Date:
20130325
Docket:
T-315-12
T-316-12
Citation:
2013 FC 301
Ottawa, Ontario,
March 25, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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MICHÊLE BERGERON
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Bergeron asks the Court to set aside two decisions of the Canadian Human Rights
Commission [Commission] which dismissed her two human rights complaints
pursuant to paragraph 41(1)(d) of the Canadian Human Rights Act, RSC
1985 c. H-6 [CHRA] as “trivial, frivolous, vexatious or made in bad
faith” because they had already been addressed and remedied through two
grievance processes.
[2]
Both
judicial review applications were heard together. They are largely based on
common facts, the records of both, including the decisions, are nearly
identical, and the memoranda submitted by the parties are also nearly
identical. Accordingly, one set of reasons will issue for both applications, a
copy of which will be placed in each of the Court’s Files T-315-12 and T-316-12.
Background
[3]
Ms.
Bergeron was hired as a lawyer by the Department of Justice Canada [DOJ] in March 1999 and worked there until May 2001, when a chronic illness caused her to
leave work.
[4]
She
began receiving long-term disability payments in July 2001; however, in 2005,
Ms. Bergeron began to discuss a return to work with the DOJ. In August, Ms.
Bergeron’s physician provided Ms. Bergeron’s manager with a medical certificate
supporting her return to work and the DOJ referred Ms. Bergeron to a Heath
Canada [HC] physician for an assessment. The HC physician solicited and
received input from Ms. Bergeron’s physician and psychiatrist, who provided
their recommendations for a return to work plan. The HC physician’s preliminary
recommendation was that Ms. Bergeron should gradually return to full-time hours
over a period of seven months. This recommendation was provided to Ms.
Bergeron’s two doctors for their comments. Her physician agreed with the plan
for the most part, but wished to see monthly health assessments built into the
schedule among other changes. Her psychiatrist initially found the
recommendation “eminently reasonable and fair.”
[5]
The
HC physician provided his final recommendation to the DOJ and Ms. Bergeron on
December 3, 2005. It was the same as his initial recommendation, but contained
the following statement: “Should [Ms. Bergeron] be unable to maintain the
required work hours or additional concerns present themselves, a work stoppage
will be necessary and prudent” [the Work Stoppage Clause].
[6]
Ms.
Bergeron replied with her concerns about two aspects of the plan: the Work
Stoppage Clause and a pre-determined date of return to full-time work. Ms.
Bergeron’s physician offered similar concerns, and eventually her psychiatrist
also indicated a preference for additional flexibility. No consensus could be
reached among these doctors and the HC physician’s recommendation did not
change.
[7]
Ms.
Bergeron’s manager at the DOJ invited her to meet and discuss her return to
work on three occasions: in March, April, and August 2007. Ms. Bergeron
refused these invitations on the basis that she wished to have an explicit
agreement in place prior to any meeting, and one of the proposed meeting dates
was said to offer too little notice.
[8]
Subsequent
to the first two of these proposed meetings, by letters dated July 16 and
August 13, 2007, Ms. Bergeron’s manager formally proposed dates for Ms.
Bergeron’s return to work, to be approached in accordance with the HC
physician’s recommendation. Ms. Bergeron refused these offers on the basis
that she would be putting her health at risk.
[9]
In
May 2008, an Assistant Deputy Attorney General made Ms. Bergeron a final offer
to return to work based on the HC physician’s recommendation, and informed her
that the DOJ otherwise intended to staff her position. The offer removed any
reference to full time hours and clarified that any work stoppage decision
would only be taken in consultation with the human resources department, the
insurance company, and Ms. Bergeron’s physicians. Ms. Bergeron rejected the
offer. On June 30, 2008, after seven years of absence from work, the DOJ
staffed Ms. Bergeron’s position.
The Grievances
and Complaints
[10]
On
July 15, 2008, Ms. Bergeron filed a grievance with the DOJ [the First
Grievance] grieving:
on-going
discriminatory conduct directed against [her] by [her] manager … for the better
part of three years now and her consistent and persistent failure to provide
[her] with ability-appropriate accommodations. The most recent of these …
violations … [was the] current initiative … underway to staff [her] permanent
position. This individual grievance [was] founded on the application of
Sections 2, 3, 7, 14(1)(c) and 15(2) of the Canadian Human Rights Act.
