leave without pay, for a total amount of $335.00
iii.
A lump sum
payment equivalent to 15 months of salary, for a total amount of $72,500.00
iv.
a one time
compassionate nature payment of $20,000.00
v.
a one time
training allowance of a total amount of $10,000.00
vi.
payment of
reasonable legal fees upon appropriate receipt, for a maximum amount of
$20,000.00.
[7]
Clauses
16, 19 and 21 address the finality of the agreement insofar as it resolves all
outstanding disputes between the Applicant and her former employer, Statistics
Canada. These clauses provide as follows:
The Grievor forever releases and
discharges the Employer from all proceedings of whatever kind or nature arising
from; or in any way related to the allegations and grievances referred to in
paragraphs 1 and 2, or her employment relationship with the Employer, including
those facts or events not known or anticipated at the time of signing this
agreement.
…
The Grievor agrees not to commence any
further administrative or judicial procedure in any Court or any administrative
tribunal of any jurisdiction in Canada in relation to any matter connected to
or related to in any way to her employment with the Employer with the exception
of a Worker’s Compensation Complaint as contemplated under the Worker’s
Compensation Legislation, subject to paragraphs 16, 17 and 18. This includes
but is not limited to, any form of grievance or complaint before the Public
Service Staffing Tribunal, The Public Service Labour Relations Board and the
Canadian Human Rights Commission.
…
The above terms and conditions constitute
a full, complete and final settlement of the grievances.
[8]
Clause 20
is an acknowledgment that the Applicant had been represented by legal counsel
throughout the process leading to the signing of the agreement. Clause 20
provides as follows:
The Grievor understands the irrevocability
of this agreement and her resignation and has had legal representation
throughout the settlement process leading to the signing of this Agreement.
[9]
A Section
40/41 Report was prepared dated July 29, 2009. This Report relates to complaint
number 20060542. The Report states the issue as follows:
The issue for the Commission to decide is
whether it should refuse to deal with the Complaint under section 41(1)(d) of
the Act.
[10]
The
Section 40/41 Report was made available to both the Applicant and the employer.
Each were given the opportunity to comment and did so. Both parties were then
given an opportunity to respond to one another’s submissions, and both did so.
[11]
Paragraphs
31 to 39 of the Section 40/41 Report are entitled “Conclusions”; however, in my
opinion, these are more appropriately recognized as being in the nature of recommendations.
The Report did not contain any firm recommendations to the
Commission. Paragraph 39, the concluding paragraph, sets out the options
available to the Commission, as follows:
The Commission can decide either:
a)
to deal
with the complaint under section 41(1) of the Canadian Human Rights Act,
or
b)
not to
deal with the complaint under section 41(1)(d) of the Canadian Human Rights
Act, as the allegations of discrimination in the complaint were addressed
through a review procedure otherwise reasonably available to the complainant,
resulting in a full and final settlement.
[12]
In its
decision, the Commission decided not to reactivate the complaint. The Record of
Decision shows that the Commission made its decision on the basis of paragraph
41(1)(d) of the Act, “because the complaint is trivial, frivolous, vexatious or
made in bad faith”. However, there is a cross-reference from this initial
paragraph to further reasons set out at pages 2 and 3 of the Record of
Decision. Having regard to pages 2 and 3, it appears that the Commission
decided not to reactivate the complaint on the basis that the Applicant had
entered into a Memorandum of Agreement that dealt with this complaint and other
matters.
[13]
The
Commission addressed the Applicant’s arguments that she had signed the
memorandum under duress and found that there was no evidence in support of this
argument. The Commission made particular note of the fact that the Applicant had
been represented by legal counsel through the negotiations leading up to the
signing of the agreement and at the time the agreement was signed, and further
that the Applicant herself had signed the Memorandum of Agreement.
[14]
In dealing
with the Applicant’s allegations that the terms of the Memorandum of Agreement
had not been totally fulfilled, the Commission adopted the reasoning set out in
the investigation report as follows:
The fulfillment of a “Memorandum of
Settlement” is not, however, a human rights issue. It is an enforcement issue,
and one in which the proper recourse would be through the Federal Court.
[15]
Three
issues are raised in this application for judicial review:
a. What is the applicable
standard of review?
b. Did the Commission commit a
reviewable error by refusing to reactivate the Applicant’s complaint?
c. Did the Commission breach
procedural fairness by failing to interview two individuals, as suggested by
the Applicant?
