Date: 20070307
Docket: T-726-05
Citation: 2007
FC 260
Ottawa, Ontario,
March 7, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
CAMECO
CORPORATION
Applicant
and
JAMES W.H. MAXWELL
Respondent
Let
the attached edited version of the transcript of my Reasons for Order delivered
orally from the bench at Saskatoon, Saskatchewan, on February 6, 2007, be filed to comply
with section 51 of the Federal Court Act.
“Carolyn
Layden-Stevenson”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-726-05
STYLE OF CAUSE: CAMECO
CORPORATION
v.
JAMES W.H. MAXWELL
PLACE OF
HEARING: Saskatoon, Saskatchewan
DATE OF
HEARING: February
6, 2007
TRANSCRIPT
OF REASONS
BY: Layden-Stevenson J.
DATED: March
7, 2007
APPEARANCES:
|
Ms. C.A. Sloan
|
FOR THE APPLICANT
|
|
No one contra
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Ms. C.A. Sloan
McKercher
Mckercher & Whitmore
Saskatoon, Saskatchewan
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
Page 1
Court File No. T-726-05
FEDERAL COURT
B-E-T-W-E-E-N:
CAMECO CORPORATION,
APPLICANT
- and-
JAMES W.H. MAXWELL,
RESPONDENT
****************************************************
EXCERPT OF THE
JUDICIAL REVIEW
Held at Saskatoon,
Saskatchewan on
Tuesday, February
6th, 2007
*****************************************************
Madam Justice Layden-Stevenson -
Presiding
APPEARANCES:
Ms. C.A. Sloan,
McKercher McKercher &
Whitmore
Saskatoon,
Saskatchewan COUNSEL FOR THE APPLICANT
No one contra,
Page 2
1 (Reconvened at 10:35 a.m.)
2 COURT
CLERK: The hearing is now resumed.
3 THE
COURT: Be seated please. I hope
4 you bear
with me while I cross-reference from
5 records
to notes to submissions. These are my
6 reasons
in the matter of Cameco Corporation
7 and
James W.H. Maxwell.
8 Cameco
Corporation, which I
9 will
refer to as Cameco, seeks judicial review
10 of a
decision of the Canadian Human Rights
11
Commission, which I will refer to as the
12
Commission.
13 The Commission decided to
14 deal with
the complaint of the Respondent,
15 James
W.H. Maxwell, notwithstanding that Mr.
16 Maxwell
had also launched a grievance under
17 the
provisions of a collective agreement. Mr.
18 Maxwell
did not file a Respondent's record,
19 although
he did appear at the hearing. He
20 explained
that he was operating under the
21 mistaken
assumption that it was the Commission
22 that
would be filing the record. Cameco took
23 no
objection to Mr. Maxwell's failure in this
24 respect.
25 In its written submission,
Page 3
1 Cameco
contends that the Commission failed to
2 observe
procedural fairness and based its
3 decision
on an erroneous finding of fact that
4 it made
in a perverse or capricious manner or
5 without
regard to the material before it. At
6 the
hearing, the allegation of breach of
7
procedural fairness was abandoned and Cameco's
8 argument
was to the effect that the Commission
9 ought to
have followed the recommendation of
10 its
screening officer. I am not persuaded
11 that the
Commission erred as alleged, nor am I
12 persuaded
that the Commission's decision was
13
unreasonable. Consequently, the application
14 will be
dismissed.
15 The facts giving rise to
16 this
matter are as follows. In November of
17 2004, Mr.
Maxwell filed a complaint with the
18
Commission regarding his employer, Cameco. At
19 the time,
he had been a Cameco industrial
20 mechanic
contract employee since 2000.
21 Although
consistently employed on a temporary
22 basis, he
had actively searched out and
23 applied
for a number of permanent positions
24 with Cameco.
