Docket: T-871-14
Citation:
2014 FC 1120
Ottawa, Ontario, November 24, 2014
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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SERGEANT ANTONIO D'ANGELO
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Applicant
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and
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ATTORNEY GENERAL OF CANADA AND
ROYAL CANADIAN MOUNTED POLICE
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Respondents
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Acting Chief Commissioner of the Canadian Human Rights Commission dated March
5, 2014, wherein it was determined that the Applicant’s grievance would not be heard
until the Applicant’s other grievances had been completed, whereupon, it was
said that the Applicant may reactivate the grievance at issue. For the reasons
that follow, I have determined that this application will be allowed and the
matter sent back for redetermination having regard to these Reasons.
[2]
The Applicant is a twenty-nine year career
officer with the Royal Canadian Mounted Police. He had achieved the rank of
Sergeant and may well have achieved the rank of Staff Sergeant were it not for
the events at issue.
[3]
In 2007, the Applicant suffered a spinal injury
while engaged in sports activities with his colleagues. The injury appears to
have healed remarkably, but has left him with some disabilities, limiting running
and the like. In December 2009, he was stationed as a Liaison Officer in Rome, Italy. While stationed in Rome, the Applicant appears to have stumbled on some
cobblestones. On February 13, 2013, the Applicant was informed by his superior
officer that his posting was being permanently terminated, and that he was
being repatriated to Canada due to his disability and medical profile.
[4]
In February 2012, the Applicant filed a
grievance under the RCMP procedure requesting that his repatriation be
suspended pending the outcome of his grievance. Notwithstanding, the Applicant
was ordered back to Canada in March, 2012. Further, the Applicant was removed
from the promotion process, whereby he hoped to be promoted to Staff Sergeant.
The Applicant sought restoration of financial losses, losses for pain and
suffering, and losses arising out of failure to receive expected promotion. In
the period of May and June 2012, the Applicant filed six grievances in all.
[5]
Matters did not seem to move very quickly in the
RCMP grievance process. On March 13, 2013, the Applicant filed a complaint with
the Canadian Human Rights Commission alleging discrimination based on medical
disability and seeking reinstatement of his position as a Liaison Officer in Rome, as well as financial compensation for a number of specified losses, including for
the strain on his life.
[6]
The Commission responded by a letter dated April
4, 2013, that it would look into the matter and prepare what is called a section
40/41 report. The Commission indicated that it could decide not to deal with the
matter, particularly if there was another complaint or review process that
could deal with the complaint. This response listed a number of factors that
may be considered by the Commission, including:
(a) Is there another complaint or review process available to the
complainant? Does the complainant have full access to the process?
(b) If another complaint or review process is available, has it resulted
in a final decision? If a final decision has not been made, has the complainant
caused the delay?
(c) Should the complainant be asked to go through another complaint or
review process? Specifically:
(i)
What other complaint or review process is
available (internal dispute resolution process, grievance process)? Is the
decision-maker a neutral third party? If not, are there guidelines in place to
ensure fairness for everyone involved?
(ii)
Is the other process an acceptable option for
everyone?
(iii) Does the complainant’s current situation make him or her vulnerable?
Could the other process harm anyone involved?
(iv) Does the other complaint or review process have ways to prevent
and/or protect people from retaliation?
(v)
Will the parties be able to deal with all of
the human rights issues through the other process? If not, what human rights
issues cannot be dealt with through the other process?
(vi) What remedies are available through the other process? Would these
remedies resolve the human rights dispute?
(vii) Have any steps been taken to use the other process? If not steps
have been taken to use the other process, why not?
(viii) If
the parties have started the other process, what is the status of the
complaint?
(ix) What are the timelines of the other process? How long is it likely
to take before a final decision is made?
[7]
On May 17, 2013, the Applicant, through his
legal Counsel, gave a fulsome written submission replying to the Commission’s
request for information, including addressing the above factors.
[8]
The Commission then set about conducting its own
inquiries. A section 40/41 Report dated November 22, 2013 was issued by an
Early Dispute Resolution officer. That eight-page Report reviewed many of the
details of the Applicant’s complaint, including the following:
. . .
31.
The complainant has filed six (6)
grievances regarding the issues in this complaint. It appears that the
complainant has full access to the grievance process.
32.
There has been no final decision
regarding the complainant’s grievance. The complainant submits that a number of
delays were brought forth by the respondent.
33.
While the respondent argues that the
internal redress procedure is available and is currently dealing with this
matter, the complainant argues that requiring him to exhaust the grievance
process is unfair given that the delays which are inherent to the RCMP
grievance system make it ineffective; there is no independent third party
adjudication; and the grievance system cannot award the type of remedy the
complainant is seeking.
34.