[16]
In Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 90, the Supreme Court of Canada said that
there are only two standards of review by which decisions of statutory
decision-makers can be reviewed, that is correctness for questions of law and
procedural fairness and reasonableness for findings of fact and questions of
mixed fact and law. At paragraph 53, the Court in Dunsmuir held that:
Where the question is one of fact,
discretion or policy, deference will usually apply automatically (Mossop,
at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We
believe that the same standard must apply to the review of questions where the
legal and factual issues are intertwined with and cannot be readily separated.
[17]
The
Supreme Court of Canada held in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339, at paragraph 43, that:
Judicial intervention is also authorized
where a federal board, commission or other tribunal
(b) failed to observe a principle of
natural justice, procedural fairness or other procedure that it was required by
law to observe;
No standard of review is specified. On
the other hand, Dunsmuir says that procedural issues (subject to
competent legislative override) are to be determined by a court on the basis of
a correctness standard of review.
[18]
As well,
the Supreme Court in Dunsmuir at paragraph 57 noted that when the
jurisprudence has already determined the standard of review for a particular
decision-maker, an exhaustive analysis will not be required to establish the
appropriate standard of review:
An exhaustive review is not required in
every case to determine the proper standard of review. Here again, existing
jurisprudence may be helpful in identifying some of the questions that
generally fall to be determined according to the correctness standard (Cartaway
Resources Corp. (Re), 2004 SCC 26 (CanLII), [2004] 1 S.C.R. 672, 2004 SCC
26). This simply means that the analysis required is already deemed to have
been performed and need not be repeated.
[19]
In Morin
v. Canada (Attorney General) (2007), 332 F.T.R. 136, the Federal
Court found that reasonableness is the appropriate standard when reviewing
a decision of the Commission not to deal with a complaint pursuant to
subsection 41(1) of the Act. The substance of the Commission’s decision
is reviewable on the standard of reasonableness.
[20]
The
standard of reasonableness applies to both the decision-making process and the
result; see Dunsmuir, paragraph 47, which reads as follows:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[21]
The
Commission’s reasons are relatively brief, and adopt the analysis of the
Section 40/41 Report. In these circumstances, it is appropriate to consider the
Section 40/41 Report as part of the Commission’s reasons; see Sketchley v.
Canada (Attorney General), [2006] 3 F.C.R. 392 at para. 37.
[22]
Having
regard to the contents of the Section 40/41 Report, the investigator reviewed
the history of the Applicant’s various complaints and grievances before stating
her conclusions. In her conclusions, the investigator referred to paragraph
41(1)(d) of the Act that grants the Commission a discretion not to deal with a
complaint where the issues raised in that complaint have been otherwise dealt
with, through another process, including settlements and compromises. At the
same time, the investigator noted that the Commission retained a discretion to
deal with a complaint in spite of the fact that a final release has been signed
“if it appears that the human rights issues raised in the complaint have not
been addressed in the settlement”.
[23]
The
investigator’s report shows the investigator was alive to the relevant
jurisprudence, that is the decisions in Boudreault v. Canada (Attorney General) (1995), 99 F.T.R. 293 and Canada
Post Corporation v. Barrette, [2000] 4 F.C. 145 (F.C.A.).
[24]
In Boudreault,
the Federal Court decided that the Commission cannot refuse to deal with a
complaint merely on the ground that it has been already dealt with by another
process. The Court says that the Commission must review the evidence itself and
make its own decision whether or not to proceed. At the same, however, the
Commission can use the evidence gathered through the other process including
documents and the evidence of witnesses.
[25]
In Barrette,
the Federal Court of Appeal ruled that a decision from another forum does not
create an estoppel. At para. 28, the Court said the following:
…
the Commission must turn its mind to the
decision of the [other forum’s decision maker], not to determine whether it is
binding on the Commission, but to examine whether, in light of that decision
and of the findings of fact and credibility made by the arbitrator, the
complaint may not [sic] be such as to attract the application of para. 41(1)(d).
[26]
The
Commission had before it material indicating that the Applicant had made
related grievances to the Public Service Labour Relations Board and that these
grievances had been dismissed. It had before it material indicating that a
fact-finding exercise was undertaken which concluded that the Applicant’s
complaints were not substantiated.