Ms. Bergeron sought the reversal of the
initiative to staff her position; to be restored to her position “with a view
to engaging with [her] employer in the identification and development of an
approach to this issue which is equitable, acceptable to both parties and
non-discriminatory in nature;” and such other relief “deemed appropriate in the
circumstances including, but not limited to, compensation for
mental/psychological distress and emotional harm.”
[11]
On
September 26, 2008, Ms. Bergeron filed a human rights complaint with the
Commission [the First Complaint]. She alleged that in denying her the chance
to attempt the return to work plan she and her physicians preferred, she was
discriminated against on the basis of her disability. Ms. Bergeron also claimed
that the Treasury Board policy of “maintaining disabled persons on the priority
staffing list for only year” was discriminatory, and that as a result of all of
this discrimination she had experienced mental distress and the aggravation of
her physical symptoms. The Commission’s amended “Summary of Complaint” form
summarized the complained-of practices to be “adverse differential treatment,”
“refusal to accommodate,” and “discriminatory policy/practice.” The
Commission’s eventual decision regarding the First Complaint is the subject of
Court file T-315-12.
[12]
In
February 2009, the DOJ proposed another return to work and the extension of Ms.
Bergeron’s leave-without-pay until April 3, 2009; again, the offer was
rejected.
[13]
On
March 3, 2009, Ms. Bergeron submitted a second grievance [the Second Grievance]
complaining of three actions taken by the DOJ:
(i) The DOJ’s
refusal to extend her leave of absence without pay which constituted
“disciplinary action resulting in financial penalty contrary to s. 209(1)(b) of
the Public Service Labour Relations Act, discrimination contrary to ss.
7 and 15(2) of the Canadian Human Rights Act and s. 15 of the Charter
of Rights and Freedoms, and retaliation contrary to s. 14.1 of the CHRA;”
(ii) The DOJ’s
refusal to allow her to buy back her pension deficiencies and premiums for her
Supplementary Death Benefit during her leave without pay, as well as the DOJ’s
refusal to continue to make pension contributions and premium payments for her
Supplementary Death Benefits on a pay-as-you-go basis, “on the grounds that
this comprises disciplinary action resulting in financial penalty pursuant to
s. 209(1)(b) of the Public Service Labour Relations Act, discrimination
– contrary to ss. 7 and 15(2) of the Canadian Human Rights Act and s. 15
of the Charter, and retaliation contrary to s. 14.1 of the CHRA;”
and
(iii) The DOJ’s “discriminatory,
disciplinary and retaliatory acts against [her] on the ground that these
actions have created an unbearable return to work situation for [her], thereby
constituting a repudiation of [her] employment contract and amounting to
constructive dismissal. …”
Ms. Bergeron sought assurances that she
would not be subjected to further discrimination and retaliation upon her
return to work; a written apology from her manager; comprehensive
anti-discrimination and anti-harassment training for CIC [sic] managers;
“compensation for all lost wages and expenses incurred as a result of [the]
discriminatory practices, per s. 53 of the CHRA;” damages for pain and
suffering, “as per s. 53 of the CHRA;” compensation for the DOJ’s
“willful and reckless discriminatory actions … as per s. 53 of the CHRA;”
any other corrective action necessary to make her whole.
[14]
On
April 27, 2009, Ms. Bergeron filed a second complaint with the Commission [the
Second Complaint] alleging that “since filing her first Human Rights
complaint and her first grievance, she has been subjected to numerous
examples of retaliatory conduct by the DOJ [emphasis added].” She stated that
in filing this complaint she relied on section 14.1 of the CHRA which
makes it a discriminatory practice to retaliate or threaten to retaliate
against a person who has filed a complaint.
[15]
The
Second Complaint lists numerous acts alleged to have been taken in retaliation
of the First Compliant. Three of these occurred prior to the date when her
First Complaint was filed; namely, (i) letters from the DOJ advising her that
it intended to staff her position (May 2008); (ii) being told by her
compensation advisor that she was no longer authorized to speak with her and
blocked from accessing her human resources information (June 2008); and (iii)
letters from the DOJ that it had formally vacated her position (July 2008).