Each time, he was passed over
25 allegedly
without explanation. Eventually he
Page 4
1 decided
to check his file in Cameco's human
2 resources
department. There, he discovered a
3
foreman's employee evaluation form dated two
4 years
earlier which stated, and I'm quoting:
5
"As a temporary employee, Jim's
6
contribution helped. However, he
7
missed his final two contracted weeks
8
due to some pretty serious health
9
problems. I doubt he will be fit for
10
maintenance in an industrial work
11
environment in the future. Not
12
recommended for permanent work force."
13
Apparently, upon request, this form would have
14 been
passed on to potential employers. Mr.
15 Maxwell
took strong exception to the form's
16
contents. He felt that the foreman was not
17 qualified
to opine on his medical condition.
18 His most
recent contract position had been
19 completed
without him having taken any sick
20 leave.
Nonetheless, new permanent positions
21 were
awarded to younger men whose
22
qualifications and experience were ostensibly
23 inferior
to those of Mr. Maxwell. He believed
24 that he
was a victim of discrimination on the
25 basis of
his age, 57, and health.
Page 5
1 By correspondence dated
2 December
20th, 2004, the Commission's
3
screening officer advised Mr. Maxwell that she
4 would
recommend to the Commission that it not
5 handle
the complaint. The letter in part
6 stated:
7
"We understand that there is a
8
grievance process available to the
9
Complainant and that the process will
10
deal with the allegations raised in
11
this complaint. Section 41(1)(a) of
12
the Canadian Human Rights Act states
13
that the Commission may refuse to deal
14
with the complaint where 'the alleged
15
victim of the discriminatory practice
16 to
which the complaint relates ought
17 to
exhaust grievance or review
18 procedures
otherwise reasonably
19
available'."
20
Enclosures to the correspondence included
21 copies of
Mr. Maxwell's complaint form
22 detailing
the basis of the complaint, the
23 complaint
summary, and the Commission's
24
correspondence to Cameco which mirrored that
25
forwarded to Mr. Maxwell. The parties were
Page
6
1 informed
that the Commission would determine
2 whether
the recommendation would be accepted.
3 Both
parties were invited to make submissions
4 to the
Commission regarding the recommendation.
5 In its submissions, Cameco
6 affirmed
its support for the recommendation.
7 Mr.
Maxwell, for his part, advised that a
8
grievance had been filed. He enclosed a
9 status
report from his union representative
10 which
stated, and I'm quoting:
11
"This is to inform you that we as a
12
union have taken all steps that we can
13 to
try to solve Jim Maxwell's
14
grievance. The company, Cameco, still
15 denies
the fact that Jim has a
16
grievance at all. They have stated
17
that they do not have to deal with
18
Human Rights in any form. I have
19 asked
them to give us a reason why
20
they will not award Jim a full-time
21
position. They then stated that they
22 do
not have to give reasons for their
23
actions."
24 Mr.
Maxwell's submissions were disclosed to
25 Cameco
and it was provided the opportunity to
Page 7
1 respond.
In doing so, Cameco voiced its
2 concern
that the company had not yet received
3
confirmation from the union as to whether it
4 wanted
to proceed to arbitration, the final
5 stage of
the grievance process. It enclosed a
6 copy of
its letter of August 12th, 2004 to the
7 union
representative which stated as follows:
8
9 "The
collective agreement permits the
10
use of temporary employees as per
11
article 9.10. Mr. Maxwell's term was
12
ended because his services were no
13
longer required at Key Lake.
14
Temporary employee means that their
15
term is finite. The company is under
16 no
obligation to employ them longer
17
than necessary. This is explained to
18
them very clearly in their initial
19
letter of offer.
20 In our previous discussions on
21
this subject, you have been unable to
22
state which of the Human Rights
23
prohibited grounds that the company
24
may have violated. You have insisted
25
that the CBA [collective bargaining
Page 8
1
agreement] itself violates Human
2
Rights legislation as it does not
3
recognize the seniority of temporary
4
employees. We suggest that this be
5
discussed at the bargaining table or
6 in
a union management forum.
