Date: 20130830
Docket:
T-409-12
Citation: 2013
FC 921
Ottawa, Ontario,
August 30, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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CANADIAN HUMAN RIGHTS COMMISSION
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Respondent
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and
DETRA BERBERI
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)
dated December 29, 2011, determining that it had jurisdiction to convene a
hearing regarding the implementation of a remedial offer referred to in an
earlier decision.
[2]
The
applicant seeks an order quashing the decision and requests costs. The
respondent opposes the application and seeks costs. The Canadian Human Rights
Commission (the Commission) also opposes the application but seeks no costs and
requests that no costs be awarded against it.
Background
[3]
The
respondent, a federal public servant, filed a complaint with the Commission on
August 7, 2006, alleging that the Royal Canadian Mounted Police (RCMP) had
discriminated against her contrary to section 7 of the Canadian Human Rights
Act, RSC 1985, c H-6 (the Act) in its consideration of her application for
deployment. The Commission convened a hearing to inquire into this complaint.
[4]
The
RCMP conceded liability and the hearing proceeded on June 1 and 2, 2009, solely
on the basis of remedy. In a decision dated July 27, 2009, the Commission
ordered the RCMP to pay $4,000 to the respondent for pain and suffering and
$5,814 in legal expenses. In its reasons, cited as 2009 CHRT 21 (the remedy decision),
the Commission described at paragraphs 32 and 33, a job offer that was made by
the RCMP to the respondent in the course of the proceeding:
At
the hearing, the RCMP offered Ms. Berberi an indeterminate
CR-04
finance/administrative position at the RCMP detachment in Milton, which is one
of her preferred locations. The only condition was that Ms. Berberi obtain a
top secret security clearance. The RCMP also offered to conduct a functional
ability assessment and provide the necessary accommodations to ensure that she
succeeds in this position.
Ms.
Berberi accepted this offer and agreed that this satisfied her remedy request
for a permanent position with the RCMP. The parties agreed that no order from
the Commission was necessary.
[5]
Detra
Berberi brought an application in this Court for judicial review of the remedy
decision. Madam Justice Elizabeth Heneghan dismissed the application in Berberi
v Canada (Canadian Human Rights Tribunal), 2011 FC 485, [2011] FCJ No 750 (QL)
(the judicial review) on April 21, 2011. One of the respondent’s arguments was
that the Tribunal erred by assuming the RCMP would honour the job offer in good
faith. Justice Heneghan commented at paragraphs 64 and 65:
64 The
Applicant was represented by counsel at the hearing before the Tribunal. She
had the option of requesting an order. She did not do so.
65 The
responsibilities of the Tribunal were discharged once the issues of remedy,
including compensation for pain and suffering and a contribution towards legal
fees, were adjudicated. The Applicant is at liberty to seek an order from the
Tribunal with respect to implementation of the remedy. She has failed to show
that the Tribunal made any assumptions on the basis of any error, and this
argument is dismissed.
[6]
The
respondent pursued an appeal of that decision (Court of Appeal file A-195-11)
but it was dismissed for delay in late February 2012.
[7]
On
July 15, 2011, the respondent, Detra Berberi, requested that the Tribunal
convene a hearing in relation to the remedial offer from the June 2009 hearing.
The Tribunal wrote to the parties and the Commission requesting submissions on the
proposed continuation. The Tribunal offered mediation to the parties but it was
declined.
The Decision
[8]
On
December 29, 2011, the Tribunal found that it had jurisdiction to return to the
matter to address questions related to the implementation of the remedial
offer. The reasons are cited as 2011 CHRT 23 (the jurisdiction decision).
[9]
The
Tribunal summarized the background of the case and laid out the positions of
the parties. Ms. Berberi’s position was that the Tribunal possesses the
jurisdiction to superintend over the conduct of the parties in relation to
remedial proposals made and accepted during the course of the proceedings
before it. Her alternative position was that the complaint had not been
properly or fully adjudicated.