Although the complainant has not
indicated that he is vulnerable, he argues that pursuing the grievance
procedure is “tantamount to denying Sgt. D’Angelo with any opportunity for
justice or meaningful redress” because of the reasons cited earlier.
. . .
38.
The complainant has raised significant
concerns regarding the timelines of the internal grievance process. He notes
that it has taken 15 months for his first grievance to arrive at Phase II of
the grievance process. He believes it will take several more years before the
remaining grievances reach Phase II and are eventually submitted for
Adjudication. He argues that based on his 27 years of service, it is possible
that he would retire at 35 years of service, prior to any decision being made
on this matter.
. . .
41. The
complainant alleges that the remedies he is seeking would not be available
through the internal grievance process. He indicates that although a Level I Adjudicator
might rule that the complaint should not have been removed from his post or
from the promotion system, he/she would never award a reinstatement and/or
promotion (deferring to Staffing and Personnel), nor would monetary damages
(for “loss of a promotion, discrimination and humiliation”, “hurt feelings and
the loss of dignity”) be awarded. The respondent representative confirmed that,
while an Adjudicator would be able to request some monetary damages, he/she
cannot order damages for pain and suffering that the complainant is seeking.
With regards to reinstatement and/or promotion, they indicated that while it
was not impossible for the adjudicator to order the complainant to be
reinstated, it was not probable that this would occur. They acknowledged that
reinstatement via the RCMP internal grievance process is not enforceable to the
same extent as a tribunal remedy. It is true that the tribunal can order the
remedies the complainant is seeking if discrimination is proven (reinstatement,
promotion and compensation).
[9]
The 40/41 Report concluded that the various
grievances could not provide the remedies which the Applicant is seeking,
reinstatement and/or promotion or monetary damages:
Conclusion
42. The complainant has fled six (6)
grievances that deals with issues raised in this complaint. It appears that the
complainant has full access to the grievance process provided for under the
RCMP Act. Although the grievance process will be able to deal with the human
rights issues raised in this complaint, it does not appear that it can provide
the remedies which the complainant is seeking: reinstatement and/or promotion
or monetary damages.
[10]
The 40/41 Report recommended that the Commission
deal with the complaint because it was not satisfied that the other procedures
will address the allegation of discrimination:
Recommendation
43.
It is recommended, pursuant to subsection
41(1) of the Canadian Human Rights Act, that the Commission deal with the
complaint because:
•
it is not satisfied that the other procedure
will address the allegation of discrimination.
[11]
This Report was provided to Counsel for the RCMP
and the Applicant for comment. The RCMP wrote a letter dated January 3, 2014,
taking issue with the recommendation. Applicant’s Counsel wrote a letter dated
February 4, 2014 supporting the recommendation and taking issue with the
matters raised in the RCMP’s letter, including the lack of availability of a
remedy, unreasonable delays, and whether reactivation of a complaint was
problematic.
[12]
On March 5, 2014, the Acting Chief Commissioner
of the Canadian Human Rights Commission made a decision which I reproduce in
full:
Decision under section 41(1)
The Commission decided, for the reasons
identified below, not to deal with the complaint at this time under paragraph
41(1)(a) of the Canadian Human Rights Act, as the complainant ought to exhaust
grievance or review procedures otherwise reasonably available. At the end of
the grievance procedures, the complainant may ask the Commission to reactivate
the complaint.
Material considered when decision made
The following documents were reviewed:
•
Complaint form dated March 13, 2013
•
Section 40/41 report dated November 22, 2013
•
Submission from respondent dated January 3,
2014
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Submission from the complainant dated
February 4, 2014
[13]
Whereupon the Applicant filed for judicial
review.
I.
ISSUES
[14]
The Applicant has raised the following issues:
A
What is the Appropriate Standard of Review?
B
Did the Commission
fail to provide adequate reasons, thereby violating the principles of
procedural fairness and natural justice?
C
Did the Commission
err in its application of section 42(2) of the Canadian Human Rights Act?
D
Is the Commission’s
decision unreasonable?
A.
What is the Appropriate Standard of Review?
[15]
Counsel for the parties each agree that the
standard of review is reasonableness. The Federal Court of Appeal has said as
much in Royal Canadian Mounted Police v Tahmoupour, 2010 FCA 192, where
Sharlow JA, writing for the Court, said at paragraph 8:
Most elements of a decision of the Tribunal
are reviewed on the standard of reasonableness, including questions of law
involving the Tribunal’s interpretation of its own statute or questions of
general law with respect to which the Tribunal has developed a particular
expertise.
B.
Did the Commission fail to Provide Adequate Reasons,
thereby Violating the Principles of Procedural Fairness and Natural Justice?
[16]
The Reasons provided by the Commission are
extremely brief. I repeat them:
Reasons for decision
The complainant has filed 6 grievances that
deal with the issues raised in the complaint. The Commission is of the view
that those grievances ought to be completed and, upon completion, the
complainant may ask the Commission to reactivate the complaint.