The other acts complained of included the DOJ’s alleged refusal to accept
certain benefits and pension payments from her; the February 6, 2009 “return to
work ultimatum (disguised as an "offer" to settle);” an alleged
refusal to provide Ms. Bergeron’s union with information about why they vacated
her position, and stopped paying her Law Society of Upper Canada fees; and the
DOJ’s decision to place Ms. Bergeron on priority status as of April 6, 2009.
The Commission’s eventual decision regarding the Second Complaint is the
subject of Court file T-316-12.
[16]
Asserting
that there was a significant overlap between Ms. Bergeron’s two grievances and
her two human rights complaints, the DOJ initially raised an objection with the
Commission regarding the human rights complaints on the basis of paragraph
41(1)(a) of the CHRA, that Ms. Bergeron “ought to exhaust grievance or
review procedures otherwise reasonably available” – in particular, the
departmental grievance processes she had already initiated.
[17]
Before
the Commission reviewed the complaints, Ms. Bergeron received a decision on her
First Grievance. After reviewing Ms. Bergeron’s written representations (Ms.
Bergeron elected not to make oral representations), Donna Miller, Associate
Deputy Minister of Justice, found that the DOJ had unsuccessfully corresponded
with Ms. Bergeron over the course of two years to coordinate a return to work,
that it was incumbent on the department to meet its current and ongoing service
requirements, and for those reasons she did not agree with Ms. Bergeron’s
submission that the decision to eventually staff her position was disguised
discipline or a violation of the CHRA. Ms. Miller extended a further
invitation to Ms. Bergeron to come to an agreement on a return to work plan,
and extended her leave-without-pay period for an additional five months, to
September 4, 2009, to facilitate that process.
[18]
On
July 13, 2009, the DOJ representative assigned to coordinate with Ms. Bergeron
on her return to work reiterated the employer’s latest offer. Ms. Bergeron’s
representative’s response on September 2, 2009, only two days before Ms.
Bergeron’s freshly extended leave period was to expire, was that the DOJ must
“necessarily” agree to the following elements: a back to work plan devised by
Ms. Bergeron’s, not HC’s doctors; compensatory damages; legal costs; human
rights damages for pain and suffering since November 2005; human rights
“willful and reckless” damages for conduct since November 2005; and
non-monetary redress including, “but not necessarily limited to,” a written
apology and sensitivity and awareness training for the department’s
representatives.
[19]
On
September 4, 2009, well before the Commission had dealt with the Second
Complaint, Ms. Miller replied to the Second Grievance. She lamented Ms.
Bergeron’s September 2, 2009 reply and “urge[d] [her] to consider providing a more
meaningful reply in advancing [her] return to work,” and she provided an
additional extension to the leave-without-pay period – until October 2, 2009 –
to accommodate Ms. Bergeron’s counsel’s schedule. With respect to the
substance of the Second Grievance, she replied as follows:
(i) As to the
allegation that the DOJ had refused to extend Ms. Bergeron’s leave of absence
without pay, Ms. Miller noted that she had extended her leave until September
4, 2009, and, with this decision, once more until October 2, 2009;
(ii) As to the
allegation regarding payments that had not been accepted, Ms. Miller indicated
the matter was administrative in nature as Ms. Bergeron had provided payments
with little explanation and without the required forms, and had provided one
cheque when two were required; that these formal requirements had already been
explained to her and her representative; and that in any event, the DOJ would
accept her payments; and
(iii) Regarding the alleged
discriminatory, disciplinary and retaliatory acts, Ms. Miller found “these
allegations to be unfounded.”
Finally, the September 4, 2009 reply to
the Second Grievance reiterated the May 6, 2009 offer and invited Ms. Bergeron
or her representative to advance a detailed proposed solution on her return to
work “well before October 2, 2009 [emphasis added].”
[20]
On
October 2, 2009, Ms. Bergeron’s counsel replied reiterating the earlier
position, quibbling with certain terminology, requesting that Ms. Bergeron’s
leave-without-pay period be extended for nearly another nine months, “as [the
author’s] past experience with this file has demonstrated that medically
informed and holistic discussions require comfortable and flexible timelines,”
and concluding with a demand for a response by October 16, 2009.