[10]
The
applicant took the position that the Tribunal was functus officio. It
had issued a final decision and therefore its jurisdiction was exhausted. Both the
applicant and the Commission agreed that the job offer formed part of the Tribunal’s
decision.
[11]
The
Tribunal canvassed the law of functus officio as it applies to
administrative tribunals, beginning with the Supreme Court’s decision in Chandler
v Alberta Association of Architects, [1989] 2 S.C.R. 848. It also considered
this Court’s decisions in Grover v Canada (National Research Council-NRC),
[1994] FCJ No 1000 (QL), 80 FTR 256 and Canada (Attorney General) v Moore, [1998] 4 FC 585, [1998] FCJ No 1128 (QL), which both dealt with judicial
reviews of the tribunal. It also considered this Court’s judicial reviews of
the Commission in Kleysen Transport Ltd v Hunter, 2004 FC 1413, [2004]
FCJ No 1723 (QL) and Merham v Royal Bank of Canada, 2009 FC 1127, [2009]
FCJ No 1410 (QL).
[12]
At
paragraph 17 of its decision, the Tribunal summarized the issue before it as: “considering
the Act and the circumstances of the case, should the Tribunal return to
the matter in order to discharge the function committed to it by the Canadian
Human Rights Act?”
[13]
The
Tribunal noted that the primary purpose of the Act is to identify and eliminate
discrimination, and it referred to its broad remedial discretion in subsection
53(2) of the Act. The Act does not provide a right of appeal and judicial
review is not the appropriate forum to seek out the implementation of a
tribunal decision. The Tribunal quoted the passage from the judicial review decision
indicating the respondent was at liberty to seek an order from the Tribunal.
The Tribunal noted that its orders could be made orders of this Court under
section 57 of the Act, but that it would frustrate the mandate of the Act to
require a complainant to file a new complaint in order to obtain the full
remedy awarded by the Tribunal.
[14]
The
Tribunal noted that the finality, validity and correctness of the remedy decision
were not being challenged and the respondent was not asking the Tribunal to
change the remedies. Rather, she had asked for the opportunity to argue for the
effective implementation of part of the remedy decision.
[15]
In
coming to the remedy decision, the Tribunal had the power under subsection
53(2) of the Act to make an order, but the parties had agreed it was not necessary.
The Tribunal queried whether it would be overly formalistic to deny a victim of
discrimination the opportunity to seek effective implementation of a remedy for
the sole reason that the remedy had not been turned into an order, given that
the Tribunal had clearly expected the job offer would be forthcoming.
[16]
The
Tribunal concluded that the absence of an order left the respondent without an
enforcement mechanism and that it would defeat the remedial purpose of the Act
to deny the victim of discrimination an opportunity to return to the matter.
Therefore, in the circumstances of the case, the Tribunal concluded it had
jurisdiction to return to the matter to address questions related to the
implementation of the offer.
Further Proceedings
[17]
On
June 19, 2012, Prothonotary Kevin Aalto granted a motion on consent of both
parties staying the Tribunal proceedings in this matter pending the final
determination of this application for judicial review.
Issues
[18]
The
applicant’s memorandum raises the following issue:
1. Did the Tribunal
err in law by finding that it was not functus officio in this matter?
[19]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Tribunal
err in deciding to return to the matter?
Applicant’s Written Submissions
[20]
The
applicant argues the question of whether the Tribunal was functus officio
or not is a true question of jurisdiction which attracts a standard of review
of correctness, relying on Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190. If the Tribunal failed in its task to interpret its grant of
authority under the Act correctly, its action was ultra vires.
[21]
The
applicant argues that the doctrine of functus officio protects the
principle finality in judicial and administrative decision making. The
applicant describes four exceptions to the doctrine:
1. There was a slip
in drawing up the final decision.
2. There was an
error in expressing the manifest intention of the court or the tribunal.
3. If there is an
indication in the enabling statute that the tribunal can reopen a decision to
discharge its statutory functions.
4. The tribunal has
failed to dispose of an issue that was fairly raised during the proceedings.