7 You have failed to provide the
8
company with any evidence that would
9
suggest we have violated the
10 collective
bargaining agreement or any
11
form of Human Rights legislation.
12
Therefore, this grievance at stage 3
13 is
denied."
14 The Commission
decided to deal with the
15
complaint. It stated:
16
"The submissions from the Respondent
17
[Cameco] and the Complainant [Maxwell]
18 have
led the Commission to conclude
19
that the grievance procedure will not
20
address the issue of discrimination on
21
the grounds of age and disability."
22 The
pertinent provision of the Canadian Human
23 Rights
Act is paragraph 41(1)(a) which
24
provides:
25
"(1) subject to section 40, the
Page
9
1
Commission shall deal with any
2
complaint filed with it unless in
3
respect of that complaint it appears
4 to
the Commission that
5
(a) the alleged victim of the
6
discriminatory practice to which the
7
complaint relates ought to exhaust
8
grievance or review procedures
9
otherwise reasonably available."
10 The
jurisprudence of the Federal Court of
11 Appeal
and the Federal Court establishes that
12 the
applicable standard of review regarding
13 the
Commission's determination under section
14 41 of
the CHRA is that of reasonableness.
15 There is
no privative clause or statutory
16 right of
appeal, although judicial review is
17
available. It is generally recognized that
18 the
Commission has a level of expertise in
19 these
matters. The legislation is
20
quasi-constitutional and addresses equality.
21 The
Commission is granted considerable latitude
22 when
performing its screening function. The
23 particular
question entails two questions,
24 whether
there is a grievance or review
25
procedure reasonably available, a question of
Page 10
1 mixed
law and fact, and whether the
2
Complainant ought to exhaust the procedure, a
3 question
of opinion or discretion.
4 See Gardner v. Canada AG
5 (2005),
339 N.R. 91 (F.C.A.); Bell Canada v.
6
Communication, Energy and Paperworkers Union
7 of
Canada [1999] 1 F.C. 113 (F.C.A.); Latif v.
8 Canadian
Human Rights Commission and R.G.L.
9
Fairweather, [1980] 1 F.C. 687 (F.C.A.);
10 Canada
Post v. Wighton (2006), 147 A.C.W.S.
11 (3d)
659, 2006 FC 275; Johnson v. Maritime
12
Telegraph and Telephone Company 2004 FC 951,
13 F.C.J.
No. 1171; MacLean v. Marine Atlantic
14 Inc.,
[2003] F.C.J. No. 1854 (F.C.).
15 As I understand the position
16 taken by
Cameco at the hearing, it claims that
17 the
Commission ought not to have decided to
18 deal
with the matter because the grievance
19 process
had not been completed. It asserts
20 that the
submissions before the Commission
21
indicated that the complaint was actively
22 being
dealt with under the grievance
23
procedures contained in the collective
24
agreement and that the Commission erred when it
25
concluded that the grievance process did not
Page 11
1 include
reference to the Human Rights
2
legislation. At the arbitration stage, the
3
arbitrator would have to give effect to the
4 Human
Rights legislation. In my view,
5 Cameco's
submissions disclose nothing other
6 than
disagreement with the Commission's
7
decision.
8 As stated previously, in
9 view of
the Rule 318 certification of the
10 Canadian
Human Rights Commission regarding the
11
materials produced to Cameco which,
12
"constitute all the material that was before
13 the CHRC
when it made its decision" in regard
14 to Mr.
Maxwell's complaint, Cameco abandoned
15 its
position that the Commission considered
16 evidence
not disclosed to Cameco. In sum,
17 Cameco
is dissatisfied because its
18
interpretation of the documents lead it to
19 conclude
that the Human Rights complaint was
20 subsumed
in the grievance procedure. The
21
Commission viewed it differently. The record
22 before
the Commission contained both the status
23 report
of the union representative and the
24 third level
grievance determination of the
25 general
superintendent of Cameco. I have
Page 12
1 referred
to the contents of those documents
2 earlier.