[21]
The
DOJ responded on October 16, 2009, with a response that reflects that the
parties were at an impasse:
The
Department wishes to advise that it has no further comments to make as it
considers this part of the process closed with respect to the letters of Donna
Miller of May 6 and September 4, 2009.
[22]
Pursuant
to the provisions of the Public Service Labour Relations Act, SC 2003,
c 22, Ms. Bergeron’s union had the right to refer her grievances to
adjudication. It chose not to do so. It is suggested that its decision was because
the DOJ had “threatened” to make a preliminary objection that would be costly
for the union which had only recently been certified to represent DOJ lawyers.
In any event, as a consequence of the grievances not being referred to
adjudication, the responses from Ms. Miller on the two grievances were final
decisions.
The
Investigator’s Process
[23]
On
February 09, 2010, Ms. Falconi, a Commission investigator, wrote to the parties
advising them that she was assigned to the First Complaint and Second Complaint
and was directed to complete fresh “Section 40/41 Report[s]” regarding the
preliminary issues in both complaints. Because the ground had shifted since
the DOJ’s initial objection, the investigator noted that the complaints raised
issues under paragraph 41(1)(d) of the CHRA, specifically whether “the
grievance procedure adequately addressed the issues raised in the current
complaint[s].” She invited the parties to make submissions on the factors
relevant to whether the complaints had become, by reason of Ms. Miller’s
grievance replies, “trivial, frivolous, vexatious or … in bad faith” as
described in paragraph 41(1)(d) of CHRA. Specifically, the parties were
invited to address the following factors:
(a)
What is the
nature of the alternate redress mechanism that was used?
(b)
Was there a
hearing on the issues?
(c)
Was the
complainant permitted to present his or her case?
(d)
Was the
decision-maker independent?
(e)
What did the
decision-maker decide?
(f)
Did the
decision address all of the human rights issues raised in the complaint?
(g)
What remedies
were requested in the grievance or other review procedure?
(h)
If the
complainant was successful (or partially successful) under the alternate
redress procedure, what remedies were awarded?
Submissions from the parties ensued,
after which the investigator prepared a Section 40/41 Report for each complaint
containing a summary of the submissions and facts relevant to each of the
above-listed factors, as well as a short analysis and conclusion section.
These reports, which recommended the dismissal of the two complaints, were put
to the parties for additional submissions, which followed. The reports, the
parties’ submissions, and other relevant documents were then forwarded to the
Commission for decision.
The
Commission’s Decisions
[24]
The
Commission dismissed both of Ms. Bergeron’s complaints.
[25]
The
Commission’s decisions in the First Complaint and Second Complaint (the First
Decision and Second Decision, respectively) both have three parts. The first
part sets out a brief summary of the procedural history of the case. The
second part begins as follows:
“After reviewing
and considering the submissions of the parties …, the Commission adopts the
following analysis set out in the Section 40/41 Report.”
That statement is followed, in both
decisions, by the same four paragraph excerpt – the “Analysis” section –
from the Section 40/41 Report prepared for the First Complaint, which
reads as follows:
“The Association
of Justice Counsel did not refer the complainant’s grievance to arbitration
because it expected the respondent would make jurisdictional objections before
the [Public Service Labour Relations Board]. It also contended that in the
grievance decision, the respondent continued to ignore the complainant’s human
rights issues. However, despite the respondent’s potential objections as well
as concluding that her human rights issues were not acknowledged, the
[Association of Justice Counsel] still had the option of referring the
complainant’s grievance to arbitration if it so chose. As well, although the
[Associate Deputy Minister] did not find in the complainant’s favour in terms
of supporting her position that there were human rights violations, it appears
that she did turn her mind to the issue. The complainant advised that the
[Associate Deputy Minister] is the respondent’s human rights expert. She
disputes the [Associate Deputy Minister’s] objectivity despite the fact that
the [Associate Deputy Minister] partially upheld the complainant’s grievance
and stated her belief that other options were available that would have
permitted further discussions between the parties regarding the return to
work. The complainant filed her grievance in July 2008, almost 3 years after
the initial negotiations were undertaken by the parties regarding the complainant’s
return to work. For the purposes of the grievance, it appears that the
[Associate Deputy Minister] reviewed all documentation that would have also
been reviewed at an adjudication hearing.
