Date: 20070914
Docket: T-1770-06
Citation:
2007 FC 919
Montréal, Quebec, the
14th day of September 2007
PRESENT:
THE HONOURABLE MR. JUSTICE MAURICE E. LAGACÉ
BETWEEN:
CHARLOTTE RHÉAUME
Applicant
and
THE ATTORNEY GENERAL OF CANADA
(Canadian Human Rights Commission)
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application
for judicial review submitted by Charlotte Rhéaume under
section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F‑7, of
the decision by the Canadian Human Rights Commission (the Commission) dated
September 1, 2006, in which the Commission declined to deal with the
applicant’s complaint.
Facts
[2]
The
applicant began her career in the Canadian public service on February 19, 1985,
at Immigration Canada and has worked for the former Department of National
Revenue, now the Canada Revenue Agency (the Agency) since May 25, 1987.
[3]
In 1999, the Agency
started reorganizing the GST/HST Technical Interpretation Service, the
applicant’s place of employment. This reorganization transferred the services
provided by the Technical Interpretation Service in Quebec to the Border Issues
Unit at Headquarters in Ottawa, as well as to the Quebec Ministère du Revenu.
[4]
On April 4, 2002, the
applicant learned of the elimination of her position and her transfer to an
equivalent position within the Agency. She challenged this decision, which she
considered to be discriminatory, and, on January 6, 2003, she filed a complaint
with the Commission.
[5]
On January
10, 2003, a Commission officer informed the applicant in writing that the
Commission could not assist her because the situation described did not come
under one of the prohibited grounds of discrimination set out in the Canadian
Human Rights Act, R.S.C. 1985, c. H‑6 (the Act). In response to
this letter, the applicant wrote again to the Commission in order to further
explain her complaint.
[6]
On January
17, 2003, a second Commission officer informed the applicant in writing that,
in his opinion, even with the additional information, the file that she had submitted
still did not contain the elements necessary to constitute a complaint under
the Act. In the same breath, the officer added, [translation] “Lastly, it is important to note that it is your
decision whether or not to file a complaint with the Commission”.
[8]
On June
23, 2006, a Commission investigator submitted her report to the parties and
recommended that the Commission decline to deal with the applicant’s complaint
for the reasons that the facts alleged did not constitute a discriminatory
practice under the Act and that the complaint was based on acts that had
occurred more than a year before the filing of the complaint.
[9]
On August
10, 2006, the file was submitted to the Commission for a decision and, on
September 1, 2006, the Secretary of the Commission informed the applicant
in writing that the Commission had decided not to deal with her complaint for
the reasons that, first, the facts alleged could not constitute a
discriminatory practice under the Act and, second, the complaint was based on
acts that had occurred more than a year before the filing of the complaint.
[10]
The
applicant is now challenging the Commission’s decision.
Issues
[11]
The
applicant submits a number of somewhat repetitive issues. The Court prefers the
respondent’s more precise statement of the issues:
1.
Did the Commission err in declining to deal with the applicant’s complaint
because [translation] “the facts
as alleged could not constitute a discriminatory practice”, pursuant to
paragraph 41(1)(c) of the Act?
2. Did the
Commission err in declining to deal with the applicant’s complaint because [translation] “the acts that it was
based on had occurred more than one year before the complaint was filed”,
pursuant to paragraph 41(1)(e) of the Act?
3.
Did the Commission breach the principles of natural justice or procedural
fairness in its review of the applicant’s complaint?
Reasons for judgment in accordance with
the facts and the law
[12]
In its
decision, the Commission cited the following two reasons under section 41 of
the Act for declining to deal with the applicant’s claim:
(1) the facts alleged could
not constitute a discriminatory practice, and
(2) the complaint was based on
acts that had occurred more than a year before the complaint was filed.
For her application for judicial review to be allowed, the
applicant must satisfy the Court on both components of the decision at issue.
The Canadian Human Rights Act
[13]
The
Commission’s decision was made in accordance with paragraphs 41(1)(c)
and (e) of the Act, which state the following:
|
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;
|
|
…
(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.
|
[…]
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.
|
Issue 1
Did the
Commission err in declining to deal with the applicant’s complaint because [translation] “the facts as alleged
could not constitute a discriminatory practice”, pursuant to paragraph 41(1)(c)
of the Act?
[14]
The
applicant complained of being treated differently in her employment because of
her sex. She claims that she and a male co‑worker filed comparable
grievances regarding the same work situation. She claims that the Agency
treated the matter differently and more favourably for her co‑worker,
which is in itself discriminatory. The fact that her union refused to represent
her on the same basis also constitutes a discriminatory practice against her.
[15]
The
Commission’s decision is based on the investigation report of June 23, 2006, which
stated that the applicant’s only evidence of discrimination was the agreement
between a co‑worker and the Agency reached through mediation.
Consequently, without an apparent linkage between the ground of discrimination
and the treatment received by the applicant, the complaint is beyond the
jurisdiction of the Commission.