Suffice it to say, that based on
3 those
documents, it was not unreasonable for
4 the
Commission to conclude that "the grievance
5
procedure will not address the issue of
6
discrimination on the grounds of age and
7
disability."
8 Cameco was provided
9
disclosure and cross disclosure as well as an
10 opportunity
to make responsive submissions at
11 each
stage. Indeed, Cameco had the final say
12 before
the Commission rendered its decision.
13 There
was no breach of procedural fairness
14 here.
15 Cameco appears to have lost
16 sight of
the fact that the decision under
17 section
41 is made at a very early stage. The
18
Commission's determination to deal with the
19
complaint does not constitute a finding of
20
discrimination. Mr. Justice Rothstein's
21 comments
in Canada Post Corp v. Canada (CHRC)
22 (1997),
130 F.T.R. 241 (F.C.T.D.), aff'd
23 (1999),
245 N.R. 397 (F.C.A.) leave to appeal
24
dismissed, [1999] SCCA No. 323, at paragraph 3
25 are
opposite :
Page 13
1
"A decision by the Commission under
2
section 41 is normally made at an
3
early stage before any investigation
4 is
carried out. A lengthy analysis of
5
the complaint at this stage is, at
6
least to some extent, duplicative of
7
the investigation yet to be carried
8
out. A time consuming analysis will,
9
where the Commission decides to deal
10
with the complaint, delay the
11 processing
of the complaint. If it is
12
not plain and obvious to the Commission
13
that the complaint falls under one of
14
the grounds for not dealing with it
15
under section 41, the Commission
16
should, with dispatch, proceed to deal
17
with it."
18 Cameco
did not argue or suggest that the
19
arbitrator possessed exclusive jurisdiction in
20 relation
to this dispute. Rather, it stated
21 that the
grievance process is the preferred
22 avenue
because it is better and quicker, and there
23 is no
need to put everyone through it twice.
24 The Canadian Human Rights
25 Act,
paragraph 41(1)(a), indicates that
Page
14
1
Parliament contemplated circumstances wherein
2 overlap
between grievance procedures and the
3
procedures in the Canadian Human Rights Act
4 for
dealing with complaints of discriminatory
5
practices could occur. In the event of such
6
conflict, it is for the Commission to determine
7 whether
the grievance procedure ought to be
8
exhausted before the Commission investigates, if
9 it
decides to investigate. That is precisely
10 what the
Commission did. Its decision is not
11 unreasonable.
12 For the foregoing reasons,
13 the
application for judicial review will be
14
dismissed and an order will so provide.
15 Mr.
Maxwell, because you are
16 a
self-represented litigant, you are not
17 entitled
to costs that would cover your legal
18 fees
because you haven't paid a lawyer. In
19 the
normal course, had you filed a Respondent's
20 record,
you would have been entitled to the
21
disbursements associated with the filing of
22 that
record, but you have not filed a
23
Respondent's record, so in those circumstances
24 there is
no way that I can award you costs of
25 this
application, notwithstanding that you
Page
15
1 have
been successful.
2 MR.
MAXWELL: Madam Justice, I appreciate
3 that, I
understand that situation.
4 THE
COURT: All right. So no costs will
5 be
awarded.
6 MS.
SLOAN: Thank you, Madam Justice.
7 THE
COURT: Thank you very much.
8 COURT
CLERK: This hearing is now
9
concluded.
10
(Adjourned at 10:55 a.m.)
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Page 16
1 OFFICIAL QUEEN'S
BENCH COURT REPORTER'S CERTIFICATE:
2 I, Karen Hinz,
CSR, Official Queen's Bench Court
3 Reporter for the
Province of Saskatchewan, hereby
4 certify that the
foregoing pages contain a true and
5 correct
transcription of my shorthand notes taken
6 herein to the
best of my knowledge, skill, and
7 ability.
8
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__________________________, CSR
13
Karen Hinz, CSR
14
Official Queen's Bench Court Reporter
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