“While the
complainant takes issue with the lack of specifics in the [Associate Deputy
Minister’s] letter, with respect to the offer to return to her work unit, this
does not discount that the offer was made. In addition, the [Associate Deputy
Minister] authorized a further period of leave without pay. She authorized it
to allow time for the parties to come to an agreement on a return to work plan
which could be supported by the complainant’s physicians. It was on this basis
that the [Associate Deputy Minister] partially upheld the complainant’s
grievance. She did not award any financial remedy flowing from the CHRA or
otherwise.
“Having regard
to all circumstances in the complaint, it would appear that all of the issues
raised in the complaint were considered and addressed in the grievance
decision.
“As well, while
the Summary of Complaint identifies a discriminatory policy or practice, the
previous complainant’s counsel clarified that the complainant was not alleging
a discriminatory policy or practice but rather a failure to accommodate.”
[26]
The
third part of each decision “notes[s] and accept[s] the following arguments …
of the respondent,” and another four paragraph excerpt is reproduced. These
four paragraphs excerpts differ in each decision, and need not be reproduced.
Finally, the decisions conclude by saying that “based on the foregoing, the
Commission decides … to dismiss the complaint on the grounds mentioned in s.
41(1)(d) of the [CHRA].”
Issue
[27]
The
sole issue raised is the reasonableness of the Commission’s decisions. I agree
with the parties that the reasonableness standard of review applies when
reviewing these decisions.
Analysis
Are
the Commission’s Decisions Reasonable?
[28]
The
preliminary question is this: “What are the Commission’s reasons for dismissing
Ms. Bergeron’s complaints?” The respondent submits that the Commission’s
reasons for dismissing both complaints consist of the actual reasons the
Commission provided to the parties, as summarized above, and also the
reasons contained in the respective Section 40/41 Reports prepared for each
complaint by the investigator, Ms. Falconi. In this regard, the respondent
relies on the Federal Court of Appeal’s decision in Sketchley v Canada,
2005 FCA 404, at para 37 [Sketchley]:
[37] In
my view, the appellant’s argument on this issue must fail. While it is true
that the investigator and Commission do have “mostly separate identities”, (Canada
(Human Rights Commission) v. Pathak, 1995 CanLII 3591 (FCA), [1995] 2 F.C.
455 (C.A.), at paragraph 21, per MacGuigan J.A., (Décary J.A. concurring)), it
is also well established that, for the purpose of a screening decision by the
Commission pursuant to subsection 44(3) [as am. by R.S.C., 1985 (1st Supp.), c.
31, s. 64; 1998, c. 9, s. 24] of the Act, the investigator cannot be regarded
as a mere independent witness before the Commission (Syndicat des employés
de production du Québec et de l’Acadie v. Canada (Canadian Human Rights
Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at page 898
(SEPQA)). The investigator’s report is prepared for the Commission, and hence
for the purposes of the investigation, the investigator is considered to be an
extension of the Commission (SEPQA, at page 898). When the Commission adopts
an investigator’s recommendations and provides no reasons or only brief
reasons, the courts have rightly treated the investigator’s report as
constituting the Commission’s reasoning for the purpose of the screening
decision under subsection 44(3) of the Act (SEPQA, at pages 902-903;
Bell Canada v. Communications, Energy and Paperworkers Union of Canada,
1998 CanLII 8700 (FCA), [1999] 1 F.C. 113 (C.A.), at paragraph 30 (Bell
Canada); Canadian Broadcasting Corp. v. Paul, 2001 FCA 93 (CanLII),
(2001), 198 D.L.R. (4th) 633 (F.C.A.), at paragraph 43).