[27]
The
Section 40/41 Report included a copy of the Memorandum of Agreement as Appendix
A. This document was before the Commission. The document provided financial
compensation to the Applicant. The agreement also included the Applicant’s
undertaking to refrain from pursuing her human rights complaint. It appears
from the review of the circumstances of all of the Applicant’s complaints that
there was a human rights dimension to some of her grievances, for example her
complaints relating to a failure to accommodate her disability, her complaint
concerning differential treatment and her allegations concerning her disability
arising from her disability of allergies.
[28]
The Memorandum
of Agreement provided substantial financial compensation to the Applicant,
including a “one time compassionate nature payment of $20,000”.
[29]
The
Section 40/41 Report gives a thorough account of these considerations. While
the Applicant attempted to attack the credibility and fairness of the
fact-finding exercise and the agreement, she provided no evidence in her
submissions before the Commission to support these claims. On the other hand,
the Respondent provided considered explanations for each of the Applicant’s
concerns about the conduct of the fact-finding exercise.
[30]
It was
open to the Commission to find that the Applicant’s submissions lacked credible
evidence in support. In these circumstances, I am satisfied that the
Commission’s decision that the Applicant’s claim fell within the criteria of
paragraph 41(1)(d) of the Act, was reasonable and there is no basis for
judicial intervention.
[31]
The
Applicant also challenges the thoroughness of the underlying investigation. She
submits that the Commission failed to seek information from material witnesses
whom she identified. She also argues that the Commission should have notified
her that there may be an issue as to the credibility of her claims and failing
to do so also constituted a breach of procedural fairness.
[32]
It is
trite law to say that the Commission is the master of its own procedure. In Busch
v. Canada (Attorney General) (2008), 71 C.C.E.L. (3d) 178
the Court said the following at para.15:
… not all persons on a complainant's list
of possible witnesses must be interviewed; an investigator has considerable
discretion in deciding how to conduct an investigation. However, where a
witness may have information that could address a significant finding of the
Investigator and where no one else is interviewed that could resolve a
controversial and important fact, it seems to me that failure to interview that
person may result in an investigation that is not complete [citations omitted].
[33]
It must
be kept in mind that the Section 40/41 Report in this case is a report that was
prepared following the execution of the Memorandum of Agreement by the
Applicant and her former employer, Statistics Canada. At the initial
investigation level, the Commission was focused on whether to reactivate the
Applicant’s complaint, in light of the surrounding circumstances, including the
execution of this Memorandum of Agreement. In Tinney v. Canada (Attorney General), 2010 FC 605, the Court
summarized the standard of procedural fairness relative to interviewing
proposed witnesses at para. 28 as follows:
The jurisprudence is clear: There is no
requirement that a human rights investigator interview every witness proposed
or identified by the parties. However, it is equally clear that an interview is
required where a reasonable person would expect evidence useful to the
investigator in his determination would be gained as a result of the interview
or where there is a witness that may have information that could address a
significant fact and where no one else has been interviewed that could resolve
that important and controversial fact [citations omitted].
[34]
Having
regard to this standard, I find that a reasonable person would not expect the
Applicant’s purported witnesses to be useful sources to substantiate her claim
of duress or that they could have information that would help resolve this
issue. I am satisfied that no breach of procedural fairness occurred in this
regard.
[35]
The
Applicant is now alleging duress at the time she signed the Memorandum of
Agreement. She has led no independent evidence in that regard. She is virtually
disowning the role of her legal counsel who assisted during the negotiations
and at the signing of the agreement.
[36]
With
respect to the Applicant’s submissions that the Commission ought to have made
her aware that it may not accept her submissions concerning the integrity of
the fact-finding exercise or duress in signing the agreement, the exchange of
submissions and cross-disclosure submissions makes it clear that these matters
were in dispute. The Applicant had the opportunity to address these issues in
her submissions.
[37]
In
conclusion, I am satisfied that the Commission reached a reasonable decision
and that no breach of procedural fairness occurred. The application for
judicial review is dismissed with costs to the Respondent.
ORDER
THIS COURT ORDERS that the application is dismissed
with costs to the Respondent. If the parties cannot agree on costs then brief
submissions not exceeding five (5) pages may be made, the Respondent to serve
and file his submissions on or before February 7, 2011 and the Applicant to
serve and file her submissions on or before February 21, 2011.
“E.
Heneghan”
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