[22]
The
applicant argues that a tribunal may not reopen proceedings merely to select a
different remedy than it originally chose. The applicant submits that none of
these four exceptions apply. The applicant concedes that the tribunal has the
power to retain jurisdiction over a matter by explicitly doing so, but argues there
is nothing in the Act that allows the tribunal to reopen matters after a final
order if jurisdiction was not explicitly reserved.
[23]
The
applicant relies on this Court’s decision in Grover above, where it was
determined that the Tribunal’s remedial power under subsection 53(2) includes
the power to reserve jurisdiction and that the overarching test for applying
the functus officio doctrine to the Tribunal is whether it could be said
to have fully determined the complaint. The remedy decision in this case finally
disposed of the issues raised at the hearing.
[24]
The
applicant characterizes the jurisdiction decision as an unwarranted departure
from the current state of the law. The applicant argues the case law relied
upon by the Tribunal is inapplicable, as those cases dealt with either a
failure to address submissions or the powers of the Commission, which are
distinct from the Tribunal’s.
[25]
The
applicant argues the Tribunal failed to identify any jurisdictional basis for
reopening the matter. Section 57 of the Act shows that Parliament turned its
mind to enforcement procedures and chose not to give such powers to the Tribunal.
It was open to the respondent to seek an order of mandamus in her
previous judicial review in this Court to require the RCMP to comply with the
job offer. The failure to properly argue her application for judicial review
does not confer jurisdiction on the Tribunal.
Respondent’s Written Submissions
[26]
The
respondent argues that the question before the Tribunal is of mixed fact and
law and therefore attracts a reasonableness standard.
[27]
The
respondent’s position is that the Tribunal was not functus officio
because the Tribunal’s remedy decision did not adjudicate or otherwise dispose
of the issue of the respondent’s entire remedial entitlement. Rather, the Tribunal
simply recorded the fact that the respondent had accepted the RCMP’s job offer
and determined the monetary claims. Accordingly, there was no finding or award
in relation to the obligation to provide a job. The doctrine of functcus officio
is therefore inapplicable.
[28]
The
respondent’s alternative position is that if the doctrine applies, then the jurisdiction
decision fell within the manifest intention exception. The remedy decision
clearly expected that the job offer would be forthcoming, so the Tribunal’s
intention was that the job offer be made.
[29]
The
respondent disputes the applicant’s argument that it was open to her to bring
enforcement proceedings under section 57 of the Act, given the lack of an order
from the Tribunal. The respondent also argues that mandamus was not
available since the existence of a tribunal order is a necessary precondition.
The Tribunal was therefore correct that the respondent was left without an
enforcement mechanism regarding the job offer.
[30]
The
respondent further argues the doctrine of necessary implication grants
tribunals all the powers needed to accomplish their statutory mandates.
Commission’s Written Submissions
[31]
The
Commission argues that the standard of review is reasonableness. The decision
involves an interpretation of the Tribunal’s enabling legislation and is within
the Tribunal’s expertise. The Act does not contain a privative clause, but the
purpose of the Act is set to provide an expert regime for the expeditious and
informal resolution of human rights disputes. The Commission emphasizes the
principle that human rights legislation must be given full recognition and
effect.
[32]
The
Commission argues that a tribunal’s authority to reopen decisions is not
limited to situations where it has retained jurisdiction. Rather, this Court
has found that the Commission has the authority to reconsider its decisions
despite the absence of express provision in the Act. The Commission agrees with
the Tribunal’s conclusion that the respondent would be left without any
enforcement mechanism absent an order from the Tribunal.
[33]
The
Commission submits that while the Tribunal does not have jurisdiction to
reconsider the findings in its original decision, it has the authority to
complete its original decision, especially if something that should have been considered
was overlooked. The remedy decision contained a partial decision on remedy
since the parties reached an agreement. Therefore, the Tribunal has
jurisdiction to complete its original decision and deal with the alleged noncompliance.
[34]
The
Commission agrees with the respondent that enforcement under section 57 of the
Act is not available. This Court held in the judicial review decision that the
respondent could seek an order from the Tribunal. The Commission points out
filing a new complaint would not be effective redress as it would give
complainants little incentive to settle disputes prior to or during
adjudication, given the unenforceability of such promises. The Tribunal’s
decision was reasonable.