[emphasis added]
[29]
In
Sketchley, the Commission had adopted the short “Conclusion” sections of
the investigator’s reports in its decisions. The Federal Court of Appeal
agreed with the Federal Court that it was appropriate, in those
circumstances, to treat the entirety of the investigator’s reports as the
reasoning for the Commission’s decisions. However, in the decisions under
review in these applications, the Commission adopted the short “Analysis”
section of the reports, not the “Conclusion” section. Does that make a
difference? Does one look to the remainder of the investigator’s reports in
these cases even though the conclusion was not the portion of the report that
the Commission specifically adopted?
The
Second Decision: T-316-12
[30]
The
answer to this question as regards the Second Decision must be that one does
not look to the remainder of the investigator’s report. As mentioned above,
and for reasons that have no explanation other than possible inadvertence or
because it did not properly turn its mind to the issue, the Commission excerpted
the “Analysis” section from the report made for the First Complaint as its
reasons for dismissing the Second Complaint. Because the issues were different
in the two complaints, the Commission’s overt reasons in the second part of the
Second Decision are, on their face, irrelevant and unintelligible. The third
part of the Second Decision also contains no analysis which is on point: there
is no mention, let alone analysis, of whether Ms. Miller’s decision on the
Second Grievance adequately dealt with whether Ms. Bergeron was retaliated
against for having filed the First Complaint, such that the Second Complaint
had become “trivial, frivolous, vexatious or … in bad faith.”
[31]
I
cannot agree with the submission of the respondent that if the overt reasons
alone do not support the conclusion reached, that this Court look to the report
prepared for the Second Complaint as the Commission’s reasons for the Second
Decision.
[32]
It
is one thing to go behind an excerpt contained in a decision from an
investigator’s report and to look at the remainder of that report, as was done
in Sketchley. It is an entirely different proposition to ignore that
the Commission (apparently) adopted an excerpt from the wrong report and then
look to an altogether different report as the ‘real’ reasons for the
Commission’s decision. To do so goes beyond “supplementing” the Commission’s
decision. It would be rewriting the decision.
[33]
For
that reason, and since the third part of the Commission’s decision contains no
relevant analysis, the Second Decision – that under review in Court File
T-316-12 – will be quashed and remitted to the Commission for reconsideration.
I reach that conclusion notwithstanding that roughly a third of the alleged
incidents of retaliation in Ms. Bergeron’s Second Complaint took place before
the First Complaint was even filed, because it remains to be determined by the
Commission whether the remaining allegations were adequately dealt with by Ms.
Miller’s reply to the Second Grievance such that the Second Complaint should be
dismissed pursuant to paragraph 41(1)(d) of CHRA or dealt with in some
other manner.
[34]
I
must therefore allow application T-316-12.
The
First Decision: T-315-12
[35]
Unlike
the Second Decision, in the First Decision the Commission excerpted the
“Analysis” passage from the report that was actually prepared for the First
Complaint. Accordingly, the principle in Sketchley that the remainder
of the investigator’s report constitutes the Commission’s reasoning must be
applied unless there is a reasonable basis to distinguish it.
[36]
Had
the Commission only adopted a small part of the report’s “Analysis” section,
such that it was reasonably clear that it preferred only certain reasons from
the report and not others, the result might be different. However, here the
Commission adopts the entire “Analysis” section, and there is no reason to
believe that the Commission did not mean, in effect, to adopt the entire
report. Therefore, it is appropriate to consider the entire report and not
merely the excerpt expressly adopted by the Commission when assessing the First
Decision.
[37]
As
mentioned, the investigator invited the parties to make submissions on the
factors relevant to whether the First Complaint was “trivial, frivolous,
vexatious or … in bad faith” by reason of the “the grievance procedure [having]
adequately addressed the issues raised.” To repeat, those factors were:
(a)
What is the
nature of the alternate redress mechanism that was used?
(b)
Was there a
hearing on the issues?
(c)
Was the
complainant permitted to present his or her case?
(d)
Was the
decision-maker independent?
(e)
What did the
decision-maker decide?
(f)
Did the
decision address all of the human rights issues raised in the complaint?
(g)
What remedies
were requested in the grievance or other review procedure?
(h)
If the
complainant was successful (or partially successful) under the alternate
redress procedure, what remedies were awarded?