[17]
As
for the fact that a male co‑worker was able to reach an agreement with
the employer, the Commission found that there was not sufficient evidence
available to support the applicant’s discrimination complaint.
[18]
Before
this Court, the applicant has reiterated the same argument and has not identified
a single error made by the Commission in its analysis nor any evidence that it
failed to consider. Therefore, the Court does not see how the Commission erred
in declining to deal with a discrimination complaint that was not supported by
the evidence submitted.
[19]
The
Court notes that the applicant and her male co‑worker both filed grievances
before both opting for mediation. The co‑worker, for his part, chose to
compromise in the mediation in order to reach an agreement that was
satisfactory to him and the Agency, which she, no doubt, should also have done.
[20]
The
fact that no agreement was reached between the Agency and the applicant during
mediation but that one was reached by the co‑worker does not in itself
prove discrimination against the applicant. On the contrary, all this proves is
that the applicant and the Agency were not in agreement because, as the
applicant admitted, she considered the Agency’s offers to be unreasonable.
[21]
However,
we note that the applicant had her chance in mediation just like her male co‑worker.
Only the results of the mediation differ. The success of the mediation for one
and the failure of it for the other does not on its own constitute
discrimination; there needs to be more.
[22]
The
Federal Court of Appeal, in Ramlall v. Canada (Attorney General), 2002
FCA 494, recognized that under paragraph 41(1)(c) of the Act, the
Commission has the power to decline to deal with a complaint when the evidence
in the file does not support the allegations of discrimination, as in this
case.
[23]
Considering
the evidence in the file, the Court finds that the Commission’s decision not to
deal with the complaint was warranted.
Issue 2
Did the Commission err in
declining to deal with the applicant’s complaint because [translation] “the acts that it was
based on had occurred more than one year before the complaint was filed”,
pursuant to paragraph 41(1)(e) of the Act?
[24]
The
applicant maintains that her complaint to the Commission was filed within the
time prescribed by the Act. She stresses that the discriminatory practice,
namely, eliminating her position on April 4, 2002, and the withdrawal of the
grievance by the union on October 8, 2002, preceded the filing of her
complaint, on January 6, 2003, by less than a year.
[25]
She
adds that the Commission’s decision did not show what facts were referred to to
find that the acts had occurred more than one year before the complaint had
been filed. Therefore, the Commission was unaware that the complaint concerned
two distinct bodies and was based on distinct acts.
[26]
When the
Commission adopts the recommendations of an investigator, as in this case,
without adding anything further, the investigator’s report is presumed to
constitute the Commission’s reasons. See Ouellet v. Canada (Attorney
General), 2006 FC 1541, at paragraph 27. Therefore, it is in the
investigation report adopted by the Commission that the applicant will find the
explanations to which she is entitled.
[27]
The
Court does not see how the Commission incorrectly exercised its discretionary
power under paragraph 41(1)(e) of the Act, nor does it see how it
breached the principles of natural justice or procedural fairness. This
decision is not based on inappropriate reasons or reasons contrary to the
purpose of the Act and, therefore, must be respected.
[28]
The
applicant claims to have filed a complaint on January 6, 2003, but, unfortunately
for her, the correspondence does not support this argument. On
January 10, 2003, a Commission intake officer informed her that the
Commission could not accept the complaint for the reason that it was not based
on any of the prohibited grounds of discrimination set out in the Act. Despite
subsequent communication, a second intake officer gave the applicant the same
answer.
[29]
This
same officer took the opportunity to clearly inform the applicant that despite
the Commission’s conclusion, the applicant could still file a complaint with
the Commission: [translation] “Lastly, it is important
to note that it is your decision whether or not to file a complaint with the
Commission”. The
applicant did not make this decision, and, contrary to her claim, her complaint
was never suspended pending an internal procedure.
[30]
Under
paragraph 41(1)(e)
of the Act, a complaint cannot be accepted if it is filed after the time limit
of one year has passed since the last of the acts on which the complaint is
based has occurred. However, the Act gives discretionary power to the
Commission to accept a complaint filed outside this time limit.
[31]
The
Commission and the applicant corresponded three times with regard to the
complaint. The first was on January 6, 2003, to inform the Commission that the
applicant wanted to file a complaint against the Canada Revenue Agency and against
her union. The second was on January 13, 2003, at which time the applicant
provided additional information. She clearly referred to the fact that her co‑worker
had reached an agreement with the Agency following mediation, but, at that
time, she made no allegation of discrimination on the basis of sex or anything
else. The Commission refused to accept the complaint in responses dated January
10 and January 17.
[32]
It
was not until April 27, 2005, that the applicant informed the Commission for a
second time of her intention to file a complaint against the Agency and the
union. She added that she had suffered discrimination on the basis of her sex,
since a male co‑worker had obtained an agreement through mediation.
[33]
The
only issue to resolve is whether the earlier correspondence from the applicant
constitutes a complaint under the Act. It should be noted that a person can
file a complaint with the Commission, but, under subsection 40(1) of the Act,
it must be “in a form acceptable to the Commission”. It is clear that in this
case the Commission never accepted the complaint, based on the Commission’s
second letter, which states the following:
[translation]
A review of your whole case brings us to
the conclusion that it does not have the necessary elements to constitute a
complaint under the Canadian Human Rights Act. We are satisfied that
these explanations will allow you take these matters to the appropriate courts.