Analysis and Decision
[35]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
above at paragraph 57).
[36]
The
respondent characterizes the issue before the Tribunal as a true question of
jurisdiction. The Supreme Court, however, has recently cautioned against the
use of this rationale for correctness review (see Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association,
2011 SCC 61, [2011] 3 S.C.R. 654 at paragraphs 32 to 34. The Supreme Court also
reviewed this very Tribunal’s interpretation of its home statute on a
reasonableness standard in Canada (Canadian Human Rights Commission) v
Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at paragraphs 24
to 27. The Tribunal’s determination of whether it can reopen a matter is no
more “jurisdictional” than the Tribunal’s determination of whether it may
afford costs. On the latter question, the Supreme Court held that deference was
appropriate. Therefore, reasonableness is also appropriate for reviewing the Tribunal’s
decision in this case.
[37]
In
reviewing the Tribunal’s decision on the standard of reasonableness, the Court
should not intervene unless the Tribunal came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47). As the Supreme Court held in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, it is not up to a
reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (at paragraph 59).
[38]
Issue
2
Did the
Tribunal err in deciding to return to the matter?
I agree with the
Tribunal’s finding in the jurisdiction decision that the remedy decision
clearly signals that the Tribunal expected that the job offer would be made to
the respondent. Why neither the Tribunal nor the respondent’s counsel thought
it would be useful to formalize that expectation in the form of an order is
unclear.
[39]
What
is the effect of the expectation, absent an order? It would appear from reading
section 57 of the Act that the job offer cannot be made an order of the Federal
Court for the purpose of enforcement.
[40]
The
applicant submits that the doctrine of functus officio applies and that
the Tribunal does not have jurisdiction to deal with the job offer. In Chandler above, Mr. Justice Sopinka stated at page 862:
21 To
this extent, the principle of functus officio applies. It is based,
however, on the policy ground which favours finality of proceedings rather than
the rule which was developed with respect to formal judgments of a court whose
decision was subject to a full appeal. For this reason I am of the opinion that
its application must be more flexible and less formalistic in respect to the
decisions of administrative tribunals which are subject to appeal only on a point
of law. Justice may require the reopening of administrative proceedings in
order to provide relief which would otherwise be available on appeal.
22 Accordingly,
the principle should not be strictly applied where there are indications in the
enabling statute that a decision can be reopened in order to enable the
tribunal to discharge the function committed to it by enabling legislation.
This was the situation in Grillas, supra.
[41]
In
Kleysen Transport above, Mr. Justice James O’Reilly of this Court applied
similar reasoning to conclude that the Canadian Human Rights Commission had
power to reconsider its decision in certain circumstances.
[42]
In
Canada (Attorney General) v Amos, 2011 FCA 38, [2011] FCJ No 159
(QL), the question before the Federal Court of Appeal was as stated in
paragraph 1:
This case is about the scope of an adjudicator's jurisdiction
under the Public Service Labour Relations Act, S.C.
2003, c. 22 (PSLRA or Act or new Act). Does an
adjudicator maintain jurisdiction over disputes relating to settlement
agreements entered into by parties in respect of matters that can be referred
to adjudication or, as put by the Adjudicator in this case, where does a party
go for redress when he or she has settled a grievance referred to adjudication
and subsequently alleges that the other party has failed to honour the
settlement agreement (Adjudicator's reasons at paragraph 46)?
This Court in that case went on to
conclude that the adjudicator could deal with the settlement agreement and
expressed its rationale in paragraphs 62 to 68 of its reasons.
[43]
The
situation in this case, where the Tribunal’s reasons clearly anticipate an
agreed course of action between the parties and that course of action is
subsequently disputed, does not fall into the defined exceptions of functus
officio laid out in the case law above. Yet to stop there would clearly
contradict the Supreme Court’s instruction in Chandler above, that that
doctrine should be applied flexibly in the context of administrative tribunals.