[17]
The Supreme Court of Canada has set the
guidelines with respect to sufficiency of reasons. In Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47, Abella J wrote that in considering
both the process of articulating the reasons and the outcome, there must be
shown the existence of justification, transparency and intelligibility:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[18]
In Newfoundland and Labrador Nurses Union v
Newfoundland and Labrador Treasury Board, 2011 SCC 62, Abella J, for the
Court, began her review with Dunsmuir, supra, stating at paragraph 14
that lack of “adequate” reasons is not a stand-alone
basis for quashing a decision and stating at paragraph 16 that reasons are
sufficient if they allow a reviewing Court to understand why the Tribunal made
its decision, and permit the Court to determine if it is within the range of acceptable
outcomes:
16 Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees' International Union, Local
No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p.
391). In other words, if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir criteria
are met.
[19]
At paragraph 22 of Newfoundland Nurses,
Abella J stated that where there are reasons, then a challenge to the decision
should be made within the reasonableness analysis:
22 It is true that the breach of a duty
of procedural fairness is an error in law. Where there are no reasons in
circumstances where they are required, there is nothing to review. But where,
as here, there are reasons, there is no such breach. Any challenge to the
reasoning/result of the decision should therefore be made within the
reasonableness analysis.
[20]
Justice Rennie, of this Court, recently wrote in
Komolafe v Canada (MCI), 2013 FC 431, that Newfoundland Nurses is
not an open invitation for the Court or, I add, Counsel in argument, to review
the record and guess what there may be in there that gives support to the
decision. In order to connect the dots, the reasons must supply the dots. He wrote
at paragraph 11:
11 Newfoundland Nurses is not an open
invitation to the Court to provide reasons that were not given, nor is it
licence to guess what findings might have been made or to speculate as to what
the tribunal might have been thinking. This is particularly so where the
reasons are silent on a critical issue. It is ironic that Newfoundland Nurses,
a case which at its core is about deference and standard of review, is urged as
authority for the supervisory court to do the task that the decision maker did
not do, to supply the reasons that might have been given and make findings of
fact that were not made. This is to turn the jurisprudence on its head.
Newfoundland Nurses allows reviewing courts to connect the dots on the page
where the lines, and the direction they are headed, may be readily drawn. Here,
there were no dots on the page.
[21]
Justice Noel, of this Court, in 7687567
Canada Inc v Canada (Foreign Affairs and International Trade), 2013 FC
1191, wrote in a similar vein that a reviewing Court is not intended to scour
the record and infer what the basis for the reasons are. He wrote at paragraph
63:
63 Newfoundland Nurses thus allows gaps
in the reasons to be filled or supplemented to an extent, in light of the
decision maker's record. However, the Supreme Court of Canada certainly did not
intend to allow decision makers to render decisions that are devoid of any
justification and, moreover, "unfortunately" drafted, nor did the
Court intend to allow these same decision makers to defend the essence of their
decisions by requiring a reviewing court to rely on the decision maker's record
and infer all the reasons from it, all the while accepting an affidavit that
adds, after the fact, reasons that did not appear in the decision dated February
20, 2013.
[22]
In the present case, there really are no
reasons, only a conclusion that the Applicant should await the outcome of his
various grievances. No basis for that conclusion has been provided. The Reasons
are inadequate.
[23]
I will, therefore, proceed to the last issue
raised by the Applicant, namely, was the decision reasonable?
C.
Was the Commissioner’s Decision Reasonable?
[24]
In cases of this kind, the Court is often
required to determine if a Commissioner’s decision was reasonable. If the
Commissioner has decided to adopt the recommendation made in a section 40/41
report, then the Court usually considers that the report constitutes the
reasons of the Commissioner and reviews the matter on that basis. However, if
the Commissioner decides to dismiss a complaint for reasons other than as set
out in the report, the Commissioner should set out in the reasons why that was
done. Justice Zinn, of this Court, wrote in Herbert v Canada (Attorney General), 2008 FC 969, at paragraph 26:
26 The jurisprudence is clear that where
the Commission provides the complainant what is essentially a form letter
dismissing the complaint for the same reasons set out in the investigator's
report, then the report does constitute the reasons of the Commission as to why
the complaint was dismissed. If the Commission chooses to dismiss on some other
basis than that advanced by the investigator, it must state those reasons in
its decision. Where the parties' submissions on the report take no issue with
the material facts as found by the investigator but merely argue for a
different conclusion, it is not inappropriate for the Commission to provide the
short form letter-type response. However, where these submissions allege
substantial and material omissions in the investigation and provide support for
that assertion, the Commission must refer to those discrepancies and indicate
why it is of the view that they are either not material or are not sufficient
to challenge the recommendation of the investigator; otherwise one cannot but
conclude that the Commission failed to consider those submissions at all. Such
was the situation in Egan v. Canada (Attorney General), [2008] F.C.J. 816; 2008
FC 649.