Lastly, it is important to note that it
is your decision whether or not to file a complaint with the Commission. However, we want to
emphasize that under subparagraph 41(1)(c) of the Act, the Commission
can decline to deal with any complaint that it considers to be beyond its
jurisdiction.
[Emphasis added]
[35]
This
argument stems from a confusion between the act on which the complaint filed on
a specific date was based and the possible consequences of this act over time.
[36]
In Good
v. Canada (Attorney General), 2005 FC 1276, which concerned an application
for judicial review of a decision not to deal with a complaint pursuant to
paragraph 41(1)(e)
of the Act, this Court established that it was the date on which the dismissal
took place that must be used in calculating the one‑year time limit set
out in the Act. In the same way, the elimination of the applicant’s position
was an act that happened at a precise moment, namely, April 4, 2002, when the
applicant was informed in writing of the elimination of her position. This is the
last so‑called discriminatory act, and marks the start of the one‑year
time limit prescribed by paragraph 41(1)(e) of the Act.
[37]
In
her correspondence in 2003, the applicant merely noted that a co‑worker
had reached an agreement without making any allegation of discrimination. The
Commission was, therefore, right to refuse this complaint not only because it did
not involve a discriminatory act but also because of the time limit.
[38]
Time
and again, this Court has recognized that the appropriate standard of judicial
review for a decision by the Commission not to deal with a complaint pursuant
to paragraph 41(1)(e) of the Act is patent unreasonableness.
[39]
The
decisions made under this provision stem from a discretionary power.
Considering the circumstances in this case, the Court finds nothing
unreasonable in the Commission’s refusal to exercise its discretion and accept
the complaint after the expiry of the time limit prescribed by paragraph 41(1)(e)
of the Act.
Did the Commission breach the
principles of natural justice or procedural fairness in its review of the
applicant’s complaint?
[40]
The
applicant claims that important documents were not presented to the Commission
while it was making its decision, including the original complaints of January
6 and 13 and the Commission’s responses, the summary of the telephone
conversations, the submissions from the applicant on the issues of timeliness
and jurisdiction, a copy of the applicant’s grievance, as well as other
communications between the parties.
[41]
However,
the applicant had every opportunity to make written submissions and to provide
any documents that could offer a better understanding of the case. It appears
from the investigation report making up part of the Commission’s decision that
the Commission considered all the applicant’s submissions. The procedure
respected the requirements stated by the Federal Court of Appeal in Bell
Canada v. Communications, Energy and Paperworkers Union of Canada, [1999]
1 F.C. 113. In that case, Mr. Justice Décary, writing for the Court
of Appeal, described the procedure that the Commission must follow in its
investigation:
With respect to procedural fairness, the Commission did precisely what the
jurisprudence of this Court, as recently as in Slattery v. Canadian Human
Rights Commission (1996), 205 N.R. 383 (F.C.A.), has told it to do. The
Commission gave Bell a copy of the Draft Investigation Report, of the
Investigation Report and of the Revised Investigation Report. It gave Bell the
full opportunity to respond to each of these reports and Bell seized the
opportunity every time. Following the receipt of the submissions by the parties
on the Investigation Report, the Commission circulated each party's submissions
to the other parties. Following the release of the Revised Investigation
Report, all parties were provided with an opportunity to comment on the
submissions of the other parties to the Revised Report. The Revised Report
examined each and every argument that had been raised by Bell in its written
comments. The Commission considered the Revised Report, Bell's submissions on
it and further submissions by Bell before finally reaching its decision. What
more could it have done?
[42]
The
Commission followed this procedure in the present case. The applicant had all
the necessary opportunities to submit to the Commission the information that
she considered important, and she was able to submit her comments on the
investigator’s report to the Commission before the Commission integrated the
report into its decision.
[43]
The
applicant has not shown that there were any exceptional circumstances in this
case or any unreasonable omissions made by the Commission. Nothing warrants
modifying the decision not to deal with the applicant’s complaint.
[44]
In
Canada (Attorney General) v. Sketchley, 2005 FCA 404, the Federal Court of
Appeal found that the Court must always undertake the pragmatic and functional
analysis, regardless of the similarity between the issue before the Court and
the existing caselaw. In this case, the Court has undertaken the analysis
despite the facts that the applicant did not raise any argument deserving
consideration and that the application must be dismissed outright, whatever the
appropriate standard of review.
[45]
For
these reasons, the Court finds that the application for judicial review is ill‑founded
in fact and in law, thereby resulting in its dismissal with costs awarded to
the respondent, who is seeking them, whereas the applicant did not give the Court
any reason to waive them.
JUDGMENT
THE COURT ORDERS that:
The
application for judicial review be dismissed with costs to the respondent.
“Maurice
E. Lagacé”
Certified true
translation
Gwendolyn May, LLB
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