Date: 20080623
Docket: T-1377-07
Citation: 2008 FC 789
Ottawa, Ontario, June 23, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
PAUL
E. RICHARD
Applicant
and
TREASURY
BOARD OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of a decision (the impugned decision) rendered
by the Canadian Human Rights Commission (the Commission), dated June 21, 2007, in
which the Commission decided not to deal with the applicant’s complaint of
sexual discrimination against the Treasury Board of Canada pursuant to
paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985,
c. H-6 (the CHRA).
[2]
The
complaint was initially filed by the applicant on August 5, 2005 and is based
on alleged facts that took place from 1978 to August 31, 1985. On March 5,
2007, the applicant was advised by letter signed by the Deputy Secretary
General of the Commission that “[the] complaint will be presented to the
Commission with a recommendation that, pursuant to section 41(1)(e) of
the CHRA, the Commission not deal with the complaint, because the last alleged
discriminatory act occurred in August 1985, and [the applicant] did not contact
the Commission until August 2005.” In this letter, the Deputy Secretary General
invited the applicant to submit comments regarding the recommendation and
suggested that the applicant “may wish to include in [his] submission the
reasons [he] delayed in filing [his] complaint.”
[3]
The
Deputy Secretary General also sent a similarly worded letter to the respondent,
outlining the recommendation and inviting the respondent to submit a response.
The Deputy Secretary General suggested: “[s]hould [the respondent] be of the
view that the delay in filing the complaint would affect [its] ability to mount
a defence, [it] may wish to include the following information in [its]
submission: whether or not [the respondent was] aware that discrimination was
alleged or that a complaint was likely to be filed; the availability of
witnesses and/or documentary evidence; and any harm that could be caused by the
delay. ”
[4]
Both
parties filed written submissions.
[5]
The
record before the Commission when it rendered the impugned decision comprised the
applicant’s complaint form; a complaint summary; the letters from the Deputy
Secretary General to the applicant and to the respondent; the applicant’s
submissions and attachments; and, the respondent’s submissions. After reviewing
the materials, the Commission informed the applicant on June 21, 2007 that it
had decided not to deal with his complaint because it was filed outside the
one-year limitation period prescribed under paragraph 41(1)(e) of the
CHRA.
[6]
In
the letter of refusal, the Commission wrote:
Before rendering its decision, the
Commission reviewed the analysis and the recommendation contained in the letter
sent to you previously by the Investigations Branch, and any submission(s)
filed in response to the letter. After examining this information, the
Commission decided, pursuant to paragraph 41(1)(e) of the Canadian Human
Rights Act, not to deal with the complaint because
i.
it is
based on acts which occurred more than one year before the filing of the
complaint.
Accordingly, the file on this matter has
now been closed.
[7]
Paragraph
41(1)(e) of the CHRA provides:
|
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
[…]
(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.
[…]
|
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 :
[…]
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.
[…]
|
[8]
As
can be seen, paragraph 41(1)(e) of the CHRA does not specify the
criteria for exercising the discretion to extend the one-year time limit.
Therefore, it is left to the Commission to devise any relevant criteria
pertaining to the exercise of its discretion. According to the jurisprudence, the
criteria used by the Commission may be similar, albeit not identical, to the
criteria used by the courts: “[a]mong these, particularly, whether the delay was
incurred in good faith and the weighing of any prejudice or unfairness to the
respondent caused by the delay” (Bredin v. Canada (Attorney General),
2006 FC 1178, at paragraph 51) (Bredin)). This supposes that findings of
fact are to be made by the Commission with respect to the good faith of the
complainant, the reasonableness of her or his explanations for the delay, and/or
the existence of some harm or prejudice caused to the respondent by the delay.
[9]
Each
request for an extension of the time limit must be assessed by the Commission on
its own merits. The particular weight to be given to any relevant factor may
vary from case to case. Further, the list of factors or criteria to extend the time
limit is not exhaustive. The length of the delay and the particular nature of
the allegation of discrimination (i.e., whether it is exceptional or not
and whether it was isolated or continuous), combined with the fact that the
complainant is acting in good faith and is not bringing a trivial, frivolous or
vexatious complaint, may also be relevant considerations in the Commission’s exercise
of its discretion to extend the one-year delay. Considering the objectives of
the CHRA and the possible harm and prejudice that may be caused to victims of
discrimination, a lengthy delay in bringing a complaint may not, in and of
itself, constitute reasonable grounds to refuse to extend the one-year time bar.