[25]
Justice Zinn’s decision was written before the
Supreme Court delivered its decision in Newfoundland Nurses, but must be
considered to be strengthened by Newfoundland Nurses. Further,
Justice Zinn was dealing with a circumstance where the Commissioner agreed with
the section 40/41 Report, but on a different basis.
[26]
The present case is even stronger than that
before Justice Zinn. The Commissioner disagreed with the recommendation of the
section 40/41 Report and never said why. It was simply wrong not to have said
why.
[27]
There were several bases upon which the section
40/41 Report recommended that the Commission deal with the matter. They
included:
•
the Applicant could only seek the remedies such
as reinstatement, promotion, damages for financial loss, damages for stress,
and so forth, in this proceeding, and none other;
•
the grievances that the Applicant was pursuing
within the RCMP system would take years to resolve; and
•
whether the Applicant could reactivate his
complaint was by no means certain.
[28]
A reasonable decision would recognize that these
matters demanded that the Commission deal with them. The resolution of the
other grievances that the Applicant had pending would in no way deal with
reinstatement, promotion, damages for financial loss, damages for stress, and
the like. The decision not to hear, or to defer, was wholly unreasonable. To
defer pending other grievances that in no way provide the remedies sought here
and will, in any event, take an undue length of time to resolve, is wholly
unreasonable.
D.
Did the Commission Err in its Application of
Section 42(2) of the Canadian Human Rights Act?
[29]
Section 41(1) of the Canadian Human Rights
Act, RSC 1985, c. H-6, provides that the Commission shall deal with
a complaint unless it appears to the Commission that the alleged victim
ought to exhaust other remedies. It states:
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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
(a) the alleged
victim of the discriminatory practice to which the complaint relates ought to
exhaust grievance or review procedures otherwise reasonably available;
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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 :
a) la victime
présumée de l’acte discriminatoire devrait épuiser d’abord les recours
internes ou les procédures d’appel ou de règlement des griefs qui lui sont
normalement ouverts;
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[30]
Section 42(2) of that Act provides a
caution respecting section 41(1)(a) such that the failure to exhaust other
remedies shall not be attributable to the complainant:
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42.(2) Before
deciding that a complaint will not be dealt with because a procedure referred
to in paragraph 41(a) has not been exhausted, the Commission shall satisfy
itself that the failure to exhaust the procedure was attributable to the
complainant and not to another.
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42.(2) Avant de
décider qu’une plainte est irrecevable pour le motif que les recours ou
procédures mentionnés à l’alinéa 41a) n’ont pas été épuisés, la Commission
s’assure que le défaut est exclusivement imputable au plaignant.
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[31]
Struggling through all the double negatives,
section 41(1)(a) of this Act, when read in conjunction with section
42(2), means that the Commission shall hear a matter unless it
appears to the Commission that the complainant ought to seek other
remedies and where the failure to seek those remedies is the fault of the
complainant. Even in such a case, it appears that the commission may,
nonetheless, hear the matter.
[32]
There is little jurisprudence dealing with
section 42(2). In Guydos v Canada Post Corp, 2012 FC 1001, Justice
Mandamin, of this Court, wrote at paragraph 54:
54 Section 42(2) requires the
Commission, prior to determining that a complaint will not be dealt with
pursuant to s. 41(1)(a), to satisfy itself that the failure to exhaust the
procedure was attributable to the complainant and not to another. As stated in Bell Canada, the term "satisfy itself" indicates Parliament intended to grant
significant deference to the Commission's decision that it was satisfied.
[33]
In the present circumstances, there has been a
finding, as set out in paragraph 32 (previously reproduced) of the section40/41
Report, that the complainant has not caused any delay, but that the complainant
submits that the RCMP was responsible for a number of delays.
[34]
Among the many reasons advanced as to why the
Commission should hear the matter is that of delays caused by the process
within the RCMP.
[35]
Section 42(2) of the Act is clearly a
safeguard so that the Commission should not be forced into hearing a matter
where the complainant, him or her self, is the causes of the delay. Section
42(2) should not be read so that the Commission may refuse to hear a matter
where those who administer the alternative procedures are themselves the cause
of delay. Quite the reverse. The Commission should hear the matter.
II.
CONCLUSION
[36]
The reasons were wholly inadequate. The decision
was unreasonable. Section 42(2) of the Canadian Human Rights Act cannot
be interpreted so as to preclude the Commission from hearing a matter where the
alternate remedy is being delayed by those providing the alternate remedy.
[37]
The parties have agreed as to the quantum of
costs awarded to the prevailing party. It is $4,000.00.
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