As well, this Court’s decision in Moore above, at paragraph 49, holds
that there will be certain circumstances where it is appropriate for the Tribunal
to return to a matter. The other case law referred to above leads to the same
conclusion.
[44]
The
unique situation, which one would hope is infrequently repeated, where a
tribunal’s decision is clearly premised upon an agreed transaction between the
parties, but the tribunal fails to make that transaction enforceable, is a
scenario where a decision to return to the matter is reasonable. The Tribunal
is not convening a hearing for the purpose of relitigating the entire
complaint. The applicant’s concern for finality is tempered by the fact that
returning to the matter of the job offer raises no prospect of any new
obligation, rather, such a proceeding would only be concerned with holding the
applicant to its original promise. It does not lie in the applicant’s mouth to
complain of being held to its own offer.
[45]
I
would therefore dismiss the application for judicial review, with costs to the
respondent, Detra Berberi.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed with costs to the respondent, Detra Berberi.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Canadian
Human Rights Act,
RSC 1985, c H-6
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53.
(2) If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged in
the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
(a)
that the person cease the discriminatory practice and take measures, in
consultation with the Commission on the general purposes of the measures, to
redress the practice or to prevent the same or a similar practice from
occurring in future, including
(i)
the adoption of a special program, plan or arrangement referred to in
subsection 16(1), or
(ii)
making an application for approval and implementing a plan under section 17;
(b)
that the person make available to the victim of the discriminatory practice,
on the first reasonable occasion, the rights, opportunities or privileges
that are being or were denied the victim as a result of the practice;
(c)
that the person compensate the victim for any or all of the wages that the
victim was deprived of and for any expenses incurred by the victim as a
result of the discriminatory practice;
(d)
that the person compensate the victim for any or all additional costs of
obtaining alternative goods, services, facilities or accommodation and for
any expenses incurred by the victim as a result of the discriminatory
practice; and
(e)
that the person compensate the victim, by an amount not exceeding twenty
thousand dollars, for any pain and suffering that the victim experienced as a
result of the discriminatory practice.
(3) In
addition to any order under subsection (2), the member or panel may order the
person to pay such compensation not exceeding twenty thousand dollars to the
victim as the member or panel may determine if the member or panel finds that
the person is engaging or has engaged in the discriminatory practice wilfully
or recklessly.
(4)
Subject to the rules made under section 48.9, an order to pay compensation
under this section may include an award of interest at a rate and for a
period that the member or panel considers appropriate.
57. An
order under section 53 or 54 may, for the purpose of enforcement, be made an
order of the Federal Court by following the usual practice and procedure or
by the Commission filing in the Registry of the Court a copy of the order
certified to be a true copy.
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53.
(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée,
peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la
personne trouvée coupable d’un acte discriminatoire :
a)
de mettre fin à l’acte et de prendre, en consultation avec la Commission
relativement à leurs objectifs généraux, des mesures de redressement ou des
mesures destinées à prévenir des actes semblables, notamment :
(i)
d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii)
de présenter une demande d’approbation et de mettre en oeuvre un programme
prévus à l’article 17;
b)
d’accorder à la victime, dès que les circonstances le permettent, les droits,
chances ou avantages dont l’acte l’a privée;
c)
d’indemniser la victime de la totalité, ou de la fraction des pertes de
salaire et des dépenses entraînées par l’acte;
d)
d’indemniser la victime de la totalité, ou de la fraction des frais
supplémentaires occasionnés par le recours à d’autres biens, services,
installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;
e)
d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un
préjudice moral.
(3)
Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur
peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une
indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a
été délibéré ou inconsidéré.
(4)
Sous réserve des règles visées à l’article 48.9, le membre instructeur peut
accorder des intérêts sur l’indemnité au taux et pour la période qu’il estime
justifiés.
57.
Aux fins de leur exécution, les ordonnances rendues en vertu des articles 53
et 54 peuvent, selon la procédure habituelle ou dès que la Commission en
dépose au greffe de la Cour fédérale une copie certifiée conforme, être
assimilées aux ordonnances rendues par celle-ci.
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