This is especially so if, for example, the complainant has a reasonable
explanation for the delay or the respondent will not suffer any prejudice.
[10]
The
impugned decision not to deal with the applicant’s complaint is reviewable on
the reasonableness standard: Khanna v. Canada (Attorney
General),
2008 FC 576, [2008] F.C.J. No. 733 (QL), at paragraph 24. In so doing, the
Court must consider the justification, transparency and intelligibility of the
decision-making process: Dunsmuir v. New-Brunswick, 2008 SCC 9, at
paragraph 47 (Dunsmuir).
[11]
Indeed,
the Commission’s decision to dismiss complaints under section 41 of the CHRA
should be subject to closer review than decisions to refer complaints to the
Canadian Human Rights Tribunal: Larsh v. Canada (Attorney General),
[1999] F.C.J. No. 508 (QL), at paragraph 36 (Larsh). As stated by
Justice Evans (as he then was) in Larsh: “[a] dismissal is, after all, a
final decision that precludes the complainant from any statutory remedy and, by
its nature, cannot advance the overall purpose of the Act, namely protection of
individuals from discrimination, but may, if wrong, frustrate it.”
[12]
Paragraph
42(1) of the CHRA states:
|
42. (1)
Subject to subsection (2), when the Commission decides not to deal with a
complaint, it shall send a written notice of its decision to the complainant
setting out the reason for its decision.
|
42.
(1) Sous réserve du paragraphe (2), la Commission motive par écrit sa
décision auprès du plaignant dans les cas où elle décide que la plainte est
irrecevable.
|
[13]
In
this regard, reasons for a decision ensure a “fair and transparent
decision-making”, reduce “to a considerable degree the chances of arbitrary or
capricious decisions”, reinforce “public confidence in the judgment and
fairness of administrative tribunals” and “foster better decision making by
ensuring that issues and reasoning are well articulated and, therefore, more
carefully thought out”: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at paragraphs 38 and 39.
[14]
That
being said, given the cursory nature of Commission decisions, investigation
reports may also be read as the Commission’s reasons: Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (QL), at paragraph
37. In the case at bar, the investigator’s report, if any, that was submitted
to the Commission comprised one sheet entitled “Summary of Complaint”
(Tribunal’s Record, page 5). According to this document, apart from general
information with respect to the parties and provisions of the act involved, there
is no mention or analysis of the complaint, nor is there any explanation for
the lengthy delay. This document simply mentions that the date of the alleged
conduct is “1978 to August 31, 1985”.
[15]
The
parties respectively provided a number of arguments for the granting or the
refusal of an extension of delay which may be summarized as follows: 1) from
the applicant’s perspective, he had reasonable explanations (some of which were
medical) for the lengthy delay and his case against the respondent was a very strong
one considering the fact that he experienced “serious long-term financial,
physical and emotional disability as a result of the systemic continuous and
incessant discrimination and homophobia at the hands of the Federal Public
Service during his whole career”; 2) from the respondent’s perspective, an
extension would be prejudicial considering the difficulty to identify potential
witnesses and the ability of these witnesses to remember the alleged events
which occurred more than 20 years ago.
[16]
As
appears from the refusal letter, the Commission summarily decided not to deal
with the complaint simply because it is based on acts which occurred more than
one year before the filing of the complaint. However, the Commission nonetheless
failed at the same time to deal with the applicant’s substantiated request that
the Commission exercise its power to extend the one-year time limit.
[17]
Even
if I assume, as pressured to do so by the respondent, that the Commission has implicitly
dealt with the applicant’s request for an extension, I am of the view that the
lack or insufficiency of the reasons provided by the Commission for its alleged
refusal to exercise its discretionary power renders the impugned decision
unreasonable (Khanna, at paragraphs 25 and 29; Bredin, at
paragraphs 58 and 61).