[38]
These
factors are aimed at determining whether a claim has, in substance, already
been determined by another mechanism such that the Commission should refuse to
deal with it again. The provision permits there to be some divergence as to
the exact issues raised, remedies available, procedure used, and so on, in the
two mechanisms, or else the use of another non-identical but similar
alternative mechanism to that provided under the CHRA would not prevent
a litigant from seeking recourse at the Commission.
[39]
The
jurisprudence is clear that the Commission is to be afforded great latitude in
exercising its judgment and in assessing the appropriate factors when
considering the application of paragraph 41(1)(d) of the CHRA and
performing this “screening function:” See, e.g., Sketchley at para 38.
[40]
The
report prepared for the First Complaint summarized the facts and the parties’
arguments and can itself be summarized as follows:
(a)
The
alternative procedure was the DOJ grievance process;
(b)
“There was no
hearing on the issues because the grievance did not go to arbitration;”
(c)
The
complainant was permitted to fully present her case in the grievance process;
(d)
The complainant
argues the decision-maker was not independent (there is no analysis of this
issue);
(e)
Ms. Miller
decided there was no disciplinary action or violation of the CHRA; that
the DOJ’s actions were necessary to meet operational requirements; and that discussions
could not go on indefinitely (Ms. Miller noted that several attempts had been
made by the department over the course of several years, implicitly saying that
Ms. Bergeron had not been particularly cooperative in the accommodation
process);
(f)
“It appears
that [Ms. Miller] turned her mind to the [human rights] issues;” and
(g)
Similar
remedies were requested in the grievance to those requested in the human rights
compliant.
The
“Analysis” section of the report is reproduced at paragraph 25 of these reasons.
The report concluded that Ms. Bergeron’s allegations “were addressed” through
the grievance process.
[41]
While
the Commission’s reasons in the First Decision as contained only in the letter
given to the parties are far from perfect; the record before it and, in
particular, the Section 40/41 Report prepared for the First Complaint, amply
supports its conclusion. Through her First Grievance, Ms. Bergeron had raised
virtually the same issues as she raised in the First Complaint; she had asked
for virtually the same relief; she had the opportunity to present her case
(although she did not even fully avail herself of that right); she received a
decision which made a finding on her allegations that there was a failure to
accommodate (although, largely because of her own delay, it dismissed them);
and she received another ‘let’s negotiate’ back-to-work offer which evidenced
that, in fact, the accommodation process was still on-going and that therefore,
in law, her complaint was not yet ripe.
[42]
The
one truly different issue raised in Ms. Bergeron’s First Complaint and which
was not raised and therefore dealt with in the grievance process was whether
the unnamed Treasury Board policy of “maintaining disabled persons on the
priority list for only one year” was discriminatory. However, Ms. Bergeron’s
submissions in response to the Section 40/41 Report prepared for the First
Complaint did not seriously pursue the argument that the Treasury Board policy
would be dealt with if her complaint was dismissed; nor was that issue pursued
by Ms. Bergeron in this judicial review. Thus, in addition to the fact that
whether the exact issues were raised in both processes is but one factor in the
41(1)(d) analysis, the issue of the Treasury Board policy is of negligible
significance in this Court’s review of the Commission’s decision.
[43]
Moreover,
although at all times Ms. Bergeron has complained that the grievance process
was not independent and thus cannot be considered to have adequately addressed
her complaints, there was no evidence that Ms. Miller was biased or did not
decide the grievances impartially; nor, in these circumstances, is the alleged
lack of independence in the grievance process sufficient to render the
Commission’s decision unreasonable: the alleged deficiencies are speculative,
and, again, only relate to one factor in the above-mentioned list of factors.
Most if not all of the other factors weighed in favour of dismissing the
complaint.
[44]
The
Commission’s decision that Ms. Bergeron’s issues had been reasonably dealt with
in the grievance process and should not continue to be litigated was therefore
well within the range of possible outcomes and should not be disturbed.
[45]
I
must therefore dismiss application T-315-12.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application for judicial
review in Court File T-315-12 is dismissed;
2. The
application for judicial review in Court file T-316-12 is granted, the
Commission’s decision is quashed, and the matter is remitted back to the
Commission; and
3. In light of the divided
success, there is no order as to costs.
"Russel W. Zinn"
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