[18]
Indeed,
in the impugned decision and the summary of complaint prepared by the
Investigations Branch, there is no mention or weighing of the criteria used by
the Commission, nor is there any analysis of the representations and evidence
submitted by the parties with respect to the delay. The two letters previously
sent to the parties by the Deputy Secretary General do not qualify as reasons
and do not deal with any of the arguments subsequently made by the parties in
response to the Investigations Branch recommendation to the Commission not to
deal with the complaint “because the last alleged discriminatory act occurred
in August 1985, and [the applicant] did not contact the Commission until August
2005”. In particular, there is no actual finding by the Commission that the explanations
for the delay are not reasonable or that the respondent will suffer prejudice
because of the delay.
[19]
What
was said by Justice Blanchard in Bredin, at paragraphs 55 to 58 equally
applies in this instance:
Given the nature of the
record before me, it is impossible to ascertain, whether the Director turned
his mind to the factors that required consideration by the Commission in the
exercise of its discretion. What is clear, however, is that the Director's
recommendation, that the Commission not receive the complaint, was made without
the benefit of submissions made by the parties on the Commission's exercise of
discretion to extend time.
In its decision letter, the
Commission states that it reviewed the analysis and recommendation of the
Investigations Branch and submissions filed in response thereto and decided not
to deal with the complaint because it is based on acts which occurred more than
one year before its filing. The Commission, in its decision, essentially adopts
the Director's recommendation without expressly considering the parties'
arguments on the Commission's discretion to extend time. The Commission fails to
deal with the above-noted factors relating to the exercise of its discretion
that, in the Applicant's submissions, would support a positive decision by the
Commission regarding the extension of time to receive the complaint.
In my review of the materials,
particularly the decision letter, there is no way of knowing whether the
Commission turned its mind to the exercise of its discretion, let alone whether
the discretion was properly exercised. The investigation report did not deal
with the issue since its recommendation was made before the parties submitted
their arguments on the factors pertaining to the exercise of the Commission's
discretion. It appears that the Commission's negative decision turns solely on
the complaint being time barred. I am left to conclude that the Commission
failed to exercise its discretion. In proceeding as it did, the Commission
committed a reviewable error. The decision will consequently be set aside.
The Commission's decision is
equally flawed by reason of the insufficiency of its reasons. Section 42(1) of
the Act states :
[…]
The reasons in the
circumstances of this case are inadequate. The decision letter fails to meet
the standard that has been established in the jurisprudence for s. 42(1) of the
Act. See Kidd v. Greater Toronto Airports Authority, [2004] F.C.J.
No. 859, 2004 FC 703. The
Commission did not provide any explanation, not even a brief one for its
determination that it would not exercise it discretion to extend the time
period and receive the complaint beyond paraphrasing the legislative provision.
The decision letter is also insufficient as reasons for the decision under
review pursuant to the principles of natural Justice. See Via Rail Canada
Inc. v. National Transportation Agency, [2001] 2 F.C. 25
(C.A.) at paragraphs 17-19.
[20]
In
conclusion, it appears that the Commission’s negative decision turns solely on
the complaint being time barred. I am therefore simply left to assume that the
Commission failed to exercise its discretion pursuant to paragraph 41(1)(e)
of the CHRA. As such, the impugned decision lacks the justification,
transparency and intelligibility required of a reasonable decision.
[21]
As
a consequence, the application for judicial review is allowed, with costs. The
impugned decision is set aside and the matter is referred back for
determination in accordance with the following directions that the Court
considers appropriate in the present circumstances.
ORDER
THIS COURT ORDERS that
1.
The
application for judicial review is allowed, with costs;
2.
The
June 21, 2007 decision of the Commission is set aside and the matter is
remitted to the Commission for re-determination in accordance with the
following directions;
3.
The
Commission shall provide both parties with an opportunity to submit any
additional evidence or written representations with respect to the exercise of
the Commission’s discretion to extend the one-year time limit to submit a
complaint. Supplemental reports and recommendations, if any, of the Investigations
Branch shall be provided to the parties for comment;
4.
The
Commission’s decision (or supplemental reports and recommendations, if any, of
the Investigations Branch) shall provide the following: reasons for the
decision to grant or refuse the applicant’s request for an extension of the
one-year time limit; the criteria considered (or to be considered) in the
exercise of the Commission’s discretion to extend the one-year time limit; and,
a rationale why same are met or not in this case.
"Luc
Martineau"
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